It is with a sense of
deja vu
that we revisit a tawdry chapter in the annals of Massachusetts law enforcement known familiarly as “Examscam,” a network of alleged conspiracies aimed at purloining advance copies of civil service examinations and selling them to police officers so they could fraudulently obtain promotions. Earlier this year, we disposed of a group of appeals arising from the prosecution of nine gendarmes and a state legislative aide said to be mired in the muck of Examscam.
See United States v. Doherty,
I. BACKGROUND
The general nature of the overall scheme has been expounded in great detail in
Doherty,
On April 21, 1979, the MDPA administered a sergeant’s examination for the Metropolitan District Commission (MDC). Pri- or to that date, Doherty and Clemente gave an advance copy of the test, with an answer sheet, to Nazzaro, an MDC police officer. Nazzaro paid Clemente $3,000 in cash. Not surprisingly, appellant performed superbly on the exam. On April 18, 1980, he was promoted to the rank of sergeant. When the MDPA announced that a lieutenant’s examination would be held for the MDC on April 23, 1983, Nazza-ro again purchased a stolen advance copy of the test and answers, paying Clemente another $3,000. The examination went well, and appellant became a lieutenant on August 19, 1984.
Thereafter, the tangled web began to fray. A federal grand jury was convened to investigate allegations that certain law enforcement officers had provided illegal assistance to individuals seeking appointments to, or promotions within, local police departments. On May 15, 1986, appellant testified under oath before the grand jury. By that time, the web was fast unravelling, and the government suspected that Nazza-ro perjured himself. The grand jury charged him with two counts of conspiracy to commit mail fraud, 18 U.S.C. § 371, and two counts of perjury, 18 U.S.C. § 1623. The conspiracy counts charged that appellant purchased and used illegal, advance copies of two civil service promotions exams from Clemente, his coconspirator and fellow police officer. Count One related to the 1979 sergeant’s examination; Count Two related to the 1983 lieutenant’s examination. The perjury counts were paired along the same axis: Count Three related to Nazzaro’s false grand jury testimony concerning the sergeant’s examination; and Count Four related to his testimony anent the lieutenant’s examination.
*1161 At trial in the United States District Court for the District of Massachusetts, Clemente (who had pled guilty to racketeering charges) was the prosecution’s star witness. He was, apparently, convincing. The jury found defendant guilty on all counts. This appeal ensued.
II. ISSUES PRESENTED
Many of Nazzaro’s initiatives smack more of hope than reason, and can be rejected without exegetic comment. When his briefs are stripped of prettified ruffles and rhetorical flourishes, two sets of questions merit detailed discussion: (1) Were either or both of the conspiracy counts time-barred? (2) Did the government prove that Nazzaro’s allegedly false statements were material to the grand jury’s inquiry? Alternatively, did the district court botch its handling of the materiality issue? Having been supplied with no ready-made answer sheet, we deal with these queries in extenso. We also treat briefly with two additional points. The first of these concerns juror impartiality. The second concerns what defendant tells us is a vital evidentiary ruling, influencing all counts.
III. THE CONSPIRACY COUNTS
Appellant argues that the 5-year statute of limitations, 18 U.S.C. § 3282, barred prosecution of the conspiracy counts. We believe that this contention impacts differently upon each of the two affected counts.
A. Count One.
The indictment against Nazzaro was returned on June 21, 1988. All of the critical events pertaining to Count One— the theft of the test papers, the advance dissemination of questions and answers, defendant’s payment to Clemente, the examination session, and defendant’s ensuing elevation — took place before 1980 ended. Except for the fact that Nazzaro continued to receive his sergeant’s salary during 1983 and 1984, no overt act appurtenant to this conspiracy occurred within the 5-year limitation period. On these facts, Doherty — a case decided by us after appellant was convicted — is dispositive as to the first count.
In the case of Robert Clemente, a code-fendant of Doherty’s, we reversed a conspiracy conviction on materially identical facts.
Doherty,
At oral argument before us, the government conceded that, as to the sergeant’s examination, the record facts concerning Nazzaro were materially indistinguishable from those concerning Robert Clemente. That being so, the ball game is over. As a panel, we are bound to adhere to prior circuit precedent.
See Jusino v. Zayas,
B. Count Two.
Count Two involved a distinct, separately charged conspiracy with respect to the lieutenant’s examination. The facts are different in an important respect, for here defendant’s challenge falls between the
Doherty
stools.
Compare, e.g., Doherty,
In
Doherty,
the government argued that a conspiracy remains in existence until its objective is achieved; and that obtaining higher salary payments was an objective of the prototypical Examscam conspiracy, making the continuing receipt of such salary payments “overt acts” for the purpose of defining the conspiracy’s temporal scope.
It may seem reasonable to say that the act of receiving a conspiratorial objective is part of the conspiracy, where the receiving consists of one action, or a handful of actions, taking place over a limited period of time, or where some evidence exists that the special dangers attendant to conspiracies, the dangers of “concerted” activity and “group association” for criminal purposes, remain present until the payoff is received.
Id. Judge Breyer then turned to the other side of the coin:
[WJhere receiving the payoff merely consists of a lengthy, indefinite series of ordinary, typically noncriminal, unilateral actions, such as receiving salary payments, and there is no evidence that any concerted activity posing the special societal dangers of conspiracy is still taking place, we do not see how one can reasonably say that the conspiracy continues.
Id.
Any other stance “would for all practical purposes wipe out the statute of limitations” in these kinds of conspiracy cases.
Id.
at 62 (quoting
Grunewald v. United States,
The government’s case on the second count of the instant indictment differs from, say, Robert Clemente’s case (or the case under Count One, for that matter). The difference is that more transpired within the limitation period than a “lengthy, indefinite series of ordinary” salary payments. The “more” comprises mainly a discrete capstone act — the offering and acceptance of the coveted promotion — which also occurred within the relevant time frame. Does this difference afford the basis for a meaningful distinction? We think that it does.
In the first place, the language of Doherty, read as a whole and in context, cuts sharply in favor of the government. The promotion, including Nazzaro’s acceptance of it, was charged as an object of the conspiracy 1 and was, in the parlance of Doherty, a singular occurrence, “one action ... taking place over a limited period of time.” Id. at 61. The promotion in no way resembled the “lengthy, indefinite series” of acts which Doherty held to be too attenuated a temporal link. And, as Doherty explained, “[t]he [Examscam] scheme ... simply was a scheme dishonestly to obtain, and to help others obtain, promotions.” Id. at 58.
Moreover, the
Doherty
panel was meticulous in distinguishing a line of cases cited by the government on the basis that “[i]n each of those cases, the receipt of payment was one or a few discrete events, not an indefinite series continuing long after any active cooperation ceased.”
Id.
at 61-62. Nazzaro’s promotion, unlike ongoing salary installments, seems to be a “discrete
*1163
event[ ],” having far more in common with the cases which
Doherty
distinguished,
see, e.g., United States v. Girard,
We believe it to be of decretory significance that, in classifying Nazzaro’s promotion as an overt act in furtherance of the conspiracy for limitation purposes, we abide by, and promote, the policies which underlay
Doherty.
There, we developed a nearly disjunctive standard
2
for determining a conspiracy’s scope for prescriptive purposes: the “payoff” should be considered as part and parcel of the conspiracy either “where the receiving consists of one action ... or where some evidence exists that the special dangers attendant to conspiracies ... remain present until the payoff is received.”
Doherty,
The origins of this criterion are important. The Doherty court wanted to avoid stripping statutes of limitations of all meaning, a result that too easily could have occurred if each successive salary payment were to be considered an overt act for purposes of prosecuting a conspiracy charge. Thus, “where receiving the payoff merely consists of a lengthy, indefinite series of ordinary, typically noncriminai, unilateral actions, such as receiving salary payments ... we do not see how one can reasonably say that the conspiracy continues.” Id. (emphasis supplied). In a situation like Robert Clemente’s, salary payments at the new, fraudulently obtained rank could continue without limit of time, week by week, month by month, year by year. This would mean that the statute of limitations would be left with no fixed outer rim — a result which Doherty found untenable.
Logically, the fact that the sought-after promotion occurred within the prescriptive period should produce a decisive difference. As Doherty makes manifest, a concern for preserving the meaningfulness of statutes of limitations lends precedence to considerations of time and definiteness. Nazzaro’s acceptance of the lieutenancy slips neatly within this analytic integument. Not only was the promotion the be-all and end-all of the scheme, but it was also within the conspirators’ contemplation and comprised a single, readily foreseeable event, closely linked in time and purport with the theft and delivery of the examination. There is no unfairness, under the facts of this case, in beginning the temporal march at the point when Nazzaro raised his hand to take the oath of his new (fraudulently won) office. As we see it, the goal of preserving the significance of statutes of limitations, with its concomitant emphasis on factors such as the length and definiteness of a conspirator’s actions, militates strongly against appellant’s interpretation.
To be sure, the question is not free from doubt. Appellant contends, correctly, that
Doherty
suggests consideration should be given to whether an activity is “ordinary,” “typically noncriminal” and “unilateral.”
We explained in a previous conspiracy case that the conspirators’ motives, designs, and objectives can “transmogrify [an] innocent transaction into an overt act carrying undeniable criminal consequences.”
United States v. Cintolo,
We sum up. In a conspiracy case, the statute runs from the date of the last overt act in furtherance of the conspiracy.
Grunewald v. United States,
IV. THE PERJURY COUNTS
Appellant was also convicted of two counts of perjury. 3 Both counts arose out of testimony which he gave to the federal grand jury on May 15, 1986. With reference to the sergeant’s exam, Nazzaro testified, inter alia:
Q. Did you yourself obtain any unfair advantage in taking that exam?
A. No, I did not.
Q. Did you have a copy of that exam prior to the time it was given in April, 1979?
A. No, I did not.
Q. Did Gerald Clemente give you a copy of that exam prior to your taking that exam in April, 1979?
A. No, he did not.
Q. At any point in time have you paid Gerald Clemente any money?
A. No, I have not.
•}: * * * * *
Q. Did you have any discussions whatsoever with Gerald Clemente with regard to the 1979 sergeant’s examination, whether before or after the date that examination was given?
A. No, I did not.
In regard to the lieutenant’s examination, Nazzaro gave strikingly similar testimony:
Q. Did you get a copy of the exam from any person prior to taking the exam in April, 1983?
*1165 A. No, I did not.
Q. Did you receive any unfair advantage in your taking of that exam?
A. No, I did not.
Q. Did you receive or obtain a copy or information pertaining to the answers to the exam?
A. No, I did not.
Q. Prior to taking the exam, that is?
A. No, I did not.
* * * * * *
Q. Did you have any discussions whatsoever with Gerald Clemente with regard to the 1983 lieutenant’s examination, either before or after the giving of that examination?
A. No, I did not.
On appeal, defendant does not challenge the knowing falsity of these declarations. Instead, he concentrates his fire on materiality. His initial foray goes hand in glove with his argument anent the conspiracy counts; he contends that his testimony was not material to the scope of the grand jury inquiry because the events about which he testified fell beyond the statute of limitations. Since Nazzaro cannot be prosecuted for his activities, the thesis runs, his testimony concerning those activities is necessarily immaterial, as the inquiry powers of a grand jury extend no further than the boundaries of the criminal statutes whose violation the jurors seek to probe.
Appellant is whistling past the graveyard. The inquiry powers of a grand jury are not so tightly constricted. To be “material,” testimony need not directly concern an element of a crime for which the grand jury may indict.
See, e.g., United States v. Doulin,
Even if we were to presume that all of the activities about which Nazzaro testified fell outside the statute of limitations — and the events connected with Count Four clearly did not,
see supra
Part III(B) — appellant’s argument fails to appreciate the relationship between his testimony and the series of events which the grand jury was properly investigating. Without question, Nazzaro’s testimony bore crucially upon the activities of Gerald Clemente, the kingfish of the master conspiracy. It also had the potential of providing valuable leads as to how Examscam worked, how long it lasted, and who participated in it. The testimony was “capable of influencing the tribunal on the issue[s] before it,”
Scivola,
Appellant’s next contention is equally spavined. He argues that the government failed to furnish sufficient evidence that his testimony was within the reach of the grand jury’s inquiry. He suggests that, perhaps, the government should have proved materiality “by calling the foreman or some other member of the Grand Jury to establish the investigation’s scope.” Appellant’s Brief at 27. But, there are many acceptable ways of proving the scope of a probe undertaken by a duly empaneled grand jury.
See United States v. Ostertag,
Appellant’s third assault on materiality has three interrelated aspects. Nazzaro complains (1) that the district court erred in neglecting to submit the question to the jury; (2) that the failure violated his rights under the sixth amendment,
see, e.g., United States v. Argentine,
It is well settled, on the highest and best authority, that the materiality of per-jurious testimony is within the exclusive domain of the court, not the jury.
See Sinclair v. United States,
Nazzaro’s contention that the court’s jury instructions were erroneous because they did not specifically say that defendant had to “knowingly make false statements,” using these exact words, need not occupy us for long. We do not believe that this objection to the charge was adequately preserved, Fed.R.Crim.P. 30, and defendant’s point, such as it may be, is thus reviewable only for plain error.
See United States v. Griffin,
In sum, it is the judge’s responsibility to ensure that the jury understands and appreciates the applicable law, and he is entitled to appreciable leeway in the manner of expression. In this instance, the jury instructions, viewed in their entirety, satisfactorily informed the jury of the statute’s scienter requirement. We discern no error, plain or otherwise.
Nazzaro’s last point on this score is that the lower court failed to make an explicit finding of materiality on the record. That is true — and we would prefer that it were otherwise. Even on an issue such as materiality, clearly for the court, express findings are helpful. Such findings not only insure that all the appropriate bases are touched, but serve to explicate the trial judge’s reasoning. We value such insights. Without them, an appellate court may, at times, be forced to remand in order to apprehend the genesis of what transpired below, and the judge’s rationale.
E.g., Myers v. Gulf Oil Coryp.,
Be that as it may, the shortcoming is more apparent than real. That the district court considered, and found, materiality is not in doubt: in effect, the court told the jury during the charge that it had resolved the issue of materiality in the government’s favor. And, materiality is a question of law. See supra p. 1166. As such, it is subject to de novo review on appeal. The circumstances of this case are of a nature that we can, even unaided by expository guidance from the nisi prius court, accurately determine that the questions and answers were material to the grand jury’s investigation. Vacating the judgment is not required.
V. POTPOURRI
Defendant has fired two further shots which merit mention, although neither demands extensive discussion. We address each assertion separately.
A. The Police Officers’ Conviction.
During jury deliberations, appellant’s counsel brought to the court’s attention newspaper articles concerning the conviction of certain Boston police officers the day before on extortion and racketeering charges. He asked that the court interrupt the deliberations and engage in an individual voir dire as to the unsequestered jurors’ exposure to this publicity. The court denied the motion. Appellant assigns error to the denial.
The judge in a criminal case need not automatically accede to a voir dire request whenever the boggart of possible prejudicial influence is raised by a party in interest. Rather, the law wisely affords the trier — who is on the front lines, sensitive to the nuances of the case before him — substantial discretion in determining whether to interrogate jurors, and if so, when and how.
See Ristaino v. Ross,
Here, the newspaper stories cited by Nazzaro concerned not his case, or one like it, but a disparate matter: officers from a different police department had been convicted of an entirely different set of crimes. The nexus between the articles and the case on trial ranged somewhere between slim and none; the potential for prejudice was correspondingly farfetched. The judge, throughout the trial, had repeatedly cautioned the jurors against extra-judicial influences, media included. All in all, we think that the refusal to order a voir dire
*1168
was well within the district court's discretion.
Compare, e.g., United States v. Maceo,
B. Defendant’s Commendations.
At trial, defendant attempted to offer into evidence his resume and other anecdotal proof of commendations received by him in military service and as a police officer. He also sought to show that a medal was bestowed upon him for special valor. The district court rejected the proffer. We decline to upset its ruling.
Nazzaro argues that evidence of such awards and commendations comprised “character evidence,” admissible under Fed.R.Evid. 404(a)(1) (allowing an accused to offer “[ejvidence of a pertinent trait of character”). Assuming, without deciding, that these materials can be considered “character evidence” at all, the traits which they purport to show — bravery, attention to duty, perhaps community spirit — were hardly “pertinent” to the crimes of which Nazzaro stood accused. The district court, which has some flexibility in admitting or excluding evidence on the basis of relevancy,
see, e.g., United States v. Tierney,
There was no abuse of discretion attending the court’s decision to exclude the proffered material.
VI. CONCLUSION
We need go no further. The examination is over and the scoresheet compiled. For the reasons stated, the government’s case under Count One fails to receive a passing grade. The three remaining convictions may stand.
The judgment of conviction is affirmed as to Counts Two, Three, and Four and reversed as to Count One.
Notes
. As charged in the indictment, the Count Two conspiracy had dual objects: defendant was (1) to "be provided illegal assistance in taking the April 23, 1983, civil service examination for promotion to lieutenant in the MDC Police Department”; and (2) to “be pro-noted to the rank of lieutenant in the MDC Police Department, and thereby receive the benefits of such promotion.” We are quick to caution that merely charging that an overt act was an object of the conspiracy is, by itself, insufficient to keep open the limitation period. Indeed, the indictment returned against Robert Clemente said "that [ongoing] salary payments were an object of the conspiracy.”
Doherty,
. The dichotomy is not perfect. Some payoffs may meet both criteria.
. We use the term colloquially. To be precise, appellant was adjudged to have violated 18 U.S.C. § 1623, which provides in relevant part:
Whoever under oath ... in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration ... shall be fined not more than $10,000 or imprisoned not more than five years, or both.
18 U.S.C. § 1623(a).
. The caselaw upon which appellant relies is inapposite. By and large, his cases involve crimes other than perjury.
See, e.g., United States v. Halbert,