
USCA1 Opinion

	




          March 23, 1994    UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 92-1447                               UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    PETER BRANDON,                                Defendant, Appellant.                                 ____________________          No. 92-1465                               UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  CHARLES D. GAUVIN,                                Defendant, Appellant.                                 ____________________          No. 92-1466                               UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   MARVIN GRANOFF,                                Defendant, Appellant.                                 ____________________          No. 92-1467                               UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 RONALD R. HAGOPIAN,                                Defendant, Appellant.                                 ____________________          No. 92-1468                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   MOMI A. KUMALAE,                                Defendant, Appellant.                                 ____________________          No. 92-1469                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   OWEN B. LANDMAN,                                Defendant, Appellant.                                 ____________________          No. 92-1470                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  NORMAN D. REISCH,                                Defendant, Appellant.                                 ____________________          No. 92-1471                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                      JOHN WARD,                                Defendant, Appellant.                                 ____________________                                        Before                              Torruella, Circuit Judge,                                         _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                                _____________________                                    ORDER OF COURT                                Entered March   , 1994               The opinion of  this Court  issued on January  31, 1994,  is          amended as follows:               Page  50, last paragraph,  line 3, delete  the sentence that          starts  with  "For  the  transactions  .  .  ."  and  insert  the          following:   "Ward helped to  solicit the buyers  involved in the          transactions  for  these counts  by  telling  them that  no  down          payments were required."               Page  51, line 2, delete  the sentence that  starts with "He          nevertheless . . ." and  insert the following:  "He directed  one          of these buyers  to provide a  down payment check  that would  be          funded by someone else and then cashed so that the funds could be          returned."               Page 51,  line 10, delete "Brandon's  insurance company" and          insert "the buyer's insurance company."                                              By the Court:                                              Francis P. Scigliano                                                     Clerk.                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 92-1447                               UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    PETER BRANDON,                                Defendant, Appellant.                                 ____________________          No. 92-1465                               UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  CHARLES D. GAUVIN,                                Defendant, Appellant.                                 ____________________          No. 92-1466                               UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   MARVIN GRANOFF,                                Defendant, Appellant.                                 ____________________          No. 92-1467                               UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 RONALD R. HAGOPIAN,                                Defendant, Appellant.                                 ____________________          No. 92-1468                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   MOMI A. KUMALAE,                                Defendant, Appellant.                                 ____________________          No. 92-1469                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   OWEN B. LANDMAN,                                Defendant, Appellant.                                 ____________________                                         -2-          No. 92-1470                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  NORMAN D. REISCH,                                Defendant, Appellant.                                 ____________________          No. 92-1471                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                      JOHN WARD,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Ernest C. Torres, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                              Torruella, Circuit Judge,                                         _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                                _____________________                                         -3-               Dana A.  Curhan, by Appointment of the  Court, for appellant               _______________          Peter Brandon; John A.  MacFadyen with whom Richard A.  Gonnella,                         __________________           ____________________          was on brief for appellant Charles D. Gauvin; Thomas J. May, with                                                        _____________          whom Carol A. Fitzsimmons and  Johnson, Mee & May, were  on brief               ____________________      __________________          for  appellant Marvin Granoff; Barbara A.  H. Smith for appellant                                         ____________________          Ronald R.  Hagopian; William  C. Dimitri,  by Appointment  of the                               ___________________          Court,  with whom Dimitri &  Dimitri, was on  brief for appellant                            __________________          Momi A.  Kumalae; Donald  P.  Rothschild, by  Appointment of  the                            ______________________          Court, with whom Tillinghast  Collins & Graham, was on  brief for                           _____________________________          appellant  Owen B.  Landman;  Barbara A. H.  Smith for  appellant                                        ____________________          Norman  D. Reisch; and Catherine  C. Czar, by  Appointment of the                                 __________________          Court, for appellant John Ward.               Craig N. Moore, Assistant  United States Attorney, with whom               ______________          Edwin J.  Gale, United States  Attorney, and Margaret  E. Curran,          ______________                               ___________________          Assistant United States Attorney, were on brief for appellee.                                 ____________________                                   January 31, 1994                                 ____________________                                         -4-                    TORRUELLA, Circuit Judge.  The eight defendants in this                               _____________          case were convicted of  conspiracy to commit bank fraud  under 18          U.S.C.   371  and of a varying number of  bank fraud counts under          18 U.S.C.   1344 and    2 following a jury trial  in the district          court.  They now  challenge their convictions and sentences  on a          wide variety  of grounds.   For the reasons  set forth  below, we          affirm  all  of  the  convictions  except   for  the  bank  fraud          convictions on Counts 24  and 25 against defendant John  Ward and          the  bank  fraud convictions  on  Counts  23 through  26  against          defendant Owen Landman, which we reverse.                                    I.  BACKGROUND                                    I.  BACKGROUND                    This  case involves  an alleged  scheme to  obtain loan          financing   from  a   federally  insured  bank   by  fraudulently          representing the existence of down payments required  by the bank          from  the   investors  on  whose  behalf  the  loans  were  made.          According to  the record in this  case, viewed in the  light most          favorable to  the government,  United States v.  Van Helden,  920                                         _____________     __________          F.2d 99,  101 (1st Cir.  1990), the facts  of this scheme  are as          follows.                    On  January 1,  1985, defendant  Peter Brandon  and two          others formed a partnership called Dean Street Development ("Dean          Street")1  for the  purpose  of buying,  developing, and  selling          real estate.  Specifically, Brandon  planned to buy and  renovate                                        ____________________          1  Several partnerships  and corporations related to  Dean Street          were  also involved in this case.  Together they are collectively          referred to here as "Dean Street."  Brandon controlled all of the          various entities.                                         -5-          motels  along  the  Rhode  Island  seashore,  convert  them  into          condominiums and then  sell the individual rooms  to investors as          condominium  units.  As part of this plan, the condominium buyers          would lease the units  back to Dean Street and  Dean Street would          then  manage the properties  as motels.   Under  the "lease-back"          agreement  with the  buyers, Dean  Street would apply  the income          from the operation of  the motels to cover the  monthly mortgage,          tax  and  insurance  costs incurred  by  the  unit  buyers.   Any          shortfalls  in operating costs would  be made up  by Dean Street,          leaving the buyers with no monthly costs on their investment.                    In addition, buyers would be allowed to use their units          for two weeks  out of the year.  Dean  Street would also guaranty          them  a  certain level  of profit  at  sale.   Some  buyers would          receive  rebates for  each unit  they purchased.   In  short, the          buyers would be offered a sweet deal.                    To  make  the deal  even  sweeter,  Brandon planned  to          arrange all  the financing for  the buyers.   He hoped  to obtain          100% financing, that is, loans for the complete purchase price of          each  unit.   With  such financing,  buyers  could invest  in the          project without  putting any  money down and  consequently obtain          that elusive  -- yet apparently  not uncommon for  the fast-paced          world of 1980s real estate -- deal of "something for nothing."                     In  early 1987, Brandon  approached Homeowner's Funding          Corporation  ("Homeowners"), a  mortgage broker  that acts  as an          intermediary between  banks and  borrowers, to obtain  these "end          loans" for the  buyers.  Homeowners' President told  Brandon that                                         -6-          100% financing was unavailable for the project.  Rather, the best          Brandon could  hope to  find was  80% financing  with a 20%  down          payment  required  from  the  buyers.    Homeowners  subsequently          searched  for  a lender  and,  after  approaching several  banks,          located  Bay Loan and  Investment Bank ("Bay  Loan"), a financial          institution insured by the Federal Deposit Insurance Corporation.          Bay Loan agreed to lend buyers of Dean Street's condominium units          up to 80% of the required purchase price.                    Homeowners, as well  as East-West Financial Corporation          ("East West"), the other mortgage broker involved in this  case,2          acted as brokers and servicing agents for Bay Loan.  Bay Loan was          the actual lender  for the  Dean Street project  and it  financed          every  condominium  sale  involved  in  the  scheme.    By  prior          agreement,  Homeowners   and  East  West  provided  the  original          mortgages  for the  buyers  and  then  sold  them  to  Bay  Loan.          Homeowners and East West would forward  all the loan applications          to Bay Loan for approval prior to providing the mortgages for the          condominium  units.3     The  decision  of  whether   to  fund  a          particular mortgage rested  entirely with Bay  Loan and Bay  Loan                                        ____________________          2   Toward the end of 1987, Brandon became dissatisfied with what          he considered  the slow pace  at which Homeowners  was processing          the  loans and,  after a  dispute  with Homeowners,  retained the          services  of  East  West to  continue  the  project.   East  West          continued where Homeowners left off  with Bay Loan again agreeing          to act as the end loan financier.          3   The brokers  would not  provide the  financing to the  buyers          without first getting  Bay Loan's agreement to  purchase and fund          the loans.  In fact, Homeowner's line of credit for issuing funds          to the  buyers specifically prohibited the  disbursement of money          without  a commitment from the ultimate lender, in this case, Bay          Loan, to fund the loan.                                         -7-          set the terms and conditions of each mortgage.                    As Bay Loan Vice  President of consumer lending, Joseph          Gormley,  explained to Brandon, the bank required each buyer of a          condominium unit  to make  at least  a  20% down  payment to  the          seller,  Dean  Street,  before  Bay Loan  could  fund  the loans.          Instead  of  instructing  buyers  to provide  the  required  down          payments,  however,  Brandon  concocted a  scheme  that permitted          buyers to  avoid the down payments  altogether.  As a  result, he          was  able to pursue his original goal of obtaining 100% financing          for the condominium  project.  The  scheme was formulated  during          the  spring  and   summer  of  1987  when   Brandon  had  several          discussions  with,  among  other  people,  his  attorney,  George          Marderosian,   and   co-defendant  Norman   Reisch,   another  of          Marderosian's clients, concerning ways  that the 20% down payment          requirement "might  be satisfied by alternative  methods or might          be  avoided."   During  that  period, Brandon  also  told another          person  involved in the conspiracy, Claude Limoges, that the down          payments would be falsified.                    Brandon  planned and  employed  three basic  methods of          falsifying  the  down payments.    The  first method  was  simply          providing money to the various buyers which the buyers would then          use to make the down payments to Dean Street.   Usually the money          came  from  third-party  investors  to whom  Brandon  promised  a          commission for each  down payment  they funded.   Once the  buyer          made  the down payment to  Dean Street, Dean  Street would return          the  money to  the  investor leaving  a  paper trail  for  a down                                         -8-          payment that was never actually made.  The second method involved          obtaining down payment  checks from the buyers  and promising not          to  cash them.  Copies of these nonnegotiated checks would remain          in the  loan file  to give  the  appearance that  real funds  had          actually been  transferred.   The  third  method was  to  provide          second  mortgages to the buyers  to fund their  down payments and          then to discharge those mortgages after the closings.4                    The first method of avoiding down payments was employed          from  the outset of the scheme.  Co-defendants Charles Gauvin and          Marvin Granoff,  two clients of Marderosian,  agreed with Brandon          to purchase some units at the Charlestown  Motor Inn.  Gauvin and          Granoff also agreed to provide down payment funds to other buyers          for  subsequent unit sales.  Brandon promised them $1000 for each          unit  sold with their  down payment  funds.   In August  of 1987,          Gauvin,  Granoff and  a third  person each purchased  four units.          Marderosian conducted the closing  and co-defendant Owen Landman,          an  attorney who shared  office space with  Marderosian, acted as          escrow  agent.   During  the  closing,  Marderosian recorded  the          amount of each down payment ($20,500) on the closing statements -          - also called the HUD settlement sheets -- as "amounts paid by or          in behalf of borrower."5                    Gauvin provided the down payment funds for these twelve                                        ____________________          4   Brandon also  falsified the  loan  applications of  otherwise          unqualified buyers.          5   Throughout the project, the HUD settlement sheets were signed          by  Brandon  and  the  buyers,  including  those  defendants  who          purchased units.                                         -9-          purchases but no actual payment was ever made; instead, the funds          were  passed through Dean Street and returned  to Gauvin.  At the          closing, Gauvin delivered twelve separate checks for $20,500 each          to Marderosian, drawn on an account that only had a $6000 balance          at  the  time, and  Landman deposited  the  checks in  his escrow          account.    Landman then  wrote  twelve  corresponding checks  to          Marderosian who in turn wrote checks to Dean Street for identical          amounts  of  $20,500 each.   Two  days  later, Dean  Street wrote          twelve checks back to Gauvin for the same amounts of $20,500 each          and Gauvin  deposited the money in the  original checking account          to  cover his initial twelve  checks written as  down payments to          the seller.                    In late  August and September of  1987, Gauvin provided          down  payments for the purchase of units at the Charlestown Motor          Inn and at the  Bayside Motel by Reisch and others.   As with the          first  purchases, Dean  Street  returned the  down payment  money          within a matter of days and also paid Gauvin  an additional $1000          per unit.                    In the beginning of 1988, Bay Loan began requiring that          down payments be made  with certified funds.  Gauvin  and Granoff          agreed to provide  buyers with  funds so that  they could  obtain          certified checks before the closings.  In January and February of          1988, Granoff supplied $470,000  to Marderosian who deposited the          funds  and began  distributing the  money to  prospective buyers.          The  original intention was that  Dean Street would  pay back the          money to Granoff a few days after  each closing as it had done in                                         -10-          the previous transactions.   Brandon, however, never returned the          money as planned.6                     With  no more  money  coming from  Gauvin and  Granoff,          Brandon discussed the possibility  of funding buyer down payments          with  Reisch.  Reisch had earlier supplied down payment money for          a buyer and  was reimbursed by Dean Street the  next day.  Reisch          agreed to provide the money, but only if he could  wire the money          directly to the buyers  on a transaction by transaction  basis in          order  to avoid  having large  amounts outstanding.   Funds  were          wired  to buyers on several  occasions and the  buyers then wrote          down  payment  checks with  the money.    The checks  were either          deposited in  Landman's escrow account or  endorsed directly back          over  to Reisch.  Those  funds deposited in  escrow were promptly          returned to Reisch.                    The second  method of  falsifying down  payments, using          nonnegotiated checks,  was employed less frequently.   In October          of 1987,  co-defendants Ronald  Hagopian and John  Ward purchased          several units at the Bayside Motel using nonnegotiated checks for          their down payments.   Brandon also  enlisted Hagopian and  Ward,          both  real  estate  brokers,  to solicit  other  buyers  for  the          project.  Hagopian and Ward told  several of the buyers they  had          recruited  to provide  down  payment checks  which they  promised          would never be cashed.  These buyers proceeded to write checks to          Dean Street and those checks were never negotiated.                                         ____________________          6   Brandon  did eventually  agree to  a repayment  schedule but,          ultimately, none of Granoff's money was ever repaid.                                         -11-                    The  third  method  of  falsifying  down  payments  was          through  dischargeable mortgages.    Joseph Gormley  at Bay  Loan          approved a  plan  for buyers  to make  only 5%  down payments  in          certified funds with the  balance of a required 25%  down payment          to be satisfied  by a  second mortgage provided  by Dean  Street.          Dean Street  began providing these  mortgages to the  buyers, but          the  mortgages  were  promptly  discharged7  after  the  closings          because  Dean  Street never  actually  intended  to obligate  the          buyers.   The discharges were  accomplished by a  "purchase price          adjustment" given  to buyers after the sale  to "compensate" them          for promised renovations that Dean  Street was suddenly unable to          make.  In reality,  the renovations "were never going  to happen"          in the first place.                    At the closings, some of the buyers  inquired about the          second  mortgage   documents  because  Brandon  had   promised  a          discharge  and the  buyers wanted  to know  when that  would take          place.   The "purchase price adjustment"  letters that discharged          the mortgages were excluded from the closing documentation so the          bank would not see  them.  During the closings,  Landman gestured          to several buyers that they should not mention the matter to him.          Brandon's assistant  at Dean  Street, co-defendant Momi  Kumalae,          did  speak to buyers about  the discharges and  assured them that          they  would be taken  care of.   Kumalae also signed  many of the                                        ____________________          7   Testimony was offered  by defendants  to the effect  that the          discharges provided  by Dean Street were  not legally enforceable          and that the  buyers are still  obligated on the  mortgages.   We          find this  possibility irrelevant  as the intent  was clearly  to          discharge the mortgages.                                         -12-          discharge letters sent to the buyers.                    Despite  the sale of almost  200 units, by  the fall of          1988,  the  loan  proceeds  from  Bay  Loan's  financing of  unit          purchases was falling  well short of  Dean Street's expenses  and          its own debt service.   Dean Street quickly fell  behind schedule          in making the mortgage  payments on all the Bay  Loan condominium          unit  loans,  and it  eventually stopped  making any  payments by          early 1989.                     Between August  1987 and October 1988,  Dean Street had          sold 196 units to 79 different  buyers, all financed by Bay  Loan          in  176 separate loans.   The face  value of the  loans was $18.8          million  and  Bay  Loan  actually distributed  $17.3  million  to          Marderosian who passed on about $16.9 million to Dean Street (the          balance  was retained as  fees or was paid  to Landman for escrow          services).  As of the trial, approximately $16.3 million remained          outstanding on the loans.                    Gormley  at Bay Loan,  who approved the  loans, did not          know that down  payment funds  came from sources  other than  the          buyers, that  some down payments were  nonnegotiated checks, that          second mortgages were being discharged, or that buyers were being          paid to purchase units.  Gormley testified that he would not have          approved  the  loans  if  he  had  been aware  of  any  of  these          circumstances.                    On February 28, 1991,  a federal grand jury sitting  in          the District of  Rhode Island handed  down a 27-count  indictment          charging the eight appellants and four others with defrauding Bay                                         -13-          Loan, a federally insured financial institution, of approximately          $18  million.    Count  1  charged  all  twelve  defendants  with          conspiracy to commit bank fraud in violation of  18 U.S.C.   371.          Counts 2  through 27  charged various defendants  with individual          acts of bank  fraud, under 18 U.S.C.   1344,  based on individual          loan transactions executed during  the scheme to defraud.8   Four          of the defendants pleaded guilty and did not go to trial.  Two of          the four,  George Marderosian  and Claude Limoges,  testified for          the government.                      After a  trial in the United States  District Court for          the District of Rhode  Island, the jury found all  the defendants          guilty of conspiracy and each defendant guilty on multiple counts          of bank fraud.  Some defendants were acquitted on individual bank          fraud charges as discussed below.  This appeal followed.                   II.  FAILURE OF THE INDICTMENT TO STATE AN OFFENSE                  II.  FAILURE OF THE INDICTMENT TO STATE AN OFFENSE                    Defendants first  argue that  the indictment  failed to          state  an offense with respect to the conspiracy count because it          did not allege that the United  States or one of its agencies was          the target of the conspiracy.   Count I of the indictment charged          defendants  with  conspiring to  commit  an  offense against  the                                        ____________________          8  One bank fraud count was later dismissed by  the government so          that 26  total counts remained  for trial.  Brandon  was the only          defendant charged in all of the counts.             Each  bank fraud count charges  one or more  of the defendants          with facilitating  in some  way the fraudulent  representation of          the required down payment  for a specific loan for  an individual          condominium unit.  Although each unit purchase allegedly involved          the  same fraudulent scheme,  only 26 specific  executions of the          scheme were originally charged.                                         -14-          United States  in violation  of 18 U.S.C.    371  by executing  a          scheme to defraud Bay Loan  under 18 U.S.C.   1344.   Section 371          makes  it a  crime  to "conspire  either  to commit  any  offense                                            ______          against  the United States, or  to defraud the  United States, or                                      __          any  agency thereof" (emphasis added).  The Supreme Court held in          Tanner  v. United States, 483  U.S. 107, 128-132  (1987), that in          ______     _____________          order to establish a  conspiracy to "defraud the  United States,"          under the second clause of    371, the government must prove that          the  target of  the fraud  was the  United States  or one  of its          agencies.    Id.  (finding   a  recipient  of  federal  financial                       __          assistance  and supervision  not to  be an  agency of  the United          States for purposes of   371).  The defendants contend that  this          requirement  should be extended to the first  clause of   371 for          alleged conspiracies  "to commit  any offense against  the United          States."                    18 U.S.C.   371 creates two distinct criminal offenses:          conspiracies  to commit  offenses against  the United  States and          conspiracies to  defraud the  United States.   See,  e.g., United                                                         ___   ____  ______          States v.  Haga, 821 F.2d 1036,  1039 (5th Cir. 1987).   The "any          ______     ____          offense"  clause of   371 ("to commit offenses against the United          States")  is aimed  at conspiracies  to violate  the laws  of the          United States.   It does not  refer to a  particular victim of  a          particular crime like the second clause does, but instead applies          generally to  federal "offenses."  The  Tanner requirement should                                                  ______          not be extended to a large area of criminal conspiracies, such as          mail  and  wire fraud,  that  victimize  persons  other than  the                                         -15-          government or its agencies but traditionally have been prosecuted          under the  "any offense" clause of    371.  See  United States v.                                                      ___  _____________          Falcone, 960 F.2d 988,  990 (11th Cir.) (en banc),  cert. denied,          _______                                             ____  ______          113 S. Ct. 292  (1992) (citing the reasoning in  United States v.                                                           _____________          Falcone, 934 F.2d 1528, 1548-51 (11th Cir.  1991) (Tjoflat, C.J.,          _______          specially concurring,  joined  by  Powell,  Assoc.  Justice,  and          Kravitch, J.) to overrule its previous extension of Tanner to the                                                              ______          "any offense"  clause of   371 in United States v. Hope, 861 F.2d                                            _____________    ____          1574  (11th Cir. 1988)); United  States v. Loney,  959 F.2d 1332,                                   ______________    _____          1338-40 (5th Cir. 1992);  United States v. Gibson, 881  F.2d 318,                                    _____________    ______          321 (6th Cir. 1989).  We therefore reject the contention that the          indictment  must  assert that  the United  States  or one  of its          agencies was a target of the alleged conspiracy in this case.                     III.  MULTIPLICITY OF THE BANK FRAUD COUNTS                     III.  MULTIPLICITY OF THE BANK FRAUD COUNTS                    Defendants challenge the validity of the indictment for          charging  twenty-five individual  counts of  bank fraud  under 18          U.S.C.    1344,  when, allegedly,  all the  counts relate  to the          single  execution  of  one  scheme  to  defraud  Bay  Loan.    An          indictment  is  multiplicitous  and  in violation  of  the  Fifth          Amendment's Double Jeopardy Clause if it charges a single offense          in more than  one count.  United States v.  Serino, 835 F.2d 924,                                    _____________     ______          930  (1st Cir. 1987).  Under the  bank fraud statute, 18 U.S.C.            1344,  each  execution  of  a  scheme  to defraud  constitutes  a          separate indictable offense.   United States v. George, 986  F.2d                                         _____________    ______          1176,  1179  (8th Cir.),  cert. denied,  114  S. Ct.  269 (1993);                                    ____  ______          United States  v. Lemons, 941 F.2d 309, 317 (5th Cir. 1991).  The          _____________     ______                                         -16-          central question for determining  multiplicity is "whether a jury          could plausibly find that the actions described in the [disputed]          counts  of   the  indictment,  objectively   viewed,  constituted          separate  executions of the [bank  fraud] scheme."  United States                                                              _____________          v. Lilly, 983 F.2d 300, 303 (1st Cir. 1992).             _____                    A number of factors are relevant in determining whether          a single or multiple  executions of bank fraud have  taken place,          including  the number of  banks, the number  of transactions, and          the number of movements of money involved in the scheme.   Lilly,                                                                     _____          983  F.2d at  305.   Each time  an identifiable  sum of  money is          obtained by a specific fraudulent transaction, there is likely to          be  a separate execution  of the scheme  to defraud.   See, e.g.,                                                                 ___  ____          United  States v. Barnhart, 979 F.2d 647, 650-51 (8th Cir. 1992);          ______________    ________          United States v. Mason,  902 F.2d 1434, 1436-38 (9th  Cir. 1990);          _____________    _____          United States v. Poliak, 823 F.2d 371, 372 (9th Cir. 1987), cert.          _____________    ______                                     ____          denied, 485 U.S. 1029 (1988).          ______                    The government's position  is that each transaction  in          which Bay  Loan provided a mortgage  (or end loan) to  a buyer on          the  basis of  a  fraudulent  representation  of a  down  payment          constitutes  a single,  independent  execution of  the scheme  to          defraud.  We think that this position is the correct one when the          scheme  is viewed  properly from  an objective  standpoint.   See                                                                        ___          Lilly,  983  F.2d  at 303  (finding  that  the  scheme should  be          _____          "objectively viewed" to determine multiplicity).                    The  basic  scheme to  defraud  Bay  Loan involved  the          fraudulent representation  of buyers'  down payments in  order to                                         -17-          obtain loan financing from the bank for Dean Street's condominium          units.  The  scheme was not  designed to get  a set amount,  or a          preconceived sum,  of money.   Instead, the scheme  functioned by          obtaining  as many loans as  possible depending on  the number of          buyers Dean Street could recruit to apply for the mortgages.  The          structure  of the scheme was such that individual buyers would be          brought in to  submit separate loan  applications which would  be          fraudulently prepared and then  sent on to Bay Loan  for approval          and the disbursement of the funds for that individual sale.   Bay          Loan  approved  each loan  separately  based  on each  individual          application and each loan corresponded  to an individual piece of          property,  that is,  a  separate condominium  unit.   Objectively          viewed, each loan  application appears to be a repeated execution          of the basic scheme and not simply an additional step or stage of          one  unitary transaction.  Although only one bank was involved in          the  scheme, there were over  176 separate loans  to 79 different          buyers involving many  separate movements of money from  Bay Loan          to the mortgage  brokers and  from the mortgage  brokers to  Dean          Street  during  the fifteen  months in  which  the scheme  was in          operation.                    The fact that the end loans were sometimes processed in          bulk  does  not   alter  the  essential  nature  of  the  scheme.          Defendants highlight the fact that, on some  occasions, groups of          mortgage applications  were supplied to Bay Loan together and Bay          Loan sometimes wired money to the brokers on a bulk  basis.  This          was  usually done, however, as  a matter of  convenience (such as                                         -18-          when several unit purchases closed at the same time) and not as a          method  to package the financing in a way necessary to accomplish          a unified  scheme.9   Arguably,  one could  view this  case as  a          single  execution by Dean Street of a broad scheme to use various          buyers as  fronts in order to  get financing for a  unitary motel          condominium project.   However, we  feel it makes  more sense  to          look at each  mortgage application  as an  individual attempt  to          fraudulently obtain distinct amounts of money from Bay Loan.                    This is not, as defendants assert, a situation like the          one in Lilly where  a group of fraudulent mortgages  was assigned                 _____          in  a  single  package of  documents  to  the  defrauded bank  as          security for  one sum  of money used  to buy  a single  apartment          complex.   See id.  at  302-305.   In that  case,  there was  one                     ___ __          transaction with the defrauded bank which was  executed "in order          to  obtain a single loan,  the proceeds of  which funded a single          real estate purchase."   Id. at 303.  Consequently,  we found the                                   __          charges based on each mortgage to be multiplicitous.  The present          case is more akin to a check kiting scheme which we characterized          in Lilly as involving multiple executions of a fraudulent  scheme             _____          because  more than  one bank  was involved  and because,  "[m]ore                                        ____________________          9   At one point, Brandon  could not guaranty clear  title to Bay          Loan  on the  condominium units  until he  sold enough  units and          obtained a large enough chunk of financing to pay off some of the          original mortgages used  to buy  the motels in  the first  place.          This did necessitate  bulk processing of  unit mortgages so  that          blocks of financing could be obtained at one time.  The execution          of  the   fraud,  however,  still  remained   the  submission  of          individual loan applications as additional buyers were recruited.          The block processing of loans did not correspond to one  loan for          each motel but  were instead an amalgamation of  individual loans          for individual condominium units.                                         -19-          importantly,   each  check   signifies  a   separate  transaction          requiring  a separate issuance of money or  credit on the part of          the victimized bank." Id. at 304.                                __                    Similarly, the  other  cases cited  by defendants  that          invalidate indictments on grounds of multiplicity involve  single          loan  transactions instead  of  the multiple  and separate  loans          fraudulently obtained in this  case.  See United States  v. Saks,                                                ___ _____________     ____          964  F.2d 1514, 1526 (5th Cir. 1992) (single loan transaction for          single piece of property); United States v. Heath, 970 F.2d 1397,                                     _____________    _____          1401-02 (5th Cir.  1992), cert.  denied, 113 S.  Ct. 1643  (1993)                                    ____   ______          (two loans  involved in  the case  "were integrally  related; one          could not have succeeded without the other" and both were used to          accomplish essentially one  integrated real estate  transaction);          Lemons, 941 F.2d at 316-18 (separate payments of loan proceeds to          ______          defendant  were  installments  from  a  single  loan  transaction          involving a single project).   We hold, therefore, that  each end          loan provided by Bay Loan was the result of a separate fraud upon          the bank which  the indictment properly charged  as an individual          bank fraud offense.                           IV.  SUFFICIENCY OF THE EVIDENCE                           IV.  SUFFICIENCY OF THE EVIDENCE                    Seven of  the eight defendants argue  that the evidence          introduced at trial was insufficient to support their convictions          for  bank  fraud and  conspiracy to  commit  bank fraud.10   They                                        ____________________          10   Brandon does not  challenge the sufficiency  of the evidence          against  him on appeal.   He does argue  that certain evidentiary          rulings deprived him  of a fair  trial because he  was unable  to          present his  theory of  the case  and  convince the  jury of  his          innocence.   This issue  is discussed below  in Section VII.   We                                         -20-          argue,  with individual  variations, that they  did not  have the          requisite knowledge and  intent to defraud Bay  Loan because they          did  not  know  of,  or  intend  to  violate,  any  down  payment          requirements of  the bank.   With  the few exceptions  previously          noted, we disagree.  Before  reviewing the evidence with  respect          to each  defendant, we must  first address some  issues regarding          the substantive offenses charged in this case.                                   A.  The Offenses                                    1.  Bank Fraud                    To  prove  bank fraud  under  18 U.S.C.     1344,11 the          prosecution  must  show  beyond   a  reasonable  doubt  that  the          defendant (1) engaged in a scheme or artifice to defraud, or made                                        ____________________          note for the record that the evidence against Brandon is not only          sufficient but overwhelming.          11   At the  time when  the offenses occurred,  18 U.S.C.    1344          provided:                      Whoever  knowingly executes,  or attempts                      to execute, a  scheme or artifice --  (1)                      to  defraud  a  federally   chartered  or                      insured financial institution; or  (2) to                      obtain any of the moneys, funds, credits,                      assets,  securities,  or  other  property                      owned by, or under the custody or control                      of  a  federally  chartered   or  insured                      financial institution, by means  of false                      or fraudulent pretenses, representations,                      or  promises;  [shall  be  guilty  of  an                      offense against the United States].             A  technical amendment  in 1989  deleted the  words "federally          chartered or  insured" from  the section leaving  just "financial          institution."  Pub. L.  No. 101-73, Title IX,    961(k), Aug.  9,          1989,  103 Stat.  500.   Apparently,  no  substantive change  was          intended  by  this  amendment  as the  definition  of  "financial          institution" for all  of Title 18,  now contained at 18  U.S.C.            20,   still   encompasses   federally   chartered    or   insured          institutions.                                         -21-          false statements or misrepresentations  to obtain money from; (2)          a  federally  insured  financial  institution;  and  (3)  did  so          knowingly.  United States v. Goldblatt, 813 F.2d 619, 623-24 (3rd                      _____________    _________          Cir. 1987); United States v. Cloud, 872 F.2d 846, 850 (9th Cir.),                      _____________    _____          cert.  denied,  493 U.S.  1002 (1989).    The terms  "scheme" and          ____   ______          "artifice"  are defined to include "any plan, pattern or cause of          action,    including   false   and   fraudulent   pretenses   and          misrepresentations, intended to deceive others in order to obtain          something of value,  such as  money, from the  institution to  be          deceived."  Goldblatt, 813  F.2d at 624 (citing United  States v.                      _________                           ______________          Toney,  598 F.2d 1349, 1357  n.12 (5th Cir.  1979), cert. denied,          _____                                               ____  ______          444 U.S. 1033 (1983)).   "The term 'scheme to  defraud,' however,          is  not capable of precise definition.  Fraud instead is measured          in  a   particular  case   by  determining  whether   the  scheme          demonstrated   a  departure   from  fundamental   honesty,  moral          uprightness, or fair play and candid dealings in the general life          of  the community."  Goldblatt, 813  F.2d at 624; see also United                               _________                    ________ ______          States  v.  Stavroulakis, 952  F.2d  686,  694 (2d  Cir.),  cert.          ______      ____________                                    ____          denied, 112 S. Ct. 1982 (1992).          ______                    The  alleged  scheme in  this  case  is the  fraudulent          representation of  down payments that  were not actually  paid in          order to obtain  loan financing from Bay  Loan.  There is  little          doubt  that   this  scheme  took  place.12     Defendants  argue,                                        ____________________          12   Sufficient evidence exists to indicate Bay Loan provided the          loans for the Dean Street project, required down payments for the          loans, and  approved  loans  and  disbursed money  based  on  the          understanding that  its lending  requirement was satisfied.   The          evidence  also clearly  establishes  that no  down payments  were                                         -22-          however,  that they  did  not know  of,  or participate  in,  the          scheme,  and,  to  the  extent   that  they  did  participate  in          activities  related to the scheme, such  actions were not illegal          because the actions were  not intended to deceive or  defraud Bay          Loan.   Defendants claim they  were either unaware  that Bay Loan          existed  or else  unaware  that  Bay  Loan  had  a  down  payment          requirement that prohibited the various down payment transactions          in  which they  were  involved.   The  central issue  on  appeal,          therefore,   is  whether   defendants  possessed   the  requisite          knowledge and intent.                    "To  act with  the  'intent to  defraud'  means to  act          willfully, and with the  specific intent to deceive or  cheat for          the  purpose of either causing some financial loss to another, or          bringing  about some financial gain to oneself."  Cloud, 872 F.2d                                                            _____          at 852 n.6 (citations  omitted) (finding intent to defraud  where          defendant  signed instructions  "knowing that  the bank  could be          deceived by materially false statements that appeared on the face          of the instructions"); see  also United States v. Saks,  964 F.2d                                 _________ _____________    ____          1514,  1518 (5th Cir. 1992).  "It is a well-established principle          that fraudulent  intent  may  be  established  by  circumstantial          evidence and inferences drawn from all the evidence."  Cloud, 872                                                                 _____                                        ____________________          actually  made to Dean  Street because  the payments  were either          falsified or quickly  returned to their  source.  Defendants  did          present evidence,  mostly testimony by Brandon  himself, that Bay          Loan  knew  and  approved   of  the  down  payment  arrangements.          However,  more than  sufficient evidence  points to  the contrary          conclusion including the unequivocal testimony of Bay Loan's Vice          President, Gormley, that the  bank never knew of nor  approved of          the skirting of the down payment requirement.                                         -23-          F.2d at 852  n.6 (citations omitted);  United States v.  Celesia,                                                 _____________     _______          945  F.2d 756, 759-60 (4th Cir. 1991);  see also United States v.                                                  ________ _____________          Mason, 902 F.2d 1434,  1442 (9th Cir. 1990) ("Specific  intent is          _____          established by 'the  existence of a  scheme which was  reasonably          calculated   to  deceive   persons   of  ordinary   prudence  and          comprehension,  and  this intention  is  shown  by examining  the          scheme itself.'" (quoting United States v.  Green, 745 F.2d 1205,                                    _____________     _____          1207 (9th Cir. 1984) (additional internal quotation omitted))).                    Defendants argue  that the  government must  prove that          they knew that  the victim of their fraud was a federally insured          financial institution.  We  disagree.  The status of  the victim-          institution is  not a separate  knowledge element  of bank  fraud          under   1344 but  an objective fact that  must be established  in          order  for  the  statute  to  apply.    The  government  produced          evidence,  and defendants  do  not  dispute,  that  Bay  Loan  is          federally insured.  This is sufficient to satisfy the requirement          under 18 U.S.C.    1344 that  the defrauded bank  be a  federally          insured bank.   See United  States v. McClelland,  868 F.2d  704,                          ___ ______________    __________          709-11 (5th Cir. 1989);  cf. United States v. Thompson,  811 F.2d                                   __  _____________    ________          841, 844 (5th  Cir. 1987) (finding  that under 18 U.S.C.    1014,          which  criminalizes the making of false statements to a bank, the          federal insured  status  of  the victim  institution  is  just  a          jurisdictional  requirement and  not a  knowledge element  of the          offense);  United States v. Trice,  823 F.2d 80,  86-87 (5th Cir.                     _____________    _____                                         -24-          1987) (same).13                     We decline to  adopt defendants' analogy to  one of the          federal gambling  statutes, 18 U.S.C.    1084(a),  which we  have          previously held  requires knowledge  of the interstate  nature of          the wire communication involved in the offense.  United States v.                                                           _____________          Southard,  700 F.2d 1, 24-25  (1st Cir.), cert.  denied, 464 U.S.          ________                                  ____   ______          823 (1983).  Our holding in that case rested on the fact that the          word "knowingly"  in the  statute could not  reasonably refer  to          anything else except the  interstate nature of the communication.          Id.  at 24 (noting one  cannot unwittingly or  unknowingly make a          __          wire transmission).   That is not  the case  with the bank  fraud          statute  because "knowingly"  in    1344  clearly applies  to the                                        ____________________          13  We find the language of   1014 sufficiently similar to   1344          to  warrant  a similar  conclusion  about  Congress' intent  with          respect to the knowledge  requirement in the bank fraud  statute.          18 U.S.C.   1014 states in pertinent part:                      "Whoever   knowingly   makes  any   false                      statement   or   report,   or   willfully                      overvalues   any    land,   property   or                      security, for the purpose  of influencing                      in  any  way  the  action of  .  .  . any                      institution  the  accounts  of which  are                      insured by the Federal  Deposit Insurance                      Corporation  [shall  be   guilty  of   an                      offense against the Unites States]."             Defendants contend that the use of "knowingly" in this statute          differs  significantly from  its use  in    1344  which prohibits          knowingly executing a scheme "to defraud a federally chartered or          insured financial institution."  We reject this  contention.  The          placement in   1344 of the words "federally chartered or insured"          before the  word "institution" instead of  similar language being          placed after  "institution," as  in    1014, simply  reflects the          fact  that federal  insurance  is separately  defined in  another          subsection  and thus  there is no  need to  use the  more awkward          construction  found in   1014.  The different word placement is a          distinction without a difference.                                         -25-          execution  of  a  scheme  or  artifice  to  defraud.    The  word          "knowingly" is necessary because one can execute a scheme without          knowing or understanding that it is fraudulent.  In fact, that is          what many of the defendants themselves argue in this appeal: that          they  may have facilitated the  false down payments  but they did          not  know  it  violated  the  bank's  requirements.    Therefore,          "knowingly" in    1344 has independent  meaning without reference          to the federally insured status of the financial institution.                    The  defendants  in  this  case  also  argue  that  the          government  must prove they knew that the end loans were provided          by Bay Loan and not by some other institution, such as Homeowners          or East West.  In other words,  there was no violation of    1344          because the scheme  to defraud  was not knowingly  targeted at  a          federally insured financial institution,  but instead at the non-          federally insured mortgage brokers.                    Defendants  overstate the  government's  burden.    The          specific intent under   1344 is an intent to defraud a bank, that          is, an  intent to  victimize  a bank  by  means of  a  fraudulent          scheme.  See United States v. Stavroulakis, 952 F.2d 686, 694 (2d                   ___ _____________    ____________          Cir. 1992); United States v. Mason, 902 F.2d 1434, 1442 (9th Cir.                      _____________    _____          1990).  It has been established that the government does not have          to  show  the   alleged  scheme  was  directed  solely  toward  a                                                          ______          particular institution;  it is sufficient to  show that defendant          knowingly executed  a fraudulent scheme that  exposed a federally          insured  bank to  a risk of  loss.   See, e.g.,  United States v.                                               ___  ____   _____________          Barakett,  994 F.2d 1107,  1110-11 (5th Cir.  1993), petition for          ________                                             ____________                                         -26-          cert.  filed, (Sept.  22,  1993) (fraudulent  scheme directed  at          ____________          checking account customers  of bank but fraud  victimized bank as          well); United States v. Morgenstern, 933 F.2d 1108, 1114 (2d Cir.                 _____________    ___________          1991), cert. denied, 112 S. Ct. 1188 (1992) (direct object of the                 ____  ______          fraud was to steal money from  third parties with deposits at the          defrauded bank).                    We hold that it is also  unnecessary for the government          to prove that  a defendant  knows which particular  bank will  be          victimized by  his fraud  as  long as  it is  established that  a          defendant   knows   that   a   financial  institution   will   be                                     _          defrauded.14   The bank  fraud statute  was "designed  to provide          an effective vehicle for  the prosecution of frauds in  which the          victims  are financial  institutions that are  federally created,          controlled  or insured."   S. Rep. No. 225,  98th Cong., 2d Sess.          377 (1983), 1984 U.S. Code Cong. & Admin. News 3517.  In creating          the  statute,  Congress noted  that  "there is  a  strong Federal          interest  in  protecting   the  financial   integrity  of   these          institutions, and  the legislation  in this  part would  assure a          basis for Federal prosecution of those who victimize these  banks          through fraudulent  schemes."   Id.   Thus, Congress  intended to                                          __          criminalize bank  frauds that  harm federally insured  banks, not                                        ____________________          14   We also reject  a related claim  made by  several defendants          that the district court had no jurisdiction over their bank fraud          counts because the target of the alleged bank fraud -- Homeowners          or  East West  as opposed  to  Bay Loan  -- was  not a  federally          insured financial institution.   Bay Loan was  in fact victimized          by  defendants' scheme to defraud.   In addition,  the scheme was          designed  to  obtain  funds  from  Bay  Loan  in   particular  by          fraudulently  avoiding one of Bay Loan's requirements.  This more          than satisfies the requirements for federal jurisdiction.                                         -27-          just bank  frauds directed specifically toward  federally insured          banks.   As  other courts  have noted,  "the legislative  history          supports  a broad construction of the  statutory language" of the          bank   fraud  statute.    Mason,  902  F.2d  at  1442;  see  also                                    _____                         _________          Stavroulakis, 952 F.2d at 694.           ____________                    Defendants  are essentially  seeking to  sanitize their          fraud  by interposing  an  intermediary or  an additional  victim          between  their fraud and the  federally insured bank.   We reject          this  attempt  to escape  the reach  of  the bank  fraud statute.          Instead, we find that  defendants need not have had  the specific          intent to defraud  Bay Loan so long  as they intended to  defraud          some financial institution.   The  fact that it  should turn  out          that the financial  institution actually defrauded  was federally          insured is a fortuitous stroke of bad luck for the defendants but          does  not make it  any less  of a federal  crime.   In this case,          evidence beyond  a reasonable doubt that  defendants fraudulently          evaded  a known down  payment requirement, whether  thought to be          imposed  by  Homeowners,  East  West,  Bay  Loan  or  some  other          financing  entity,   is  sufficient  to  support   a  bank  fraud          conviction.  Of course, the government must also establish that a          federally  insured bank, Bay Loan, was victimized or exposed to a          risk  of loss  by the scheme  to defraud.   See  United States v.                                                      ___  _____________          Blackmon, 839 F.2d 900,  906 (2d Cir.  1988).  This, however,  is          ________          not seriously disputed in this case.15                                        ____________________          15   The  down  payment scheme  victimized  Bay Loan  because  it          devalued the  mortgages  that  the  bank  was  providing.    Down          payments on a loan  decrease the risk of default  or nonrepayment                                         -28-                    Concerns about  extending the  reach of the  bank fraud          statute  into broad new areas  of financial activity  stem from a          misunderstanding  of  the  nature  of  the  statute.    Financial          transactions are becoming increasingly integrated and  complex as          more and more financial instruments are securitized and traded on          national  and  global  markets.   Consequently,  the  effects  of          fraudulent  actions  against  one  institution  are  increasingly          likely to  spill  over  and  detrimentally  affect  others.    As          Congress'  main concern in   1344 was to provide jurisdiction for          fraudulent  schemes  that harmed  federally chartered  or insured          institutions, the  increased risks to the  institutions should be          matched  by  increased  coverage of  the  statute.    We are  not          federalizing  criminal  transactions previously  covered  only by          state law so much as recognizing that those criminal transactions                                        ____________________          by increasing the equity participation of the borrower and giving          the borrower  a larger stake in  the venture.  The  down payments          consequently have value  to the  lender bank and  the failure  to          make them deprives the bank  of this value.  Cf. Mason,  902 F.2d                                                       __  _____          at 1441-43  (finding  intent  to commit  bank  fraud  where  bank          exposed to risk of loss  through defendants' concealment from the          bank that its customers were purchasing prostitution services and          consequently were a  greater credit  risk to the  bank which  was          processing the customers' credit  card purchases from defendants'          escort service).             The fact that buyers were required to make their down payments          to the seller, Dean Street, does not mitigate the risk of loss to          Bay Loan  from the down payment  scheme.  There would  still be a          higher risk  of default and  the absence of  equity participation          regardless  of who was receiving, or failing to receive, the down          payments.  In addition, the value of the condominiums, the bank's          collateral,  becomes an issue where the bank, thinking it is only          providing  80% of the purchase price, is actually lending 100% of          the sale price.   Ultimately,  Bay Loan refused  to provide  100%          financing  and explicitly  required a  down payment;  the payment          became  a negotiated term of  the mortgage contract  and thus had          some value to Bay Loan.                                         -29-          are becoming more federal in nature.16                    An  additional argument  defendants  make  is that  the          government  must  prove  defendants  knew that  Bay  Loan's  down          payment   requirement  specifically  prohibited  the  funding  of          buyers'  down   payments  by   someone  other  than   the  buyer.          Defendants claim  that they  thought the  funding  of buyer  down          payments   was   just   some   complex   financial   arrangement,          "supplemental financing" or required  paperwork, and they did not          know the funding was designed to defraud the bank.                    This misrepresents  the nature of the  fraud.  Although          Bay  Loan  did  in fact  prohibit  third  party  funding of  down          payments, the  key misrepresentation in  this case  was that  the          required down payments  were being paid  when they actually  were          not.  Bay Loan required  the buyers to make down payments  to the          seller,  Dean  Street,  and the  existence  of  the  payments was          represented to the  bank on  the closing settlement  sheets.   In          reality,  the payments  were not  being  made, either  because no          funds  were  actually  transferred  or  because  the  funds  were                                        ____________________          16  We do not  address whether any scheme to defraud,  regardless          of  its intended victim, can  be prosecuted under  the bank fraud          statute  as long as it has some detrimental effect on a federally          insured bank.   In this case at  least, the government  did prove          the  scheme  was intended  to  defraud  a financial  institution:          Homeowners or East West, if not Bay Loan itself.             We also  do not  address possible statutory  or jurisdictional          limitations on the  remoteness or foreseeability  of the harm  or          the  risk of  loss  to federally  insured financial  institutions          beyond which    1344 will no  longer apply.  We  simply note that          this  case  presents  a situation  of  direct  harm  to Bay  Loan          resulting  from a  scheme specifically  designed to  fraudulently          avoid the requirements of that federally insured bank in order to          obtain funds originating directly from Bay Loan.                                         -30-          returned  by Dean  Street  to  their  source.17   Therefore,  the          government need  only prove that  defendants knew a  down payment          was required and that  no real down payments were  actually made.          It need not establish  that defendants knew all of  the specifics          of  the down payment  requirement such  as restrictions  on third          party funding.                    In sum,  to prove  defendants knowingly engaged  in the          fraud,  the government  must establish  that each  defendant knew          that some  financial institution  was lending  the money  for the          motel-condominium project, knew that  a down payment was required          for  these  loans, knew  that  a scheme  of one  sort  or another          existed to make it appear that the down payments were being  made          when  in fact  they were  not, and  finally, that  each defendant          willfully participated in that scheme.                                    2.  Conspiracy                    Each defendant contests the sufficiency of the evidence          of his or her knowledge of the conspiracy to defraud Bay Loan and          his or her level of participation in that agreed upon scheme.  To          prove conspiracy, the  government must show  the existence of  an          agreement  between defendant  and  another to  commit a  crime,18                                        ____________________          17  In those cases where Dean Street failed to repay down payment          funds  as  promised, the  intention  was still  to do  so  and to          execute the same fraud as was executed on the other unit sales.          18  To the extent that the existence of a conspiracy is at issue,          the  evidence is  overwhelming  to support  the  convictions.   A          conspiracy is an agreement to commit  a crime and may be inferred          from  the circumstances.  United States v. Concemi, 957 F.2d 942,                                    _____________    _______          950  (1st Cir.  1992).   Brandon planned  and executed  a complex          scheme to  defraud  Bay Loan  that  required the  cooperation  of          investors, brokers, and other agents involved in facilitating the                                         -31-          that  each  defendant  knew  of  the  agreement,  and  that  each          defendant  voluntarily  participated  in  the  conspiracy through          conduct that  was interdependent with  the actions  of the  other          conspirators.  United States v. G mez-Pab n, 911 F.2d 847, 852-53                         _____________    ___________          (1st Cir.  1990),  cert. denied,  498  U.S. 1074  (1993);  United                             ____  ______                            ______          States  v. Evans,  970  F.2d 663,  668  (10th Cir.  1992),  cert.          ______     _____                                            ____          denied, 113  S. Ct. 1288 (1993).   The defendants  must have both          ______          the  intent  to agree  to participate  in  the conspiracy  and an          intent  to commit  the  underlying substantive  offense.   G mez-                                                                     ______          Pab n, 911 F.2d at 853; United States v. Drougas, 748  F.2d 8, 15          _____                   _____________    _______          (1st  Cir. 1984).  The  government, however, need  not prove that          each   defendant  knew  all  of  the   details  and  members,  or          participated  in all of the objectives, of the conspiracy as long          as  it can show knowledge  of the basic  agreement.  G mez-Pab n,                                                               ___________          911 F.2d at  853;  United  States v. Marsh,  747 F.2d 7,  13 (1st                             ______________    _____          Cir. 1984).   Such proof of knowledge and intent  "may consist of          circumstantial  evidence,  including inferences  from surrounding          circumstances,  such  as acts  committed  by  the defendant  that          furthered the  conspiracy's purposes."  G mez-Pab n,  911 F.2d at                                                  ___________          853.                    The   government   must   also  establish   defendants'          participation in the  conspiracy with the  intent to further  the                                        ____________________          transactions.  Brandon told  several co-conspirators of his plans          to falsify down payments, including  Marderosian, Reisch, Gauvin,          Granoff,  Hagopian,  and  Ward.   The  evidence  indicates  these          defendants  agreed  to  become  involved  in  the  conspiracy  by          performing such critical tasks as drawing up mortgage discharges,          wiring money, and providing down payment checks that would not be          used.                                         -32-          aims of the  conspiracy.  Direct Sales Co.  v. United States, 319                                    ________________     _____________          U.S. 703, 712 (1943).   Once a conspiracy is established, as well          as  defendant's intent to further it,  any connection between the          defendant  and  the  conspiracy,  even  a  slight  one,  will  be          sufficient to  establish knowing participation.   Marsh, 747 F.2d                                                            _____          at 13.                     In  this  case,  the  government must  prove  that  the          defendants knew there was  an agreement to fraudulently represent          down payments in  order to get loans from Bay  Loan and that they          willfully participated in this scheme by taking some overt action          with the intent  to further  the scheme's objective.   Thus,  the          evidence must  be sufficient to  establish the  intent to  commit          bank  fraud  as discussed  above  and,  in  addition,  must  also          establish an intent to  commit the fraud in conjunction  with the          broader conspiratorial agreement.                         B.  The Case Against Each Defendant                    Our  task on review of  the verdicts is  to examine the          evidence  in  its entirety  in the  light  most favorable  to the          government to determine  whether a rational  trier of fact  could          have  found  the  essential  elements   of  the  crime  beyond  a          reasonable doubt.   The government  receives the  benefit of  all          legitimate and favorable inferences, and it can prove its case by          circumstantial  evidence   without   having  to   exclude   every          reasonable hypothesis of innocence.  United States v. McLaughlin,                                               _____________    __________          957 F.2d 12, 18 (1st Cir. 1992); United States v. Boldt, 929 F.2d                                           _____________    _____          35,  39 (1st. Cir. 1991);  United States v.  Van Helden, 920 F.2d                                     _____________     __________                                         -33-          99, 101 (1st Cir. 1990).  Below, we review each defendant's  case          individually.                                  1.  Marvin Granoff                    Granoff was  convicted of conspiracy and  two counts of          bank  fraud in  connection  with his  purchase  of units  on  one          occasion and with his  funding of buyer down payments  on another          occasion.    Granoff argues  that the  evidence  in this  case is          insufficient to show that  he was anything more than  an innocent          investor duped  by his lawyer, Marderosian,  into providing money          for a project  he really did not  know anything about.   Although          the evidence against Marvin  Granoff reveals a more circumscribed          role than some of  the other defendants,  we are not prepared  to          overturn  the  jury's guilty  verdict  on  either the  conspiracy          charge or on the two counts of bank fraud.                    Sufficient evidence supports the jury's conclusion that          Granoff  knew  Bay Loan  was  funding  Dean Street's  condominium          project, that he knew down payments were required from the buyers          and that he  knowingly participated  in a scheme  to deceive  the          bank into thinking the requirement was satisfied.  To begin with,          Granoff  bought four  units  on one  occasion  and provided  down          payment  funds on another occasion.  Both times Bay Loan financed          the purchases without knowing the required down payments were not          actually made.    Prior to  each of  these transactions,  Granoff          attended a series of  meetings with Brandon concerning the  motel          condominium scheme.  Brandon told Granoff that down payments were          required and that he needed Granoff to provide money for the down                                         -34-          payments of other buyers.19  Granoff agreed to do so.20                    For Granoff's purchase of  units at the Charlestown Inn                                        ____________________          19  Specifically, Marderosian  testified that Brandon told Gauvin          and Granoff in  the summer  of 1987 that  "Homeowners required  a          twenty-five  percent down  payment  and while  that down  payment          would not  be required of Mr. Gauvin and Mr. Granoff, he did have          the problem of the down payment with subsequent purchasers and he          asked  Mr. Gauvin and Mr. Granoff for their assistance in meeting          that problem."  Despite the offer to "waive" Gauvin and Granoff's          down payments,  checks representing  down payments were  required          for their purchases.             In  another meeting, Brandon asked  Gauvin and Granoff if they          were  "willing  to  provide  the down  payment  money  for  other          purchasers" and they agreed to do so.  Marderosian also testified          that Brandon told Granoff at a meeting in January of 1988 that he          needed someone  to provide funding for the certified down payment          funds required  from unit buyers.   Brandon asked  whether Gauvin          and Granoff were "interested  in providing those certified funds"          and they agreed.          20    Marderosian  testified   that  Granoff  agreed  on  several          different  occasions  to  participate  in  Brandon's  scheme  and          referred several  times  to the  "agreement  Mr. Gauvin  and  Mr.          Granoff  made to  provide Mr.  Brandon with  monies for  the down          payments."    Despite  this, Granoff  argues  that  Marderosian's          testimony indicates Granoff said little or nothing at the various          meetings  with  Brandon and  this  is  insufficient to  establish          Granoff agreed to participate  in the conspiracy.  The  fact that          Granoff  provided  $470,000  that  was  used  for  down  payments          following the meetings  with Brandon in  which the agreement  was          discussed, however, is sufficient  to support the conclusion that          Granoff in fact did agree and did participate in the conspiracy.             Furthermore, Granoff's involvement in  the conspiracy was more          than just the  provision of  goods and services  to an  operation          that he knew might use the funds illegally.  See Direct Sales Co.                                                       ___ ________________          v. United States, 319 U.S. 703, 711, 713 (1943); United States v.             _____________                                 _____________          Falcone, 109 F.2d 579, 581 (2d Cir.), aff'd, 311 U.S. 205 (1940).          _______                               _____          The  evidence,  as  we  discuss  below,  indicates  that  Granoff          provided  money  specifically for  the  purpose  of funding  down          payments  he knew would be  falsified and was  promised $1000 per          unit  for his efforts.  Granoff's provision of down payment funds          was  a specialized  transaction without  loan documents  or other          paperwork and did not constitute merely the provision of goods or          services to the conspiracy.   Overall, the evidence is  more than          adequate to support the finding that Granoff adopted the goals of          the  conspiracy as his own and provided the down payment funds to          further the conspiracy.                                         -35-          in August of 1987, his partner, Gauvin, provided down payments to          Dean  Street on Granoff's behalf in the  form of checks that were          not  backed by  sufficient  funds.   Copies  of the  checks  were          included in the closing  files.  The "payments" were  returned to          Gauvin  two days later  when Dean  Street wrote  identical checks          back to Gauvin which Gauvin deposited in his account to cover the          original down payment  checks.   The fact  that Gauvin's  checks,          totalling $246,000, were drawn  on an account with only  $6000 at          the  time  when they  were written  indicates  that there  was no          intent on  Gauvin's part  to make an  actual down payment  in the          first place.21                    Granoff likewise provided down payment funds for  other          buyers  and  the evidence  indicates  he  did  this  knowing  and          expecting  that  the money  would be  returned  to him  after the          closing.   Granoff provided  $470,000 for  down  payments on  the                                        ____________________          21   Granoff argues that  with respect to  Count 2,  charging him          with bank fraud in connection with his purchase of a  unit at the          Charlestown Motor  Inn, the  requisite knowledge element  was not          established.   Brandon  had told  Granoff that  the down  payment          would be waived for  his purchase and there was  nothing, Granoff          claims,  in  the  closing  procedure sufficient  to  support  the          conclusion that he knew his  purchase took place under fraudulent          pretenses.   On the contrary, even if we disregard the reasonable          possibility  that  Granoff's  partner, Gauvin,  told  Granoff all          about the complex recycling transaction Gauvin undertook with the          checks used  for Granoff's  down payment,  the fact that  Granoff          signed the  HUD settlement sheets establishes  a sufficient basis          to  conclude Granoff knew  he was  representing the  existence of          down  payments  that  he  was  not  actually  paying.    The  HUD          settlement sheet for Granoff's purchases clearly indicated that a          $20,500 down  payment was  being paid  by the  buyer.   If indeed          Granoff was under the impression, up to that point, that the down          payment  had been  "waived,"  the $20,500  figure on  the closing          documents  must have tipped him off that something suspicious was          going on.                                         -36-          Atlantic  Inn-Westerly units in the  form of two  checks, one for          $270,000 from Marvin Granoff Real Estate and another for $200,000          from Granoff's  Eastern  Wire  Products  Co.   In  turn,  Brandon          promised  to pay Granoff $1000 for each unit sold using Granoff's          down payment money.                    As it turns out,  Granoff was never paid back,  but the          evidence shows that Granoff expected and  intended for this money          to be promptly  returned to him after the closings.   A recycling          arrangement had been used earlier for Granoff's own purchase, and          for  subsequent purchases  funded  by Gauvin,  under the  initial          agreement  between   Granoff,   Gauvin,  and   Brandon.      More          importantly, about  two weeks after the  first closings involving          Granoff's  $470,000,   Gauvin sent  a letter  to  Marderosian, on          Manchester   Associates22   letterhead,   complaining  that   the          transaction involving  the $470,000  was taking  too  long.   The          letter stated  that the transaction involving  Granoff's $470,000          "was  to take  at  most two  to  three days."   Marderosian  also          testified that  on a different occasion,  Gauvin told Marderosian          that  Gauvin and Granoff "can  make money without  putting up any          money."    In addition,  there was  no  promissory note  or other          formal  documentation to  indicate that  the $470,000  was normal          loan  financing.23   Consequently,  Granoff knew  that his  money                                        ____________________          22    Manchester  Associates  was  a  partnership  formed  by and          consisting of Gauvin and Granoff.          23  Gauvin and Granoff documented a previous  loan to Brandon for          the smaller  sum  of  $200,000  indicating that  if  they  really          intended the money  to be a loan  instead of a tool  to show down          payments  through  a  recycling   transaction,  they  would  have                                         -37-          was used to create  the appearance that down payments  were being          paid when in fact they were not; they were being falsified.                    The  arrangement of  rapidly  recycling "down  payment"          funds  through  Dean Street  meant  that,  in  reality,  no  down          payments were  being made at all.  A  paper trail was left in the          closing files indicating that  the buyer had made a  down payment          to  the seller,  Dean  Street, when,  in  fact, the  seller  just          returned  the money  to  its source,  effectively rendering  that          paper trail fraudulent.  Bay  Loan's down payment requirement was          thus  avoided  without  the  bank's  knowledge.    As  a  knowing          participant  in  this  recycling  scheme,  Granoff possessed  the          necessary  intent   to  defraud   and  the  requisite   level  of          involvement  in the larger conspiracy  to be found  guilty of the          offenses charged.                    Although   not   essential   for  upholding   Granoff's          conviction,  we also find that the evidence is sufficient to show          that  Granoff knew  Bay  Loan  was  loaning  the  money  for  the          condominium units.   Granoff  bought four  units financed  by Bay          Loan and he put up nearly half a million dollars  to provide down          payment  funds  for other  units to  be  purchased with  Bay Loan          financing.    Homeowners  furnished  a  letter  at  the  closings          including  the  closing  on Granoff's  purchases,  which  Granoff          attended,  stating that  Homeowners had  "transferred all  of its                                        ____________________          documented it.                                         -38-          rights and interests"  in the  mortgage to Bay  Loan.24   Granoff          had occasion  to see  the letter  and it  is not unreasonably  to          assume he also read it.                    Granoff also  attended  a number  of planning  meetings          with Brandon in  which plans  for closing on  various units,  the          funding  of down payments, and  other details of  the scheme were          discussed.   The evidence also indicates  Granoff was continually          kept  abreast of various detail of Brandon's scheme; details, one          could infer,  that included the source of  the financing.  In the          last half of 1987, Granoff and Gauvin formed a partnership called          Manchester Associates for the  purpose of real estate investment.          On behalf of Manchester Associates, Gauvin met several times with          Brandon  who discussed  his overall  plans to  close on  over 400          motel units as well as the schedule for  those closings.  Letters          referencing these meetings were  written on Manchester letterhead          and one could reasonably infer that  Gauvin related the substance          of  the meetings to his partner  Granoff.25  One such letter from                                        ____________________          24   There is  some dispute  whether this  letter, which was  not          signed  by the parties, was  included among the  documents at the          closings.  Homeowners' Vice  President, Gregory Cambio, testified          that  the letter  "was  part of  the  closing package"  but  also          testified  that it  may have  been sent after  the closing.   The          trial exhibits  containing the loan  files for each  of Granoff's          purchases do contain  the letter which is dated on  the same date          as  the  closing.    However,  the  file  contains  both  closing          documents, signed by Granoff, as well as other documents that may          or may not have been  at the closing.  The letter,  therefore, is          not  dispositive of  Granoff's knowledge,  but does  provide some          evidence of  knowledge that can be considered in conjunction with          the other circumstantial evidence.          25  For example, Granoff was cc'd on a letter to Dean Street that          referenced  plans  to  close  on  107  units  and  discussed  the          repayment of Granoff's $470,000.                                         -39-          Gauvin states  that "it would seem that  the lending institutions          will be in a position  to begin closing."  As Homeowners  and Bay          Loan were the only  institutions involved at the time  the letter          was written,  the  plural reference  to "institutions"  indicates                                                              _          that  Gauvin and  his partner,  Granoff, were  aware not  only of          Homeowners but of Bay Loan as well.                    In sum, the evidence  indicates that Granoff was aware,          on a fairly  detailed level, of a large real  estate scheme whose          only source of funding happened to be Bay Loan.  With substantial          sums of his own money at stake in this extensive project, Granoff          was likely to become aware  at some point of the source  of money          behind  it all.  It  is not unreasonable  to conclude, therefore,          that Granoff knew of Bay Loan's involvement in the project.                    Furthermore, the  fact that Bay Loan  was providing the          financing  was known  to several  others who, like  Granoff, were          involved in buying and investing in the units.  Brandon testified          that he was "completely open" about, and "made no secret" of, Bay          Loan's involvement.  Although Brandon testified that he generally          told people outside  Dean Street that  the lender was  Homeowners          and not Bay Loan, he also testified that he told  Hagopian, Ward,          Reisch, and Limoges about Bay Loan's involvement.   These people,          like Granoff,  bought units  or provided  down payment funds  and          were not Dean Street  employees.  Even an investor  named Michael          Parvin, who bought only one unit, testified that he knew Bay Loan          was involved.  It is  not unreasonable, therefore, for a jury  to          conclude that Granoff discovered this fact as well.                                         -40-                    Granoff challenges any inferences of criminal knowledge          or  intent drawn  from  the pool  of  circumstantial evidence  as          impermissibly based merely on  Granoff's association with his co-          defendants.  He  claims that amidst  the fast-paced wheeling  and          dealing of the 1980s  real estate market, investors did  not have          the ability to know all the details and purposes behind every one          of  their transactions.  It  was common for  investors to entrust          their money to developers and lawyers without learning any of the          specifics of  the various projects  in which they  were involved.          Details  such  as  the exact  nature  of  a  bank's down  payment          requirement  were not,  Granoff implies,  important enough  to be          discussed  between a  developer and  an investor.   Add  to these          circumstances the unscrupulous and  deceptive acts of Brandon and          Marderosian, who allegedly got Granoff into this  whole mess, and          Granoff  contends that we cannot help but conclude he was lied to          about the true nature of the project.                    While it  may  be true  that  the typical  real  estate          investor  in the 1980s would readily put up hundreds of thousands          of dollars for  "down payment funds," expect the money  back in a          few days, and still not  suspect he is defrauding a bank,  we are          certainly  not  prepared, given  the  facts  discussed above,  to          preclude  a jury from concluding  otherwise.  The government need          not disprove  every reasonable hypothesis of  innocence, provided          the record in its  entirety supports the jury's verdict.   United                                                                     ______          States v. Ortiz, 966 F.2d 707, 714 (1st Cir. 1992), cert. denied,          ______    _____                                     ____  ______          113 S.  Ct. 1005 (1993).   In this case, the  record does provide                                         -41-          the   requisite  support.     Therefore,   we  affirm   Granoff's          convictions.                                  2.  Charles Gauvin                    Gauvin was  convicted of conspiracy and  five counts of          bank fraud in connection  with his purchase of several  units and          his  funding of  buyer  down  payments.    Gauvin  was  Granoff's          business partner and the more active of the two in their dealings          with Dean Street.  According  to the record, he knew at  least as          much  as Granoff,  and  most likely  more,  about the  scheme  to          defraud Bay Loan.   Gauvin also participated to a  greater extent          in the scheme than  Granoff did.  Consequently, there is  no need          to  discuss at  length  the evidence  sufficient  to support  his          conviction.                      The jury could have found that Gauvin knew Bay Loan was          providing loans  for the  condominium project and  requiring down          payments for these  loans based  on the evidence  of the  several          meetings  Gauvin  attended and  correspondence that  he exchanged          with   Brandon  discussing  the   condominium  projects  and  his          agreement with Brandon to provide buyers with down payment  funds          that  were required  for the financing  of the  units.   The jury          could infer that Gauvin knew the  down payments were not in  fact          being  paid  in violation  of  the bank's  requirement,  and that          Gauvin willfully  participated in  the scheme to  accomplish this          fraud,  based on the evidence  that Gauvin: 1)  delivered to Dean          Street twelve  down payment  checks backed by  insufficient funds          for the  Charlestown  closings in  August  of 1987  and  received                                         -42-          twelve  equivalent checks  back from Dean  Street two  days later          which  he used  to cover  his original  checks; 2)  provided down          payment money for  Reisch and  others which was  returned to  him          within a matter  of days;  3) commented to  Marderosian that  the          down payment checks  he was providing "did not have  to be backed          by good  funds because the timing  was so quick" and  that he and          Granoff could "make money  without putting up any money;"  and 4)          delivered Granoff's $470,000 in down payment funds to Dean Street          and wrote in a subsequent letter to Brandon that he  expected the          transaction involving those funds  "to take at most two  to three          days."                    Gauvin  argues  that  the  evidence  of  his activities          clearly  indicates a lawful intent  in his writing  the checks to          Dean  Street.  As  he testified at  trial, Gauvin  thought he was          simply lending money to  Dean Street for its condominium  project          and he  had no intention  that his  money be used  for fraudulent          purposes.   Evidence in  the record indicates  that "supplemental          financing," similar  to what Gauvin  thought he was  providing to          Dean Street, was  a standard  practice in the  industry.   Gauvin          also  testified that he was  "surprised" to see  his first twelve          checks come back  so quickly.  But  Gauvin was not  so surprised,          apparently, so as to be tipped off that anything illegitimate was          going  on because  such rapid  turn  around of  loans was  also a          standard  practice during  the  real estate  boom  of the  1980s.          Gauvin  suggests  that  maybe   Dean  Street  was  packaging  the          secondary financing and selling it off at a profit, thus removing                                         -43-          Gauvin's participation as a lender fairly quickly.                     Maybe, but then again, maybe  not.  The jury considered          Gauvin's arguments  and decided  that the evidence  proved Gauvin          knew what was really happening at Dean Street.  Our job on appeal          is to measure the sufficiency of  that evidence and not to search          for  every logical  or  rational conclusion  that  can be  drawn.          Ortiz, 966 F.2d at 714.  Gauvin was told several times that funds          _____          were needed  to make down payments for buyers.  We find it rather          difficult,   therefore,  to   believe  Gauvin   thought  he   was          legitimately loaning  money for down payments  when the recipient          of the payments  was giving the money  right back to the  lender.          If Gauvin loaned  money to a friend to buy a car and then had his          loan paid off by  the car dealership, we  might wonder about  his          characterization of the transaction as normal financing.   In the          present case, the suspicious nature of the transactions, combined          with  evidence  of  the  underlying  scheme  to  defraud  and  an          agreement  between  Gauvin   and  the   scheme's  mastermind   to          contribute funds to the scheme, is more than ample to support the          jury's verdict.                                  3.  Norman Reisch                     Reisch was convicted of  conspiracy and seven counts of          bank fraud.  The  evidence against Reisch indicates that  he knew          Bay Loan was financing  the condominium units, that he  knew down          payments were  required for  the condominium  loans  and that  he          knowingly  participated  in a  scheme  to  recycle funds  through          buyers to make  it look  like these down  payments were  actually                                         -44-          being  made.   Reisch  had "at  least  a dozen"  discussions with          Brandon and  Marderosian about  the 20% down  payment requirement          and ways that the "requirement might be satisfied  by alternative          methods  or  might be  avoided,"  including  the  use  of  second          mortgages and loaning the down payment money to the buyers.                    Proof   of  Reisch's   knowing  participation   in  the          conspiracy is as follows.   Reisch bought four  Charlestown units          for which  Gauvin provided the down  payment funds.  At  the same          time, Reisch provided  another buyer with down  payment money for          three other units.   Dean Street returned the money to Reisch the          next day.   Reisch later agreed  with Brandon  to wire money  for          down payments directly into buyers' accounts.  After each closing          that utilized Reisch's  wired funds, the  down payment money  was          returned to Reisch.   On  some occasions, the  buyers' checks  to          Dean Street,  which were funded by Reisch, were endorsed directly          back over to Reisch.  Reisch once remarked about this arrangement          "we  would just have to keep  bringing the funds back and rolling          them to wire more funds out for the projects."                    As  for   Reisch's  knowledge  of   Bay  Loan,  Brandon          testified that it was  "very probable" that he told  Reisch about          Bay Loan's  involvement in the  project during a  conversation in          the  summer of  1988.   The jury  could reasonably  conclude that          Reisch had knowledge of Bay  Loan even before this  conversation.          Reisch's  contact with  Brandon and  his involvement in  the down          payment  scheme  was  more  significant  than  that  of  Granoff.          Because we  found sufficient  evidence to support  the conclusion                                         -45-          that Granoff had knowledge  of Bay Loan,  we think that, for  the          reasons  discussed  above,  there  is  also  sufficient  evidence          against Reisch.                     Like Gauvin and Granoff, Reisch argues that he was just          making  loans that he thought were completely legal.  Like Gauvin          and Granoff, we find this argument unconvincing, especially given          Reisch's greater involvement in the scheme.  We reject, moreover,          Reisch's  application of the holding in United States v. Falcone,                                                  _____________    _______          109 F.2d 579,  581 (2d Cir.  1940) (holding the mere  delivery of          goods or services to a conspiracy does not constitute  membership          in the conspiracy), to  this case.  Reisch's conduct  amounted to          more than a mere delivery of loans to a conspiracy.  The evidence          indicated  that Reisch was involved  in the planning  of the down          payment  scheme and that  he played a key  role in furthering the          success  of a conspiracy that was starved for new funds before he          began supplying them.  In particular,  Reisch provided a specific          loan  arrangement (involving  a  complex system  of wired  funds)          especially tailored  to falsifying  the down payments.   Reisch's          actions  thus were not limited  to the mere  provision of lending          services but instead were strong evidence of an intent to further          the conspiracy.                                 4.  Ronald Hagopian                     Hagopian was convicted of  conspiracy and six counts of          bank fraud for his role as a broker for Dean Street who solicited                                         -46-          buyers and  facilitated their purchases.26   The evidence against          Hagopian more  than adequately  establishes his knowledge  of Bay          Loan's down payment requirement  and his knowing participation in          various schemes to fraudulently  represent the existence of those          down payments.   To begin  with, Brandon testified  that he  told          Hagopian  about   "his  relationship"   with   Bay  Loan,   which          establishes Hagopian's knowledge that  Bay Loan was providing the          financing.  Hagopian  knew a  down payment was  required for  the          units by virtue of the fact that he provided a down payment check          for his own purchase, and he discussed down payments with some of          the buyers he recruited.27                    Hagopian also knew about and participated in the scheme          to  falsify  the  existence  of  the  down  payments.    Hagopian          purchased  several condominium  units and  wrote  a corresponding          down payment check that  Dean Street never negotiated.   Hagopian          told the buyers he recruited that  they needed to write checks to          Dean Street for the purchases of their units but  that the checks          would  either not  be used  or would  be  covered by  Dean Street          itself.28   Hagopian also told  some buyers that  they would have                                        ____________________          26    The court  entered a  mid-trial  judgment of  acquittal for          Hagopian on one count of bank fraud.  Hagopian was also found not          guilty by the jury on two counts of bank fraud.          27   In  addition, Hagopian's  business partner,  John Ward,  who          rounded up buyers with Hagopian, told one of these buyers to give          Ward a check "for the down payment that was required."          28   In addition,  Hagopian was  present during  several meetings          with  Brandon including one where Brandon told a buyer that there          were no down  payments.  Hagopian  also told this  to the  buyer.          The buyer eventually  did produce  a down payment  check for  his          purchase and  the  check  was never  negotiated.    Hagopian  was                                         -47-          second  mortgages to cover part  of their down  payment but these          mortgages would later be  discharged.  All of these  schemes were          actually  executed with  many of  the buyers  Hagopian solicited.          Sometimes Hagopian returned voided or nonnegotiated  down payment          checks back to the buyers.   Hagopian also told buyers they would          be paid  for each unit  they bought and he  usually provided this          rebate money to the buyers he had solicited after the closings.                     Hagopian  adds a new twist to the familiar refrain that          he  thought he was participating in a perfectly legal real estate          project.  He  claims that the fact he openly solicited buyers for          a  "no money down" investment  opportunity proves that  he had no          knowledge that Brandon's down  payment scheme defrauded the bank.          Hagopian placed public  advertisements for the  condominiums that          explicitly  promised "no  money  down."   Hagopian contends  that          because Dean Street took  care of all the financing,  his job was          limited to soliciting buyers for a type of real estate investment          that  was allegedly  common  at that  time  and  not in  any  way          suspicious.29                                        ____________________          subsequently  asked about that check by the buyer who expected it          to  be returned  to him and  was concerned  it might  actually be          cashed.  Hagopian said he would look into it.          29   Hagopian makes a related  argument that his conduct  did not          further the conspiracy to a significant degree and that there was          not  sufficient interdependence  between  Hagopian and  the other          conspirators  to  establish  that  he joined  the  conspiracy  as          required.   United States v. Evans  970 F.2d 663,  670 (10th Cir.                      _____________    _____          1992); United States  v. Horn,  946 F.2d 738,  740-41 (10th  Cir.                 _____________     ____          1991).   All  that is  required is  that the  alleged conspirator          facilitate the  endeavors  of other  alleged  co-conspirators  or          facilitate the venture  as a whole.  See Evans,  970 F.2d at 670;                                               ___ _____          Horn 946 F.2d at 740-41.   The government has more than  met this          ____          burden.                                         -48-                    The  evidence  clearly supports  the  jury's conclusion          that  Hagopian did  more than  innocently broker  deals for  Dean          Street.  Hagopian told  buyers of his "no money  down" investment          opportunity  to provide  down payment  checks that  would  not be          cashed  and  to sign  mortgages that  would  be discharged.   His          "openness" in advertising no  money down investments simply shows          he was actively  soliciting buyers  to further the  scheme.   The          scheme  relied  on  new  faces  to  serve  as  frontmen  for  the          individual  bank loans  and Hagopian's  actions were  an integral          part of furthering the scheme's success.                    Hagopian was  not open  about the  fact that  "no money          down"  meant providing  false paperwork  to the  bank so  that it          would  think down payments were  actually being made.  Regardless          of whether 100% financing was customary at the  time and thus not          suspicious, the fake down payments and fake second mortgages were          certainly  not  customary (or  if customary  in the  1980s, still          illegal),  and the jury was warranted in concluding that Hagopian          knew this.   Finally, the  jury could reasonably  infer that  the          public advertising was just a necessary, and minor, risk taken by          Hagopian to  attract new  buyers and not  particularly convincing          evidence of his innocence.                                     5.  John Ward                    Ward was convicted of conspiracy and six counts of bank          fraud for purchasing a  unit and for soliciting and  facilitating                                         -49-          unit sales.30  The  evidence against Ward,  at least in terms  of          knowledge and intent, is essentially the same as that against his          partner,  Hagopian, and the two played  essentially the same role          in the conspiracy.   Brandon  testified that he  told Ward  about          "his  relationship"  with Bay  Loan.   Ward  also knew  that down          payments were  required as he  was involved in  many of  the same          discussions with potential buyers  that Hagopian was involved in.          Specifically, Ward  told one buyer to  give him a check  "for the          down payment that was required."                    Ward knew down payments were not actually being made as          his own down  payment was not negotiated  and he told one  buyer,          whose  down  payment funds  were to  be  wired into  that buyer's          account, that the down payment check would be cashed the same day          so that the people wiring the funds "got their money back."                    We  reject Ward's  assertion that  he thought  Bay Loan          approved  all of the various down payment shenanigans in which he          was  involved.  Ward  contends that the  down payment arrangement          that he was aware of was simply a paperwork requirement and not a          "real" requirement; that  is, Ward  only knew that  some sort  of          paper representing down payments had to exist but thought no real          funds  were actually required from the buyers.  We suppose Ward's          contention is within  the realm  of the possible.   However,  the          jury  looked at the  intricate down payment  arrangements and the          way Ward explained them to the buyers and found, quite reasonably                                        ____________________          30   The district court entered a mid-trial judgment of acquittal          in favor of Ward on one count of bank fraud.  The jury found Ward          not guilty on two additional counts of bank fraud.                                         -50-          we  think,  that Ward  knew his  actions  were a  "departure from          fundamental  honesty."  Goldblatt, 813  F.2d at 624.   The common                                  _________          sense understanding of a  down payment is the transfer  of actual          funds from  the buyer to the  seller or financier.   With this in          mind, it  is more than reasonable for a  jury to find that once a          defendant  learned   of  the   structure  of  the   down  payment          arrangement  used  in  this  case,  with no  real  down  payments          changing hands, the  defendant would  be tipped off  to the  fact          that  a fraudulent  transaction  was contemplated.    Even if  we          assume Brandon lied to Ward and  told him that Bay Loan  directed          Dean  Street to  arrange  for paper,  as  opposed to  real,  down          payments,  the evidence was sufficient to  support a finding that          Ward knew he was engaging in a sham transaction.                      The evidence is also sufficient to prove Ward's willful          participation in  the overall conspiracy and  Ward's execution of          the bank  fraud scheme  charged in  Counts 9,  15, 18,  and 19.31          However,  the evidence is not  sufficient to show  that Ward took          any actions  that would constitute  the engagement in  bank fraud          set  forth  in Counts  24 and  25  of the  redacted indictment.32          Consequently we uphold  the convictions on the  former counts and          reverse the verdict against Ward on the latter two counts.                                        ____________________          31  Count 9 charges bank fraud in connection with Ward's purchase          of a unit at the Bayside Motel.  Counts 15, 18 and 19 charge bank          fraud  in relation to unit  purchases at the  Sandpiper Motel and          the Hillside Motel that were facilitated by John Ward and others.          32  Counts 24 and 25 charged Ward and four  other defendants with          defrauding Bay Loan by obtaining an end loan for the purchases of          units  at the Sandcastle Motel by Bruce Schulbaum and John Mills,          III.                                         -51-                    As stated in Count 9, Ward bought a condominium unit at          the Bayside  Motel in October of 1987.  The down payment check he          provided  for the sale was never negotiated.  This is sufficient,          given his  knowledge discussed  above, to support  the conclusion          that  Ward  never intended  to provide  real  funds for  the down          payment  but   just  paperwork  to  deceive  the  bank.    Ward's          conviction for bank fraud on Count 9 is thus upheld.                      The  evidence   is  also  sufficient  to   support  the          conviction on  Counts 15, 18 and 19  which each charged Ward with          bank fraud for  facilitating the sale  of a separate  condominium          unit.   Ward  helped  to  solicit  the  buyers  involved  in  the          transactions for  these  counts  by  telling them  that  no  down          payments  were  required.   He directed  one  of these  buyers to          provide down a payment check that would be funded by someone else          and  then cashed  so  that the  funds  could be  returned.   Ward          provided the  buyers in Counts  15 and  18 with the  rebates they          were promised for purchasing units.  For the transaction in Count          19, the evidence indicates that Ward was the intermediary for the          funds  wired  by  Brandon  to  cover  the  buyer's  down payment.          Brandon's  wire transfer  was directed  to the  buyer's insurance          company to the  attention of "John Ward."  Thus, we uphold Ward's          convictions for conspiracy and on Counts 15, 18 and 19.                    The evidence  is not sufficient, however,  to show that          Ward  engaged in bank fraud  with respect to  the transactions in          Counts 24 and 25.  Although Ward was present at  the closings and          several  of the  meetings  where down  payment arrangements  were                                         -52-          discussed for the sales in Counts 24 and 25, there is no evidence          that  Ward  said  anything  to these  particular  buyers  or  did          anything  to otherwise  facilitate their  purchases.33   Ward did          not provide the  buyers in Counts  24 and 25  with rebates as  an          incentive to buy nor did he  direct these buyers to falsify their          down  payments.34  As such,  Ward neither executed  nor aided the          execution  of  the  scheme to  defraud  in  these two  instances.          Because  we  see  no  evidence  in  the  record  to  support  any          reasonable  finding  by  the jury  that  Ward  played  a role  in          obtaining  the  loans  in  Counts  24  and  25,  we  reverse  his          convictions for these two counts.                                    6.  Owen Landman                     Landman was  convicted of conspiracy and  six counts of          bank  fraud in connection  with his facilitation  of down payment          arrangements  for  Dean  Street.35    Ample  evidence  exists  to          support the finding that Landman knew  a down payment requirement          existed and  that he  knew about the  various fraudulent  methods                                        ____________________          33  Ward was involved in running the newspaper advertisement that          originally  attracted  the buyers  to  the  Dean Street  project.          However,  that  act was  not  necessarily  directed toward  these          specific fraud counts and,  while contributing to the  fraud, was          not  alone  sufficient  to   constitute  an  affirmative  act  of          facilitation  of  the  fraudulent  loan  transactions charged  in          Counts 24 and 25.          34   We note that Hagopian,  who was also convicted  on these two          charges  and  whose conviction  we  are  upholding, did  actively          solicit the  buyers, discuss down payment  arrangements with them          (such as dischargeable mortgages), and provide rebate money after          their purchases.          35   The  jury found  Landman not  guilty on  two counts  of bank          fraud.                                         -53-          used to avoid that requirement.  As in Ward's case, however,  the          evidence is  not sufficient to  show Landman participated  in the          execution of  a scheme to  defraud for four  out of the  six bank          fraud counts.                    Landman  acted as an escrow  agent for a  number of the          condominium  closings and  one of  his main  responsibilities was          receiving down payments from buyers and  transferring them to the          seller,  Dean Street.  Marderosian testified that he told Landman          that  Gauvin and Granoff would  be funding down  payments for the          initial  purchasers and  Landman  should hold  that down  payment          money.    Landman knew  that the  down  payment funds  were being          returned to  whoever provided  them as Landman  himself delivered          the money back to its source on several occasions.36                       Landman also knew about the fraudulent second mortgages          that were  supposed to cover part  of the down payment.   He knew          the buyers  were signing meaningless promissory  notes for second          mortgages at the closings because Marderosian told him beforehand          that the mortgages would be discharged.  At the closings, several          buyers asked  Landman when  the  mortgages would  be released  as          promised because the discharge  letter accomplishing this was not          part of the closing  documents (presumably so Bay Loan  would not                                        ____________________          36   Marderosian explained to Landman that Reisch would be wiring          money  directly into  buyers'  accounts  to  pay for  their  down          payments and  that buyers  would then  write  checks to  Landman.          Landman assured Reisch  that he would look after the  money.  The          evidence  indicates that  with respect  to at  least some  of the          transactions, Landman returned the down payment funds that Reisch          had provided back to  Reisch, writing checks back to  Reisch from          the money Reisch had originally given to the buyers.                                         -54-          see  the letter).    Landman made  gestures  to these  buyers  to          indicate  that  they should  not talk  to  him about  it.37   All          these facts,  taken together, support the  jury's conclusion that          Landman  knew that something illegal was being done to get around          the down payment requirement.                    We reject Landman's argument that there is insufficient          evidence  to prove he knew Bay Loan  was the target of the scheme          to defraud.  To  begin with, Brandon was "completely  open" about          Bay  Loan's involvement and told  a number of  people involved in          the  scheme.  Several buyers  testified that they  knew about Bay          Loan,  including  one  person  whose  only  involvement  was  his          purchase  of a  single unit.   Landman  shared office  space with          Brandon's  point   man  in  the  scheme,   Marderosian,  who  was          intimately involved in all  the details of the scheme.   Finally,          the closing documents included  a letter indicating Bay Loan  was          the ultimate lender;38  Landman acted  as escrow  agent for  many                                        ____________________          37   At  one closing,  Kumalae "asked  Owen if  he wanted  her to          address  [the  mortgage  discharge]  at the  time,"  and  Landman          responded that  it "had nothing  to do with  him . . .  he didn't          want to know  anything about it."  Another time  "Mr. Landman did          not want to hear about it in front of us. I do recall him saying,          his  hands  saying not  in  front of  me."   Still  another buyer          testified  that  Landman  "gestured"  when  confronted  with  the          mortgage discharge issue.  Landman argues that his  responses and          gestures could  mean he just did  not know anything about  it and          could  not  answer  the  buyers'  inquiries.    We  find  that  a          reasonable  jury  could  also  conclude  that  Landman's  actions          indicated he already knew that something illegal was going on and          was trying to disassociate himself from it.          38   As discussed in  footnote 24, Homeowners  furnished a letter          stating that they transferred their rights in the mortgage to Bay          Loan.   A  similar  document was  furnished for  the transactions          brokered by East  West.  Although the same  uncertainty regarding          the presence of the letter at the closings discussed in Granoff's                                         -55-          of the closings and also conducted a few of them himself.39                    Sufficient  evidence  exists  to  support   the  jury's          verdict on the conspiracy count and  on Counts 21 and 22.  Counts          21  and 22 allege bank  fraud in connection  with the closings of          two  units  at the  Hillside Motel.    The evidence  reveals that          Landman  returned the  down payment  funds provided by  Reisch in          connection with these transactions back to Reisch in violation of          the down  payment requirement.40   In addition,  one Dean  Street          employee,  Marie Lynch,  testified  that, in  general, she  would          bring  buyers' certified  down  payment checks  to Landman  after          money was wired by  Reisch to the buyers' accounts  to accomplish          the certification.   Lynch testified  that she  once saw  Landman          write a check to Reisch for the amount of the  down payment funds          she had  just  brought to  him.    Lynch did  not  specify  which          transactions she was referring to in her testimony but the record          does  contain checks written by  Landman to Reisch  for the exact          amount of the down payment funds wired by Reisch for the Hillside                                        ____________________          case above also  exists with  respect to Landman,  there is  more          reason to  believe  Landman saw  and  read at  least one  of  the          letters because Landman had greater exposure and familiarity with          the closing documents.          39  Marderosian testified  that when he prepared Landman  for the          closings which  Landman conducted,  he "explained  what documents          [Marderosian]  would  be  preparing  and that  [Landman]  had  to          oversee their execution at the closing."          40   That  evidence consists  of a  check written  by  Landman to          Reisch for the  exact amount of the funds which  Reisch had wired          into the buyers' accounts for the purchases in  Counts 21 and 22.          As discussed  above, at the time Landman  wrote the check, he had          already  been told what Reisch  was doing and  had agreed to look          after Reisch's money.                                         -56-          purchases referred to  in Counts 21 and 22.41   We therefore find          the evidence sufficient to support the convictions for bank fraud          charged in Counts 21 and 22.  This evidence is also sufficient to          show willful  participation in  the conspiracy and  thus supports          Landman's conviction on Count 1.42                    Landman argues  that his actions were just a normal and          proper   function   of   his   job   as  escrow   agent.      His          responsibilities, he  claims, were strictly limited  to receiving          and distributing  money at Dean  Street's direction.   See United                                                                 ___ ______          States v. Bruun, 809 F.2d 397, 402-03, 410 (7th Cir. 1987).  This          ______    _____          "just following orders" defense  cannot stand in the face  of the          evidence  showing  that Landman  knew  down  payments were  being          falsified,  that he  agreed  to safeguard  Reisch's down  payment          funds, and  that  he personally  falsified two  down payments  by          returning  the funds to Reisch.   The evidence  was sufficient to          indicate that Landman's intent was to participate in transactions                                        ____________________          41  Although the testimony that Landman "[c]ut a check to Norman"          Reisch  referred to a transaction  sometime in the  fall of 1988,          roughly a month after the Hillside  closings in Counts 21 and 22,          it  does  add  some  credence  to  the  government's  account  of          Landman's involvement in the scheme to defraud.          42   Landman  is wrong  in claiming  that the  jury impermissibly          ascribed  the illegal  actions of  Marderosian  to Landman.   Cf.                                                                        __          United  States  v. Crocker,  788 F.2d  802,  806 (1st  Cir. 1986)          ______________     _______          ("[A]scribing criminal liability to [an alleged] conspirator  for          a co-conspirator's acts by way of the adoption mechanism inherent          in  a conspiracy requires that the imputed acts be in furtherance          of  the conspiracy  or  that  they  fall  within  its  reasonably          foreseeable  scope.").   Returning  down payment  funds that  are          required by the bank is not only within  the foreseeable scope of          the conspiracy but directly in furtherance of it.  The government          thus  established Landman's  criminal conduct  independently from          that of Marderosian.                                         -57-          designed to deceive Bay Loan.                     With  respect  to Counts  23  through  26, relating  to          closings  at the Sandcastle Motel,  no checks written  by, or to,          Landman that involved down  payment funds were in evidence.   The          government  stipulated   that  the  relevant   checks  for  these          transactions  were forgeries.  In particular, Landman's signature          on  the  checks for  the Sandcastle  transactions were  forged by          Marderosian.43   It is  true that Landman  conducted the closings          for the Sandcastle units  and thus in some sense  facilitated the          scheme to defraud,44  but that  alone is not  sufficient to  show          that  Landman participated  in the  relevant act  of fraudulently          violating  the  down  payment  requirement  for  those individual          transactions.  On the  contrary, it seems that Landman  never saw          the down  payment  checks as  the money  did not  go through  his          escrow account.  Instead, the checks were transferred directly to          Reisch.                                        ____________________          43    The existence  of forgeries  does  not, as  Landman claims,          provide conclusive  proof  of his  innocence on  all the  counts.          Just  because his name was forged on  some of the checks does not          necessarily  imply that Landman  did not know of,  or agree to go          along with,  the conspiracy.  In other words, it is not true that          the forgeries could only indicate that  Marderosian was forced to          go behind  Landman's back to  accomplish the  scheme to  defraud.          For one,  Marderosian testified  that Landman authorized  some of          the forgeries  and indicated  that forging  Landman's name was  a          method  of convenience rather than a way to hide illicit activity          from  Landman.  More  importantly, Landman  did write  checks for          illegal transactions  in Counts 21 and 22,  which, in conjunction          with  the  other  proof of  Landman's  knowledge  and  intent, is          sufficient to uphold the conspiracy charge.          44  Lynch's  testimony that Landman  wrote a check to  Reisch for          the   Sandcastle  units   is   decisively  contradicted   by  the          government's stipulation that the checks were forgeries.                                         -58-                    We note that Landman  also conducted closings for units          at the Atlantic Inn-Narragansett,  but the jury acquitted Landman          on the charges connected to those transactions (Counts 16 and 17)          apparently because it  found the act  of conducting the  closings          was, by  itself,  insufficient to  establish the  execution of  a          scheme to defraud.  For Counts 23 through 26, once the stipulated          forgeries  are  removed  from consideration,  there  is similarly          little  evidence to  support a  conviction  beyond the  fact that          Landman conducted the  closings.  While  the jury is not  held to          consistent  results, we think that the acquittal on Counts 16 and          17 reinforces our judgment that  (absent some confusion about the          forged checks),45  there was insufficient evidence  to convict on          Counts  23 through 26.   Because the evidence  is insufficient to          prove  that Landman  executed or  aided in  the execution  of the          schemes to defraud Bay  Loan charged in Counts 23  through 26, we          reverse his conviction on those counts.                                   7.  Momi Kumalae                    Kumalae was convicted of conspiracy and three counts of          bank fraud  in connection  with  various actions  she took  while                                        ____________________          45  There  was apparently some confusion surrounding the exhibits          containing the forged checks.   The government agreed to  use the          checks  only against  the  other defendants,  namely Reisch,  but          argued during  closing argument that Landman  was responsible for          the  checks written  to  Reisch on  the  Sandcastle units.    The          government  did  not explicitly  state  that  Landman signed  the          forged checks; however, it  failed to acknowledge the stipulation          of forgeries and  seemed to imply  no forgeries existed.   In any          event, we are  convinced that the jury improperly  considered the          forged checks in their guilty finding on Counts 23 through 26.                                         -59-          working  as  an  assistant to  Brandon  at  Dean  Street.46   The          evidence  establishing Kumalae's  knowledge  of  Bay Loan's  down          payment requirement and the scheme to fraudulently violate  it is          the  following:  (1) Brandon testified that he told Kumalae about          his  relationship  with  Bay  Loan,  (2)  an East  West  employee          testified that she asked Kumalae to forward information about the          unit buyers so that she could  satisfy the guidelines established          by  Bay  Loan;  (3)  Kumalae  was  present  during  some  of  the          conversations  between Brandon,  Ward,  Hagopian and  a buyer  in          which down payments were discussed; (4) Kumalae was also  present          at a meeting  at which  Brandon said  "they needed  to show  down          payments or something  so they were going to  wire money into the          accounts or deposit it and they needed one of our checks to prove          that it came out of our account"; (5) Kumalae told one buyer that          she needed  a check  from him  and that she  would be  "doing the          transactions at the banks";  (6) Kumalae assured one  buyer whose          down payment check had not been negotiated that his check had not          been  used;  and,  (7)  Kumalae instructed  another  Dean  Street          employee,  Marie Lynch, who had asked about the discharges of the          second mortgages  that "there weren't  supposed to be  any second          mortgages  and to  just don't  worry about  it.  They  were being          taken care of."                    The evidence  that she  willfully participated  in this          scheme is as  follows: (1)  Kumalae advised buyers  of how  their                                        ____________________          46  The jury found Kumalae not guilty on one count of bank fraud.                                         -60-          down  payment  requirement would  be  satisfied;47  (2) she  once          wired  money from her own account to a buyer in order to fund his          down  payment;48   (3)  she   signed  several  of   the  mortgage          discharge  letters  provided  to   the  buyers;49  and,  (4)  she          received  some of the down payment checks, and because several of          these checks  were  deposited  directly  into  Reisch's  account,          presumably by Kumalae,  she effected the  return of down  payment          funds  to  their   source  in  violation  of  the   down  payment          requirement.   All  of  this evidence  is  sufficient to  support          Kumalae's bank fraud and conspiracy convictions.                    Kumalae  attempts  to  rely  on cases  holding  that  a          defendant's  mere  presence at  the scene  of  the crime  or mere          association  with criminals  to whom  all the  evidence  at trial          pertains is insufficient to  support a conviction for conspiracy.          United  States v.  Ocampo, 964  F.2d 80  (1st Cir.  1992); United          ______________     ______                                  ______          States v. Mehtala, 578 F.2d 6,  10 (1st Cir. 1978); United States          ______    _______                                   _____________          v. Joiner, 429 F.2d 489, 493 (5th Cir. 1970).  Kumalae's reliance             ______          on these cases is misplaced  because the government's case rested                                        ____________________          47   Kumalae told one buyer "no  down payments" were required and          that  Brandon was a "stand-up guy" who would "take care of things          and not to worry."  On another occasion she told a buyer that his          mortgage discharge "would be taken care of after the closing."          48   This was the basis for  the transaction for Count  15 and is          sufficient to support her conviction on that count.          49  One buyer  testifies that he picked  up his discharge  letter          and the letter  of another  buyer directly from  Kumalae.   These          discharges  were made for the  transactions in Counts  24 and 25.          We  note that the jury  acquitted Kumalae on  Count 23 presumably          because  there  was  no   such  testimony  to  support  Kumalae's          involvement with the discharge.                                         -61-          on Kumalae's own knowledge of the scheme to defraud based on  her          own statements  to others  and on  a series  of actions taken  by          Kumalae  herself that  directly  defrauded Bay  Loan.   Kumalae's          argument that she  was just  acting in good  faith by  performing          ministerial duties for Dean Street  and nothing more also  fails.          The  record is  clear that  Kumalae wired  down payment  funds to          buyers  from  her  own  account  and  signed  mortgage  discharge          letters.  These actions were not merely "ministerial duties."                                    V.  SEVERANCE                                    V.  SEVERANCE                    The district court  denied the motions for  severance50          made by several  of the  defendants51 who argued  that they  were          unfairly prejudiced  by the  evidentiary spillover from  the case          presented   against  their  more  culpable  co-defendants.    The          defendants' claim is that the  joint trial seriously limited  the          jury's ability  to sift  through all  the  evidence against  each          individual defendant and increased  the risk that the  jury would          base  its verdicts on evidence which  has no bearing on the guilt          or innocence of defendants with a more limited involvement in the                                        ____________________          50    The  rule  authorizing  motions  for  severance  states  in          pertinent part:                      If  it appears that a defendant  . . . is                      prejudiced   by  a  joinder   .  .  .  of                      defendants . . .  for trial together, the                      court  may .  .  . grant  a severance  of                      defendants  or   provide  whatever  other                      relief justice requires.          Fed. R. Crim. P. 14.          51   Granoff,  Gauvin,  Hagopian, Reisch,  Kumalae, and  Ward all          moved for severance  before and  during trial and  all raise  the          issue on appeal.                                         -62-          scheme.   Whatever the advisability, in general,  of holding mass          trials  in  complicated cases  with  many  defendants of  varying          culpabilities,  we   do  not  find  any   significant  degree  of          unfairness  or  prejudice in  this  case  that  would  warrant  a          reversal of the district court's refusal to sever the trial.                     The decision to grant or deny a motion for severance is          committed to  the sound discretion of the trial court and we will          reverse  its refusal  to sever  only upon  a finding  of manifest          abuse of  discretion.  United  States v. Olivo-Infante,  938 F.2d                                 ______________    _____________          1406,  1409 (1st Cir. 1991);  United States v.  Natanel, 938 F.2d                                        _____________     _______          302, 308 (1st  Cir. 1991), cert. denied,  112 S. Ct. 986  (1992);                                     ____  ______          United  States v.  Boylan, 898  F.2d 230,  246 (1st  Cir.), cert.          ______________     ______                                   ____          denied, 498 U.S. 849  (1990); see also United States  v. Searing,          ______                        ________ _____________     _______          984 F.2d 960, 965 (8th Cir. 1993) ("In the context of conspiracy,          severance  will  rarely, if  ever,  be  required.").   Defendants          seeking  a separate trial must  make a strong  showing of evident          prejudice.  United States v. O'Bryant, No. 91-2132, slip op. at 8                      _____________    ________          (1st Cir. June  29, 1993);  United States v.  Mart nez, 922  F.2d                                      _____________     ________          914, 922 (1st Cir. 1991).  This showing must demonstrate that the          joint  trial  prevented the  jury  from  separating the  evidence          against  each defendant and reaching a  reliable verdict.  Zafiro                                                                     ______          v. United States, 113  S. Ct. 933, 938 (1993); O'Bryant,  No. 91-             _____________                               ________          2132, slip. op. at 8-9.                       There is no indication  in this case that the  jury was          unable to distinguish  the various charges  and defendants or  to          sort properly  through the  evidence relating to  each defendant.                                         -63-          The  jury demonstrated  its ability  to independently  assess the          evidence when it  acquitted four of the  defendants on individual          bank  fraud counts, see United States v. Figueroa, 976 F.2d 1446,                              ___ _____________    ________          1452  (1st Cir.  1992),  cert. denied,  113  S. Ct.  1346  (1993)                                   ____  ______          (finding acquittals to be a relevant factor in upholding a denial          of severance); United  States v.  Dworken, 855 F.2d  12, 29  (1st                         ______________     _______          Cir.  1988) (same), and when  it asked that  specific portions of          the transcript relating  to specific defendants be read  to them.          In  addition,  the trial  judge  provided  a number  of  limiting          instructions throughout the  trial that alleviated any  potential          prejudice.   See  Figueroa, 976  F.2d at  1452; United  States v.                       ___  ________                      ______________          Tejeda, 974 F.2d 210, 219 (1st Cir. 1992).            ______                    The  degree of prejudicial spillover appears minimal as          no defendant  has demonstrated which, if  any, evidence presented          at trial would have  been inadmissible if presented against  that          defendant  at  a  separate   trial.    The  government  presented          sufficient  evidence to show that all defendants were involved in          a single  interdependent conspiracy, see Section  IX.B., and most                                               ___          of  the  evidence at  trial was  related  to the  development and          operation  of that  conspiracy.   "Where  evidence featuring  one          defendant is  independently admissible against a codefendant, the          latter  cannot convincingly  complain  of  an improper  spillover          effect."   O'Bryant,  No. 91-2132,  slip  op. at  10  (collecting                     ________          cases).  Moreover, "[e]ven  where large amounts of testimony  are          irrelevant to one defendant, or where one defendant's involvement          in  an  overall agreement  is far  less  than the  involvement of                                         -64-          others, we have been reluctant to secondguess severance denials."          Boylan, 898 F.2d at 246 (citations omitted).  We therefore affirm          ______          the judge's decision to deny the severance motions.                               VI.  PRETRIAL PUBLICITY                                VI.  PRETRIAL PUBLICITY                    On  January  1,  1990,  the Governor  of  Rhode  Island          ordered  the closure of credit unions  in that state insured by a          private  entity  known  as   the  Rhode  Island  Savings  Deposit          Insurance Corporation (RISDIC).  After years of risky real estate          investments, many credit  unions were unable to  weather the late          1980s crash in  the real estate market and RISDIC could not cover          their anticipated losses.   In the process of closing  the credit          unions, the governor froze the assets of hundreds of thousands of          angry  depositors.  The ensuing panic among depositors as well as          the public  hearings, criminal investigations, and civil lawsuits          received extensive media coverage.  The Rhode Island credit union          crisis, although  coexistent with Dean Street's  downfall, is not          related to the present case.                    Defendants  raised a  series of  claims related  to the          district  court's  alleged  failure   to  shield  them  from  the          prejudicial effects  of publicity  surrounding  the Rhode  Island          credit union crisis.  They argue that their right to an impartial          jury  was jeopardized by the trial court's denial of their change          of  venue motion, their  request for individual  voir dire, their          request to question the  jurors about losing money in  the credit          union  crisis,  and  their request  for  a  mistrial or  curative          instructions after the admission  of certain evidence relating to                                         -65-          the failed credit unions.   As we  find no significant threat  to          the trial's  fairness from the effects  of unfavorable publicity,          we uphold the district  court's denial of the motions  related to          prejudicial publicity.                                 A.  Change of Venue                    The  decision to  grant a  change of venue52  is within          the sound discretion of the trial court and is reviewed for abuse          of  discretion.   United  States v.  Rodr guez-Cardona, 924  F.2d                            ______________     _________________          1148, 1158 (1st Cir.), cert. denied, 112 S. Ct. 54 (1991); United                                 ____  ______                        ______          States  v. Angiulo, 897 F.2d 1169, 1181 (1st Cir.), cert. denied,          ______     _______                                  ____  ______          498 U.S. 845 (1990).   Change of venue is proper where  the level          of  prejudice against a defendant precludes  a fair and impartial          trial  because  the  community  is  saturated  with  inflammatory          publicity about the case.   Rodr guez-Cardona, 924 F.2d at  1158;                                      _________________          Angiulo, 897 F.2d at  1181; United States v. Moreno  Morales, 815          _______                     _____________    _______________          F.2d 725, 731 (1st Cir.), cert. denied, 484 U.S. 966 (1987).                                    ____  ______                    Defendants  proffered   forty-four  newspaper  articles          relating to Dean Street and their criminal case, as well as other          examples from the media which purported to show negative feelings          stemming from the credit union crisis against those who benefited                                        ____________________          52  The trial court, upon a defendant's motion, will transfer the          trial to another district                      if  the  court  is  satisfied  that there                      exists   in   the   district  where   the                      prosecution   is   pending  so   great  a                      prejudice against the defendant  that the                      defendant  cannot  obtain   a  fair   and                      impartial trial.          Fed. R. Crim. P. 21(a).                                         -66-          from failed  financial institutions.  Defendants  claim that this          demonstrated widespread prejudice among potential  jurors against          them.  They argue that the jurors would  not distinguish Bay Loan          from  the failed credit unions  and consequently the jurors would          direct their hostility toward those involved in  the credit union          crisis against the defendants at trial.                    We find that  the publicity relating  to this case  did          not   particularly  saturate  the   community  with  inflammatory          sentiment nor do we have any  reason to believe that the jury was          anything but impartial.  The articles presented by the defendants          evidence standard factual  press coverage of a  criminal case and          are neither inflammatory nor sensational.  See Angiulo,  897 F.2d                                                     ___ _______          at 1181 (stating that  prejudice will not be presumed in the case          of merely factual reporting, instead "the publicity  must be both          extensive and sensational in  nature").  Only five of  the forty-                    ___          seven  prospective jurors had ever  read or heard  about the case          and  none of them sat on the jury.  We find nothing in the record          to indicate that the jurors' feelings about the credit crisis, if          they had any,  impaired their impartiality  in the present  case.          The trial judge  appropriately cautioned the jury  about the need          to  separate the credit crisis  from this case  and, as discussed          below, he  conducted a  voir dire that  sufficiently investigated          possible  bias.  The trial judge determined that the jurors would          understand  that the credit crisis had no connection to this case          when he denied the change of venue motion and we find no abuse of                                         -67-          discretion in this conclusion.53                                    B.  Voir Dire                    Defendants argue  that the denial of  their request for          individual voir dire  and their  request for jurors  to be  asked          whether they  had  lost money  in the  credit unions  jeopardized          their right  to an impartial jury.   See Irvin v.  Dowd, 366 U.S.                                               ___ _____     ____          717, 722  (1961).   Defendants claim  that as a  result of  these          rulings the  court did  not adequately investigate  possible bias          against defendants stemming  from the credit union  crisis.  See,                                                                       ___          e.g., United States v. Gillis, 942 F.2d 707 (10th Cir. 1991).           ____  _____________    ______                    The trial court has broad discretion in conducting voir          dire.   United States  v. McCarthy, 961  F.2d 972, 976  (1st Cir.                  _____________     ________          1992); Real v.  Hogan, 828 F.2d 58,  62 (1st Cir. 1987).   "It is                 ____     _____          more  than  enough  if the  court  covers  the  substance of  the          appropriate  areas of concern by framing its own questions in its          own words."  Hogan, 828 F.2d at 62 (citations omitted).   In this                       _____          case, the judge adequately probed prospective jurors for possible          bias  related  to  the  credit union  crisis54  and  specifically                                        ____________________          53  We also reject the allegation of actual juror prejudice based          on  the unsubstantiated claim that there was a chance that actual                                                         ______          prejudice existed which  could have  been revealed  if the  judge          asked the right questions during voir dire.  As we find no errors          in  the voir  dire  process,  see  subsection  B,  and  no  other                                        ___          indication  of   actual  prejudice,   we  find   this  allegation          unfounded.          54  Specifically the judge told prospective jurors:                      One thing I should  caution you about  is                      some of  you may be aware  that there has                      been  some  publicity  in   Rhode  Island                      recently about the credit unions  and the                      difficulties  that  they've  experienced,                                         -68-          inquired  several  times  whether  any  of  the  jurors  or their          families had  "lost money  in a  bank fraud  or anything of  that          sort."    One  juror   responded  affirmatively  to  the  court's          questions  in this area and  was excused.55   Throughout the voir          dire, any juror responding to  the court's queries was  subjected          to individual questioning by the judge and by counsel.  For these          reasons, we find no errors in the voir dire process.                                C.  Prejudicial Evidence                    During the trial, the  judge admitted evidence relating          to some of the  failed credit unions and individuals  involved in          the credit  union crisis.  Specifically,  during the government's          direct  examination of  Marderosian  in which  he was  questioned          about  the use  of Bay  Loan funds  obtained from  the Sandcastle          closings,   Marderosian  explained   that,  in   accordance  with          Brandon's  instructions,  he had  deliberately  failed  to pay  a          preexisting  $1.5  million  mortgage  held by  the  Rhode  Island                                        ____________________                      and  I want  to  be  sure  that  everyone                      understands that this case is not  in any                      way related  to those  events.   Is there                      anybody  who  thinks   they  would   have                      difficulty in separating  this case  from                      anything  you might have  heard about the                      problems  credit  unions in  Rhode Island                      have experienced?          55  Defendants  make an additional  argument that because  jurors          were told  that the credit  crisis had no relation  to this case,          they  did not think losing  money in credit  unions was important          before the trial started and thus would not have responded to the          judge's comments  during voir dire.   Yet, once  evidence linking          defendants  to the  credit  crisis was  presented  at trial,  see                                                                        ___          subsection C, the issue  of losing money became critical  and the          risk of bias was no longer adequately addressed by the voir dire.          The  creativity  of   this  argument  is  matched  only   by  its          improbability and speculative nature.  We summarily reject it.                                         -69-          Central Credit Union.  Instead, he used the loan proceeds to  pay          off other Dean Street creditors.  Included in the lengthy list of          these  creditors admitted  at trial  were Robert  Barbato, Atrium          Financial, and Davisville  Credit Union.   All of these  entities          and  individuals  were  involved   in  the  RISDIC  credit  union          crisis.56   Defendants objected to  the evidence and  moved for a          mistrial  arguing that  the  evidence was  irrelevant and  highly          inflammatory.                    The decision to admit or exclude evidence under Fed. R.          Evid. 40357 is  committed to  the broad discretion  of the  trial          court and we will reverse the court's judgment only rarely and in          extraordinary  compelling   circumstances.    United   States  v.                                                        _______________          Nickens,  955 F.2d 112, 125 (1st Cir.),  cert. denied, 113 S. Ct.          _______                                  ____  ______          108  (1992); United States v.  McMahon, 938 F.2d  1501, 1507 (1st                       _____________     _______          Cir. 1991).  Rule 403 requires a balancing of the probative value          of  a piece of evidence  against its prejudicial  effect.  United                                                                     ______          States  v. Rodr guez Cort s, 949  F.2d 532, 540  (1st Cir. 1991).          ______     ________________                                        ____________________          56  Rhode Island  Central Credit Union and the  Davisville Credit          Union  were among the institutions closed as a result of RISDIC's          failure.  (Davisville  apparently  failed  despite  Dean Street's          preferred  payment on its debt  with them).   Robert Barbato, who          purportedly  was  connected  to  organized  crime,  was  a  heavy          borrower of the  credit unions.   Atrium Financial  was owned  in          part by one of the key figures in the credit union crisis.          57  Rule 403 provides in part:                      Although   relevant,   evidence  may   be                      excluded  if  its   probative  value   is                      substantially outweighed by the danger of                      unfair prejudice . . . .          Fed. R. Evid. 403.                                         -70-          Exclusion   is  proper   only   when  the   probative  value   is          "substantially outweighed"  by the  risk of prejudice.   McMahon,                                                                   _______          938 F.2d at 1508.                    The  admitted evidence  was  relevant to  the issue  of          whether Marderosian was stealing the  loan proceeds for Bay  Loan          or  passing them  on  as  Brandon  directed.    Marderosian,  the          government's key witness,  was attacked  by the  defense and  the          media as the main culprit in the scheme and the government sought          to  bolster the  credibility  of his  testimony  by showing  that          Marderosian  did not improperly divert  any of the  large sums of          money that he  handled into his  own pocket.   The evidence  also          helped provide a foundation  for later expert testimony regarding          what  happened to the funds obtained from  Bay Loan in the course          of the scheme to defraud.                     The relevancy  of the evidence  sufficiently outweighed          the  minimal  prejudicial effect  that was  created by  the brief          mention  of individuals and  entities that were  connected to the          credit union crisis.  First  of all, nothing at trial  linked the          named individuals  and entities  to  RISDIC or  the credit  union          crisis.   In order to find prejudice, the court would have had to          infer that the  jury had  heard of the  individuals and  entities          from an external source and also knew of their involvement in the          credit  union scandal.58   Even  if  the jurors  did know  of the          involvement  of  the  named   individuals  and  entities,  it  is                                        ____________________          58  The judge offered to question the jurors about their possible          knowledge  of the  persons named  in  the disputed  testimony but          defense counsel refused.                                         -71-          doubtful, given  the court's various cautioning  instructions and          the voir dire process, that jurors would likely be biased against          defendants just  because certain  names were mentioned  at trial.          At most, the jurors might conclude that defendants contributed to          the failure of at least one  credit union by not repaying certain          loans.   The trial judge  asked the jurors, however,  if they had          lost any money  from bank  fraud related schemes  and no  sitting          jurors said they had.  Thus we have no reason to believe that any          juror who  may have inferred  that defendants contributed  to the          credit  union  crisis  would   be  particularly  likely  to  find          defendants  guilty  without  fairly  considering   the  evidence.          Finally, to  the  extent  that  the balancing  of  relevance  and          prejudice was a close  call, we find no  abuse of discretion  and          uphold the trial court's admission of the disputed evidence.                             VII.  EXCLUSION OF EVIDENCE                             VII.  EXCLUSION OF EVIDENCE                    During  the  trial,  defendants  attempted  to  proffer          evidence  regarding  the allegedly  common practice  by financial          institutions  of  requiring  no  down  payment  on  the  sale  of          commercial  real   estate.    On   cross-examination  of  several          government  witnesses, Hagopian's  attorney asked whether  it was          customary  during  the  relevant  time  period  to  buy and  sell          commercial  properties  with no  money  down and  to  obtain 100%          financing.  The government objected on relevancy  grounds and the          district court  sustained the  objections.  On  another occasion,          Brandon presented an expert witness, James  White, to bolster the          credibility of certain testimony.  Brandon had testified that Bay                                         -72-          Loan Vice  President Gormley  acknowledged that the  proposed end          loans to  unit buyers actually constituted  one single commercial          loan  to Dean  Street,  even though  they  were to  be  submitted          individually as  consumer residential  loans.  Brandon  sought to          present Mr. White's  opinion that  the loans at  issue were  more          consistent  with  commercial rather  than  consumer  loans.   The          district court again excluded the testimony on relevancy grounds.          We affirm the trial court's rulings.59                    In general, "[a]ll relevant evidence is admissible" and          "[e]vidence  which is not relevant  is not admissible."   Fed. R.          Evid. 402.   The district  court has broad  discretion in  making          relevancy determinations  and we  must review its  decisions only          for abuse of that discretion.  United States v. Griffin, 818 F.2d                                         _____________    _______          97,  101  (1st Cir.),  cert. denied,  484  US 844  (1987); United                                 ____  ______                        ______          States v. Lamberty, 778 F.2d 59, 61 (1st Cir. 1985).  Evidence is          ______    ________          relevant if  it has "any  tendency to  make the existence  of any          fact  that is of consequence  to the determination  of the action          more  probable  or less  probable than  it  would be  without the          evidence."  Fed. R. Evid. 401; Lamberty, 778 F.2d at 61.                                           ________                    Defendants argue that the excluded evidence is relevant          to one  of their theories of  the case: (1) either  that Bay Loan          knew of and approved their falsification of down payments; or (2)          that defendants did  not know  about, or intend  to violate,  Bay          Loan's  down  payment  requirement.     The  proffered  evidence,                                        ____________________          59  Because  we find the  disputed evidence was  not relevant  to          defendant's  case, we  also  reject Brandon's  argument that  the          trial court impaired his right to present his theory of defense.                                         -73-          however, does not make  either of these theories any  more likely          to be true and thus the evidence is irrelevant.                    As for the first theory, Brandon tried to show at trial          that  Bay Loan aggressively  purchased non-conforming loans, that          he openly sought 100% financing from  the bank, and that Bay Loan          agreed  to  provide  the   financing  without  down  payments  by          directing  Dean  Street  to falsify  the  paperwork  to show  the          existence of  down  payments.    The  expert  testimony  and  the          government witness's  testimony about  the common practice  of no          down  payment  financing  may  add  support  to  the  first   two          assertions,  but those assertions are simply not at issue in this          case.  Rather, Bay Loan's alleged approval of false down payments          is  at issue.  The defendants, however, have not demonstrated any          relationship between the proffered  evidence that no down payment          financing  was a common practice and the likelihood that Bay Loan          directed  Dean Street  to falsify  paperwork to  misrepresent the          existence of down payments that were never made.                    The  problem  with  defendants'  argument  is  that  no          connection between the common  use of 100% financing and  the use          of  false down  payments was  ever established.60   That  is, for                                        ____________________          60   The same problem exists regarding the connection between the          fake  down   payments  and   the  expert's   distinction  between          residential and commercial loans.  Brandon sought to characterize          the mortgages from Bay Loan as more like commercial than consumer          loans  and  thus subject  to  different  standards and  policies.          Specifically, he  sought to show  that 100% financing  was normal          for  commercial  loans  and  to counter  the  allegedly  critical          contention   that  residential   loans  typically   require  down          payments.  This  is basically the  same type of  evidence as  the          testimony  that 100%  financing  was customary  in the  industry.          That  is, a  showing that  Bay Loan's  mortgages  were commercial                                         -74-          the evidence to be relevant, there must be some reason to believe          that 100% financing, or no down payment financing, is customarily          provided  in  conjunction   with  paperwork  showing  fake   down          payments.   A no down  payment custom does  not establish a  fake          down  payment  custom.    The  defendants  lack,  therefore,  any          foundation that would make the proffered evidence relevant.                    "'Trial judges have wide discretion in deciding whether          an adequate  foundation  has  been  laid  for  the  admission  of          evidence.'"    Veranda Beach  Club  Ltd.  Partnership v.  Western                         ______________________________________     _______          Surety Co., 936  F.2d 1364, 1371 (1st  Cir. 1991) (citing  Real v          __________                                                 ____          Hogan, 828 F.2d 58,  64 (1st Cir. 1987)); see also  United States          _____                                     ________  _____________          v. Young, 804 F.2d  116, 119 (8th  Cir. 1986), cert. denied,  482             _____                                       ____  ______          U.S. 913 (1987).   No foundation was laid in this  case.  Even if          we  accept 100%  financing was  in fact  generally common  in the          industry and  for Bay Loan,  it does not  follow that Bay  Loan's          approval of false down  payment transactions is any  more likely.          Defendants  must provide,  for  example, some  evidence that  the          recording  of down payments in no down payment transactions was a          common  formality, perhaps  for  accounting, tax  or  bookkeeping                                        ____________________          helps  to establish the  likelihood that the  loans were actually          "no  down payment  loans."   This  still  leaves us  without  the          missing foundational  link -- that  no down payment  financing is          somehow associated with falsified down payments.             In response  to Brandon's claim that the government proved its          case  by showing the transactions deviated from the norm, we note          that the relevant norm is  not 100% versus 80% financing but  the          standard method  of representing down payments,  or lack thereof,          in loan transactions.  Proof  of a no down payment norm  does not          establish a fake down payment norm.                                         -75-          purposes,61  or for  the  convenience of  some interested  party.          If  such evidence  existed,  then maybe  a sufficient  foundation          would exist for  the relevance  of 100% financing.   However,  no          such foundation is evident in the record.                    What defendants were really trying to show  is that the          bank or its officials  were themselves perpetrating some sort  of          fraud and  the defendants were unwittingly caught up in it.  This          assertion,  however,  also  lacks   foundational  support.    The          defendants want the proffered evidence to establish that Bay Loan          was in the practice  of providing 100% financing and  thus likely          to be providing 100%  financing in this case as  well, regardless          of whether such financing  involved fake down payments, kickbacks          or fraudulent paperwork.  This formulation, however, obscures the          real issue: if Bay Loan intended to provide 100% financing, or if          defendants thought down payments  were waived, why did they  have          to  take actions  to  falsify down  payments?   To  satisfy  this          requisite  foundational  question,  the  defendants had  to  show          either  that,  (1)  officials at  Bay  Loan  stood  to reap  some          personal  gain  by  offering  loans  with  no  down  payments  in          violation of the  bank's requirements and thus  needed to falsify                                        ____________________          61   Brandon claims that  Bay Loan  directed him to  falsify down          payments so that the  bank could package the commercial  loans as          residential  loans.  Were his  claim true, however,  it would not          make the common practice of  providing commercial loans, and  the          100% financing such loans allegedly involve, any more relevant to          the  issue  of  why   the  falsification  of  down  payments   is          justifiable.   Still lacking is  some indication that  the common          practice of lending  money without  down payments  makes it  more          likely  that the bank would find  it necessary to mischaracterize          loans and consequently  direct Dean Street to produce  false down          payment paperwork.                                         -76-          down payments to hide  the violation from bank superiors;  or (2)          the bank  as a whole  stood to  reap some gain  by lending  money          under  false  pretenses,  perhaps  to  deceive  their  creditors,          shareholders,  or regulators.62  In  the absence of some evidence          supporting these  two propositions, the custom  of 100% financing          or  the characterization of the loans as commercial as opposed to          residential does not make Bay Loan's  approval of fraudulent down          payments any more  likely to  be true.   Again, the  foundational          link is simply missing.                    The   excluded  evidence  is  similarly  irrelevant  to          defendants'  lack of  knowledge or  intent to  defraud Bay  Loan.          Defendants claim that evidence that 100% financing was a standard          practice supports their claim  that they did not know  or suspect          anything was unusual or illegal about the  loan transactions they          participated in.   Again, what  is at issue  is the existence  of          falsified  down payments.   There  is no  basis for  finding that          defendants  were  more likely  to  think  that  their actions  to          facilitate  the documentation of  nonexistent down  payments were          somehow legitimate just because 100% financing was customary.  To          put  it another  way, the  proffered evidence  does not  make the          false  down  payment  maneuvers  less  likely  to  tip   off  the          defendants to the  illegal nature of the transaction without some          foundation  connecting 100%  financing to  creative down  payment                                        ____________________          62   Defendants presented  evidence that  Bay Loan  was knowingly          lending in violation  of other requirements  it imposed, not  the          least  of which  was  the requirement  that  buyers live  in  the          condominiums they purchased which  was impossible given the units          were to be operated as motels.                                         -77-          paperwork  of some  kind.   Defendants were  not engaged  in what          appeared to them to be a "no down payment transaction"; they were          doing  what appeared to  them to be  a transaction  where a paper          down  payment was documented and  recorded but not actually paid.          The no  down payment custom would  only be relevant to  intent if          that custom  involved something even vaguely similar to this sort          of paper  down payment.  Because no such foundation exists on the          record, and because we find no abuse of discretion on the part of          the trial court in refusing to  allow the jury to assume or infer          that  foundation,  we  uphold  the  exclusion  of  the  proffered          evidence.63            VIII.  PREJUDICE FROM COMMENTS REGARDING DEFENDANTS' ETHNICITY            VIII.  PREJUDICE FROM COMMENTS REGARDING DEFENDANTS' ETHNICITY                    During the  fifth day  of trial, the  government's main          witness, Marderosian, testified about a comment made by defendant          Landman concerning the religious affinity between Landman and co-          defendant  Reisch.     Marderosian   was  describing   on  direct          examination the arrangement for Reisch to wire down payment money          into buyers' accounts.  The arrangement was designed, in part, to          allay Reisch's  concern that too much money  would be outstanding          between the time he provided funds to the buyers and the time the          funds were  returned to him  by Dean Street.   In reference  to a                                        ____________________          63  Unlike  the cases cited  by defendant that  have held that  a          certain custom or practice  in an industry may be relevant to the          defendant's case, United States v. Aversa, 984 F.2d 493 (1st Cir.                            _____________    ______          1993)  (en  banc); United  States v.  Seelig,  622 F.2d  207 (6th                             ______________     ______          Cir.), cert. denied, 449 U.S. 869 (1980); United States v. Riley,                 ____  ______                       _____________    _____          550 F.2d 233 (5th  Cir. 1977), the proffered custom  in this case          is unrelated to the alleged illegal activity.                                         -78-          discussion  between Marderosian  and  Landman,64  the  government          asked:  "What, if  anything  did Mr.  Landman  say to  you  about          concerns expressed by Mr. Reisch?"  Marderosian responded:                      Mr. Landman stated to me on one occasion,                      I am  not sure  if it was  that occasion,                      that  Mr.   Reisch  appeared  comfortable                      doing it this way  and part of the reason                      for that, Mr. Landman explained, was that                      Mr. Landman  was  involved  and   he  was                      Jewish and Mr. Reisch was Jewish and that                      the   level   of  comfort   shouldn't  be                      underestimated by me.                    Defendants did not immediately object to this statement          after it was  made; however, Reisch's  attorney moved to  dismiss          later that same day.  The judge denied the motion and also denied          later  defense motions for a mistrial.  Defendants argue that the          testimony invited  the jury  to make the  impermissible inference          that members of the same  religion would be more likely to  trust          each other and join  in a conspiracy and also  that the testimony          may  have  provoked anti-Semitic  feelings  among  jurors.   When          defendants first  raised their objections, the  trial judge asked          counsel what they  wanted him to do and the  judge offered to try          and ferret out any possible anti-Semitism on the jury.  Counsel's          only  request was for dismissal.  Counsel did not request further          questioning of the jury on this matter and  expressed displeasure                                        ____________________          64   Marderosian's testimony  about Landman's  statement properly          falls  under the  co-conspirator exception  to the  hearsay rule,          Fed.  R.  Evid.   801(d)(2)(E),  because  the  evidence   clearly          establishes  beyond   a  preponderance   of  the  evidence   that          Marderosian,  Landman   and  Reisch  were  all   members  of  the          conspiracy and the statement was made during the course of and in          furtherance of the conspiracy.  See United States v. Angiulo, 897                                          ___ _____________    _______          F.2d 1169, 1201-02 (1st Cir.), cert. denied, 498 U.S. 845 (1990).                                         ____  ______                                         -79-          with the  possibility of providing curative  instructions because          "instructions would only magnify the problem."                    Under  these circumstances,  we do  not think  that the          trial court's  actions  constitute reversible  error despite  the          possible  inappropriateness  of  the  testimony.   The  level  of          prejudice, if  any, was not sufficiently  significant to overturn          the judge's decision to accept the defendants' tactical choice to          forgo  more  appropriate  methods  of  addressing  the  potential          prejudice in favor of the unrealistic and unnecessary solution of          a dismissal or a new trial.  Cf. United States v. De La Cruz, 902                                       __  _____________    __________          F.2d  121, 124  (1st Cir.  1990) (noting  the reluctance  of this          court  to require  trial judges  to override  plausible strategic          choices  on the  part  of counsel  in  the context  of  remedying          potential prejudice); United States v. Goldman, 563 F.2d 501, 505                                _____________    _______          (1st  Cir. 1977), cert. denied, 434 U.S. 1067 (1978) (refusing to                            ____  ______          reverse verdict in trial  with prejudicial references to religion          because the trial judge gave curative instructions).                    The  prejudicial  effect  of   Marderosian's  statement          appears quite limited.  The reference to defendants' Judaism  was          the only such mention of  religion at trial.  It amounted  to one          brief sentence in nineteen days of testimony and argument.  There          was  no subsequent reference to  the challenged testimony nor did          the government use the issue of religious affinity in its closing          argument.  The inference of Jewish affinity was not, as defendant          Landman claims, central to  the government's case.  The  basis of          Landman's  agreement to participate in the conspiracy was not his                                         -80-          promise to protect the interests of Reisch but his agreement with          Marderosian and Brandon to facilitate the unit sales without down          payments.   As discussed above,  see Section  IV.B.6, the  record                                           ___          contains  sufficient  facts   regarding  Landman's  actions   and          statements  made by,  and to,  him to  support his  knowledge and          participation  in  the  conspiracy.   None  of  these  facts have          anything to  do with  Landman's supposed religious  affinity with          Reisch.65 Likewise,  the evidence  against Reisch  centers around          his agreement with Brandon to provide money to the scheme and not          around  his  relationship with  Landman.   In  fact,  Landman was          acquitted by the jury on two bank  fraud counts that involved the          funding of down payments by Reisch in which Landman conducted the          closings. This indicates that the jury was not prejudiced and did          not rely on the disputed testimony in its verdict.                      Nothing  like  the  serious  prejudicial  circumstances          found in United  States v.  Rodr guez Cort s, 949  F.2d 532  (1st                   ______________     ________________          Cir. 1991) (finding reversible error  from ethnically prejudicial          evidence),  exists  in  this  case.   In  Rodr guez  Cort s,  the                                                    _________________          district court  had found a  defendant's Colombian identification          card  admissible  based  on  the  impermissible  assumption  that          Colombians  were more  willing  to trust  fellow Colombians  than          anyone  else, and therefore, defendant  was likely to be involved                                        ____________________          65   There  is also  sufficient testimony,  quite apart  from the          disputed  comment, that  Landman  agreed to  look after  Reisch's          interests.   Marderosian testified that Reisch  told Landman that          "he  wanted Mr. Landman  to look out for  his interest to protect          his   money  to  the  extent  possible."     Landman  later  told          Marderosian "he would  try to  protect Mr. Reisch  to the  extent          possible."                                         -81-          with his Colombian co-defendants.   Id. at 540.   This connection                                              __          was emphasized in the government's closing argument.  Id. at 541.                                                                __          Here, there  was no objection  to the relevancy  of Marderosian's          statement and thus no ruling based on an impermissible inference.          The judge recognized the potential  for prejudice and offered  to          take  steps to  rectify  the  problem.    More  importantly,  the          government  did  not invoke  any  inferences  based on  religious          affinity in  its  final argument  before  the jury.    Similarly,          United States v.  Cruz, 981 F.2d  659 (2d Cir. 1992),  and United          _____________     ____                                     ______          States  v. Doe, 903 F.2d 16 (D.C. Cir. 1990), are distinguishable          ______     ___          from  the   present  case   because  those  cases   involved  the          government's explicit  use of the  impermissible reasoning,  upon          extensive direct examination and  on summation, for crucial parts          of its theory of the case.                    Defendants   suggest   there    was   an   element   of          prosecutorial misconduct in eliciting the disputed testimony from          Marderosian.   Marderosian  had  made a  similar statement  about          defendants' Judaism when  he testified before the  grand jury and          the pattern  of questioning  prior to Marderosian's  statement at          trial  could  be  construed as  an  attempt  to  elicit the  same          testimony from him a second time.   At the bench conference  with          the  judge,   the  prosecutor  denied  knowing   beforehand  that          Marderosian would make the comment about defendants' religion and          claimed to  have instructed Marderosian to limit his testimony to          the  fact  that Landman  said  Reisch felt  comfortable  with the          arrangement.  While the  circumstances are somewhat troubling, we                                         -82-          do not  find sufficient  evidence of prosecutorial  misconduct to          reverse the verdicts  in this  case, especially in  light of  the          absence  of  any  reference  to  the  religious  comment  in  the          government's  summation.   Compare  Goldman  563  F.2d at  504-05                                     _______  _______          (prosecutor, on summation, referred to fact defendant was wearing          "what  they call in the Jewish  religion a yamaka [sic]" and that          the  symbol  he  was  wearing  "has  been  defamed,  defiled  and          scandalized").                                 IX.  JURY INSTRUCTIONS                                IX.  JURY INSTRUCTIONS                    Defendants   make  three   challenges   to   the   jury          instructions  in this case.66   They allege that  the trial judge          failed to provide proffered instructions concerning the  required          proof of intent  for conspiracy and  the possibility of  multiple          conspiracies.  They also argue that it was error for the judge to          give an instruction concerning willful blindness.                                        ____________________          66  Defendant Granoff makes an additional argument that the trial          judge erroneously failed to instruct the jury that they must find          that defendants knew  of Bay Loan's federally  insured status and          that defendants knew  Bay Loan  was the target  of the scheme  to          defraud.   Because we found  that neither of  these elements were          required for a conviction under the bank fraud statute, see supra                                                                  ___ _____          Section IV, the trial court  did not err in refusing to  give the          proffered instructions.             The trial judge was thus correct in instructing the jury that:                      it is not necessary for the Government to                      prove   that   the  Defendant   knew  the                      identity  of   the  particular  financial                      institution  or  that the  Defendant knew                      that   that  institution   was  Federally                      chartered  or insured.  . .  .   It must,                      however,   prove   that   the   Defendant                      intended    to   defraud    a   financial                      institution.                                         -83-                     A.  The Direct Sales Conspiracy Instruction                             ____________                    The defendants  proffered  a jury  instruction67  based          on the rule derived from  Direct Sales Co. v. United States,  319                                    ________________    _____________          U.S. 703, 711, 713 (1943), that one who supplies goods to another          knowing that the recipient  will use them for an  illegal purpose          cannot, on that basis  alone, be found guilty of  conspiring with          the recipient.   Rather, for the  supplier to be  culpable, he or          she  must have the intent  to further, promote,  and cooperate in          that  illegal purpose.  Id.;  United States v.  Falcone, 109 F.2d                                  __    _____________     _______          579, 581 (2d  Cir.), aff'd., 311 U.S.  205 (1940).   The district                               _____          court  did not  give  the defendants'  proffered instruction  but          instead instructed the jury that "to be a member of a conspiracy,          a Defendant must have  willfully joined it or participated  in it                                        ____________________          67  The instruction stated, in pertinent part:                      You are instructed that  a person who may                      have furnished goods,  money or  services                      to another person who he knows is or will                      be  engaged in  criminal activity  .  . .                      does not by  furnishing such goods, money                      or services necessarily  become a  member                      of the  conspiracy.   Instead, . .  . the                      government must show beyond  a reasonable                      doubt that the defendant was aware of the                      conspiracy and  knowingly and voluntarily                      joined it  with the intent  of furthering                      its illegal aims.                      To reiterate,  it is not  enough that the                      Government   prove   that  a   particular                      defendant acted in  a way that  furthered                      the   purposes   or  objectives   of  the                      conspiracy.  Instead the  Government must                      prove  beyond a reasonable doubt that the                      defendant  acted  while  knowing  of  the                      unlawful agreement and with the intention                      to participate in it.                                         -84-          for  the   purpose  of  advancing  or   furthering  its  unlawful          purposes."   The court also stated that the government must prove          each defendant's "intent to  participate in the unlawful scheme."          Defendants argue that this instruction inadequately addressed the          intent requirement laid out in Direct Sales and Falcone.                                         ____________     _______                    The   trial  court's   failure  to  give   a  proffered          instruction will not be  reversed unless that instruction  is (1)          substantively correct;  (2) was not substantially  covered in the          charge actually given; and (3)  concerned an important point such          that the failure to give it seriously undermined the  defendant's          ability  to  present a  particular  defense.   United  States  v.                                                         ______________          McGill,  953  F.2d  10, 13  (1st  Cir.  1992);  United States  v.          ______                                          _____________          Perkins, 926  F.2d 1271,  1283 (1st  Cir. 1991).   In this  case,          _______          defendants fail to get past the second prong of the test.                    The district  court's instruction, which states  that a          defendant must have "the purpose of  advancing or furthering" the          unlawful  purpose  of the  conspiracy,  substantially  covers the          substance of  defendant's proffered instruction.   The judge also          informed the jury  that defendant had  to "willfully join[]"  the          conspiracy, that defendant had  to have both the intent  to agree          to join the  conspiracy and  the specific intent  to commit  bank          fraud, and that defendant  had to have the intent  to participate          in  the unlawful scheme.  All of these instructions together more          than  adequately address  the  requirements of  Direct Sales  and                                                          ____________          Falcone that defendant must join the conspiracy with the specific          _______          intent to accomplish its  illegal purpose.  See United  States v.                                                      ___ ______________                                         -85-          Arias-Santana, 964 F.2d  1262, 1268 (1st  Cir. 1992) (finding  no          _____________          error  where jury  charge  covered the  substance of  defendant's          requests); McGill, 953 F.2d at 12-13 (same).   We have upheld the                     ______          adequacy  of  nearly identical  instructions  in the  past.   See                                                                        ___          United States v. Hensel, 699 F.2d 18, 37-38 (1st Cir. 1983).          _____________    ______                    The defendants focus on  the fact that the trial  judge          did not explicitly  state that  mere knowledge  by the  defendant          that the  goods he or she  provides to a conspiracy  will be used          illegally  is not  sufficient  to prove  an  intent to  join  the          conspiracy.  This instruction, defendants allege, is necessary to          properly define  "intent to  participate" or  "intent to  join" a          conspiracy.   Without an expression  of the  innocent case,  they          add,  the instructions leave open  the door for the impermissible          inference that a defendant can be guilty of conspiring to defraud          Bay  Loan simply  by providing  money to  Dean Street  knowing it          would be used illegally.  Defendants claim that because the murky          distinction between lawful cooperation and  illegal participation          is  especially close  in  this case,  the  district court  had  a          special obligation to be clear.                    In  some  situations, this  type  of "negative"  Direct                                                                     ______          Sales  instruction might be required,  but we see  nothing in the          _____          facts  of this  case that  makes the  distinction  between simply          knowing  of  the illegal  nature of  the  scheme and  agreeing to          further the  scheme particularly  crucial to  the  defense.   The          central defense of  most defendants  was that they  did not  know          that  Dean Street  was doing  anything  illegal in  obtaining the                                         -86-          loans.  Once knowledge of illegality is established, the evidence          of  defendants' participation,  as  opposed  to merely  providing          goods and services to the conspiracy, is overwhelming and not, as          defendants assert, a close call.  See supra Section IV.                                            ___ _____                    In any  event, we think the  trial court's instructions          were  quite clear  that  (1) "[i]n  order  to be  a  member of  a          conspiracy,  a  Defendant  must   have  willfully  joined  it  or          participated in it for the purpose of advancing or furthering its          unlawful  purpose"; and  (2)  that defendant  must  have both  an          intent to agree to join the conspiracy and the specific intent to          commit  bank fraud.   These  instructions adequately  defined the          requisite "intent  to participate" and  foreclosed any  inference          that knowingly providing goods to a criminal enterprise is itself          sufficient to support a finding of intent to join the conspiracy.          The  trial  court need  not employ  the  most elegant  or concise          phraseology  nor  must it  incorporate  the  precise language  of          defendants'  request as long as the instructions taken as a whole          "accurately  communicated  the  meat  of  the defense's  theory."          McGill,  953 F.2d at 12.  In this case,  the court's instructions          ______          adequately   communicated  the   defendants'  theory   that  mere          knowledge  and  assistance,  without  an intent  to  further  the          enterprise, is not enough.                        B.  Instruction On Multiple Conspiracies                    The defendants also challenge the trial court's refusal          to  instruct  the  jury   as  to  the  possibility   of  multiple                                         -87-          conspiracies.68   Such an instruction was  warranted, they claim,          because  the evidence  indicated  that  different defendants  had          different  relationships with  Dean Street  and were  involved in          separate  schemes.  Although the judge may have erred in refusing          to charge  multiple conspiracies, we  find insufficient prejudice          to warrant a reversal of the convictions.                    A trial court should grant a  defendant's request for a          multiple conspiracy  instruction if, "on the  evidence adduced at          trial,  a reasonable jury could  find more than  one such illicit          agreement, or  could find  an  agreement different  from the  one          charged."  United States  v. Boylan, 898 F.2d 230, 243  (1st Cir.                     _____________     ______          1990); see also United States v. Dennis, 917 F.2d 1031, 1033 (7th                 ________ _____________    ______          Cir. 1990); United States  v. Dwyer, 843 F.2d 60, 61-62 (1st Cir.                      _____________     _____          1988).   As it  is highly likely that  the voluminous and complex          record  in this case, viewed  in the light  most favorable to the                                        ____________________          68  The defendants' proffered instruction stated in part:                      Where  persons  have  joined together  to                      further  one  common  unlawful design  or                      purpose, a single conspiracy exists.   By                      way  of  contrast, multiple  conspiracies                      exist  when  there are  separate unlawful                      agreements to achieve distinct purposes.                                       . . . .                      In  deciding  whether  a  single  overall                      conspiracy as charged  in the  indictment                      has been proven beyond a reasonable doubt                      you  should look  at  whether there  were                      multiple   agreements  reached,   whether                      there  were  additions or  withdrawals of                      alleged     conspirators,    and     most                      significantly, whether the evidence shows                      beyond a reasonable doubt that all of the                      alleged   conspirators   directed   their                      efforts  toward  the accomplishment  of a                      common goal or overall plan.                                         -88-          defendants, would allow for a plausible conclusion that more than          one  conspiracy took place, we start from the assumption that the          trial  court erred in its failure to give the multiple conspiracy          instructions.  Our task,  then, is to determine if  the degree of          prejudice  from the possible  error necessitates a  reversal.  We          find that it does not.                    We will reverse a  court's erroneous refusal to  give a          substantively  correct  instruction  only  when  that instruction          concerned an important  point such  that the failure  to give  it          seriously  undermined  the  defendant's  ability  to  effectively          present a given defense.   United States v. McGill, 953  F.2d 10,                                     _____________    ______          13 (1st Cir. 1992); United States v. Perkins, 926 F.2d 1271, 1283                              _____________    _______          (1st  Cir.   1991).     In  the   context  of  alleged   multiple          conspiracies, the defendant's main concern is that jurors will be          misled into  attributing guilt to a particular defendant based on          evidence  presented  against  others   who  were  involved  in  a          different and separate conspiratorial scheme.  Dwyer, 843 F.2d at                                                         _____          62; United States v. Flaherty, 668 F.2d 566, 582 (1st Cir. 1981).              _____________    ________          The prejudice  we must  guard against, therefore,  is evidentiary          spillover resulting from trying  defendants en masse for distinct                                                      __ _____          and  separate offenses committed by others.   Kotteakos v. United                                                        _________    ______          States,  328  U.S. 750,  756-77  (1946); see  also  Blumenthal v.          ______                                   _________  __________          United States, 332 U.S. 539, 558-60 (1947).          _____________                    We  find  the  risk  of  evidentiary  spillover  to  be          significantly  limited in this case because we fail to see which,          if  any,  pieces  of  evidence  would  not  be  relevant  to  and                                         -89-          admissible against any of  the defendants individually.  Although          the  record  does  not  foreclose  the  possibility  of  multiple          conspiracies, the  evidence convincingly indicates  the existence          of  a  single, unified  conspiracy  in which  all  the defendants          participated.    Thus,  all  of  the  evidence  would  have  been          available  to  the jury  for  consideration  of the  government's          single conspiracy claim against  each defendant regardless of the          possibility of multiple conspiracies.                    Determining the number of  conspiracies in a particular          case  depends  on a  variety  of factors  including  the "nature,          design,  implementation, and logistics  of the  illegal activity;          the participants' modus operandi; the relevant geography; and the          scope of coconspirator  involvement."  Boylan,  898 F.2d at  241;                                                 ______          United States v. Rivera-Santiago, 872 F.2d 1073, 1079 (1st Cir.),          _____________    _______________          cert.  denied, 492 U.S. 910  (1989).  A  single conspiracy exists          ____   ______          where the totality of the evidence demonstrates that "'all of the          alleged  co-conspirators  directed  their  efforts   towards  the          accomplishment of a common  goal or overall plan.'"   Boylan, 898                                                                ______          F.2d at  242 (quoting United  States v.  Drougas, 748 F.2d  8, 17                                ______________     _______          (1st Cir.  1984)); United  States v.  Bello-P rez, 977  F.2d 664,                             ______________     ___________          667-68 (1st Cir. 1992).                    The conspiracy in  this case consisted  of a scheme  to          obtain   financing  for   a   condominium   project  by   falsely          representing the existence of down payments that were never made.          Although some of the  details and tactics changed  throughout the          scheme, the main objective, structure, intended victim, and modus                                         -90-          operandi remained  constant: the  continuous recruitment  of unit          buyers to submit loan  applications to Bay Loan in which the down          payments were falsified in order to fraudulently avoid the bank's          down  payment requirement,  followed by  the disbursement  of Bay          Loan's loan  proceeds  to Dean  Street.   Defendants  all  worked          together interdependently to further the entire scheme.  Hagopian          and Ward  recruited buyers,  Gauvin, Granoff and  Reisch provided          the  buyers   with  down  payment  funds,   Kumalae  and  Landman          facilitated the  fraudulent representation of the  down payments,          and  Brandon  coordinated  the   entire  conspiracy.    With  the          exception of  Gauvin and  Granoff, all  of the  defendants played          essentially the same role throughout the entire operation  of the          conspiracy.69    Gauvin   and  Granoff  stopped   providing  down          payment funds after Brandon stopped giving them their money back;          however, negotiations between Brandon and the two continued until          the  scheme  ended.   Regardless, the  cessation of  Gauvin's and          Granoff's funding did not represent the end of one conspiracy and          the beginning of a second one but a snag in the ongoing operation          of the single conspiracy.  See  United States v. Aracri, 968 F.2d                                     ___  _____________    ______          1512, 1522 (2d Cir. 1992) (finding acrimony among participants of          conspiracy consistent with single conspiracy).                    Defendants'  arguments   for  distinguishing  different          conspiracies  have all been  previously rejected and  none of the          factors  they  highlight  indicates  the  existence  of  multiple                                        ____________________          69  Hagopian and Ward joined the scheme just two months after the          first condominium sales.                                         -91-          conspiracies.   The presence  of different methods  of falsifying          the down payments --  e.g., recycled funds, nonnegotiated checks,          dischargeable mortgages -- does not create separate conspiracies.          See,  e.g., Aracri, 968 F.2d at 1521-23; United States v. Aponte-          ___   ____  ______                       _____________    _______          Su rez, 905 F.2d 483,  486-88 (1st Cir.), cert. denied,  498 U.S.          ______                                    ____  ______          990  (1990); United States v. Crosby,  294 F.2d 928, 945 (2d Cir.                       _____________    ______          1961), cert. denied,  368 U.S.  984 (1962).   This is  especially                 ____  ______          true because  the various  methods were used  interchangeably and          often simultaneously  in furtherance  of an  identical objective.          Likewise, the differing relationships various defendants had with          the  head conspirator,  Brandon, does  not signify  that multiple          conspiracies existed.  See United States v. Bello-P rez, 977 F.2d                                 ___ _____________    ___________          664, 668 (1st  Cir. 1992);  United States v.  Townsend, 924  F.2d                                      _____________     ________          1385, 1389 (7th Cir.  1991) ("The crime of conspiracy  focuses on          agreements,   not  groups.").70      The   fact  that   different          defendants  were  involved  in   separate  transactions  for  the          purchase  of  different properties  at  different  motels is  not          significant so  long as there is  a single continuing  plan.  See                                                                        ___          Boylan, 898 F.2d at 242; Drougas, 748 F.2d at 8; United States v.          ______                   _______                 _____________                                        ____________________          70  The present conspiracy is not, as defendants allege, the type          of  conspiracy discussed in Kotteakos, 328  U.S. at 753-55, where                                      _________          different conspirators had separate and independent relationships          with  the  hub conspirator  and were  thus  separate spokes  on a          rimless  wheel.   Here,  all  the  defendants  were  part  of  an          integrated,   interdependent  scheme  in   which  each  defendant          depended upon  and was connected to the others.  The scheme could          not function without a  steady stream of new buyers  recruited by          Hagopian and Ward.  New buyers were useless, however, unless they          could get down  payment funds  provided by  Gauvin, Granoff,  and          Reisch.   In  turn,  down payment  funds  could not  be  properly          recycled  or falsified  to defraud  the  bank unless  Landman and          Kumalae facilitated the transactions.                                         -92-          Kelley, 849 F.2d 999, 1003 (6th Cir.), cert. denied, 488 U.S. 982          ______                                 ____  ______          (1988).  Finally, the  fact that Dean Street was engaged in other          licit  and illicit commercial enterprises does  not relate to the          present case against defendants and is irrelevant.                    Almost all aspects of the government's case  describing          the  scheme to defraud Bay Loan were relevant to each defendant's          respective role in the conspiracy.  Thus, we see no risk that the          jury  based a defendant's  conviction on evidence  relating to an          unrelated offense.  The  lack of prejudice is underscored  by the          fact that  ample evidence  was presented against  each individual          defendant based on each defendant's  actions and statements.  See                                                                        ___          supra Section  IV.   The jury  did not need  to rely  on evidence          _____          relating specifically  to other  defendants in order  to convict.          In  addition, the judge  repeatedly cautioned the  jury to assess          the evidence  separately against  each defendant.71   See Boylan,                                                                ___ ______          898  F.2d at  244  (finding similar  instructions contributed  to          protecting defendant's rights).                           C.  Willful Blindness Instruction                                        ____________________          71   The  district court  also told  the jury  to determine  each          charge against each defendant based  only on the evidence against          that defendant on  that charge.   More  significantly, the  judge          also cautioned the jury:                      to consider only  the evidence  regarding                      that Defendant's actions  or the  actions                      of individuals belonging to  a conspiracy                      to  which  that Defendant  also belonged.                      That is  to say, it would  be improper to                      return a guilty verdict with respect to a                      Defendant based on  evidence relating  to                      acts committed by  someone belonging to a                      conspiracy of which the Defendant was not                      a member.                                         -93-                    The  district  court  instructed   the  jury  that  "in          deciding  whether  a Defendant  acted  knowingly,  you may  infer          knowledge  of a fact  if you find beyond  a reasonable doubt that          the  Defendant deliberately closed his or her eyes to a fact that          otherwise would  have  been obvious  to that  Defendant."72   The          evidence  supporting this  instruction related only  to defendant          Landman  but   the  instruction  was  given   generally  for  all          defendants  without any  mention of  Landman's name.   Defendants          claim the  instruction was  reversible error  because it  was not          applicable to this case and because it caused the jury to convict          defendants  without  finding  sufficient  evidence  of  knowledge          beyond a reasonable doubt.                    We  find,  first  of  all,  that  the  instruction  was                                        ____________________          72  The rest of the court's willful blindness instruction stated:                      In  order  to infer  knowledge,  you must                      find   that   two   things    have   been                      established.                      First, that the Defendant was aware  of a                      high probability of the fact in question.                      And    second,    that   the    Defendant                      consciously   and  deliberately   avoided                      learning of those facts.  That is to say,                      that the Defendant willfully made himself                      blind to those facts.   It is entirely up                      to you to  determine whether a  Defendant                      deliberately  closed his  or her  eyes to                      the facts and, if  so, what inference, if                      any, should be drawn.                      However, it  is important to bear in mind                      that  mere  negligence   or  mistake   in                      failing  to   learn  the  facts   is  not                      sufficient.   There must  be a deliberate                      effort to remain ignorant of the facts.                                         -94-          appropriate and accurate as to defendant Landman; hence, no error          was made  in his case.   The  trial court may  instruct the  jury          concerning willful  blindness when a  defendant claims a  lack of          knowledge,   the  facts  support   an  inference  of  defendant's          conscious course  of deliberate ignorance,  and the  instruction,          taken as a whole, cannot be misunderstood by a juror as mandating          the  inference  of knowledge.    United States  v.  St. Michael's                                           _____________      _____________          Credit Union, 880 F.2d 579, 584 (1st Cir. 1989); United States v.          ____________                                     _____________          Picciandra,  788 F.2d 39, 46  (1st Cir.), cert.  denied, 479 U.S.          __________                                ____   ______          847 (1986).   More specifically, the  instruction is proper  when          there is  evidence to "support  the inference that  the defendant          was aware of  a high probability of the existence  of the fact in          question and  purposely contrived  to avoid  learning all of  the          facts  in order to  have a defense  in the event  of a subsequent          prosecution."  United States v. Rivera, 944 F.2d 1563, 1571 (11th                         _____________    ______          Cir. 1991) (citing United  States v. Alvarado, 838 F.2d  311, 314                             ______________    ________          (9th Cir. 1987), cert. denied, 487 U.S. 1222 (1988)).                           ____  ______                    The core  of Landman's defense  as argued at  trial was          that he was simply doing his job as an escrow  agent in receiving          and dispersing funds at the direction of Dean Street and  that he          did  not know  that  the transactions  he  was involved  in  were          illegally defrauding  the bank.73   As  discussed in Section  IV,                                        ____________________          73   Landman  made this  argument in  various motions  before the          judge and before the  jury which satisfies the first  requirement          that the  defendant claim a  lack of  knowledge.  It  is not  the          case, as Landman argues, that a defendant must testify or present          evidence  indicating  a  lack   of  knowledge  before  a  willful          blindness  instruction can  be  deemed appropriate.   See  United                                                                ___  ______          States v. Lizotte, 856 F.2d 341, 343 (1st Cir. 1988).          ______    _______                                         -95-          sufficient evidence  exists that Landman knew  down payments were          required.  The evidence also supports the conclusion that Landman          knew about the scheme to fraudulently represent the  existence of          down payments.74    However, on  cross-examination,  the  defense          attempted to impeach Marderosian's testimony that he told Landman          about  the dischargeable  second  mortgages to  be  given to  the          buyers  which  called  into  question  a key  piece  of  evidence          regarding Landman's knowledge.  There was, nevertheless, evidence          that Landman tried to avoid learning of particular buyers' use of          dischargeable mortgages for their  down payments.  During several          closings Landman was asked by  buyers about the second mortgages.          On one occasion,  he told the buyer that he  "didn't want to know          anything about it."   At other times, Landman  gestured in a  way          that one buyer described as trying to say "not in front of me."                    This  evidence is  sufficient to  support the  district          court's  willful blindness  instruction.   The  attempt to  avoid          discussion  of dischargeable  mortgages  with the  buyers can  be          interpreted as a "pattern of behavior predicated upon a knowledge          of  the conspiracy  together with a  desire to  limit inculpatory          evidence of complicity."   United States v.  Ciampaglia, 628 F.2d                                     _____________     __________          632, 643 (1st  Cir.), cert.  denied, 449 U.S.  956, 1038  (1980).                                ____   ______                                        ____________________          74    We  reject the  argument  that  proof  of direct  knowledge          precludes  a  willful  blindness instruction  that  is  otherwise          appropriate.  As long as separate and distinct evidence  supports          a  defendant's  deliberate   avoidance  of   knowledge  and   the          possibility  exists that the jury does not credit the evidence of          direct   knowledge,  a  willful   blindness  instruction  may  be          appropriate.   See  Lizotte, 856  F.2d at  343; United  States v.                         ___  _______                     ______________          Ochoa-Fabi n, 935 F.2d 1139, 1142 (10th Cir. 1991), cert. denied,          ____________                                        ____  ______          112 S. Ct. 1565 (1992).                                         -96-          The actual  instructions given by the district  court were proper          and  cannot  be  misunderstood   as  mandating  an  inference  of          knowledge.  See St.  Michael's, 880 F.2d at 585  (finding similar                      ___ ______________          language proper);  United States  v. Ochoa-Fabi n, 935  F.2d 1139                             _____________     ____________          (10th  Cir. 1991), cert. denied,  112 S. Ct.  1565 (1992) (same);                             ____  ______          United  States v.  Hiland, 909  F.2d 1114,  1130 (8th  Cir. 1990)          ______________     ______          (same).    Significantly,  the court  said  the  jury "may  infer                                                                 ___          knowledge"  (emphasis added) and that it was "entirely up to" the          jury to  find deliberate blindness.  See Ciampaglia, 628  F.2d at                                               ___ __________          642.75                    Unlike the  case against Landman, the  evidence did not          warrant  a  willful blindness  instruction  for  the other  seven          defendants.  This left the trial judge with a difficult decision.          He could either, (1) give  no willful blindness instruction  even          though  it  was  warranted; (2)  give  the  instruction  only for          defendant Landman and thus highlight the evidence against him; or          (3) give a general instruction for all the defendants.  We do not          think the judge erred by choosing the third option.                                        ____________________          75  The holding in United States  v. Mankani, 738 F.2d 538, 547 &                             _____________     _______          n.1 (2d Cir. 1984) does not apply in this case.  First of all, at          most,  Mankani  stands  for   the  specific  proposition  that  a                 _______          "conscious  avoidance" instruction  cannot be  used  to establish          membership in a  conspiracy and not the more  general proposition          that the instruction is  never proper in a conspiracy case.   The          willful blindness instruction  in this  case had to  do with  the          finding that "defendant acted knowingly"  and not with a  finding          that defendant willfully joined the conspiracy.  In any event, to          the extent our holding in this case differs from that in Mankani,                                                                   _______          we  agree  with the  Seventh  Circuit  that a  willful  blindness          instruction  can  be permissible  with  respect  to a  conspiracy          charge.   United States  v.  D az, 864  F.2d 544,  549 (7th  Cir.                    _____________      ____          1988), cert. denied,  490 U.S. 1070 (1989) (citing  United States                 ____  ______                                 _____________          v. Kehm, 799 F.2d 354, 362 (7th Cir. 1986)).             ____                                         -97-                    Assigning  error to  the district  court's decision  to          give  the general  instruction puts  the court  in an  impossible          position  because  the  government  is entitled  to  the  willful          blindness  instruction as to Landman and the judge is entitled in          turn to give an instruction that  would not turn the spotlight on          a single defendant.  On the  facts of this case, we are satisfied          that the jury could be expected to apply the instruction properly          to defendants  whose conduct arguably calls  for that application          and not randomly or  recklessly to defendants who do  not deserve          the instruction.  It is common during multi-defendant trials  for          the  court  to  give  a number  of  boilerplate  instructions  --          concerning,   for  example,   a  missing   witnesses,  accomplice          liability,  or  withdrawal  from   the  conspiracy  --  that  are          pertinent,  on particular facts, to only one defendant and not to          the  others.   The instruction  in this case  is similar  in many          respects to  these other instructions and  is equally appropriate          given the risk of prejudice  to the other defendants is low.   We          do  not exclude  the possibility  that, on  particular facts,  it          might so mislead  a jury  to give a  general instruction,  rather          than  one  tailored to  a specific  defendant  or rather  than no          instruction at  all, as  to be  an abuse  of  discretion, but  we          emphasize that judgments  of this kind are primarily entrusted in          the  trial judge  who  inevitably has  a  superior feel  for  the          dynamics of the trial and the likely reaction of the jury.                    The danger of an improper willful blindness instruction          is  "'the possibility  that  the jury  will  be led  to  employ a                                         -98-          negligence standard and convict  a defendant on the impermissible          ground  that he  should have  known [an  illegal act]  was taking          place.'"  United  States v.  Littlefield, 840 F.2d  143, 148  n.3                    ______________     ___________          (1st Cir.),  cert. denied,  488 U.S.  860 (1988) (quoting  United                       ____  ______                                  ______          States v. White, 794  F.2d 367, 371 (8th Cir.  1986)) (additional          ______    _____          citation omitted).  In this case, as in Littlefield,  840 F.2d at                                                  ___________          147-48, the willful blindness  instruction clearly had little, if          any, effect  on the jury's verdict.   First of all,  unlike those          cases  where  insufficient  facts  were present  to  support  any          willful blindness  instruction at all,  see,  e.g., United States                                                  ___   ____  _____________          v.  Barnhart, 979 F.2d 647, 651-53 (8th Cir. 1992); United States              ________                                        _____________          v. Alvarado, 838 F.2d 311, 316 (9th Cir. 1987), cert. denied, 487             ________                                     ____  ______          U.S.  1222 (1988),  this case  involved an  instruction  that was          proper for at least one  defendant.  The jury had an  opportunity          to  correctly apply  the  instruction  and  was  less  likely  to          improperly   consider  a   defendant's   willful   blindness   in          conjunction  with  facts  that  only supported  that  defendant's          direct knowledge, or complete lack of knowledge.  Thus, there was          little  risk  that  the  jury  was  confused  into  convicting  a          defendant  who  merely  should  have  known  about  the  criminal          venture.  See United States v.  D az, 864 F.2d 544, 551 (7th Cir.                    ___ _____________     ____          1988); see also Rivera, 944 F.2d at 1570-71.                 ________ ______                    In  addition,  the  instructions  properly  and clearly          directed  the jury not to find knowledge based on mere negligence          and extensively instructed  the jury as  to the requirements  for          finding  knowing  participation  in  the  conspiracy  and knowing                                         -99-          execution  of bank fraud.   See Littlefield, 840  F.2d at 147-48;                                      ___ ___________          D az, 864  F.2d at 551.  The court instructed the jury that "mere          ____          negligence  or mistake  in  failing to  learn  the facts  is  not          sufficient" and that  a defendant's willful  ignorance had to  be          deliberate   beyond  a   reasonable   doubt.     Throughout   the          instructions,  the court told the jury that the government had to          prove each and  every element  of the  offenses, including  those          elements  requiring knowledge,  beyond a  reasonable doubt.   For          example, knowing participation in  the scheme to defraud required          the  actions  of  each  defendant  to  be  "done  voluntarily and          intentionally  and not  because of  mistake or  accident or  some          other  innocent reason."    The court  was  clear that  to  prove          participation in a  conspiracy, the government  must show that  a          "defendant  knew  of  the  existence of  the  conspiracy  and its          unlawful  purpose"  and  the  court  added  that  "knowledge  and          willfulness like  all of the  other elements  of a crime  must be          established beyond a reasonable doubt."  Twice the district court          explained that actual proof of knowledge was essential "to insure          that no one will be convicted for  an act that he or she did  not          intend to  commit  or the  nature  of which  he  or she  did  not          understand."                    The instructions,  taken as  a whole,  went a long  way          toward curing any possible prejudice that may  have resulted from          the willful blindness instruction.  As evidence of this, the jury          delivered  verdicts  that demonstrated  it  was  not confused  or          affected by the willful  blindness instruction.  Three defendants                                        -100-          were acquitted on  multiple bank  fraud counts and  a fourth  was          acquitted  on one  count of  bank fraud.   Defendant  Landman was          acquitted  on one count in which  the principal witness testified          that  Landman  did not  want to  know  about the  second mortgage          discharges.  Thus, it appears that the jury declined to apply the          willful blindness instruction when  it was given the first  clear          opportunity to do so.  We therefore find no error  in the court's          decision to give a general willful blindness instruction.                        X.  REHEARING OF TESTIMONY BY THE JURY                        X.  REHEARING OF TESTIMONY BY THE JURY                    Defendant Gauvin assigns error to  the district court's          failure to read back certain testimony to the jury in response to          the jury's request.  Four days into the jury's deliberations, the          jury  asked to  rehear  several areas  of  testimony.   One  jury          request stated:  "We would  also like to review the testimony  of          Mr. Marderosian  concerning  a  meeting   in  which  Mr.  Gauvin,          Mr. Granoff and Mr. Brandon  discussed the purchase of  Pidge and          Meeting  Street."  As several  references were made  to Pidge and          Meeting Street it  was not  clear which discussion  the jury  was          referring to.  The court and  the attorneys spent nearly two days          trying  to cull together the parts of the transcript that related          to all of the requested subject  matter.  At one point, the court          suggested,  and  the prosecutor  later  argued,  that the  entire          transcript of  Marderosian's testimony should be  provided to the          jury, but counsel for Granoff objected to this suggestion.                    The court read to  the jury a portion  of Marderosian's          testimony relating to Pidge  and Meeting Street and to  a meeting                                        -101-          where  the Pidge project was discussed.  Against the objection of          Gauvin's counsel,  the court stopped reading  the transcript just          before testimony concerning  additional meetings relating to  the          same deal as the  one involving Pidge and Meeting  Street but not          specifically mentioning  Pidge  or Meeting  Street.   We find  no          abuse of discretion  in the  trial judge's decision  not to  read          additional portions of the transcript.                     The decision  to reread  testimony rests  entirely upon          the trial  court's sound discretion.   United States  v. Akitoye,                                                 _____________     _______          923  F.2d 221, 226 (1st  Cir. 1991); United  States v. Argentine,                                               ______________    _________          814  F.2d 783,  787  (1st Cir.  1987)  (citing United  States  v.                                                         ______________          Almonte,  594 F.2d 261,  265 (1st Cir.  1979)).  The  exercise of          _______          that  discretion  should not  be  disturbed  absent good  reason.          Argentine, 814 F.2d at 787.              _________                    In this  case, the trial judge, with advice of counsel,          reviewed  the record  for two  days in  order to  locate material          responsive  to  the jury's  request.   Faced  with a  request for          testimony  relating to  a meeting  discussing "Pidge  and Meeting          Street" and  faced with multiple references to  Pidge and Meeting          Street  in  the  record,  the judge  decided  to  read  testimony          concerning  a meeting where Pidge  was mentioned but  not to read          testimony relating  to a  subsequent meeting  in which Pidge  and          Meeting Street were  not mentioned.  We find  this decision to be          appropriately within the judge's discretion.                    The fact that the  omitted testimony concerned the same          deal as the one  involving Pidge and Meeting Street  and the fact                                        -102-          that  it   also  contained   some  discussion  of   down  payment          arrangements  does not suggest any abuse of discretion.  First of          all, to the extent  the omitted testimony is crucial  to Gauvin's          defense,  as  he  claims,  we  find  the  testimony  to  be  more          inculpatory  in nature  than  exculpatory.76   More  importantly,          the  judge was  attempting  to respond  appropriately  to a  jury          request that  turned out to be  far from narrowly  focussed.  See                                                                        ___                                        ____________________          76  The omitted testimony included the following:                      A.  Mr.  Brandon explained to  Mr. Gauvin                      and Mr. Granoff that  Homeowners required                      a  twenty-five  percent down  payment and                      while  that  down  payment  would  not be                      required of Mr.  Gauvin and Mr.  Granoff,                      he  did  have  the  problem  of  the down                      payment with subsequent purchasers and he                      asked  Mr. Gauvin  and  Mr.  Granoff  for                      their assistance in meeting that problem.                      Q.   What,  if anything  did  Mr.  Gauvin                      respond?                      A.   Mr. Gauvin, as I  recall, initially,                      didn't quite understand what  Mr. Brandon                      wanted  and  after  further  explanation,                      Mr. Gauvin  responded  that  he might  be                      interested  under  some circumstances  in                      helping out.                      Q.  What about Mr. Granoff?                      A.  I  believe Mr. Granoff indicated  his                      consent also.             Defendant  Gauvin claims  this  testimony was  crucial to  his          defense  because   it  corrects  a   mischaracterization  in  the          government's closing  argument about what Marderosian  said about          the down payments.   Defense counsel explicitly told the  jury to          review the  testimony regarding the  alleged mischaracterization.          We have some doubts,  given the request for a  meeting concerning          "Pidge  and Meeting  Streets," that  this particular  request was          related  to the issue of the alleged mischaracterization.  In any          event, we find  no abuse  of discretion in  the judge's  decision          that the omitted material was not what the jury was looking for.                                        -103-          Akitoye, 923 F.2d at 226.  The extra burdens on the court created          _______          by rehearing testimony is  relevant to judging the reasonableness          of the court's  refusal to read back testimony to  the jury.  See                                                                        ___          id.   If  the  trial judge  had  searched for  all  the testimony          __          related to the deal involving Pidge and Meeting Street or all the          discussions of down payment arrangements for that deal, the judge          would have had to spend considerably more time and effort than he          had already expended.  Such extra effort was not required.                      XI.  REFUSAL TO APPOINT PARALEGAL FOR BRANDON                    XI.  REFUSAL TO APPOINT PARALEGAL FOR BRANDON                    Defendant Brandon alleges that the trial court's denial          of his request for a court-appointed paralegal denied him his due          process right to present a defense.  Prior to the indictment, the          Federal Bureau of Investigation took possession of 137 file boxes          from Dean Street's offices which contained documents kept by Dean          Street.  Although Brandon was given complete access to the files,          he claims  that without the  services of  a paralegal he  and his          court-appointed attorney were incapable of meaningfully examining          the  contents of  the files,  effectively denying  him access  to          potentially exculpatory  evidence.  Brandon and  his attorney did          spend four hours one afternoon examining the contents of three of          the file boxes.                    Defendant cites Brady v.  Maryland, 373 U.S. 83 (1963),                                    _____     ________          and its progeny for  the proposition that his due  process rights          were  violated.   Brady requires  the government to  disclose any                            _____          exculpatory  evidence  that is  "material either  to guilt  or to          punishment."   Brady, 373 U.S. at  87.  Before we  even reach the                         _____                                        -104-          issue  of  whether the  lack  of  paralegal services  effectively          constituted a failure of the  government to disclose evidence, we          must first  consider whether  the defendant established  that the          file  boxes contained potentially  exculpatory, or even material,          evidence in the first place.                    To  establish a  violation of  Brady, a  defendant must                                                   _____          provide  the  court with  some indication  that the  materials to          which he  or she  needs access contain  material and  potentially          exculpatory evidence.  See United States v. Bagley, 473 U.S. 667,                                 ___ _____________    ______          674 (1985); cf.  United States v.  Mateos-S nchez, 864 F.2d  232,                      __   _____________     ______________          240 (1st Cir. 1988) (holding that a Criminal Justice Act rule, 18          U.S.C.    3006A(e)(1),  which  provides  for  the  provision   to          defendants of necessary investigative or other services, requires          a  defendant  to make  at least  some  showing why  the requested          assistance would  produce evidence "likely  to be pivotal  to his          defense").  In  his initial  request before the  trial court  and          subsequently on  appeal, the  defendant speculated that  the Dean          Street files  might contain exculpatory evidence.   Brandon never          presented,  however,  any  supporting  evidence  or  arguments to          indicate this was,  in fact, the  case.  Because Brandon  did not          make  any  showing  at  all  as to  the  nature  of  the disputed          materials, we find no  error in the court's refusal to  appoint a          paralegal for Brandon's defense.                    This  is not  a Catch-22  situation in  which defendant          cannot make the initial showing needed to get a paralegal without          first having a paralegal to assist in making the initial showing.                                        -105-          Instead, the  defendant can  establish the possible  existence of          material  and  exculpatory  evidence   by,  at  the  very  least,          describing the kinds of  documents that might be in  files which,          if  they were found, might  exculpate the defendant.77   At most,          defendant and  counsel  could have  spent a  few more  afternoons          looking in the files for representative samples of documents that          might be useful to the defense.  We do not think this  places too          much of a burden on defendant or defendant's counsel.                          XII.  CUMULATIVE EFFECT OF ERRORS                          XII.  CUMULATIVE EFFECT OF ERRORS                    Defendants argue that the cumulative effect of numerous          alleged  errors made before and during the trial deprived them of          a fair trial and enabled the  jury to convict despite the lack of          evidence against each  individual defendant.   Our review of  the          record and trial proceedings as a whole does not reveal pervasive          unfairness or  any error or  combination of errors  that deprived          the defendants of due process.  See United States v. Barnett, 989                                          ___ _____________    _______          F.2d 546,  560 (1st Cir.),  cert. denied, 114 S.  Ct. 148 (1993);                                      ____  ______          United States v.  Steffen, 641  F.2d 591, 598  (8th Cir.),  cert.          _____________     _______                                   ____          denied,  452 U.S. 943 (1981).   We thus  conclude that defendants          ______          received a fair trial.                                  XIII.  SENTENCING                                  XIII.  SENTENCING                                        ____________________          77  Brandon posits in his brief that the files may have contained          a letter from Bay  Loan acknowledging that no down  payments were          required.  This example was  not pointed out to the  trial judge.          Even if the  example was  presented at trial,  however, it  would          probably not, by itself, be sufficient to establish the existence          of   material  exculpatory   evidence  without   some  additional          substantiation.   Defendant made no  claim as to  the probability          such a letter exists  nor provided an affidavit that  he received          such correspondence.                                        -106-                       A.  Amount of Loss and Relevant Conduct                    Defendants  attack  the district  court's determination          and  apportionment  of  Bay  Loan's  losses  for  the purpose  of          calculating  their sentences  under the  Sentencing Guidelines.78          The district court set the offense level for each defendant based          on  the actual  loss  to Bay  Loan resulting  from the  scheme to          defraud.  See  U.S.S.G.    2F1.1; United States  v. Haggert,  980                    ___                     _____________     _______          F.2d 8, 11-12 (1st Cir. 1992).  The court  arrived at a figure of          $11.4 million by reducing the outstanding principal amount of the          fraudulently obtained end loans by, among other things, the value          of the collateral used  to secure them.  The court  then included          the  entire amount  of  the  loss  in  the  calculation  of  each          defendant's offense  level under    2F1.1.   The resulting  total          offense level was set by adding an 11-level  increase to the base          offense  level because  the total  loss was over  $5,000,000, the          highest  point on  the  loss  scale at  that  time.   U.S.S.G.             2F1.1(b)(1).                    The  defendants first  challenge  the district  court's          valuation of the collateral used to  secure the loans.  We review          the valuation for  clear error.   United States v.  St. Cyr,  977                                            _____________     _______          F.2d 698, 701 (1st Cir. 1992).  Determination of actual loss need          not be precise; "[t]he court need only make a reasonable estimate          of the range of loss, given the available information."  U.S.S.G.            2F1.1 comment note 8.                                        ____________________          78  The district court applied the 1988 version of the Sentencing          Guidelines   and  therefore   all  citations,   unless  otherwise          indicated, are to that version.                                        -107-                    The court  determined the value of  the collateral used          to secure the loan  after an evidentiary hearing with  respect to          the amount of loss.   At this hearing, the court heard  testimony          by Bay Loan's president and a real estate appraiser called by the          defense.  The court also reviewed exhibits containing information          on the value of each of the motel condominiums.  Defendants argue          that the  $2.7 million dollar figure  chosen by the  court as the          total value of  the collateral (the motels) was  improperly based          on a  1991 appraisal as opposed to  an earlier 1989 appraisal for          $7.8  million.    Defendant  seems  to  argue  that  the  earlier          appraisal is the more accurate one because  it was made closer to          the time of the  crime and because  the latter appraisal is  more          likely to be  affected by  causes not related  to the actions  of          defendants.   Given  the  evidentiary basis  -- a  professionally          prepared  appraisal --  for  the trial  court's determination  of          loss, however, we do not see any error, let alone clear error, in          the court's  decision  to  choose  the  lower  valuation  of  the          collateral.                     A  more significant  objection  raised by  many of  the          defendants  is that the court improperly assigned to each of them          the  entire value  of  the loss  regardless  of their  degree  of          participation  in the scheme to defraud Bay Loan.  The Guidelines          provide   that  for  conspiracy   convictions,  relevant  conduct          "includes conduct in furtherance of the conspiracy that was known          to or was reasonably  foreseeable by the defendant."   U.S.S.G.            1B1.3(a)(1)  comment note 1;  see also United  States v. O'Campo,                                        ________ ______________    _______                                        -108-          973 F.2d  1015, 1023  (1st Cir. 1992).   This  language has  been          subsequently clarified  to state  that relevant  conduct includes          "all  reasonably  foreseeable acts  and  omissions  of others  in          furtherance  of  the   jointly  undertaken  criminal   activity."          U.S.S.G.    1B1.3(a)(1)(B), 1993 Guidelines.   The  clarification          was designed  to highlight the  distinction between the  scope of          criminal liability  and the  scope of sentencing  accountability.          Regardless,  "[t]he  central  concept  then  is  foreseeability."          O'Campo, 973 F.2d at 1023.          _______                    There is first the question in this case of whether the          district  court applied the  correct standard  of foreseeability.          Defendants argue  that instead  of limiting the  determination of          losses  that each  individual defendant  could foresee  solely to          those  losses  connected  with   the  criminal  activity  that  a          particular  defendant agreed  to jointly  undertake,79 the  court          simply held all  the defendants  responsible for  all the  losses          attributable to the entire  scope of the conspiracy.   See, e.g.,                                                                 ___  ____          United States v.  Lanni, 970 F.2d 1092 (2d Cir.  1992).  While it          _____________     _____          is true that the criminal venture a defendant intended to join is                                        ____________________          79   The  1993  Guidelines  define, in  a  rather  unilluminating          fashion,  "criminal activity the  particular defendant  agreed to          jointly  undertake" as  "the scope  of the  specific  conduct and          objectives embraced  by the  defendant's agreement."   U.S.S.G.            1B1.3 comment note  2, 1993 Guidelines.  The  Guidelines go on to          point out  that "the criminal activity that  the defendant agreed          to jointly  undertake, and the reasonably  foreseeable conduct of          others  in  furtherance  of   that  criminal  activity,  are  not          necessarily  identical."  Id.  In other words, one can reasonably                                    __          foresee conduct in furtherance of an agreed upon  enterprise even          though  one did not specifically agree to join in that particular          conduct.  Id.                    __                                        -109-          not necessarily the same  as the scope of the  entire conspiracy,          U.S.S.G.   1B1.3  comment note  2, 1993 Guidelines,  there is  no          reason why a defendant cannot intend to join and thus foresee the          operation  of   the  entire   conspiracy.    As   the  Guidelines          acknowledge,   the  two   can   be  coterminous,   although  "not          necessarily" so.                    In  this case, the district court did find the scope of          the  conspiracy  and the  scope  of  the  foreseeable conduct  in          furtherance  of  each  defendant's  jointly  undertaken  criminal          activity  to  be  the  same.    The  judge  held  the  defendants          responsible for "acts of co-conspirators to the extent that those          acts were  committed in furtherance  of the  conspiracy and  were          known  to or reasonably foreseeable by the Defendant."  The judge          then  recited  all  the  actions taken  by  each  defendant which          indicated  they were  involved  in  the  entire  breadth  of  the          conspiracy.80    Most telling  is  the  judge's statement  during          sentencing that "the agreement that each [defendant] entered into          was  to participate in a  continuing scheme to  obtain loans from          Bay Loan  by means  of fraudulent misrepresentations."   Although          the sentencing judge  did not employ all  the expository language          recently added to the  Guidelines, it is evident from  the record          that  he conducted the proper analysis.   We thus see no error in                                        ____________________          80   This is not a  case where the sentencing  court merely found          that the  defendant "knew what was  going on."  See  O'Campo, 973                                                          ___  _______          F.2d  at 1025.   The judge in this  case recounted specific facts          regarding  each individual  defendant which  indicated that  each          defendant  embraced the full scope  of the scheme  to defraud Bay          Loan.  See id. at 1025-26 n.11.                 ___ __                                        -110-          the district court's application of the Guidelines.                    Several  defendants contend  that some  portion of  the          loss  was  not  foreseeable  to  them  because  of their  limited          participation in the scheme.   Each claims the court  should have          reduced by some unspecified amount  the loss attributable to  him          or  her as  relevant  conduct.    The  determination  of  what  a          defendant can  foresee for  the purposes of  determining relevant          conduct at sentencing is inherently fact-bound and, consequently,          reviewable only  for clear error.   United States  v. Innamorati,                                              _____________     __________          996 F.2d 456, 489 (1st Cir. 1993).                    All the defendants, except Hagopian, Ward  and Kumalae,          were  involved in the  scheme to defraud  Bay Loan from  the very          beginning.    Before  the  scheme  was  first  executed,  Brandon          discussed  with Reisch methods  to avoid making  down payments on          the end  loans.   The first  unit sales were  made to  Gauvin and          Granoff  with Landman acting as escrow agent.  The involvement of          these defendants continued  throughout the scheme and we  find no          clearly discernable limits  to the scope of  the criminal venture          in  which they agreed to participate such that the district court          erred in finding all the losses from the entire conspiracy  to be          foreseeable.   The fact that  Gauvin and Granoff  stopped lending          down payment funds after  February of 1988 does not  absolve them          of responsibility for the continued actions of  the conspiracy to          obtain more  loans from Bay Loan.   The issue is  not whether the          two continued to  commit acts  in furtherance of  the scheme  but          whether, at  the time  of the relevant  conduct, they  reasonably                                        -111-          could  have  foreseen the  actions of  the  other members  of the          conspiracy.       The   evidence,    particularly   the   ongoing          correspondence with  Brandon made until  the end  of the  scheme,          clearly indicates that  Gauvin and Granoff not only could foresee          the continued sale of condominium units, they actually knew about          it.81                    We have  recently held that a  defendant's base offense          level cannot be based  on knowledge of historic facts.   O'Campo,                                                                   _______          973 F.2d at  1022-26.  Thus,  with respect to Hagopian,  Ward and          Kumalae, losses attributable to fraudulent activity that occurred          before  they   became  involved  in  the   conspiracy  cannot  be          considered as relevant  conduct.   See id.   The judge's  error82                                             ___ __          in  this regard, however, had no effect  on their sentences so we          find no reason for reversal on this issue.                    Hagopian  and  Ward  did  not become  involved  in  the                                        ____________________          81  We disagree with Gauvin and Granoff that the evidence clearly          indicates some kind of withdrawal from the conspiracy so that the          scope  of the  criminal venture  in which  they  participated was          limited  to something less than the entire conspiracy.  The trial          judge carefully considered this  issue and we see no  clear error          in his rejection of their arguments.             Similar arguments are made by Hagopian, Ward and Reisch to the          effect that they were not responsible for sales arranged by other          brokers  or  funded  by  other  people.    These   arguments  are          unavailing.  The  defendants agreed to participate in  the entire          operation,  even  though  their  individual role  may  have  been          limited  to  a  specific  function  within  the  broader  scheme.          Consequently, only a showing of  the foreseeability of the  other          co-conspirators'   conduct  is  required  to  find  that  conduct          relevant  for  sentencing  purposes.     That  standard,  as  the          sentencing judge correctly found, was clearly met.          82  We  note that, to  the district judge's  credit, the  O'Campo                                                                    _______          decision  settling this issue was not handed down until after the          judge conducted the sentencing of the defendants in this case.                                        -112-          conspiracy  until  after  October  of  1987,  after  all  of  the          Charlestown  units had already been  sold.  Kumalae  did not join          until after some units had already been sold  at the Bayside, the          second motel  involved in the  scheme.  It  may well be  arguable          that the total losses to Bay Loan resulted from conduct occurring                         ______          after  the  participation  of   these  three  defendants.    When          Hagopian, Ward  and Kumalae joined the  conspiracy, payments were          being  made on the  end loans.   It was  not until the  scheme to          defraud expanded to more and more condominium units that it began          to  collapse under its own  weight as additional  loan funds from          Bay Loan were required to pay off  the existing obligations.  The          conduct of Hagopian, Ward  and Kumalae, therefore, contributed to          the overall losses to  Bay Loan which took  place when the  loans          defaulted.                    More importantly, however, even if the losses resulting          from the loans  made for  the Charlestown and  Bayside units  are          excluded  from  the  loss  calculation  for  Hagopian,  Ward  and          Kumalae,  the  total would  still be  well  over $5  million, the          highest level  under the  1988 version  of U.S.S.G.    2F1.1.   A          lion's share of the loans  were made for units in the  five other          motels  after  all  the  defendants had  joined  the  conspiracy.          Therefore, any error in  apportioning losses was harmless because          it   did  not  affect   the  offense   level  assigned   to  each          defendant.83                                        ____________________          83  We also find no error in the district court's refusal to take          into account multiple causes for Bay Loan's losses in determining          the  sentences.     "'[T]he  victim  loss  table  in  U.S.S.G.                                           -113-                B.  Upward Adjustments for More Than Minimal Planning                    Defendants  Granoff, Ward  and Landman  argue that  the          district  court committed  clear  error by  imposing a  two-level          increase  in   their   offense  levels,   pursuant  to   U.S.S.G.            2F1.1(b)(2)(A), for  more than minimal planning.84   "More than          minimal planning" is defined as:                      [M]ore  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 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, comment note 1(f).                    We  review   the  district  court's   minimal  planning                                        ____________________          2F1.1(b)(1) presumes that the  defendant alone is responsible for          the entire amount of victim loss specified in the particular loss          range  selected  by the  sentencing  court.'"   United  States v.                                                          ______________          Shattuck, 961  F.2d 1012,  1016 (1st  Cir. 1992)  (quoting United          ________                                                   ______          States v.  Gregorio, 956  F.2d 341,  347 (1st  Cir. 1992)).   The          ______     ________          Guidelines treat multiple causation only as a possible ground for          downward departure -- a matter within the sound discretion of the          sentencing court.  Shattuck, 961 F.2d at 1017; Gregorio, 956 F.2d                             ________                    ________          at  346-48.  In this  case, the sentencing  court, upon extensive          consideration  of the issue, declined to  grant such a departure.          None of  the  factors  that  defendants  point  to  as  allegedly          contributing  to  Bay Loan's  losses  are  so  compelling  as  to          convince us that the court erred in reaching its decision.          84   To the extent defendant Gauvin also appeals this decision by          reference  in his brief to arguments made by the other defendants          we find no error.   As there is no error with regard to defendant          Granoff,  there can also be no error for Gauvin whose involvement          in the scheme  was greater than  Granoff's.  The same  applies to          defendant Hagopian  whose involvement was  greater than defendant          Ward's.                                        -114-          assessment only for clear error.  United States v. Beauchamp, 986                                            _____________    _________          F.2d  1, 5 (1st  Cir. 1993).   We are  not inclined  to reverse a          finding of more than minimal planning unless the evidence compels          the conclusion that defendant's  actions were purely opportune or          "spur of the  moment."  Gregorio, 956 F.2d at  343; United States                                  ________                    _____________          v. Fox, 889 F.2d 357, 361 (1st Cir. 1989) ("We cannot conceive of             ___          how obtaining even  one fraudulent  loan would  not require  more          than minimal planning.").                    In light of the rather complex and sophisticated scheme          involved in  this case,  we find any  assignment of error  to the          sentencing  judge's ruling  that the  defendants engaged  in more          than  minimal planning to be  rather far-fetched.   In any event,          the judge made more than adequate findings based on the record to          support  his  decision.   The  judge  found  that  Ward took  the          initiative  to find buyers for the scheme and helped falsify down          payments which constituted "repeated acts" over a period of time.          Ward protests that there  is no evidence that he  "initiated" any          of the contacts  with the buyers.  This is  mere quibbling.  Ward          was actively involved in the recruitment process, he told  buyers          no  down payments were required,  he told buyers  to provide down          payments  checks that  he knew  would not  be negotiated,  and he          provided buyers with  rebates for  their purchases.   Any one  of          these  facts  would  support  a  finding  of  more  than  minimal          planning.                     As for defendant Granoff, the district court found that          the scheme to  defraud Bay  Loan involved more  planning than  is                                        -115-          typical  for  commission  of  the  offense  in  its  simple form.          Looking at the scheme as a whole, this fact is indisputable.  But          this  fact is  also  true when  viewed  from the  perspective  of          Granoff's specific  involvement.  Granoff first  met with Brandon          in  the summer  of 1987  to discuss  the condominium  project and          eventually he agreed  to purchase  some units and  to fund  buyer          down  payments.   Pursuant to  this agreement,  Granoff purchased          four units in August of  1987 in which funds were recycled  via a          sophisticated  arrangement.    Five  months  later,  he  provided          $470,000 to Dean Street on the understanding it would be returned          to him  after it was used to fund buyers' down payments.  Granoff          also  formed  a partnership  with Gauvin  to  invest in  the Dean          Street project.   All of these  activities reflect a  significant          level of involvement in the  scheme.  We therefore find no  error          in his case.                    Finally,   the  sentencing  judge  found  that  Landman          engaged  in  "repeated acts"  during the  scheme  in his  role as          escrow  agent   or  closing  attorney   for  most  of   the  loan          transactions.  There is no basis for any error in his case.            C.  Denial of Role-In-The-Offense Decrease for Marvin Granoff                    Defendant Granoff claims the  court erred in finding he          was not a minor  participant and thus not entitled to  a decrease          in his offense level pursuant to U.S.S.G   3B1.2(b).  "[A]  minor          participant means  any participant who is less culpable than most          other  participants." U.S.S.G.    3B1.2(b)  comment note  3, 1993          Guidelines.  No defendant,  however, is automatically entitled to                                        -116-          a  reduction, even if the  defendant happens to  be less culpable          than his or her co-defendants.  United States v. Valencia-Lucena,                                          _____________    _______________          925 F.2d 506, 514 (1st Cir. 1991); United  States v. Rexford, 903                                             ______________    _______          F.2d  1280, 1282 (9th Cir. 1990).  The sentencing court has broad          discretion  in determining  whether  this downward  departure  is          appropriate   and  we   will   reverse  only   if  the   evidence          overwhelmingly demonstrates that the defendant played a part that          makes   him  substantially   less  culpable   than  the   average          participant  in  the  convicted  offense such  that  the  court's          decision  was  clearly erroneous.    Gregorio, 956  F.2d  at 344;                                               ________          United States v. Ocasio, 914 F.2d 330, 333 (1st Cir. 1990).          _____________    ______                    Although the district court found that Granoff was less          culpable than the  major participants in the scheme like Brandon,          the  court found that  Granoff did play  more than  a minor role.          The $470,000 Granoff provided  to fund buyer down payments  was a          significant contribution to the  scheme to defraud Bay Loan.   We          find  that the record  supports the court's  finding that Granoff          was not less culpable than most of the other defendants let alone          substantially  less culpable  than  an average  defendant and  we          therefore affirm Granoff's sentence.85                                        ____________________          85    Granoff also  claims  that the  district  court erroneously          failed  to  depart  downward  based   on  his  age  and  physical          condition, pursuant to U.S.S.G.   5H1.1 and   5H1.4.  This  issue          is not properly before the court because defendant did not seek a          downward departure on this  basis during sentencing.  See  United                                                                ___  ______          States v.  Slade, 980 F.2d 27, 30 (1st  Cir. 1992).  The issue of          ______     _____          age and health were raised only with respect to the  range of the          sentence  and to  bail  pending  appeal.    Thus,  the  issue  of          departure based on  age and physical condition was  not preserved          for appeal.                                        -117-               D.  Costs of Supervised Release and Special Assessments                    The government correctly concedes  that our decision in          United States v. Corral, 964 F.2d 83, 84 (1st Cir. 1992) mandates          _____________    ______          that  we find erroneous the  court's decision to  impose costs of          supervised  release on five  defendants found to  be indigent for          purposes of a punitive fine.  We therefore reverse the imposition          of supervised release costs on defendants Brandon, Ward, Landman,          Hagopian, and Kumalae.                    Brandon further argues that because he is indigent, the          district court was without  authority to order him to  pay either          restitution or the  statutory assessments.  In  imposing an order          of restitution,  the district court  must consider  not only  the          amount  of the victim's loss but also "the financial resources of          the  defendant, the financial  needs and  earning ability  of the          defendant and the defendant's  dependents, and such other factors          as the court  deems appropriate."   18 U.S.C.    3664(a);  United                                                                     ______          States v. Savoie, 985 F.2d 612, 618 (1st Cir. 1993).          ______    ______                    In  this  case,  the  sentencing  judge considered  the          required factors  and, without  error, arrived at  the conclusion          that a $500,000  restitution order, payable after  the three year          period of supervised release, was appropriate.  Specifically, the          judge  stated:   "[I]n arriving  at that  figure, Mr.  Brandon, I          recognize that based on the pre-sentence report, you don't appear          to have  any assets at the  present time but it  appears that you          have the prospect of  receiving or inheriting some assets  in the          future."   The court also  noted that a  man of Brandon's talents                                        -118-          ought to be able to obtain gainful employment upon release.                    Although the  restitution order may be  burdensome, and          although it  may be true to  some extent that "if  a defendant is          indigent  for purposes  of one  [fine], he  must be  indigent for          purposes of the other."  United States v. Labat 915 F.2d 603, 607                                   _____________    _____          (10th  Cir. 1990),  we  do not  think  Corral's ban  on  imposing                                                 ______          certain  fines on  indigent  defendants  extends  to  restitution          orders.   Corral  dealt specifically  with  the interplay  of two                    ______          provisions of the United States Sentencing Guidelines, U.S.S.G.            5E1.2(a) and    5E1.2(i).  Corral, 964  F.2d at 84.   We found in                                     ______          that case that because  the fine imposed under   5E1.2(i)  was an          additional fine  to be instituted  only in  conjunction with  the          punitive fine imposed under    5E1.2(a), the former could  not be          imposed  once  the  latter  was  waived  because  of  defendant's          indigency.   Id.  In the case of restitution, however, a separate                       __          statutory  scheme has  been  established which  includes its  own          independent  consideration of  defendant's  ability to  pay.   18          U.S.C.   3664.  Therefore,  the district court's determination of          indigency  under  U.S.S.G    5E1.2(a)  in  the  present  case  is          independent of and does not affect its ruling on restitution.86                    The judgments are affirmed  except that the judgment of                    _______________________________________________________                                        ____________________          86    To the  extent Brandon  also  challenges the  $50 statutory          assessment  fee imposed  for each count  (totaling $1300)  by the          district court pursuant to  18 U.S.C.   3013,  we find no  error.          The assessment fee is  mandatory; the judge has no  discretion to          waive  it based on  the defendant's ability  to pay  nor does the          Constitution require him to do so.  United States v.  Nguyen, 916                                              _____________     ______          F.2d 1016, 1020  (5th Cir. 1990); United States  v. Rivera-V lez,                                            _____________     ____________          839 F.2d 8, (1st Cir. 1988).                                        -119-          conviction of defendant Ward on Counts 24 and 25 and the judgment          _________________________________________________________________          of  conviction of defendant Landman  on Counts 23  through 26 are          _________________________________________________________________          vacated  and their  cases  are remanded  for  resentencing.   The          _________________________________________________________________          district court's  imposition of costs for  supervised release are          _________________________________________________________________          vacated  for  defendants  Brandon,  Landman,  Hagopian,  Ward and          _________________________________________________________________          Kumalae.          _______                                        -120-
