United States v. Godfrey
2015 U.S. App. LEXIS 8625
| 1st Cir. | 2015Background
- In 2009 defendants Christopher Godfrey and Dennis Fischer ran HOPE, a Florida telemarketing operation that sold a slightly altered Treasury HAMP form (replacing the government's hotline with HOPE's) to homeowners for $400–$900 while promising loan modifications.
- HOPE operated a high-pressure boiler-room sales force; management trained and incentivized telemarketers to lie (e.g., claiming near‑perfect success, saying modifications were already approved).
- Numerous customers complained and six states sent cease-and-desist letters to HOPE warning of deceptive practices; HOPE maintained a "do not call" list for states that had taken action and circulated a restrictive covenant to employees.
- After a 2011 search, a grand jury indicted Godfrey and Fischer (and others) for mail fraud, wire fraud, misuse of a government seal (18 U.S.C. § 1017), and conspiracy; two co‑workers pled guilty and testified; jury convicted Godfrey and Fischer on all counts and they received 84‑month sentences.
- On appeal defendants raised four challenges: Confrontation Clause admission of customer complaints/cease‑and‑desist letters; constructive amendment/prejudicial variance from evidence about IRS application; erroneous jury instruction on misuse of a government seal; and denial of removal of a juror for bias. The First Circuit affirmed.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument | Held |
|---|---|---|---|
| Confrontation Clause: admission of customer e‑mails and state cease‑and‑desist letters | Offered not for truth but to show defendants had notice of complaints and fraudulent sales; properly admitted with limiting instructions | Statements were testimonial hearsay and admission violated Sixth Amendment confrontation rights | Affirmed — admissible non‑hearsay for notice; any Confrontation issue would be harmless beyond a reasonable doubt given overwhelming proof of fraud (Cameron factors) |
| Constructive amendment / prejudicial variance: IRS denial misstatement in indictment and prosecution introduced IRS application | Government notes indictment charged multiple material misrepresentations and evidence including IRS application was relevant to knowledge; dropped an incorrect pre‑indictment IRS denial from proof | Argues pivot to blaming lies to IRS altered the indictment and deprived defendants of fair notice (constructive amendment) | Affirmed — no constructive amendment; omission of one evidentiary allegation was only a variance and did not affect substantial rights; evidence of false IRS application relevant to knowledge |
| Jury instruction on 18 U.S.C. § 1017 (misuse of government seal) | Instruction required proof that defendant knew the seal was fraudulently affixed and acted with fraudulent intent | Defendants argued instruction should separately require jury to find the seal was actually affixed or impressed on the document | Affirmed — instruction sufficiently required knowledge of fraudulent affixing (finding that the seal was fraudulently affixed was implicit and inevitable from the instruction and evidence) |
| Biased juror: denial of request to remove Juror No. 7 who had received a similar mailer | Court questioned juror; juror stated prior receipt did not affect ability to be fair; prosecution relied on judge’s assessment | Defendants argued juror was biased as a matter of law or in fact and prior similar contact merited removal (comparative excusals noted) | Affirmed — no manifest abuse of discretion; juror not biased as a matter of law or fact given voir dire answers and deference to trial judge credibility findings |
Key Cases Cited
- Williams v. Illinois, 132 S. Ct. 2221 (2012) (Confrontation Clause framework for testimonial hearsay)
- United States v. Cruz‑Díaz, 550 F.3d 169 (1st Cir. 2008) (out‑of‑court statements admissible to show effect on listener are not hearsay)
- United States v. Cameron, 699 F.3d 621 (1st Cir. 2012) (harmless error analysis for Confrontation Clause violations)
- United States v. Mubayyid, 658 F.3d 35 (1st Cir. 2011) (constructive amendment vs. variance principles)
- United States v. Dowdell, 595 F.3d 50 (1st Cir. 2010) (when changes in proof do not alter substance of indictment)
- United States v. Fisher, 3 F.3d 456 (1st Cir. 1993) (variance and substantial rights test)
- Neder v. United States, 527 U.S. 1 (1999) (materiality requirement for mail/wire fraud)
- United States v. Goodyke, 639 F.3d 869 (8th Cir. 2011) (interpretation of § 1017 elements)
- Skilling v. United States, 561 U.S. 358 (2010) (deference to trial court on juror impartiality findings)
- Mu'Min v. Virginia, 500 U.S. 415 (1991) (standards for juror bias and trial judge discretion)
- Parker v. Gladden, 385 U.S. 363 (1966) (presence of a single biased juror requires reversal)
- Wainwright v. Witt, 469 U.S. 412 (1985) (juror credibility and trial judge’s province)