United States v. Whitney ( 1993 )

January 12, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-1038
UNITED STATES,
Appellee,
v.
ELLERTON P. WHITNEY, III,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Shane Devine, U.S. District Judge]
Before
Breyer, Chief Judge,
Aldrich, Senior Circuit Judge,
and Selya, Circuit Judge.
William A. Hahn, by Appointment of the Court, with whom Hahn &
Matkov was on brief for appellant.
Jeffrey S. Cahill, Special Assistant United States Attorney, with
whom Jeffrey R. Howard, United States Attorney, was on brief for
appellee.
Per Curiam. A jury convicted the appellant,
Ellerton Whitney, of four separate counts of defrauding a
bank, 18 U.S.C. 1344, and eight further separate counts of
making false statements on bank loan applications, 18 U.S.C.
1014. The court sentenced Whitney to serve three years
imprisonment. Whitney appeals both his conviction and his
sentence.
Whitney's basic claim, in respect to his
conviction, is that the government should not have charged
him with so many different counts, arising out of what were,
in essence, no more than three instances of related
activities -- activities consisting of (1) a series of false
statements that he made on applications for three separate
bank loans from different banks, and (2) the misuse of the
proceeds of one of these loans in violation of the
applicable loan agreement. See Blockburger v. United
States, 284 U.S. 299, 304 (1932) (double jeopardy violation
unless each offense charged requires proof of fact the other
does not require).
We cannot consider Whitney's multiplicity claims,
however, for he did not raise them before trial. Unless a
defendant raises these kinds of objection to the indictment
prior to trial (while time remains for the government to
rewrite the indictment to cure any such error), he waives
the objection. United States v. Faulhaber, 929 F.2d 16, 19
(1st Cir. 1991), citing United States v. Rodriguez, 858 F.2d
809, 816-17 (1st Cir. 1988).
There are no special circumstances here that would
warrant departing from this "waiver" rule. To the contrary,
holding Whitney to his waiver does not prejudice him
significantly. Whitney says that, in respect to each of his
three efforts to obtain money from a bank, the indictment
should have charged him, at most, with either a single
1014 count or a single 1344 count. Had the indictment
done so, however, his eventual sentence would not have
changed. The Sentencing Guidelines, in essence, treat
counts that cover closely related conduct as if they were a
single count. See U.S.S.G. 3D1.2 (closely related counts
grouped together if part of single transaction). And, the
maximum terms contained in the statutes here at issue would
have permitted a three-year sentence were Whitney correct in
his claims of count multiplicity. See 18 U.S.C. 1344
(thirty-year maximum); 18 U.S.C. 1014 (same).
Whitney also claims that the court committed
several errors at trial. He believes that the prosecutor
made improper comments in his opening and closing
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statements; that a prosecution witness improperly gave an
opinion about a legal conclusion (about what constitutes
"fraud"); that the court improperly failed to give an
instruction about "specific intent" on the "false statement"
counts; that the court, not the jury, should have decided
whether the false statements were "material;" and that the
evidence showed different fraudulent loans than those
charged in the indictment. We cannot consider any of these
claims, however, for Whitney did not raise proper objections
at the time. He concedes that we can review these claimed
"errors" only to see if they are "plain" enough to have
required the judge to take corrective action despite the
failure of any party to call the problem to his attention at
the time. That is to say, we must ask whether or not they
amount to errors which constitute "manifest injustice."
See United States v. Santiago, 729 F.2d 38, 39 (1st Cir.
1984); United States v. Griffin, 818 F.2d 97, 100 (1st
Cir.), cert. denied, 484 U.S. 844 (1987) (plain errors are
"so shocking that they seriously affect the fundamental
fairness and basic integrity of the proceedings conducted").
After reviewing the record with this standard in mind, we
can find no such injustice.
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Finally, Whitney argues that his sentence is
unlawful. He makes several claims, one of which the
Government concedes. The district court applied the "fraud
loss" guideline in effect in 1991, the time of the
sentencing hearing. Because of an amendment which became
effective November 1, 1989, the 1991 version of this
Guideline, U.S.S.G. 2F1.1(b), is more severe than the same
Guideline as it existed in March 1989, when Whitney
committed the crime. Hence, the court should have applied
the earlier, more lenient, Guideline. See United States v.
Harotunian, 920 F.2d 1040, 1041 (1st Cir. 1990). We must
therefore vacate Whitney's sentence and remand for re-
sentencing. Given the need for the new sentencing hearing,
we shall not consider Whitney's other sentence-related
claims. Rather, the district court shall sentence Whitney
afresh, permitting both him and the Government to make all
sentence-related claims and arguments de novo.
The judgment of conviction is
Affirmed.
The sentence is vacated and the case remanded for
a new sentencing proceeding.
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