UNITED STATES of America, Appellee, v. Todd DENSON, Defendant, Appellant.
Nos. 11-1042, 11-1043.
United States Court of Appeals, First Circuit.
Heard May 8, 2012. Decided Aug. 2, 2012.
689 F.3d 21
Jones objected to admission of the phone call, arguing that at the time of the call, he did not know that Richmond had pled guilty or what he had said in his plea colloquy; this had occurred roughly three weeks before the phone call but not in Jones’ presence. He also argued that the phone call was highly prejudicial,
An admission is anything a party said out of court when offered against him by an adversary,
As to undue prejudice, his “street language” might, as Jones argues, displease the jury; but it is fairly tame, the inference of guilt is important because Jones’ defense was mistaken identity, and the
Affirmed.
James M. Falvey, by appointment of the court, with whom Law Office of James Falvey was on brief, for appellant.
Renée M. Bunker, Assistant United States Attorney, with whom Thomas E. Delahanty, II, United States Attorney, was on brief, for appellee.
Before TORRUELLA, HOWARD, and THOMPSON, Circuit Judges.
WHAT THIS CASE IS ABOUT
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
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
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.1 Denson got caught, again. And his actions culminated in a jury‘s convicting him on multiple wire-fraud counts and a district judge‘s revoking his supervised release.2 As for how sentencing went, what matters for our purposes is that the judge imposed concurrent 30-month prison terms for each wire-fraud conviction—a sentence within the 24–30 month advisory guidelines sentencing range. After holding a revocation hearing later that same day, the judge also sentenced him to a total imprisonment term of 15 months for the supervised-release violations—even though the sentencing range was 4–10
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.
JURY INSTRUCTIONS
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 Jesus-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.4
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. 2008); see generally Global-Tech Appliances, Inc. v. SEB S.A., ___ U.S. ___, 131 S.Ct. 2060, 2070 & n. 9, 179 L.Ed.2d 1167 (2011) (distilling from willful-blindness cases “two basic requirements“—“(1) the defendant must subjectively believe that there is a high probability that a fact exists and (2) the defendant must take deliberate actions to avoid learning of that fact“) (citing, among other cases, United States v. Perez-Melendez, 599 F.3d 31, 41 (1st Cir. 2010)). Faced with a properly preserved challenge like this one, we give fresh review to whether the instructions contained “an error of law” but abuse-of-discretion review to whether they “adequately explained the law or whether they tended to confuse or mislead the jury on the controlling issues.”5 United States v. Jadlowe, 628 F.3d 1, 14 (1st Cir. 2010) (internal quotation marks omitted); accord United States v. Gonzalez, 570 F.3d 16, 21 (1st Cir. 2009). Ultimately, despite what Denson says, we believe that the instructions focused the jury‘s attention on him.
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 cases6—even Denson does not suggest otherwise—and could not have misled the jury into applying a reasonable-person standard. Consequently, Denson‘s first argument goes nowhere.
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 (1st Cir. 2009) (discussing an abuse-of-discretion standard of review). It is a rare case where all of these conditions are met, see United States v. Prigmore, 243 F.3d 1, 17 (1st Cir. 2001), and this is not that case—not by a long shot.
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.
SENTENCING
Moving past the jury instructions, we turn to Denson‘s sentencing arguments. Each has to do with the judge‘s handling of
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
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.”7 Even a five-year term may be a “life sentence” for him, counsel added. And Denson struck the same note in his statements to the judge before being sentenced (his “allocution,” in legal lingo). “I‘ve outlived [my] life [expectancy],” he said at the first sentencing hearing. “It‘s a very rare, rare illness,” he explained, “[a]nd the older I get, the more it affects me.” “[M]y life just went ... spiral[ing]” out of control after being diagnosed with this “very rare” disorder, he emphasized at the second hearing.
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-Davila, 649 F.3d 129, 130 (1st Cir. 2011); Davila-Gonzalez, 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
We see nothing reversible here. A judge need not mention every
The upshot is that the challenged sentences are procedurally sound and substantively reasonable. And that is that.
WHAT THIS ALL MEANS
Our work over, we affirm the judgments below in all respects.
Notes
United States v. Davila-Gonzalez, 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“ordinarily ... begin[s] by calculating the applicable guideline sentencing range; then determine[s] whether or not any departures are in order; then mull[s] the factors delineated in
18 U.S.C. § 3553(a) as well as any other relevant considerations; and, finally, determine[s] what sentence, whether within, above, or below the guideline sentencing range, appears appropriate.”
Now, in deciding whether the defendant acted knowingly, you may infer that the defendant had knowledge of a fact if you find that he deliberately closed his eyes to a fact that otherwise would have been obvious to him. In order to infer knowledge, you must find that two things have been established: First, that the defendant was aware of a high probability of the fact in question; second, that the defendant consciously and deliberately avoided learning of that fact, that is to say, the defendant willfully made himself blind to that fact. It‘s entirely up to you to decide whether he deliberately closed his eyes to the fact and, if so, what inference, if any, should be drawn. However, it is important to bear in mind that mere negligence or mistake in failing to learn the fact is not sufficient. There must be a deliberate effort to remain ignorant of the fact.
An act or failure to act is willful if done voluntarily and intentionally and with the specific intent to do something that the law forbids or with a specific intent to fail to do something the law requires to be done, that is to say, with bad purpose either to disobey or to disregard the law. Thus, if the defendant acted in good faith, he cannot be guilty of the crime. The burden to prove intent, as with all other elements of the crime, rests with the government.