
USCA1 Opinion

	




          November 25, 1996 UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 95-2176                                    UNITED STATES,                                      Appellee,                                          v.                                   JEROME E. ROYAL,                                Defendant - Appellant.                                 ____________________                                     ERRATA SHEET               The opinion of  this court  issued on November  12, 1996  is          amended as follows:               On  page  2, line  8 delete  sentences  that read:  "We also          vacate and  remand the restitution order  for findings regarding,          and sentencing for, only those losses that Royal reasonably could          have foreseen.  We affirm on all other points."                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 95-2176                                    UNITED STATES,                                      Appellee,                                          v.                                   JEROME E. ROYAL,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                                Boudin, Circuit Judge,                                        _____________                           and Barbadoro,* District Judge.                                           ______________                                _____________________               James E.  Carroll, by  Appointment of  the Court,  with whom               _________________          Erin K. Kelly and Cetrulo & Capone were on brief for appellant.          _____________     _________________               Nadine  Pellegrini, Assistant  United States  Attorney, with               __________________          whom  Donald K. Stern, United  States Attorney, was  on brief for                _______________          appellee.                                 ____________________                                  November 12, 1996                                 ____________________                                        ____________________          *  Of the District of New Hampshire, sitting by designation.                    TORRUELLA,  Chief  Judge.     Appellant  Jerome   Royal                    TORRUELLA,  Chief  Judge.                                ____________          ("Royal")  makes  several claims  on  appeal.   Specifically,  he          challenges  the denial of his motions  relating to jury selection          and jury instructions, the sufficiency of the evidence supporting          his conviction,  and sentencing considerations.   For the reasons          discussed  below, we  reverse  the denial  of  Royal's motion  to          inspect  the master  jury  wheel and  remand  to allow  Royal  to          inspect the master jury wheel and other relevant records.                                      BACKGROUND                                      BACKGROUND                                   Factual History                                   Factual History                    We  briefly   sketch  out   the  bare  facts   of  this          conspiracy, providing facts related specifically to Royal as they          become relevant.    Considering the  evidence in  the light  most          favorable to the verdict,  United States v. Kayne, 90  F.3d 7, 13                                     _____________    _____          (1st Cir. 1996), the jury could have found the following.  EZ-EM,          Inc., was  a distributorship  for Andover Tractor  Trailer School          ("ATTS"),  a  correspondence  school in  Methuen,  Massachusetts.          ATTS was  party to  a  program participation  agreement with  the          Department of Education to participate in the PELL grant program,          the Guaranteed  Student Loan program,  the Plus program,  and the          Supplemental Loans  for Students  program.  Under  the agreement,          ATTS must require a maximum time frame in which students complete          a  course with  a minimum  grade average.   ATTS  entered  into a          series of distributors' agreements whereby each distributor would          refer students to enroll in ATTS's program.                                         -2-                    Darryl Simmes,  the financial  aid officer for  ATTS at          EZ-EM, testified that  he also  acted as a  recruiter for  EZ-EM.          Simmes worked at ALAT,  another distributor affiliated with ATTS,          prior to joining EZ-EM.   Simmes testified that, at  ALAT, when a          student he recruited did not meet the minimum requirements of the          program, he falsified the student's application to make it appear          that  he  met those  requirements.    These minimum  requirements          included possessing  a driver's  license and making  less than  a          certain income  to be eligible for financial  aid.  Later, at EZ-          EM, Simmes  would contact  a student he  had recruited to  sign a          student loan check made  out to both the student and  the school.          These  students were  told  that they  would  not incur  debt  by          signing the check and, often, later found that they had defaulted          on loans  they were not  aware they  had taken out.   During  the          course  of EZ-EM's  existence,  the  distributorship enrolled  at          least 150 students.                    Sometimes, EZ-EM provided students  with a set of exams          including answers,  requesting  that a  newly registered  student          sign off on the exams.  Other times, the tests  were forwarded to          the student already completed.  The completed forms would then be          returned to ATTS.   EZ-EM also supplied students with  answers to          later lessons, sometimes  mailing these lessons to students.  EZ-          EM would inform students that they must sign the lessons or  risk          being thrown out of  the program.  Employees  of EZ-EM paid  some          students to  enroll  in the  ATTS  program.   ATTS paid  EZ-EM  a          commission of $600-$700 per student enrolled.                                         -3-                                  Procedural History                                  Procedural History                    A  grand jury  indicted Royal  on October  7, 1992,  on          charges of conspiracy  to commit  mail fraud in  violation of  18          U.S.C.    371, mail fraud in  violation of 18 U.S.C.    1341, and          aiding and abetting in violation  of 18 U.S.C.   2.  On March 13,          1995,  the scheduled  day  of trial,  a petit  jury venire  of 53          appeared for impanelment.   Royal, a black male, orally  moved to          strike  the jury  venire.   The  court  granted this  motion  and          rescheduled the trial for one week from that date.                    On March 15, Royal filed a motion to inspect the master          jury wheel for the years  from 1993 to 1995.  The  following day,          Royal filed a Motion to Strike Jury Venire, which argued that the          district's  jury  selection plan  systematically  excludes blacks          from the jury pool.  The district court  deferred ruling on these          motions until Royal could  make a proffer demonstrating that  the          jury plan systematically excluded blacks.                    On  March 20,  1995,  trial commenced  in the  district          court.  After viewing  the jury venire, Royal renewed  his motion          to strike  the jury venire.   Royal  further moved for  a hearing          with respect to the inadequacies of the Amended Jury Plan for the          Eastern Division of the  District of Massachusetts ("Amended Jury          Plan").  In support  of his various motions, Royal  submitted two          affidavits from Dr. Gordon Sutton,  Professor of Sociology at the          University of Massachusetts at  Amherst, which contended that the          Amended  Jury  Plan  systematically  excluded  blacks  and  other          minorities from the  jury venire.  The district  court determined                                         -4-          that  it did  not have statutory  authorization to  implement the          remedy Royal suggested -- supplementing the jury venire such that          it would provide  a fair  cross-section of the  community --  and          denied Royal's motions.                    Following  the close  of  the government's  case, Royal          moved  for judgment  of acquittal  on all  counts.   The district          court  granted  the motion  only as  to  Count 24,  charging mail          fraud.  After a six day  trial, the jury returned guilty verdicts          on one  count of conspiracy and eight  counts of mail fraud, with          verdicts of  not guilty  on four counts  of mail fraud.   Royal's          sentence  included 27 months  imprisonment, 36  months supervised          release, and restitution of $30,000.  This appeal followed.                                      DISCUSSION                                      DISCUSSION                                  I.  Jury Selection                                  I.  Jury Selection                                      ______________                    Appellant Royal asserts  that he was unconstitutionally          denied his right to a jury selected at random from  a fair cross-          section of the  community, as guaranteed by the  Sixth Amendment.          Taylor v. Louisiana, 419 U.S.  522, 528 (1975).  That  same right          ______    _________          is ensured by the Jury Selection and Service Act of 1968.  See 28                                                                     ___          U.S.C.    1861 et seq. (1994).                         __ ____                    A.   Motion to Inspect the Master Jury Wheel Records                    A.   Motion to Inspect the Master Jury Wheel Records                         _______________________________________________                    "To  the  extent  that [Royal's]  contentions  rest  on          statutory interpretations, we review  the district court's denial          of [Royal's] motion de novo. .  . .  The district court's factual          findings,   however,  will  not   be  disturbed   unless  clearly                                         -5-          erroneous."   United  States v.  Bailey, 76  F.3d 320,  321 (10th                        ______________     ______          Cir.), cert. denied, __ U.S. __, 116 S. Ct. 1889 (1996).                 ____________                    At  the first  hearing,  held on  March  15, 1995,  the          district court stated  that the request before it was essentially          a  request  for an  evidentiary hearing  to  extend the  scope of          requested evidence to include discovery of the master jury wheel.          The court then placed the burden on Royal to show "by a factually          supportable submission  that there  is some reasonable  basis for          supposing  that the matters you're  asking to get  into will have          some material bearing  upon a decision I am to make."  Transcript          of  hearing,  March  15, 1995,  at  6.    Because  Royal made  no          factually supportable  showing of relevance  and materiality, the          district court denied the motion to inspect.                    On  a second motion  to inspect  the jury  records, the          district court  suggested that, in order to inspect the requested          records, Royal  was required to make  a showing that he  would be          able  to satisfy the three prongs  of Duren v. Missouri, 439 U.S.                                                _____    ________          357  (1979).   Under Duren, in  order to establish  a prima facie                               _____          violation of  the fair cross-section  requirement, "the defendant          must  show (1)  that  the  group  alleged to  be  excluded  is  a          'distinctive' group in the community; (2) that the representation          of this group  in venires from which  juries are selected is  not          fair and reasonable in relation to the number of such persons  in          the community;  and (3) that  this underrepresentation is  due to          systematic exclusion of the group in the jury-selection process."          Id.  at 364.   The  district court  expressed concern  that Royal          ___                                         -6-          would  not  be  able  to  satisfy  the  third  prong  by  showing          systematic  exclusion.   Accordingly,  it  deferred ruling  until          Royal  could make  a  showing that  would  enable the  court  "to          determine  whether we  are  doing something  that is  potentially          useful  or  instead  doing  something  that's  just  a  waste  of          resources  because  it  will   not  be  useful  in  any   event."          Transcript of Hearing, March 17, 1995, at 15-16.                    Under the Sixth Amendment, a defendant has the right to          a  jury  selected from  a  source  fairly representative  of  the          community.  See Taylor v. Louisiana, 419 U.S. 522, 527-28 (1975).                      ___ ______    _________          Section 1867  of Title  281 establishes  "the exclusive  means by                                        ____________________          1  Section 1867 of Title 28 states, in relevant part:                      (a)    In criminal  cases, before  the voir                    dire begins, or within  seven days after  the                    defendant    discovered    or   could    have                    discovered, by the exercise of diligence, the                    grounds therefor, whichever  is earlier,  the                    defendant  may move to dismiss the indictment                    or  stay the  proceedings against him  on the                    ground of substantial failure to  comply with                    the provisions of this title in selecting the                    grand or petit jury. . . .                                        * * *                      (d)  Upon motion filed under subsection (a)                    .  . .  of this  section, containing  a sworn                    statement  of  facts  which, if  true,  would                    constitute  a  substantial failure  to comply                    with the provisions of this title, the moving                    party shall be entitled to present in support                    of  such motion  the  testimony  of the  jury                    commission  or  clerk,   if  available,   any                    relevant  records and  papers  not public  or                    otherwise   available   used   by  the   jury                    commissioner or clerk, and any other relevant                    evidence. . . .  If the court determines that                    there  has  been  a  substantial  failure  to                    comply with  the provisions of this  title in                                         -7-          which a person accused of a Federal crime . . . may challenge any          jury on the ground  that such jury was not selected in conformity          with the provisions of [the Title]."  28 U.S.C.   1867(e) (1994).          In Test v. United  States, 420 U.S. 28 (1975),  the Supreme Court             ____    ______________          interpreted the relevant statutory language of section 1867.  See                                                                        ___          Test, 420  U.S. at 30.   Before voir  dire examination  or within          ____          seven days after the defendant could  have discovered the grounds          for a challenge, a  defendant may move to dismiss  the indictment          or stay  the proceedings for  substantial failure to  comply with          the  provisions of the title.  28  U.S.C.   1867(a).  The statute          requires that the challenge be  accompanied by "a sworn statement          of  facts which, if true, would  constitute a substantial failure          to comply with" these provisions.  28 U.S.C.   1867(d).  Relevant          to our inquiry here, subsection (f) of section 1867 provides that          "[t]he  parties . . . shall be allowed to inspect, reproduce, and                                        ____________________                    selecting  the petit  jury,  the court  shall                    stay the proceedings pending the selection of                    a petit jury in conformity with this title. .                    . .                                        * * *                      (f)  The contents of records or papers used                    by the jury commission or clerk in connection                    with the  jury selection process shall not be                    disclosed,  except  pursuant to  the district                    court  plan or  as  may be  necessary in  the                    preparation or presentation of a motion under                    subsection (a) . . . of this section . . .  .                    The  parties in  a case  shall be  allowed to                    inspect, reproduce, and  copy such records or                    papers at  all  reasonable times  during  the                    preparation   and   pendency   of    such   a                    motion. . . .          18 U.S.C.   1867 (1994).                                         -8-          copy  such records or papers  at all reasonable  times during the          preparation and pendency of such a motion."  28 U.S.C.   1867(f).          It is this particular subsection with which the Supreme Court was          concerned in Test and which is dispositive of Royal's challenge.                       ____                    In  Test, the  district  court denied  the  defendant's                        ____          motion to  inspect the jury selection records pursuant to section          1867(e).   Test,  420 U.S. at  29.  The  Supreme Court determined                     ____          that the  language in subsection (e)  established "essentially an          unqualified right  to inspect  jury  lists."   Id. at  30.   This                                                         ___          interpretation was supported "not  only by the plain text  of the          statute, but  also by the  statute's overall purpose  of insuring          'grand  and petit  juries selected  at random  from a  fair cross          section of the community.'"  Id. (quoting 28 U.S.C.   1861).  The                                       ___          Court  admonished that, without  such access, a  litigant will be          unable  to determine whether he has a meritorious claim.  See id.                                                                    ___ ___          We adhere to and  apply the Supreme Court's determination  that a          defendant,  such  as   Royal,  challenging  the  jury   selection          procedures has an unqualified right to inspect jury records.                    Because the  right of access to  jury selection records          is "unqualified," a district  court may not premise the  grant or          denial of a  motion to inspect upon a showing of probable success          on  the merits of a  challenge to the  jury selection provisions.          See  Test,  420 U.S.  at  30.   Although  the  burden  is on  the          ___  ____          defendant  to establish  a prima  facie case  of unconstitutional          exclusion,  see United States  v. Pion, 25  F.3d 18,  22 n.4 (1st                      ___ _____________     ____          Cir.), cert. denied, __ U.S. __, 115 S. Ct. 326 (1994), the right                 ____________                                         -9-          of access to the  jury selection records  is a precursor to  this          burden and is intended to provide the defendant with the evidence          necessary  to mount a  proper showing.   To avail  himself of the          right of access to  jury selection records, a litigant  need only          allege  that he  is  preparing a  motion  to challenge  the  jury          selection process.  See United States v. Alden, 776 F.2d 771, 773                              ___ _____________    _____          (8th  Cir.  1985).    The  district court,  therefore,  erred  in          requiring  Royal to  make a  showing of  probable success  on the          merits of his jury selection challenge as a condition of granting          access to the records.                    Furthermore,  a  district  court  may  not   require  a          defendant requesting  access to jury selection  records to submit          with that request  "a sworn  statement of facts  which, if  true,          would  constitute  a  substantial  failure  to  comply  with  the          provisions  of this title."  28 U.S.C.   1867(d).  The procedural          mechanisms of  the jury  selection provisions require  the moving          party to submit a sworn statement to support a motion to strike a          jury venire  or challenge the  selection processes; such  a sworn          statement  is not  required to  support a  motion to  inspect the          records.  See  id.  The  Supreme Court has  established that  the                    ___  ___          right of access is "unqualified."  The Eighth Circuit, faced with          an appeal of the nature of Royal's, recognized that,                    [a]lthough the district  court's analysis  is                    persuasive, the district court is not free to                    establish   additional    requirements   that                    defendants must  meet in order to gain access                    to jury selection records.  The Supreme Court                    has  unequivocally stated  that the  right to                    inspect   these   records   is   'essentially                    unqualified' and is  conditioned only in  the                                         -10-                    manner  set forth  in the  statute.   Test v.                                                          ____                    United States, 420 U.S. at 30.                    _____________          Alden,  776 F.2d  at 775.   Thus,  while the  district court  may          _____          establish reasonable procedures whereby  the inspection may  take          place, the district  court does not have  discretion to formulate          additional requirements beyond those  established by the statute.          Id.          ___                    Nevertheless, we find that  this error does not require          that we reverse Royal's  conviction.  Rather, we remand  the case          with  instructions to allow  Royal access  to "[t]he  contents of          records  or  papers  used by  the  jury  commission  or clerk  in          connection with the jury selection process," 28 U.S.C.   1867(f),          in order to support a motion to strike the jury venire.  If Royal          determines that the Amended Jury Plan violates the jury selection          procedures  required under  the statute,  he may  move for  a new          trial under 28 U.S.C.   1867(a).   See United States v.  Marcano-                                             ___ _____________     ________          Garc a, 622 F.2d  12, 18 (1st Cir. 1980).   If the district court          ______          finds that the  Amended Jury Plan violates the constitutional and          statutory  requirements, the  court may  order a  new trial.   28          U.S.C.   1867(d).                    B.   The Evidentiary Hearing                    B    The Evidentiary Hearing                         _______________________                    As a  remedy  for the  allegedly unconstitutional  jury          selection  process, Royal  seeks  an evidentiary  hearing on  the          merits  of his  claim.   As we  noted  above, the  district court          treated Royal's motion to strike the jury venire as a request for          an evidentiary hearing regarding the contents of the  master jury          wheel.   The district  court sought  from Royal  a  showing by  a                                         -11-          factually supportable submission that  the documents Royal sought          would have a material bearing on the jury selection challenge.                    In  the normal  motions  context, a  "party seeking  an          evidentiary hearing must  carry a fairly  heavy burden."   United                                                                     ______          States v. McGill, 11 F.3d 223, 225 (1st Cir. 1993).  When a judge          ______    ______          denies a  party's request for  an evidentiary hearing,  we review          that determination for  abuse of  discretion.   United States  v.                                                          _____________          Jim nez  Mart nez, 83  F.3d 488,  498 (1st  Cir. 1996);  see also          _________________                                        ________          United States v. Garc a, 954 F.2d 12, 19 (1st Cir.  1992) (noting          _____________    ______          that a  criminal defendant  "is  not entitled  to an  evidentiary          hearing upon demand").                    Here,  the  district  court  denied the  motion  for  a          hearing because it found  that Royal failed to show that he could          meet the third prong of the Duren test.   However, Royal's motion                                      _____          was  made  without the  benefit of  information  to which  he was          entitled as a matter of law.   On remand, if Royal is able to use          this  information on the jury selection process to show a factual          dispute  that, if  resolved in  his favor,  would entitle  him to          relief, then he would be entitled to an evidentiary hearing.                    C.   Motion to Strike the Jury Venire                    C    Motion to Strike the Jury Venire                         ________________________________                    Because Royal was erroneously denied access to the jury          selection documents,  his arguments  in support of  his challenge          are not fully developed.  At this time, our consideration of  the          merits of his  challenge would  be premature.   We remand to  the          district court Royal's  jury selection challenge  so that it  may          review Royal's claim in  the first instance, after a  full record                                         -12-          has been developed.   See Davidson v.  Sullivan, 942 F.2d 90,  96                                ___ ________     ________          (1st Cir.  1991) (adopting a similar posture).  We do not pass on          the merits of Royal's claim.                      II.  Jury Instruction on Conspiracy Charge                      II.  Jury Instruction on Conspiracy Charge                           _____________________________________                    Royal  contends   that   the  district   court's   jury          instruction on the  charge of  conspiracy was in  error and  that          error  lessened  the  government's   burden  of  proof  beyond  a          reasonable  doubt.  In deciding whether the trial court submitted          erroneous instructions  to the  jury, we "determine  whether [the          instruction]  tended  to  confuse  or  mislead  the  jury  on the          controlling issues."  Brown v. Trustees of Boston Univ., 891 F.2d                                _____    ________________________          337,  353 (1st Cir. 1989), cert. denied, 496 U.S. 937 (1990).  We                                     ____________          consider the instructions "as  a whole; portions of it are not to          be treated in isolation."  Id.  We find that the instructions, as                                     ___          a  whole, were not erroneous.   In fact,  as discussed below, the          double intent  instruction may  have heightened  the government's          burden.  Consequently, not only did the instruction not prejudice          Royal, it in fact benefitted Royal.  There was no error.                    The statutory  provision under which  Royal was charged          finds a  violation of the law "[i]f  two or more persons conspire          either to commit  any offense  against the United  States, or  to          defraud the United States, or any agency thereof in any manner or          for any purpose,  and one or more  of such persons do any  act to          effect the object  of the conspiracy .  . . ."   18 U.S.C.    371          (1966).    The  district court's  instruction  on  the charge  of          conspiracy was, in pertinent part, as follows:                                         -13-                      In order to establish that the defendant is                    guilty  of  this  charge of  conspiracy,  the                    Government   must   prove   these   essential                    elements beyond a reasonable doubt:                      First:   That two or more persons knowingly                    conspired,  combined or  agreed to  commit an                    offense  against  the   United  States,   the                    purpose of  which was to  commit mail  fraud,                    and  that  the   conspiracy  was  formed   or                    existing at or about  the time alleged in the                    indictment.                      Second:   That the defendant  knowingly and                    intentionally   became   a   member  of   the                    conspiracy.                      Third:    That  one  of   the  conspirators                    knowingly did some  act to effect the  object                    of the conspiracy.                                        * * *                      The  intent that the  Government must prove                    beyond  reasonable  doubt  to  establish  the                    charge  of  conspiracy  in  this case  is  an                    intent  to   defraud   as  alleged   in   the                    indictment.   It  is not  necessary, however,                    for the Government to  prove an intent on the                    part of  the defendant to  participate in all                    parts or aspects of the conspiracy.                                        * * *                      There are  two  aspects of  the intent  the                    Government  must  prove  beyond a  reasonable                    doubt.                      First, the Government must prove the intent                    to agree to be a member of the conspiracy.                      Second,  the  Government  must   prove  the                    intent to participate in the commission of at                    least one of the substantive offenses.          Transcript  at 6-49--6-54.   Royal,  in his  brief, sets  out the          following portion  of the  instructions in  support of  his claim          that the district court erred in its instructions to the  jury on          the required intent of conspiracy:                                         -14-                      It  is not  required  that  the  Government                    prove, in  order to establish  the conspiracy                    offense, that the defendant had the intent to                    commit  personally  all  of  the  substantive                    crimes  that  were within  the object  of the                    conspiracy.      Stated   another  way,   the                    requirement is that the Government prove both                    an  intent to  agree to  be a  member of  the                    conspiracy  and  an  intent   to  participate                    personally in the commission  of at least one                    of the substantive offenses.          Id.  at 6-54.    Reviewing this  instruction,  we find  that  the          ___          district court's  instructions, by using language  that imposes a          higher  burden on the government  than the law  requires, did not          prejudice Royal.   Therefore,  reversal of Royal's  conviction is          not warranted.                    Royal claims that this  court has applied two different          definitions of conspiracy, and  that the district court's attempt          to  reconcile the conspiracy precedents led to the error of which          he now complains.   Royal  contends that the  controlling law  in          this circuit requires the government to prove that Royal intended          to enter into  the agreement forming the conspiracy  and intended          to commit the substantive offense.  In so arguing, Royal misreads          this court's precedents.                    The Supreme Court has said that "[i]n a conspiracy, two          different types  of intent are  generally required  -- the  basic          intent to agree, which is necessary to establish the existence of          the conspiracy, and the more traditional intent to effectuate the          object of the conspiracy."  United States v. United States Gypsum                                      _____________    ____________________          Co., 438  U.S. 422, 443 n.20  (1978).  It is  by now well-settled          ___          that  the government need  not prove that  the defendant intended                                         -15-          personally to commit  the substantive crime  or crimes that  were          the object of the  conspiracy.  United States  v. Piper, 35  F.3d                                          _____________     _____          611, 615 (1st Cir. 1994),  cert. denied, 115 S. Ct. 1118  (1995).                                     ____________          Piper plainly refutes Royal's argument that he was entitled to an          _____          instruction that  he  intended to  commit multiple  acts of  mail          fraud.   The  district court's  instruction that  "the government          must  prove the  intent to  participate in  the commission  of at          least  one  of  the   substantive  offenses"  was,  if  anything,          generous, and we find no error prejudicing Royal's rights.                          III.  Sufficiency of the Evidence                          III.  Sufficiency of the Evidence                                ___________________________                    Finding   that  the  legal   principles  were  properly          presented  to  the jury,  we turn  to  Royal's argument  that the          evidence  was  insufficient   to  sustain  his   convictions  for          conspiracy and mail fraud.   Royal contends first that  there was          no  evidence of his knowledge of the conspiracy and "virtually no          evidence" that he engaged in fraudulent conduct in furtherance of          the  conspiracy to  defraud the  government  and the  students he          enrolled in the program.   Royal also argues that  the government          failed to  prove that he had  the specific intent to  defraud the          Department  of  Education  required  to support  his  mail  fraud          conviction.  We first review the evidence presented to the jury.                    "In  assessing a  challenge to  the sufficiency  of the          evidence, we 'review the record to determine whether the evidence          and  reasonable inferences therefrom, taken as a whole and in the          light most favorable to  the prosecution, would allow  a rational          jury  to determine beyond  a reasonable doubt  that the defendant                                         -16-          [was]  guilty as charged.'"   United States v.  Sullivan, 85 F.3d                                        _____________     ________          743, 747 (1st Cir. 1996) (quoting United States v. Mena-Robles, 4                                            _____________    ___________          F.3d 1026, 1031 (1st Cir.  1993), cert. denied sub nom., __  U.S.                                            _____________________          __, 114 S. Ct. 1550 (1994)).                    Drawing  all  reasonable  inferences  in  favor  of the          verdict, the  jury could have  found the following  about Royal's          involvement in the EZ-EM conspiracy.  Appellant    Royal    began          working for EZ-EM in December 1988.  At the beginning of 1989, he          replaced  Darryl  Simmes as  financial  aid  officer at  EZ-EM  a          position  paid by  ATTS.   At  the time  he  held that  position,          financial   aid  officers  were   prohibited  from   engaging  in          recruitment activities.   While serving as  financial aid officer          at EZ-EM Royal also engaged in recruitment activities.                    For each student he enrolled in the ATTS program, Royal          received  a $100-$125  commission.   For  this commission,  Royal          would pay  current students to bring  in others to enroll  in the          program.   Royal  also paid  students to  enroll in  the program.          Royal was given a copy of the answers to provide students to help          them complete the  ten lessons required  upon enrollment.   Royal          was aware  that many of the students who signed up did not intend          to complete the ATTS program, but merely signed up to receive the          twenty dollars he  paid them.  Because  of this, he often  either          gave  students  copies  of  the answer  sheets  or  completed the          students' tests himself.  Royal gave at least two students copies          of  the  answers to  the  tractor  trailer correspondence  course          lessons,  which were completed and  sent to ATTS.   Sometimes, he                                         -17-          instructed students to change a few of the answers so that  their          test scores would  not consistently equal one  hundred.  Although          the first set of lessons were provided when  a student signed up,          thereafter the  tests and  sometimes the  answers were mailed  to          students.                    A student receiving federal  financial aid for the ATTS          program was required  to have received  no prior federal  student          loans.   When  signing  up  students  for  financial  aid,  Royal          instructed those who  had previous federal student  loan debt not          to  list  the debt  on their  financial  aid applications.   Upon          Royal's arrival  at EZ-EM  Darryl Simmes  explained to  Royal the          procedure by  which student loan  checks would  be signed,  which          included  paying  others  to  assist  the  school  in  getting  a          "reluctant  student" to  sign  a check.    At times,  Royal  paid          students twenty dollars  to sign  the loan checks.   Royal  would          sometimes explain to students  that, by signing the  loan checks,          they  would  be  able to  return  the  checks  and eliminate  the          indebtedness.     In  addition,   Royal  obtained  the  endorsing          signatures  of students on the  back of student  loan checks that          they did not  know they were  endorsing or would  be liable  for.          The  students often were not  told when they  entered the program          that they would  have to pay up  front or that they  would need a          loan  prior to moving  on to the  next level of  the course work.          Royal told  one student  that the  check was  being sent back  to          ATTS, but that EZ-EM needed his signature to send it back.  Royal          did not inform him that he would incur debt by signing the check.                                         -18-          Two  other  students  later   received  statements  in  the  mail          referring  to a loan that they had  unknowingly taken out.  Royal          accompanied recruiters  whose role it  was to  talk the  students          into  signing  over  the  loan  checks  to  the  school.    These          recruiters, however, did not explain to the students that signing          the loan checks would result in their incurring debt.  Royal also          witnessed Emmet Cotter,  the owner of  EZ-EM, using a  flashlight          and  later a xerox machine to trace student signatures on various          documents.  At one  point, Cotter also requested that  Royal sign          three checks totalling $30,000 so that Royal could be paid.                    Royal signed up students for the tractor trailer course          who  did not have valid  drivers' licenses.   When this occurred,          Royal would simply  make up  a driver's license  number.   Simmes          explained  to Royal that,  when he recruited  students, he should          leave blank  responses on the applications of students who stated          that  they did  not  have a  driver's license  or  that they  had          previously obtained financial aid.  Cotter explained to Royal how          to  make up  a  driver's license  number,  which Royal  did  when          filling out applications for those students who did not possess a          driver's  license.     He  completed  applications   using  false          information, including misstating an applicant's criminal record.                    A.   Conspiracy Charge                    A.   Conspiracy Charge                         _________________                    The evidence  on this record sufficiently  supports the          jury's guilty verdict on  the conspiracy charge.  The  conspiracy          count charged Royal with engaging in a conspiracy "[t]o knowingly          devise and execute a scheme and artifice to obtain money by means                                         -19-          of false  and fraudulent pretenses, representations  and promises          and, for the purpose  of executing and attempting to  execute the          scheme," engaging in mail fraud.  As will  be discussed below, we          find  the evidence sufficient to convict Royal of mail fraud, the          substantive offense charged in this conspiracy.                    In  order to prove a conspiracy under section                    371, the government must prove  the existence                    of a conspiracy, the defendant's knowledge of                    and  voluntary participation  in it,  and the                    commission of an overt  act in furtherance of                    the agreement.  . . . The  agreement need not                    be proved  to have been explicit,  and may be                    proved by circumstantial evidence.          United  States v. Frankhauser, 80  F.3d 641, 653  (1st Cir. 1996)          ______________    ___________          (citations  omitted).    To prove  voluntary  participation,  the          government must prove that  the defendant had an intent  to agree          and an  intent to effectuate the  object of the conspiracy.   See                                                                        ___          Piper, 35 F.3d at 615; see also Frankhauser, 80 F.3d at 653.  "To          _____                  ________ ___________          uphold a conviction, the  court need not believe that  no verdict          other than a guilty  verdict could sensibly be reached,  but must          only  satisfy itself that the  guilty verdict finds  support in a          plausible rendition of the record."  United  States v. Echeverri,                                               ______________    _________          982  F.2d 675,  677  (1st  Cir.  1993)  (citations  and  internal          quotations omitted).                    The  evidence  here,  taken  together  and drawing  all          reasonable inferences therefrom,  supports Royal's conviction for          conspiracy.   The jury  could  have concluded  that a  conspiracy          existed  whereby the  employees of  EZ-EM defrauded  the students          whom  they  signed up  for student  loans  and, in  that process,          utilized  the United States' mails.   Furthermore, the jury could                                         -20-          have  found that  Royal  intended  to  agree  to  engage  in  the          conspiracy  and   intended  to  effectuate  the   object  of  the          conspiracy.    Based on  the  circumstantial  evidence, including          testimony that  Royal  engaged  in acts  in  furtherance  of  the          conspiracy,  that he described  to others his  fraudulent acts in          furtherance of  the conspiracy,  and gained financially  from his          own  acts  and  those  of  his co-conspirators,  the  jury  could          conclude  that  Royal  had  an  intent  to  agree  with  his  co-          conspirators.   In addition,  from the  evidence that  Royal paid          students  to enroll in the program, paid students to sign student          loan  checks,  told students  who  signed  loan checks  that,  by          signing  the check,  they  would not  incur debt,  forged student                                           ___          drivers' license numbers, and misstated students' past government          loan history and criminal records, the jury  could have concluded          that he did so with an  intent to defraud these students and used          the  mails  in  doing  so.    All  of  these  served  as acts  in          furtherance  of the conspiracy to  defraud.  Here,  Royal did not          merely know  of his fellow  employees' illegal activities.   See,                                                                       ___          e.g., United States v. Soto, 716 F.2d 989, 991-92 (2d Cir. 1983).          ____  _____________    ____          Royal took steps necessary  to effectuate the illegal conspiracy.          Accordingly,  Royal's  conviction  on  the  conspiracy  count  is          supported by sufficient evidence.                    B.   Mail Fraud                    B.   Mail Fraud                         __________                    Second, Royal complains  that his convictions on  eight          counts of mail fraud  were not supported by  sufficient evidence.          "To prove mail . .  . fraud, the government must prove,  beyond a                                         -21-          reasonable  doubt:    (1)  the defendant's  knowing  and  willing          participation in  a scheme or  artifice to defraud  with specific          intent  to  defraud, and  (2)  the use  of  the mails  .  .  . in          furtherance of the  scheme."   United States v.  Sawyer, 85  F.3d                                         _____________     ______          713, 723 (1st Cir. 1996).   "The defendant need not instigate the          scheme  so  long as  he willfully  participates  in it,  with the          knowledge of its fraudulent nature and with the intent to achieve          its  illicit objectives."  United States v. Yefsky, 994 F.2d 885,                                     _____________    ______          891-92 (1st Cir.  1993).   A particular defendant  need not  have          placed a specific item into the mails.  It is enough that the use          of  the  mails took  place in  the  ordinary course  of business,          Pereira v. United States, 347 U.S. 1, 8 (1954), or was reasonably          _______    _____________          foreseeable as a result  of the conspiracy participants' actions,          Yefsky, 994 F.2d at 892.          ______                    Here, documents  in which  Royal included  misstated or          fraudulent information were sent to ATTS.   Even if Royal did not          place those documents  into the  mails, it follows  that, in  the          ordinary  course  of  business,  admissions  and federal  student          financial aid applications  completed by Royal  would be sent  to          ATTS, the  information from those  applications would be  sent to          the  Department of  Education,  and information  from the  school          would be sent to the students.  It also follows that student loan          checks would  be sent  through the mails.   The  jury could  have          reasonably found that it was reasonably foreseeable by Royal that          the mails would be utilized to perpetrate this scheme to defraud.                                         -22-                    The scheme to defraud in this case consisted of actions          on the part of  EZ-EM employees to convince  students to sign  up          for  the ATTS program, apply for federal student loans, loans for          which  they sometimes did not  qualify, incur debt  that they did          not realize they would be obligated to repay, and to mislead some          students to believe that  they would not incur debt  by endorsing          the  loan  checks.    As  a  result  of  these  acts,  ATTS  paid          commissions to EZ-EM.   From these commissions, the  employees of          EZ-EM  who perpetrated the acts to defraud the students were paid          salaries or commissions.   The jury  could reasonably have  found          that  these acts constituted a scheme to defraud the students EZ-          EM enrolled in ATTS.                    Royal  contends  that the  government  was required  to          prove  that  he had  the specific  intent  to defraud  the United          States Department of Education.   Although the indictment against          Royal charges him  with "a  scheme to defraud  the United  States          Department  of  Education,  and  the   students  and  prospective          students  of ATTS," the government was not required to prove that          he intended to defraud  the Department of Education specifically.          The statute requires only that there be a scheme to  defraud, see                                                                        ___          18  U.S.C.   1341,  and we  have  required only  a  showing of  a          specific intent to  defraud.   United States v.  Sawyer, 85  F.3d                                         _____________     ______          713, 723 (1st  Cir. 1996).  The jury  could have reasonably found          that Royal had a specific intent to engage in a scheme to defraud          the students.  This is all that is  required.  Royal's conviction          on the  mail fraud  counts is supported  by sufficient  evidence.                                         -23-          Because  the government  met its  burden by  showing a  scheme to          defraud  the students, we do  not address whether  it also proved          that Royal had  a specific  intent to defraud  the Department  of          Education.                      IV.  Application of Sentencing Guidelines                      IV.  Application of Sentencing Guidelines                           ____________________________________                    Royal next directs  several challenges at  the district          court's application of the  United States Sentencing  Guidelines.          We  review a  district court's  factual determinations  under the          guidelines for clear error and legal conclusions de novo.  United                                                           _______   ______          States  v. Balogun, 989 F.2d 20, 22  (1st Cir. 1993).  We address          ______     _______          each challenge in turn.                    A.   Mitigating Role -- Section 3B1.2                    A.   Mitigating Role -- Section 3B1.2                         ________________________________                    Royal contends that  his role in the commission of this          conspiracy  was of such a  lesser degree of  culpability than his          co-conspirators' that  the district court erroneously  denied his          motion  for a downward departure.  "We first note that defendants          are not automatically entitled to a downward adjustment, whatever          their  role in  the crime."   Balogun,  989 F.2d  at 22-23.   The                                        _______          Sentencing Guidelines allow a four level departure for one who is          a minimal  participant, meant to  apply to those  "defendants who          are plainly among  the least  culpable of those  involved in  the          conduct of a group."  U.S.S.G.   3B1.2, application note 1.  This          departure  is meant to be  used infrequently.   U.S.S.G.   3B1.2,          application note 2.   The Guidelines allow a two  level departure          for one who is a minor participant in the criminal activity; this          departure  is  meant to  apply to  "any  participant who  is less                                         -24-          culpable than  most other participants, but whose  role could not          be  described as minimal."  U.S.S.G.   3B1.2, application note 3.          Where  the defendant's conduct falls between  these two levels of          culpability, a downward departure of three levels may be awarded.          U.S.S.G.   3B1.2.                    "The  defendant has  the burden  of showing that  he is          entitled to a reduction in his offense level under   3B1.2 .  . .          .   On  appeal, the  defendant must  establish that  the district          court's determination  was clearly erroneous."   United States v.                                                           _____________          Cartagena-Carrasquillo, 70 F.3d  706, 716 (1st  Cir. 1995).   The          ______________________          record   on  which   the   district  court   based  its   factual          determination  of  Royal's  role  in this  offense  supports  the          finding that Royal was neither a minimal nor a minor participant.          Royal's role in the  EZ-EM operation was integral.   He recruited          students  for a program for which EZ-EM, and in turn Royal, would          receive  monetary commissions.   Royal  falsified information  on          school applications  and federal  student loan applications.   He          was  responsible  for   obtaining  student  signatures  endorsing          student  loan  checks.    Indeed,  Royal  even  misled  some into          believing that by endorsing  the check they would be  relieved of          any indebtedness.   All of these acts were integral to the scheme          to   defraud  the   students  and   the  co-conspirators   gained          financially as a result.  The district court also was entitled to          find that Royal had  knowledge of and intent to further the scope          and  all aspects of  the conspiracy.   We cannot  find that Royal          played  a less significant role or that he was less culpable than                                         -25-          his  co-conspirators in  effecting the scheme  to defraud.   See,                                                                       ___          e.g., Santiago-Gonz lez, 66 F.3d  3, 8 (1st Cir. 1995).  Based on          ____  _________________          these  findings,   we  cannot  say  that   the  district  court's          sentencing determination was clearly erroneous.                    Royal  compares   his  situation  to   cases  in  which          conspirators were  granted downward departures.   In those cases,          the sentencing court determined that the  defendant's role in the          commission of the crime was minimal  or minor.  See, e.g., United                                                          ___  ____  ______          States v. Mu oz, 36 F.3d 1229, 1238 (1st Cir. 1994), cert. denied          ______    _____                                      ____________          sub  nom., __ U.S. __,  115 S. Ct. 1164 (1995);  United States v.          _________                                        _____________          Innamorati,  996 F.2d  456, 490  (1st Cir.  1993), cert.  denied,          __________                                         _____________          510 U.S. 1120 (1994); United States v. De La Cruz, 996 F.2d 1307,                                _____________    __________          1314-15 (1st  Cir.), cert.  denied,  510 U.S. 936 (1993);  United                               _____________                         ______          States  v. DiIorio, 948  F.2d 1,  3-6 (1st  Cir. 1991).   Royal's          ______     _______          burden is  a heavy one and  although he may consider  his role in          the offense more comparable to that  found in the cases he cites,          the  district court found otherwise.  "[W]here there is more than          one plausible  view of the circumstances,  the sentencing court's          choice   among   supportable  alternatives   cannot   be  clearly          erroneous."   United States v.  Santiago-Gonz lez, 66 F.3d  at 7.                        _____________     _________________          Royal  claims that the only evidence offered against him at trial          was  that "he worked in the Niagara  Falls office of ATTS and met          some of the government's witnesses when they visited the office."          Royal's attempt to put his own  spin on the facts does not render          the district  court's determination  clearly erroneous.   Each of          Royal's  acts was an integral  part of the  scheme to defraud and                                         -26-          the sentencing court was not clearly erroneous in denying Royal's          requested downward departure under the guidelines.                    B.   More than Minimal Planning                    B.   More than Minimal Planning                         __________________________                    Royal  complains that  the  district  court  improperly          adjusted upward two levels  because Royal's acts and role  in the          offense  required  more  than  minimal planning.    See  U.S.S.G.                                                              ___            2F1.1(b)(2)(A).  Royal maintains that the trial testimony shows          that he was "merely an office attendant" at EZ-EM and that he was          not  present when  the "principal  planners" met  to discuss  the          scheme.                    The Commentary  to section  2F1.1 refers the  reader to          the definition of "more  than minimal planning" set forth  in the          Commentary to section 1B1.1.  There, "more than minimal planning"          is defined as "more  planning than typical for commission  of the          offense  in a simple form."   U.S.S.G.    1B1.1, application note          1(f).  "'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."  Id.                                                           ___                    "[W]e  are not  inclined to reverse  a finding  of more          than minimal planning unless  the evidence compels the conclusion          that the  defendant's actions were  purely opportune or  'spur of          the moment.'"   United States v. Brandon,  17 F.3d 409, 459  (1st                          _____________    _______          Cir.), cert. denied sub  nom., __ U.S. __, 115 S.  Ct. 80 (1994).                 ______________________          We  find that  here, the  complex scheme  to defraud  and Royal's          conduct  in  furtherance of  it  were not  purely  opportune and,          therefore, meet  the definition of "more  than minimal planning."                                         -27-          The trial  testimony demonstrates  that Royal engaged  in several          repeated fraudulent acts in furtherance  of this conspiracy.  The          sentencing  court  was entitled  to  find,  under the  definition          provided by  the guidelines,  that Royal's  repeated acts in  the          course of  this conspiracy  required more than  minimal planning.          The district  court did not  err in making a  departure upward to          take this into account.                                         -28-                                V.  Restitution Order                                V.  Restitution Order                                    _________________                    Royal makes  two arguments challenging the  validity of          the district court's restitution order.  Royal contends  that the          order of  restitution  in  the amount  of  $30,000  lacked  legal          support because  it  attributes more  losses  to him  than  those          caused  by the counts for which  he was convicted.  Royal further          maintains that the  order was  improper because he  is unable  to          repay such a large amount.   The district court has the authority          to impose restitution under  Title 18 of the United  States Code,          sections 3663 and 3664.                    Royal's  first  contention  amounts  to  the following.          Because  his  convictions  included  four counts  of  mail  fraud          relating to the mailing  of only four loan checks, he should only          be  required  to pay  restitution in  the  total amount  of those          checks, $9870.   In the  alternative, Royal argues  that, if  his          conviction for  conspiracy is included in  the restitution order,          the  total loss reasonably foreseeable to him would be the amount          of checks  that passed through EZ-EM during the time he worked at          the Niagara Falls operation.   Royal claims this amount  would be          no  more than $17,272.50.  Based on this analysis, Royal contends          that the restitution order of $30,000 was excessive.                    At  the time  of  Royal's criminal  acts, a  sentencing          court could  impose  restitution only  for losses  caused by  the          defendant's  offense or  offenses.   18 U.S.C.    3663;  see also                                                                   ________          Hughey  v. United States, 495 U.S. 411, 414 (1990); United States          ______     _____________                            _____________          v. Camuti,  78 F.3d  738, 746  (1st  Cir. 1996).   Although  this             ______                                         -29-          authority  under  the  statute   was  subsequently  broadened  by          congressional amendment  to require  restitution to  include harm          resulting from "the defendant's criminal conduct in the course of          the  scheme, conspiracy, or pattern,"  see 18 U.S.C.   3663(a)(2)                                                 ___          (Supp.  1996), the amendments  do not  apply retroactively.   See                                                                        ___          Camuti, 78 F.3d at  746.  Accordingly, under the  applicable law,          ______          Royal is  correct in  arguing  that he  may  be ordered  to  make          restitution only  for the  "loss caused by  the specific  conduct          that is the  basis of the  offense of conviction."   Hughey,  495                                                               ______          U.S. at 413.                    We have previously held that restitution may be imposed          for a mail fraud conviction "only if it stems from a  transaction          linked to  a specific mailing."   Camuti, 78 F.3d at  746.  While                                            ______          the amount attributable to the specific mailings  for which Royal          was  convicted may amount to only $9870, Royal was also convicted          of  conspiracy  to defraud  the Department  of Education  and the          students  of ATTS.  In  the sentencing context,  one convicted of          conspiracy may be held liable for the acts of his co-conspirators          in furtherance of the conspiracy that are reasonably foreseeable,          as  the  Sentencing  Guidelines  explicitly  provide.    U.S.S.G.            1b1.3(a)(1)(B);  see also  United States  v. O'Connor,  28 F.3d                             ________  _____________     ________          218, 222 (1st  Cir. 1994).   Thus, the  district court may  order          Royal to pay restitution not only for an amount equivalent to the          four student loan checks  involved in the mail fraud  counts, but          also for any other reasonably foreseeable loss caused by Royal or          his co-conspirators acting in furtherance of this conspiracy.                                         -30-                    Royal  has argued  that the  district court  improperly          based  its loss  determination on  defaults caused  by acts  that          occurred in 1988, prior to the time in the last one or two months          of 1988 when he joined the Niagara Falls conspiracy.   It is true          that  "[b]y definition,  acts  that occurred  before a  defendant          enters  a conspiracy  cannot be  foreseeable."  United  States v.                                                          ______________          Balogun, 989  F.2d 20, 22 (1st Cir. 1993).   And upon a review of          _______          the  sentencing hearing  transcript,  it  indeed appears  unclear          whether the sentencing court took into account acts that occurred          prior to Royal's involvement.  But the record also indicates that          Royal  waived  this objection  in  the  district court,  and  any          hypothetical  error in the calculation  of loss does  not rise to          the  level of plain error.  See  United States v. Winter, 70 F.3d                                      ___  _____________    ______          655, 659  (1st Cir. 1995), cert.  denied, __ U.S. __,  116 S. Ct.                                     _____________          1366 (1996).                    Although Royal extensively challenged  the government's          calculation of the  reasonably foreseeable  loss attributable  to          him,  he  never  argued  that  the  loss  calculation  improperly          included  losses  connected  with   acts  prior  to  his  initial          involvement.  Having failed to  raise this objection below, Royal          is now bound to demonstrate that any error  affected "substantial          rights."  Id.  But this seems doubtful -- the  district court set                    ___          the total amount of restitution at $500,000,  but ordered partial          restitution of  only $30,000 because of Royal's lack of financial          resources.    Even   if  the  court   had  excluded  all   losses          attributable to  acts from  1988, it seems  implausible that  the                                         -31-          court's total restitution figure would have dropped from $500,000          to less than $30,000.  Because any possible error here falls well          short  of the standard for considering  waived claims, we decline          to remand the restitution determination.                    Finally,  Royal's contention that  the district court's          restitution order is in  error because Royal lacks the  financial          resources necessary to repay the amount imposed is without merit.          We have  noted in the past  that, although a court  must consider          the   financial  situation   of  the   defendant  when   imposing          restitution, see 18 U.S.C.    3664(a), it need not  make specific                       ___          findings  regarding  the defendant's  finances  "so  long as  the          record on appeal reveals that the judge made implicit findings or          otherwise adequately evinced his consideration of those factors."          United States  v. Savoie, 985 F.2d 612, 618 (1st Cir. 1993).  The          _____________     ______          record adequately reflects the  district court's consideration of          Royal's  financial  ability to  make  restitution.   Indeed,  the          district court lowered the amount of restitution from $500,000 to          $30,000   in   light    of   Royal's   financial   circumstances.          Furthermore,  the court  noted that  if Royal  is unable  to make          restitution in  full during the  course of his  prison employment          and  thereafter  during  the period  of  his  parole,  he has  no          obligation.    "Although  we  agree  that  the  evidence  in  the          presentence  report may  not be  able to  support a  finding that          [Royal]  has the ability to  pay restitution in  that amount, the          statute  does not require such  a finding; it  requires only that          the district court consider the defendant's financial resource as                                         -32-          a factor in arriving at the figure."  United States v. Newman, 49                                                _____________    ______          F.3d 1,  10 (1st Cir. 1995).   We find that  the sentencing court          did not abuse its discretion by imposing restitution here.                                      CONCLUSION                                      CONCLUSION                    Based  on the  foregoing  considerations, we  affirm in                                                                  affirm                                                                  ______          part and reverse and remand in part.                   reverse     remand                   _______     ______                    So ordered.                    __________                                         -33-
