United States v. Cacho Bonilla

United States Court of Appeals
For the First Circuit

No. 02-1393

UNITED STATES OF AMERICA,

Appellee,

v.

FLOR DE MARÍA CACHO-BONILLA,

Defendant, Appellant.

No. 02-1394

UNITED STATES OF AMERICA,

Appellee,

v.

WALDEMAR PÉREZ-QUINTANA,

Defendant, Appellant.
____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Daniel R. Domínguez, U.S. District Judge]

Before

Boudin, Chief Judge,

Torruella, Circuit Judge,

and Fusté,* District Judge.

*
Of the District of Puerto Rico, sitting by designation.
 Rafael Castro-Lang, with whom Jorge L. Arroyo-Alejandro was on
consolidated brief for appellant Waldemar Pérez-Quintana.
Jorge L. Arroyo-Alejandro, by appointment of the court, with
whom Rafael Castro-Lang was on consolidated brief for appellant
Flor De María Cacho-Bonilla.
Nina Goodman, Appellate Section, Criminal Division, Department
of Justice, with whom H.S. García, United States Attorney, was on
brief for appellee.

April 14, 2005
 BOUDIN, Chief Judge. The defendants-appellants--Flor de

Maria Cacho Bonilla ("Cacho") and Waldemar Perez Quintana

("Perez")--were convicted by a jury of offenses relating to the

misuse of program funds provided by the federal government. The

background events and transactions are complex but we will set the

stage with a brief version, reserving details for the discussion of

specific claims of error.

Acción Social de Puerto Rico, Inc. ("ASPRI") was a non-

profit corporation providing services in Puerto Rico to the

elderly, homeless persons and needy children. Cacho was ASPRI's

executive director and Perez the associate director. Between 1988

and 1997, ASPRI received $60 million in federal funds under two

federal programs; in each program, the Department of Health and

Human Services distributed the funds to a Puerto Rico government

agency which in turn distributed them to ASPRI as a subgrantee.

In 1988, without the approval of ASPRI's board of

directors, Cacho and Perez formed the Center for Education and

Community Services, Inc. ("the Center") as a non-profit charitable

organization, naming themselves and a third ASPRI manager as the

directors of the new charity. Also without the approval of ASPRI's

board, defendants then undertook a set of transactions whereby

ASPRI funds were employed to generate funds for the Center. In the

period 1990-1991:

• Cacho created well-funded checking accounts
for ASPRI, directing that the interest

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 generated be deposited in Center bank
accounts.

• Cacho transferred over $400,000 from an
ASPRI bank account to a Center bank account.

• Cacho purchased certificates of deposit in
ASPRI's name and with its funds and then used
at least one of the CDs as collateral for
lines of credit for the Center.

• Cacho obtained loans for the Center,
representing in at least one of the
applications that the Center received a
substantial amount of monthly interest from
ASPRI funds.

In addition to the bank-related transactions, Cacho and

Perez directed ASPRI employees to buy food and medical equipment

through the Center instead of buying directly from distributors as

ASPRI had previously done; later, the purchases were made though

the Center "doing business as" fictitious entities. The purchases

had markups of 20 to 30 percent, and payments from ASPRI were

deposited in the Center's bank account. Yet ASPRI employees did

most of Center's work in purchasing and reselling supplies.

At the defendants' direction, the Center bought a number

of properties (including one bought from Perez' brother), other

assets and a recycling business named Corpurimetal. Perez' son was

hired by the Center to pick up food that suppliers had previously

delivered for free or for less than Perez' son was paid. Credit

cards or checks of ASPRI and the Center were used to pay personal

expenses of Cacho and Perez, supplying money for items such as a

cruise, personal clothing and restaurant bills.

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 In July 1997, Cacho and Perez were indicted and, after a

four-month trial from April to August 2000, both defendants were

convicted of conspiracy to commit theft from a program receiving

federal funds, 18 U.S.C. §§ 371, 666(a)(1)(A) (2000) (count 1),

theft from a program receiving federal funds, 18 U.S.C. §

666(a)(1)(A) (2000) (count 2), and mail fraud, 18 U.S.C. § 1341

(2000) (count 4). The jury also convicted Cacho of making a false

statement to secure a bank loan. 18 U.S.C. § 1014 (2000) (count 3).

Finally, the jury found criminally forfeit thirteen parcels of real

property, allegedly derived from the embezzled funds. 18 U.S.C. §

982(a)(2)(A), (4) (2000) (count 5).

On this appeal, the defendants do not challenge their

convictions for conspiracy and theft from a program receiving

federal funds, but Cacho says that there was insufficient evidence

to convict her for a willful false statement, and both defendants

say that the evidence did not support the mail fraud conviction.

Cacho and Perez also both object to the "amount of loss"

calculation used by the district court to compute their sentence

under the guidelines. Finally, Perez contests the forfeiture of

one of the parcels of property.

We start with count 3, which charged Cacho with making a

false statement to the Royal Bank of Puerto Rico on October 23,

1990, in order to procure a bank loan for the Center. The

indictment charged that Cacho had stated that interest from the

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funds in the ASPRI accounts were not "federal funds" and that the

Center could use the interest from those ASPRI account funds.

Cacho does not contest that she made these representations; but she

says that the statement was true and in any event she believed it.

Cacho sought a judgment of acquittal on this count which

the district court denied. On appeal, she asserts that interest on

the funds in the ASPRI accounts belonged to ASPRI, did not have to

be returned to the federal government and thus did not constitute

federal funds.2 The question is complicated and turns upon a

reading of a now-superceded federal statute and related

administrative interpretations.

The statutory provision that governed in this case

provided on October 23, 1990, when the representation was made, as

follows:

Consistent with program purposes and
regulations of the Secretary of the Treasury,
the head of an executive agency carrying out a
grant program shall schedule the transfer of
grant money to minimize the time elapsing
between transfer of money from the Treasury
and the disbursement by a State, whether
disbursement occurs before or after the
transfer. A State is not accountable for
interest earned on grant money pending its
disbursement for program purposes.

31 U.S.C. § 6503(a) (1988) (emphasis added).

2
The parties and the district court have treated the
indictment's term "federal funds" as meaning funds that belong to
or are owed back to the U.S. government. We accept this view for
present purposes without considering other possible readings of the
phrase in this or in other contexts.

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 The legislative history indicates that the drafters

expected that the timing instructions directed by the first

sentence would ensure that interest accruing to the state from

undistributed funds would be small, which justified relieving the

states of the burden of returning the accrued interest. S. Rep.

No., 90-1456, at 15 (1968). Prior precedent of the Comptroller

General, reversed by legislation, had said that all accrued

interest had to be returned to the federal government. See

Commonwealth of Pa. Off. of the Budget v. Dep't of Health & Human

Servs., 996 F.2d 1505, 1510 (3d Cir.), cert. denied 510 U.S. 1010

(1993).

Although the statute says that "[a] State is not

accountable" and so does not by its terms apply to funds held by

subgrantees like ASPRI, it would be odd to treat as "federal funds"

interest on grantee accounts that the states were not required to

return. In any event, the Comptroller General explicitly concluded

that "subgrantees of Federal grants to the States are entitled to

keep any interest they may earn on advances from the States." 59

Comp. Gen. 218 (1980); see also 6 Op. Off. Legal Counsel 127, 132

(1982). One reason was that to require subgrantees to owe interest

back to the federal government would effectively reimpose on the

states the administrative burdens of dealing with interest that the

final sentence of the statutory provision relieved. See 59 Comp.

Gen. 218; 6 Op. Off. Legal Counsel at 132-33.

-7-
 The government does not dispute the exemption's extension

to states' subgrantees but argues that the interest in this case

generated by ASPRI's surplus was not being held "pending

distribution for program purposes." In denying Cacho's motion for

judgment of acquittal, the district judge agreed; he said that the

funds were being held in certificates of deposit to generate funds

for Cacho and Perez' private expenses and to be invested in real

estate--which was not a function permitted to ASPRI nor solely for

the benefit of ASPRI clients.

We think that the cleaner reading of the federal statute

is that Congress disclaimed federal ownership of interest generated

once program funds were in the hands of the state or (by extension)

its subgrantee and so potentially available for program purposes.

Temporary storage of the funds in the short-term CDs owned by ASPRI

is consistent with such a legitimate use. Congress may have

expected prompter pay-outs by states or subgrantees but the statute

does not make this a condition of the state or subgrantee retaining

ownership of the interest.

Similarly, we do not think that the defendants' secret

malign purpose to divert that interest after it was earned solves

the government's problem. The thrust of the final statutory

sentence quoted above was to leave the interest in the possession

of the state or its subgrantee; it would be a forced reading of the

statute, and one hard to administer, to deprive the state or

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subgrantee of its ownership claim to the interest because of an

officer's secret intent to steal the interest for his or her own

use. We note that Congress has since amended the law to provide

for repayment of interest on program accounts. See 31 U.S.C. §

6503(c) (2000). Count 3 did not affect either Cacho's sentence or

the forfeitures.

Curiously, this does not dispose of count 3, which

charged two representations. Although the interest payments were

not federal funds, Cacho was also charged in the same count with

falsely representing that the interest payments could be used by

the Center. This was material, since the purpose of the

representation was to assure the bank that the Center had a

legitimate income stream to support the loan, and it was likely

false. If we knew that the jury had rested its verdict on this

second representation, any misconstruction of the statute pertinent

to the first representation might be harmless error.

The government's position at trial was indeed that the

Center had been created as a vehicle to conceal a systematic plan

of embezzlement; if this were so, ASPRI interest (one could argue)

could not be lawfully transferred the Center and Cacho would know

that to be so. From a review of the closing arguments, the

government did in fact base its embezzlement case in counts 1 and

2 on just such a theory, while the defendants sought to put forward

legitimate reasons for forming the Center. Conceivably, the jury

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accepted this view as to counts 1 and 2 and also carried it over as

a basis for convicting on count 3 without regard to whether the

interest was federal funds.

However, the government makes no such harmless error

argument on this appeal, concentrating solely upon the federal

funds representation, so the defendants have had no chance to

respond to any harmless error claim. Further, the claim depends on

a parsing of what the jury inferably found as to the nature and

purpose of the Center; there were narrower bases for finding

violations of 18 U.S.C. § 666(a)(1)(A) based on the condemnation of

particular expenditures. So we will not sustain count 3 sua sponte

on grounds of harmless error.

Accordingly, the alleged federal funds misrepresentation

should not have gone to the jury but the other representation

certainly could have been submitted alone. The bank loan

conviction seemingly had no effect on the sentence or forfeiture,

so the government would be entitled to retry Cacho on the second

representation. Since only the $50 assessment for each felony

conviction appears to turn on the issue, we assume the government

will abandon the matter on remand.

Turning next to count 4, the indictment charged that for

purposes of a scheme to embezzle funds from ASPRI, the defendants

caused the mailing to the Department of Health and Human Services

of "information contained in monthly expense reports of ASPRI which

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represented as legitimate expenses inflated prices" for goods and

services. This count was based on the mailing by the Puerto Rican

grantee agency to HHS of an annual survey summarizing the expenses

and program activity of organizations such as ASPRI receiving

federal funds.

The defendants say that the evidence to support this

count was insufficient and that their motion for judgment of

acquittal should have been granted. Our review of the denial is de

novo, drawing inferences and resolving credibility issues in favor

of the verdict. United States v. Moran, 312 F.3d 480, 487 (1st

Cir. 2002). However, in this case the dispute is less one of

evidence than of legal characterization.

The elements of mail fraud are a scheme or artifice to

defraud, specific intent, and use of the mail in furtherance of the

scheme. United States v. McCann, 366 F.3d 46, 51 (1st Cir. 2004),

petition for cert. filed, No. 04-5632 (U.S. Aug. 2, 2004). Only

the last of these three elements is at issue here. As to the use

of the mails, the defendant need not personally mail anything so

long as it is reasonably foreseeable that the mails will be used in

the ordinary course of business to further the scheme. United

States v. Pimental, 380 F.3d 575, 584 (1st Cir. 2004).

Here, a state agency official testified that ASPRI was

required to submit monthly reports to the state agency and that the

reports submitted included the amount paid by ASPRI to the Center

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for food and supplies, including the markups that the government

charged were part of the fraud. Although ASPRI submitted the

reports by messenger, the state agency compiled them into a summary

report--which itself reflected the allegedly fraudulent markups--

that was mailed at HHS's instruction to a compiling entity that

collected the data for HHS.

On this appeal, the defendants assume that the jury could

find that the mailing was foreseeable but they say that the mailing

played no causative role in the embezzlement scheme. The

connection between the scheme and the mailing is unusually thin and

the count would better have been omitted. But charging decisions

belong to the prosecutor, see United States v. DeCologero, 364 F.3d

12, 22-23 (1st Cir. 2004), and in this instance the circumstances

permitted conviction, although barely so.

The courts have generously construed the "furtherance"

requirement. The Supreme Court has said that to satisfy this

requirement, "the use of the mails need not be an essential element

of the scheme." It is enough "for the mailing to be incident to an

essential part of the scheme or a step in [the] plot." Schmuck v.

United States, 489 U.S. 705, 710-11 (1989) (alteration in original)

(internal quotation marks and citations omitted).

The defendants' embezzlement scheme was not a one-shot

affair. Much of the scheme–-e.g., the mark-ups on Center

purchases--depended upon the continuation of federal funding for

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ASPRI. In turn, the submission (by mail) of ASPRI data to HHS's

data-collection entity perpetuated the relationship that kept funds

flowing to ASPRI–-or so the jury could have found from the

testimony of the government's witness. So viewed, the perpetuation

was essential to the scheme and the mailing was incidental to that

perpetuation.

Schmuck is analogous. There, a defendant tampered with

car odometers and sold them to dealers who, upon resale to

customers, mailed title registration papers to the state. Schmuck,

489 U.S. at 707. The mailings were held to be "in furtherance of"

the continuing fraud because they were an essential step in

completing the final sales, which were in turn necessary to

continue the defendant-dealer relationship and for the defendant to

sell more tampered with cars. Id. at 711-12.

The defendants say that including the improper markups as

expenses was more likely to disclose the fraud to HHS than to

perpetuate it; the government says that an honest disclosure of the

markups would have revealed the fraud. But as with the title

registrations mailed in Schmuck, the data surveys reporting the

transactions–-whether accurately or inaccurately–-arguably

contributed to HHS's continued supplying of funds to Puerto Rico

and ASPRI without too much scrutiny as to where the money was

going.

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 The defendants rely upon Parr v. United States, 363 U.S.

370, 391 (1960), as holding that "legally compelled mailings"

cannot be the basis for a mail fraud conviction. That case in

pertinent part involved a school district that raised funds through

its taxing power–-funds thereafter embezzled by school officials.

The taxing, which was legitimate, involved use of the mails; the

later embezzlement did not. Over a strong dissent by Justice

Frankfurter, for himself and Justices Harlan and Stewart, the Court

ruled that the use of the mails was not in furtherance of the

fraud.

Parr can be distinguished on its facts, but in truth,

Schmuck's "perpetuation" theory could arguably have been used in

Parr. Parr, 363 U.S. at 397-401 (Frankfurter, J., dissenting).3

However, Schmuck is the later case, its perpetuation theory has

been regularly followed in this circuit, e.g., Pimental, 380 F.3d

at 588-89; United States v. Woodward, 149 F.3d 46, 65 (1st Cir.

1998), cert. denied 525 U.S. 1138 (1999), and it binds us now.

Perhaps Parr today stands mainly for the view that the use of the

mails legitimately to raise tax funds that are later embezzled

(without use of the mails) does not thereby make the later

embezzlement mail fraud.

3
The government points out that the survey contained data
indirectly reflecting defendants' improper markups; by contrast,
the Court in Parr took the view that the tax filings were
uncontaminated and would have been just the same regardless of
whether the funds were later stolen. Parr, 363 U.S. at 392.

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 This brings us to the defendants' claims relating to

sentencing.4 For both defendants, the district court grouped

together all of the counts as related (apart from forfeiture

counts) and applied the guideline provision for fraud to determine

the offense level. U.S.S.G. § 2F1.1 (1997). The court then

determined that the defendants had inflicted losses on ASPRI in the

amount of $1,419,482, representing the following:

• $705,059 in interest funds transferred to
the Center from ASPRI accounts;

• $146,581 in markups on medical equipment and
$459,807 in markups on food purchased by
ASPRI through the Center; and

• $108,035 representing a payment by ASPRI to
Corpurimetal.

The fraud guideline keys the offense level to the net

loss inflicted and, under the guideline table, a loss of more than

$800,000 (but no more than $ 1.5 million) results in an initial

offense level of 17. U.S.S.G. § 2F1.1(b)(1)(L). After further

adjustments not here at issue (e.g., for obstruction of justice by

Cacho), the offense level for Cacho was fixed at 27 and for Perez

at 23, leading to sentences of 70 months and 46 months

respectively.

4
The 1997 guidelines were used, without dispute from either
side, to avoid ex post facto concerns arising from later changes
adverse to Cacho and Perez. See United States v. Parsons, 141 F.3d
386e, 392 n.1 (1st Cir. 1998). Today, the fraud guideline has been
consolidated into the guideline for theft.

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 On appeal, defendants contest several of the loss

calculations. We review for clear error the district court's

factual findings. United States v. Gilberg, 75 F.3d 15, 19 n.3

(1st Cir. 1996); United States v. Goodchild, 25 F.3d 55, 64 (1st

Cir. 1994). However, guideline interpretation, which includes the

method by which the loss is computed, see United States v. Walker,

234 F.3d 780, 783 (1st Cir. 2000), is subject to de novo review.

Id.; Gilberg, 75 F.3d at 19 n.3.

First, and most broadly, defendants say that the total

loss figure found by the district court should be reduced by the

$1.1 million recovered from the sale of forfeited properties which

were themselves purchased with the embezzled funds. However, loss

is intended crudely to measure the magnitude of the wrong.

Parsons, 141 F.3d at 392. The defendants are not made less

culpable merely because a portion of the stolen goods was later

recovered.

Accordingly, it is the rule in this circuit, as well as

others, that even a return of fraudulently taken property to the

victim does not warrant a reduction in the loss calculation where

the return occurs after the crime has been discovered. Parsons,

141 F.3d at 392-93; United States v. Downs, 123 F.3d 637, 643 (7th

Cir. 1997); United States v. Mummert, 34 F.3d 201, 204 (3d Cir.

1994). Here, of course, the forfeited property was taken by the

United States and not returned to ASPRI; but in any event the

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amount embezzled would not be reduced by any later fortuitous

recovery by ASPRI. See United States v. Bright, 353 F.3d 1114,

1119 (9th Cir. 2004).

There is no force to defendants' attempted analogy to

fraudulent loan cases where, in calculating loss under the

guideline, the loan's face value is reduced by the value of

pledged assets. U.S.S.G. § 2F.1.1 application note 7(b); United

States v. Kelley, 76 F.3d 436, 439 (1st Cir. 1996). In such a

case, the amount actually at risk is the unsecured amount. In this

case the payments by ASPRI to the Center used in calculating the

loss were unsecured so far as ASPRI was concerned.

Second, the defendants say that they should have been

given credit against the interest transfers and other wrongful

losses they inflicted for the value of the properties they

purchased in the Center's name because those properties (or most of

them) were used (at least in some measure) for the benefit of

ASPRI's programs. For example, a number of the properties owned by

the Center were used by ASPRI as centers for the elderly, camps for

children and sites for work programs. The defendants' notion is

that some of what was embezzled was used for the victim's benefit.

Aside from the fact that the Center charged ASPRI rent

for some of these properties, the district court did not have to

credit the defendants with the supposed benefit to ASPRI. Where

fraud consists of selling an item that is worth less than

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represented, the guidelines and case law do permit loss to be

calculated as the inflated purchase price less the real value to

the purchaser. U.S.S.G. § 2F1.1 application note 7(a)-(b); United

States v. Vivit, 214 F.3d 908, 914-15 (7th Cir.), cert. denied 531

U.S. 961 (2000). But in such cases the purchaser did seek to buy

the stock or watch or car, so the overcharge, rather than the

purchase price, may be a fair measure of loss.

The present case is quite different. ASPRI's board did

not agree to have the defendants divert ASPRI funds to purchase

properties through their straw organization. And each act of

embezzlement placed ASPRI's funds in jeopardy even if some of the

money was spent for purposes ASPRI could have approved. In

embezzlement as in theft, "loss is the value of the money,

property, or services unlawfully taken," except in special cases

like exchanges involving misrepresented value or pledged assets.

U.S.S.G. § 2F1.1 application note 7.

Third, as already noted, $606,388 of the loss comprised

markups on food ($459,807) and medical supplies ($146,581)

purchased by the Center for ASPRI clients. The district court's

view was that channeling the purchases through the Center provided

no value to ASPRI, that the purchasing was conducted by ASPRI

employees, and that the markups were part of the scheme to syphon

ASPRI money into the defendants' hands. The defendants say this

finding was clearly erroneous.

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 There was substantial testimony that the medical

purchases were made from the same suppliers as before and that

ASPRI employees continued to do the same work. The suppliers

continued to deliver supplies to ASPRI's various locations just as

they had before the Center's existence (and in any event they

didn't charge for this). If there were some discrepancies in the

testimony, the evidence as a whole amply supported the district

court's view that the markups on the medical supplies were payment

for nothing.

In reaching this conclusion, the district court

implicitly rejected Cacho's testimony that purchasing medical

supplies through the Center did serve a useful purpose. She had

claimed at trial that the markups were necessary to fund advance

purchases of medical supplies, making the supplies readily

available upon need; red-tape restrictions, she said, made it

infeasible for ASPRI to order in advance of need.

In fact, the court was free to disbelieve Cacho's

explanation. The markups were charged on all purchases; they were

not halted when money had been accumulated for a revolving fund for

advance purchases. The district court's obstruction of justice

adjustment rested in part on its finding that Cacho had perjured

herself at trial.

Cacho and Perez have a better argument that the markups

on food had some plausible function. For food distribution, the

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Center incurred substantial costs in hiring Angel Perez to pick up

and deliver food and in operating a warehouse with refrigeration

equipment. The testimony from several witnesses indicates that at

least some of these costs were justified in alleviating the

difficulties of direct supplier distribution that were described in

some detail at trial.

We need not consider any countervailing evidence or

consider whether the food markups are otherwise tainted. Taking

together the $705,059 from interest transfers and $146,581 from

medical supply markups, the amount of loss already exceeds the

$800,000 required to affirm the district court's eleven-level

enhancement under U.S.S.G. § 2F1.1(b)(1)(L). This also makes it

unnecessary to consider the separate loss element based on payments

to Corpurimetal.

The last claim of error is made by Perez alone. He

concedes that one among the many forfeited properties was obtained

by him from the Center (the Barrio Beatriz property), but he says

that this property was received in exchange for a piece of property

that he and his wife had previously owned and that was itself

untainted (the Barrio Vega property). So despite its connection to

the Center, Perez says that the Barrio Beatriz property was not the

fruit of the embezzlement and should not have been taken from him.

The government points to evidence that the Barrio Vega

property was itself purchased in part from funds arguably secured

-20-
through part of the same embezzlement scheme and that anyway Barrio

Beatriz was acquired by the Center with embezzled funds before

Perez acquired it. We need not venture into this thicket. Perez

admits that this argument was never advanced in the district court

and, if there was error, it certainly is not plain to us. See

United States v. Olano, 507 U.S. 725, 732 (1993).

Cacho and Perez finally present challenges to the use of

the guidelines (particularly the enhancements) in their sentencing,

relying on Blakely v. Washington, 124 S. Ct. 2531 (2004), and

United States v. Booker, 125 S. Ct. 798 (2005). Although the

defendants did not raise the issue below (and thus their claim is

reviewed for plain error only) or in their initial brief, we

invited them to make the plain-error showing contemplated by United

States v. Antonakopoulos, 399 F.3d 68, 75 (2005); and United States

v. Heldeman, __ F.3d __, 2005 WL 708397 (1st Cir. Mar. 29, 2005),

that there was a “reasonable probability” that the district court

would impose a more favorable sentence under the new advisory-

guidelines regime.

The gist of Cacho and Perez’s argument was that the

district judge used some language suggesting he felt constrained by

the guidelines, see, e.g., Heldemann, 2005 WL 708397, at *3, and

that there were several other factors that might have led the

district court to impose a lower sentence had he been at liberty to

consider them in an advisory-guidelines regime. Principal among

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these factors were contentions that the embezzlement from ASPRI was

a single instance of aberrant behavior and that the defendants had

distinguished records of public service.

That the crime was an instance of aberrant behavior is a

permissible consideration for a departure (and under the 1997

guidelines, was encouraged,5 see United States v. Grandmaison, 77

F.3d 555, 560-61 (1st Cir. 1996)); U.S.S.G. Ch. 1, pt. A, subpt.

4(d) (1997)). Nothing suggests that the district court thought

itself barred from considering it; and indeed the district court

rejected this grounds for departure on the merits. Although the

commission of multiple acts during or leading up to a single crime

may not bar availability of an aberrant behavior departure, see

Grandmaison, 77 F.3d at 563, the district court correctly concluded

that Cacho and Perez’s embezzlement--executed over many years

through a variety of methods--was not a single act of aberrant

behavior. There is no reason to think that the district court

under an advisory guidelines scheme would impose a lighter sentence

on this proffered ground.

As for public service, which was a permitted but

discouraged ground for departure, U.S.S.G. § 5H1.11 (1997); United

States v. DeMasi, 40 F.3d 1306, 1324 (1st Cir. 1994), the problem

is similar. Cacho and Perez engaged in admirable work, but the

5
As of November 1, 2000, "aberrant behavior" has been governed
by its own guidelines provision, which fleshes out the requirements
and makes it a discouraged departure. See U.S.S.G. § 5K2.20
(2000).

-22-
ultimate victims of their embezzlement were ASPRI’s needy

beneficiaries. And while their careers may have involved public

service that both preceded and followed the period of their crime,

their good works are still significantly offset by the fact that

they victimized the charitable organization that they ran.

In any event, the district judge did not disregard their

public service; he made a judgment and took it into account by

sentencing at the bottom of the guidelines range. Unlike cases in

which the judge expresses a desire to give a lower sentence but

thinks himself constrained, the district judge in this case gave no

indication that he would have gone further if he could, or that the

defendants’ net public contribution was insufficiently credited by

the sentences given.

As for the claim that the judge perceived himself to be

restricted by the guidelines but failed to say so, there might well

be cases in which the judge failed to express a desire to sentence

outside the guidelines range because it was useless to say

anything. See Heldeman, 2005 WL 708397, at *3. But of those

factors that could justify greater leniency that the defendants

point to on appeal, the judge considered and rejected one; and

seemed to take the other into account to his satisfaction.6

6
In the district court, the defendants presented other reasons
for departures below the guidelines range--such as illness and
rehabilitative potential--but except by way of cross-reference to
their sentencing filings do not mention them on appeal.

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 Finally, having given the defendants what he deemed the

benefit of the doubt on the intricate amount-of-loss calculation

and by imposing a sentence at the bottom of the range, the district

judge went out of his way to indicate that he thought Cacho and

Perez received just sentences. After saying “I have provided every

break that I could,” for instance, he concluded “I, therefore, feel

that it is enough.” And after noting that the defendants

“undertook actions which were clearly illegal with the purpose of

obtaining financial gain,” he concluded that the “behavior merits

a sentence reflective of the seriousness of the offense conduct and

to provide just punishment.”

The conviction of Cacho on count 3 is vacated but the

judgment of conviction on the remaining counts and the sentences

and forfeitures are affirmed. The matter is remanded for

correction of the judgment on count 3, removal of the special

assessment on that count and possible retrial on count 3 if the

government is so minded.

It is so ordered.

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