THOMPSON, Circuit Judge.
Years back, Michael McLaughlin, James Fitzpatrick, and Bernard Morosco worked for the Chelsea Housing Authority ("CHA"), a public agency principally responsible for providing low-income housing in Chelsea, Massachusetts. McLaughlin served as CHA's executive director, Fitzpatrick as CHA's director of modernization, and Morosco as CHA's paid consultant.
The federal Department of Housing and Urban Development ("HUD") funds three of CHA's properties — properties that have a combined total of about 350 housing units. As required by regulation, HUD periodically inspects a randomly-selected, "statistically valid sample of [] units" to help ensure that CHA's federally-funded housing is "decent, safe, sanitary ... and in good repair." See 24 C.F.R. §§ 902.22(e), 902.20(a). The Real Estate Assessment Center ("REAC") — an agency within HUD — performs these evaluations, though it usually has REAC-trained independent contractors do the inspecting. Getting a high inspection score (90 or above) meant CHA would be considered a "high performer," which meant fewer inspections (every two years rather than every year), less oversight, and more capital funding (a 3% annual increase). And CHA got designated a "high performer" in three consecutive inspections — in 2007, 2009, and 2011.
But not all was right at CHA, it turns out. McLaughlin abruptly resigned his post in 2011 after a newspaper reported that he made about $360,000 a year, even though he told state officials that he made $160,000. As he left, McLaughlin wrote
McLaughlin's salary scandal sparked a criminal investigation that led agents to Vitus Shum, CHA's finance director. Shum copped to helping McLaughlin with the salary scheme. Receiving immunity, Shum also later told agents about how he and others at CHA had rigged the HUD inspections. And his revelations helped a grand jury indict McLaughlin, Fitzpatrick, and Morosco for "knowingly and unlawfully" conspiring to defraud the United States and its agency, HUD — a violation of 18 U.S.C. § 371, which makes it a crime for "two or more persons [to] conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose." As for the indictment's allegations, all you need to know is this: Morosco was a REAC-inspection consultant — though he principally advised housing authorities on how to handle the REAC-inspection process. And using his REAC-inspector status, he (the indictment added) accessed the REAC database and software, figured out the sample of CHA units to be inspected, and passed the information on to Fitzpatrick, McLaughlin, or both — allowing CHA employees to get those units up to snuff before the inspectors came a-calling.
McLaughlin pleaded guilty and got a 12-month prison sentence and a $3,000 fine, on top of the 36 months he previously got for pleading guilty to charges stemming from his salary chicanery. He did not testify at Fitzpatrick and Morosco's seven-day trial — Fitzpatrick did, but Morosco did not. A jury found them guilty as charged. And a judge later sentenced Fitzpatrick to 3 months in prison, plus 1 year of supervised release, and Morosco to 6 months in prison, followed by 1 year of supervised release.
Fitzpatrick and Morosco now appeal. Between them, they raise a battery of arguments — though not every one requires a lot of analysis. To make the opinion easier to follow, we organize our discussion thematically, issue-by-issue, providing more background as needed. And — spoiler alert — after working through their claims, we affirm.
Fitzpatrick and Morosco complain that section 371's defraud clause — criminalizing any conspiracy "to defraud the United States, or any agency thereof in any manner or for any purpose" — is unconstitutionally vague as applied to them. For those not in the know, a law is unconstitutionally vague if it fails to give ordinary people fair notice of what is forbidden, or if it fails to give the designated enforcers (police, prosecutors, judges, and juries) explicit standards (thus creating a risk of arbitrary enforcement). See Welch v. United States, ___ U.S. ___, 136 S.Ct. 1257, ___, 194 L.Ed.2d 387, at *3 (2016). Of course the requisite fair warning can come from judicial decisions construing the law. See, e.g., United States v. Lanier, 520 U.S. 259, 266, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997). And judges have no business junking a statute simply because we could have written it "with greater precision." Rose v. Locke, 423 U.S. 48, 49, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975).
Helpfully, both sides agree — rightly — that Fitzpatrick and Morosco preserved their vagueness claim below (via a motion to dismiss the indictment) and that our review is de novo. See, e.g., United States v. Hussein, 351 F.3d 9, 14 (1st Cir.2003). Also helpfully, both sides concede that
Start with Fitzpatrick's and Morosco's most loudly trumpeted point. As they tell it, section 371's "defraud" clause only bans conspiracies to deprive the government of property and money by dishonest schemes, a reading (they add) that jibes with the common-law understanding of "defraud." And such a reading would help them (they continue) because they never scammed the government out of property or money. Unhappily for them, years' worth of Supreme Court precedent holds that section 371 "is not confined to fraud as that term has been defined in the common law," see Dennis v. United States, 384 U.S. 855, 861, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966); that defrauding the government under section 371 means obstructing the operation of any government agency by any "deceit, craft or trickery, or at least by means that are dishonest," see Hammerschmidt v. United States, 265 U.S. 182, 188, 44 S.Ct. 511, 68 L.Ed. 968 (1924); and that the conspiracies need not aim to deprive the government of property or money, see id., because the act is written "broad enough ... to include any conspiracy for the purpose of impairing, obstructing, or defeating the lawful function of any" government "department," see Haas v. Henkel, 216 U.S. 462, 479, 30 S.Ct. 249, 54 L.Ed. 569 (1910). Ever faithful to high-Court holding, our caselaw rejects the idea that section 371 only bars conspiracies to defraud the government out of property or money. See United States v. Barker Steel Co., 985 F.2d 1123, 1136 (1st Cir. 1993) (relying on Supreme-Court cases interpreting section 371 and its basically "similar predecessors"); Curley v. United States, 130 F. 1, 6-10 (1st Cir.1904) (explaining that "defraud" in section 371's forerunner has a broader meaning than the common-law definition — and justifiably so because the statute's aim is to protect the government, and deceit can impair the workings of government even if the conspiracy does not take the government's property or money). Obviously then, this facet of Fitzpatrick's and Morosco's vagueness thesis goes nowhere.
Undaunted, Fitzpatrick and Morosco also suggest that because no statute or regulation criminalizes receiving a list of sample units before any HUD inspection, the government could not prosecute them under section 371. But our cases take all the wind out of their sails, holding as they do "that lawful activity may furnish the basis for a" section-371 conspiracy conviction. See United States v. Hurley, 957 F.2d 1, 4 (1st Cir.1992) (finding unconvincing "defendants' asserted lack of `fair warning' that their `legal' conduct could be the basis for a criminal prosecution," noting that "[t]he statutory prohibition against defrauding the government adequately put defendants on notice that a scheme designed to frustrate tax collection was prohibited"); accord Barker Steel Co., 985 F.2d at 1131 (emphasizing that section 371 bans both "(1) conspiracies to commit a specific offense against the United States, included elsewhere in the criminal code, and (2) conspiracies to defraud the United States," and rejecting defendants' argument "that if no other federal law or regulation proscribes alleged conduct, then [they] cannot be held criminally responsible pursuant to § 371" — "[i]f the second clause were interpreted to require commission of a specific offense, it would have the same meaning as the first clause thus rendering the second clause redundant"); United States v. Tarvers, 833 F.2d 1068,
In what is basically a Hail Mary pass, Morosco argues that two fairly recent cases signal a new willingness on the high Court's part to entertain vagueness challenges — a willingness (the argument goes) that we must emulate. The two cases are (1) Skilling v. United States, 561 U.S. 358, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010), limiting "honest services" fraud so that it only applies to defendants involved in either bribery or kickback schemes, and (2) Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), declaring the Armed Career Criminal Act's residual clause — a provision dealing with crimes that "involve[] conduct that presents a serious potential risk of physical injury" — too vague to be enforced. His pass falls incomplete, however, and for a simple reason. Neither Skilling nor Johnson overruled the Haas/Hammerschmidt line of section-371 cases. And because overruling Supreme Court precedent is the Court's job, not ours, we must follow Haas/Hammerschmidt, etc. until the Court specifically tells us not to — something that is true even if these long-on-the-books cases are in tension with Skilling and Johnson (and we do not suggest that they are). See Hohn v. United States, 524 U.S. 236, 252-53, 118 S.Ct. 1969, 141 L.Ed.2d 242 (1998) (declaring that Supreme Court "decisions remain binding precedent until [the Court] see[s] fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality"); Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989) (instructing that "[i]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions"); see also United States v. Coplan, 703 F.3d 46, 61-62 (2d Cir.2012) (rejecting the idea that a circuit court should use Skilling to rework controlling section-371 precedent, noting that lower courts should leave any reworking to the Supreme Court); Specter Motor Serv. v. Walsh, 139 F.2d 809, 823 (2d Cir.1943) (L.Hand, J., dissenting) (cautioning lower courts against "embrac[ing] the exhilarating opportunity of anticipating" the overruling of a Supreme Court decision), vacated sub nom. Spector Motor Serv. v. McLaughlin, 323 U.S. 101, 65 S.Ct. 152, 89 L.Ed. 101 (1944).
With the vagueness issue out of the way, we press on.
Basically 1 page of Morosco's 68-page brief contains an attack on the judge's decision not to acquit him because of insufficient evidence. The parties correctly agree that he preserved the issue for appeal — so our review is de novo, taking all facts and inferences in the light most friendly to the government, and drawing all credibility choices in the government's favor as well. See, e.g., United States v. Munyenyezi, 781 F.3d 532, 536 (1st Cir.2015). Sufficiency arguments seldom succeed. See United States v. Correa-Osorio, 784 F.3d 11, 26 (1st Cir.2015). So it is here.
Morosco's main argument is that the evidence did not demonstrate that he had sabotaged HUD's quality-control efforts, meaning (his theory runs) that the government's case against him floundered because prosecutors never "show[ed] that a
Viewed from a government-friendly perspective, the trial record reveals the following (we only hit the highlights):
So despite what Morosco argues, the evidence sufficed for a reasonable jury to conclude that the conspiracy did target a legitimate HUD function — namely, assessing the physical condition (e.g., habitability) of CHA's federally-funded properties.
Noting that "the physical inspections of the units only constituted 10% of the overall score," Morosco theorizes that it is "possible that the CHA would have been deemed a high performer regardless of [his] assistance."
Ever persistent, Morosco contends that CHA fixed units "throughout the year and not just in preparation for the inspections," which (he suggests) shows that any conspiracy did not "affect[]" or "undermine[]"
Finally, in something of an offhand suggestion, Morosco calls the evidence inadequate because it (supposedly) did not show "that [he] had an agreement with CHA, that he joined an illegal conspiracy with the required intent or that the purpose of the scheme was to defraud the government." This single-sentence suggestion is both unaccompanied by a discussion of the relevant evidence and unsupported by citation to legal authority. What we have here "`is hardly a serious treatment of ... complex issue[s]'" and is "not sufficient to preserve these points for review" — so these arguments are waived for lack of adequate development in briefing. See Rodríguez v. Mun. of San Juan, 659 F.3d 168, 176 (1st Cir.2011) (quoting Tayag v. Lahey Clinic Hosp., Inc., 632 F.3d 788, 792 (1st Cir.2011)); see also United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990) (warning that litigants must do more than mention arguments "in the most skeletal way, leaving the court to do [their] work"). But even if we were inclined to overlook this waiver — and we are not — there is no merit to Morosco's arguments: given the bullet-point summary above, we think that the government presented enough evidence for a reasonable jury to conclude that Morosco knowingly conspired with other CHA-connected colleagues to impair REAC's inspections and that he intended to achieve the conspiracy's goal through deceitful means.
Enough said about Morosco's sufficiency claim.
McLaughlin's arrests, indictments, and guilty pleas related to his salary-hiding and inspection-rigging activities received pervasive publicity. So before trial in their case, Fitzpatrick and Morosco asked the judge to question persons in the venire pool about this. Fitzpatrick, for example, wanted the judge to ask them: "Have you read any newspaper accounts of events at the [CHA] in the recent past? If you remember, what do you think of what you read or heard?" And after telling them that "one of the co-conspirators is the [CHA's] former Executive Director Michael McLaughlin," Morosco wanted the judge to ask: "Do you know or have you read of any information concerning this housing authority or this person?" Trying to respond to these requests, the judge told the venire panel that "[o]ne of the persons who the [g]overnment alleges was involved in this case was" CHA's executive director, "a fellow by the name of Michael McLaughlin." And then to "sharpen this a bit more," the judge said (emphasis ours):
A few jurors responded affirmatively. So the judge stressed two things. First, "the fact that you have been exposed to some information about the case is not disabling, necessarily," he said, "but it is something I want to explore." And second, "now that you are involved in the jury selection process," he added, "[y]ou have got to keep yourself immune from any outside influence at all" — "[y]ou have just
After a break for lunch, Morosco's lawyer said at sidebar that she was "very concerned" that the judge had "told the jury" about McLaughlin's guilty plea, adding that she "had no idea" that the judge "was going to do that" and that "[p]art of the reason" she was "so concerned" was "the defense here is whether or not a crime is committed and the issue of criminal intent." The judge, however, thought "this is belated," noting that he had made the comment "about two hours ago ... in response to your request" — "I do not see it as a problem," he said, and "I believe that it has been waived."
Before the trial got underway, the judge told the chosen jurors that "this case is to be decided solely on the basis of the evidence that is presented here in the courtroom and in light of the law that I give you." And after warning them not to do their own research during the trial, the judge told them that they did "not have to do anything at all except pay attention here in the courtroom while the evidence is submitted."
Later at the final-instruction conference (held shortly before the trial ended), the prosecutor brought up the judge's pre-trial reference to McLaughlin's plea and asked if the judge intended to "make it clear" that the jury "should not consider anything about him," including "whether he was prosecuted or not." As a suggestion, the prosecutor proposed that the judge tell the jury to "keep in mind that whether anyone else should be or was prosecuted for this crime is not a proper matter for you to consider." Responding, the judge said that he "may have said" that McLaughlin "had been convicted" but thought that he "did not say of what, in what circumstance." The judge, however, added that "if you want something more on that, I will" do it.
In his final charge, the judge told the jurors that they had "to decide this case solely on the basis of the evidence that was actually admitted here, not something else," and that they had to "analyze" the question of guilt "separately as to each" defendant. The judge expanded on this point:
And in describing the crime of conspiracy, the judge did refer to McLaughlin, but without mentioning McLaughlin's plea:
The judge then stressed that in deciding whether Fitzpatrick or Morosco had joined the conspiracy, jurors had to consider each defendant's "own words and actions," plus "the acts and statements of other persons [jurors] may find to have been members of the conspiracy made during and in furtherance of the conspiracy." And after telling jurors that "arguments and statements of counsel" were not "evidence in the case," the judge explained that "it is the evidence" — i.e., "what you heard on the stand, the documents that you have seen" — that matters. He also reminded them that Fitzpatrick and Morosco enjoyed a presumption of innocence until proven guilty beyond a reasonable doubt.
Fitzpatrick's and Morosco's lawyers objected to none of these instructions. And, by the way, no one — not the prosecution, not the defense, and not the judge — ever mentioned McLaughlin's guilty plea in the jury's presence after the jury-empanelment process wrapped up.
Before us, Fitzpatrick and Morosco say that the judge's telling potential jurors that McLaughlin had "pleaded guilty in this case" denied them their constitutional right to have the jury's verdict based solely on the trial evidence. Noting that his trial defense pivoted off his belief that Morosco "had legitimate access to the list," Fitzpatrick writes that the judge's comment about McLaughlin's pleading "guilty to the charged conspiracy" (actually, the judge said that McLaughlin had pleaded guilty to something "in this case," without saying what he had pled to) was really "tantamount to informing" prospective jurors that McLaughlin did not believe the legitimate-access claim — and so neither should they. Similarly, Morosco thinks that the judge's remark about McLaughlin's guilty plea "planted the seed" in the would-be jurors' minds that Morosco had to have been part of the conspiracy — something Morosco could not counter on cross-examination because McLaughlin did not testify.
The government candidly (and commendably) concedes that the judge "should not have" mentioned McLaughlin's guilty plea to the jury pool. We agree, for caselaw has long recognized that a jury's "`exposure to extrinsic information deprives a criminal defendant of the protections of the Sixth Amendment'" — e.g., "`his right of confrontation, of cross-examination, and of counsel'" — and that "[t]he jury's exposure to extrinsic facts is especially troubling when the trial judge is the source of the information." See United States v. Ofray-Campos, 534 F.3d 1, 18 (1st Cir. 2008) (quoting United States v. Santana, 175 F.3d 57, 65 (1st Cir.1999)) (alteration omitted).
Still, the parties bicker over plenty of stuff, like whether Fitzpatrick preserved this argument for appeal: Fitzpatrick says that he did preserve it — agreeing that he did not object below, Fitzpatrick notes that Morosco did and suggests that Morosco's objection gave the judge a chance to fix things before irreparable harm occurred, and so we should consider the claim preserved for both of them. The government, contrastingly, contends that Fitzpatrick did not preserve it — agreeing with Morosco that his objection preserved the issue
We review preserved jury-contamination claims for abuse of discretion. See id. at 20-22. But there is a wrinkle: If the jury's contact with outside info "did not occur inadvertently" and was "accompanied by `egregious circumstances,'" and if the judge's actions were not curative, then we will presume prejudice and review for harmless error. See id. That is, we will see if the government has proved "beyond a reasonable doubt" that the complained-of constitutional error "did not contribute to the verdict," id. at 22 (quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)) — a fact-specific exercise that requires us to consider (among other things) the evidence's "centrality" and "prejudicial impact," as well as "the use to which the evidence was put, and the relative strength of the parties' cases," id. (quoting United States v. García-Morales, 382 F.3d 12, 17 (1st Cir.2004)); see also generally United States v. Schneiderhan, 404 F.3d 73, 80 (1st Cir.2005) (noting that harmless-error review turns on an evaluation of the totality of the evidence).
The sides battle over whether we should presume prejudice — Fitzpatrick and Morosco say we should; the government says we should not. But we can duck the question. And that is because even assuming — favorably to Fitzpatrick and Morosco — that the presumption applies, we can classify the judge's comment about McLaughlin's guilty plea as harmless beyond a reasonable doubt.
On whole-record review, we, unlike Fitzpatrick and Morosco, think that the judge's off-base pretrial remark — that "Mr. McLaughlin has pleaded guilty in this case for himself" — was (at best) minimally "central" and "prejudicial." Just hear us out, please.
The info about McLaughlin's plea could suggest simply that he knew more about the inspection-rigging scheme than Fitzpatrick or Morosco. It could also provide a scapegoat so jurors would know that someone got pinched for the scheme. And it could suggest that Fitzpatrick and Morosco must really believe in their innocence. The defense's argument — that info about McLaughlin's plea suggested that he thought a crime had occurred, thus eviscerating the defense's no-crime-had-occurred defense — is both speculative and weak, because it is clear that some people were indeed trying to cheat the inspection regime.
Keep in mind as well what the judge told prospective and then selected jurors: He, for example, told the jury panel that prior knowledge about the case or the defendants may be disqualifying and must play no role in the verdict. And after speaking to those potential jurors claiming to know something about the case, the judge concluded that they could remain impartial. More, the judge told the panel members that they must decide "the case in light of the evidence that is presented." Defining evidence as what "you heard on the stand, the documents you have seen," the judge also told the seated jurors that they had to assess the guilt or innocence of each defendant separately — so although the parties may believe "other people ... are culpable in some fashion or another, ... we are concerned about" Fitzpatrick and Morosco,
Not so fast, Fitzpatrick and Morosco argue: the level of prejudice here is on par with the level of prejudice in Ofray-Campos, a conspiracy case in which the judge had told the jury that 37 nontestifying codefendants were sitting in prison — an error we found harmful to some of the appellants. Actually, however, their cases are worlds apart from Ofray-Campos. There we found a "direct" link between the disclosed info and the verdict because (among other things) the jury had asked for that data while deliberating (not our situation) and had returned with a guilty verdict soon after hearing from the judge (not our situation either) — circumstances, we concluded, that suggested "that the jury attributed weight to the trial judge's response, and indeed considered the ... response to be important, if not critical, in arriving at the verdict." See 534 F.3d at 24-25. Given these night-and-day differences between these cases — there is nothing approaching that kind of "direct" link here, after all — Ofray-Campos adds no oomph to Fitzpatrick's and Morosco's prejudice claims.
That leaves us with the task of weighing the strength of each side's case. Focusing on Fitzpatrick's first, we emphasize the following (some of which we've already noted in this opinion): One, Fitzpatrick pinned his not-guilty hopes below on a "legitimate access" defense — a defense premised largely on his testifying at trial that Morosco had told him that he (Morosco) had "legitimate access" to an "algorithm" that CHA could use to come up with a list of to-be-inspected units. Two, according to testimony from others (as Fitzpatrick is at pains to point out), both he and Morosco told CHA colleagues that getting advance notice of the list was not a problem. Three, the judge (Fitzpatrick argues) blew that defense out of the water when he told the jury pool about McLaughlin's guilty plea — info (the theory continues) that suggested to the pool members that McLaughlin thought the legitimate-access idea was hooey. And four, Fitzpatrick testified that he had "never organized or directed any SWAT team" and that he had told Shum that he did not think Morosco's plan would work. Cf. generally id. at 28 (commenting that in assessing the evidence's relative strength, it is "significant" that the defendant "testified on his own behalf").
Turning now to the government's side of the ledger, we note the following (some of which we've also mentioned before):
Prosecutors did not just rely on cooperating-witness testimony. They also relied on documentary evidence, like this:
Significantly too, Fitzpatrick's own words — drawn out on cross- and recross-examination — weakened his case, indicating that he did not believe it was "legitimate" to mess around with HUD's random-sampling procedure:
As for Morosco's case, we need not say much. Being "an actively certified REAC
We know that if "record review leaves the conscientious judge in grave doubt about the likely effect of an error," we should treat the error "as if it affected the verdict." See O'Neal v. McAninch, 513 U.S. 432, 435, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995) (adding that "`grave doubt' ... mean[s] that, in the judge's mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the error"). But — given the minimal role and prejudicial effect that the judge's line-crossing remark had here (again, he made the comment pretrial, well before jury deliberations; checked with prospective jurors who said they knew something about the case; and instructed seated jurors to consider each defendant's fate separately), and given the relative strength of the government's case compared with the defendants' (what with the government's putting in evidence undermining Fitzpatrick's position and cross- and recross-examining him so effectively, plus the government's showing that Morosco knew his actions were forbidden and that it mattered not if he knew that he was committing a federal crime) — we believe that the guilty verdicts returned here were "surely unattributable" to the judge's error. See Ofray-Campos, 534 F.3d at 26 (quoting Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993)).
On to the next claim, then.
Like Shum, Richard Russell, the previously-mentioned CHA maintenance official, cooperated with investigators and testified before the grand jury too. Believing that Russell was a "probable government witness," Fitzpatrick's lawyer moved pretrial to have counsel appointed to represent him. She argued that as an "unindicted co-conspirator" Russell needed counsel "to advise him regarding his potential Fifth Amendment right not to testify." And Fitzpatrick's lawyer explained at a pretrial hearing that she intended to cross-examine Russell "about what his understanding is of what's going to happen to him, if anything, for testifying" and about "whether he has some understanding that he is going to walk away from this without getting his hair mussed or whether he genuinely has no idea that he's placing himself at risk."
The judge (we are told) met privately with him to see if Russell wanted counsel. Hard on the heels of this meeting, Russell got a lawyer. And sometime before trial started, Russell entered into an immunity
At trial the prosecutor asked Russell about the immunity agreement near the end of his direct testimony. After Russell said — without objection — that he had testified about these CHA "matters" previously, the prosecutor asked: "Did you testify differently?" Russell answered "no." Fitzpatrick's counsel then objected. But the judge overruled his objection.
Near the end of her cross-examination of Russell, Morosco's lawyer brought up the immunity agreement and introduced it into evidence. Russell then agreed with Morosco's lawyer that the agreement "indicates that in return for testifying [he] will not be prosecuted."
On redirect examination, Russell acknowledged that the immunity agreement got signed "last week," that the government had not "promised anything" before then, that law enforcement had interviewed him "about REAC," and that he had earlier testified before the grand jury pursuant to a subpoena. Over Fitzpatrick's counsel's objection, Russell answered "yes" to the question whether he had "testif[ied] essentially to the same matters that [he] had testified here today[.]" And again over Fitzpatrick's counsel's objection, Russell testified that he had told the truth to the grand jury.
Later, the judge told the parties why he had let Russell testify about "his prior statements to the grand jury." Expressing regret for having spoken to Russell about the counsel-appointment matter (because doing so had "intruded the Court into [Russell's] choices about how he wanted to present himself in this case"), the judge intimated that Fitzpatrick's lawyer had engineered Russell's immunity agreement by the motion to appoint counsel and then "exploited" the situation by hinting to the jury that Russell's "statements here were the subject of some form of promises, reward and inducement, and, inferentially," that his "prior statements would be somehow less than credible" and "perhaps inconsistent." And the judge said that he had overruled counsel's objections on the prior-consistent-statements questions "to rectify that litigation gavotte or strategy."
Fitzpatrick contends that the judge basically let the prosecutor bolster Russell's credibility at trial by letting him testify that he had told the grand jury the truth, a textbook example of an abuse of discretion — or so Fitzpatrick thinks. See, e.g., United States v. Simonelli, 237 F.3d 19, 28 (1st Cir.2001) (discussing the judge's "discretion" in this area); United States v. DeSimone, 488 F.3d 561, 574 (1st Cir.2007) (noting that we review decisions to admit evidence for abuse of discretion). He notes — and the government agrees — that the challenged testimony was admissible if it had "some rebutting force beyond the mere fact that the witness has repeated on a prior occasion a statement consistent with his trial testimony." See Simonelli, 237 F.3d at 27-28 (quoting United States v. Pierre, 781 F.2d 329, 331 (2d Cir.1986)). But he is adamant that his lawyer never attacked Russell's credibility so as to make "consistency" an issue — "[t]o the contrary," writes Fitzpatrick, "the defense took the position that Russell gave truthful testimony," noting how "counsel for both defendants relied upon Russell's testimony in closing as corroboration for the theories of defense." Also, Fitzpatrick says, the judge was wrong in thinking that his attorney had masterminded the immunity agreement via the counsel-appointment motion, let alone that she had done so to challenge Russell's credibility — all she had done, according to Fitzpatrick, was to raise some concerns about Russell's potential "exposure." And, Fitzpatrick quickly adds, while his counsel did say that any
The government counters that because defense lawyers usually use immunity agreements to attack a witness's credibility, the judge abused no discretion in allowing the prosecutor to show on direct examination that Russell had not changed his testimony after getting immunity. And as for Russell's testimony on redirect examination, by then Morosco's lawyer had mentioned the immunity agreement and had introduced it into evidence, "implied[ly]" attacking Russell's credibility — or so the government asserts.
We need not referee this tussle, however. And that is because even assuming (without deciding) that the judge did err, the mistake was harmless. "A non-constitutional evidentiary error is harmless" if "it is highly probable" that the mistake "did not influence the verdict." United States v. Piper, 298 F.3d 47, 56 (1st Cir.2002). Fitzpatrick, remember, argues that his lawyer did not torpedo Russell's credibility at trial but instead "took the position" that Russell had testified "truthful[ly]" — and he notes that his attorney and Morosco's went so far as to "rel[y] upon Russell's testimony" during closing argument to "corroborat[e]" the defense's "theories." If so, then evidence that Russell had testified consistently in the past could only have helped Fitzpatrick — hence our harmless-error holding.
With that said, we move right along.
At trial, Fitzpatrick's counsel did his best to destroy Shum's credibility, telling the jury during his opening statement, for example, that Shum was a "conniv[er]" who had "very corruptly handled [CHA's] books" to help McLaughlin out. And during cross-examination by the government, Fitzpatrick himself said that Shum had "kind of skewed his [Shum's] testimony." Fitzpatrick then conceded that earlier he had "talk[ed]" and "jok[ed]" with Shum outside the courtroom, that CHA had sued him and Shum civilly over "this inspection-rigging business," and that the two men were "commiserating" about the suit. Fitzpatrick's lawyer protested, saying "I think this is improper." Overruling counsel's objection, the judge gave a limiting instruction, telling jurors that "the nature of the case opens up questions of the relationships between various of the persons who have testified here and their relationships now," and so they could consider the Fitzpatrick/Shum "relationship[]" and the "regard" they had for each other.
Fitzpatrick now argues that the judge should have excluded this testimony. As he sees it, the evidence had little or no probative value but was highly prejudicial since the jury "would have inferred" that CHA had sued him because he had actually played a role in the inspection-rigging scheme. See Fed.R.Evid. 403 (providing that a judge "may exclude relevant evidence if its probative value is substantially
That Fitzpatrick was still friendly with Shum and apparently thought him an ally in the civil suit helped counter the defense's credibility attacks. So the complained-of testimony had probative value. And as for prejudice, yes, the testimony had some of that too — most evidence is prejudicial to one side or another, courts commonly say. See, e.g., Rodríguez-Soler, 773 F.3d at 296. But because jurors obviously already knew that the government had criminally indicted Fitzpatrick on the inspection-rigging scheme, we see little indication of unfair prejudice from the testimony about the scheme also triggering a yet-unadjudicated civil case. Certainly we see no unfair prejudice "substantially" out-weighing the testimony's probativeness — particularly given the judge's unobjected-to instruction clarifying that jurors could consider the testimony insofar as it related to Fitzpatrick and Shum's relationship. See, e.g., United States v. Mehanna, 735 F.3d 32, 64 (1st Cir.2013) (upholding the judge's ruling, highlighting his limiting instruction); United States v. Tejeda, 974 F.2d 210, 214 (1st Cir.1992) (same). The bottom line is that this is not one of those "rare[]" and "extraordinarily compelling" situations requiring our intervention. See Mehanna, 735 F.3d at 59 (quoting United States v. Pires, 642 F.3d 1, 12 (1st Cir. 2011)) (internal quotation marks omitted).
At oral argument before us, Morosco (through his lawyer) conceded that while what he did (giving CHA the list of to-be-inspected units before the inspection) "does not appear to be innocent," he "did not see it as criminal." That tees up his mens-rea argument, which is sort of a corollary to his void-for-vagueness claim: Morosco contends that section 371's defraud clause — which, to repeat, outlaws conspiracies "to defraud the United States, or any agency thereof in any manner or for any purpose" — lacks a mens-rea requirement. And, he intimates, to cure this problem, the judge should have told jurors (but did not) that they could only convict if they found that he knew his actions constituted a crime — an instruction, he says, that would have resulted in his acquittal, because, as he knew, no HUD regulation criminalized giving housing-authority officials a list of to-be-inspected units before the inspections. Color us unconvinced.
Mens rea (for the uninitiated) is the mental state — "knowingly" or "willfully," for example — required to convict. The idea behind the mens-rea requirement "is that a defendant must be `blameworthy in mind' before he can be found guilty" — an idea that "is `as universal and persistent in
But "[t]his is not to say that a defendant must know that his conduct is illegal before he may be found guilty." Id. Far from it. Instead, he "generally must `know the facts that make his conduct fit the definition of the offense.'" Id. (quoting Staples v. United States, 511 U.S. 600, 608 n. 3, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994)). We say "generally," however, because in certain situations — like where a statute presents a danger of criminalizing apparently innocent acts — we sometimes require proof that the defendant knew his conduct infracted a specific law. See, e.g., Cheek v. United States, 498 U.S. 192, 200-01, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991).
Back to our case. Essentially parroting a pattern-jury instruction, the parties — Morosco included — asked the judge to tell the jury that a section-371 conviction requires proof that the defendant acted "willfully," i.e., with "bad purpose, either to disobey or to disregard the law." See Nancy Torresen, 2015 Revisions to Pattern Criminal Jury Instructions for the District Courts of the First Circuit 119 (2015), available at http://www.med. uscourts.gov/pdf/crpjilinks.pdf (instruction 4.18.371(3)); see generally United States v. Charlton, 502 F.3d 1, 3 n. 2 (1st Cir.2007) (noting that the pattern instructions, though often helpful, "have not been officially adopted by th[is] court"). And the judge agreed to do just that. First, though, he told the jurors that section 371 reaches conspiracies to defraud that "have been agreed upon willfully to impair, impede or defeat the proper operation of the federal government by ... deceit, craft, trickery, or dishonest means." He also told them that the government had to prove "two types of intent": an intent to "willfully and knowingly join[] the conspiracy" and "an intent to violate, whether reasonable or not, ... the underlying" section-371 offense. As for what "willfully" means, the judge said that
Defending the judge's charge, the government (to quote its brief) says that section 371 neither explicitly nor implicitly "require[s] `willful' action" — a "knowing[]" mens rea suffices — so, the government asserts, the instruction here actually required prosecutors to prove "a level of mens rea" higher than what the statute demands.
We are not done with "willfully," however.
After deliberating for about two hours, the jury sent the judge a note saying, "Can we have an expanded definition of what constitutes `willfulness' in regards to this charge?" Admitting that he was "not exactly sure what `expanded'" meant, the judge talked with the parties' attorneys and proposed "simply repeat[ing] what I said before here, to which no objection was made...." Because the jury had sought an "expanded definition," lawyers for Fitzpatrick and Morosco asked the judge to say more. Fitzpatrick's attorney offered some language.
The jury returned guilty verdicts roughly an hour later.
Fitzpatrick thinks that the judge's actions here constituted an abuse of discretion, the standard (the parties agree) that governs our oversight of preserved claims, see United States v. Rivera-Hernández, 497 F.3d 71, 83 (1st Cir.2007), with unpreserved claims getting plain-error review. Ultimately, though, we see no reason to reverse.
Fitzpatrick's lead argument is that the judge should have given an "expanded" definition of "willfully" since that is what the jury asked for. But he does not tell us what the judge should have said differently in defining that term — e.g., he does not argue that the judge should have given the supplemental instruction that counsel suggested. And given this situation, we can hardly say that his argument adds up to an abuse of discretion. Cf. generally Lussier v. Runyon, 50 F.3d 1103, 1111 (1st Cir.1995) (saying that, "[i]n general, the abuse of discretion framework is not appellant-friendly"); Dopp v. Pritzker, 38 F.3d 1239, 1253 (1st Cir.1994) (emphasizing that that most "appellants who consider themselves aggrieved by discretionary decisions of the district court ... are destined to leave this court empty-handed").
Conceding that the judge "did not wrongly define `willfully'" in the original charge, Fitzpatrick next blasts the judge for (supposedly) "omitt[ing] the thrust of the defense," first by not reminding the jury that conviction required "dual intent" — i.e., proof that he had "knowingly and willfully joined the conspiracy," plus had "the specific intent to commit the underlying crime"; and then by "omitting the earlier emphasis" that "`mere presence'" at the scene of a crime does not implicate the bystander in that offense (the judge had given a "mere presence" charge in his original instructions). Fitzpatrick preserved neither claim, however. And he makes no attempt to explain how he satisfies the requisites of plain error. We are under no obligation to do his work for him. See, e.g., United States v. Etienne, 772 F.3d 907, 918 n. 7 (1st Cir.2014); United States v. Calderón-Pacheco, 564 F.3d 55, 58 (1st Cir.2009); accord Citizens Awareness Network, Inc. v. United States, 391 F.3d 338, 354 (1st Cir.2004).
Lastly, Fitzpatrick argues that the judge should have warned the jury that the supplemental instruction was not a substitute for the original instruction. Perhaps such an instruction might be called for when a judge "amplifie[s] or explain[s]" the original instruction. See United States v. Parent, 954 F.2d 23, 27 (1st Cir.1992) (quoting Beardshall v. Minuteman Press Int'l, Inc., 664 F.2d 23, 29 (3d Cir.1981)). But even Fitzpatrick admits that the judge's supplemental instruction essentially mimicked the original, unobjected-to "willfully" charge. And he cites no case — or any persuasive reason — requiring that a judge must give the pined-for warning in a situation like ours.
What this all means is that Fitzpatrick's supplemental-instruction claim has no legs. But there is still work for us to do.
Relying on USSG § 3B1.2, Fitzpatrick asked the judge at sentencing to give him a two-level "minor role" reduction when calculating his guidelines offense level. With that reduction, his recommended
Ultimately, the judge declined to give the minor-participant discount — though he did call the issue "close," saying "with a couple of different wrinkles maybe it would come out a little differently." The judge's reasoning was straightforward: Taking a "holistic" look at "the nature of the agreement" and what "this particular individual" had done "to further the criminal enterprise," the judge concluded that Fitzpatrick "play[ed] the role of a high-level functionary" who took "relevant information" from Morosco "and pass[ed] it on." The judge also called Fitzpatrick's doings "necessary," stressing that he "did not think that this undertaking could have been successful without" the "activity" Fitzpatrick "chose" to perform. Focusing on relative culpability, the judge found that "at least the people who were indicted, and perhaps others, shared the same level of significance, core significance to the activity, although some had more significant jobs than others." And the judge suggested that "to the degree that this [analysis] needs to be refined further," he would do it "in the context of variance or departure" — "[v]ariance, probably."
Turning to the variance issue, the judge considered Fitzpatrick's arguments as measured against the controlling criteria in 18 U.S.C. § 3553(a). That Fitzpatrick's case "is a jail case seems to be" the sentencing guidelines' "judgment," the judge said. But, he added, "I am not sure that they adequately reflect the particulars of this case and the nature of this case." The judge regarded Fitzpatrick's crime as "very serious." But he found that Fitzpatrick's life story and family circumstances justified some leniency. And though convinced that he would not re-offend, the judge concluded that Fitzpatrick had to get some jail time to deter others from committing similar crimes. Using McLaughlin's 12-month sentence as sort of a "lodestar," the judge decided to vary downward from Fitzpatrick's 15-21 month range and give him 3 months in prison — with a 1 year period of supervised release to follow.
Later, Fitzpatrick asked the judge to stay his sentence pending the outcome of his appeal, arguing (among other things) that a proposed amendment to section 3B1.2's commentary supported a minor-role reduction. But the judge denied the motion, saying that Fitzpatrick's request for a minor-participant adjustment "was essentially immaterial to the sentence imposed, which was in any event well below the guideline that would have resulted even had the reduction been granted" — and "[t]hat was because" the judge "did not view the applicable guidelines (which... are likely to be changed by amendment shortly) as adequately capturing relative culpability in the unique circumstances of this case." So, wrapping up, the judge emphasized that the issue Fitzpatrick "raise[d] about the guideline — even if close as a factual matter at the nisi prius level — did not affect the sentence... imposed."
After the judge's ruling, the federal sentencing commission did amend the commentary to section 3B1.2. Pertinently, that amendment says that judges should not deny a minor-role adjustment "solely" because the defendant was "`integral' or `indispensable'" without considering whether he was "substantially less culpable than the average participant in the criminal activity." See USSG, supp. app. C, amend. 794, at 118.
According to Fitzpatrick, this amendment is "critical" to his case, because in refusing to give him the minor-participant discount, the judge found that he had
The parties skirmish over whether the amendment is "clarifying" or "substantive," because only "clarifying amendments — amendments that are purely expository — may be applied retroactively." See United States v. Cabrera-Polo, 376 F.3d 29, 32 (1st Cir.2004); see also United States v. Crudup, 375 F.3d 5, 8-10 (1st Cir.2004). We need not grapple with that question. Even assuming (without granting) that the amendment is clarifying, we think that Fitzpatrick's remand argument is not a winner. Here is why: As we said a second ago, the amendment declares that judges should not reject a minor-participant reduction "solely" because the defendant's conduct was "`integral' or `indispensable'" without pondering whether he was "substantially less culpable than the average participant in the criminal activity." But the judge did consider (as the amendment requires) Fitzpatrick's culpability in relation to his codefendants, finding that they all "shared the same level of significance, core significance to the activity."
Seeking a way around the problem, Fitzpatrick argues that the judge focused more on the "significance" of his role in the conspiracy than on his culpability in relation to his comrades. But looking at the sentencing transcript, we see that for page after page the judge and the lawyers actually discussed the relative culpability among the codefendants — which throws cold water on this argument. Also missing the mark is Fitzpatrick's claim that the judge did not focus on factors like "the degree to which the defendant participated in planning and organizing and exercised decision-making authority" (one of the nonexhaustive list of factors for a judge to consider in deciding whether to make a minor-role adjustment). The parties spent significant time during sentencing on the planning, organizing, and decision-making issues, and we can infer the judge considered and rejected defense counsel's points before selecting the sentence. Cf. generally United States v. Jiménez-Beltre, 440 F.3d 514, 519 (1st Cir.2006) (en banc) (indicating that we can infer that the judge considered a defendant's sentencing claim "by comparing what was argued by the parties ... with what the judge did").
With that and at long last, we affirm Fitzpatrick's conviction and sentence, and we affirm Morosco's conviction too. Also, as we discussed above, we deny as moot Fitzpatrick's earlier-filed motion asking us to stay his sentence pending appeal.
