United States v. Cohen ( 1997 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]



                            United States Court of Appeals

                                For the First Circuit

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          No. 96-1972



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                   JERALD J. COHEN,



                                Defendant - Appellant.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF NEW HAMPSHIRE



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



                               Torruella, Chief Judge,
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                           Campbell, Senior Circuit Judge,
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                              and Stahl, Circuit Judge.
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                                _____________________



               Morris M. Goldings, with whom Richard S. Jacobs and Mahoney,
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          Hawkes & Goldings were on brief for appellant.
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               Jean B.  Weld, Assistant  United States Attorney,  with whom
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          Paul M.  Gagnon,  United  States   Attorney,  was  on  brief  for
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          appellee.







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                                    June 25, 1997

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                    Per   Curiam.    Defendant-Appellant  Jerald  J.  Cohen
Per   Curiam.
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          ("Cohen") pled guilty to  one count of conspiracy to  commit bank



          fraud and bank bribery, in  violation of 18 U.S.C.    371,  1344,



          and   215(a)(1).      Cohen's   offense   conduct  involved   his



          participation  in a loan  scheme whereby  he received  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  States Sentencing Guidelines    3B1.2.   On appeal,



          Cohen's  only contention  is  that the  district court  committed



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



                    "Assessing  a  defendant's role  in  the  offense is  a



          fact-specific  task,   suggesting  by   its  very   nature  'that



          considerable  respect  be paid  to the  views  of the  nisi prius



          court.'   It  follows, therefore,  that unless  a mistake  of law



          looms  .  .  .  [,]  a  sentencing  court's  determination  of  a



          defendant's role will be set aside only for clear error."  United
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          States v.  Tejada-Beltr n, 50  F.3d 105,  110-11 (1st  Cir. 1995)
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          (quoting United States v. McDowell, 918 F.2d 1004, 1011 (1st Cir.
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          1990)).  "The  defendant bears the burden  of proving that he  is



          entitled to a downward  adjustment for his role in  the offense."



          United  States v.  Gonz lez Soberal,  109 F.3d  64, 73  (1st Cir.
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          1997).









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                    The Sentencing  Guidelines allow the district  court to



          grant a two-level  downward adjustment to a  minor participant in



          the  criminal   activity.     This  departure  applies   to  "any



          participant who  is less  culpable than most  other participants,



          but whose role could not  be described as  minimal."   U.S.S.G.



          3B1.2, comment. n.3; see  United States v. Ocasio, 914  F.2d 330,
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          333 (1st Cir. 1989).



                    Cohen argues that the  district court made three errors



          in the  course of ruling that  he was not less  culpable than the



          other  participants  in  this  conspiracy  or  than  the  average



          participant who commits this offense.  He  alleges that:  (1) the



          district  court  relied  on  the  mere  fact  that  he  knowingly



          participated  in the kickback scheme  to conclude that  he was as



          culpable  as  the  other  conspiracy members;  (2)  the  district



          court's  finding that Cohen was not less culpable than the others



          was clearly erroneous in  the face of the  probation department's



          and the  U.S. Attorney's1 allegedly contrary  assertions; and (3)



          the amount of fraudulent  loans Cohen received and the  bribes he



          paid to bank  officials had  already been taken  into account  in



          establishing  the base offense level, implying that consideration



          of  these  amounts  in  determining  that  he  was  not  a  minor



          participant amounted to double-counting.  Cohen claims that these



          three  errors require that  we reverse  his sentence  and remand.


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          1   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  hearing that it did not

          believe that Cohen  was less culpable than the  average defendant

          who commits this sort of bank fraud.



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



          been able to point  to facts in the  record sufficient to  compel



          the conclusion  that his culpability was  significantly less than



          that of  the other participants in  the scheme or --  more to the



          point -- that  his culpability was less than that  of the average



          defendant who commits  bank fraud  and bribery.   Nor does  Cohen



          develop or support his argument that  the district court's ruling



          regarding  his  culpability  relative  to  the  other  conspiracy



          participants,  contrary  to assertions  of  the  parties and  the



          probation department, is necessarily reversible error.



                    In  addition to  noting Cohen's  failure to  present us



          with  evidentiary  support  for  a  minor  participant   downward



          adjustment,  we find no error  in the district court's conclusion



          that  he was not  entitled to such  an adjustment.   The district



          court  specifically noted  that  Cohen's  conduct, including  his



          active participation in the  conspiracy's intended purposes, made



          him at least as culpable as the other criminal participants.  The



          record  specifically reveals  that, during  a one-and-a-half-year



          time period,  Cohen repeatedly  applied  for loans  for which  he



          provided bribes and from  which he received considerable benefit.



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



          success  of the  scheme as related  to these  loans.   We find no



          error  in the  district court's  refusal to  grant Cohen  a minor



          participant downward adjustment.



                    Upon   full  consideration  of  the  record,  appellate



          briefs,  and argument of counsel,  we affirm the  decision of the





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          district court on the basis of its rulings at Cohen's August  20,



          1996, Sentencing Hearing.



                    Affirmed.
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