United States v. Whitney, 1st Cir. (1993)

USCA1 Opinion
January 12, 1993

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-1038
UNITED STATES,
Appellee,
v.
ELLERTON P. WHITNEY, III,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Shane Devine, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Aldrich, Senior Circuit Judge,
____________________
and Selya, Circuit Judge.
_____________
____________________
William A. Hahn, by Appointment of the Court, with whom Hahn

________________
____
Matkov was on brief for appellant.
______
Jeffrey S. Cahill, Special Assistant United States Attorney, w
_________________
whom Jeffrey R. Howard, United States Attorney, was on brief
__________________
appellee.
____________________
____________________
Per Curiam.
__________
Ellerton Whitney,
bank, 18 U.S.C.
of four
jury
convicted
the
separate counts of
appellant,
defrauding a
1344, and eight further separate counts of
making false statements on bank loan applications, 18 U.S.C.

1014.
The court
imprisonment.
sentenced Whitney to
Whitney appeals both his
serve three years

conviction and his
sentence.
Whitney's
conviction, is
basic
claim,
in
that the government should
respect
to
his
not have charged
him with so many different counts, arising out of what were,

in
essence,
no
more
than
three
instances
of
related
activities -- activities consisting of (1) a series of false

statements that
he made on applications
bank loans from different

proceeds
applicable
of
one
loan
of
banks, and (2) the misuse
these
loans
agreement.
See
___
States, 284 U.S. 299,

______
for three separate
in
violation
Blockburger
___________
of the
of
v.
the
United
______
304 (1932) (double jeopardy violation
unless each offense charged requires proof of fact the other

does not require).
We cannot consider Whitney's
however,
for he did not raise
defendant raises these kinds

prior to
trial (while
rewrite the indictment
multiplicity claims,
them before trial.
Unless a
of objection to the indictment
time remains
to cure any
for the
government to
such error), he
waives
the
objection.
United States v. Faulhaber, 929 F.2d 16, 19

_____________
_________
(1st Cir. 1991), citing United States v. Rodriguez, 858 F.2d

______ _____________
_________
809, 816-17 (1st Cir. 1988).
There are no special circumstances here that would
warrant departing from this "waiver" rule.
holding
Whitney
significantly.
have
his
waiver
to obtain money
charged him,
so,
changed.
counts
however, his
The
prejudice
him
most, with
1344 count.
eventual
Sentencing
the indictment
either
Had
the indictment
sentence
Guidelines,
a single
would not
in essence,
have
treat
that cover closely related conduct as if they were a
single count.
grouped
not
from a bank,
at
1014 count or a single

done
does
Whitney says that, in respect to each of his
three efforts
should
to
To the contrary,
See U.S.S.G.
___
3D1.2 (closely
together if part of
related counts
single transaction).
maximum terms contained in the statutes here
And, the
at issue would
have permitted a three-year sentence were Whitney correct in

his
claims of
count multiplicity.
(thirty-year maximum); 18 U.S.C.

Whitney
several errors at
made
improper
also
trial.
comments
claims
He
in
-33
See
___
18 U.S.C.
1344
1014 (same).
that
the
court
believes that the

his
opening
committed
prosecutor
and
closing
statements;
opinion
that a
about a
"fraud");
that
prosecution witness improperly
legal conclusion
the
court
(about
gave an
what constitutes
improperly failed
to
give
an
instruction about "specific intent" on the "false statement"

counts; that
whether the
evidence
charged
the court, not
the jury, should
have decided
false statements were "material;"
and that the
showed
different
in the indictment.
fraudulent
loans
than
those
We cannot consider any of these
claims, however, for Whitney did not raise proper objections

at
the time.
He concedes
"errors"
only to
see if
required
the judge
that we can review these claimed

they are
to take
"plain" enough
corrective action
to have
despite the
failure of any party to call the problem to his attention at

the time.
That
amount to
errors which
See United States

___ _____________
is to say, we must ask

constitute
v. Santiago,
________
1984); United States

______________
whether or not they
"manifest injustice."
729 F.2d 38,
v. Griffin,
_______
818
39 (1st
F.2d 97,
100
Cir.
(1st
Cir.), cert. denied, 484

_____ ______
U.S. 844 (1987) (plain errors
"so
seriously
shocking
that they
affect
are
the fundamental
fairness and basic integrity of the proceedings conducted").

After reviewing
the record with
this standard in
mind, we
can find no such injustice.
-44
Finally,
unlawful.
He
Whitney
makes
argues
several
Government concedes.
The
loss"
effect
guideline
in
sentencing hearing.
effective
1,
Guideline, U.S.S.G.
Guideline
as
it
claims,
his
one
sentence
is
which
the
of
district court applied the "fraud

in
Because
November
that
1991,
the
of an amendment
1989,
the
1991
time
of
the
which became
version
of
this
2F1.1(b), is more severe than the same

existed
committed the crime.
in
March
1989,
when
Whitney
Hence, the court should have
applied
the earlier, more lenient, Guideline.

Harotunian,
__________
therefore
vacate
sentencing.
we
shall
claims.
afresh,
920 F.2d 1040, 1041

Whitney's
See United States v.

___ _____________
(1st Cir. 1990).
sentence
and remand
Given the need for the new sentencing

not
consider
Whitney's
Rather, the district court

permitting both him and
other
We must
for
re-
hearing,
sentence-related
shall sentence Whitney
the Government to make all
sentence-related claims and arguments de novo.

The judgment of conviction is
Affirmed.
_________
The sentence is vacated and the case remanded for
__________________________________________________
a new sentencing proceeding.
____________________________
-55

United States v. Whitney, 1st Cir. (1993)

Uploaded by

Copyright:

Available Formats

United States v. Whitney, 1st Cir. (1993)

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

United States v. Whitney, 1st Cir. (1993)

Uploaded by

Copyright:

Available Formats

USCA1 Opinion

January 12, 1993

William A. Hahn, by Appointment of the Court, with whom Hahn

1344, and eight further separate counts of

making false statements on bank loan applications, 18 U.S.C.

Whitney appeals both his

serve three years

that the government should

not have charged

him with so many different counts, arising out of what were,

activities -- activities consisting of (1) a series of false

bank loans from different

banks, and (2) the misuse

States, 284 U.S. 299,

for three separate

304 (1932) (double jeopardy violation

unless each offense charged requires proof of fact the other

for he did not raise

defendant raises these kinds

rewrite the indictment

them before trial.

of objection to the indictment

United States v. Faulhaber, 929 F.2d 16, 19

(1st Cir. 1991), citing United States v. Rodriguez, 858 F.2d

that cover closely related conduct as if they were a

1014 count or a single

Whitney says that, in respect to each of his

maximum terms contained in the statutes here

have permitted a three-year sentence were Whitney correct in

(thirty-year maximum); 18 U.S.C.

believes that the

prosecution witness improperly

instruction about "specific intent" on the "false statement"

the court, not

the jury, should

false statements were "material;"

and that the

We cannot consider any of these

claims, however, for Whitney did not raise proper objections

that we can review these claimed

failure of any party to call the problem to his attention at

See United States

is to say, we must ask

1984); United States

whether or not they

729 F.2d 38,

Cir.), cert. denied, 484

U.S. 844 (1987) (plain errors

fairness and basic integrity of the proceedings conducted").

the record with

can find no such injustice.

district court applied the "fraud

2F1.1(b), is more severe than the same

committed the crime.

Hence, the court should have

the earlier, more lenient, Guideline.

920 F.2d 1040, 1041

See United States v.

(1st Cir. 1990).