USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 95-1389

UNITED STATES,

Appellee,

v.

JEFFREY PHANEUF,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

___________________

____________________

Before

Selya, Circuit Judge,

_____________

Campbell, Senior Circuit Judge,

____________________

and Stahl, Circuit Judge.

_____________

____________________

Donald R. Furman, Jr., for appellant.

_____________________
Sheila W. Sawyer, Assistant
_________________

United

States

Attorney, with

Donald K. Stern, United States Attorney, was on brief for appellee.

_______________

____________________

August 2, 1996
____________________

CAMPBELL, Senior Circuit Judge.

____________________

Pursuant to a plea agreement

with the government, defendant-appellant Jeffrey Phaneuf pled

guilty to three counts of

card applications in

making a false statement on credit

violation of 18 U.S.C.

counts of mail fraud in violation

United

States

District

Court

1014, and two

of 18 U.S.C.

for

the

1341.

The

District

of

Massachusetts sentenced Phaneuf to 24 months in prison on the

first

three counts

sentence on

to

the last

run

concurrently

two counts, followed

supervised release.

In addition, the court

to

the

pay

$20,400

to

restitution for losses.

Bank of

New

with

by 36

30-month

months of

ordered Phaneuf

England

("BNE")

Phaneuf appeals from his sentence.

I.
I.

as

In

discovered

April

1989, police

numerous

stolen credit

during a routine traffic stop.

search

his

discovered

receipts

residence

in

numerous credit

and

investigation

credit

officers

card

in Massachusetts

cards

in

Phaneuf's car

Police obtained a warrant to

Hampton,

New

Hampshire.

cards in

his

name, along

charge

slips.

revealed that 31

of the cards

They

with

follow-up

recovered were

ones that Phaneuf had reported as stolen the previous year.

In June 1989, evidence from the state investigation

-- including credit card applications, receipts, stop payment

order

receipts,

and

correspondence

-2-

between

Phaneuf

and

various banks -- was turned

Service

office's

in Boston.

over to the United States Secret

In July,

Phaneuf

request for handwriting

complied with

exemplars to

that

compare with

the documents obtained from his home.

In

August 1990, Phaneuf called Agent Hoelen of the

Secret Service to

Phaneuf

ask about the status of the investigation.

offered to cooperate

with the

Secret Service.

In

September 1990, Phaneuf and Agent Hoelen met, without counsel

or

a representative from the United States Attorney's Office

present.

After Agent

Hoelen advised Phaneuf

of his

Fifth

Amendment right against self-incrimination, Phaneuf explained

his

scheme:

from

obtained numerous

companies by

as

others to

stolen

institutions.

He

checking account at

or

through

from banks

failed

also wrote

credit card

balances had been

1989, he

and credit

to

pay

checks

payment orders

on

card

the cards

and then reported

back

the

against his

BNE to pay off credit

stop

March

applications, used

use them),

then issued

checks.

1988

credit cards

submitting false

(or authorized

cards

January

the

issuing

personal

card balances and

the checks

after

reduced by the amount

the

of the

In this way, he was able to resume use of the credit

cards and incur more debt.

At

the end

of

his

meeting

with

Agent

Hoelen,

Phaneuf signed a two-page typed statement outlining the above

scheme

and initialled an

additional ten or

eleven pages of

-3-

"certified

inventory of evidence" forms.

Phaneuf told Agent

Hoelen

that

attributable

he

believed

to

apparently made

his

the

total

amount

scheme was

about

$176,000.

this comment

in response

to a

of

fraud

Phaneuf

higher loss

estimate offered by Agent Hoelen.

In November 1994, the government filed a five-count

indictment

District of

in the

United

Massachusetts charging

and making false statements

plea

States

hearing was

held on

District

Court

Phaneuf with

for

the

mail fraud

on credit card applications.

December

12, at

which time

the

government stated that the total loss attributable to Phaneuf

for

sentencing purposes was approximately $175,000.

Phaneuf

refused to agree to the $175,000 loss amount contained in the

plea

agreement.

Defense

government would

prove this

counsel

questioned

total amount,

how

given the

the

lower

amounts alleged in the various

counts ($64,000 in counts

III and $57,182 in counts IV-V, for a sum of $121,182).

result of this

Phaneuf's

guilty plea

second plea

court

dispute, the

district court

and ended

hearing was

the

did not

As a

accept

plea proceedings.

held on December

20, at

I-

which the

accepted Phaneuf's guilty plea but declared the amount

of the loss to be "in dispute."

On

January

9,

1995,

Assistant

United

States

Attorney Sheila Sawyer filed a notice of appearance replacing

Duane Deskins

who had been

handling Phaneuf's

-4-

prosecution.

Shortly

thereafter,

Presentence

primarily

September

probation

Investigation

upon

Phaneuf's

1990

Phaneuf's base

was

the

to

Report

("PSR")

two-page

signed

characterize

offense level was

increased by

six

department

levels

the

that

offense

was

relied

statement

calculated to be

because he

filed

of

conduct.

six, and

found to

be

responsible for a loss amount between $100,001 and $200,000.1

Two more

levels were added because the offense involved more

than minimal planning.

account

The probation

Phaneuf's acceptance

of

officer then took into

responsibility, and

that his total adjusted offense level was twelve.

found

Given that

offense level and a criminal history category of V, Phaneuf's

guideline sentencing range was put at 27 to 33 months.

The government did not object to the PSR.

made several objections.

He asserted that neither he nor his

attorney had seen "any information

government"

Hoelen.

Phaneuf

in the possession of

the

other than his two-page statement given to Agent

Phaneuf

confine the

petitioned

loss calculation

mail fraud counts

the

probation

to the figures

of the indictment.

department to

listed in

the

The probation officer

considered Phaneuf's objections but refused to alter the loss

calculations.

____________________

1.

The

applicable offense level

for fraud claims increases

in proportion to the value of the fraud.

-5-

Sentencing

was scheduled for

March 27, 1995.

On

March 7,

the government

memorandum in

support

filed with

of the

calculations.

The

memorandum

affidavit from

an

investigation,

Thursday,

Sawyer

called

its

loss

sentencing

Hoelen describing

March

of evidence prepared by

23, Assistant

defense

the

in looking

counsel

to

United

see

Agent Hoelen.

States

at

the

materials

memorandum prior

Attorney

whether

the loss amount and whether

government's sentencing

hearing."

department's

attached to

Agent

a sentencing

the confession signed by Phaneuf in 1990, and

intended to contest

interest

probation

government

a certified inventory

On

the court

he

still

he "had any

referenced

to the

in

the

sentencing

Defense counsel rejected the government's offer to

look at the evidence, stating his intention to

government for alleged discovery violations.

challenge the

At

sentencing, the

the loss amount

district court

was "somewhere in the range

$200,000, and not less than $166,229.38.

also found

that

available

to the

the

to be

release.

supervised

approval of

government

defense the

loss calculation.

prison,

concluded that

Phaneuf

followed

The court

release:

36-month

required

failed

to

make

supporting its

30 months

term of

in

supervised

special conditions

Phaneuf

the probation department

-6-

not

sentenced to

imposed several

it

The district court

documentation

was

by a

had

of" $100,001 to

to obtain

before "incurring

of

prior

any

extension

of credit, including charge cards, credit cards or

loans" and

cost of

before making "any

$100."

purchase . . .

The court further

exceeding the

ordered Phaneuf

to make

restitution to the BNE in the amount of $20,400 for losses it

sustained in connection with the mail fraud scheme.

II.
II.

Phaneuf assigns four errors on appeal: (1) that the

government's violation of a local discovery rule deprived him

of a

fair sentencing; (2)

that the district court

erred in

calculating the loss amount for sentencing purposes; (3) that

the

supervised

prior approval

related

to

3583(d)(1);

release condition

for purchases

his

offenses

and (4) that

requiring

over $100

as

him to

was not

required

by

18

the court's restitution

obtain

reasonably

U.S.C.

order was

improper.

1. Discovery Violation
1. Discovery Violation

Phaneuf

failure to

its

loss

contends that

the government's

purported

provide the defense with documentation supporting

estimate

deprived

him

of

fair

sentencing

procedure.

requires

He relies on

that,

in

Local Rule, D.Mass. 116.1(a), which

criminal

cases,

the

government

written

evidence

-7-

automatically

disclose

certain

in

its

possession to the defense.2

Phaneuf argues that

Rule 116.1 by

the government violated

not spontaneously handing over

Local

to the defense

various pieces of evidence including the handwriting analyses

produced

Service

by the

Forensic Services

and evidence

Division

of "numerous

of the

legitimate payments"

____________________

2.

The Rule provides in relevant part:

In

all

criminal

cases,

the

material and information

disclosed

to

following

. . . shall

the opposing

party.

be
Such

disclosure . . . shall occur . . . in all

events

within fourteen

(14) days

after

arraignment.

(a)

The government

allow the defendant

photograph,
follows:

all

Secret

shall disclose,

and

to inspect, copy and

written

material

as

on

. . .

(3)

All relevant

physical or
all

reports of

results of

mental examinations,

scientific

comparisons, or

tests,

and of

experiments

copies thereof,

and

made in

connection with a particular case.

(4) All .

. . documents . .

. which the

Government intends to use at the trial of

the case. . . .

(5) All

exculpatory evidence

meaning of

Giles v.
_____

within the

Maryland, 386
________

66, 87 S.Ct. 793, 17 L.Ed.2d 737

Brady v. Maryland, 373
_____
________

U.S.

(1967),

U.S. 83, 83 S.Ct.

1194, 10 L.Ed.2d 215 (1963) and Giglio v.

______
United States, 405
______________

U.S.

763, 31 L.Ed.2d 104 (1972).

Local Rule, D.Mass. 116.1(a).

-8-

150, 92

S.Ct.

Phaneuf's credit card accounts.

he

could

not effectively

estimate and

the

As a result, Phaneuf argues,

challenge

the

corresponding six-level

government's loss

increase in

base

offense level.

The government replies that Local Rule 116.1,

on

applies

its

face,

only

to

pre-trial

discovery.

sentencing, the government

says, a defendant is

no

of

more than

fair notice

the evidence

At

entitled to

upon which

the

government intends

insists

that

sentencing

to rely.3

Phaneuf was

In any event,

fully advised

the government

in advance

of the

hearing of the government's evidence and that his

counsel had made no request at all for evidence.

We need not

Rule 116.1

linger over what

should play at

sentencing.

Phaneuf is not entitled to relief here.

to blame for

any gaps in his

one-half month period

Under

Local

any analysis,

He has only himself

knowledge of the basis

government's sentencing proposals.

conceded at the sentencing

role, if any,

Counsel for the

of the

defense

hearing that, during the two

leading up to

sentencing, he did

and

not

request any data from the prosecution, nor did he request the

court to compel the disclosure of any evidence.4

The absence

____________________

3.

Neither party

notice of

contends that

Phaneuf did

not have

fair

the evidence upon which the government intended to

rely at sentencing.

4.

Although

defense counsel

from the government

requested certain

in the period before the

formal judicial proceedings, he

he

did not

request the

institution of

conceded at sentencing

documents

at any

hearing at which Phaneuf's plea was taken.

-9-

information

point after

that
the

of any such

requests is especially telling given

that three

weeks before sentencing the government had filed a sentencing

memorandum setting

loss amount.

Assistant

United

materials

memorandum

States

permit

days before

Attorney

Sawyer

him an opportunity

referenced

choice to

Even after

defense counsel did

to

some four

in

position on

the

the

sentencing,

called

defense

to inspect and

government's

copy

sentencing

-- an offer which defense counsel refused, citing

strategic

argument.

the government's

Moreover,

counsel and offered

the

forth

him

pursue

prosecutorial misfeasance

this argument

failed at

not request a continuance

an opportunity

to

sentencing,

of sentencing

investigate

further the

government's evidence.

The district

court, after hearing

argument, found

that the

government did

defense the

not fail to

documentation supporting its

This finding was amply

(1st Cir.

broad discretion

States v.
______

F.2d

83 F.3d

district court

over matters concerning

Tajeddini, 996
_________

arguments

First Step Designs, Ltd.,

________________________

1996) (holding that

to the

loss calculations.

supported by the facts and

presented. See Fennell v.

___ _______

526, 532

make available

has

discovery); United
______

1278, 1287

(1st Cir.

1993)

(noting that rulings on discovery matters are reviewed for an

abuse

of

discretion).

Moreover,

by

requesting a continuance during which the

withheld

could be

disclosed

not,

then,

evidence allegedly

and reviewed,

-10-

even

Phaneuf further

weakened

any

claim he

might

alleged discovery violation.

969 F.2d 1283,

conceivably

have

See United States

___ _____________

1286 (1st Cir. 1992) ("[E]ven

had of

an

v. Tardiff,
_______

if a defendant

is faced at sentencing with information that he has not had a

chance

to

rebut .

defendant to ask

we

think

it incumbent

upon

the

for a continuance then and there."); United

______

States
______

find

v. Diaz-Villafane, 874
______________

it

although

of

decretory significance

seeking

entirely, never

unsuccessfully

moved

for a

think, incumbent upon a party

ask

explicitly that

regroup, or

F.2d 43,

the

47 (1st

that

to

Cir.) ("We

defense

block

counsel,

the

continuance[;]

testimony

[i]t

is,

we

faced with such a situation to

court

waive the point."),

grant

the time

needed

cert. denied, 493

____________

to

U.S. 862

(1989).

Phaneuf's

documents

not

is also weakened

all, of the

related to

argument

that he

was

by the fact

denied discovery

that much, although

government's information that

the loss

estimate was

was directly

information that

himself knew about or could have obtained.

Phaneuf

Phaneuf was aware

of the

could

This

financial institutions

have contacted

is not

them

a situation

which he

himself

in which

had defrauded,

to obtain

most of

and

information.

the information

relevant to sentencing was known only to the government.

We find

government's

no merit

in Phaneuf's

purported failure

-11-

argument that

to disclose

the

evidence denied

him

his "constitutional

basis of invalid

right not

information."

to

be sentenced

Diaz-Villafane, 874
______________

on the

F.2d at

47 (quoting United States v. Fogel, 829 F.2d 77, 90 (D.C.Cir.

_____________
_____

1987)).

2. Amount of Loss
2. Amount of Loss

Phaneuf

claims that

the

district

court made

an

unreasonable determination of the amount of loss attributable

to

him

estimate

for sentencing

is

dissatisfied with

purposes.

factual

A district

determination,

the sentencing

and

court's loss

"a

party

court's quantification

of

the amount of loss in a particular case must go a long way to

demonstrate that the

finding is clearly erroneous."

United
______

States v. Rostoff, 53 F.3d 398, 407 (1st Cir. 1995); see also
______
_______
________

United States v. Pavao, 948 F.2d 74, 77 (1st Cir. 1991).

_____________
_____

When determining the amount of

purposes, the

estimate

U.S.S.G.

of

district court

the

loss,

district court

Phaneuf

the

given

the

make a

see also Rostoff, 53 F.3d

________ _______

frequently do, deal

when calculating the amount

found

that

the

loss

was "not less than $166,299.38"

$100,001 to $200,000

reasonable

available information."

that "[c]ourts can, and

with rough estimates"

The

"need only

2F1.1, comment. (n.8);

at 407 (stating

loss for sentencing

of loss).

attributable

to

which placed him in

category necessitating a six-level

increase

in

base

offense

level.

In reaching

its

loss

-12-

determination,

affidavit

the

describing

court

his

considered:

investigation

(1)

and

Agent

Hoelen's

the

evidence

recovered from Phaneuf's home; (2) Phaneuf's signed statement

made to

Agent Hoelen in

September of 1990 stating

that the

amount

of loss

was

approximately

$176,000;

and

(3)

the

bankruptcy petition filed by Phaneuf in 1994 which discharged

many of his debts.5

Phaneuf challenges

as

not being

meaning of

based on

U.S.S.G.

derived in part

cards,

collected

evidence,

receipts,

the

including

(A

the underlying

sales slips,

investigation.6

district court may

provided the evidence

6A1.3(a)

information" within

2F1.1 comment (n.8),

than from

during

without merit. A

"available

loss determination

because it

from Agent Hoelen's affidavit

statement rather

credit

the court's

hearsay, to

court

This

argument

rely upon any

prove facts

"may

the

other documents

is

relevant

at sentencing

is sufficiently reliable.

sentencing

was

and Phaneuf's

evidence --

and

the

consider

U.S.S.G.

relevant

information without

regard to

its

admissibility under

the

____________________

5.

According

to

the

PSR,

Phaneuf

filed

for

Chapter

bankruptcy protection on February 8, 1994, and was discharged

from debts totalling $210,702 on May 31, 1994.

6.

In

his

reiterates

challenge

determined

the

his argument that

disclose relevant
any evidence

to

in Part II.1

determination, Phaneuf

the government, by

documents, prevented

regarding

Phaneuf was offered

loss

the specific

him from
loss

failing to
presenting

amount.

As

we

supra, this argument

_____

fails because

an opportunity to inspect

the documents

in the government's possession.

-13-

rules

of evidence

applicable at

trial,

information has sufficient indicia of

its probable

4, 8 (1st Cir. 1991).

affidavit

investigation,

question.

of

had

the

reliability to support

accuracy."); see also Rostoff, 53

________ _______

Tardiff, 969 F.2d at 1287;

_______

sworn

provided that

F.3d at 407;

United States v. Figaro, 935 F.2d

_____________
______

Here, the district court relied on the

an officer

personal

This is the

sentencing courts often

who,

having

knowledge

of

type and

rely.

conducted the

the

kind of evidence

See e.g.,
________

Aymelek, 926 F.2d 64, 68 (1st Cir. 1991).

_______

events

in

on which

United States
_____________

v.

Phaneuf

legitimate

next

argues

payments" on his

have been included

that

made

credit card accounts

in the court's total loss

argument is equally unavailing.

evidence that

he

"numerous

which may

amount.7

This

Phaneuf has not provided any

the legitimate payments were

improperly taken

____________________

7.
his

In making

this claim, Phaneuf relies on

1990 statement

to

Agent

Hoelen

which

an excerpt from
discusses

fraudulent practices:

During

the

course

activity,

payments
________

on

made
my

of

my

credit

card

numerous legitimate
____________________
accounts,

however,

subsequent payments made on the following

accounts

with

checks from

checking

account . .

my

personal

. were made solely

for the

purpose of making

full payments

on the

accounts to create

either a zero

his

balance

or

credit

increase credit
submitting

balance

and

available to me.

these checks

to

After

for payment,

would place a stop payment on them.

(emphasis added).

-14-

into account

in determining

evidence, we logically

the loss amount.

conclude that

the loss

Absent

such

calculations

upon which the court relied were based on the amount owing to

various

institutions, rather

than

the

amount

addition, we note that both Agent Hoelen and

(in his

paid.

In

Phaneuf himself

1990 statement) attributed approximately $176,000 of

loss to Phaneuf's fraudulent activities.

__________

district

We see

no error,

court's

loss

let alone

clear

determination.

error, in

The

the

government

introduced ample evidence upon which the court could conclude

that

Phaneuf was responsible for not less than $166,299.38.8

Moreover, Phaneuf himself admitted to the court at sentencing

that the loss

attributable to him was

guideline category of

within the sentencing

$100,001 to $200,000 requiring

level increase in his base offense level.9

____________________

a six-

8.

We also dismiss

Phaneuf's perfunctory argument

that the

district court erred in not holding a hearing on the issue of

loss

amount.

The

denial

of

an

evidentiary

hearing

at

sentencing is reviewable only for an abuse of discretion.

We

cannot find that the district court

not

granting

prosecution

an
nor

evidentiary
the

abused its discretion in

hearing

defense

when

requested

such

neither
a

the

hearing.

Tardiff, 969 F.2d at 1286 ("[T]he failure to ask the district

_______
court
defeat

to

convene an

evidentiary hearing

for a contention

ordinarily spells

that one should

see also United States v. Mala, 7 F.3d

________ ______________
____

have been held.");

1058, 1062 (1st Cir.

1993), cert. denied, 114 S.Ct. 1839 (1994).

____________

9.

Phaneuf stated at sentencing:

The amounts of money, at this point, I am

very confused as
even going to
to be

to what it is.

argue it.

somewhere in

guess it has

the range

-15-

I'm not

of my

--

3. Special Condition of Release

3. Special Condition of Release

Phaneuf

argues

that the

district court

imposing a special condition of supervised

prior approval

from the probation

over

We

$100.

imposition of

ordinarily

a special

release requiring

department for

review

release condition

erred in

district

purchases

court's

for an abuse

of

discretion. See United States v. Thurlow, 44 F.3d 46, 47 (1st

___ _____________
_______

Cir.), cert. denied, 115

_____________

S.Ct. 1987

(1995).

However,

as

Phaneuf

did

sentencing,

not

object

to

the

special

condition

at

our review is for plain error. See United States

___ _____________

v. Peppe, 80 F.3d 19, 22 (1st Cir. 1996).

_____

The

imposed the

court, adopting the recommendation in the PSR,

following special

conditions on

Phaneuf to

be

observed during his three-year period of supervised release:

The

defendant

shall

participate

mental health counselling

in

program at the

direction of the probation department.

The

defendant

shall

not

open any

new

lines of credit without prior approval of

the probation department.
The

defendant

purchases

over

shall
$100

not

make

without

any
prior

approval of the probation department.

The defendant shall provide the probation
department with

any requested

information and records.

financial

A sentencing

conditions

judge has

broad discretion

of release that

to impose

are "reasonably related"

special

to (1)

the defendant's offense, history and characteristics; (2) the

____________________

within the hundred

thousand and 200,000.

So I am not really going to argue it.

-16-

need for adequate deterrence; and (3) the need to protect the

public from further crimes of

5D1.3(b)

U.S.C.

and

the defendant.10

the corresponding

See U.S.S.G.
___

statutory provisions,

18

3553(a)(2), 3583(d).

Phaneuf challenges

the special

condition limiting

his purchasing power, arguing that "[t]he record is silent on

relationship

between

spending

$100.01,

accepting

pre-

(condition

that

____________________

10.

See,
e.g.,
___________

Peppe,
_____

80

defendant

could

not

incur

additional

lines

of

credit

probation

department

defendant's use of

F.3d
new

at

23

credit

without

permissible as

charges

prior
an

of extortionate extension

approval

effort

funds where defendant had

or

open
of

to monitor

been convicted

of credit); Thurlow, 44 F.3d at 47

_______

(condition that defendant convicted of theft-related offenses

abstain

from

defendant's

consuming
history

of

alcohol

permissible

substance abuse

and

because
use

of

of crime

proceeds
States
______

to purchase
v. Johnson,
_______

alcohol on several
998 F.2d

696, 699

occasions); United
______
(9th Cir.

1993) (no

abuse of discretion to impose, along with other restrictions,

condition

requiring that defendant

where defendant had

involved

in

history of substance abuse and

alcohol-related

Chinske, 978 F.2d

_______

abstain from alcohol use

incidents);

557, 560 (9th Cir.

had been

United States
_____________

v.

1992) (conditions that

defendant own no firearms, attend a substance abuse treatment

program, and

submit to searches of his

residence related to
the
F.2d

offense of maintaining a

cultivation of marijuana);
1310,

defendant

1311
to

person, vehicle, and

(8th

Cir.

warrantless

residence for

United States v.
_____________
1991)

searches

Sharp, 931
_____

(condition
to

subjecting

determine

if

he

possessed alcohol or drugs permitted when defendant convicted

of narcotics violation);

cf. United States v. Abrar, 58 F.3d

__ _____________
_____

43,

46-47 (2d Cir.

pay

back personal loans unrelated to crime constitutes plain

error); United
______

1995) (condition requiring

States v.
______

Prendergast, 979
___________

defendant to

F.2d 1289,

1293

(8th Cir. 1992) (conditions

requiring defendant convicted of

wire fraud

consuming alcohol and

to abstain from

drugs, to

undergo drug tests, and to be subject to warrantless searches

of his premises, vehicle, or person, impermissible in absence
of

"evidence

indicating

alcoholism or that the use

that

[defendant]

suffers

from

of alcohol in any way contributed

to

the

commission

of

the

offense

for

which

he

was

sentenced").

-17-

approved credit cards,

While it

rationale,

would have

and perpetrating a fraud on

been helpful had

we can perceive

the court

a sufficient

a bank."

stated its

connection between

the restriction and Phaneuf's criminal conduct for the former

to pass muster under the plain error standard.

As

mental

Phaneuf

concedes,

health problems11 and,

he has

long

at times, has

history of

been unable to

control his spending.

The nature of the imposed

strongly suggests that

the district

conditions

court viewed

Phaneuf's

credit card crimes as stemming from a total lack of financial

discipline and

a compulsion to

The court could

expenditures

rationally have concluded that

over

overspending and

make excessive expenditures.

$100

would

debt that might

help

deter

oversight of

the

once more lead

kind

of

Phaneuf to

undertake fraudulent schemes.12

To

overturn

standard, Phaneuf

the condition

under the

plain error

must show an obvious and clear error under

____________________

11.

Phaneuf was

hospitalized as an adolescent

for "conduct

disorder" and "unsocialized aggressive" behavior and has been

treated for

behavioral problems

on and

off throughout

his

life.

12.

Another

justification

purchasing

power

obligation

to

stems

pay

his

justification
U.S.S.G.
3553,

his

limit

on

outstanding

BNE.

The

to ensure that Phaneuf

of his ability

spending

from

the

$20,400 to

condition will help

best

of

on

other

is not attributable

restitution

court's special
satisfies to the

his restitution obligation

money

Phaneuf's

things.

rather than

Because

to a factor

this

set forth in

5D1.3(b) or the corresponding statutes, 18 U.S.C.

3583, it

does not

deserve conclusive

still is a part of the total picture.

-18-

weight, but

current

law

Fed.R.Crim.P.

that

affected

his

52(b); United States

_____________

substantial

rights.

v. Olano, 507
_____

U.S. 725,

732-35 (1993); United States v. Laboy-Delgado, 84 F.3d 22, 31

_____________
_____________

(1st Cir. 1996).

Even

if plain error exists, Olano suggests

_____

that courts should

not exercise their discretion

the

it

error

integrity

Olano, 507
_____

unless

or

public

U.S. at 736

"seriously

reputation of

judicial

(quoting United States

_____________

297 U.S. 157, 160 (1936)).

assume, arguendo, that

________

affect[s]

to correct

the

fairness,

proceedings."

v. Atkinson,
________

In this case, even if we

the district court went too

were to

far, the

error was not

"obvious and clear" nor does

it implicate the

fairness or integrity of judicial proceedings.

limiting Phaneuf's

his

period

of

The condition

purchasing power is effective only during

supervised

release,

does

not

prohibit

expenditures of over $100 but merely requires pre-approval of

the

probation department,

relationship to

checking

and bears

the

at

least an

irresponsible

arguable

behavior

that

underlay Phaneuf's crimes.

4. Restitution
4. Restitution

Phaneuf argues

ordering restitution in

BNE,

pursuant to

the

that the sentencing court

the amount of $20,400 to

Victim

and

Witness

erred in

be paid to

Protection

Act

-19-

(VWPA), 18 U.S.C.

plain

error as

3663-3664 (1995).13

Phaneuf did

order at sentencing.

See
___

not object

Our

to the

review is for

restitution

United States v. Springer, 28 F.3d

_____________
________

236, 237, 239 (1st Cir. 1994).

sentencing

restitution

court

"to any victim."

is

permitted

18 U.S.C.

to

order

3663(a) (1995).14

In ordering restitution the court is required to consider:

the

amount

victim

of

as a

loss

sustained

result of the

by

any

offense, the

financial resources of the defendant, the

financial
the

needs and

defendant

earning ability

and

the

of

defendant's

dependents, and such other factors as the

court deems appropriate.

18 U.S.C.

3664(a) (1995).15

Phaneuf

claims

that

the

restitution

order

is

First, he asserts that

he

contrary to law for two

reasons.

is incapable

restitution, citing

mental

of making

disorders,

his lack

virtually non-existent

of

employment

his history

professional

record, and

of

training, his

his lack

of

assets.

Phaneuf predicts that he will likely be incarcerated

____________________

13.

The VWPA,

18 U.S.C.

3663-3664, was

Antiterrorism and Effective

L. No. 104-132,
1996).

However,

sentencing

amended by

Death Penalty Act of

205, 206, 110 Stat. 1230, 1232

the

proceedings

1996
in

amendments
cases

convicted on or after April 24,

in

1996.

are
which

the

1996, Pub.
(Apr. 24,

effective
defendant

See Pub. L. No.

___

for
is
104-

132,

211, 110 Stat. 1232.

Therefore, the pre-1996 version,

cited

throughout this section of the opinion, is controlling

in Phaneuf's case.

14.

See supra, note 13.

___ _____

15.

See supra, note 13.

___ _____

-20-

again as a result of

order.

We

find

district court

regarding

Phaneuf's

was not

Phaneuf's

restitution,

in

being unable to satisfy the restitution

3664(a).

argument

required to

ability

to

unpersuasive.

make explicit

findings

pay

ordering

so long as it considered

See

before

the factors set forth

See United States v. Newman,

___ ______________
______

(1st Cir. 1995); Springer, 28 F.3d at 239.

________

need not

be able to

United States

pay the restitution

v. Lombardi,

The

5 F.3d

49 F.3d 1,

10

Moreover, Phaneuf

award immediately.

568, 573

(1st Cir.

___

_____________

1993).

________

Restitution awards may

be imposed in order

victims whole should the defendant

future.

See Newman,
___ ______

Phaneuf

is a

49 F.3d

at

26-year-old high

to make

become able to pay in the

10-11.

Here, given

school graduate,

that

it is

not

unforeseeable that he may earn some income when released from

prison.

Moreover, Phaneuf can

the restitution order in the

that it is too onerous.

Second,

erred in ordering

the

time

later seek a modification of

sentencing court if he can show

See Springer, 28 F.3d at 239 n.2.

___ ________

Phaneuf

argues

that

the district

restitution to be paid to

of sentencing,

BNE

had

court

BNE because, at

failed and

the

Federal

Deposit Insurance Corporation ("FDIC") had been appointed its

receiver.

Phaneuf

further

argues

that

the

FDIC,

which

succeeded to the assets and liabilities of the failed bank by

operation of

law, see
___

12 U.S.C.

1821(d)(2)(A), is

not a

-21-

proper

"victim" entitled

to restitution

under the

VWPA.16

Phaneuf argues that the letter he received from the probation

department

to

the

instructing him to

FDIC

was

improper.

instructing him to

from

the

court

make his restitution payments

He

contends

that

pay an entity other than BNE

rather

than

the

probation

an

order

had to come

department.

According to Phaneuf, restitution can only be paid to someone

other

than the

victim, in

this case

BNE, pursuant

to the

following provision of the VWPA:

the

court

may,

in

the

justice, order restitution

who has

interest

to any person

compensated the victim

loss to the extent

of

for such

that such person paid

the compensation.

18 U.S.C.

3663(e)(1)

award restitution

to the

(1995).17

Since

FDIC pursuant

the court

to this

did not

provision,

Phaneuf argues that the restitution order was improper.

We

restitution

find no

order

plain

or

error

in

the

instructions to make restitution

was in fact a victim of

failure

of

BNE and

receiver had

the

either

in

probation

the

court's

department's

payments to the FDIC.

Phaneuf's fraud when committed.

appointment

not been brought to the

of

the FDIC

as

BNE

The

its

court's attention when

____________________

16.

Defendant

also contends

that his

Mastercard debts

$20,400 have subsequently been sold to Citibank by

However, there

is no evidence

of this in the

us.

17.

See supra, note 13.

___ _____

-22-

of

the FDIC.

record before

it

entered its order,

named BNE.

hence the court

Given that the

FDIC "steps into the shoes" of

failed bank, O'Melveny & Myers

_________________

(1994), we see no reason

not substitute the

of

Phaneuf's fraud.

order understandably

v. FDIC, 114 S.Ct. 2048, 2054

____

why the probation department should

FDIC for the failed bank

See
___

as the "victim"

United States v. Haddock, 50 F.3d

_____________
_______

835, 841 (10th Cir. 1995) (holding that restitution was due a

bank that

purchased one

transactions

States v.
______

for

Smith,
_____

of the banks

which

944

defendant

F.2d

(holding that the VWPA "is

involved in

was

618,

the loan

convicted);

621-22

(9th

United
______

Cir.

1991)

intended to encompass both direct

and indirect victims of criminal acts" and therefore allowing

the FSLIC to receive restitution), cert. denied, 503 U.S. 951

____________

(1992); United States v. Rochester,

______________
_________

(5th Cir. 1990)

the FSLIC

(holding that the

restitution

under the

898 F.2d

971, 980

district court may

VWPA

when the

n.7

award

FSLIC

has

acquired the claims of an insolvent savings and loan that was

the victim

of defendant's

matters remain

subject to

oversight

control,

and

crime).

the

but

Needless to

district court's

we see

no

error

say, such

continuing

subject

to

appellate correction at this juncture.

III.
III.

For the foregoing reasons, the judgment and

sentence of the district court is affirmed.

affirmed.
_________

-23-