USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 96-1132

UNITED STATES OF AMERICA,

Appellee,

v.

RICHARD GOLDBERG,

Defendant, Appellant.

____________________

ERRATA SHEET

At page 16, line 15, delete ", Michael

Kendall," and at page

line 2, substitute "the prosecutor in question" for "Kendall".

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 96-1132

UNITED STATES OF AMERICA,

Appellee,

v.

RICHARD GOLDBERG,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

___________________

____________________

Before

Boudin, Circuit Judge,

_____________

Bownes, Senior Circuit Judge,

____________________

and Lynch, Circuit Judge.

_____________

____________________

Morris M. Goldings
___________________

with

whom

David R. Kerrigan
__________________

and

Mahon
_____

Hawkes & Goldings were on brief for appellant.

_________________

Michael Kendall,
________________

Donald K. Stern,
________________

Assistant

United

States

United

States Attorney,

Attorney, and

with

Kevin J. Cloher
_________________

Assistant United States Attorney, was on brief for the United State

____________________

February 3, 1997

____________________

BOUDIN, Circuit Judge.

_____________

Richard Goldberg was

convicted

of two counts

Service,

of conspiracy to defraud the

18 U.S.C.

371,

and eight

Internal Revenue

counts of

aiding and

assisting the filing of false income tax returns, 26 U.S.C.

7206(2).

Goldberg's

describing

appeal is now before

the factual

background

and

us.

We

begin by

proceedings in

the

district court.

In the years prior to

his indictment in 1995,

Goldberg

was involved in several businesses in and around Boston.

ventures

His

included a billboard company, Logan Communications,

and a partial interest in a "Park 'N Fly" lot located in East

Boston near Logan Airport.

Liverpool Lumber,

Goldberg also owned and operated

Inc., which Goldberg used

as a management

company for various of his other enterprises.

In

or

around

1988,

Goldberg became

aware

that

the

Commonwealth of Massachusetts

the East

planned to take all or part of

Boston Park 'N Fly lot by eminent domain as part of

its Third Harbor Tunnel project.

The planned taking not only

threatened Goldberg's profitable

parking business, but

his billboard company,

on

the

parking

lot's

since many of its signs

land.

lobbying

effort

against the

spending

over $1 million of

Goldberg

proposal

his and his

oppose the tunnel plans.

-2-2-

began

in

also

were located

an

intense

1988, eventually

partners' money to

Two

activist

of

those hired

Robert A. Scopa

to

oppose

the project--community

and consultant

Vernon Clark--were

named as co-conspirators in the two separate conspiracies for

which Goldberg was ultimately convicted.

most favorable

to the verdict,

Taking the evidence

the facts pertaining

to the

two different conspiracies were as follows.

Scopa Conspiracy.
________________

From

1990 to 1995, Goldberg employed

Scopa to help organize the East Boston

community against the

tunnel project and to

never

perform other services.

paid Scopa in Scopa's own name.

his

Liverpool

successive

Goldberg

Lumber

"straw"

and all

company

employees,

of whom agreed

issue

none

But

Goldberg

Instead, Goldberg had

paychecks

of

whom

to hand the

to

three

worked

for

money over to

Scopa.

To reflect the "wages"

directed

his

various W-2,

bookkeeper

W-3, and

then filed with the

wage

payments

Liverpool

to

Lumber.

of the straw employees, Goldberg

at

Liverpool

Lumber

to

W-4 reporting statements,

IRS.

straws

These documents falsely

who

had performed

no

prepare

which were

described

work

for

The straws, in turn, falsely included the

phantom wages from Liverpool on their own individual returns.

Reporting the money on the straws' returns instead of Scopa's

resulted

in a

loss of

about $150

to the

Internal Revenue

Service.

-3-3-

The

government claimed

at

trial that

the scheme

was

devised

so that Scopa would

seem to be

unemployed and thus

could continue to collect monthly benefits under a disability

insurance policy.

to hide the

Evidence

also indicated that Scopa sought

payments in order to

"independent" activist

in the

preserve his status

East Boston community

prevent an

extramarital affair from being

wife.

district court

The

as an

and to

discovered by his

later found that

Scopa, but

not

Goldberg, was motivated by all of these objectives.

Clark Conspiracy.
________________

In

the course of opposing

the Third

Harbor Tunnel project, Goldberg also retained Vernon Clark, a

lobbyist in

to this

end.

Washington, D.C., who performed various services

Goldberg's companies owed

sum of money in 1991 for

Clark a substantial

work performed in opposition to the

tunnel project.

men

agreed

Rather

with others

than pay the bill directly,

to

a more

complicated

the two

method for

Goldberg to discharge his debt to Clark.

At the time,

woman named

Clark was

having a secret

Patricia McNally.

The pair

time in a Maine beach house of which

Clark

his

affair with

occasionally spent

McNally was part owner.

sought to fund an expansion of the beach house without

wife's knowledge.

owed to Clark to

McNally's

Goldberg

agreed to pay

a landscaping company owned by

brother-in-law, who

beach house expansion.

-4-4-

would

in turn

the money he

John Lango,

construct the

Goldberg arranged for

the preparation

of two

separate

$10,000 invoices to Park 'N Fly from Lango, dated October 15,

1991 and

January 1, 1992,

respectively.

The

invoices were

ostensibly for landscaping services, although Lango performed

no work for any

paid

by

Park 'N

of Goldberg's companies.

Fly.

payments were structured

Lango testified

The

invoices were

at trial

that the

in two installments so as to reduce

his taxes on the transaction.

The triangular

flow of money and

preparation and filing

services involved the

of several false

Goldberg's direction,

Park 'N Fly sent

tax documents.

forms 1099-MISC, one

for each $10,000 payment, to the IRS and to Lango.

falsely listed

Lango.

the payments as non-employee

Lango in turn reported

own income

tax returns

report the money.

in

At

The forms

compensation to

the payments as income on his

1991 and

1992.

Clark did

not

The foreseeable tax loss to the IRS based

on this scheme was about $3,000.

for

A federal

grand jury indicted Goldberg on April 6, 1995

offenses

relating

to

the

indictment charged Goldberg with

defraud

the

United

States

above

activities.

The

two counts of conspiring to

government, 18

U.S.C.

371,

several counts of

income tax returns,

of mail fraud

aiding and assisting

26 U.S.C.

based on

7206(2),

the filing of

false

and several counts

his alleged efforts

to conceal

his

-5-5-

employment of Scopa from the latter's disability insurer.

18

U.S.C.

1341.

After moving

unsuccessfully to dismiss

Goldberg waived his

trial

before the

September 6,

court

right to

district

1995, the court

found Goldberg

guilty

a trial by

judge took

jury.

eight

tax

returns,

charges on the

days, and

on

findings.

The

of conspiring

to defraud

the

but acquitted

ground that

Goldberg's

announced its

government and of aiding and assisting in

false

the indictment,

him

his motive to

the preparation of

on

the

mail fraud

help defraud

the

insurer had not been proved beyond a reasonable doubt.

At Goldberg's

sentencing in December 1995, the district

court made guideline calculations

departed downward

two levels

(described below) but then

and sentenced Goldberg

at the

bottom of the range.

five

months to

The result was a

be served

in prison

ten-month sentence--

and five

in community

confinement--as well as three years of supervised release and

$20,000

fine.

Goldberg now

appeals,

challenging

his

convictions and sentence.

The most important and difficult issues on appeal relate

to Goldberg's conviction for conspiracy under 18 U.S.C.

to defraud

Klein
_____

the IRS.

conspiracy,

This

taking

type of conspiracy is

its

name from

an

known as a

earlier

involving a complex scheme designed to escape taxes.

States
______

v.

Klein, 247
_____

F.2d 908

-6-6-

(2d

Cir. 1957).

371

case

United
______

Goldberg

argues

that

the district

"purpose" element

court

and that

misunderstood

the evidence did

the crime's

not support

conviction.

The defraud

conspiracy

"to

clause

of

defraud the

thereof in any manner or for

Such conspiracies to

Section

United

371

criminalizes

States,

any purpose."

or any

18 U.S.C.

any

agency

371.

defraud are not limited to those aiming

to deprive the government of

conspiracy to

interfere

money or property, but

with government

include

functions.

See,
____

e.g., United States v. Tarvers, 833 F.2d 1068, 1075 (1st Cir.
____ _____________
_______

1987).

was

The crime with which Goldberg was charged, therefore,

that

he

functioning

of

conspired

the IRS,

to

interfere

through

with

the filing

the

of

proper

false tax

documents.

It

has

is commonly said that in such a conspiracy the fraud

to be

merely

scheme.

a purpose
_______

foreseeable

or object
______

of the conspiracy,

consequence

of

the

and not

conspiratorial

Dennis v. United States, 384 U.S. 855, 861 (1966); 1

______
_____________

Sand et al., Modern Federal Jury Instructions

______ ________________________________

19.02 (1990).

Consider,

for example, the case

All know that the

that

none of

the

of a band

agreed-upon robbery will generate "income"

robbers will

report.

straining to describe interference with

or

of bank robbers.

object of the conspiracy.

Yet

it would

be

the IRS as a purpose

E.g., United States v. Vogt,

____ ______________
____

910 F.2d 1184, 1202 (4th Cir. 1990).

-7-7-

This

requirement

of

purpose

accords

generally

with

conspiracy doctrine, United States v. Alvarez, 610 F.2d 1250,

_____________
_______

1256 (5th

the

Cir. 1980), but

defraud clause

financial

crimes

of

it is especially

section 371.

without

some

important under

There are

implications

reporting in someone's tax filings, if not for

itself.

consequence

If

of

section

371

a conspiracy,

embraced

many

every

joint

having no other federal nexus--and perhaps

not

for

many

false

tax liability

foreseeable

financial crimes

many non-criminal

acts as well--would automatically become federal conspiracies

to defraud the IRS.

The "purpose" requirement, however,

is easier to

state

than

to apply.

The

normally involves

origin.

The

laundering of drug

the deliberate concealment of

primary

purpose

detection of the underlying

an

implied secondary

IRS?

money, for example,

is almost

the money's

always

crime; but can a jury

objective to

conceal income

to

avoid

also find

from the

We have held, on specific facts, that a jury could draw

such an inference and

E.g., United States v.

____ _____________

also find a violation of

section 371.

Cambara, 902 F.2d 144, 147

_______

(1st Cir.

1990); Tarvers, 833 F.2d at 1075-76.

_______

Such cases

on this issue.

either

must

frustrating

are the source of

Goldberg's first argument

He argues, inventively, that the conspirators

have

the IRS

as

their

or must

primary

purpose

be agreeing

to

the

aim

of

undertake the

-8-8-

conduct

of the

in question to conceal some other crime.

first alternative

(primary purpose) is

An example

Klein itself
_____

where a web of shell companies and deceptive arrangements was

devised to evade

taxes; the second

alternative (concealment

of crime) captures the money laundering precedents.

This view of section 371 might explain a number of cases

and

create a

But

it

barrier against

makes no

overreaching by

doctrinal sense.

prosecutors.

A conspiracy

can have

multiple objects, Ingram v. United States, 360 U.S. 672, 679______

_____________

80 (1959), and any agreed-upon object can be a purpose of the

conspiracy and

problem,

rationally

functions

used to

which

ought

define its character.

not

between cases

is
__

be shirked,

is

where interfering

purpose and

those

where

The

to

central

distinguish

with government

it

is merely

foreseeable effect of joint action taken for other reasons.

This

effort poses

subtle

problems

in

discriminating

"purpose" from "knowledge" and in separating the objects of a

conspiracy from its more

remote consequences.

Volumes could

be written on these subjects but--for cases like ours--a more

compact

solution is

effectively agreed

misattribute

at

hand: where

to falsify

income,

we

the conspirators

IRS documents to

think

circumstances) the factfinder may

that

(depending

have

misstate or

upon

the

infer a purpose to defraud

the government by interfering with IRS functions in the sense

endorsed by the Supreme Court in Dennis.

______

-9-9-

It may well be that the conspirators in this case had no

subjective desire--primary or secondary--to throw sand in the

__

wheels of the

liability.

IRS, let alone a subjective aim

Goldberg's argument

qualification as

But

filing a

income

number of

false tax

so

between a purpose

no

one

may be plausible.

proximately with

could (but need not)

sharp distinction

to file

point, with

documents misattributing

clearly and

functions--or at least a factfinder

we see

this

to the Clark conspiracy,

can interfere

find--that

on

to reduce tax

under section

such documents and

a purpose

IRS

so

371

to

interfere.

In permitting

we

a factfinder to equate

leave untouched

collateral

the general

effects of

an object of

if, without

with

precept, namely,

jointly agreed-to

generally foreseeable, are not

the two purposes,

that mere

activity, even

if

mechanically to be treated as

the conspiracy.

This would be a different case

filing false tax documents,

Goldberg had agreed

his partners to pay Jones under the table, knowing that

Jones had no intention of reporting the money to the IRS.

If

the difference is in degree, then here the degree matters.

This

Goldberg

view of

brings us

which we

the law:

to the

evidentiary question

rephrase to

does

accord with

the evidence in this

raised by

our just-stated

case show that

Goldberg and at least one other conspirator shared

a purpose

to interfere with IRS functions by the filing of false income

-10-10-

reports

with the

answered separately

IRS?

as to

convicted of two separate

This

question

must be

each conspiracy, as

asked

and

Goldberg was

conspiracies under section 371 and

each conviction involves a separate assessment.

In each conspiracy, the

to

section 371

violation

conspirators.

defraud requires at

of a conspiracy.

But

purposes or objects of

by

shared

to Goldberg's own role

aim. Innocent third parties

shared

must be

by two

Although the government's brief

evidence pertaining

conspiracy to

illicit purpose that gives rise

at least

or

stresses the

and knowledge, a

least two who

share that

may be the unwitting instruments

when it comes

to characterizing

the conspiracy, it is those

two

more

co-conspirators that

illegal agreement between them.

make

the

that are

up the

United States v. Krasovich,

_____________
_________

819 F.2d 253, 255 (9th Cir. 1987).

Here, the

district court

found that

a purpose of

the

conspirators, in

IRS.

As

depending

we have

each conspiracy, was to

said,

such a

upon the facts, where

the conspirators included the

tax

documents.

Goldberg

false

tax

This

who arranged

documents

purpose

can be

the very acts

inferred,

agreed to by

filing of false income-related

purpose can

fairly

for the creation

in

interfere with the

each scheme.

be

imputed

of several

The

to

or more

duration

and

complexity of the schemes, and Goldberg's own sophistication,

add to the inference.

-11-11-

There is no evidence

that Goldberg discussed the filing

of false tax documents with other conspirators.

that such

each

conduct was an

conspiracy,

conspirators

Scopa conspiracy,

were

integral and self-evident

permitting the

shared in

Scopa himself signed a

inference

that purpose.

false W-2s were

participants in

Yet we think

the scheme,

In

that other

the case

given to the

over an

part of

co-

of the

straws, who

extended period.

tax return with his wife, who was one

of the straws, that incorporated a false W-2.

As

to the

Clark conspiracy,

Lango received

the false

form 1099s, and he in turn

IRS.

reported the false figures to the

Indeed, Lango asked that the amount be

divided so that

it could be reported in two different years, testifying later

that Clark had

motive

sum, the

suggestion.

but, in addition, shows

filing of false

scheme,

made the

tax documents

and both shared in

This

indicates a

that both men

was an integral

this purpose with

evidence supports the

tax

knew that the

part of

the

Goldberg.

In

trial court's findings

of a

common purpose to interfere with IRS functions.

In

criminal

addition to "the danger [of injustice] inherent in a

conspiracy charge,"

defraud clause

of section

371

abuse because of the vagueness

Dennis, 384
______

has a

U.S. at

860, the

special capacity

for

of the concept of interfering

with

a proper government function.

examined with special

For that reason, we have

care both the concept and the evidence

-12-12-

in

this case.

But having

done so,

we conclude

that the

conduct and purpose of the defendants, although markedly less

sinister

than in

Klein,

could properly

be

found to

fall

_____

within the outer bounds of section 371.

Goldberg next

challenges the admission at

out-of-court conversations between Lango

they

discussed

solicitation

of

the

false

Goldberg's

trial of two

and Clark, in which

landscaping

invoices

participation

in

These statements were admitted, over Goldberg's

and

the

the

scheme.

objection at

trial, pursuant to Fed. R. Evid. 801(d)(2)(E), which provides

that "a statement by

course

and

in

a co-conspirator of a party

furtherance

of

the

during the

conspiracy"

is

not

considered hearsay.

Goldberg does not dispute that

challenged

conspiracy,

statements

but

he

during

argues

and

Lango and Clark made the

in

that the

furtherance

statements

of

the

were

not

admissible

joined.

against

him because

they

were

made before

he

He relies heavily on our opinion in United States v.

_____________

Petrozziello, 548 F.2d 20 (1st Cir. 1977), where we said that

____________

"if

it is more

defendant

were

likely than not

members of

that the

conspiracy

declarant and the

when the

hearsay

statement was made, and that the statement was in furtherance

of the conspiracy, the hearsay is admissible."

Id. at 23.
__

Although this language has been cited with approval in a

few later cases, e.g.,

____

United States v. McCarthy,

_____________
________

-13-13-

961 F.2d

972, 976-77 (1st Cir. 1992), it

conflicts with United States

_____________

v. Baines, 812 F.2d 41 (1st Cir. 1987).

______

traditional notion

Baines expressed the

______

that--insofar as hearsay

is concerned--a

late-joining conspirator takes the conspiracy as he finds it:

"a

conspiracy

aboard, he

is like

is part of

a train,"

the crew,

and

"when a

and assumes

responsibility for the existing freight . . . ."

party steps

conspirator's

Id. at 42;
___

accord United States v. Saccoccia, 58 F.3d 754, 778 (1st Cir.

______ _____________
_________

1995).

Frankly,

the underlying co-conspirator exception to the

hearsay rule

makes

policy.

special guarantee

No

statements,

little sense

save

to

declarations against

agency

(as

here.

the

The most

exception

to

a matter

interest.

that

is useful in

is "at

that can be said is that

is

of

long

difficult-to-detect crime easier to

they

Gil, 604 F.2d 546, 549 (7th Cir. 1979).

___

resemble

derives from

some contexts but

best

a fiction"

the co-conspirator

standing

prove.

evidence

attends such

The exception

Committee noted)

hearsay

of

of reliability

extent

law, an analogy that

the Advisory

as

and

makes

United States v.
_____________

If

starting afresh,

one

might argue

that the

narrow

Petrozziello version of the exception should be preferred, if

____________

only

because

imposing

during the

it

accords

better with

substantive liability

conspiracy; a

for

the

companion

other crimes

co-conspirator is held

-14-14-

rule

committed

liable for

foreseeable

conspiracy

period of

acts

but

of

only

membership.

others

if

done

in

committed

the

defendant's

v. O'Campo,
_______

973 F.2d

The broader Baines test

______

traditional approach, United States

_____________

States Gypsum Co., 333

__________________

of

Symmetry is at least convenient.

But we are not starting afresh.

describes the

during the

United States
_____________

1015, 1021 (1st Cir. 1992).

furtherance

U.S. 364, 393

v. United
______

(1948), presumptively

adopted by the Federal

Rules of Evidence.

It is followed in

most circuits.

Saltzburg, et al.,
______

Federal Rules of
_________________

See 2
___

Evidence Manual 219-22

________________

Most important,

cases,

including

it is

(5th

ed. 1990)

the test

Saccoccia,

(collecting cases).

in most

of our

decided only

19

own recent

months ago.1

_________

This panel

is arguably

not free,

but is in

any event

not

inclined, to depart from Saccoccia.

_________

Goldberg's

next claim on appeal is

based on his motion

filed prior to trial asking the district court to dismiss the

indictment

district

on

court

the ground

denied the

evidentiary hearing.

sufficient

of

selective

motion

prosecution.

without

Goldberg claims that

holding a

The

full

he alleged facts

to require a hearing on his complaint, and he now

____________________

1See
___

Saccoccia, 58
_________

F.3d at 778;

1023 n.5; United States v.

______________

O'Campo, 973
_______

Fields, 871 F.2d

______

Cir. 1989); United States v. Murphy,

_____________
______

F.2d at

188, 194

(1st

852 F.2d 1, 8 (1st Cir.

1988);

United States v. Anguilo, 847 F.2d 956, 969 (1st Cir.

_____________
_______

1988); United States v. Reynolds,

______________
________
Cir.

828 F.2d

46, 47-48

(1st

1987); United States v. Cintolo, 818 F.2d 980, 997 (1st

_____________
_______

Cir. 1987).

-15-15-

asks this court to remand the case so that he may have such a

hearing.

The government is allowed "broad discretion" in deciding

whom

to prosecute, Wayte v. United States, 470 U.S. 598, 607

_____
_____________

(1985), but there

government

are some limitations.

may not

base

its decision

"unjustifiable standard," including the

It is said that the

to

prosecute on

defendant's exercise

of protected statutory and constitutional rights.

U.S. at

608.

on

theory that

the

response

to

an

Wayte, 470
_____

Goldberg bases his selective prosecution claim

he was

targeted

his vigorous--and

lobbying activities in opposition

by the

government in

constitutionally protected--

to the Third Harbor Tunnel

project.

In seeking an evidentiary hearing, a defendant need only

allege

"some

facts (a)

selectively prosecuted

tending to

and

show

(b) raising

that he

has been

a reasonable

doubt

about the

propriety of

States v. Saade, 652

______
_____

the court may

the prosecution's purpose."

F.2d 1126, 1135

refuse to

charge, id., and if

___

will

not be

discretion.

(1st Cir. 1981).

grant a hearing

puts forward adequate "countervailing

if the

Review on

United States v.
______________

appeal is

Gary, 74 F.3d
____

Cir. 1996).

-16-16-

But

government

reasons" to refute the

the court is persuaded that

fruitful.

United
______

the hearing

for abuse

304, 313

of

(1st

Here, Goldberg

the

case

made a

alleged that

comment

to

one of the

Goldberg's

prosecutors on

counsel during

preindictment meeting to the effect that Goldberg "should not

have won" his

fight with Frederick

Salvucci, Massachusetts'

secretary of transportation during the tunnel planning stage.

Goldberg

also

claimed

that

prosecution file reflect the

the

initials

"D.D."

on

complicity in the investigation

of David Davis, executive director of MassPort.

Finally, he

pointed to

the

two

the fact that

schemes,

several of his

including

Clark and

co-conspirators in

Lango,

were

never

indicted.

The

claim.

government filed

It denied that

several affidavits

the prosecutor in

alleged statement to Goldberg's

the

initials

"D.D."

on

suspicion in fact referred

Doherty,

an

FBI agent

that

It explained that

raised

not to David Davis but

assigned to

the

rebut the

question made the

attorney.

the file

to

case.

Goldberg's

to Denise

In another

district court paper, the government described the origins of

its

investigation

examples

of other

Klein conspiracies.
_____

into

recent

Goldberg's

activities

prosecutions for

and

mail fraud

gave

and

The district court

that Goldberg's claims

ultimately denied a hearing,

were "close to conclusory."

reviewed the complete filings of both sides and

court's

explanation.

What is

saying

We have

the district

involved is a judgment call--

-17-17-

tempered on appeal by

the deferential standard of review--as

to the force and specificity of the allegations, the strength

of the response, and

helpful.

Cir.

the likelihood that a hearing

United States v.
_____________

1995).

Here,

Lopez, 71 F.3d
_____

the district

court

would be

954, 963-64 (1st

did not

abuse its

discretion.

The claim of selectivity

largely explained

Scopa.

And

its choice

the rather

was quite weak; the government

mainly to pursue

modest evidence of

Goldberg and

wrongful motive

also melted away, leaving only a single dispute.

four prosecutors

had been made.

denied under

But it is

oath that the

in any event too

As to this,

alleged remark

thin a reed

to

require an evidentiary hearing, given the lack of surrounding

evidence to support a selective prosecution claim.

Even less need be said about Goldberg's later

motion,

whose summary

substance

follow its

to

denial is

Goldberg complained

also cited

that

new trial

as error.

the government

In

did not

own internal rules for tax prosecutions or reveal

him information

about this

decision.

The government's

procedures do not create substantive rights, United States v.

_____________

Michaud, 860 F.2d 495,

_______

499 (1st Cir. 1988), and

substantial basis for believing that

Brady material,
_____

Brady v. Maryland,
_____
________

the government withheld

373 U.S. 83

alone that its actions were prejudicial.

-18-18-

there is no

(1963), let

Goldberg's last claim of error

In

fixing

Goldberg's

levels

the

base offense

the

level

district

of 10,

for obstruction of justice,

at an adjusted offense

court

by four

for his role in the offense, U.S.S.G.

two more levels

arrive

sentence,

concerns his sentencing.

level of 14.

enhanced

levels--two

3B1.1(c), and

id.
___

3C1.1--to

(All citations

are

to

the

November

1995

edition

of

the

guidelines).

However, the court departed downward two levels to 12 because

it thought

Goldberg's

conduct was

by the

Klein conspiracy
_____

contemplated

Id.
___

district

conduct "as

sentencing guideline.

judge

that

although

Klein
_____

depart downward

section for aiding and

offense level

me inappropriate

conspiracy guidelines."

two levels because he

(when

He chose

to

thought the guideline

assisting tax fraud,

of 8

Goldberg's

a Klein conspiracy,
_____

sentencing law, it seems to

apply the

$5,000), was

stated

a matter of law constitutes

as a matter of

base

"heartland"

2T1.9.

The

to

outside the

the tax

more reflective of Goldberg's

2T1.4,

loss is

with a

$3,001 to

conduct than the

Klein conspiracy guideline,

_____

2T1.9, which has a base offense

level of 10.2

____________________

2The ten-month

sentence--five

months to

be served

in

prison and five in community confinement--was the minimum end

of

the resulting guideline range of 12.

A (10-16 months at offense level 12).

-19-19-

U.S.S.G. ch. 5, pt.

The government, sensibly in our view,

pursue

an appeal from the downward departure.

as is his right, challenges

impose

two-level

supervisory role

an

enhancement

in the Scopa

organizer, leader,

criminal activity."

two-level

extensive.

Id.
___

for

U.S.S.G.

his

managerial

and Clark conspiracies.

or

The

an increase if "the defendant

manager,

increase applies to

involved fewer

But Goldberg,

the district court's decision to

applicable guideline calls for

was

has chosen not to

or

3B1.1(c).

supervisor in

In such a case, a

joint criminal

than five participants and

any

activity that

was not otherwise

Goldberg

supervised

was his

argues, does

not

F.3d

says

that

the

not count under

comment

872 &

n.1.

person

bookkeeper, Arlene

a culpable participant.

864,

only

managed

Meucci.

or

Meucci, he

the guideline because

she was

See United States v. Morillo, 8

___ _____________
_______

n.13 (1st

However,

he

Cir.

at

the

1993); U.S.S.G.

sentencing

3B1.1,

hearing,

the

district court found that Goldberg "had a management role" in

connection with

false payroll and tax documentation directed

to the straw employees in the Scopa conspiracy.

We review

under

a district court's factfinding

clearly

erroneous

standard.

Thompson, 32 F.3d 1, 4 (1st Cir. 1994).

________

us,

ample evidence

shows

that Goldberg

at sentencing

United States
______________

v.

On the record before

superintended

the

straws'

receipt of false tax

documents.

Goldberg says that

-20-20-

Scopa

and

Clark

conspiracies.

were

the

true

But a defendant need

leaders

not be at the

criminal scheme to be a manager or supervisor.

v.

Savoie, 985

F.2d

612,

616

(1st

of

Cir.

the

two

top of a

United States
_____________

1993).

Here,

______

Goldberg's role was sufficient for the enhancement even if we

assume that

Scopa conceived of

the payroll

scheme and

have exercised primary supervision over the straws.

Affirmed.
________

may

-21-21-