February 8, 1993 UNITED STATES COURT OF APPEALS For The First Circuit
No. 92-1920
UNITED STATES OF AMERICA,
Appellee,
v.
PAUL J. SAVOIE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, U.S. District Judge]
Before
Breyer, Chief Judge,
Aldrich, Senior Circuit Judge,
and Selya, Circuit Judge.
Robert B. Mann, with whom Mann & Mitchell was on brief, for
appellant. Edwin J. Gale, First Assistant United States Attorney, with
whom Lincoln C. Almond, United States Attorney, was on brief, for
the United States.
February 8, 1993
SELYA, Circuit Judge. We consider today a golconda of SELYA, Circuit Judge.
challenges mined by defendant-appellant Paul J. Savoie in a
relentless effort to ameliorate a sentence imposed in the
district court. Concluding, as we do, that appellant is digging
in barren soil, we affirm the judgment below.
I. BACKGROUND
For several years, appellant led a double life. While
serving as a policy adviser to the mayor of Pawtucket, Rhode
Island, he was also part of a trio of high-ranking city officials
who systematically exploited the public trust for personal
profit. The other two members of the tarnished troika were the
mayor, Brian Sarault, see United States v. Sarault, 975 F.2d 17
(1st Cir. 1992), and the acting public works director, Louis
Simon. Because of the extensive range and reach of the
triumvirate's illegal activities, we abjure any attempt to
describe the plot at this juncture. We will, however, refer to
certain relevant outrages in connection with our canvass of
appellant's arguments on appeal.
Savoie eventually pleaded guilty to one count of
racketeering, see 18 U.S.C. 1962(c) (1988), and two counts of
extortion, see 18 U.S.C. 1951 (1988).1 At sentencing, the
district court reviewed the presentence investigation report (PSI
Report), appellant's objections thereto, and transcripts of grand
1The other twenty-seven counts in the indictment, including numerous charges of attempted extortion, conspiracy to commit extortion, and receiving bribes, were dismissed by agreement at the time of sentencing.
jury testimony furnished by the government. Appellant chose to
present no independent evidence (although he did rely on his
description of the offense as related to the probation officer
and incorporated in the PSI Report).
For the most part, the district court adopted the PSI
Report's suggested findings. The court calculated the guideline
sentencing range (GSR) at 41-51 months (offense level 22/criminal
history category I) and imposed an incarcerative sentence at the
top of the range. The court also imposed a three-year term of
supervised release, a $7,500 fine, a $150 special felony
assessment, and 150 hours of community service. Finally, the
court ordered Savoie to make restitution in the sum of
$93,476.67. This appeal followed.
II. DISCUSSION
We have grouped appellant's myriad complaints under
four headings. We discuss them sequentially.
A. The Role-in-the-Offense Adjustment.
The sentencing guidelines mandate a three-level upward
adjustment if "the defendant was a manager or supervisor . . .
and the criminal activity involved five or more participants or
was otherwise extensive." U.S.S.G. 3B1.1(b) (Nov. 1991).
Appellant claims that the district court erred in relying on this
proviso. In this case, the criminal activity was extensive
enough to satisfy the guideline. The only cognizable question,
then, is whether the sentencing court erred in determining that
appellant was a manager or supervisor of the ring. Where, as
here, the sentencing court's decision to apply a role-in-the-
offense adjustment is factbound, we review the determination only
for clear error. See United States v. Dietz, 950 F.2d 50, 52
(1st Cir. 1991); United States v. Diaz-Villafane, 874 F.2d 43, 48
(1st Cir.), cert. denied, 493 U.S. 862 (1989).
In making a role-in-the-offense determination, the
sentencing court need not wear blinders but may look beyond the
count of conviction to the whole of the defendant's relevant
conduct. See United States v. Ruiz-Batista, 956 F.2d 351, 353
(1st Cir.), cert. denied, 113 S. Ct. 105 (1992); see also
U.S.S.G. Ch. 3, Pt.B, intro. comment. Managerial status may
attach if there is evidence that a defendant, in committing the
crime, exercised control over, or was otherwise responsible for
overseeing the activities of, at least one other person. See,
e.g., United States v. Veilleux, 949 F.2d 522, 524 (1st Cir.
1991); United States v. Akitoye, 923 F.2d 221, 227 (1st Cir.
1991); United States v. Fuller, 897 F.2d 1217, 1220-21 (1st Cir.
1990). The evidence of such control need not be direct. See
Diaz-Villafane, 874 F.2d at 48 (observing that felons are
"unlikely to make much use of position descriptions or
organizational charts"). Where numerous participants are
involved, or the criminal activity is otherwise extensive, the
court must often make hierarchical distinctions between those at
the very top of the criminal enterprise (the organizers or
leaders) and those who, while in positions of executive
authority, are lower on the totem pole (the managers or
supervisors). In making such fine distinctions, the indicia of
executive status include such things as the defendant's role in
recruiting accomplices, the degree and nature of the defendant's
participation in planning and implementing the offense, the
defendant's exercise of decisionmaking authority, and the
defendant's level of remuneration relative to other participants
(including the presence or absence of a claimed right to a share
of the crime's fruits). See U.S.S.G. 3B1.1, comment. (n.3);
see also United States v. Sostre, 967 F.2d 728, 733 (1st Cir.
1992); United States v. Panet-Collazo, 960 F.2d 256, 261 (1st
Cir.), cert. denied, 113 S. Ct. 220 (1992).
Here, the record is fairly bursting at the seams with
evidence buttressing the inference of managerial status. In
addition to extorting funds himself, appellant used internuncios
(e.g., Joseph Stifano, Robert Langlois) as conduits for obtaining
bribes;2 manipulated Pawtucket's highway director (Ron Lieto) in
order to extract free services for himself from a contractor
doing business with the City; gave occasional directions to his
fellow triumvir, Louis Simon; and, in general, as the district
judge aptly put it, "made some rather significant decisions,
including the decision of how much [would be demanded] and from
whom [it would be extorted]."
We are completely unmoved by appellant's plea that he
2The RICO count to which appellant pleaded described twenty- four separate racketeering acts. Act No. 17, described infra
note 6, is an excellent example of how appellant used go- betweens.
was merely a footsoldier in Mayor Sarault's iniquitous army. A
defendant need not be the highest ranking member of a criminal
troupe in order to be a manager or supervisor. Indeed, the
applicable guideline provision stresses that managerial role
adjustments, as opposed to other upward role-in-the-offense
adjustments, apply to defendants who were managers or
supervisors, but not organizers or leaders. See U.S.S.G.
3B1.1(b). In other words, Sarault's acknowledged status as the
commander-in-chief is not in any sense inconsistent with the
court's finding that appellant was his lieutenant. See, e.g.,
United States v. Iguaran-Palmar, 926 F.2d 7, 10 n.1 (1st Cir.
1991).
We will not paint the lily. Appellant was a prime
mover in a pervasive pattern of municipal corruption lasting for
several years. He gave orders, participated in setting policy,
made decisions, and shared handsomely in the booty. The evidence
here is more than sufficient to ground the district court's
finding that appellant served the ring in a managerial capacity.
See United States v. St. Cyr, 977 F.2d 698, 706 (1st Cir. 1992)
(holding that "when there are two plausible views of the record,
the sentencing court's adoption of one such view cannot be
clearly erroneous"); Diaz-Villafane, 874 F.2d at 49 (similar;
discussing role-in-the-offense adjustments).
B. The Restitution Order.
As part of the Victim and Witness Protection Act of
1982 (VWPA), Congress authorized district courts to order that
convicted defendants make restitution to victims. See 18 U.S.C.
3556, 3663, 3664 (1988 & Supp. 1990).3 The federal
sentencing guidelines themselves require such orders in many
circumstances. See U.S.S.G. 5E1.1. In this instance the
district court ordered restitution, directing that appellant
repay, in installments, a total of $93,476.67.4 Appellant
attacks the order on three grounds. He is shooting blanks.
1. The Computation. The VWPA provides that, in 1. The Computation.
determining the size of a restitution order, a court must
consider, among other things, "the amount of the loss sustained
by any victim as a result of the offense." 18 U.S.C. 3664(a).
When this amount is disputed, the government bears the burden of
establishing it by a preponderance of the evidence. See 18
U.S.C. 3664(d). Because a determination of victim loss is
fact-intensive, we review it only for clear error. See United
States v. Teehee, 893 F.2d 271, 273-75 (10th Cir. 1990).
The law cannot be blind to the fact that criminals
rarely keep detailed records of their lawless dealings, totalling
up every column and accounting for every misbegotten dollar.
Hence, the preponderance standard must be applied in a practical,
common-sense way. So long as the basis for reasonable
approximation is at hand, difficulties in achieving exact
3Until November 1, 1986, the last two of these sections were codified at 18 U.S.C. 3579 & 3580, respectively.
4Of this amount, $89,876.67 represented restitution to the City of Pawtucket while the remainder represented restitution to other victims. Savoie does not challenge the latter component of the restitution order.
measurements will not preclude a trial court from ordering
restitution. See United States v. Hand, 863 F.2d 1100, 1104 (3d
Cir. 1988); see also S. Rep. No. 532, 97th Cong., 2d Sess. 31,
reprinted in 1982 U.S.C.C.A.N. 2515, 2537 (explaining that "where
the precise amount owed is difficult to determine, [the VWPA]
authorizes the court to reach an expeditious, reasonable
determination of appropriate restitution by resolving
uncertainties with a view toward achieving fairness to the
victim").
In this case, appellant contends that the restitution
order is invalid because the court's recapitulation of losses to
victims lacks an adequate evidentiary foundation. We disagree.
The racketeering count to which appellant pleaded guilty
enumerated twenty-four racketeering acts. The computation of
victim loss followed this roadmap. The district court
scrutinized transcripts of grand jury testimony designed to
document the aggregate amount of money involved in each episode.
The court then attempted to ascertain how much of the extorted
money appellant pocketed.5
To be sure, reconstructing the tally was not a black-
and-white proposition. There were points at which the guideposts
became blurred and shadings of gray emerged but on the whole,
the available evidence was adequate to the task. In some
instances, there were specific percentages or amounts described
5We take no view on whether, in these circumstances, restitution was necessarily limited to what appellant himself pocketed.
in the testimony. In other instances, the court's calculation
rested on testimony establishing the coconspirators' general
intent about how the spoils should be divided. In every
instance, the record contained, at a bare minimum, a plausible
basis on which to predicate reasonable estimates or
approximations. No more was exigible.
Given the district court's meticulous, act-by-act
reconstruction of the amounts extorted, and the court's founded
estimates of the sums retained by appellant, we cannot say that
the court erred in compiling the overall loss amount.6
6While a complete catalog of record support for the victim loss calculation would trespass unduly on the reader's indulgence, we sketch, by way of representative illustration, the evidence relating to two racketeering acts.
A. Act No. 15. A vendor testified before the grand A. Act No. 15.
jury that he paid appellant a ten percent cash kickback on all sales his company made to the City. The vendor reported gross sales to the City of $6,043.62 in 1988, $34,313.53 in 1989, $40,518.91 in 1990, and $27,459.85 in 1991. Because he stopped making payments after Sarault was arrested in June of 1991, the vendor estimated that the kickbacks for that year were roughly equivalent to five percent of annual sales. This evidence, coupled with the eminently reasonable assumption that the amounts in question could otherwise have been subtracted from the inflated prices charged to the City, provides sufficient support for the district court's $9,460 victim loss calculation. The record also supports a conclusion that appellant retained one hundred percent of these kickbacks. The vendor stated that he paid the money to Savoie, and other testimony indicates, unlike in other instances, that neither Sarault nor Simon received a dime.
B. Act No. 17. Langlois told the grand jury that B. Act No. 17.
appellant asked him to relay a message to a property owner who wanted a zoning variance. The message, in brief, was that the owner's "problem" could be solved if the wheels of government were lubricated to the tune of $5,000. The owner accepted the offer, received the variance, and paid the bribe to Langlois. Langlois then brought the money to appellant. Because one of the ringleaders told the grand jury that "Paul [Savoie] normally took
2. Ability to Pay. In fashioning a restitution order, 2. Ability to Pay.
a sentencing court does not function merely as a type of judicial
abacus, toting up the amount of loss and writing down the
appropriate figure. The court must also "consider . . . 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." 18
U.S.C. 3664(a). Noting that the court below made no specific
findings with regard to these considerations, appellant asserts
that the restitution order must fall. We review this claim of
legal error de novo. See St. Cyr, 977 F.2d at 701.
There has been considerable debate over when, if ever,
the VWPA may require a restitution-ordering court to make
explicit findings concerning a defendant's financial condition.
At least four circuits have held that specific findings are not
required in this general context. See United States v.
Cannizzaro, 871 F.2d 809, 810-12 (9th Cir.), cert. denied, 493
U.S. 895 (1989); United States v. Mahoney, 859 F.2d 47, 49-50
(7th Cir. 1988); United States v. Purther, 823 F.2d 965, 969 (6th
Cir. 1987); United States v. Golomb, 811 F.2d 787, 791 (2d Cir.
1987). Five other circuits, invoking supervisory powers, have
told district courts that specific findings are often needed to
facilitate appellate review. See United States v. Owens, 901
F.2d 1457, 1459-60 (8th Cir. 1990); United States v. Hairston,
from 20 [percent] to a third" of the payoffs for himself, the district court's finding that appellant received $1,000 from this act had a sufficient evidentiary predicate.
888 F.2d 1349, 1352-53 (11th Cir. 1989); United States v.
Patterson, 837 F.2d 182, 183-84 (5th Cir. 1988); United States
v. Bruchey, 810 F.2d 456, 459 (4th Cir. 1987); United States v.
Palma, 760 F.2d 475, 480 (3d Cir. 1985).7 We have not yet
spoken to this question.
To resolve this appeal, we must take only one small
step along the path. We rule that a district judge need not make
open-court findings on the statutory factors when issuing a
restitution order so long as the record on appeal reveals that
the judge made implicit findings or otherwise adequately evinced
his consideration of those factors. After all, the VWPA itself
demands no more than that the district court "consider" the
factors enumerated therein. 18 U.S.C. 3664(a). The statute
makes no mention of mandatory findings a circumstance that we
believe is consistent with Congress's stated desire not unduly to
complicate or prolong the sentencing process through the VWPA's
restitutionary provisions. See 18 U.S.C. 3663(d). Whatever
may be the rule in a more extreme case a matter on which we do
not opine we believe that the absence of express findings is
not fatal in cases in which the record clearly indicates that the
7The Tenth Circuit has sent mixed signals on this issue. After initially favoring explicit findings, the court has since repudiated the need for such findings and stated that a district judge only need consider the defendant's financial condition. Compare United States v. Hill, 798 F.2d 402, 406-07 (10th Cir.
1986) (requiring specific findings) with United States v.
Morrison, 938 F.2d 168, 171-72 (10th Cir. 1991) (not requiring
specific findings) and United States v. Rogat, 924 F.2d 983 F.2d
983, 986 (10th Cir.) (same), cert. denied, 111 S. Ct. 1637
(1991).
court gave thought to the requisite factors.
Here, we are satisfied that the court below duly
considered the statutory factors. The PSI Report contained a
lengthy discussion of them. The district court explicitly
adopted the PSI Report's findings and, despite the statutory
burden placed upon him, see 18 U.S.C. 3664(d), appellant never
offered evidence suggesting that his financial condition
constituted a barrier to effecting full restitution. Finally,
the information in the record does not suggest that the
restitution order, payable in installments, is beyond appellant's
reach, given his accessible assets and earning capacity. In such
circumstances, there is no basis for assuming that the district
court ignored the statutory mandate by failing to mull
appellant's financial situation.
3. The Civil Settlement. The VWPA provides that 3. The Civil Settlement.
courts "shall not impose restitution with respect to a loss for
which the victim has received or is to receive compensation." 18
U.S.C. 3663(e)(1). On July 24, 1992, three days before he was
sentenced, appellant signed an agreement with the City of
Pawtucket, settling Pawtucket's claims against him for $52,000,
payable over time. Appellant asserts that by negotiating this
settlement he effectively fulfilled (or, at least, set a ceiling
on) his restitutionary obligations vis-a-vis Pawtucket's losses.
We afford plenary review to the web of essentially legal
questions surrounding the settlement agreement's effect. See St.
Cyr, 977 F.2d at 701.
At the outset, we remark that the settlement agreement
upon which appellant relies is a particularly poor vehicle for
conferring special treatment: its scope is limited; its language
skirts any admission of responsibility;8 and the promise it
memorializes is, at present, no more than that an executory
promise to pay. No money has yet changed hands and the planned
future payments extend over a protracted period.
Beyond these infirmities, the sockdolager is that the
settlement between Savoie and the City concerns potential civil
liability. But, the sort of restitution imposed below is not a
civil affair; it is a criminal penalty meant to have deterrent
and rehabilitative effects. See Kelly v. Robinson, 479 U.S. 36,
49 & n.10 (1986). Private parties cannot simply agree to waive
the application of a criminal statute. See, e.g., Hairston, 888
F.2d 1153 (holding that a civil settlement did not necessarily
preclude a restitution order under the VWPA because the penal
purpose of that act was not a litigated issue in the civil case);
United States v. Rico Indus., Inc., 854 F.2d 710, 715 (5th Cir.
1988) (similar), cert. denied, 489 U.S. 1078 (1989). Because the
law will not tolerate privately negotiated end runs around the
criminal justice system, we reject appellant's claim that the
district court could no longer order him to make restitution. At
8By its terms, the settlement is restricted to claims by the City arising out of "extortion by Louis Simon and Brian J. Sarault." The agreement recites that appellant "denies . . . liability and disputes the legal effect of the alleged events." In turn, the City agrees that the settlement "is not to be construed as an admission of responsibility on the part of Paul Savoie."
the same time and for the same reason, we reject appellant's
related claim that the settlement figure capped the amount of
restitution that could be ordered.
Appellant also contends that the settlement amount
should at least have been set off against the district court's
restitution figure. The statute itself dispatches this
contention. The VWPA contemplates setting off amounts already
paid under a restitution order against amounts later recovered in
civil proceedings. See 18 U.S.C. 3663(e)(2). There is no
mention of setoffs operating in the opposite direction. What is
more, the setoff provision is based upon actual payments rather
than promises to pay at some future date(s).
We have said enough. In the circumstances of this
case, appellant has failed to prove that the restitution order is
"with respect to a loss for which the victim has received or is
to receive compensation." 18 U.S.C. 3663(e)(1). The order may
stand.9
C. The Fine.
Appellant's next foray implicates the fine levied
against him. He asseverates that, in imposing the fine, the
district court shirked its statutory duty. Appellate courts
review the imposition of fines under the sentencing guidelines by
resort to an abuse-of-discretion rubric. See United States v.
9This is not to say, however, that appellant must pay the piper twice. We see no reason why, in the circumstances of this case, any payments made under the restitution order, so long as destined for the City of Pawtucket, should not also be credited against appellant's liability under the settlement agreement.
Rivera, 971 F.2d 876, 895 (2d Cir. 1992); United States v.
Washington-Williams, 945 F.2d 325, 326 (10th Cir. 1991). We
discern no abuse here.10
Following Congress's lead, see 18 U.S.C. 3553(b)
(1988), the sentencing guidelines provide that the district court
"shall impose a fine in all cases, except where the defendant
establishes that he is unable to pay and is unlikely to become
able to pay any fine." U.S.S.G. 5E1.2(a). We take this
language to mean exactly what it says: under the guidelines, a
fine is the rule and it is the defendant's burden to
demonstrate that his case is an exception. See United States v.
Hickey, 917 F.2d 901, 907 (6th Cir. 1990); United States v.
Perez, 871 F.2d 45, 48 (6th Cir.), cert. denied, 492 U.S. 910
(1989). Since appellant offered no significant evidence on the
"inability to pay" issue, there is no basis for setting aside the
$7,500 fine a fine pegged at the nadir of the applicable
guideline range for the offense of conviction.
Appellant's two related arguments are similarly
unavailing. First, the district court's failure to make express
findings in open court concerning appellant's financial condition
and prospects does not necessitate reversal. See, e.g., United
States v. Wilfred American Educ. Corp., 953 F.2d 717, 719-20 (1st
Cir. 1992) (interpreting similar language in predecessor statute
as neither requiring findings nor allowing an appellate tribunal
10Because the claim is meritless, we need not decide whether appellant waived this issue by failing to raise it below in sufficient detail.
to presume that a district court ignored relevant evidence in the
record); United States v. Pilgrim Market Corp., 944 F.2d 14, 22-
23 (1st Cir. 1991) (similar). Second, appellant's assault on the
viability of U.S.S.G. 5E1.2(i) (a guideline dealing with fines
imposed to cover the cost of imprisonment) is a red herring. The
record contains no indication that the district court imposed the
$7,500 fine pursuant to that provision.
D. Compliance with Fed. R. Crim. P. 32(c)(3)(D).
When a defendant alleges that a PSI Report contains an
identified inaccuracy, the district court must either make a
finding concerning the allegation or make a determination that no
finding is necessary because the matter will not be taken into
account at sentencing. See Fed. R. Crim. P. 32(c)(3)(D). The
court must also append a written record of any such findings or
determinations to the PSI Report. Id. This protocol serves the
dual purpose of protecting the defendant's due process rights and
supplying a clear record for future proceedings (say, appellate
review or consideration for parole). See, e.g., United States v.
Levy, 897 F.2d 596, 599 (1st Cir. 1990); United States v.
Gerante, 891 F.2d 364, 367 (1st Cir. 1989); United States v.
Bruckman, 874 F.2d 57, 63-64 (1st Cir. 1989). Accordingly, we
have insisted on strict compliance with the rule. See United
States v. Hanono-Surujun, 914 F.2d 15, 18 (1st Cir. 1990)
(collecting cases).
That we are firm in requiring compliance with Rule
32(c)(3)(D) does not mean, however, that we habitually ignore the
realities of particular situations or divorce our consideration
from the circumstances of actual cases. The opposite is true.
See, e.g., United States v. Santana-Camacho, 931 F.2d 966, 969-70
(1st Cir. 1991); Levy, 897 F.2d at 598-99; Bruckman, 874 F.2d at
64-66; United States v. Serino, 835 F.2d 924, 932 (1st Cir.
1987). Thus, the record in a given case may show that the court
has "ma[d]e 'implicit' findings on disputed factual questions by
accepting the government's recommendations at the sentencing
hearing." United States v. Wells Metal Finishing, Inc., 922 F.2d
54, 58 (1st Cir. 1991).
The circumstances here are analogous to those that
confronted the Wells court. The judge presented both the
prosecutor and defense counsel with an opportunity to voice their
concerns anent the contents of the PSI Report. He heard
arguments from both sides about disputed matters. After
argument, the judge accepted the government's sentencing
recommendations and then indicated in writing, as part of the
judgment, that he had "adopt[ed] the factual findings . . . in
the presentence report." We think that this writing is
tantamount to the slightly more elaborate notation made by the
judge in Wells, 922 F.2d at 58, and that the purposes of Rule 32
were equally served. The only logically inferable conclusion is
that the court rejected each and all of appellant's fact-based
challenges to the PSI Report. See id.; see also United States v.
Cruz, F.2d , (1st Cir. 1992) [No. 91-1047, slip op. at
12-15]; Gerante, 891 F.2d at 367; Bruckman, 874 F.2d at 64. In
short, the district court made adequately particularized
findings, and created a minimally sufficient written
memorialization of those findings, when it expressly adopted the
facts as limned in the PSI Report, thereby necessarily finding
against appellant on all disputed matters of fact. Fed. R. Crim.
P. 32(c)(3)(D) was not violated.
III. CONCLUSION
We need go no further.11 Although appellant parades
a battery of challenges before us, none pass muster. The
judgment below must, therefore, be
Affirmed.
11Appellant further hints, without providing any detail, that the sentencing court may have failed to "state in open court the reasons for its imposition of the particular sentence" as required by 18 U.S.C. 3553(c) (1988). Read in conjunction with the pointed comments delivered by the district court at sentencing, this suggestion borders on the frivolous. At any rate, we will not attempt to fathom what appellant may have in mind, for it is our established rule that "issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived." United States v. Zannino, 895
F.2d 1, 17 (1st Cir.), cert. denied, 494 U.S. 1082 (1990).