United States v. D'Andrea
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Opinion
USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-2105
UNITED STATES,
Appellee,
v.
THOMAS D'ANDREA,
Defendant - Appellant.
____________________
ERRATA SHEET
The opinion of this court issued on March 5, 1997 is amended
as follows:
Page 22, line 15 should read: "1988)) (citations omitted)."
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-2105
UNITED STATES,
Appellee,
v.
THOMAS D'ANDREA,
Defendant - Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Coffin, Senior Circuit Judge, ____________________
and Tauro,* District Judge. ______________
_____________________
Arthur R. Silen, by appointment of the Court, with whom ________________
Roberts & Newman, P.A. was on brief for appellant. ______________________
Ira Belkin, Assistant United States Attorney, with whom ___________
Sheldon Whitehouse, United States Attorney, was on brief for ___________________
appellee.
____________________
March 5, 1997
____________________
____________________
* Of the District of Massachusetts, sitting by designation.
TORRUELLA, Chief Judge. On October 13, 1994, TORRUELLA, Chief Judge. _____________
Defendant-Appellant Thomas D'Andrea ("D'Andrea") was indicted on
one count of bank fraud in violation of 18 U.S.C. 1344 (Count
One) and six counts of making false statements to a federally
insured financial institution in violation of 18 U.S.C. 1014.
After a two-week trial in the District Court of Rhode Island, a
jury found D'Andrea guilty on all counts. The district court
sentenced D'Andrea to five years' imprisonment on Count One and
two years' imprisonment for each of the other counts, to run
concurrently, and three years' supervised release on Count One
and one year supervised release on the other counts, also to run
concurrently. In addition, the district court ordered D'Andrea
to make restitution to the Resolution Trust Corporation in the
amount of $2.2 million for losses related to the fraudulent loan
activities. D'Andrea now claims errors related to both the trial
and sentencing phases. Concluding that the district court did
not commit error, we affirm D'Andrea's conviction and sentence.
BACKGROUND BACKGROUND
In late 1988, D'Andrea, Robert D'Andrea (D'Andrea's
brother), Gary Lowenstein, and Michael Tulman applied for and
obtained a $2.88 million loan from New England Federal Savings
Bank ("New England Federal" or "the bank"), a federally insured
institution. The loan was obtained for the purpose of acquiring
a warehouse and truck terminal located in Cranston, Rhode Island.
Because the bank would only lend up to eighty percent of the
total purchase price of the warehouse, D'Andrea, and at least one
-2-
of the sellers of the property, Frank Paolino, schemed to inflate
the purchase price of the warehouse from just over two million
dollars to $4.18 million. By so inflating the price, D'Andrea
was able to receive from the bank a loan in the amount of the
purchase price, thereby relieving himself and his fellow
purchasers of the burden of putting any of their own money into
the purchase of the warehouse.
The scheme went as follows. D'Andrea represented to
New England Federal that the purchasers would pay the $1.3
million difference required to meet the $4.18 million purchase
price. In order to make up this gap, D'Andrea submitted false
records to the bank indicating that certain deposits had already
been made to the sellers. In addition, the bank requested
agreements indicating the amount of rent paid by each of the
tenants at the warehouse. D'Andrea forged the signatures of the
officers of each of the warehouse tenants on documents that he
then submitted to the bank. D'Andrea also submitted a document
to the bank indicating a tenant-landlord relationship with a
company that never rented space at the warehouse. Two witnesses
testified that D'Andrea presented them with copies of documents
containing falsified rental amounts for tenants at the warehouse.
D'Andrea also admitted that he forged tenant signatures on
tenant-at-will agreements without the knowledge or permission of
officials at the tenant-companies.
During the course of the trial, D'Andrea testified that
he took pains to pay off the $2.88 million loan from New England
-3-
Federal. On cross-examination of D Andrea, the government
elicited testimony that he used proceeds from a $5.9 million loan
from Rhode Island Central Credit Union to pay off part of that
loan. D'Andrea obtained this loan along with four others, the
Zarella brothers.1 D'Andrea testified that, in
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USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-2105
UNITED STATES,
Appellee,
v.
THOMAS D'ANDREA,
Defendant - Appellant.
____________________
ERRATA SHEET
The opinion of this court issued on March 5, 1997 is amended
as follows:
Page 22, line 15 should read: "1988)) (citations omitted)."
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-2105
UNITED STATES,
Appellee,
v.
THOMAS D'ANDREA,
Defendant - Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Coffin, Senior Circuit Judge, ____________________
and Tauro,* District Judge. ______________
_____________________
Arthur R. Silen, by appointment of the Court, with whom ________________
Roberts & Newman, P.A. was on brief for appellant. ______________________
Ira Belkin, Assistant United States Attorney, with whom ___________
Sheldon Whitehouse, United States Attorney, was on brief for ___________________
appellee.
____________________
March 5, 1997
____________________
____________________
* Of the District of Massachusetts, sitting by designation.
TORRUELLA, Chief Judge. On October 13, 1994, TORRUELLA, Chief Judge. _____________
Defendant-Appellant Thomas D'Andrea ("D'Andrea") was indicted on
one count of bank fraud in violation of 18 U.S.C. 1344 (Count
One) and six counts of making false statements to a federally
insured financial institution in violation of 18 U.S.C. 1014.
After a two-week trial in the District Court of Rhode Island, a
jury found D'Andrea guilty on all counts. The district court
sentenced D'Andrea to five years' imprisonment on Count One and
two years' imprisonment for each of the other counts, to run
concurrently, and three years' supervised release on Count One
and one year supervised release on the other counts, also to run
concurrently. In addition, the district court ordered D'Andrea
to make restitution to the Resolution Trust Corporation in the
amount of $2.2 million for losses related to the fraudulent loan
activities. D'Andrea now claims errors related to both the trial
and sentencing phases. Concluding that the district court did
not commit error, we affirm D'Andrea's conviction and sentence.
BACKGROUND BACKGROUND
In late 1988, D'Andrea, Robert D'Andrea (D'Andrea's
brother), Gary Lowenstein, and Michael Tulman applied for and
obtained a $2.88 million loan from New England Federal Savings
Bank ("New England Federal" or "the bank"), a federally insured
institution. The loan was obtained for the purpose of acquiring
a warehouse and truck terminal located in Cranston, Rhode Island.
Because the bank would only lend up to eighty percent of the
total purchase price of the warehouse, D'Andrea, and at least one
-2-
of the sellers of the property, Frank Paolino, schemed to inflate
the purchase price of the warehouse from just over two million
dollars to $4.18 million. By so inflating the price, D'Andrea
was able to receive from the bank a loan in the amount of the
purchase price, thereby relieving himself and his fellow
purchasers of the burden of putting any of their own money into
the purchase of the warehouse.
The scheme went as follows. D'Andrea represented to
New England Federal that the purchasers would pay the $1.3
million difference required to meet the $4.18 million purchase
price. In order to make up this gap, D'Andrea submitted false
records to the bank indicating that certain deposits had already
been made to the sellers. In addition, the bank requested
agreements indicating the amount of rent paid by each of the
tenants at the warehouse. D'Andrea forged the signatures of the
officers of each of the warehouse tenants on documents that he
then submitted to the bank. D'Andrea also submitted a document
to the bank indicating a tenant-landlord relationship with a
company that never rented space at the warehouse. Two witnesses
testified that D'Andrea presented them with copies of documents
containing falsified rental amounts for tenants at the warehouse.
D'Andrea also admitted that he forged tenant signatures on
tenant-at-will agreements without the knowledge or permission of
officials at the tenant-companies.
During the course of the trial, D'Andrea testified that
he took pains to pay off the $2.88 million loan from New England
-3-
Federal. On cross-examination of D Andrea, the government
elicited testimony that he used proceeds from a $5.9 million loan
from Rhode Island Central Credit Union to pay off part of that
loan. D'Andrea obtained this loan along with four others, the
Zarella brothers.1 D'Andrea testified that, in obtaining this
loan, he forged the signatures of the Zarella brothers wives on
a guarantee form.
Finally, D'Andrea used the warehouse property located
in Cranston, Rhode Island, obtained through the use of false
documents, as security for yet another loan, for $585,000 from
Rhode Island Central Credit Union.
DISCUSSION DISCUSSION
D'Andrea makes numerous claims on appeal, most of which
we discern to be related to his sentencing. We will consider
each argument individually.
I. Government's Use of the Phrase "Straw Borrowers" I. Government's Use of the Phrase "Straw Borrowers"
Without citation to any supporting case law, D'Andrea
argues as follows:
At trial, over D'Andrea's objection, the
prosecutor repeatedly asked D'Andrea
whether he used 'straw borrowers in his
dealings with Rhode Island Central Credit
Union. . . . D'Andrea denied using
'straws', but regardless, the jury could
not have been unaffected, because the
term 'straw borrowers' was a hot-button
term repeatedly used by the news media to
describe unsophisticated participants in
____________________
1 This name is spelled "Zarella" in the trial transcript and
"Zarrella" in the sentencing hearing transcript. For purposes of
consistency, we will use the spelling "Zarella." Some quotations
taken from Appellant's Brief contain the spelling "Zarrella."
-4-
real estate ventures who were said to
[have] been induced to join with real
estate developers in funding speculative
and unsound real estate ventures.
We read this statement to be an argument that the prejudicial
effect of the government's use of the term "straw borrowers" so
outweighed its probative value that the district court should
have barred use of the term. "Unfairly prejudicial evidence is
evidence . . . that 'triggers [the] mainsprings of human action
[in such a way as to] cause the jury to base its decision on
something other than the established proposition in the case.'"
United States v. Currier, 836 F.2d 11, 18 (1st Cir. 1987) ______________ _______
(quoting 1 Weinstein's Evidence 403, 36-39 (1986)).
We review a district court's evidentiary rulings for
abuse of discretion. United States v. Trenkler, 61 F.3d 45, 56 _____________ ________
(1st Cir. 1995). We grant a district court's on-the-spot
determination of prejudice and probativeness wide latitude and
"'[o]nly in exceptional circumstances will we reverse the
exercise of a district court's informed discretion vis-a-vis the
relative weighing of probative value and unfairly prejudicial
effect.'" United States v. DiSanto, 86 F.3d 1238, 1252 (1st Cir. _____________ _______
1996) (quoting Currier, 836 F.2d at 18), petition for cert. _______ ___________________
filed, No. 96-1176, 65 U.S.L.W. 3531 (Nov. 12, 1996). _____
Although the judge did not make explicit findings
regarding the probativeness of the inquiry into the use of "straw
borrowers," the government stated that it was pursuing the
inquiry as rebuttal to D'Andrea's statement that he had
approximately $100,000 on deposit with Rhode Island Central
-5-
Credit Union when the credit union closed. The government was
attempting to show that, although D Andrea lost a significant sum
of money because of the failure of the credit union, he also owed
the credit union millions of dollars, including money from loans
obtained using others' names.
The government s line of questioning was probative for
rebuttal purposes and was limited in nature. "Rebuttal evidence
may be introduced to explain, repel, contradict or disprove an
adversary's proof." United States v. Laboy, 909 F.2d 581, 588 _____________ _____
(1st Cir. 1990). Moreover, once the government established in a
matter of five questions that D'Andrea claimed no knowledge of
such loans, it moved on and did not refer to "straw borrowers"
again during the course of the trial. We find that the district
court did not abuse its discretion.
II. Sentencing Issues II. Sentencing Issues
A. Relevant Conduct A. Relevant Conduct
D'Andrea's next claim of error suggests that the
district court's judgment during sentencing was somehow tainted
by its consideration of the term "straw borrowers":
D'Andrea's prominent role as a major
borrower from [Rhode Island Central
Credit Union] could not have been ignored
by Judge Lagueux in his assessment of
D'Andrea's culpability, and it was his
involvement in the latter that fatally
infected the court's judgment in the New
England Federal Savings Bank case. . . .
D'Andrea was not on trial for his
activities involving the RISDIC-insured
credit unions; and the prosecutor's
questions [regarding "straw borrowers"]
were clearly intended to inflame the jury
and the court.
-6-
* * *
In considering the Government's
position, Judge Lagueux noted D'Andrea's
objections, but considered D'Andrea's
forgery of the Zarrella wive's [sic]
signatures on the loan guarantee as
"relevant conduct". . . .
At the same time the trial judge
assumed that the Zarrellas['] role in _______
that transaction was . . . fraudulent,
and he made no finding that the
Zarrellas, or for that matter, any of the
other alleged "straw borrowers" were
involved in a scheme to defraud Rhode
Island Central Credit Union, were
unsophisticated investors, or were
unaware of the obligations they were
incurring . . . .
Appellant's Brief at 22-24. Although appellant s brief is
difficult to decipher, D'Andrea appears to object both to the
district court's consideration of D'Andrea's forgery of the
Zarellas' wives' signatures and to the district court's
consideration of the alleged fraudulent nature of the loan
D'Andrea obtained from Rhode Island Central Credit Union with the
Zarellas. Both claims lack merit.
First, the district court's determination that
D'Andrea's forgery constituted "relevant conduct" is a finding of
fact, which we review for clear error. United States v. Tejada- _____________ _______
Beltr n, 50 F.3d 105, 109 (1st Cir. 1995). For the sentencing _______
court to consider uncharged conduct at sentencing, "the
government must show a sufficient nexus between the conduct and
the offense of conviction by a preponderance of the evidence."
United States v. Young, 78 F.3d 758, 763 (1st Cir. 1996). Under _____________ _____
the Sentencing Guidelines, "relevant conduct" includes acts "that
-7-
were part of the same course of conduct or common scheme or plan
as the offense of conviction." U.S.S.G. 1B1.3. For actions in
the Rhode Island Central Credit Union loan acquisition and the
charged offense to be considered part of a common scheme or plan,
"they must be substantially connected to each other by at least
one common factor, such as common victims, common accomplices,
common purpose, or similar modus operandi." U.S.S.G. 1B1.3,
Commentary.
We believe that the district court properly concluded
that the use of forgery to obtain the Rhode Island Central Credit
Union loan was part of the same scheme or plan as D Andrea s
fraudulent efforts to obtain the loan from New England Federal.
D'Andrea used proceeds from the fraudulently obtained $5.9
million credit union loan to pay off portions of the first
fraudulently obtained bank loan. This, as the district court
noted, amounted to a scheme by which D'Andrea "robb[ed] Peter to
pay Paul." Transcript of Sentencing Hearing, September 7, 1995,
at 16. We cannot find any error here, let alone clear error.
Second, the record offers some indication that the
sentencing court considered D'Andrea's use of straw borrowers as
part of the fraud he perpetrated on Rhode Island Central Credit
Union to obtain the $5.9 million loan. To be considered
"relevant conduct," the government must prove D'Andrea's actions
by a preponderance of the evidence. At trial, D Andrea denied
use of straw borrowers and nothing in the pre-sentencing report
supports, by a preponderance of the evidence, the conclusion that
-8-
D'Andrea used the Zarellas as straw borrowers. Although, on this
record, it does not appear that a showing by a preponderance of
the evidence was made by the government regarding D'Andrea's use
of straw borrowers, we have already determined that the loan was
properly before the court as "relevant conduct" based on the
forgery.
Moreover, at the sentencing proceeding, D'Andrea's
trial counsel objected to enhancement of D Andrea s offense level
on the basis of his use of straw borrowers only as it related to
what he considered triple counting: use of the loan to calculate
the measure of loss as a result of D'Andrea's fraudulent
activities; use of the loan as "relevant conduct"; and use of the
loan to determine D'Andrea's role in the offense.2 D'Andrea did
____________________
2 D'Andrea's counsel's objection was stated as follows:
In addition, your Honor, it's counsel's
opinion that all of the reference with
respect to the adjustment for the role of
the offense of straw borrowers in the
state case, cases, is, again, an attempt
with an increase of a level 4 to subject
Mr. D'Andrea to additional punishment for
something that has not been decided. I
realize there are federal cases that say
in fact that can be done. My point is
that it's being done three times to him
on three different levels for three
different types of consideration under
the guidelines. I don't think that's
appropriate. Certainly if the Court
finds that it's "relevant conduct" it can
consider it. But it considers it as to
the amount of the loan, as to the
"relevant conduct", as to his
participation in the offense. It's all
the same thing. But yet he gets
increased levels for that kind of
activity and I don't think that's
-9-
not object that the government had failed to prove uncharged
"straw borrowers" conduct by a preponderance of the evidence to
justify its consideration as "relevant conduct," as he appears to
charge here. Because D'Andrea did not preserve this argument
below, we review only for plain error. See United States v. ___ ______________
Bennett, 60 F.3d 902, 905 (1st Cir. 1995) (rejecting appellant s _______
argument raised for the first time on appeal where different
argument accompanied his objection below); United States v. ______________
Tutiven, 40 F.3d 1, 7-8 (1st Cir. 1994) (applying plain error to _______
sentencing argument that was not preserved below), cert. denied, ____________
115 S. Ct. 1391 (1995). Under this standard, we "will reverse
only if the error 'seriously affect[ed] the fundamental fairness
and basic integrity of the proceedings.'" United States v. ______________
Tuesta-Toro, 29 F.3d 771, 775 (1st Cir. 1994), cert. denied, ___________ _____________
115 S. Ct. 947 (1995). Because the $5.9 million loan was
properly before the sentencing court as "relevant conduct" based
on the forgeries alone, the district court's consideration of the
loan based on other factors cannot be plain error.
B. Amount of Loss B. Amount of Loss
D'Andrea claims error both in the sentencing court's
failure to depart downward for multiple loss causation regarding
____________________
appropriate. . . . So my suggestion to
the Court is that although the level with
respect to fraud is six it can be
increased but it should not be increased
three fold with respect to those
particular items.
Transcript of Sentencing Hearing, at 13-14.
-10-
the amount of loss to New England Federal and in the sentencing
court's consideration of the Rhode Island Central Credit Union
loan in calculating overall loss.
-11-
1. The New England Federal Loan 1. The New England Federal Loan
Regarding the New England Federal loan, D'Andrea
contends that the loss of $2.2 million3 to New England Federal,
and its successor, Resolution Trust Corporation, had more to do
with the economic climate in which it later sold the property to
recover some of its loss than it had to do with D'Andrea's
conduct. He appears to argue that the district court should have
recognized the multiple loss causation and departed downward to
accommodate it.
We begin by noting that the loss table in section 2F1.1
of the Sentencing Guidelines "presumes that the defendant alone
is responsible for the entire amount of victim loss specified in
the particular loss range selected by the sentencing court."
United States v. Gregorio, 956 F.2d 341, 347 (1st Cir. 1992). _____________ ________
Commentary to section 2F1.1 states that a sentencing court may
depart downward where it finds the loss was caused by factors in
addition to the defendant's conduct:
In a few instances, the total dollar loss
that results from the offense may
overstate its seriousness. Such
situations typically occur when a
misrepresentation is of limited
materiality or is not the sole cause of
the loss. . . . In such instances, a
downward departure may be warranted.
U.S.S.G. 2F1.1, Commentary.
____________________
3 The amount of loss was determined by subtracting from the
original $2.88 million loan the amount recovered at the ultimate
sale of the property by Resolution Trust Corporation, roughly
$600,000.
-12-
We lack jurisdiction to review the district court s
decision not to depart downward under the long-standing rule that
"a criminal defendant cannot ground an appeal on a sentencing
court's discretionary decision not to depart below the guideline
sentencing range." United States v. Pierro, 32 F.3d 611, 619 _____________ ______
(1st Cir. 1994), cert. denied, 115 S. Ct. 919 (1995); see _____________ ___
generally, United States v. Tucker, 892 F.2d 8, 9 (1st Cir. 1989) _________ _____________ ______
(holding defendant may not appeal a district court s decision not
to depart downward).
2. The Rhode Island Central Credit Union Loan 2. The Rhode Island Central Credit Union Loan
D'Andrea's argument here appears to suggest that the
$5.9 million loss was not foreseeable to him because he thought
he was negotiating a non-recourse loan. At trial, D'Andrea
contended that he was convinced after discussions with the credit
union's president, John Lanfredi, that the loan was to be non-
recourse and, therefore, the bank could not pursue the borrowers
for recourse in the event of default. Because of this
misperception, D'Andrea seems to suggest that he could not have
foreseen the loss and thus cannot be held liable for the amount
of that loss.
The record shows only the following comment from
D'Andrea's counsel regarding the loss calculation: "The
defendant contends under Section F1.1(b)(1)(L) that the principal
and actual loss was 1.3 million and no other factors should be
considered to determine the characteristic level." Addendum to
the Presentence Report, at 2. We accordingly find that D'Andrea
-13-
failed to preserve any foreseeability argument for appeal, and
review only for plain error. Tuesta-Toro, 29 F.3d at 775. We ___________
discern no such error here.
C. Role in the Offense C. Role in the Offense
D'Andrea argues that the sentencing court committed
reversible error when it determined, in finding that D'Andrea was
a "leader" or "organizer" under U.S.S.G. section 3B1.1, that
D'Andrea's fraud included at least five participants or was
otherwise extensive. D'Andrea presents no caselaw to support
this proposition. Typically, finding an error of this sort, we
vacate the sentence and remand to the sentencing court for
resentencing. See, e.g., United States v. Wester, 90 F.3d 592, ___ ____ _____________ ______
599-600 (1st Cir. 1996) (vacating appellant's sentence and
remanding case for resentencing upon a determination that the
sentencing court had not made clear and legally supportable
findings that the defendant was a leader or organizer of a fraud
involving five or more participants or that was otherwise
extensive).
The district court's findings regarding D'Andrea's role
in the offense are fact-intensive and we review them for clear
error. See United States v. Rostoff, 53 F.3d 398, 413 (1st Cir. ___ _____________ _______
1995). In finding that D'Andrea was a leader or organizer of
this fraud, the sentencing court determined the following:
There's no question that he was an
organizer or leader of this transaction
and he enlisted two other people,
[Tulman] and Lowenstein, in this
transaction. There's very little
evidence about [Tulman] or Lowenstein
-14-
that was presented in this case but
certain[ly] they had to be aware of some
of the Defendant's activities in securing
this fraudulent loan and making all these
false statements with the bank. Paolino
was in effect a co-conspirator with him.
The evidence is clear on that. Paolino
had to know that this was a great big
fraud, that the real purchase price for
the property was $2.8 million and not
$4.1 million as stated in the purchase
and sale agreement. . . . [Pat Paolino]
did [D'Andrea's] road running to get all
the fraudulent tenant letters together to
fool the bank. And Michael Favicchio,
another actor in this, he was the
mortgage broker. He was the most nervous
witness I ever saw on the witness stand.
Michael Favicchio knew what was going on.
He wanted his fee as a mortgage broker
and so he transmitted all this material
that was coming from the Defendant to the
bank. He didn't tell all he knew from
the witness stand but he was a
participant in this fraud whether
wittingly or unwittingly. So there were
at least five participants in this
particular fraud and, of course, there
were the Zarrellas in the other banking
fraud with Rhode Island Central Credit
Union and his forgery of the Zarrella
wives' signatures. So it seems to me
that the first test is met that he was an
organizer or leader with five or more
participants. In any event, it was an
otherwise extensive fraud and there was
one other co-conspirator, Paolino, and so
both prongs of that adjustment are met in
this case and the total offense level
should be increased by four.
Transcript of Sentencing Hearing, at 18-19. A court making a
four-level role-in-the-offense adjustment under U.S.S.G. section
3B1.1(a) must first determine "whether the defendant acted as an
organizer/leader of a specific criminal activity. If so, the
court asks the separate question of whether that criminal
activity involved five or more participants, defined in the
-15-
Commentary as persons who are 'criminally responsible for the
commission of the offense . . . .'" United States v. Preakos, ______________ _______
907 F.2d 7, 10 (1st Cir. 1990) (quoting U.S.S.G. 3B1.1,
Commentary). D'Andrea does not challenge the sentencing court's
initial finding that he was an organizer or leader of criminal
activity. His argument focuses on whether the district court
properly found five participants in his fraud.
The record indicates that the district court set out
the individuals involved in the transaction, without making a
specific finding that each was a "participant." We need not
determine, however, whether the court could have found by a
preponderance of the evidence that D'Andrea's fraud involved five
criminally responsible "participants." "Since the relevant
language of subsection[] (a) . . . is disjunctive, either
extensiveness or numerosity is a sufficient predicate for a . . .
four-level upward adjustment." Rostoff, 53 F.3d at 413. Thus, _______
we affirm the district court's determination of D'Andrea's role
in the offense because it properly found that his fraud was
"otherwise extensive."
"[A] determination that a criminal activity is
'extensive' within the meaning of section 3B1.1 derives from 'the
totality of the circumstances, including not only the number of
participants but also the width, breadth, scope, complexity, and
duration of the scheme.'" Id. at 414 (quoting United States v. ___ _____________
Dietz, 950 F.2d 50, 53 (1st Cir. 1991)). The commentary to the _____
Guidelines provides: "In assessing whether an organization is
-16-
'otherwise extensive,' all persons involved during the course of
the entire offense are to be considered. Thus, a fraud that
involved only three participants but used the unknowing services
of many outsiders could be considered extensive." U.S.S.G.
3B1.1, Commentary. Where a sentencing court finds that the
defendant's scheme involved one other criminally responsible
participant, the "court is free to consider the use of unwitting
outsiders in determining [whether] a criminal enterprise is
'extensive' within the contemplation of section 3B1.1." Dietz, _____
950 F.2d at 53. D'Andrea's criminal activity, including relevant
conduct, involved a fraud against two financial institutions
whereby he obtained loans for a total of $8.1 million by
submitting to those institutions documents that contained false
financial information and the forged signatures of tenants and
guarantors. D'Andrea's forgeries of the tenants signatures
attested to the accuracy of the financial information supplied to
the bank, while his forgeries of the Zarellas' wives' signatures
bound the wives to guarantee a loan in the amount of $5.9
million. He conspired with Frank Paolino, a participant under
section 3B1.1, to falsify the actual sale price of the property.
He manipulated figures involved in the transaction to indicate
that he and his co-purchasers were investing $1.3 million of
their own money into the sale, when, in fact, they were not
investing any of their own money. He also used the witting or
unwitting services of Michael Favicchio, Pat Paolino, Michael
Tulman, and Gary Lowenstein to secure the $2.88 million New
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England Federal loan, and of the four Zarella brothers and their
wives, to obtain the $5.9 million Rhode Island Central Credit
Union loan. We find that the sentencing court quite properly
determined that D'Andrea's fraudulent schemes were extensive and
thus supported a four-level role-in-the-offense enhancement.
D'Andrea further argues that the sentencing judge's
determination that his criminal activities were extensive
impermissibly mixes "legitimate loans and development activities
with isolated instances of criminal conduct." Absolutely nothing
in the record indicates that the sentencing judge considered any ___
activities, legitimate or illegitimate, beyond those related to
the New England Federal and Rhode Island Central Credit Union
loans. This argument, unsupported by the record, does not alter
our finding of no error in the sentencing court's extensiveness
determination.
D. Obstruction of Justice D. Obstruction of Justice
The sentencing court enhanced D'Andrea's base offense
level by two points for obstruction of justice under U.S.S.G.
3C1.1. Under that section, the sentencing court must increase
the offense level by two "[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.
Perjury falls within the scope of obstruction of justice. See ___
U.S.S.G. 3C1.1, Commentary. The sentencing court found that
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D'Andrea committed perjury on four separate occasions during the
trial:
I conclude that two points should be
added for obstruction of justice because
the Defendant committed perjury during
this trial. He committed perjury time
and time again. His main approach to his
testimony was to lie about everything
until he was backed up against the wall
and then he admitted the truth, admitted
forgery, but then tried to rationalize
them. I can think of four instances
where he committed perjury. He committed
perjury concerning his lack of knowledge
of the amount of money that was in the
tenant letters. He denied forging some,
admitted forging others. He forged them
all. He committed perjury by claiming
that there was another purchase and sale
agreement that didn't have the words 'as
is' in it. Such document was never found
or presented. He was just lying through
his teeth. There was no such document.
He lied about his conversation with Patty
El[der]. What Patty El[der] said
concerning the amount of money that had
to be available at closing. And he lied
about the work credits. That was a
substantial part of the fraud. He
claimed that there were legitimate work
credits taken off the purchase price to
get it down to two million eight. The
figures didn't even add up.
Transcript of Sentencing Hearing, at 20.
A determination of perjury must be based on the
traditional perjury test as explained by the Supreme Court in
United States v. Dunnigan, 507 U.S. 87 (1993). Dunnigan requires _____________ ________ ________
a finding that "[a] witness testifying under oath or affirmation
. . . [gave] false testimony concerning a material matter with
the willful intent to provide false testimony, rather than as a
result of confusion, mistake, or faulty memory." Dunnigan, 507 ________
-19-
U.S. at 94. Here, the court found at least four instances of
perjury, "but any one is sufficient" to uphold the adjustment.
See United States v. Webster, 54 F.3d 1, 8 (1st Cir. 1995). ___ _____________ _______
The matters regarding which the court found D Andrea
offered false testimony were material because they concern
D'Andrea's specific intent to commit fraud, an element the jury
must have found to support a guilty verdict. The sentencing
court's findings of perjury cannot be overturned unless they are
clearly erroneous. United States v. Tracy, 36 F.3d 199, 202 (1st _____________ _____
Cir.), cert. denied, 115 S. Ct. 609 (1994). ____________
Even if the record, read generously to
appellant, might conceivably support some
less damning scenario -- and we do not
suggest that it can -- we would not
meddle. Our review is only for clear
error -- and "where there is more than
one plausible view of the circumstances,
the sentencing court's choice among
supportable alternatives cannot be
clearly erroneous."
Tejada-Beltr n, 50 F.3d at 110. Here, there was ample evidence, ______________
considering only D'Andrea's false testimony regarding his forgery
of both tenant and guarantor signatures, to find that he
willfully obstructed justice. On more than one occasion,
D'Andrea testified on direct examination that he had permission
to sign a tenant or guarantor signature, only to be caught in his
lie on cross-examination and to be forced to acknowledge that he
indeed committed forgery without the permission or knowledge of
the pertinent "signatory." The sentencing court could easily
have found that such direct testimony was not the result of
confusion, mistake, or faulty memory. This single finding of
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perjury is sufficient to uphold the sentencing court's
obstruction of justice enhancement. We further note in passing,
that support for the sentencing court's other findings of perjury
exist in the record and preclude a finding that they were clearly
erroneous. See id. ___ ___
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E. Restitution Order E. Restitution Order
D'Andrea implores us to vacate the sentencing court's
imposition of $2.2 million restitution to be paid to Resolution
Trust Corporation, the successor to New England Federal. He
contends that such action is warranted because "[r]estitution in
the amount ordered by [J]udge Lagueux is, as a practical matter,
virtually impossible of fulfillment, regardless of D'Andrea's
post-imprisonment earning capacity, and his sentence should
reflect that reality." Appellant's Brief at 43. D'Andrea's
argument, then, is that the restitution order cannot stand
because the sentencing court failed to properly take into
consideration his ability to pay such an amount. The sentencing
court found the following:
On all these supervised release terms I
impose a condition that the Defendant
make restitution to the Resolution Trust
Corporation in the amount of $2.2
million. I realize that's probably
unrealistic. I realize that the
Defendant probably will never earn
anything close to that in the future when
he comes out of prison. But I want him
to be aware that he has that obligation
and that any earnings that he makes will
go toward restitution.
Transcript of Sentencing Hearing, at 32.
"In fashioning a restitution order, a court must
consider 'the amount of the loss sustained by any victim as a
result of the offense, the financial resources of the defendant,
the financial needs and earning ability of the defendant and the
defendant's dependents, and such other factors as the court deems
appropriate.'" United States v. Newman, 49 F.3d 1, 10 (1st Cir. ______________ ______
-22-
1995) (quoting 18 U.S.C. 3664(a) (1988)). The sentencing court
is not required to base its determination on a finding that the
defendant has the ability to repay the ordered amount of
restitution. United States v. Royal, 100 F.3d 1019, 1033 (1st _____________ _____
Cir. 1996). Instead, there must only be an indication that the
sentencing court considered D'Andrea's financial situation in
arriving at its figure. Id. The record here sufficiently ___
supports the conclusion that the sentencing court considered all
of the relevant factors in making its determination. That is all
that is required.
Moreover, should this restitution order prove so
unreasonably onerous that D'Andrea is clearly unable to meet his
responsibilities, he may move the district court to modify it
pursuant to 18 U.S.C. 3663(g).
III. Judicial Misconduct III. Judicial Misconduct
D'Andrea peppers the "Argument" section of his
appellate brief with allegationsof judicial bias and misconduct.4
____________________
4 Appellant's bald assertions of misconduct include the
following:
-- "D'Andrea's prominent role as a major borrower from [Rhode
Island Central Credit Union] could not have been ignored by Judge
Lagueux in his assessment of D'Andrea's culpability, and it was
his involvement in the latter that fatally infected the court's
judgment in the New England Federal Savings Bank case." (citing
to a newspaper article in the March 6, 1996 issue of the
Providence Sunday Journal). Appellant's Brief, at 22.
-- "Given the depressed economic climate and hostile political
atmosphere prevailing in Rhode Island since 1991, and the fact
that Rhode Islanders will be repaying the losses . . . well into
the 21st Century, it is unsurprising that heavy borrowers,
including D'Andrea would be demonized, both in the public mind,
and as political scapegoats. Judge Lagueux also appears to have
-23-
An inquiry into the judge's conduct of the
trial necessarily turns on the question of
whether the complaining party can show
serious prejudice. . . . In answering this
question a reviewing court must evaluate the
judge's actions 'according to a standard of
fairness and impartiality, recognizing that
each case tends to be fact-specific.' . . .
This process requires the reviewing court to
differentiate between expressions of
impatience, annoyance or ire, on the one
hand, and bias or partiality, on the other.
____________________
been infected by the clamor, and that his sentence reflected a
willingness to punish D'Andrea for his involvement with [Rhode
Island Central Credit Union], on a dubious theory of liability,
without specific proof of fraud or conspiracy presented." Id. at ___
26.
-- "Moreover, [Rhode Island Central Credit Union], a privately
insured financial institution, subject to weak state regulation
and political intrigue with the Rhode Island Legislature and
Statehouse makes a weak case on which the Government can rely.
Absent proof he violated specific prohibitions, moral
condemnation is not enough to sustain D'Andrea's punishment. . .
. This distinction was apparently lost on Judge Lagueux, and he
regarded the [Rhode Island Central Credit Union] and [New England
Federal] transactions as correlatives both in time and intent.
Given the limited information the judge had before him, linking
the two together in his own mind in order to quadruple the
punishment meted out to D'Andrea strongly suggests that the prior
publicity about RISDIC and [Rhode Island Central Credit Union]
had an effect." Id. at 30. ___
-- "A fair reading of the sentencing hearing transcript yields
but one conclusion, that Judge Lagueux's comments from the bench
say more about what he thought D'Andrea stood for than about
conduct for which D'Andrea bears legitimate responsibility." Id. ___
at 35-36.
-- "Judge Lagueux determined that virtually every disagreement
between D'Andrea's testimony and the testimony of witnesses
against him was perjurious. Those findings were entirely one-
sided and unfair. . . . The entire tenor of Judge Lagueux's
comment showed his predisposition to discount everything D'Andrea
said, regardless of the probability that one or more of the
Government's witnesses was not telling the entire truth." Id. at ___
39-41.
-24-
Logue v. Dore, No. 96-1143, 1197 WL 2447, at *4 (1st Cir. Jan. 8, _____ ____
1997) (quoting United States v. Polito, 856 F.2d 414, 418 (1st _____________ ______
Cir. 1998)) (citations omitted).
D'Andrea points to nothing in the record to support his
allegations, nor does he demonstrate any prejudice. After
painstakingly poring over nearly 1,450 pages of transcript from
both the trial and sentencing hearing, we are left with the
unmistakable conclusion that Judge Lagueux did not engage in a
single act of "impatience, annoyance or ire," let alone bias or
misconduct. D'Andrea's allegations are meritless.
CONCLUSION CONCLUSION
Based on the foregoing considerations, we affirm the affirm
district court's rulings.
-25-
United States v. D'Andrea, (1st Cir. 1997).
United States v. D'Andrea (United States v. D'Andrea) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.
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