United States Court of Appeals For the First Circuit
No. 18-1620
UNITED STATES OF AMERICA,
Appellee,
v.
SUZANNE BROWN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph N. Laplante, U.S. District Judge]
Before
Thompson, Selya, and Barron, Circuit Judges.
Julia Pamela Heit for appellant. Seth R. Aframe, Assistant United States Attorney, with whom Scott W. Murray, United States Attorney, was on brief, for appellee.
December 20, 2019 BARRON, Circuit Judge. Suzanne Brown was convicted in
the United States District Court for the District of New Hampshire
in 2017 on twelve counts of making a materially false statement to
a federal agency under 18 U.S.C. § 1001(a)(2). She now appeals
from those convictions on a number of grounds, including that she
received ineffective assistance of counsel at trial in violation
of the Sixth Amendment of the federal Constitution. We dismiss
without prejudice her claim of ineffective assistance of trial
counsel. We reject her other challenges to her convictions.
I.
Suzanne Brown founded and ran a nonprofit agricultural
organization, the New Hampshire Institute of Agriculture and
Forestry ("NHIAF").1 The NHIAF owned and operated two small plots
of land that it rented out to novice farmers and on which it
provided agricultural instruction to them. The NHIAF also
1 Brown raises a sufficiency-of-the-evidence challenge to her convictions, which usually demands a recitation of facts "in the light most favorable to the verdict." United States v. Burgos- Montes, 786 F.3d 92, 99 (1st Cir. 2015). But she also alleges instructional and other errors, for which we typically "offer a 'balanced' treatment, in which we 'objectively view the evidence of record.'" Id. (citation omitted) (first quoting United States v. Felton, 417 F.3d 97, 99 (1st Cir. 2005); and then quoting United States v. Nelson-Rodriguez, 319 F.3d 12, 23 (1st Cir. 2003)). Because "we cannot simultaneously recite the facts in both manners, we limit our initial summary . . . to those details essential to framing the issues on appeal," and describe other facts, where necessary, in the appropriate discussions of Brown's challenges. Id.
- 2 - delivered produce from New Hampshire farmers to buyers elsewhere
in the state.
On behalf of the NHIAF, Brown applied for and obtained
Rural Business Enterprise Grants ("RBEGs") from the United States
Department of Agriculture ("USDA" or "the Department") for both
2011 and 2012. Funds from those grants, which were awarded
competitively, were to be used in part to pay Julie Moran and Wilma
Yowell for their work as independent contractors for the NHIAF.
To obtain the funds that the RBEGs provided, Brown each
month filled out, signed, and submitted a standardized government
form -- labeled the "Standard Form 270" ("SF-270") -- to the
Department. On each such SF-270, she listed the "[t]otal program
outlays" for the month; these dollar amounts, Brown concedes, were
based in part on the amount of work that Moran and Yowell had
performed for the NHIAF. She also checked a box that confirmed
that she was seeking "reimbursement" payments. In addition, on
each such SF-270, she signed a certification that stated that "to
the best of my knowledge . . . all outlays were made in accordance
with the grant conditions." The grant conditions were set forth,
in part, in a separate letter of conditions from the Department,
most of which Anne Getchell, a Department employee, testified that
she had reviewed line-by-line with Brown when the NHIAF was awarded
the first RBEG.
- 3 - Brown attached typed reports to the first three SF-270s
that she submitted. The typed reports set forth the number of
hours that Moran and Yowell allegedly had worked for the NHIAF.
Getchell testified that she told Brown that better documentation
-- in the form of invoices or paystubs -- would be required in the
future. Thereafter, Brown attached invoices that identified the
hours that Moran and Yowell allegedly had worked for the NHIAF.
The NHIAF had not paid either Moran or Yowell at the
time that Brown submitted the SF-270s. In fact, the NHIAF did not
at any point pay them, though the NHIAF did occasionally provide
them with some groceries and reimburse them for specific
expenditures that they had made with their own funds.
On February 10, 2016, Brown was indicted in the District
of New Hampshire on twelve counts of "Making a Material False
Statement to a Federal Agency" under 18 U.S.C. § 1001(a)(2). That
provision criminalizes, "in any matter within the jurisdiction of
the executive . . . branch of the Government of the United States,
knowingly and willfully . . . mak[ing] any materially false . . .
statement or representation." Id.
Each of the twelve counts charged Brown with falsely
"representing to the [Department], in a Standard Form 270 'Request
for Advance or Reimbursement' and appended supporting
documentation, that the [NHIAF] -- of which BROWN was the Executive
Director -- had paid [funds] to [the] NHIAF employees [Moran and
- 4 - Yowell] for services rendered, as grounds to draw down funds from
a previously approved USDA [RBEG]." Counts four through nine of
the indictment, moreover, charged Brown not only with falsely
claiming that the NHIAF had made "payments to [Moran] and [Yowell]
for the services rendered" but also with falsely representing that
Moran and Yowell "prepared or approved the invoices submitted by
BROWN with the Standard Form 270." Counts ten through twelve
omitted the references to Yowell but were otherwise the same as
counts four through nine.
On January 26, 2017, Brown was convicted by a jury on
all twelve counts. After the verdict, Brown brought multiple
challenges to her convictions, including that she had received
ineffective assistance of counsel at trial. The District Court
held an evidentiary hearing on the motion for new trial that she
filed based on the claimed ineffective assistance of trial counsel.
The hearing focused on a discrete aspect of that motion, which
concerned a chambers conference that the District Court had
convened to address how to respond to a request for additional
information that the jury made during its deliberations. The
District Court ultimately denied the motion for new trial based on
ineffective assistance of counsel without prejudice. The District
Court sentenced Brown to a term of twelve months of imprisonment.
She then timely filed this appeal.
- 5 - II.
We start with Brown's contention that her convictions
were not supported by sufficient evidence. The government counters
that the evidence sufficed to show that, by listing as "total
program outlays" on the SF-270s certain dollar amounts that Brown
concedes were partly based on the hours of work that Moran and
Yowell had performed for the NHIAF, Brown was necessarily falsely
representing to the Department that Moran and Yowell already had
been paid for that work when they had not been. At trial, in
support of that basis for finding Brown guilty on each of the
twelve counts, the government put forth the testimony of Getchell,
the Department employee, who stated that the meaning of "total
program outlays" on the SF-270 was such that, by listing the dollar
figures for the "total program outlays," Brown was necessarily
representing that the NHIAF had already paid out the listed amount
of funds to Yowell and Moran and not simply that it owed them that
amount for the work that they had already performed for the NHIAF
but for which the NHIAF had not yet paid them.
The government separately contends, however, that the
evidence also sufficed to show that Brown, in her SF-270
submissions, falsely represented that Moran and Yowell already had
been paid for their work in another way. The government points
out that the SF-270 that Brown signed each month expressly stated
that "all outlays were made in accordance with the grant conditions
- 6 - or other agreement." (emphasis added). Because there are no other
relevant agreements, the government argues that, in signing and
submitting the SF-270s, she was necessarily certifying her
compliance with the grant conditions. That certification is
important, the government then goes on to contend, because the
evidence at trial included the letter from the Department that set
forth the grant conditions, which stated that "[t]he [a]gency will
disburse grant funds . . . on a reimbursement basis" and that
"[a]dequate documentation will be required to evidence
expenditures." Furthermore, the evidence at trial included
Getchell's testimony that she had reviewed most of that letter
with Brown line-by-line, that the grant conditions independently
required Brown to "actually spend the funds for the purposes
outlined" before the Department would reimburse the funds, and
that the documentation condition in particular required "show[ing]
what was paid out." This testimony accords, moreover, with the
text of the grant conditions letter, as the letter states that the
funds would be paid out on a "reimbursement" basis and that the
NHIAF needed to document "expenditures" to receive funding.
In her opening brief to us, Brown contends, and the
government does not dispute, that the term "outlays" in the SF-
270 encompasses "in-kind contributions." She then contends that
a circular from the United States Office of Management and Budget
("OMB") defines "[t]hird party in-kind contributions" to include
- 7 - uncompensated work performed by contractors. In her view, because
the circular purports to establish uniform administrative
requirements for certain federal grants, the definition of "third
party in-kind contributions" that it provides fatally undermines
the government's contention that, when she listed certain dollar
amounts as "total program outlays" on the SF-270s, she was
necessarily representing that the NHIAF had paid Yowell and Moran
for their work for the NHIAF rather than merely that they were
owed that amount of money for the work that they had performed for
it but for which they had not yet been paid. The government
responds, however, that Brown testified that she knew the monies
from the grant were meant to reimburse her for paying "salaries,"
and not to pay her for Yowell and Moran's uncompensated work.
Brown does not address in her opening brief, however,
any of the evidence that the government introduced at trial and
that we have described above, which concerns the import of her
certification to having complied with the grant conditions.
Instead, she focuses solely on the evidence introduced at trial
that concerns the import of her representation concerning "total
program outlays." Thus, Brown leaves unaddressed the other
evidentiary basis for affirming the convictions on which the
government relies, which consists of the evidence that concerns
her certification of compliance with the grant conditions. To be
sure, Brown does purport to address in her reply brief this other
- 8 - basis for finding that her convictions were supported by sufficient
evidence. But, in doing so, she merely repeats her contentions in
her opening brief about the meaning of the term "outlays" in the
SF-270s. She does not grapple with the significance of her
certification of compliance with the grant conditions in
submitting the SF-270s. Thus, because Brown fails to develop an
argument as to why the government is wrong to contend that the
evidence concerning the import of her certification of compliance
with the grant conditions in and of itself suffices to support the
convictions, we must reject her sufficiency-of-the-evidence
challenge to them. See United States v. Zannino, 895 F.2d 1, 17
(1st Cir. 1990) ("[A] litigant has an obligation 'to spell out its
arguments squarely and distinctly,' or else forever hold its
peace." (quoting Rivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st
Cir. 1988))); see also United States v. Gaw, 817 F.3d 1, 5 (1st
Cir. 2016) (holding that where "alternative, independently
sufficient grounds" exist for upholding a conviction against a
sufficiency-of-the-evidence challenge, the defendant's failure to
address one of those grounds on appeal means "that conviction must
be affirmed" (first quotation quoting United States v. Cruz-
Arroyo, 461 F.3d 69, 73 (1st Cir. 2006))).
Brown separately argues based on Bronston v. United
States, 409 U.S. 352 (1973), that each of her convictions must be
reversed because the allegedly false statements that she made were
- 9 - technically correct. In Bronston, the Court held that a literally
true but misleading statement cannot form the basis for a
conviction under the federal perjury statute. Id. at 362.
However, we must reject Brown's Bronston-based challenge because,
as we have just explained, unlike the defendant in that case, Brown
does not develop any argument that her certification of her
compliance with the grant conditions was insufficient to show that
the statements she made were not technically correct. See id. at
354 (noting that "[i]t is . . . undisputed that petitioner's
answers were literally truthful").2
III.
As a fallback, Brown argues that each of her convictions
must be vacated in consequence of what transpired at a chambers
conference that the District Court convened during the jury's
deliberations. The District Court convened that conference with
counsel for both Brown and the government to discuss how to respond
to the jury's request during its deliberations for a definition of
"in-kind services." Following that conference, the District Court
2 Brown asserts that a "false statement conviction cannot depend on the jury's interpretations of conflicting regulations." To the extent Brown means to argue that, even if she made a statement that a jury supportably could find to be literally false, she still cannot be convicted because of the particular nature of her false statement, the argument is waived for lack of development. See Zannino, 895 F.2d at 17 ("[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.").
- 10 - instructed the jury, in response to its request, to rely on its
"best recollection of the evidence presented at trial."
Brown asserts on appeal that she was "excluded" from
this chambers conference and that her lawyers refused to raise her
preferred arguments for responding to the jury's request when she
later asked them to do so. Had she been present at the chambers
conference, she argues, "[s]he would have insisted that her
attorneys accept the court's offer to use the definition of 'in
kind' services defined in the regulations." Thus, Brown contends,
she was denied her federal constitutional right "to be present at
any stage of the criminal proceeding that is critical to its
outcome if [her] presence would contribute to the fairness of the
procedure." United States v. Wallace, 82 F. App'x 701, 702 (1st
Cir. 2003) (quoting Kentucky v. Stincer, 482 U.S. 730, 745 (1987)).
Brown purports to ground this challenge in the Sixth
Amendment of the federal Constitution, but, "[i]n situations where
confrontation is not at issue, a criminal defendant's right to be
present at trial is protected by the Fifth Amendment Due Process
Clause." United States v. Brown, 669 F.3d 10, 32 (1st Cir. 2012).
And, under the Fifth Amendment, a defendant's "privilege of
presence is not guaranteed 'when presence would be useless, or the
benefit but a shadow.'" Stincer, 482 U.S. at 745 (quoting Snyder
v. Massachusetts, 291 U.S. 97, 106-07 (1934)).
- 11 - We may bypass the question of whether, as the government
contends, our review is only for plain error due to Brown's failure
to object to her exclusion below. For, Brown's challenge fails
even under de novo review.
Brown argues that, if she had not been absent from the
chambers conference, she would have argued, as her own counsel did
not, in favor of responding to the jury's request by supplying a
definition of "in-kind services" rooted in the definition provided
in the circular published by the OMB. She contends, as we have
noted, that this definition supports her assertion that, in listing
the dollar amounts as "total program outlays" on the SF-270s that
she submitted, she was merely representing the amount of funds
that Yowell and Moran were owed for the work that they had
performed for the NHIAF and not the amount of money that they had
been paid by the NHIAF for that work.
But, we agree with the government that, insofar as the
jury's request regarding the meaning of "in-kind services" raised
an issue of law, it was for Brown's lawyers, not Brown herself, to
have made the legal argument. See United States v. Jones, 674
F.3d 88, 94 (1st Cir. 2012) (recognizing that "a defendant's
presence on a legal issue (whether at sidebar or in chambers) is
not going to aid the defense counsel"); United States v. Sanchez,
917 F.2d 607, 619 (1st Cir. 1990) ("Since the issue under
consideration . . . was [a] legal one . . . we are not persuaded
- 12 - that appellant's presence would have contributed to the 'fairness
of the proceeding.'"). And, insofar as the jury's request is
better understood to have raised an issue of fact about the meaning
of "outlays" in the SF-270 that the trial evidence did not address,
Brown fails to explain how it would have been proper for the
District Court to have provided the jury with new evidence at that
stage of the proceedings, given that the jury had already begun
its deliberations. See United States v. Ofray-Campos, 534 F.3d 1,
18 (1st Cir. 2008) ("[T]he jury's verdict must be based solely
upon the evidence developed at trial." (citing Turner v. Louisiana,
379 U.S. 466, 472 (1965))); cf. United States v. Pagán-Romero, 894
F.3d 441, 446 (1st Cir. 2018) ("Provision of a dictionary to a
jury by a judge after the close of the evidence and the
instructions -- except perhaps in extraordinary circumstances and
after thorough discussion with counsel on the record -- should not
happen.").
IV.
Brown next argues that each of her convictions must be
vacated because the District Court erred in providing what she
calls a "nullification instruction" to the jury. The District
Court provided the following instruction:
You are not to be concerned with the wisdom of any rule of law as stated by the court. Nor should you be concerned with your opinion, favorable or unfavorable, of the New Hampshire Institute of Agriculture and Forestry (NHIAF),
- 13 - its work, or the federal grant program involved. Regardless of any opinion that you may have as to what the law ought to be, or any opinion, favorable or unfavorable, that you may have regarding the NHIAF, its work, or the federal grant program involved, it would be a violation of your sworn duty to base a verdict upon any other view of the law than that given in the instructions of the court, just as it would be a violation of your sworn duty, as judges of the facts, to base a verdict upon anything but the evidence in this case.
A district court that supportably perceives a risk that
jurors may refuse to apply the law "may instruct the jury on the
dimensions of their duty to the exclusion of jury nullification."
United States v. Sepulveda, 15 F.3d 1161, 1190 (1st Cir. 1993);
see also United States v. Appolon, 695 F.3d 44, 65 (1st Cir. 2012)
("[A] district court may instruct a jury that it has a duty to
return a guilty verdict if convinced beyond a reasonable doubt of
a defendant's guilt on a particular charge."). We review a
district court's decision to give such an instruction for abuse of
discretion. See United States v. De La Cruz, 835 F.3d 1, 12 (1st
Cir. 2016).
The District Court explained that that "there was some
commentary about the importance of the [NHIAF] mission" and that
"the jury could become a little distracted by that." The District
Court also expressed concern about "fairly impassioned testimony
from the defendant about the NHIAF, its mission, [and] the
importance of the mission to her and the community," which included
- 14 - Brown's testimony that described "how we help people in the state
of New Hampshire that farm for a living." Because the District
Court based its decision to give the instruction on the risk of
nullification that it supportably perceived, there was no abuse of
discretion.
Brown separately takes aim at her convictions for counts
four through twelve. In them, as we have noted, she was charged
not only with falsely claiming to have made "payments to [Moran]
and [Yowell] for the services rendered" but also with falsely
representing that Moran and Yowell "prepared or approved the
invoices submitted by BROWN with the Standard Form 270."3 Brown
contends that her convictions on these counts must be vacated,
because each count contained multiple offenses and thus was
duplicitous, thereby creating a risk of a jury verdict on each
count that lacked unanimity as to the offense that she committed.
See United States v. Verrecchia, 196 F.3d 294, 297 (1st Cir. 1999)
(explaining that "[d]uplicity is the joining in a single count of
two or more distinct and separate offenses" (quoting United States
v. Canas, 595 F.2d 73, 78 (1st Cir. 1979))).
The government does not dispute that these counts
contained multiple offenses. But, it argues that Brown waived the
3 Counts ten through twelve omitted the references to Yowell but were otherwise the same in this respect.
- 15 - duplicity challenge to them by not raising it to the District
Court. We agree. See Fed. R. Crim. P. 12(b)(3)(B)(i); Verrecchia,
196 F.3d at 297.
Even in the event of such a waiver, a defendant is
"entitled on request to an instruction requiring jury unanimity on
which offense (of the two or more alleged in the duplicitous count)
[s]he committed." Verrecchia, 196 F.3d at 297. But, Brown made
no such request at trial. Nor is it clear that she means to
challenge on appeal the District Court's failure to have given
such an instruction.
To the extent that Brown does mean to make that
instructional challenge on appeal and it is not waived in
consequence of her not having made it below, our review would be
only for plain error. See United States v. Newell, 658 F.3d 1, 20
(1st Cir. 2011). But, Brown cannot show the prejudice that she
must under the plain error standard. Brown does not argue that
there is a reasonable probability that the jurors, if given a
specific unanimity instruction, would not have agreed to convict
Brown on counts four through twelve based on statements in the SF-
270s that she submitted that represented that she had paid Moran
and Yowell. Rather, she admits that the court's jury instructions
focused on those false forms and "did not even charge the jury
that Brown's conviction could be premised on an alleged false
statement that Moran and Yowell approved the invoices submitted by
- 16 - her." Instead, she argues that the invoice-based allegations
opened the door for the government to introduce evidence "that the
contractors did not approve the invoices submitted by Brown." But,
a specific unanimity instruction would have done nothing to address
that concern.
VI.
Brown's final challenge to her convictions depends on
the assertion that her lawyers rendered ineffective legal
assistance at trial in violation of the Sixth Amendment. Brown
identifies a long list of alleged deficiencies in her lawyers'
performance at trial, which includes their alleged failure to
effectively make her arguments regarding the OMB circular's
definition of "in-kind contributions" and their failure to object
to the indictment on duplicity grounds. She thus contends that
her convictions must be vacated in consequence.
We have repeatedly observed that "an appellate court
usually is ill-equipped to handle the fact-specific inquiry" that
ineffective assistance of counsel claims often demand when they
have not been adjudicated below. Ofray-Campos, 534 F.3d at 34.
Thus, in such circumstances, our usual "practice is to dismiss
ineffective assistance claims on direct appeal without prejudice
to their renewal in a habeas petition brought pursuant to 28 U.S.C.
§ 2255." United States v. García–Pagán, 804 F.3d 121, 126 (1st
Cir. 2015).
- 17 - Here, the District Court did hold an evidentiary hearing
on a discrete aspect of Brown's motion for a new trial based on
ineffective assistance of counsel. But, after recognizing that
Brown's ineffective assistance of counsel claim "involve[d]
defense counsel's entire trial strategy," the District Court
declined to continue developing the record and denied that motion
without prejudice.
The result is that this case is not the "exceptional"
one in which "the record is sufficiently developed" to permit
initial appellate consideration of Brown's ineffective assistance
claim. Ofray-Campos, 534 F.3d at 34. Moreover, Brown does not
argue that the District Court abused its discretion by declining
to decide her ineffective assistance claim before sentencing, and
she does not identify any other reason that we should "remand the
case for proceedings on the ineffective assistance claim without
requiring the defendant to bring a separate collateral attack."
United States v. Ortiz-Vega, 860 F.3d 20, 29 (1st Cir. 2017)
(citing United States v. Colón-Torres, 382 F.3d 76, 84-85 (1st
Cir. 2004)). In fact, Brown's counsel conceded below that Ortiz-
Vega did not require the District Court to resolve Brown's
ineffective assistance claim before sentencing, waiving any
argument to the contrary. Accordingly, we follow our usual
practice and dismiss it without prejudice.
- 18 - VII.
For the foregoing reasons, we affirm Brown's convictions
and dismiss without prejudice her claim of ineffective assistance
of counsel.
- 19 -