United States v. Whitney, 21 F.3d 420, 1st Cir. (1994)
United States v. Whitney, 21 F.3d 420, 1st Cir. (1994)
3d 420
Appeal from the United States District Court for the District of New
Hampshire [Hon. Shane Devine, U.S. District Judge ]
Ellerton P. Whitney, III on brief pro se.
Peter S. Papps, United States Attorney, and Nancy E. Hart, Assistant
United States Attorney, on brief pro se.
D.N.H.
AFFIRMED IN PART, VACATED AND REMANDED IN PART.
Before Breyer, Chief Judge, Torruella and Boudin, Circuit Judges.
Per Curiam.
some fourteen challenges to his new sentence and his underlying convictions.
With one minor exception, we find each of his arguments unpersuasive.
2
The first six issues proffered by defendant involve substantive challenges to his
convictions. These reduce to three separate allegations: (1) that his absence
from the "charge conference" requires a new trial; (2) that numerous counts in
the indictment were multiplicitous; and (3) that the evidence at trial revealed
allegedly fraudulent loans at variance with those charged in the indictment. We
decline to consider each of these allegations under the law of the case doctrine.
In the earlier appeal, the multiplicity and variance issues were specifically
raised and specifically rejected by this court. As we explained in United States
v. Rivera-Martinez, 931 F.2d 148, 150 (1st Cir.), cert. denied, 112 S. Ct. 184
(1991), "a decision of an appellate tribunal on a particular issue, unless vacated
or set aside, governs the issue during all subsequent stages of the litigation in
the nisi prius court, and thereafter on any further appeal." Defendant has
pointed to no "exceptional circumstances," id. at 151, that would warrant
disregarding this rule here. In turn, the "charge conference" issue, although not
raised in the earlier appeal, is subject to the same disposition.
[A] legal decision made at one stage of a civil or criminal case, unchallenged in
a subsequent appeal despite the existence of ample opportunity to do so,
becomes the law of the case for future stages of the same litigation, and the
aggrieved party is deemed to have forfeited any right to challenge that
particular decision at a subsequent date.
United States v. Bell, 988 F.2d 247, 250 (1st Cir. 1993); accord, e.g., United
States v. Connell, 6 F.3d 27, 30-31 (1st Cir. 1993). Again, no exceptional
circumstances are apparent.2
The district court properly confined the proceedings on remand to the scope of
our mandate. Defendant's present attempt to "take serial bites at the appellate
apple," id. at 30, must necessarily fail.3
it failed to account for some $500,000 in collateral which had been recovered.
The district court sustained this objection and determined that the losses in
question, for purposes of U.S.S.G. Sec. 2F1.1(b), exceeded $1 million but were
less than $2 million.4
9
10
Second, defendant contends that he should not be held accountable for the full
extent of the banks' losses, inasmuch as other factors-such as dereliction on the
part of banking personnel-contributed thereto. Yet the loss table in Sec. 2F1.1
"presumes that the defendant alone is responsible for the entire amount of
victim loss specified in the particular loss range selected by the sentencing
court." United States v. Gregorio, 956 F.2d 341, 347 (1st Cir. 1992). To the
extent that such amount is thought to overstate the seriousness of a defendant's
offense for reasons of "multiple causation," the appropriate remedy is for the
court in its discretion to effect a downward departure. See, e.g., United States v.
Brandon,
11
F.3d, No. 92-1447, slip op. at 111 n. 83 (1st Cir. 1994) ("The Guidelines treat
multiple causation only as a possible ground for downward departure-a matter
within the sound discretion of the sentencing court."); United States v. Johnson,
F.3d, n. 7 (3d Cir. 1994); United States v. Shattuck, 961 F.2d 1012, 1017 (1st
Cir. 1992); Gregorio, 956 F.2d at 347; U.S.S.G. Sec. 2F1.1, comment. (n.11)
(1988); id., comment. (n.7(b)) (1992).
12
The court here declined to depart downward on this basis. It is apparent (and
defendant does not dispute) that the court so decided as a matter of discretion,
rather than out of any mistaken perception that it lacked the power to do so. Its
decision in this regard is therefore not appealable. See, e.g., United States v.
McAndrews, 12 F.3d 273, 276 (1st Cir. 1993); United States v. Soltero-Lopez,
15
994 F.2d 942, 948 (1st Cir. 1993) (discussing "discouraged departures").
Defendant suggests that the district court thought itself precluded from even
considering a departure on these grounds. To the contrary, it is clear that the
court simply concluded that such factors were not "present in a manner that is
unusual or special." Id. As to the latter two factors, we need not decide the
extent, if any, to which they might provide a basis for a downward departure.
Here as well, it is apparent that the court found that a departure was
unwarranted as a matter of discretion. As a result, each of defendant's
arguments in this regard is likewise unappealable. We might add that defendant
has pointed to no personal circumstances that would suggest his case is in any
way exceptional.5
IV. Restitution
16
The district court ordered that defendant pay a total of $197,000 to the three
banks in question. Defendant now argues that such order was unsupported by
the evidence on record, was unaccompanied by requisite findings of fact, and
was barred by reason of his indigency. Except in one minor respect, we find no
error.
17
$197,000.
18
19
20
Our one disagreement is with the fact that the court ordered that restitution be
paid "immediately." Because it is undisputed that defendant is presently
indigent and is thus unable to comply with such a directive, we think the court
inadvertently abused its discretion to this limited extent.8 See, e.g., United
States v. Ramilo, 986 F.2d 333, 335 (9th Cir. 1993) (restitution order "must be
based on some evidence the defendant may be able to pay the amount fixed
when required to do so"); United States v. Clark, 901 F.2d 855, 857 (10th Cir.
1990) (vacating restitution order requiring immediate payment on this basis).
We therefore shall remand so that an appropriate payment schedule may be
established. The court at that time may also set a date for the resumption of
defendant's service of his prison term.
21
That part of the restitution order requiring immediate payment is vacated, the
judgment is otherwise affirmed, and the case is remanded for the limited
purpose of establishing an appropriate schedule for the payment of restitution.
At trial, defendant chose to conduct his own defense, with counsel appearing on
a standby basis. He handed over the reins to his counsel for purposes of the first
Defendant's standby counsel did attend the conference. The court noted for the
record that defendant "was expressly invited to participate in that conference but
elected not to do so." And defendant voiced no objection below to his absence
This yielded a 9-level addition to the base offense level of 6. After adding two
levels for more than minimal planning, see Sec. 2F1.1(b)(2), and declining to
add two levels for obstruction of justice, the court arrived at an offense level of
17. With a criminal history category of I, defendant was therefore subject to a
sentencing range of 24 to 30 months. The court selected a prison term in the
middle of this range
Pointing out that no restitution had been imposed at his initial sentencing,
defendant also charges that the court acted in a vindictive manner. We find this
contention groundless. It suffices to note that, whereas the court had ordered
that defendant be detained pending his initial appeal, the court this time around
has released him on bail (over the government's objection)
The district court can hardly be faulted in this regard, inasmuch as defendant
voiced no such objection following entry of the restitution order. Defendant
did, however, advert to the point earlier in his lengthy allocution. In turn, while
he has not raised this matter directly on appeal, defendant has made passing
reference thereto in his brief. Especially considering his pro se status, we deem
the issue properly before us