THOMPSON, Circuit Judge.
Todd Denson spent about a year in federal prison for mail and wire fraud after he got caught up in one of those notorious "Nigerian" money "scams," as law enforcement calls them. See 18 U.S.C. §§ 1341 (mail fraud) & 1343 (wire fraud). The short version of what happened is this.
Apparently persons in Africa emailed Denson saying that he (Denson) had inherited the rights to an overseas company worth $9-plus million. They also said that there was a pile of cash in a Barclays Bank account in London just waiting there for him. All he had to do was send over a few thousand dollars to take care of taxes, wire-transfer fees, and the like, and he would be a very rich man.
Deals that look too good to be true often are, and this one certainly was. Calling a local Secret Service office (in addition to protecting some elected leaders, the Secret Service also investigates certain financial crimes, see 18 U.S.C. § 3056), Denson had an agent tell him point blank that this was a scam and that he should not send a dime overseas because, if he did, he would "never see that money again." Importantly, the agent also added that, "now that I've told you that this is a scam," if you "solicit[] money from others" to send abroad,
Pouncing on the fact that the agent had said "could" rather than "would," Denson went ahead and did what he was told not to do, taking tens of thousands of dollars from persons who had trusted him. Convinced (probably rightly) that no one would hand him money if he mentioned the email, Denson had said things like he needed their cash to help with some "window-washing invention" he had "a patent for." Naturally, he dangled the prospect of a big payback to hook the unsuspecting.
At some point Denson called up the agent again and freely admitted that he had "deceived" others into giving him money. Meeting with some agents two days later, Denson copped to a lot more. To deflect suspicion away from what he was doing, he and his foreign-based attorney, Paul Jones, had created a fictitious company to make it look like he had really earned the $9-plus million, Denson said. A Barclays Bank official, he added, had told him that Jones was "a Nigerian scammer," that there was no money waiting there for him, and that the email thing "was a scam." At a follow-up meeting, agents again stressed that all of this "was a scam." Denson replied that he was done with the scheme because he too had "realized" that "it was a scam." He said the same thing a week later, but this time agents confronted him with proof that he had tried to get an undercover agent to "invest" $30,000 in an overseas-construction venture. As part of his pitch, Denson had handed the undercover agent false documents showing that he (Denson) had sold over $4 million in construction equipment. Essentially caught red handed, Denson fessed up to what he had done, saying it "was wrong."
We could go on and on, but this is enough for now to show why Denson ended up doing a year (give or take) behind bars. Incredibly, once out on supervised release, he returned to his old ways, hustling a bunch of people out of thousands of dollars by saying (among other lies) that he had made a killing in the overseas stock markets or had millions sitting in a Scottish bank but that he needed their money — which he would pay back, and then some — to get what he said was rightfully his.
Which brings us to Denson's appeal. His arguments for reversal fall into two general categories — protests about the jury instructions and criticisms about the sentencing. We explain below why all of his arguments fail, adding more information as we move along.
The parties — who agree on little else — agree that the elements of wire fraud are a "scheme to defraud," the accused's "knowing and willful participation in the scheme with the intent to defraud," and the use of interstate or foreign "wire communications" to further that scheme. See United States v. Cassiere, 4 F.3d 1006, 1011 (1st Cir.1993). The judge instructed the jury to that effect. Critically for our purposes, the judge gave a willful-blindness instruction too — i.e., an instruction that (broadly speaking) allowed the jury to infer that Denson had acted knowingly if he had deliberately closed his eyes to obvious facts. See, e.g., United States v. De Jesús-Viera, 655 F.3d 52, 59 (1st Cir. 2011), cert. denied, ___ U.S. ___, 132 S.Ct. 1045, 181 L.Ed.2d 768 (2012). Then the judge also told the jury that Denson's "good faith" was a complete defense to the charges against him.
Denson complains that the willful-blindness instruction likely confused the jury into thinking that it could convict based on what a reasonable person in his shoes should have known rather than on what he actually believed or intended. He is right about one thing: "[t]he focus of [a] willful blindness instruction must be on the particular defendant and not on the hypothetical reasonable person." United States v. Griffin, 524 F.3d 71, 80 (1st Cir.
What the judge said (emphasis ours) is that the jury could find that "the defendant acted knowingly ... if he deliberately" turned a blind eye "to a fact that otherwise would have been obvious to him." "[T]o infer knowledge," the judge added, the jury had to conclude "that the defendant was aware of a high probability of the fact in question" and "that the defendant consciously and deliberately avoided" confirming that fact — in other words, "the defendant willfully made himself blind to that fact." And it was up to the jury "to decide whether he deliberately closed his eyes to the fact and, if so, what inference, if any," to draw. Obviously, fairly read, the charge's references to "the defendant," "he," "his," "him," and "himself" all refer to Denson, and not to some generic reasonable person, as Denson would have us believe. The long and the short of it is that this instruction squares with our cases
Targeting the good-faith instruction, Denson tells us next that that charge was less than what he deserved because (despite his request) it did not "clarify" that good faith turned on what he subjectively believed instead of what some reasonable person would have believed. We will reverse a decision like this one only if the rejected charge was (a) substantively correct, (b) not substantially covered by other instructions, and (c) so essential to an important point in the trial that failure to give it seriously impaired the defendant's ability to defend himself. See, e.g., United States v. Dunbar, 553 F.3d 48, 62
To speed things up, we focus in on (b) — whether Denson's rejected instruction was covered by the given charge — and remind the reader that the judge told the jury (again, emphasis ours) that "if the defendant" — meaning Denson — "acted in good faith" then "he" could hardly be guilty of wire fraud. The judge had the jury concentrate on Denson's actual, subjective beliefs after all, which means that his charge basically did what Denson wanted it to do. Conscious that judges generally need not mimic the precise wording of a party's preferred instruction, see, e.g., United States v. Barnes, 251 F.3d 251, 260 (1st Cir.2001), we easily reject Denson's whole line of attack on the good-faith charge.
In a parting shot, Denson blasts the judge for giving the willful-blindness and good-faith charges back-to-back. He did not make this claim below, though, so we review only for plain error, which means he "must show (1) error, (2) plainness, (3) prejudice, and (4) an outcome that is a miscarriage of justice or akin to it." United States v. Edelkind, 467 F.3d 791, 797 (1st Cir.2006). Denson's big problem is that his criticism is a throwaway, made in a single sentence with no citations or argument to show how the judge's ordering of the instructions was error, let alone plain error. That does not suffice, obviously. See, e.g., United States v. Tan, 674 F.3d 103, 111 n. 7 (1st Cir.2012). And, if more were needed, having rejected challenges first to the willful-blindness charge and then to the good-faith charge, we believe that complaints about the instructions' sequencing cannot succeed in any event. See, e.g., Prigmore, 243 F.3d at 17 (explaining that judges have "considerable" leeway in how they "formulate[], structure[], and word[]" their jury charges); see generally Texas & Pac. R.R. v. Jones, 298 F.2d 188, 191 (5th Cir.1962) (noting that because "neither judge nor jury can contrive, communicate or assimilate complex knowledge with the superhuman speed of a data computer, ... the law as it is laid down must perforce come word by word, sentence by sentence" — with "[s]omething ... com[ing] first, something last," naturally — which means that the "burden ... is a heavy one in demonstrating that an error has come about from sequential arrangement of sentences"). Again, there is no error, say nothing of plain error.
Moving past the jury instructions, we turn to Denson's sentencing arguments. Each has to do with the judge's handling of 18 U.S.C. § 3553(a) — a statute that sets out factors designed to help judges exercise their sentencing discretion. A partial list of those factors includes "the nature and circumstances of the offense and the history and characteristics of the defendant," plus the need to deter criminal conduct, protect the public, and provide the defendant with necessary medical care. 18 U.S.C. § 3553(a)(1), (a)(2)(B)-(D). And at the end of the day, the sentences imposed must be sufficient but not greater than necessary to serve these factors. Id. § 3553(a).
We typically examine sentencing decisions for abuse of discretion, which is really a review for reasonableness. See, e.g., United States v. Gallardo-Ortiz, 666 F.3d 808, 811 (1st Cir.2012). Reasonableness has two aspects — procedural and substantive. See id. Denson accuses the judge of overlooking his terminal illness, infracting, he says, both § 3553(a)(1) (directing
Denson is not entirely clear about which sentence he has a problem with — the within-guidelines sentence of 30 months for the wire-fraud convictions or the above-guidelines sentence of 15 months for the supervised-release violations. Some parts of his brief suggest that he is only concerned with the "within-the-range sentence," but others sort of target both groups of sentences. We will give him the benefit of the doubt on this, which segues neatly into another issue. The government tells us that Denson has either waived or forfeited any challenge to the within-guidelines sentence because he basically got the sentence that he asked for. Denson's reply brief goes on explaining why the government is wrong about that. Again, we will give him the benefit of the doubt and assume for argument's sake that no waiver or forfeiture happened. See United States v. Mateo-Espejo, 426 F.3d 508, 512 (1st Cir.2005) (taking that tack in a similar situation). Now, on to the merits of Denson's sentencing claims, which are easily resolved.
Denson's health was very much front and center for sentencing purposes. The probation office's presentence report on the wire-fraud convictions noted that Denson has a condition called "pure autonomic failure" (an incurable degenerative neurological disorder), which, the report added, might justify a downward departure under the sentencing guidelines. And the probation office's report on the revocation violations also pointed out Denson's disorder and listed some of the symptoms.
Denson drove these points home in his sentencing memo, stressing that his illness causes (among other things) periodic drops in blood pressure, which reduces oxygen flow to the brain. His counsel stayed with that theme at the two sentencing hearings, telling the judge that Denson's "physical problem is going to cut his life short" and that "he's already ... on borrowed time."
Having read probation's presentence report, reviewed the parties' memos, considered counsel's arguments, and listened to Denson's statements (all of which, again, spotlighted Denson's disorder), the judge
The same is true about the above-guidelines sentence of 15 months for the supervised-release violations. Explaining his sentencing decision, the judge labeled "egregious" Denson's blowing his supervised release by doing the exact same things that had landed him on supervised release to begin with. And then the judge ruled that a guidelines sentence would not do — though he did not specifically mention Denson's disorder, as he had at the just-concluded wire-fraud-sentencing hearing. But at the risk of becoming tedious, we repeat that Denson's malady had a starring role in both hearings — again, thanks to probation's presentence and revocation reports, the combatants' memos, the lawyers' oral presentations, and Denson's allocutions — so we can and do infer from this that the judge thought about the health issue before selecting a sentence. See, e.g., United States v. Vargas-Dávila, 649 F.3d 129, 130 (1st Cir.2011); Dávila-González, 595 F.3d at 48-49; United States v. Turbides-Leonardo, 468 F.3d 34, 40-41 (1st Cir.2006).
Denson's claim that the judge fixated obsessively on public protection fares no better. To back up his charge, Denson points us to the judge's comment that the "real issue" in trying to come up with the right sentence for the wire-fraud crimes was how to protect the public. Denson neglects to mention that his counsel agreed with the judge — "[c]orrect, your Honor," she said. Once again, we put aside any concerns about waiver or forfeiture, because Denson's obsession argument does not work even if properly preserved.
Hot on the heels of this exchange, the judge called public protection "[o]ne of the issues" that he had to deal with. What was troubling to the judge was defense counsel's saying that Denson really believes in his heart of hearts that the millions overseas were still his for the taking, which, the judge added, raised the real possibility that "as soon as he [got] out" of prison he would backslide like he had before. In almost the same breath, the judge mentioned the need to deter Denson from committing future crimes, given his serial history of wire fraud, and, moments later, the judge also took account of the other § 3553(a) factors, including Denson's history and characteristics, the seriousness of the offense, and the need to promote respect for the law. The judge again touched on many of these same concerns at the revocation hearing by calling what Denson had done "egregious."
We see nothing reversible here. A judge need not mention every § 3553(a) factor nor intone any particular magic words. See, e.g., United States v. Dixon, 449 F.3d 194, 205 (1st Cir.2006). And certainly a judge need not give each factor equal billing. See id. The reason for this is simple: because sentencing decisions turn mostly on "case-specific and defendant-specific" concerns, "[t]he relative weight of each factor will vary with the idiosyncratic circumstances of each case," so the judge "is free to adapt the calculus
The upshot is that the challenged sentences are procedurally sound and substantively reasonable. And that is that.
Our work over, we
United States v. Dávila-González, 595 F.3d 42, 46 (1st Cir.2010) (quoting United States v. Pelletier, 469 F.3d 194, 203 (1st Cir.2006)). We need not get into the nitty-gritty of what the judge did here. Denson only complains about certain aspects of the judge's § 3553(a) analysis, and we can and will save the details of that for later.
