USCA1 Opinion

January 25, 1996

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 95-1721

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

DENNIS L. MASON,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

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

___________________

____________________

Selya, Cyr and Stahl,

Circuit Judges,
______________

____________________

Richard H. Gens for appellant.

_______________
Pamela Merchant,
________________
Justice,

Trial

Attorney, United

States

with whom Donald K. Stern, United States

________________

Department

Attorney, Mark
____

Seltzer,
_______
Adler,
_____

Acting Director, New England Bank Fraud Task Force, and M

_
Senior Trial

Attorney, United

States Department

were on brief for appellee.

____________________

____________________

of Justi

Per Curiam.
Per Curiam.
__________

and sentences for

Dennis

L. Mason appeals

his convictions

bankruptcy fraud, bank fraud,

and money laun-

dering, see 18 U.S.C.

___

152, 1344, 1957.

In

Mason

and First

finalized

a loan

Savings

First

December 1987,

("First Service")

Service was to advance

Realty Trust ("Realty Trust")

and developing twenty-five

Hampshire.

$2.4

On the

We affirm.

$5 million to

Service Bank

agreement

for

whereby

Concord Woods North

for the sole purpose

of acquiring

acres of real estate in

Concord, New

closing date,

First Service

disbursed over

million to Mason, as trustee of Realty Trust; Mason immedi-

ately directed

personal account

closing, Mason

that approximately

at

the Bank

disbursed

of

$12,000

$200,000 be deposited

Boston.

from

this

The

in his

day after

personal

the

account

toward the purchase of jewelry for his wife.

During 1988,

Mason diverted approximately

First Service loan proceeds

Trust project, including

in the

name of his

transferred another

$860,000 in

to purposes unrelated to

a $500,000 transfer to an

lawyer.

Between

the Realty

Ohio account

March and August

$100,000 in loan proceeds to

1989, he

a bank account

in his wife's name.

After

First Service

Bank closed

and its

assets were

acquired by the Federal Deposit Insurance Corporation ("FDIC") in

March 1989, Realty

Mason, as

a chapter 7

petition, in

which

trustee, failed to disclose any of the above-described

diversions of

meeting of

Trust filed

First

Service loan

creditors in the Realty

funds.

In

May 1989,

at

Trust bankruptcy proceeding,

Mason

testified that

applied to the

all First Service

Realty Trust

real estate project.

made similar misrepresentations

1989,

and again in 1992.

ness records.

In

loan proceeds

to FDIC

had been

Mason

attorneys in

later

September

March 1992, he destroyed his busi-

Two months later he filed his own personal chapter

7 bankruptcy petition.

Mason first

claims that

instruct the jury on the essential

fraud under

section 1344.1

jury instruction, we

jury

instruction

met

the

failed to

elements of the crime of bank

Since Mason

review only

States v. Hurley, 63 F.3d

______
______

the district court

failed to object to the

for plain error.

1, 9 (1st Cir. 1995).

three-part

See
___

United
______

The challenged

standard

established in

United States v. Brandon, 17 F.3d 409, 424 (1st Cir.) (bank fraud
_____________
_______

elements

under 18 U.S.C.

1344 require

knowingly engaged in

a scheme

false

misrepresentations

statements or

bank), cert. denied, 115 S.

_____ ______

let alone plain error.

showing that defendant

or artifice to

to

Ct. 80 (1994).

defraud, or

obtain money

There was

made

from,

no error,

____________________

1As many

arguments advanced by

Mason on appeal

are redun-

dant, undeveloped, unpreserved, or patently frivolous, they merit

no discussion.

In particular, since Mason mounts only a perfunc-

tory challenge

to the bankruptcy fraud

States v. Zannino,
______
_______

895 F.2d 1, 17 (1st

U.S. 1082 (1990), and the

challenged instructions,
Plummer v.
_______

instructions, see United

___ ______

Cir.), cert. denied, 494

_____ ______

record on appeal does not

see Fed. R.
___

include the

App. P. 10(b),

Springfield Terminal Ry. Co.,

____________________________

11(a); see
___

5 F.3d 1, 5

(1st Cir.

1993) (merits not reached because pertinent material not included

in

record

on appeal),

cert. denied,
_____ ______

114

S. Ct.

United States v. One Motor Yacht Named Mercury,

______________
______________________________

1057 (1994);

527 F.2d 1112,

1113-14 (1st Cir. 1975), we deem the claim abandoned.

Mason next

contends that the district

reversible error by rejecting his

tal on

the

bank

fraud

court committed

motion for judgment of acquit-

charge, since

there

was

insufficient

evidence that he had embarked on a scheme to defraud

the time the

___ ____ ___

the bank by
__

loan documents were executed in December

____ _________ ____ ________ __ ________

1987.
____

We

evaluate the evidence in the light most favorable to the verdict,

which must

be affirmed if a rational jury could have found Mason

guilty beyond a reasonable

doubt.

United States v.
_____________

Vavlitis, 9
________

F.3d 206, 212 (1st Cir. 1993).

Although

Mason

attempts to

explain the

$12,000 dis-

bursement from his personal account at Bank

jewelry

for his wife the day after receiving the initial advance
___ ___ _____

from First

Service on

question that

curred.
______

the Realty

Trust loan,

had been

jury reasonably to infer that

_____

formulated by
__

Moreover, larger

the time
___ ____

proximate

The

jury

was free

subsequent conduct

to

documents,

especially

closing oc_______ ___

Realty Trust

loan

after the loan documents were

infer from

this

that Mason's fraudulent

engage in the scheme had originated

loan

no

the scheme to

the loan
___ ____

diversions of the

proceeds began within three months

executed.

there can be

this virtually contemporaneous evidence was suffi-

cient to enable the

defraud

of Boston to pay for

reasonably

intent to

by the time he executed

since he

presented

no

the

compelling

explanation for

day after the

embarking upon the improper

closing.

See United States

___ _____________

loan diversions the

v. Sutton, 970
______

F.2d

1001, 1007 (1st Cir. 1992) ("testimony, though it centered around

later-occurring events,

was relevant to

show appellant's intent

at an earlier date"); United States v. Mena, 933 F.2d

_____________
____

(1st Cir. 1991) (similar).

19, 25 n.5

Mason raises

two sentencing claims.

that the two-level sentencing

planning," see
___

the bank

U.S.S.G.

enhancement for more than "minimal

2F1.1(b)(2),

fraud, bankruptcy

First, he argues

was unwarranted

fraud, and money

laundering conduct

constituted "singular transactions" or "single acts."

clear error.

that

See Brandon, 17
___ _______

Mason repeatedly

F.3d at 459.

diverted First

because

We find no

The record reveals

Service loan

proceeds to

personal and other improper purposes throughout much of 1988

1989.

Thus, the

sentencing enhancement

planning simply reflected the

was

no "spur

of

the moment"

for more

and

than minimal

reality that his prolonged conduct

undertaking.

Gregorio, 956 F.2d 341, 343 (1st Cir. 1992).

________

United States
______________

v.

Second, Mason

was clearly

the

erroneous.

Concord Woods

relied on a

claims that

He relies

North

the total

on a $4 million

property, whereas

$110,000 FDIC

loss calculation

appraisal.

We

appraisal of

the district

review the

court

valuation

ruling for clear error.

United States v. Tardiff, 969 F.2d 1283,

_____________
_______

1288 (1st Cir.

The record discloses

1992).

court reasonably

stated the number

could have

that the

found that Mason's

district

appraisal over-

of single-family homes the Concord Woods North

property could accommodate and

individual building lots.

relied on inflated valuations for

On the other hand, the much lower FDIC

appraisal figure is the product of alternative valuation methods;

viz., an "income capitalization

approach" and a "comparable land

sales approach."

See U.S.S.G.
___

er relevant information .

6A1.3(a) ("the court may consid-

. . provided that the

information has

sufficient indicia of reliability to support its probable accura-

cy.").

On this record, there was no clear error

court finding

that the

than that of the FDIC.

defendant's valuation was

United States v.
_____________

105, 110 (1st Cir. 1995) ("[T]he

in the district

less reliable

Tejada-Beltran, 50 F.3d
______________

sentencing court's choice among

supportable alternatives cannot be clearly

erroneous.") (quoting

United States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990)).
_____________
____

Finally,

Mason

presents

an "ineffective

assistance"

claim based on trial counsel's alleged failure (1) to object to a

supplemental

jury instruction on bank fraud, and (2) to move for

a new trial based on the same instruction.

Ortiz,
_____

23 F.3d

21

(1st Cir.

assistance" claim on direct

See
___

United States v.
_____________

1994) (entertaining

"ineffective

appeal where record was sufficiently

developed and critical facts were not in dispute).

The

instruction

appellant could be

government

added.)

in question

informed

the

convicted upon "whatever scheme

________ ______

has proven

beyond

a reasonable

doubt."

jury that

you find the

(Emphasis

Mason asserts that this rendered the indictment "duplic-

itous."

We disagree.

The challenged instruction

simply permit-

ted the jury to convict based on a scheme plainly

alleged in the

indictment.

The evidence adduced

of the scheme alleged

Miller, 471 U.S.

______

claim therefore

at trial worked no

in the indictment.

130, 145

(1985).

fails as Mason has

broadening

See United States

___ _____________

The ineffective

v.

assistance

not demonstrated "prejudice"

from

the alleged omission by

trial counsel.

Washington, 466 U.S. 668, 687 (1984).

__________

Affirmed.
Affirmed.
________

See 1st Cir. R. 27.1.

___

See Strickland v.
___ __________