United States v. Royal

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.

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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

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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

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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

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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

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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

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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

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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:

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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:

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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

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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

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[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

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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.

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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

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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

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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.

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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

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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

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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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