United States v. McCann

United States Court of Appeals
For the First Circuit

No. 03-1174

UNITED STATES OF AMERICA,

Appellee,

v.

DANA DRAY MCCANN, a/k/a DANNY COMBS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

Boudin, Chief Judge,

Lynch and Howard, Circuit Judges.

Bruce Green for appellant.
Cynthia A. Young, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.

May 5, 2004
 HOWARD, Circuit Judge. Following an eight-day trial, a

jury convicted defendant Dana Dray McCann (a/k/a Danny Combs and D.

Dacques Sonner) of mail fraud, wire fraud, and engaging in monetary

transactions in criminally derived funds ("money laundering"). See

18 U.S.C. §§ 1341, 1343, & 1957. This appeal requires us to decide

(1) whether the evidence was sufficient to support the mail-fraud

conviction, (2) whether the district court abused its discretion in

making two evidentiary rulings, (3) whether it was plain error for

a federal agent to testify that, during a non-custodial

interrogation, McCann had refused to provide his true name when

asked, and (4) whether the court erred in sentencing. After

careful review, we affirm.

I.

We recite the relevant facts in the light most favorable

to the verdicts, see United States v. Echeverri, 982 F.2d 675, 676

(1st Cir. 1993), omitting details extraneous to the issues raised

on appeal.

In the late 1990's, McCann moved to Springfield,

Massachusetts, where he developed business and personal connections

within the Springfield law firm of Winniman & Winniman. It was

through these connections –- particularly, a relationship with Sara

Rossman (a paralegal at the firm) –- that McCann was able to obtain

access to the firm's accounts, stationery, notary stamps,

-2-
signatures, and other items that assisted him in the two fraudulent

schemes at issue in this case.

A. Scheme #1: The Purchase of the Horse Farm

On April 6, 2000, McCann provided Rossman at Winniman &

Winniman a counterfeit $2 million check (purportedly drawn on an

Italian bank) and asked her to deposit the check into the firm's

trust account. McCann advised Rossman that he planned to use this

money to pay for, inter alia, his purchase of a horse farm in

Windsor, Connecticut. Based on these representations, Rossman

prepared a deposit ticket and immediately issued to McCann several

checks drawn on the trust account, including a $1 million check for

the purchase of the horse farm. Rossman and McCann then traveled

together to the firm's bank to deposit the check, but Rossman left

to run errands before they reached the teller. McCann left the

bank without depositing the $2 million check.

Later that day, McCann (posing as D. Dacques Sonner, the

Chairman of International Land & Livestock) finalized an earlier-

agreed-upon purchase of the horse farm by providing Dennis

McCormack (an attorney for the seller's trust) with the $1 million

check drawn on the Winniman & Winniman trust account. McCormack

advised McCann that the deed would be delivered once the check had

cleared. The following day, McCormack mailed Winniman & Winniman

a letter stating that he was depositing the check into the seller's

trust account and that he would disburse funds from that account on

-3-
April 12th unless he heard otherwise. Hearing nothing, McCormack

thereafter wrote checks on the seller's trust account. When these

checks bounced (because the $1 million check never cleared),

McCormack immediately phoned McCann, who then promised to

straighten out what he alleged was a mix-up at the bank.

Meanwhile, McCann (posing as attorney Danny Combs with

Winniman & Winniman) had been in simultaneous loan negotiations

with West Coast businessman William Abraczinskas. McCann was

seeking from Abraczinskas a quick infusion of approximately $2

million in "show money" –- money needed merely to show the sellers

that "Combs's" "client" (i.e., McCann) had the wherewithal to

purchase the farm –- that would immediately be repaid, together

with $1 million interest. Abraczinskas was told that the "show

money" would not be released without his permission and that it

would simply remain in the Winniman & Winniman trust account until

repaid.1

Abraczinskas eventually agreed and, on April 13, 2000,

wired $1.56 million to the trust account. The account now being

funded (albeit with "show money"), McCann met with McCormack on

April 14th and provided him with a $1 million certified check

(which McCormack deposited). It was only after McCann had

withdrawn the "show money" and received a deed to the horse farm

1
McCann advised Abraczinskas that the "client" was wiring the
purchase money from abroad but that the money had not yet arrived.

-4-
that a concerned Abraczinskas, in an effort to protect himself,

entered into a purchase-repurchase agreement with McCann. This

agreement provided, inter alia, that Abraczinskas was to take title

to the farm (and five horses) until McCann repaid the loan. Once

payment was received, Abraczinskas would release title back to

McCann. Expecting McCann to tender payment and seeking to avoid

any tax consequences, Abraczinskas –- who did not want the farm in

any event –- did not immediately record the deed and instead

accepted McCann's various explanations for the delay.

A few months later, in July 2000, McCann (posing as D.

Dacques Sonner) telephoned McCormack and asked for a $200,000 loan

to purchase an Arabian horse. Despite having already transferred

to Abraczinskas the deed to the horse farm, McCann offered the farm

as collateral for the loan. After a subsequent title search

revealed that McCann had clear title (recall that Abraczinskas had

not yet recorded), McCormack agreed to the loan and promptly

recorded the mortgage.

Abraczinskas recorded his deed on August 31, 2000, having

never received payment from McCann on the original loan.

B. Scheme #2: The Double Assignment of the Mortgage

On or about April 14, 2000 -- using funds from the $1.56

million wire -- McCann loaned $250,000 to Robert and Edward Allen

-5-
for their purchase of a building in Springfield.2 The Allens, in

turn, provided McCann with a note secured by a mortgage on the

building and agreed to tender monthly payments to Winniman &

Winniman.

McCann thereafter proceeded to assign the Allens'

mortgage to two different buyers. First, on May 18, 2000, he

assigned the mortgage to Brian David for $175,000, with Winniman &

Winniman handling the details. Under the agreement, the Allens

would simply continue forwarding payments to Winniman & Winniman,

which would then issue checks to David. For some reason, David did

not immediately record the assignment; according to David, there

was a possibility that McCann would buy back the mortgage in a

short period of time.

Approximately one month after this assignment, aided by

David's failure to record, McCann assigned the same mortgage to

Paul Picknelly for $165,000. Picknelly (through his attorney)

immediately recorded the assignment and, on June 21, 2000, mailed

to the Allens a letter (the "June 21st letter") notifying them of

the change and directing them to make payments directly to him

rather than through Winniman & Winniman. Having received in the

interim some payments from the Allens (and perhaps unaware of the

2
The $250,000 check was drawn on the Winniman & Winniman trust
account.

-6-
new assignment), Rossman thereafter began making payments to David

–- by personal check.3

Sometime around July 20, 2000, David (unaware, of course,

of McCann's subsequent dealings) received from McCann an undated

letter stating that the corporation for which McCann worked had

voted to repurchase the mortgage and would accordingly send payment

by August 3rd. In early August 2000, a partner at Winniman &

Winniman discovered David's unrecorded assignment; after contacting

David, the partner immediately recorded the assignment only to

learn that the Allens' mortgage had also been assigned to –- and

promptly recorded by -- Picknelly.

C. Procedural History

McCann subsequently was tried before a jury on seven

counts of a superseding indictment: two counts of mail fraud (see

18 U.S.C. § 1341), two counts of wire fraud (see 18 U.S.C. § 1343),

and three counts of money laundering (see 18 U.S.C. § 1957).

Following the government's presentation of its case-in-chief,

McCann moved for a judgment of acquittal on each count. See Fed.

R. Crim. P. 29.4 The district court granted this motion as to one

3
Although McCann's transaction with David closed in mid-May,
Rossman's first check to David was dated July 7, 2000. David
testified that, in total, he received two or three payments, with
the last payment occurring sometime after his vacation during the
last two weeks of August. (This information is relevant to the
discussion in Part II. A, below.)
4
In order to preserve McCann's rights on appeal, the court
deemed the motion filed at the close of the evidence as well.

-7-
of the mail-fraud counts (a bank's mailing of an insufficient-funds

notice to McCormack after he had attempted to draw on the seller's

trust account) but denied it with respect to the remaining six

counts.

The jury thereafter returned guilty verdicts on five of

these six counts: the remaining mail-fraud count (Picknelly's June

21st letter informing the Allens of the assignment); one of the

wire-fraud counts (the $1.56 million wire from Abraczinskas to the

Winniman & Winniman trust account); and all three money-laundering

counts (Abraczinskas's $1.56 million wire transfer, McCormack's

delivery of the $1 million certified check for deposit, and the

delivery of the $250,000 check to the Allens). A verdict of not

guilty was returned on the other wire-fraud count (a call from

McCann to Picknelly discussing the terms of the assignment).

On January 9, 2003, McCann was sentenced to 105 months'

imprisonment (consisting of concurrent sentences of 60 months for

the fraud convictions and 105 months for the money-laundering

convictions), a three-year term of supervised release, and

$1,895,610.84 in restitution. This appeal followed.

II.

As noted above, we are presented with four issues on

appeal: (1) whether the evidence was sufficient to support the

mail-fraud conviction; (2) whether the district court abused its

discretion in making two evidentiary rulings; (3) whether it was

-8-
plain error for a federal agent to testify that, during a non-

custodial interrogation, McCann had refused to provide his true

name when asked; and (4) whether the court erred in sentencing.

Given these separate issues, four standards of review

apply. First, in deciding sufficiency challenges, "we review all

the evidence, direct and circumstantial, in the light most

favorable to the prosecution, drawing all reasonable inferences

consistent with the verdict, and avoiding credibility judgments, to

determine whether a rational jury could have found the defendant

guilty beyond a reasonable doubt." United States v. Baltas, 236

F.3d 27, 35 (1st Cir. 2001) (citations omitted); see also United

States v. Ruiz, 105 F.3d 1492, 1495 (1st Cir. 1997) (noting that

sufficiency challenges are reviewed de novo). Second, where there

has been a proper objection below, we review a district court's

decision to admit evidence for abuse of discretion. See United

States v. Casas, 356 F.3d 104, 113 (1st Cir. 2004); see also Udemba

v. Nicoli, 237 F.3d 8, 14 (1st Cir. 2001) ("[A] trial court enjoys

considerable discretion in connection with the admission or

exclusion of evidence. . . ."). Third, where there has been no

proper objection below, we review an evidentiary issue for plain

error. See Casas, 356 F.3d at 113. Finally, in reviewing

sentencing determinations not involving departures, we first

determine the applicability and interpretation of the relevant

guideline de novo and then review the court's factual findings for

-9-
clear error. See United States v. Mateo, 271 F.3d 11, 13 (1st Cir.

2001); United States v. Thurston, 358 F.3d 51, 70-72 (1st Cir.

2004).

Mindful of the various standards of review, we turn now

to a sequential discussion of the four issues.

A. The Mail-Fraud Conviction

"The key elements of the crime of mail fraud, 18 U.S.C.

§ 1341, are: (1) the devising or attempting to devise a scheme or

artifice to defraud; (2) the knowing and willing participation in

the scheme with the specific intent to defraud; and (3) the use of

the mails in furtherance of the scheme."5 United States v.

Montminy, 936 F.2d 626, 627 (1st Cir. 1991) (citation omitted).

Given the arguments raised on appeal, our focus is on the third

element.

5
The mail-fraud statute provides, in relevant part, as
follows:

Whoever, having devised or intending to devise any scheme
or artifice to defraud, or for obtaining money or
property by means of false or fraudulent pretenses,
representations, or promises . . . for the purpose of
executing such scheme or artifice or attempting so to
do . . . knowingly causes to be delivered by mail . . .
any . . . matter or thing, shall be fined under this
title or imprisoned not more than 20 years, or both. If
the violation affects a financial institution, such
person shall be fined not more than $1,000,000 or
imprisoned not more than 30 years, or both.

18 U.S.C. § 1341.

-10-
 The Supreme Court has explained that, while "the mailing

must be for the purpose of executing the scheme, . . . it is not

necessary that the scheme contemplate the use of the mails as an

essential element." United States v. Maze, 414 U.S. 395, 400

(1974) (citations and quotation marks omitted). Nor is it

necessary that the mailing itself be fraudulent; an "innocent"

mailing –- i.e., one that contains no false information –- will

satisfy the in-furtherance-of requirement so long as it is

"incident to an essential part of the scheme" or "a step in the

plot." Schmuck v. United States, 489 U.S. 705, 710-11, 715 (1989)

(citations omitted). Moreover, the defendant need not himself mail

the letter; "[a] mailing need only be closely related to the scheme

and reasonably foreseeable as a result of the defendant's actions."

United States v. Serino, 835 F.2d 924, 928 (1st Cir. 1987)

(citation omitted). The relevant question is "whether the mailing

is part of the execution of the scheme as conceived by the

perpetrator at the time, regardless of whether the mailing later,

through hindsight, may prove to have been counterproductive and

return to haunt the perpetrator of the fraud." Schmuck, 489 U.S.

at 715.

McCann argues that the district court erred in denying

his motion for a judgment of acquittal on the mail-fraud count

because, "even when viewed in the light most favorable to the

government, [Picknelly's June 21st letter to the Allens] was

-11-
[mailed] after the scheme had reached fruition and . . .

therefore . . . was not in furtherance of the scheme."6

Specifically, McCann contends that, because he had already received

the proceeds from his double assignment of the mortgage, the

evidence was insufficient to establish that the letter served any

purpose but to increase the risk of detection. We disagree.

When entertaining the Rule 29 motion, Judge Ponsor

summarized the government's argument (echoed on appeal) regarding

the mailing's purpose:

I think [the government's] argument is that
the whole David/Picknelly scam, which we'll
call it since we're going to have to take the
facts at the moment in the light most
favorable to the government, was like a house
of cards. And the letter to the Allens [from
Picknelly's attorney] instructing them to
begin making their payments to Mr. Picknelly
kept that house of cards from collapsing.

It meant that Mr. McCann at this point has got
in excess of $300,000, and . . . at a cost of
[just] over $20,000 a year, he can keep paying
[David]. He can keep paying his cat's-paw,
Sara Rossman, the money every month and she
can keep sending it to [David] and he can
stall for a year on that arrangement and,
meanwhile, [the Allens would continue to pay
Mr. Picknelly] and the house of cards would
not collapse unless Mr. Allen ever ran into
Mr. David on the street or Mr. David ever had
any conversation with Mr. Picknelly about
this.

But it would keep the house of cards from
collapsing if the Allens sent their checks to

6
McCann does not contest that he "caused" the letter to be
mailed within the meaning of the statute.

-12-
 Picknelly and it would allow [McCann] . . . to
buy time in which he could maybe raise enough
money to purport to buy the mortgage back from
[David] and essentially erase that aspect of
the deal through some other, who knows what,
source of funds.

That's I think [the government's] argument.
That it lulls, it conceals, it maintains. It
props up the house of cards for a little while
longer and that that's an important part of
what he was doing.

In a nutshell, then, the government's argument is that Picknelly's

June 21st letter served the important purpose of decreasing the

risk of detection by causing the Allens' payments to be routed in

such a way as to keep the scheme running until such time as McCann

could devise a way to fix the David problem and perhaps even avoid

detection altogether.

Where the evidence supports a finding of such a purpose,

the mailing would be within the ambit of the statute. See Schmuck,

489 U.S. at 712 ("[A] mailing that is incident to an essential part

of the scheme satisfies the mailing element of the mail fraud

offense." (citation and internal quotation marks omitted)); United

States v. Lane, 474 U.S. 438, 451-52 (1986) ("Mailings occurring

after receipt of the goods obtained by fraud are within the [mail-

fraud] statute if they 'were designed to lull the victims into a

false sense of security, postpone their ultimate complaint to the

authorities, and therefore make the apprehension of the defendant[]

less likely than if no mailings had taken place.'" (quoting Maze,

414 U.S. at 403)); United States v. Pacheco-Ortiz, 889 F.2d 301,

-13-
305 (1st Cir. 1989) (post-Schmuck) ("[F]or the mailings to be

considered in furtherance of the scheme, the scheme's completion or

the prevention of its detection must have depended in some way on

the mailings." (citations and internal quotation marks omitted)).

Here, having viewed the evidence and all reasonable

inferences in the light most favorable to the verdict, we conclude

that there was sufficient evidentiary support for a finding that

Picknelly's mailing served the proffered purpose and thus was

"incident to an essential part of the scheme." Schmuck, 489 U.S.

at 711.

The evidence established that McCann was a clever con

artist who ultimately got most of what he wanted by thinking ahead,

establishing important relationships, and devising complex and

skillful schemes without going overboard. McCann almost certainly

knew that, after paying $165,000 for the note, Picknelly (an astute

businessman) would be expecting payments from the Allens and would

not need a law firm as a go-between. From this evidence, a

rational jury could have inferred that McCann intended to take full

advantage of the Picknelly situation in order to keep the scheme

going strong. Ultimate success meant avoiding detection and

Picknelly's reasonably foreseeable letter was a crucial step along

that path. By diverting the Allens' payments from Winniman &

Winniman to Picknelly, the letter protected McCann from a much-

more-risky alternative whereby, month after month, Winniman &

-14-
Winniman would receive two separate claims for a single Allens'

check. While the evidence suggests that Rossman might not have

been perplexed by this alternative situation, it also supports a

finding that others at the firm might have taken note.7 In any

event, with the Allens-Picknelly dealings completely removed from

Winniman & Winniman oversight, the only remaining problem would be

David –- and that problem easily could be satisfied by small

monthly payments from Rossman to David (through McCann's recently

padded trust account) until the McCann-to-David assignment could be

erased altogether. Indeed, the evidence points to two documents

sent to David after the Picknelly assignment –- the July 7th check

from Rossman and the undated letter from McCann received in mid-

July -- that validate this theory and, together with the other

evidence, provide a supportable basis for concluding that

Picknelly's June 21st letter was an integral part of the ongoing

scheme.

B. The Evidentiary Rulings

McCann next argues that the district court abused its

discretion when it admitted two pieces of "bad character evidence"

-- (1) testimony regarding McCann's pledging the horse farm (to

7
It is immaterial to our analysis that, ultimately, an
attorney at Winniman & Winniman discovered David's unrecorded note
and thereafter recorded it only to find that the same note had
already been recorded by Picknelly. Certainly, such a discovery
would have only been accelerated if Winniman & Winniman were
mailing monthly checks to two assignees of the same mortgage.

-15-
which he no longer held title) as collateral for his $200,000 loan

from McCormack; and (2) three different bank checks with the same

routing number –- in violation of Fed. R. Evid. 404(b) and 403.

McCann objected only to the Bank of Belize check; accordingly, the

admission of the other two checks is reviewed not for abuse of

discretion but only for plain error. See Casas, 356 F.3d at 113.

In any event, the court did not abuse its discretion.

Fed. R. Evid. 404(b) provides that "[e]vidence of other

crimes, wrongs, or acts is not admissible to prove the character of

the person in order to show action in conformity therewith." Here,

however, for reasons explained below, evidence of the loan from

McCormack and the three bank checks was admissible as direct proof

of one of two elements of the charged mail-fraud offense, namely

(1) the existence of a scheme to defraud, or (2) McCann's knowing

and willing participation in that scheme with the specific intent

to defraud. Accordingly, Rule 404(b) is not called into play. See

United States v. Santagata, 924 F.2d 391, 394 (1st Cir. 1991) ("The

documents at issue would tend to make the existence of the scheme

to defraud –- a necessary element of the crime charged –- more

likely than it would be without the documents. . . . Because the

documents were admissible as direct proof of the scheme charged,

application of Rule 404(b) was unnecessary." (citations omitted));

United States v. DeLuna, 763 F.2d 897, 913 (1st Cir. 1985)

("Evidence which is probative of the crime charged, and not solely

-16-
uncharged crimes, is not 'other crimes' evidence. Further, where

the evidence of an act and the evidence of the crime charged are

inextricably intertwined, the act is not extrinsic and Rule 404(b)

is not implicated." (citations omitted)).

Evidence of the $200,000 loan from McCormack (which

McCann "secured" by the deed to the horse farm he no longer owned)

was introduced for the limited, relevant, and specific purpose of

refuting McCann's good-faith defense theory -- that, even though

Abraczinskas's money was not returned, there was never any real

intention to defraud because McCann believed in good faith that the

funds for the horse farm would arrive from overseas, and, when they

did not, he provided Abraczinskas with the deed to the farm.

Because specific intent to defraud was an element of the charged

crime and because other evidence suggested that McCann knew that

Abraczinskas might not record his deed (due to the potential tax

consequences coupled with McCann's asserted interest in

repurchasing and accompanying explanations for the delay), the

district court supportably determined that the loan evidence was

admissible to refute McCann's theory.

Similarly, the district court acted within its discretion

in determining that evidence of the three bank checks was

admissible. The relevant checks are: (1) an as-of-yet unmentioned

"International Land & Livestock" check for $890,000 purportedly

drawn on the Bank of Belize, a copy of which McCann faxed to

-17-
McCormack in response to McCormack's request for the horse-farm

payment but which (of course) was never deposited into the Winniman

& Winniman trust account; (2) the previously discussed $2 million

check purportedly drawn on an Italian bank; and (3) a check

purportedly drawn on a credit union (found in McCann's home during

a lawful search) that shared the same routing number as the other

two checks but which was itself never used in the scheme.

Obviously, the first two checks were not only relevant to –- but

also a part of –- the charged horse-farm scheme. Evidence

regarding the third check, though perhaps less probative, still

went to two important elements of the government's case (also shown

by the other two checks): (1) that there was indeed a scheme to

defraud; and (2) that McCann knowingly and willingly participated

in it with the specific intent to defraud.8 See 18 U.S.C. § 1343.

We next turn to the question whether, despite its

probative value, the contested evidence nonetheless should have

been excluded under Fed. R. Evid. 403. That rule permits the

exclusion of relevant evidence "if its probative value is

8
Even if this evidence had not been independently admissible
as "part and parcel" of the charged offense, see United States v.
Nivica, 887 F.2d 1110, 1119 (1st Cir. 1989); United States v.
Taylor, 284 F.3d 95, 103 (1st Cir. 2002), it nonetheless would have
been admissible under Rule 404(b). The contested evidence was
being introduced not for the prohibited purpose of showing
propensity to commit the charged crimes but rather for permissible
-– and specially relevant -- purposes. See Fed. R. Evid. 404(b)
(noting that examples of such permissible purposes include "proof
of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident").

-18-
substantially outweighed by the danger of unfair prejudice . . . ."

(emphasis added). McCann uses but one paragraph to advance his

argument:

Both of these issues tended to cast a bad
light upon the defendant. They both made him
appear to be less than honest to the jury.
Without this evidence, a reasonable jury could
have believed that the Defendant was a
business man attempting to make good on a
transaction. . . . The extraneous evidence was
far more prejudicial to the Defendant's
character than it was probative of anything
and it was an abuse of discretion to admit it.

In considering the Rule 403 balance, "we will interpose

our judgment only if a complaining party can demonstrate that the

district court's ruling did not fall within the ambit of reasonable

debate." United States v. Currier, 821 F.2d 52, 55 (1st Cir. 1987)

(citations omitted). In our view, the district court supportably

concluded that the danger of unfair prejudice, if any,9 that

resulted from the admission of the loan evidence and three bank

checks was substantially outweighed by their probative value (which

we have already described). In any event, viewing the record as a

whole, we have trouble seeing how these evidentiary rulings might

have been outcome determinative. See United States v. Tom, 330

F.3d 83, 95 (1st Cir. 2003) ("[E]ven supposing error in admitting

9
Indeed, Judge Ponsor twice instructed the jury that McCann
was not being charged in connection with the McCormack loan and
that the evidence should be considered only to the extent that it
was relevant to the charged scheme surrounding the purchase of the
horse farm.

-19-
the testimony, it would have been harmless. The essential inquiry

in harmless error review is whether the improperly admitted

evidence likely affected the outcome of trial." (citations and

quotation marks omitted)). The admission of this evidence is not

grounds for upsetting McCann's convictions.

C. The FBI Agent's Testimony

At trial, Special Agent Dominic Barbara of the FBI

testified –- without relevant objection –- as follows: (1) that, on

August 9, 2000, he and an agent from the Internal Revenue Service

went to the horse farm to speak with McCann and serve him with a

grand-jury subpoena; (2) that the meeting occurred outside, in a

gazebo area on the 100-acre farm; and (3) that, during the

interview, McCann answered several questions (including questions

about the $2 million check) but refused to provide the agents with

his true name when asked.10

McCann now contends that "it was plain error affecting

substantial rights for [Special Agent Barbara] to testify that

[McCann] refused to answer their questions." Specifically, McCann

argues (with very little elaboration) that (1) his refusal to

answer the agent's what-is-your-real-name question was a valid

exercise of his Fifth Amendment rights, and (2) the agent's

testimony to this effect was plain error affecting substantial

10
The IRS agent knew, from McCann's own admission in a prior
conversation, that Danny Combs was not McCann's real name.

-20-
rights because "it involved the presentation to the jury of the

defendant's claim of Fifth Amendment rights" and served no other

purpose but to tarnish his image by "imply[ing] that [he] ha[d]

something to hide." To prevail on this claim, McCann must

demonstrate "(1) that an error occurred (2) which was clear or

obvious and which not only (3) affected [his] substantial rights,

but also (4) seriously impaired the fairness, integrity, or public

reputation of judicial proceedings." See United States v. Duarte,

246 F.3d 56, 60 (1st Cir. 2001) (citations omitted); Fed. R. Crim.

P. 52(b).

Here, whether an error occurred -- let alone a "clear or

obvious" one –- is far from certain. In Jenkins v. Anderson, 447

U.S. 231, 238 (1980), the Supreme Court held that "the Fifth

Amendment is not violated by the use of pre-arrest silence to

impeach a criminal defendant's credibility." In so holding, the

Court expressly refused to consider "whether or under what

circumstances pre-arrest silence may be protected by the Fifth

Amendment." Id. at 236 n.2. We have stated that "application of

the privilege is not limited to persons in custody or charged with

a crime; it may also be asserted by a suspect who is questioned

during the investigation of a crime." Coppola v. Powell, 878 F.2d

1562, 1565 (1st Cir. 1989). But we never have addressed the

precise question presented in this case: whether the privilege

against self-incrimination is implicated when, in the context of a

-21-
non-custodial interrogation, a suspect selectively refuses to

answer a what-is-your-real-name question despite having volunteered

answers to other questions that he perhaps believes are less likely

to induce an incriminating response.11 Moreover, the other courts

of appeal are split on the question whether, under some

circumstances, the Fifth-Amendment privilege against self-

incrimination prevents the government from using a suspect's pre-

arrest silence as substantive evidence of guilt. Compare Combs v.

Coyle, 205 F.3d 269, 283 (6th Cir. 2000) ("[T]he use of a

defendant's pre-arrest silence as substantive evidence of guilt

violates the Fifth Amendment's privilege against self-

incrimination."), United States ex rel. Savory v. Lane, 832 F.2d

1011, 1017 (7th Cir. 1987) ("The right to remain silent, unlike the

right to counsel, attaches before the institution of formal

adversary proceedings."),12 and United States v. Burson, 952 F.2d

1196, 1201 (10th Cir. 1991) (holding that, under the circumstances,

11
Coppola involved a suspect's pre-arrest refusal to answer all
questions as expressed by something more than a simple I-don't-
want-to-answer response: "Let me tell you something. I'm not one
of your country bumpkins. I grew up on the streets of Providence,
Rhode Island. And if you think I'm going to confess to you, you're
crazy." 878 F.2d at 1563. We concluded that the admission of this
particular statement was in violation of the defendant's Fifth-
Amendment rights and was not "harmless error beyond a reasonable
doubt." Id. at 1571.
12
The Seventh Circuit subsequently held that comment is
permitted when, as here, the defendant selectively responds to an
investigator's questions and thus "start[s] down the self-
exculpation road." United States v. Davenport, 929 F.2d 1169,
1174-75 (7th Cir. 1991).

-22-
the court erred in admitting an IRS agent's testimony regarding

defendant's refusal to answer any questions during a non-custodial

interrogation), with United States v. Oplinger, 150 F.3d 1061, 1067

(9th Cir. 1998) ("[W]e respectfully disagree with the First,

Seventh, and Tenth Circuits, which have all held that pre-arrest

silence comes within the proscription against commenting on a

defendant's privilege against self incrimination[;] [i]n our view,

the position those courts have endorsed is simply contrary to the

unambiguous text of the Fifth Amendment . . . ." (internal

citations omitted)), and United States v. Rivera, 944 F.2d 1563,

1568 (11th Cir. 1991) ("The government may comment on a defendant's

silence if it occurred prior to the time he was arrested and given

his Miranda warnings.").13

In any event, McCann's claim must fail for a more obvious

reason: any error did not affect his "substantial rights." See

United States v. Bradstreet, 135 F.3d 46, 50 (1st Cir. 1998)

(defining an error that "affects substantial rights" as, in most

cases, one that "affect[s] the outcome of the district court

proceedings") (citation omitted). Here, as discussed above, there

was a wealth of evidence regarding McCann's skillful participation

13
The Supreme Court may soon provide some (indirect) guidance
on the identification-question issue: certiorari was granted in
Hiibel v. Sixth Judicial Dist. Ct. of Nevada, 124 S.Ct. 430 (2003),
apparently to determine whether a state statute requiring the
subject of an investigative detention to identify himself infringes
the Fifth-Amendment privilege against compelled self-incrimination.

-23-
in various schemes to defraud. This evidence included, inter alia,

(1) in-court identification testimony from several witnesses who

testified that, over the course of the charged activities, they had

known the defendant not as McCann but rather as Danny Combs or D.

Dacques Sonner, and (2) documents central to the schemes bearing

the signatures of either Danny Combs or D. Dacques Sonner coupled

with testimony that the man now identified as McCann had signed

those documents. In short, the evidence connecting McCann to the

crimes overwhelmingly suggested that McCann "ha[d] something to

hide," and it would be unreasonable to conclude that Special Agent

Barbara's testimony provided anything save additional

corroboration.

D. The Sentence

We turn finally to two proffered grounds for vacating the

sentence: (1) "the defendant was [improperly] sentenced with the

[2002] version of the guidelines in effect at the time of

sentencing instead of the [1999] version in effect at the time of

the commission of the crime [thereby] resulting in a longer

sentence;" and (2) "the defendant was improperly assessed two

points on his criminal history category for being on probation

[even though] he subjectively believed that his probation had

ended." We need only address the second claim of error, as McCann

withdrew the other at oral argument.

-24-
 McCann's argument fails because there is nothing in the

text of the criminal history provisions that suggests that a

defendant's subjective knowledge concerning the sentence he is

serving is at all relevant to the determination of his criminal

history.14 The relevant guideline provides that, in determining

criminal history points, the sentencing court should "[a]dd 2

points if the defendant committed the instant offense while under

any criminal justice sentence, including probation." U.S.S.G.

§4A1.1(d) (2002). Because the district court had before it

evidence that McCann had committed the federal offenses while on

probation from a state conviction in Texas, the district court

added two points to his criminal history score. Given the

unambiguous and unqualified text of §4A1.1(d), that ends the

matter.

14
Neither do the purposes underlying these provisions, as
expressed in the Introductory Comments to the criminal history
section, support such an assertion. According to the relevant
commentary,

[a] defendant with a record of prior criminal behavior is
more culpable than a first offender and thus deserving of
greater punishment. General deterrence of criminal
conduct dictates that a clear message be sent to society
that repeated criminal behavior will aggravate the need
for punishment with each recurrence. To protect the
public from further crimes of the particular defendant,
the likelihood of recidivism and future criminal behavior
must be considered.

U.S.S.G. Ch. 4, Part A (intro. comment.) (2002).

-25-
 III.

For the reasons stated above, McCann's convictions and

sentence are affirmed.

-26-