Location via proxy:   [ UP ]  
[Report a bug]   [Manage cookies]                
Scribd Logo
Upload

Welcome to Scribd!

  • 14 views

    United States v. Cronin, 1st Cir. (1993)

    Uploaded by

    Scribd Government Docs
    §3663. (1986). amounts We See Kelly v. Robinson, 479 ________ accordingly for which Starck and Mendell were convicted.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd

    United States v. Cronin, 1st Cir. (1993)

    Uploaded by

    Scribd Government Docs
    14 views14 pages
    §3663. (1986). amounts We See Kelly v. Robinson, 479 ________ accordingly for which Starck and Mendell were convicted.

    Original Description:

    Filed: 1993-03-30 Precedential Status: Precedential Docket: 92-1790

    Copyright

    © Public Domain

    Available Formats

    PDF or read online from Scribd

    Did you find this document useful?

    Is this content inappropriate?

    §3663. (1986). amounts We See Kelly v. Robinson, 479 ________ accordingly for which Starck and Mendell were convicted.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    14 views14 pages

    United States v. Cronin, 1st Cir. (1993)

    Uploaded by

    Scribd Government Docs
    §3663. (1986). amounts We See Kelly v. Robinson, 479 ________ accordingly for which Starck and Mendell were convicted.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    of 14

    USCA1 Opinion

    March 30, 1993

    UNITED STATES COURT OF APPEALS


    FOR THE FIRST CIRCUIT
    ____________________

    No. 92-1790
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    JOHN M. CRONIN,
    Defendant, Appellant.
    _____________________
    No. 92-1791
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    ROBERT E. STARCK,
    Defendant, Appellant.
    ____________________
    No. 92-1792
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    NATHANIEL M. MENDELL,

    Defendant, Appellant.
    ____________________
    APPEALS FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. William G. Young, U.S. District Judge]
    ___________________
    ____________________

    ____________________
    Before
    Breyer, Chief Judge,
    ___________
    Aldrich, Senior Circuit Judge,
    ____________________
    and Selya, Circuit Judge.
    _____________
    ____________________

    Annemarie Hassett with whom Federal Defender Office was on br


    _________________
    _______________________
    for appellant John M. Cronin.
    Richard C. Driscoll, Jr., with whom Driscoll and Mattingly, P
    ________________________
    __________________________
    was on brief for appellants Robert E. Starck and Nathaniel M. Mende
    Mark J. Balthazard, Special Assistant United States Attorn
    ____________________
    with whom A. John Pappalardo, United States Attorney, was on brief

    __________________
    appellee.
    ____________________
    March 30, 1993
    ____________________

    ALDRICH,

    Senior Circuit Judge.


    ____________________

    Starck and Mendell were


    20 count

    indictment for

    Defendants Cronin,

    variously convicted on some 15


    mail fraud and

    of a

    inducing interstate

    transportation to obtain property by fraud, 18 U.S.C.


    and

    2314.

    Cronin was

    sentenced as an

    1341

    organizer or leader;

    Starck and Mendell as managers or supervisors.

    They appeal,

    claiming that the evidence did not warrant findings of guilt,


    or, in any event,

    justify these added characterizations, and

    that the orders for

    restitution were excessive.

    We

    affirm,

    shares

    in

    except as to the last.


    The

    fraud

    involved

    sales

    of time

    proposed Cape Cod resort, Village Green.

    Although there were

    many

    subsidiary misrepresentations of consequence, the basic

    ones

    were

    investment;

    that

    Village

    that

    its

    renovated for the


    RCI, Resort

    property,

    sound

    then

    motel,

    long

    after the

    only

    inevitable,

    no financing even

    start, foreclosure
    but imminent.

    there was

    no

    to accomplish it.

    long-term
    would

    Membership

    in

    other

    point of

    sufficient to get

    were not met,

    and, not

    and bankruptcy

    were not

    Second,

    bona fide

    In

    be

    member of

    time at Village Green for

    ground; initial obligations

    renovation,

    it was a

    most attractive inducement.

    Village Green had

    ability

    Condominium International, Inc.

    resorts, and was a

    off the

    was

    1989 season; and that

    RCI would permit exchanging

    fact

    Green

    with respect

    prospect of

    to

    financial

    Third, the sales pitch was larded

    -3-

    with

    RCI

    (contrary
    recited

    posters;

    brochures

    to RCI's instructions),
    membership,

    whereas,

    application was never


    total,

    some

    returned,

    were offered

    with sales

    and the
    in

    was

    the

    membership

    rejected.

    collected of

    continuing while

    customers

    sales agreements

    fact,

    completed, and was

    $272,000

    many

    which

    In

    sum

    little

    was

    other protests

    were

    ignored.
    Each defendant denies guilt, or, at the least, says
    that the

    others were more responsible.

    "[T]he prosecution's

    According to Cronin,

    evidence amounted to

    nothing more than

    mere association between defendant and the sales people (sic)


    who

    made the

    presented

    misrepresentations. . .

    no substantial

    evidence that

    more importantly, exercised control


    the

    time shares were sold. . .

    defendant

    read, reviewed, discussed,

    salespeople

    purchasers
    These

    that

    salespeople

    . . .

    not

    under

    was
    the

    prosecution

    defendant had,

    or,

    over the manner in which


    no evidence that

    or otherwise

    knew the

    The evidence was

    defendant,

    Village Green
    were

    The

    There was

    contents of the sales documents. . .


    the

    told

    that

    prospective

    a member

    of

    RCI . . .

    direct

    and

    constant

    supervision of Hart, the Project Director."


    In point
    development.

    of fact Cronin was the

    originator of the

    He had made contact with one Hatfield, who led

    him

    to

    Starck

    and

    financing was never

    Mendell

    to

    provide

    financing.

    The

    completed, as he knew, and Hatfield told

    -4-

    him it was essential.

    Cronin obtained a sizeable

    loan

    annually, subject

    at 24%

    Starck

    interest

    and

    Mendell.

    contribution to the
    with Starck and

    He was

    to endorsement

    receive $400,000

    development, and was

    Mendell as

    difficulty at the

    to

    Deeds.

    share

    had had

    He took

    by

    for his

    said not to

    owners because he

    Registry of

    six month

    some

    a note

    and

    third mortgage, which, surely, maintained his interest.


    As
    Hart, the
    reported

    to Cronin's

    innocence

    Project Director,
    to

    him.

    Cronin,

    of what

    was partly
    in

    fact,

    was going

    on,

    by him,

    and

    hired
    was

    in

    marketing, and was said to be present every day.


    in

    charge

    of

    He had been

    charge of marketing at an earlier development, and was no

    amateur.

    He

    could not

    brochures having,

    help but

    in fact,

    see

    the RCI

    posters and

    directed the installation

    of an

    RCI room, and he told at least one salesman they were already
    a member.

    (Others said he

    said it was

    going through as

    matter of course, which

    was equally untrue.)

    painted in his brief is not

    The

    what we consider.

    rosy view

    The most that

    might be said is that the enterprise may have started on good


    intentions,

    but when that paving ran out it proceeded on the

    backs of prone customers.


    We

    mention briefly Cronin's objection to testimony

    that he instructed

    the contract secretary to

    place the name

    Bernard Cohen on the weekly payroll request at $1,500, at the


    same time

    telling her that Cohen

    was a dead friend

    of his.

    -5-

    Cronin

    asserts

    prejudicial.
    showing

    to

    have been

    irrelevant

    Rather, it was highly relevant.

    that

    contrary to

    this

    Cronin

    was

    improperly

    his denial "that money was

    milking

    and

    highly

    In addition to
    the

    scheme,

    paid [him]" (payroll

    distributions were in cash), it showed the degree to which he


    was in charge.

    The court's finding that

    relevancy prevailed

    over prejudice was well warranted.


    We

    pause here to say that enough has been shown to

    justify the court's finding, with reference to sentence, that

    Cronin was an organizer or leader.


    Turning to Starck
    were

    the

    title

    purchase note.

    owners,
    The jury

    U.S.S.G.

    3B1.1(a).

    and Mendell, they,


    and had

    as trustees,

    personally

    endorsed

    found in their favor on

    the

    some early

    counts.

    They contend, for this and other reasons, that they

    did

    "devise

    not

    the

    defendants

    can take no

    Harris
    ______

    Rivera,
    ______

    v.

    necessary that

    Passing

    comfort from

    454 U.S.

    339,

    the

    fact

    870 F.2d 1,

    that

    inconsistent verdicts,
    345

    (1981),

    it is

    a defendant be an original organizer.

    States v. Serrano,
    ______
    _______
    issue

    scheme."

    6 (1st Cir.

    1989).

    not

    United
    ______
    On

    the

    of the RCI alone there were ample incidents to warrant

    conscious deceit.
    have been

    On top of this, these defendants could not

    ignorant of the many

    financial difficulties that,

    in due course, presaged ruin.


    As

    to

    the

    sentencing

    increase

    because

    these

    defendants were found to be managers or supervisors, U.S.S.G.

    -6-

    3B1.1(b), Starck
    We review

    only

    and Mendell were, after

    for clear

    error,

    all, the owners.

    United States
    _____________

    v.

    Panet______

    Collazo, 960 F.2d 256, 261 (1st Cir.), cert. denied sub nom.,
    _______
    _____________________
    Diaz v. United States, 113 S.Ct. 220 (1992), and we see none.
    ____
    _____________
    Manifestly they

    cannot

    deny responsibility

    misrepresentation by salesmen of
    to the point

    deliberate

    which they were aware, even

    of receiving complaints,

    that they were not

    for

    simply on the

    ground

    the ones who devised the procedure.

    This

    would be a happy day for vendors with loose consciences.


    record

    is

    replete

    defendants', at

    with

    least

    misrepresentations,

    occasional,

    awareness

    and

    The

    and

    of

    lack

    of

    concern.

    complain

    With

    reference

    that

    the

    obstructing
    rejection

    court

    justice
    of

    this

    by

    charged
    committing

    contention,

    Polanco, 927 F.2d 14,


    _______
    confirmed.

    to sentences,

    Starck

    them

    and Mendell

    with

    points

    perjury.

    Our

    United States v.
    ______________

    21-22 (1st Cir. 1991), has

    United States
    ______________

    v. Dunnigan,
    ________

    122

    for
    prior

    Batista________
    since been

    L. Ed.2d

    445

    scheme

    had

    (1993).
    Next, defendants
    commenced

    prior

    sentences, they

    to

    the

    complain

    that their

    Guidelines.

    As

    were concurrent, and even

    to

    the

    prison

    though mail fraud

    counts are separate offenses, see United States v. Lilly, 983


    ___ _____________
    _____
    F.2d

    300

    (1st

    Cir.

    1992),

    there

    can

    be

    no

    possible

    constitutional question.

    There

    is a problem,

    though, with

    -7-

    regard to restitution.
    their brief that

    Although Starck

    and Mendell state in

    the court ordered restitution for

    amount obtained, this was not

    so individually.

    was convicted on

    and as to

    court

    there

    had been acquitted.

    for more than


    had been

    indictment's

    much more

    20

    the

    that

    in

    This is correct, United States


    _____________

    v. Fox,
    ___

    offenses

    found by

    the court

    United States
    _____________

    within

    argued

    in the

    look at

    Cir. 1989);

    This,

    convicted --

    sentence it was proper to

    357 (1st

    1989).

    still charged

    was named

    The government

    889 F.2d

    acquittal.

    which he was

    collected than

    counts.

    the entire picture.

    terms

    each defendant

    This, however,

    the counts on

    determining the length of

    Cir.

    No defendant

    ordered deducted from the full amount the counts as to

    which he
    him

    all counts,

    the full

    indeed, even
    though there

    to considering
    had been

    v. Mocciola, 891 F.2d 13,


    ________

    however, is

    the guidelines.

    for enhancement
    Restitution

    is a

    a jury
    17 (1st

    of prison
    separate

    matter.

    18 U.S.C.

    U.S. 411
    with

    the

    In United States v.
    _____________

    (1990), the defendant, charged,


    use of

    fraudulent
    use

    3663.

    stolen credit

    use of one.

    of others.

    The

    in several counts,

    cards,

    The order

    Hughey, 495
    ______

    pled guilty

    to the

    for restitution included

    Court reversed, saying

    the outer limit

    was "the loss caused by the conduct underlying the offense of


    conviction."

    Id. at 420.
    __

    This decision,

    however, did not

    entirely clear the air, and the circuits have split as to its
    application in mail fraud cases.

    -8-

    As of
    appear disposed
    is

    the moment, five circuits


    to answer, that the

    the particular

    "offense of conviction"

    mailing charged.

    Pivorotto, No. 92-3207,


    _________

    have answered, or

    1993 U.S. App.

    See
    ___

    United States
    _____________

    LEXIS 2835, at

    v.
    *10,

    n.5

    (3d Cir. Feb. 22, 1993); United States v. Seligsohn, 981


    _____________
    _________

    F.2d

    1418, 1421 (3d Cir. 1992); United States v. Jewett, 978


    _____________
    ______

    F.2d 248, 252


    1993

    U.S.

    (6th Cir. 1992);

    App. LEXIS

    United States v.
    _____________

    3303, at

    *18-*24

    Streebing,
    _________

    (6th Cir.

    Mar. 2,

    1993); United States v. Gravatt, 1991 U.S. App. LEXIS 30671,


    ______________
    _______
    at *10-*14 (6th
    350);

    Cir. Dec.

    27, 1991) (rep'd mem., 951


    __________

    F.2d

    United States v. Sharp, 941 F.2d 811, 814-15 (9th Cir.


    _____________
    _____

    1991); United States v. Angelica,


    ______________
    ________

    951 F.2d 1007,

    1009 (9th

    Cir. 1991); United States v. Wainwright, 938 F.2d 1096, 1097_____________


    __________
    98

    (10th Cir. 1991); United States v. Stone,


    ______________
    _____

    948 F.2d 700,

    703-04 (11th Cir. 1991); see also United States v. Marsh, 932
    ___ ____ _____________
    _____
    F.2d
    two

    710, 712-13 (8th Cir. 1991) (Heaney, J., with the other
    judges concurring in

    however, answered that the


    whole.
    4737,

    the result).

    Two

    circuits have,

    offense includes the scheme as

    See United States v. Stouffer, 1993 U.S.


    ___ ______________
    ________

    App. LEXIS

    *30-*34 (5th Cir. Mar. 16, 1993) (Garza, J., with whom

    Smith, J.

    concurred; Reavley,

    J. dissented on

    this issue);

    United States v. Bennett, 943 F.2d 738, 740 (7th Cir. 1991),
    ______________
    _______
    cert. denied,
    _____________
    Brothers,
    ________

    112 S.

    Ct.

    2970

    (1992); United States


    ______________

    v.

    955 F.2d 493, 497 (7th Cir.), cert. denied, 113 S.


    ____________

    Ct. 142 (1992); United States v. Langer, 962 F.2d 592, 600-01
    _____________
    ______

    -9-

    (7th

    Cir. 1992); United States v. Turino, 978 F.2d 315, 317_____________


    ______

    19 (7th Cir. 1992).


    This

    is

    understand the split.


    offenses,

    has

    restitution.1
    analysis, and

    difficult

    the

    these

    limited

    The

    statute

    in

    circumstances

    for the brief pre-amendment

    the present case are content


    view.

    sentence

    and

    we

    well

    Congress, meanwhile, since defendants'

    amended
    Under

    question,

    favor

    of

    broad

    we forego

    total

    period covered by

    to accept the lenient

    with respect

    to

    majority

    restitution must

    be

    to the amounts in the counts on which the particular

    defendant was found guilty.


    Affirmed, except remanded for correction of orders
    ___________________________________________________
    for restitution in accordance with this opinion.
    _______________________________________________

    ____________________
    1.

    (2) For the purposes of restitution, a


    victim of an offense that involves as an
    element a scheme, a conspiracy, or a
    pattern of criminal activity means any
    person directly harmed by the defendant's
    criminal conduct in the course of the
    scheme, conspiracy, or pattern.

    3663(a)(2).
    Added by Pub. L. No. 101-647,
    Stat. 4789, 4863 (Crime Control Act of 1990).
    -10-

    2509, 104

    You might also like