United States v. Mason, 1st Cir. (1996)
United States v. Mason, 1st Cir. (1996)
____________________
No. 95-1721
Plaintiff, Appellee,
v.
DENNIS L. MASON,
Defendant, Appellant.
____________________
____________________
Circuit Judges,
______________
____________________
Trial
Attorney, United
States
Department
Attorney, Mark
____
Seltzer,
_______
Adler,
_____
Attorney, United
States Department
____________________
____________________
of Justi
Per Curiam.
Per Curiam.
__________
Dennis
L. Mason appeals
his convictions
In
Mason
and First
finalized
a loan
Savings
First
December 1987,
("First Service")
Hampshire.
$2.4
On the
We affirm.
$5 million to
Service Bank
agreement
for
whereby
of acquiring
Concord, New
closing date,
First Service
disbursed over
ately directed
personal account
closing, Mason
that approximately
at
the Bank
disbursed
of
$12,000
$200,000 be deposited
Boston.
from
this
The
in his
day after
personal
the
account
During 1988,
in the
name of his
transferred another
$860,000 in
to purposes unrelated to
a $500,000 transfer to an
lawyer.
Between
the Realty
Ohio account
1989, he
a bank account
After
First Service
Bank closed
and its
assets were
Mason, as
a chapter 7
petition, in
which
diversions of
meeting of
Trust filed
First
Service loan
funds.
In
May 1989,
at
Mason
testified that
applied to the
Realty Trust
1989,
ness records.
In
loan proceeds
to FDIC
had been
Mason
attorneys in
later
September
7 bankruptcy petition.
Mason first
claims that
fraud under
section 1344.1
jury instruction, we
jury
instruction
met
the
failed to
Since Mason
review only
three-part
See
___
United
______
The challenged
standard
established in
United States v. Brandon, 17 F.3d 409, 424 (1st Cir.) (bank fraud
_____________
_______
elements
under 18 U.S.C.
1344 require
knowingly engaged in
a scheme
false
misrepresentations
statements or
or artifice to
to
Ct. 80 (1994).
defraud, or
obtain money
There was
made
from,
no error,
____________________
1As many
arguments advanced by
Mason on appeal
are redun-
tory challenge
States v. Zannino,
______
_______
include the
App. P. 10(b),
11(a); see
___
5 F.3d 1, 5
(1st Cir.
record
on appeal),
cert. denied,
_____ ______
114
S. Ct.
1057 (1994);
Mason next
tal on
the
bank
fraud
court committed
charge, since
there
was
insufficient
the bank by
__
1987.
____
We
which must
doubt.
United States v.
_____________
Vavlitis, 9
________
Although
Mason
attempts to
explain the
$12,000 dis-
jewelry
for his wife the day after receiving the initial advance
___ ___ _____
from First
Service on
question that
curred.
______
the Realty
Trust loan,
had been
formulated by
__
Moreover, larger
the time
___ ____
proximate
The
jury
was free
subsequent conduct
to
documents,
especially
Realty Trust
loan
infer from
this
loan
no
the scheme to
the loan
___ ____
diversions of the
executed.
there can be
defraud
reasonably
intent to
since he
presented
no
the
compelling
explanation for
closing.
v. Sutton, 970
______
F.2d
later-occurring events,
was relevant to
19, 25 n.5
Mason raises
planning," see
___
the bank
U.S.S.G.
2F1.1(b)(2),
fraud, bankruptcy
First, he argues
was unwarranted
laundering conduct
clear error.
that
See Brandon, 17
___ _______
Mason repeatedly
F.3d at 459.
diverted First
because
We find no
Service loan
proceeds to
1989.
Thus, the
sentencing enhancement
was
no "spur
of
the moment"
for more
and
than minimal
undertaking.
United States
______________
v.
Second, Mason
was clearly
the
erroneous.
Concord Woods
relied on a
claims that
He relies
North
the total
on a $4 million
property, whereas
$110,000 FDIC
loss calculation
appraisal.
We
appraisal of
the district
review the
court
valuation
1992).
court reasonably
could have
that the
district
appraisal over-
sales approach."
See U.S.S.G.
___
er relevant information .
information has
cy.").
court finding
that the
United States v.
_____________
in the district
less reliable
Tejada-Beltran, 50 F.3d
______________
erroneous.") (quoting
United States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990)).
_____________
____
Finally,
Mason
presents
an "ineffective
assistance"
supplemental
Ortiz,
_____
23 F.3d
21
(1st Cir.
See
___
United States v.
_____________
1994) (entertaining
"ineffective
The
instruction
appellant could be
government
added.)
in question
informed
the
has proven
beyond
a reasonable
doubt."
jury that
(Emphasis
itous."
We disagree.
simply permit-
alleged in the
indictment.
claim therefore
at trial worked no
in the indictment.
130, 145
(1985).
broadening
The ineffective
v.
assistance
from
trial counsel.
Affirmed.
Affirmed.
________
See Strickland v.
___ __________