United States v. Rust

• Court: Court of Appeals for the First Circuit
• Decided: September 24, 1992
• Docket: 92-1251
• Status: Published

Opinion

USCA1 Opinion

September 24, 1992
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                _____________________
        No. 92-1251
                              UNITED STATES OF AMERICA,

                                Plaintiff, Appellant,

                                          v.

                                   RICHARD P. RUST,

                                 Defendant, Appellee.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                   [Hon. Edward F. Harrington, U.S. District Judge]
                                               ___________________

                                 ____________________

                                        Before

                               Torruella, Circuit Judge,
                                          _____________

                           Campbell, Senior Circuit Judge,
                                     ____________________

                             and Brody,* District Judge.
                                         ______________

                                 ____________________

            Alexandra Leake,  Assistant United States  Attorney, with whom  A.
            _______________                                                 __
        John Pappalardo, Acting United  States Attorney, was on brief  for the
        _______________
        United States.
            Harry C. Mezer, P.C.,  with whom Jack I. Zalkind was on brief  for
            ____________________             _______________
        appellee.

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____________________  

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        *Of the District of Maine, sitting by designation.

CAMPBELL,  Senior  Circuit Judge.    The defendant,
                                 _____________________

            Richard P. Rust,  pled guilty  in the district  court to  one

            count of wire fraud in violation of 18 U.S.C.   1343, and was

            sentenced  to two-months home detention, two-years probation,

            and restitution in  the amount  of $14,904.   Pursuant to  18

            U.S.C.     3742(b),  the  government now  appeals  from  this

            sentence,  arguing that  the court  clearly erred  in finding

            that defendant's  offense did  not involve more  than minimal

            planning under U.S.S.G.   2F1.1(b)(2).  As we are constrained

            to agree, we vacate and remand for resentencing.

                                          I.
                                          I.

                      Richard   Rust,   the   former  director   of   the

            Massachusetts Office of Travel and Tourism, was charged in an

            information with one count  of wire fraud in violation  of 18

            U.S.C.   1343.  The information charged that for a  period of

            more than four years,  from August 1984 to October  1989, the

            defendant  devised  and  executed  a scheme  to  defraud  the

            Commonwealth  of Massachusetts  through the  falsification of

            his Travel Expense Vouchers  and the alteration of underlying

            support documents.  

                      In  his plea  agreement  with  the government,  the

            defendant stipulated that the  offense had involved more than

            minimal planning within the meaning of U.S.S.G.   2F1.1, and,

            therefore, the  appropriate total offense  level was  11.   A

            two-level  increase in the base  offense level is mandated by

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U.S.S.G.    2F1.1(b)(2)  if the  offense involves  "more than

            minimal planning."  Under  this offense level and defendant's

            criminal  history  category,  the  guideline  range  required

            incarceration  for  from 8  to  14 months.    The presentence

            report  agreed with  the  parties' calculation  of the  total

            offense level and with the parties' position that the offense

            had  involved more than minimal  planning.  The defendant did

            not object to this aspect of the presentence report.

                      At  the  sentencing  hearing, however,  defendant's

            attorney suggested that  "if the  Court felt this  was not  a

            jail case [the court] could say  it did not involve more than

            minimal planning."  The court then inquired of the defendant,

            "[h]ow much  planning did  you  do when  you concocted  these

            documents?"  Defendant responded that "the most planning [he]

            ever did was to  take out a pair of scissors  and a bottle of

            glue on a couple of instances,  and in most instances it  was

            handwriting."   In  addition, defendant's  attorney contended

            that the falsifications were  "so obvious that when they  saw

            it they  picked it up almost  immediately.  That .  . . shows

            minimal  planning, because if  he had planned  the thing with

            maximum effort, then perhaps he wouldn't have got caught."

                      The  government  countered that,  over a  period of

            more than four years, defendant had submitted 23 false Travel

            Expense Vouchers, seeking a total of approximately $15,000 in

            false  expenses.   The  government noted  that the  defendant

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often saved airline tickets from personal trips and submitted

            them as  expenses from  business trips.   Moreover, defendant

            frequently  altered the  underlying  receipts and  tickets to

            support  his  claims in  the  Travel Expense  Vouchers.   For

            example, defendant,  on numerous occasions, altered gratis or

            reduced  fare tickets to reflect a full price fare by cutting

            and  pasting a  full fare  block from  another ticket,  or by

            obliterating the reduced fare and inserting the  full fare in

            his  own  handwriting.    Furthermore,  on  other  occasions,

            defendant  added digits to the ticket price so as to increase

            the amount for which he was seeking reimbursement.  Defendant

            made similar alterations for receipts of other expenses, such

            as lodging.  According to the government, these actions quite

            clearly constituted more than minimal planning.

                      At the conclusion of these  arguments, the district

            court stated:

                      I  have to say  I have never  in my years
                      here  . .  . I  have never  received more
                      laudatory       recommendations       and
                      endorsements  than I  have in  this case,
                      and it has moved me tremendously.

                      So I  am going  to find that  the offense
                      involved not more than  minimal planning.
                      I  am  going   to  impose  the  following
                      sentence:   Two  years probation,  a two-
                      month home detention.  As  a condition of
                      probation, restitution in  the amount  of
                      [$14,904].

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The district court  gave no other  rationale for its  finding

            that  the offense did not involve more than minimal planning.

            This appeal followed.

                                         II.
                                         II.

                      A  district   court's   factual  finding   that   a

            defendant's offense  involved no  more than  minimal planning

            will be overturned only if that finding is clearly erroneous.

            E.g.,  United States v. Gregorio, 956 F.2d 341, 343 (1st Cir.
            ____   _____________    ________

            1992);  see  18 U.S.C.    3742(e).    Under this  standard, a
                    ___

            district court's determination will be treated with deference

            and will  be  reversed  only  if,  after  reviewing  all  the

            evidence, we are left with  "the definite and firm conviction

            that a mistake has  been committed."  United States  v. Vega-
                                                  _____________     _____

            Encarnacion,  914  F.2d  20,  24  (1st  Cir.  1990)  (quoting
            ___________

            Anderson  v. Bessemer City, 470 U.S.  564, 573 (1984)), cert.
            ________     _____________                              _____

            denied sub  nom. Cruz-Rosario  v. United  States, 111 S.  Ct.
            ________________ ____________     ______________

            1626 (1991).  After reviewing the presentence  report and the

            transcript of the sentencing hearing, we conclude that such a

            mistake was made here.

                      The Application Notes in the  Sentencing Guidelines

            define "more than minimal planning" as follows:

                      `More than minimal  planning' means  more
                      planning than is  typical for  commission
                      of the  offense in a simple  form.  `More
                      than  minimal  planning'  also exists  if
                      significant affirmative  steps were taken
                      to conceal  the offense  . . .  .   `More
                      than minimal planning' is  deemed present
                      in any case  involving repeated acts over

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a period of time, unless it is clear that
                      each   instance  was   purely  opportune.
                      Consequently, this  adjustment will apply
                      especially    frequently    in   property
                      offenses.

            U.S.S.G.      1B1.1,  Application  Note  1(f).     Thus,  the

            Guidelines  set  out  three  situations,  any  one  of  which

            warrants  an enhancement  for "more  than minimal  planning":

            cases  where  more  planning   occurs  than  is  typical  for

            commission of the offense in  a simple form; cases  involving

            significant affirmative steps to conceal; and cases involving

            repeated acts over a period of time, unless each instance was

            purely  opportune.  United  States v. Maciaga,  965 F.2d 404,
                                ______________    _______

            407 (7th Cir. 1992).

                      Defendant  contends  that  he engaged  in  no  more

            planning than would be  typical for the crime of  mail fraud,

            which, by its very nature, involves planning.   However, even

            supposing,  for sake  of  argument, that  the district  court

            could  reasonably  believe  this  was so,  it  would  not, by

            itself, settle the matter.   The Application Note also  deems

            the  presence  of minimal  planning  "in  any case  involving

            repeated acts over a period of time, unless  it is clear that

            each instance was purely  opportune."  Defendant's fraudulent

            scheme here  involved repeated acts over  a four-year period,

            and those acts cannot  reasonably be characterized as "purely

            opportune."  Conduct is "purely opportune" only if it is spur

            of the moment conduct, intended to take advantage of a sudden

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opportunity.  Gregorio,  956 F.2d  at 343;  United States  v.
                          ________                      _____________

            Kopp,  951  F.2d 521,  536 n.21  (3d  Cir. 1991).   Defendant
            ____

            contends that his rather shoddy workmanship in falsifying the

            vouchers indicates that the alterations were done on the spur

            of the moment.   However, the intricate  detail involved with

            some of  the  alterations,  as  well as  the  necessity  that

            defendant undertake several steps  in order to secure payment

            for  the fraudulent  vouchers, belie  this contention.   See,
                                                                     ____

            e.g., United  States v. Tardiff,  No. 91-2040, slip  op. (1st
            ____  ______________    _______

            Cir. July 8, 1992) (falsifying financial records on a monthly

            basis  over a  four-year period  held to  justify enhancement

            under  U.S.S.G.    2F1.1(b)(2));  Gregorio, 956  F.2d at  343
                                              ________

            (conduct not  "purely opportune" where each  loan transaction

            necessitated several  steps); United  States v.  Doherty, No.
                                          ______________     _______

            91-3291,  91-3352, 1992 U.S. App. LEXIS  16866 (7th Cir. July

            24, 1992) (clear error for district court to fail to consider

            whether  overdrafting   40  checks  during   a  single  month

            constituted  repeated  acts   that  were  more   than  purely

            opportune).  It  strains credulity  to suggest  that no  more

            than  minimal   planning  was   involved  in   submitting  23

            intricately altered vouchers over the course of four years.1

____________________

            1.  Moreover, defendant took "significant  affirmative steps"
            to conceal  his offense.   See U.S.S.G.    1B1.1, Application
                                       ___
            Note  1(f).   Defendant  deleted dates  and  amounts on  some
            receipts and cut  and pasted  portions of  other receipts  in
            order  to  conceal his  fraudulent  expense  vouchers.   Such
            concealment  provides  an  independent  basis  to  require  a
            finding of  more than  minimal planning.   See, e.g.,  United
                                                       ___  ____   ______

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While deference is  certainly owed  to findings  of

            the district  court on  the issue of  minimal planning,  that

            court made no findings and rendered no analysis in support of

            its "minimal planning" determination here.  Rather, it simply

            spoke  of the  laudatory  recommendations  it  had  received,

            presumably in  regard to  defendant's good character  and his

            person.   We can  appreciate the  district court's desire  to

            take such matters into  account.  But we  are also bound,  as

            was the  court below, by  the requirements of  the sentencing

            guidelines.  Under these standards, we see no alternative but

            to  vacate the sentence of  the district court  and to remand

            for resentencing in accordance with this opinion.

                      So ordered.
                      __________

____________________

            States v. Culver, 929 F.2d 389, 393 (8th Cir. 1991).
            ______    ______

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