UNITED STATES оf America, Appellee, v. Elizabeth V. TAVARES, John J. O‘Brien, and William H. Burke, III, Defendants, Appellants.
Nos. 14-2313, 14-2314, 14-2315
United States Court of Appeals, First Circuit.
December 19, 2016
46
IV.
Because there is no ambiguity in the language of the Plan and no error in the district court‘s decision to deny discovery, we conclude that Troiano received all that she bargained for through her monthly LTD benefits that are offset by the gross amount of her monthly SSDI benefits. We affirm.
Martin G. Weinberg, with whom Kimberly Homan, were on brief, for appellant Tavares.
Judith H. Mizner, Assistant Federаl Public Defender, for appellant O‘Brien.
John A. Amabile, with whom James Bradbury and Amabile & Burkly, P.C., were on brief, for appellant Burke, III.
Stephan E. Oestreicher, Jr., Attorney, Appellate Section, Criminal Division, U.S. Department of Justice, with whom Leslie R. Caldwell, Assistant Attorney General, Sung-Hee Suh, Deputy Assistant Attorney General, Carmen M. Ortiz, United States Attorney, Fred M. Wyshak, Jr. and Karin M. Bell, both Assistant United States Attorneys, were on brief, for appellee.
Before TORRUELLA, KAYATTA, and BARRON, Circuit Judges.
Defendants-appellants John O‘Brien, Elizabeth Tavares, and William Burke appeal their convictions for Racketeer Influenced and Corrupt Organizations (“RICO“) violations,
I.
We provide a summary of the most salient facts as the jury might have found them.
Many of the defendants’ claims of error are predicated on the sufficiency of the evidence, for which we must evaluate the evidence “in the light most favorable to the verdict” and determine whether the “evidence, including all plausible inferences drawn therefrom, would allow a rational factfinder to conclude beyond a reasonable doubt that the defendant committed the charged crime.” United States v. Manso-Cepeda, 810 F.3d 846, 849 (1st Cir. 2016) (quoting United States v. Santos-Rivera, 726 F.3d 17, 23 (1st Cir. 2013)).
A. The OCP and the Hiring Framework
O‘Brien, Tavares, and Burke worked in the OCP, which serves аs the central office of the Massachusetts Probation Department and employs the Commissioner of Probation, deputy commissioners, and regional supervisors, also known as regional administrators. The OCP is responsible for staffing approximately 1,600 employees in about 100 probation offices throughout Massachusetts. O‘Brien served as the Commissioner of Probation (the “Commissioner“), the highest-ranking position within the Department of Probation, from 1998 to 2010, and he was responsible for appointing all employees. Tavares served as second deputy commissioner from 2000 to 2008 and first deputy commissioner from 2008 to 2010, and Burke was the deputy commissioner of Western Massachusetts from 1998 to 2009.
Prior to 2001, local judges had authority to appoint and promote probation employees, subject to the approval of the Chief Justice of Administration and Management (“CJAM“). In 2001, new legislation gave the Commissioner the “exclusive authority” for probation hiring and рromotion, although his appointments were still subject to the approval of the CJAM. The CJAM‘s hiring policies for the trial court were promulgated in the Personnel Policies and Procedures Manual (the “Manual“), copies of which were kept at OCP and distributed to chief probation officers. Among other things, the Manual provided that “the objective of the hiring process is to select the most qualified individuals who can carry out their responsibilities in a competent and professional manner.” Judge Robert Mulligan served as the
The Manual also set out certain procedures for making permanent hires. In practice, openings in the Probation Department were posted on the Massachusetts trial court website, and candidates submitted applications and resumes to the Probation Department. The applications were collected at the OCP, where Janet Mucci, supervisor of the Human Resources department, screened them for minimum education and experience requirements. To further winnow the applicant pool, from 2005 onward the OCP had applicants attend a screening interview with a regional administrator.
Each applicant who passed the screening round proceeded to a second-round interview before a three-member panel consisting of a chief probation officer, local judge, and regional administrator. Every candidate was asked the same set of questions, and each panel member would rank his or her top eight candidates. The second round of interviews was consistent with the Manual‘s procedures, which called for “an interview committee consisting of the Commissioner... or his/her designee, the Chief Probation Officer of the Division, and a representative of the [CJAM]” to interview probation applicants. In addition, the Manual directed O‘Brien to “develop a standard set of questions” which, “[a]t a minimum, each applicant should be asked” if interviewed.
The regional administrator received a scoring sheet for each candidate to tally the scores of the three-member panel. The top eight candidates proceeded to a final-round interview at the OCP before two members of probation, typically two of deputy commissioner Francis Wall, deputy commissioner Patricia Walsh, and OCP Administrative Attorney Edward McDermott. O‘Brien set up the third round of interviews, which was not prescribed by the Manual.
Once the Commissioner selected the final candidate or candidates after the third-round interview, their application packages were prepared and sent to the CJAM, who typically gave his signature for final approval. The appointment documentation form specified which records were included within each package:
In accordance with the established personnel standards, enclosed are:
- The Applicant Interview and Hiring Record
- The Applicant Flow Record
- A copy of all applications of the candidates who were interviewed
- A copy of the notice of vacancy (job posting)
- The Jobs Hotline Confirmation letter (F 3) (if on the Hotline)
- The Employment Eligibility Verification Form 19 (F 16) & supporting documentation (new hires only)
- The SSA-1945 Statement Concerning Employment in a Job not covered by Social Security (F 30) (new hires only)
- The Consent to Criminal Record Check (F 23) (new hires only)
- The Application for Allied Service Credit (F 26) (Probation Officer positions only).
For each appointment, the Commissioner would “certify that [he had] complied with the Trial Court‘s personnel standards and that sufficient funding exists in the current fiscal budget to support this position.”
B. The Hiring Scheme
The defendants abused the hiring process to ensure that favored candidates were promoted or appointed in exchange for favorable budget treatment from the state legislature and increased control over the Probation Department. O‘Brien
Before the second-round interviews, Tavares and others would give regional administrators assigned to the three-member panel names of candidates that should be passed on to the third round. The regional administrators typiсally would pass these names to the chief probation officer assigned to the panel but did not always inform the local judge on the panel. The regional administrators and chief probation officers understood that these individuals were to be given priority to ensure they proceeded to the next round: one regional administrator testified that he “inflate[d]” their ratings, and a chief probation officer explained that the lists “influence[d]” his ranking of the individuals.
Some of the regional administrators and chief probation officers involved in the hiring process took issue with these practices. Ellen Slaney, who served as a regional administrator, understood that these individuals had “sponsors that were politically influential,” and when she explained to Tavares that some of the best applicants were being passed over—Tavares replied “that sometimes the political thing had to be done.” Edward Driscoll, who was a chief probаtion officer and then a regional administrator during the relevant time period, testified that he began using pens rather than pencils when he scored interviewees, as he suspected that his scores were being changed to ensure preferred candidates proceeded to the next round. Driscoll recalled a conversation with Burke in 2006: Driscoll expressed concern that a candidate whose husband was a local sheriff had been “fast-tracked,” to which Burke replied, “Everything‘s going [to] be fine,” and “I wrote the book on this stuff.”
When members of the second-round panel failed to pass along the selected names, they at times faced retaliation from O‘Brien and his staff: Slaney recalled an instance in January 2001 where O‘Brien called her into his office and appeared “upset with [her]” after she did not include a particular individual on the list for a third-round interview. When she explained her reasons for not advancing the individual, O‘Brien repliеd “Oh, come on, Ellen, everybody has a sponsor.” In 2005, after Slaney declined to advance a recommended candidate, she was assigned to work on “overdue audits,” clerical work that Slaney perceived as “retaliation for not participating in the hiring process... [i]n a way that I was told that I should.”
Although the Manual did not provide for third-round interviews, O‘Brien implemented the final round to “ensure that the candidates that he selected would be presented to him as the candidate for the position.” During the third round, the same four or five questions, all of which Tavares prepared, were posed to each candidate. Prior to the interviews, Wall would receive a list of names and how they should be ranked from O‘Brien, Tavares,
Once the preferred candidate was chosen, OCP staff would send the application package and certification to Judge Mulligan. O‘Brien was responsible for signing off on the certification, and he often certified that the “best qualified” candidate had been chosen. The OCP would then send out rejection letters to unsuccessful candidates stamped with O‘Brien‘s or Tavares‘s signature.
Judge Mulligan understood that he had the authority to “approve the appointment or to reject the appointment,” but that he could not “substitute [his] judgment as to who the best person would be.” Judge Mulligan also understood that the appointment should be “consistent with the Manual” and that the certification indicated that the appointment was consistent with a “merit-based hiring system.”
Judge Mulligan and O‘Brien had a contentious relationship, which Judge Mulligan described as “oppositional almost from the time I took office.” Sometime in 2006, Judge Mulligan grew suspicious of O‘Brien‘s appointments and asked his “HR department to red-flag any cases that they thought were unusual.” In particular, he grew concerned that the scores of the final interview panel were taking precedence over the scores of the second-round, local panel, and informed O‘Brien that he did “not believe that this selection process [would] lead to the most qualified candidate since it seem[ed] designed to ignore the assessments of the local panel and [gave] short-shrift to important background characteristics of the сandidates.” After Judge Mulligan spoke to a deputy commissioner about one of O‘Brien‘s appointments, the Senate Chair of the Ways and Means Committee, Senator Steven C. Panagiotakos, told Judge Mulligan that he had only “limited authority” to review O‘Brien‘s appointments. After this conversation, Judge Mulligan “back[ed] off somewhat in [his] review of Mr. O‘Brien‘s choices for positions.”
In 2010, the Boston Globe Spotlight Team released an in-depth report highlighting the hiring practices in the Probation Department: “After 12 years in charge, Jack O‘Brien has transformed the Probation Department from a national pioneer of better ways to rehabilitate criminals into an organization that functions more like a private employment agency for the well connected...” Scott Allen, Agency Where Patronage Is Job One, Bos. Globe, May 23, 2010. The day after the article was released, Judge Mulligan suspended O‘Brien.1
A federal indictment in the United States District Court for the District of Massachusetts followed in 2012. The second supеrseding indictment alleged that, from 2000 to 2010, the defendants implemented a sham merit-based hiring system and that O‘Brien “falsely certified to the CJAM that the candidate for employment had been hired pursuant to the procedures mandated by the Manual,” that is to say, a merit-based hiring system. The indictment charged Count One for RICO conspiracy under
The defendants moved to dismiss the indictment on various grounds. Among other things, they contended that the alleged mailings—rejection letters sent to unsuccessful applicants—did not satisfy the interstate commerce element of the federal mail fraud statute. They also sought to dismiss the RICO counts on grounds that the Government had failed to demonstrate the necessary link between a “thing of value” and an “official act” as required under the Massachusetts bribery and gratuities statute. Following a motion hearing, the district court denied the motion in a written opinion and order.
The parties proceeded to a forty-seven day jury trial. Throughout the trial, the district court allowed the jury to submit questions for the court to pose to the witnesses. Jurors submitted 281 questions, 180 of which were asked by the court. The jury found all three defendants guilty of RICO conspiracy. O‘Brien and Tavares were found guilty of the substantive RICO count, with the jury finding ten of the seventeen mail fraud predicates proven as to O‘Brien (as a principal) and Tavares (as either an aider and abettor, a coconspirator, or both) and nine gratuities acts proven as to O‘Brien. The jury found none of the predicate bribery acts proven. Of the nine mail fraud counts ultimately submitted to the jury, O‘Brien and Tavares were adjudged guilty of four, with O‘Brien guilty as a principal and Tavares guilty as both a coconspirator and aider and abettor as to two and an aider and abettor as to the remaining two. Burke was acquitted on the mail fraud counts.
The defendants bring a panoply of arguments on appeal. We address only their most salient claims and pass no judgment on any issues not addressed herein.
II.
Viewing the evidence in the light most favorable to the verdict, we can conclude that O‘Brien, along with the other defendants and many other members of the Probation Department, misran the Probation Department and made efforts to conceal the patronage hiring system. But “[b]ad men, like good men, are entitled to be tried and sentenced in accordance with
A. State Gratuities (Count II: Predicates 44(b)-51(b), 53(b))4
Under the federal RICO statute, “[i]t shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise‘s affairs through a pattern of racketeering activity...”
The Massachusetts gratuities statute penalizes those who give illegal gratuities to officials, id, as well as officials who receive illegal gratuities,
A gratuity may be given as “a reward for past action, to influence an official regarding a рresent action, or to induce an official to undertake a future action.” Scaccia, 727 N.E.2d at 828-29. Mere proof of the public official‘s position is insufficient to demonstrate an “official
In that vein, the Government cannot show the requisite linkage merely by demonstrating that the gratuity was given “to build a reservoir of goodwill that might ultimately affect one or more of a multitude of unspecified acts, now and in the future.” Sun-Diamond Growers of Cal., 526 U.S. at 405. Recognizing that direct evidence of these sorts of violations may be difficult to obtain, Massachusetts courts accept “evidence regarding the subject matter of pending legislatiоn and its impact on the giver, the outcome of particular votes, the timing of the gift, or changes in a voting pattern” to demonstrate the requisite linkage. Scaccia, 727 N.E.2d at 829. We bypass the question of whether the indictment sufficiently alleged violations of
The Government groups the predicate acts into two categories: the Kathleen Petrolati predicate act (Act 44(b)) and the 2007-2008 Electric Monitoring Program (“ELMO“) Appointments predicate acts (Acts 45(b)-51(b), 53(b)). Both categories of predicate acts relate to a series of temporary hires for purposes of the ELMO program. In 2006, the Massachusetts legislature passed a new law providing for mandatory electronic monitoring of sex offenders. In 2007 and 2008, OCP received additional funding for new hires to implement the monitoring system. O‘Brien proposed that these individuals be hired on a temporary basis. According to Mucci, the appointments were designated as temporary so that O‘Brien could “get people hired without going through the hiring process and the interviewing process.” O‘Brien gave Mucci names of individuals and instructions to offer them ELMO positions. The individuals did not interview with anyone at the OCP prior to receiving an offer.
The Government‘s evidence as to the gratuities predicates does not show adequate linkage between the thing of “substantial value” conferred by O‘Brien (the jobs) and an “official act” performed or to be performed. See Life Ins. Ass‘n of Mass., Inc. v. State Ethics Comm‘n, 431 Mass. 1002, 727 N.E.2d 819, 820-21 (2000) (remanding to the State Ethics Commission to “make adequate findings on whether there was... any link to a specific act“); Commonwealth v. Vázquez, 69 Mass. App. Ct. 622, 870 N.E.2d 656, 663 (2007). Many of the Government‘s arguments are predicated on bootstrapping: because O‘Brien was constantly conferring with legislators and hiring based on legislative preferences, any “official act” taken by an affected legislator must satisfy the nexus requirement. But we do not read the gratuitiеs statute so broadly: the Supreme Court in Sun-Diamond “offered a strictly worded requirement that the government show a link to a ‘specific official act’ to supply a limiting principle that would dis-
1. The Petrolati Predicate Act
The Government contended that Kathleen Petrolati‘s husband, Massachusetts House Representative Thomas Petrolati, proposed a budget amendment in April 2000 that would increase funding for positions in OCP, adding two program managers, two court service coordinators, and ten assistant court service coordinators. O‘Brien, in turn, appointed Reprеsentative Petrolati‘s wife, Kathleen Petrolati, as a program manager in the ELMO program in November 2000. That spring, the OCP had funding to add the positions specified in the budget amendment.
The Government asserts that the jury could infer the necessary link based on Representative Petrolati‘s sponsorship of the budget amendment and his wife being appointed a program manager. But seven months passed between these two events, and there was no evidence that O‘Brien knew of Representative Petrolati‘s connection to the budget amendment or that Representative Petrolati had “change[d]” his “voting pattern” in anticipation of his wife‘s hire. Scaccia, 727 N.E.2d at 829. To the contrary, Representative Petrolati also sponsored amendments appropriating money to courts across Western Massachusetts.
2. The ELMO Appointments Predicate Acts
For the ELMO Appointments predicate acts, the Government sought to show that O‘Brien “gave” ELMO appointments to Representative Robert DeLеo, then Chairman of the House Ways and Means Committee, to garner support for DeLeo‘s run for Speaker of the House, and that DeLeo then offered various legislators the opportunity to appoint individuals for these positions in exchange for their voting for DeLeo. In addition, in September 2007, after O‘Brien had appointed several ELMO candidates referred through DeLeo‘s office, O‘Brien met with DeLeo to propose legislation that would curtail the CJAM‘s oversight over O‘Brien‘s appointments, grant O‘Brien life tenure, and fix his salary at $1,000 per year below that of the CJAM.
The Government contends that one of the “official acts” was an amendment that O‘Brien proposed at a meeting with DeLeo that would have made O‘Brien the effective czar of probation. Yet the Government fails to explain how this meeting is linked to the ELMO hires or specify to which ELMO hires it relates, instead vaguely noting that O‘Brien had appointed “two or three” referrals for ELMO positions by the time of the meeting.
Further, the Government did not prove that DeLeo took any action on O‘Brien‘s proposals, or that O‘Brien pressured DeLeo to do so “for or because of” a specific ELMO hire. “Official act” is defined as “any decision or action in a particular matter or in the enactment of legislation.”
[H]osting an event, meeting with other officials, or speaking with interested parties is not, standing alone, a ‘decision or action’ within the meaning of
§ 201(a)(3) , even if the event, meeting, or speech is related to a pending question or matter. Instead, something more is required:§ 201(a)(3) specifies that the public official must make a decision or take an action on that question or matter, or agree to do so.
McDonnell v. United States, 136 S. Ct. 2355, 2370 (2016).
All the Government demonstrated, however, is that O‘Brien and DeLeo met. The evidence does not show, for example, thаt DeLeo subsequently introduced a bill based on either of O‘Brien‘s proposals or took some official act with respect to such a bill proposed by another legislator. The Government also identifies no particular statements that O‘Brien or DeLeo made about the proposals, or other evidence about that meeting, from which a jury might reasonably infer what specific official act, if any, O‘Brien was trying to induce DeLeo to take. Thus, the evidence reveals no specific official act—either taken by DeLeo or merely sought from him—to which we could apply the Scaccia factors to determine its possible link to the “two or three” ELMO appointments. The evidence therefore does not support a finding that the “official act” requirement was met, or that it was linked to the gratuity.
The Government also contends that the ELMO hires correlate to an “official act” in that O‘Brien gave DeLeo‘s office referral opportunities to pass on to legislators to build support for the Speaker‘s race. Edward Ryan, DeLeo‘s legislative liaison, testified that DeLeo and his staff used the jobs to “gather support” for DeLeo, and that O‘Brien told him that DeLeo‘s office had “identified” individuals that they “were looking for to vote for Bob DeLeo for the Speaker‘s race.”
But while a legislator‘s vote in a leadership election may constitute an official act, the Government needed to prove, as the district court instructed the jury, a link between the gratuity that O‘Brien gave DeLeo and a specific official act that DeLeo would undertake.8 The Government
The evidence shows at most that O‘Brien gave DeLeo control over the ELMO appointments to enable DeLeo to round up votes from other legislators. Such evidence may suffice to show that O‘Brien gave the ELMO appointments to DeLeo to facilitate his path to power in the state house, in the hope that, by building up a “reservoir of goodwill” with DeLeo, the future speaker would use his power to benefit the Probation Department‘s budget. See Sun-Diamond Growers of Cal., 526 U.S. at 405. But that is only evidence that O‘Brien was seeking general legislative support from DeLeo, and, under Sun-Diamond and Scaccia, that is not sufficient to show a specific public act, and with it an illegal gratuity. See Sun-Diamond Growers of Cal., 526 U.S. at 405-08; Scaccia, 727 N.E.2d at 828. We therefore do not interpret the Massachusetts gratuities statute to reach the conduct described here.
B. Mail Fraud (Count I: Predicate Acts 1-4, 12-14, 17, 18, 20; Counts III-VI)
To prove a violation of the federal mail fraud statute under
“The federal mail fraud statute does not purport to reach all frauds, but only those limited instances in which the use of the mails is a part of the execution of the fraud, leaving all other cases to be dealt with by appropriate state law.” Schmuck v. United States, 489 U.S. 705, 710 (1989) (quoting Kann v. United States, 323 U.S. 88, 95 (1944)). “[T]he mailing must be ‘for the purpose of executing the scheme, as the statute requires.‘” United States v. Maze, 414 U.S. 395, 400 (1974) (quoting Kann, 323 U.S. at 94). A mailing furthers a fraudulent scheme if it is, inter alia, “designed to lull the victims into a false sense of security, postpone their ultimate complaint to the authorities, and therеfore make the apprehension of the defendants less likely than if no mailings had taken place.” Id. at 403.
From this, two propositions emerge. First, a mailing can serve as the basis for a mail fraud conviction even if the fraud would have been successful had the mailing never occurred. Second, however, that mailing—even if dispensable—must at least have some tendency to facilitate execution of the fraud. In determining whether the Government proved the mailing element, “we look to see ‘whether, after assaying all the evidence in the light most amiable to the government, and taking all reasonable inferences in its favor, a rational factfinder could find, beyond a reasonable doubt, that the prosecution successfully proved the essential elements of the crime.‘” United States v. Soto, 799 F.3d 68, 93 (1st Cir. 2015) (quoting Hebshie, 549 F.3d at 35).
Even assuming that there was “a scheme to defraud,” the Government did not present substantial evidence of a mailing “in furtherance of” such a scheme. Hebshie, 549 F.3d at 35-36. The Government points to form rejection letters that OCP staff mailed to unsuccessful applicants, typically after the final candidates were selected,10 to satisfy the mailing requirement. These mailings fulfilled a requirement in the Manual that “[a]pplicants who are not selected for appointment must be notified in writing that they have not been selected.” The Government argues that such rejection letters in a corrupt hiring system satisfy
In arguing to the contrary, the Government points to this circuit‘s decision in United States v. Cacho-Bonilla, 404 F.3d 84 (1st Cir. 2005)—a case in which we found the “connection between the scheme and the mailing unusually thin” and observed that “the [mail fraud] count would better have been omitted,” id. at 90. In Cacho-Bonilla, the defendants were convicted of mail fraud for their involvement in a scheme where they misused federal funds provided to their non-profit corporation, Acción Social de Puerto Rico, Inc. (“ASPRI“). Id. at 87. The defendants submitted monthly reports reflecting fraudulent markups to a state agency. Id. at 90. The agency then compiled the reports into summaries and sent the summaries, by mail, to the Department of Health and Human Services (“HHS“). Id. In determining that these reports satisfied the mailing requirement, this court explained:
Much of the scheme... depended upon the continuation of federal funding for ASPRI. In turn, the submission (by mail) of ASPRI data to HHS‘s data collection entity perpetuated the relationship that kept funds flowing to ASPRI.... So viewed, the perpetuation was essential to the scheme and the mailing was incidental to that perpetuation.
Id. at 91. Similarly, in United States v. Hebshie, 549 F.3d 30 (1st Cir. 2008), we found that a reservation-of-rights letter sent to a defendant after he submitted a fraudulent insurance claim was sufficient under
In both Cacho-Bonilla and Hebshie, however, the mailing was part of an ongoing relationship—whether between ASPRI and its source of federal funds or between the fraudster and the defrauded insurance company—necessary to effectuate the fraud. The Supreme Court‘s decision in Schmuck v. United States, 489 U.S. 705 (1989), is instructive. In Schmuck, the Court upheld the mail fraud conviction of a used-car distributor who rolled back the odometers on cars and sold those cars at artificially inflated prices to dealers, who in turn resold the cars to customers. Id. at 707, 722. The retail sellers’ submission of title-application forms to the state Department of Transportation on behalf of their customers satisfied the mailing requirement. Id. at 707. The Court found that the registration-form mailings, which “may not have contributed directly to the duping of either the retail dealers or the customers,... were necessary to the passage of title.” Id. at 712. And the passage of title “was essential to the perpetuation of [the] scheme,” id., because “the success of [the] venture depended upon [the defendant‘s] continued harmonious relations with, and good reputation among, retail dealers, which in turn required the smooth flow of cars from the dealers to their... customers,” id. at 711-12.
Here, in contrast, the Government has presented no еvidence that the continued relationship between the OCP and rejected applicants was of any consequence. Nor
Instead, the Government reasons that the letters tended to perpetuate the scheme by making the rejected applicant less likely to call to inquire as to his status, thereby making it less likely that such a call might lead to some inquiry that would uncover the scheme. Even though employers need not—and often do not—send rejection letters to unsuccessful applicants, we will assume that the Government is correct that sending the letters decreased the odds that rejected applicants would call to learn thеir status. But the second part of the Government‘s nexus hypothesis (i.e., that such calls may have led to discovery of the scheme) rests on nothing more than rank speculation. The Government‘s evidence provided no plausible mechanism by which a call from a rejected applicant asking about his or her status would lead to the discovery of the scheme. Nor has the Government demonstrated that sending the letters meaningfully decreased the likelihood that some other party would have uncovered the hiring scheme. And while the mailing was certainly incidental to providing a courtesy to unsuccessful applicants, providing such a courtesy was not sufficiently tied to the defendants’ interest in perpetrating the scheme because it furthered neither the perpetration nor the perpetuation of the scheme. None of the remaining cases cited by the Government are factually analogous to the case before us, аnd they do not require us to find that these rejection letters were sent “in furtherance of” the defendants’ scheme.
Racketeering predicate acts fourteen and seventeen involved mailings other than rejection letters. Predicate act fourteen involved a copy of a letter that Judge Mulligan sent O‘Brien approving charged-hire Douglas MacLean‘s appointment. The Government contends that the mailing requirement was satisfied because the Chief Probation Officer that would be working with MacLean received a copy of this appointment letter by mail, and Judge Mulligan‘s written approval was required before MacLean could begin his employ. But we know nothing about why the letter was mailed to the Chief Probation Officer in this instance. To be sure, “[t]he ‘in furtherance’ requirement is to be broadly read and applied.” Hebshie, 549 F.3d at 36. Section 1341‘s mailing requirement, however, places an important limitation on federal authority. See Kann, 323 U.S. at 95.
Congress сould have drafted the mail fraud statute so as to require only that the mails be in fact used as a result of the fraudulent scheme. But it did not do this; instead, it required that the use of the mails be “for the purpose of executing such scheme or artifice.” Maze, 414 U.S. at 405 (footnote and alteration omitted). The record does not demonstrate that the appointment letter was sent for this purpose, and we therefore find
Predicate act seventeen involved a mailed application. But RICO claims require two predicate acts, and the Government does not present sufficient evidence of a mailing for purposes of any other mail fraud predicate act. Accordingly, we need not address whether the evidence of a mailed application is sufficient to satisfy
C. Juror Questions
Although we reverse based on more central issues, making the present issue moot, wе must express our reservations about the extent and type of juror questions allowed by the trial judge in this case.
Whether to allow juror questions falls “to the sound discretion of the trial court.” United States v. Sutton, 970 F.2d 1001, 1005 (1st Cir. 1992). But, as we have previously cautioned, jury questioning “should be reserved for exceptional situations, and should not become the routine, even in complex cases.” United States v. Cassiere, 4 F.3d 1006, 1017 (1st Cir. 1993). Here, jurors submitted 281 questions, and the district court posed 180 of them to witnesses. That means that, over thirty-five days of testimony, eight questions were submitted and five questions asked per day on average. This volume of questions is far beyond anything approved of in this Circuit12 and suggests that the district court allowed juror questions to become routine rather than an exception.
Furthermore, the content of many of the questions jurors asked is troubling. Juror questions should serve the limited purpose of clarification, see id. at 1017, and they should be a “long-odds exception” reserved for the most critical points, Sutton, 970 F.2d at 1005. Here, though, the trial judgе told the jurors that their questions should be guided by whether “the lawyer gets out what interests you from the witness.” This invitation to go beyond seeking clarification led to questions (allowed over objection) like whether “some candidate [did] not make the list because recommended names were on the list” and “Why did you change James Rush‘s score.” Juror questions of this type elicited not just clarifications but gap-filling evidence.13 “[I]n a jury trial the primary finders of fact are the jurors. Their overriding responsibility is to stand between the accused and a potentially arbitrary or abusive Government that is in command of the criminal sanction.” United States v. Martin Linen Supply Co., 430 U.S. 564, 572 (1977). If a district court allows jurors to ask questions, it must ensure that the jurors do not turn into fact gatherers rather than factfinders by exceeding the bounds delineated in Sutton and Cassiere.
III.
We find the evidence insufficient to support the defendants’ convictions and order the entry of judgments of acquittal.
So ordered.