USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 95-2105

UNITED STATES,
Appellee,

v.

THOMAS D'ANDREA,
Defendant - Appellant.

____________________

ERRATA SHEET

The opinion of this court issued on March 5, 1997 is amended

as follows:

Page 22, line 15 should read:

"1988)) (citations omitted)."

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 95-2105

UNITED STATES,

Appellee,

v.

THOMAS D'ANDREA,

Defendant - Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________

Coffin, Senior Circuit Judge,

____________________

and Tauro,* District Judge.

______________

_____________________

Arthur R. Silen,
________________

by appointment

of the

Court, with

whom

Roberts & Newman, P.A. was on brief for appellant.

______________________
Ira Belkin,
___________

Assistant

Sheldon Whitehouse, United

___________________

United States
States

Attorney,

Attorney, was

with whom

on brief

appellee.

____________________

March 5, 1997
____________________

____________________

Of the District of Massachusetts, sitting by designation.

for

TORRUELLA,
TORRUELLA,

Chief
Judge.
Chief
Judge.
_____________

On

October

13,

1994,

Defendant-Appellant Thomas D'Andrea ("D'Andrea") was

indicted on

one count of

bank fraud in violation of 18

1344 (Count

One) and six

counts of

making false statements

insured financial institution in violation

After

a two-week trial in the

jury found D'Andrea

sentenced D'Andrea to

U.S.C.

guilty on

to a

federally

of 18 U.S.C.

1014.

District Court of Rhode Island, a

all counts.

The district

five years' imprisonment on Count

court

One and

two

years' imprisonment

concurrently, and

for each

three years'

of the

supervised release on

and one year supervised release on the

concurrently.

to the Resolution

to run

Count One

other counts, also to run

In addition, the district

to make restitution

amount

other counts,

court ordered D'Andrea

Trust Corporation in

the

of $2.2 million for losses related to the fraudulent loan

activities.

D'Andrea now claims errors related to both the trial

and sentencing phases.

Concluding that

the district court

did

not commit error, we affirm D'Andrea's conviction and sentence.

BACKGROUND
BACKGROUND

In

brother),

obtained a

late

1988, D'Andrea,

Gary Lowenstein,

Robert

and Michael

$2.88 million loan

D'Andrea (D'Andrea's

Tulman applied

from New England

for and

Federal Savings

Bank

("New England Federal" or

institution.

"the bank"), a federally insured

The loan was obtained for the purpose of acquiring

a warehouse and truck terminal located in Cranston, Rhode Island.

Because

the bank would

only lend

up to

eighty percent

of the

total purchase price of the warehouse, D'Andrea, and at least one

-2-

of the sellers of the property, Frank Paolino, schemed to inflate

the

purchase price of the

dollars

warehouse from just

to $4.18 million.

was able to

purchase

receive from the

price,

purchasers

By so inflating

thereby

the price, D'Andrea

bank a loan in

relieving

of the burden of putting

over two million

the amount of

himself

and

his

the

fellow

any of their own money into

the purchase of the warehouse.

The scheme

New

England

Federal that

million difference

price.

In

went as

follows.

the

purchasers

required to

order to make up

D'Andrea

represented to

would pay

meet the $4.18

made to

agreements

the

sellers.

this gap, D'Andrea submitted

indicating the

In

addition, the

amount of

rent paid

$1.3

million purchase

records to the bank indicating that certain deposits

been

the

bank

false

had already

requested

by each

of the

tenants

at the warehouse.

officers

of each of the

then submitted to the

to

the bank

company

D'Andrea forged the signatures of the

warehouse tenants on

bank.

indicating

documents that he

D'Andrea also submitted

a tenant-landlord

relationship with

that never rented space at the warehouse.

testified that

a document

D'Andrea presented them with

Two witnesses

copies of documents

containing falsified rental amounts for tenants at the warehouse.

D'Andrea

also

admitted

that

he forged

tenant-at-will agreements without the

tenant

signatures

on

knowledge or permission of

officials at the tenant-companies.

During the course of the trial, D'Andrea testified that

he took

pains to pay off the $2.88 million loan from New England

-3-

Federal.

On

cross-examination

of

D Andrea,

the

government

elicited testimony that he used proceeds from a $5.9 million loan

from

loan.

Rhode Island Central

D'Andrea obtained this

Zarella brothers.1

loan,

Credit Union to pay

D'Andrea

loan along with

testified that, in

off part of that

four others, the

obtaining this

he forged the signatures of the Zarella brothers

wives on

a guarantee form.

Finally,

D'Andrea used the

warehouse property located

in

Cranston, Rhode

Island, obtained

documents, as security

through the

for yet another

use of

loan, for $585,000

false

from

Rhode Island Central Credit Union.

DISCUSSION
DISCUSSION

D'Andrea makes numerous claims on appeal, most of which

we

discern to be

related to his

sentencing.

We will consider

each argument individually.

I.
I.

Government's Use of the Phrase "Straw Borrowers"

Government's Use of the Phrase "Straw Borrowers"

Without citation to

any supporting case law,

argues as follows:

At trial, over D'Andrea's

prosecutor

repeatedly

objection, the
asked

D'Andrea

whether he used 'straw borrowers

in his

dealings with Rhode Island Central Credit

Union.

. .

D'Andrea

denied

using

D'Andrea

'straws', but regardless, the

not

have

been

jury could

unaffected, because

term 'straw borrowers'

was a

the

hot-button

term repeatedly used by the news media to

describe unsophisticated participants

in

____________________

This name

is spelled "Zarella"

in the

trial transcript and

"Zarrella" in the sentencing hearing transcript.

For purposes of

consistency, we will use the spelling "Zarella."

Some quotations

taken from Appellant's Brief contain the spelling "Zarrella."

-4-

real

estate

ventures who

were

said to

[have]

been induced

estate developers

to

join with

real

in funding speculative

and unsound real estate ventures.

We read this

statement to

effect of the government's

outweighed

its probative

have barred use of

evidence . . .

[in

such a way

something other

United States
______________

be an argument

that the

use of the term "straw

value that

the term.

prejudicial

borrowers" so

the district

court should

"Unfairly prejudicial

that 'triggers [the] mainsprings of

as to]

cause the jury

to base

than the established proposition

v.

Currier, 836
_______

(quoting 1 Weinstein's Evidence

We review

abuse of discretion.

a district

F.2d

11,

18

evidence is

human action

its decision on

in the case.'"

(1st Cir.

1987)

403, 36-39 (1986)).

court's evidentiary

rulings for

United States v. Trenkler, 61

_____________
________

F.3d 45, 56

(1st

Cir.

1995).

determination of

"'[o]nly

in

We

exceptional

weighing of

effect.'"

1996)

district

court's on-the-spot

prejudice and probativeness

exercise of a district

relative

grant

circumstances

wide latitude

will

we

reverse

and

the

court's informed discretion vis-a-vis the

probative value

and unfairly

prejudicial

United States v. DiSanto, 86 F.3d 1238, 1252 (1st Cir.

_____________
_______

(quoting

Currier, 836
_______

F.2d

at 18),

petition for cert.

___________________

filed, No. 96-1176, 65 U.S.L.W. 3531 (Nov. 12, 1996).

_____

Although

the

judge

did

not

make

explicit findings

regarding the probativeness of the inquiry into the use of "straw

borrowers,"

inquiry

as

approximately

the

government

rebuttal

$100,000

to

on

stated

D'Andrea's

that it

was

statement

deposit with

Rhode

pursuing

the

that

had

Island

he

Central

-5-

Credit

Union when the credit

union closed.

The government was

attempting to show that, although D Andrea lost a significant sum

of money because of the failure of the credit union, he also owed

the credit union

millions of dollars, including money from loans

obtained using others' names.

The

government s line of questioning was probative for

rebuttal purposes and was limited in

may

be introduced to

adversary's

(1st

proof."

Cir. 1990).

matter of

nature.

"Rebuttal evidence

explain, repel, contradict

United States
_____________

v. Laboy, 909
_____

or disprove an

F.2d 581, 588

Moreover, once the government established in a

five questions that

such loans, it moved

D'Andrea claimed no

on and did

knowledge of

not refer to "straw

again during the course of the trial.

We find

borrowers"

that the district

court did not abuse its discretion.

II.
II.

Sentencing Issues
Sentencing Issues

A.
A.

Relevant Conduct
Relevant Conduct

D'Andrea's

district

next

claim

court's judgment during

of

error

suggests

that

the

sentencing was somehow tainted

by its consideration of the term "straw borrowers":

D'Andrea's

prominent

borrower

from

role

[Rhode

as

Island

major
Central

Credit Union] could not have been ignored

by Judge

Lagueux

D'Andrea's

in his

culpability,

involvement

in

assessment
and it

the latter

was

activities

questions

the New

Federal Savings Bank case. . . .

D'Andrea

credit

was his

that fatally

infected the court's judgment in

England

of

not

on

trial

involving the

unions;

and

for

his

RISDIC-insured

the

[regarding "straw

prosecutor's
borrowers"]

were clearly intended to inflame the jury

and the court.

-6-

* * *

In

considering

position, Judge
but

forgery

the

signatures

Government's

Lagueux noted D'Andrea's

objections,
of

the

on

considered
Zarrella
the

loan

D'Andrea's

wive's

[sic]

guarantee

as

"relevant conduct". . . .

At

the

assumed
_______

same

that

time

the

trial

judge

Zarrellas['] role

that

transaction was

and

he

made

the

. .

no

in

. fraudulent,

finding

that

the

Zarrellas, or for that matter, any of the

other

alleged

involved
Island

in

"straw
a scheme

Central

borrowers"
to

Credit

were

defraud Rhode
Union,

were

unsophisticated

investors,

or

were

unaware

obligations

they

were

of

the

incurring . . . .

Appellant's

difficult to

Brief

at

22-24.

decipher, D'Andrea

Although

appellant s

appears to object

brief

both to

is

the

district

court's

Zarellas'

consideration

wives'

consideration

of

signatures

the

of

and

alleged

D'Andrea's forgery

of

to

court's

the

district

fraudulent nature

of

the

the

loan

D'Andrea obtained from Rhode Island Central Credit Union with the

Zarellas.

Both claims lack merit.

First,

the

district

court's

determination

that

D'Andrea's forgery constituted "relevant conduct" is a finding of

fact,

which we review for clear error.

Beltr n, 50
_______

court

to

F.3d 105, 109 (1st

consider

government must

the offense

uncharged

United States v. Tejada_____________

_______

Cir. 1995).

conduct

at

For

sentencing,

show a sufficient nexus between

of conviction by

United States v. Young, 78 F.3d

_____________
_____

the sentencing

a preponderance of

"the

the conduct and

the evidence."

758, 763 (1st Cir. 1996).

Under

the Sentencing Guidelines, "relevant conduct" includes acts "that

-7-

were part of the same course of conduct or common

scheme or plan

as the offense of conviction."

For actions in

the Rhode

Island Central Credit

U.S.S.G.

1B1.3.

Union loan acquisition

and the

charged offense to be considered part of a common scheme or plan,

"they must be substantially

connected to each other by

at least

one common

factor, such

common purpose, or

as common victims,

similar modus operandi."

common accomplices,

U.S.S.G.

1B1.3,

Commentary.

We believe

that the district court

properly concluded

that the use of forgery to obtain the Rhode Island Central Credit

Union loan was

fraudulent

D'Andrea

million

pay

used

proceeds

credit union

scheme or

from

loan

obtained bank

the

plan as

D Andrea s

from New England Federal.

fraudulently

to pay

off

loan.

This, as the

obtained

portions of

the

$5.9

first

district court

amounted to a scheme by which D'Andrea "robb[ed] Peter to

Paul."

at 16.

the same

efforts to obtain the loan

fraudulently

noted,

part of

Transcript of Sentencing Hearing, September 7, 1995,

We cannot find any error here, let alone clear error.

Second,

the record

offers

some indication

that

the

sentencing court considered D'Andrea's

part of the fraud

Union

to obtain

he perpetrated on Rhode Island

the

$5.9

million

"relevant conduct," the government

by

use of straw borrowers as

a preponderance of the

use of straw borrowers

loan.

To

Central Credit

be

considered

must prove D'Andrea's actions

evidence.

At

and nothing in the

trial, D Andrea denied

pre-sentencing report

supports, by a preponderance of the evidence, the conclusion that

-8-

D'Andrea used the Zarellas as straw borrowers.

record,

it does not appear that a

the evidence

of

Although, on this

showing by a preponderance of

was made by the government regarding D'Andrea's use

straw borrowers, we have already determined that the loan was

properly before

the

court as

"relevant conduct"

based on

the

forgery.

Moreover,

at

the

sentencing

proceeding,

D'Andrea's

trial counsel objected to enhancement of D Andrea s offense level

on the basis of his use of

straw borrowers only as it related to

what he considered triple counting:

the

measure

of

loss

as

result

use of the loan to calculate

of

D'Andrea's

fraudulent

activities; use of the loan as "relevant conduct"; and use of the

loan

to determine D'Andrea's role in the offense.2

D'Andrea did

____________________

D'Andrea's counsel's objection was stated as follows:

In addition, your

Honor, it's

opinion

of the

that all

counsel's

reference with

respect to the adjustment for the role of

the offense
state

of

straw borrowers

in

the

case, cases, is, again, an attempt

with an increase of

a level 4 to subject

Mr. D'Andrea to additional punishment for

something that

has not been

realize there are

in fact

on

three

different
the

done.

My

point is

done three times to

different
types

guidelines.

appropriate.

federal cases that say

that can be

that it's being

decided.

for

three

of consideration

under

levels

him

don't

Certainly

think that's
if

the

Court

finds that it's "relevant conduct" it can

consider it.
the

amount

"relevant

But it considers
of

the

loan,

conduct",

as

as

participation in the

offense.

the

But

same

thing.

it as to

yet

to

the

to

his

It's

all

he

gets

increased
activity

levels
and

for

don't

that

kind

think

of

that's

-9-

not object

that the

government

"straw borrowers" conduct

had failed

to prove

by a preponderance of

uncharged

the evidence to

justify its consideration as "relevant conduct," as he appears to

charge here.

below, we

Because

review only

D'Andrea did

for plain

not preserve this

error.

argument

See United States v.

___ ______________

Bennett, 60
_______

F.3d 902, 905 (1st Cir. 1995) (rejecting appellant s

argument

raised

for the

argument

accompanied

first time

his

on appeal

objection below);

where different

United States
______________

Tutiven, 40 F.3d 1, 7-8 (1st Cir. 1994) (applying plain

_______

sentencing argument that was

115 S. Ct. 1391

only if the error

and

basic

error to

not preserved below), cert. denied,

____________

Under

this standard, we

"will reverse

'seriously affect[ed] the fundamental fairness

integrity of

Tuesta-Toro, 29
___________

115 S.

(1995).

v.

F.3d

Ct. 947 (1995).

the

proceedings.'"

771, 775

(1st Cir.

Because

properly before the sentencing

the

United States v.
______________

1994), cert. denied,

_____________

$5.9

million

loan

was

court as "relevant conduct" based

on the forgeries alone, the district court's consideration of the

loan based on other factors cannot be plain error.

B.
B.

Amount of Loss
Amount of Loss

D'Andrea

claims error

failure to depart downward

both in the

sentencing court's

for multiple loss causation regarding

____________________

appropriate. .

. .

So my

suggestion to

the Court is that although the level with

respect

to

fraud

is

six

increased but it should not

three

fold

with

it

be

be increased

respect

particular items.

Transcript of Sentencing Hearing, at 13-14.

-10-

can

to

those

the amount of

loss to New England Federal

court's consideration

of the

and in the sentencing

Rhode Island Central

loan in calculating overall loss.

Credit Union

-11-

1.
1.

The New England Federal Loan

The New England Federal Loan

Regarding

the

contends that the loss

New

England

Federal

of $2.2 million3 to New

loan,

D'Andrea

England Federal,

and

its successor, Resolution Trust

with the economic climate in which

recover

conduct.

some of

its

loss than

Corporation, had more to do

it later sold the property to

it

had to

do with

D'Andrea's

He appears to argue that the district court should have

recognized the

multiple loss causation and

departed downward to

accommodate it.

We begin by noting that the loss table in section 2F1.1

of the

is

the

Sentencing Guidelines "presumes that

the defendant alone

responsible for the entire amount of victim loss specified in

particular loss

United States v.
_____________

Commentary to

range

selected by

Gregorio, 956
________

the sentencing

F.2d 341, 347

section 2F1.1 states

depart downward where it finds the

addition to the defendant's conduct:

court."

(1st Cir.

that a sentencing

1992).

court may

loss was caused by factors in

In a few instances, the total dollar loss

that

results

overstate

from

its

situations

the

offense

seriousness.

typically

misrepresentation

occur

is

of

Such
when

limited

materiality or is

not the sole cause

the loss.

In

. . .

may

such instances,

of
a

downward departure may be warranted.

U.S.S.G.

2F1.1, Commentary.

____________________

The amount

of loss

was determined

by subtracting

original $2.88 million loan the amount recovered at

sale

of the

property by

Resolution Trust

$600,000.

-12-

from the

the ultimate

Corporation, roughly

We

lack jurisdiction

to review

the district

court s

decision not to depart downward under the long-standing rule that

"a criminal

defendant cannot ground

an appeal

on a

sentencing

court's discretionary decision not

to depart below the guideline

sentencing range."

v. Pierro, 32
______

(1st

Cir.

1994),

United States
_____________

cert. denied,
_____________

115 S.

Ct. 919

F.3d 611,

619

(1995);

see
___

generally, United States v. Tucker, 892 F.2d 8, 9 (1st Cir. 1989)

_________ _____________
______

(holding defendant may not appeal a district court s decision not

to depart downward).

2.
2.

The Rhode Island Central Credit Union Loan

The Rhode Island Central Credit Union Loan

D'Andrea's

argument here appears

$5.9 million loss was

he

was

to suggest

not foreseeable to him because

negotiating a

non-recourse

loan.

At

that the

he thought

trial, D'Andrea

contended that he was convinced after discussions with the credit

union's

president, John Lanfredi, that

recourse and, therefore, the bank could

for

recourse

in

the

event

of

misperception, D'Andrea seems

foreseen the loss

the loan was

to be non-

not pursue the borrowers

default.

Because

of

this

to suggest that he

could not have

and thus cannot be held liable

for the amount

of that loss.

The

D'Andrea's

record

counsel

shows

only

regarding

the

the

following

loss

comment

calculation:

from

"The

defendant contends under Section F1.1(b)(1)(L) that the principal

and actual loss was

considered to

the

1.3 million and no

other factors should

determine the characteristic level."

Presentence Report, at 2.

be

Addendum to

We accordingly find that D'Andrea

-13-

failed to

review only

preserve any

foreseeability argument for

for plain error.

appeal, and

Tuesta-Toro, 29 F.3d at
___________

775.

We

discern no such error here.

C.
C.

Role in the Offense

Role in the Offense

D'Andrea argues

that

the sentencing

court

committed

reversible error when it determined, in finding that D'Andrea was

"leader" or

D'Andrea's

otherwise

"organizer"

fraud

vacate

included at

extensive.

this proposition.

the

Typically,

resentencing.

See, e.g.,
___ ____

599-600

Cir.

remanding

case for

sentencing

court

least

five

D'Andrea presents

sentence and

(1st

under U.S.S.G.

1996)

that

participants or

was

no caselaw

to support

finding an error of this

remand

to

the sentencing

(vacating

made

clear

appellant's

for

F.3d 592,

sentence

a determination

and legally

sort, we

court

United States v. Wester, 90

_____________
______

resentencing upon

had not

section 3B1.1,

and

that the

supportable

findings that the defendant was a

involving

five

or

more

leader or organizer of a fraud

participants

or

that

was

otherwise

extensive).

The district court's findings regarding D'Andrea's role

in

the offense are fact-intensive

error.

See United States v.

___ _____________

1995).

In

and we review

them for clear

Rostoff, 53 F.3d 398, 413 (1st Cir.

_______

finding that D'Andrea

was a

leader or organizer

this fraud, the sentencing court determined the following:

There's

no

question

that

organizer or leader

of this

and

two

he

[Tulman]

enlisted
and

transaction.
evidence

about

he

[Tulman]

-14-

an

transaction

other

Lowenstein,
There's

was

in

very
or

people,
this
little

Lowenstein

of

that

was

presented

in

this

case

certain[ly] they had to be aware of

but
some

of the Defendant's activities in securing

this fraudulent loan and making all these
false statements with

the bank.

was in effect a co-conspirator

The

evidence is clear

had

to know

fraud,
the
$4.1

that this

that the real

property

million

stated in

and sale agreement.

did

was a

with him.
Paolino
great big

purchase price for

was $2.8

million as

on that.

Paolino

. . .

and not

the purchase
[Pat Paolino]

[D'Andrea's] road running to get all

the fraudulent tenant letters together to

fool

the bank.

another

actor

And
in

Michael Favicchio,
this,

he

was

the

mortgage broker.
witness

He was the most nervous

I ever saw on the witness stand.

Michael Favicchio knew what was going on.

He wanted
and

his fee

as a mortgage

so he transmitted

broker

all this material

that was coming from the Defendant to the

bank.
the

He didn't
witness

tell all he

stand

participant

in

but

this

he

least

five

particular
were the

whether

So there were

participants

fraud

was

fraud

wittingly or unwittingly.
at

knew from

in

this

and, of

course, there

Zarrellas in the

other banking

fraud

with

Union

and

Rhode Island
his forgery

wives' signatures.

So

Central Credit
of

the Zarrella

it

seems to

me

that the first test is met that he was an

organizer

or

participants.

leader with
In any

five

event, it

otherwise extensive fraud

or more
was an

and there

was

one other co-conspirator, Paolino, and so

both prongs of that adjustment are met in
this case

and

the total

offense

level

should be increased by four.

Transcript of Sentencing

Hearing, at

18-19.

court making

four-level role-in-the-offense adjustment under

U.S.S.G. section

3B1.1(a) must first determine "whether the defendant acted as

organizer/leader of

court

asks

activity

the

involved

a specific

separate

five or

criminal activity.

question

more

of

whether

participants,

If

that

an

so, the

criminal

defined in

the

-15-

Commentary

as persons

commission of

who are

the offense . .

'criminally responsible

. .'"

for the

United States v. Preakos,

______________
_______

907

F.2d

7,

Commentary).

initial

10 (1st

Cir.

D'Andrea does

1990)

His

U.S.S.G.

3B1.1,

not challenge the sentencing court's

finding that he was

activity.

(quoting

an organizer or

argument focuses

leader of criminal

on whether the

district court

properly found five participants in his fraud.

The record

the

indicates that

individuals involved

specific

determine,

finding that

in the

each was

however, whether

the district court

transaction, without

a "participant."

the

court could

We

have

set out

making a

need not

found by

preponderance of the evidence that D'Andrea's fraud involved five

criminally

language

responsible

of subsection[]

"participants."

(a)

. .

"Since

is

the

disjunctive,

relevant

either

extensiveness or numerosity is a sufficient predicate for a . . .

four-level upward adjustment."

we affirm

in

the

Rostoff, 53 F.3d at 413.

_______

the district court's determination

offense because

it properly

found

Thus,

of D'Andrea's role

that his

fraud was

"otherwise extensive."

"[A]

determination

that

criminal

activity

is

'extensive' within the meaning of section 3B1.1 derives from 'the

totality

of the circumstances, including

participants but also the

duration

Dietz,
_____

of the scheme.'"

width, breadth, scope, complexity, and

Id. at
___

950 F.2d 50, 53 (1st Cir.

Guidelines provides:

"In

not only the number of

414 (quoting United States v.

_____________

1991)).

The commentary to the

assessing whether an

-16-

organization is

'otherwise extensive,' all persons

the entire

offense are

to be

considered.

involved only three participants

of many

outsiders could

3B1.1, Commentary.

defendant's

scheme

participant,

outsiders

in

involved during the course of

Thus, a fraud

that

but used the unknowing services

be considered

Where a

sentencing

involved

one other

extensive."

court finds

criminally

U.S.S.G.

that

the

responsible

the "court is free to consider the use of unwitting

determining

[whether] a

criminal

enterprise

is

'extensive' within

950 F.2d at 53.

the contemplation of section

he obtained

submitting to those

financial information

guarantors.

Dietz,
_____

D'Andrea's criminal activity, including relevant

conduct, involved

whereby

3B1.1."

fraud against

two

loans

total

for

financial

of

institutions documents that

and the

D'Andrea's

$8.1

of

million

by

contained false

forged signatures of

forgeries

institutions

tenants and

the tenants

signatures

attested to the accuracy of the financial information supplied to

the

bank, while his forgeries of the Zarellas' wives' signatures

bound

the wives

million.

section

He

to

guarantee

a loan

conspired with Frank

in

the amount

of

Paolino, a participant

$5.9

under

3B1.1, to falsify the actual sale price of the property.

He manipulated

figures involved

in the transaction

to indicate

that

he and

their

his co-purchasers

own money

investing any

sale,

when, in

of their own money.

unwitting services

Tulman, and

into the

were investing

Gary

of

secure

million of

fact, they

He also used

Michael Favicchio,

Lowenstein to

$1.3

the witting or

Pat Paolino,

the $2.88

were not

Michael

million

New

-17-

England

Federal loan, and of the four Zarella brothers and their

wives, to

obtain the

Union loan.

$5.9 million

We find

Rhode Island

that the sentencing

Central Credit

court quite

determined that D'Andrea's fraudulent schemes were

properly

extensive and

thus supported a four-level role-in-the-offense enhancement.

D'Andrea

determination

that

further argues

his

criminal

that

the sentencing

activities

impermissibly mixes "legitimate loans and

were

judge's

extensive

development activities

with isolated instances of criminal conduct."

Absolutely nothing

in the record indicates that the sentencing judge considered

activities,

legitimate or illegitimate,

beyond those related to

the New

England Federal and

loans.

This argument, unsupported by the record, does not alter

our finding of no error

Rhode Island

any
___

Central Credit

in the sentencing court's

Union

extensiveness

determination.

D.
D.

The

level by

3C1.1.

Obstruction of Justice
Obstruction of Justice

sentencing court enhanced

two points

for obstruction

D'Andrea's base offense

of justice

under U.S.S.G.

Under that section, the sentencing court must

increase

the offense level by two "[i]f the defendant willfully obstructed

or

impeded,

administration

or

U.S.S.G.

to

obstruct

or

impede,

the

of justice during the investigation, prosecution,

or sentencing of

Perjury

attempted

the instant offense . . . ."

falls within the scope

3C1.1,

Commentary.

U.S.S.G.

of obstruction of

The

-18-

3C1.1.

justice.

sentencing court found

See
___

that

D'Andrea committed perjury on

four separate occasions during the

trial:

conclude

that

two points

added for obstruction of

the

Defendant

this

trial.

was

until he was

He committed

them.

but
I

during

perjury time

His main approach to his

to

lie about

backed up against

and then he admitted the

forgery,

be

justice because

committed perjury

and time again.

testimony

should

then tried

can think

of

everything
the wall

truth, admitted
to rationalize
four

instances

where he committed perjury.

He committed

perjury concerning his lack

of knowledge

of the

amount of

tenant letters.
admitted
all.

money that was

He denied

forging others.

He

in the

forging some,
He forged them

committed perjury

by claiming

that there was another purchase

and sale

agreement

that didn't have the words 'as

is' in it.

Such document was never found

or presented.
his teeth.

He

was just lying through

There was no

such document.

He lied about his conversation with Patty

El[der].

What

Patty

concerning the amount

to be available at
about

the

work

substantial

claimed that there

credits
get it

closing.

of

the

had

And he lied
That

was a

fraud.

He

were legitimate

work

taken off the

down to

said

of money that

credits.

part

El[der]

purchase price to

two million eight.

The

figures didn't even add up.

Transcript of Sentencing Hearing, at 20.

determination

traditional perjury

of

perjury

test as explained

must

by the

be

based

on

Supreme Court

the

in

United States v. Dunnigan, 507 U.S. 87 (1993).

_____________
________

a finding that "[a] witness testifying under

. . .

[gave] false testimony

the willful intent to

result of confusion,

Dunnigan requires
________

oath or affirmation

concerning a material

matter with

provide false testimony, rather than

mistake, or faulty memory."

-19-

as a

Dunnigan, 507
________

U.S. at 94.

Here, the

perjury, "but

any one is

court found at

least four instances

sufficient" to uphold

of

the adjustment.

See United States v. Webster, 54 F.3d 1, 8 (1st Cir. 1995).

___ _____________
_______

The

offered

matters regarding which

false

testimony

were

D'Andrea's specific intent to

must

have found

court's

to support

the court

material

found D Andrea

because

they

concern

commit fraud, an element the

a guilty

verdict.

jury

The sentencing

findings of perjury cannot be overturned unless they are

clearly erroneous.

United States v. Tracy, 36 F.3d 199, 202 (1st

_____________
_____

Cir.), cert. denied, 115 S. Ct. 609 (1994).

____________

Even

if the

record, read

generously to

appellant, might conceivably support some

less damning
suggest
meddle.

that

scenario -- and
it

can --

Our review

error -- and

is

"where there

we

we do

not

would

not

only for
is more

clear
than

one plausible view of

the

sentencing

supportable

the circumstances,

court's

choice

alternatives

among

cannot

be

clearly erroneous."

Tejada-Beltr n,
______________

50 F.3d at 110.

Here, there was ample evidence,

considering only D'Andrea's false testimony regarding his forgery

of

both

tenant

willfully

and

guarantor

obstructed

D'Andrea testified

signatures,

justice.

On

more

to

find

than

on direct examination that

one

that

he

occasion,

he had permission

to sign a tenant or guarantor signature, only to be caught in his

lie

on cross-examination and to be forced to acknowledge that he

indeed committed

the

have

forgery without the permission

pertinent "signatory."

found

that such

confusion, mistake,

The

sentencing court

direct testimony

or faulty

or knowledge of

memory.

was

could easily

not the

result of

This single finding

of

-20-

perjury

is

sufficient

to

uphold

obstruction of justice enhancement.

the

sentencing

court's

We further note in passing,

that support for the sentencing court's other findings of perjury

exist in the record and preclude a finding that they were clearly

erroneous.

See id.
___ ___

-21-

E.
E.

Restitution Order
Restitution Order

D'Andrea implores

imposition

Trust

of $2.2 million restitution to

Corporation, the

successor to

contends that such action

the

us to vacate the

sentencing court's

be paid to Resolution

New England

Federal.

He

is warranted because "[r]estitution in

amount ordered by [J]udge Lagueux is, as a practical matter,

virtually

impossible

post-imprisonment

reflect

argument,

because

of fulfillment,

earning

that reality."

then,

the

consideration

is

that

sentencing

capacity,

Appellant's

regardless

and

Brief at

the restitution

court

failed

his

to

sentence

43.

order

should

D'Andrea's

cannot

properly

his ability to pay such an amount.

court found the following:

of D'Andrea's

take

stand

into

The sentencing

On

all these supervised

impose

condition

that the

make restitution to the

Corporation
million.

in
I

Defendant

the

I
probably

Defendant

Resolution Trust
amount

realize

unrealistic.

release terms I

that's
realize
will

of

$2.2

probably
that

never

the
earn

anything close to that in the future when

he comes out
to be

of prison.

aware that he has

But

I want him

that obligation

and that any earnings that he makes

will

go toward restitution.

Transcript of Sentencing Hearing, at 32.

"In

consider 'the

fashioning

amount of the

restitution

order,

loss sustained by

court

must

any victim

as a

result of the offense, the financial resources of the

the

defendant,

financial needs and earning ability of the defendant and the

defendant's dependents, and such other factors as the court deems

appropriate.'"

United States v. Newman, 49 F.3d 1, 10 (1st Cir.

______________
______

-22-

1995) (quoting 18 U.S.C.

is

3664(a) (1988)).

not required to base its determination

defendant

has

restitution.

Cir. 1996).

sentencing

the

ability

to

United States v.
_____________

repay

on a finding that the

the

ordered

Royal, 100 F.3d

_____

Instead, there must only be an

court considered

The sentencing court

D'Andrea's

amount

of

1019, 1033 (1st

indication that the

financial situation

in

arriving

at its

figure.

Id.
___

supports the conclusion that

The record

here

sufficiently

the sentencing court considered all

of the relevant factors in making its determination.

That is all

that is required.

Moreover,

should

this

restitution

order

prove

unreasonably onerous that D'Andrea is clearly unable to

responsibilities, he

may move

pursuant to 18 U.S.C.

III.
III.

the district

so

meet his

court to modify

it

3663(g).

Judicial Misconduct
Judicial Misconduct

D'Andrea

peppers

the

"Argument"

section

of

his

appellate brief with allegationsof judicial bias and misconduct.4

____________________

Appellant's

following:

bald

assertions

of

misconduct

include

the

--

"D'Andrea's prominent role

as a major

borrower from [Rhode

Island Central Credit Union] could not have been ignored by Judge
Lagueux

in his assessment of D'Andrea's

his involvement in
judgment
to a

the latter that fatally infected

newspaper

article

"Given the

in

the March

6,

1996

issue

in Rhode Island

Century,

it

including D'Andrea would

and

is unsurprising

that

heavy

be demonized, both in the

as political scapegoats.

of

the

political

since 1991, and

that Rhode Islanders will be repaying the losses . .

21st

(citing

Appellant's Brief, at 22.

depressed economic climate and hostile

atmosphere prevailing

the

the court's

in the New England Federal Savings Bank case."

Providence Sunday Journal).

--

culpability, and it was

the fact

. well into

borrowers,

public mind,

Judge Lagueux also appears to have

-23-

An inquiry
trial

into the

judge's conduct

necessarily turns

whether

the

complaining

serious prejudice.

. . .

question a reviewing
judge's

on the

a standard of

recognizing that

tends to be fact-specific.'

differentiate

show

In answering this

This process requires the reviewing

impatience,

can

court must evaluate the

and impartiality,

each case

question of

party

actions 'according to

fairness

of the

between
annoyance

. . .

court to

expressions
or

ire, on

the

of
one

hand, and bias or partiality, on the other.

____________________

been

infected by the clamor,

willingness to

punish D'Andrea

Island Central Credit Union],

and that his

sentence reflected a

for his involvement

with [Rhode

on a dubious theory of

liability,

without specific proof of fraud or conspiracy presented."

26.

Id. at
___

--

"Moreover,

[Rhode Island Central Credit Union],

insured financial institution,

and

political intrigue

Statehouse
Absent

This

the Rhode

makes a weak case

proof

condemnation is
.

with

he

subject to weak

state regulation

Island Legislature

on which the

violated

a privately

specific

and

Government can rely.

prohibitions,

moral

not enough to sustain D'Andrea's punishment. . .

distinction was apparently lost on Judge Lagueux, and he

regarded the [Rhode Island Central Credit Union] and [New England
Federal] transactions

as correlatives

both in time

Given the limited

information the judge had before

the two

in his

together

own

mind in

order

and intent.

him, linking

to quadruple

the

punishment meted out to D'Andrea strongly suggests that the prior

publicity about

RISDIC and

had an effect."

Id. at 30.
___

--

"A fair

[Rhode Island Central

reading of the sentencing hearing

but one conclusion, that Judge Lagueux's

say

more about

what he

Credit Union]

transcript yields

comments from the bench

thought D'Andrea

stood for

than about

conduct for which D'Andrea bears legitimate responsibility."

Id.
___

at 35-36.

--

"Judge Lagueux determined that

between D'Andrea's
against him
sided and

testimony

was perjurious.
unfair. . .

and

virtually every disagreement

the

testimony

Those findings were

The entire tenor

of

witnesses

entirely one-

of Judge

Lagueux's

comment showed his predisposition to discount everything D'Andrea

said,

regardless

of the

probability that

one

or more

of the

Government's witnesses was not telling the entire truth."

Id. at
___

39-41.

-24-

Logue v. Dore, No. 96-1143, 1197 WL 2447, at *4 (1st Cir. Jan. 8,

_____
____

1997)

(quoting United States v.

_____________

Polito, 856 F.2d

______

414, 418 (1st

Cir. 1998)) (citations omitted).

D'Andrea points to nothing in the record to support his

allegations,

nor

does

he

demonstrate any

prejudice.

After

painstakingly poring

over nearly 1,450 pages

of transcript from

both

sentencing hearing,

are left

the

trial and

unmistakable

conclusion that Judge

single act of "impatience,

misconduct.

we

Lagueux did not

with the

engage in a

annoyance or ire," let alone

bias or

D'Andrea's allegations are meritless.

CONCLUSION
CONCLUSION

Based on

the foregoing considerations,

district court's rulings.

we affirm
affirm

the

-25-