United States v. Connolly

Opinion

USCA1 Opinion

December 7, 1993
                                [Not for Publication]
                                [Not for Publication]

                            United States Court of Appeals
                            United States Court of Appeals
                                For the First Circuit
                                For the First Circuit
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        No. 93-1625

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                 STEPHEN T. CONNOLLY,

                                Defendant, Appellant.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                [Hon. Douglas W. Hillman,* Senior U.S. District Judge]
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                                        Before

                                 Breyer, Chief Judge,
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                          Boudin and Stahl, Circuit Judges.
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            Cornelius J.  Sullivan with whom Brenda  E. Walsh-Sullivan was  on
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        brief for appellant.
            Michael J. Tuteur,  Assistant United States Attorney, with whom A.
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        John Pappalardo, United States Attorney was on brief for appellee.
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        *Of the Western District of Michigan, sitting by designation.

Per  Curiam.   In  this  appeal, defendant  Stephen
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            Thomas  Connolly challenges his convictions on four counts of

            a  five count  indictment  charging  him  with  making  false

            statements to the United States,  in violation of 18 U.S.C.  

            1001.1   Finding each  of defendant's appellate  arguments to

            be entirely unpersuasive, we affirm.

                      This  case arises  out  of  defendant's failure  to

            disclose  earned  income  while applying  for  and  receiving

            worker's compensation benefits.  Defendant,  a postal service

            letter  carrier,  suffered  a  work-related  back  injury  on

            February  20, 1990.   Soon  thereafter, he  made a  claim for

            partial disability  and in support  of it, filed a  series of

            Department  of Labor  CA-8 forms.2   On  the four  CA-8 forms

            which underpin the counts of conviction, defendant left blank

            sections 9a  and  9b,  which directed  him  to  disclose  any

            salaried  employment  and/or commission  and  self-employment

            (regardless  of  whether  any  income  actually   was  earned

            therefrom) in which  he was engaged during the  period he was

            seeking  disability  compensation.   At  trial, however,  the

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            1.  In  that portion of  the statute  relevant to  this case,
            section 1001 provides:   "Whoever, in  any matter within  the
            jurisdiction of any department or agency of the United States
            knowingly and willfully . .  . makes any false, fictitious or
            fraudulent statements or representations . . . shall be fined
            not more than $10,000 or imprisoned not more than five years,
            or both."

            2.  The  CA-8  forms   all  carry  the  caption   "Claim  for
            Continuing Compensation on Account of Disability."

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government demonstrated that, from August 1990 through August

            1991, defendant was employed as a delivery man for Aku-Aku, a

            Boston   restaurant.3    Defendant   does  not  contest  this

            employment and that he  should have noted it in  section 9 of

            the four relevant CA-8 forms.

                      In his poorly organized  appellate brief, defendant

            makes  three arguments which  warrant brief discussion:   (1)

            that the  evidence presented was insufficient for the jury to

            have found that he acted "knowingly  and willfully"; (2) that

            the omitted  information  was not  "material"  and  therefore

            could not give rise to criminal liability under section 1001;

            and   (3)   that  the   jury's   verdict  was   impermissibly

            inconsistent.4  We address each claim in turn.

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            3.  Although the government asserts that defendant maintained
            his  employment with Aku-Aku through October 1991, nothing in
            the  record indicates  that  defendant's employment  with the
            restaurant  continued past  August  1991.   Regardless,  this
            discrepancy has no impact upon our analysis.

            4.  Defendant  alludes  to  the question  of  whether leaving
            section  9 blank can constitute a statement or representation
            under section 1001.   Given the fact that  defendant presents
            us  with no argument and cites to no authority on this point,
            and  given the  further fact  that  there is  authority which
            supports  the proposition  that  leaving  a  form  blank  can
            constitute a statement or representation  under section 1001,
            see  United States  v. Mattox,  689 F.2d  531, 533  (5th Cir.
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            1982); United States  v. Irwin, 654 F.2d 671,  676 (10th Cir.
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            1981), cert. denied, 455 U.S. 1016 (1982), we will regard the
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            argument as  waived.   See United  States v.  Innamorati, 996
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            F.2d 456, 468 (1st Cir.) (issues adverted to in a perfunctory
            manner  deemed waived on  appeal), cert. denied,  62 U.S.L.W.
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            3320 (Nov. 1, 1993).  
                 Defendant   further   challenges   the   indictment   as
            "multiplicitous."  He has, however, also waived this argument
            by failing to raise it prior to trial.  See Fed. R.  Crim. P.
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1.  As  is always the case when  confronted with an

            argument  that there was  insufficient evidence to  support a

            conviction, we review the evidence "in a light most favorable

            to the government and resolv[e] all credibility issues in its

            favor."  E.g., United States v.  Fisher, 3 F.2d 456, 462 n.18
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            (1st Cir. 1993).   Here, there was ample  evidence upon which

            the jury could have rested its conclusion  that defendant, in

            failing to complete  sections 9a and 9b of  the relevant CA-8

            forms, acted "knowingly  and willfully."  Defendant  admitted

            at trial that he probably read sections 9a and 9b of the CA-8

            forms, and that he didn't  find the wording of these sections

            ambiguous or confusing.  Moreover, there was evidence, in the

            form of both  a sworn statement given by  defendant to postal

            inspectors   investigating  his  case  and  in  the  form  of

            testimony by one  of these postal inspectors,  that defendant

            understood that he was obliged to report  income from outside

            employment  on the  CA-8  forms.5   In light  of this,  it is

            apparent that defendant's sufficiency argument must fail.

                      2.  Defendant's  second argument, that  the omitted

            information  was not  "material," does  not  require extended

            discussion.   While  it is true  that "`[m]ateriality  of the

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            12(b)(2) and Fed. R. Crim.  P. 12(f) (defenses and objections
            based upon defects in the  indictment must be raised prior to
            trial); see  also United States  v. Rodriguez, 858  F.2d 809,
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            816-17 (1st Cir. 1988).

            5.  On  appeal, defendant does  not argue that  this evidence
            was improperly admitted.

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alleged  misstatements is  an essential  element of  offenses

            defined by 18 U.S.C.    1001,'" United States v. Corsino, 812
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            F.2d  26,  30  (1st  Cir.  1987)  (quoting  United  States v.
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            Radetsky, 535  F.2d 556, 571  (10th Cir.), cert.  denied, 429
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            U.S. 820 (1976)),  we have defined "material"  information as

            merely  that which has "`a  natural tendency to influence, or

            [is]  capable of  affecting  or  influencing, a  governmental

            function,'" Corsino, 812 F.2d at 30 (quoting United States v.
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            Markham, 537 F.2d 187, 196 (5th Cir. 1976), cert. denied, 429
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            U.S. 1041 (1977)).  Thus,  statements can be material even if

            they were  ignored, never relied  upon, or never read  by the

            agency.  See Corsino, 812 F.2d at 31.
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                      Here,  there  was  uncontroverted  trial  testimony

            that, if defendant had disclosed his income from Aku-Aku, the

            Department  of Labor  might  have  readjusted his  disability

            compensation.   Furthermore,  there was  uncontroverted trial

            testimony  that, if defendant had disclosed his delivery job,

            the  Department of Labor  might have reevaluated  his medical

            status.   Given this testimony, there  is no basis for  us to

            upset  the  district  court's  finding, see  id.  at  31  n.3
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            (materiality  under    section  1001  is a  question  for the

            court,  and  not  the  jury, to  decide),  that  the  omitted

            information was material.6

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            6.  At oral argument, counsel for defendant indicated that he
            was precluded  from cross-examining  the relevant  government
            witnesses on  the issue  of materiality.   Our review  of the

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3.   Defendant's third and final argument, that the

            jury's  verdict  was  impermissibly  inconsistent,  also   is

            unavailing.  Even  if we were  to credit defendant's  dubious

            assertion that the verdict here necessarily was inconsistent,

            it is well settled that, in criminal cases, "[c]onsistency in

            the verdict  is not necessary."   Dunn v. United  States, 284
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            U.S. 390, 393  (1932); see also United States  v. Powell, 469
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            U.S.  57, 63-69 (1984); United States v. Gonzalez-Torres, 980
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            F.2d 788, 791  (1st Cir.  1992).   Accordingly, we  summarily

            reject defendant's request  for a new trial insofar  as it is

            based upon his claim that the verdict here was inconsistent.

                      Affirmed.
                      Affirmed.
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            record, however,  reveals that  defense counsel  was not,  in
            fact, prevented from so inquiring.

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