USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 94-1222

UNITED STATES OF AMERICA,

Appellee,

v.

WILLIAM J. CAMUTI,

Defendant, Appellant.

___________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

___________________

____________________

Before

Selya, Circuit Judge,

_____________

Bownes, Senior Circuit Judge,

____________________

and Boudin, Circuit Judge.

_____________

____________________

Thomas V. Laprade, by
_________________

Appointment of the Court, with whom

Bla
___

Lambert, Coffin & Rudman was on briefs for appellant.

________________________
William P. Stimson, Assistant United
___________________
Donald K. Stern, United States Attorney,
_______________
States.

States Attorney,

with w

was on brief for the

Uni

____________________

March 12, 1996

____________________

BOUDIN, Circuit Judge.

______________

In a jury

trial beginning

in

September 1993, William Camuti was tried on 13 counts of mail

fraud

in connection

obtaining

U.S.C.

Camuti on

with a scheme

their funds

1341,

2.

through

Camuti was

months'

imprisonment

restitution.

sentenced on February

ordered

to

18

the jury acquitted

convicted him on the

and

investors by

false representations.

On October 18, 1993,

two counts and

counts.

to defraud

pay

remaining 11

28, 1994

to 116

$2,528,000

in

He now appeals, challenging both his conviction

and his penalties.

Taken in the light most favorable to

the government, United States v. Brien, 59 F.3d 274, 275 (1st

_____________
_____

Cir.), cert.
_____

denied, 116
______

S.

Ct. 401

submitted at trial permitted the

Starting

(1995), the

evidence

jury to find the following.

in the early 1980s Camuti

ran a mortgage brokerage

business called "The Loan Depot" from a building in Randolph,

Massachusetts.

seeking

Camuti attracted a large number of homeowners

second mortgages and

placed their applications with

various lenders.

Beginning in

December

began

1988

period,

Camuti

Waltham

businessmen, known at

and

to solicit

He represented to them that

The

investments

trial as "the

for

some

from several

Waltham Five."

their funds would be invested in

high-quality residential mortgages

service.

continuing

Waltham Five invested

-2-2-

that he would select

more than $2.5

and

million

with Camuti, but in fact Camuti never invested their money in

residential mortgages.

In February 1989,

stockbroker,

investors.

potential

to

Camuti hired Joseph Carroll,

market

pools

of

mortgages

to

a young

potential

Carroll and several part-time salesmen telephoned

investors

mortgage pools.

to

persuade them

The first such pool

to

invest

money in

was to be backed

by a

mortgage on the Loan

Carroll

Depot office building in Randolph,

testified at

short and

that he

trial that

this

managed to raise

initial effort

only $125,000

but

fell

compared

with a goal of $900,000.

Carroll

setback

further testified that Camuti responded to this

by instructing Carroll

mortgage pool consisted

on

homes

in

of a group of

well-to-do

Boston

represented to be a co-manager of

mortgage

Over the

$1.7 million.

these investments.

that each

residential mortgages

suburbs.

Camuti

was

the pools, and he signed a

pool "participation certificate"

each investor.

over

to tell investors

next year,

that was

the program

sent to

attracted

In fact no residential mortgages secured

In October 1989,

his

efforts, the

Secretary of

about nine months after

Securities Division

State's office

Camuti might be

began to

of the

Carroll began

Massachusetts

receive reports

illegally marketing unregistered

and sent him a letter

of inquiry.

-3-3-

Camuti told his

that

securities

attorney

to respond that

the Loan Depot's solicitations

no response; by

letter of October 27, 1989,

had produced

his lawyer told

the Securities Division, inaccurately, that no funds had been

collected

and

issued.

In

Securities

no

mortgage

subsequent

Division,

again

pool

participations

letter,

the

lawyer

inaccurately,

that

had

been

told

the

all

such

solicitations had ceased.

In

payments

spring 1990, Camuti began falling behind in interest

and, in

May

1990,

Boston

allegations that there were no residential

Camuti's pools.

Five met

In

December 1990,

with Camuti and

newspaper

mortgages backing

members of

he admitted that their

not secured by residential mortgages.

reported

the Waltham

funds were

In later negotiations,

the Waltham Five sought other collateral; one proposal was to

have one of their

Loan

Depot as

members take control of the

a trustee

for

the other

assets in the

investors, but

no

settlement was ever reached.

At

trial the

government

presented the

evidence

described through approximately twenty-five witnesses.

just

These

included Carroll, various investors who had been solicited by

Carroll, other

persons familiar

Loan Depot, and four

the four

their

with Camuti's

role in

members of the Waltham Five.

testified that Carroll

investments would be

himself had told

the

Three of

them that

backed by residential mortgages;

the fourth was not specific on this point.

-4-4-

Camuti's

deceived

own position

Camuti

and that

misrepresentations

discharged Carroll.

that

effort

they, or

Camuti

in

was

had

the spring

that Carroll

had

discovered Carroll's

of

1990,

and then

As to the Waltham Five, Camuti suggested

at least

to secure

mortgage broker

only

at trial

some of

control of

them, were

the Loan

activities, had been a

engaged in

Depot which,

an

in its

successful business.

Camuti

their

also denied

investments

representing to

would

be

used to

the

Waltham Five

purchase

that

residential

mortgages.

On this appeal, Camuti does

was insufficient to hold him

liable for mail fraud.

he argues on several fronts

deprived

to

his

misinstructed

defense

the jury.

restitution order.

Five.
____

Rather,

that the trial court effectively

him of a fair trial

present

not claim that the evidence

by restricting his opportunity

and,

further,

that

He also contests

the

court

his sentence and

The Cross-Examination of the Waltham

____________________________________

The government had little trouble in this case proving

that Carroll had

problem was to

defrauded the mortgage pool

investors; its

implicate Camuti in these actions.

The main

witness for

directly

the government,

implicated

unfortunately, was

Camuti

but,

as

defrauder, was hardly a perfect witness.

have other evidence

Carroll who

self-confessed

The

government did

linking Camuti to Carroll's

frauds, but

it was obviously quite helpful to the government to show that

-5-5-

Camuti himself had

been making comparable misrepresentations

to his own friends, namely, the members of the Waltham Five.

In

using

response, Camuti asserted that the Waltham Five were

their transactions with

business.

examine

make

a Waltham

document

posed

To

this showing,

Five

member

that the Waltham

questions designed

acquired an interest in

The

Camuti to take

Camuti sought

about

the

that

government to these inquiries.

a number of

trust

to Camuti, and

another member

certain of the Loan

district judge sustained

to cross-

proposed

Five had tendered

to show

over Camuti's

had

Depot's assets.

objections by the

Camuti now claims that these

rulings were error.

Few of

the tasks

of a trial

judge are

more difficult

than

coping

evidence

with this

look

of

is offered seemingly

At this point,

least

kind

problem.

remote from the

the trial judge has to rule

provisionally, without knowing

as part

objection),

of a larger

the

judge

limitations, such as

in deciding

pattern.

may

also

of

main issues.

on relevance, at

how this fragment will

And

have

(assuming a proper

to

consider

those based on prejudice

how far to

fragment

other

or confusion,

let issues of marginal

relevance be

pursued.

In this

instance, the

explanations for

district court

the disputed

evidence and

willingness to give the defense wide latitude

-6-

sought side

bar

made clear

its

to explore the

-6-

alleged scheme of the

bear on the

Waltham Five if
__

question whether Camuti had

the Waltham Five

it could be shown

acquired money from

based on false representations.

read the colloquies, ultimately the district court

that

to

But as we

concluded

the necessary foundation was lacking and that questions

about the

trust document

or the

present ownership of

Loan

Depot assets were at best minimally relevant, confusing and a

waste of time.

We think that this judgment was clearly within the broad

discretion

allowed

United States v.
______________

1984), and Camuti's

to

district

Jarabek, 726
_______

courts

F.2d 889,

claim of error

in these

matters,

902-03 (1st

fails without regard

Cir.

to

the government's procedural objections (several of which have

some bite).

The crime

fraud--did not require

with which Camuti

was charged--mail

that the victims be pure

even that they have been effectively deceived

misrepresentations.

Materiality

issues

of heart or

by the charged

aside,

all

that

matters is that the representations were deliberately made by

the defendant.

United States
_____________

v. Allard, 926 F.2d 1237, 1242

______

(1st Cir. 1991).

Camuti's

position, as

we understand

it,

is that

the

alleged motives and later actions of the Waltham Five bore on

the

question

of

misrepresentations to

whether

Camuti

them at

Waltham Five loaned money to

______

had

all; Camuti

ever

made

argues that

Camuti rather than invested

-7-7-

the

the

it

in supposed residential mortgages;

and--or so Camuti further

reasons--the malign motive and later actions that the defense

has

attributed to

the Waltham

Five

are inconsistent

with

their story that Camuti made misrepresentations.

But the inferences are so

at all,

meet the

thin that they can barely, if

generous test of

Evid. 401.

That the

discovered

Camuti's fraud hardly

were

previously

relevance under

Fed. R.

Waltham Five sought security after they

plotting

to

suggests that any

take

over

the

Loan

of them

Depot

business; and even a prior

plot to obtain such control would

tell

Camuti had made

little about whether

when he

obtained their funds.

The

false statements

difference between proof

and speculation is a

matter of degree, but the proof here is

close to the latter end of the spectrum.

At

evidence

mislead

the same

sought

and

time, quite

to

be

apart

adduced did

confuse the

jury.

See
___

from irrelevance,

have

Fed. R.

Although irrelevant to any proper defense,

the

suggestion that

Waltham

Five took

hard-pressed

whatever

advantage of

and that

Camuti's expense.

Camuti

one member

may

him when

had

In other words, the

the

the

capacity to

Evid.

403.

it lent itself to

have

done,

he found

the

himself

enriched himself

at

scenario that Camuti

sought to suggest could easily have been useful to Camuti but

not for any legitimate purpose.

-8-8-

Camuti

cites to us

examination is

secured by

Constitution,

but

restrictions

on

precedent that the

those

the Confrontation

cases

involve

cross-examination.

Mississippi, 410 U.S.

___________

284 (1973).

The

E.g.,
____

right of cross-

Clause of

the

unjustifiable

Chambers
________

v.

ordinary application

of Fed.

R. Evid.

401-03 does not

even remotely

constitutional right under the Sixth Amendment.

v. Van Arsdall, 475 U.S.

____________

Kepreos,
_______

759 F.2d

impair any

See Delaware
___ ________

673, 679 (1986); United States v.

______________

961, 964 (1st

adding that the district court went

Cir. 1985).

It

is worth

out of its way to

offer

Camuti an opportunity to create a foundation for the evidence

he sought to adduce.

The Telephone Tape.

___________________

Camuti sought to

The

As

part of

play for the jury an

the defense's

case,

audio tape recording.

tape had been found in Carroll's desk and, taken at face

value, included several telephone sales pitches by Carroll to

prospective investors.

In the

course of one of the pitches,

apparently

relating

to commercial

property

mortgages, the

speaker--purporting to be Carroll--said that, with respect to

an investment vehicle, "I have one of my clients that's gonna

take the

whole deal,

and that's a

half a

million dollars,

himself."

Camuti's position, at trial and on appeal, is

that this

comment showed that Carroll's sales efforts to raise money on

commercial

mortgages

were

a success.

-9-9-

This

fact, Camuti

reasons,

undermined

Carroll's

own

testimony

that

his

commercial-mortgage sales efforts had largely failed and that

this

failure

pitching

Camuti's

Carroll's

caused

Camuti to

non-existent

brief

assumes

comment

about

instruct

residential

that,

his

if

Carroll

to begin

mortgages

the

tape

instead.

were

played,

half-a-million-dollar

client

would have been admissible for its truth.

The

tape recording,

could be admitted

like most

other "real"

only upon an offer or

sufficient to permit

evidence,

promise of evidence

the jury to find that the tape was what

its proponent (Camuti) claimed it

actual telephone sales

901.

calls by Carroll.

Camuti offered to

testify that he

the voice as that of Carroll.

was

been

to be: here, recordings of

The

and

that

Camuti

portions of the tape by using

Fed. R. Evid.

himself recognized

government said that this

insufficient, pointing out that

proved

See
___

no chain of custody had

himself

had

recorded

over

it to record calls to or

from

his own telephone.

The district

exclude it.

adequately

judge listened

to the tape

and chose

to

His first comment was that the tape had not been

authenticated.

He

light of Camuti's constitutional

against him, see

___

continued by saying

that, in

right to confront witnesses

Chambers, 410 U.S. at 294,

________

the court would

admit the tape

if "truly exculpatory."

But

the judge ruled

that the call in question appeared to deal with "interests in

-10-10-

commercial property" and

was therefore "not central

to this

case . . . ."

Chain of custody is one means of authenticating evidence

but not

would

The

the only means;

and voice identification

have served as evidence that

government's better

internal

evidence

authenticity,

that

under Rule

(1st Cir.

exclude

is

that

doubts

there

about

is

the

some

tape's

which Carroll could have removed if Camuti had

called him to authenticate the

considerable

Carroll was the speaker.

argument

raises

by Camuti

discretion in

tape.

The district judge has

resolving authentication

901, United States v. Carbone,

______________
_______

1986), but

the tape on

the district court

798 F.2d

did not

issues

21, 24

choose to

this ground--saying, instead,

that the

evidence was not exculpatory.

We conclude that

it was so

if the tape had any

slight that the exclusion

relevance at all,

of the tape was

at the

most harmless error.

was never admissible

sold

commercial

$500,000.

Under ordinary hearsay rules the

as evidence

mortgage

to

The taped conversation,

tape

that Carroll

had in

fact

one

clients

for

of

his

even if authentic, was an

out-of-court statement by Carroll; and Camuti makes no effort

to

show

that

exception.

matter

the

statement

Accordingly,

asserted--as

if

Camuti

falls

within

offered for

assumes

it

comment is excluded by Fed. R. Evid. 802.

-11-11-

any

the truth

to

be--the

hearsay

of the

taped

In

Chambers, the Supreme Court held that it can violate

________

due process to

the defense;

excluded

U.S.

arguably

there, the

out-of-court

committed the

410

exclude reliable hearsay evidence

state court in

statements

crime with

at 292-93.

neither.

which the

But

reliable, cf. Fed.

___

important to the defense;

of

the

crucial to

a murder

another

trial had

that

defendant was

Chambers
________

he had

charged.

statements

R. Evid 804(b)(3),

were

and vitally

the hearsay comment of Carroll

is

Chambers is not a general abrogation of the hearsay

________

rule.

Lee v. McCaughtry, 933 F.2d 536, 538 (7th Cir.), cert.

___
__________
_____

denied, 502 U.S. 895 (1991).

______

Of course,

admissible

sufficiently

Carroll's statement

not

for

its

inconsistent

Ordinarily, extrinsic

by

contradiction;

is on

Perez-Perez,
___________

72 F.3d

but

with

for

his

still have

impeachment,

trial

evidence is not admissible

but

contradiction

easy to

truth

might

an

exception

exists

material issue.

224, 227 (1st

tell whether the

vague reference

prospective $500,000 investment is at

Carroll's trial testimony.

if

testimony.

to impeach

where

United States
_____________

Cir. 1995).

been

the

v.

It is not

on the tape

to a

odds with any point in

But even

extrinsic

if we assume

evidence

of

Carroll's

impeach, it could not have

At

that the tape was

statement

authentic and

admissible

to

altered the outcome of this case.

most the contradiction, if contradiction there was, would

-12-12-

have

cast a small measure of additional doubt upon Carroll's

veracity.

engaged

But

for

Carroll was

months

certificates.

in

The jury

already a

selling

proven liar,

investors

phony

nevertheless believed

having

mortgage

him when

he

said that Camuti was responsible for the scheme.

The

jury

had

testimony because

evidence

for example,

Carroll's

certificates,

property to

lawyer to

there

for

believing

was also

Carroll's trial

fair amount

of

other

supporting the view that Camuti had collaborated in

the fraud:

with

a basis

had

evidence that

operation,

told

the Waltham

similar

Five,

mislead the state

investigate.

had

Camuti was

signed

lies

and had

the

investment

about

residential

instructed his

authorities when they

The idea that one

familiar

own

began to

additional lie from Carroll

would have

undermined this

structure is

fanciful.

United
______

States v. Legarda, 17 F.3d 496, 499 (1st Cir.), cert. denied,

______
_______
_____ ______

115 S. Ct. 81 (1994).

Jury Instructions.
__________________

erred

in

two rulings

Camuti says that the district court

on

court's refusal to give

jury

the

government's

defendant's knowledge of

blindness.

Camuti's

one was

Camuti's requested instruction

good faith was a defense to

granting

instructions:

the

that

the fraud charge; the other

request

to

instruct

fraud may be inferred

counsel did not

-13-13-

was

that

from willful

object after the

jury

was instructed and before it

retired, as required by Fed. R.

Crim. P. 30, so our review is limited to plain error.

On

the good

faith instruction, there

all, let alone

plain error.

A separate

faith

required

this

is

not

adequately instructs on

Dockray,

943 F.2d

152,

in

circuit

(1st Cir.

error at

instruction on good

intent to defraud.

155

was no

where the

court

United States v.
_____________

1991).

Here,

the

_______

court's

instruction on

fraud is

not seriously

Camuti says that the instruction was

court limited Camuti's

challenged.

needed here because the

evidence offered to show

But missing evidence is not

good faith.

supplied by instructions; and if

evidence of good faith was excluded in error, Camuti was free

to raise the point.

As for the

justified in this

willful blindness instruction, it

case.

United States v.
_____________

61, 66-67 (1st Cir. 1995).

even

if Camuti

had

unless he deliberately

good

examples

are

Gabriele, 63 F.3d
________

A jury could reasonably find that

not actually

warning signs were ample to

directed

the fraud,

the

have alerted Camuti to the fraud

chose to close his eyes

the

was amply

newspaper

reports

to them; two

of

the

fraud

(articles

Camuti

contacts by the

discussed

with

his

investors)

state investigators (which Camuti

and

the

sought to

thwart with false information).

Camuti

faulty

suggests

because

it

that

could

this
____

have

-14-14-

blindness instruction

led the

jury

to

apply

was

negligence

standard

in

determining

contrary, the judge not only

to

the elements

willful

of fraud

blindness, see
___

E.

Practice and Instructions

_________________________

63 F.3d at 66 n.6,

his

guilt.

the

properly instructed the jury as

and

used the

Devitt,

usual formula

et al.,
_______

17.09 (4th ed.

for

Federal Jury
_____________

1992); Gabriele,
________

but the judge also told the

could not find that Camuti

On

jury that it

acted knowingly if he "was simply

careless."

Sentence Calculations.
_____________________

In calculating the offense level

for Camuti's offense, the district judge increased the figure

by two

3C1.1.

levels for

From

obstruction of

the prosecutor's

justice under

request

and the

U.S.S.G.

subsequent

colloquy, it

is evident that

the district court

ruling on a finding that Camuti had committed

the

trial.

United States
______________

v. Dunnigan,
________

based this

perjury during

113

S. Ct.

1111

(1993), ordains an enhancement in those circumstances.

On

appeal, Camuti argued that the district judge's bare

statement at

sentencing--that an obstruction

occurred--was

found

too bare to

each of

required

the elements

under

materiality.

See 113 S.Ct.

___

if any,

of the

Dunnigan:
________

that the findings could be

error,

show that the

of justice had

district judge had

perjury enhancement

falsity,

at 1116-17.

willfulness

as

and

The government said

inferred from context or that the

was harmless.

Instead

of

speculating, we

retained jurisdiction and, by order, asked the district court

-15-15-

to identify

the obstructive

conduct and the

basis for

any

Dunnigan findings.
________

By a supplemental order entered on November 9, 1995, the

district court supplied the specifics.

Its order found that

the perjury lay in Camuti's

the misrepresentations

testimony that he was unaware of

made by

Carroll to

investors.

The

district court's order also specifically found this testimony

to

be false,

clearly

willful and

erroneous

and, in

material.

The findings

fact, Camuti

reason to doubt that they were correct.

are not

has offered

us no

Accordingly, nothing

more need be said about the perjury enhancement.

The district court

adjustment based on

imposed a further

four-level upward

a finding that Camuti

was the organizer

of a criminal organization that was "extensive."

3B1.1(a).

This

the government of

organization

U.S.S.G.

adjustment was imposed after a recitation by

evidence showing that Camuti's

had employed

the

services

of

over

Loan Depot

dozen

people, that the fraud was sophisticated and directed at many

investors, and that it was orchestrated by Camuti.

The district

argument.

be extensive

as

require,

he was persuaded

by this

On appeal, Camuti argues (apparently for the first

time) that the

role

judge said that

enhancement required not only

but also that

an organizer

U.S.S.G.

or

that the fraud

Camuti have played

leader.

3B1.1(a);

-16-16-

an extensive

The guidelines

United States
______________

v.

do

so

Tejada_______

Beltran, 50
_______

F.3d 105, 111

(1st Cir. 1995); but

the

prosecutor's scenario, the

the

evidence

supports him.

district judge so

Thus, if

not

in adopting

found and

forfeited, the

argument fails.

Camuti also contends

that the same

to double counting because the

enhancement amounts

size of the fraud was already

reflected in an adjustment based on the loss inflicted by the

fraud.

whether

U.S.S.G.

double

2F1.1(b)(1).

counting

adjustment focuses not

is

One

involved:

could

the

argue about

organizer

on the amount of loss but on the role

of the defendant and the size of the organization; still, the

latter element often

But the

correlates with the

short answer

is that this

double counting, United States v.

_____________

is at

size of the

loss.

worst permissible
___________

Lilly, 13 F.3d 15, 19 (1st

_____

Cir. 1994).

final

Camuti's

two-level

abuse

of

upward

position

adjustment was

of

"private

"significantly facilitate[]" the offense.

The government's theory was that,

Five, Camuti was

invest

U.S.S.G.

upon

trust"

to

3B1.3.

at least as to the Waltham

effectively a fiduciary trusted

by them to

their money in residential mortgages that he (Camuti)

would select.

Cir.

based

1995).

Cf. United States v. Newman, 49 F.3d 1, 9 (1st

___ _____________
______

The district court

accepted the theory despite

Camuti's rather general objections that his relationship with

the investors had not facilitated any fraud.

-17-17-

On appeal,

says

that his

"incidental" to

Camuti has

revised his objection.

activities vis-a-vis

the

the offenses on which he

He

Waltham Five

now

were

was sentenced, and

he points

related

out that

to other
_____

argument rests

statute

all but

investors

on

the

which makes

one

of the

mail fraud

counts

This

solicited

by

Carroll.

peculiar logic

of

the

criminal

not

the

scheme

mail

to

fraud

defraud

standing alone but each use of the mails in connection with a

___

scheme to defraud.

The short

18 U.S.C.

answer is

1341.

that for

purposes of

determining

responsibility at sentencing, the guidelines include not only

the offense of conviction but

"part of the same

course of conduct or common scheme or plan

as the offense of conviction."

government's

also any other conduct that is

main excuse

U.S.S.G.

for offering

1B1.3(a)(2).

evidence

as to

The

the

Waltham Five was that the frauds directed against the Waltham

Five

were part of the same

those

frauds were

also

overall scheme.

"relevant conduct"

On this theory,

at

sentencing,

regardless of specific mailings.

There

was certainly evidence that the Waltham Five were

defrauded.

scheme

Whether

might

be

there was

only

debated, cf.
___

(n.9); United States v. Sklar,

______________
_____

1990);

single overarching

U.S.S.G.

1B1.3, comment.

920 F.2d 107, 111

and there is no explicit finding

district court.

But neither

did Camuti

-18-18-

(1st Cir.

on the point by the

make his

present

argument at sentencing.

permitted

the

certainly

no

It

finding of

plain

error

is enough here that the evidence

single

where,

scheme and

without

there

was

objection,

the

district court proceeded on that premise.

Restitution.
___________

At sentencing, the district judge ordered

Camuti to make restitution payments to members of the Waltham

Five in

the amount of $2,528,000.

This award

was based on

computations in the pre-sentence report reflecting investment

losses in this range claimed by the individual members of the

Waltham

Five.

Camuti did

report nor object to the

court specified the

not

object to

the pre-sentence

restitution order when the district

amounts.

On

appeal, Camuti claims

for

the first time that the restitution order--aside from $37,500

owing to Bowse--was plain error.

Camuti's theory is straightforward.

Under the statutory

language that applies to his case, restitution may be ordered

only for

losses caused

conviction.

18 U.S.C.

by the

"the

or "offenses"

of

3663(a) (1988); see Hughey v. United

___ ______
______

States, 495 U.S. 411 (1990).

______

the authority to

"offense"

Later amendments have broadened

require restitution to include

defendant's criminal

conduct

in

the

harm due to

course

of

the

scheme,"

18 U.S.C.

changes are not

Camuti's

3663(a)(2)

retroactive.

argument is

(Supp. V,

Newman, 49 F.3d
______

that none

of the

Waltham Five, apart from $37,500 owing to

1993), but

the

at 11 & n.14.

investments

of the

Bowse, was related

-19-19-

to an individual

mailing specified as a count

in the Camuti

indictment.

As already noted, the mail fraud offense is committed by

a mailing
_______

in aid of a scheme to

defraud.

One can therefore

argue that a loss is caused by the "offense" only if it stems

from a transaction linked to a specific mailing for which the

defendant was indicted.

a broader

view, this

restitution statute to

Although several circuits have taken

circuit has

twice

construed the

incorporate such a gloss,

F.3d at 11; United States v.

_____________

old

Newman, 49
______

Cronin, 990 F.2d 663, 666

______

(1st

Cir. 1993), and this precedent is binding on this panel.

The government's

raise the

first answer

Hughey issue in
______

is that

the district court

Camuti did

not

and therefore

waived it.

of

Its other answer is to point to

the indictment, charging Camuti

lawyer

to the state

government, delayed

scheme and

authorities.

the

with the mailings by his

These

discovery and

thereby can be

counts 11 and 12

mailings, says the

termination

deemed to have caused

from investments

made after

the date of

According to the

government, almost all of

investments occurred after this date.

of

the

the losses

the first

letter.

the Waltham Five

Camuti, in turn, calls

this causal connection a threadbare speculation.

The government's waiver

of

argument does not meet

plain error, see United States v.

___ _____________

(1983); and

our

precedents limiting

-20-

riposte

Olano, 113 S. Ct. 1770

_____

the reach

of the

old

-20-

restitution statute

that

are plain

enough.

It

could be

argued

Olano's further requirement--that the plain error be "a

_____

miscarriage of

justice" or

satisfied where, as here, the

Camuti's

the

mailings.

But

at 1779--is

not

losses in question were due to

fraudulent scheme, even

the charged

like, id.
___

if not directly

such a rough and

linked to

ready approach

would arguably be at odds

States v. Gilberg,
______
_______

with our recent decision in United

______

No. 95-1586, slip op. at

15-17 (Jan. 31,

1996).

But

in this case,

unlike Gilberg, the

_______

government does

have an argument that the restitution ordered by the district

court can be

12.

The

response,

would

sustained on the merits based

government's

are largely

require

a remand

causation

fact-bound;

to

on counts 11 and

argument,

to

and

Camuti's

resolve the

the district

court

dispute

to develop

further facts and a decision by the district court that might

show that

the restitution judgment should be smaller.

Camuti failed

is by

no

Since

to raise this issue in a timely fashion and it

means certain

that

the restitution

judgment

is

substantially excessive, we exercise our undoubted discretion

under Olano to
_____

disregard the alleged error.

1778.

Affirmed.
________

-21-21-

113 S.

Ct. at