United States v. Guyon

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 92-2452

UNITED STATES,

Appellee,

v.

RICHARD GUYON,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. District Judge]

Before

Breyer,* Chief Judge,

Torruella and Boudin, Circuit Judges.

Stephen J. Weymouth on brief for appellant.

Kevin J. Cloherty, Assistant United States Attorney, and

Donald K. Stern, United States Attorney, on brief for appellee.

June 27, 1994

* Chief Judge Stephen Breyer heard oral argument in this matter
but did not participate in the drafting or the issuance of the
panel's opinion. The remaining two panelists therefore issue
this opinion pursuant to 28 U.S.C. 46(d).

TORRUELLA, Circuit Judge. On April 12, 1989, a federal

grand jury returned a one-count indictment charging Richard Guyon

with bank fraud in violation of 13 U.S.C. 1344. Following a

jury trial, Guyon was convicted in absentia. Guyon was

subsequently apprehended, placed in federal custody, and returned

to Massachusetts. The court then sentenced Guyon to 30 months

incarceration. Guyon now challenges his conviction and sentence

on several grounds. We find that none of these grounds warrant

reversal and thus affirm the district court.

BACKGROUND

A. Statement of Facts

The indictment alleged that from February 24, 1987 to

approximately August 14, 1988, Guyon willfully and knowingly

executed a scheme to defraud the Bank of Boston of $76,756.40.

The testimony and other evidence properly introduced at trial,

viewed in the light most favorable to the verdict, established

the following facts. See United States v. Rivera-Santiago, 872

F.2d 1073, 1078-79 (1st Cir.), cert. denied, 492 U.S. 910 (1989).

Guyon applied for a series of student loans from the

Bank of Boston, called Alliance loans, listing his own name as

the student applicant. In addition, Guyon applied for and

received Alliance loans in the name of 1) his father, Raymond

Guyon; 2) Mary Garber; and 3) Tonya Mayes. Guyon forged the

applications and signatures for these loans. The loan

applications also contained the forged certifications of a

purported University official.

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In addition to these Alliance loans, evidence was

introduced regarding other loan applications which Guyon

fraudulently filed. These other loans, however, were not the

subject of the indictment. This evidence included: 1)

applications for two Massachusetts Higher Education Loans through

the Bank of Boston in November 1988, which were not granted; 2) a

fraudulent application for a $20,000 Excel student loan filed in

September 1988; 3) fraudulent applications for two $15,000

"Consern" loans from the National Bank of Washington, one in

Guyon's own name and one in the name of Mary Garber, as well as

an application for a $25,000 "Consern" loan in the name of Tonya

Mayes; 4) a fraudulent application for a guaranteed student loan

for $7,500 through the First Security Bank of Idaho, which Guyon

did in fact receive.

B. The Proceedings in the District Court

Guyon was arraigned on June 29, 1989. On November 16,

1989, Guyon filed a motion to dismiss the indictment based on a

failure to comply with the Speedy Trial Act. At a hearing on

December 8, 1989, Guyon withdrew this motion because the

government stated it was going to dismiss the indictment. The

case was never dismissed. On February 1, 1991, the case was

reassigned to Judge Robert Keeton. Prior to reassignment, the

case was "inadvertently" closed by the U.S. District Court

Clerk's office, but was then reopened upon being reassigned to

Judge Keeton.

On February 1, 1991, the parties jointly filed a

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"Status Report and Motion for Continuance Under the Speedy Trial

Act," and this report informed the court that the case was still

pending because subsequent to the December 8, 1989 hearing, the

parties had learned that Guyon was the subject of a separate but

related criminal investigation by the U.S. Attorney's Office in

Virginia, and as a result the parties had then engaged in

negotiations to resolve potential charges in both districts. The

parties additionally requested a continuance from the court until

such a resolution had been achieved and asked that the court

designate all time from the date of indictment until resolution

of the negotiations as excludable delay.

On February 15, 1991, the court held a status

conference, at which it issued an order excluding all time from

the date of indictment through February 15 because of the

previous stay pending plea negotiations. Defense counsel did not

object.

On June 3, 1991, new counsel for Guyon, Mr. Evan

Slavitt, filed a motion to dismiss the indictment based on a

violation of the Speedy Trial Act. On June 13, 1991, the court

held a hearing with respect to this motion, and after the court

explained its excludable delay orders, denied the motion.

Trial commenced on June 17, 1991, and Guyon was

represented by a third counsel. On June 26, the fourth day of

trial, the court adjourned for the day while the government was

in the middle of its cross-examination of Guyon, who testified in

his own defense. On June 27, Guyon did not appear in court and

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the case was continued until the next day. On June 28, the court

held an evidentiary hearing regarding Guyon's continued absence.

Following this hearing, the court determined that Guyon's absence

was voluntary and the court ordered that the trial be completed

with Guyon in absentia. The court found:

[O]n the evidence before me I find it
overwhelming that Mr. Guyon has
voluntarily absented himself from this
trial, so in accordance with Rule
43(b)(1), I find that he is voluntarily
absent after the trial is commenced and I
will order that the proceedings continue
through the return of a verdict under
Rule 43 proceedings.

Defense counsel refused to waive redirect of Guyon, and moved for

a mistrial. The court denied the motion. The defense then

rested, and the trial was completed that day. The jury returned

a guilty verdict.

Law enforcement officials apprehended Guyon on July 15,

1991, in Wyoming, and returned him to Massachusetts. On December

10, 1991, the court sentenced Guyon to 30 months imprisonment.

Guyon now raises several issues on appeal.

GUYON'S MOTION TO DISMISS

Guyon claims that the district court violated his

statutory and due process rights by failing to rule on his motion

to dismiss based on a violation of the Speedy Trial Act. As a

basis for this argument, Guyon claims that he originally filed

the motion to dismiss on November 16, 1989, and that this motion

was never heard or decided by the court because the government

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requested, and the court granted, a dismissal of the case.1

Guyon claims that the case was then "reopened" fourteen months

later in February 1991, but the court failed to rule upon the

November 16, 1989 motion to dismiss.

The government contends that Guyon's argument is based

on an incorrect statement of the record below, and that the court

did address and resolve the Speedy Trial Act issue.

Guyon's contention that the district court deprived him

of his statutory and due process rights is unfounded. Guyon's

initial November 16, 1989 motion to dismiss was never expressly

ruled upon because he withdrew that motion from the court's

consideration, based on the government's representation that it

would dismiss the indictment. When the government did not

dismiss the indictment, Guyon's counsel filed a second motion to

dismiss, which reargued some of Guyon's original Speedy Trial Act

contentions. Glaringly absent from Guyon's brief is any

reference to this second "Motion to Dismiss for Violation of the

1 Guyon makes much of the fact that at the December 8, 1989
hearing, the government stated that it would dismiss the
indictment, and Guyon concludes that the case must have therefore
been dismissed. Guyon's reading of the record is incorrect.
While the government indicated orally in the December 8, 1991
hearing that it would dismiss the indictment, the court then
stated that it would entertain a dismissal if the government
filed it in writing. The government never did file a written
dismissal because it subsequently learned that the U.S.
Attorney's Office in the Eastern District of Virginia was
investigating similar charges against Guyon. The parties then
attempted to negotiate a resolution of all charges against Guyon
before any dismissal was filed in the District of Massachusetts
or any other action was taken. The indictment was therefore
never dismissed. Confusion regarding the record may stem from
the fact that the Clerk's office inadvertently closed its file in
this case and thereafter clerically "reopened" the case.

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Speedy Trial Act (18 U.S.C. 3161 et. seq.)" which Attorney

Slavitt filed on June 3, 1991. On June 13, 1991, the court held

a hearing with respect to this motion. At this hearing, the

court reminded Guyon that the court had entered an order

excluding all time from the indictment until February 15 based on

the stay pending plea negotiations, and that Guyon did not object

to this order.2 The court then appropriately denied the motion.

We are at a complete loss to understand how Guyon can argue that,

based on the particular travels of this case, he was somehow

denied his statutory or due process rights.

PROCEEDING WITH THE TRIAL WITH GUYON IN ABSENTIA

A criminal defendant has a constitutional right to be

present at his trial. This right is rooted in the due process

clause and the confrontation clause of the Constitution. United

States v. Latham, 874 F.2d 852, 857 (1st Cir. 1989). The United

States Supreme Court has held, however, that during the course of

a trial, if a defendant voluntarily absents himself from the

proceedings, it "operates as a waiver of his right to be present

and leaves the court free to proceed with the trial in like

manner and with like effect as if he were present." Latham, 874

F.2d at 857 (quoting D az v. United States, 223 U.S. 442, 455

2 Guyon does not challenge the court's order excluding this time
on appeal, nor could he because Guyon's counsel failed to take
exception to the entry of the court's order in the district court
and he has therefore waived his right to object. See United

States v. Brown, 736 F.2d 807, 808 n.1 (1st Cir. 1984) (stating

that the government's failure to object to court's order of
excludable delay resulted in binding the government to the
district court's unchallenged computation), appeal after remand,

770 F.2d 241 (1st Cir. 1985), cert. denied, 474 U.S. 1064 (1986).

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(1912)); United States v. Lochan, 674 F.2d 960, 967 (1st Cir.

1982). Fed. R. Crim. P. 43(b) also permits a court to continue

with a trial if a defendant, who is initially present,

voluntarily absents himself after the trial has commenced.3

When a court is faced with the issue of whether or not

to proceed with a trial, the court must first determine whether

the defendant is, in fact, "voluntarily" absent from the

proceedings. Lochan, 674 F.2d at 967; Latham, 874 F.2d at 857.

If so, the court must next analyze a "complex of issues," which

include: the ability to apprehend the defendant; the difficulty

of rescheduling the trial until the defendant is present; and the

burden on the government in holding two trials. Latham, 874 F.2d

at 857-58. The court should only allow the trial to proceed if

the interest of the public in proceeding with the trial clearly

outweighs the interest of the absent defendant. Id. at 857. We

review a district court's decision to proceed with trial for an

abuse of discretion. See Latham, 874 F.2d at 857; Lochan, 674

F.2d at 968.

3 Fed. R. Crim. P. 43(b) provides in pertinent part:

The further progress of the trial to and
including the return of the verdict shall
not be prevented and the defendant shall
be considered to have waived the right to
be present whenever a defendant,
initially present,

1) is voluntarily absent after the trial
has commenced (whether or not the
defendant has been informed by the court
of the obligation to remain during the
trial), . . .

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Guyon contends that the district court abused its

discretion by proceeding with the trial after Guyon had

"voluntarily absented" himself from the trial proceedings. Guyon

apparently does not take issue with the court's finding that

Guyon's absence from the proceedings was voluntary.4 Rather,

Guyon contends that the court committed reversible error by

failing to inquire into the "complex of issues" to determine if

the trial should proceed.

The government concedes that the court did not

explicitly articulate its findings or reasoning with respect to

this second inquiry, but argues that the facts clearly support

the court's decision to proceed with the trial under this

analysis.

Despite the absence of an express finding by the

district court with respect to the "complex of issues" inquiry,

the facts support the court's decision to proceed with trial.

See, e.g., United States v. Muzevsky, 760 F.2d 83, 85 (4th Cir.

1985). The public's interest in proceeding with trial clearly

outweighed Guyon's interest in delaying the proceedings. First,

there appeared to be little possibility that the trial could soon

take place with Guyon present. The evidence that Guyon was

voluntarily absent was, as the district court noted,

4 A trial court's finding pursuant to Fed. R. Crim. P. 43(b)
that a defendant has voluntarily absented himself from trial
should be upheld unless clearly erroneous. Lochan, 674 F.2d at

967. There is ample evidence in the record to support the
court's finding that after the fourth day of trial, Guyon checked
out of his hotel room and fled.

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"overwhelming." The record indicates that after the court

postponed the trial for one day in order to locate Guyon, an FBI

agent testified that Guyon had checked out of the hotel where he

had been staying on June 27, 1991. Moreover, the FBI had

conducted a thorough, yet unsuccessful, search to find Guyon, and

there was no indication that government agents would soon

apprehend him.

There also would have been a heavy burden on the

government to retry this case. Guyon fled at the end of a five

day trial. The government had rested, after presenting 18

witnesses, a number of whom were from out of state. Guyon made a

number of admissions on direct examination, and then fled in the

middle of his own cross-examination. For example, Guyon admitted

forging school certifications. He also admitted that he obtained

multiple loans in the name of other individuals. To retry the

case, the government would be required to remarshall its

resources and repeat its entire presentation.

Guyon's interest in delaying the trial did not outweigh

the public's interest in having the case proceed to verdict.

Guyon fled at the eleventh hour, in an apparent attempt to

manipulate the trial process in the exact manner that Fed. R.

Crim. P. 43(b) is designed to prevent. See Crosby v. United

States, 113 S. Ct. 748, 751 (1993) (Fed. R. Crim. P. 43(b) is

designed to preclude a defendant from manipulating the

proceedings against him by voluntarily absenting himself from

trial, thus thwarting a trial that has already begun). Guyon

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argues that the court's decision to proceed unfairly prejudiced

him because his testimony on redirect examination could have been

"particularly significant" to his defense. Guyon fails, however,

to shore up this speculation and state what testimony would have

been elicited on redirect which would have aided his defense and

would have explained, rebutted or otherwise counterbalanced the

damaging admissions he made during the course of his own direct

examination. Based on these facts, we do not believe that the

court abused its discretion by proceeding with the trial, and any

error the court made in failing to make explicit findings with

respect to the "complex of issues" analysis was harmless.

FEDERAL RULE OF EVIDENCE 404(b) - OTHER CRIMES EVIDENCE

Guyon argues that the district court abused its

discretion by admitting evidence of applications for loans which

were not charged in the indictment, as evidence of other acts and

crimes pursuant to Fed. R. Evid. 404(b). Guyon contends that the

court failed to engage in the appropriate two prong analysis

under Fed. R. Evid. 404(b) when it admitted the evidence. Guyon

further argues that the evidence was unduly prejudicial, and

therefore, the court's decision to admit it was an abuse of

discretion. Guyon also claims that the court abused its

discretion by admitting evidence of his credit history.

The government argues that Guyon's contentions ignore

the record below, and that the challenged evidence was admissible

pursuant to Fed. R. Evid. 404(b).

Evidence is admissible under Fed. R. Evid. 404(b) when

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it satisfies a two step analysis by the district court.5 First,

the court must determine if the evidence is being offered to show

something other than that the defendant acted in conformity with

a "bad" character. United States v. Rivera-Medina, 845 F.2d 12,

15 (1st Cir.), cert. denied, 488 U.S. 862 (1988); United States

v. Gonz lez-S nchez, 825 F.2d 572, 579-80 (1st Cir.), cert.

denied, 484 U.S. 989 (1987). The court must find that the

"evidence has some 'special' probative value showing intent,

preparation, knowledge or absence of mistake." United States v.

Garc a, 983 F.2d 1160, 1172 (1st Cir. 1993) (citations omitted);

Rivera-Medina, 845 F.2d at 15; Gonz lez-S nchez, 825 F.2d at 579.

Second, the court must balance the probative value of the

evidence against the danger of undue prejudice to the defendant,

which may arise from admitting the evidence. Garc a, 983 F.2d at

1172; Rivera-Medina, 845 F.2d at 15-16; Gonz lez-S nchez, 825

F.2d at 580. The decision to admit Fed. R. Evid. 404(b) evidence

is committed to the sound discretion of the district court, and

we will only disturb such a ruling on appeal if the court abused

its discretion. Garc a, 983 F.2d at 1172.

Pursuant to Fed. R. Evid. 404(b), the government

introduced evidence at trial of Guyon's applications for the

5 Fed. R. Evid. 404(b) provides in pertinent part:

Evidence of other crimes, wrongs, or acts
is not admissible to prove the character
of a person in order to show action in
conformity therewith. It may, however,
be admissible for other purposes, such as
proof of motive, opportunity, intent,
preparation, plan, knowledge . . .

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Massachusetts Higher Education Loans, the Excel loan, the

"Consern" loans, and the First Security Bank of Idaho student

loans. As a preliminary matter, the record belies Guyon's

contention that the district court applied an incorrect legal

standard by failing to engage in the second step of the Rule

404(b) analysis, which requires that the court balance the

probative value of the evidence against its prejudicial impact.

When the court addressed the admissibility of the uncharged loan

evidence generally at a hearing before trial, the court stated

that it would "address 404(b) problems with a twofold analysis,"

making it clear that the court was cognizant of the appropriate

mode of evaluation. Moreover, on one occasion when specific

uncharged loan evidence was offered during the course of the

trial and then objected to by defense counsel, the court

indicated that the probative value of the evidence outweighed any

prejudice.

The court did not abuse its discretion by admitting the

uncharged loan evidence. First, the evidence had "special"

relevance in that it was probative of Guyon's intent when he

applied for the various loans. Intent was a disputed issue that

was central to this case. During trial, Guyon's counsel

repeatedly argued that Guyon did not intend to defraud anyone.

To counter this defense and prove its allegations, the government

proffered evidence of the uncharged loans to establish intent and

modus operandi. There was a striking similarity between the

evidence of charged and uncharged loans, and this evidence helped

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show that Guyon was engaged in a widespread scheme to

fraudulently apply for a number of loans, using the same pattern

of activity in each instance, in order to defraud various banks.

For example, Guyon forged the name of "Tonya Mayes" and "Mary

Garber" on both charged and uncharged loan applications. This

evidence was therefore precisely the type of evidence that Fed.

R.Evid. 404(b)permits inorder tohelp proveGuyon's planand intent.

With respect to the second step in the Rule 404(b)

analysis, Guyon argues that this evidence was unfairly

prejudicial to him, and he argues that the jury was likely to

have attributed much significance to this uncharged loan

evidence. We agree that this evidence, like most evidence

offered against a defendant, is prejudicial. That is not,

however, the issue. Rather, the question is whether the

probative value of the evidence was substantially outweighed by

the danger of unfair prejudice. Garc a, 983 F.2d at 1173;

Gonz lez-S nchez, 825 F.2d at 581.

The district court concluded that the probative value

of the evidence outweighed the possibility of unfair

consideration by the jury. We believe that the record supports

the court's conclusion, and that the court's instructions to the

jury regarding the limited purpose of this evidence, to show

intent, cushioned the impact and reduced any possible prejudice.

We will therefore not disturb the ruling.

Guyon next argues that the court abused its discretion

in admitting evidence of the two uncharged Massachusetts Higher

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Education loans that Guyon applied for through the Bank of

Boston, which included credit reports compiled by the bank.

Guyon's counsel objected to the admission of these credit

reports, arguing that adverse credit information in the reports

was unfairly prejudicial. Counsel additionally requested that

the credit histories be redacted. The court overruled the

objection, but gave a limiting instruction that the only purpose

of the evidence was to help understand what information the bank

had when it decided whether or not to make the loan.

With respect to the Rule 404(b) two prong analysis, we

agree that the evidence was relevant as to how the Bank of Boston

made its loan decisions, and the evidence was not admitted to

show that Guyon had a bad character. Second, the probative value

of this evidence was not outweighed by any unfair prejudice.

Credit histories are fairly routine evidence, and are not the

type of evidence that typically elicits an irrational reaction

from the jury. Moreover, Guyon has not pointed to anything

specific in his credit history that was particularly prejudicial.

Consequently, Guyon has not shown that the court abused its

discretion in admitting the evidence. We therefore uphold the

district court's ruling.

CALCULATING LOSS UNDER THE SENTENCING GUIDELINES

At sentencing, the court determined that the

appropriate guideline to be applied in this case was the 1988

version of U.S.S.G. 2F1.1, for crimes involving fraud and

deceit. The court found that the loss involved in this case,

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including consummated and unconsummated loans, exceeded $200,001

and was less than $500,000, and therefore pursuant to U.S.S.G.

2F1.1(b)(1)(H), the base offense level of six was to be increased

seven levels. Guyon objected to the court's calculation and

argued that the court should not include unconsummated loans in

the loss calculation. Accordingly, Guyon argued that the correct

figure was $200,000 or less, thus yielding an increase of only

six levels. The court then made the following findings:

[W]hen I look at the offense
characteristics and take account of what
the other victims of the offenses that
were part of this pattern, excluding the
Virginia offenses, have suffered, it's
pretty clear it gets above two hundred
thousand.

In deciding to include the unconsummated loans, the court found

as a factual matter that Guyon intended to defraud the banks of

the amount of the loan applications and refused to discount this

amount by assuming that had Guyon actually obtained the loan, he

would have used the proceeds to pay off other loans. The court

stated:

I am very clear that at least the
guidelines authorize me in the exercise
of discretion to take those into account
and when I do we're way above the
$200,001 floor.

On appeal, Guyon now raises the issue of the meaning of

"loss" in the sentencing guidelines covering fraud. Guyon

seemingly argues that the court committed an error of law by

measuring loss by the amount that Guyon intended to obtain

fraudulently from the various banks. Guyon maintains that

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instead the correct legal basis for increasing the sentence was

the actual loss resulting from his criminal conduct.

The court did not commit any error in calculating loss

on the basis of intended loss. U.S.S.G. 2F1.1 applies to

crimes involving fraud and deceit, and the offense level

increases commensurately with the magnitude of the loss.

U.S.S.G. 2F1.1(b)(1)(H) (1988) mandates an increase of seven

levels to the base offense level when the "loss" is between

$200,001 and $500,000. Application Note 7 of the Commentary to

this Guideline deals with the valuation of loss. The 1988

version of Application Note 7 provided in pertinent part:

In keeping with the Commission's policy
on attempts, if a probable or intended
loss that the defendant was attempting to
inflict can be determined, that figure
would be used if it was larger than the
actual loss . . .

U.S.S.G. 2F1.1, comment (n.7) (1988). The court therefore

correctly applied the law and acted well within its discretion

when it calculated loss on the basis of intended loss instead of

actual loss, and found that the unconsummated loans Guyon applied

for should have been included in the intended loss figure.6

6 On appeal, Guyon seemingly does not challenge the court's
factual finding with respect to the unconsummated loans, that
Guyon intended to cause the banks loss in the amount that he
requested in the loan applications, and the court's refusal to
accept Guyon's contention that he would have used the loan
proceeds to pay off other loans. Even assuming that Guyon did
make such a challenge, the court's factual finding would not be
disturbed unless it was clearly erroneous. 18 U.S.C. 3742(e);
United States v. Ruiz, 905 F.2d 499, 507 (1st Cir. 1990). There

is evidence in the record which supports this finding and we do
not believe that it is clearly erroneous.

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For the foregoing reasons, we affirm Guyon's conviction

and sentence.

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