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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 19, 2003 Decided October 24, 2003
No. 02-3085
UNITED STATES OF AMERICA,
APPELLEE
v.
STEVEN M. BOLLA,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 02cr00196–01)
Amy B. Jackson argued the cause for appellant. With her
on the briefs were Robert P. Trout and John M. Fedders.
David B. Goodhand, Assistant U.S. Attorney, argued the
cause for appellee. On the brief were Roscoe C. Howard, Jr.,
U.S. Attorney, and John R. Fisher, Roy W. McLeese III,
Craig S. Iscoe, and Patricia A. Heffernan, Assistant U.S.
Attorneys.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: ROGERS and ROBERTS, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge ROBERTS.
ROBERTS, Circuit Judge: Under the Sentencing Guidelines,
punishment for certain economic crimes depends in part on
the value of the accompanying loss. Appellant Stephen M.
Bolla disputes the district court’s computation of the loss
associated with his filing a false Statement of Financial
Condition in connection with a Securities and Exchange Com-
mission (SEC) civil action. Concluding that Bolla lied on his
financial statement to evade the maximum penalty possible in
the SEC action, the district court found an intended loss of
$90,000, and enhanced Bolla’s sentence accordingly. Bolla
argues that the district court did not have an adequate basis
for concluding that he intended such a loss, and should have
relied on actual loss instead — alleged to be a lower amount
yielding less of an enhancement. We conclude that Bolla
failed to preserve below the objection to the use of intended
loss that he now seeks to present, and hold that the district
court’s use of intended loss was not plain error. We accord-
ingly affirm the judgment.
I. Background
In the fall of 1999, Bolla was under investigation by the
SEC for violating federal securities laws in connection with
his role as an investment adviser at Trustcap Financial
(Trustcap). He submitted a sworn financial statement dated
November 5, 1999 to the SEC, purporting to reflect his
financial condition as of October 1, 1999. Bolla filed this
statement in anticipation of a settlement agreement with the
SEC.
The financial statement required Bolla to disclose, inter
alia, the following: (1) all assets that he owned, possessed, or
controlled, regardless of whether legal title was held by an
intermediary; (2) all money transfers of $1000 or more in the
last five years; (3) all money or other income earned on a
monthly basis; and (4) all securities or commodities accounts
he controlled or in which he had a beneficial interest. Bolla
completed the financial statement and, as required, acknowl-
edged that any material misstatements or omissions would be
punishable under 18 U.S.C. § 1001. That provision makes it
3
a crime, in connection with any matter within the jurisdiction
of the Federal Government, to ‘‘knowingly and willfully TTT
make[ ] any materially false, fictitious, or fraudulent state-
ment or representation.’’ 18 U.S.C. § 1001(a)(2). On the
financial statement, Bolla listed $21,345 in cash and $8000
worth of furniture and household goods. He failed, however,
to disclose $941,228 in cash and securities that he had placed
in his wife’s brokerage account, which he controlled through a
general power of attorney. He also failed to disclose the full
amount of his monthly gross income, numerous cash trans-
fers, other accounts that he controlled at various financial
institutions, and the power of attorney he held with respect to
his wife’s brokerage account.
On February 5, 2000, Bolla submitted a sworn declaration,
under penalty of perjury, in support of his financial state-
ment. The declaration confirmed that the financial statement
accurately reflected his financial condition as of October 1,
1999.
On May 30, 2000, the SEC filed its anticipated complaint
against Bolla in the United States District Court for the
District of Columbia, alleging that he had violated federal
securities laws in connection with his job at Trustcap. Bolla
and the SEC entered into a settlement agreement to resolve
the civil complaint. The allegations in the complaint carried a
maximum penalty of $100,000 per violation. Based on his
sworn financial statement, however, the SEC determined that
Bolla had a negative net worth and sought a penalty of only
$10,000. The district court, although troubled by the low
amount of the penalty, accepted the settlement agreement
after the SEC explained that Bolla’s financial statement
showed an inability to pay a higher amount.
Bolla subsequently pled guilty to the charge of making a
materially false, fictitious, or fraudulent statement to the
SEC by filing the false financial statement in violation of 18
U.S.C. § 1001. The district court sentenced Bolla pursuant
to U.S.S.G. § 2F1.1.1 Under that Guideline, the district court
1The district court originally sentenced Bolla under U.S.S.G.
§ 2B1.1 of the November 1, 2002 Sentencing Guidelines, which was
4
must calculate the amount of loss involved to determine the
proper sentence. The Application Notes to the Guideline
explain that ‘‘if an intended loss that the defendant was
attempting to inflict can be determined, this figure will be
used if it is greater than the actual loss.’’ U.S.S.G. § 2F1.1
application note 8. The district court found that Bolla hid his
assets to evade the maximum possible fine he faced in the
SEC proceeding — $100,000. The court determined the
intended loss to be $90,000 — the $100,000 Bolla sought to
evade, less the $10,000 penalty he paid. Based on this loss
amount, the district court sentenced Bolla to twelve months in
prison,2 and ordered him to pay a $20,000 fine and to make
restitution to the SEC in the amount of $90,000. Bolla
appeals the sentence.
II. Analysis
A. Intended Loss
Bolla argues that the government failed to prove the
amount of intended loss by a preponderance of the evidence,
and that the district court should have used an actual loss
figure, because the intended loss could not be determined.
in effect as of the date of sentencing. U.S.S.G. § 1B1.11(a) requires
courts to apply the Guidelines in effect at the time of sentencing.
Under U.S.S.G. § 1B1.11(b)(1), however, courts must apply the
Guidelines in effect on the date the offense was committed if using
the Guidelines in effect at the time of sentencing would yield a
longer sentence. U.S.S.G. § 2B1.1 yielded an offense enhancement
of eight. The Guideline in effect at the time of Bolla’s offense,
U.S.S.G. § 2F1.1(b), established an offense enhancement of six.
Thus, the Guideline used in the sentencing hearing produced a
longer sentence than the one in effect at the time of the offense.
The district court, therefore, conducted a second sentencing hearing
and properly applied U.S.S.G. § 2F1.1.
2 The loss amount of $90,000 yielded an offense enhancement of
six, which (combined with the base offense level of six and a two
point downward adjustment for acceptance of responsibility) provid-
ed an adjusted offense level of ten. An adjusted offense level of ten
corresponds to a six to twelve month sentence for a Category I
(first time) offender. See U.S.S.G. Sentencing Table.
5
He contends that there was no evidence before the court that
he intended any particular loss — that ‘‘the government has
failed to come forward with any evidence of what Bolla
actually had in mind,’’ Reply Br. at 11 — and that the court
erred in filling that gap by inferring that he intended to avoid
the maximum penalty to which he was subject.
Bolla did not raise this objection below. See Fed. R. Crim.
P. 51. The sentencing transcript shows that Bolla’s counsel
primarily challenged the appropriate calculation of an actual
loss figure and never advanced the argument that the evi-
dence failed to support the court’s finding that he intended to
avoid the maximum possible penalty of $100,000. This de-
spite the fact that the government’s sentencing memorandum
proposed using that figure, and the district court began the
sentencing hearing with the following:
It is my conclusion that the defendant intended to con-
ceal as much of his net worth as possible as might be
[vulnerable] to the maximum penalty that the SEC could
levy and that sum was $100,000. So, that is the loss
figure that I am tentatively prepared to utilize unless
either of you have authority which tells me that I must
utilize some other figure.
Sentencing Tr. at 2–3. Counsel responded with an analysis of
the calculation of actual loss, but never objected to the district
court’s theory of intended loss. See id. at 3–9. In fact,
counsel stated later in the hearing, ‘‘I did not address the
intended loss. TTT How can intended loss be different than
actual loss? You can’t intend something that is not actually
going to happen TTTT’’ Id. at 12. The district court replied
‘‘[c]ertainly you can,’’ and counsel responded ‘‘I defer to Your
Honor’s judgment in that then.’’ Id. at 12–13; see United
States v. Studevent, 116 F.3d 1559, 1563 (D.C. Cir. 1997)
(explaining that intended loss is not ‘‘limited to an amount
that was possible or likely’’).
Counsel then stated:
[O]ne of the things that has been scoffed at in this case is
what was his intention. The government has never
6
asked him that through the year and a half of investiga-
tion. Mr. Bolla, and while it is scoffed at, says that he
never focused on what the fine was going to be, he was
so overburden[ed] with the process. And if that is his
burden because of recklessness then that would be Your
Honor’s finding.
Sentencing Tr. at 13. Nothing in this statement can be read
as an objection preserving the argument raised on appeal —
that the district court may not infer from a defendant’s
concealment of large amounts of assets an intent to avoid the
maximum penalty to which he is subject. ‘‘An objection is not
properly raised if it is couched in terms too general to have
alerted the trial court to the substance of the [appellant’s]
point.’’ United States v. Breedlove, 204 F.3d 267, 270 (D.C.
Cir. 2000).
Bolla’s claim may therefore be considered only under a
plain error standard of review. See Fed. R. Crim. P. 52(b)
(‘‘A plain error that affects substantial rights may be consid-
ered even though it was not brought to the court’s atten-
tion.’’); Breedlove, 204 F.3d at 271. The Supreme Court
recently confirmed that ‘‘ ‘[u]nder that test, before an appel-
late court can correct an error not raised at trial, there must
be (1) error, (2) that is plain, and (3) that affects substantial
rights.’ ’’ United States v. Cotton, 535 U.S. 625, 631 (2002)
(quoting Johnson v. United States, 520 U.S. 461, 466–67
(1997); citation and other internal quotation marks omitted).
‘‘ ‘If all three conditions are met, an appellate court may then
exercise its discretion to notice a forfeited error, but only if
(4) the error seriously affect[s] the fairness, integrity, or
public reputation of judicial proceedings.’ ’’ Id. at 631–32
(same; alteration in original). In this case, it is only neces-
sary to address whether the alleged error was ‘‘plain.’’
That question ‘‘is assessed from the perspective of the trial
court.’’ United States v. Saro, 24 F.3d 283, 286 (D.C. Cir.
1994). Although our application of plain error review in the
sentencing context allows a somewhat relaxed standard for
showing prejudice under the third prong of the plain error
test, see id. at 288 (‘‘[T]he burden of persuasion in showing
‘prejudice’ should be somewhat lighter in the sentencing
7
context.’’), Bolla must still satisfy a difficult standard in order
to show that the alleged error was ‘‘plain’’ or ‘‘obvious.’’ He
must show the error to be ‘‘so ‘plain’ the trial judge and
prosecutor were derelict in countenancing it.’’ Id. at 286
(quoting United States v. Frady, 456 U.S. 152, 163 (1982))
(internal quotation marks omitted); see United States v.
Weaver, 281 F.3d 228, 232 (D.C. Cir. 2002) (‘‘Plain error
assumes that the court should have intervened sua sponte
because the error was so obvious.’’).
The alleged error in this case was the district court’s
finding of intended loss, based on the inference that Bolla
concealed his assets with the intent to avoid the maximum
possible penalty. The district court was certainly not ‘‘dere-
lict’’ in inferring that Bolla concealed assets to avoid a penal-
ty, and thereby inflict loss on the government. Intent to
inflict loss may be inferred from the concealment of large
amounts of assets. See United States v. Feldman, 338 F.3d
212, 223–24 (3d Cir. 2003); see also United States v. Schaffer,
183 F.3d 833, 843 (D.C. Cir. 1999) (jury may infer intent
based upon circumstances surrounding a defendant’s actions).
Here, the plea agreement and the government’s proffer of
evidence reveal that Bolla failed to disclose (1) the $941,228
transferred to his wife’s brokerage account, which he con-
trolled, (2) more than 100 bank transfers of $1000 or more, (3)
six bank transfers of more than $75,000, (4) gross income of
approximately $104,500 per month, by understating his
monthly income as ‘‘ ‘various’ commissions totaling $11,045
per month,’’ (5) control over a checking account, and (6) the
power of attorney over his wife’s brokerage account. State-
ment of the Offense at 2–3. In accordance with his plea
agreement, Bolla affirmed the veracity of all facts in the
Statement of the Offense. ‘‘Absent indications TTT that a
sentencing court committed obvious error by relying on find-
ings that are ‘internally contradictory, wildly implausible, or
in direct conflict with evidence presented at trial,’ uncontest-
ed contentions TTT are considered to be supported by indicia
of probable reliability and are sufficient to support factual
findings for sentencing purposes.’’ United States v. Booze,
108 F.3d 378, 381–82 (D.C. Cir. 1997) (quoting Saro, 24 F.3d
at 291).
8
The only evidence contrary to the district court’s finding of
intent was Bolla’s own explanation. Bolla’s counsel explained
that Bolla ‘‘was not focused on the fine,’’ but filed the false
financial statement out of frustration with the length of the
SEC investigation, dissatisfaction with ‘‘being given limited
counsel by a junior associate,’’ and ‘‘his own sloth and anger.’’
Letter from John Fedders to George Neal, Jr., Aug. 5, 2002,
quoted in Gov’t Sentencing Mem. at 8. It is unclear how
lying about assets responds to any of these sources of frustra-
tion, but the district court was plainly entitled to dismiss
Bolla’s explanation. In United States v. Feldman, one of our
sister circuits refused to credit the appellant’s explanation for
hiding assets in a bankruptcy proceeding. 338 F.3d at 223.
The court explained that ‘‘it is appropriate for the [d]istrict
[c]ourt to consider the reason why most people would conceal
assets,’’ concluding that ‘‘it is simply unbelievable that [the
appellant] would hide over a million dollars in assets only to
achieve a faster discharge.’’ Id. The district court, in the
instant case, was not required to credit Bolla’s self-serving
explanation of his motives.
Nor was the district court ‘‘derelict’’ in relying on the
maximum penalty Bolla faced in determining the amount of
the loss intended. There is certainly nothing ‘‘wildly implau-
sible’’ in inferring that a defendant who conceals assets in the
face of a penalty proceeding does so to avoid the penalty to
which he is subject — and as much of it as possible. Booze,
108 F.3d at 381–82. Bolla’s claim that ‘‘he was not focused on
the fine’’ makes it difficult for him to suggest that he only
intended to avoid some lesser amount, which he expected the
SEC to impose. The Third Circuit recently upheld much the
same approach in the bankruptcy context in Feldman. We
need not decide if this approach is correct; we need only
conclude, as we do, that the district court was plainly not
‘‘derelict in countenancing it.’’ Saro, 24 F.3d at 286.
B. Restitution
Bolla states that ‘‘[t]he flawed calculation also affected the
calculation of the restitution.’’ Appellant’s Br. at 16 n.7. The
only other reference to this argument appears in the final
9
sentence of his brief: ‘‘The restitution amount, which was
based upon the amount of the loss, should be appropriately
adjusted.’’ Id. at 22. These two sentences provide no addi-
tional basis for attributing error to the district court’s deter-
mination of the amount of restitution, and accordingly we
reject Bolla’s challenge to that determination.
III. Conclusion
For the foregoing reasons, the judgment is affirmed.