USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 92-2073
UNITED STATES,
Appellee,
v.
JOSEPH N. CASSIERE,
Defendant, Appellant.
__________
No. 92-2074
UNITED STATES,
Appellee,
v.
JANET M. PEZZULL0,
Defendant, Appellant.
__________
No. 92-2182
UNITED STATES,
Appellee,
v.
JANET DOLBER,

Defendant, Appellant.
_____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
___________________
____________________

Before
Selya, Circuit Judge,
_____________
Friedman,* Senior Circuit Judge,
____________________
and Cyr, Circuit Judge.
_____________
____________________

Robert B. Mann with whom Mann & Mitchell was on brief

________________
_________________
appellant Joseph Cassiere.
John A. MacFadyen for appellant Janet M. Pezzullo.
_________________
Kenneth J. Fishman with whom Peter Charles Horstmann, Susan
___________________
_______________________
_____
Naughton and Bailey, Fishman & Leonard were on brief for appell
________
___________________________
Janet Dolber.
Margaret R. Hinkle, Special Assistant United States Attorn
___________________
with whom A. John Pappalardo, United States Attorney, was on brief
__________________
appellee.

____________________
September 16, 1993
____________________
_____________________
*Of the Federal Circuit, sitting by designation.

Friedman, Senior Circuit Judge.

____________________
In these

consolidated appeals

the three

defendant

challenge
commit

their

convictions of

wire

that offense on various

fraud

grounds.

and conspiracy

The

to

fraud involved an

intricate and sophisticated scheme involving a technique known as

a

"land flip," under which real

price, immediately
fictitious
basis

resold at a much

buyer, and

for obtaining

transaction.

property is purchased for a low

the higher
a mortgage

higher price to
resale price

loan that

a straw or

is used

as the

finances the

entire

One of the defendants also challenges her sentence.

We affirm.
I.
A jury in the

United States District

District of Massachusetts convicted

Pezzullo

the defendants Cassiere

th

and

of fifteen counts of wire fraud and aiding and abetting

wire fraud, and the

defendant Dolber of thirteen counts

crime (it acquitted her on one count), in violation

1343

Court for

(1988),

and

all

three

defendants

conspiracy to commit wire fraud, in

(1988).

The

district

imprisonment,
Pezzullo to 24
supervised
followed by

five

years

Cassiere
of

and

three years of

Dolber

count

to

39

also was ordered to make restitution.

to 46

months

of

371

months

release,

by three years

supervised release.

-33

one

supervised

months imprisonment, followed

release,

of 18 U.S.C.

violation of 18 U.S.C.

court sentenced

followed by

of

of that

of

imprisonment,

Each defendant

The

substantive

defendants

were

convicted

scheme to

defraud

six

crimes

involved their

mortgage

were

closed

on

the

of

Pezzullo

in

a two-person

thre

participation
a

in

series

of

day,

often

the

second

Cassiere was the senior partner

law

firm

closings in the land flip transactions.

appraiser, whose appraisals

the

which the two sales of the

same

immediately following the first.

which

lenders through

fifteen land flips, in all but one of

property

for

that

handled all

the

Dolber was a real estate

of the properties were

relied on by

the mortgage lenders in making their loans.

Rate Line
took

was a

loan applications

DeNunzio
Glenn

mortgage broker which,

and

referred them

owned Rate Line, and

Monteiro, controlled

planned and organized the

he and his

Rate

Line.

to lenders.

and Chantel, Inc.)

fee

Thomas

employee loan broker,

DeNunzio and

Monteiro

fraudulent scheme, under which one

three straw corporations they controlled (Half

Corp.

for a

of

& Half, Inc., ZBA

purchased foreclosed property for cash

and resold the property on the same day to straw buyers at a much
higher price.

Mortgage

loan

institutions were used to pay

Line

and that

balance

funds received

to DeNunzio

lending

the corporation controlled by Rate

corporation then

then went

from the

paid for

the first sale.

and Monteiro,

The

channeled through

Rate Line.
DeNunzio
indictment
present

and

case.

and

they both

Monteiro

pleaded

testified for

guilty

to

anothe

the government

in the

They described in detail how the scheme operated,

-44

the roles Cassiere,

Pezzullo, and Dolber

played in the

scheme,

andDeNunzio's andMonteiro's relationshipwith thethree defendants.

An

example of

the

operation of

the scheme

was a

Half Corporation

close

follows:
On April
the

purchase

of

12, 1991,

property at

Half &
104

Menlo

Street

for $102,900.

Moments later Half & Half closed the sale of the property to Fred
Strangis,

one of

the dummy

purchasers,

for $228,000.

previously had appraised the property at $228,000.

Dolber

Based on this

appraisal and Strangis' certification that he would reside at 104

Menlo

Street,

Rate

Line

gave

Strangis

mortgage

loan

$182,400, which was eighty percent of the final sale price.

Line,

in

turn, sold

Corporation.

Strangis'

Neither Half

mortgage

to CenTrust

and Half nor Strangis brought

of

Rate

Mortgage

a down

payment to

the double

closing.

Instead,

Monteiro provided

cashier's check for the twenty percent down payment ($45,600) the
lender required the purchaser to make.
Cassiere

and

Pezzullo

recorded

both

deeds

an

disbursed the funds they had received from the lender.

They paid

the original owner

they paid

the

the $102,900 owed

by Half & Half,

closing costs, including attorneys' fees

due them, and gave

the balance to Monteiro and DeNunzio.

Cassiere,
attorney

assisted

in each of the

interests of the lending

Rate Line,

by

Pezzullo,

double closings.

was

the

closin

They represented the

institution that was providing, through

the mortgage loan

to the final

buyer.

The

closing

-55

attorney serves as "the eyes and ears" of the lending institution

at the closing.

The lenders expected the attorneys to alert them

to anything unusual.
of

Neither Cassiere nor Pezzullo

the six lenders that their law

same property on the same day at

Dolber

was the real estate

The lending

firm was closing twice on the

substantially different prices.

appraiser in thirteen

institutions relied

notified any

on her appraisals

of the flips.

to determine

the

value of the properties

upon which they

The appraisal alerts the lenders

were making loans.

to the property's condition and

allows them to determine their ability to recoup their investment

should the borrower default on the mortgage.
The lenders
eighty percent
property.
than

of the

The six

generally made
sale price

lenders made

loans of

or fair

the lesser

market value of

mortgage loans

the

totalling more

$2.6 million on the properties that were the subject of the

land flips involved in this case.

Ten of
properties

involved

the thirteen
in

the

land

appraisals Dolber
flips

were

for

made of
an

th

amount

identical

to the final sale price, which ranged from $160,000 to

$231,000.

(The

from $42,000 to

original sale prices of

those properties ranged

$132,000.)

three other

Two of the

were for $1,000 higher than the second

appraisals

sale price; the third was

for $2,000 higher.

II. Sufficiency of the Evidence
Pezzullo and

Dolber, but not Cassiere, challenge th

sufficiency of the evidence to support their convictions.

-66

In
"look[]

to

inferences

reviewing the

the

evidence

drawn from

as

it, in

record
a

in such

whole,

the light

challenge,

including

reasonable

most favorable

to the

verdict, to determine whether a rational trier of fact could have

found

the defendant guilty

beyond a reasonable

doubt."

United
______

States v. Plummer, 964 F.2d 1251, 1254 (1st Cir.), cert. denied,
__________________
____________
113 S. Ct. 350 (1992).
resolve

"We do not weigh witness credibility, but

all credibility

evidence

may be

issues in

entirely

favor of

the verdict.

circumstantial and

need not

The

exclude

every reasonable hypothesis of innocence; that is, the factfinder

may decide

among

reasonable interpretations

of the

evidence."

United States v. Batista-Polanco, 927 F.2d 14, 17 (1st Cir. 1991)

________________________________
(citations

omitted).

Thus

viewed, the

record

supports

the

convictions.
A.

The Wire Fraud Convictions

__________________________
To

prove wire

fraud the government must

show: 1)

scheme to defraud by means of false pretenses, 2) the defendant's

knowing and willful
to defraud, and 3)

participation in the scheme

the use of interstate wire

furtherance of the scheme.

6 (1st Cir. 1989).
wire

fraud,

the

with the intent

communications in

United States v. Serrano, 870 F.2d 1,

________________________

To support convictions of aiding and abetting

government

must

prove

that

the

"defendant

associated [herself] with the underlying venture, participated in

it as something [she]

wished to bring about, and sought by [her]

actions to make it succeed."

United States v. Clifford, 979 F.2d

_________________________

-77

896, 899 (1st

Cir. 1992) (citing Nye & Nissen v. United States,

______________________________

336 U.S. 613, 619 (1949)).

Neither Pezzullo nor Dolber challenges the
of a

scheme to defraud.

The scheme is shown

Monteiro's lengthy testimony about the

trick the

by DeNunzio's and

details of their plan

to

lending institutions into making risky loans that were

warranted by neither the

loan nor the
and

existenc

Dolber

final purchaser's ability to

repay the

particular property's true market value.

Pezzullo

also do

communications to

not challenge

the

use of

effectuate the plan, as

by testimonial and physical

interstate wire

demonstrated at trial

evidence of the use of

fax machines

and telephone conversations throughout the scheme.

Pezzullo and
unaware

Dolber, however,

claim that

they wer

of the scheme and therefore were not knowing and willful

participants in it.

We hold, however, that the

jury reasonably

could have concluded from

both

Pezzullo and

the voluminous evidence at

Dolber knowingly

trial that

participated in

the scheme

with intent to defraud, and also aided and abetted the fraud.
1.

Pezzullo
________

Pezzullo
almost all

participated

of which took place

Pezzullo law firm.

in

all the

double closings

at the office of

the Cassiere &

Fred Strangis testified that Pezzullo's role

was to "prepare all the papers and as you're signing them,

bring them to you,
them to you."
final

try to get you to

read them, try to

Frank Andrews and Dennis

buyers,

and

Marlissa

Pina,

would

explain

Griffin, two other straw

representing

one

of

the

-88

controlled

corporate

purchasers,

corroborated

Strangis'

testimony.
Because
mortgages

to

the

lending

individuals who

live

institutions
in the

give

property

highe

they buy,

Strangis signed Residential Loan Applications and Owner Occupancy

Affidavits, which
occupy

Pezzullo gave him, stating that he intended to

the property.

Strangis

was the final

purchaser of four

properties,

however,

and

at

closings on

February 6,

1991, April 12, 1991, and

December

12,

1990,

April 15, 1991, he signed

forms stating that four different properties would be his primary

residence.

Other

straw

multiple owner-occupancy
within one month and

final

documents at the

a half signed three

Monteiro within a four-month

Dennis

purchasers

similarly

signed

closings: Peter
such forms;

Pina

Jeanette

period twice signed such documents;

Griffin in one month signed two such documents; and Frank

Andrews within three months

signed two.

Pezzullo

witnessed the

signing of each of these documents.

All of the lenders required that the purchaser
a twenty percent down payment to
buyers making
the first

the second

amount of the
for

that

purchases nor the

purchases brought down

Cassiere or Pezzullo

the closing.

Neither the straw

corporations making

payments with them.

Instead,

notified Monteiro before the closing of the

down payment and he would

amount

brin

to

Settlement Statements

the

closing.

that Cassiere

bring a cashier's check

Nonetheless,

filled out at

reported that the buyers had brought the money.

-99

the

HUD-1

the closings

The

only

corporations that

function

DeNunzio and

legal documents designed to

hidden.

Pezzullo,

of

the

officers

Monteiro controlled was

th

to sign

keep Monteiro's and DeNunzio's roles

however, was aware that DeNunzio and Monteiro

controlled the corporations, since Half & Half

and Pezzullo offices

used the Cassiere

as its

corporate address.

closings where each property

was first sold and

neither Cassiere

of

nor Pezzullo

the documents they were

At the

double

then purchased,

told the corporate

officers what

signing meant, or that they

were buying

and selling real property.

Pezzullo
from

the

second

handled

half of

difference between the

the

the

distribution of

flip.

The

loan amount [from

first sale price, minus

proceeds

After

deeds on the two sales

double closings, Pezzullo disbursed the funds

final purchaser's
due to

the original

returned

the

down

distributed the
them

mortgage.

to divide.

Pezzullo prepared

from the

payments

to

first

Monteiro

the

Cassiere and

following the

that came from the

Pezzullo gave Monteiro

owner

were "the

the lender] minus

any closing costs."

Pezzullo had completed the

the proceed

the amount

half of
and

remaining proceeds to Monteiro

the

DeNunzio,

flip,

and

and DeNunzio for

In addition to distributing the mortgage funds,

disbursement sheets noting the

funds received

and the funds disbursed.

Paul Pires, as Half & Half's president, first
and then sold property in nine of the flips.
Pezzullo's presence,

he

signed a

HUD-1

bough

At each closing, in

form and

statement

-1010

certifying

that he had

received a copy

of the HUD-1

form, yet

neither Cassiere nor Pezzullo ever gave him that document.

George
one

of

attorney

the lending

Gundensen, president of CenTrust Corporation

institutions,

is expected

to

fill

in

testified
all

blank

that the
spaces

closing
in

documents before having the

mortgagor sign the documents.

of

forms at the

the final buyers signed

were

completely blank.

in Marlissa

loan

Some

closing, however, that

In fact, Cassiere and Pezzullo discussed

Pina's presence that they were

asking her to sign a

blank document.
Had the
same law firm
day

lending institutions been

had closed twice on the same

informed that th

property on the same

and with such wide price disparities, they would have either

"suspend[ed] the loan for

loan."

Because

prices,

the

"would

of the

further information or cancell[ed] the

large difference

lending institution

be making a

loan on a

would

between the
have

two sale

believed that

piece of property,

it

the value for

which wouldn't support the amount of the loan being made."

The

foregoing

evidence,

together

with

additiona

evidence
jury's

in the

record

conclusion that

we have

not

discussed, justified

Pezzullo both

committed wire

the

fraud and

aided and abetted its commission.

2.

Dolber
______

Although Dolber
she had

a vital role in

forms, which

she

never participated in the

making the scheme work.

submitted to

Rate

closings

Her appraisal

Line, supported

the

high

-1111

second sale price and thus resulted in the higher mortgages.

lenders relied
As

heavily on

noted, every

appraisal

the accuracy of
she submitted

The

Dolber's appraisals.
on the

thirteen land

flips for properties was identical to the second sale prices, or,
in three instances, slightly higher.
DeNunzio testified

that he wanted

to use Dolber

the appraiser because he knew from talking to her that "she would
bring

in

property values

"would use non-arm's length

By

non-arm's

comparable

length

sales

used

as high

as

possible," and

that she

transactions for sales comparisons."

transactions,
were not

DeNunzio
true

sale

meant

"that

with a

the

wanting

borrower and
she

used

a wanting seller."

often

were

previous

Instead, the

comparable sales

flips

Rate

that

Line

had

established, and, therefore, did not reflect true market value.

Suburban Mortgage Company made a review appraisal
one of the properties to evaluate Dolber's appraisal.

Dolber had

appraised the property at $210,000 and described the neighborhood

as "a

mixture of similar

medium

well

maintained

well maintained income

properties and

single

family

homes.

The

neighborhood is stable at this time and shows that revitalization

has

been completed

and upgraded

the area.

. .

No adverse

market conditions from neighborhood."

The review appraiser concluded that the market

valu

of the property as of the date of Dolber's appraisal was $50,000.

In

response

description

to

the

of the

question

"Is

neighborhood

the

appraiser's

complete and

overall

accurate?,"

the

-1212

review appraiser
in the midst

answered "No" and explained that

of a high crime

"This area is

drug area of the city.

There are

boarded up buildings, fire damaged units and vacant apartments in

buildings.

This is

the least desirable area in

the city within

which to live."
Monteiro accompanied
appraised properties.
the second

Dolber in

viewing some

of th

He told her of the proposed sale price for

half of the flip.

Usually, the appraised

very close to the intended sale price.

value was

Dolber "appraised

at the

value needed, so we [Rate Line] continued to use her."

There was
conclude that

ample evidence upon

Dolber frequently misstated the

appraised properties, making them

were.
that

Thus, in her
the

property

repair," the
cabinets
the third

appear more valuable than they

appraisal of 69 Turner Street, Dolber

was in

need

coul

conditions of the

of

"cosmetic

and minor

bathrooms were "fully functioning,"

wrote

roof

the "[k]itchen

are adequate," "two units are rented at this time," and

unit "will be occupied

property's functional
the final

which the jury

by the owner."

utility as "average."

purchaser and

was present during

She rated the

Strangis, who was

Dolber's appraisal,

testified that the property was "[b]asically a shell of a house,"

and it was not occupied at the time of her inspection or any time
since.
It had a lot of broken windows . .
. . The porch was broken off, a couple
of the gutters were gone.
The inside
had had no plumbing. Most of the wiring
was gone; whatever was still there was
hanging out of the ceiling. . . . [I]f
-1313

there were any tubs and toilets were

left in they were turned upside down.
There were no stoves, no cabinets. . . .
It was nowhere near liveable. . . .
A lot of the places didn't have doors.

In her appraisal
that

"[a]ll

three units

testified that
appraisal.

Dolber

described

average to

and electrical

at

this time."

was rented at the

the

property

as

good condition," with

wrot

Monteiro

time of the
having

"been

"all mechanical

services [] fully functioning."

Martin Pina, the

purchaser of this property, testified that it was "in very

bad condition.
in the
being

are rented

none of the units

maintained in

final

of 34 Harvard Street, Dolber

There was no plumbing, no pipes, no copper at all

building, it

had been

used by drug users.

the building. .
the inside."

. .

stripped out.

There

[T]here

The

building was

were syringes on the inside of

was a lot of

structural damage on

Although Dolber certified in her appraisal that she

"personally inspected the subject property, both inside and out,"

Monteiro

and DeNunzio

premises

during her

DeNunzio.

testified that
appraisal, and

Furthermore,

Dolber

Dolber never

entered the

Dolber admitted as

wrote that

the

much to

property

was

divided into three units, but Pires testified that there were six
units.
cosmetic

Dolber described 11 Lebanon Street as needing "only minor

repair"

and

that

it

"appear[e]d

to

be

in average

condition."
removed
exterior

Monteiro testified that all of the copper pipes were

from within

the house

of the house were

and that

both the

in poor condition.

interior and

Dolber reported

-1414

that

there were no units vacant, but Monteiro testified that the

property

was

Strangis

testified that there was "no

it

unoccupied

had been

at

all ripped out,"

heaters stood upright, and

were

the time

of

appraisal.

George

plumbing in the basement,

only one

of the

three hot water

it was not connected, "the

other two

laying on their side," "[t]he bathroom ceiling on the first

floor . . . had

been partially ripped down," and

"[t]he heating

systems weren't operational."

Dolber
condition

and

made

occupancy

of

Although she stated that

rented at

the time, Fred

that only

one

of

the

similar
other

misstatements
properties

she

three units at 18 Winthrop

Strangis and
four

units was

condition" with "all mechanical

[] fully functioning," and

then

th

appraised.

Street were

Frank Andrews

described 23 Temple Street as having "been

to good

regarding

rented.

testified

Dolber

maintained in average

and electrical services

reported that "[a]ll three

units are

rented
the

at this time."

time of

Martin Pina, however,

the appraisal the

electricity, the

plumbing had

Ethyl

antifreeze to

glycol or

testified that at

property was boarded

been

"filled with

stop the

some type

pipes from

there was no water, and nobody lived in the building.

also

repeatedly

purchaser, and

appraised
each time

multiple

properties

reported that the

of

bursting,"
Dolber

for

the

same

particular property

would be owner-occupied.

Thus, in her appraisals she

that Fred

occupy four properties,

Strangis would

up, had no

certified

Griffin would

-1515

occupy two, Andrews would occupy two, and Peter Pina would occupy
three.
The
the

subject

properties in
sales."

In

appraisal form required the appraiser to compar

property

with

recent

the neighborhood,
her

sale

prices

which are known

appraisals, Dolber

relied

of

similar

as "comparable

on data

from

the

publication County Comps, which listed the sale prices for closed
____________
sales,

as a source of information about comparable sales.

Thus,

for

example, in her appraisal of 79-81 Keith Street, Dolber used

three comparable sales

and identified County Comps as her

_____________

data

source.
The County Comps she relied on, however, showed
____________

tha

each of the properties she used as comparable sales had been sold
twice

within

short

period

Similarly, in her appraisal

County Comps for her
____________

for

vastly

different

of 85 Ford Street, Dolber

comparable sales.

County Comps
____________

of those properties as involving two sales on the

prices.

relied on

showed one

same day, with

the second price more than double the first price.

Dolber's actions

in

connection

with

her

propose

acquisition of 30-32 Water Street showed her awareness of how the

fraudulent

scheme

was

participate

in it.

She asked DeNunzio

on

operating

and

her

willingness

to

to handle a loan for her

the property and proposed that her nephew, Adam Belanger, and

his wife, Karen,

credit rating.
would not

serve as

straw buyers since

After DeNunzio

qualify for a

told Dolber

loan because they

-1616

Dolber had a
that the

bad

Belangers

did not earn

enough

money, Dolber told DeNunzio that she would give Karen a job,

and

asked how much

the

salary Karen

needed to earn

to qualify for

loan.
Dolber
form

for

Karen

Dolber's
numbers

sent DeNunzio

from

Whitinsville

father owned,
should have

which

verification
Water

was "blank

been filled in

of employmen

Company,

where the

on the form."

company

employment

Dolber told

DeNunzio to fill in the blanks, but when he told her he could not
do that, she undertook to do so.

Thereafter, DeNunzio received a

completed verification-of-employment form, a W-2 statement, and a

pay

stub

for

Karen

Belanger.

Both

Samuel

Carpinetti,

Whitinsville Water Company's general manager, and Karen

Belanger

testified that Karen never worked for the company.

Dolber
because

it

market value.

did not

argues

that

establish

She cites no

the
the

government's proof

faile

appraised properties'

fair

precedent, however, and we

know of

none, that requires the government to prove a precise fair market

value as an element of the crime of wire fraud.

To the contrary,

she notes that "market value was not in and of

itself an element

of the offenses with which Ms. Dolber was charged."

Furthermore,

the evidence justified a jury conclusion that Dolber's appraisals

falsely represented the

condition and thereby

the value of

the

properties.
Again, citing no case law to support her
Dolber

argues that "the

jury was left

to speculate

contention

as to what

conduct on the part of Ms. Dolber was inappropriate," because the

-1717

government
governed

did not point to any code of professional ethics that

her behavior.

Violation by the

defendant of a code of

ethics is not an element of the crime of wire fraud.

Dolber
portrayed her
defraud the

as

presented
an innocent

lenders.

we have not discussed,

base

for

rejecting

version

victim

of

the

facts

of DeNunzio's

whic

scheme

to

The foregoing evidence, and other evidence

however, provided the jury with
Dolber's

claim, and

concluding

an ample
that

she

committed wire fraud and aided and abetted its commission.

B.

The Conspiracy Convictions

__________________________
To

conspiracy, the

prove

that

defendant

government must demonstrate

is

member

of

beyond a reasonable

doubt that: 1) the defendant agreed to commit an unlawful act, 2)

the defendant voluntarily participated in the scheme,

and 3) one

of the conspirators took an affirmative step toward achieving the

conspiracy's purpose.

Braverman v. United States, 317

___________________________

U.S. 49,

53 (1942); United States v. Gomez-Pabon, 911 F.2d 847,

_____________________________

852 (1st

Cir.

1990), cert. denied sub nom. Guzman v. United States, 498

______________________ ________________________

U.S. 1074

(1991).

To

prove that

participated in the conspiracy,

he

intended

substantive

to

agree

offense."

and

a defendant "belonged

to and

the government [must] prove that

that

he

intended

to

commit

the

United States v. Nueva, 979 F.2d 880, 884

______________________

(1st Cir. 1992), cert. denied, 113 S. Ct. 1615 (1993).

____________
"[C]onspiratorial agreement
long

as

its

defendants'

existence
words

and

can

plausibly

actions

and

need not
be
the

be express

inferred

from

interdependence

the

of

-1818

activities and
F.2d
(1990)

persons involved."

230, 241-42

(1st Cir.

(citations omitted).

conspiracy
circumstances,
furthered the

may
such

include
as acts

United States v. Boylan, 898

________________________

1990), cert. denied, 498

_____________
Evidence

of participation

"inferences
committed

conspiracy's purposes."

U.S. 849

by

from

surrounding

the defendant

Gomez-Pabon,
___________

in the

that

911 F.2d at

853.
the

Furthermore, the government is under no duty to prove that

defendant knew each of

all the details.

conspiracy to commit wire

that one existed.

Dolber do

not deny

the substantive

They argue, however, that the

offenses discussed

verdict of

establishes the
suffice

to

conspiracy.

conspiracy.

existence of

show

that there

fraud, and the record leaves

prove that they joined the conspiracy.

the jury

the conspiracy or

Id.
___

Pezzullo and

not

the objectives of

no doubt

government did

Evidence relating to

in Part II.A,
Moreover,

also supports

once the

a conspiracy, lesser

defendant's

was

connection

with

evidence

evidence may
the

overall

United States v. Smith, 726 F.2d 852, 866 (1st Cir.

______________________

1984).
As shown
purchasers did

above, Pezzullo was

not themselves provide

market price, although required to so do

she

and Cassiere

individuals
certified

had them

repeatedly
would

be

sign.

attended

-1919

on the

by the HUD-1 forms that

closings

the prices

secon

the down payments

She also

owner-occupied.

significant differences in

aware that the

She

saw that
on

the same

properties

they

aware

of

the

sales in

the

was

of the two

land flips.

At

the first flip Cassiere discussed

prior sales of 59-61

work for

Howard Street.

that closing, and

with Pezzullo

Pezzullo had done the title

Cassiere was interested

what the earlier sale prices were to see if he

in learning

could justify the

higher price to be paid in the double closing.

An

inference

could

have

been

drawn

that

Dolbe

followed Monteiro's wishes that her appraisals support the higher

sales prices in the

second flips.

condition and occupancy of

increasing
the

misstated the

the properties she appraised, thereby

the amounts the lenders would loan on the security of

properties.

straws in an
further

She repeatedly

Dolber's

use of

her nephew

attempt to purchase 30-32 Water

and his

wife as

Street for her was

evidence that she was aware of how DeNunzio and Monteiro

conducted illegal property sales.

Don

Peters,

of First

Union

Mortgage

Corporation

became suspicious about an appraisal that Dolber had conducted on

a mortgage First Union purchased from Rate Line.
to explain the
within

apparent increase

one day

Tradesmen,

which he
listing

of

He asked Dolber

in the value

noted from

of the

his review

property values

and

property

of Banker
closing

and

dates.

Dolber called DeNunzio, told him of her conversation with Peters,

and asked, "what's that all about?"
In a
that he

subsequent conversation,

had checked

out the

prior foreclosure sale, but

DeNunzio told

situation, that

Dolbe

there had been

that she would not have

known about

it because

that sale had not

been recorded at the

time she did

-2020

the appraisal.
written

response, DeNunzio told her that he wanted to review the

letter

before she sent

provided an
her:

When Dolber told him that Peters had requested

it out.

explanation similar

the low

first sale

The

letter Dolber wrote Peters

to the

price was

one DeNunzio had

due to

given

the fact that

the

property was purchased from foreclosure, and thus did not reflect
the true

market value.

At the time she conducted her appraisal,

none of her data sources mentioned that sale.

On another occasion Dolber called DeNunzio and
him

to meet her outside

wanted

to

do

so.

He

a bar but
met

her

refused to tell
there

conversation inside her

car.

photographs of

the properties

Monteiro,

four of

and

Dolber told him

that she needed

the pictures

the pictures.

had

that she

their

needed

she had appraised

in her records,

States government had requested.

him why she

they

and not she, had taken the photographs.

aske

since

She explained

which the

He agreed to provide

United

her with

The evidence

supports the jury finding that Pezzull

and Dolber were knowing and willing participants in a

to

defraud the

required

lending

The

to prove that each co-conspirator

the scheme; "[a]ll

nature

institutions.

of

that is

the plan

States v. Rivera-Santiago,
___________________________

government is

show 'the

connections

872

F.2d

essential

with it.'"

1073,

(quoting Blumenthal v. United States, 332

___________________________

not

knew every detail of

required is to

and their

conspiracy

1079

United
______

(1st

Cir.)

U.S. 539, 557 (1947)),

-2121

cert. denied sub nom. Castro-Poupart v. United States, 492 U.S.

______________________ ________________________________
910 (1989).
III.
At
attorneys

the beginning

had made opening

that it could ask

that

Questions Asked By the Jurors

of the

trial, before

statements, the court

the witnesses questions.

The

any

of th

told the jury

court explained

the questions had to be written; that the written questions

would be submitted

to the

court, which would

review them;

and

that

the court

could not be

might not ask

the

question if

the question

put in a proper legal form or it "couldn't make any

legal difference at
asked

a jury

all."

witnesses

During the 24-day

eleven

questions

that

trial, the
the

jurors

court

had

submitted.
The defendants did not object to the court
the

practice thus to ask questions or, indeed, to any particular

question asked.
is

followin

"In the absence of a timely objection our review

limited to examining the record

correct only particularly

affect the

for plain error, and we will

egregious errors . .

fairness, integrity or public

proceedings."

. that seriously

reputation of judicial

United States v. Munson, 819 F.2d

________________________

337, 340 (1st

Cir. 1987) (internal quotations omitted).

In

United States v. Sutton, 970 F.2d

_______________________

1001 (1st Cir

1992), decided after the trial in the present case, we upheld the
actions

of the same district judge in employing this practice in

and wire

mail

fraud prosecution,

in

which the

witnesses seven questions submitted by the jurors.

-2222

court asked

We held that

"especially in complex cases," "allowing juror-inspired questions

in

a criminal case

committed
1005.

is not prejudicial

to the sound

We noted

per se, but

______

discretion of the trial

is a matter

court."

that other circuits similarly had

Id. at
__

so concluded.

Id.
__
We

explained

questions during a
perils.

that

"[a]llowing

criminal trial

In most cases, the

is a

should be

given wide

Although we stated

to

pos

procedure fraught

with

game will not be

Nevertheless, we are fully committed

judges

jurors

worth the candle.

to the principle that trial

latitude to

manage trials."

that "in most situations,

Id.
__

the risks inherent

in the practice will outweigh its utility," we held that we would

review

the propriety

of the

practice on

based on the totality of the circumstances.

In

Sutton,
______

court's asking of the

First,

Sutton

safeguards."

held

Id.
___

that

at 1006.
case in

confusion existed,

for

nor

four

reasons,

Second, "[b]ecause

any additional
[Sutton] was
______

which a greater-than-average
the positive

procedural safeguards,

th

reversible error.

requested

value of

inspired questioning was relatively high."

used appropriate

Id.
___

juror questions was not

"neither objected

factually complex
jury

we

case-by-case basis

Id.
___
such as

risk of

allowing juror-

Third, the court

requiring that

the questions be presented in writing to the court and explaining

to the jury
Id.
___

that the

Fourth,

court might not

"the questions

bland in character."

ask all juror

themselves were few

questions.

in number

and

Id. (footnote omitted).

___
-2323

The first
applicable

here:

questioning,
adopted

three reasons
the

the

case

procedural

unquestionably are

defendants

was

did

not

object

factually complex,

safeguards

nearly

equall

and

identical

to

the

to

the

court

those

in

Sutton.
______
Sutton involved seven jury
______
during

a 2

questions
whether

1/2 day
asked

this

during a

The

present case

24-day trial.

significantly

seriously undermined
plain error.

trial.

questions the court aske

larger

involves eleven

The issue,

number

of

the fairness of the trial

thus, is

questions

so

as to constitute

We answer that question negatively.

The juror questions

"bland in character,"

the court asked

id., and designed

were relativel

to clarify and

explain

__
testimony already
Pires

given.

For

juror wanted

Paul

to identify the word that followed his signature on one of

the exhibits.

The word was "Pres."

Rullo to explain

Another

juror wanted Nancy

what the "preliminary title" that

to in her testimony meant.

had

example, one

she referred

One juror sought clarification of who

done the appraisal the witness was discussing.

defendants have objected

number

asked in

to allowing juror questions

this case,

they have

F.2d

145

(8th

Cir.

1990),

court

court asked varying

of questions that the jurors proposed.

900

that any

Other

of appeals have upheld convictions where the

v. Lewin,
_________

and to the

not now argued

specific question was improper.

numbers

Although the

In United States
_____________
the

court,

over

objections made in the jury's presence, asked six questions.

The

-2424

Fourth Circuit upheld a conviction in which the trial court asked

ninety-five

juror

questions

during

three-week

trial.

DeBenedetto v. Goodyear Tire & Rubber Co., 754 F.2d 512 (4th Cir.
_________________________________________

1985).

The

question.

Fifth

Circuit approved

the

asking of

one

United States v. Callahan, 588 F.2d 1078

__________________________

juror

(5th Cir.),

cert. denied, 444 U.S. 826 (1979).

____________
In
effect

of

the

each

of these

questions

cases the

on

questions, in and of itself.

the

court

trial,

not

focused on
the

Thus, the Lewin court

_____

number

th

of

approved the

asking of juror questions because they were factual in nature and

merely "sought

clarification of

previous testimony and

introduce new or unrelated subject matter."

DeBenedetto,
___________
"examined

despite the

carefully

large number

each of

the

jurors and [] perceive[d] no bias

F.2d at 517.
questioning

In

Sutton,
______

we

900 F.2d at 148.

of questions,

questions

In

the court

propounded by

the

in any of the questions."

754

noted

that

becomes particularly troublesome

directed at the [criminal] defendant."

Sutton,
______

did not

"juror-inspire

when questions are

970 F.2d at 1006 n.6.

In

the court asked only one such question of the defendant.

Id.
___
In the

present case, the

Cassiere four juror questions

three days.
[the

the

defendan

during his testimony which spanned

Here, as in Sutton, the "appellant did not object to

______

questions]; and

questions

court asked the

he has

were] improper or

not argued
harmful."

on appeal
Id.
__

that th[ese

We cannot say that

district court committed plain error in asking the defendant

-2525

Cassiere four relatively benign juror questions during Cassiere's

three days of testifying.
The
jury

defendants

argue, however,

questions during the testimony

improperly interfered

with their

("we are

fully

the

direct and

The district court, however,

control trial proceedings.

committed to

asking th

of the witnesses, the court

ability to conduct

cross-examination of the witnesses.

has broad discretion to

that by

principle that

Id.
__

at 1005

trial

judges

should be given wide latitude to manage trials"); see also United

________ ______
States v. Slone, 833
________________

F.2d 595, 597

(6th Cir. 1987)

(The court

"must see that the issues are not obscured and that the testimony
is not misunderstood.").

While objections from opposing counsel

and

similarly

sidebars

may

be

disruptive

of

counsel's

examination, they are interruptions that are also critical to the

fair and rational progression
the court's asking
counsels'

of the trial.

of the jurors'

We

cannot say that

questions so interfered

with

questioning of the witnesses as to constitute a denial

of the defendants' right to a fair trial.

Although

we uphold

the district

court's asking th

juror questions in this case, we reiterate what we said in Sutton

______
regarding the use of this practice.
practice
should

should

be

not become

district court

reserved for
the

As we there indicated,
exceptional

routine, even

should inform

in

the

situations,

and

complex cases.

counsel at the

The

earliest possible

time of its intention to use this technique and allow counsel the
opportunity to object.

The court should instruct the jurors that

-2626

they should limit

their questions to

important points, that

at

times the rules of evidence will dictate that the court not ask a

question, and that the jurors should draw no implication from the
court's failure to

pose a juror-proposed

question to the

jury.

The jurors should reduce their questions to writing and pass them
to the court.
sidebar

Before asking a question, the court should offer a

conference to

Finally, in its

give counsel

the opportunity

charge, the court should include

instruction, along the lines suggested in Sutton.

to object.

a prophylactic

______
IV. Evidentiary Rulings
The

"trial

admissibility will not be

discretion."

court's

rulings

on

relevance

disturbed unless there is an

an

abuse of

United States v. Drougas, 748 F.2d 8, 24 (1st Cir.

_________________________

1984).
A.

Admission of the Publication County Comps

_________________________________________
Dolber challenges

the

court's

admission

of

seve

reports from the publication County Comps.

____________

exception

to

quotations,
compilations,

Federal

Rule

the

hearsay

of

Evidence

rule,

the

803(17)

allows,

admission

tabulations, lists, directories,

of

as

"[m]arket

or other published

generally used and relied upon by the public or by

persons in particular occupations."

County
Comps
______________
properties sold, the sales
closed.
buy

Real estate

County Comps.
_____________

publishes

monthly

prices, and the dates the

brokers, insurance agents,

The

listing

operating

-2727

manager

of

sales were

and appraisers

County Comps
_____________

testified

that

the reports

referred to County Comps as

_____________

admitted

were

authentic.

her source of

data for

Dolber

comparable

sales in her appraisals.

Dolber
listings at
relatively

first

argues

that

"although

blush appear

straightforward

to

deal with

facts,

this

subjective analysis of other facts."

the conclusions
that is

not the

evidence shows

they draw from

test

the

County

Comp

compilations

evidence

of

required

Individuals might differ in

the data

for admission

in County Comps.
____________

of the

that County Comps is

____________

publication.

But

The

a "published compilation[],

generally used and relied upon by" appraisers.

The court did not

abuse its discretion in admitting the evidence.

B.

Questions Asked of Cassiere Regarding Professiona

____________________________________________________

Standards
_________
Cassiere argues
higher

that the

standard of conduct because

government held

he is an

him to

attorney, based on

the following colloquy between the prosecutor and Cassiere:

Q.

And in addition to being aware of

the responsibilities as a closing
attorney, sir, you as an attorney
have certain responsibilities in
conjunction
with
representing
anybody, right?

A.

Yes.

Q.

And
those
responsibilities

duties
and
are set forth in

such things as
are they not?
Cassiere objected

a canon of
and, after

ethics,
a sidebar

the court overruled the objection and explained:

-2828

I'm going to be very express [in my

charge] that sloppy or careless work is
not criminal.
It may be malpractice,
but it's not criminal. But I've decided
. . . that the failure to make a
disclosure of material fact when under a
duty to make a disclosure which duty is
known to the individual with a specific
intent to defraud by failing to make the
disclosure constitutes a violation of
the statute.
The questioning continued:
Q.

You're aware of the

canons
ethics governing attorneys?

of

A.

I am.

Q.

And the disciplinary rules?

A.

I am.

Q.

And I gather you were also a former

prosecutor?

A.

I was.

Q.

You're aware of the criminal laws?

conference

MR. O'BRIEN: Objection, your honor.

THE COURT: No. overruled.
A.

I'm not aware of all

laws.
I'm aware of
laws that I enforced.

the criminal
the criminal

Q.

You're aware of, you were aware in

June of 1990 of these things as
well, I gather?

A.

I don't know what you mean by these

things.

Q.

The canons of ethics?

A.

Yes.

Q,

The disciplinary rules?

A.

Yes.
-2929

Q.

And you recognized that

attorney you were under
obligations?

as an
certain

A.

Under certain obligations, yes.

Q.

Those
obligations
included,
included a
responsibility to act truthfully?

A.

Uh-huh.

Q.

And honestly?

A.

Correct.

Q.

And disclose certain information?

A.

I don't know what you mean

disclose certain information.

The

court

then

sustained

an

by

objection

and

th

prosecutor moved on.

To comprehend Cassiere's role in this scheme, it
important for

the jury

viewed his duties as

to

understand how

a closing attorney and whether

he had violated those duties.

jury in determining
defraud his
and

knowing.

clients, the

others

he believed

These facts were important for the

whether his participation

in the scheme

lending institutions,

to

was intentional

The district court has discretion to determine the

scope of cross-examination,
433, 437

Cassiere and

wa

(1st Cir. 1982),

United States v. Tracey, 675

________________________
and did

not abuse its

F.2d

discretion in

allowing the preceding colloquy.

C.

Exclusion of Land Deeds

_______________________
Cassiere challenges

the court's

exclusion of

thre

land deeds "that the defendant said supported his view of why the
real

estate

values

in

question were
-3030

reasonable."

Cassiere

testified that he relied on the prior deeds for sales in 1986 and

1987 in making his title examination for properties that were the
subject
relied

of the
on

indictment.

those

deeds,

Cassiere

which

listed

testified
past

that he

sale

also

prices,

as

indications of the value of the property at the time he conducted

the title searches.
The
relevance

court excluded

[because] they're

these deeds

"on the

[sic] conveyance

is too

ground

remote in

time given, and I take judicial notice at the side bar of the . .
. marked decline
and material to
testify
the

in real estate values within the period of time

this lawsuit."

The court

allowed Cassiere

to

that these deeds formed the basis of his conclusion that

second sale prices in the land

flips were justified.

the deeds were for sales that occurred four

Since

to five years before

those at issue in the case, and since the evidence was cumulative
to Cassiere's testimony, the

court did not abuse

its discretion

in excluding the deeds.

D.

Admission of Evidence Under Rule 404(b)

_______________________________________
Pezzullo

Federal Rule

challenges

of Evidence

404(b) of

the

court's

evidence concerning

estate transaction not charged in the indictment.

that the

court

erred

in admitting

admission

under

that

unde

a real

Dolber argues
rule

evidence

concerning a similar transaction and a tape recorded conversation

between herself and DeNunzio.
1.

The Two Land Transactions Not Charged in Th

_______________________________________________

Indictment
__________
-3131

Cassiere

entered

into

negotiations

with

Hyberni

Savings bank to buy 23 Newark Street, which the bank recently had
foreclosed.

Pezzullo signed a purchase and sales

the bank for $65,000.

Cassiere offered to sell

Robert Felicio and Richard Rego.

Rego

agreement with

the property to

His plan was to pay Felicio and

to renovate the property and, thus, provide them with money

for their down payment.

Before work was begun on

the property,

Cassiere had Felicio and

Rego inquire of Rate Line

whether they

could qualify for a mortgage loan.

Cassiere

told DeNunzio

sale as a "no money down flip."

from Felicio and
that he

was upset

office along

with

Rego at

that he was

After receiving loan information

the law firm,

Monteiro told

that Felicio

and Rego

Joe Cassiere

[and] were

Glenn Monteiro looking the

structuring th

DeNunzio

"were sitting in
making jokes

other way in regards to

the

about

processing a

loan the way it should be."

Cassiere

and

Pezzullo decided

that they

would no

make enough
deal

profit on the resale

was off.

agreement with
appraise

Cassiere

later

so they told

Felicio that the

negotiated a

second

Hybernia for $35,000.

the property, which she

purchase

DeNunzio asked

Dolber to

valued at $157,000.

The same

month, Pezzullo purchased the property for $35,000.

Dolber also

sought to buy

property on Water

Stree

using her nephew and his wife as straw buyers due to her own poor
credit

rating.

See II.A above.

___

The loan fell through when the

lender refused to do any more business with DeNunzio.

-3232

2.

The Tape Recording

__________________

Following

inquiries

by

the

lending

institutions

DeNunzio tape-recorded several telephone conversations.

After an

evidentiary hearing, the court admitted a tape containing a phone

conversation between
short,

and

because the
while
Once

according

Dolber and DeNunzio.

to

DeNunzio was

The conversation was

recorded

by

accident,

call from Dolber came in on his call waiting service

he was conducting another conversation that he was taping.

DeNunzio

finished with

each

conversation

he turned

the

recorder off
when

and

recording

and back

with whom

on again to

record his own

the conversation

this information,

had

he clicked

statement of

taken place.

Dolber back

After

in through

call waiting and recorded his conversation with her.

In
although

Karen

Company,

they

verification
necessary.

that

Belanger
could

fill

not work
in

at

the

told

DeNunzio

Whitinsville

appropriate

tha

Water

employment

The recording was cut off abruptly at the end.

Admissibility of the Evidence
_____________________________
(a)

Prior to

foregoing evidence under

whether the making

whether

did

Dolber

forms as though she did, and at whatever salary was

3.

of the

conversation,

the

reviewing the
Rule 404(b), we

of the tape recording

government

adequately

court's admissio

must determine

was legal, and if

demonstrated

the

so,

tape's

authenticity.
Title

18

of

the

United

States

Code,

2511(2)(d) provides:
-3333

It shall not be unlawful under this

sectio

chapter for a person not acting under

color of law to intercept a wire, oral,
or electronic communication where such
person is a party to the communications
or where one of the parties to the
communication has given prior consent to
such
interception
unless
such
communication is intercepted for the
purpose of committing any criminal or
tortious
act
in violation
of the
Constitution or laws of
the United
States or of any State.
18 U.S.C.

2511(2)(d) (1988).
A

defendant seeking

to

suppress a

tape

recordin

"bears the burden of proving by a preponderance of the evidence,"

United States v. Vest, 639 F.
______________________

Supp. 899,

907 (D. Mass.

1986),

aff'd, 813 F.2d 477 (1st Cir. 1987), either "(1) that the primary
_____
motivation, or
motivation

(2) that

a determinative

for intercepting

the

factor in the

conversation was

criminal, tortious, or other injurious act."

After an
ruled

evidentiary

that it was "not persuaded

actor's

to commit

Id. at 904.
___

hearing,

the

district

cour

by a fair preponderance of the

evidence that Mr. DeNunzio made the recording of Ms. Dolber for a

criminal, tortious or injurious purpose; at most, the Court finds

that

if anything

conversation
participant."

in

blackmail

factual

finding
and

order

to

made the

prevent

tape recording

future

of the

distortions

by

The court concluded that DeNunzio did not make the

tape to

evidence

Mr. DeNunzio

its

clearly erroneous.

Dolber or
reflecting
evaluation

as
the

part of

conspiracy.

court's familiarity

of witness

credibility,

This

with

the

is

not

-3434

After the evidentiary

hearing, the court found

tha

the government had established a proper foundation for the tape's

authenticity.
views

Dolber challenges

DeNunzio's

suspect.

testimony

as

that

conclusion

inconsistent,

Credibility determinations

because she

incredible,

and

are for the district court,

and Dolber does not show that the finding was clearly erroneous.
(b)

Rule 404(b) provides:

Evidence of other crimes, wrongs, or

acts is not admissible to prove the
character of a person in order to show
action in conformity therewith. It may,
however,
be
admissible
for
other
purposes, such as proof
of motive,
opportunity, intent, preparation, plan,
knowledge,
identity, or
absence of
mistake or accident . . . .
Fed.R.Evid. 404(b).
Rule 404(b)
introduction of

"is one

of inclusion

which allows

th

evidence of other crimes, wrongs, or acts unless

the evidence tends to

only prove criminal disposition."

United
______

States v. Fields, 871 F.2d 188, 196 (1st Cir.), cert. denied, 493
________________
____________
U.S. 955 (1989).

Determining the admissibility of

404(b) requires
determines
value

whether

showing

mistake."
1993).
evidence

a two-pronged inquiry.
the

intent,

"The trial

evidence has
preparation,

evidence under Rul

some

judge first

'special' probative

knowledge

or

absence

of

United States v. Garcia, 983 F.2d 1160, 1172 (1st Cir.

_______________________
"Next,

the judge

against the

balances the

danger

of unfair

probative value

of the

prejudice, pursuant

to

-3535

Fed.R.Evid.

403."

Id. (footnote omitted).

___

Rule

403 provides

that:
Although
relevant, evidence
may be
excluded if its probative
value is
substantially outweighed by the danger
of unfair prejudice, confusion of the
issues, or misleading the jury, or by
considerations of undue delay, waste of
time,
or
needless presentation
of
cumulative evidence.
Fed.R.Evid. 403.
On

appeal, we

for abuse of discretion.

review the

Rule 404(b) determinatio

Garcia, 983 F.2d at 1172.

______
Knowledge
case.

The

and intent

Water Street

knowledge and intent in

land flips,

mortgage

transaction was

loan.

served only

involved in
The

issues

probative of

two significant ways.

in which she

instance Dolber was

were critical

Dolber's

Unlike

the other

as an appraiser,

an actual attempt

evidence

in thi

showed

in this

to obtain

Dolber's

submitting

fraudulent documents concerning Karen Belanger's employment.

The
functioning
flips.

Newark

Street transaction

in

a different

Here,

Cassiere

masterminded
themselves.

the

flip

role from
and

and

This evidence

that

Pezzullo,
intended

reflected Pezzullo'

and
to

not

buy

other land
Rate

the

Line,

property

was probative of Pezzullo's knowledge

of how a flip was arranged.

recording was

in the

The

probative of Dolber's knowledge

tap

concerning how to

go about defrauding a lender.

-3636

All of this

evidence thus satisfied the first

pron

of the rule 404(b)

test, since it had "some

'special' probative

value showingintent, preparation,knowledge or absenceof mistake."

Garcia, 983 F.2d at 1172.
______
On the
afford

second prong

test, "[w]

'considerable leeway' to a district court in its Rule 403

balancing, and we will reverse a

in

of the rule 404(b)

'exceptional

quotations
Zeuli,
_____

circumstances.'"

and citations

725

district court's balancing only

F.2d

Id.
__

omitted);

813,

816

admissibility is committed

(1st

at

see also
________
Cir.

1173

(internal

United States v.
_________________

1984)

("the

primarily to the trial

test

court").

of

The

evidence of the two land transactions and the tape recording were
probative as to
crimes

intent and knowledge,

charged, and

indicating an

there were

abuse of the

no

critical elements of

the

"exceptional circumstances"

court's discretion in

admitting the

evidence.
V. The Jury Instructions
A.

Challenged Jury Instructions

____________________________
The

jury

defendants challenge

instructions.

We review

States v. Picciandra, 788

____________________
479
of

U.S. 847 (1986).

the

evidence

and

two

of the

for abuse of

discretion.

F.2d 39, 46 (1st Cir.),

We must

United
______

cert. denied,
____________

look at the instructions in light

determine

adequately submit[] the issues

trial court'

whether

in the case to

they

"'fairly

the jury.'"

and

Id.
___

(quoting
1195

United States v. Fishbach & Moore, Inc., 750 F.2d 1183,

_______________________________________

(3d Cir. 1984), cert. denied, 470 U.S.

_____________

1029 (1985)).

The

-3737

trial

court has

"considerable latitude"

in charging

the jury.

Id.
___
1.

Failure-to-Disclose Instruction
_______________________________

Cassiere

and

Pezzullo

argue

failure-to-disclose instruction "impermissibly

that

the

allowed the

court'

jury

to predicate a finding of guilt on a failure to disclose that was

rooted in

the defendant's contractual or

professional status or

relationship with other parties."

The court told the jury:
A

failure to disclose a material

fact may also constitute a false or
fraudulent misrepresentation if, one,
the
person
was
under
a
general
professional or a specific contractual
duty to make such a disclosure; and,
two, the person actually
knew such
disclosure ought to be made; and three,
the
person
failed
to
make
such
disclosure with the specific intent to
defraud.

The court continued:

The government has to prove as to each
count considered separately, that the
alleged misrepresentation as charged in
the indictment was made with the intent
to defraud, that is, to advance the
scheme or artifice to defraud.
Such a
scheme in each case has to be reasonably
calculated to deceive
a lender
of
ordinary prudence, ordinary care and
comprehension.
The court also instructed:
[I]t
is not a crime simply to be
careless or sloppy in discharging your
duties
as an attorney
or a[s] an
appraiser. That may be malpractice, but
it's not a crime.

-3838

"It is well settled

standing alone, does

not constitute mail fraud."

v. Greenleaf, 692 F.2d 182,

_____________
460

U.S.

1069

transform[s] a
there

is a

that breach of a fiduciary duty

(1983).

188 (1st Cir.

However,

one

of

United States
_____________

1982), cert. denied,

____________
the "elements

that

fiduciary breach into mail fraud . . . . is where

recognizable scheme

formed with specific

intent to

defraud."
admits

Id.
___

as much

circumstances
such

This is
when

equally true for wire

he

in which

writes in

his

a violation

as the canons of

fraud.

brief:

of a

Cassiere

"There may

be

non-criminal standard

ethics could conceivably

be probative on

the issue of whether or not there was fraud."

Cassiere states
to who his

client was, and

ostensible client
piece

of property."

assisted by his
and

was

both that the

record is unclear

somewhat inconsistently that

the bank

writing the

law partner Pezzullo,

"[h]is

mortgage for

The latter statement is correct.

was the closing

fiduciary

duty

the lenders, Cassiere and

toward them,

which

Cassiere

attorney

also admitted

In United States v. Silvano, 812 F.2d 754, 759

_________________________

Cir. 1987),

we

material
fiduciary

information

that
arises

relationship

"Concealment of

to

"the affirmative
out
his

of
or

duty

government
her

As

Pezzullo had a

trial.

held

each

Cassiere,

represented the lenders, which he acknowledged at trial.

attorneys representing

to

at

(1s

disclose

official's

employer."

Id.
___

material information by an employee under a duty

to disclose to his or her employer 'under circumstances where the

non-disclosure

could or does result in harm to [the employer] is

-3939

a violation of the

[mail fraud] statute.'"

States v. Bronston, 658

____________________

F.2d 920,

926

Id.
___

(quoting United
______

(2d Cir.

1981), cert.
_____

denied, 456 U.S. 915 (1982)).

______
That reasoning
lenders,
closing

is equally applicable here, where th

the clients of the Cassiere & Pezzullo firm, viewed the

attorney

as

their

"eyes and

fundamental honesty" from them.

ears,"

and

In its written

"expect[ed]

instructions to

the closing attorneys, one lender stated: "While we have tried to

cover

our

procedures

relying on your

in

these closing

judgment and

transactions,

experience as a

we

closing agent

are

to

properly handle and complete our loan closing.

However, when you

are

with us

in doubt

of a

situation,

please confer

prior to

closing."
The

court's

correctly stated the law

failure-to-disclose

as it applied to Cassiere

instructio

and Pezzullo

in view of their fiduciary duty to the lenders.

2.
The

Willful Blindness Instruction

_____________________________
defendants

challenge

the

court's

blindness instruction:
Now, the element of knowledge that
I just mentioned for Counts 1 through
15,
that may
be satisfied
by an
inference, drawn from proof, that the
particular person accused deliberately
closed his or her eyes to what would

willfu

otherwise have been obvious to that

person.
You may infer knowledge if you
find beyond a reasonable doubt that the
particular person accused refused to be
enlightened, refused to take notice, but
only where you find the individual is
aware of a high probability that the
fact exists and where the individual in
-4040

his or her own mind does not believe -strike that, does not disbelieve the
fact where there's a high probability
that
the
fact
that's
being
misrepresented actually exists and where
the person in his or her own mind
doesn't disbelieve that fact.
Stated another
way, a person's
knowledge may be inferred from a willful
blindness to the existence of the fact.
It's entirely up to you whether you find
any deliberate closing of the eyes, any
inference
to
be
drawn from
such
evidence.
Remember, though, evidence
showing negligence or mistake is not
enough to support a finding of willful
blindness.
The ultimate
fact of
criminal intent may be established by
circumstantial
evidence if
you are
satisfied that it is proven beyond a
reasonable doubt.
Caution

is

necessary

blindness instruction "'because of

will

be

led

to employ

in

giving

willfu

the possibility that the jury

negligence

standard

and convict

defendant on the
[an

illegal

impermissible ground that he

act]

Littlefield, 840
___________

taking

F.2d 143,

States v. White,
________________
denied,
______

was

794

488 U.S. 860

instruction when "a

place.'"

148 n.3

F.2d 367,
(1988).

should have known

United States v.
__________________

(1st Cir.) (quoting

371

(8th Cir.

A court

defendant claims

1986)),

properly gives

a lack

United
______

cert.
_____

such an

of knowledge,

the

facts suggest a conscious course of deliberate ignorance, and the

instruction,

taken

as

whole,

cannot

mandating an inference of knowledge."

The

defendants did

scheme to defraud, but

it.

Furthermore,

be

misunderstood

Id. at 147.
___

not deny

the existence

contended only that they were

the instruction

as

made it clear

of

th

unaware of

to the

jurors

-4141

that

it was

for them

to determine

whether the

defendants had

closed their eyes to what should have been apparent to them.

court

The

three times used the word "may" and explained that "[i]t's

entirely up to you whether you find any deliberate closing of the

eyes."

See Picciandra, 788 F.2d at 46 (approving an instruction

___ __________
that permitted but did not require the jury to

draw an inference

of willful blindness).
Although the
was that
scheme,

government's main

all three defendants

the government

contention at

were knowing participants

presented evidence

from which

tria

in the

the jury

could have concluded that if they did not know what was going on,
it was

only because

they chose

to turn a

blind eye.

"Guilty

knowledge may be inferred where instances of fraud are repeatedly

brought to a defendant's
of

attention without prompting

his facilitative conduct."

1110, 1114 (1st Cir.

United States v. Nivica, 887 F.2d

_______________________

1989), cert. denied, 494 U.S.

____________
Cassiere

finding

"negligence or
of

willful

mistake

have

explained

mistake

is not

consider

"any

not

enough to

[anything]

of canons of

"more than negligence,"

instruction

suggests to the jury that

support
more

Thus, the argument goes, the

concluded that the breach

constitute

is

blindness,

negligence is enough."

1005 (1990).

argues that, like the failure-to

disclose instruction, this instruction

although

alteration

that

enough."

It

showing

also told

the jury

-4242

jury could

and lead to conviction.

of the

than

ethics alone could

"evidence

deliberate closing

eyes."

negligence

The

or

that it could
As

with the

failure-to-disclose
alone,

would not

infer

knowledge

instruction, breach
prove willful
if

it

of

fiduciary

duty,

the jury

could

blindness, but

concluded

"deliberately" closed their

that

eyes to facts

the

defendants

that they were

duty-

bound to report to the lending institutions.

Cassiere further

argues that

instruction was "logically inconsistent

on

failure

government
instruction,
what

to

disclose

material

cannot have

it both

however,

related to

occurred.

hand, instructed

The

the willful

blindnes

with the Court's

fact,"

ways."

and

that

The willful

the defendant's

failure-to-disclose charge,

the jury on determining

charge

"[t]he

blindness

knowledge of
on the

other

whether the defendants

were involved in the scheme to defraud.

Finally,
rule 404(b) evidence
inconsistent with

Dolber

argues that

to prove

prohibits

admission

her knowledge of

the

government

of th

the scheme

the government's contention that

willfully blind to the scheme.

that

the

was

she remained

We know of no authority, however,

from

proceeding

on

alternate

theories in a criminal case.

B.

Refusal to Define Reasonable Doubt

__________________________________
Cassiere, Pezzullo, and Dolber challenge the

court'

denial of Dolber's request for an instruction defining reasonable

doubt.

In United States v. Olmstead, 832 F.2d 642 (1st Cir

__________________________

1987),

cert. denied, 486 U.S. 1009 (1988), we analyzed in detail

____________

the

need for instructing the

doubt.

jury on the

meaning of reasonable

We explained that "[m]ost efforts at clarification result

-4343

in further obfuscation of the concept," id. at 645, and held that

___
"an

instruction which

further

uses the

definition adequately

burden of proof.
can be buried

reasonable

to

apprises the

doubt without

jury of

This does not mean, of course,

the proper

that the phrase

as an aside in the [jury charge]." Id. at 646.

___

essence, we concluded
position

words reasonable

that the

determine
doubt.

whether,

district court was

and

if

so

in the

how,

to

In

best

define

See also Littlefield, 840 F.2d at 146; United

________ ___________
______

States v. Rodriguez-Cardona, 924 F.2d

___________________________

1148, 1160 (1st Cir.) ("We

have

do

emphasized

reasonable

in

the

doubt does not

past,

and

so

again

require definition."),

here,

that

cert. denied,
____________

112 S. Ct. 54 (1991).

There

is

no

suggestion

reasonable doubt was "buried

to the jury.
"should

reference

court's charge

To the contrary, the court instructed the jury that

there be any

reasonable doubt of

then the

person or

benefit of that reasonable

charge or

the

as an aside" in the

which the government has to prove

charges,

that

charges."

In

any essential element

as to any of these specific 16

persons so

charged must

have the

doubt and cannot be convicted

its instructions,

the court

on the

mentioned

"reasonable doubt" twenty-four more times.

The court

did not abuse

its discretion in

refusin

to define reasonable doubt.

Relying upon Judge Torruella's

concurring opinion i

Littlefield in which he stated that "I am of the opinion that the

___________
-4444

failure to grant an instruction explaining the term 'proof beyond

a

reasonable doubt'

striking

is

an error

of constitutional

dimension,

at the very heart of the presumption of innocence," 840

F.2d at 151,
issue

the defendants

en banc.
_______

however,

this

In view
panel

urge this court

of

to reconsider

this court's

sees

no

settled

occasion

to

the

precedent,

suggest

such

reconsideration by the full court.

C.

Failure to Give a Maniego Instruction

_____________________________________
In

Cir. 1983), the

United States v. Maniego,

_________________________
Second Circuit approved

710 F.2d

24, 28

the trial court's

(2

jury

instruction "that an attorney is not held to a higher standard of

conduct, or
of

legal obligation, to verify

the information

Piccianana,
__________
district

788

given by

F.2d

a client."

39 (1st

court properly

independently the truth

Cir.

refused the

In

United States v.
_________________

1986),

we

held that

defendant's request

the

for a

Maniego instruction because "the government does not try to raise

_______
an inference that Lucid should be held to a
normal, nor

higher standard than

did its questions have the effect of raising such an

inference."

Id. at 46.
__

aiding

and abetting

argued

that

government had

Lucid,

Picciandra

Maniego
_______

an attorney, was
in evading

instruction was

suggested that

Lucid was

convicted of

income

required

taxes.

He

because

the

culpable in not

going

beyond what his client had told him.

Cassiere

and

Pezzullo

did not

request

Manieg
______

instruction at trial and claim on appeal that the court committed

plain error in not

giving such an instruction.

They apparently

-4545

interpret

the

Maniego
_______

instruction

as

required

whenever

the

government seeks to "raise an inference that the defendant should

be held to a standard higher than normal because of his status as

a lawyer and his

position as a former prosecutor."

The Maniego
_______

instruction, however, is more limited; it deals with the question

whether a
"to

lawyer is to be

Maniego, 710 F.2d at 28.

_______
In

the present

Pezzullo were

not

case, the

that they

defrauded their

clients

charges against

failed

information their clients (the lenders)

they

standard of conduct

verify independently the truth of the information given by a

client."

and

held to a higher

to check

Cassier

further

on

had given them, but that

by failing

to disclose

the land

flips that inflated the sales prices of the mortgaged properties.

The district

court

commit plain

error, because, in a case involving a significantly

different

issue

cannot be

from

Maniego,
_______

faulted,

it

and certainly

failed to

give

did

not

Maniego
_______

instruction that the defendants had not requested.

In
government
standards
government
services as

any event,

sought

to

because of
introduced

hold

the record
Cassiere

their status
evidence

does
or

not show
Pezzullo

as attorneys.

of

Cassiere's

attorneys representing the lending

that
to

higher

Rather,
and

th

the

Pezzullo's

institutions and

the fiduciary duty they owed to those lenders because those facts
were central to

understanding their

United States v. Kaplan,

_________________________
(Maniego instruction
_______

832 F.2d

roles in the
676,

not required where the

scheme.

683 (1st

Cir.

See
___

1987)

"prosecutor did not

-4646

attempt to create
held

to a

the impression that

higher standard

of care"

[the attorney] should

and where

trial about the defendant's status as an attorney

be

comments during

"were directed

towards [defendant's] role (as a lawyer) which was central to the

scheme"), cert. denied, 485 U.S. 907 (1988); Picciandra, 788 F.2d
____________
__________
at 46.
As

noted, the court

instructed the jury that "it i

not a crime

simply to be careless or sloppy

duties as an attorney or an appraiser.

but it's not

a crime."

in discharging your

That may

be malpractice,

There was no plain error in the district

court's failure to give a Maniego instruction.

_______
VI. The district court's refusal to give Dolber
a downward adjustment under the Sentencing Guidelines
United States Sentencing Guideline Section 3B1.2(b)
provides

that if the defendant

"was a minor

participant in any

criminal activity," the offense level

should be decreased by two

levels.

district court

Dolber contends

that

the

improperly

refused to give her such a downward adjustment.

"We review
in

the offense only

the trial court's

for clear error."

determination of

rol

United States v. Panet_______________________

Collazo, 960 F.2d 256, 261 (1st Cir.), cert. denied sub nom. Diaz
_______
_____________________ ____
v. United States,
________________
downward
deference

113 S. Ct.

adjustment

is

220 (1992).

highly

Since a ruling

fact specific,

to the trial court's action.

we

give

on a

great

United States v. Ocasio,

_______________________

914 F.2d 330, 333 (1st Cir. 1990).

At

the

sentencing

hearing,

the

district

cour

explained: "How do I justify calling her a minor participant when

-4747

the evidence seems fairly clear that she knew what she was

doing

and she knew she was

acting inappropriately here repetitively? .

key to

She

seems

the

successful

fraudulent scheme, just like an attorney is."

on

her inflated appraisals

in making their

operation of

this

The lenders relied

mortgage loans, and

without those appraisals the scheme might not have succeeded.

Although DeNunzio, Monteiro, and Cassiere were more culpable than

Dolber,

the straw

relatively
Thus,

buyers who

minor cogs

Dolber

participants."

was

in
not

U.S.S.G.

were Dolber's

the scheme
"less

to

culpable

3B1.2, comment.

co-defendants were

defraud the
than
(n.3).

denial of a downward adjustment was not clear error.

Affirmed.
________

most

lenders.

other

The court's

-4848