United States v. Correia
This text of 55 F.4th 12 (United States v. Correia) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
United States Court of Appeals For the First Circuit
No. 21-1823
UNITED STATES OF AMERICA,
Appellee,
v.
JASIEL F. CORREIA, II,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Lynch, Selya, and Howard, Circuit Judges.
Daniel N. Marx, with whom William W. Fick and Fick & Marx LLP were on brief, for appellant. Mark T. Quinlivan, Assistant United States Attorney, with whom Rachael S. Rollins, United States Attorney, was on brief, for appellee.
November 28, 2022 SELYA, Circuit Judge. At a youthful age, defendant-
appellant Jasiel F. Correia, II, successfully persuaded investors
to back his SnoOwl app. He then parlayed his work as an innovator
and entrepreneur into a stunning electoral victory, winning office
(at the age of twenty-three) as mayor of the city of Fall River,
Massachusetts (the City). But the swiftness of the defendant's
rise was matched by the swiftness of his fall: a federal grand
jury indicted him on charges relating to his SnoOwl promotion, and
a superseding indictment added charges relating to public
corruption. The defendant did not seek a severance and, following
an eighteen-day trial, he was convicted on most of the charges.
The district court set aside some convictions, but let others stand
and sentenced the defendant to serve seventy-two months in prison.
The defendant now appeals. After careful consideration of a
chiaroscuro record, we affirm.
I
We start with the relevant facts, recounting them "in
the light most hospitable to the verdict, consistent with record
support." United States v. Tkhilaishvili, 926 F.3d 1, 8 (1st Cir.
2019). We divide this discussion into three parts. First, we set
out the facts supporting the defendant's convictions for wire
fraud. Second, we set out the facts supporting his convictions
under the Hobbs Act. Third, we trace the travel of the case.
- 2 - A
In late 2012, while a college student, the defendant
began putting together a plan to develop an app called SnoOwl.
For help, he enlisted three people: his then-roommate, a friend
from high school, and a software engineer. The defendant hoped
that SnoOwl, when perfected, would enable consumers to find events,
specials, and services being offered by businesses near them.
To realize this vision, though, seed money had to be
obtained. The defendant assumed responsibility for courting
potential investors. Over time, he persuaded at least five people
to invest in the endeavor. All five testified at trial, but we
focus the lens of our inquiry on two of them: Mark Eisenberg and
Victor Martinez. Eisenberg was a business coach who had previously
owned or operated firms in various industries. Martinez — a friend
of Eisenberg's — ran a chain of pizza restaurants.
Eisenberg and Martinez first met the defendant on
November 4, 2014. During that meeting, the defendant lauded the
prospects of SnoOwl and asked them to invest $50,000 toward its
development. As part of his pitch, the defendant told them about
his background. Most relevant here, he described his previous
experience "develop[ing] an app." That app — which the defendant
had developed with a fellow student, Alec Mendes, while at
Providence College — was called FindIt. Like SnoOwl, FindIt's
purpose was to help consumers identify local businesses that were
- 3 - advertising specials and accepting coupons. FindIt earned money
by charging businesses for advertisements — and over the entire
span of its existence, FindIt generated only a few thousand dollars
in revenue.
At their initial meeting, the defendant informed
Eisenberg and Martinez that FindIt was "eventually sold to a group
out of Cambridge." This unidentified group — as the defendant
told it — then "turned around and sold [the app] to Facebook."
Eisenberg recalled being "impress[ed]" by this feat, and he
remembered that the defendant had indicated that he received money
from FindIt's sale.
The defendant's account of FindIt's success was at odds
with the tale told by the record. In point of fact, there was no
evidence that FindIt was ever purchased by an outside group from
Cambridge or elsewhere. To the contrary, Mendes testified that
FindIt was abandoned and went offline. Around the same time,
Mendes and the defendant agreed to divide FindIt's assets amongst
themselves. The defendant received a payout of approximately
$2,000 — but nothing in the record suggests that those funds
derived from any sale of the app or its underlying source code.
Unaware of FindIt's ignominious ending, Eisenberg and
Martinez "believe[d] [the defendant's] representations."
Eisenberg testified unequivocally that he would not have invested
- 4 - in SnoOwl had he "known that there was no college app that was
sold to people in Cambridge, who then sold it to Facebook."
The day after meeting with the two investors, the
defendant sent them an email attaching, among other things, "an
updated business plan." The business plan included information on
SnoOwl's expenses — specifically, $6,750 per month for software,
$179 per month for server space, and $8,000 for a legal-fee
obligation. The business plan also represented that "[o]ther costs
associated with running the day-to-day operation of SnoOwl are
negligible," adding a caveat that "[f]uture expenses will include
hiring new talent and contractors, providing livable salaries to
employees, and cloud server space."
Eisenberg and Martinez each agreed to invest $25,000 in
SnoOwl in exchange for a 3.5% equity stake. These details were
confirmed by email and — to aid in formalizing the investments —
the defendant emailed each of them an "investor agreement."
Through the investor agreements, the defendant committed to (among
other things) "not sell[ing], assign[ing], transfer[ring] or
otherwise convey[ing] business assets . . . owned, held by or owed
to the Company . . . except in the ordinary course of business,
without the Investor's consent." The agreement further required
SnoOwl to act responsibly "to protect the integrity of the company
and the investment." Eisenberg signed the agreement, but the
record is tenebrous as to whether Martinez actually signed. What
- 5 - is luminously clear, though, is that each man cut a check for
$25,000 and delivered it to the defendant.
The defendant did not hesitate to spend the investors'
money on personal expenses. He spent thousands of dollars on
(among other things) car payments, casinos, hotel stays,
transportation expenses, clothing, women's shoes, cologne, and
student loans. He also used company funds in service of his
political ambitions.
Although these expenditures were made outside the
ordinary course of the company's business, the defendant never
sought the investors' consent. Eisenberg testified that had he
"known that investment money . . . was going to" things like
"cologne," "$700 shoes for [the defendant's] girlfriend," and
"strip clubs, casinos, and other places of recreation that were
not involved with the company," he would not have invested.
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United States Court of Appeals For the First Circuit
No. 21-1823
UNITED STATES OF AMERICA,
Appellee,
v.
JASIEL F. CORREIA, II,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Lynch, Selya, and Howard, Circuit Judges.
Daniel N. Marx, with whom William W. Fick and Fick & Marx LLP were on brief, for appellant. Mark T. Quinlivan, Assistant United States Attorney, with whom Rachael S. Rollins, United States Attorney, was on brief, for appellee.
November 28, 2022 SELYA, Circuit Judge. At a youthful age, defendant-
appellant Jasiel F. Correia, II, successfully persuaded investors
to back his SnoOwl app. He then parlayed his work as an innovator
and entrepreneur into a stunning electoral victory, winning office
(at the age of twenty-three) as mayor of the city of Fall River,
Massachusetts (the City). But the swiftness of the defendant's
rise was matched by the swiftness of his fall: a federal grand
jury indicted him on charges relating to his SnoOwl promotion, and
a superseding indictment added charges relating to public
corruption. The defendant did not seek a severance and, following
an eighteen-day trial, he was convicted on most of the charges.
The district court set aside some convictions, but let others stand
and sentenced the defendant to serve seventy-two months in prison.
The defendant now appeals. After careful consideration of a
chiaroscuro record, we affirm.
I
We start with the relevant facts, recounting them "in
the light most hospitable to the verdict, consistent with record
support." United States v. Tkhilaishvili, 926 F.3d 1, 8 (1st Cir.
2019). We divide this discussion into three parts. First, we set
out the facts supporting the defendant's convictions for wire
fraud. Second, we set out the facts supporting his convictions
under the Hobbs Act. Third, we trace the travel of the case.
- 2 - A
In late 2012, while a college student, the defendant
began putting together a plan to develop an app called SnoOwl.
For help, he enlisted three people: his then-roommate, a friend
from high school, and a software engineer. The defendant hoped
that SnoOwl, when perfected, would enable consumers to find events,
specials, and services being offered by businesses near them.
To realize this vision, though, seed money had to be
obtained. The defendant assumed responsibility for courting
potential investors. Over time, he persuaded at least five people
to invest in the endeavor. All five testified at trial, but we
focus the lens of our inquiry on two of them: Mark Eisenberg and
Victor Martinez. Eisenberg was a business coach who had previously
owned or operated firms in various industries. Martinez — a friend
of Eisenberg's — ran a chain of pizza restaurants.
Eisenberg and Martinez first met the defendant on
November 4, 2014. During that meeting, the defendant lauded the
prospects of SnoOwl and asked them to invest $50,000 toward its
development. As part of his pitch, the defendant told them about
his background. Most relevant here, he described his previous
experience "develop[ing] an app." That app — which the defendant
had developed with a fellow student, Alec Mendes, while at
Providence College — was called FindIt. Like SnoOwl, FindIt's
purpose was to help consumers identify local businesses that were
- 3 - advertising specials and accepting coupons. FindIt earned money
by charging businesses for advertisements — and over the entire
span of its existence, FindIt generated only a few thousand dollars
in revenue.
At their initial meeting, the defendant informed
Eisenberg and Martinez that FindIt was "eventually sold to a group
out of Cambridge." This unidentified group — as the defendant
told it — then "turned around and sold [the app] to Facebook."
Eisenberg recalled being "impress[ed]" by this feat, and he
remembered that the defendant had indicated that he received money
from FindIt's sale.
The defendant's account of FindIt's success was at odds
with the tale told by the record. In point of fact, there was no
evidence that FindIt was ever purchased by an outside group from
Cambridge or elsewhere. To the contrary, Mendes testified that
FindIt was abandoned and went offline. Around the same time,
Mendes and the defendant agreed to divide FindIt's assets amongst
themselves. The defendant received a payout of approximately
$2,000 — but nothing in the record suggests that those funds
derived from any sale of the app or its underlying source code.
Unaware of FindIt's ignominious ending, Eisenberg and
Martinez "believe[d] [the defendant's] representations."
Eisenberg testified unequivocally that he would not have invested
- 4 - in SnoOwl had he "known that there was no college app that was
sold to people in Cambridge, who then sold it to Facebook."
The day after meeting with the two investors, the
defendant sent them an email attaching, among other things, "an
updated business plan." The business plan included information on
SnoOwl's expenses — specifically, $6,750 per month for software,
$179 per month for server space, and $8,000 for a legal-fee
obligation. The business plan also represented that "[o]ther costs
associated with running the day-to-day operation of SnoOwl are
negligible," adding a caveat that "[f]uture expenses will include
hiring new talent and contractors, providing livable salaries to
employees, and cloud server space."
Eisenberg and Martinez each agreed to invest $25,000 in
SnoOwl in exchange for a 3.5% equity stake. These details were
confirmed by email and — to aid in formalizing the investments —
the defendant emailed each of them an "investor agreement."
Through the investor agreements, the defendant committed to (among
other things) "not sell[ing], assign[ing], transfer[ring] or
otherwise convey[ing] business assets . . . owned, held by or owed
to the Company . . . except in the ordinary course of business,
without the Investor's consent." The agreement further required
SnoOwl to act responsibly "to protect the integrity of the company
and the investment." Eisenberg signed the agreement, but the
record is tenebrous as to whether Martinez actually signed. What
- 5 - is luminously clear, though, is that each man cut a check for
$25,000 and delivered it to the defendant.
The defendant did not hesitate to spend the investors'
money on personal expenses. He spent thousands of dollars on
(among other things) car payments, casinos, hotel stays,
transportation expenses, clothing, women's shoes, cologne, and
student loans. He also used company funds in service of his
political ambitions.
Although these expenditures were made outside the
ordinary course of the company's business, the defendant never
sought the investors' consent. Eisenberg testified that had he
"known that investment money . . . was going to" things like
"cologne," "$700 shoes for [the defendant's] girlfriend," and
"strip clubs, casinos, and other places of recreation that were
not involved with the company," he would not have invested.
Martinez, too, testified that he would "[a]bsolutely not" have
invested had he been told that the defendant "was going to use
investment money . . . on expensive shoes, cologne, and many other
personal items."
The defendant also convinced other individuals to invest
in SnoOwl. Three such investors testified at trial, sounding many
of the same themes as Eisenberg and Martinez. This testimony was
reinforced by a substantial amount of documentary evidence. Taken
as a whole, the documents showed that, from 2013 through 2015, the
- 6 - defendant solicited investments totaling $358,190. Of this sum,
the defendant spent approximately $18,600 on "[c]lothing, health
care products, jewelry, personal grooming and personal trainers";
$27,023 on "hotel expenses"; $25,121 on "dining expenses"; $31,780
on "transportation related expenses"; and $37,282 on "personal
credit cards, student loans and a vehicle." He also spent
thousands of company dollars on "entertainment expenses" such as
movies, sightseeing, amusement parks, and golf. Few, if any, of
these expenses were generated in the ordinary course of SnoOwl's
business. An Internal Revenue Service (IRS) agent estimated that
the defendant spent $228,654 from SnoOwl's accounts on "personal
expenditures."
B
The second cache of facts relates to the defendant's
tenure as the City's mayor. After winning election in 2015, the
defendant assumed office in January of 2016. As mayor, the
defendant enjoyed many powers — our concern here is primarily with
his role in allowing marijuana vendors to open marijuana shops in
the City.
Some background helps to lend perspective. When
Massachusetts legalized medical marijuana in 2012 and recreational
marijuana in 2016, it gave localities a place in the application
process for prospective entrants into the market. As relevant
here, between July of 2016 and August of 2018, the Commonwealth's
- 7 - laws and regulations required that an applicant obtain a letter of
support or non-opposition (a non-opposition letter) from the
municipality in which the applicant proposed to operate. See,
e.g., 105 Mass. Code Regs. 725.100(B)(3)(f) (2016). In addition,
an applicant needed to enter into a host community agreement with
the municipality, see Mass. Gen. Laws Ann. ch. 94G, § 3 (West
2018); 935 Mass. Code Regs. 500.101(1)(a) (2018), which typically
committed the business to paying up to three percent of its gross
sales to the municipality. The Massachusetts Cannabis Control
Commission required both a non-opposition letter and a host
community agreement as preconditions to the issuance of a license
to sell marijuana at retail. See 935 Mass. Code Regs.
500.101(1)(a) (2018).
As mayor, the defendant held sole responsibility and
executive authority to issue non-opposition letters and approve
host community agreements. See Fall River, Mass., Charter § C-3-
2. Soon after he assumed office, a number of prospective vendors
approached the City about opening marijuana businesses. We
encapsulate below the experiences of four of those prospective
vendors.
In 2016, David Brayton began trying to open a marijuana
business in the City. His initial attempts failed, so he turned
to his friend, Antonio Costa, for help. Costa had a close
- 8 - relationship with the defendant, and he was able to arrange for
Brayton to meet with the defendant. The meeting proved to be
unproductive, as the location that Brayton proposed for his shop
encountered a zoning problem.
After Brayton identified another potential location, he
again reached out to Costa. When the two men met, Costa told
Brayton that the defendant was "looking to get a donation or a
bribe . . . in order to make this work." Brayton inquired as to
the price tag, and Costa replied that it would cost $250,000.
Brayton could not afford to pay that much in a lump sum, so he
proposed an "alternative arrangement" under which he would pay
$100,000 up front and an additional $150,000 when his new
business's "cash flow [turned] positive." Costa said that he would
need "to get back to" Brayton.
Costa then spoke with the defendant, who asked only
whether Brayton was "good for it?" Subsequently, Costa told
Brayton that he had spoken with "Jasiel" and that the arrangement
Brayton had described — $250,000, divided into two installments,
in exchange for a non-opposition letter and host community
agreement — was acceptable.
Acting on this struck bargain, Brayton delivered a
$100,000 check to Costa on July 14, 2016. Brayton's project then
began to pick up speed: he received a non-opposition letter dated
- 9 - July 14. A host community agreement was signed by the defendant
less than two months thereafter.
Trying does not always pay, and Brayton's marijuana
dispensary never turned a profit. Consequently, he never forked
over the remaining $150,000. Even so, the arrangement proved
profitable for both the defendant and Costa: they divvied up the
proceeds of Brayton's check, with the defendant pocketing $80,000
and Costa pocketing $20,000.
The next aspiring marijuana vendor was Brian Bairos. In
the 2017-2018 time frame, Bairos decided to expand his Rhode Island
marijuana business into the City. To this end, Bairos met with
the defendant and the defendant's chief of staff, Genoveva Andrade.
After that meeting produced no immediate results, Bairos made the
acquaintance of Craig Willard who, in turn, introduced him to
Costa.
When Bairos met with Costa, the latter boasted that "he
had a good relationship with the mayor, and that he could get
[Bairos] the letters that [he] need[ed] to move forward with [his]
license." Costa also told Bairos that there would be a "cost" of
$250,000, which Bairos regarded as "[b]asically a bribe." Bairos
objected to the amount, and the two men ultimately agreed to a
total of $150,000, to be split into two installments — the first
due "up front" and the second due when Bairos "got the license."
- 10 - Bairos testified that he came to realize that the defendant "would
be getting th[e] money."
In the weeks following the meeting, Bairos and Costa
exchanged a number of text messages. On May 25, 2018, Costa sent
a text saying that the defendant "gave [him] a call and told [him]
it's a done deal so no worries." Bairos took this to mean that
the defendant had "accepted" the terms he had negotiated with
Costa. Costa testified to a similar interpretation of this text.
On June 19, 2018, the defendant had dinner with Bairos
and asked him "[i]s everything good?" Bairos took this to be a
reference to the arrangement he had reached with Costa, and he
assured the defendant that "we were [good]" — meaning that he was
"prepared and had pledged to pay the bribe." The two men met again
ten days later. During this meeting, the defendant asked Bairos
to "donate" $25,000 "to his legal fund." Bairos understood this
to be a request for money "in addition to the bribe [he] had
[already] agreed to pay." Bairos never made the requested
donation.
In due season, Bairos received a non-opposition letter
dated July 2, 2018, signed by the defendant.1 On July 7, Bairos
says that he gave Costa $25,000 in cash as "part of the first
portion of the agreement." Bairos believed that this payment would
1 The record does not disclose when, if ever, Bairos received a host community agreement.
- 11 - be split in some way between Costa and the defendant. Although he
already had the letter, Bairos testified that he made the payment
because he feared that the letter "could be redacted or taken away
at any time."
Although Costa's testimony reflected a slightly
different recollection of the facts — Costa testified that Bairos
forked over between $30,000 and $50,000 — it also lent further
color to the events surrounding the July 7 payment. Costa
recounted that he gave Bairos's cash to another co-conspirator
(Camara) who, in turn, was to pass it along to the defendant.
According to Costa, the defendant refused to "touch it" for fear
that it was "fed money."
On July 16, Costa texted Bairos, saying that "[he has]
been calling [Costa's] phone looking for paper," which Bairos
interpreted to mean that "Mayor Correia" had been calling Costa
looking for "money." And on July 18, Costa texted Bairos,
reiterating that the defendant "wants his end." Two days later,
Bairos gave Costa a combination of cash and marijuana, which Costa
credited as a $42,550 payment toward the bribe.
In September of 2018, Bairos and the defendant met in
Providence. The defendant wanted to confirm that "everything was
still going forward and everything was moving, that everything was
good." He asked Bairos "[i]s the money good? Are we all set?"
Bairos understood the defendant to be referring to "[f]inish[ing]
- 12 - paying off the first portion of the bribe," and he told the
defendant that "there was [sic] a few hiccups here and there.
There was some additional costs that came through, and that it was
just taking a little bit more time, but it would be done." On
March 28, 2019, Bairos made another cash payment to Costa:
$10,000.
As matters turned out, Costa testified that he never
gave any of Bairos's bribe money to the defendant. Nor is there
any evidence that Costa gave the defendant any of the marijuana
that Costa received from Bairos.
The third aspiring marijuana vendor was Charles Saliby,
who called city hall at several points during the first half of
2018 in search of a non-opposition letter and host community
agreement. Around the beginning of June, Saliby spoke with
Andrade, who expressed skepticism that the defendant would issue
additional letters. She nonetheless arranged a meeting between
Saliby and the defendant.
The two men met (with Andrade in attendance) on or about
June 21, 2018 at the mayor's office. During this meeting, the
defendant reiterated that he did not have the capacity to issue
additional letters. He raised the possibility, though, of
rescinding a license that was presently inactive.
- 13 - A few days later, the defendant and Andrade visited
Saliby at Saliby's store. In a backroom office, the defendant and
Andrade told Saliby that the defendant was prepared to issue the
coveted letters. When Saliby asked whether there was "anything
[he] can do," the defendant replied that he was "looking for
$250,000." Saliby understood this to be a request for "a bribe."2
After Andrade left, Saliby asked the defendant "why
$250,000?" The defendant responded that the value of the license
would be "a lot more" and that "he was only going to issue six of
them." The defendant then added that he wanted the money to be
paid to his legal defense fund. Saliby balked at the price, and
the two men haggled, settling upon a figure of $125,000 — a figure
agreed to after the defendant said that he could not "go any
lower." When asked at trial what he thought would have happened
had he refused to pay the bribe, Saliby testified that he believed
the defendant would not have issued the letter and — in the bargain
— would have retaliated against his existing business.
Once the men had agreed on the amount of the bribe,
Saliby escorted the defendant out of his office. On the way out,
they encountered Andrade, who inquired whether "everything" was
2 As context for this understanding, it is important to note that Saliby had learned from Bairos — days earlier — that the defendant was seeking a $250,000 bribe from him.
- 14 - "okay." Saliby replied in the affirmative. Andrade assured him
that "[y]ou're family now."
Saliby later learned of another "annual legal fee" — a
$50,000 "community impact fee" — that he would need to pay to
operate his proposed marijuana business. Upon learning of this
fee, Saliby again met with the defendant and Andrade (this time in
Andrade's city hall office). Saliby voiced his objection to the
$50,000 community impact fee. The defendant replied that he "would
be able to drop [that fee] down to $25,000 a year" on the condition
that Saliby "add another $25,000 on top of" the previously agreed
$125,000. Saliby consented to this arrangement, and the defendant
agreed that Saliby could pay the $150,000 bribe in two equal
installments. The first installment was to be paid when Saliby
received the non-opposition letter and host community agreement
and the second when the Commonwealth issued a provisional license.
Several days after the city hall meeting, the defendant
called Saliby about coming to collect the first installment. As
arranged, the defendant drove to Saliby's store; Saliby got into
the defendant's car; and Saliby gave the defendant $75,000 in cash.
In exchange, the defendant handed Saliby a signed non-opposition
letter and host community agreement.
The fourth aspiring marijuana vendor was Matthew
Pichette. In 2018, Pichette and his partners decided that they
- 15 - wanted to open a marijuana business in the City. On July 11, 2018,
Pichette contacted David Hebert, a man who had a close relationship
with the defendant. Hebert explained the process for obtaining
the necessary documents from the City. He added that he had spoken
with the defendant and that — although the City was "maxed out" —
the defendant might still be able to get Pichette what he needed.
Hebert told Pichette that he should put together a proposal and
that — when the proposal was ready — Hebert would set up a meeting
between Pichette and the defendant.
Two weeks later, Pichette notified Hebert that the
proposal was ready. Hebert arranged for Pichette to meet with the
defendant the following day. Hebert conferred with Pichette in
advance of that meeting and told him that completing the process
was "going to come with a cost" — a $25,000 payment to the
defendant's legal defense fund. Although Pichette "[didn't] like
this idea," he agreed to make the payment, believing that "there
was no other way to get" the non-opposition letter and host
community agreement.
Later that day, Pichette and his partners met with the
defendant at city hall and presented their proposal. Afterwards,
Pichette had a private conversation with the defendant during which
the defendant confirmed that Pichette had "talked with [Hebert]
and we're good." Pichette rejoined that he had spoken to Hebert
and "we're good." Pichette took this exchange to be a confirmation
- 16 - that the defendant knew that Pichette had dealt with Hebert and
had agreed to pay the $25,000 bribe. Pichette came away believing
"[t]hat [the defendant] was dirty."
The next day, Pichette met with Hebert and discussed how
the $25,000 payment was to be made. Hebert suggested funneling
the money through a $25,000 campaign contribution. To skirt
campaign finance limits, Hebert further suggested that Pichette
collect $1,000 checks from twenty-five friends and family members.
Before the discussion ended, Hebert agreed that the $25,000 amount
did not have to be paid all at once but, rather, could be split
into two installments.
On August 20, 2018, Hebert advised Pichette that he was
"getting [Pichette's] letters" that day. The two men then agreed
that the bribe would be paid through Pichette's purchase of $25,000
in tickets to the defendant's fundraising events — $12,500 worth
of tickets for a summer event and the rest for a Christmas party.
Pichette collected $11,500 in checks from family members and
colleagues (most of whom Pichette reimbursed) and used those funds
to purchase tickets for the first event. The checks were dated
either August 29 or September 5; they were made out to "Friends of
Mayor Jasiel Correia, II" or some variation thereof. On August
21, Hebert delivered the non-opposition letter and host community
agreement (both of which were dated August 17).
- 17 - C
In the midst of these maneuverings, the government
convened a grand jury to investigate the defendant. On October 4,
2018, the grand jury returned an indictment charging the defendant
with wire fraud and tax fraud in connection with the SnoOwl app.
Almost a year later, the grand jury returned a first superseding
indictment that enlarged the charges against the defendant to
include Hobbs Act extortion, conspiracy to commit Hobbs Act
extortion, and bribery. Most of the new charges related to his
dealings, as mayor, with would-be marijuana vendors. The remainder
alleged variously that the defendant, as mayor, hired and retained
his chief of staff on the condition that she kick back half of her
salary to him and that he extorted and conspired to extort a
businessman in exchange for issuing certain permits. In a second
superseding indictment, the grand jury added charges against
Andrade. All told, the grand jury — as evidenced by the second
superseding indictment — charged the defendant with nine counts of
wire fraud, see 18 U.S.C. § 1343; four counts of tax fraud, see 26
U.S.C. § 7206(1); five counts of conspiracy to commit extortion,
see 18 U.S.C. § 1951(a); five counts of extortion, see id.; and
one count of bribery, see 18 U.S.C. § 666(a)(1)(B).
Andrade entered a guilty plea, and the defendant
proceeded to trial alone. The government and the defendant agreed
that all the charges should be tried together. Following an
- 18 - eighteen-day trial, the jury convicted the defendant of all nine
counts of wire fraud, all four counts of tax fraud, four counts of
extortion conspiracy, and four counts of extortion. The jury
acquitted the defendant on one count of extortion conspiracy, one
count of extortion, and the bribery count.
The defendant moved for judgment of acquittal and/or a
new trial on all of the counts of conviction. The district court
consolidated the hearing on these motions with the sentencing
hearing. The court acquitted the defendant on six of the nine
wire-fraud counts after determining that a stipulation the parties
had reached did not provide sufficient evidence from which the
jury could find beyond a reasonable doubt that the "interstate
wire" element of the offense had been satisfied. The court
likewise acquitted the defendant on all four of the tax-fraud
counts. In all other respects, the court denied the defendant's
post-trial motions. It then proceeded to sentence the defendant
to a seventy-two-month concurrent term of immurement on each count
of conviction. This timely appeal followed.
II
The defendant challenges his convictions on multiple
fronts. First, he argues that the evidence was insufficient to
sustain several of the counts of conviction. Second, he argues
that the impact of spillover prejudice necessitates a new trial.
Third, he argues that we should order a new trial due to
- 19 - instructional error. Finally, he argues that we should order a
new trial due to prosecutorial misconduct, that is, improper
closing argument. We address these arguments sequentially.
III
We start with the defendant's claim that the evidence
was insufficient to permit the jury to convict on the wire-fraud
counts and some of the Hobbs Act counts. We subdivide our
analysis, separating the wire-fraud convictions from the Hobbs Act
convictions.
As to both classes of claims, our standard of review is
familiar. We review an order denying a motion for judgment of
acquittal de novo. See United States v. Simon, 12 F.4th 1, 23-24
(1st Cir. 2021), cert. denied sub nom. Kapoor v. United States,
142 S. Ct. 2811 (2022), and cert. denied sub nom. Lee v. United
States, 142 S. Ct. 2812 (2022); United States v. George, 841 F.3d
55, 61 (1st Cir. 2016). Where, as here, the defendant challenges
"the sufficiency of the evidence, all of the proof 'must be perused
from the government's perspective.'" United States v. Kilmartin,
944 F.3d 315, 325 (1st Cir. 2019) (quoting United States v. Gomez,
255 F.3d 31, 35 (1st Cir. 2001)). "This lens demands that 'we
scrutinize the evidence in the light most compatible with the
verdict, resolve all credibility disputes in the verdict's favor,
and then reach a judgment about whether a rational jury could find
guilt beyond a reasonable doubt.'" Simon, 12 F.4th at 24 (quoting
- 20 - United States v. Olbres, 61 F.3d 967, 970 (1st Cir. 1995)); see
George, 841 F.3d at 61.
In conducting this tamisage, "we must honor the jury's
evaluative choice among plausible, albeit competing, inferences."
United States v. Rodríguez-Vélez, 597 F.3d 32, 40 (1st Cir. 2010).
We "need not be convinced that the verdict is correct" but, rather,
"need only be satisfied that the verdict is supported by the
record." Kilmartin, 944 F.3d at 325. Thus, "[t]he verdict must
stand unless the evidence is so scant that a rational factfinder
could not conclude that the government proved all the essential
elements of the charged crime beyond a reasonable doubt."
Rodríguez-Vélez, 597 F.3d at 39 (emphasis in original).
A
We turn first to the defendant's claim that there was
insufficient evidence to support the three wire-fraud convictions
that the district court allowed to stand. The elements of wire
fraud are "(1) a scheme or artifice to defraud using false or
fraudulent pretenses; (2) the defendant's knowing and willing
participation in the scheme or artifice with the intent to defraud;
and (3) the use of the interstate wires in furtherance of the
scheme." United States v. Arif, 897 F.3d 1, 9 (1st Cir. 2018)
(quoting United States v. Appolon, 715 F.3d 362, 367 (1st Cir.
2013)). The term "false or fraudulent pretenses" encompasses any
false statements or assertions that were either known to be untrue
- 21 - when made or that were made with reckless indifference to their
truth so long as those statements were made with an intent to
defraud. See United States v. Blastos, 258 F.3d 25, 28 (1st Cir.
2001). The term extends to "actual, direct false statements as
well as half-truths and the knowing concealment of facts." Id. at
29. But in all events, "[t]he false or fraudulent
representation[s] [at issue] must be material." Appolon, 715 F.3d
at 367-68.
Here, the government offered evidence to show that the
defendant — using two different types of materially false
representations — constructed a scheme to defraud and induced
Eisenberg and Martinez to invest $25,000 apiece in SnoOwl. The
first type of fraudulent misrepresentation related to the
defendant's track record in developing FindIt. Specifically, a
reasonable jury could have found from the proffered evidence that
the defendant falsely represented his success in developing and/or
selling FindIt. The second type of fraudulent misrepresentation
related to the defendant's plans for the use of investor money.
Specifically, a reasonable jury could have found from the proffered
evidence that the defendant falsely represented that investor
money would be used only to develop the SnoOwl app. Relatedly, a
reasonable jury could have found that the defendant concealed the
important fact that investor money for SnoOwl would be used for
his personal benefit.
- 22 - The defendant attempts to sidestep the force of this
evidence. Although he does not gainsay his interstate use of wire
transmissions in the course of soliciting investments from
Eisenberg and Martinez, he digs in his heels as to the other
elements of the wire-fraud convictions. He argues that he did not
use false or fraudulent pretenses because his representations
were, variously, puffery, true, or never uttered. And even if the
statements were made and were false, the defendant says, they were
not material.
This rebuttal is all foam and no beer. To begin, the
defendant's claim that his statements to Eisenberg and Martinez
regarding FindIt's sale to a group in Cambridge were mere puffery
is baseless. While the line between puffery and fraud is sometimes
blurred, the law distinguishes "between misrepresentations that go
to the essence of a bargain and those [misrepresentations] that
are merely collateral." Arif, 897 F.3d at 10. It is clear beyond
hope of contradiction that the defendant's misrepresentations
about FindIt were not merely collateral. After all, particularized
factual representations that can definitely be refuted — as opposed
to statements of mere opinions — can constitute fraud. See United
States v. Martinelli, 454 F.3d 1300, 1317 (11th Cir. 2006); United
States v. Ranney, 298 F.3d 74, 78 (1st Cir. 2002). The defendant's
statements regarding FindIt's sale fall squarely into this bucket.
- 23 - We need not tarry. From the proffered evidence, the
jury reasonably could have inferred that the defendant's story
regarding FindIt's sale was a fable and that the sale never
occurred. Yet, the defendant made a stream of contrary factual
representations to Eisenberg and Martinez. In context, those
representations could not reasonably be deemed to constitute
"exaggerated opinions or hyped-up sales pitches." Martinelli, 454
F.3d at 1317. Rather, they were factual statements that were
verifiably refutable.
The cases cited by the defendant do not advance his
cause. A prime example is United States v. Rodriguez, 732 F.3d
1299 (11th Cir. 2013). There, the Eleventh Circuit rejected an
argument similar to that made by the defendant. See id. at 1304.
The court held that the accused's statements to investors
"surpassed 'sellers' talk' or 'mere puffery'" when, among other
things, the accused made "specific" representations to customers
that "he knew . . . were completely unfounded." Id. So it is
here. The defendant's statements regarding FindIt's sale were
lies, not puffery.
What is more, the defendant's lies about FindIt were
material. "[T]o establish materiality, 'the government need not
prove that the decisionmaker actually relied on the falsehood.'"
United States v. Stepanets, 989 F.3d 88, 104 (1st Cir. 2021)
(internal quotation marks omitted) (quoting United States v.
- 24 - Cadden, 965 F.3d 1, 12 (1st Cir. 2020)), cert. denied, 142 S. Ct.
290 (2021). Instead, "the government need only show that the false
statement 'had a natural tendency to influence, or was capable of
influencing' its target's decision." Cadden, 965 F.3d at 12
(internal alteration and quotation marks omitted) (quoting United
States v. Prieto, 812 F.3d 6, 13 (1st Cir. 2016)); see Appolon,
715 F.3d at 368. The false statements about FindIt easily clear
this low bar: they had a natural tendency to influence the
investors' decisions as to whether to invest in SnoOwl. Indeed,
the jury reasonably could have concluded that the statements were
uttered for this very purpose.
The defendant demurs. He contends that Eisenberg and
Martinez invested in SnoOwl because they were convinced by his
overall business plan — not because he claimed to have had
previously developed and sold FindIt. But Eisenberg specifically
testified that he would not have invested in SnoOwl had he "known
that there was no college app that was sold to people in Cambridge,
who then sold it to Facebook." And more generally, past success
is often seen as a herald of future success. Thus, we think that
a rational jury could infer that a statement regarding a
prospective app-developer's past success in creating and selling
a similar app would have a natural tendency to influence a
prospective investor's decision to invest in a new endeavor. The
- 25 - defendant's false statements regarding FindIt's sale were,
therefore, material.
This leaves the defendant's claim that there was
insufficient evidence for a jury to find that he falsely
represented his plans for the use of investors' money. In support,
he advances two arguments. First, he argues that he truthfully
told investors that he would not draw a salary for his work on
SnoOwl. Second, he argues that he did not tell Eisenberg or
Martinez that he would use "all" of the investor money to develop
SnoOwl. Neither argument gains the defendant any traction.
The defendant's "salary" argument is a red herring.
Whether the defendant represented that he would not take a salary
is entirely beside the point. The government's theory of fraud
encompassed two broad categories of misrepresentation — and
neither category included a claim that the defendant told investors
that he intended not to draw a salary.
The defendant's second claim of error is swallowed up by
the district court's jury instructions. The court instructed the
jury that the defendant could be found guilty if he falsely
represented "that investor money for the SnoOwl project would be
used to develop the SnoOwl app" or if he "omitt[ed] to state and
conceal[ed] that investor money for the SnoOwl project would be
used for [the defendant's] personal benefit and not for the
development of the SnoOwl app." Under these instructions, the
- 26 - jury did not need to find that the defendant stated an intent to
put every cent of investor funds toward SnoOwl's development.
With that clarification, we think that the evidence was
sufficient to support the jury's verdict. Both Eisenberg and
Martinez testified that the defendant never told them that he
intended to pay for personal expenses — let alone extravagant
personal expenses — using company funds. And in the investor
agreements, the defendant warranted that he would not "transfer or
otherwise convey" SnoOwl's assets except in the ordinary course of
business. Those assets included the funds invested by Eisenberg
and Martinez.
The jury reasonably could have found that this assurance
was honored only in the breach. Following receipt of the
investment, the defendant proceeded to spend thousands of SnoOwl's
dollars on personal expenses, ranging from casinos to cologne to
student loans. No more was exigible to ground the jury's finding
that the defendant had made materially false representations in
this respect.
That ends this aspect of the matter. We conclude that
the evidence was sufficient for the jury to find that the defendant
had committed the various acts of wire fraud of which he stands
convicted.
- 27 - B
We turn next to the defendant's challenges to his
convictions for conspiring to commit extortion in violation of the
Hobbs Act. (We separately address, see infra Part III(C), his
challenges to the underlying extortion convictions.) The
defendant argues that the evidence was insufficient to show that
he conspired with two go-betweens — Hebert and Andrade — to extort
Pichette and Saliby, respectively. Both aspects of this argument
lack force.
The Hobbs Act makes it a felony to "obstruct[], delay[],
or affect[] commerce or the movement of any article or commodity
in commerce, by robbery or extortion" or to attempt or conspire to
do so. Tkhilaishvili, 926 F.3d at 10 (quoting 18 U.S.C.
§ 1951(a)); see United States v. Goodoak, 836 F.2d 708, 712 (1st
Cir. 1988). Extortion, in turn, "is defined under the Hobbs Act
as 'the obtaining of property from another, with his consent,
induced by wrongful use of actual or threatened force, violence,
or fear, or under color of official right.'" Tkhilaishvili, 926
F.3d at 10 (quoting 18 U.S.C. § 1951(b)(2)). This case focuses on
the "official right" strain of extortion.
Extortion under color of official right is the "rough
equivalent of what we would now describe as 'taking a bribe.'"
Ocasio v. United States, 578 U.S. 282, 285 (2016) (quoting Evans
v. United States, 504 U.S. 255, 260 (1992)); see United States v.
- 28 - Buffis, 867 F.3d 230, 235 n.5 (1st Cir. 2017). To prove this type
of extortion, the government must "show that a public official has
obtained a payment to which he was not entitled, knowing that the
payment was made in return for official acts." Ocasio, 578 U.S.
at 285 (quoting Evans, 504 U.S. at 268); see United States v.
Turner, 684 F.3d 244, 253 (1st Cir. 2012). "[T]he offense is
completed at the time when the public official receives a payment
in return for his agreement to perform specific official acts;
fulfillment of the quid pro quo is not an element of the offense."
Turner, 684 F.3d at 253 (emphasis in original) (quoting Evans, 504
U.S. at 268).
The jury supportably could have found that the
government's evidence showed that the prospective marijuana
vendors (for purposes of this discussion, Pichette and Saliby)
agreed to make payments to the defendant in exchange for official
actions (non-opposition letters and/or host community agreements).
The defendant nonetheless contends that there was insufficient
evidence to support his convictions for conspiracy to commit Hobbs
Act extortion. See, e.g., United States v. Echeverri, 982 F.2d
675, 679 (1st Cir. 1993) (noting that — to prove conspiracy —
government must "show, inter alia, that an agreement or working
relationship existed, that it had an unlawful purpose, and that
the defendant was a voluntary participant in it" (emphasis in
original)).
- 29 - 1
One branch of the defendant's argument centers on the
extortion of Pichette (who agreed to pay $25,000 to the defendant's
campaign fund and actually delivered $11,500 in partial
fulfillment of that agreement). The jury convicted the defendant
both of extorting Pichette directly and of conspiring to do so.
As relevant here, the defendant insists that the evidence was
insufficient to prove a conspiracy.
At trial, the government's theory of the case was that
the defendant conspired with Hebert to extort Pichette. In this
court, the defendant challenges the premise on which this theory
rests: to the extent that Hebert extorted Pichette, the defendant
suggests, he acted alone and out of self-interest, fueled by a
desire to enrich himself and to curry favor with the defendant.
Contrary to the defendant's importunings, there was
adequate evidence from which the jury reasonably could have
concluded that the defendant and Hebert conspired to extort
Pichette. Among other things, the jury heard testimony that, hours
prior to Pichette's meeting with the defendant, Hebert (who had
arranged the meeting) advised Pichette that obtaining the non-
opposition letter and host community agreement from the defendant
was going to "come with a [$25,000] cost." And during the meeting
itself, the defendant confirmed with Pichette that Pichette had
"talked to [Hebert]" and that they were "good." Juries are
- 30 - permitted to draw reasonable inferences from the evidence, and the
jury in this case fairly could have inferred from this evidence
both that the defendant was aware that Hebert had informed Pichette
of the demanded bribe and that Pichette had agreed to pay it. And
after the meeting, Hebert helped Pichette work out how best to pay
the bribe and agreed that it could be paid in installments. This
evidence and the reasonable inferences therefrom painted a picture
of a conspiracy with Pichette as the bribe-payer, Hebert as the
go-between, and the defendant as the bribe-taker. On these facts,
the jury was free to accept or reject that picture.
The defendant points elsewhere in the record to argue
that the "equal or greater" inference is that Hebert was acting
alone and solely for personal gain. Specifically, the defendant
points to the fact that, while brokering the arrangement, Hebert
unsuccessfully sought $100,000 in consulting fees from Pichette
and arranged for tens of thousands of dollars in mortgage
forgiveness on a loan that he owed to Pichette's brother. But
even if we assume that these facts support a plausible inference
that Hebert was acting to his own behoof — a matter on which we
take no view — that assumed fact does not undercut the inference
that Hebert also conspired with the defendant to extort a bribe
from Pichette. See Simon, 12 F.4th at 24; Rodríguez-Vélez, 597
F.3d at 40; United States v. Arias, 238 F.3d 1, 3 (1st Cir. 2001).
Wrongdoers sometimes may have mixed motives; and where, as here,
- 31 - the evidence is sufficient to support more than one motive, it is
for the jury — not for an appellate court — to separate wheat from
chaff. See United States v. Woodward, 149 F.3d 46, 58-59 (1st
Cir. 1998) (noting that "jury was free to 'choose among the
reasonable alternatives posed by the evidence,' and we will not
second-guess the jury's conclusion in this regard" (internal
citation omitted) (quoting United States v. Sawyer, 85 F.3d 713,
733 (1st Cir. 1996))).
The assumed fact — that the evidence may have been
sufficient for the jury to have found that Hebert was acting, in
part, out of self-interest — does not give rise to an equal or
nearly equal inference that Hebert and the defendant were acting
independently. See Rodríguez-Vélez, 597 F.3d at 40 (rejecting
defendant's argument that "the evidence, even if credited, shows
him to be a freelance entrepreneur rather than a coconspirator").
Notwithstanding any benefits that Hebert may have garnered for
himself, the jury reasonably could have found that he persuaded
Pichette to agree to donate $25,000 to the defendant's campaign
fund in exchange for the desired documents. And the $11,500 in
checks that Pichette subsequently donated were made out to "Friends
of Jasiel Correia, II," not "David Hebert."
The defendant has a fallback position. He argues that
the sequence of events demonstrates that, from the defendant's
perspective, there was no quid pro quo. At its core, this argument
- 32 - rests on the fact that Pichette received the documents before he
made the campaign contributions.
This is smoke and mirrors. In the analogous context of
illegal bribery under 18 U.S.C. § 666, we have observed that "the
timing of the payment may not provide a conclusive answer as to
whether [a] payment is a bribe or a gratuity, [but] the timing of
the agreement to make or receive a payment may." United States v.
Fernandez, 722 F.3d 1, 19 (1st Cir. 2013) (emphases in original);
see United States v. Jennings, 160 F.3d 1006, 1014 (4th Cir. 1998)
(explaining that "the timing of the payment in relation to the
official act for which it is made is (in theory) irrelevant");
United States v. Griffin, 154 F.3d 762, 764 (8th Cir. 1998)
(explaining that the distinguishing characteristic of a bribe is
the agreement to exchange something of value for official action),
as amended (Sept. 8, 1998). To be sure, "one cannot agree to
perform an act in exchange for payment when that act has already
been performed." Fernandez, 722 F.3d at 19. But timing is
critical: as long as the agreement to exchange a thing of value
for an official act is made before the act is performed, the
requisite quid pro quo is established. See Griffin, 154 F.3d at
764.
Those principles apply here. To convict on this charge,
the jury had to find that the defendant obtained a payment to which
he was not entitled in exchange for his agreement to supply the
- 33 - documents Pichette needed to open a marijuana business. See
Turner, 684 F.3d at 253. The jury was not required to find that
the payment was made before the official act occurred. See Evans,
504 U.S. at 268.
From the evidence introduced at trial, the jury
reasonably could have found that Pichette and the defendant agreed
that Pichette would pay a bribe in exchange for the documents
before the defendant signed them. It is thus of no moment that
the defendant proceeded to sign the documents in advance of
Pichette's payment of the bribe. By effecting the payment,
Pichette was simply completing his end of the bargain. When asked
why he followed through on contributing to the defendant's campaign
even after the documents were a "done deal," Pichette said
"[b]ecause that was the deal we made." We hold, therefore, that
it was well within the jury's province both to infer the existence
of an explicit quid pro quo between Pichette and the defendant,
see Griffin, 154 F.3d at 764; see also McCormick v. United States,
500 U.S. 257, 273 (1991) (holding that where payments are
structured as campaign contributions, Hobbs Act liability lies
when "payments are made in return for an explicit promise or
undertaking by the official to perform or not to perform an
official act"), and to infer that Hebert conspired with the
defendant to arrange that quid pro quo.
- 34 - 2
This brings us to the defendant's relationship with
Saliby. Although he refrains from challenging the underlying
extortion conviction, he takes aim at whether the government proved
a conspiracy to extort. Upon close perscrutation, we reject the
claim that there was insufficient evidence for the jury to find
that Andrade conspired with the defendant to extort Saliby.
This claim rests on the notion that Andrade was not a
coconspirator. Although Andrade was present during certain
meetings between the defendant and Saliby, the defendant posits
that she was not actively involved in the scheme. In support, the
defendant cites a number of cases holding that mere presence at
the scene of a crime and close association with those involved are
insufficient to show participation in a conspiracy. See, e.g.,
United States v. Morillo, 158 F.3d 18, 25 (1st Cir. 1998); United
States v. Andujar, 49 F.3d 16, 21 (1st Cir. 1995); United States
v. Ocampo, 964 F.2d 80, 82-83 (1st Cir. 1992).
That is true as far as it goes — but it does not take
the defendant very far. Presence and close association, though
insufficient without more, are nonetheless "relevant factors for
the jury" to consider. Andujar, 49 F.3d at 22. And as we have
said, a "defendant's presence during the commission of a crime can
establish guilt where the surrounding circumstances imply
participation." United States v. Rogers, 121 F.3d 12, 15 (1st
- 35 - Cir. 1997); see Echeverri, 982 F.2d at 678 (distinguishing between
"mere presence" and "culpable presence"). In the last analysis,
the "question is always whether the circumstances of the particular
case add up to showing both knowledge and voluntary participation
in a conspiracy beyond a reasonable doubt." Morillo, 158 F.3d at
25 (emphasis in original).
We think that the circumstances here are sufficient to
permit the jury to have found both knowledge and voluntary
participation on Andrade's part. Consequently, the evidence was
sufficient to show that Andrade conspired with the defendant to
extort Saliby. For a start, "it reasonably can be assumed that
'criminals rarely welcome innocent persons as witnesses to serious
crimes and rarely seek to perpetrate felonies before larger-than-
necessary audiences.'" United States v. Patch, 9 F.4th 43, 47
(1st Cir. 2021) (quoting United States v. Ortiz, 966 F.2d 707, 712
(1st Cir. 1992)); see Morillo, 158 F.3d at 24. And in other
contexts in which nefarious activity is afoot, we have said that
it is much less likely that a person is "an innocent
bystander . . . where [that] person is brought to a neutral site
by a [criminal] preliminary to the actual consummation of [the
crime]." Ortiz, 966 F.2d at 712. These observations apply four-
square to Andrade. She accompanied the defendant to Saliby's store
and was present when the defendant solicited Saliby for a $250,000
bribe. She was also present for the duration of a later meeting
- 36 - at which the defendant and Saliby negotiated an increased bribe in
exchange for the lowering of an annual municipal fee. Seen in
this light, this was not a case in which Andrade simply arranged
meetings but lacked knowledge of what transpired at those meetings.
The defendant dismisses this logic, relying on cases
such as Andujar and Ocampo. But the defendant's reliance is
misplaced. In Andujar, we overturned the defendant's conspiracy
conviction largely because the defendant was neither present at
any of the "critical . . . meetings" nor "aware" that the subject
matter of the meetings concerned a prospective crime. 49 F.3d at
22. That pattern is repeated in Ocampo, in which we reversed the
defendant's conviction after determining that "there was no
evidence that [the defendant] participated in any meetings" with
her alleged coconspirators, even though it might have been a "fair
inference" that she "knew what was going on." 964 F.2d at 82-83.
Unlike in Andujar and Ocampo, the evidence here suffices
to link Andrade to the scheme. Not only was she present at two
pivotal meetings at which bribes were negotiated, but she also
asked Saliby if "everything [was] okay" after he and the defendant
had wrapped up their negotiation. When Saliby responded in the
affirmative, Andrade assured him that "[y]ou're family now."
Jurors are expected to use their common sense, and a common-sense
interpretation of Andrade's remark, in the context of what had
- 37 - gone before, was to welcome Saliby into the "family" of those who
were doing under-the-table business with the defendant.
The defendant, in effect, entreats us to examine each
piece of evidence in isolation — but the jury was entitled to draw
reasonable inferences from the evidence as a whole. See Olbres,
61 F.3d at 974. Taking into account Andrade's presence at the two
meetings, the surrounding circumstances, her close relationship
with the defendant, and her contemporaneous statement to Saliby,
the jury reasonably could have inferred both her knowledge of and
her culpable participation in the bribery scheme.
We summarize succinctly. The record, read favorably to
the verdict, adequately supports both the jury's finding that the
defendant conspired with Hebert to extort Pichette and its finding
that the defendant conspired with Andrade to extort Saliby.3
C
The defendant's final pair of challenges to the
sufficiency of the evidence implicates two of his four extortion
3 Given our validation of these verdicts on the grounds stated, we need not reach the government's alternative argument that the verdicts may be upheld because the evidence suffices to show that the defendant conspired with the marijuana vendors themselves. Consequently, we take no view of the defendant's assertion that, as a matter of law, he could not be found guilty of conspiring with a marijuana vendor to extort that vendor himself.
- 38 - convictions: those involving Pichette and Bairos. We consider
these challenges separately.
With respect to Pichette, the defendant argues that the
evidence did not show that he himself demanded the payment of a
bribe. He also argues that — because he did not receive a personal
benefit from Pichette — the evidence was insufficient to show
extortion. Neither argument moves the needle.
The defendant's argument that the evidence was
insufficient to show that he extorted Pichette relies on theories
that we already have rejected. See supra Part III(B)(1). As
before, he argues that the evidence showed only that Hebert "acted
independently and for his own personal benefit." But the jury
heard evidence that, in a meeting at city hall, the defendant had
a side conversation with Pichette during which he confirmed that
Hebert had told Pichette about the required bribe and that Pichette
had agreed to pay it. Based on that conversation and the fact
that Hebert had discussed the bribe with Pichette earlier that
day, the jury rationally could have concluded — as it did — that
the defendant himself was extorting the bribe.
The defendant does present one new wrinkle. He says
that — in order to find him guilty of "official right" extortion
— the jury needed to find that he "personally receive[d] payments"
from the victims of his extortion. In other words, he argues that
- 39 - he cannot be found guilty under the Hobbs Act of extorting Pichette
if the benefit of his illicit acts accrued solely to some other
person or people. And because the bribe paid by Pichette was not
paid directly to the defendant, his thesis runs, he could not
lawfully have been found guilty of extorting Pichette.
We can swiftly dispose of this argument. Even if the
defendant was right that he needed to obtain a personal benefit to
be guilty of "official right" extortion, he in fact received such
a benefit. Pichette's donation of $11,500 to the defendant's
campaign fund surely would qualify under that rubric. And as we
already have determined, see supra Part III(B)(1), the jury
reasonably could have found that Pichette made this contribution
in exchange for the defendant's explicit undertaking to approve a
non-opposition letter and host community agreement on Pichette's
behalf. That meant, in essence, that Pichette received a specific
quid pro quo in return for his political contribution. No more
was exigible. See Turner, 684 F.3d at 253 n.4; United States v.
Cruzado-Laureano, 404 F.3d 470, 482 (1st Cir. 2005).
With respect to Bairos, the defendant reiterates his
claim that — in order to find him guilty of "official right"
extortion — the jury would have had to find that he personally
received something of value from Bairos. This argument has a
foothold in the record because the alleged middleman — Costa —
- 40 - testified that he never turned over to the defendant the money and
drugs that he received from Bairos.
We nonetheless reject the premise on which this argument
rests. The Hobbs Act defines extortion in relevant part as "the
obtaining of property from another, with his consent, under color
of official right." Turner, 684 F.3d at 253 (internal alteration
omitted) (quoting 18 U.S.C. § 1951(b)(2)). In United States v.
Brissette, 919 F.3d 670, 677, 680 (1st Cir. 2019), we held that
the statute's "obtaining of property" element is satisfied as long
as the defendant "brings about th[e] transfer [of another's
property] to a third party." In the process, we refused to credit
the claim that "the defendant[] must also 'enjoy a personal benefit
from' th[e] directed transfer [of another's property] in order for
the 'obtaining' element to be satisfied." Id. at 676 (internal
alteration omitted); see Tkhilaishvili, 926 F.3d at 10-11 (holding
that "the government was not required to show that the defendants
stood to benefit personally from the extortionate transfer of
[victim's] property to a third party"). And with respect to the
Hobbs Act's "official right" element, we noted that the Supreme
Court has never held "that the 'obtaining of property' element
requires proof that the defendant received a personal benefit
separate and apart from having 'brought about a transfer of
property to another.'" Brissette, 919 F.3d at 679 (internal
- 41 - alterations omitted) (quoting Scheidler v. Nat'l Org. for Women,
Inc., 537 U.S. 393, 408 n.13 (2003)).
Recognizing the force of this precedent, the defendant
tries an end run. He directs our attention to the term "official
right" and emphasizes that the Supreme Court has held that the
"official right" strain of Hobbs Act extortion envisions proof of
either "the sale of public favors for private gain," Wilkie v.
Robbins, 551 U.S. 537, 564 (2007), or a quid pro quo, see Evans,
504 U.S. at 268; McCormick, 500 U.S. at 274; see also Turner, 684
F.3d at 253-54 (collecting cases). Building on this foundation,
the defendant suggests that the quid pro quo requirement cannot be
satisfied unless the public official charged with "official right"
extortion personally benefited from the extortionate scheme. In
the defendant's words, the crime "requires that the official
personally receive an unlawful payment for an official act."
We believe that the defendant takes too crabbed a view
of "official right" extortion. To satisfy the quid pro quo
requirement, "the Government need only show that a public official
has obtained a payment to which he was not entitled, knowing that
the payment was made in return for official acts." Evans, 504
U.S. at 268. Justice Kennedy elaborated that the requirement of
a quid pro quo means only:
that without pretense of any entitlement to the payment, a public official violates § 1951 if he intends the payor to believe that absent
- 42 - payment the official is likely to abuse his office and his trust to the detriment and injury of the prospective payor or to give the prospective payor less favorable treatment if the quid pro quo is not satisfied.
Id. at 274 (Kennedy, J., concurring) (emphasis in original).
Neither element of this definition limits the quid pro quo
requirement to situations in which a public official personally
benefits from the corrupt payment. This makes good sense,
especially when one considers that the Court has long held that
"extortion as defined in the [Hobbs Act] in no way depends upon
having a direct benefit conferred on the person who obtains the
property." United States v. Green, 350 U.S. 415, 420 (1956).
Nor are we blazing a new trail in holding — as we do —
that "official right" extortion does not require that the
extortionist receive a direct benefit. Other courts that have
considered the question have reached the same conclusion. See,
e.g., United States v. Renzi, 769 F.3d 731, 743 (9th Cir. 2014);
United States v. Hairston, 46 F.3d 361, 365 (4th Cir. 1995); United
States v. Haimowitz, 725 F.2d 1561, 1577 (11th Cir. 1984); United
States v. Margiotta, 688 F.2d 108, 133 (2d Cir. 1982) overruled on
other grounds by McNally v. United States, 483 U.S. 350 (1987).
The two Supreme Court cases on which the defendant pins
his hopes do not suggest a different result. See Evans, 504 U.S.
255; McCormick, 500 U.S. 257. In each of those cases, the Court
"simply had no reason to address" whether a public official can be
- 43 - convicted of "official right" extortion when he does not "receive[]
a personal benefit separate and apart from having 'brought about
a transfer of property to another.'" Brissette, 919 F.3d at 679-
80 (internal alterations omitted) (quoting Scheidler, 537 U.S. at
408 n.13).
By the same token, Wilkie v. Robbins, 551 U.S. 537, does
not spring to the defendant's rescue. There, the Court clarified
that "official right" extortion includes "the sale of public favors
for private gain," but not "efforts of Government employees to get
property for the exclusive benefit of the Government." Id. at
564-65. That is a far cry from saying that the public official
must personally receive an unlawful payment in order to be guilty
of extortion.
To say more on this point would be supererogatory.4 We
conclude that there was sufficient evidence from which a reasonable
jury could find that the defendant extorted Bairos. The jury heard
evidence that — over the course of several months in 2018 and 2019
— Bairos paid Costa $77,550 through a combination of cash and in-
4 We do not address the defendant's argument (which by his own admission he raises solely for preservation purposes) that Evans was wrongly decided. Cf. Agostini v. Felton, 521 U.S. 203, 237 (1997) ("If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions." (quoting Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989))).
- 44 - kind payments. It also heard evidence sufficient to ground a
conclusion that Costa — in receiving the bribes — was acting in
concert with the defendant. That evidence, if credited by the
jury, was sufficient to satisfy the Hobbs Act's "obtaining of
property" element. See Brissette, 919 F.3d at 680.
Although Costa testified that he kept all the money for
himself, the jury could infer that both Bairos and the defendant
believed that the payments were made in exchange for the
defendant's issuance of a non-opposition letter and host community
agreement on Bairos's behalf. Both text-message evidence and
Costa's testimony supported the inference that the defendant had
agreed to receive money in exchange for the letters. To cinch the
matter, Bairos testified that the defendant had asked him about
the status of the payments on several occasions.
All in all, the evidence was sufficient to furnish a
foundation for the extortion convictions involving the defendant's
interactions with Pichette and Bairos.
IV
The defendant next argues that evidence admitted with
respect to the charges of which he was acquitted unfairly tainted
the jury's findings against him on the convictions that remain.
Specifically, he argues that he was prejudiced by "evidentiary
spillover" resulting from the "transference of guilt" from the ten
- 45 - counts that the district court dismissed in a post-trial ruling.5
United States v. Wihbey, 75 F.3d 761, 774 (1st Cir. 1996) (quoting
United States v. Sutherland, 929 F.2d 765, 772-73 (1st Cir. 1991)).
Relatedly, the defendant argues that the government introduced
themes in its evidentiary presentation undergirding the dismissed
charges (such as that he "was 'the type of person' who would do
anything to enrich himself") that unfairly reinforced the
remaining counts of conviction. Finally, he argues that seemingly
credible witness testimony and documentary evidence introduced in
connection with the dismissed counts "lent a false sense of
corroboration to the corruption case."
The defendant first raised the issue of prejudicial
spillover in his post-trial motion for a new trial. The district
court rejected the defendant's plaint. The court took pains to
note that the jury had been "very careful" and had reached a
"discriminating verdict."
"We review the district court's denial of a new trial
based on allegations of prejudicial spillover for abuse of
discretion." Simon, 12 F.4th at 44. Prejudicial spillover "occurs
when the evidence admitted to prove a charge as to which the
defendant was acquitted 'was so extensive, inflammatory, and
prejudicial that it necessarily spilled over into the jury's
5 The government does not appeal this ruling, and we do not address its merits.
- 46 - consideration of his guilt on other charges.'" Id. at 43 (internal
alteration omitted) (quoting United States v. Mubayyid, 658 F.3d
35, 72 (1st Cir. 2011)). "To determine whether an unacceptable
threat of prejudicial spillover materialized, we must evaluate
whether the record evinces 'a serious risk that the joinder of
offenses compromised a specific trial right or prevented the jury
from making a reliable judgment about guilt or innocence.'" Id.
(internal alterations and quotation marks omitted) (quoting
Mubayyid, 658 F.3d at 72). "The devoir of persuasion rests with
the defendant to show 'prejudice so pervasive that a miscarriage
of justice looms.'" Id. at 43-44 (quoting United States v.
Trainor, 477 F.3d 24, 36 (1st Cir. 2007)).
Here, we discern no abuse of discretion in the district
court's determination that the threat of prejudicial spillover did
not require a new trial. To begin, we address the defendant's
contention that he was prejudiced by the wire- and tax-fraud
evidence incidental to the dismissed counts — evidence that he
claims was irrelevant to the Hobbs Act counts. Much of this
evidence, he says, would have been inadmissible in a trial limited
to the remaining counts of conviction.
We consider this argument in two parts, beginning with
the evidence that was admitted on the six dismissed wire-fraud
counts. The district court supportably found that much of the
evidence on those counts would have been admissible in connection
- 47 - with the remaining charges. The court viewed the evidence as
admissible under Federal Rule of Evidence 404(b)(2) to prove the
defendant's intent, which the court noted was the "core relevant
issue in this case." United States v. Correia, 2022 WL 1004200,
at *6 (D. Mass. Apr. 4, 2022). And "[t]o the degree that the
evidence was prejudicial," the court observed, "it was not unfairly
so." Id. at *4; see Fed. R. Evid. 403; see also United States v.
Rodriguez-Estrada, 877 F.2d 153, 156 (1st Cir. 1989) ("By design,
all evidence is meant to be prejudicial; it is only unfair
prejudice which must be avoided." (emphasis in original)).
We conclude that the district court did not abuse its
discretion in finding no significant spillover prejudice from the
six dismissed wire-fraud counts. Importantly, three other wire-
fraud counts resulted in still-standing convictions — so any trial
that included those counts would have involved much of the same
evidence regarding how the defendant misled investors and used
company funds for his personal benefit. See United States v.
Zimny, 873 F.3d 38, 60 (1st Cir. 2017) (rejecting spillover claim
when some evidence "would still have been relevant and admissible
to [some of] the counts" of conviction); see also United States v.
Edgar, 82 F.3d 499, 504-05 (1st Cir. 1996) (finding no prejudicial
spillover from evidence on acquitted count when "[s]ome of the
[same] evidence . . . would have been admissible" with respect to
counts of conviction). And even if some modest amount of evidence
- 48 - on the six dismissed wire-fraud counts would have been inadmissible
in a case winnowed down to the Hobbs Act counts and a subset of
the wire-fraud counts, the evidence was not so "extensive,
inflammatory, and prejudicial" that it was apt to have affected
the jury's consideration of the defendant's guilt or innocence.
Simon, 12 F.4th at 43 (quoting Mubayyid, 658 F.3d at 72).
The second part of the defendant's argument targets the
evidence admitted on the tax-fraud counts (all of which were
dismissed by the district court in its post-trial ruling). But
once again, the district court refused to grant a new trial based
on spillover prejudice, invoking Federal Rule of Evidence
404(b)(2) and noting that much of the tax-fraud evidence would
still have been admissible in the context of the remaining charges.
We need not tarry. Even assuming, for argument's sake,
that the evidence related to the tax-fraud counts would not have
been admissible in relation to the Hobbs Act counts, we discern no
abuse of discretion in the district court's rebuff of the spillover
prejudice claim.6
We limit our analysis to the question of whether the evidence 6
admitted on the dismissed tax-fraud counts led to spillover prejudice vis-à-vis the Hobbs Act counts. The defendant has not developed any argument that the evidence admitted on the tax-fraud counts prejudiced him with respect to the three remaining wire- fraud convictions. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
- 49 - For one thing, the government's tax-fraud evidence was
neither inflammatory nor unfairly prejudicial. One reliable
measure of whether evidence can be considered inflammatory or
unfairly prejudicial is "whether the evidence on the reversed
count[s] would have tended to incite or arouse the jury into
convicting the defendant on the remaining counts." United States
v. Rooney, 37 F.3d 847, 855 (2d Cir. 1994). The government's tax-
fraud evidence consisted primarily of the defendant's tax returns,
spreadsheets documenting money the defendant owed to SnoOwl, an
accountant's files, and the testimony of two tax professionals.
Much of this evidence was dry as dust and — at any rate — it
resembled in kind parts of the evidence properly admitted to prove
the still-standing wire-fraud convictions (such as bank records,
credit card statements, receipts, and the testimony of an IRS
agent). Given its nature, there is no realistic possibility that
the tax-fraud evidence was prejudicial to such a degree that it
would have improperly influenced the jury's disposition of the
Hobbs Act charges. Cf. Mubayyid, 658 F.3d at 40-43, 73 (finding
evidence of defendants' support of terrorist organizations and
"violent jihad" did not unfairly prejudice jury against defendants
on counts of, among other things, tax fraud and making false
statements to federal agency).
For another thing, there were sufficient dissimilarities
between the evidentiary presentations on the tax-fraud and Hobbs
- 50 - Act counts to make it easy for the jury to differentiate among the
discrete charges. As other courts have observed, the degree to
which "charges are intertwined with each other" and the extent to
which "the evidence for the remaining counts is sufficiently
distinct" are factors that shed light on the likelihood that the
jury was able to compartmentalize evidence relevant to different
groups of charges. United States v. Wright, 665 F.3d 560, 575 (3d
Cir. 2012) (quoting United States v. Murphy, 323 F.3d 102, 118 (3d
Cir. 2003)); see Rooney, 37 F.3d at 856. "[W]hen the reversed and
remaining counts arise from completely distinct fact patterns and
the evidence can be easily compartmentalized," it is more likely
that the jury was able to "evaluate[] each count on the specific
evidence attributed to it." Rooney, 37 F.3d at 856; see Mubayyid,
658 F.3d at 73.
This is such a case. Here, the Hobbs Act evidence
focused on the defendant's alleged bribe-taking from marijuana
vendors during his tenure as mayor. The tax-fraud evidence, by
contrast, focused on his private-sector handling of SnoOwl funds
during an earlier period and before he was elected to office. That
latter evidence was sufficiently distinct from the Hobbs Act
evidence to dissipate the threat of spillover prejudice. On this
record, we are confident that the jury would have been able to
compartmentalize and apply the distinct bodies of evidence to the
- 51 - separate groups of charges. See United States v. Portela, 167
F.3d 687, 701 (1st Cir. 1999).
Our conclusion that there was no spillover prejudice
from the reversed counts is fortified by the fact that the jury
acquitted the defendant on two of the Hobbs Act counts and the
lone bribery count. Put simply, the jury returned a discriminating
verdict — and a discriminating verdict is an indication that
spillover prejudice did not infect the jury's decisional calculus.
As we have said, the fact that the jury's findings distinguished
among counts can be "evidence that no spillover prejudice
occurred." Simon, 12 F.4th at 44; see Edgar, 82 F.3d at 504
(holding that jury's acquittal on one of several counts
demonstrated harmlessness of spillover evidence). In a case like
this one, in which the jury rendered a judgment of conviction "on
only some of the charges, we are particularly reluctant to presume
that the jury was unable to compartmentalize the evidence of each
offense." Mubayyid, 658 F.3d at 74. But a caveat is in order:
because the jury acquitted on only three counts — counts unrelated
to the counts of conviction — we give the jury's discerning verdict
less weight than we ordinarily might.
We add that the basics for believing that the jury was
able to compartmentalize is strengthened by the district judge's
evaluation. After all, the district judge — a veteran presider —
saw the relevant events unfold at first hand and had a unique
- 52 - opportunity to assess the trial's dynamics. When — as in this
case — the trial judge assesses the possibility of spillover
prejudice and finds that possibility to be chimerical, an appellate
court ought to give that assessment great weight. See United
States v. Sam Goody, Inc., 675 F.2d 17, 26 n.9 (2d Cir. 1982)
(recognizing that a "trial judge is better situated than" an
appellate court to assess the "presence and effect" of factors
leading to spillover prejudice).
It bears mentioning, too, that the district court did
yeomen's work in protecting against the possibility of unfair
prejudice. We have held that the district court adequately guards
"against potential spillover prejudice by instructing the jury to
consider the evidence separately as to each count." United States
v. Bailey, 405 F.3d 102, 112 (1st Cir. 2005); see Trainor, 477
F.3d at 36 n.23; United States v. Tracy, 989 F.2d 1279, 1284 (1st
Cir. 1993). The court did that here by telling the jury in
substance — not once, but three times — that it was required to
consider each of the counts separately; that it needed to parse
the facts and circumstances in evidence regarding each count
individually; and that its decision on any one count did not
necessarily mean that it should reach the same decision on other
related counts.
The defendant tries to parry this thrust by arguing that
the district court should have instructed the jury that it needed
- 53 - to consider the "groups" of charges separately. The failure to do
so, the defendant says, may have implied to the jurors that they
could conflate the evidence underlying the different groups of
charges. But no such instruction was requested, nor did the
defendant object to the charge on this ground. And in all events,
no such instruction was required. In Zimny, for example, we held
that a jury instruction nearly identical to the one given here was
sufficient to protect against spillover prejudice notwithstanding
that the district court had explicitly "told the jurors that the
[assertedly unrelated] offenses were related." 873 F.3d at 59-
60. We conclude, therefore, that the court's instructions guarded
adequately against any cognizable risk of spillover prejudice.
The defendant tries to undermine the verdict from yet
another angle. In a variation on his principal argument, the
defendant suggests that he suffered spillover prejudice by virtue
of the government's use of elements of the wire- and tax-fraud
case to introduce themes that reinforced its Hobbs Act case.
Specifically, the defendant says that the government used the wire-
and tax-fraud case as a vehicle for portraying him as having a
criminal disposition. Moreover, he says that the government
injected the theme that he led a "lavish lifestyle" and would do
or say "anything to enrich himself." In support, the defendant
points mainly to comments that the government made during opening
and closing statements to the jury.
- 54 - The record provides some grounding for these arguments.
In both its opening and closing statements, the government made
comments that might be construed to suggest that the defendant had
a criminal propensity. In its summation, for instance, the
government stated (in relation to the tax-fraud charges) that
"someone who says he has partners when it makes him look good but
no partners when it costs him money [in taxes] is someone who will
say anything to get what he wants." But neither this comment nor
the other comments identified by the defendant drew any
contemporaneous objection from defense counsel. And in all events,
those comments were not sufficiently egregious or inflammatory to
warrant a new trial. See United States v. Fattah, 914 F.3d 112,
189 (3d Cir. 2019); United States v. Henry, 325 F.3d 93, 109-10
(2d Cir. 2003).
The same is true of the statements linking the
defendant's spending habits to political corruption. The
defendant's strongest example is a comment made by the government
in its closing statements to the effect that the defendant "would
and did say anything to anyone to get what he wanted," including
by "convinc[ing] and persuad[ing] people from all walks of life,
from a trusting [investor] to rough-and-tumble street guys, to do
what he wanted, and what he wanted was money, and what he wanted
was power. Money he was willing to steal and power he was willing
to sell." This statement, too — and its cousins in the record —
- 55 - drew no contemporaneous objection from defense counsel. And at
any rate, this line of argument was not sufficiently egregious or
inflammatory to warrant a new trial. See Fattah, 914 F.3d at 189
(declining to deem reference to defendants' "lies and deception"
inflammatory).
Even so, our opinion should not be read as an endorsement
of the statements made by the prosecutor. As a general matter,
prosecutors would do well to refrain from using such statements in
the future. Under abuse of discretion review and viewed in context
of the record as a whole, however, the prosecutor's comments —
though inelegant — are insufficient to warrant annulment of the
jury verdict on the ground of prejudicial spillover. See Henry,
325 F.3d at 109-10.
Our conclusion that the purported thematic connections
did not give rise to prejudicial spillover is reinforced by the
strength of the district court's instructions. As we have said,
the district court substantially lessened the risk that the jury
would conflate the wire- and tax-fraud charges with the Hobbs Act
charges by instructing in unmistakable terms that each count should
be considered separately. See Bailey, 405 F.3d at 112. Just as
those instructions minimized the risk that the jury would
improperly conflate the evidence, so too did those instructions
safeguard against the possibility that the jury would seize upon
the prosecutor's comments to forge impermissible thematic links.
- 56 - Finally, the defendant strives to persuade us that the
cumulative effect of the dismissed wire- and tax-fraud counts
clouded the jury's ability to assess the evidence. Specifically,
the defendant claims that, absent the wire- and tax-fraud evidence,
the jury would have more carefully scrutinized the government's
evidence and witnesses regarding the Hobbs Act counts. In other
words, the defendant exhorts us to find that the credible evidence
on the dismissed counts lent a false sense of corroboration to the
counts of conviction. As an example, the defendant points to
Costa's testimony and says that, without the testimony of the
credible wire- and tax-fraud witnesses and the volume of evidence
introduced in support of those charges, the jury likely would not
have "accepted Costa's testimony at face value."
We are not convinced. For a start, the defendant's
assent to a joint trial meant that the jury would be presented
with evidence relating to both SnoOwl and the defendant's alleged
extortion of marijuana vendors as mayor. And because three of the
wire-fraud convictions remain standing, the jury would have heard
much of the same wire-fraud evidence in any event. Last — but far
from least — we afford appreciable deference to jury determinations
of witness credibility. See United States v. Carroll, 105 F.3d
740, 743 (1st Cir. 1997) (noting that "[c]redibility
determinations are . . . squarely within the jury's domain").
Given these facts and given the extensive evidence undergirding
- 57 - the Hobbs Act convictions, the defendant has failed to show
"prejudice so pervasive that a miscarriage of justice looms."
Simon, 12 F.4th at 43-44 (quoting Trainor, 477 F.3d at 36).
We add a coda. We do not gainsay that, in particular
cases, spillover prejudice may be inimical to a defendant's fair-
trial right. In this case, though, the record makes manifest that
the district court was sensitive to this danger and carefully
guarded against it. We discern no abuse of discretion in the
court's refusal to order a new trial based on the claim of
spillover prejudice.
V
Battling on, the defendant challenges the form and
substance of the district court's jury instructions. "The scope
of our review is shaped by whether [the appellant] properly raised
and preserved an objection to the instructions at trial." United
States v. Gonzalez, 570 F.3d 16, 21 (1st Cir. 2009) (quoting Jones
v. United States, 527 U.S. 373, 387 (1999)). We review preserved
objections to the wording and form of instructions for abuse of
discretion. See id. We review preserved claims of error that
target the substance of the instructions — that is, whether they
conveyed the essence of the applicable law — de novo. See United
States v. De La Cruz, 835 F.3d 1, 12 (1st Cir. 2016); United States
v. Sasso, 695 F.3d 25, 29 (1st Cir. 2012). So, too, preserved
- 58 - objections to the omission of necessary jury instructions engender
de novo review. See De La Cruz, 835 F.3d at 12.
Unpreserved claims of error stand on a different
footing. We review all such claims, regardless of whether they go
to the wording, form, or substance of the instructions, for plain
error. See United States v. Goris, 876 F.3d 40, 46 (1st Cir.
2017). Under this standard, a conviction may only be disturbed if
the defendant shoulders the heavy burden of proving "(1) that an
error occurred (2) which was clear or obvious and which not only
(3) affected the defendant's substantial rights, but also (4)
seriously impaired the fairness, integrity, or public reputation
of judicial proceedings." United States v. Duarte, 246 F.3d 56,
60 (1st Cir. 2001). The party claiming "plain error must carry
the devoir of persuasion as to all four of the[] elements" embedded
in this construct. United States v. Pinkham, 896 F.3d 133, 136-
37 (1st Cir. 2018).
The defendant's first claim of instructional error is
that the district court abused its discretion by submitting
fractional written instructions to the jury that did not include
overarching instructions on concepts such as the presumption of
- 59 - innocence, reasonable doubt, and witness credibility. Some
background helps to set the stage.
The district court's charge, given ore sponte at the
conclusion of the trial, fully covered the concepts of the
presumption of innocence, reasonable doubt, and witness
credibility. The defendant does not fault those instructions.
But the court then proceeded to give the jury portions of its
instructions, in writing, to take into the jury room. These
portions included a description of the elements of the crimes
charged and what the government was required to prove. They did
not, however, include the court's instructions on the presumption
of innocence, reasonable doubt, and witness credibility. That
said, the court cautioned the jury "not to get too entranced by
the written instructions" and reminded the jurors that they could
not "disregard" the "foundational kinds of issues, like the idea
that the government must prove each essential element beyond a
reasonable doubt [and] that the defendant is presumed innocent."
The defendant contends that the court underemphasized
the latter concepts and the concept of witness credibility by
excluding them from the fractional portions of its charge that
were reduced to writing and sent into the jury room. We assume
for argument's sake that this contention was preserved.7 As such,
7 The defendant voiced this objection during the pre-charge conference, but the district court brushed it aside. The court
- 60 - it engenders review for abuse of discretion. Evaluating the
contention on this basis, we find it unconvincing.
A district court enjoys "considerable discretion in how
it formulates, structures, and words its jury instructions."
United States v. Prigmore, 243 F.3d 1, 17 (1st Cir. 2001). That
discretion extends to decisions about whether to submit written
instructions to the jury. See United States v. Previte, 648 F.2d
73, 84 (1st Cir. 1981). The defendant argues that this discretion
is nonetheless cabined: in his view, the court may only submit
either the written version of its complete charge or nothing at
all.
Our evaluation of this all-or-nothing proposition is
guided by our decision in United States v. Parent, 954 F.2d 23
(1st Cir. 1992). There, the district court submitted a written
excerpt of its charge in response to the jury's request for a
written supplemental instruction. See id. at 24. We noted that,
by submitting only a portion of the charge, the court elevated the
told the defendant that he could clarify the objection after the court had delivered the charge and sent the jurors to deliberate. Following the court's lead, the defendant objected again at that time. The defendant should have raised the objection before the jury was sent to deliberate. See Fed. R. Crim. P. 30(d); see also United States v. Serrano-Delgado, 29 F.4th 16, 25 (1st Cir. 2022) ("[W]e deem objections to jury instructions automatically unpreserved unless made after the instructions are given and before the jury retires."). But that failure may well be absolved because defense counsel appears to have been acting pursuant to the district court's explicit instructions.
- 61 - risk that the jury would place undue weight on the portion of the
charge committed to writing. See id. at 26. But we also noted
that it was not "per se error for a judge, having charged orally,
to honor a jury's request for a written supplemental instruction."
Id. at 27 (emphasis in original). And we went on to admonish that
"if a fractional written supplement is to be used following the
entirety of an oral charge, the judge must be extremely careful to
avoid the possibility of prejudicial emphasis." Id. Finally, we
suggested that a district court might guard against prejudicial
emphasis "by carefully reminding the jury of other aspects of the
original charge and cautioning them that the segment of the charge
which is amplified or explained should be considered in the light
of the other instructions and is not to be given undue weight."
Id. (quoting Beardshall v. Minuteman Press Int'l, Inc., 664 F.2d
23, 28 (3d Cir. 1981)). Parent leaves no doubt that the
defendant's all-or-nothing proposition is not good law.
The question remains, though, whether the district court
acted within the encincture of its discretion in deciding to submit
these particular fractional written instructions to the jury. We
approach that question with care, mindful that submitting
fractional written instructions to a jury is always a risky
business. A district court's employment of such a praxis always
must be evaluated on a case-by-case basis. In this instance, we
find that the district court stepped carefully in Parent's
- 62 - footprints and successfully "avoid[ed] the possibility of
prejudicial emphasis." Id. During its initial charge to the jury,
the court eloquently elaborated the concepts of the presumption of
innocence, reasonable doubt, and the importance of judging witness
credibility. It referred to those concepts repeatedly throughout
its instructions on the elements of the different categories of
offenses. Then — immediately before it submitted the fractional
written excerpts to the jurors — the court warned them not to "get
too entranced by the written instructions." And the court wisely
reminded the jurors of the "foundational . . . issues" such as
"that the government must prove each essential element beyond a
reasonable doubt [and] that the defendant is presumed innocent."
The court then directed the jurors to "keep all of those in mind"
and not "disregard them."
Viewed against this backdrop, we discern no abuse of the
district court's wide discretion. To begin, we think it important
that the submission of the fractional written instructions to the
jury was made as part of the charge as a whole (and not in response
to a mid-deliberation jury question). Moreover, although the
fractional written instructions were incomplete, the court gave
the jury suitable warnings about placing too much emphasis on them.
It also explicitly reminded the jury of the reasonable-doubt
standard and the presumption of innocence. We presume that juries
follow instructions given by the district court, see United States
- 63 - v. Bradshaw, 281 F.3d 278, 292 (1st Cir. 2002), and the defendant
has advanced no credible reason for eschewing that presumption
here.
Let us be perfectly clear. Our opinion should not be
read to condone the district court's approach as per se acceptable.
But in the circumstances of this case, we do not think that the
court abused its discretion, given the safeguards that it employed
to limit the possibility that the jury would place undue weight on
the fractional written instructions.
The defendant also challenges the substance of the jury
instructions in three respects. Because none of these challenges
was preserved, we review them for plain error. See Goris, 876
F.3d at 46. "[T]he plain error hurdle, high in all events, nowhere
looms larger than in the context of alleged instructional errors."
United States v. Paniagua-Ramos, 251 F.3d 242, 246 (1st Cir. 2001).
It is "the rare case in which an improper instruction will justify
reversal of a criminal conviction when no objection has been made
in the trial court." Gonzalez, 570 F.3d at 21 (quoting United
States v. Weston, 960 F.2d 212, 216 (1st Cir. 1992)). This is not
that rare case.
The defendant submits that the district court should
have instructed the jury to consider the different "groups" of
- 64 - crimes separately. He takes issue with the fact that, when the
court instructed the jury on the elements of the various groups of
crimes charged, it introduced each new group with a version of the
following instruction:
You must consider each of these counts, they're separate counts, each of these counts on the facts and circumstances of the evidence regarding them separately. Your decision as to any one of those counts does not necessarily mean that you will reach the same decision with respect to any other of those counts. They stand on their own and are evaluated on their own.
In the defendant's view, this type of instruction may have led the
jurors to believe that they could draw inferences as to the
defendant's guilt across groups even if they understood that they
could not do the same within groups.
We think that the defendant's fears are overblown. The
chief difficulty with his argument — beyond the stark fact that
the defendant did not make the argument below — is that a jury
instruction "must be evaluated not in isolation but in the context
of the entire charge." See Gonzalez, 570 F.3d at 21 (quoting
Jones, 527 U.S. at 391). Looking to the charge as a whole, we
find ample reason to believe that the jury was adequately
instructed about its obligation to assess each count — both across
and within groups — individually.
Notably, the defendant does not suggest that the
district court failed to instruct the jury on the specific elements
- 65 - of each group of charges. Nor could he: the court was careful to
explain that the government was required to prove each element of
each offense beyond a reasonable doubt. In this way, the court
highlighted that the counts were distinct. Cf. Trainor, 477 F.3d
at 36 n.23 (emphasizing that district court instructed jury that
each count was separate and that government had to prove each
element of each count beyond a reasonable doubt); United States v.
Chambers, 964 F.2d 1250, 1251 (1st Cir. 1992) (similar).
Equally as important, the verdict slip required that the
jury make an individual determination of the defendant's guilt or
innocence on each and all of the twenty-four charged counts. See,
e.g., United States v. Saunders, 553 F.3d 81, 85 (1st Cir. 2009)
(noting with approval that verdict slip differentiated between all
counts). The court — in telling the jurors about the verdict slip
— explained "that [the slip] w[ould] show you how each one of these
counts is separate and requires a separate determination by each
of you in which you're asked to answer not guilty or guilty with
respect to those counts." Although this explanation was given
after the court had instructed the jury on the elements of wire
fraud, the court later emphasized that the verdict slip required
the jurors to assess "whether or not [the government] proved beyond
a reasonable doubt each essential element of the offenses that are
reflected in that . . . slip" — thereby reinforcing the separate
and distinct nature of all twenty-four counts.
- 66 - The best evidence that the district court charge
adequately conveyed the separate nature of the counts is the jury's
discriminating verdict. That verdict is strong evidence that the
jurors fully understood that their decision on one count was
separate and distinct from their decisions on the other counts.
See, e.g., United States v. Brennan, 994 F.2d 918, 925 (1st Cir.
1993) (noting that "discriminating verdict suggests to us that the
jury was fully able to follow the court's instructions and
differentiate between the counts"); United States v. Boylan, 898
F.2d 230, 246 (1st Cir. 1990) (concluding that discriminating
verdict, in and of itself, "evidenced that the jurors were able
to, and did, follow the court's instructions").
To say more would be to paint the lily. There was no
plain error in the district court's instructions regarding the
separate nature of the counts.
The defendant's next claim of instructional error
targets the district court's jury instructions with respect to the
counts charging him with extortion under color of official right.
The court, he says, should have instructed the jury that it had to
find that he personally benefited from each extortive scheme.
This claim of error entails — albeit in different garb
— a view of the law that we already have debunked. See supra Part
III(C)(2). We see no reason to repastinate soil that has already
- 67 - been well-plowed. Suffice it to say that there was no plain error
in this respect.
In his last claim of instructional error, the defendant
asserts that the district court's instructions regarding
conspiracy to commit extortion failed adequately to explain the
applicable law. As he envisions it, the court should have
indicated that when consent or acquiescence is inherent in the
underlying substantive offense, "something more than bare consent
or acquiescence may be needed to prove that the person was a
conspirator." Ocasio, 578 U.S. at 292. Absent such an
instruction, the defendant suggests, the jury could have found a
conspiratorial arrangement between the defendant and a bribe-payer
(say, Pichette or Saliby) based on the latter's mere acquiescence
in the payment of the bribe.
Even if we assume that the omission of the proposed
instruction was error — a matter on which we take no view — the
defendant stumbles at the second step of the plain error construct.
At that step, the defendant must make an incremental showing: he
must show a "clear or obvious" error. Duarte, 246 F.3d at 60. A
clear or obvious error is one that "at the very least,
contradict[s] existing law." United States v. Gonzalez, 981 F.3d
11, 22 (1st Cir. 2020), cert. denied, 141 S. Ct. 1710 (2021); see
United States v. Rabb, 5 F.4th 95, 101 (1st Cir. 2021) (describing
- 68 - such an error as one that "is contrary to existing law" or
"'indisputable' in light of controlling law" (quoting United
States v. Jones, 748 F.3d 64, 69-70 (1st Cir. 2014))). We do not
think that the court's omission of the belatedly sought instruction
can fairly be said to have surmounted that high threshold.
As said, to prove that the defendant was guilty of
conspiracy to commit Hobbs Act extortion, the government was
required to show that he conspired to obtain property from another,
with the other's consent, under color of official right — meaning,
in practical terms, that he conspired to obtain a payment to which
he was not entitled, knowing that the payment was made in return
for an official act. See Ocasio, 578 U.S. at 285 (quoting Evans,
504 U.S. at 268); Turner, 684 F.3d at 253. And to prove the
requisite conspiracy, the government had to "show, inter alia,
that an agreement or working relationship existed, that it had an
unlawful purpose, and that the defendant was a voluntary
participant in it." Echeverri, 982 F.2d at 679 (emphasis in
original).
The district court's instructions regarding conspiracy
to commit extortion tracked these elements. The court told the
jury that, to find the defendant guilty of conspiring to violate
the Hobbs Act, it had to find that he "willfully" entered into an
"agreement" with "at least one other person" to "commit extortion
under color of official right." The court added that the
- 69 - government must "prove beyond a reasonable doubt that those who
were involved [in the agreement] shared a general understanding
about the object of their agreement" and warned that "[m]ere
similarity of conduct among various people or the fact that they
may have associated together with each other or discussed common
[aims] and interests does not necessarily establish proof of the
existence of a conspiracy." The court's partial written
instructions recapitulated these points.
It also bears mention that the court — in both its oral
and written instructions — made clear that the "agreement" which
the jury needed to find was the agreement specified in the relevant
count of the indictment and "not some other agreement with other
people involving other things." The indictment — itself sent to
the jury — charged that Brayton, Bairos, Pichette, and Saliby were
"[v]ictim[s]" of the defendant's extortionate scheme, not co-
conspirators, and that the defendant had conspired to commit Hobbs
Act extortion by "obtaining property" from those "victims" with
their consent.8
8 For the sake of completeness, we note that elsewhere in his brief, the defendant concedes that, in a jury note, the jury "distinguished between 'member of conspiracy' and 'victim.'" According to the defendant, that distinction demonstrates that the jury "understood the prosecution's trial theory to be that Mr. Correia agreed with Hebert and Andrade to extort Pichette and Saliby, respectively." Taking the defense at its word, then, the jury did not understand the government's theory to be that Pichette and Saliby were simultaneously victims and the lone co- conspirators of the respective extortion schemes, such that the
- 70 - Even if the court's instructions may not have been
letter-perfect, they "constitute[d] a fair statement of the
applicable law concerning" conspiracy to commit extortion under
the Hobbs Act. Paniagua-Ramos, 251 F.3d at 247. At the very
least, the instructions were not "contrary to existing law." Rabb,
5 F.4th at 101.
We hold, therefore, that — in the absence of a
contemporaneous objection — the district court did not commit clear
or obvious error by failing to instruct the jury sua sponte that
"something more than bare consent" was needed to prove extortion
conspiracy. Plain error was plainly absent.
VI
The defendant's final claim of error posits that alleged
prosecutorial misconduct during closing argument compromised his
right to a fair trial. This claim has a porous foundation: the
defendant did not contemporaneously challenge the conduct of which
he now complains, nor did he challenge it in his post-trial motion.
Our review, therefore, is only for plain error. See United States
v. Walker-Couvertier, 860 F.3d 1, 10 (1st Cir. 2017).
We first supply some context. During his closing, the
prosecutor played and referred to a video clip, previously admitted
into evidence, which was excerpted from a 2015 mayoral campaign
government would need to show that their payment of bribes amounted to more than "mere acquiescence." Ocasio, 578 U.S. at 298.
- 71 - debate. Early in the debate, the defendant had touted his
entrepreneurial accomplishments and cited SnoOwl as the pièce de
résistance. In the video clip, the defendant's opponent challenged
the defendant to:
Show us the proof. It looks to me as if SnoOwl isn't doing much of anything. How much money did you borrow to get SnoOwl started? And have you paid any of your investors back? Because once again, that's something that the public deserves to know. My record over the past 10 years in public life is an absolute open book. You – yours is the opposite of that.
The defendant responded:
[My opponent] is again showing his inexperience in the business community. An investor is a partner in your business. It's not a loan. We have taken in hundreds of thousands of dollars from investors, and our goal is to get them a return on their investment. That's exactly what I do. And that's why I am running for mayor, because I am going to take your ta[x] dollars, and I'm going to invest them in the right places. . . . I am going to take your money and spend it wisely. That's what I do in my business. You can talk to any of my investor-partners, and they'll tell you they love SnoOwl, they love their investment. It's not a loan. It's not a debt. The word "investor" means "partner." They are partners in my company.
The prosecutor played this clip three times during his
closing, all in the portion dedicated to the fraud charges. The
first time he played it he asked the jury to compare what the
defendant "said to the voters of Fall River in that October 2015
mayoral debate" with the testimony of the defendant's ex-
- 72 - girlfriend, who had testified to some of the defendant's
extravagant spending habits. After that display of the video clip,
the prosecutor said:
Spend it wisely? Like he does in his business? $32,118 on [his ex-girlfriend], $3,000 at the Intercontinental, Tiffany jewelry, $18,000 in personal purchases, campaign literature and stickers. Spend it wisely? He had no problem looking the voters right in the eye and telling them he spent this money wisely, knowing it wasn't true. Think about that. It tells you a lot.
Later in his summation, the prosecutor again used the
video clip (this time when deriding the defendant's boasts about
SnoOwl). Before playing the clip, the prosecutor suggested that
the jurors should "remember again . . . when the defendant stood
before the voters and touted what he had done for SnoOwl." Then
— after the video clip had been shown — the prosecutor commented:
"That's exactly what I do. I get them a return on their investment." That's what he said to the voters in October of 2015. But think about that statement in the context of what the bank records for SnoOwl actually showed at that very time. The Citizens account in October of 2015 had $69. Hundreds of thousands gone. $69. The BayCoast account, negative $709, the same month.
Folks, someone who can look the voters in the eye and say he got his investors a return when he knows negative $600 is what the company has and that the app is dead, that is someone who will say anything to get what he wants.
The prosecutor's last use of the video clip occurred in
connection with the tax-fraud charges. Specifically, that use
- 73 - occurred when the prosecutor was discussing the defendant's tax
returns and the question of whether the defendant cheated on his
taxes by claiming SnoOwl was a sole proprietorship as opposed to
a partnership. Again, the prosecutor asked the jury to remember
what the defendant said when he "looked the voters in the
eye . . . when he was questioned about SnoOwl and whether there
were loans." The prosecutor played the video clip for a third
time and then remarked:
Couldn't be clearer, right? October 2015, Jasiel Correia has partners. Then somehow in 2017 when he has to amend his returns and partners will cost him tens of thousands of dollars in tax liability, those partners disappear. He files a sole proprietorship return. Magically, the partners, just the way SnoOwl did in 2015, have disappeared. Now he's supposedly a sole proprietorship, one owner. Not true. And someone who says he has partners when it makes him look good but no partners when it costs him money is someone who will say anything to get what he wants. And it's the type of person who, after taking all the money he admitted he took to [an accountant], would still have the gall to ask the IRS for a refund.
The defendant did not object to the prosecutor's use of
the video clip on any of these three occasions. Nor did he object
to any of the prosecutor's related statements. And although the
defendant made a passing mention of the video clip in his post-
trial motion, that mention was only in connection with his
contention that the charges against him should have been severed.
Thus, the district court had no occasion to comment upon the
- 74 - prosecutor's use of the video clip when it denied the defendant's
alternative motion for judgment of acquittal or for a new trial.9
In this venue, the defendant contends that the
prosecutor's use of the video clip during his closing and his
associated comments amounted to prejudicial misconduct for two
principal reasons. First, the defendant alleges that the
prosecutor's actions constituted an improper propensity argument.
See, e.g., United States v. Taylor, 284 F.3d 95, 102 (1st Cir.
2002). Second, the defendant alleges that the video clip and the
associated comments played too heavily to the jurors' emotions by
inviting them to convict the defendant for pulling the wool over
the eyes of Fall River voters. See, e.g., United States v.
Manning, 23 F.3d 570, 574 (1st Cir. 1994) (explaining that
"arguments urging a jury to act in any capacity other than as the
9 Even so, the district court's views are not a secret. In passing upon a motion for continued release on bail, the district court canvassed the arguments made in the defendant's opening brief in this court. That brief apprised the district court — for the first time — of the defendant's contention that prosecutorial misconduct related to the use of the video clip during closing argument warranted a new trial. The court made pellucid that it did not consider "the government's use in closing argument of a videotape clip of [the defendant's] statements in a mayoral debate []as sufficiently improper to justify a new trial." Correia, 2022 WL 1004200, at *6. The court "did not then view the [prosecutor's] argument, graphically presented and underscored through the video clip, to be improper in whole or in part." Id. Rather, "it was fair argument . . . go[ing] to the core relevant issue in this case, that of scienter." Id.
- 75 - impartial arbiter of the facts in the case before it are
improper").
Plain error review is not appellant-friendly. We
previously have outlined the steep uphill climb that is required
for an appellant to prevail under plain error review. See supra
Part V (quoting Duarte, 246 F.3d at 60). As applied to closing
arguments, we have given the plain error standard a practical
twist. In that setting, "the plain error standard requires the
court first to determine whether the challenged comment is
obviously improper, that is, whether the first two prongs of the
plain error standard have been satisfied." Walker-Couvertier, 860
F.3d at 10. And if that is so, "the court must proceed to consider
whether the comment 'so poisoned the well that the trial's outcome
was likely affected.'" Id. (quoting United States v. Mejia-Lozano,
829 F.2d 268, 274 (1st Cir. 1987)). In conducting this appraisal,
we "must weigh factors such as the severity of the misconduct, the
context in which it occurred, the presence or absence of curative
instructions, and the strength of the evidence." Id.; see United
States v. Kasenge, 660 F.3d 537, 542 (1st Cir. 2011).
The district court did not regard the deployment of the
video clip and the associated comments as "improper in whole or in
part." See supra note 9. But even if we assume, favorably to the
defendant, that the alleged misconduct constituted clear or
obvious error — a matter on which we take no view — it cannot
- 76 - fairly be said that the alleged misconduct "so poisoned the well
that the trial's outcome was likely affected." See Mejia-Lozano,
829 F.2d at 274. We explain briefly.
We start with some general observations. Our inquiry is
case-specific, see Simon, 12 F.4th at 61, and the trappings of
this case are sui generis. We recognize both that the prosecutor's
statements were deliberate — the government frankly admits that it
used the video clip as a means of contrasting the defendant's
statements with other evidence in the case — and that the
deliberate nature of the statements is a factor favoring the
defendant in the misconduct analysis. See United States v.
Belanger, 890 F.3d 13, 34 (1st Cir. 2018).
Here, however, the alleged misconduct was not so severe
as to require reversal. Indeed, the trial judge — who saw the
three uses of the video clip and heard the associated comments in
real time — found nothing amiss. See supra note 9.
To be sure, statements made in the heat of a political
campaign cannot and should not always be taken literally. That
does not mean, though, that the campaigner is entitled to a free
pass. But the same is true for the prosecution. In that regard,
we note our concern that the government's use of campaign videos
in criminal prosecutions, especially on unrelated charges, may
have a chilling effect on political speech — the very category of
speech as to which the First Amendment affords the highest level
- 77 - of protection. See, e.g., Rideout v. Gardner, 838 F.3d 65, 75
(1st Cir. 2016). We caution, then, that our opinion should not be
read as a wholesale condonation of the tactic employed by the
government in this case; and we will continue to evaluate
allegations of prosecutorial misconduct that implicate free-speech
concerns on a case-by-case basis.
Notwithstanding our generalized concern, we find no
plain error here. The deployment of the video clip and the
comments associated with it appear to have been little more than
a rhetorical device, thrice repeated. And even though the
challenged comments may have suggested that the voters of Fall
River had been duped, nothing in the record suggests that invoking
the plight of those voters would have clouded the jury's ability
to weigh the evidence fairly.10
Nor was this a case in which the prosecutor introduced
improper argument early in the trial and proceeded to weave that
improper theme into the fabric of the case. See, e.g., United
States v. Canty, 37 F.4th 775, 792 (1st Cir. 2022). The opposite
is true: the prosecutor's use of the video clip played only a
tiny part in a long and complex trial. The video clip itself was
introduced into evidence without objection, and the challenged
We note that there is no indication in the record that any 10
Fall River voter was seated on the jury that decided the defendant's case.
- 78 - comments — which were limited to the wire- and tax-fraud counts —
take up only a few lines of a transcript that runs thousands of
pages.
We also find it significant that the defendant's trial
counsel did not object to what the defendant now alleges was
misconduct. Where, as here, a seasoned attorney does not object
to remarks made during closing argument, this silence "suggest[s]
that the remarks were not seen at the time" as poisoning the well.
Belanger, 890 F.3d at 35; see Kasenge, 660 F.3d at 543.
The sockdolager, of course, is the strength of the
government's evidence. We consistently have held that "the well
is less likely to have been poisoned where strong evidence supports
the prosecutor's case." Walker-Couvertier, 860 F.3d at 10
(internal alteration omitted) (quoting Kasenge, 660 F.3d at 543).
So it is here. Viewing the record as a whole, see Arrieta-Agressot
v. United States, 3 F.3d 525, 528 (1st Cir. 1993), the proof of
the defendant's guilt on each and every count of conviction was
solid.
In this case, all roads lead to Rome. In view of the
prosecutor's scattershot references in his summation to the video
clip, the absence of any contemporaneous objection to those
references, the government's independently powerful case against
- 79 - the defendant, and the instructions given by the district court,11
we conclude that the defendant has not shown a likelihood that the
alleged misconduct prejudiced the jury and, thus, influenced the
outcome of the case.
The defendant resists this conclusion. He marshals some
case law in support of his resistance — but the defendant is
comparing plums with pomegranates. Two examples suffice to
illustrate this point.
In Canty — a case in which the defendants were convicted
of conspiracy to possess and distribute drugs — "the prosecutor
made four types of improper comments at different points during
the opening statement, at closing, and at rebuttal." 37 F.4th at
781. "Each built upon the others and introduced improper themes."
Id. Notably, the prosecutor improperly appealed to the jury's
emotions by casting the defendants "as cruel and greedy outsiders
who came to [the state] to distribute illegal drugs to suffering
[citizens]"; argued that the defendants were guilty by association
with others who had already been convicted; vouched for the
The district court carefully instructed the jury that its 11
verdict must be based solely on the evidence. That instruction mitigated any improper residual impact that the prosecutor's statements may have had. See, e.g., United States v. Veloz, 948 F.3d 418, 436 (1st Cir.) (holding that similar instructions significantly undercut any prejudice from improper statements), cert. denied, 141 S. Ct. 438 (2020); Walker-Couvertier, 860 F.3d at 11 (same); see also Mejia-Lozano, 829 F.2d at 274 (collecting cases).
- 80 - credibility of witnesses; and mischaracterized video evidence,
thus subverting the court's instruction that the evidence was
admissible only against one of the defendants. See id. at 786-
90. Given these serial missteps, we held that the prosecutor's
obviously improper statements were cumulatively severe and — even
on plain error review — were so prejudicial as to warrant a new
trial. See id. at 791.
Our decision in United States v. Carpenter, 494 F.3d 13
(1st Cir. 2007), also serves to illustrate the incongruity of the
authorities on which the defendant relies. There, the defendant
was convicted of defrauding investors by misrepresenting his
investment strategy. See id. at 16. During closing argument, the
prosecutor made extensive use of a metaphor that likened the
defendant to a "gambler" and his management of his clients' money
to "gambling." See id. at 17, 23. The prosecutor "used some
permutation of the word 'gamble'" eighteen times, including
through "provocative references to 'cashing in chips,' 'doubling
down' and 'river boat gambler.'" Id. at 23. We affirmed the grant
of a new trial based on "the frequency with which the gambling
references were made," their persistently pejorative nature, and
our conclusion that they "were intended to, and did, inflame the
jury's passions against the defendant." Id. at 22-24.
The case at hand is cut from markedly different cloth.
Viewed in light of the record as a whole, the alleged misconduct
- 81 - simply does not support the defendant's claim that the prosecutor's
deployment of the video clip during closing argument and the
associated comments likely skewed the outcome of the trial.
Because the well was not poisoned here, it necessarily follows
that plain error lies beyond the defendant's reach.
VII
We need go no further. The record reveals that the
defendant was fairly tried and lawfully convicted by an impartial
jury in a trial presided over by an able judge and unblemished by
any reversible error. For the reasons elucidated above, the
judgment of the district court is
Affirmed.
- 82 -
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