Defendant-Appellant John G. Rowland, the former governor of Connecticut, came under scrutiny in 2012 for his efforts to
Rowland now appeals his conviction and sentence. His primary argument on appeal is that 18 U.S.C. § 1519, which prohibits “knowingly ... falsifying] ... any record, [or] document,” does not apply to his conduct: namely, preparing contracts that purported to establish business consulting relationships with political candidates or their businesses, when in fact the parties were negotiating for him to provide political consulting services to the candidates’ campaigns. He also asserts a Brady violation based on the government’s alleged failure to disclose statements made by Lisa Wilson-Foley in an interview with investigators. Finally, he challenges the District Court’s evidentiary rulings, jury instructions, and application of the Sentencing Guidelines.
For the reasons set forth below, we AFFIRM the judgment of the District Court. We conclude that the broad language of § 1519 encompasses the creation of documents — like the contracts at issue here — that misrepresent the true nature of the parties’ negotiations, when the documents are created in order to frustrate a possible future government investigation. We reject Rowland’s assertion that principles of contract law prevent us from concluding that documents styled as contracts are “falsified” within the meaning of the statute. We also determine that the government adequately disclosed Wilson-Fo-le/s statements to Rowland, and that even if it did not, he is not able to show that he was prejudiced by the deficiency. Finally, we reject his challenges to the District Court’s other rulings at trial and at sentencing.
BACKGROUND
John G. Rowland, the former governor of Connecticut, resigned that post in 2004 amid a corruption scandal, and later pled guilty to a federal charge of conspiracy to commit honest-services and tax fraud. After serving his sentence, Rowland sought to use his political experience by doing political consulting work on behalf of Republican candidates seeking federal office in Connecticut. The instant charges stem from his efforts to secure employment on two campaigns: the 2010 campaign of Mark Greenberg and the 2012 campaign of Lisa Wilson-Foley.
Rowland and Greenberg first met in the summer of 2009, when Greenberg told Rowland he was considering a run for the United States Senate. Rowland suggested that Greenberg “think about Congress” and repeatedly offered to serve as a paid consultant for the campaign. Gov’t App. at 23 (Tr. 91:24). Rowland told Greenberg he did not want to be paid by the campaign— which would have had to report his employment — but instead wanted to be paid by Greenberg’s business or charitable interests. Later that year, Rowland pre
Rowland met Wilson-Foley two years later, in September 2011. Rowland contacted Wilson-Foley — who by then had declared her Congressional candidacy — and her husband, Brian Foley, with “an idea to run by [them]”: namely, that he would take on a paid role in her campaign. Gov’t App. at 716. Wilson-Foley and her husband believed that Rowland could be helpful to the campaign, but were concerned that (in Foley’s words) “having a former governor who was a convicted felon connected to the campaign as an advisor” could potentially jeopardize her candidacy. Gov’t App. at 199 (Tr. 796:17-19). Several of Wilson-Foley’s staffers and friends urged her to remain at a distance from Rowland.
Foley, who headed Apple Rehab (“Apple”), a nursing home company, made a suggestion: Apple would hire Rowland as a consultant, but in reality Rowland would work primarily for Wilson-Foley’s campaign. Because Rowland would be paid by Apple rather than by the campaign, they believed that by this stratagem they could avoid the requirement that his employment be publicly reported to FEC.
After this agreement was finalized, Rowland worked on Wilson-Foley’s campaign almost daily, vetted press releases, used a campaign e-mail address, and received access to the campaign calendar. He attended staff meetings and was involved with communications strategy and fund-raising. Rowland also did some work for Apple during this period: He met with Apple staff on eight to ten occasions, conducted research at - Apple’s request about the nursing home industry in Connecticut, helped Apple hire a new lobbyist, and advised Apple on union issues, among other tasks. The record indicates,-however, that Rowland’s campaign involvement may have substantially exceeded the amount of work he performed on behalf of Apple. For example, during the relevant period, Rowland participated in 787 e-mail exchanges about the campaign, but only 63 e-mail exchanges regarding Apple, and 23 e-mail exchanges about both Apple and the campaign.
Rowland’s relationship with the Wilson-Foley campaign became public in April 2012. Although Wilson-Foley, Foley, and Rowland denied anything improper about the arrangement, Rowland’s ties to the campaign and Apple ended shortly thereafter. After the disclosures, the federal
In June 2014, a grand jury returned an indictment charging Rowland with (1) falsification of records in a federal investigation in violation of 18 U.S.C. § 1519, based on the Greenberg contract; (2) conspiracy to commit various offenses in violation of 18 U.S.C. § 371, based on an alleged unlawful conspiracy with Wilson-Foley and Foley; (3) falsification of records in a federal investigation in violation of 18 U.S.C. §§ 1519 and 2, based on the Foley contract; (4) two counts of causing the submission of false statements to the FEC in violation of 18 U.S.C. §§ 1001(a)(2) and 2, based on the omission of Rowland’s payments from two FEC reports filed by the Wilson-Foley campaign; and (5) two counts of causing illegal campaign contributions in violation of 2 U.S.C. §§ 441a(a)(l)(A), 441a(f), and 437g(d)(l)(A)(ii) and 18 U.S.C. § 2, based on Foley’s payments to Rowland for his campaign work in 2011 and 2012.
Following a jury trial, Rowland was convicted on all counts. The District Court denied Rowland’s motion for a new trial on the basis of alleged Brady violations: namely, the government’s alleged failure to disclose certain statements made by Wilson-Foley at an investigatory interview. Rowland was sentenced to 30 months’ imprisonment and three years of supervised release. He now appeals both his conviction and sentence.
DISCUSSION
Rowland’s primary argument on appeal is that the evidence did not support his convictions under 18 U.S.C. § 1519 because the contract he offered to Greenberg and the contract he signed with the law office of Apple’s lawyer, Christian Shelton, were not “falsified” within the meaning of the statute. He also argues that he is entitled to a new trial because the government improperly withheld Brady material from the defense. Finally, he raises a number of other issues relating to the District Court’s evidentiary rulings, its jury instructions, and his sentence.'We address these arguments in turn.
I. 18 U.S.C. § 1519
We review Rowland’s challenge to the sufficiency of the evidence de novo, viewing the evidence “in the light most favorable to the government, with all reasonable inferences drawn in its favor.” United States v. Mi Sun Cho,
Rowland was convicted of two counts of violating 18 U.S.C. § 1519, an obstruction of justice statute that was passed in 2002 as part of the Sarbanes-Oxley Act. The statute prohibits
knowingly altering], destroying], mutilating], concealing], covering] up, falsifying], or making] h false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States ... or in relation to or contemplation of any such matter or case.
18 U.S.C. § 1519. The government contended that Rowland “falsified] ... documents]” when he (1) prepared the contract proposal that he presented to Greenberg in 2009, and (2) drafted the contract with Brian Foley, Apple, and Apple’s lawyer, Christian Shelton, in 2011.
A. Meaning of “Falsify”
Rowland first argues that the documents could not be “falsified” within the meaning of the statute because to “falsify” means only to tamper with, a preexisting
“Our starting point in statutory interpretation is the statute’s plain meaning, if it has one.” United States v. Dauray,
We begin with the text. Where, as here, there is no statutory definition of a term, we consider “the ordinary, commonsense meaning of the words.” Dauray,
Webster’s Third New International Dictionary offers two relevant definitions of “falsify.” The first is the definition offered by Rowland: “to make false by mutilation or addition: tamper with.” Falsify, Webster’s Third New International Dictionary, Unabridged (2002). But the second supports the government’s position here: “to represent falsely: misrepresent, distort.” Id.-, see also Falsify, Oxford English Dictionary (2d ed. 1989) (defining “falsify” as “[t]o give a false account of; to misrepresent”). Dictionary definitions thus confirm that, in common usage, it is acceptable to say that someone “falsifies” a document when he creates a document that misrepresents the truth.
We acknowledge that, as Rowland points out, the Supreme Court has cautioned against overreliance on dictionary definitions in interpreting this particular statute. See Yates,
First, § 1519’s caption is “Destruction, alteration, or falsification of records in Federal investigations and bankruptcy.” In Yates, the plurality concluded that this caption pointed away from interpreting the statute’s phrase “tangible object” to include a fish because the caption “conveys no suggestion that the section prohibits spoliation of any and all physical evidence, however remote from records.” Id. at 1083. Rather, § 1519, the plurality observed, was intended to sweep in only “records, documents, or devices closely associated with them.” Id. Here, unlike in Yates, interpreting “falsify” — in accordance with its dictionary definition' — to include the creation of a document fits comfortably within the general purview of the statute suggested by the title.
Second, Rowland’s preferred definition of “falsify” would overlap with other verbs in the statute. Cf. id. at 1085 (rejecting government’s interpretation because it would “render superfluous” another statutory provision). He argues that “falsify”
Rowland argues that the interpretive canon of noscitur a sociis — “a word is known by the company it keeps,” Yates,
To the extent any ambiguity remains, legislative history also supports the government’s contention that creating a new document can violate § 1519: “Section 1519 is meant to apply broadly to any acts to destroy or fabricate physical evidence so long as they are done with the intent to obstruct, impede or influence the investigation or proper administration of any matter, and such matter is within the jurisdiction of an agency of the United States, or such acts done either in relation to or in contemplation of such a matter or investigation.” S. Rep. No. 107-146, at 14 (2002) (emphasis added).
B. Falsity of Rowland Contracts
Having concluded that a defendant may violate § 1519 by creating a document that is false or that misrepresents the truth — that is, was “falsified”— we turn to the question whether the contracts at issue here were “falsified.”
Rowland’s primary support for his claim that the contracts at issue were not “falsified” lies in United States v. Blankenship,
The court vacated the defendant’s conviction, reasoning that the contracts between the defendant and the other company were not “false.” Id. at 1132-36. The court began its analysis with the proposition that
there are only two ways in which a contract can possibly be considered “false.” First, a contract is false if aperson forges or alters it.... The only other way in which a contract can be “false” is if it contains factual misrepresentations.
Id. at 1132. The court concluded that promises made in a contract are not “false,” even if “neither party actually intended to carry through on their promises,” because “[a] ‘promise’ contained in a contract is not a certification that the promisor will actually perform the specified acts, or presently intends to perform those acts.” Id. at 1133. Instead, the court observed, a contract simply creates a legal relationship requiring either performance or payment of damages. Id. at 1134.
Although in some circumstances, we might agree with these observations, our approach diverges from that of the Eleventh Circuit. We think that importing principles of contract law into the interpretation of this criminal statute muddies the issues rather than clarifies them. In our view, a written contract may be “falsified” for purposes of § 1519 if it misrepresents the true nature of the parties’ agreement. Here, Rowland purported to memorialize the terms of his arrangements with Green-berg and the Foleys in written documents. In fact, according to the government’s evidence at trial, those documents intentionally did not reflect the arrangement contemplated by the parties, which involved Rowland providing political consulting to Greenberg’s and Wilson-Foley’s campaigns. Instead, the documents reflected and were designed to reflect that he would be providing business consulting services to their corporate or charitable interests. If Rowland had written a memo to his file purporting to summarize the negotiations in this misleading way (that is, as business rather than political consulting), we think it plain that the memo would properly have been treated as a “falsified” document: that is, it would have misrepresented the conversations on which it was. based. Where the government is able to prove the knowledge and intent elements of the statute as well, .that Rowland presented his notes in the form of a contract does not avoid his criminal liability under § 1519.
Our decision in United States v. Jespersen,
Rowland’s use of the draft Greenberg contract as- part of his effort to derail the government’s investigation in 2013 does not conclusively establish his liability, but it does illustrate how the document falsified — i.e., misrepresented — the true relationship between the parties. In a letter to prosecutors, Rowland’s counsel wrote that
The government’s case that the Wilson-Foley contract was falsified is even stronger. First, the contract purported to establish a relationship between Rowland and Christian Shelton, Apple’s attorney, when Rowland was in fact retained primarily to provide services to Lisa Wilson-Foley’s political campaign. As Shelton wrote in an e-mail to Foley, the drafters put Shelton’s name on the contract to avoid direct “connections” between Rowland and Wilson-Foley, because of “Rowland’s background and the compliance issue that creates.” Gov’t App. at 724. During the drafting process, Rowland suggested that the contract should use his corporate identity— JGR Associates, LLC — rather than his name, for “more cover.” App. at 562.
Because the jury was entitled to conclude that both the Greenberg and Foley contracts were “falsified” in the sense that they were created to misrepresent the true relationships among the parties, Rowland’s convictions under § 1519 stand, and we need not reach his argument that the “prejudicial spillover” from the § 1519 evidence requires us to overturn his convictions on all other counts.
II. Alleged Brady Violation
Next, Rowland argues that he is entitled to a new trial because the government did not comply with its disclosure obligations under Brady v. Maryland,
“Brady requires that the government disclose material evidence favorable to a criminal defendant.” United States v. Mahaffy,
When reviewing alleged Brady violations, we “examine the record de novo to determine whether the information in question is material as a matter of law.” Mahaffy,
Rowland bases his assertion of a Brady violation on (1) an affidavit by Craig Raabe, Wilson-Foley’s attorney at the time of the interview with the government, and (2) an e-mail and notes written by another lawyer for the Foley family, Jessica Santos. According to Raabe, the MOI was incomplete in several respects, one of which Rowland identifies as a possible Brady violation. Raabe asserts that, despite pressure from the government during a break in the interview, Wilson-Foley refused to adopt the government’s view that Rowland’s work for Apple was a “sham” rather than a real job. App. at 446-47. Similarly, Santos’s notes from the interview reflect that Wilson-Foley told the government that “it didn’t ring out to her that Brian hired him as a sham; she didn’t know this at the time.” Id. at 513. Wilson-Foley’s rejection of the government’s characterization of Rowland’s job as a “sham” is not expressly recorded in the MOI. After that interview, the government withdrew the joint plea agreement it had offered Foley and Wilson-Foley, under which Wilson-Foley would not have been prosecuted.
Rowland contends that Wilson-Foley’s refusal to accept the government’s characterization of his job as a “sham” tends to exculpate him by casting doubt on one of the government’s key claims at trial: that when Rowland wrote “I get it” in an e-mail to Brian Foley, he was referring to the need to conceal their unlawful scheme to “employ” Rowland at Apple in exchange for services that he would actually provide to the campaign.
But the Raabe affidavit and Santos notes are basically consistent with the MOI, which was disclosed to Rowland. According to the MOI, Wilson-Foley denied telling her campaign manager, Chris Co-vucci, that “it was good to have Mr. Rowland working for her husband and there was no concern with Mr. Rowland and the FEC filings.” Gov’t App. at 868. When she was asked about Rowland’s e-mail reminding her that' he was a “volunteer,” she told the government that “it did not register to her that her husband, Brian, was paying Mr. Rowland.” Id. In other words, the MOI records Wilson-Foley’s denial of a connection between her campaign and
In addition, as the District Court found, Wilson-Foley’s position that Rowland’s employment with Apple was not a “sham” because she expected Rowland to do some work there was already known to the defense from other evidence. “[E]vi-dence is not considered to have been suppressed within the meaning of the Brady doctrine if the defendant or his attorney either knew, or should have known, of the essential facts permitting him to take advantage of that evidence.” United States v. Paulino,
Rowland argues that he could have used Wilson-Foley’s statements to impeach Brian Foley’s testimony by emphasizing that Wilson-Foley had originally stuck to her story that Rowland was a volunteer for her campaign with a legitimate job at Apple. But Rowland had abundant other evidence with which to impeach Brian Foley, and in fact Rowland’s counsel did cross-examine him on the fact that the original “package” plea agreement had changed. Gov’t. App. at 296. “[W]here the undisclosed evidence merely furnishes, an additional basis on which to challenge a witness whose credibility has already been shown to be questionable or who is subject to extensive attack by reason of other evidence, the undisclosed evidence may be cumulative, and hence not material.” United States v. Avellino,
Furthermore, Rowland has not shown that the Wilson-Foley statements put “the whole case in such a different light as to undermine confidence in the verdict.” Youngblood,
Against the backdrop of this powerful documentary and testimonial evidence of Rowland’s guilt, neither Wilson-Foley’s testimony — which, had it been favorable to Rowland, would have been subject to cross-examination by the government — nor the use of her interview statements to impeach Brian Foley would have changed the outcome of the trial. Accordingly, Rowland would not be entitled to a new trial even if he could persuade us — as he has not — that the government failed to meet its disclosure obligations.
III. Evidentiary Rulings
Rowland also challenges three of the District Court’s evidentiary rulings. This Court reviews rulings on the admissibility of trial evidence for abuse of discretion. See United States v. Fazio,
Only one of Rowland’s evidentiary challenges merits detailed discussion. At trial, Rowland sought to introduce e-mails and text messages that he wrote to Apple Chief Operating Officer Brian Bedard about matters related to the company. The District Court ruled that the writings were inadmissible hearsay because they would in effect allow Rowland to testify without making himself available for cross-examination.
An out-of-court statement is hearsay only if it is offered “to prove the truth of the matter asserted in the statement.” Fed. R. Evid. 801(c). Here, Rowland’s purpose in offering the writings was not to establish the truth of his statements that, for instance, “the unions will push to nail non-union shops which of course flys [sic] in the face of saving $$,” as Rowland wrote in one e-mail. App. at 578. Instead, Rowland sought to establish that he “was, in fact, working at Apple and taking the initiative to communicate with Bedard.” Appellant’s Br. at 54-55. The text messages and e-mails were therefore not hearsay and should have been admitted into evidence.
But no new trial is warranted, because this error was harmless. The defense was permitted to use the writings to refresh Bedard’s recollection. Bedard then testified about the nature of the communications: namely, that he and Rowland communicated via text message about the status of the contract negotiations. The defense also introduced other evidence of Rowland’s actual work for Apple, such as a report that he prepared at Apple’s request about a state-sponsored study of nursing care in Connecticut. Under these circumstances, we are confident that the District Court’s evidentiary error “did not influence the jury, or had but very slight effect,” and therefore no new trial is war
Rowland’s remaining eviden-tiary challenges are meritless. It was not error for the District Court to allow Brian Foley to testify about the meaning of Row- • land’s use of expressions like “I get it,” “this arrangement,” and “cover,” because those expressions were ambiguous without the context that Foley supplied. See United States v. Urlacher,
IV. Jury Instructions
Rowland identifies a number of alleged errors in the District Court’s jury instructions. We review those instructions de novo. United States v. Roy,
“[A] criminal defendant is entitled to have instructions presented relating to any theory of defense for which there is any foundation in the evidence, no matter how weak or incredible[] that evidence may be.” United States v. Durham,
Rowland argues that the District Court erred by failing to instruct the jury that “Mr. Rowland contends that he understood that any payments he received were for work performed for Apple.” App. at 293. The District Court rejected this charge, reasoning that “[fit’s a proxy for [Rowland’s] testimony, which the jury didn’t hear.” Id. at 318. Instead, the jury was instructed that Rowland “contends that ... any payments he received were for work performed for Apple Healthcare, Inc.” Id. at 401-02. Rowland now argues that this instruction did not properly represent his defense, which was that — no matter what Brian Foley’s intentions were — Rowland believed that he was being compensated only for his work for Apple. But this aspect of his defense was ade
None of Rowland’s other objections to the jury instructions has merit. His contention that the jury needed detailed instructions regarding the FEC rules that govern a candidate’s contributions to his own campaign is unavailing. He argues that this instruction was needed to correct the “misimpression” from Greenberg’s testimony that Rowland’s proposal to have Greenberg pay him directly was “wrong.” Appellant’s Br. at 52. But the jury was in fact told (albeit in other words) that Greenberg personally would have been permitted to pay Rowland for his services, as long as Greenberg reported those payments to the FEC. See Gov’t App. at 666 (Tr. 2579:14-23). Rowland’s final argument on jury instructions, that the court erred by instructing the jury that a defendant can falsify a document by knowingly omitting a material fact, is erroneous for the same reasons that Rowland’s challenge to his § 1519 convictions fails.
Y. Guidelines Calculation
Finally, Rowland challenges the District Court’s application of a six-level sentencing enhancement for “the value of the illegal transactions” pursuant to U.S.S.G. §§ 2C1.8 and 2B1.1. “This Court reviews a district court’s application of the Guidelines de novo, while factual determinations underlying a district court’s Guidelines calculation are reviewed for clear error.” United States v. Cramer, 777 F.3d 597, 601 (2d Cir. 2015).
The applicable 2014 Sentencing Guidelines include a sentencing enhancement for campaign finance offenses that is based on the value of the illegal transactions, if the value exceeds $5,000. See U.S.S.G. § 2C1.8 (2014). The District Court calculated the value of the illegal transactions to be $35,000, the total amount of the payments Rowland received from Apple. That results in a six-level enhancement under the 2014 Guidelines. See U.S.S.G. § 2B1.1 (2014).
Rowland argues that the District Court erred in its calculation. He does not dispute that he received $35,000 in payments from Apple. But he argues that the amount he received should have been offset by $5,000, which he asserts to be the value of the services he actually provided to the company.
The District Court rejected this argument on the ground that the value to Apple of any services Rowland rendered was simply “a byproduct of the attempted cover-up of the true nature of the campaign contributions.” United States v. Rowland, No. 3:14cr79(JBA),
CONCLUSION
Rowland’s remaining argument, regarding the constitutionality of limits on indi
Notes
. The following recitation of facts is taken from the trial record, viewing the evidence, as we must for purposes of this appeal, "in the light most favorable to the government, with all reasonable inferences drawn in its favor.” United States v. Mi Sun Cho,
. The FEC requires House candidates to disclose and itemize disbursements to an individual from official campaign funds when the individual receives disbursements totaling in excess of $200 per calendar year. See 11 C.F.R. § 104.3(b)(3)(i). The FEC also requires candidates to disclose their own in-kind contributions to a campaign. See 11 C.F.R. §§ 100.52(d)(1), 110.10.
. “Falsify” can also mean "to prove to be false” or “to prove unsound or untrue by experience,” but neither party suggests that those meanings aid in our understanding of the statute. See Falsify, Webster's Third New International Dictionary, Unabridged (2002).
. In fact, the final contract was signed by Rowland personally, not as a representative of his LLC.
. The context for the "I get it” e-mail tends to confirm this understanding. On September 14, 2011, Wilson-Foley spoke with campaign staffer Chris Syrek about hiring Rowland. Sy-rek attempted to dissuade her from hiring Rowland because Rowland's employment would have to be reported on the campaign’s quarterly FEC reports. In response to these concerns, Wilson-Foley told Syrek, “Well, maybe the campaign doesn’t have to pay him.” Gov’t App. at 358 (Tr. 1432:1-2). In the 20 minutes following this conversation, Wilson-Foley had three phone calls with Rowland. Twenty-two minutes after his final call with Wilson-Foley, Rowland wrote the following message to Brian Foley:
Brian,
had a brief chat with Lisa, I get it, let’s you and I meet, good time for you? ...
App. at 556.