
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 96-1391                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                              GREGORY W. FONTAINE, JR.,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                 [Hon. Frank H. Freedman, Senior U.S. District Judge]                                          __________________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Lynch, Circuit Judge.                                         _____________                              _________________________               Robert J. Danie, with whom  Bonavita, Gordon, Danie & Walsh,               _______________             ________________________________          P.C. was on brief, for appellant.          ____               Steven M.  Goldsobel, Attorney, Tax Division,  U.S. Dept. of               ____________________          Justice,  with  whom  Loretta  C.  Argrett,   Assistant  Attorney                                ____________________          General,  Robert E.  Lindsay and  Alan Hechtkopf,  Attorneys, Tax                    __________________      ______________          Division, and  Donald K. Stern,  United States Attorney,  were on                         _______________          brief, for the United States.                              _________________________                                   January 31, 1997                              _________________________                    SELYA,  Circuit  Judge.   In  this  sentencing  appeal,                    SELYA,  Circuit  Judge.                            ______________          defendant-appellant Gregory W. Fontaine,  Jr. challenges both the          manner  in which  the  district court  conducted the  disposition          hearing in his case  and the computations that the  court essayed          in establishing the applicable guideline sentencing range  (GSR).          Discerning no error, we affirm.                                          I.                                          I.                                          __                                      Background                                      Background                                      __________                    Because  the  appellant's  conviction resulted  from  a          guilty  plea, we  draw  the facts  from  the plea  colloquy,  the          Presentence Investigation Report (PSI Report), and the transcript          of the sentencing hearing.  See United States v. Garcia, 954 F.2d                                      ___ _____________    ______          12,  14 (1st Cir. 1992); United States  v. Dietz, 950 F.2d 50, 51                                   _____________     _____          (1st Cir. 1991).                    While  incarcerated  at   the  Hampshire  County  Jail,          Northampton, Massachusetts,  Fontaine led  a group of  inmates in          submitting  false  income tax  returns  to  the Internal  Revenue          Service (IRS) in order to secure refunds not actually due.  After          the authorities uncovered the scheme, Fontaine pled guilty to one          count of aiding  in the filing of a  false refund claim.   He was          being held  at the  North Central Correctional  Institute (NCCI),          Gardner, Massachusetts,  awaiting the  imposition of  sentence on          this charge, when a further epidemic of false claims erupted.                    According to the  government, Fontaine  put together  a          new ring at  NCCI and assisted  in the filing  of at least  eight          fraudulent refund claims from October 12, 1993 to April 15, 1994.                                          2          The government charged that Fontaine recruited fellow inmates and          helped them complete apocryphal IRS-1040s, using bogus W-2 forms.          When  the government became cognizant of  what had transpired, it          lodged an  eight-count information in the  United States District          Court  for the District of Massachusetts.  Each count charged the          appellant with aiding and abetting the making of a separate false          claim  against the Treasury.  See 18  U.S.C.    2, 287.  Pursuant                                        ___          to  a non-binding  plea agreement,  Fontaine  pled guilty  to one          count  of the  information.   The  other  counts eventually  were          dismissed.                    When the probation officer distributed the  PSI Report,          Fontaine objected to two of its conclusions (involving the degree          of planning that the enterprise required and his role in it).  He          also requested  an evidentiary  hearing at which  the prosecutors          would be "compelled to  produce witnesses to establish the  basis          for their  allegation[s]".  The district  court afforded Fontaine          an  evidentiary hearing on March 18,  1996, but the court did not          force the government to proffer any particular witnesses.  At the          hearing, Fontaine asked  that the court  order the government  to          summon the eight other inmates  who allegedly participated in the          scheme so that he  could cross-examine them.  The  district court          refused to issue such  an order.  However, the  government called          the  agent who  investigated the  matter, and  Fontaine's counsel          vigorously cross-examined him.                    Following the  hearing  the district  court  imposed  a          forty-one  month incarcerative sentence.  This appeal ensued.  In                                          3          it, Fontaine  challenges his  sentence on three  grounds, namely,          (1)  the  district  court's  handling   of  his  request  for  an          evidentiary hearing, (2) the court's enlargement of the GSR based          on a determination  that his criminal activity involved more than          minimal planning,  and  (3) the  court's enlargement  of the  GSR          predicated on  his supposed role  as an organizer or  leader of a          criminal  enterprise.   We  treat the  first assignment  of error          separately and then group the latter two.                                         II.                                         II.                                         ___                               The Evidentiary Hearing                               The Evidentiary Hearing                               _______________________                    Fontaine berates what he characterizes as  the district          court's "refusal to allow the defendant to confront the witnesses          against him,  and  to  test the  accuracy  of  their  allegations          through  cross-examination."  This boils down to a claim that the          district  court should  have ordered  the government to  call the          eight  persons  alleged to  have  participated in  the  tax fraud          scheme  (all of whom were state  prison inmates) so that he could          explore  alleged  inconsistencies  in  their  statements  through          cross-examination.                    Neither the  Confrontation  Clause  nor  the  rules  of          evidence  apply  during  the   sentencing  phase  of  a  criminal          proceeding, see  United States  v. Tardiff,  969 F.2d 1283,  1287                      ___  _____________     _______          (1st Cir. 1992), and evidentiary  hearings at sentencing are  the          exception  rather than  the  rule.    The  decision  to  hold  an          evidentiary hearing at the  time of sentencing or, alternatively,          to  eschew  such a  hearing, lies  within  the discretion  of the                                          4          sentencing court.  See United States v. Lilly, 983 F.2d 300, 310-                             ___ _____________    _____          11  (1st Cir. 1992); Tardiff, 969 F.2d  at 1286; Garcia, 954 F.2d                               _______                     ______          at 19.   By  the  same token,  if the  court  deigns to  grant  a          hearing,  the shape  and form  of the  proceeding lie  within the          encincture  of this  discretion.   See  Lilly,  983 F.2d  at  311                                             ___  _____          (finding no  abuse of discretion  when the defendant  "received a          hearing,  albeit  not  precisely  the  kind of  hearing  that  he          preferred").                    We  see   nothing  remotely  resembling  an   abuse  of          discretion  in  this instance.   For  one  thing, the  inmates in          question  were in  the  custody of  the  state, not  the  federal          government,  and there is no evidence that the appellant made any          effort  to subpoena them.  For another thing, the appellant never          tendered  a  meaningful  offer  of  proof,  prior to  the  actual          hearing,  in  an effort  to demonstrate  why  he needed  the live          testimony  of  the  eight  prospective witnesses.    Given  these          procedural  infirmities, it  is difficult  to fault  the district          court for not being more receptive to Fontaine's entreaty.                    Leaving   procedural   weaknesses   aside,   Fontaine's          assignment of error lacks substance.  At the disposition hearing,          the government called Anthony Sibilia, an IRS agent who had taken          statements  from  the eight  inmates  allegedly  involved in  the          scheme.  Agent Sibilia testified in excruciating detail as to the          results  of his  investigation.   The appellant's  counsel cross-          examined him  at  length, pointing  out possible  inconsistencies          between  the  statements  of  various  witnesses  and  variations                                          5          between the proof  presented and the  government's theory of  the          case.  While Fontaine calumnizes Sibilia's testimony as "unsworn,          untested hearsay," it is settled beyond peradventure that hearsay          evidence is admissible at  sentencing.  See Tardiff, 969  F.2d at                                                  ___ _______          1287.  The baseline criterion is trustworthiness:  at sentencing,          the trial court "may consider relevant information without regard          to its admissibility  under the rules  of evidence applicable  at          trial, provided  that the  information has sufficient  indicia of          reliability  to support  its  probable accuracy."   Id.  (quoting                                                              ___          U.S.S.G.  6A1.3(a)).                    Here, the  sentencing court  did not deviate  from this          baseline.     Sibilia's  testimony   was  premised  on   his  own          investigation,  supported by  reports  that he  had compiled  and          witness  statements that he had obtained.  The court afforded the          appellant  access   to  the  underlying  documents   and  a  full          opportunity  to cross-examine the witness.  In the course of this          cross-examination, the appellant's  counsel pointed out not  only          inconsistencies   between   witnesses'   statements    but   also          inconsistencies between the modus operandi attributed to Fontaine          and  the returns  actually  filed  by  the  eight  inmates.    In          addition,  the  court permitted  the  appellant  to explore  what          interest  the  inmates  may  have  had  either  in  pleasing  the          prosecution or in falsely implicating Fontaine.   To this extent,          then,  Sibilia's  testimony,   though  based   on  hearsay,   was          thoroughly tested.                    Moreover,  the  testimony  had  sufficient  indicia  of                                          6          reliability  to   pass  muster.    The   reliability  of  hearsay          statements used  at sentencing  sometimes can be  demonstrated by          reference  to  other evidence  in the  case.   See,  e.g., United                                                         ___   ____  ______          States v. Phaneuf, 91 F.3d 255, 261-62 (1st Cir. 1996).  So it is          ______    _______          here.   For instance,  in the plea  agreement Fontaine stipulated          that  the   fraud  loss  exceeded  $10,000,   a  figure  strongly          suggesting that  he considered himself responsible  for all eight          of the false claims described in the information.  Then, too, the          court  heard evidence  of  striking similarities  in the  various          filings    similarities that would  suggest a common  plan to all          but the most fervent  worshipper of coincidence.  The  court also          had at hand evidence of incriminating statements made by Fontaine          in letters to a  friend, Christine Pond.  These, and other, items          bolstered  Sibilia's   testimony  and   tended  to  confirm   its          reliability.   Against this backdrop,  we can detect  no abuse of          discretion in the sentencing  court's denial of Fontaine's demand          that the government be  ordered to produce the eight  inmates for          cross-questioning.                                         III.                                         III.                                         ____                                 Calculating the GSR                                 Calculating the GSR                                 ___________________                    The district court found  that the appellant's  offense          involved more than minimal planning and therefore raised the base          offense level (BOL) by two  levels.  See U.S.S.G.   2F1.1(b)(2).1                                               ___                                        ____________________               1All  references to  the  sentencing guidelines  are to  the          November 1995 edition, in effect on the date of sentencing.   See                                                                        ___          United  States v. Harotunian, 920 F.2d 1040, 1042 & n.2 (1st Cir.          ______________    __________          1990).                                          7          The district court further found that the appellant had organized          an  extensive criminal activity and enhanced the BOL by four more          levels on that account.   See U.S.S.G.  3B1.1(a).   The appellant                                    ___          challenges both findings.  We review for clear error.  See United                                                                 ___ ______          States v.  St. Cyr, 977 F.2d 698, 701 (1st Cir. 1992); Dietz, 950          ______     _______                                     _____          F.2d  at 52.   Under  that test,  "where 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. Ruiz, 905  F.2d 499, 508 (1st Cir.                        _____________    ____          1990).                                          A.                                          A.                                          __                              More than Minimal Planning                              More than Minimal Planning                              __________________________                    At  sentencing,  the  district  court  found  that  the          appellant  aided  in  the  preparation of  all  eight  ersatz tax          returns  and that  these  "repeated acts,"  carried  out over  an          extended  period of  time  (approximately  six months),  involved          appreciable planning and  forethought.   The appellant  questions          the  reliability of  the evidence  underpinning this  finding and          further  asserts  that,  even  if  the  evidence  can  be  deemed          reliable, it does not prove more than minimal planning.                    Under  the sentencing  guidelines,  an enhancement  for          more  than minimal  planning  is appropriate  when a  defendant's          course of relevant criminal  conduct includes "repeated acts over          a  period of  time, unless  it is  clear that  each  instance was          purely  opportune."   U.S.S.G.   1B1.1, comment.  (n.1(f)).   The          government  has  the  burden  of  proving  the  applicability  of                                          8          U.S.S.G.   2F1.1(b)(2) in any given  case.  See  United States v.                                                      ___  _____________          Sklar,  920 F.2d 107, 112  (1st Cir. 1990)  (explaining that "the          _____          government must  prove facts central to  increasing a defendant's          offense level").                     We  will not  tarry.   As the  foregoing review  of the          record indicates, the lower court had before it ample evidence of          adequate  trustworthiness,  including   the  PSI  Report,   Agent          Sibilia's testimony,  the striking  similarities among  the eight          false  claims, and  the  details of  the  earlier scheme  at  the          Hampshire County Jail, to justify a finding that Fontaine engaged          in  a studied course of conduct that required (and received) more          than  minimal planning.  Given this evidence and given the serial          preparation and filing of multiple tax returns and refund claims,          there  was no error in  the imposition of  the upward adjustment.          See Tardiff,  969 F.2d  at 1288-89  (finding  that a  defendant's          ___ _______          "carefully orchestrated  series of mailings designed  to create a          false  impression"  satisfied  the  criteria   for  the  planning          adjustment); United States v. Gregorio, 956 F.2d 341, 343-44 (1st                       _____________    ________          Cir. 1992) (holding "repeated preparation and submission of false          statements" sufficient to warrant the enhancement); see generally                                                              ___ _________          United  States v.  Fox, 889  F.2d 357,  361 (1st Cir.  1989) ("We          ______________     ___          cannot  conceive of how obtaining  even one fraudulent loan would          not require more than minimal planning.").                                          B.                                          B.                                          __                                 Role in the Offense                                 Role in the Offense                                 ___________________                    At sentencing,  the district court  found that Fontaine                                          9          "organized the  [criminal] scheme," that he  "had decision making          authority over  his accomplices,"  and that the  scheme "involved          five  or  more participants."    The  appellant challenges  these          imbricated findings  and  the four-level  upward adjustment  that          they produced.      Under the sentencing guidelines, a four-level          enhancement  for a defendant's role in the offense obtains if the          government shows that the  defendant "was an organizer  or leader          of a criminal activity that involved five or more participants or          was otherwise  extensive."   U.S.S.G.  3B1.1(a); see  also United                                                           ___  ____ ______          States  v. Rostoff, 53 F.3d  398, 412-14 (1st  Cir. 1995); Dietz,          ______     _______                                         _____          950 F.2d  at 52-54.  As with other upward adjustments to the GSR,          the government  has the burden  of proving  the applicability  of          U.S.S.G.   3B1.1(a) in a particular  case.  See  United States v.                                                      ___  _____________          Morillo, 8 F.3d 864, 872 (1st Cir. 1993).          _______                    The government carried its  burden here.  A fair-minded          factfinder, drawing  reasonable inferences, could conclude    as,          indeed, Judge Freedman  did    that the eight  false claims  were          part of an integrated  course of conduct, and that  Fontaine (who          had  orchestrated  a similar  plot at  an  earlier time)  was the          mastermind of it.   We have  observed before that battles  over a          defendant's  role in the offense  will most frequently  be won or          lost in the  district court,  see United States  v. Graciani,  61                                        ___ _____________     ________          F.3d 70, 75  (1st Cir. 1995), and that  observation holds true in          this case.                    We need go no further.  Since the court's determination          that Fontaine organized and led a tax fraud scheme involving five                                          10          or more participants is  solidly rooted in the record,  we reject          the appellant's claim  of error.   See United  States v.  Tejada-                                             ___ ______________     _______          Beltran, 50 F.3d 105, 110-13 (1st Cir. 1995);  Dietz, 950 F.2d at          _______                                        _____          52-54.                    Affirmed.                    Affirmed.                    ________                                          11
