United States v. Carlow ( 1995 )


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    August 25, 1995       [NOT FOR PUBLICATION]
                      UNITED STATES COURT OF APPEALS
                          FOR THE FIRST CIRCUIT
    
                                               
    
    No. 94-2140
    
                              UNITED STATES,
    
                                Appellee,
    
                                    v.
    
                  DALE CARLOW, a/k/a WILLIAM R. HARMON,
                            a/k/a BILL HARMON,
    
                          Defendant - Appellant.
    
                                               
    
               APPEAL FROM THE UNITED STATES DISTRICT COURT
    
                        FOR THE DISTRICT OF MAINE
    
               [Hon. Morton A. Brody, U.S. District Judge]
                                                                   
    
                                               
    
                                  Before
    
                         Torruella, Chief Judge,
                                                         
    
                          Stahl, Circuit Judge,
                                                        
    
                     and Dom nguez,* District Judge.
                                                             
    
                                               
    
         Paul  A.   Dinsmore,  by  Appointment  of   the  Court,  for
                                      
    appellant.
         Margaret D.  McGaughey,  Assistant United  States  Attorney,
                                         
    with  whom Jay P. McCloskey, United States Attorney, and James L.
                                                                               
    McCarthy,  Assistant United  States Attorney,  were on  brief for
                      
    appellee.
    
                                               
    
                        
                                  
    
    *  Of the District of Puerto Rico, sitting by designation.
    
    
                                               
    
                                   -3-
    
    
              Per   Curiam.    Defendant-appellant  Dale  Carlow  was
                        Per   Curiam
                                    
    
    convicted after  a jury found him guilty of 54 counts of mail and
    
    wire  fraud.  Carlow now  appeals  his  conviction and  sentence.
    
    Because we discern no error, we affirm.
    
              For three months in 1990, Carlow used  the name William
    
    Harmon in  29 wire transmissions  to buy computer  equipment from
    
    suppliers  all  over  the United  States  for  a retail  computer
    
    company in  Maine.  Carlow ordered  increasingly large quantities
    
    of  equipment and  paid by  company checks  that bounced.   After
    
    Carlow  was arrested on November  30, 1990, he  opened a computer
    
    company called Electrobyte.  Through this company, Carlow engaged
    
    in a  similar pattern of  fraudulent mail and  wire transactions.
    
    Carlow was arrested once again in September 1991.
    
              At  his trial, Carlow's  theory of defense  was that he
    
    lacked  the requisite intent to  defraud, and his  main source of
    
    evidence  in  support of  this  argument was  his  own testimony.
    
    Closing arguments focused,  not surprisingly, on the  credibility
    
    of Carlow's testimony.  After  deliberating for over three hours,
    
    the  jury found  Carlow  guilty on  all 54  counts.   Carlow  was
    
    sentenced on October 19, 1994 to 51 months' imprisonment, and was
    
    ordered to pay restitution in the amount of $111,649.65.
    
              Carlow now  offers several  arguments to  challenge his
    
    conviction and  sentence, contending: 1) that  the district court
    
    improperly   calculated  his   sentence   under  the   Sentencing
    
    Guidelines; 2) that the court erred in ordering restitution in an
    
    amount greater than $50,000;  3) that the court erred  in finding
    
                                   -2-
    
    
    that Carlow's  conduct involved  more than minimal  planning, and
    
    for failing to  decrease his  sentence based on  his role in  the
    
    offense; that the court  erred in instructing the jury  at trial;
    
    5)  that the evidence adduced at trial is insufficient to sustain
    
    his  conviction;   and  6)  that   Carlow  received   ineffective
    
    assistance of counsel at trial.
    
              Having  carefully  reviewed  the entire  record  of the
    
    trial  and sentencing, we find  no discernible error  or abuse of
    
    discretion  by  the  district  court.1   Accordingly,  we  reject
    
    Carlow's contentions on appeal, and affirm.
                                                        
    
                        
                                  
    
    1   Because we  ordinarily refrain from  entertaining ineffective
    assistance of counsel claims  on direct review, United  States v.
                                                                            
    Mala, 
    7 F.3d 1058
    , 1063 (1st Cir. 1993), and we see no reason to
                  
    depart  from  this   rule  here,  we  do  not   address  Carlow's
    ineffective assistance argument here.
    
                                   -3-
    
    

Document Info

DocketNumber: 94-2140

Filed Date: 8/25/1995

Precedential Status: Non-Precedential

Modified Date: 12/21/2014