United States v. Stein

United States Court of Appeals
For the First Circuit

No. 99-1983

UNITED STATES,

Appellee,

v.

CHERYL B. STEIN,

Defendant, Appellant.

No. 99-1985

UNITED STATES

Appellee,

v.

WENDY B. GOLENBOCK,

Defendant, Appellant.

No. 99-1987

UNITED STATES,

Appellee,

v.

SUSAN OTIS,

Defendant, Appellant.
 APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Selya, Circuit Judge,

Campbell, Senior Circuit Judge,

and Lipez, Circuit Judge.

Kevin S. Nixon for appellant Cheryl B. Stein.
John J.E. Markham, II with whom Markham & Read was on brief
for appellant Wendy B. Golenbock.
Richard D. Biggs with whom Marcia G. Shein and the Law
Office of Shein & Biggs were on brief for appellant Susan Otis.
Mark J. Balthazard, Assistant U.S. Attorney, with whom
Donald K. Stern, United States Attorney, was on brief for
appellee.

November 28, 2000
 CAMPBELL, Senior Circuit Judge. Defendant-appellants

Wendy B. Golenbock, Cheryl B. Stein and Susan B. Otis were each

charged in an indictment with one count of bankruptcy fraud in

violation of 18 U.S.C. § 152 and one count of conspiracy to

commit bankruptcy fraud in violation of 18 U.S.C. § 371. The

charges arose from their alleged concealment of Golenbock’s and

Stein’s ownership interest in a summer home in Wellfleet,

Massachusetts, which they placed in Otis’s name in trust during

bankruptcy proceedings. After a jury trial in the district

court, Golenbock and Stein were convicted on both counts, and

Otis was convicted on the conspiracy count. We affirm the

convictions and sentences.

I.

At the time of the bankruptcy proceedings, Golenbock

and Otis were lawyers.1 Golenbock and Stein worked and lived

together in Weston, and were, at times, in the business of real

estate development and management. Otis was a close personal

friend of both.

A. The Wellfleet property

On October 5, 1982, Golenbock and a friend named Ellen

Ratner purchased a parcel of land on Bond Street in South

1Stein is now also a lawyer.

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Wellfleet, Massachusetts (“the Wellfleet property”) for $18,000.2

To build a house on the property, they borrowed $56,700 from the

Cape Cod Five Cent Savings Bank (“Cape Cod Five”), secured by a

mortgage on the property. In 1986, Ratner sold her interest in

the Wellfleet property to Golenbock and Stein for $34,050. The

Cape Cod Five was notified of the transfer, and released Ratner

from the mortgage. Shortly thereafter, Golenbock and Stein

obtained an additional $50,000 line of credit from the Cape Cod

Five, secured by a second mortgage on the Wellfleet property.

Golenbock and Stein used the newly-built house on the Wellfleet

property as a vacation home, and sometimes rented it out.

B. The transfer of the Wellfleet property to Otis

On September 25, 1990, Golenbock and Stein filed

separate Chapter 11 bankruptcy petitions. They did not list the

Wellfleet property as an asset in their bankruptcy schedules or

in their statement of financial affairs. Neither did Golenbock

and Stein list the Cape Cod Five as a creditor of theirs, state

that they had conveyed the Wellfleet property to anyone else in

the year before bankruptcy, nor identify the Wellfleet property

as being held or managed for someone else. Stein did not

disclose an ongoing civil action she had brought relating to a

2Ratner was not involved in this case.

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hot tub she and Golenbock had had installed at the Wellfleet

property.

Two days after Golenbock and Stein filed their

bankruptcy petitions, Golenbock gave Otis a $15,000 check. On

October 4, 1990, a deed was filed with the Barnstable Country

Registry of Deeds conveying the Wellfleet property from

Golenbock and Stein to Otis (under the name of Alekman) as sole

trustee of the B.Z. Realty Trust, for a stated consideration of

$108,000. The deed on its face was dated and notarized December

31, 1989. Stein testified at trial that the deed was signed in

Andover, Massachusetts -- in Essex County -- on December 31,

1989, but the deed reflects that the signatures were notarized

in Middlesex County, where Golenbock and Stein both lived.

At the same time as the deed was recorded, a

Declaration of Trust for the B.Z. Realty Trust was also

recorded. Two dates appeared on the Declaration as indicating

when it was executed: August 1, 1989, and August 1, 1990.

Despite the stated consideration of $108,000, Otis did

not pay any such sum to Golenbock and Stein. The mortgagor,

Cape Cod Five, was not notified of the transaction. Golenbock

and Stein continued to make regular mortgage and line of credit

payments, often by postal money orders, bank checks or cash.

The postal money orders and bank checks were obtained by

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employees of Golenbock and Stein, at their instruction and using

cash provided by them. Later payments were made using accounts

controlled by Golenbock and Stein. They made all the payments

until the property was sold in June 1996.

In addition to paying the mortgage, Golenbock and Stein

also paid the telephone, electric, and trash pickup bills for

the Wellfleet property while it was in Otis’s name in trust.

The accounts for those bills were changed to Otis’s name

beginning in 1991. However, the mailing address for the bills

always remained Golenbock and Stein’s post office box, which

Otis did not use. Mail sent to the Wellfleet address was routed

to Golenbock’s and Stein’s offices.

Golenbock and Stein also handled and paid for the

insurance on the property after the title was transferred. In

June, 1991, a year and a half after the date on the deed to

Otis, and nine months after the deed was recorded, Golenbock and

Stein applied for new homeowner’s insurance for the property in

their names only, with no reference to Otis or the Trust. The

insurance for the Wellfleet property was designated for personal

use, not commercial use. In July, 1991, they had Otis and the

Trust added to the policy as additional insureds. Only

Golenbock and Stein, however, were insured for the contents of

the Wellfleet property and for the loss of use. All the

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payments made for the Wellfleet property expenses were paid for

or directed to be paid by Golenbock and Stein and their

handwriting appears on checks and bills relating to those

expenses.

Only Golenbock and Stein dealt with the real estate

broker for the rental of the property. The income tax forms for

the rental were mailed only to Golenbock and Stein’s post office

box. The tax form for the rent for the year 1990 was issued to

Golenbock. The name was changed to Otis in 1991, at Golenbock’s

direction. Rental income checks from the real estate broker

were payable to Otis in 1991, but were endorsed by Golenbock.

C. Golenbock and Stein’s bankruptcy proceedings

In November, 1990, several weeks after filing their

bankruptcy petitions, Golenbock testified under oath at a

bankruptcy meeting of creditors (“341 meeting”) that she had not

conveyed any property within the prior year to an insider or

“good friend.” She did not include the Cape Cod Five when

listing the banks to which she owed money. Stein attended a 341

meeting in 1990, and both Golenbock and Stein attended another

341 meeting in June, 1992. At none of those meetings did either

disclose to the representative of the U.S. Trustee’s Office, who

was conducting their examinations, an ownership interest in the

Wellfleet property, its transfer in the year before the

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bankruptcy, or the existence of the Cape Cod Five debt.

Golenbock and Stein’s regular reports and cash flow statements

submitted to the U.S. Trustee’s Office did not reflect the

payments they were making in connection with the Wellfleet

property expenses.

In November 1991, Golenbock testified in a bankruptcy

deposition conducted by one of her creditors. After being

confronted with the creditor’s knowledge of her prior interest

in the Wellfleet property, she admitted that she had owned it.

She stated, however, that it had been sold in 1989 to Otis.

Golenbock further testified that she had transferred the

property because she could not pay the mortgage.

In 1994, after Golenbock and Stein’s bankruptcy cases

had been converted to Chapter 7 liquidations, another 341

meeting was conducted, this time by their appointed bankruptcy

trustee. Both Stein and Golenbock testified under oath at that

meeting. They affirmed that the only property they still owned

was their primary residence, and did not disclose any interest

in the Wellfleet property. The trustee only learned about their

involvement in the Wellfleet property in 1997, when he heard it

from the U.S. Trustee’s Office.

In April 1995, Golenbock and Stein received their

bankruptcy discharges. By August 1995, while title to the

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Wellfleet property was still in Otis’s name in trust, Golenbock

and Stein resumed making the mortgage payments directly from

Golenbock’s bank account. In March, 1996, both bankruptcy cases

were closed.

D. The sale of the Wellfleet property

In early 1996, Golenbock contacted a real estate broker

to list the Wellfleet property for sale. Golenbock and Stein,

not Otis, dealt directly with the real estate broker during the

sale process. In June 1996, the Wellfleet property was sold for

$175,000, and a check for $65,906.66, most of the profits, was

issued to Otis. She endorsed it to Golenbock on behalf of Max

Golenbock-Stein, Golenbock and Stein’s six-year-old son.

Although the funds were deposited in Golenbock’s client

trust account in Max’s name, the account was used for Golenbock

and Stein’s personal and business purposes. For example, $5,100

was paid from the account to Stein for “New England School of

Law,” which Stein was attending, and nearly $10,000 in checks

were paid from the account to Golenbock personally, for no

stated purpose. The account was also used to deposit a $27,500

settlement check received from an insurance company for one of

Golenbock’s law clients, and to issue the $25,000 disbursement

check to the client. The rest of the profits from the sale, in

the form of two checks totaling over $8,000, were issued to Otis

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by the real estate broker. Otis also endorsed those over and

they were deposited into Golenbock’s master client account.

E. The B.B.O. testimony

Before any criminal charges were filed against

Golenbock, the Massachusetts Board of Bar Overseers (B.B.O.)

initiated an investigation of her professional conduct with

regard to a number of matters. On December 21, 1995, Golenbock

testified in the first of seven depositions before the

Massachusetts Board of Bar Overseers. She did not know of any

potential criminal investigation at that time, and answered

questions about clients she had represented and the handling of

funds, as well as her bankruptcy filing. There were no

references to the Wellfleet property in this deposition.

On or around January 11, 1996, before the next

scheduled deposition, the B.B.O. notified Golenbock by letter

that it was concerned about certain aspects of her bankruptcy

proceeding. This letter did not mention the Wellfleet property.

Golenbock’s attorney became concerned about the possibility of

a criminal proceeding, and advised her to assert her Fifth

Amendment privilege. On April 25, 1996, Golenbock again

appeared before the B.B.O. Again, none of the questions

referred to the Wellfleet property. Golenbock declined to

answer any questions, asserting her Fifth Amendment privilege.

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 Golenbock then changed attorneys, retaining Edward

Barshak for his expertise in B.B.O. practice. Barshak advised

her as follows, as recounted in his affidavit:

I told her that if she continued to remain
silent, she would be penalized. The penalty
would be that the BBO would hold her silence
against her. Specifically, the BBO would be
allowed to draw from her silence any adverse
inferences relating to any area of the
investigation she refused to discuss. I
also told her that those adverse inferences
would mean that the BBO would find against
her in relation to those areas of the
investigation and that as a result, she
would be disbarred or suspended.

On November 1, 1996, Golenbock again appeared before

the B.B.O., and this time chose to forego her Fifth Amendment

privilege and to answer the questions put to her. She answered

additional questions on November 15, 1996. The testimony in

these depositions concerned the Wellfleet property and other

matters relevant to the subsequent criminal case against her.

Otis also testified before the B.B.O. on multiple

occasions beginning in January, 1996. There, she stated that

she became aware of Golenbock’s and Stein’s bankruptcy filings

“at some point.” In 1992, Otis had submitted to the Internal

Revenue Service a 1991 pleading from Golenbock’s and Stein’s

bankruptcy cases, as well as a copy of the deed, in response to

an inquiry concerning her 1992 tax return. Otis also told the

B.B.O. that she made none of the mortgage payments and provided

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none of the funds to do so. However, she and her husband

reported the income and mortgage payments on the Wellfleet

property in their federal income tax returns for the years

1991-1994. Otis also testified that all the expenses of the

Wellfleet property were being paid from its rental income. Her

tax returns, however, reflected that there was no rental income

for several years. In 1991, the one year in which there was

reported rental income, it amounted to less than half of the

mortgage payments.

F. The motion to suppress

On March 18, 1998, all three defendants were charged

with one count of bankruptcy fraud in violation of 18 U.S.C. §

152 and one count of conspiracy to commit bankruptcy fraud in

violation of 18 U.S.C. § 371. A superseding indictment charging

the same offenses was returned on August 5, 1998.

The government sought to offer in evidence some of the

statements that Golenbock had made to the B.B.O. On July 6,

1998, Golenbock moved to suppress those statements. She

contended that she had been coerced to answer questions by the

threat that assertion of her Fifth Amendment privilege would be

used against her in the B.B.O. proceeding. Stein did not join

in the motion or file a separate motion to suppress. In support

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of her motion, Golenbock submitted her affidavit and that of

Barshak, quoted supra.

On August 20, 1998, the district court denied

Golenbock’s motion in a written decision, stating:

In this case, Golenbock did not face the
ominous choice “between the rock and the
whirlpool,” because, although she was
subject to a negative inference based upon
her silence, she was not subject to
automatic disbarment. Instead, in the
B.B.O. proceeding she, like defendants in
any civil proceeding, had to choose between
remaining silent and risking an adverse
inference on the one hand, and giving
testimony that could be used against her in
a subsequent criminal proceeding on the
other. Because Golenbock’s testimony was
not coerced, as that term is defined in
Garrity [v. New Jersey, 385 U.S. 492
(1967)], her motion to suppress statements
made to the B.B.O. will be denied.

At trial, the government introduced excerpts from thirty-three

pages of B.B.O. testimony, which were admitted in evidence

against Golenbock. The excerpts included Golenbock’s testimony

concerning her payment of the mortgage, tax and other payments

on the Wellfleet property, as well as the proceeds of the sale

of the property. Neither Golenbock nor Stein made a

contemporaneous objection.

G. The criminal trial

The two-week jury trial of all three defendants

commenced in March, 1999. At trial, an expert testified that

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the value of the Wellfleet property, as of October 4, 1990, was

$120,000. There were two mortgages totaling approximately

$100,000 and approximately $2,000 worth of tax liens.

By way of defense at the trial, Golenbock and Stein

contended that they did not have to list the conveyance of the

Wellfleet property in their bankruptcy schedules because the

transfer was in the ordinary course of business (i.e. real

estate development). After the property was conveyed to Otis,

defendants contended, Golenbock managed the property and Stein

“looked after necessary repairs and made sure the bills were

paid.” The mortgage was paid with monies Otis provided to

Golenbock in her role as property manager. The main source of

income for these payments was the Adams Street Realty Trust,

composed of rental properties in Lowell, Massachusetts.

Golenbock and Stein had transferred their beneficial interest in

those properties to Otis in November, 1991, with the bankruptcy

court’s permission. The tenants of the Lowell properties often

paid in cash, defendants asserted, which accounted for Golenbock

and Stein’s cash payments for the mortgage and other expenses

associated with the Wellfleet property. Stein was the only

defendant who testified at trial.

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 Stein and Otis moved for acquittal under Fed. R. Crim.

P. 29 at the close of the government’s case. The court denied

both motions.

Neither Stein nor Otis renewed her motion for acquittal

after the close of her defense. On April 12, 1999, the jury

found Golenbock and Stein guilty of both counts. Otis was

convicted on the conspiracy count and acquitted on the

substantive bankruptcy fraud count.

H. Sentencing

On July 8, 1999, the trial court determined that

Golenbock and Stein each had an adjusted offense level of 16.

The computation was based on a base offense level of 6, with

upward adjustments for their roles in the offense as leaders,

supervisors, organizers, or managers of Otis; for more than

minimal planning and more than one victim; and for the amount of

the intended loss, which was determined to be $73,906.66.

Golenbock and Stein were each sentenced to twenty-one

months of imprisonment followed by thirty-six months of

supervised release. Otis received a sentence of five months in

prison and twenty-four months of supervised release.

II.

In these consolidated appeals, the defendants advance

various arguments. First, Golenbock and Stein assert that the

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district court erred in not suppressing at trial testimony

provided by Golenbock in proceedings conducted by the Board of

Bar Overseers. Golenbock and Stein also dispute the court’s

sentencing enhancement based on the intended loss for which they

were responsible. Stein and Otis contend the evidence was

insufficient to support their convictions. Stein further

maintains that her sentence should not have been enhanced to

reflect a leadership role in the offense. Finally, Otis argues

that the indictment was deficient as to the charges against her.

We find no reversible error as to any of these matters, and

affirm the defendants’ convictions and sentences.

A. Golenbock’s B.B.O. testimony (Golenbock and Stein)

Golenbock and Stein both contend that because

Golenbock’s B.B.O. testimony was coerced, it should have been

suppressed at their criminal trial.3 In reviewing the denial of

a motion to suppress, we review the district court's findings of

fact for clear error, and its conclusions of law and rulings on

the constitutionality of the government's conduct de novo. See

United States v. Leon-Delfis, 203 F.3d 103, 107 (1st Cir. 2000).

Golenbock argues that she reasonably believed that if

she refused to testify before the B.B.O., she could be subject

3
Because Stein’s appeal on this issue is derivative of
Golenbock’s, we address them together referring only to
Golenbock.

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to an adverse inference as to the matters at issue in that

proceeding, with the practical outcome being her disbarment.

She contends that this impending threat of disbarment rendered

her testimony involuntary and thus inadmissible at her criminal

trial. We think, however, that the penalty of adverse inference

and possible disbarment was too conditional to establish a

conclusion that her B.B.O. testimony was compelled in

contravention of the Fifth Amendment.

The Fifth Amendment secures an individual’s privilege

"to remain silent unless he chooses to speak in the unfettered

exercise of his own will, and to suffer no penalty . . . for

such silence." Spevack v. Klein, 385 U.S. 511, 514 (1967)

(Douglas, J.) (plurality opinion quoting Malloy v. Hogan, 378

U.S. 1, 8 (1963)). The Fifth Amendment not only protects

against being involuntarily called as a witness against oneself

in a criminal prosecution,

but also privileges him not to answer
official questions put to him in any other
proceeding, civil or criminal, formal or
informal, where the answers might
incriminate him in future criminal
proceedings.

Lefkowitz v. Turley, 414 U.S. 70, 77 (1973).

The Fifth Amendment has been held to protect

individuals from the threat of substantial economic sanction for

exercising their rights. See id. at 82-83 (state contractors

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barred from state business for five years for refusal to testify

before grand jury); Gardner v. Broderick, 392 U.S. 273 (1968)

(police officer discharged for refusal to testify before grand

jury). In Spevack, the Court held that an attorney’s refusal,

on grounds of self-incrimination, to produce financial records

and to testify at a judicial inquiry in a disciplinary

proceeding was not a constitutionally permissible basis for his

disbarment. Four members of the court described disbarment as

a “costly” sanction within the meaning of the Fifth Amendment,

and went on to state:

The threat of disbarment and the loss of
professional standing, professional
reputation, and of livelihood are powerful
forms of compulsion to make a lawyer
relinquish the [Fifth Amendment] privilege.

Spevack, 385 U.S. at 516.

On the same day, the Court similarly held that

statements elicited as a result of compelling a choice between

self-incrimination and the loss of a public job were

inadmissible in a later criminal proceeding. See Garrity v. New

Jersey, 385 U.S. 493, 498 (1967). There, police officers were

summoned to appear before a state investigative body examining

irregularities in criminal cases. They were informed that

anything they said could be used against them in subsequent

criminal proceedings, but if they refused to answer they would

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be subject to removal from office. Id. at 494. The officers

answered the questions. Later, they were indicted and tried for

crimes relating to the earlier questioning, and their statements

were used at trial. Id. at 495. The Supreme Court reversed

their convictions on the ground that their testimony was

involuntary because it was under threat of job termination. Id.

at 497-98.4

Where, however, invocation of the Fifth Amendment does

not, by itself, result in forfeiture of the job or license in

question, the fact that claiming the Fifth may, as a practical

matter, result in damage to one’s chances of retaining the

privilege at stake does not necessarily establish a

constitutional violation. The effect must be "capable of

forcing the self-incrimination which the Amendment forbids."

Lefkowitz v. Cunningham, 431 U.S. 801, 806 (1977); see also

Flint v. Mullen, 499 F.2d 100, 104 (1st Cir. 1974) ("[N]ot every

undesirable consequence which may follow from the exercise of

4Where the government seeks to compel testimony by threat of
loss of livelihood, the witness may rightfully refuse to answer
unless he is protected against the use of the compelled answers
in any subsequent criminal case. See United States v.
Perez-Franco, 873 F.2d 455, 462 (1st Cir. 1989) (citing Turley,
414 U.S. at 78). A state may compel incriminating answers to
its questions, however, if the testimony and its fruits are
rendered unavailable for use in subsequent criminal proceedings,
i.e. through a grant of immunity. See Turley, 414 U.S. at 84-
85.

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the privilege against self-incrimination can be characterized as

a penalty.").

Hence the Supreme Court has adhered to the “prevailing

rule” that the Fifth Amendment does not forbid allowing adverse

inferences to be drawn against parties to civil actions from

their refusal to testify in response to probative evidence

offered against them. Baxter v. Palmigiano, 425 U.S. 308, 317

(1976). In Baxter, the Court held that permitting the drawing

of an adverse inference from a prisoner’s silence in a prison

disciplinary hearing was constitutionally permissible. See id.

at 316-20. The Baxter court differentiated the effects of the

prisoners’ silence from the automatic penalties at issue in

other cases:

In this respect, this case is very different
from the circumstances before the Court in
the Garrity-Lefkowitz decisions, where
refusal to submit to interrogation and to
waive the Fifth Amendment privilege,
standing alone and without regard to the
other evidence, resulted in loss of
employment or opportunity to contract with
the State. There, failure to respond to
interrogation was treated as a final
admission of guilt.

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Id. at 317-18.5 The Supreme Court later distinguished its

holding in Baxter from a case in which, pursuant to a New York

statute, an attorney was divested of his state political party

offices when he refused to waive his constitutional immunity

before a special grand jury:

Baxter did no more than permit an inference
to be drawn in a civil case from a party's
refusal to testify. Respondent's silence in
Baxter was only one of a number of factors
to be considered by the finder of fact in
assessing a penalty, and was given no more
probative value than the facts of the case
warranted; here, refusal to waive the Fifth
Amendment leads automatically and without
more to imposition of sanctions.

Lefkowitz v. Cunningham, 431 U.S. 801, 808 n.5 (1977).

Relying on Garrity, Golenbock insists that she was

forced to choose between her livelihood as an attorney and

incriminating herself in the B.B.O. investigation. Unlike the

police officers in Garrity, however, Golenbock was not subject

to automatic loss of her position if she asserted her right not

to testify. While refusal to waive the Fifth Amendment might

increase the risk that she would be disbarred, disbarment would

5Golenbock points out that in Baxter, there was no pending
criminal prosecution, and the State had not sought to make
evidentiary use of the inmate’s silence at the disciplinary
hearing in any criminal proceeding. See 425 U.S. at 317. We
have applied Baxter, however, to situations involving criminal
charges. See, e.g., United States v. Indorato, 628 F.2d 711,
716 (1st Cir. 1980).

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not result automatically and without more. Hence, she was not

threatened with a “penalty” within the meaning of Garrity for

invoking her Fifth Amendment privilege.

Attorney Barshak's affidavit makes this point clear.

He stated that “the B.B.O. would be allowed to draw from her

silence any adverse inferences relating to any area of the

investigation she refused to discuss.” (Emphasis added). It is

true that Barshak went on to opine to his client that “those

adverse inferences would mean that the B.B.O. would find against

her in relation to those areas of investigation and that as a

result, she would be disbarred or suspended.” His prediction of

disbarment, however, rested on his estimate of how the B.B.O.

would exercise its ability to draw adverse inferences. Mr.

Barshak did not suggest that the B.B.O. was required to disbar

her as an automatic sanction for Golenbock’s failure to waive

her constitutional rights.

The B.B.O.’s own rules and practice make it plain that

Golenbock was not faced with an automatic sanction. The B.B.O.

makes its decisions based on a preponderance of the evidence,

with the Bar Counsel bearing the burden of proof. See Rules of

the Board of Bar Overseers, § 3.28. Nothing in the record

suggests that the B.B.O. has either a formal rule or an

unwritten policy or practice to disbar or suspend attorneys

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simply for invoking Fifth Amendment privileges. Hence, the

consequences of Golenbock’s

assertion of the privilege before the B.B.O. were the same as in

any civil proceeding, in that the fact-finder could -- but was

not required to -- draw an adverse inference from such an

assertion. See Baxter, 425 U.S. at 317; see also Federal

Deposit Ins. Corp. v. Elio, 39 F.3d 1239, 1248 (1st Cir. 1994).

Golenbock contends, nevertheless, that the risk of

disbarment arising from her refusal to testify was sufficiently

coercive to render her B.B.O. testimony inadmissible. This

argument ignores the reasoning of Baxter, on which this court

has relied to distinguish between the threat of automatic loss

of one’s livelihood and the threat of an inference that might

lead to such a loss. In United States v. Indorato, 628 F.2d 711

(1st Cir. 1980), we held that a state police officer’s self-

incriminating statements made during a theft investigation were

not coerced, where nothing in relevant police department rules

mandated dismissal for invoking Fifth Amendment rights. We

observed:

In all of the cases flowing from Garrity,
there are two common features: (1) the
person being investigated is explicitly told
that failure to waive his constitutional
right against self-incrimination will result
in his discharge from public employment (or
a similarly severe sanction imposed in the
case of private citizens); and (2) there is

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 a statute or municipal ordinance mandating
such procedure.

Id. at 716. In Indorato, we said that absent elements of this

nature, fear of punishment as a consequence of claiming one’s

rights does not protect one from the government’s subsequent use

of self-incriminating statements in a criminal trial.6 See id.

As said, there is no evidence of any B.B.O. rule

mandating that claiming one’s constitutional right to remain

silent must necessarily result in disbarment. Golenbock could

have asserted her Fifth Amendment privilege and later argued to

the B.B.O. fact-finder that the evidence against her, as a

whole, was inadequate to warrant disbarment. We conclude that

“[n]either Garrity nor any of its progeny brings defendant

within the ambit of the coerced testimony doctrine.” Indorato,

628 F.2d at 716. We affirm the district court’s denial of

Golenbock’s motion to suppress.

B. Intended loss calculation (Golenbock and Stein)

The district court increased Golenbock and Stein’s base

offense levels by six levels because of the amount of the

6
We recognize that Golenbock’s fear of disbarment was based
on the advice of a seasoned attorney. However, the fact that,
as a matter of strategic choice in the B.B.O. proceeding,
Golenbock could have had good reason to fear disbarment if she
did not testify is not the same as being faced with automatic
disbarment for failure to testify. One can imagine situations
where the adverse inferences drawn from refusing to testify
might be overcome by other factors.

-24-
intended loss for which they were responsible.7 The court

determined that the intended loss was approximately $74,000,

which it characterized as “the amount of the net gain over the

mortgage and expenses.” The district court’s findings were

based on the facts that the Wellfleet property was sold in June,

1996, for $175,000, and that $73,906.66 remained after the

mortgages, tax obligation and brokerage commission were deducted

from the escrow.

We review a district court's intended loss findings for

clear error. See United States v. Robbio, 186 F.3d 37, 43 (1st

Cir. 1999); see also United States v. Cali, 87 F.3d 571, 575

(1st Cir. 1996) (clear error standard applied to sentence

enhancements even where defendant objected in district court).

"Courts can, and frequently do, deal with rough estimates, and

as such, a party dissatisfied with a sentencing court's

quantification of the amount of loss . . . must go a long way to

demonstrate clear error.” United States v. Rowe, 202 F.3d 37,

42 (1st Cir. 2000) (internal citations omitted).

Golenbock and Stein argue that the district court’s

calculation was flawed because it did not take into account the

7
The district court’s sentence enhancement was based on the
loss to creditors Golenbock and Stein intended, not the
creditors' actual loss. It is undisputed that the Wellfleet
property was ultimately discovered by the bankruptcy trustee and
that the proceeds of the property’s sale were recovered.

-25-
more than five years of “carrying costs” that defendants had

paid while the property grew in value from its $120,000 purchase

price in 1990 to its $175,000 sale price in 1996. During this

time period, Golenbock and Stein made insurance and mortgage

payments totaling approximately $70,000. Golenbock and Stein

argue that the creditors reaped the benefit of an increase in

the value of the property that was created by Golenbock and

Stein’s payments. Golenbock and Stein argue there was no

intended loss whatsoever, because the amount they paid to carry

the property over the five years approximately equaled the net

value in 1996. Had they kept the sales proceeds, their net

would be zero after subtracting the payments they made.

But we believe the district court’s intended loss

calculation was justifiable and well within the standards of the

Sentencing Guidelines and relevant case law. Section 2F1.1 of

the Guidelines provides that an offense level shall be increased

by six levels if the loss or intended loss amounts to more than

$70,000. Intended loss need not be determined with precision;

“[t]he court need only make a reasonable estimate of the loss,

given the available information.’" United States v. Pervaz, 118

F.3d 1, 10 (1st Cir. 1997) (quoting U.S.S.G. § 2F1.1, cmt.

(n.8)); see also United States v. Parsons, 141 F.3d 386, 392

(1st Cir. 1998) (loss is a proxy for the seriousness of the

-26-
offense). Section 2F1.1 does not otherwise specify or restrict

the means by which intended loss may be calculated in a

bankruptcy case. Compare U.S.S.G. § 2F1.1 cmt (n.8) (providing

special rules for calculating loss in particular types of cases,

including loan fraud).8

Here, it was reasonable for the district court to treat

the $74,000 net gain realized on the 1996 sale of the property

as the measure of the creditors’ intended loss. For each of the

five previous years during which Golenbock and Stein held it,

their exclusive control gave them the economic use of the

property in addition to the profit they later realized when the

property was sold. Golenbock and Stein could rent the property

to others and on occasion did so. In lieu of renting it, they

could and did themselves enjoy its use. In either event the

property, during all of the years when they were paying the

carrying charges, had immediate value to those who controlled

it, just as ownership of one’s home provides continuous economic

value distinct from the capital gain when the home is eventually

8
Golenbock and Stein seek to bolster their argument by
relying on loan fraud cases and the Sentencing Guidelines’
commentary on loan fraud. The Guidelines recognize loan fraud
as a specific exception to the usual methods of calculating loss
set forth in §§ 2F1.1 and 2B1.1. See U.S.S.G. § 2F1.1 cmt.
(n.8(b)). We find no error in the district court’s refusal to
extend the exceptional methodology used for loan fraud cases to
bankruptcy fraud.

-27-
sold. In the circumstances, we think the district court could

reasonably treat the economic value of the property during the

years Golenbock and Stein fraudulently withheld it from their

creditors as offsetting its carrying expenses, leaving the

$74,000 net gain on the 1996 sale as the amount Golenbock and

Stein would have realized had the fraud succeeded and,

conversely, as the loss the fraud would have caused to the

creditors had the scheme worked. Golenbock and Stein clearly

never intended by paying the mortgage and other expenses to

benefit their creditors; during this period they alone retained

the exclusive right to the property’s use. We do not find clear

error in the district court’s refusal to subtract Golenbock and

Stein’s annual payments from the $74,000.

Nor is there error in the fact that the court evaluated

the intended loss at the time Golenbock and Stein sold the

Wellfleet property, rather than at the time they filed for

bankruptcy. Like conspiracy, bankruptcy concealment has been

described as a continuing offense. See 18 U.S.C. § 3284;9 United

9 Section 3284 provides:

The concealment of assets of a debtor in a
case under title 11 shall be deemed to be a
continuing offense until the debtor shall
have been finally discharged or a discharge
denied, and the period of limitations shall
not begin to run until such final discharge
or denial of discharge.

-28-
States v. Gilbert, 136 F.3d 1451, 1453 (11th Cir. 1998); Sultan

v. United States, 249 F.2d 385, 386 (5th Cir. 1957) (noting that

§ 3284, in addition to describing a statute of limitations, has

substantive consequences). “[C]oncealment by its nature is an

act which goes on until detected or its consequences are

purged.” Sultan, 249 F.2d at 386. The fraud was still ongoing

at the time the Wellfleet property was sold, as the concealment

had not yet been revealed at that point. Hence, it was proper

for the court to base its intended loss findings on the value of

the property at the time of the sale.

C. Sentencing enhancement (Stein)

The district court found that Stein was "an organizer,

leader, manager, or supervisor" for the purposes of U.S.S.G.

§ 3B1.1(c), and accordingly added two levels to her base offense

level. Stein argues that the evidence does not support the

district court's conclusion. Because a sentencing court's role-

in-the-offense determination is necessarily fact-specific, we

review deferentially and only for clear error or mistake of law.

See United States v. Alicea, 205 F.3d 480, 485 (1st Cir. 2000).

The government must prove by a preponderance of the

evidence that Stein's role satisfies the requirements of

-29-
§ 3B1.1(c). See id. at 485. A two-level increase pursuant

to § 3B1.1(c) is justified

if the sentencing court supportably finds
that (1) the criminal enterprise involved at
least two complicit participants (of whom
the defendant may be counted as one), and
(2) the defendant, in committing the
offense, exercised control over, organized,
or was otherwise responsible for
superintending the activities of, at least
one of those other persons.

United States v. Cruz, 120 F.3d 1, 3 (1st Cir. 1997) (en banc).

In determining whether the defendant qualifies for the

enhancement, the Sentencing Guidelines instruct courts to

consider seven factors:

the exercise of decision making authority,
the nature of participation in the
commission of the offense, the recruitment
of accomplices, the claimed right to a
larger share of the fruits of the crime, the
degree of participation in planning or
organizing the offense, the nature and scope
of the illegal activity, and the degree of
control exercised over others.

U.S.S.G. § 3B1.1 cmt. (n.4). This list of factors is

"representative rather than exhaustive." United States v.

Tejada-Beltran, 50 F.3d 105, 111 (1st Cir. 1995).

Stein opposed this enhancement in objections to the

presentence report (PSR) and at sentencing. On appeal, Stein

makes a very brief and general argument that the sentencing

enhancement was erroneous because there was no evidence that she

-30-
supervised or managed Otis’s criminal conduct. We perceive no

clear error.

The court could have reasonably found that Stein,

together with Golenbock, devised and carried out a plan to

conceal the Wellfleet property from bankruptcy creditors and the

trustee by having Otis hold it for them in trust. Stein signed

the backdated deed of the Wellfleet property to Otis. Stein met

with the bankruptcy attorney, provided the information for her

filing and attended the meetings of creditors. After they

conveyed title to Otis, Stein and Golenbock forwarded the tax

forms to her.

The testimony of Stein’s and Golenbock’s secretaries

reflects that Stein as well as Golenbock exercised continuing

decision-making authority with respect to the Wellfleet

property. Stein paid or authorized the payment of bills,

sometimes with handwritten directions on the bills. And with

Golenbock, Stein received tax documents and insurance forms at

her address. Stein and Golenbock made the arrangements with the

real estate broker when the property was being sold. When the

proceeds for the sale of the Wellfleet property were issued to

Otis, amounting to more than $70,000, Otis signed them over to

accounts from which Stein benefitted.

-31-
 It is true that there is little evidence that Stein

alone -- i.e., acting separately from Golenbock – directed

Otis’s activity related to the concealment. However, Stein does

not contend that two organizers cannot act jointly to direct the

activity of another, and we have found no authority so stating.

Hence, we perceive no clear error in the district court’s

determination that Stein was a leader, supervisor, organizer or

manager of Otis.

D. Sufficiency of the evidence (Stein and Otis)

On appeal, Stein and Otis challenge the sufficiency of

the evidence presented against them. It is well-established

that in order to challenge the sufficiency of the evidence after

a conviction, the defendant must have preserved her Rule 29

motion by moving for an acquittal at the close of the defense’s

evidence at trial. See United States v. Castro-Lara, 970 F.2d

976, 980 & n.2 (1st Cir. 1992); United States v. Concemi, 957

F.2d 942, 950 (1st Cir. 1992).

Absent a renewal of the motion for acquittal
after presenting the case for the defense,
the motion for acquittal is considered
waived. Hence, in order to prevail on a
challenge to the sufficiency of the
evidence, “the defendants must then
demonstrate “clear and gross” injustice.’”

Concemi, 957 F.2d at 950 (internal citations omitted).

-32-
 Here, Stein and Otis moved for acquittal under Fed. R.

Crim. P. 29 at the close of the government’s evidence. Neither

afterward renewed her Rule 29 motion at the close of the

defense's evidence. Hence, we apply the “clear and gross

injustice” standard to this portion of Stein and Otis’s appeal.

See id. After careful review, we conclude that the evidence

presented at trial against Stein and Otis was sufficient to

support a guilty verdict beyond a reasonable doubt.

1. Stein

Stein argues that there was insufficient evidence to

support her conviction because she simply “followed Golenbock’s

lead at every step of the way, without knowing that Golenbock

was concealing the property from the bankruptcy trustee.” She

contends that the evidence showed that only Golenbock and Otis

controlled the property. There is no support for the

conclusion, Stein argues, that she knowingly retained an

interest in the Wellfleet property or that she intentionally

concealed (or conspired to conceal) it from her bankruptcy

creditors. We disagree, based on reasonable inferences from

other evidence described in section II.C., supra, as well as

from the following evidence.

Stein filed her bankruptcy separately from Golenbock’s.

Stein’s bankruptcy schedules and statement of financial affairs

-33-
not only failed to list the Wellfleet property as a property in

which she held an interest, but also failed to list the Cape Cod

Five as a creditor, failed to disclose (as the forms required

had Stein’s interest been transferred, as claimed, the previous

December) that she had previously been a part owner of the

Wellfleet property within the year before she filed for

bankruptcy, and failed to disclose the civil litigation relating

to a hot tub at the Wellfleet property. In other words, there

is evidence that even if Stein was unaware that she had retained

a continuing interest in the Wellfleet property after the

alleged December 31, 1989, transfer to Otis, she failed to make

appropriate disclosure as to multiple relevant aspects of her

relationship to the Wellfleet property, including her

involvement before the transfer.

Stein attended 341 meetings and answered questions,

affirming that the information contained in the schedules was

truthful and accurate. Her bankruptcy attorney, Jeffrey

Schreiber, testified that all the information on the schedules

was obtained from Stein or Golenbock. Schreiber testified that

he did not learn of the Wellfleet property from Stein or

Golenbock, however, but from a B.B.O. attorney only a couple of

years before the trial in this case.

-34-
 Stein contended at trial that the Wellfleet property

in fact was legitimately and wholly conveyed to Otis nine months

before the bankruptcy filing. Sufficient evidence would have

enabled a reasonable jury to conclude otherwise, however.

First, while the deed to Otis was dated and notarized nine

months earlier, it was not recorded until October 4, 1990, a

week after the filing of the individual bankruptcy petitions by

Stein and Golenbock. Stein's testimony as to where the deed

was signed and notarized was confused. She testified that the

deed was signed and notarized in Andover, which is in Essex

County, but on its face the deed indicates that it was executed

and notarized in Middlesex County, where Golenbock and Stein

resided. Second, Golenbock and Stein continued to pay the

mortgage and other expenses relating to the property after

December 31, 1989, strongly suggesting no actual transfer to

Otis. They did not receive the stated consideration for the

transfer. Their names were not changed on bills relating to the

property until 1991. Stein conceded that she had never

attempted to list the property for sale with a real estate

broker, but had just talked to Otis, a close friend, about it.

Additionally, the Declaration of Trust for the B.Z. Realty

Trust, of which Otis was supposedly the trustee, was recorded

only at the time the deed was recorded; this document was

-35-
purported to have been executed on August 1 of either 1989 or

1990 (both dates appeared on it). From this evidence, the jury

could have concluded that Stein had never transferred nor

intended to transfer her interest in trust to Otis on December

31, 1989, prior to the bankruptcy. Indeed, the jury could have

determined that, even if prepared on that date, the deed was not

delivered then or that it may even have been made later and

backdated, after Golenbock and Stein had filed for bankruptcy.

In any case, the evidence suggests that the deed had been

fabricated as part of defendants’ scheme to conceal the property

from bankruptcy creditors.

Stein testified that between 1992 and 1994, the

Wellfleet property payments were all made from the Adams Street

Trust account because Otis had purchased the beneficial interest

in that trust. This testimony was corroborated by that of her

secretary, Beverly Rubin. However, neither Stein nor Rubin

provided any supporting documents. Furthermore, there was

contradictory evidence: checks and other payments relating to

the Wellfleet property, made during that time period, from

accounts and sources other than the Adams Street Trust account,

including their bankruptcy debtor-in-possession checking

account. In addition, Stein’s signature appears on non-Adams

Street Trust checks in the early 1990s on payments for the

-36-
Wellfleet property, after the property was sold to Otis.

Furthermore, after Stein and Golenbock received their bankruptcy

discharges, but while their bankruptcy cases were still open,

they began paying the Cape Cod Five loans directly from an

account in Golenbock’s name. Two of those checks were signed by

Stein in October, 1995. Moreover, despite the stated

consideration of $108,000, no funds appear to have changed hands

as between Otis and the purported sellers, nor was the Cape Cod

Five notified of the purported sale to Otis.

Hence, the jury could have concluded that the sale to

Otis was a sham and that Golenbock and Stein paid the Wellfleet

expenses from their own funds, and that Stein’s testimony at

trial about the payments was false. See United States v.

Jimenez-Perez, 869 F.2d 9, 11 (1st Cir. 1989) (the jury “could

legitimately have presumed that the fabrication was all the more

proof of [defendants’] guilt”). As the evidence was sufficient

for the jury to have concluded that Stein knowingly and

fraudulently concealed her interest in the Wellfleet property

from her bankruptcy creditors, and conspired with Golenbock and

Otis to do so, there was no clear and gross injustice in her

conviction.

2. Otis

-37-
 Otis argues that there was insufficient evidence that

she willfully joined the conspiracy to conceal the Wellfleet

property from Golenbock’s and Stein’s bankruptcy creditors. She

contends that she was unaware of any improprieties throughout

the concealment scheme, and hence lacked the requisite intent to

be convicted of conspiracy. We hold that a reasonable jury

could have concluded otherwise.

The government points out that Golenbock and Otis were

close friends and Golenbock was a godmother to one of Otis’s

sons. This alone, of course, would be insufficient to establish

that Otis knew of the concealment, although, together with other

probative evidence, it might be a further factor making such

knowledge more likely. The government points out that Golenbock

issued a $15,000 check to Otis a few days after the bankruptcy

filing, then recorded the earlier-dated deed of the Wellfleet

property to Otis one week later. From this, the government

argues, the jury could have found that Otis knowingly was being

paid to hold the property for Golenbock’s and Stein’s benefit.

Precisely when Otis’s involvement began is not

critical. “[I]t is well settled that one may join a conspiracy

subsequent to its original formation by adopting its goals and

adhering to its purposes.” United States v. Spock, 416 F.2d

165, 191 (1st Cir. 1969) (citing Blumenthal v. United States,

-38-
332 U.S. 539, 559 (1947)). Where a defendant knows of the

bankruptcy and holds or disposes of assets for the debtor, the

evidence is “sufficient to warrant the jury’s inferring

purposeful knowledge and participation in the plan first set in

motion previously” by the debtor. Sultan, 249 F.2d at 387.

Here, even if Otis had been unaware of the concealment at the

time of the conveyance, there is ample circumstantial evidence

for a jury to find that she later was knowingly and willfully

involved in the conspiracy.

First, there is evidence that Otis knew of the

bankruptcy proceedings during the time period that she held the

Wellfleet property in trust (August 1989 or August 1990 to June

1996). In 1992, Otis submitted a pleading from Golenbock’s

bankruptcy case to the IRS. Moreover, she admitted her

awareness of the bankruptcy in her B.B.O. deposition in January,

1996.

Second, there was evidence that Otis, who was an

attorney herself, would have known that the circumstances of the

transfer and subsequent handling of the Wellfleet property were

irregular. The jury could have inferred that as the supposed

purchaser of the property, Otis was aware that the purported

transfer to her was a sham. She admitted that she made none of

the expense payments for the property and was not involved in

-39-
renting it. Although the deed stated she took the property

subject to the Cape Cod Five’s two mortgages, Otis never

received mortgage bills, as they were sent to Golenbock and

Stein’s office. When the decision was made to sell the

property, Golenbock and Stein, not Otis, conducted the

communications with the broker. And when the property was

sold, Otis turned over all the proceeds to Golenbock’s and

Stein’s minor son.

Moreover, there is evidence that Otis actively

attempted to cover up these irregularities. Although she

acknowledged that she did not provide any of the funds to pay

the loans, she fraudulently claimed the mortgage interest

deduction for several years on her federal income tax returns.

Furthermore, Otis made false statements in a B.B.O. deposition

about the matter. The jury saw the transcripts and heard the

tapes of her testimony, from which they could have drawn

additional negative inferences both to her credibility and her

culpability. See Jimenez-Perez, 869 F.2d at 11.

In sum, there is evidence from which the jury could

have reasonably concluded that Otis knew of the bankruptcy and

participated in the conspiracy to conceal the Wellfleet

property. Hence, there was no clear and gross injustice in her

conviction.

-40-
E. Defective indictment (Otis)

Otis was convicted only on the conspiracy charge, set

forth in Count II of the superseding indictment. She now

contends that Count II failed to adequately inform her of which

paragraph of 18 U.S.C. § 152 was charged. Because she did not

challenge the sufficiency of the indictment below, we review for

plain error only. See United States v. Murphy, 762 F.2d 1151,

1155 (1st Cir. 1985); Fed. R. Crim. P. 52(b).

Count II charges that Otis, Golenbock and Stein

“did knowingly, willfully, and unlawfully
conspire and agree among themselves to
commit the following offense against the
United States:

to knowingly and fraudulently conceal from
creditors and the trustee in bankruptcy
proceedings under Title 11 of the United
States Code (the bankruptcy laws), captioned
In re: Wendy B. Golenbock, case number
90-41635-JFQ and In re: Cheryl B. Stein,
case number 90-41638-JFQ, in the United
States Bankruptcy Court for the District of
Massachusetts, property belonging to the
estates of the debtors WENDY B. GOLENBOCK
and CHERYL B. STEIN, to wit, their
beneficial interest in the real property
located on Bond Street in Wellfleet,
Massachusetts (also at times referred to as
South Wellfleet), also identified at times
as being on Old Wharf Road or Paine Avenue
or lots 63 and 80, and their agreement with
SUSAN OTIS, aka SUSAN ALEKMAN concerning her
holding that real property in trust for the
benefit of WENDY B. GOLENBOCK and CHERYL B.
STEIN, all in violation of Title 18, United
States Code Sections 152 and 2.

-41-
(Emphasis added.)

Otis argues that in Count II, the statement “all in

violation of 18 U.S.C. § 152 and 18 U.S.C. § 2" was not clear

enough to notify her of what crimes she was alleged to have

committed. An indictment is sufficient “if the offense is

described with sufficient clarity to show a violation of law,

and enables the accused to know the nature and cause of the

accusation against him and to plead an acquittal or conviction

in bar of future prosecution for the same offense.” United

States v. Fusaro, 708 F.2d 17, 23 (1st Cir. 1983) (citing

Hamling v. United States, 418 U.S. 87 (1974)). Generally, an

indictment passes muster if it sets forth the offense in the

words of the statute, including all the elements of the offense.

See United States v. Penagaricano-Soler, 911 F.2d 833, 839 (1st

Cir. 1990).

18 U.S.C. § 152 (App. 1994), the version of the statute

under which defendants were charged, describes several forms of

criminal conduct in the bankruptcy context, including

concealment of assets, false oaths and claims, and bribery. 10

10Before it was amended in 1994, 18 U.S.C. § 152 did not
contain paragraph numbers. See Pub. L. 103-394, § 312(a)(1)(A).
The amended statute applies only to bankruptcy cases filed with
the bankruptcy court after October, 1994. See id. at § 702. As
Golenbock and Stein’s bankruptcy petitions were filed in
September, 1990, we apply the earlier version of the statute.

-42-
Otis was charged with a violation of the first provision (now

the first paragraph) of § 152, prohibiting concealment of

assets, which sets forth in relevant part:

Whoever knowingly and fraudulently conceals
from the receiver, custodian, trustee,
marshal, or other officer of the court
charged with the control or custody of
property, or from creditors in any
bankruptcy proceeding, any property
belonging to the estate of a bankrupt;

. . . Shall be fined not more than
$5,000 or imprisoned not more than five
years, or both.

Count II of the superseding indictment tracks the

above-cited paragraph with sufficient clarity to place Otis on

notice of the elements of the charged offense. See United

States v. Grant, 971 F.2d 799, 802 (1st Cir. 1992) (elements of

bankruptcy concealment are knowing concealment of property of

one’s bankruptcy estate from the bankruptcy trustee, with

specific intent to defraud creditors). Count II sets forth the

time and place of offense, identifies the relevant bankruptcy

proceedings at issue, the property alleged to have been

concealed, and the persons from whom it was concealed. See

United States v. Arge, 418 F.2d 721, 724 (10th Cir. 1969) (an

indictment for bankruptcy concealment must allege time and

place, knowing and fraudulent intent, a description of the

property concealed, the persons from whom it was concealed, and

-43-
that it was property of the bankrupt estate). Moreover, the

indictment identifies the intent: that Otis “knowingly,

willfully, and unlawfully” conspired to commit the offense, and

that she “knowingly and fraudulently” concealed the property.

See id. Hence, we conclude that the charging language in Count

II adequately set forth both the language and elements of the

first paragraph of 18 U.S.C. § 152 and informed Otis of the

relevant offense.

Otis also contends that the indictment was defective

because it cited to 18 U.S.C. § 2 without setting forth its

specific language.11 Charges under § 2 need not be specifically

referenced in an indictment, however. See United States v.

Footman, 215 F.3d 145, 153-54 (1st Cir. 2000); United States v.

Andrade, 135 F.3d 104, 110 (1st Cir. 1998). Hence, there is no

11Section 2 provides:

(a) Whoever commits an offense against the
United States or aids, abets, counsels,
commands, induces or procures its
commission, is punishable as a principal.

(b) Whoever willfully causes an act to be
done which if directly performed by him or
another would be an offense against the
United States, is punishable as a principal.

We have stated that § 2 is a general definitional statute that
does not describe a separate offense from the underlying
substantive crime. See United States v. Mitchell, 23 F.3d 1, 2
(1st Cir. 1994).

-44-
error, plain or otherwise, in the omission of the specific

language of § 2, and we affirm Otis’s conviction on the

indictment.

Affirmed.

-45-