USCA1 Opinion

[NOT FOR PUBLICATION]

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

_________________________

No. 96-1391

UNITED STATES OF AMERICA,

Appellee,

v.

GREGORY W. FONTAINE, JR.,

Defendant, Appellant.

_________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Frank H. Freedman, Senior U.S. District Judge]

__________________________

_________________________

Before

Selya, Circuit Judge,

_____________

Coffin, Senior Circuit Judge,

____________________

and Lynch, Circuit Judge.

_____________

_________________________

Robert J. Danie, with whom

_______________

Bonavita, Gordon, Danie & Walsh,

________________________________

P.C. was on brief, for appellant.

____
Steven M. Goldsobel, Attorney, Tax Division,
____________________

U.S. Dept. of

Justice,

with

General,

Robert E. Lindsay and

__________________

Division, and

whom

Loretta C. Argrett,
____________________

Donald K. Stern,
_______________

Assistant

Alan Hechtkopf,
______________

Attorneys, Tax

United States Attorney,

brief, for the United States.

_________________________

January 31, 1997

_________________________

Attorney

were on

SELYA,
SELYA,

Circuit Judge.
Circuit Judge.
______________

In

this

defendant-appellant Gregory W. Fontaine,

manner

in which

the

hearing in his case

district court

sentencing

appeal,

Jr. challenges both the

conducted the

and the computations that the

disposition

court essayed

in establishing the applicable guideline sentencing range

(GSR).

Discerning no error, we affirm.

I.
I.
__

Background
Background
__________

Because

guilty

plea, we

the

draw

appellant's

the facts

conviction resulted

from

the plea

from

colloquy,

the

Presentence Investigation Report (PSI Report), and the transcript

of the sentencing hearing.

See United States v. Garcia, 954 F.2d

___ _____________
______

12,

14 (1st Cir. 1992); United States

_____________

v. Dietz, 950 F.2d 50, 51

_____

(1st Cir. 1991).

While

incarcerated

Northampton, Massachusetts,

submitting

false

at

the

Hampshire

Fontaine led

income tax

returns

to

County

a group of

Jail,

inmates in

the Internal

Service (IRS) in order to secure refunds not actually due.

Revenue

After

the authorities uncovered the scheme, Fontaine pled guilty to one

count of aiding

being held

in the filing of a

at the

false refund claim.

North Central Correctional

Gardner, Massachusetts,

awaiting the

He was

Institute (NCCI),

imposition of

sentence on

this charge, when a further epidemic of false claims erupted.

According to the

new ring at

government, Fontaine

NCCI and assisted

in the filing

put together

of at least

eight

fraudulent refund claims from October 12, 1993 to April 15, 1994.

The government charged that Fontaine recruited fellow inmates and

helped them complete apocryphal IRS-1040s, using bogus W-2 forms.

When

the government became cognizant of

lodged an

Court

what had transpired, it

eight-count information in the

United States District

for the District of Massachusetts.

Each count charged the

appellant with aiding and abetting the making of a separate false

claim

to

against the Treasury.

a non-binding

count

of the

See 18
___

plea agreement,

information.

The

U.S.C.

Fontaine

other

2, 287.

Pursuant

pled guilty

to one

counts eventually

were

dismissed.

When the probation officer distributed the

PSI Report,

Fontaine objected to two of its conclusions (involving the degree

of planning that the enterprise required and his role in it).

also requested

an evidentiary

would be "compelled to

for their

an

hearing at which

the prosecutors

produce witnesses to establish the

allegation[s]".

The district

evidentiary hearing on March 18,

He

basis

court afforded Fontaine

1996, but the court did not

force the government to proffer any particular witnesses.

At the

hearing, Fontaine asked

that the court

summon the eight other inmates

scheme so that he

agent who

to

who allegedly participated in the

could cross-examine them.

refused to issue such

the

order the government

an order.

investigated the

The

district court

However, the

government called

matter, and

Fontaine's counsel

vigorously cross-examined him.

Following the

forty-one

hearing

the district

month incarcerative sentence.

court

imposed

This appeal ensued.

In

it, Fontaine

(1)

the

challenges his

district

court's

sentence on three

handling

of

his

grounds, namely,

request

for

an

evidentiary hearing, (2) the court's enlargement of the GSR based

on a determination

minimal planning,

predicated on

criminal

that his criminal activity involved more than

and

(3) the

court's enlargement

his supposed role

enterprise.

We

as an organizer or

treat the

of the

GSR

leader of a

first assignment

of error

separately and then group the latter two.

II.
II.
___

The Evidentiary Hearing

The Evidentiary Hearing
_______________________

Fontaine berates what he characterizes as

the district

court's "refusal to allow the defendant to confront the witnesses

against him,

through

to

test the

cross-examination."

district

eight

and

court should

persons

scheme

accuracy

have

alleged

allegations

the government to

participated in

(all of whom were state

explore

their

This boils down to a claim that the

have ordered

alleged to

of

the

call the

tax fraud

prison inmates) so that he could

inconsistencies

in

their

statements

through

cross-examination.

Neither the

evidence

apply

proceeding, see
___

during

Confrontation

the

sentencing

United States
_____________

v. Tardiff,
_______

(1st Cir. 1992), and evidentiary

exception

rather than

the

Clause

rule.

nor

phase

the

of

rules

criminal

969 F.2d 1283,

hearings at sentencing are

The

decision

to

of

hold

1287

the

an

evidentiary hearing at the

to

eschew

such a

time of sentencing or, alternatively,

hearing, lies

within

the discretion

of the

sentencing court.

11

See United States v. Lilly, 983 F.2d 300, 310___ _____________

_____

(1st Cir. 1992); Tardiff, 969 F.2d

_______

at 19.

hearing,

By

the

same token,

the shape

and form

at 1286; Garcia, 954 F.2d

______

if the

court

deigns to

of the

proceeding lie

grant

within the

encincture

of this

(finding no

hearing,

discretion.

See
___

abuse of discretion

albeit

not

Lilly,
_____

983 F.2d

when the defendant

precisely

the

kind of

at

311

"received a

hearing

that

he

abuse

of

preferred").

We

discretion

question

see

in

effort

the

resembling

one

the

an

thing, the

state, not

inmates in

the

federal

and there is no evidence that the appellant made any

tendered

meaningful

hearing,

in

an effort

procedural

For

custody of

to subpoena them.

testimony

remotely

this instance.

were in

government,

nothing

of

the

For another thing, the appellant never

offer

of

proof,

to demonstrate

eight

infirmities, it

prior to

why

he needed

prospective witnesses.

is difficult

the

to fault

actual

the live

Given

these

the district

court for not being more receptive to Fontaine's entreaty.

Leaving

procedural

weaknesses

assignment of error lacks substance.

aside,

Fontaine's

At the disposition hearing,

the government called Anthony Sibilia, an IRS agent who had taken

statements

from

the eight

inmates

allegedly

involved in

the

scheme.

Agent Sibilia testified in excruciating detail as to the

results

of his

investigation.

examined him

at

between

statements

the

length, pointing

of

The appellant's

counsel cross-

out possible

inconsistencies

various

witnesses

and

variations

between the proof

case.

presented and the

government's theory of

the

While Fontaine calumnizes Sibilia's testimony as "unsworn,

untested hearsay," it is settled beyond peradventure that hearsay

evidence is admissible at

1287.

sentencing.

See Tardiff, 969

___ _______

The baseline criterion is trustworthiness:

F.2d at

at sentencing,

the trial court "may consider relevant information without regard

to its admissibility

trial, provided

reliability

U.S.S.G.

under the rules

that the

to support

6A1.3(a)).

of evidence applicable

information has sufficient

its

probable accuracy."

Id.
___

at

indicia of

(quoting

Here, the

baseline.

Sibilia's

investigation,

witness

sentencing court

testimony

supported by

did not deviate

was

reports

premised

that he

statements that he had obtained.

appellant

access

opportunity

to

the

underlying

inconsistencies

between

on

his

own

had compiled

and

The court afforded the

documents

to cross-examine the witness.

cross-examination, the appellant's

from this

and

In the course of this

counsel pointed out not

witnesses'

full

statements

but

only

also

inconsistencies between the modus operandi attributed to Fontaine

and

the returns

addition,

interest

the

the

actually

filed

court permitted

inmates

may

have

by

the

had

the

eight

appellant

either

prosecution or in falsely implicating Fontaine.

inmates.

In

to explore

what

in

pleasing

the

To this extent,

then,

Sibilia's

testimony,

though

based

on

hearsay,

was

thoroughly tested.

Moreover,

the

testimony

had

sufficient

indicia

of

reliability

to

statements used

reference

to

pass

muster.

at sentencing

other evidence

The

reliability

sometimes can be

in the

case.

of

hearsay

demonstrated by

See,
___

e.g., United
____ ______

States v. Phaneuf, 91 F.3d 255, 261-62 (1st Cir. 1996).

______
_______

here.

that

For instance,

the

fraud

suggesting that

in the plea

loss

exceeded

agreement Fontaine stipulated

$10,000,

figure

he considered himself responsible

of the false claims described in the information.

court

heard evidence

filings

of

striking similarities

similarities that would

but the most fervent

So it is

strongly

for all eight

Then, too, the

in the

suggest a common

worshipper of coincidence.

various

plan to all

The

court also

had at hand evidence of incriminating statements made by Fontaine

in letters to a

bolstered

friend, Christine Pond.

Sibilia's

reliability.

testimony

and

Against this backdrop,

discretion in the sentencing

These, and other, items

tended

to

we can detect

confirm

its

no abuse of

court's denial of Fontaine's demand

that the government be

ordered to produce the eight

inmates for

cross-questioning.

III.
III.
____

Calculating the GSR

Calculating the GSR
___________________

The district court found

that the appellant's

offense

involved more than minimal planning and therefore raised the base

offense level (BOL) by two

levels.

See U.S.S.G.
___

2F1.1(b)(2).1

____________________

1All

references to

the

sentencing guidelines

are to

November 1995 edition, in effect on the date of sentencing.

the

See
___

United States v. Harotunian, 920 F.2d 1040, 1042 & n.2 (1st Cir.
______________
__________
1990).

The district court further found that the appellant had organized

an

extensive criminal activity and enhanced the BOL by four more

levels on that account.

challenges both findings.

States v.
______

F.2d

3B1.1(a).

The appellant

We review for clear error.

See United
___ ______

St. Cyr, 977 F.2d 698, 701 (1st Cir. 1992); Dietz, 950
_______
_____

at 52.

plausible

See U.S.S.G.
___

Under

view of

that test,

the

"where there

circumstances,

the

is more

than one

sentencing

court's

choice

among

erroneous."

supportable

alternatives

United States v. Ruiz, 905

_____________
____

cannot

be

clearly

F.2d 499, 508 (1st Cir.

1990).

A.
A.
__

More than Minimal Planning

More than Minimal Planning
__________________________

At

appellant

returns

extended

sentencing,

aided

in

and that

the

these

period of

time

appreciable planning and

the

reliability of

further

asserts

the

district

preparation of

all

"repeated acts,"

(approximately

forethought.

the evidence

that,

court

even

if

found

eight

carried

out over

The appellant

evidence

can

the

ersatz tax

six months),

underpinning this

the

that

an

involved

questions

finding and

be

deemed

reliable, it does not prove more than minimal planning.

Under

more

the sentencing

than minimal

planning

course of relevant criminal

period of

purely

time, unless

opportune."

government

has

the

guidelines,

is appropriate

when a

for

defendant's

conduct includes "repeated acts over

it is

U.S.S.G.

burden

an enhancement

clear that

each

1B1.1, comment.

of

proving

the

instance was

(n.1(f)).

The

applicability

of

U.S.S.G.

Sklar,
_____

2F1.1(b)(2) in any given

920 F.2d 107, 112

government must

case.

See
___

(1st Cir. 1990)

prove facts central to

United States v.
_____________

(explaining that "the

increasing a defendant's

offense level").

We

will not

tarry.

As the

foregoing review

of the

record indicates, the lower court had before it ample evidence of

adequate

trustworthiness,

Sibilia's testimony,

false

claims, and

including

the striking

the

details of

the

PSI

Report,

similarities among

the

earlier scheme

Agent

the eight

at

the

Hampshire County Jail, to justify a finding that Fontaine engaged

in

than

a studied course of conduct that required (and received) more

minimal planning.

Given this evidence and given the serial

preparation and filing of multiple tax returns and refund claims,

there

was no error in

See Tardiff,
___ _______

969 F.2d

"carefully orchestrated

false

impression"

the imposition of

at 1288-89

the upward adjustment.

that a

defendant's

series of mailings designed

to create a

satisfied

the

(finding

criteria

for

the

planning

adjustment); United States v. Gregorio, 956 F.2d 341, 343-44 (1st

_____________
________

Cir. 1992) (holding "repeated preparation and submission of false

statements" sufficient to warrant the enhancement); see generally

___ _________

United States v.
______________

cannot

Fox, 889
___

F.2d 357,

conceive of how obtaining

361 (1st Cir.

even one fraudulent loan would

not require more than minimal planning.").

B.
B.
__

1989) ("We

Role in the Offense

Role in the Offense
___________________

At sentencing,

the district court

found that Fontaine

"organized the

[criminal] scheme," that he

authority over

his accomplices,"

five

or

more participants."

imbricated findings

and

"had decision making

and that the

The

scheme "involved

appellant challenges

the four-level

upward adjustment

these

that

they produced.

enhancement

Under the sentencing guidelines, a four-level

for a defendant's role in the offense obtains if the

government shows that the

defendant "was an organizer

or leader

of a criminal activity that involved five or more participants or

was otherwise

States
______

950 F.2d

v. Rostoff, 53 F.3d
_______

at 52-54.

the government

U.S.S.G.

extensive."

U.S.S.G.

3B1.1(a); see
___

398, 412-14 (1st

also United
____ ______

Cir. 1995); Dietz,

_____

As with other upward adjustments to the GSR,

has the burden

of proving

3B1.1(a) in a particular

case.

the applicability

See
___

of

United States v.
_____________

Morillo, 8 F.3d 864, 872 (1st Cir. 1993).

_______

The government carried its

factfinder, drawing

burden here.

A fair-minded

reasonable inferences, could conclude

as,

indeed, Judge Freedman

part of an integrated

had

orchestrated

mastermind of it.

did

that the eight

false claims

course of conduct, and that

a similar

We have

plot at

an

Fontaine (who

earlier time)

was the

observed before that battles

defendant's

role in the offense

lost in the

district court,

will most frequently

F.3d 70, 75

(1st Cir. 1995), and that

see United States

___ _____________

were

over a

be won or

v. Graciani,
________

61

observation holds true in

this case.

We need go no further.

Since the court's determination

that Fontaine organized and led a tax fraud scheme involving five

10

or more participants is

the appellant's claim

solidly rooted in the record,

of error.

See United States v.

___ ______________

Beltran, 50 F.3d 105, 110-13 (1st Cir. 1995);

_______

52-54.

Affirmed.
Affirmed.
________

we reject

Tejada_______

Dietz, 950 F.2d at

_____

11