United States v. Whitney

• Court: Court of Appeals for the First Circuit
• Decided: March 28, 1994
• Docket: 93-1494
• Status: Published

Opinion

USCA1 Opinion

          March 28, 1994        [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ___________________

No. 93-1494

UNITED STATES,

                                      Appellee,

                                          v.

                              ELLERTON P. WHITNEY, III,

                                Defendant, Appellant.

__________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Shane Devine, U.S. District Judge]
                                           ___________________

                                 ___________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                        Torruella and Boudin, Circuit Judges.
                                              ______________

                                 ___________________

               Ellerton P. Whitney, III on brief pro se.
               ________________________
               Peter S. Papps,  United States Attorney, and  Nancy E. Hart,
               ______________                                _____________
          Assistant United States Attorney, on brief pro se.

__________________

                                  __________________

Per  Curiam.   In 1991,  defendant Ellerton  Whitney was
                 ___________

            convicted on four  counts of defrauding a bank,  in violation

            of  18 U.S.C.   1344,  and on seventeen  additional counts of

            making   false  statements  on  bank  loan  applications,  in

            violation of  18 U.S.C.   1014.  He received a prison term of

            thirty-six months.   On  appeal, we affirmed  his convictions

            but remanded  for resentencing because of  an acknowledged ex
                                                                       __

            post  facto violation  in the  application of  the sentencing
            ___________

            guidelines.  United States v. Whitney, 991 F.2d 786 (1st Cir.
                         _____________    _______

            1993)  (per  curiam)  (table).    Defendant  was   thereafter

            resentenced  to a  prison term  of  twenty-seven months.   He

            again  appeals (this time on a pro se basis),1 advancing some

            fourteen challenges  to his  new sentence and  his underlying

            convictions.  With one  minor exception, we find each  of his

            arguments unpersuasive.

                    I.  Issues Barred on "Law of the Case" Grounds
                        __________________________________________

                 The  first six  issues  proffered by  defendant  involve

            substantive challenges  to his convictions.   These reduce to

            three  separate allegations:  (1) that  his absence  from the

            "charge conference"  requires a new trial;  (2) that numerous

            counts in  the indictment  were multiplicitous; and  (3) that

____________________

            1.  At  trial, defendant  chose to  conduct his  own defense,
            with  counsel appearing on a  standby basis.   He handed over
            the reins to his counsel for purposes of the first sentencing
            proceeding and  the first  appeal.  Similarly,  defendant was
            represented  by   counsel  at  the   resentencing  proceeding
            (although he was there afforded wide latitude to argue on his
            own behalf).  He has now again opted for pro se status. 

                                         -2-

the evidence at trial  revealed allegedly fraudulent loans at

            variance with those charged in the indictment.  We decline to

            consider  each of these allegations under the law of the case

            doctrine.  

                 In  the earlier  appeal, the  multiplicity  and variance

            issues were specifically raised  and specifically rejected by

            this  court.   As we  explained in  United States  v. Rivera-
                                                _____________     _______

            Martinez,  931 F.2d 148, 150 (1st Cir.), cert. denied, 112 S.
            ________                                 ____________

            Ct. 184 (1991),  "a decision  of an appellate  tribunal on  a

            particular issue,  unless vacated  or set aside,  governs the

            issue during all  subsequent stages of the litigation  in the

            nisi  prius court,  and  thereafter on  any further  appeal."

            Defendant has pointed to  no "exceptional circumstances," id.
                                                                      ___

            at 151, that would  warrant disregarding this rule here.   In

            turn, the  "charge conference" issue, although  not raised in

            the earlier appeal, is subject to the same disposition. 

                 [A]  legal decision made at one stage of a civil or
                 criminal  case, unchallenged in a subsequent appeal
                 despite  the existence  of ample opportunity  to do
                 so, becomes the  law of the case  for future stages
                 of the same litigation,  and the aggrieved party is
                 deemed to  have  forfeited any  right to  challenge
                 that particular decision at a subsequent date.

            United States v.  Bell, 988  F.2d 247, 250  (1st Cir.  1993);
            _____________     ____

            accord, e.g., United States v. Connell, 6 F.3d 27, 30-31 (1st
            ______  ____  _____________    _______

            Cir. 1993). Again, no exceptionalcircumstances are apparent.2

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            2.  Defendant's  standby counsel  did attend  the conference.
            The  court noted for the record that defendant "was expressly
            invited to participate  in that conference but elected not to

                                         -3-

The district court properly confined  the proceedings on

            remand  to the  scope of  our  mandate.   Defendant's present

            attempt to "take serial bites at the appellate apple," id. at
                                                                   ___

            30, must necessarily fail.3

                               II.  Calculation of Loss
                                    ___________________

                 By  aggregating  the total  amount  of  funds loaned  to

            defendant, the  presentence report calculated that  the three

            banks in question sustained losses  in excess of $2  million.

            Defendant's  attorney  disputed  this  finding  below on  the

            ground  that  it  failed  to  account for  some  $500,000  in

            collateral  which had  been  recovered.   The district  court

            sustained this  objection and  determined that the  losses in

            question, for  purposes of  U.S.S.G.   2F1.1(b),  exceeded $1

            million but were less than $2 million.4  

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            do  so."   And  defendant voiced  no  objection below  to his
            absence.  

            3.  Defendant's attempt  to revive his multiplicity  claim in
            the   guise  of   a  sentencing  issue--by   challenging  the
            imposition of $1050 in special  assessments--is inventive but
            unavailing.  The only sentencing calculation involved therein
            was  the multiplication  of $50  by the  number of  counts on
            which he was convicted (21).  

            4.  This yielded a 9-level addition to the base offense level
            of  6.   After  adding  two  levels  for  more  than  minimal
            planning, see    2F1.1(b)(2), and declining to add two levels
                      ___
            for obstruction of  justice, the court arrived  at an offense
            level  of 17.    With  a  criminal  history  category  of  I,
            defendant  was therefore subject to a  sentencing range of 24
            to 30 months.  The court selected a prison term in the middle
            of this range.  

                                         -4-

Defendant  advances  two  challenges  to  this  finding.

            First, in  a reprise  of his variance  argument, he  contends

            that  the  three loans  charged  in  the indictment  actually

            consisted  of   some  seven  or  more,  and   that  the  jury

            permissibly  could  have  convicted  him on  only  a  portion

            thereof (totalling less than $1,000,000).  This argument need

            not  be pursued  at  any length.    To the  extent  defendant

            alleges  improper  variance   or  seeks   to  challenge   the

            evidentiary sufficiency  of  his convictions,  we decline  to

            address such contentions  for the  reasons just  cited.   The

            guidelines state  that, for  purposes of    2F1.1(b)(1), "the

            loss  need not  be determined  with precision."   U.S.S.G.   

            2F1.1,   comment.   (n.8).     Especially   considering  that

            additional losses  resulted from  uncharged conduct  that was

            part  of a  common  scheme  or  plan,  and  so  was  properly

            admissible in  this context,  see U.S.S.G.    1B1.3(a)(2), we
                                          ___

            find no error in the court's determination. 

                 Second, defendant  contends that  he should not  be held

            accountable  for  the  full  extent  of  the  banks'  losses,

            inasmuch as other factors--such as dereliction on the part of

            banking personnel--contributed  thereto.  Yet the  loss table

            in   2F1.1 "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).
            _____________    ________

-5-

To  the extent that such  amount is thought  to overstate the

            seriousness of a defendant's offense for reasons of "multiple

            causation," the  appropriate remedy is  for the court  in its

            discretion to effect a downward departure.  See, e.g., United
                                                        ___  ____  ______

            States v. Brandon, ___ F.3d ___, No. 92-1447, slip op. at 111
            ______    _______

            n.83  (1st   Cir.  1994)  ("The  Guidelines   treat  multiple

            causation only as a possible ground for downward departure --

            a  matter  within  the  sound discretion  of  the  sentencing

            court."); United States v. Johnson, ___ F.3d ___, ___ n.7 (3d
                      _____________    _______

            Cir. 1994); United  States v. Shattuck,  961 F.2d 1012,  1017
                        ______________    ________

            (1st Cir. 1992); Gregorio, 956 F.2d at 347; U.S.S.G.   2F1.1,
                             ________

            comment. (n.11) (1988); id., comment. (n.7(b)) (1992).
                                    ___

                 The  court  here declined  to  depart  downward on  this

            basis.   It is apparent (and defendant does not dispute) that

            the court so decided  as a matter of discretion,  rather than

            out of any mistaken perception that it lacked the power to do

            so.  Its decision in this regard is therefore not appealable.

            See,  e.g., United States v. McAndrews, 12 F.3d 273, 276 (1st
            ___   ____  _____________    _________

            Cir. 1993); United  States v. Soltero-Lopez,  11 F.3d 18,  20
                        ______________    _____________

            (1st Cir. 1993).

                   III.  Other Issues Concerning Refusal to Depart
                         _________________________________________

                 In a series of arguments imbued with a distinct "kitchen

            sink"  quality,  defendant argues  that  the  court erred  in

            failing to depart downward on account of his  age, education,

            vocational  skills,  employment, family  and  community ties,

-6-

rehabilitation and poverty.   No extended discussion of these

            points  is necessary.  Under  U.S.S.G.   5H1,  the first five

            factors are "not ordinarily relevant" in determining  whether

            a downward departure is warranted.  See, e.g., United  States
                                                ___  ____  ______________

            v.  Rivera, 994  F.2d 942,  948 (1st  Cir. 1993)  (discussing
                ______

            "discouraged  departures").    Defendant  suggests  that  the

            district court thought itself precluded from even considering

            a  departure on these grounds.  To  the contrary, it is clear

            that the  court simply concluded  that such factors  were not

            "present in a manner that is unusual or special."  Id.  As to
                                                               ___

            the latter two  factors, we  need not decide  the extent,  if

            any,  to  which they  might provide  a  basis for  a downward

            departure.  Here as well, it is apparent that the court found

            that a departure  was unwarranted as a  matter of discretion.

            As  a result, each of defendant's arguments in this regard is

            likewise  unappealable.   We  might  add  that defendant  has

            pointed to  no personal circumstances that  would suggest his

            case is in any way exceptional.5 

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            5.  We likewise reject  two collateral arguments advanced  by
            defendant in this regard.   First, he contends that  a remand
            for resentencing  is necessary because of  the allegedly "new
            rule"   that  was  later  announced   in  Rivera.    Yet  the
                                                      ______
            "modification"  that we  there adopted  pertains only  to our
            standard of review.  See 994 F.2d at 950-51. 
                                 ___
                 Second, defendant argues that the policy statements in  
            5H1.1-.6 contravene  the statutory  directive in 28  U.S.C.  
            994(d) and are therefore invalid.  In particular, pointing to
                994(d)'s   reference  to   "establishing   categories  of
            defendants," he suggests that this provision was not meant to
            discourage  reliance on  such  factors in  individual  cases.
            This argument  not only  overlooks 28  U.S.C.   994(e),  see,
                                                                     ___

                                         -7-

IV.  Restitution
                                        ___________

                 The district court ordered that defendant pay a total of

            $197,000  to the  three  banks in  question.   Defendant  now

            argues  that such  order was unsupported  by the  evidence on

            record, was unaccompanied by  requisite findings of fact, and

            was barred by reason  of his indigency.  Except in  one minor

            respect, we find no error.

                 In  determining  whether to  order  restitution  and the

            amount thereof, a sentencing  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."  18 U.S.C.    3664(a).  Defendant's first

            argument,  which  apparently  contests the  district  court's

            calculation  as to the "amount of the loss," can be summarily

            rejected.   This  "fact-intensive" determination  is reviewed

            "only  for clear error."   United States v.  Savoie, 985 F.2d
                                       _____________     ______

            612, 617 (1st Cir.  1993).  No such  error occurred here;  as

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            e.g., United  States v.  Mondello, 927  F.2d 1463,  1470 (9th
            ____  ______________     ________
            Cir. 1991)  ("Commission's decision  to deem the  six factors
            'not ordinarily relevant' to departure determinations accords
            fully  with Congress' expression in  ...   994(e)  ... of the
            'general   inappropriateness'   of   considering    them   in
            sentencing"),  but is otherwise  meritless, see, e.g., United
                                                        ___  ____  ______
            States v. Jones, ___ F.3d ___, 1994 WL 61035, at *4 (4th Cir.
            ______    _____
            1994)  ("the legislative mandate  [in   994(d)]  is clear and
            the Commission has complied with that mandate").  

                                         -8-

mentioned above, the court  supportably found that the actual

            losses were well in excess of $197,000.  

                 Our  decision in  Savoie  also disposes  of  defendant's
                                   ______

            second argument.   We there stated that  the sentencing 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."  Id. at 618.   The record here makes clear that the
                       ___

            court  duly  considered the  statutory  factors.   They  were

            examined at trial (over which the sentencing judge presided),

            were discussed in detail in  the presentence report, and were

            thereafter  argued   at  some  length  at   the  resentencing

            hearing.6

____________________

            6.  In a  related argument,  defendant also complains  of the
            court's failure to provide reasons for its decision to impose
            a prison term of twenty-seven months.  He relies on 18 U.S.C.
                3553(c)(1),  which   provides  that,   if  (among   other
            conditions)  the  applicable  sentencing  range  "exceeds  24
            months," the court must  explain its reasons "for  imposing a
            sentence at a particular point within the range."  
                 Defendant  misinterprets this provision.   An expression
            of reasons is  required under   3553(c)(1)--not when the high
            end  of  the range  exceeds 24  months,  nor when  the actual
            sentence exceeds that duration--but rather when "the width of
            the guideline  range (i.e.,  the difference between  the high
            and  low  ends of  the range)"  does  so.   United  States v.
                                                        ______________
            Thomas, ___  F.3d ___,  1994 WL  67986, at  *9 n.2  (8th Cir.
            ______
            1994) (en banc); accord,  e.g., United States v.  Upshaw, 918
                             ______   ____  _____________     ______
            F.2d 789, 792  (9th Cir.  1990), cert. denied,  499 U.S.  930
                                             ____________
            (1991).    As the  applicable range  here  (24 to  30 months)
            spanned only six months,   3553(c)(1) is inapplicable.

                                         -9-

Defendant's third argument  is likewise unavailing.   As

            evidenced by    3664(a)'s reference to  "earning ability," it

            has been widely held that "indigency is not a bar to an order

            of restitution."  United States v. Purther, 823 F.2d 965, 970
                              _____________    _______

            (6th Cir.  1987); accord, e.g.,  Brandon, supra, slip  op. at
                              ______  ____   _______  _____

            116-17.    The  record  here  is  replete  with  evidence  of

            defendant's professional accomplishments and business acumen;

            he  himself  spoke  of  his "entrepreneurial  enthusiasm"  at

            resentencing.  Resent. Tr. at 18.  On  the basis thereof, the

            court  supportably  found  that  defendant's  future  earning

            potential was  sufficient to  warrant a substantial  order of

            restitution--notwithstanding his current financial plight.7

                 Our  one disagreement  is with the  fact that  the court

            ordered that  restitution be paid "immediately."   Because it

            is  undisputed that  defendant is  presently indigent  and is

            thus unable to  comply with  such a directive,  we think  the

            court  inadvertently abused  its  discretion to  this limited

            extent.8  See, e.g.,  United States v. Ramilo, 986  F.2d 333,
                      ___  ____   _____________    ______

____________________

            7.  Pointing out that no restitution had  been imposed at his
            initial  sentencing, defendant  also charges  that  the court
            acted  in  a vindictive  manner.    We  find this  contention
            groundless.   It suffices to note that, whereas the court had
            ordered  that  defendant  be  detained  pending  his  initial
            appeal, the court this  time around has released him  on bail
            (over the government's objection).

            8.  The district court can hardly  be faulted in this regard,
            inasmuch as  defendant  voiced no  such  objection  following
            entry  of the  restitution  order.   Defendant did,  however,
            advert  to the point earlier  in his lengthy  allocution.  In
            turn, while he has not raised this matter directly on appeal,

                                         -10-

335 (9th Cir. 1993) (restitution order "must be based on some

            evidence  the defendant may be  able to pay  the amount fixed

            when  required to do so");  United States v.  Clark, 901 F.2d
                                        _____________     _____

            855,   857  (10th  Cir.  1990)  (vacating  restitution  order

            requiring  immediate payment  on this  basis).   We therefore

            shall  remand so that an appropriate  payment schedule may be

            established.  The court at that time may also set  a date for

            the resumption of defendant's service of his prison term.

                 That  part of the  restitution order requiring immediate
                 ________________________________________________________

            payment is  vacated, the judgment is  otherwise affirmed, and
            _____________________________________________________________

            the  case is remanded for the limited purpose of establishing
            _____________________________________________________________

            an appropriate schedule for the payment of restitution.
            _______________________________________________________

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            defendant has  made passing  reference thereto in  his brief.
            Especially considering his  pro se status, we deem  the issue
            properly before us.  

                                         -11-