January 12, 1993

                   [NOT FOR PUBLICATION]

               UNITED STATES COURT OF APPEALS
                   FOR THE FIRST CIRCUIT
                                        

No. 92-1038

                       UNITED STATES,

                         Appellee,

                             v.

                 ELLERTON P. WHITNEY, III,

                   Defendant, Appellant.

                                        

        APPEAL FROM THE UNITED STATES DISTRICT COURT

             FOR THE DISTRICT OF NEW HAMPSHIRE

          [Hon. Shane Devine, U.S. District Judge]
                                                 

                                        

                           Before

                    Breyer, Chief Judge,
                                       
               Aldrich, Senior Circuit Judge,
                                            
                 and Selya, Circuit Judge.
                                         

                                        

William A.  Hahn, by Appointment  of the Court,  with whom Hahn  &amp;
                                                                 
Matkov was on brief for appellant.
 
Jeffrey S. Cahill, Special Assistant United States Attorney,  with
                
whom  Jeffrey  R. Howard,  United States  Attorney,  was on  brief for
                   
appellee. 

                                        

                                        

          Per Curiam.    A  jury  convicted  the  appellant,
                    

Ellerton Whitney,  of four  separate counts of  defrauding a

bank, 18 U.S.C.   1344, and eight further separate counts of

making false statements on bank loan applications, 18 U.S.C.

   1014.  The court  sentenced Whitney to  serve three years

imprisonment.   Whitney appeals both his  conviction and his

sentence.

          Whitney's  basic   claim,   in  respect   to   his

conviction, is  that the government should  not have charged

him with so many different counts, arising out of what were,

in  essence,  no  more   than  three  instances  of  related

activities -- activities consisting of (1) a series of false

statements that  he made on applications  for three separate

bank loans from different  banks, and (2) the misuse  of the

proceeds  of  one  of  these  loans  in  violation   of  the

applicable  loan  agreement.    See  Blockburger  v.  United
                                                            

States, 284 U.S. 299,  304 (1932) (double jeopardy violation
      

unless each offense charged requires proof of fact the other

does not require).

          We cannot consider Whitney's  multiplicity claims,

however,  for he did not raise  them before trial.  Unless a

defendant raises these kinds  of objection to the indictment

prior to  trial (while  time remains  for the  government to

rewrite the indictment  to cure any  such error), he  waives

the  objection.  United States v. Faulhaber, 929 F.2d 16, 19
                                           

(1st Cir. 1991), citing United States v. Rodriguez, 858 F.2d
                                                  

809, 816-17 (1st Cir. 1988).

          There are no special circumstances here that would

warrant departing from this "waiver" rule.  To the contrary,

holding  Whitney  to  his  waiver  does  not  prejudice  him

significantly.  Whitney says that, in respect to each of his

three efforts  to obtain money  from a bank,  the indictment

should  have  charged him,  at  most, with  either  a single

  1014 count or a single    1344 count.  Had  the indictment

done  so,  however, his  eventual  sentence  would not  have

changed.    The  Sentencing  Guidelines,  in essence,  treat

counts  that cover closely related conduct as if they were a

single count.  See U.S.S.G.   3D1.2 (closely  related counts
                  

grouped  together if part of  single transaction).  And, the

maximum terms contained in the statutes here  at issue would

have permitted a three-year sentence were Whitney correct in

his  claims of  count multiplicity.   See  18 U.S.C.    1344
                                         

(thirty-year maximum); 18 U.S.C.   1014 (same).

          Whitney  also  claims  that  the  court  committed

several errors at  trial.  He  believes that the  prosecutor

made   improper  comments   in  his   opening   and  closing

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statements;  that a  prosecution witness improperly  gave an

opinion  about a  legal conclusion  (about  what constitutes

"fraud");  that  the  court  improperly failed  to  give  an

instruction about "specific intent" on the "false statement"

counts; that  the court, not  the jury, should  have decided

whether the  false statements were "material;"  and that the

evidence   showed  different  fraudulent  loans  than  those

charged  in the indictment.  We cannot consider any of these

claims, however, for Whitney did not raise proper objections

at  the time.  He concedes  that we can review these claimed

"errors"  only to  see if  they are  "plain" enough  to have

required  the judge  to take  corrective action  despite the

failure of any party to call the problem to his attention at

the time.  That  is to say, we must ask  whether or not they

amount to  errors which  constitute  "manifest injustice."  

See United States  v. Santiago,  729 F.2d 38,  39 (1st  Cir.
                              

1984); United  States  v. Griffin,  818  F.2d 97,  100  (1st
                                 

Cir.), cert. denied, 484  U.S. 844 (1987) (plain errors  are
                   

"so  shocking  that they  seriously  affect  the fundamental

fairness and basic integrity of the proceedings conducted").

After reviewing  the record with  this standard in  mind, we

can find no such injustice.

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          Finally,  Whitney  argues  that  his  sentence  is

unlawful.   He  makes  several  claims,  one  of  which  the

Government concedes.  The  district court applied the "fraud

loss"  guideline  in  effect  in  1991,  the  time  of   the

sentencing hearing.   Because  of an amendment  which became

effective  November  1,  1989,  the  1991  version  of  this

Guideline, U.S.S.G.   2F1.1(b), is more severe than the same

Guideline  as  it  existed   in  March  1989,  when  Whitney

committed the crime.   Hence, the court should have  applied

the earlier, more lenient, Guideline.   See United States v.
                                                         

Harotunian,  920 F.2d 1040, 1041  (1st Cir. 1990).   We must
          

therefore  vacate  Whitney's  sentence  and remand  for  re-

sentencing.  Given the need for the new sentencing  hearing,

we  shall  not  consider  Whitney's  other  sentence-related

claims.   Rather, the district court  shall sentence Whitney

afresh,  permitting both him and  the Government to make all

sentence-related claims and arguments de novo.

          The judgment of conviction is

          Affirmed.
                   

          The sentence is vacated  and the case remanded for
                                                            

a new sentencing proceeding.
                            

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