USCA1 Opinion

[NOT FOR PUBLICATION]

United States Court of Appeals

For the First Circuit
____________________

No. 96-1972

UNITED STATES,

Appellee,

v.

JERALD J. COHEN,

Defendant - Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________

Campbell, Senior Circuit Judge,

____________________

and Stahl, Circuit Judge.

_____________

_____________________

Morris M. Goldings, with whom Richard S. Jacobs and Mahoney,

__________________
_________________
________
Hawkes & Goldings were on brief for appellant.
_________________
Jean B. Weld, Assistant
_____________
Paul M. Gagnon,
_______________

United

United States Attorney,

States

Attorney,

was

on

with whom
brief

for

appellee.

____________________

June 25, 1997

____________________

Per
Curiam.
Per
Curiam.
____________

Defendant-Appellant

Jerald

J.

Cohen

("Cohen") pled guilty to

one count of conspiracy to

fraud and bank bribery, in

and

215(a)(1).

participation

violation of 18 U.S.C.

Cohen's

in a loan

commit bank

offense

conduct

scheme whereby

371,

1344,

involved

he received

his

nearly $16

million in real estate loans, for which he paid at least $734,500

in "kickbacks" to particular bank officials.

On August 20, 1996,

the district court sentenced Cohen to 15 years' imprisonment.

At

Cohen's sentencing hearing, the district court denied his request

for a two-level downward adjustment for being a minor participant

under United

Cohen's

States Sentencing Guidelines

only contention

is

that the

3B1.2.

On appeal,

district court

committed

clear error when it failed to grant him the downward adjustment.

"Assessing

defendant's role

in

the

offense is

fact-specific

task,

considerable

respect

court.'

follows, therefore,

looms

It

[,]

suggesting

be paid

by

its

to the

very

views

of the

that unless

sentencing

court's

nature

nisi prius

a mistake

determination

defendant's role will be set aside only for clear error."

States v.
______

Tejada-Beltr n, 50
______________

F.3d 105,

110-11 (1st

'that

of law

of

United
______

Cir. 1995)

(quoting United States v. McDowell, 918 F.2d 1004, 1011 (1st Cir.
_____________
________

1990)).

"The

defendant bears the burden

entitled to a downward

United States v.
______________

1997).

of proving that he

adjustment for his role in

Gonz lez Soberal,

________________

109 F.3d

is

the offense."

64, 73

(1st Cir.

-2-

The Sentencing

grant a two-level

the

criminal

participant who

Guidelines allow the district

downward adjustment to a

activity.

is less

This

minor participant in

departure

culpable than most

applies

to

"any

other participants,

but whose role could not

be described as

3B1.2, comment. n.3; see

___

United States v. Ocasio, 914

_____________
______

333 (1st Cir. 1989).

court to

minimal."

U.S.S.G.

F.2d 330,

Cohen argues that the

in the

other

course of ruling that

participants

in

this

district court made three errors

he was not less

conspiracy

participant who commits this offense.

district

court

relied

on

the

mere

participated

in the kickback scheme

culpable

the

court's

as

other

or

the

average

alleges that:

(1) the

fact

than

that

he

knowingly

to conclude that

he was as

conspiracy members;

(2)

the

district

finding that Cohen was not less culpable than the others

was clearly erroneous in

and the

He

culpable than the

the face of the

probation department's

U.S. Attorney's1 allegedly contrary

the amount of fraudulent

assertions; and (3)

loans Cohen received and the

already been taken

bribes he

paid to bank

officials had

into account

in

establishing

the base offense level, implying that consideration

of

these

amounts

in

determining

that

participant amounted to double-counting.

three

errors require that

we reverse

he

was

not

minor

Cohen claims that these

his sentence

and remand.

____________________

While

the U.S.

Attorney's Office

apparently conceded

that

Cohen was less culpable than the other members of the conspiracy,
the Office

made clear at the sentencing

believe that Cohen

hearing that it did not

was less culpable than the

who commits this sort of bank fraud.

-3-

average defendant

Beyond these broad and conclusory assertions, however, he has not

been able to point

the conclusion

that of

to facts in the

record sufficient to

that his culpability was

the other participants in

point -- that

the scheme or --

bank fraud

and bribery.

develop or support his argument that

regarding

his

participants,

significantly less than

his culpability was less than that

defendant who commits

culpability

contrary

compel

more to the

of the average

Nor does

Cohen

the district court's ruling

relative

to assertions

to

of

the

the

other

conspiracy

parties and

the

probation department, is necessarily reversible error.

In

with

addition to

evidentiary

adjustment,

support

noting Cohen's

for

we find no error

minor

failure to

participant

present us

downward

in the district court's conclusion

that

he was not

court

entitled to such

specifically noted

that

active participation in the

an adjustment.

Cohen's

The district

conduct, including

conspiracy's intended purposes, made

him at least as culpable as the other criminal participants.

record

specifically reveals

time period,

As sole borrower

success

error

of the

in the

that, during

Cohen repeatedly

provided bribes and from

his

applied

The

a one-and-a-half-year

for loans

for which

he

which he received considerable benefit.

of four loans, Cohen's role was integral to the

scheme as related

district court's

to these

refusal to

loans.

We find no

grant Cohen

a minor

participant downward adjustment.

Upon

briefs,

full

consideration

and argument of counsel,

of

the

record,

we affirm the

appellate

decision of the

-4-

district court on the basis of its rulings at Cohen's August

1996, Sentencing Hearing.

Affirmed.
________

20,

-5-