U.S. v. Shattuck, 91-1833

• Decision Date: 06 February 1992
• Docket Number: No. 91-1833,91-1833
• Citation: 961 F.2d 1012
• Parties: UNITED STATES of America, Appellee, v. Lewis Donald SHATTUCK, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1012

961 F.2d 1012

UNITED STATES of America, Appellee, v. Lewis Donald SHATTUCK, Defendant, Appellant.

No. 91-1833.

United States Court of Appeals First Circuit.

Heard Feb. 6, 1992.

Decided April 22, 1992.

Paul F. Markham, Boston, Mass., for defendant, appellant.

Lon F. Povich, Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., Boston, Mass., was on brief, for appellee.

Before TORRUELLA, Circuit Judge, COFFIN, Senior Circuit Judge, and CYR, Circuit Judge.

CYR, Circuit Judge.

Appellant challenges the concurrent twenty-seven month sentences imposed under the Sentencing Guidelines following his conviction on forty felony counts charging bank fraud, see 18 U.S.C. § 1344, misapplication and embezzlement of bank funds, see 18 U.S.C. § 656, or causing false entries in the records of a federally insured bank, see 18 U.S.C. § 1005. Appellant contends that the district court's refusal to conduct an evidentiary hearing to determine the amount of "victim loss" occasioned by his criminal conduct constituted an abuse of discretion and that the court applied an incorrect legal standard in its calculation of "victim loss." We affirm.

I BACKGROUND

Appellant was a Vice President and Senior Lending Officer with the Bank of New England ("BNE"), specializing in commercial real estate loans. All of the crimes for which appellant was sentenced involved misapplications of BNE funds in connection with five commercial real estate loan transactions. ¹

II DISCUSSION

Generously construed, appellant's brief presents two issues for consideration.

A. Evidentiary Hearing

Before the presentence report ("PSR") was ever submitted, appellant asked the district court to conduct an evidentiary hearing to "determine the amount of loss" occasioned BNE. The request for hearing contained no evidentiary proffer, beyond its conclusory allusion to evidence adduced during the jury trial at which the sentencing judge presided. ² The district court declined to conduct an evidentiary hearing.

The PSR recommended that the "victim loss" calculation be set at approximately $721,000, within the $500,000 to $1,000,000 range for which an eight-level enhancement is indicated. ³ See U.S.S.G. § 2F1.1(b)(1)(I). Appellant's entire challenge to the "victim loss" calculation in the PSR consisted of a verbatim reassertion of the grounds stated in support of the previous request for hearing, see supra note 2, once again without an evidentiary proffer. Moreover, throughout the sentencing proceedings defendant proposed no alternative "victim loss" calculation. ⁴ The ultimate "victim loss" calculation by the district court--"something over $700,000"--closely mirrored the PSR recommendation.

The denial of an evidentiary hearing on a sentencing guideline issue is reviewable only for "abuse of discretion." See United States v. Gerante, 891 F.2d 364, 367 (1st Cir.1989). The district court assuredly did not abuse its discretion. Appellant neither demonstrated that "[a]n evidentiary hearing [would] be the only reliable way to resolve" the "victim loss" calculation, see U.S.S.G. § 6A1.3, p.s., comment., nor that one would be useful. Although the sentencing court must afford the parties "an adequate opportunity to present information" as to "any factor important to the sentencing determination [which] is reasonably in dispute," U.S.S.G. § 6A1.3(a), p.s., affidavits, documentary exhibits, and submissions from counsel often suffice, see id. § 6A1.3, p.s., comment., even assuming that the opportunity to address the court, assured all criminal defendants (and counsel) at sentencing, would not. See Fed.R.Crim.P. 32(a)(1).

In the instant case, there can have been no abuse of discretion in the denial of an evidentiary hearing. First, the sentencing judge, having presided at trial, was intimately familiar with the only relevant evidence to which appellant alluded in either hearing request: "[t]he evidence at the trial showed that most of the money advanced by the Defendant in violation of the construction loan agreements were [sic] either applied to reduce [a coconspirator's] indebtedness to the bank or were [sic] dissapated [sic] by [the coconspirator] without the Defendant's knowledge or approval." (emphasis added). ⁵ At no time did appellant identify any evidence which would be presented at a hearing, so as to enable the district court to evaluate the usefulness of an evidentiary hearing. Although appellant made the conclusory assertion at sentencing that he had figures which would establish his entitlement to a "victim loss" setoff, none were ever submitted, either below or on appeal. As counsel was free to present appellant's "victim loss" contention at the sentencing hearing, ⁶ and there was no showing that an evidentiary hearing would be necessary or even useful, the refusal to conduct an evidentiary hearing was well within the sound discretion of the district court. ⁷

B. "Victim loss"

We do not review sentencing guideline disputes which were not preserved before the district court. See United States v. Dietz, 950 F.2d 50, 55 (1st Cir.1991) (refusing to review "victim loss" calculation on a ground not seasonably raised below); see also United States v. Uricoechea-Casallas, 946 F.2d 162, 166 (1st Cir.1991); United States v. Pilgrim Market Corp., 944 F.2d 14, 21 (1st Cir.1991); United States v. Fox, 889 F.2d 357, 359 (1st Cir.1989). The "victim loss" theory asserted by appellant on appeal was never raised below. ⁸ We advert to the merits only to demonstrate that the "victim loss" analysis mentioned on appeal would be unavailing, on the present record, in any event.

On appeal, appellant's brief cursorily asserts that "the distinction ... [in United States v. Hughes, 775 F.Supp. 348 (E.D.Cal.1991) ] between losses in cases like the present one and losses in cases involving theft and larceny is valid and should be adopted by this court." Quite unlike appellant, however, the defendant in Hughes obtained a fraudulent bank loan in violation of 18 U.S.C. § 1344, but pledged valuable collateral to secure its repayment. Id. at 350. What appears to have concerned the Hughes court, as well as the Third Circuit in a somewhat similar case, see United States v. Kopp, 951 F.2d 521 (3d Cir.1991), is the problematic notion that the bank sustains "victim loss" equal to the total amount of the fraudulent loan, notwithstanding the fact that the defendant pledged valuable collateral to secure its repayment. The Third Circuit focused on the defendant's intent to "take" the victim's property as the key distinction between the "victim loss" analysis prescribed in fraud cases, U.S.S.G. § 2F1.1, comment. (n. 7), and that applicable in theft cases, U.S.S.G. § 2B1.1, comment. (n. 2). ⁹ See also United States v. Badaracco, 954 F.2d 928 (3d Cir.1992). The court explained that the "victim loss" guideline in fraud cases, U.S.S.G. § 2F1.1, comment. (n. 7), requires the sentencing court to approximate the "actual" loss sustained by the victim, or the reasonably calculable "probable" or "intended" loss, whichever is greater. ¹⁰

When appellant misapplied BNE funds to unauthorized persons or purposes, he did not provide BNE with collateral to secure repayment of the unauthorized advances or diversions. Moreover, even if appellant were deemed to have raised, and neither waived nor abandoned, a Hughes claim, the "victim loss" determination would not have constituted reversible error.

Although not properly preserved below, nor mentioned on appeal, appellant adverted in the request for hearing, see supra note 2, to the distortive effect that real estate market conditions may have had on the actual amount of loss occasioned BNE. ¹¹ Appellant never attempted to approximate the monetary impact for which these market conditions allegedly accounted, apparently assuming, erroneously so, ¹² that the government would bear the burden of demonstrating whatever distortive effects might have resulted from market conditions. See supra note 2.

"[T]he victim loss table in U.S.S.G. § 2F1.1(b)(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, 346 (1st Cir.1992). Any portion of the total loss sustained by the victim as a consequence of factors extraneous to the defendant's criminal conduct is not deducted from total "victim loss" prior to the determination of the applicable guideline sentencing range ("GSR") pursuant to U.S.S.G. § 2F1.1(b)(1). Id. at 347 ("victim loss" table encapsulates "heartland" sentencing formula for reflecting approximate total "victim loss" in GSR). Rather, whatever distortive effects extraneous causes may have had on the total "victim loss" calculation may warrant a departure from the applicable GSR. U.S.S.G. § 2F1.1, comment. (n. 10) ("downward departure may be warranted" where "total dollar loss that results from the offense may overstate its seriousness," which "typically occur[s]" when defendant's fraud "is not the sole cause of the loss"); Kopp, 951 F.2d at 531 ("To the extent actual loss had other, more proximate causes, a discretionary downward departure--but not a mandatory 'loss' adjustment--might be appropriate."); see United States v. Carey, 895 F.2d 318, 323 (7th Cir.1990) (departure from GSR warranted under § 2F1.1 where "defendant should not be held responsible for entire loss due to extrinsic reasons beyond his control"); see generally, Gregorio, at 345-348 (discussing U.S.S.G. § 2F1.1, comment. (n. 10) and rejecting claim that "multiple causation" should be considered in calculating the GSR, rather than as basis for departure). Notwithstanding the representation in the PSR that there were no grounds for downward departure, the appellant never requested a downward departure based on "multiple causation." Therefore, any "multiple causation" claim was waived. See Dietz, 950 F.2d at 55.

Finally, the eight-level...