
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                                                                                                                           ____________________        No. 95-1586                              UNITED STATES OF AMERICA,                                 Plaintiff, Appellee,                                          v.                                   GARY S. GILBERG,                                Defendant, Appellant.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Douglas P. Woodlock, U.S. District Judge]                                              ___________________                                                                                      ____________________                                Selya, Cyr and Stahl,                                   Circuit Judges.                                   ______________                                                                                      ____________________             Gary C. Crossen, with whom Toni G. Wolfman, Mark D.  Rosen, Cindy             _______________            _______________  ______________  _____        M. Lott and Foley, Hoag & Eliot were on brief for appellant.        _______     ___________________             Wan J. Kim, Attorney, Department of Justice, with whom Donald  K.             __________                                             __________        Stern, United States Attorney,  Mark D. Seltzer, Acting  Director, New        _____                           _______________        England Bank Fraud Task  Force, and James  P. Gillis, Trial  Attorney,                                            ________________        New England Bank Fraud Task Force, were on brief for appellee.                                                                                      ____________________                                   January 31, 1996                                                                                                       ____________________                    CYR,  Circuit Judge.   Defendant Gary S.  Gilberg chal-                    CYR,  Circuit Judge.                             _____________          lenges  several district court rulings relating  to his trial and          sentencing for conspiring  to make, and making,  false statements          to  financial  institutions  in order  to  procure  mortgage loan          financing,  see 18 U.S.C.     371 & 1014.   We affirm all but the                      ___          restitutionary sentence.                                           I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    During  the 1980s,  after  borrowing almost  $5 million          which he agreed to  repay from future condominium  sale proceeds,          Gilberg launched Chancery Court, a forty-unit condominium project          in Lynn, Massachusetts.  Condominium sales did not proceed apace,          however,  and Gilberg  decided  to  lure  prospective  buyers  by          promising to obtain  100% mortgage financing for  them, obviating          the need for  down payments.  To this end,  Gilberg would inflate          the purchase price stated on the sales agreement which he submit-          ted to  the bank in support of the buyer's mortgage loan applica-          tion.  A so-called "amended" sales agreement, containing the true          purchase price, would be retained in Gilberg's private files, and          the buyer was  told not to mention  the "amendment" to  the bank.          On  other  occasions, Gilberg  provided  prospective  buyers with          second mortgage  financing, which  he concealed  from the  first-          mortgage lenders  by instructing his  attorney not to  record the          second mortgages, or to record  them late.  Gilberg attended each          loan  closing,  personally  signing  HUD-1 settlement  statements          which he knew to contain  false information.  These means enabled                                          2          Gilberg  to  sell  thirty-seven  condominium  units,  which  were          financed through various banks.                    In  August 1993, Gilberg was  indicted in one count for          conspiring to make  false statements on twenty-one  loan applica-          tions to three FDIC-insured financial institutions, see 18 U.S.C.                                                              ___             371, and  in thirteen  counts for  making false  statements to          FDIC-insured institutions, see  id.   1014.   Several condominium                                     ___  ___          buyers, as  well as  Gilberg's attorney,  testified that  Gilberg          originated and orchestrated  the scheme.   The jury convicted  on          all counts and the district court sentenced Gilberg to thirty-six          months' imprisonment and ordered $3,635,000 in restitution.                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________          A.   The Trial Related Rulings          A.   The Trial Related Rulings               _________________________               1.   "Good faith" Jury Instruction               1.   "Good faith" Jury Instruction                     ____________________________                    Gilberg first contends that the final jury  instruction          misdefined  the mens  rea  element  in 18  U.S.C.    1014,  which                          ____  ___          criminalizes  "knowingly mak[ing] any false statement or report .                         _________          . . for the purpose of influencing in any way the action of . . .              ___ ___ _______ __ ___________          any [FDIC-insured bank]  . . . upon any application, advance, . .          . commitment, or  loan."  (Emphasis added.)   Gilberg argues that          section 1014  affords a "good faith" defense  where the defendant          knew  the statement  or report  contained  false information  but          acted without the "bad" purpose to influence the  bank's actions.          He proffered evidence that  he knew and believed, at  the time of          the  various  loan  applications,  that  the  prevailing  banking                                          3          practice was to  approve or disapprove applications  based solely                                                                     ______          on the  appraised value of  the real property securing  the loan,          rather than on whether the real estate sale itself involved price          "discounts"  or  secondary  mortgage  financing.   Thus,  Gilberg          argues, the district court hobbled his defense by instructing the          jury that "a  defendant does  not act  in good faith  even if  he          honestly holds a particular opinion or belief and, yet, knowingly          makes false and fraudulent statements or misrepresentations."                     Gilberg  concededly raised  no  objection  to the  jury          instruction.  See  Fed. R. Crim. P. 51.   Consequently, we review                        ___          for plain error, see Fed. R. Crim. P. 52(b), and may reverse only                           ___          if (i) the  final jury instruction  constituted error (ii)  which          was or should have been "obvious" in the sense that the governing          law was  clearly settled  to the  contrary,  and (iii)  appellant          proves that the error resulted in "prejudice," or in other words,          that it  affected his substantial  rights.  See United  States v.                                                      ___ ______________          Hurley,  63 F.3d 1,  9 (1st Cir.  1995) (citing United  States v.          ______                                          ______________          Olano,  113  S. Ct.  1770, 1777  (1993)).   Even  if  these three          _____          criteria are met, however, we do not "notice  the error unless it          caused  `a miscarriage of justice' or [seriously] undermined `the          integrity  or public reputation  of judicial proceedings.'"   Id.                                                                        ___          (citations omitted).                    Though the statutory interpretation posited by  Gilberg          is dubious at best, cf., e.g.,  United States v. Wilcox, 919 F.2d                              ___  ___    _____________    ______          109, 112 (9th Cir. 1990) ("The requisite intent [under   1014] is          the intent to influence an action, and nothing more."), we do not                                          4          reach the merits.  Gilberg cites to no authority    let  alone to          a  controlling United  States  Supreme  Court  or  First  Circuit          decision     clearly holding  that the  "good faith"  instruction          given below  contained  an erroneous  statement of  the mens  rea                                                                  ____  ___          requirement under section  1014.  See Olano,  113 S. Ct. at  1777                                            ___ _____          ("At  a minimum,  the Court  of Appeals  cannot correct  an error            __  _ _______          pursuant to  Rule 52(b) unless  the error is clear  under current          law.") (emphasis  added).1   Hence, any  error in  the challenged          instruction was neither "obvious,"  nor cognizable under Criminal          Rule 52(b).                 2.   Motion in Limine                 2.   Motion in Limine                    ________________                    Gilberg  next assigns error in the district court order          precluding  evidence that the  defrauded banks had  relied exclu-          sively on property  appraisals in determining whether  to approve          loan applications, and not on the apparent absence of "discounts"          and  second  mortgage financing.    He  claims  that this  ruling          prejudiced him because the excluded evidence would have bolstered          his "good faith" defense.  See supra Section II.A.1.2                                     ___ _____                                        ____________________               1Morissette v. United States, 342 U.S. 246 (1952), and Cheek                __________    _____________                           _____          v. United States, 498  U.S. 192 (1991), are inapposite.   Even if             _____________          Gilberg's interpretation of  the "purpose" clause in    1014 were          correct, he cannot seriously contend  that the one clear mens rea                                                                   ____ ___          element in    1014    "knowingly" communicating  false statements                                                           _____              does not criminalize  conduct a  normal person  readily would          recognize as culpable.                 2We do  not understand  Gilberg to  argue that  the excluded          evidence was  relevant to  the discredited  "complicity" defense,          namely, that  any bank  officials' knowing  participation in  the          scheme would exonerate  Gilberg under   1014.   See United States                                                          ___ _____________          v. Johnson, 585 F.2d 119, 124 (5th Cir. 1978) (rejecting complic-             _______          ity  defense,  and noting  that  the  "[t]he savings  and  loan's          awareness of the fraud is not  relevant, for its existence is not                                          5                    Once again  we review  for plain  error, since  Gilberg          first raised this claim on appeal.  See Hurley, 63 F.3d at 9.  As                                              ___ ______          there was  no plain error  in rejecting the "good  faith" defense          instruction, a  fortiori there  can have been  no plain  error in                       _  ________          excluding  evidence  offered  in  support.    Furthermore,  given          Gilberg's concession that a representative sampling of this "good          faith" evidence  was admitted at  trial, he has failed  to demon-          strate  "prejudice."   Olano, 113  S. Ct.  at 1778  (noting that,                                 _____          unlike Rule 52(a), Rule 52(b) provides that "the defendant rather                                                           _________          than the  Government . .  . bears  the burden of  persuasion with          respect to prejudice") (emphasis added).            B.   The Sentencing Rulings          B.   The Sentencing Rulings               ______________________               1.   Amount of Loss (U.S.S.G.   2F1.1)               1.   Amount of Loss (U.S.S.G.   2F1.1)                    ________________________________                    Gilberg contends  that  the  district  court  committed          three errors  in calculating the  amount of loss under  the then-          applicable version  of U.S.S.G.    2F1.1, and  that the  combined          effect of its miscalculations ballooned  the total loss from $1-2          million to the $2-5 million range, which in turn led the court to          make a ten-level (rather than  a nine-level) upward adjustment in                                        ____________________          inconsistent with the  intent to influence which a  violator of            1014  must possess").  Nor do we  understand Gilberg to argue for          the  similarly discredited  "lack of  reliance" defense,  namely,          that his  purpose to influence  was immaterial because  the banks                                              __________          did not, in  the end, actually  rely on his  false statements  in          approving  the loan applications.   See United States v. Norberg,                                              ___ _____________    _______          612 F.2d  1, 4  (1st Cir. 1979)  (expressly rejecting such  a de-          fense).                                          6          his base offense level of six.3                       First, Gilberg argues that  the loss calculation should          not have  included $726,637  in accrued  mortgage loan  interest.          See  U.S.S.G.   2F1.1,  comment. (n.7)  (excluding from  the loss          ___          calculation  the "interest the victim could have earned"); United                                                                     ______          States v.  Hoyle, 33  F.3d 415,  419 (4th  Cir. 1994).   But  the          ______     _____          settled  law in  this circuit  is to  the contrary.    See United                                                                 ___ ______          States v. Goodchild,  25 F.3d 55, 66-67 (1st  Cir. 1994) (holding          ______    _________          that accrued finance charges on credit cards are not lost "oppor-          tunity costs,"  and may  be included in  amount of  loss) (citing          United  States v.  Lowder, 5  F.3d  467, 471  (10th Cir.  1993)).          ______________     ______          Gilberg's attempt to distinguish Goodchild is unavailing.  As the                                           _________          Goodchild  panel's citation to  Lowder and other  authority makes          _________                       ______          clear,  we have found  no principled difference  between interest          earned on a  credit card (a/k/a  "finance charges") and  interest                                    _____          earned on other types of loans.  See Hurley, 63 F.3d at 9 (noting                                           ___ ______          that newly-constituted panels are bound by a prior panel decision          on  point).   Since  it was  proper  to include  the  $726,637 in          interest as part  of the loss, the other  loss calculation errors          raised on appeal need not be addressed because  the unimpeachable          loss  totalled  no less  than  $2,669,065, well  within  the $2-5          million range necessary to trigger a ten-level upward adjustment.                                        ____________________               3Although  normally a  loss  determination under  U.S.S.G.            2F1.1 is fact-based and subject to clear error review, see United                                                                 ___ ______          States  v. Goodchild,  25 F.3d  55, 64  (1st Cir.  1994), Gilberg          ______     _________          challenges the district  court's interpretation  of a  sentencing          guideline.   Therefore,  review is  de novo.   See id.;  see also                                              __ ____    ___ ___   ___ ____          United  States v.  Ovalle-Marquez,  36 F.3d  212,  221 (1st  Cir.          ______________     ______________          1994), cert. denied, 115 S. Ct. 1322 (1995).                  _____ ______                                          7               2.   The "Role in Offense" Enhancement               2.   The "Role in Offense" Enhancement                    _________________________________                    Gilberg  challenges  the four-level  upward  adjustment          based on his  role in the offense, see U.S.S.G.   3B1.1, contend-                                             ___          ing that the government  improperly singled him out for  prosecu-          tion by  cutting deals  with the real  "leaders" of  the Chancery          Court scheme    his  attorney and a business partner.  Second, he          complains that the district court failed to make express findings          of fact regarding the comparative responsibilities of the partic-                                ___________ ________________          ipants in  the scheme.  We  review for "clear error,"  see United                                                                 ___ ______          States v.  Akitoye, 923  F.2d 221, 227  (1st Cir.  1991), mindful          ______     _______          that "battles over a defendant's [role in the offense] . . . will          almost always  be won  or lost  in the  district court,"   United                                                                     ______          States v. Graciani,  61 F.3d 70,  75 (1st Cir. 1995).   Gilberg's          ______    ________          case is no exception.                     Gilberg  concedes that  the  evidence  could support  a          rational  inference that  he  orchestrated  the criminal  conduct          alleged in the indictment.   The evidence disclosed that he was a          sophisticated  real estate developer  who supplied false purchase          prices to his  attorney, instructed his attorney  and prospective          buyers to conceal his false statements, and secreted the documen-          tation containing the actual terms.   Gilberg cites no  authority             nor  is there  any     for the proposition  that a  sentencing          court  must  compare  the responsibilities  of  all  participants                       _______          before imposing a  U.S.S.G.   3B1.1 enhancement against  a defen-          dant.   Moreover, in crediting  the evidence that  Gilberg played                                          8          the pivotal  role in  the initial success  of the  Chancery Court          scheme,  the district court implicitly found  that Gilberg was an          "organizer,"  regardless  of  the precise  roles  played  by each          cohort.   See U.S.S.G.    3B1.1, comment.  (n.4) (noting  that an                    ___          offense  may involve  "more than  one person  who qualifies  as a          leader or organizer");  United States v. Tejeda-Beltran,  50 F.3d                                  _____________    ______________          105, 111-13 (1st  Cir. 1995) ("We hold that  retention of control          over  other  participants,  although  sometimes  relevant  to  an          inquiry  into the  status  of  a putative  organizer,  is not  an          essential attribute of organizer status."); cf. U.S.S.G.   3B1.1,                                                      __          comment. (n.2)  (authorizing  upward  departure  for  "management          responsibility  over the  property, assets,  or  activities of  a          criminal  organization," even  though  defendant neither  led nor          supervised any other participant).      3.   The Victim  and Wit-                                                  3.   The Victim  and Wit-                                                       ____________________                                                  ness Protection Act                                                  ness Protection Act                                                  ___________________                    Finally,  Gilberg claims  that the  restitutionary sen-          tence overstates  victim loss because  the class of  "victims" is          too  broad.   He points  out  that the  sentencing court  ordered          restitution  in connection with all thirty-one loans, whereas the          indictment charged him in relation to only twenty-one loans.                      The  government concedes that the last criminal conduct          involving Gilberg took place no later than June 1990.  The Victim          and  Witness  Protection  Act ("VWPA"),  18  U.S.C.     3663-3664          (1990), governs restitution in criminal cases.  See, e.g., United                                                          ___  ____  ______          States  v. DeSalvo, 41  F.3d 505, 511  (9th Cir. 1994).   In June          ______     _______          1990, the VWPA provided that  the district court    in sentencing                                          9          "a defendant convicted  of an offense"     may order "restitution                       _________  __ __ _______          to  any victim  of  such offense."  18 U.S.C.    3579(a)(1)(1982)                  ______  __  ____ _______          (emphasis  added); see 18 U.S.C.     3579-3780 (1987), amended by                             ___                                 _______ __          18 U.S.C.    3663-3664 (1990).   In Hughey v. United States,  495                                              ______    _____________          U.S. 411  (1990), the  defendant had  been  charged, in  multiple          counts, with theft and unauthorized use of credit cards, offenses          which caused  victim losses  totaling $90,431.   Although  Hughey          pled  guilty to but  one count  of unauthorized  use of  a single                                                                     ______          credit card, which caused $10,412 in victim loss, id. at 414, the                                                            __          district  court ordered $90,431  in restitution.   Reversing, the          Supreme Court held that "the language and structure of the [VWPA]          make plain Congress'  intent to authorize an award of restitution          only for  the loss  caused by  the specific  conduct that  is the          ____                               ________  _______          basis of the offense of conviction."  Id. at 413, 422 n.5.           _____ __ ___ _______ __ __________    ___                    Effective  November  29, 1990,  Congress  broadened the          VWPA definition of "victim," see Pub. L. No. 101-647,   2509, 104                                       ___          Stat.  4789, 4863,  4931 (Nov.  29, 1990)  (Crime Control  Act of          1990) (codified at  18 U.S.C.   3663(a)(2)),  thereby effectively          overruling Hughey in part.   Section 3663(a)(2) now provides that                     ______          "a victim of an offense that  involves as an element a scheme,  a          conspiracy, or a  pattern of criminal  activity means any  person          __________                                            ___  ______          directly harmed by the defendant's criminal conduct in the course          of the scheme,  conspiracy, or pattern."  18  U.S.C.   3663(a)(2)          (emphasis added). See  generally United States  v. Neal, 36  F.3d                            ___  _________ _____________     ____          1190, 1200 (1st Cir. 1994).                       The district court ordered Gilberg to  make restitution                                          10          to banks other than the  three FDIC-insured banks involved in the                   _____ ____            ____________          twenty-one insured  loans which formed  the entire basis  for the          conspiracy  and the  substantive counts  upon  which Gilberg  was          convicted.  The parties agree that, under the 1987 version of the                                                        ____          VWPA as interpreted in  Hughey, the restitution order imposed  on                                  ______          Gilberg  would be improper,  and that "approximately  $2 million"          would be the maximum permissible "victim loss" calculation.                      The government  nonetheless contends that  the district          court order complies with the 1990 VWPA.  See Hughey, 495 U.S. at                                        ____        ___ ______          413  n.1 (normally,  the  VWPA version  in  effect at  sentencing                                                                 __________          controls).   Gilberg responds that such a retroactive application          of section 3663(a)(2)  to his pre-November 1990  criminal conduct          would violate the Ex Post Facto Clause, U.S. Const. art. I,    9,                            __ ____ _____          cl. 3.  See Miller v.  Florida, 482 U.S. 423, 430-31 (1987);  see                  ___ ______     _______                                ___          also United States v. Newman, 49  F.3d 1, 10-11 (1st Cir.  1995);          ____ _____________    ______          United States v. Cronin, 990 F.2d 663, 666 (1st Cir. 1993).           _____________    ______                    Normally, we review restitution  orders only for "abuse          of discretion."  See  United States v. Benjamin, 30 F.3d 196, 198                           ___  _____________    ________          (1st Cir. 1994); United States v. Savoie, 985  F.2d 612, 617 (1st                           _____________    ______          Cir. 1993).  Although a  timely challenge to a retroactive appli-          cation of  the 1990 VWPA  amendments would present a  question of                         ____          law  subject  to  plenary  review, see,  e.g.,  United  States v.                                             ___   ____   ______________          Guthrie, 64 F.3d 1510, 1514 (10th Cir. 1995); DeSalvo, 41 F.3d at          _______                                       _______          511; United States v. Meacham, 27  F.3d 214, 218 (6th Cir. 1994),               _____________    _______          Gilberg concedes that  he did not object at  sentencing.  Accord-          ingly,  we review  only for  plain error.   See United  States v.                                                      ___ ______________                                          11          Tutiven, 40 F.3d 1, 7-8 (1st Cir. 1994), cert. denied, 115 S. Ct.          _______                                  _____ ______          1391 (1995); United  States v. Rodriguez, 938 F.2d  319, 321 (1st                       ______________    _________          Cir. 1991).   As the Rule  52(b) "plain error" test  announced in          Olano, 113 S.  Ct. at 1776-79, applies to  sentencing errors, see          _____                                                         ___          Benjamin,  30 F.3d  at 197;  supra Section  II.A.1, we  apply the          ________                     _____          Olano  "plain  error"  criteria to  the  forfeited  "victim loss"          _____          calculation claim asserted by Gilberg on appeal.4                    a) "Error"                    a) "Error"                        _____                    The first  Olano criterion     that  there be  "error,"                               _____          Olano, 113 S.  Ct. at 1777     is readily met here.   Retroactive          _____          application of VWPA   3663(a)(2)  would violate the Ex Post Facto                                                              __ ____ _____          Clause, since it would "make[] more burdensome the punishment for                                                             __________ ___          [Gilberg's] crime[s], after [their] commission  . . . ."  Dobbert           _________  ________  _____  _____  __________            _______          v. Florida, 432  U.S. 282, 292 (1977) (emphasis  added); see also             _______                                               ___ ____          United  States v.  Johnson, 952  F.2d 565,  585 (1st  Cir. 1991),          ______________     _______          cert. denied,  113 S. Ct. 58 (1992).   As an order of restitution          _____ ______          is part of  the criminal sentence, we reject  the suggestion that          the November 1990 VWPA amendments may be applied against Gilberg.          See, e.g.,  United States  v. Jewett, 978  F.2d 248,  252-53 (6th          ___  ____   _____________     ______          Cir. 1992)  (rejecting retroactivity argument);  see also  United                                                           ___ ____  ______          States v. Elliott, 62 F.3d 1304, 1313-14 (11th Cir. 1995) (same);          ______    _______          DeSalvo, 41 F.3d at 515 (same).          _______                                        ____________________               4Given  the concession by the government that application of          Hughey would result  in a $1.6 million reduction  in the restitu-          ______          tion order, we conclude that Gilberg has shouldered his burden on          the third Olano factor    "prejudice."  See supra Section II.A.1.                    _____                         ___ _____          We  therefore confine  our "plain  error" analysis  to  the three          remaining  Olano factors (i.e.,  error, "obviousness," and "mani-                     _____          fest miscarriage of justice").                                           12                    b) Obviousness of Error                     b) Obviousness of Error                       ____________________                    The government  argues that retroactive  application of          the  1990 VWPA amendments  would not constitute  "obvious" error,          see Olano,  113 S.  Ct. at 1777,  because this  court had  yet to          ___ _____          weigh in  on the retroactivity  question by the time  Gilberg was                                                   __ ___ ____  _______ ___          sentenced, and other  courts of  appeals were  divided.   Compare          _________                                                 _______          Jewett, 978 F.2d at  252-53, with United States v. Rice, 954 F.2d          ______                       ____ _____________    ____          40  (2d Cir. 1992);  United States v. Arnold,  947 F.2d 1236 (5th                               _____________    ______          Cir. 1991) (per curiam).  We disagree.                    The Rice  and Arnold  cases are  factually and  legally                        ____      ______          inapposite to  the present context.   The retroactivity  issue in          Rice ultimately turned on a  different 1990 VWPA amendment    not          ____                         _________                        ___          implicated in  our case     which provided that "[t]he  court may          also order restitution in any  criminal case to the extent agreed          to by the  parties in a plea  agreement." 18 U.S.C.    3663(a)(3)                                  ____  _________          (emphasis  added).  The plea agreement in Rice expressly provided                                                    ____ _________          for  restitution both  to  victims of  the  dismissed counts  and          victims of  uncharged criminal conduct, Rice, 954  F.2d at 41-42,                                                  ____          and the plea  predated both the 1990 VWPA  amendments and Hughey.                                 ____     ____                  ___ ______          Thus, settled  Second Circuit precedent  supported the  expansive          victim loss  calculation agreed  to by  Rice.   Id. at  44.   The                                                          ___          Second Circuit rejected Rice's ex post facto argument because (1)                                         __ ____ _____          Rice must  have relied  on the more  onerous Second  Circuit case               ____          law, rather than on Hughey, when  he agreed to the broad restitu-                              ______          tion  commitment adopted in  the plea agreement;  and (2) section          3663(a)(3) did not  retroactively "enhance the punishment  for an                         ___                                          13          offense"  but "merely  provided  that a  specified  type of  plea          agreement could be enforced from that point on."  Id.                                                              ___                    The Fifth Circuit employed the same analysis in Arnold,                                                                    ______          947  F.2d at  1238 n.2,  noting that  section 3663(a)(3)  was not          retroactive  but  "applied  prospectively  to  validate  Arnold's          [earlier]  plea agreement."   The  government  cites no  apposite          circuit court authority  holding that section  3663(a)(2) applies                                                         __________          retroactively to pre-November 1990 criminal conduct.                    As  the  government  correctly notes,  we  have  yet to          address this precise  question.  In Cronin, 990 F.2d  at 663, the                                              ______          government  did not  contend that  section  3663(a)(2) should  be          applied  retroactively  to  pre-November   1990  conduct,  urging                                      ____________   ____          instead  that  Hughey  is  distinguishable  from  cases involving                         ______      _______________          convictions for "offense[s]"    like mail fraud    which require,                                               ____ _____          as an essential element, proof  of a broader "scheme to defraud."          See  id. at  666; see also,  e.g., 18  U.S.C.   1341.   Given the          ___  ___          ___ ____   ____          inherent breadth  of the "offense"  of conviction in  Cronin, the                                                                ______          government argued that VWPA restitution was not limited to losses          caused  by the particular  mailings designated in  the individual                         __________  ________          counts  upon which the defendant was  convicted, but included all          victim losses occasioned by the  larger fraud "scheme."  Noting a          circuit split on the issue, we sided with the  majority rule, and          concluded  that  Hughey  barred the  broader  restitution  order.                           ______          Cronin, 990 F.2d at 666; see also Newman, 49 F.3d at 11 (applying          ______                   ___ ____ ______          Cronin pronouncement to wire fraud conviction).          ______                    The implicit concessions of nonretroactivity in  Cronin                                                                     ______                                          14          and  Newman  apparently  stemmed from  the  government's acknowl-               ______          edgement that retroactive application of section 3663(a)(2) would          have had no colorable basis  in the decisional law construing the          Ex Post Facto Clause.  See id. at 11 n.14 (noting that, "[a]s the          __ ____ _____          ___ ___          offenses occurred  in 1989 and  early 1990, Newman is  subject to          the restitution statute as it  stood prior to amendment in Novem-          ber  of 1990").  Further, had this  court been satisfied that the          1990  VWPA amendments were readily amenable to retroactive appli-          cation in Cronin and Newman, we could have affirmed those restit-                    ______     ______          utionary sentences on that alternative ground.  See United States                                                          ___ _____________          v. Alzanki, 54 F.3d 994, 1008 (1st Cir. 1995), petition for cert.             _______                                     ________ ___ _____          filed, 64 U.S.L.W. 3298 (U.S. Oct. 16, 1995) (No. 95-619) (appel-          _____          late court may  affirm district court on any  ground supported by          record); cf.  also Jewett, 978  F.2d at 252 (finding  that Hughey                   ___  ____ ______                                  ______          precluded broad  restitution order, before addressing VWPA retro-          activity  question, even  though the  latter  issue had  not been          addressed by parties).   Based on the clear  language of the 1987          VWPA and the  unanimous circuit precedents rejecting  the govern-          ment's retroactivity claim,  see supra Section II.B.3.a,  we hold                                       ___ _____          that  the error  in  this case  satisfied the  "obviousness" test          announced in Olano.5  See United States  v. Weiner, 3 F.3d 17, 24                       _____    ___ _____________     ______                                        ____________________               5It is noteworthy  that the Olano Court  explicitly reserved                                           _____          decision on whether an error  that becomes clear after trial, but          prior  to review  by  the  court of  appeals,  may be  considered          "obvious."  Olano, 113 S. Ct. at 1777.  ("At a minimum, the Court                      _____          of Appeals cannot correct an  error pursuant to Rule 52(b) unless          the error is obvious under current law.").  As in Olano,  we need                                                            _____          not resolve  this  question  because we  have  found,  given  the          unanimous case law,  that it was already "obvious" at the time of          sentencing that Gilberg should not be held  responsible under the          __________                                          15          n.5 (1st  Cir. 1993) (noting that a circuit  split may rule out a          finding that forfeited error was "obvious," even if First Circuit          has not weighed in on issue).                      c) "Miscarriage of Justice"                    c) "Miscarriage of Justice"                        ______________________                    Although  Olano entrusts remediation  of plain error to                              _____          the  sound  discretion  of the  reviewing  court,  the courts  of          appeals "should not" exercise their discretion unless a forfeited          error  results in  "`a miscarriage  of  justice,' or  "`seriously          affect[s] the fairness,  integrity or public reputation  of judi-          cial proceedings.'"   Olano, 113 S. Ct. at  1776 (citations omit-                                _____          ted).                      In all events, the VWPA expressly limits restitutionary          relief to "victims of [the] offense [of conviction]." 18 U.S.C.                       _______          3662(a)(1)  (emphasis added).   A  federal court has  no inherent          authority to order restitution in a  criminal case; it may do  so          only as expressly provided by statute.   DeSalvo, 41 F.3d at 511.                                                   _______          We have noted that when  the district court fundamentally departs          from "obvious" sentencing principles,  "the situation corresponds          mutatis  mutandis to  one in  which  a forfeited  error may  have          _______  ________          caused the  conviction of an  innocent person,  the other  rubric                                        ________ ______          under which  a plain and  prejudicial error should be  noticed on          appeal."  United States v. Whiting, 28 F.3d 1296, 1312 (1st Cir.)                    _____________    _______          (citing  Olano,  113  S. Ct.  at  1779)  (emphasis  added), cert.                   _____                                              _____          denied,  115 S.  Ct. 378  (1994).   Given the  particular circum-          ______                                        ____________________          1987 VWPA for losses occasioned victims of offenses with which he          was not  charged, nor  held retroactively  responsible under  the          1990 VWPA amendments. See supra Section II.B.3(a), (b).                                  ___ _____                         _                                          16          stances of this case, and  the substantial $1.6 million reduction          in restitution portended  by Hughey's application, we  find plain                                       ______          error warranting vacatur  of the restitutionary sentence  in this          case.6   The  restitution  award  is  reduced  to  $2,107,406.00,          comprising  the total estimated  loss on the  twenty-one mortgage          loans designated in the indictment.7                    The  sentence is modified to require restitution in the                    ___  ________ __ ________ __ _______ ___________ __ ___          amount of $2,107,406.   The district court  judgment is affirmed,          ______ __ __________    ___ ________ _____  ________ __ _________          as modified.           __ ________                                        ____________________               6Gilberg's  remaining challenges to the restitution order do          not  meet the "plain error" standard.   First, he argues that the          district  court erroneously  assessed  the  loss  occasioned  the          lenders by using the price  the lender received on resale follow-                                                 ________          ing foreclosure,  rather than  the foreclosure  price bid  by the                                                                ___          lender.   This  issue has  not yet  been addressed  in the  First          Circuit.   The  circuit  court  decisions  cited by  Gilberg  are          inapposite,  simply holding that  the sentencing court  should be          wary of basing  restitution on the resale price  where the lender          acquired  real  estate at  foreclosure  but does  not  resell for          years.  See, e.g., United States v. Holley, 23 F.3d 902, 914 (5th                  ___  ____  _____________    ______          Cir. 1994) (six years).  Here, however, there is no evidence that          Gilberg's victims  held the  property for  such extended  periods          following foreclosure.   Consequently,  any error  in the  victim          loss calculation, or the standard employed, has not been shown to          be "obvious."               Second, Gilberg contends  that the district court  failed to          make explicit findings on his  ability to pay restitution. See 18                                                                     ___          U.S.C.   3664(a).  Nevertheless,  we have held that such findings          need not be  explicit.  See Newman, 49 F.3d at 10 (citing Savoie,                                  ___ ______                        ______          985 F.2d at 618).  Moreover, the district court supportably found          that Gilberg's  earning potential  would enable  him to meet  his          considerable  restitutionary obligations in  the future.   Id. at                                                                     ___          10-11.                 7Since loss calculations under U.S.S.G.   2F1.1 are based on          criteria different from the VWPA victim loss criteria, see, e.g.,                                                                 ___  ____          id.    2B1.3 (providing  that "relevant  conduct," for  guideline          ___          sentencing purposes, may encompass conduct not charged in indict-          ment,  and conduct underlying the counts upon which defendant was          acquitted), the  reduction in  Gilberg's restitutionary  sentence          requires no readjustment in the offense level.  See supra Section                                                          ___ _____          II.B.1.                                          17
