USCA1 Opinion

                      [NOT FOR PUBLICATION]



                  UNITED STATES COURT OF APPEALS

                      FOR THE FIRST CIRCUIT

                         ____________________

No. 97-1580

                       UNITED STATES OF AMERICA,

                               Appellee,

                                  v.

                            WALLY BAMDELE,

                         Defendant, Appellant.

                         ____________________

No. 97-1581

                       UNITED STATES OF AMERICA,

                               Appellee,

                                  v.

                           EGHOSA OGBEMUDIA,

                         Defendant, Appellant.

                         ____________________

             APPEALS FROM THE UNITED STATES DISTRICT COURT

                   FOR THE DISTRICT OF RHODE ISLAND

               [Hon. Mary M. Lisi, U.S. District Judge]

                         ____________________

                                Before

                         Boudin, Circuit Judge,

              Campbell and Bownes, Senior Circuit Judges.

                         ____________________



    Louis F. Robbio with whom Robbio & Nottie Ltd. was on brief for

appellant Wally Bamdele.

    James M. Fox, by appointment of the court, for appellant Eghosa

Ogbemudia.

    Edwin J. Gale, Assistant United States Attorney, with whom Sheldon

Whitehouse, United States Attorney, was on consolidated brief for the

United States.





                         ____________________



                            March 9, 1998

                         ____________________      Per Curiam.  Eghosa Ogbemudia and Wally Bamdele were

    convicted on June 20, 1996, of six counts of bank fraud, 18

    U.S.C.  2, 1344, and one count of conspiracy to commit bank

    fraud, 18 U.S.C.  371.  The evidence showed that Ogbemudia,

    with the assistance of Bamdele, gave fraudulent checks to

    others, instructing the recruits to deposit the checks into

    their own bank accounts and then to withdraw the money in

    cash a few days later and give most of the money to the

    appellants.  The scheme was made possible because the banks

    allowed the money to be withdrawn before the validity of the

    checks could be determined.

        Ogbemudia was sentenced to 51 months in prison, and Bamdele

    to 46 months.  Both were also sentenced to five years of

    supervised release (or, if deported after completing their

    terms, five years of exile from the United States). 

    Appellants were also ordered to make restitution of

    $55,650.00 to the defrauded bank.

        On appeal, two points are worthy of brief discussion.

        1.   Bamdele argues that his sentence was wrongly increased for

    obstruction of justice  .  In part due to information from a

    recruit who agreed to cooperate with the Secret Service,

    Bamdele was arrested in November 1995.  In December 1995,

    Bamdele, who had been released from jail, came to the

    witness's home while she was at work.  That evening, he came

    to her home again, pounded on her door and yelled for her to

    come downstairs.  The witness, fearing retribution for her

    cooperation, called the police.

        When the police arrived, the witness went outside to tell the

    story of the check scheme to the police in order to explain

    to them why Bamdele was at her home.  Bamdele said that she

    was lying.  As Bamdele was being arrested, his companion, who

    had been waiting in the car, told Bamdele--"within earshot of

    [the witness]"--that he would tell Bamdele's "people" about

    the witness.  Bamdele said nothing in response.

        Based on this episode, the district court imposed on Bamdele

    a two-level increase for obstruction of justice, U.S.S.G. 

    3C1.1, raising the maximum sentence from 37 months to 46

    months.  In explaining this enhancement, the district judge

    referred to the companion's statement as "an additional

    threat, which is tacitly accepted by this defendant . . . ." 

    Bamdele argues that he cannot be held responsible for a

    threat uttered by his companion, and that his own silence did

    not constitute an adoptive admission of the threat.  

        We agree that Bamdele would not have been responsible for

    silence alone, but do not think that this is a fair reading

    of the evidence, which virtually compelled the enhancement. 

    Bamdele twice visited the home of a cooperating witness,

    pounded on her door, screamed at her, and accused her of

    lying; this is ample to sustain the district court's finding,

    on a preponderance standard, that Bamdele was trying to

    intimidate the witness.  The companion's remark simply

    confirmed what was implicit in these events.

        We also reject Bamdele's argument that the obstruction did

    not occur "during the investigation . . . of the instant

    offense," which is a requirement of U.S.S.G.  3C1.1.  The

    witness that Bamdele tried to intimidate had provided an

    early lead in the investigation of the scheme for which

    Bamdele was ultimately convicted in the district court.  It

    is irrelevant whether the particular check or checks

    connected to the witness happened to be the focus of the

    prosecution.

        2.   The more interesting issue in the case, which we need not

    decide on the merits, is appellants' claim that a downward

    departure was appropriate because of their status as aliens. 

    18 U.S.C.  3624(c) instructs the Bureau of Prisons, "to the

    extent practicable," to move prisoners from prisons into

    transitional detention, like halfway houses, during the last

    tenth of their sentences.  Under Bureau of Prisons policy,

    this arrangement (we are told) is not available to convicted

    aliens.  Therefore, the appellants reason, district courts

    should be allowed to reduce by ten percent the length of

    aliens' sentences.

        When the argument was made to the district court, it

    summarily denied the requested departure.  At least two

    circuits have indicated that such a departure is permitted. 

    See United States v. Smith, 27 F.3d 649, 655 (D.C. Cir.

    1994); United States v. Farouil, 124 F.3d 838, 847 (7th Cir.

    1997).  Another district judge in this circuit has recently

    departed on the same basis.  See United States v. Bakeas, ___

    F. Supp. ___, 1997 WL 757860, *8 (D. Mass. Nov. 14, 1997). 

    Bamdele cited Smith to the district court in his sentencing

    brief; nothing to the contrary was cited by the government.

        It is common practice that when a district court wants to

    depart but thinks that the law bars such a departure, the

    district court makes this clear at sentencing.  Here, the

    only authority cited to the judge was Smith, affirming a

    similar departure.  We are satisfied that the district court

    refused to exercise its discretion to depart, see, e.g.,

    United States v. Rizzo, 121 F.3d 794, 799-800 (1st Cir.

    1997); United States v. Morrison, 46 F.3d 127, 130-33 (1st

    Cir. 1995), and we reserve for another time the question

    whether such a departure would ever be permitted.

        Ogbemudia and Bamdele raise a number of other claims that are

    adequately answered in the government's brief.  These include

    jury venire composition arguments and a number of sentencing

    arguments that, while legitimately raised, do not come close

    to showing an abuse of the district court's discretion or

    clear error.  Bamdele also says that the evidence was

    insufficient to convict him on certain counts, but we hold

    that it was sufficient.  Ogbemudia challenges the restitution

    order, which we also hold to have been proper.

        Affirmed.