United States v. Paquette

• Court: Court of Appeals for the First Circuit
• Decided: February 8, 2000
• Docket: 98-2131
• Status: Published

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 98-2131



                          UNITED STATES,



                            Appellee,



                                v.



                        GREGG M. PAQUETTE,



                      Defendant, Appellant.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                    FOR THE DISTRICT OF MAINE



           [Hon. D. Brock Hornby, U.S. District Judge]


Before



                     Torruella, Chief Judge,

                Lynch and Lipez, Circuit Judges.


Mark W. Griffin for appellant.

     F. Mark Terison, Assistant U.S. Attorney, with whom Jay P.

McCloskey, U.S. Attorney, was on brief for appellee.


February 7, 2000


LIPEZ, Circuit Judge.  Gregg M. Paquette appeals from his

conviction and sentence, entered after a jury trial in the district

court for the District of Maine, for conspiracy to commit mail and

wire fraud, 18 U.S.C.  371, 1341, 1343, and making a false income

tax return, 26 U.S.C.  7206(1).  Finding no merit to his

challenges to the district court's jury instructions and its

calculation of the amount of loss caused by the conspiracy, we

affirm.

  Paquette was found guilty of conspiring with David Page,

former tax assessor of the Town of Kittery, Maine, to deprive the

citizens of Kittery of Page's honest services.  See 18 U.S.C.

 1346.  Paquette acted as an intermediary between Page and certain

Kittery taxpayers to whom Page granted favorable revaluations and

tax abatements in exchange for kickbacks that were paid to

Paquette and split between Paquette and Page.  Page pled guilty to

conspiracy and other federal crimes and testified for the

government at Paquette's trial.

  After Paquette was convicted, the district court

separately sentenced Page and Paquette, finding in both cases that

the amount of loss to the Town attributable to the conspiracy was

$736,066.24.  Page appealed his sentence, and a panel of this Court

affirmed in an unpublished summary disposition, finding no clear

error in the district court's loss calculation.  See United States

v. Page, 181 F.3d 81 (table), 1999 WL 525943 (1st Cir. 1999).  For

Paquette, that loss calculation led to a ten-level increase

pursuant to U.S.S.G.  2F1.1(b)(1)(K) (add ten for loss of more

than $500,000).  Added to a base offense level of six, see id.

 2F1.1(a), and a two-level increase for more than minimal

planning, see id.  2F1.1(b)(2), that ten-level increase resulted

in an offense level of eighteen and a guideline sentencing range of

twenty-seven to thirty-three months.  The district court sentenced

Paquette to twenty-seven months imprisonment and ordered him to pay

the Town $736,066.00 in restitution.

  Paquette's appeal of his conviction is limited to a

challenge to the jury instructions.  He argues that the

instructions allowed the jury to convict him of conspiracy to

defraud the Town if it simply believed that Page had failed to

disclose a conflict of interest, without finding that Paquette

intended to deprive the Town of Page's honest services.  Paquette

misreads the instructions; the district court correctly told the

jury that "the government must prove that the object of the scheme

was to deprive the public of tax assessor David Page's honest

services," and correctly gave bribery and failure to disclose a

conflict of interest as possible examples of such a deprivation. 

See United States v. Sawyer, 85 F.3d 713, 724-25 (1st Cir. 1996)

("[I]f a non-public-official is prosecuted for scheming to defraud

the public of an official's honest services, the government must

prove that the target of the scheme is the deprivation of the

official's honest services.").  There was no error in the court's

jury charge.

  In his sentence appeal, Paquette raises two challenges to

the district court's loss calculation.  He argues first that a loss

of property cannot be found when a defendant has been prosecuted on

a theory that he deprived the victim of "honest services."  This

argument is foreclosed by U.S.S.G.  2C1.7, entitled "Fraud

involving deprivation of the intangible right to the honest

services of public officials . . . ."  That guideline states in

subsection (b)(1)(A): "If the loss to the government . . . exceeded

$2,000, increase by the corresponding number of levels from the

table in  2F1.1 (Fraud or Deceit) . . . ."  Thus the guidelines

clearly contemplate that a sentence can be enhanced for loss to the

government even when the defendant was charged with "honest

services" fraud.

  Paquette also argues that if a loss calculation was

appropriate, the district court committed clear error by

calculating the loss as $736,066.24, the amount of the revaluations

and abatements granted by Page to several Kittery taxpayers as part

of the fraudulent scheme.  The government argues that we should not

address this contention because our rejection of the same argument

in Page's appeal is the law of the case.  We have held that our

disposition of an issue on appeal is the law of the case in a

subsequent appeal by a codefendant.  See United States v.  Rosen,

929 F.2d 839, 842 n.5 (1st Cir. 1991); see also, e.g., United

States v. Aramony, 166 F.3d 655, 661 (4th Cir. 1999) (rejecting

defendant's challenge to loss calculation in sentencing on law of

the case grounds where court of appeals had previously rejected

same argument made by codefendant).  Here, however, although Page

and Paquette were, factually speaking, coconspirators, they were

not codefendants in the same proceeding.  Page pled guilty to an

information, Paquette was charged in an indictment and convicted

after a jury trial, and they were separately sentenced.  Given our

resolution of the merits, we need not determine the outer

boundaries of the law of the case doctrine by applying it here.

  Paquette contends that the district court's loss figure

overstates the actual loss to the Town because the assessments on

some properties were excessive.  As a result, he says, the

fraudulently granted revaluations and abatements merely restored

the properties to their fair valuations and the Town received all

the tax revenue it was due.  At sentencing, Paquette made the same

argument, but did not dispute that the government had accurately

tallied the amount of the revaluations and abatements.

  Paquette actually makes two related arguments in

challenging the district court's loss figure.  He says first that

the Town was not entitled to all of the lost tax revenues because

some of the assessments were too high before the conspiracy took

place.  This argument is without merit even if it has a factual

basis in the record (which we assume but do not decide).  Under

Maine law, "[a] town's assessment is presumed valid and the

taxpayer must prove it manifestly wrong."  City of Biddeford v.

Adams, 727 A.2d 346, 349 (Me. 1999).  The Town was therefore

entitled to the tax revenue before Page and Paquette corrupted the

abatement process, and the conspiracy caused the Town to lose that

revenue even if some taxpayers might have been able to prove the

assessments manifestly wrong via an uncorrupted abatement process.

  Paquette also alleges that Page intentionally inflated

some of the property values as a part of the fraudulent scheme,

thereby depriving these assessments of any presumption of validity. 

Page's subsequent revaluations and abatements, Paquette argues,

merely reduced the assessments to the level they would have been

absent the conspiracy, causing no net loss to the Town.  Even if

this contention raises a plausible legal issue (a question we do

not decide), Paquette has not established an evidentiary basis for

the issue.  At the sentencing hearing he did not offer any evidence

in support of his argument.  On appeal, he points only to three

portions of the trial transcript, all from the testimony of David

Page.  In the first, Page testified that on one occasion he

increased the assessment of a large industrial taxpayer, BOC Group,

by approximately $12 million, with the intent of granting a large

abatement and thus gaining a large kickback.  He also testified,

however, that when BOC protested he reduced the assessment again,

and the record indicates that this reduction was not included in

the total loss figure found by the district court.  In the second

passage cited by Paquette, Page testified that he had initially

increased the assessments of several large commercial taxpayers

("the malls") because he honestly believed them to be undervalued;

in the third, he testified that the revaluations and abatements he

granted to the same taxpayers were "defensible" and "justified." 

These last two passages, in addition to being contradictory, are

relevant only to the argument that some assessments were too high

apart from any fraudulent scheme.  They do not support Paquette's

claim that Page inflated property tax assessments as a part of

their fraudulent scheme.  Similarly, in the portion of his brief

devoted to his jury instruction argument, Paquette states that

"David Page, the government's chief witness, has always contended

that the properties he abated taxes on were legitimately overvalued

and that the taxes on them should be abated"--a statement plainly

inconsistent with Paquette's argument that Page intentionally

inflated the assessments.

  The guideline commentary notes that "the loss need not be

determined with precision.  The court need only make a reasonable

estimate of the loss, given the available information."  U.S.S.G.

 2F1.1 cmt. 8 (1997 ed.).  That is exactly what the district court

did here.  On the basis of the evidence presented, it concluded

that the loss to the Town was equal to the amount of the

revaluations and abatements.  What we said in Page is equally true

here: "Given the information available to the district court, [its

loss] estimate reasonably accounted for the direct reduction in the

town's tax revenues occasioned by defendant's fraudulent conduct." 

181 F.3d 81 (table), 1999 WL 525943, at *1.

  Finally, Paquette objects to the district court's order

of restitution.  He argues that 18 U.S.C.  3663A(c)(1) (making

restitution mandatory for "an offense against property under this

title, including one committed by fraud or deceit . . . in which an

identifiable victim or victims has suffered . . . pecuniary loss")

does not apply, but only because he contends that pecuniary loss to

a victim was not proved.  Since, as explained above, the government

sufficiently proved the amount of the Town's loss,  3663A applies

and the court was required to order restitution without regard to

Paquette's ability to pay. 

  Affirmed.