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[NOT FOR PUBLICATION]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.
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-55