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                      [NOT FOR PUBLICATION]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    allowed the money to be withdrawn before the validity of the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.
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