
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 95-1900                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  JONATHAN FELDMAN,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Nathaniel M. Gorton, U.S. District Judge]                                              ___________________                              _________________________                                        Before                               Selya, Stahl and Lynch,                                   Circuit Judges.                                   ______________                              _________________________               Annemarie Hassett, Federal Defender Office, for appellant.               _________________               Diane Cabo  Freniere, Assistant United States Attorney, with               ____________________          whom Donald K. Stern,  United States Attorney, was on  brief, for          the United States.                              _________________________                                    April 26, 1996                              _________________________                    SELYA,  Circuit  Judge.   Defendant-appellant  Jonathan                    SELYA,  Circuit  Judge.                            ______________          Feldman pleaded guilty to  a twelve-count indictment charging him          with fraud and interstate transportation of stolen property.  See                                                                        ___          18 U.S.C.     1341, 1343,  2314; 42 U.S.C.    408(a)(7)(B).   The          district court convened a disposition hearing on  August 3, 1995.          Using the  version of the  guidelines that was in  effect on that          date, see United  States v.  Harotunian, 920  F.2d 1040,  1041-42                ___ ______________     __________          (1st  Cir. 1990),  the  court computed  the guideline  sentencing          range (GSR) at 30-37 months  and imposed a 33-month incarcerative          sentence.   Feldman now  challenges the court's  determination of          the GSR and, ultimately, the sentence imposed.  We affirm.          I.  OVERVIEW          I.  OVERVIEW                    We  draw an  overview of  the facts  necessary  to shed          light on  this appeal  from the Presentence  Investigation Report          (PSI  Report) and the transcript of the disposition hearing.  See                                                                        ___          United States v. Dietz, 950 F.2d 50, 51 (1st Cir. 1991).          _____________    _____                    The defendant worked  for Norman and Eleanor Rabb  as a          home attendant from May  to October of 1993, assisting  them with          their personal care.  The Rabbs were octogenarians.  In addition,          Mr. Rabb was in  failing health and afflicted by  a deteriorating          mental condition.   The couple  could not  handle their  personal          finances and  a long-time  retainer, herself  seventy-eight years          old, wrote checks to pay their household expenses.                    During  the  course of  his  employment,  the defendant          became  privy to the Rabbs' finances.  Having obtained Mr. Rabb's          social security  number and  the account numbers  for a  Fidelity                                          2          Investments trust account and a Bank of Boston checking  account,          he set out to defraud  the Rabbs upon leaving their employ.   His          modus  operandi involved siphoning funds from  both the trust and          _____  ________          checking  accounts by impersonating  Mr. Rabb, forging negotiable          instruments, and  similar  artifices.   To cover  his tracks,  he          submitted to the postal service change of address forms directing          that all  the Rabbs' business mail be forwarded to the address of          his  own dwelling.   The  defendant then  retained the  mail that          would have  revealed his skulduggery  (such as the  monthly trust          account statements)  and forwarded the remainder to  the Rabbs to          quell  any   suspicions.    All  told,   the  defendant  pilfered          $139,972.00  from  the  trust  account and  $59,423.68  from  the          checking account before his shenanigans were discovered.          II.  DISCUSSION          II.  DISCUSSION                    The  defendant  challenges  two  rulings  made  by  the          district court in constructing the GSR.  We address these rulings          seriatim.                             A.  Obstruction of Justice.                             A.  Obstruction of Justice.                                 ______________________                    Invoking   U.S.S.G.    3C1.1,1   the   district   court          increased  the  defendant's  offense  level  for  obstruction  of          justice.  In requesting  the two-level enhancement the government          argued  that  the defendant  burned  bank  statements and  checks          belonging  to the  Rabbs in  his fireplace  on October  13, 1994,                                        ____________________               1This  guideline directs  a  two-level  increase  "[i]f  the          defendant  willfully  obstructed  or  impeded,  or  attempted  to          obstruct  or impede,  the  administration of  justice during  the          investigation,   prosecution,  or   sentencing  of   the  instant          offense."  U.S.S.G.  3C1.1 (Nov. 1994).                                          3          after learning that the Federal Bureau of Investigation (FBI) had          launched an  investigation.  The  defendant admitted that  he had          destroyed  documents after  learning  of the  investigation.   He          nonetheless  objected to the upward  adjustment on the basis that          he had  not burned financial data but had only burned drafts of a          will  and  letters of  apology that  he  had written  (though not          mailed) to  the Rabbs.  The district court did not choose between          these  versions but stated in effect that, on either version, the          enhancement applied.                    1.   Adequacy of Findings.  The  defendant asserts that                    1.   Adequacy of Findings.                         ____________________          the  district  court  erred  in leaving  unresolved  the  factual          controversy concerning  what the flames  consumed.   We review  a          sentencing court's factual findings under section 3C1.1 for clear          error,  see United States  v. Aymelek, 926 F.2d  64, 68 (1st Cir.                  ___ _____________     _______          1991),  but  we  afford   plenary  review  to  essentially  legal          determinations  (such   as  whether  section  3C1.1   includes  a          defendant's allegedly obstructive conduct within its scope),  see                                                                        ___          United States v. Emery, 991 F.2d 907, 910 (1st Cir. 1993).          _____________    _____                    When a  defendant alleges that a PSI  Report contains a          factual inaccuracy,  the district  court  ordinarily must  either          make  a  finding, up  or  down,  as to  the  allegation, or  else          determine that  no finding is necessary  because the controverted          matter will not be taken  into consideration in connection  with,          or  will not affect, the sentencing decision.   See Fed. R. Crim.                                                          ___          P. 32(c)(1); see  also U.S.S.G.   6A1.3 (Nov. 1994).   Thus,  the                       ___  ____          sentencing court need not resolve factual conflicts when doing so                                          4          will  serve no  useful purpose.   See  United States  v. Fuentes-                                            ___  _____________     ________          Vazquez, 52 F.3d 394, 397 (1st Cir. 1995); see also United States          _______                                    ___ ____ _____________          v.  Sepulveda, 15  F.3d  1161, 1199-1200  (1st Cir.  1993), cert.              _________                                               _____          denied, 114 S. Ct. 2714 (1994).  The instant case exemplifies the          ______          point:   the  judge was  not obliged  to choose  between the  two          conflicting  accounts  if  under  either  version  the  documents          constituted material evidence.  We explain briefly.                    Given  that the defendant knew of the ongoing FBI probe          and  nonetheless intentionally  incinerated  documents, the  only          question that remained was whether the documents in the pyre were          material to the investigation.  See United States v. St. Cyr, 977                                          ___ _____________    _______          F.2d  698, 705  (1st  Cir. 1992)  (explaining that  a defendant's          actions  must  impede  the  government's  investigation  in  some          material  way to trigger  an obstruction enhancement).   The bank          records that  the government described  plainly met the  test for          materiality.  In the alternative, the government argued that even          if  the defendant  had been  toasting  letters of  apology, those          letters would  also be material  and, hence, the  defendant would          still  be  guilty  of  an  obstruction  of  justice  within   the          contemplation of  section 3C1.1.   The record indicates  that the          lower court accepted this reasoning.  The court stated:                    [T]he defendant burned certain material after                    he knew  about the investigation  that was in                    progress and  that he did so  in this Court's                    mind   with   an  idea   of   preventing  the                    Government  from obtaining  relevant material                    evidence.                    Three   principles    guide   our   review    of   this          determination.    First,  the  test  for  materiality  under  the                                          5          obstruction-of-justice guideline  is not  stringent.   See United                                                                 ___ ______          States v. Ovalle-Marquez, 36 F.3d 212, 226 (1st Cir. 1994), cert.          ______    ______________                                    _____          denied, 115  S. Ct. 947, 1322  (1995); St. Cyr, 977  F.2d at 705.          ______                                 _______          Second, a  sentencing judge's finding of  materiality is reviewed          only for clear error.   See United States v. Biyaga, 9  F.3d 204,                                  ___ _____________    ______          205 (1st Cir. 1993); United States v. Pineda, 981  F.2d 569, 574-                               _____________    ______          75 (1st Cir.  1992).   Third, the  Sentencing Commission  defines          "material"  evidence in this context as evidence that "would tend          to influence or affect the  issue under determination."  U.S.S.G.           3C1.1,  comment. (n.5)  (Nov. 1994); see  also United  States v.                                                ___  ____ ______________          Kelley, 76 F.3d 436, 441 (1st Cir. 1996).          ______                    These  three   principles  counsel  rejection   of  the          defendant's  assignment of error.   The papers that the defendant          burned  were material if  they could have  influenced or affected          the  official investigation  into  his fraud.    If those  papers          included  the  Rabbs'  bank  statements  and  checks  (which  the          defendant  had intercepted  and which  were never  located), they          were obviously material.2   If, however, the  papers included the          defendant's written apologia  to the Rabbs,  then they were  also          material.  A letter of apology to the victims of a crime, even in          draft form,  is tantamount  to a confession  of guilt.   Had this          voluntary   confession,  in  the  defendant's  handwriting,  been          uncovered  in his home on  that October afternoon,  it would have          had the potential to influence the investigation of the fraud.                                        ____________________               2The defendant claims somewhat unconvincingly that he "lost"          all the bank records and checks belonging to the Rabbs.                                          6                    In  this case, all roads  lead to Rome.   Regardless of          which  version  of events  the  sentencing  court believed,  both          entailed  the destruction of material  evidence in the  face of a          known  investigation.   Thus,  we descry  no  clear error  in the          sentencing court's determination that the defendant's burning  of          evidence   whether bank records or letters of apology   warranted          an upward adjustment under section 3C1.1.  By the same token, the          district court  did not  err in  declining to  spin the  web more          finely  by making a particularized finding as to the exact nature          of the documents that were burned.                    This conclusion  likewise  stills the  defendant's  cry          that the district court  abused its discretion when it  failed to          hold  an  evidentiary  hearing  to resolve  the  factual  dispute          concerning the  nature  of the  burned  documents.   Because  the          defendant  destroyed evidence  material to  the investigation  on          either  version  of the  facts, the  evidentiary hearing  that he          demanded would have  amounted to  an empty charade.   A  district          court need not   indeed, should not   hold an evidentiary hearing          when nothing will turn on it.3                    2.   Fifth Amendment.  The  defendant's backup argument                    2.   Fifth Amendment.                         _______________                                        ____________________               3The defendant  also contends that the  district court erred          in failing to  make a  factual finding that  the defendant  acted          willfully and  with specific  intent to avoid  responsibility for          the fraud.    This contention  misperceives  the record.    Judge          Gorton did make  an explicit finding  of specific intent,  noting          that the  defendant's act of burning documents occurred "after he          knew about the investigation  that was in progress" and  that the          defendant  had in mind "an idea of preventing the Government from          obtaining  relevant material  evidence."   We require  no greater          precision  from  a  sentencing  court.    See  United  States  v.                                                    ___  ______________          Gonzales, 12 F.3d 298, 299-300 (1st Cir. 1993).          ________                                          7          on obstruction  of justice involves a  strained interpretation of          the  constitutional  right against  compelled self-incrimination.          He  posits that  the  papers he  burned  were personal  papers             letters of apology   not prepared in the course of committing the          offense, and he asseverates that it was  his constitutional right          to   incinerate  these   personal  papers   in  order   to  avoid          incriminating   himself.     This   argument   misconstrues   the          protections that the Fifth Amendment offers.                    The  law  is clear  that,  though  the Fifth  Amendment          protects  against  the  compelled  preparation  of  incriminating          documents  as  well  as   the  compelled  production  of  private          documents when the act of production itself is incriminating, the          Amendment does  not act  as a  general bar  to the production  of          private information  voluntarily prepared.  See  United States v.                                                      ___  _____________          Doe,  465 U.S. 605, 610-11  (1984); Fisher v.  United States, 425          ___                                 ______     _____________          U.S. 391, 400-01 (1976).  Once  an individual chooses voluntarily          to prepare a written account, the act of preparation serves as an          effective waiver of the Fifth  Amendment's protections.  See Doe,                                                                   ___ ___          465  U.S. at 610-11.  In other  words, just as a defendant cannot          begin to testify  at trial and  then change his  mind, a  suspect          cannot create a testimonial communication embodying incriminating          admissions and then  choose to destroy it  when he knows that  it          has become relevant to an ongoing criminal investigation.                    In  this  instance,  the  defendant  concedes  that  he          voluntarily  prepared  letters  of   apology,  but  he  claims  a          privilege on  the  basis that  the  letters were  private  papers                                          8          unrelated to the commission  of the crime.   This point does  not          aid the defendant's quest.                    The  Fifth Amendment does not deal  with the privacy of          the contents of documents, but, rather, with the voluntariness of          their preparation and production.   See Fisher, 425 U.S.  at 401.                                              ___ ______          This  court has  stated  that  if  the  privilege  against  self-          incrimination applies at all  to the contents of  private papers,          it does so  "only in rare situations, where  compelled disclosure          would break the heart of our sense of privacy."  In re Grand Jury                                                           ________________          Subpoena, 973 F.2d 45, 51 (1st Cir. 1992) (citations and internal          ________          quotation  marks  omitted).    The  defendant's  letters,  as  he          describes them, do not fit this mold.                    The appellant  goes one  step further when  he suggests          that the  privilege against self-incrimination includes the right          to  destroy  voluntarily  prepared   documents.    Otherwise,  he          maintains, any time a defendant authors personal notes that might          aid  an investigation, and  later decides to  eradicate them, the          fact  of destruction  could be  used to  enhance his  punishment.          This may be so   but the contention that such a rule violates the          privilege against self-inculpation  distorts the contours  of the          Fifth  Amendment.   There  is simply  no constitutional  right to          destroy evidence.                    The Supreme Court made the  point bluntly in Segura  v.                                                                 ______          United States, 468 U.S.  796 (1984).  There the Court stated that          _____________          the very  idea  of such  a right  "defies both  logic and  common          sense."  Id. at  816; accord United States v.  Corral-Corral, 899                   ___          ______ _____________     _____________                                          9          F.2d 927, 930 (10th Cir. 1990); Hancock v. Nelson, 363 F.2d  249,                                          _______    ______          254 (1st Cir. 1966), cert. denied, 386 U.S. 984 (1967).  Though a                               _____ ______          person  ordinarily may refuse to prepare  or produce any evidence          that is self-incriminating, see,  e.g., Andresen v. Maryland, 427                                      ___   ____  ________    ________          U.S. 463, 475 (1976), that privilege  in no way suggests that the          person  may take  affirmative action  to destroy evidence    even          evidence that  he himself  has created    once he  is aware  that          authorities  are searching for it  (or something like  it).  That          act  of affirmative  misconduct,  undertaken with  the intent  of          hindering an extant investigation, is the paradigmatic example of          an  obstruction  of  justice.    See  U.S.S.G.   3C1.1,  comment.                                           ___          (n.3(d)) (Nov. 1994).                    Nor  do  the sentencing  guidelines  provide a  special          layer  of swaddling.  To be sure, the Sentencing Commission wrote          that the  enhancement for obstruction of justice "is not intended          to  punish  a  defendant for  the  exercise  of a  constitutional          right."   U.S.S.G.   3C1.1, comment.  (n.1)  (Nov. 1994).    This          reminder  of Fifth  Amendment  safeguards simply  means that  the          enhancement should not apply to a defendant who does no more than          stand  upon  his  rights,  say, by  maintaining  his  silence  or          refusing  voluntarily to  disclose  evidence of  his guilt.   See                                                                        ___          Thomas W. Hutchison  & David Yellen,  Federal Sentencing Law  and                                                ___________________________          Practice     3C1.1  author's   comment  4  (1994).    Affirmative          ________          misconduct, however,  is the intended target  of the obstruction-          of-justice  enhancement, and, as  such, increasing  a defendant's          sentence  for  affirmative  misconduct  does  not  trespass  upon                                          10          protected terrain.                    In sum,  the defendant's  act of  burning incriminating          documents was not shielded  by the Fifth Amendment even  if those          documents comprised  personal  papers that  he  himself  created.          Hence,  the  sentencing court  did not  err  when it  applied the          section 3C1.1 enhancement in this case.4                               B.  Vulnerable Victims.                               B.  Vulnerable Victims.                                   __________________                    Feldman's second  assignment  of error  calumnizes  the          district  court's imposition  of  a  two-level upward  adjustment          attributable to the Rabbs' status as vulnerable victims.5                     1.   Generic  Traits.   The defendant's  first sally                       1.   Generic  Traits.                         _______________          which contends that the sentencing court applied the  wrong legal          standard  because   it  based  the  enhancement   on  the  Rabbs'          membership in a generic  class of elderly persons rather  than on          some individualized vulnerability that  they might have possessed            need not occupy us for long.  We are in  general agreement with          the  defendant's premise:   in  determining  the propriety  of an          upward  adjustment  for  vulnerability,  the  sentencing  court's          sights   must    be   trained   on    the   victim's   individual                                        ____________________               4At oral  argument defense counsel suggested  that the Fifth          Amendment  applied here  because  the  letters  were  preliminary          drafts  rather than finished products.   We do  not consider that          argument.  It was not made below,  it was not made in the briefs,          and it was  not developed at any time.   It is, therefore, triply          waived.               5The guidelines provide  for a  two-level upward  adjustment          when an  offender "knew or should have known that a victim of the          offense was unusually vulnerable  due to age, physical  or mental          condition,   or  that   a  victim   was  otherwise   particularly          susceptible  to the  criminal  conduct."   U.S.S.G.  3A1.1  (Nov.          1994).                                          11          characteristics.   Thus, in order to warrant a finding of unusual          vulnerability, there must be some evidence, above and beyond mere          membership  in a large class, that the victim possessed a special          weakness  that the  defendant exploited.   See  United  States v.                                                     ___  ______________          Smith,  930 F.2d 1450,  1455 (10th  Cir.) (holding  that advanced          _____          age,   without  more,   does  not   render  a   victim  unusually          vulnerable), cert. denied, 502  U.S. 879 (1991); see  also United                       _____ ______                        ___  ____ ______          States v. Rowe, 999 F.2d 14,  17 (1st Cir. 1993) (cautioning that          ______    ____          courts  cannot predicate  a finding  of unusual  vulnerability on          generalizations about large classes to which the victim belongs).                     Contrary  to the  defendant's importuning,  the record          reflects  that the  district  court apprehended  and applied  the          standard enunciated above.   This conclusion is buttressed in two          separate  ways.  First,  at the  sentencing hearing  Judge Gorton          explicitly found  (a) that "the  defendant knew that  the victim,          Norman  Rabb,  was elderly  and  that his  mental  faculties were                                      _____________________________________          failing"  (emphasis  supplied),   and  (b)  that  the   defendant          _______          proceeded to exploit this condition.  Second, the judge expressly          adopted  the factual  findings contained  in the  PSI Report    a          document  that  made  clear,  inter   alia,  that  Mr.  Rabb  was                                        _____   ____          physically  debilitated and that the Rabbs  were unable to handle          their  personal finances.  We have accepted such findings as long          as the purport and intent of the sentencing court is clear.   See                                                                        ___          United  States  v. Savoie,  985 F.2d  612,  620 (1st  Cir. 1993).          ______________     ______          These adopted findings qualify under that test.                    To say more would be supererogatory.  The record simply                                          12          does not bear out the claim that the sentencing court applied the          enhancement only  because the Rabbs were  octogenarians or shared          certain generic aspects of a class of elderly persons.                    2.  Targeting.   The defendant  also contends that  the                    2.  Targeting.                        _________          sentencing  court erred  in  applying section  3A1.1 because  the          government  did not show that he  targeted the Rabbs due to their          particular  vulnerability to  the planned  fraud.   This argument          prescinds from the Sentencing Commission's advisory (now revoked,          but  in  effect on  the date  of  Feldman's sentencing)  that the          adjustment  here  in  question  "applies  to  offenses  where  an          unusually vulnerable victim is made a target of criminal activity          by the defendant."  U.S.S.G.  3A1.1, comment. (n.1)  (Nov. 1994).          The defendant maintains that, unless we are prepared to disregard          Rowe's interpretation  of the  "target" language, the  government          ____          must demonstrate  that the offender selected  his victims because          of some "special susceptibility."  Rowe, 999 F.2d at 17.                                             ____                    A backward glance helps to place this asseveration into          perspective.  Application Note 1, in its pre-1995 form, proved to          be controversial.  In particular, the "target" language split the          circuits on the issue of whether the government had to prove that          the defendant was motivated by the victim's special vulnerability          in  order to  lay a  foundation for  the upward  adjustment, see,                                                                       ___          e.g., United States  v. Smith, 39 F.3d 119,  124 (6th Cir. 1994);          ____  _____________     _____          United States  v. Cree,  915 F.2d  352, 354  (8th Cir. 1990),  or          _____________     ____          whether  the  government merely  had to  show that  the defendant          targeted his  victim with the knowledge  (actual or constructive)                                          13          that  the  victim was  unusually  vulnerable,  see, e.g.,  United                                                         ___  ____   ______          States  v. O'Brien, 50 F.3d 751, 754-55  (9th Cir. 1995).  Dictum          ______     _______          in Rowe  tended to edge this  court toward the former  view.  See             ____                                                       ___          Rowe, 999 F.2d at 17.          ____                    We  need not probe the point more deeply.  For purposes          of the  case at hand,  the dispute is  academic; either  way, the          proof suffices.  As  for future cases, the  Sentencing Commission          has  removed all reasonable  doubt by amending  the commentary to          section  3A1.1.  In an  effort to resolve  "some inconsistency in          the  application  of   3A1.1  regarding whether  this  adjustment          required proof  that the  defendant had  `targeted the  victim on          account of the victim's vulnerability,'" U.S.S.G. App. C., Amend.          521,  at 430  (Nov. 1995),  the Commission  deleted  the "target"          language.   The revised  note merely  states that  the vulnerable          victim  provision "applies  to  offenses  involving an  unusually          vulnerable victim in  which the  defendant knows  or should  have          known of  the victim's unusual vulnerability."   U.S.S.G.  3A1.1,          comment.  (n.2) (Nov. 1995).  In future cases this provision, not          our statements in Rowe, will govern.                            ____                    Applying  Rowe  generously,  i.e.,  assuming  arguendo,                              ____                                ________          favorably to Feldman, that targeting was an essential  element of          the government's proof, the  defendant's argument founders.  Rowe                                                                       ____          merely requires that a special susceptibility have  been a factor          in the offender's process of selecting  his prey.  See id. at 16-                                                             ___ ___          17 & n.3.  This means that  the government did not need to  prove          here  that  the defendant  set  out  to  defraud elderly,  infirm                                          14          people,  and targeted the  Rabbs because they  fit the bill.   It          also means that  the government  did not need  to prove that  the          Rabbs' infirmities were the sole reason that the defendant zeroed          in on them.   Even under the Rowe regime,  expansively construed,                                       ____          the government had to  show only that the defendant  selected the          Rabbs  as his  victims  in part  because  they were  elderly  and          infirm.   See Cree, 915 F.2d at 354 (explaining that "enhancing a                    ___ ____          defendant's sentence  based on victim vulnerability  is justified          only when a  defendant's actions  in some way  exploited or  took                                            ___________          advantage of that vulnerability") (emphasis supplied).                    The  record  in this  case  contains  more than  enough          evidence to  justify a finding  that the  defendant targeted  the          Rabbs  because of their vulnerability.  After all, he entered the          Rabbs'  employ  only  because  of  their  infirmity and,  in  his          capacity as a home care assistant, he gained copious knowledge of          their  afflictions.   Knowing  of their  diminished capacity,  he          obtained  information necessary  to carry  out  his plot.   Given          these and other facts,  we believe that the record  establishes a          nexus   between   victims'   susceptibility    and   victimizer's          criminality adequate  to establish targeting.   See United States                                                          ___ _____________          v. Pavao,  948 F.2d 74, 78  (1st Cir. 1991).   Thus, the district             _____          court's  finding  that  the  defendant targeted  his  victims  on          account of their age and infirmity warrants our approbation.                    We need  go no further.   Here, the  defendant selected          his  victims because he had been their personal caretaker and had          discovered their vulnerabilities at first hand.  The victims were                                          15          elderly, in failing  health, and  no longer in  control of  their          finances.  The  defendant enacted his scheme  with full knowledge          that  these  vulnerabilities  would  make  his  crime  easier  to          accomplish.  Consequently, the district court did not clearly err          in determining that the Rabbs were vulnerable  victims within the          scope  of U.S.S.G.   3A1.1, and  that the defendant  had targeted          them on that basis.          Affirmed.          Affirmed.          ________                                          16
