United States v. Scott
877 F.3d 30
| 1st Cir. | 2017Background
- Scott ran a mortgage-fraud scheme in Boston: purchased multi‑family properties, converted to condos, recruited straw buyers, submitted false loan paperwork, and pocketed proceeds.
- In Feb–June 2009 Scott signed a proffer agreement and gave the government detailed information in multiple proffer sessions; the agreement barred direct use of his statements but allowed derivative use and investigative leads (citing Kastigar concerns).
- In May 2009 Scott consented in writing to forensic imaging of his computer/server; those images were taken by the FBI. Scott later provided copies of server images and paper files to the bankruptcy trustee’s accountants (V&L).
- The government used information from the proffers to obtain a search of co‑conspirator Driscoll’s home and later, after the trustee dismissed Scott’s bankruptcy, obtained a warrant in March 2012 to seize materials from V&L that duplicated Scott’s earlier images; the district court suppressed the V&L/duplicative files as tainted.
- Scott was indicted, ultimately pled unconditional guilty in May 2015, and was sentenced to 135 months (bottom of Guidelines range) plus restitution of over $11M; he appealed arguing proffer misuse and sentencing error.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Scott) | Held |
|---|---|---|---|
| Did the government breach the proffer agreement or otherwise mislead Scott into pleading guilty such that the plea was involuntary? | Government: proffer permitted derivative use; it did not commit egregious misconduct and disclosed its position and grand jury materials; plea stands. | Scott: gov’t used proffered information (directly or via derivative evidence) and misrepresented the evidence to the grand jury/status conference, inducing an involuntary plea; requests Kastigar hearing. | Court: Scott’s claim was unpreserved; reviewed for plain error and found no clear, egregious government misconduct under Ferrara; plea voluntary; conviction affirmed. |
| Was the district court’s Guidelines loss calculation procedurally erroneous by relying on proffer-derived information? | Government: independent sources supported inclusion of contested properties; even if error, any effect was harmless because total loss still within same Guidelines bracket. | Scott: five properties included only via proffer-derived information and thus should not have been counted under U.S.S.G. §1B1.8. | Court: any error was harmless — disputed properties added ~$1.1M to an $11.3M loss; loss range and offense level unaffected; no resentencing required. |
| Is Scott’s within-Guidelines 135‑month sentence substantively or procedurally unreasonable? | Government: court properly calculated Guidelines, considered §3553(a) factors, adopted government’s sentencing reasons; bottom‑of‑range sentence justified given scheme scope and role. | Scott: sentence excessive, disproportionate to co‑defendants, and court failed adequately to explain consideration of §3553(a) factors. | Court: procedural explanation sufficient for a within-range term; substantive challenge fails — heavy burden unmet, no comparable co‑defendants shown; sentence affirmed. |
Key Cases Cited
- Kastigar v. United States, 406 U.S. 441 (1972) (limits on use of compelled testimony and derivative-use concerns)
- Tollett v. Henderson, 411 U.S. 258 (1973) (unconditional guilty plea forecloses independent antecedent non-jurisdictional claims)
- Ferrara v. United States, 456 F.3d 278 (1st Cir. 2006) (defendant must show egregious government conduct and materiality to set aside plea as involuntary)
- Gall v. United States, 552 U.S. 38 (2007) (standard for review of sentencing reasonableness)