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USCA1 Opinion
September 4, 1992 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1791
UNITED STATES,
Appellee,
v.
ROBERT E. STARCK,
Defendant, Appellant.
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No. 92-1792
UNITED STATES,
Appellee,
v.
NATHANIEL M. MENDELL,
Defendant, Appellant.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
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Before
Torruella, Cyr, and Boudin,
Circuit Judges.
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Richard C. Driscoll, Jr. on Memorandum in Support of Motions
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for Release on Bail Pending Appeal.
A. John Pappalardo, United States Attorney, and Mark J.
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Balthazard, Special Assistant United States Attorney, on
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Memorandum in Opposition to Motions for Release on Bail Pending
Appeal.
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Per Curiam. Defendants Robert Starck and Nathaniel
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Mendell move for release pending appeal of their criminal
convictions. For the following reasons, the motions are
denied.
I.
The indictment charged Starck and Mendell with fraud in
connection with their attempt to convert a Cape Cod motel
which they owned into a time-share facility. In particular,
it alleged that they (along with a third codefendant) made
false representations in order to induce persons to buy time-
share leases. Two basic misrepresentations were alleged to
have been made: (1) that the motel, Village Green by the Sea,
was affiliated with a time-share exchange company, Resort
Condominiums International, Inc. (RCI), an arrangement that
would permit purchasers to trade their time at Village Green
for that at other resorts throughout the world; and (2) that
Village Green was financially viable and would be available
for use for 99 years. Following a five-week trial, Starck
was convicted of fourteen counts of mail fraud, in violation
of 18 U.S.C. 1341, and one count of inducing interstate
transportation to obtain property by fraud, in violation of
18 U.S.C. 2314. Mendell was convicted of ten counts of
mail fraud. The defendants were sentenced to concurrent
terms of 27 months incarceration as to each count.
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Having been released on bail pending trial and
sentencing, Starck and Mendell were ordered to report to
prison on July 14, 1992. On July 8, they filed applications
below for release pending appeal, which the district court
denied on July 10. They then filed motions in this court
seeking (1) release pending appeal and (2) immediate release
pending decision on the underlying bail motions. On July 13,
we denied the motions for immediate release, and ordered that
memoranda be submitted on an expedited basis regarding the
underlying motions. In addition to the parties' memoranda,
we now have the benefit of the trial transcript.
II.
The district court found, and the government does not
dispute, that neither defendant is likely to flee or pose a
danger to the safety of any other person or the community.
The sole question is thus whether defendants have
established, pursuant to 18 U.S.C. 3143(b)(1)(B), that
their appeals raise a substantial question of law or fact
likely to result in (1) reversal, (2) an order for a new
trial, (3) a sentence that does not include a term of
imprisonment, or (4) a reduced sentence to a term of
imprisonment less than the total of the time already served
plus the expected duration of the appeal process. A
"substantial" question in this context is one that is close
or could very well be decided the other way. United States
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v. Bayko, 774 F.2d 516, 523 (1st Cir. 1985). As they did
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below, defendants identify three general issues that are
alleged to be "substantial."1 We agree with the district
court that none of these satisfies the Bayko standard.
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1. Sufficiency of the Evidence
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The first issue involves the sufficiency of the
evidence. Their challenge in this regard is directed, not to
any specific count(s), but rather to the alleged scheme
underlying the indictment as a whole. They claim, in
particular, that the evidence was inadequate to show that
they (1) made any false statements to prospective buyers, (2)
otherwise had any intent to defraud, or (3) ever "devised" a
scheme to defraud within the meaning of 18 U.S.C. 1341.2
Based on a preliminary review of the record, we find these
assertions unpersuasive.
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1. Each of the arguments advanced is applicable to both
Starck and Mendell (who are represented by the same attorney
on appeal).
2. 18 U.S.C. 1341 provides in pertinent part:
Whoever, having devised or intending to devise
any scheme or artifice to defraud, or for obtaining
money or property by means of false or fraudulent
pretenses, representations, or promises, ... for
the purpose of executing such scheme or artifice or
attempting to do so, places in any post office ...
any matter or thing whatever to be sent or
delivered by the Postal Service, or takes or
receives therefrom, any such matter or thing, or
knowingly causes to be delivered by mail ... any
such matter or thing, [shall be guilty of a crime].
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"A denial of a motion for judgment of acquittal based on
the insufficiency of the evidence is subject to deferential
review." United States v. Lopez, 944 F.2d 33, 39 (1st Cir.
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1991).
We assess the sufficiency of the evidence as a
whole, including all reasonable inferences, in the
light most favorable to the verdict, with a view to
whether a rational trier of fact could have found
the defendant guilty beyond a reasonable doubt. We
do not weigh witness credibility, but resolve all
credibility issues in favor of the verdict. The
evidence may be entirely circumstantial and need
not exclude every reasonable hypothesis of
innocence; that is, the factfinder may decide among
reasonable interpretations of the evidence.
United States v. Batista-Polanco, 927 F.2d 14, 17 (1st Cir.
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1991) (citations omitted). We have examined the arguments
made by defendants in their motion papers together with
pertinent portions of the transcript. It would not serve any
useful purpose to recite the evidence at this time but,
without prejudice to the defendants' appeals on the merits,
we are unable to say at this preliminary stage that a
substantial issue is presented by defendants' claims that
they lacked knowledge of the misrepresentations or lacked
fraudulent intent.
Finally, defendants' further suggestion that the
elements of 18 U.S.C. 1341 were not established appears
equally insubstantial. "The government need not prove that
the defendant devised the fraudulent scheme; but it must
prove 'willful participation in the scheme with knowledge of
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its fraudulent nature and with intent that these illicit
objectives be achieved.'" United States v. Serrano, 870 F.2d
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1, 6 (1st Cir. 1989) (quoting United States v. Price, 623
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F.2d 587, 591 (9th Cir.), cert. denied, 449 U.S. 1016
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(1980)). Based on our own preliminary assessment, there is
adequate evidence that the defendants were willful
participants in the alleged fraudulent scheme.
2. Applicability of the Sentencing Guidelines
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Defendants next contend that the sentencing guidelines
should not apply to their offenses. Noting that the purchase
and sale agreement for Village Green was signed in October
1987, they argue that the alleged scheme to defraud
necessarily began prior to the effective date of the
guidelines (November 1, 1987). This argument overlooks the
fact that the scheme charged in the indictment is alleged to
have begun "sometime in March 1988" (shortly before the
closing on the sale). In any event, it is clear that the
guidelines apply to "straddle" offenses that commenced
before, but continued after, November 1, 1987. See, e.g.,
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United States v. Wallen, 953 F.2d 3, 5 n.6 (1st Cir. 1991)
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(per curiam); United States v. Fazio, 914 F.2d 950, 959 n.14
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(7th Cir. 1990) (collecting cases). We perceive no
substantial issue in this regard.
3. Application of the Sentencing Guidelines
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Finally, defendants raise two issues concerning the
application of the guidelines to their cases.3 First, they
challenge the district court's findings concerning their
roles in the offense. At sentencing, the court found that
both defendants were "organizers or leaders" of the alleged
scheme to defraud, and consequently increased their offense
levels by four levels under U.S.S.G. 3B1.1(a). At a second
hearing two days later, the court reconsidered this finding.
It took note of evidence that defendants approached the
project with "initial good faith," that they resorted to
fraud only after getting "trapped in a losing scheme," and
that the project "started off as an entrepreneurial matter
... and then turned into an extensive fraud." Accordingly,
the court found that defendants were not organizers or
leaders but rather "managers or supervisors," and thus were
subject to a three (rather than four) level increase under
3B1.1(b). Defendants challenge this finding, claiming that
they were entitled to a four-level reduction in their offense
level under 3B1.2(a) due to their "minimal" role in the
scheme. Such a seven-level swing, they observe, would
produce sentences of probation.
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3. In the district court, defendants also apparently argued
that (1) they were entitled to a two-level reduction for
acceptance of responsibility, and (2) they should not have
received a two-level increase for obstruction of justice.
Neither of these contentions has been pursued in the motions
before us.
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We see no substantial issue in this regard. The
district court's role-in-the-offense determination is
reviewed only for clear error. See, e.g., United States v.
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Panet-Collazo, 960 F.2d 256, 261 (1st Cir. 1992); United
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States v. Ocasio, 914 F.2d 330, 333 (1st Cir. 1990). Given
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that defendants were the owners of Village Green, with the
ultimate authority to direct the sales program, and based on
our preliminary review of the evidence, we think it unlikely
that the district court clearly erred in this regard. And
defendants' suggestion in particular that they were entitled
to a four-point downward adjustment as "minimal" participants
would seem to fly in the face of the record. Such an
adjustment "is intended to cover defendants who are plainly
among the least culpable of those involved in the conduct of
a group," U.S.S.G. 3B1.2, commentary (n.1), and is meant to
"be used infrequently," id. (n.2).
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Defendants' second argument in this regard relies on the
statutory directive that the guidelines should "reflect the
general appropriateness of imposing a sentence other than
imprisonment in cases in which the defendant is a first
offender who has not been convicted of a crime of violence or
an otherwise serious offense ...." 28 U.S.C. 994(j). They
contend that the offense levels enumerated in 2F1.1 for
crimes involving fraud and deceit contravene this mandate.
And they argue that, as a result, they were entitled to a
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downward departure and to sentences of probation. Yet their
description of the offenses here as not "serious" would seem
a dubious one. In any event, a discretionary decision not to
depart downward from the guidelines' sentencing range
ordinarily presents no appealable issue. See, e.g., United
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States v. Harotunian, 920 F.2d 1040, 1044 (1st Cir. 1990).
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Defendants have offered no reason why this jurisdictional bar
would not apply here. Accordingly, this issue would appear
less than substantial as well.
The motions of Robert Starck and Nathaniel Mendell for
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release on bail pending appeal are denied.
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Document Info
Docket Number： 92-1791
Filed Date： 9/4/1992
Precedential Status： Precedential
Modified Date： 9/21/2015