[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
No. 96-1391
UNITED STATES OF AMERICA,
Appellee,
v.
GREGORY W. FONTAINE, JR.,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Frank H. Freedman, Senior U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lynch, Circuit Judge.
Robert J. Danie, with whom Bonavita, Gordon, Danie & Walsh,
P.C. was on brief, for appellant.
Steven M. Goldsobel, Attorney, Tax Division, U.S. Dept. of
Justice, with whom Loretta C. Argrett, Assistant Attorney
General, Robert E. Lindsay and Alan Hechtkopf, Attorneys, Tax
Division, and Donald K. Stern, United States Attorney, were on
brief, for the United States.
January 31, 1997
SELYA, Circuit Judge. In this sentencing appeal,
SELYA, Circuit Judge.
defendant-appellant Gregory W. Fontaine, Jr. challenges both the
manner in which the district court conducted the disposition
hearing in his case and the computations that the court essayed
in establishing the applicable guideline sentencing range (GSR).
Discerning no error, we affirm.
I.
I.
Background
Background
Because the appellant's conviction resulted from a
guilty plea, we draw the facts from the plea colloquy, the
Presentence Investigation Report (PSI Report), and the transcript
of the sentencing hearing. See United States v. Garcia, 954 F.2d
12, 14 (1st Cir. 1992); United States v. Dietz, 950 F.2d 50, 51
(1st Cir. 1991).
While incarcerated at the Hampshire County Jail,
Northampton, Massachusetts, Fontaine led a group of inmates in
submitting false income tax returns to the Internal Revenue
Service (IRS) in order to secure refunds not actually due. After
the authorities uncovered the scheme, Fontaine pled guilty to one
count of aiding in the filing of a false refund claim. He was
being held at the North Central Correctional Institute (NCCI),
Gardner, Massachusetts, awaiting the imposition of sentence on
this charge, when a further epidemic of false claims erupted.
According to the government, Fontaine put together a
new ring at NCCI and assisted in the filing of at least eight
fraudulent refund claims from October 12, 1993 to April 15, 1994.
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The government charged that Fontaine recruited fellow inmates and
helped them complete apocryphal IRS-1040s, using bogus W-2 forms.
When the government became cognizant of what had transpired, it
lodged an eight-count information in the United States District
Court for the District of Massachusetts. Each count charged the
appellant with aiding and abetting the making of a separate false
claim against the Treasury. See 18 U.S.C. 2, 287. Pursuant
to a non-binding plea agreement, Fontaine pled guilty to one
count of the information. The other counts eventually were
dismissed.
When the probation officer distributed the PSI Report,
Fontaine objected to two of its conclusions (involving the degree
of planning that the enterprise required and his role in it). He
also requested an evidentiary hearing at which the prosecutors
would be "compelled to produce witnesses to establish the basis
for their allegation[s]". The district court afforded Fontaine
an evidentiary hearing on March 18, 1996, but the court did not
force the government to proffer any particular witnesses. At the
hearing, Fontaine asked that the court order the government to
summon the eight other inmates who allegedly participated in the
scheme so that he could cross-examine them. The district court
refused to issue such an order. However, the government called
the agent who investigated the matter, and Fontaine's counsel
vigorously cross-examined him.
Following the hearing the district court imposed a
forty-one month incarcerative sentence. This appeal ensued. In
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it, Fontaine challenges his sentence on three grounds, namely,
(1) the district court's handling of his request for an
evidentiary hearing, (2) the court's enlargement of the GSR based
on a determination that his criminal activity involved more than
minimal planning, and (3) the court's enlargement of the GSR
predicated on his supposed role as an organizer or leader of a
criminal enterprise. We treat the first assignment of error
separately and then group the latter two.
II.
II.
The Evidentiary Hearing
The Evidentiary Hearing
Fontaine berates what he characterizes as the district
court's "refusal to allow the defendant to confront the witnesses
against him, and to test the accuracy of their allegations
through cross-examination." This boils down to a claim that the
district court should have ordered the government to call the
eight persons alleged to have participated in the tax fraud
scheme (all of whom were state prison inmates) so that he could
explore alleged inconsistencies in their statements through
cross-examination.
Neither the Confrontation Clause nor the rules of
evidence apply during the sentencing phase of a criminal
proceeding, see United States v. Tardiff, 969 F.2d 1283, 1287
(1st Cir. 1992), and evidentiary hearings at sentencing are the
exception rather than the rule. The decision to hold an
evidentiary hearing at the time of sentencing or, alternatively,
to eschew such a hearing, lies within the discretion of the
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sentencing court. See United States v. Lilly, 983 F.2d 300, 310-
11 (1st Cir. 1992); Tardiff, 969 F.2d at 1286; Garcia, 954 F.2d
at 19. By the same token, if the court deigns to grant a
hearing, the shape and form of the proceeding lie within the
encincture of this discretion. See Lilly, 983 F.2d at 311
(finding no abuse of discretion when the defendant "received a
hearing, albeit not precisely the kind of hearing that he
preferred").
We see nothing remotely resembling an abuse of
discretion in this instance. For one thing, the inmates in
question were in the custody of the state, not the federal
government, and there is no evidence that the appellant made any
effort to subpoena them. For another thing, the appellant never
tendered a meaningful offer of proof, prior to the actual
hearing, in an effort to demonstrate why he needed the live
testimony of the eight prospective witnesses. Given these
procedural infirmities, it is difficult to fault the district
court for not being more receptive to Fontaine's entreaty.
Leaving procedural weaknesses aside, Fontaine's
assignment of error lacks substance. At the disposition hearing,
the government called Anthony Sibilia, an IRS agent who had taken
statements from the eight inmates allegedly involved in the
scheme. Agent Sibilia testified in excruciating detail as to the
results of his investigation. The appellant's counsel cross-
examined him at length, pointing out possible inconsistencies
between the statements of various witnesses and variations
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between the proof presented and the government's theory of the
case. While Fontaine calumnizes Sibilia's testimony as "unsworn,
untested hearsay," it is settled beyond peradventure that hearsay
evidence is admissible at sentencing. See Tardiff, 969 F.2d at
1287. The baseline criterion is trustworthiness: at sentencing,
the trial court "may consider relevant information without regard
to its admissibility under the rules of evidence applicable at
trial, provided that the information has sufficient indicia of
reliability to support its probable accuracy." Id. (quoting
U.S.S.G. 6A1.3(a)).
Here, the sentencing court did not deviate from this
baseline. Sibilia's testimony was premised on his own
investigation, supported by reports that he had compiled and
witness statements that he had obtained. The court afforded the
appellant access to the underlying documents and a full
opportunity to cross-examine the witness. In the course of this
cross-examination, the appellant's counsel pointed out not only
inconsistencies between witnesses' statements but also
inconsistencies between the modus operandi attributed to Fontaine
and the returns actually filed by the eight inmates. In
addition, the court permitted the appellant to explore what
interest the inmates may have had either in pleasing the
prosecution or in falsely implicating Fontaine. To this extent,
then, Sibilia's testimony, though based on hearsay, was
thoroughly tested.
Moreover, the testimony had sufficient indicia of
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reliability to pass muster. The reliability of hearsay
statements used at sentencing sometimes can be demonstrated by
reference to other evidence in the case. See, e.g., United
States v. Phaneuf, 91 F.3d 255, 261-62 (1st Cir. 1996). So it is
here. For instance, in the plea agreement Fontaine stipulated
that the fraud loss exceeded $10,000, a figure strongly
suggesting that he considered himself responsible for all eight
of the false claims described in the information. Then, too, the
court heard evidence of striking similarities in the various
filings similarities that would suggest a common plan to all
but the most fervent worshipper of coincidence. The court also
had at hand evidence of incriminating statements made by Fontaine
in letters to a friend, Christine Pond. These, and other, items
bolstered Sibilia's testimony and tended to confirm its
reliability. Against this backdrop, we can detect no abuse of
discretion in the sentencing court's denial of Fontaine's demand
that the government be ordered to produce the eight inmates for
cross-questioning.
III.
III.
Calculating the GSR
Calculating the GSR
The district court found that the appellant's offense
involved more than minimal planning and therefore raised the base
offense level (BOL) by two levels. See U.S.S.G. 2F1.1(b)(2).1
1All references to the sentencing guidelines are to the
November 1995 edition, in effect on the date of sentencing. See
United States v. Harotunian, 920 F.2d 1040, 1042 & n.2 (1st Cir.
1990).
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The district court further found that the appellant had organized
an extensive criminal activity and enhanced the BOL by four more
levels on that account. See U.S.S.G. 3B1.1(a). The appellant
challenges both findings. We review for clear error. See United
States v. St. Cyr, 977 F.2d 698, 701 (1st Cir. 1992); Dietz, 950
F.2d at 52. Under that test, "where there is more than one
plausible view of the circumstances, the sentencing court's
choice among supportable alternatives cannot be clearly
erroneous." United States v. Ruiz, 905 F.2d 499, 508 (1st Cir.
1990).
A.
A.
More than Minimal Planning
More than Minimal Planning
At sentencing, the district court found that the
appellant aided in the preparation of all eight ersatz tax
returns and that these "repeated acts," carried out over an
extended period of time (approximately six months), involved
appreciable planning and forethought. The appellant questions
the reliability of the evidence underpinning this finding and
further asserts that, even if the evidence can be deemed
reliable, it does not prove more than minimal planning.
Under the sentencing guidelines, an enhancement for
more than minimal planning is appropriate when a defendant's
course of relevant criminal conduct includes "repeated acts over
a period of time, unless it is clear that each instance was
purely opportune." U.S.S.G. 1B1.1, comment. (n.1(f)). The
government has the burden of proving the applicability of
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U.S.S.G. 2F1.1(b)(2) in any given case. See United States v.
Sklar, 920 F.2d 107, 112 (1st Cir. 1990) (explaining that "the
government must prove facts central to increasing a defendant's
offense level").
We will not tarry. As the foregoing review of the
record indicates, the lower court had before it ample evidence of
adequate trustworthiness, including the PSI Report, Agent
Sibilia's testimony, the striking similarities among the eight
false claims, and the details of the earlier scheme at the
Hampshire County Jail, to justify a finding that Fontaine engaged
in a studied course of conduct that required (and received) more
than minimal planning. Given this evidence and given the serial
preparation and filing of multiple tax returns and refund claims,
there was no error in the imposition of the upward adjustment.
See Tardiff, 969 F.2d at 1288-89 (finding that a defendant's
"carefully orchestrated series of mailings designed to create a
false impression" satisfied the criteria for the planning
adjustment); United States v. Gregorio, 956 F.2d 341, 343-44 (1st
Cir. 1992) (holding "repeated preparation and submission of false
statements" sufficient to warrant the enhancement); see generally
United States v. Fox, 889 F.2d 357, 361 (1st Cir. 1989) ("We
cannot conceive of how obtaining even one fraudulent loan would
not require more than minimal planning.").
B.
B.
Role in the Offense
Role in the Offense
At sentencing, the district court found that Fontaine
9
"organized the [criminal] scheme," that he "had decision making
authority over his accomplices," and that the scheme "involved
five or more participants." The appellant challenges these
imbricated findings and the four-level upward adjustment that
they produced. Under the sentencing guidelines, a four-level
enhancement for a defendant's role in the offense obtains if the
government shows that the defendant "was an organizer or leader
of a criminal activity that involved five or more participants or
was otherwise extensive." U.S.S.G. 3B1.1(a); see also United
States v. Rostoff, 53 F.3d 398, 412-14 (1st Cir. 1995); Dietz,
950 F.2d at 52-54. As with other upward adjustments to the GSR,
the government has the burden of proving the applicability of
U.S.S.G. 3B1.1(a) in a particular case. See United States v.
Morillo, 8 F.3d 864, 872 (1st Cir. 1993).
The government carried its burden here. A fair-minded
factfinder, drawing reasonable inferences, could conclude as,
indeed, Judge Freedman did that the eight false claims were
part of an integrated course of conduct, and that Fontaine (who
had orchestrated a similar plot at an earlier time) was the
mastermind of it. We have observed before that battles over a
defendant's role in the offense will most frequently be won or
lost in the district court, see United States v. Graciani, 61
F.3d 70, 75 (1st Cir. 1995), and that observation holds true in
this case.
We need go no further. Since the court's determination
that Fontaine organized and led a tax fraud scheme involving five
10
or more participants is solidly rooted in the record, we reject
the appellant's claim of error. See United States v. Tejada-
Beltran, 50 F.3d 105, 110-13 (1st Cir. 1995); Dietz, 950 F.2d at
52-54.
Affirmed.
Affirmed.
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