United States v. Rostoff

53 F.3d 398, 1995 U.S. App. LEXIS 9452, 1995 WL 231123
CourtCourt of Appeals for the First Circuit
DecidedApril 24, 1995
Docket93-1376
StatusPublished
Cited by88 cases

This text of 53 F.3d 398 (United States v. Rostoff) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Rostoff, 53 F.3d 398, 1995 U.S. App. LEXIS 9452, 1995 WL 231123 (1st Cir. 1995).

Opinions

SELYA, Circuit Judge.

In this case, the district court departed downward from the guideline sentencing range (GSR) as to each of five defendants on the theory that the harm attributed to them, measured by the amount of loss sustained by the victim, overstated the seriousness of the offense of conviction. The government now asks us to evaluate both the lawfulness of the downward departures and the propriety of the court’s role-in-the-offense adjustments for two defendants, David and Steven Ros-toff. We uphold the sentences of all defendants except the Rostoffs (who must be re-sentenced as a result of erroneous role determinations).

I. BACKGROUND

A federal grand jury indicted the brothers Rostoff, together with James Harris, Dolores DiCologero, and Paul J. Bonaiuto, on charges, inter alia, of conspiracy, bank fraud, and the making of false statements. See 18 U.S.C. §§ 371,1344, and 1044. These [403]*403charges stemmed from a failed foray into the New England condominium market — a market that rose to giddy heights in the mid-to-late-1980s and then plunged precipitously.

The conspiracy count constituted the hub of the indictment. In it, the grand jury charged that, from December 1985 to February 1989, the defendants, aided and abetted by others, fraudulently induced a federally insured financial institution, the Bank for Savings (the bank), to grant several hundred loans, totalling in excess of $30,000,000, to persons purchasing condominium units from David Rostoff, Steven Rostoff, and James Harris (collectively, “the Rostoff group” or “the developers”). Like spokes running from the hub, 43 of these loans gave rise to 86 “mirror image” bank fraud and false statement counts against various defendants.

The trial jury plausibly could have found that the scheme tracked the following script. The bank had a firm policy of refusing to grant first mortgage loans in excess of 80% of the lower of the sale price or the appraised value of residential real estate; and, when mortgages were written on that basis, the bank ordinarily required the balance of the purchase price to be paid in cash by the borrower. In 1986, bank officials, eager to maintain a lucrative working relationship with the Rostoff group, bent the rules. The bankers allowed the developers to assist common customers (i.e., persons who bought condominiums from the Rostoff group and financed the purchases through the bank) in an uncommon way: by taking back second mortgages to circumvent the cash down-payment requirement. The bankers conditioned this concession on the express understanding that the second mortgages would be enforced, and that each purchaser would make at least a 10% down payment from his or her own capital.

This arrangement proved too tame for the developers’ purposes. To facilitate sales, they cooked the books, surreptitiously telling selected buyers that they would not enforce the second mortgages, or, alternatively, that they would not demand interest payments on particular second mortgages until resale of the encumbered condominiums. More importantly, the developers set out to subvert the down-payment requirement by orchestrating a paper shuffle designed to create the (false) impression that the buyers were putting 10% down in order to acquire the properties, when they were not. In many instances, the developers accomplished this sleight of hand by offering customers a 10% discount from the stated purchase price. When a customer agreed to buy at the reduced price, the developers submitted documents to the bank that overstated the actual purchase price by 10% and treated the negotiated discount as a down payment. This flim-flam took on added significance because the bank underwrote the loans on the basis of an 80% loan-to-value (LTV) ratio, using purchase price as a principal measure of value. Thus, an inflated purchase price often caused the bank to approve a higher, first mortgage loan than would have been forthcoming had it known the true purchase price. In the end, many buyers acquired condominiums without making any down payment or other cash expenditure (except for closing costs).

The bank’s closing attorney, defendant Bo-naiuto, and the manager of the bank’s mortgage department, defendant DiCologero, knowingly participated in fabricating this tissue of lies, half-truths, and evasions. Between September 1986 and February 1989, the bank engaged Bonaiuto to close at least 240 loans to the developers’ customers. Although no fewer than five borrowers testified at trial that they asked Bonaiuto about apocryphal deposits shown on their settlement sheets, he did not notify the bank of any discrepancies.1 DiCologero also worked closely with the developers, handling the day-to-day administration of the loan approval [404]*404process. The prosecution proved her awareness of the ongoing scheme largely by circumstantial evidence.2

Following a lengthy trial, a jury found each of the five defendants guilty of conspiracy to defraud the bank. In addition, the jury found Steven Rostoff guilty on a total of 72 “mirror image” counts of bank fraud and making false statements (representing 36 transactions), David Rostoff guilty on 32 such counts (representing 16 transactions), Harris guilty on 52 such counts (representing 26 transactions), Bonaiuto guilty on 10 such counts (representing five transactions), and DiCologero guilty on two such counts (representing one transaction).

On January 29, 1993, the district court convened a disposition hearing.3 By then, the bank had become insolvent, and the Federal Deposit Insurance Corporation (FDIC) had become the receiver. The court determined that the FDIC sustained losses due to the defendants’ activities in the $2,000,000-$5,000,000 range. The court then calculated the offense level of all defendants except DiCologero on the basis of this loss computation, see U.S.S.G. § 2F1.1(b)(1)(E) (providing a 10-level enhancement for fraud crimes involving losses of more than $2,000,000, up to and including $5,000,000), arriving at an adjusted offense level (OL) of 20 for the Rostoff brothers and Bonaiuto, and 18 for Harris. The court attributed slightly under $1,000,-000 in losses to DiCologero and, after other interim adjustments, settled on an OL of 18. The court factored in the defendants’ criminal history scores — all were first offenders— and arrived'at a GSR of 33-41 months at OL-20 and a GSR of 27-33 months at OL-18. Finding, however, that in each instance the amount of loss overstated the seriousness of the particular defendant’s criminality, Judge Zobel departed downward. She sentenced David and Steven Rostoff to serve 15-month terms of immurement; sentenced Harris to a nine-month prison term; sentenced Bonaiuto to two years probation, six months of which was to be served in a community treatment center; and sentenced DiCologero to two years of straight probation. This appeal followed.

II. THE DOWNWARD DEPARTURES

In sentencing under the guidelines, departures are the exception rather than the rule. See United States v. Diaz-Villafane, 874 F.2d 43, 52 (1st Cir.), cert. denied, 493 U.S.

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Cite This Page — Counsel Stack

Bluebook (online)
53 F.3d 398, 1995 U.S. App. LEXIS 9452, 1995 WL 231123, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-rostoff-ca1-1995.