USCA1 Opinion
November 25, 1996 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-2176
UNITED STATES,
Appellee,
v.
JEROME E. ROYAL,
Defendant - Appellant.
____________________
ERRATA SHEET
The opinion of this court issued on November 12, 1996 is
amended as follows:
On page 2, line 8 delete sentences that read: "We also
vacate and remand the restitution order for findings regarding,
and sentencing for, only those losses that Royal reasonably could
have foreseen. We affirm on all other points."
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-2176
UNITED STATES,
Appellee,
v.
JEROME E. ROYAL,
Defendant - Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Boudin, Circuit Judge, _____________
and Barbadoro,* District Judge. ______________
_____________________
James E. Carroll, by Appointment of the Court, with whom _________________
Erin K. Kelly and Cetrulo & Capone were on brief for appellant. _____________ _________________
Nadine Pellegrini, Assistant United States Attorney, with __________________
whom Donald K. Stern, United States Attorney, was on brief for _______________
appellee.
____________________
November 12, 1996
____________________
____________________
* Of the District of New Hampshire, sitting by designation.
TORRUELLA, Chief Judge. Appellant Jerome Royal TORRUELLA, Chief Judge. ____________
("Royal") makes several claims on appeal. Specifically, he
challenges the denial of his motions relating to jury selection
and jury instructions, the sufficiency of the evidence supporting
his conviction, and sentencing considerations. For the reasons
discussed below, we reverse the denial of Royal's motion to
inspect the master jury wheel and remand to allow Royal to
inspect the master jury wheel and other relevant records.
BACKGROUND BACKGROUND
Factual History Factual History
We briefly sketch out the bare facts of this
conspiracy, providing facts related specifically to Royal as they
become relevant. Considering the evidence in the light most
favorable to the verdict, United States v. Kayne, 90 F.3d 7, 13 _____________ _____
(1st Cir. 1996), the jury could have found the following. EZ-EM,
Inc., was a distributorship for Andover Tractor Trailer School
("ATTS"), a correspondence school in Methuen, Massachusetts.
ATTS was party to a program participation agreement with the
Department of Education to participate in the PELL grant program,
the Guaranteed Student Loan program, the Plus program, and the
Supplemental Loans for Students program. Under the agreement,
ATTS must require a maximum time frame in which students complete
a course with a minimum grade average. ATTS entered into a
series of distributors' agreements whereby each distributor would
refer students to enroll in ATTS's program.
-2-
Darryl Simmes, the financial aid officer for ATTS at
EZ-EM, testified that he also acted as a recruiter for EZ-EM.
Simmes worked at ALAT, another distributor affiliated with ATTS,
prior to joining EZ-EM. Simmes testified that, at ALAT, when a
student he recruited did not meet the minimum requirements of the
program, he falsified the student's application to make it appear
that he met those requirements. These minimum requirements
included possessing a driver's license and making less than a
certain income to be eligible for financial aid. Later, at EZ-
EM, Simmes would contact a student he had recruited to sign a
student loan check made out to both the student and the school.
These students were told that they would not incur debt by
signing the check and, often, later found that they had defaulted
on loans they were not aware they had taken out. During the
course of EZ-EM's existence, the distributorship enrolled at
least 150 students.
Sometimes, EZ-EM provided students with a set of exams
including answers, requesting that a newly registered student
sign off on the exams. Other times, the tests were forwarded to
the student already completed. The completed forms would then be
returned to ATTS. EZ-EM also supplied students with answers to
later lessons, sometimes mailing these lessons to students. EZ-
EM would inform students that they must sign the lessons or risk
being thrown out of the program. Employees of EZ-EM paid some
students to enroll in the ATTS program. ATTS paid EZ-EM a
commission of $600-$700 per student enrolled.
-3-
Procedural History Procedural History
A grand jury indicted Royal on October 7, 1992, on
charges of conspiracy to commit mail fraud in violation of 18
U.S.C. 371, mail fraud in violation of 18 U.S.C. 1341, and
aiding and abetting in violation of 18 U.S.C. 2. On March 13,
1995, the scheduled day of trial, a petit jury venire of 53
appeared for impanelment. Royal, a black male, orally moved to
strike the jury venire. The court granted this motion and
rescheduled the trial for one week from that date.
On March 15, Royal filed a motion to inspect the master
jury wheel for the years from 1993 to 1995. The following day,
Royal filed a Motion to Strike Jury Venire, which argued that the
district's jury selection plan systematically excludes blacks
from the jury pool. The district court deferred ruling on these
motions until Royal could make a proffer demonstrating that the
jury plan systematically excluded blacks.
On March 20, 1995, trial commenced in the district
court. After viewing the jury venire, Royal renewed his motion
to strike the jury venire. Royal further moved for a hearing
with respect to the inadequacies of the Amended Jury Plan for the
Eastern Division of the District of Massachusetts ("Amended Jury
Plan"). In support of his various motions, Royal submitted two
affidavits from Dr. Gordon Sutton, Professor of Sociology at the
University of Massachusetts at Amherst, which contended that the
Amended Jury Plan systematically excluded blacks and other
minorities from the jury venire. The district court determined
-4-
that it did not have statutory authorization to implement the
remedy Royal suggested -- supplementing the jury venire such that
it would provide a fair cross-section of the community -- and
denied Royal's motions.
Following the close of the government's case, Royal
moved for judgment of acquittal on all counts. The district
court granted the motion only as to Count 24, charging mail
fraud. After a six day trial, the jury returned guilty verdicts
on one count of conspiracy and eight counts of mail fraud, with
verdicts of not guilty on four counts of mail fraud. Royal's
sentence included 27 months imprisonment, 36 months supervised
release, and restitution of $30,000. This appeal followed.
DISCUSSION DISCUSSION
I. Jury Selection I. Jury Selection ______________
Appellant Royal asserts that he was unconstitutionally
denied his right to a jury selected at random from a fair cross-
section of the community, as guaranteed by the Sixth Amendment.
Taylor v. Louisiana, 419 U.S. 522, 528 (1975). That same right ______ _________
is ensured by the Jury Selection and Service Act of 1968. See 28 ___
U.S.C. 1861 et seq. (1994). __ ____
A. Motion to Inspect the Master Jury Wheel Records A. Motion to Inspect the Master Jury Wheel Records _______________________________________________
"To the extent that [Royal's] contentions rest on
statutory interpretations, we review the district court's denial
of [Royal's] motion de novo. . . . The district court's factual
findings, however, will not be disturbed unless clearly
-5-
erroneous." United States v. Bailey, 76 F.3d 320, 321 (10th ______________ ______
Cir.), cert. denied, __ U.S. __, 116 S. Ct. 1889 (1996). ____________
At the first hearing, held on March 15, 1995, the
district court stated that the request before it was essentially
a request for an evidentiary hearing to extend the scope of
requested evidence to include discovery of the master jury wheel.
The court then placed the burden on Royal to show "by a factually
supportable submission that there is some reasonable basis for
supposing that the matters you're asking to get into will have
some material bearing upon a decision I am to make." Transcript
of hearing, March 15, 1995, at 6. Because Royal made no
factually supportable showing of relevance and materiality, the
district court denied the motion to inspect.
On a second motion to inspect the jury records, the
district court suggested that, in order to inspect the requested
records, Royal was required to make a showing that he would be
able to satisfy the three prongs of Duren v. Missouri, 439 U.S. _____ ________
357 (1979). Under Duren, in order to establish a prima facie _____
violation of the fair cross-section requirement, "the defendant
must show (1) that the group alleged to be excluded is a
'distinctive' group in the community; (2) that the representation
of this group in venires from which juries are selected is not
fair and reasonable in relation to the number of such persons in
the community; and (3) that this underrepresentation is due to
systematic exclusion of the group in the jury-selection process."
Id. at 364. The district court expressed concern that Royal ___
-6-
would not be able to satisfy the third prong by showing
systematic exclusion. Accordingly, it deferred ruling until
Royal could make a showing that would enable the court "to
determine whether we are doing something that is potentially
useful or instead doing something that's just a waste of
resources because it will not be useful in any event."
Transcript of Hearing, March 17, 1995, at 15-16.
Under the Sixth Amendment, a defendant has the right to
a jury selected from a source fairly representative of the
community. See Taylor v. Louisiana, 419 U.S. 522, 527-28 (1975). ___ ______ _________
Section 1867 of Title 281 establishes "the exclusive means by
____________________
1 Section 1867 of Title 28 states, in relevant part:
(a) In criminal cases, before the voir
dire begins, or within seven days after the
defendant discovered or could have
discovered, by the exercise of diligence, the
grounds therefor, whichever is earlier, the
defendant may move to dismiss the indictment
or stay the proceedings against him on the
ground of substantial failure to comply with
the provisions of this title in selecting the
grand or petit jury. . . .
* * *
(d) Upon motion filed under subsection (a)
. . . of this section, containing a sworn
statement of facts which, if true, would
constitute a substantial failure to comply
with the provisions of this title, the moving
party shall be entitled to present in support
of such motion the testimony of the jury
commission or clerk, if available, any
relevant records and papers not public or
otherwise available used by the jury
commissioner or clerk, and any other relevant
evidence. . . . If the court determines that
there has been a substantial failure to
comply with the provisions of this title in
-7-
which a person accused of a Federal crime . . . may challenge any
jury on the ground that such jury was not selected in conformity
with the provisions of [the Title]." 28 U.S.C. 1867(e) (1994).
In Test v. United States, 420 U.S. 28 (1975), the Supreme Court ____ ______________
interpreted the relevant statutory language of section 1867. See ___
Test, 420 U.S. at 30. Before voir dire examination or within ____
seven days after the defendant could have discovered the grounds
for a challenge, a defendant may move to dismiss the indictment
or stay the proceedings for substantial failure to comply with
the provisions of the title. 28 U.S.C. 1867(a). The statute
requires that the challenge be accompanied by "a sworn statement
of facts which, if true, would constitute a substantial failure
to comply with" these provisions. 28 U.S.C. 1867(d). Relevant
to our inquiry here, subsection (f) of section 1867 provides that
"[t]he parties . . . shall be allowed to inspect, reproduce, and
____________________
selecting the petit jury, the court shall
stay the proceedings pending the selection of
a petit jury in conformity with this title. .
. .
* * *
(f) The contents of records or papers used
by the jury commission or clerk in connection
with the jury selection process shall not be
disclosed, except pursuant to the district
court plan or as may be necessary in the
preparation or presentation of a motion under
subsection (a) . . . of this section . . . .
The parties in a case shall be allowed to
inspect, reproduce, and copy such records or
papers at all reasonable times during the
preparation and pendency of such a
motion. . . .
18 U.S.C. 1867 (1994).
-8-
copy such records or papers at all reasonable times during the
preparation and pendency of such a motion." 28 U.S.C. 1867(f).
It is this particular subsection with which the Supreme Court was
concerned in Test and which is dispositive of Royal's challenge. ____
In Test, the district court denied the defendant's ____
motion to inspect the jury selection records pursuant to section
1867(e). Test, 420 U.S. at 29. The Supreme Court determined ____
that the language in subsection (e) established "essentially an
unqualified right to inspect jury lists." Id. at 30. This ___
interpretation was supported "not only by the plain text of the
statute, but also by the statute's overall purpose of insuring
'grand and petit juries selected at random from a fair cross
section of the community.'" Id. (quoting 28 U.S.C. 1861). The ___
Court admonished that, without such access, a litigant will be
unable to determine whether he has a meritorious claim. See id. ___ ___
We adhere to and apply the Supreme Court's determination that a
defendant, such as Royal, challenging the jury selection
procedures has an unqualified right to inspect jury records.
Because the right of access to jury selection records
is "unqualified," a district court may not premise the grant or
denial of a motion to inspect upon a showing of probable success
on the merits of a challenge to the jury selection provisions.
See Test, 420 U.S. at 30. Although the burden is on the ___ ____
defendant to establish a prima facie case of unconstitutional
exclusion, see United States v. Pion, 25 F.3d 18, 22 n.4 (1st ___ _____________ ____
Cir.), cert. denied, __ U.S. __, 115 S. Ct. 326 (1994), the right ____________
-9-
of access to the jury selection records is a precursor to this
burden and is intended to provide the defendant with the evidence
necessary to mount a proper showing. To avail himself of the
right of access to jury selection records, a litigant need only
allege that he is preparing a motion to challenge the jury
selection process. See United States v. Alden, 776 F.2d 771, 773 ___ _____________ _____
(8th Cir. 1985). The district court, therefore, erred in
requiring Royal to make a showing of probable success on the
merits of his jury selection challenge as a condition of granting
access to the records.
Furthermore, a district court may not require a
defendant requesting access to jury selection records to submit
with that request "a sworn statement of facts which, if true,
would constitute a substantial failure to comply with the
provisions of this title." 28 U.S.C. 1867(d). The procedural
mechanisms of the jury selection provisions require the moving
party to submit a sworn statement to support a motion to strike a
jury venire or challenge the selection processes; such a sworn
statement is not required to support a motion to inspect the
records. See id. The Supreme Court has established that the ___ ___
right of access is "unqualified." The Eighth Circuit, faced with
an appeal of the nature of Royal's, recognized that,
[a]lthough the district court's analysis is
persuasive, the district court is not free to
establish additional requirements that
defendants must meet in order to gain access
to jury selection records. The Supreme Court
has unequivocally stated that the right to
inspect these records is 'essentially
unqualified' and is conditioned only in the
-10-
manner set forth in the statute. Test v. ____
United States, 420 U.S. at 30. _____________
Alden, 776 F.2d at 775. Thus, while the district court may _____
establish reasonable procedures whereby the inspection may take
place, the district court does not have discretion to formulate
additional requirements beyond those established by the statute.
Id. ___
Nevertheless, we find that this error does not require
that we reverse Royal's conviction. Rather, we remand the case
with instructions to allow Royal access to "[t]he contents of
records or papers used by the jury commission or clerk in
connection with the jury selection process," 28 U.S.C. 1867(f),
in order to support a motion to strike the jury venire. If Royal
determines that the Amended Jury Plan violates the jury selection
procedures required under the statute, he may move for a new
trial under 28 U.S.C. 1867(a). See United States v. Marcano- ___ _____________ ________
Garc a, 622 F.2d 12, 18 (1st Cir. 1980). If the district court ______
finds that the Amended Jury Plan violates the constitutional and
statutory requirements, the court may order a new trial. 28
U.S.C. 1867(d).
B. The Evidentiary Hearing B The Evidentiary Hearing _______________________
As a remedy for the allegedly unconstitutional jury
selection process, Royal seeks an evidentiary hearing on the
merits of his claim. As we noted above, the district court
treated Royal's motion to strike the jury venire as a request for
an evidentiary hearing regarding the contents of the master jury
wheel. The district court sought from Royal a showing by a
-11-
factually supportable submission that the documents Royal sought
would have a material bearing on the jury selection challenge.
In the normal motions context, a "party seeking an
evidentiary hearing must carry a fairly heavy burden." United ______
States v. McGill, 11 F.3d 223, 225 (1st Cir. 1993). When a judge ______ ______
denies a party's request for an evidentiary hearing, we review
that determination for abuse of discretion. United States v. _____________
Jim nez Mart nez, 83 F.3d 488, 498 (1st Cir. 1996); see also _________________ ________
United States v. Garc a, 954 F.2d 12, 19 (1st Cir. 1992) (noting _____________ ______
that a criminal defendant "is not entitled to an evidentiary
hearing upon demand").
Here, the district court denied the motion for a
hearing because it found that Royal failed to show that he could
meet the third prong of the Duren test. However, Royal's motion _____
was made without the benefit of information to which he was
entitled as a matter of law. On remand, if Royal is able to use
this information on the jury selection process to show a factual
dispute that, if resolved in his favor, would entitle him to
relief, then he would be entitled to an evidentiary hearing.
C. Motion to Strike the Jury Venire C Motion to Strike the Jury Venire ________________________________
Because Royal was erroneously denied access to the jury
selection documents, his arguments in support of his challenge
are not fully developed. At this time, our consideration of the
merits of his challenge would be premature. We remand to the
district court Royal's jury selection challenge so that it may
review Royal's claim in the first instance, after a full record
-12-
has been developed. See Davidson v. Sullivan, 942 F.2d 90, 96 ___ ________ ________
(1st Cir. 1991) (adopting a similar posture). We do not pass on
the merits of Royal's claim.
II. Jury Instruction on Conspiracy Charge II. Jury Instruction on Conspiracy Charge _____________________________________
Royal contends that the district court's jury
instruction on the charge of conspiracy was in error and that
error lessened the government's burden of proof beyond a
reasonable doubt. In deciding whether the trial court submitted
erroneous instructions to the jury, we "determine whether [the
instruction] tended to confuse or mislead the jury on the
controlling issues." Brown v. Trustees of Boston Univ., 891 F.2d _____ ________________________
337, 353 (1st Cir. 1989), cert. denied, 496 U.S. 937 (1990). We ____________
consider the instructions "as a whole; portions of it are not to
be treated in isolation." Id. We find that the instructions, as ___
a whole, were not erroneous. In fact, as discussed below, the
double intent instruction may have heightened the government's
burden. Consequently, not only did the instruction not prejudice
Royal, it in fact benefitted Royal. There was no error.
The statutory provision under which Royal was charged
finds a violation of the law "[i]f two or more persons conspire
either to commit any offense against the United States, or to
defraud the United States, or any agency thereof in any manner or
for any purpose, and one or more of such persons do any act to
effect the object of the conspiracy . . . ." 18 U.S.C. 371
(1966). The district court's instruction on the charge of
conspiracy was, in pertinent part, as follows:
-13-
In order to establish that the defendant is
guilty of this charge of conspiracy, the
Government must prove these essential
elements beyond a reasonable doubt:
First: That two or more persons knowingly
conspired, combined or agreed to commit an
offense against the United States, the
purpose of which was to commit mail fraud,
and that the conspiracy was formed or
existing at or about the time alleged in the
indictment.
Second: That the defendant knowingly and
intentionally became a member of the
conspiracy.
Third: That one of the conspirators
knowingly did some act to effect the object
of the conspiracy.
* * *
The intent that the Government must prove
beyond reasonable doubt to establish the
charge of conspiracy in this case is an
intent to defraud as alleged in the
indictment. It is not necessary, however,
for the Government to prove an intent on the
part of the defendant to participate in all
parts or aspects of the conspiracy.
* * *
There are two aspects of the intent the
Government must prove beyond a reasonable
doubt.
First, the Government must prove the intent
to agree to be a member of the conspiracy.
Second, the Government must prove the
intent to participate in the commission of at
least one of the substantive offenses.
Transcript at 6-49--6-54. Royal, in his brief, sets out the
following portion of the instructions in support of his claim
that the district court erred in its instructions to the jury on
the required intent of conspiracy:
-14-
It is not required that the Government
prove, in order to establish the conspiracy
offense, that the defendant had the intent to
commit personally all of the substantive
crimes that were within the object of the
conspiracy. Stated another way, the
requirement is that the Government prove both
an intent to agree to be a member of the
conspiracy and an intent to participate
personally in the commission of at least one
of the substantive offenses.
Id. at 6-54. Reviewing this instruction, we find that the ___
district court's instructions, by using language that imposes a
higher burden on the government than the law requires, did not
prejudice Royal. Therefore, reversal of Royal's conviction is
not warranted.
Royal claims that this court has applied two different
definitions of conspiracy, and that the district court's attempt
to reconcile the conspiracy precedents led to the error of which
he now complains. Royal contends that the controlling law in
this circuit requires the government to prove that Royal intended
to enter into the agreement forming the conspiracy and intended
to commit the substantive offense. In so arguing, Royal misreads
this court's precedents.
The Supreme Court has said that "[i]n a conspiracy, two
different types of intent are generally required -- the basic
intent to agree, which is necessary to establish the existence of
the conspiracy, and the more traditional intent to effectuate the
object of the conspiracy." United States v. United States Gypsum _____________ ____________________
Co., 438 U.S. 422, 443 n.20 (1978). It is by now well-settled ___
that the government need not prove that the defendant intended
-15-
personally to commit the substantive crime or crimes that were
the object of the conspiracy. United States v. Piper, 35 F.3d _____________ _____
611, 615 (1st Cir. 1994), cert. denied, 115 S. Ct. 1118 (1995). ____________
Piper plainly refutes Royal's argument that he was entitled to an _____
instruction that he intended to commit multiple acts of mail
fraud. The district court's instruction that "the government
must prove the intent to participate in the commission of at
least one of the substantive offenses" was, if anything,
generous, and we find no error prejudicing Royal's rights.
III. Sufficiency of the Evidence III. Sufficiency of the Evidence ___________________________
Finding that the legal principles were properly
presented to the jury, we turn to Royal's argument that the
evidence was insufficient to sustain his convictions for
conspiracy and mail fraud. Royal contends first that there was
no evidence of his knowledge of the conspiracy and "virtually no
evidence" that he engaged in fraudulent conduct in furtherance of
the conspiracy to defraud the government and the students he
enrolled in the program. Royal also argues that the government
failed to prove that he had the specific intent to defraud the
Department of Education required to support his mail fraud
conviction. We first review the evidence presented to the jury.
"In assessing a challenge to the sufficiency of the
evidence, we 'review the record to determine whether the evidence
and reasonable inferences therefrom, taken as a whole and in the
light most favorable to the prosecution, would allow a rational
jury to determine beyond a reasonable doubt that the defendant
-16-
[was] guilty as charged.'" United States v. Sullivan, 85 F.3d _____________ ________
743, 747 (1st Cir. 1996) (quoting United States v. Mena-Robles, 4 _____________ ___________
F.3d 1026, 1031 (1st Cir. 1993), cert. denied sub nom., __ U.S. _____________________
__, 114 S. Ct. 1550 (1994)).
Drawing all reasonable inferences in favor of the
verdict, the jury could have found the following about Royal's
involvement in the EZ-EM conspiracy. Appellant Royal began
working for EZ-EM in December 1988. At the beginning of 1989, he
replaced Darryl Simmes as financial aid officer at EZ-EM a
position paid by ATTS. At the time he held that position,
financial aid officers were prohibited from engaging in
recruitment activities. While serving as financial aid officer
at EZ-EM Royal also engaged in recruitment activities.
For each student he enrolled in the ATTS program, Royal
received a $100-$125 commission. For this commission, Royal
would pay current students to bring in others to enroll in the
program. Royal also paid students to enroll in the program.
Royal was given a copy of the answers to provide students to help
them complete the ten lessons required upon enrollment. Royal
was aware that many of the students who signed up did not intend
to complete the ATTS program, but merely signed up to receive the
twenty dollars he paid them. Because of this, he often either
gave students copies of the answer sheets or completed the
students' tests himself. Royal gave at least two students copies
of the answers to the tractor trailer correspondence course
lessons, which were completed and sent to ATTS. Sometimes, he
-17-
instructed students to change a few of the answers so that their
test scores would not consistently equal one hundred. Although
the first set of lessons were provided when a student signed up,
thereafter the tests and sometimes the answers were mailed to
students.
A student receiving federal financial aid for the ATTS
program was required to have received no prior federal student
loans. When signing up students for financial aid, Royal
instructed those who had previous federal student loan debt not
to list the debt on their financial aid applications. Upon
Royal's arrival at EZ-EM Darryl Simmes explained to Royal the
procedure by which student loan checks would be signed, which
included paying others to assist the school in getting a
"reluctant student" to sign a check. At times, Royal paid
students twenty dollars to sign the loan checks. Royal would
sometimes explain to students that, by signing the loan checks,
they would be able to return the checks and eliminate the
indebtedness. In addition, Royal obtained the endorsing
signatures of students on the back of student loan checks that
they did not know they were endorsing or would be liable for.
The students often were not told when they entered the program
that they would have to pay up front or that they would need a
loan prior to moving on to the next level of the course work.
Royal told one student that the check was being sent back to
ATTS, but that EZ-EM needed his signature to send it back. Royal
did not inform him that he would incur debt by signing the check.
-18-
Two other students later received statements in the mail
referring to a loan that they had unknowingly taken out. Royal
accompanied recruiters whose role it was to talk the students
into signing over the loan checks to the school. These
recruiters, however, did not explain to the students that signing
the loan checks would result in their incurring debt. Royal also
witnessed Emmet Cotter, the owner of EZ-EM, using a flashlight
and later a xerox machine to trace student signatures on various
documents. At one point, Cotter also requested that Royal sign
three checks totalling $30,000 so that Royal could be paid.
Royal signed up students for the tractor trailer course
who did not have valid drivers' licenses. When this occurred,
Royal would simply make up a driver's license number. Simmes
explained to Royal that, when he recruited students, he should
leave blank responses on the applications of students who stated
that they did not have a driver's license or that they had
previously obtained financial aid. Cotter explained to Royal how
to make up a driver's license number, which Royal did when
filling out applications for those students who did not possess a
driver's license. He completed applications using false
information, including misstating an applicant's criminal record.
A. Conspiracy Charge A. Conspiracy Charge _________________
The evidence on this record sufficiently supports the
jury's guilty verdict on the conspiracy charge. The conspiracy
count charged Royal with engaging in a conspiracy "[t]o knowingly
devise and execute a scheme and artifice to obtain money by means
-19-
of false and fraudulent pretenses, representations and promises
and, for the purpose of executing and attempting to execute the
scheme," engaging in mail fraud. As will be discussed below, we
find the evidence sufficient to convict Royal of mail fraud, the
substantive offense charged in this conspiracy.
In order to prove a conspiracy under section
371, the government must prove the existence
of a conspiracy, the defendant's knowledge of
and voluntary participation in it, and the
commission of an overt act in furtherance of
the agreement. . . . The agreement need not
be proved to have been explicit, and may be
proved by circumstantial evidence.
United States v. Frankhauser, 80 F.3d 641, 653 (1st Cir. 1996) ______________ ___________
(citations omitted). To prove voluntary participation, the
government must prove that the defendant had an intent to agree
and an intent to effectuate the object of the conspiracy. See ___
Piper, 35 F.3d at 615; see also Frankhauser, 80 F.3d at 653. "To _____ ________ ___________
uphold a conviction, the court need not believe that no verdict
other than a guilty verdict could sensibly be reached, but must
only satisfy itself that the guilty verdict finds support in a
plausible rendition of the record." United States v. Echeverri, ______________ _________
982 F.2d 675, 677 (1st Cir. 1993) (citations and internal
quotations omitted).
The evidence here, taken together and drawing all
reasonable inferences therefrom, supports Royal's conviction for
conspiracy. The jury could have concluded that a conspiracy
existed whereby the employees of EZ-EM defrauded the students
whom they signed up for student loans and, in that process,
utilized the United States' mails. Furthermore, the jury could
-20-
have found that Royal intended to agree to engage in the
conspiracy and intended to effectuate the object of the
conspiracy. Based on the circumstantial evidence, including
testimony that Royal engaged in acts in furtherance of the
conspiracy, that he described to others his fraudulent acts in
furtherance of the conspiracy, and gained financially from his
own acts and those of his co-conspirators, the jury could
conclude that Royal had an intent to agree with his co-
conspirators. In addition, from the evidence that Royal paid
students to enroll in the program, paid students to sign student
loan checks, told students who signed loan checks that, by
signing the check, they would not incur debt, forged student ___
drivers' license numbers, and misstated students' past government
loan history and criminal records, the jury could have concluded
that he did so with an intent to defraud these students and used
the mails in doing so. All of these served as acts in
furtherance of the conspiracy to defraud. Here, Royal did not
merely know of his fellow employees' illegal activities. See, ___
e.g., United States v. Soto, 716 F.2d 989, 991-92 (2d Cir. 1983). ____ _____________ ____
Royal took steps necessary to effectuate the illegal conspiracy.
Accordingly, Royal's conviction on the conspiracy count is
supported by sufficient evidence.
B. Mail Fraud B. Mail Fraud __________
Second, Royal complains that his convictions on eight
counts of mail fraud were not supported by sufficient evidence.
"To prove mail . . . fraud, the government must prove, beyond a
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reasonable doubt: (1) the defendant's knowing and willing
participation in a scheme or artifice to defraud with specific
intent to defraud, and (2) the use of the mails . . . in
furtherance of the scheme." United States v. Sawyer, 85 F.3d _____________ ______
713, 723 (1st Cir. 1996). "The defendant need not instigate the
scheme so long as he willfully participates in it, with the
knowledge of its fraudulent nature and with the intent to achieve
its illicit objectives." United States v. Yefsky, 994 F.2d 885, _____________ ______
891-92 (1st Cir. 1993). A particular defendant need not have
placed a specific item into the mails. It is enough that the use
of the mails took place in the ordinary course of business,
Pereira v. United States, 347 U.S. 1, 8 (1954), or was reasonably _______ _____________
foreseeable as a result of the conspiracy participants' actions,
Yefsky, 994 F.2d at 892. ______
Here, documents in which Royal included misstated or
fraudulent information were sent to ATTS. Even if Royal did not
place those documents into the mails, it follows that, in the
ordinary course of business, admissions and federal student
financial aid applications completed by Royal would be sent to
ATTS, the information from those applications would be sent to
the Department of Education, and information from the school
would be sent to the students. It also follows that student loan
checks would be sent through the mails. The jury could have
reasonably found that it was reasonably foreseeable by Royal that
the mails would be utilized to perpetrate this scheme to defraud.
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The scheme to defraud in this case consisted of actions
on the part of EZ-EM employees to convince students to sign up
for the ATTS program, apply for federal student loans, loans for
which they sometimes did not qualify, incur debt that they did
not realize they would be obligated to repay, and to mislead some
students to believe that they would not incur debt by endorsing
the loan checks. As a result of these acts, ATTS paid
commissions to EZ-EM. From these commissions, the employees of
EZ-EM who perpetrated the acts to defraud the students were paid
salaries or commissions. The jury could reasonably have found
that these acts constituted a scheme to defraud the students EZ-
EM enrolled in ATTS.
Royal contends that the government was required to
prove that he had the specific intent to defraud the United
States Department of Education. Although the indictment against
Royal charges him with "a scheme to defraud the United States
Department of Education, and the students and prospective
students of ATTS," the government was not required to prove that
he intended to defraud the Department of Education specifically.
The statute requires only that there be a scheme to defraud, see ___
18 U.S.C. 1341, and we have required only a showing of a
specific intent to defraud. United States v. Sawyer, 85 F.3d _____________ ______
713, 723 (1st Cir. 1996). The jury could have reasonably found
that Royal had a specific intent to engage in a scheme to defraud
the students. This is all that is required. Royal's conviction
on the mail fraud counts is supported by sufficient evidence.
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Because the government met its burden by showing a scheme to
defraud the students, we do not address whether it also proved
that Royal had a specific intent to defraud the Department of
Education.
IV. Application of Sentencing Guidelines IV. Application of Sentencing Guidelines ____________________________________
Royal next directs several challenges at the district
court's application of the United States Sentencing Guidelines.
We review a district court's factual determinations under the
guidelines for clear error and legal conclusions de novo. United _______ ______
States v. Balogun, 989 F.2d 20, 22 (1st Cir. 1993). We address ______ _______
each challenge in turn.
A. Mitigating Role -- Section 3B1.2 A. Mitigating Role -- Section 3B1.2 ________________________________
Royal contends that his role in the commission of this
conspiracy was of such a lesser degree of culpability than his
co-conspirators' that the district court erroneously denied his
motion for a downward departure. "We first note that defendants
are not automatically entitled to a downward adjustment, whatever
their role in the crime." Balogun, 989 F.2d at 22-23. The _______
Sentencing Guidelines allow a four level departure for one who is
a minimal participant, meant to apply to those "defendants who
are plainly among the least culpable of those involved in the
conduct of a group." U.S.S.G. 3B1.2, application note 1. This
departure is meant to be used infrequently. U.S.S.G. 3B1.2,
application note 2. The Guidelines allow a two level departure
for one who is a minor participant in the criminal activity; this
departure is meant to apply to "any participant who is less
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culpable than most other participants, but whose role could not
be described as minimal." U.S.S.G. 3B1.2, application note 3.
Where the defendant's conduct falls between these two levels of
culpability, a downward departure of three levels may be awarded.
U.S.S.G. 3B1.2.
"The defendant has the burden of showing that he is
entitled to a reduction in his offense level under 3B1.2 . . .
. On appeal, the defendant must establish that the district
court's determination was clearly erroneous." United States v. _____________
Cartagena-Carrasquillo, 70 F.3d 706, 716 (1st Cir. 1995). The ______________________
record on which the district court based its factual
determination of Royal's role in this offense supports the
finding that Royal was neither a minimal nor a minor participant.
Royal's role in the EZ-EM operation was integral. He recruited
students for a program for which EZ-EM, and in turn Royal, would
receive monetary commissions. Royal falsified information on
school applications and federal student loan applications. He
was responsible for obtaining student signatures endorsing
student loan checks. Indeed, Royal even misled some into
believing that by endorsing the check they would be relieved of
any indebtedness. All of these acts were integral to the scheme
to defraud the students and the co-conspirators gained
financially as a result. The district court also was entitled to
find that Royal had knowledge of and intent to further the scope
and all aspects of the conspiracy. We cannot find that Royal
played a less significant role or that he was less culpable than
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his co-conspirators in effecting the scheme to defraud. See, ___
e.g., Santiago-Gonz lez, 66 F.3d 3, 8 (1st Cir. 1995). Based on ____ _________________
these findings, we cannot say that the district court's
sentencing determination was clearly erroneous.
Royal compares his situation to cases in which
conspirators were granted downward departures. In those cases,
the sentencing court determined that the defendant's role in the
commission of the crime was minimal or minor. See, e.g., United ___ ____ ______
States v. Mu oz, 36 F.3d 1229, 1238 (1st Cir. 1994), cert. denied ______ _____ ____________
sub nom., __ U.S. __, 115 S. Ct. 1164 (1995); United States v. _________ _____________
Innamorati, 996 F.2d 456, 490 (1st Cir. 1993), cert. denied, __________ _____________
510 U.S. 1120 (1994); United States v. De La Cruz, 996 F.2d 1307, _____________ __________
1314-15 (1st Cir.), cert. denied, 510 U.S. 936 (1993); United _____________ ______
States v. DiIorio, 948 F.2d 1, 3-6 (1st Cir. 1991). Royal's ______ _______
burden is a heavy one and although he may consider his role in
the offense more comparable to that found in the cases he cites,
the district court found otherwise. "[W]here 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. Santiago-Gonz lez, 66 F.3d at 7. _____________ _________________
Royal claims that the only evidence offered against him at trial
was that "he worked in the Niagara Falls office of ATTS and met
some of the government's witnesses when they visited the office."
Royal's attempt to put his own spin on the facts does not render
the district court's determination clearly erroneous. Each of
Royal's acts was an integral part of the scheme to defraud and
-26-
the sentencing court was not clearly erroneous in denying Royal's
requested downward departure under the guidelines.
B. More than Minimal Planning B. More than Minimal Planning __________________________
Royal complains that the district court improperly
adjusted upward two levels because Royal's acts and role in the
offense required more than minimal planning. See U.S.S.G. ___
2F1.1(b)(2)(A). Royal maintains that the trial testimony shows
that he was "merely an office attendant" at EZ-EM and that he was
not present when the "principal planners" met to discuss the
scheme.
The Commentary to section 2F1.1 refers the reader to
the definition of "more than minimal planning" set forth in the
Commentary to section 1B1.1. There, "more than minimal planning"
is defined as "more planning than typical for commission of the
offense in a simple form." U.S.S.G. 1B1.1, application note
1(f). "'More than minimal planning' is deemed present in any
case involving repeated acts over a period of time, unless it is
clear that each instance was purely opportune." Id. ___
"[W]e are not inclined to reverse a finding of more
than minimal planning unless the evidence compels the conclusion
that the defendant's actions were purely opportune or 'spur of
the moment.'" United States v. Brandon, 17 F.3d 409, 459 (1st _____________ _______
Cir.), cert. denied sub nom., __ U.S. __, 115 S. Ct. 80 (1994). ______________________
We find that here, the complex scheme to defraud and Royal's
conduct in furtherance of it were not purely opportune and,
therefore, meet the definition of "more than minimal planning."
-27-
The trial testimony demonstrates that Royal engaged in several
repeated fraudulent acts in furtherance of this conspiracy. The
sentencing court was entitled to find, under the definition
provided by the guidelines, that Royal's repeated acts in the
course of this conspiracy required more than minimal planning.
The district court did not err in making a departure upward to
take this into account.
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V. Restitution Order V. Restitution Order _________________
Royal makes two arguments challenging the validity of
the district court's restitution order. Royal contends that the
order of restitution in the amount of $30,000 lacked legal
support because it attributes more losses to him than those
caused by the counts for which he was convicted. Royal further
maintains that the order was improper because he is unable to
repay such a large amount. The district court has the authority
to impose restitution under Title 18 of the United States Code,
sections 3663 and 3664.
Royal's first contention amounts to the following.
Because his convictions included four counts of mail fraud
relating to the mailing of only four loan checks, he should only
be required to pay restitution in the total amount of those
checks, $9870. In the alternative, Royal argues that, if his
conviction for conspiracy is included in the restitution order,
the total loss reasonably foreseeable to him would be the amount
of checks that passed through EZ-EM during the time he worked at
the Niagara Falls operation. Royal claims this amount would be
no more than $17,272.50. Based on this analysis, Royal contends
that the restitution order of $30,000 was excessive.
At the time of Royal's criminal acts, a sentencing
court could impose restitution only for losses caused by the
defendant's offense or offenses. 18 U.S.C. 3663; see also ________
Hughey v. United States, 495 U.S. 411, 414 (1990); United States ______ _____________ _____________
v. Camuti, 78 F.3d 738, 746 (1st Cir. 1996). Although this ______
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authority under the statute was subsequently broadened by
congressional amendment to require restitution to include harm
resulting from "the defendant's criminal conduct in the course of
the scheme, conspiracy, or pattern," see 18 U.S.C. 3663(a)(2) ___
(Supp. 1996), the amendments do not apply retroactively. See ___
Camuti, 78 F.3d at 746. Accordingly, under the applicable law, ______
Royal is correct in arguing that he may be ordered to make
restitution only for the "loss caused by the specific conduct
that is the basis of the offense of conviction." Hughey, 495 ______
U.S. at 413.
We have previously held that restitution may be imposed
for a mail fraud conviction "only if it stems from a transaction
linked to a specific mailing." Camuti, 78 F.3d at 746. While ______
the amount attributable to the specific mailings for which Royal
was convicted may amount to only $9870, Royal was also convicted
of conspiracy to defraud the Department of Education and the
students of ATTS. In the sentencing context, one convicted of
conspiracy may be held liable for the acts of his co-conspirators
in furtherance of the conspiracy that are reasonably foreseeable,
as the Sentencing Guidelines explicitly provide. U.S.S.G.
1b1.3(a)(1)(B); see also United States v. O'Connor, 28 F.3d ________ _____________ ________
218, 222 (1st Cir. 1994). Thus, the district court may order
Royal to pay restitution not only for an amount equivalent to the
four student loan checks involved in the mail fraud counts, but
also for any other reasonably foreseeable loss caused by Royal or
his co-conspirators acting in furtherance of this conspiracy.
-30-
Royal has argued that the district court improperly
based its loss determination on defaults caused by acts that
occurred in 1988, prior to the time in the last one or two months
of 1988 when he joined the Niagara Falls conspiracy. It is true
that "[b]y definition, acts that occurred before a defendant
enters a conspiracy cannot be foreseeable." United States v. ______________
Balogun, 989 F.2d 20, 22 (1st Cir. 1993). And upon a review of _______
the sentencing hearing transcript, it indeed appears unclear
whether the sentencing court took into account acts that occurred
prior to Royal's involvement. But the record also indicates that
Royal waived this objection in the district court, and any
hypothetical error in the calculation of loss does not rise to
the level of plain error. See United States v. Winter, 70 F.3d ___ _____________ ______
655, 659 (1st Cir. 1995), cert. denied, __ U.S. __, 116 S. Ct. _____________
1366 (1996).
Although Royal extensively challenged the government's
calculation of the reasonably foreseeable loss attributable to
him, he never argued that the loss calculation improperly
included losses connected with acts prior to his initial
involvement. Having failed to raise this objection below, Royal
is now bound to demonstrate that any error affected "substantial
rights." Id. But this seems doubtful -- the district court set ___
the total amount of restitution at $500,000, but ordered partial
restitution of only $30,000 because of Royal's lack of financial
resources. Even if the court had excluded all losses
attributable to acts from 1988, it seems implausible that the
-31-
court's total restitution figure would have dropped from $500,000
to less than $30,000. Because any possible error here falls well
short of the standard for considering waived claims, we decline
to remand the restitution determination.
Finally, Royal's contention that the district court's
restitution order is in error because Royal lacks the financial
resources necessary to repay the amount imposed is without merit.
We have noted in the past that, although a court must consider
the financial situation of the defendant when imposing
restitution, see 18 U.S.C. 3664(a), it need not make specific ___
findings regarding the defendant's finances "so long as the
record on appeal reveals that the judge made implicit findings or
otherwise adequately evinced his consideration of those factors."
United States v. Savoie, 985 F.2d 612, 618 (1st Cir. 1993). The _____________ ______
record adequately reflects the district court's consideration of
Royal's financial ability to make restitution. Indeed, the
district court lowered the amount of restitution from $500,000 to
$30,000 in light of Royal's financial circumstances.
Furthermore, the court noted that if Royal is unable to make
restitution in full during the course of his prison employment
and thereafter during the period of his parole, he has no
obligation. "Although we agree that the evidence in the
presentence report may not be able to support a finding that
[Royal] has the ability to pay restitution in that amount, the
statute does not require such a finding; it requires only that
the district court consider the defendant's financial resource as
-32-
a factor in arriving at the figure." United States v. Newman, 49 _____________ ______
F.3d 1, 10 (1st Cir. 1995). We find that the sentencing court
did not abuse its discretion by imposing restitution here.
CONCLUSION CONCLUSION
Based on the foregoing considerations, we affirm in affirm ______
part and reverse and remand in part. reverse remand _______ ______
So ordered. __________
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