-
USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1845
UNITED STATES OF AMERICA,
Appellee,
v.
EVANGELIST LACROIX,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
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Before
Selya, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Boudin, Circuit Judge.
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William E. Brennan, with whom Timothy I. Robinson and
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Brennan, Caron, Lenehan & Iacopino were on brief, for appellant.
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John D. Chapman, Trial Attorney, Fraud Section, U.S. Dep't
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of Justice, with whom Paul Gagnon, United States Attorney, was on
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brief, for appellee.
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June 27, 1994
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SELYA, Circuit Judge. This sentencing appeal provides
SELYA, Circuit Judge.
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an opportunity to clarify the operative standards for identifying
relevant conduct under U.S.S.G. 1B1.3(a)(1)(B) (Nov. 1993).1
We seize the opportunity and, in the end, affirm the sentence
imposed below.
I. BACKGROUND
I. BACKGROUND
For many years, defendant-appellant Evangelist Lacroix
earned his livelihood as a building subcontractor in southern New
Hampshire. He became acquainted with the brothers Zsofka,
Matthew and Lazlos, who, through entities known as ZLM Realty and
101 Realty (the Zsofka entities), planned to develop a sizable
single-family residential real estate complex know as "Sunview
II." In late 1985, appellant and Matthew Zsofka (Zsofka),
together with Zsofka's construction foreman, John Lee, formed a
corporation, Alpha Construction Company, to serve as the general
contractor for Sunview II. Appellant became Alpha's president,
though by all accounts Zsofka retained ultimate control.
Construction and sales proceeded apace until the summer
of 1987, when demand began to slacken. Alpha responded to
adversity by retaining a marketing agent, Horns of New Hampshire
(HNH), a firm headed by Richard Horn. Zsofka and Horn
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1Because the case sub judice involves a sentence imposed
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under the June 15, 1988 edition of the sentencing guidelines, see
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infra Part II, all references herein are to that edition unless
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otherwise noted. Nonetheless, the reasoning and method of
analysis that we propose for handling accomplice attribution in
the relevant conduct context are fully applicable to the current
version of the controlling guideline, U.S.S.G. 1B1.3(a)(1)(B)
(Nov. 1993).
2
masterminded an illegal scheme that enabled their companies to
market and sell roughly 90 homes over the following two years.
The conspirators' plan was seductively simple: they
secretly gave money, secured by a late-filed second mortgage, to
any would-be homeowner who lacked the wherewithal for the minimum
down payment required by the prospective purchase-money mortgage
lender (usually the Dime Savings Bank).
Appellant personally handled 31 closings at which he
falsely represented, both orally and in writing, that no
undisclosed financing arrangements existed. Appellant knew these
statements to be apocryphal when made. The other 60-odd closings
were handled in much the same fashion by one or the other of
appellant's coconspirators. The transactions were structured in
such a way that, on paper, Alpha conveyed the houses, but not the
land, to the buyers. The company received in excess of $37,000
at every closing. These proceeds enabled Alpha, among other
things, to assist the Zsofka entities in funding the clandestine
second mortgages.
After Zsofka and Horn hatched the plot, appellant
attended weekly staff meetings at which all the closings,
including those handled by others, were discussed and approved.
At no fewer than three of these meetings Zsofka preached to those
present, appellant among them, about the importance of keeping
all secondary financing hidden from the first mortgagees. Zsofka
also gave instructions on how best to accomplish this furtive
feat.
3
During the under-three-year period when the scheme was
velivolant, appellant drew a total of approximately $385,000 in
salary from Alpha. In sum, as a part-owner and salaried officer
of Alpha, appellant participated in, or was present at the
discussion of, every transaction, profited at least indirectly
from each sale, and stood to gain more money later (when and if
the buyers repaid the second mortgages).
Over time, many of the borrowers proved unable to pay
the first mortgages, resulting in widespread foreclosures at a
net cost to the Dime Savings Bank in excess of $2,800,000.
Losses of this magnitude are seldom unremarked. In 1992, a
federal grand jury returned a 102-count indictment against the
three Alpha principals and four persons associated with HNH. The
indictment charged appellant with conspiracy to defraud a
federally insured financial institution in violation of 18 U.S.C.
371, and with various substantive offenses, including 12 counts
of bank fraud, 18 U.S.C. 1344, and 12 counts of making false
statements to a federally insured financial institution, 18
U.S.C. 1014. After a 17-day trial, the jury announced its
inability to reach agreement on the 24 counts charging appellant
with the commission of substantive offenses,2 but nevertheless
found him guilty of conspiring to defraud the Dime Savings Bank.
II. SENTENCING AND ASSIGNMENTS OF ERROR
II. SENTENCING AND ASSIGNMENTS OF ERROR
In July 1993, the trial judge convened a disposition
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2The 24 specific offense counts have since been dismissed on
motion of the prosecution.
4
hearing. Apparently fearing potential ex post facto problems,
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the judge, without objection, consulted the sentencing guidelines
that had been in effect at the time the conspiracy wound down,
namely, the June 15, 1988 edition. See United States v.
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Harotunian, 920 F.2d 1040, 1041-42 (1st Cir. 1990) (explaining
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that a sentencing court should apply the guidelines in effect on
the date of sentencing unless doing so will implicate ex post
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facto concerns); United States v. Arboleda, 929 F.2d 858, 871
_____ _____________ ________
(1st Cir. 1991) (stating that, if the guidelines in effect at
sentencing are not used, then members of a conspiracy are
ordinarily "subject to the sentencing guidelines in effect at the
time of the completion of the conspiracy").
Starting with a base offense level of six, see U.S.S.G.
___
2F1.1(a), the judge added ten levels on the theory that
appellant shared responsibility for inflicting losses of at least
$2,000,000 (but less than $5,000,000), see U.S.S.G.
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2F1.1(b)(1)(K), and then added two incremental levels for more
than minimal planning, see U.S.S.G. 2F1.1(b)(2)(A). These
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calculations yielded an adjusted offense level of 18, which, for
a first offender, produced a guideline sentencing range (GSR) of
27-33 months. The court imposed an incarcerative sentence at the
nadir of the range.
This appeal spotlights the court's determination of the
aggregate losses properly attributable to Lacroix. Noting that
the judge counted transactions handled by his coconspirators as
"relevant conduct" under U.S.S.G. 1B1.3(a)(1), and, therefore,
5
tagged him with the entire loss suffered by the defrauded bank,
Lacroix assigns error. He contends that the sentencing court
misconceived the applicable test for relevant conduct, mounted
too shallow an inquiry into the subject, and, in all events, that
the court found the facts in a quixotic manner, thereby
misapplying the test.
Appellant's first contention poses a question of
guideline interpretation, which sparks de novo review. See
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United States v. DeLuca, 17 F.3d 6, 7 (1st Cir. 1994) (holding
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that, when "an appeal raises a purely legal question involving
the proper interpretation of the sentencing guideline, appellate
review is plenary"); United States v. St. Cyr, 977 F.2d 698, 701
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(1st Cir. 1992) (similar). Appellant's second contention also
poses a pure question of law and is, therefore, to be reviewed
under the same standard. Appellant's third contention is cut
from different cloth; it hinges on a factbound determination
under the applicable guideline, thus evoking clear error review.
See United States v. Bradley, 917 F.2d 601, 605 (1st Cir. 1990);
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see also United States v. Brandon, 17 F.3d 409, 458 (1st Cir.
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1994) (holding that valuation of losses for sentencing purposes
must be reviewed under the clear error standard), petition for
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cert. filed (U.S. May 16, 1994) (No. 93-9135).
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III. FORMULATING THE RELEVANT CONDUCT INQUIRY
III. FORMULATING THE RELEVANT CONDUCT INQUIRY
It is beyond serious question that the losses stemming
from the 31 transactions closed by appellant constitute relevant
6
conduct under U.S.S.G. 1B1.3(a)(1).3 Less obvious is whether
the remaining transactions, approximately 60 in number, closed by
coconspirators, may be attributed to him. This appeal centers
around appellant's insistence that the court below misinterpreted
the test governing what the Third Circuit aptly has called
"accomplice attribution," see United States v. Collado, 975 F.2d
___ ______________ _______
985, 990 (3d Cir. 1992), by taking too permissive a view of the
test's foreseeability prong.
A. The Accomplice Attribution Test.
A. The Accomplice Attribution Test.
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The accomplice attribution test is restated in the case
law with great frequency, but rarely in quite the same form or
with quite the same emphasis. Thus, our perlustration must start
with the guideline itself.
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3U.S.S.G. 1B1.3(a)(1) has always encompassed both acts
performed personally by a defendant and acts of others
attributable to that defendant as relevant conduct. The
barebones 1988 version, applied by the court below, treated these
two types of relevant conduct in separate clauses of the same
provision, defining relevant conduct as "all acts and omissions
committed or aided and abetted by the defendant, or for which the
defendant would be otherwise accountable . . . ." In the most
recent version of the guidelines, the taxonomy is elaborated at
greater length, and the two types of relevant conduct are treated
in separate provisions, namely, 1B1.3(a)(1)(A) and
1B1.3(a)(1)(B). The category designed to include the first type
of relevant conduct the defendant's own acts has been
rephrased to make clear that it includes "all acts and omissions
committed, aided, abetted, counseled, commanded, induced,
procured, or willfully caused by the defendant." We need not
dwell on this linguistic change, since the acts committed
personally by Lacroix constitute relevant conduct under any
conceivable interpretation of the guidelines, past or present.
However, the Commission's clarification of the second category of
relevant conduct the acts of others attributable to the
defendant is significant to the task at hand, and, therefore,
we discuss it at some length, see infra note 4 & accompanying
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text.
7
In its current iteration,4 the applicable guideline
states that relevant conduct includes "all reasonably foreseeable
acts and omissions of others in furtherance of the jointly
undertaken criminal activity, that occurred during the commission
of the offense of conviction, in preparation for that offense, or
in the course of attempting to avoid detection or responsibility
for that offense." U.S.S.G. 1B1.3(a)(1)(B) (Nov. 1993).
Reading the 1988 version of section 1B1.3(a)(1) in light of
subsequent clarifying amendments to both the guideline and its
commentary, we understand the Sentencing Commission to have
mandated a two-part inquiry for accomplice attribution in the
relevant conduct milieu. First, the sentencing court must
determine what acts and omissions of others were in furtherance
of the defendant's jointly undertaken criminal activity. This
task requires the court to ascertain what activity fell within
the scope of the specific conduct and objectives embraced by the
defendant's agreement (whether explicit or tacit). Second, the
court must determine to what extent others' acts and omissions
that were in furtherance of jointly undertaken criminal activity
likely would have been foreseeable by a reasonable person in
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4The Sentencing Commission amended U.S.S.G. 1B1.3(a)(1) in
1989 and again in 1992. See U.S.S.G. App. C, Amends. 78 & 439
___
(Nov. 1993); see also Collado, 975 F.2d at 991-92 (analyzing 1989
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amendment); United States v. O'Campo, 973 F.2d 1015, 1023 n.6,
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1024 nn. 8-9, 1025 n.10 (1st Cir. 1992) (discussing both
amendments). Because the Sentencing Commission has labelled
these amendments as "clarifying" in nature, rather than as
revisionary, they may be taken into account retrospectively, not
only by the sentencing court, see U.S.S.G. 1B1.11(b)(2) (Nov.
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1993), but also on appeal, see United States v. Valencia-Lucena,
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988 F.2d 228, 234 n.5 (1st Cir. 1993).
8
defendant's shoes at the time of his or her agreement.5
We think it is important to emphasize that the vantage
point for the foreseeability judgment is the time of the
defendant's agreement not necessarily the time he personally
undertook the performance of criminal activity, or the time of
his entry into the conspiracy. Siting the vantage point in this
way has at least two salient implications. For one thing, a
court examining relevant conduct may attribute to a defendant
acts committed by his accomplices prior to the commission of his
own acts, so long as they occur subsequent to his agreement. For
another thing, because a single defendant may make multiple
agreements or expand an existing agreement, a defendant sometimes
may be chargeable with losses arising out of conduct that he
could not have foreseen at the time he entered the conspiracy, so
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5We have considered the possibility that the latest
reformulation of application note 2, U.S.S.G. 1B1.3, comment.
(n.2) (Nov. 1993), mandates a compound finding, such that, for
"conduct" to be "relevant," the accomplice's act would have to be
"in furtherance of activity within the scope of agreement." We
reject this refinement for two reasons. First, the language of
the guideline itself refers only to the concepts of "furtherance"
and "foreseeability." Second, application note 2, read as a
whole, appears to use "in furtherance" and "within the scope"
interchangeably a practice consistent with earlier usage in
both the commentary and the case law. See, e.g., U.S.S.G.
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1B1.3, comment. (n.1) (Nov. 1991) (stating, within the space of
a few lines, that conduct for which a defendant would be
otherwise accountable includes conduct of others "in furtherance
of the execution of the jointly undertaken criminal activity that
was reasonably foreseeable" and excludes conduct that was
"neither within the scope of the defendant's agreement nor was
reasonably foreseeable"); United States v. Garcia, 954 F.2d 12,
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15-16 (1st Cir. 1992) (similar); see generally Paul J. Hofer,
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Implications of the Relevant Conduct Study for the Revised
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Guideline, 4 Fed. Sent. R. 334, 335 (1992) (discussing confusion
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of the terms "furtherance" and "scope").
9
long as such conduct was foreseeable at the time that he signaled
his agreement to the expanded scope of jointly undertaken
criminal activity embracing such conduct.
In this case, the inquiry may be truncated. There has
never been any suggestion that the 60-something transactions
closed by appellant's coconspirators were outside the scope of
appellant's agreement, or, put another way, that those
transactions were other than in furtherance of the jointly
undertaken criminal activity. Consequently, this appeal turns
exclusively on the issue of foreseeability.
B. The Findings Below.
B. The Findings Below.
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At the disposition hearing, defense counsel argued that
appellant could not have foreseen the conduct of others. The
lower court treated this argument as calling into question an
application of the guidelines. The court then proceeded to find,
based on the trial evidence and the jury verdict, that:
Mr. Lacroix was involved in this
conspiracy from the beginning. He was aware
of the nature and extent of the development
that was involved, the development that Alpha
was involved in. He was aware of the cost of
the homes. He was aware of the profit that
was being received, and he was also receiving
salaries from Alpha, $173,000 in '87,
$187,000 in '88, $25,000 in '89.
So in the opinion of the Court he was
well aware of the magnitude of what was
happening here, and . . . under all of the
circumstances in which he was involved, the
foreseeability in this situation is really
inherent in the nature of the conspiracy that
was involved here, which was a marketing
conspiracy.
IV. ANALYSIS
IV. ANALYSIS
10
Appellant says that the district court's findings on
foreseeability are flawed both legally and factually.
A. Questions of Law.
A. Questions of Law.
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Appellant raises two predominantly legal challenges to
the court's formulation of the relevant conduct inquiry. We
inspect each challenge in turn.
1. Mere Awareness. Appellant seizes on the district
1. Mere Awareness.
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court's repeated use of the word "aware" and suggests that its
recurrence betokens a single-minded focus on the defendant's
knowledge. This focus is impermissible, appellant asseverates,
because a finding of "mere awareness," in and of itself, cannot
be equated with, and does not justify, a finding of
foreseeability in the sentencing phase. Despite appellant's
citations to several cases, his asseveration begs the pivotal
question. Awareness does not always bear on foreseeability in
precisely (or even roughly) the same way. To understand the
inferences that lawfully can be drawn from awareness in any given
situation, a court must first assess the particular factual
setting and then answer the question: "Awareness of what?"
The four cases upon which appellant principally relies,
read carefully, underscore this necessity. The first of them,
United States v. O'Campo, 973 F.2d 1015, is a case in which we
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admonished sentencing judges not to equate mere knowledge with
foreseeability but we were referring specifically to "mere
knowledge of historic facts." Id. at 1025. By this, we meant
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that the foreseeability of acts performed after defendant's entry
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11
into a conspiracy could not be established by his "mere
knowledge" of acts performed prior to his entry into the
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conspiracy.6 See id. at 1026; see also United States v.
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Carreon, 11 F.3d 1225, 1234-37 (5th Cir. 1994) (discussing
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O'Campo). Since Lacroix was involved in the instant conspiracy
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from the start, the stratagemical acts of which he was aware
necessarily occurred after his entry into the conspiracy. Thus,
O'Campo is inapposite because it did not deal with post-entry
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acts.
The remaining three cases upon which appellant relies
advance the bland proposition that foreseeability is not
dispositively established by mere awareness of the existence or
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illegality of a conspiracy. See United States v. Evbuomwan, 992
___________________________ _____________ _________
F.2d 70, 74 (5th Cir. 1993) (explaining that "mere knowledge that
criminal activity is taking place is not enough"); United States
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v. Valencia-Lucena, 988 F.2d 228, 234 (1st Cir. 1993) (suggesting
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that individuals may "know that the agreement they have entered
is illegal but [nevertheless] have no way to foresee the
magnitude or ambition of the enterprise"); United States v.
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Edwards, 945 F.2d 1387, 1393 (7th Cir. 1991) (commenting that
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"foreseeability means more than subjective awareness . . . that
[an accomplice] headed a long-standing and successful heroin
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6We note in passing that the O'Campo court did not say that
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awareness of pre-entry acts was bereft of evidentiary
significance in determining the foreseeability of post-entry
acts. The court said the opposite. See O'Campo, 973 F.2d at
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1026 (stating that "knowledge of . . . prior acts will inform the
judgment about what [defendant] reasonably could have foreseen").
12
distribution network"), cert. denied, 112 S. Ct. 1590 (1992). We
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find no fault with these cases but we caution that the courts'
words cannot be read in a vacuum. Awareness, even if limited to
knowledge of a conspiracy's unlawfulness, is always (or almost
always) relevant to the question of foreseeability and none of
the cited cases suggest the contrary.
More importantly, these three cases do not in any way
denigrate the possibility that foreseeability may be established
by a different kind of awareness, that is, by a defendant's
knowledge of the nature and extent of a conspiracy in which he is
_______________________________________________________
involved. This, of course, is exactly the stripe of awareness
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detected by the court below. It is both good law and good logic
that a defendant's awareness of the inner workings of a
conspiracy in which he is participating is germane to, and often
highly probative of, accomplice attribution. Although appellant
may choose to characterize such intimate knowledge as "mere
awareness" a term that we view as verging on the oxymoronic in
a case like this one he is fishing in an empty stream. Such
knowledge frequently will suffice to prove the defendant's
ability to foresee the acts of coconspirators. See, e.g., United
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States v. Roberts, 14 F.3d 502, 525 (10th Cir. 1993) (concluding
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that a defendant's knowledge that the accomplice habitually
carried a firearm justified a finding that defendant could
reasonably foresee that accomplice would carry the gun on the
occasion in question).
"Foreseeability" is conventionally defined as the
13
"ability to see or know in advance." Black's Law Dictionary 649
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(6th ed. 1990). Viewed in that light, a "reasonably foreseeable
act" might well be regarded as an act that a reasonable person
who knew everything that the defendant knew at the time would
have been able to know in advance with a fair degree of
probability. Giving due weight to the intimate connection
between knowledge and foreseeability, we conclude that in this
case it was both permissible and advisable for the district court
to consider appellant's awareness of the conspiracy's nature and
scope en route to an ultimate determination on foreseeability.
The district court, therefore, did not misconstrue either the
elements of the accomplice attribution test or the way in which
the test should operate.
2. The Nature of the Inquiry. Appellant's next
2. The Nature of the Inquiry.
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argument is pitched in a somewhat different direction. He points
to a Third Circuit directive that instructs district courts, when
considering accomplice attribution in the relevant conduct
context, to embark upon "a searching and individualized inquiry
into the circumstances surrounding each defendant's involvement
in the conspiracy." Collado, 975 F.2d at 995. He then invites
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us to adopt this standard and calumnizes the district court for
mounting an inquiry that supposedly fell short of it. We believe
that this argument is largely an exercise in semantics.
In the first place, the invitation that appellant
extends is wholly gratuitous. We already have endorsed the
principle of a searching and individualized inquiry in the
14
relevant conduct context. See, e.g., United States v. Balogun,
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989 F.2d 20, 22 (1st Cir. 1993) (holding that a sentencing court
ordinarily must make specific, individualized findings regarding
foreseeability for each defendant).7 Indeed, the Third Circuit,
in constructing the rule appellant urges us to "adopt," cites our
opinion in United States v. Garcia, 954 F.2d 12 (1st Cir. 1992),
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as a model. See Collado, 975 F.2d at 995. The mere fact that we
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have employed slightly different phraseology than the Third
Circuit is of no consequence. The adjectives used in Collado,
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while concinnous, are neither talismans nor words of art.
The second half of appellant's argument is equally
meritless. Here, the district court honored the spirit of
Balogun by making extensive findings regarding the foreseeability
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of others' acts from appellant's vantage point. Since the court
presided over a 17-day trial and based its findings, inter alia,
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"on all of the evidence that the Court heard during the course of
the trial," it strains credulity to describe the inquiry below as
insufficiently searching. We are hard pressed to imagine what
more the district court might have done and appellant, for all
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7In Balogun, we mused that there might be a possible
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exception to this rule in the rare case where foreseeability is
"inherent in the nature" of a particular conspiracy. 989 F.2d at
22. We have yet to probe the parameters of this possible
exception, nor do we need to do so today. We note only that the
district court's seemingly misplaced allusion to Balogun's
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"inherent in the nature" language, see supra at p. 10, does
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little to shed light upon the court's conclusions. Consequently,
we rely on the district judge's individualized findings in
respect to foreseeability, and treat his comment that
foreseeability "is really inherent in the nature of [a marketing]
conspiracy" as mere surplusage.
15
his lamentations, has not advanced a single concrete suggestion.
B. Questions of Fact.
B. Questions of Fact.
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Appellant's fallback position is that, even if the
district court applied the proper legal rules in determining
relevant conduct, its findings of fact were clearly erroneous.
The facts of the case, taken without embellishment, expose the
fallacy in appellant's position.
To be sure, Lacroix was neither the progenitor nor the
moving spirit of the conspiracy, but he helped to found it,
retained a proprietary interest in it, and played an integral
part in its operation. Moreover, he served as the titular head
of the firm that oversaw the construction, marketing, financing,
and sale of every home. The record supports indeed, virtually
compels an inference that appellant understood from the
inception that the object of the conspiracy was to sell homes by
hook or by crook. Taking the district court's explicit findings,
and fleshing them out with details derived from the record, we
understand the court to have concluded that appellant knew all
along the sums involved in each transaction and the conspiracy's
method of operation selling houses to unqualified buyers by
providing, and then fraudulently concealing, secondary financing.
Because any reasonable person in appellant's position, at the
time of his agreement, would have recognized that ninety or more
homes might be sold in this corrupt fashion, the court below did
not err in concluding that all the losses resulting from the
16
sales were fairly attributable to Lacroix.8
Appellant cannot deny this analysis in any of its
particulars, and, in fairness, does not really try to do so.
Instead, he seeks to escape the force of the district court's
reasoning by introducing three extraneous considerations. At
bottom, this endeavor reflects a basic misunderstanding of
sentencing principles.
First, appellant insists that a finding of
foreseeability is undermined by the jury verdict. We do not
agree. The jury did not exonerate appellant in connection with
the substantive offense counts; rather, it simply deadlocked on
these counts. Its verdict, therefore, did not resolve the
contested issues either way, but left them up in the air.
Moreover, the method of the guidelines is to leave to
the sentencing judge, not the jury, the determination of what
"conduct" is "relevant" to the fashioning of a defendant's
sentence. See United States v. Limberopoulos, ___ F.3d ___, ___
___ _____________ _____________
(1st Cir. 1994) [No. 92-1954, slip op. at 15]; see also U.S.S.G.
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6A1.3. Thus, even a trial jury's refusal to find that a certain
fact has been proven beyond a reasonable doubt will not bar the
district court from making precisely that same finding at
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8In our view, this is an especially potent case for such
attribution. Above and beyond what the government had to prove
in respect to that issue, appellant could easily have foreseen
that the coconspirators' method of operation carried with it a
heightened chance of default and foreclosure. Thus, appellant
could foresee the consequences of the illegal marketing scheme
and the magnitude of the attendant financial risks to which the
bedeviled mortgage lender might fall prey.
17
sentencing, under a preponderance-of-the-evidence standard. On
this basis, we have held squarely that a defendant's acquittal on
a particular count does not limit the sentencing court's
flexibility in considering the same underlying facts in respect
to the count of conviction. See United States v. Mocciola, 891
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F.2d 13, 16 (1st Cir. 1989). A fortiori, the case for permitting
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judges free rein to make whatever findings the record can support
is airtight where, as here, trial on the disputed counts ends
with a hung jury rather than an acquittal.
Second, appellant presents himself as a babe in the
woods, an uneducated carpenter in the company of sophisticated
entrepreneurs. For what this jeremiad may be worth insofar as it
bears upon accomplice attribution, it was tendered to, and
rejected by, the district judge.9 We discern no clear error.
See, e.g., United States v. Ruiz, 905 F.2d 499, 508 (1st Cir.
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1990) (acknowledging that "where there is more than one plausible
view of the circumstances, the sentencing court's choice among
supportable alternatives cannot be clearly erroneous").
Third, and relatedly, appellant harps on the fact that
Zsofka and Horn called the tune, to which he merely danced. But
the concepts of "relevant conduct" and "role" are distinct in the
world of the sentencing guidelines. See United States v. Lilly,
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13 F.3d 15, 18-19 (1st Cir. 1994). Whereas the former helps to
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9We note in passing that the judge sentenced appellant at
the lowest point in the GSR, a determination that, to some
extent, may have taken into account appellant's supposed lack of
sophistication.
18
gauge the gravity of an offense, the latter helps to measure the
offender's culpability. See id. Hence, the district court's
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attribution of the entire loss to appellant is not in any way
inconsistent with the fact that he may have played only a
supporting role.10
We need go no further. The short of it is that none of
the factors upon which appellant dwells cast doubt upon the
district court's ascertainment of the amount of loss attributable
to appellant in connection with the jointly undertaken criminal
activity. Consequently, we cannot say that the lower court erred
in constructing the sentencing calculus.
Affirmed.
Affirmed.
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10Of course, the guidelines permit a sentencing court to
reduce a defendant's offense level for "minor" or "minimal"
participation in the offense of conviction. See U.S.S.G. 3B1.2.
___
Appellant did not seek such an adjustment below and, therefore,
cannot challenge the lack of such an adjustment on appeal. See
___
United States v. Dietz, 950 F.2d 50, 55 (1st Cir. 1991) (holding
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that sentencing arguments not seasonably advanced below cannot be
introduced for the first time on appeal). At any rate, while
others may have been the ringleaders, we see no basis for
characterizing appellant's role as "minor" or "minimal."
19
Document Info
Docket Number： 93-1845
Filed Date： 6/27/1994
Precedential Status： Precedential
Modified Date： 9/21/2015