DocketNumber： 92-1251
Filed Date： 9/24/1992
Status： Precedential
Modified Date： 9/21/2015
September 24, 1992
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1251
UNITED STATES OF AMERICA,
Plaintiff, Appellant,
v.
RICHARD P. RUST,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
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Before
Torruella, Circuit Judge,
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Campbell, Senior Circuit Judge,
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and Brody,* District Judge.
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Alexandra Leake, Assistant United States Attorney, with whom A.
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John Pappalardo, Acting United States Attorney, was on brief for the
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United States.
Harry C. Mezer, P.C., with whom Jack I. Zalkind was on brief for
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appellee.
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*Of the District of Maine, sitting by designation.
CAMPBELL, Senior Circuit Judge. The defendant,
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Richard P. Rust, pled guilty in the district court to one
count of wire fraud in violation of 18 U.S.C. 1343, and was
sentenced to two-months home detention, two-years probation,
and restitution in the amount of $14,904. Pursuant to 18
U.S.C. 3742(b), the government now appeals from this
sentence, arguing that the court clearly erred in finding
that defendant's offense did not involve more than minimal
planning under U.S.S.G. 2F1.1(b)(2). As we are constrained
to agree, we vacate and remand for resentencing.
I.
I.
Richard Rust, the former director of the
Massachusetts Office of Travel and Tourism, was charged in an
information with one count of wire fraud in violation of 18
U.S.C. 1343. The information charged that for a period of
more than four years, from August 1984 to October 1989, the
defendant devised and executed a scheme to defraud the
Commonwealth of Massachusetts through the falsification of
his Travel Expense Vouchers and the alteration of underlying
support documents.
In his plea agreement with the government, the
defendant stipulated that the offense had involved more than
minimal planning within the meaning of U.S.S.G. 2F1.1, and,
therefore, the appropriate total offense level was 11. A
two-level increase in the base offense level is mandated by
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U.S.S.G. 2F1.1(b)(2) if the offense involves "more than
minimal planning." Under this offense level and defendant's
criminal history category, the guideline range required
incarceration for from 8 to 14 months. The presentence
report agreed with the parties' calculation of the total
offense level and with the parties' position that the offense
had involved more than minimal planning. The defendant did
not object to this aspect of the presentence report.
At the sentencing hearing, however, defendant's
attorney suggested that "if the Court felt this was not a
jail case [the court] could say it did not involve more than
minimal planning." The court then inquired of the defendant,
"[h]ow much planning did you do when you concocted these
documents?" Defendant responded that "the most planning [he]
ever did was to take out a pair of scissors and a bottle of
glue on a couple of instances, and in most instances it was
handwriting." In addition, defendant's attorney contended
that the falsifications were "so obvious that when they saw
it they picked it up almost immediately. That . . . shows
minimal planning, because if he had planned the thing with
maximum effort, then perhaps he wouldn't have got caught."
The government countered that, over a period of
more than four years, defendant had submitted 23 false Travel
Expense Vouchers, seeking a total of approximately $15,000 in
false expenses. The government noted that the defendant
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often saved airline tickets from personal trips and submitted
them as expenses from business trips. Moreover, defendant
frequently altered the underlying receipts and tickets to
support his claims in the Travel Expense Vouchers. For
example, defendant, on numerous occasions, altered gratis or
reduced fare tickets to reflect a full price fare by cutting
and pasting a full fare block from another ticket, or by
obliterating the reduced fare and inserting the full fare in
his own handwriting. Furthermore, on other occasions,
defendant added digits to the ticket price so as to increase
the amount for which he was seeking reimbursement. Defendant
made similar alterations for receipts of other expenses, such
as lodging. According to the government, these actions quite
clearly constituted more than minimal planning.
At the conclusion of these arguments, the district
court stated:
I have to say I have never in my years
here . . . I have never received more
laudatory recommendations and
endorsements than I have in this case,
and it has moved me tremendously.
So I am going to find that the offense
involved not more than minimal planning.
I am going to impose the following
sentence: Two years probation, a two-
month home detention. As a condition of
probation, restitution in the amount of
[$14,904].
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The district court gave no other rationale for its finding
that the offense did not involve more than minimal planning.
This appeal followed.
II.
II.
A district court's factual finding that a
defendant's offense involved no more than minimal planning
will be overturned only if that finding is clearly erroneous.
E.g., United States v. Gregorio, 956 F.2d 341, 343 (1st Cir.
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1992); see 18 U.S.C. 3742(e). Under this standard, a
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district court's determination will be treated with deference
and will be reversed only if, after reviewing all the
evidence, we are left with "the definite and firm conviction
that a mistake has been committed." United States v. Vega-
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Encarnacion, 914 F.2d 20, 24 (1st Cir. 1990) (quoting
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Anderson v. Bessemer City, 470 U.S. 564, 573 (1984)), cert.
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denied sub nom. Cruz-Rosario v. United States, 111 S. Ct.
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1626 (1991). After reviewing the presentence report and the
transcript of the sentencing hearing, we conclude that such a
mistake was made here.
The Application Notes in the Sentencing Guidelines
define "more than minimal planning" as follows:
`More than minimal planning' means more
planning than is typical for commission
of the offense in a simple form. `More
than minimal planning' also exists if
significant affirmative steps were taken
to conceal the offense . . . . `More
than minimal planning' is deemed present
in any case involving repeated acts over
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a period of time, unless it is clear that
each instance was purely opportune.
Consequently, this adjustment will apply
especially frequently in property
offenses.
U.S.S.G. 1B1.1, Application Note 1(f). Thus, the
Guidelines set out three situations, any one of which
warrants an enhancement for "more than minimal planning":
cases where more planning occurs than is typical for
commission of the offense in a simple form; cases involving
significant affirmative steps to conceal; and cases involving
repeated acts over a period of time, unless each instance was
purely opportune. United States v. Maciaga, 965 F.2d 404,
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407 (7th Cir. 1992).
Defendant contends that he engaged in no more
planning than would be typical for the crime of mail fraud,
which, by its very nature, involves planning. However, even
supposing, for sake of argument, that the district court
could reasonably believe this was so, it would not, by
itself, settle the matter. The Application Note also deems
the presence of minimal planning "in any case involving
repeated acts over a period of time, unless it is clear that
each instance was purely opportune." Defendant's fraudulent
scheme here involved repeated acts over a four-year period,
and those acts cannot reasonably be characterized as "purely
opportune." Conduct is "purely opportune" only if it is spur
of the moment conduct, intended to take advantage of a sudden
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opportunity. Gregorio, 956 F.2d at 343; United States v.
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Kopp, 951 F.2d 521, 536 n.21 (3d Cir. 1991). Defendant
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contends that his rather shoddy workmanship in falsifying the
vouchers indicates that the alterations were done on the spur
of the moment. However, the intricate detail involved with
some of the alterations, as well as the necessity that
defendant undertake several steps in order to secure payment
for the fraudulent vouchers, belie this contention. See,
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e.g., United States v. Tardiff, No. 91-2040, slip op. (1st
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Cir. July 8, 1992) (falsifying financial records on a monthly
basis over a four-year period held to justify enhancement
under U.S.S.G. 2F1.1(b)(2)); Gregorio, 956 F.2d at 343
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(conduct not "purely opportune" where each loan transaction
necessitated several steps); United States v. Doherty, No.
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91-3291, 91-3352, 1992 U.S. App. LEXIS 16866 (7th Cir. July
24, 1992) (clear error for district court to fail to consider
whether overdrafting 40 checks during a single month
constituted repeated acts that were more than purely
opportune). It strains credulity to suggest that no more
than minimal planning was involved in submitting 23
intricately altered vouchers over the course of four years.1
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1. Moreover, defendant took "significant affirmative steps"
to conceal his offense. See U.S.S.G. 1B1.1, Application
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Note 1(f). Defendant deleted dates and amounts on some
receipts and cut and pasted portions of other receipts in
order to conceal his fraudulent expense vouchers. Such
concealment provides an independent basis to require a
finding of more than minimal planning. See, e.g., United
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While deference is certainly owed to findings of
the district court on the issue of minimal planning, that
court made no findings and rendered no analysis in support of
its "minimal planning" determination here. Rather, it simply
spoke of the laudatory recommendations it had received,
presumably in regard to defendant's good character and his
person. We can appreciate the district court's desire to
take such matters into account. But we are also bound, as
was the court below, by the requirements of the sentencing
guidelines. Under these standards, we see no alternative but
to vacate the sentence of the district court and to remand
for resentencing in accordance with this opinion.
So ordered.
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States v. Culver, 929 F.2d 389, 393 (8th Cir. 1991).
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