USCA1 Opinion
January 25, 1996 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1721
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
DENNIS L. MASON,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge] ___________________
____________________
Selya, Cyr and Stahl,
Circuit Judges, ______________
____________________
Richard H. Gens for appellant. _______________
Pamela Merchant, Trial Attorney, United States Department of ________________
Justice, with whom Donald K. Stern, United States Attorney, Mark D. ________________ _______
Seltzer, Acting Director, New England Bank Fraud Task Force, and Mark _______ ____
Adler, Senior Trial Attorney, United States Department of Justice, _____
were on brief for appellee.
____________________
____________________
Per Curiam. Dennis L. Mason appeals his convictions Per Curiam. __________
and sentences for bankruptcy fraud, bank fraud, and money laun-
dering, see 18 U.S.C. 152, 1344, 1957. We affirm. ___
In December 1987, Mason and First Service Bank for
Savings ("First Service") finalized a loan agreement whereby
First Service was to advance $5 million to Concord Woods North
Realty Trust ("Realty Trust") for the sole purpose of acquiring
and developing twenty-five acres of real estate in Concord, New
Hampshire. On the closing date, First Service disbursed over
$2.4 million to Mason, as trustee of Realty Trust; Mason immedi-
ately directed that approximately $200,000 be deposited in his
personal account at the Bank of Boston. The day after the
closing, Mason disbursed $12,000 from this personal account
toward the purchase of jewelry for his wife.
During 1988, Mason diverted approximately $860,000 in
First Service loan proceeds to purposes unrelated to the Realty
Trust project, including a $500,000 transfer to an Ohio account
in the name of his lawyer. Between March and August 1989, he
transferred another $100,000 in loan proceeds to a bank account
in his wife's name.
After First Service Bank closed and its assets were
acquired by the Federal Deposit Insurance Corporation ("FDIC") in
March 1989, Realty Trust filed a chapter 7 petition, in which
Mason, as trustee, failed to disclose any of the above-described
diversions of First Service loan funds. In May 1989, at a
meeting of creditors in the Realty Trust bankruptcy proceeding,
2
Mason testified that all First Service loan proceeds had been
applied to the Realty Trust real estate project. Mason later
made similar misrepresentations to FDIC attorneys in September
1989, and again in 1992. In March 1992, he destroyed his busi-
ness records. Two months later he filed his own personal chapter
7 bankruptcy petition.
Mason first claims that the district court failed to
instruct the jury on the essential elements of the crime of bank
fraud under section 1344.1 Since Mason failed to object to the
jury instruction, we review only for plain error. See United ___ ______
States v. Hurley, 63 F.3d 1, 9 (1st Cir. 1995). The challenged ______ ______
jury instruction met the three-part standard established in
United States v. Brandon, 17 F.3d 409, 424 (1st Cir.) (bank fraud _____________ _______
elements under 18 U.S.C. 1344 require showing that defendant
knowingly engaged in a scheme or artifice to defraud, or made
false statements or misrepresentations to obtain money from,
bank), cert. denied, 115 S. Ct. 80 (1994). There was no error, _____ ______
let alone plain error.
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1As many arguments advanced by Mason on appeal are redun-
dant, undeveloped, unpreserved, or patently frivolous, they merit
no discussion. In particular, since Mason mounts only a perfunc-
tory challenge to the bankruptcy fraud instructions, see United ___ ______
States v. Zannino, 895 F.2d 1, 17 (1st Cir.), cert. denied, 494 ______ _______ _____ ______
U.S. 1082 (1990), and the record on appeal does not include the
challenged instructions, see Fed. R. App. P. 10(b), 11(a); see ___ ___
Plummer v. Springfield Terminal Ry. Co., 5 F.3d 1, 5 (1st Cir. _______ ____________________________
1993) (merits not reached because pertinent material not included
in record on appeal), cert. denied, 114 S. Ct. 1057 (1994); _____ ______
United States v. One Motor Yacht Named Mercury, 527 F.2d 1112, ______________ ______________________________
1113-14 (1st Cir. 1975), we deem the claim abandoned.
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Mason next contends that the district court committed
reversible error by rejecting his motion for judgment of acquit-
tal on the bank fraud charge, since there was insufficient
evidence that he had embarked on a scheme to defraud the bank by __
the time the loan documents were executed in December 1987. We ___ ____ ___ ____ _________ ____ ________ __ ________ ____
evaluate the evidence in the light most favorable to the verdict,
which must be affirmed if a rational jury could have found Mason
guilty beyond a reasonable doubt. United States v. Vavlitis, 9 _____________ ________
F.3d 206, 212 (1st Cir. 1993).
Although Mason attempts to explain the $12,000 dis-
bursement from his personal account at Bank of Boston to pay for
jewelry for his wife the day after receiving the initial advance ___ ___ _____
from First Service on the Realty Trust loan, there can be no
question that this virtually contemporaneous evidence was suffi-
cient to enable the jury reasonably to infer that the scheme to _____
defraud had been formulated by the time the loan closing oc- __ ___ ____ ___ ____ _______ ___
curred. Moreover, larger diversions of the Realty Trust loan ______
proceeds began within three months after the loan documents were
executed. The jury was free to infer from this reasonably
proximate subsequent conduct that Mason's fraudulent intent to
engage in the scheme had originated by the time he executed the
loan documents, especially since he presented no compelling
explanation for embarking upon the improper loan diversions the
day after the closing. See United States v. Sutton, 970 F.2d ___ _____________ ______
1001, 1007 (1st Cir. 1992) ("testimony, though it centered around
later-occurring events, was relevant to show appellant's intent
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at an earlier date"); United States v. Mena, 933 F.2d 19, 25 n.5 _____________ ____
(1st Cir. 1991) (similar).
Mason raises two sentencing claims. First, he argues
that the two-level sentencing enhancement for more than "minimal
planning," see U.S.S.G. 2F1.1(b)(2), was unwarranted because ___
the bank fraud, bankruptcy fraud, and money laundering conduct
constituted "singular transactions" or "single acts." We find no
clear error. See Brandon, 17 F.3d at 459. The record reveals ___ _______
that Mason repeatedly diverted First Service loan proceeds to
personal and other improper purposes throughout much of 1988 and
1989. Thus, the sentencing enhancement for more than minimal
planning simply reflected the reality that his prolonged conduct
was no "spur of the moment" undertaking. United States v. ______________
Gregorio, 956 F.2d 341, 343 (1st Cir. 1992). ________
Second, Mason claims that the total loss calculation
was clearly erroneous. He relies on a $4 million appraisal of
the Concord Woods North property, whereas the district court
relied on a $110,000 FDIC appraisal. We review the valuation
ruling for clear error. United States v. Tardiff, 969 F.2d 1283, _____________ _______
1288 (1st Cir. 1992). The record discloses that the district
court reasonably could have found that Mason's appraisal over-
stated the number of single-family homes the Concord Woods North
property could accommodate and relied on inflated valuations for
individual building lots. On the other hand, the much lower FDIC
appraisal figure is the product of alternative valuation methods;
viz., an "income capitalization approach" and a "comparable land
5
sales approach." See U.S.S.G. 6A1.3(a) ("the court may consid- ___
er relevant information . . . provided that the information has
sufficient indicia of reliability to support its probable accura-
cy."). On this record, there was no clear error in the district
court finding that the defendant's valuation was less reliable
than that of the FDIC. United States v. Tejada-Beltran, 50 F.3d _____________ ______________
105, 110 (1st Cir. 1995) ("[T]he sentencing court's choice among
supportable alternatives cannot be clearly erroneous.") (quoting
United States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990)). _____________ ____
Finally, Mason presents an "ineffective assistance"
claim based on trial counsel's alleged failure (1) to object to a
supplemental jury instruction on bank fraud, and (2) to move for
a new trial based on the same instruction. See United States v. ___ _____________
Ortiz, 23 F.3d 21 (1st Cir. 1994) (entertaining "ineffective _____
assistance" claim on direct appeal where record was sufficiently
developed and critical facts were not in dispute).
The instruction in question informed the jury that
appellant could be convicted upon "whatever scheme you find the ________ ______
government has proven beyond a reasonable doubt." (Emphasis
added.) Mason asserts that this rendered the indictment "duplic-
itous." We disagree. The challenged instruction simply permit-
ted the jury to convict based on a scheme plainly alleged in the
indictment. The evidence adduced at trial worked no broadening
of the scheme alleged in the indictment. See United States v. ___ _____________
Miller, 471 U.S. 130, 145 (1985). The ineffective assistance ______
claim therefore fails as Mason has not demonstrated "prejudice"
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from the alleged omission by trial counsel. See Strickland v. ___ __________
Washington, 466 U.S. 668, 687 (1984). __________
Affirmed. See 1st Cir. R. 27.1. Affirmed. ________ ___
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