UNITED STATES OF AMERICA, Appellee, v. SIDNEY P. KILMARTIN, Defendant, Appellant.
No. 18-1513
United States Court of Appeals For the First Circuit
December 6, 2019
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before Barron, Selya, and Boudin, Circuit Judges.
Jamesa J. Drake, with whom Drake Law LLC was on brief, for appellant.
Benjamin M. Block, Assistant United States Attorney, with whom Halsey B. Frank, United States Attorney, was on brief, for appellee.
In this venue, the defendant raises a golconda of issues. We hold that the evidence was sufficient to convict on the tried “mailing injurious articles” and witness tampering counts (counts 1 and 14). With respect to those counts and the fraud-related counts involving Denton (counts 5, 7, and 12), all of which were tried, we hold that the district court abused its discretion in admitting highly charged evidence having powerfully prejudicial effect but scant probative value. Given the strength of the
I. BACKGROUND
We briefly rehearse the background and travel of the case, taking the facts in the light most congenial to the government, consistent with record support. See, e.g., United States v. Singh, 222 F.3d 6, 8 (1st Cir. 2000).
In September of 2012, the defendant falsely posed as a commercial goldsmith to order one hundred grams (at least five hundred lethal doses) of ninety-eight percent pure potassium cyanide (cyanide) from a California vendor. The cyanide cost him about $127. Because the vendor would not ship the cyanide to a residential address, the defendant had it sent to a UPS store in Augusta, Maine. He retrieved the merchandise on the day that it arrived.
The defendant‘s next step was to create a Gmail account, which allowed him to blog. He proceeded to post, on a website for suicidal people called “wantdeathblogspot,” that he had industrial-grade cyanide for sale. From around September of 2012 until approximately May of the following year, the defendant exchanged cyanide-related emails with people all over the world,
One of the defendant‘s duped customers was Andrew Denton of Hull, England. According to his niece, Denton “was just adamant that he wanted to commit suicide.” Denton ordered cyanide from the defendant, who mailed Epsom salts to him on November 16, 2012. The parcel arrived at the end of November, and Denton ingested the substance in an effort to kill himself. The attempt failed, and an irate Denton complained to the FBI Internet Crime Complaint Center (IC3).
In his complaint, Denton described his dealings with the defendant, noting that what he received could not have been cyanide since “[i]t did not work.” Denton also advised the defendant about the IC3 complaint. On December 8, 2012, the defendant emailed Denton, mentioned the possibility of a second shipment, and described how Denton could order cyanide directly from the California vendor “if all else fails.” The following day, Denton updated his IC3 complaint, stating that his issue had been resolved
The second parcel, which actually contained cyanide, arrived on December 20. That same day, the defendant emailed Denton asking if Denton could “do something” with his hard drive “before [his] event.” Expressing concern about the FBI being “aware of [his] goings on,” the defendant stated that “the last thing” he needed was “to give [the FBI] more fodder.” Denton replied that he would delete their emails, explained his understanding that the IC3 complaint would remain open but inactive for three months, and expressed his hope that the cyanide would “work[] this time.” Denton‘s niece found him dead on December 31. Subsequent toxicological examination disclosed lethal levels of cyanide in his blood.
Notwithstanding Denton‘s effort to retract his complaint, the FBI continued its investigation. This probe ripened into an indictment and—in December of 2015—the grand jury returned a superseding indictment. Count 1 limned the “mailing injurious articles” charge; counts 2 through 13 charged wire and mail fraud offenses (based on a scheme to defraud suicidal people and to obtain money by false pretenses, specifically, by pretending to sell cyanide but sending Epsom salts instead);1 count 14 charged
The defendant‘s trial was scheduled to start on October 3, 2016. That morning, the defendant entered guilty pleas to the nine non-Denton counts. The trial went forward on the remaining six counts. Four of the defendant‘s fraud victims testified for the government (including one as to whom the defendant‘s fraud had not been charged). A victim‘s grandmother also testified at the government‘s behest about the uncharged fraud perpetrated against her minor granddaughter. In addition, the government introduced testimony from a British detective about yet another victim.
When the trial concluded, the jury convicted the defendant on all the tried counts, save for count 15 (witness retaliation). In post-trial proceedings, the defendant moved for
II. ANALYSIS
The defendant‘s asseverational array contains three main parts. First, he argues that the district court erred in refusing to order judgments of acquittal on counts 1 and 14. Second, he argues that the district court should have excluded certain evidence and that the failure to do so unfairly prejudiced the jury against him, necessitating a new trial on all the tried counts that resulted in convictions. Third, he alleges sentencing error as to the sentences imposed on the fraud-related counts. We address these arguments below.
Before undertaking our analysis, we pause to confirm that we review the district court‘s denial of a motion for judgment of acquittal de novo. See United States v. Gomez, 255 F.3d 31, 35 (1st Cir. 2001). Where, as here, the defendant challenges the
Although the defendant‘s motion for judgment of acquittal targets both count 1 and count 14, the circumstances attendant to this appeal counsel in favor of bifurcating our inquiry. Thus, we treat separately each of the targeted counts.
A. Judgment of Acquittal: Count 1.
It is not possible to address the motion for judgment of acquittal on count 1 in a vacuum. First, we must resolve a threshold issue. Only then can we turn to the merits of the request for an acquittal. Specifically, we must resolve an apparent discrepancy between the indictment and the proof at trial.
1. Constructive Amendment. As stated in the superseding indictment, count 1 charged the defendant with a misdemeanor (mailing nonmailable poison), together with an enhancement for “death resulting.” The indictment itself did not allude to a mens rea requirement. At trial, though, the parties and the district
“A constructive amendment occurs when the charging terms of an indictment are altered, either literally or in effect, by prosecution or court after the grand jury has last passed upon them.” United States v. McIvery, 806 F.3d 645, 652 (1st Cir. 2015) (quoting United States v. Brandao, 539 F.3d 44, 57 (1st Cir. 2008)). Constructive amendments have Fifth and Sixth Amendment implications. See id. These implications typically arise from “a mismatch between the indictment‘s description of the charged offense and some other variable,” such as the evidence offered, the jury instructions given, or the sentence imposed. Id.
In this instance, the statute of conviction provides in relevant part:
(1) Whoever knowingly deposits for mailing or delivery . . . anything declared nonmailable by this section, unless in accordance with the rules and regulations authorized to be prescribed by the Postal
Service, shall be fined under this title or imprisoned not more than one year, or both. (2) Whoever knowingly deposits for mailing or delivery . . . anything declared nonmailable by this section, whether or not transmitted in accordance with the rules and regulations authorized to be prescribed by the Postal Service, with intent to kill or injure another . . . shall be fined under this title or imprisoned not more than twenty years, or both.
(3) Whoever is convicted of any crime prohibited by this section, which has resulted in the death of any person, shall be subject also to the death penalty or to imprisonment for life.
[T]he defendant . . . knowingly deposited for mailing and delivery something declared nonmailable . . . not in accordance with rules and regulations prescribed by the United States Postal Service, in other words, potassium cyanide, a poison, which resulted in the death of a person . . . . All in violation of 18 U.S.C. § 1716(j)(3).
At trial, however, the parties and the district court treated count 1 as if the offense was charged under (j)(2) and (j)(3), not (j)(1) and (j)(3).2 During its preliminary instructions, the district court told the jurors that in order to find the defendant guilty
Although the constructive amendment of an indictment may constitute grounds for reversal of a conviction, see United States v. Bucci, 525 F.3d 116, 131 (1st Cir. 2008); cf. McIvery, 806 F.3d at 651 (reviewing unpreserved claim of constructive amendment for plain error), the defendant has not raised this issue on appeal (or, for that matter, in the district court). Except in rare instances—and this is not one of them—we have no duty to raise arguments for a party who has not seen fit to raise those arguments himself. See, e.g., United States v. Flete-Garcia, 925 F.3d 17, 38 (1st Cir. 2019), cert. denied, No. 19-5757, 2019 WL 5150648 (U.S. Oct. 15, 2019); cf. United States v. Mercado-Flores, 872 F.3d 25, 28 (1st Cir. 2017) (noting appellate court‘s obligation to raise jurisdictional issues sua sponte). At any rate, the constructive amendment did not prejudice the defendant in any respect because it had the effect of adding another element that the government was required to prove beyond a reasonable doubt. We therefore conclude that count 1 was constructively amended with the implied consent of the parties. We proceed accordingly.
The defendant‘s conduct is an actual, but-for cause of harm when that harm would not have occurred without it. See United States v. Ortiz-Carrasco, 863 F.3d 1, 5 (1st Cir. 2017) (concluding that defendant‘s conduct was but-for cause of victim‘s drowning where defendant embarked on voyage on overcrowded yola, traveled in rough seas in the dark, and had no safety equipment aboard). But-for causation is often regarded as “the minimum requirement for a finding of causation.” Id. (emphasis in original) (quoting Burrage v. United States, 134 S. Ct. 881, 888 (2014)). A defendant‘s conduct can be a but-for cause of harm even when it
Appraising the evidence in the light most favorable to the government, it was more than sufficient to ground a finding that the defendant‘s conduct was a but-for cause of Denton‘s demise. The jury saw the empty beaker and the mailer with the defendant‘s return address recovered from Denton‘s home, and it heard evidence of test results indicating that the residue in the mailer was cyanide. So, too, the jury heard evidence that a lethal quantity of cyanide had been discovered in Denton‘s blood. Finally, the jury heard testimony from investigators who had determined Denton‘s death to be a suicide and had ruled out other causes of death. If the defendant had not sent Denton a deadly dose of cyanide, the defendant could not have ingested it and died. No more was exigible to ground a finding that the defendant‘s conduct was a but-for cause of Denton‘s death.
The defendant rejoins that this conception of the chain of causation is too “literal” and that Denton‘s actions in mixing and ingesting the poison were intervening events that broke the but-for causal connection. This rejoinder blinks reality.
In an effort to change the trajectory of the debate, the defendant tries to invoke the rule of lenity. Marshaling a sampling of cases in which defendants were charged with mailing explosives under
Undaunted, the defendant claims that the rule of lenity requires construing the statute, notwithstanding its text, to exclude the conduct with which he was charged. This is wishful thinking. The rule of lenity only requires reading a criminal statute in the accused‘s favor when that statute is so unclear that courts are left to guess what Congress intended. See United States v. Ahlers, 305 F.3d 54, 62 (1st Cir. 2002). To engage the gears of the rule, the lack of clarity must be genuine: “a statute
The defendant argues that section 1716 is ambiguous because (in his view) it is meant to cover things like bombs (which are mailed to unwitting victims and kill immediately), not things like the cyanide (which he mailed to a person who specifically requested it and which kills only after some further act, such as ingestion). The text of the statute of conviction does not give this argument as much as a shred of support. As written, the statute has a plain and plausible meaning. It unambiguously prohibits mailing not only things like bombs but also poisons, insects, and scabs (which do not necessarily kill immediately). The sentencing enhancement applies whenever mailing such an injurious article “result[s] in the death” of a person. That enhancement, read in context, is not ambiguous and does not permit the distinction that the defendant attempts to insinuate into it. In short, both the superseding indictment (as constructively amended) and the government‘s proof bring count 1 comfortably within the statute‘s well-defined reach. And because we discern no relevant ambiguity, we find no basis for resorting to the rule of lenity. See id.
As a fallback, the defendant attempts to argue that the proper measure of causation was proximate cause (a more rigorous standard). See, e.g., Paroline v. United States, 134 S. Ct. 1710, 1719 (2014).
“We have made it luminously clear that ‘[a] party waives a right when he intentionally relinquishes or abandons it.‘” United States v. Orsini, 907 F.3d 115, 119 (1st Cir. 2018) (alteration in original) (quoting United States v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002)). As a general rule, waived claims are unreviewable on appeal. See id. In this instance, the defendant waived any entitlement to a proximate cause instruction. What happened here falls comfortably within the general rule of unreviewability, not within the long-odds exception to that rule. See id. at 120-21. By explicitly acquiescing in the appropriateness of a but-for causation standard, eschewing any objection to the district court‘s but-for causation instruction, and failing to request a proximate cause instruction, the defendant
If more were needed—and we doubt that it is—“[i]t is settled that, when a cause is submitted to the jury under an instruction, not patently incorrect or internally inconsistent, to which no timely objection has been lodged, the instruction becomes the law of the case.” United States v. Gomes, 969 F.2d 1290, 1294 (1st Cir. 1992); see United States v. Zanghi, 189 F.3d 71, 77-80 (1st Cir. 1999) (concluding that jury instruction increasing level of intent required to convict was “patently erroneous” and did not become the law of the case). That is precisely the situation here: the district court‘s treatment of causation in its charge to the jury was neither patently incorrect nor internally inconsistent. The court instructed on but-for causation, consistent with case law interpreting similarly worded “results” elements in other criminal statutes. See, e.g., United States v. Webb, 655 F.3d 1238, 1250, 1255-56 (11th Cir. 2011) (
The final piece of the puzzle falls easily into place. As we already have elaborated, the jury had ample evidence from which to find that the defendant‘s conduct was the but-for cause of Denton‘s death. Consequently, the district court did not err in denying the defendant‘s motion for judgment of acquittal with respect to count 1.
B. Judgment of Acquittal: Count 14.
The defendant also challenges the denial of his motion for judgment of acquittal with respect to count 14 (the witness tampering count). In his view, the evidence on this count was insufficient for two reasons. First, he contends that the government‘s proof was inadequate because it did not show that his conduct actually or proximately caused Denton‘s death. Second, he contends that the evidence was inadequate to show that he “killed” Denton within the purview of the statute of conviction. We address each contention in turn.
The statute of conviction provides in relevant part:
(a)(1) Whoever kills or attempts to kill another person, with intent to—
(A) prevent the attendance or testimony of any person in an official proceeding; [or]
. . .
(C) prevent the communication by any person to a law enforcement officer or judge of the United States of information
relating to the commission or possible commission of a Federal offense . . . shall be punished as provided [by law].
The remaining pieces of the defendant‘s causation argument—that proof of proximate cause was required to sustain a conviction under
When a crime specifies both conduct and result elements, a defendant ordinarily may not be convicted unless his conduct is both the but-for and the proximate cause of the result. See Burrage, 134 S. Ct. at 887 (citing 1 Wayne R. LaFave, Substantive Criminal Law § 6.4(a) (2d ed. 2003); Model Penal Code § 2.03 (Am. Law Inst. 1985)). As to count 14, the statute of conviction is silent regarding the nature of the requisite causal nexus. See
It is an interesting question whether
Viewing the evidence in the light most hospitable to the government, a rational jury could find that the defendant‘s conduct proximately caused Denton‘s death. After all, the evidence was sufficient to support findings that the defendant, the second time around, sent real cyanide to Denton, knowing that the cyanide was
Here, Denton‘s death was entirely foreseeable. Among other things, the defendant posted his cyanide advertisement on a suicide blog, and his avowed purpose in sending Denton genuine cyanide the second time around was to facilitate Denton‘s demise. On this record, we are satisfied that a rational jury could conclude that the defendant proximately caused Denton‘s death by mailing him cyanide with which to commit suicide.
The defendant has a fallback position as to count 14. This position hinges on the meaning of “kill” as that word is used in the statute of conviction. The defendant would have us read “kill” in that context as synonymous with “murder.” But this “kill is tantamount to murder” argument is presented only in connection
Even though the defendant eschews a mens rea attack, his comments about the meaning of “kill” might theoretically be directed to the mens rea that a defendant must possess in relation to his victim‘s death. See Schad v. Arizona, 501 U.S. 624, 640 (1991) (plurality opinion) (“At common law, murder was defined as the unlawful killing of another human being with ‘malice aforethought.‘“). The statute of conviction does not define the word “kill.” And during the charge conference, neither party requested an instruction elucidating the meaning of the word. Following the parties’ lead, the district court did not expound on the meaning in its jury instructions, and neither party objected.
In litigation as in life, timing is critically important. So it is here: the defendant did not develop his statutory “kill is tantamount to murder” argument until he filed his post-conviction motion for judgment of acquittal under
The defendant also points to
Even if “kill,” as used in
Similarly, it is neither clear nor obvious that a rational jury could not find that the defendant‘s conduct amounted to manslaughter (which, after all, is a lesser included offense of murder under federal law, see
No more need be said. For these reasons, we hold that the district court committed no reversible error in denying the defendant‘s motion for judgment of acquittal with respect to count 14.
C. Admission of Evidence.
We proceed next to the defendant‘s contention that some evidence was improperly admitted. He contends that his objections should have been sustained to certain testimony from or about the non-Denton victims, as well as to Exhibit 16 — a 113-page chart containing the contents of 484 email strings, which memorialize the defendant‘s correspondence with persons who replied to his cyanide advertisement (including both purchasers and potential purchasers). For ease in exposition, we refer to all of this body of evidence, in the aggregate, as the “anecdotal background evidence.” In the defendant‘s view, the anecdotal background evidence was either wholly or partially inadmissible under
Before any more evidence about non-Denton victims was admitted (including anecdotal background evidence), the defendant sought clarification as to whether the court had provided a “definitive ruling” because he did not want to continue “being
From then on, the parties appear to have treated the defendant‘s Rule 403 objection to the anecdotal background evidence as subject to a continuing objection (which we sometimes call a “blanket objection“). Reinforcing this blanket objection, the defendant objected from time to time to the admission of specific pieces of non-Denton evidence (including Exhibit 16).
Our case law has long permitted the use of blanket objections at or before trial as an efficacious means of preserving issues for appellate review. See United States v. Ladd, 885 F.2d 954, 958 (1st Cir. 1989). In determining whether a blanket objection sufficiently preserves a particular claim of evidentiary error, courts typically consider whether the trier had the opportunity to address the issue, see United States v. Simms, 757 F.3d 728, 733-34 (8th Cir. 2014); whether “[t]he substance of the objection . . . was thoroughly explored,” Palmerin v. City of Riverside, 794 F.2d 1409, 1413 (9th Cir. 1986); whether the objecting party was entitled to rely on the trier‘s grant of the blanket objection, see United States v. Sanchez-Hernandez, 507 F.3d 826, 831 (5th Cir. 2007); and whether testimony admitted without specific objection after a blanket objection “presented
In this instance, each of these considerations counsel in favor of concluding that the defendant‘s blanket objection adequately preserved his Rule 403 objection for appellate review. To begin, the district court had ample opportunity to address the objection before trial, as the defendant initially raised it weeks in advance. Moreover, the court explored the relevance and admissibility of the anecdotal background evidence at several points, confirmed that the defendant‘s objection was based on Rule 403, and explicitly declared that the Rule 403 balance weighed in favor of admitting the anecdotal background evidence. So, too, the defendant appears to have relied on the blanket objection; even when he lodged specific objections to particular pieces of anecdotal background evidence, he stated that he was making his “usual” objection. Finally, when the defendant did not lodge a specific objection to a specific piece of anecdotal background evidence, the information presented was substantially similar to Exhibit 16 (to which he expressly objected). Given the district court‘s repeated assurance both before and during trial that the defendant need not object to each reference to the anecdotal background evidence, the defendant‘s reliance on this assurance was reasonable.
With the issue preserved for review, we turn to its particulars. Notwithstanding the district court‘s grant of the blanket objection and the spate of follow-up objections, the court
All in all, this testimony went into excruciating detail about the non-Denton victims’ personal lives, medical issues, histories of depression, earlier suicide attempts, suicidal motivations, and the like. It was augmented, and its effect exponentially increased, by the government‘s introduction, over specific objection, of Exhibit 16.
Where, as here, objections to evidentiary rulings are preserved, review is for abuse of discretion. See United States v. Sabean, 885 F.3d 27, 35 (1st Cir. 2018). Although this standard of review is deferential, it “does not render trial court decisions impervious to scrutiny.” Ruiz-Troche v. Pepsi Cola of P.R. Bottling Co., 161 F.3d 77, 83 (1st Cir. 1998). As we have observed, abuse of discretion “sounds worse than it really is.” Schubert v. Nissan Motor Corp. in U.S.A., 148 F.3d 25, 30 (1st Cir. 1998) (quoting In re Josephson, 218 F.2d 174, 182 (1st Cir. 1954)). It simply means that “when judicial action is taken in a discretionary matter, such action cannot be set aside by a reviewing court unless it has a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.” Id. (quoting Josephson, 218 F.2d at 182).
Evidence is relevant as long as it has some tendency to make a fact of consequence more or less probable. See
To ameliorate these competing concerns, a trial court “may exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice.”
Assessing the totality of the relevant circumstances, we conclude that the district court abused its discretion in failing to exclude the anecdotal background evidence under Rule 403. Though marginally relevant, it had “the capacity . . . to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.” Old Chief, 519 U.S. at 180. A
- On direct examination, Cottle testified that he was so overwhelmed that he “didn‘t want to see [his] wife” and “didn‘t want to see [his] child.” He “was crying probably twenty, twenty-five times a day for no reason.”
- Williams testified about a myriad of factors that rendered her suicidal (including going through a “terrible” second divorce, experiencing great financial pressure, watching her neighbor shoot her dog, and undergoing a horrible car accident). She also described why she was looking for cyanide: “I knew that I didn‘t have the courage to shoot myself, and . . . I knew I didn‘t have the courage to cut myself.”
- Kirschling testified that she “suffered from major depression,” was lonely, “couldn‘t do [her] job,” and was “just in constant pain.”
- Roland testified that “severe distress” led her to look for cyanide after she was diagnosed with schizophrenia, was unable to work, and found herself homeless. She was also having “side effects from psychological medications that were
affecting [her] motor skills to the point where it became excruciatingly hard just to turn over in bed.”
There was more. Called as a government witness, Detective Quinn, testifying about Jorgensen, stated in part:
Twenty years ago, [Jorgensen] entered a public house, a bar, where people were drinking and identified four males that had bullied him while he was at childhood school and continued to bully him into young . . . adulthood. And Mr. Jorgensen was armed with a shotgun. He walked into the public house and discharged the shotgun at the people who had bullied him, fortunately, missing all of them. He then ran out of the public house, placed a shotgun into his mouth, and discharged it. Fortunately, the cartridge of the firearm left the right cheek of his face and didn‘t go up into the brain. He required extensive facial surgery . . . .
In addition, Detective Quinn told the jury about several of Jorgensen‘s botched suicide attempts. These included sitting in a tree with a noose, willing himself to jump, and swimming out to sea, waiting for “tiredness” to get “the better of him.”
So, too, Collins testified that her minor granddaughter lived with the granddaughter‘s father after her mother‘s death. That arrangement, though, “didn‘t work out.” She then moved in with her maternal grandparents but “grandma died.” She was sent “to a girls’ home and ended up with” Collins, who soon discovered that her granddaughter, then a young teenager, “ha[d] posted a
This barrage of emotionally laden testimony was merely the tip of the iceberg. Through the medium of Exhibit 16, the government displayed to the jury a mountain of emails to and from the defendant pertaining to cyanide-related transactions. Some authors wrote paragraphs explaining how their lives had fallen apart. Others emailed repeatedly, begging the defendant to respond. Taken collectively, these lachrymose emails were likely to evoke an emotional response in even the most hardened individuals. Once again, a few examples suffice to make the point:
- “[I] have been suffering an infection since birth . . . [I] don[‘]t want to continue my life . . . [I] need some potassium cyanide . . . tell me the price.”
- “I need enough C to make me go fast and painlessly . . . I keep trying to kill myself but won‘t die. . . . How much will I need how long will it take to make me sleep forever.”
- “I am ready to die and this seemed like the best method.”
- “[H]ow much can [I] get it for [I‘m] sick of this shit world.”
“I don‘t know what to expect from this email but the darkness has overtaken me and my friend.” - “Rumour has it you can hook me up with sweet release. How much, how quickly?”
This evidence permeated the record: it was as copious as it was emotionally charged. And it had virtually no probative value.
In an effort to dredge up some semblance of probative value, the government notes that it had the burden to prove the existence of the fraudulent scheme. That is true as far as it goes — but it does not take the government very far. The existence and dimensions of the scheme were amply demonstrated by proof of the defendant‘s advertisement, the number of victims, their initial contacts, and the defendant‘s responses. Although the anecdotal background evidence may have had a scintilla of probative value with respect to the existence of the fraudulent scheme, it was wholly cumulative and, thus, gratuitous. See
The short of it is that the extensive evidence as to the circumstances of the defendant‘s customers and the thought processes that led them to the brink of suicide added virtually nothing of legitimate value to the government‘s case. This evidence was not needed to prove the existence of the scheme, nor did it assist the government in proving, say, the defendant‘s
The prosecution — which has available to it the immense resources of the federal government — possesses a significant advantage in criminal cases, and there seldom is a good reason for a prosecutor to push the envelope of that advantage. Mindful of this imbalance, we consistently have “warn[ed] the government” about “the folly of . . . overkill.” United States v. Frankhauser, 80 F.3d 641, 650 (1st Cir. 1996) (quoting United States v. Arias-Montoya, 967 F.2d 708, 714 (1st Cir. 1992)). We echo this warning today.
For these reasons, we hold that the anecdotal background evidence unfairly prejudiced the defendant because it dwelled upon the desperation of severely depressed individuals in what amounted to a blatant attempt to engage and inflame the jurors’ passions. In our view, such unfair prejudice substantially outweighed whatever scant probative value the anecdotal background evidence may have had. We are left with a definite and firm conviction that the district court committed a manifest error of judgment in working the Rule 403 calculus. As a result, admitting the anecdotal background evidence was an abuse of discretion.
“An error will be treated as harmless only if it is ‘highly probable’ that the error did not contribute to the verdict.” Fulmer, 108 F.3d at 1498 (quoting United States v. Melvin, 27 F.3d 703, 708 (1st Cir. 1994)). “To sustain the verdict, the reviewing court must be able to say with a fair degree of assurance that the erroneous ruling did not substantially sway the jury.” Ruiz-Troche, 161 F.3d at 87.
[A] harmlessness determination demands a panoramic, case-specific inquiry considering, among other things, the centrality of the tainted material, its uniqueness, its prejudicial impact, the uses to which it was put during the trial, the relative strengths of the parties’ cases, and any telltales that furnish clues to the likelihood that the error affected the factfinder‘s resolution of a material issue.
United States v. Piper, 298 F.3d 47, 57 (1st Cir. 2002) (quoting United States v. Sepulveda, 15 F.3d 1161, 1182 (1st Cir. 1993)). For criminal cases, the strength or weakness of the government‘s
evidence of guilt is normally the most important integer in the harmlessness equation. Practically speaking, a reviewing court may find an error harmless when the properly admitted evidence, in and of itself, furnished overwhelming proof of the defendant‘s guilt. See Ford, 839 F.3d at 110; see United States v. Eads, 729 F.3d 769, 778 (7th Cir. 2013); Clark v. Moran, 942 F.2d 24, 27 (1st Cir. 1991). Here, we hold that the error in admitting the anecdotal background evidence was harmless as to counts 1, 5, 7, and 12 but not as to count 14.At the outset of the trial but before the jury was in the courtroom, defense counsel acknowledged that the government would not “hear much” from him as to counts 5, 7, and 12 (the Denton fraud counts). He explained that the defendant already had pleaded guilty to the non-Denton fraud counts and, thus, had admitted the existence of the fraudulent scheme. Consistent with these statements, the defense focused at trial primarily on attacking the elements of counts 1 and 14 rather than attempting to present a full-throated defense to the fraud counts. And during his summation, defense counsel stated outright that Denton was a victim of the fraudulent scheme and that counsel could “not deny that the [g]overnment” proved that scheme.
These admissions did not come out of the blue. During the trial, the government presented copious — and uncontradicted — evidence of the scheme. In addition, the government introduced
On whole-record review, we are confident that the guilty verdicts on the fraud counts were mandated by the properly admitted evidence. This evidence, standing alone, supplied overwhelming proof of the defendant‘s guilt. Thus, even though the error in admitting the anecdotal background evidence was egregious, we do not think that the jury verdicts on the fraud counts were tainted by that evidence.
We reach the same conclusion as to count 1 (mailing injurious articles resulting in death). With respect to this charge, the evidence of guilt was very strong. After the constructive amendment, see supra Part II(A)(1), the government had to prove that the defendant “knowingly deposit[ed] for mailing anything declared nonmailable . . . with intent to kill or injure another . . . [and that such mailing] resulted in the death of any person.”
This leaves count 14 (the witness tampering count). That count required proof of the defendant‘s intent to “prevent the communication by [Denton] to a law enforcement officer . . . of information relating to the commission . . . of a Federal offense.”
This conclusion is fortified by the other considerations revealed through a panoramic inquiry into the relevant circumstances. It strains credulity to imagine that the poignant nature of the anecdotal background evidence was somehow overshadowed by properly admitted evidence of the defendant‘s guilt on count 14, especially since the properly admitted evidence on this count lacked emotional valence. Common sense and human experience suggest that raw testimony about severe depression, failed suicide attempts, and the like would substantially sway a jury, whereas drier documentary evidence such as UPS records and purchase invoices would have considerably less impact.
When a panoramic inquiry into the relevant circumstances has been carried out, we are left without fair assurance that the erroneous admission of the anecdotal background evidence did not materially influence the jury‘s verdict on count 14. The anecdotal background evidence was central to the government‘s presentation of its count 14 case; it was unique; its emotional content was highly charged and its potential for prejudice was correspondingly great; and the government made powerful use of it at critical stages of the trial. These factors tilt the balance of the harmlessness equation against the government as to this count.
In an attempt to snatch victory from the jaws of defeat, the government makes two additional arguments. First, it submits that the acquittal on count 15 (witness retaliation) is a telltale clue that the jury dispassionately considered the proof as to count
Second, the government suggests that because the district court instructed the jury on several occasions that the use of certain exhibits, including Exhibit 16, must be restricted to purposes delineated in Rule 404(b) (motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident), the admission of the anecdotal background evidence was harmless. The flaws in this suggestion are at least twofold. First, the court did not give this instruction relative to any anecdotal background evidence, save for Exhibit 16. Second — and more fundamentally — the limiting instruction did nothing to insulate the jurors from the emotional clout of the challenged evidence.
That ends this aspect of the matter. We find the error in admitting the anecdotal background evidence harmless as to most counts. Count 14, though, requires a different calculus. As to
D. Sentencing.
This brings us to the defendant‘s claim of sentencing error. The defendant attempts to argue that the court erred in calculating his base offense level with respect to count 1 by analogizing that conviction to first degree murder. We deem this argument waived: the appellant‘s brief mentions it only in a cursory manner, without citation to any relevant authority. See Zannino, 895 F.2d at 17.
The defendant also contends that the concurrent twenty-year sentences on the wire and mail fraud counts (counts 2 through 13) are unconstitutional. Because this claim relates only to sentences imposed on the fraud counts, it is unaffected by our vacation of the jury verdict on count 14.
The defendant‘s claim rests on the
Here, the defendant complains that his concurrent twenty-year sentences on the wire and mail fraud counts were grossly disproportionate to the offenses of conviction. Because the defendant proffers this plaint for the first time on appeal, our review is for plain error. See United States v. Blodgett, 872 F.3d 66, 71 (1st Cir. 2017); Duarte, 246 F.3d at 60.
As a general rule, defining federal crimes and establishing appropriate penalties are matters within Congress‘s exclusive domain. See Polk, 546 F.3d at 76-77. Congress has made a the reasoned judgment that a fraud offense can, under certain circumstances, be so blameworthy as to warrant a twenty-year term of immurement. See
In this instance, the challenged sentences were within — though at the apex of — the penalties that Congress established
The defendant demurs. In his repast, he trivializes the scope of his cruel and cynical scheme by pointing to his relatively few victims (nine) and the relatively meager revenues ($2,732.55)
These arguments lack force. They ignore not only the fragility of the defendant‘s victims but also the broad scope and breathtaking cruelty of the defendant‘s scheme. By the same token, they ignore the sordid fact that no fewer than 274 desperate individuals, all of whom were contemplating suicide, reached out to the defendant in response to his ads. Considering all of the relevant circumstances, there is no principled way for us to say that the sentences imposed were grossly disproportionate to the conduct surrounding the offenses of conviction.
The sentencing guidelines do not lead us to a different conclusion. Although the guideline sentencing range for a garden-variety fraud case is well below twenty years, the guidelines are designed for cases that fall within the “heartland” of a given offense. Kimbrough v. United States, 552 U.S. 85, 109 (2007) (quoting Rita v. United States, 551 U.S. 338, 351 (2007)). The case at hand is well outside the heartland of fraud offenses: the defendant‘s conduct and his subsequent coverup were far more egregious than that entailed in a run-of-the-mill fraudulent
If more were needed — and we doubt that it is — the Supreme Court has repeatedly upheld lengthy sentences against
To say more would be to paint the lily. We hold, without serious question, that the concurrent twenty-year sentences on counts 2 through 13 are not grossly disproportionate to the offenses of conviction. Thus, they do not offend the
III. CONCLUSION
We need go no further. For the reasons elucidated above, the sentences imposed on counts 1 through 13 are affirmed. The judgment on count 14 is vacated and that count is remanded for further proceedings consistent with this opinion.
Affirmed in part, vacated in part, and remanded.