United States v. Carlow ( 1995 )

USCA1 Opinion

          August 25, 1995       [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT









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          No. 94-2140



                                    UNITED STATES,



                                      Appellee,



                                          v.



                        DALE CARLOW, a/k/a WILLIAM R. HARMON,

                                  a/k/a BILL HARMON,



                                Defendant - Appellant.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                              FOR THE DISTRICT OF MAINE



                     [Hon. Morton A. Brody, U.S. District Judge]
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                                        Before



                               Torruella, Chief Judge,
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                                Stahl, Circuit Judge,
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                           and Dom nguez,* District Judge.
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               Paul  A.   Dinsmore,  by  Appointment  of   the  Court,  for
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          appellant.

               Margaret D.  McGaughey,  Assistant United  States  Attorney,
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          with  whom Jay P. McCloskey, United States Attorney, and James L.
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          McCarthy,  Assistant United  States Attorney,  were on  brief for
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          appellee.







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          *  Of the District of Puerto Rico, sitting by designation.



















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                    Per   Curiam.    Defendant-appellant  Dale  Carlow  was
Per   Curiam
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          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





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          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.
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          1   Because we  ordinarily refrain from  entertaining ineffective

          assistance of counsel claims  on direct review, United  States v.
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          Mala, 7  F.3d 1058, 1063 (1st Cir. 1993), and we see no reason to
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          depart  from  this   rule  here,  we  do  not   address  Carlow's

          ineffective assistance argument here.



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