United States v. Dwyer , 238 F. App'x 631 ( 2007 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 05-2051
UNITED STATES,
Appellee,
v.
JAMIE DWYER,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Lynch, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lipez, Circuit Judge.
John S. Ferrara with whom Dalsey, Ferrara & Albano was on
brief for appellant.
Vijay Shanker, Attorney, Criminal Division, with whom
Michael J. Sullivan, United States Attorney, and William M.
Welch, II, Assistant U. S. Attorney, United States Department of
Justice, were on brief, for appellee.
August 24, 2007
CAMPBELL, Senior Circuit Judge. Following a jury trial
in the district court, Jamie Dwyer appeals from her convictions for
conspiracy to commit federal program fraud, federal program fraud
itself, conspiracy to obstruct justice, obstruction of justice, and
making false statements. Dwyer argues (1) there was insufficient
evidence for a jury to convict her; (2) her prosecution for
conspiracy to commit federal program fraud was barred by the "bona
fide wages" exclusion of 18 U.S.C. § 666(c); (3) the district
court's instructions regarding two of the counts impermissibly
amended the indictment; and (4) the cumulative effect of the
court's allegedly mistaken denial of pretrial motions, erroneous
evidentiary rulings, improper jury instructions, and the improper
prosecutorial argument created a substantial risk of the
miscarriage of justice. We affirm the convictions.
Background
On September 2, 2004, a federal grand jury returned a
nineteen-count superseding indictment against Dwyer and co-
defendants Gerald Phillips, Giuseppe Polimeni, and Luisa
Cardaropoli. Eleven of the counts involved Dwyer, who was charged
with the following crimes: conspiracy to commit wire fraud and
federal program fraud (1); two counts of wire fraud (2, 4); four
counts of federal program fraud (3, 7, 8, and 9); conspiracy to
obstruct justice (10); two counts of obstruction of justice (11 and
15); and making false statements (16). The district court denied
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Dwyer's motions to dismiss the indictment and to sever trial of the
charges against her from those against her co-defendants. On
October 1, 2004, we denied her interlocutory appeal from the denial
of her motion to dismiss. A jury trial of the four defendants
began on January 18, 2005. On February 28, 2005, the jury found
Dwyer guilty of Counts 1, 2, 4, 7, 9, 10, 15, and 16 and acquitted
her on Counts 3, 8, and 11. On June 8, 2005, the district court
granted Dwyer's motion for judgment of acquittal on the two wire
fraud counts (Counts 2 and 4) on the ground that there was no
interstate communication as required under the wire fraud statute.
Dwyer accordingly stands convicted on six of the counts: 1, 7, 9,
10, 15, and 16.1 The district court sentenced her to concurrent
three-year terms of probation on each count of conviction and
further ordered her to pay a fine of $5,000 and $12,300 restitution
to the city of Springfield, Massachusetts. This appeal followed.
Facts
The evidence at trial was as follows. The Massachusetts
Career Development Institute ("MCDI") is a public department of the
City of Springfield. It is a skills-training center for citizens
1
Defendant states in her appellate brief that "Count One also
alleged conspiracy to commit wire fraud, but the Trial Court
determined that there was no interstate communication as required
by 18 U.S.C. § 1343, and dismissed all wire fraud counts.
Implicitly, the Court's ruling narrowed Count One to the Program
Fraud allegations." The government did not disagree with this
statement, and, without ruling on the matter, we shall assume that
the conspiracy conviction as it now stands is for program fraud
only.
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on welfare or trying to get off welfare. MCDI has a private,
incorporated, not-for-profit affiliate known as MCDI, Inc. MCDI,
Inc. was formed in part to use its tax-exempt status in applying
for grants to fund MCDI's programs. MCDI and MCDI, Inc. received
at least eighty percent of their funds from state and federal
grants. Phillips became the executive director of MCDI in 1997 and
also served as police commissioner of Springfield. Polimeni was
president of MCDI, Inc. MCDI and MCDI, Inc. were technically
separate entities and maintained separate accounting books. In
practice, however, Phillips ran both MCDI and MCDI, Inc., and
Polimeni was Phillips' closest aide in both entities. Polimeni was
in charge of day-to-day operations, including payroll, at MCDI and
MCDI, Inc. At times, more than 200 employees worked for the two
entities.
MCDI Baking Company ("MCDI Baking") was part of MCDI,
Inc. and was run by Polimeni. MCDI Baking supplied hot breakfasts,
lunches, and muffins to Springfield public schools. The
Springfield School Department paid for MCDI Baking's ingredients
and labor. MCDI Baking operated out of three locations: a kitchen
in MCDI's main building, a commissary where the school department
items were produced, and a warehouse. It made its own revenues
through payments from the school department, money from catering
jobs, and daily cash receipts from the main building kitchen where
MCDI employees bought meals.
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Dwyer was an administrative assistant at MCDI who
reported to Phillips and Polimeni. She joined MCDI in 1982 and
assisted with MCDI Baking's personnel and financial business,
including payroll, from its creation in 1992 through April 2001.
Dwyer collected MCDI Baking employee timesheets; checked the
calculations on them; totaled the hours; created a weekly payroll
spreadsheet; faxed the information to Checkwriters (the check-
writing company for MCDI and MCDI, Inc.); and distributed MCDI
Baking employee paychecks. Dwyer also wrote checks (but she could
not sign them), deposited checks, and balanced MCDI Baking's
checkbook. Thomas Grimes, the fiscal officer of MCDI, testified
that Dwyer had no role in policy-making decisions for MCDI, no
authority to hire or fire employees, and no check-signing
authority. She never signed a check that issued from MCDI Baking.
Dwyer had some oversight of MCDI Baking's muffin-making
program. She took orders and calculated how many muffins had to be
produced and how much labor would be needed. Every month, Dwyer
compiled and sent to the school department the bills for MCDI's
production of the hot meals and muffins.
The timesheets at MCDI Baking had spaces for "time in,"
"time out," total hours, employee signature, supervisor signature,
and authorizing signature. Each timesheet spanned one month, with
a row for each week. Once a week, Dwyer went to the kitchen to
pick up employees' timesheets. She checked the math totals for
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accuracy and entered the data onto a spreadsheet, and then
generated a report for Checkwriters. If there was a discrepancy on
the timesheet, Dwyer told the employee.
On August 11, 1998, Phillips sent a memo to the MCDI
staff stating that when employees completed timesheets, they were
representing that they had worked the stated hours, and that if
they had not worked the hours claimed, they were subject to
termination. On February 1, 2000, Phillips sent another memo to
MCDI employees, noting that new payroll timesheets were being
implemented, explaining how to complete them, stating that they be
submitted every Friday, and warning that non-submission would
result in reduced pay. The memo also included a sample timesheet,
which carried a warning against "perjury" and required the
signatures of the employee and the employee's supervisor. The memo
had been prompted by an audit company's finding that many
timesheets lacked employees' and supervisor's signatures.
In an April 27, 2000 memo, Phillips again advised MCDI
staff that "filling out your timesheets properly is a very serious
matter" (emphasis in original). On February 27, 2001, Phillips
sent out a memo reiterating that "all timesheets MUST be completed
and turned in by Friday," that "[e]ach staff member is responsible
for his or her own timesheets," and that failure to turn in a
timesheet would prevent the employee from getting paid. This memo
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had also been prompted by an auditor's observation that timesheets
were missing necessary signatures.
In 2000, the FBI was investigating allegations of an
illegal gambling operation in Springfield. The investigation led
to the arrest of several MCDI employees and also brought to light
significant discrepancies between the timesheets and payroll
information of several MCDI employees. Two of these employees
relate to Dwyer's present appeal: Gretchen Ortiz and Todd
Illingsworth.
i. Gretchen Ortiz
Gretchen Ortiz was a student and then an employee at
MCDI. In early 2000, Ortiz was evicted from her apartment.
Polimeni told Dwyer via a March 30, 2000 memo to advance Ortiz $500
pay. The next day, as MCDI Baking's check register showed, Dwyer
wrote and Polimeni signed a $500 check to Ortiz as advance pay.
Ortiz was then summoned to an MCDI office, where Phillips
presented her the $500 check. Phillips then took Ortiz to an
apartment complex his brother owned. Ortiz gave the check to
Phillips's brother and in exchange got an apartment on the second
floor of the building. She did not sign a lease, and she never
wrote a rent check; Phillips paid her rent and utility bills.
Ortiz and Phillips became involved in a sexual relationship.
Phillips visited Ortiz at the apartment once or twice a day.
Phillips also often summoned Ortiz from class or work to meet him
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at his office. Grimes and Dwyer, both of whom had daily contact
with Phillips, testified that they were unaware of his relationship
with Ortiz. Dwyer kept track of the loan to Ortiz. Initially,
Dwyer caused three hours' pay, or $24, to be deducted from Ortiz's
weekly paycheck to help repay the loan. In May 2000, however,
Polimeni told Dwyer to stop deducting Ortiz's pay. Dwyer made
handwritten notes on Ortiz's payroll documents showing that a
balance of $403 was left on the loan at that time. Ortiz never
repaid the remainder of the $500 loan from MCDI Baking, nor was she
asked to do so.
Ortiz was first designated by MCDI Baking as a muffin-
wrapper and then as a janitor. In about July 2000, Phillips, via
Polimeni, told Dwyer to pay Ortiz for thirty-five hours of work per
week until further notice. In accordance with this instruction,
Dwyer regularly issued payroll checks to Ortiz paying her for
thirty-five hours of work per week, even for weeks when Dwyer knew
that Ortiz had worked fewer than thirty-five hours and even when
Ortiz had either not submitted any timesheet or had submitted an
incomplete one. Dwyer never told MCDI's fiscal officers or outside
auditors about Phillips' instruction to her to pay Ortiz weekly for
thirty-five hours. The payroll records reflecting payment to Ortiz
for thirty-five hours of work per week were reviewed weekly by
Grimes and Phillips. Grimes never questioned Dwyer about Ortiz's
hours. There was evidence that Ortiz did not work the thirty-five
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weekly hours for which she was paid. She was supposed to work
until 5:30 p.m. each day, but in her trial testimony she recalled
only one day that she actually did so. She further testified that
when she was doing janitorial work, she took "about two, three
hours" a day to complete it. The welfare department required that
she work approximately nineteen hours a week, and Ortiz testified
that though MCDI regularly told the welfare department that she had
worked those hours, she did not always do so. Once or twice a
week, Phillips would ask Ortiz to leave work early. On those
occasions, Phillips would take Ortiz to a lake, the woods, and
other places. Other employees noticed that Ortiz was being paid
despite not being at work, and that she worked only occasionally
and for a few months total. Phillips occasionally told Ortiz not
to worry about her failure to work her required hours; he said he
would take care of it.
Dwyer, the payroll clerk for MCDI Baking, picked up
Ortiz's timesheets from the kitchen and reviewed them. Starting in
June 2000, Ortiz's timesheets showed significant deficiencies.
They lacked the required signatures and the "in" and "out" times.
Payroll summary sheets showed that Ortiz was nonetheless
consistently paid for thirty-five hours of work. For the week
ending June 30, 2000, Ortiz worked only five hours. She received
through Checkwriters a check for that number of hours, but she also
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received another check, for the same week, for thirty hours of
work. The check was handwritten by Dwyer and signed by Polimeni.
By mid-July 2000, Ortiz was working few hours or not at
all, but she was still receiving thirty-five hours' pay each week.
For the week ending July 7, 2000, Ortiz's timesheet reflected that
she had worked zero hours, but she was paid for thirty-five hours.
That week included two days off for Independence Day, but Ortiz was
paid as though she had worked every day of the week, reinforcing
the inference that her weekly payments were not based on reality.
Ortiz also received five days' pay each week for the weeks in which
Labor Day, Columbus Day, and a two-and-a-half-day Thanksgiving
holiday occurred. Dwyer entered thirty-five hours in the total
hours section of those timesheets.
On Ortiz's August 2000 timesheet, the rows for two weeks
had no hours listed, the rows for the other two weeks showed ten
hours of work per week, and Ortiz did not sign the timesheet.
Ortiz was nevertheless paid for thirty-five hours every week that
month. In September, October, and November, Ortiz's timesheets had
no time-in/time-out documentation; they showed only totals of
thirty-five hours each week, and Ortiz was paid for thirty-five
hours per week.
Airline boarding passes showed that Ortiz went to Puerto
Rico on November 20, 2000, but she received a full week's pay for
the week ending November 24. Dwyer received a complaint from
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another MCDI employee that Ortiz was paid despite having gone on
vacation. In addition, though Ortiz was terminated December 1,
2000, a form in Ortiz's personnel folder, completed by Dwyer, and
a note in the folder in Dwyer's handwriting indicated that Ortiz
was nonetheless paid for the week ending December 8, 2000. Ortiz's
file contained a December timesheet for the weeks ending December
1 and 8, with no times or signatures but totals of thirty-five
hours per week. For the week ending December 8, 2000, the
timesheet initially recorded that Ortiz worked zero hours, but a
"35" was written over the "0." Ortiz's check for the week ending
December 8, dated December 14, was handwritten by Dwyer and signed
by Polimeni. No taxes were withheld.
The entries on Ortiz's timesheets for April, May, June,
and August-December 2000 were all in Dwyer's handwriting. Dwyer's
payroll summary sheets show that from August 25, 2000, forward,
Ortiz did not submit any timesheets but was paid for thirty-five
hours per week "per Mr. Phillips." Dwyer testified that she added
the "per Mr. Phillips" notation "in case Grimes inquired about me
or there was an audit and I can refer back to them to refresh my
memory."
Unlike other employees, Ortiz was handed her weekly
paycheck by either Phillips or Polimeni. Dwyer was aware that
Ortiz's paycheck was missing each week from the group of paychecks
she received for distribution. Although Ortiz originally cashed
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many of her paychecks, beginning in June 2000, the endorsements on
the backs of her checks were forged. Phillips and Polimeni cashed
Ortiz's checks. Ortiz never approached MCDI saying she had not
received her pay. Phillips was paying Ortiz's personal bills,
including rent and utilities, through November 2000. The wages
paid to Ortiz from March 2000 through December 14, 2000, totaled
$7,700. Of that total, $5,300 was paid from the beginning of July
through December 14, 2000, during which period, the government
asserts, Ortiz worked close to zero hours.
ii. Todd Illingsworth
Todd Illingsworth was engaged to and then married to
Polimeni's daughter. Illingsworth worked at MCDI from July 1992
through October 1998, at which time he left. He returned in May
1999. When Illingsworth returned to MCDI in 1999, he began working
at the commissary for eight dollars an hour, and, initially, he
showed up to work regularly. After four or five months, however,
his attendance began to diminish until he stopped showing up almost
entirely. Another employee working at the commissary from late
1999-2001 saw Illingsworth only a "handful" of times.
Illingsworth's supervisor, Dennis Wilson, called Polimeni to report
the absenteeism; Polimeni told Wilson not to worry because, he
said, Illingsworth was using accrued compensatory time, or "comp
time." After Wilson questioned Illingsworth's attendance,
Illingsworth's timesheets began to be kept in the MCDI main
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building rather than at the commissary, and Wilson stopped
receiving Illingsworth's timesheets. Previously, following normal
practice, Wilson would enter the "time in" and "time out" and
"total hours" figures on Illingsworth's timesheets and would have
Illingsworth sign them at the end of the week. Wilson would then
take the timesheets to Dwyer. Now Wilson had to go to the main
building, where Dwyer worked, in order to complete Illingsworth's
monthly timesheets, a procedure not utilized for any other
employee. Wilson received no explanation for this separate
procedure. Wilson was told by Dwyer or Polimeni to fill out
Illingsworth's timesheets which already contained weekly hour
totals marked on them. Wilson would simply add daily hours so that
they added up to these weekly hour totals.
In September 1999, Illingsworth's timesheets began to
show significant deficiencies. His timesheets for September-
December 1999 showed alterations to several of the time entries.
On some of Illingsworth's timesheets, the full "total hours" row
was covered with correction fluid and new numbers were inserted.
The handwriting in the "total hours" column of Illingsworth's
timesheets was Dwyer's.2 In addition, Polimeni and Phillips, who
2
Dwyer notes that she was acquitted of the charge of
purposefully altering Illingsworth's timesheets to obstruct the
grand jury investigation. After Illingsworth was arrested in 2000
for gambling, Dwyer testified, Anne Scala, the payroll and accounts
receivable clerk, spoke to Dwyer about reconciling his timesheets
to reflect comp time he had been paid which had not been entered on
his timesheets. Dwyer testified that in response to Scala's
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were not Illingsworth's immediate supervisors, nevertheless signed
many of his timesheets, in contravention of the process laid out in
Phillips' own memos. Dennis Wilson, who was his supervisor, did
not sign any of his timesheets in 2000. From May 1999 through July
2000, Illingsworth was paid a total of $12,800. $5,600 of that was
for time supposedly worked between March and July, 2000.
Illingsworth was in a car accident on January 18, 2000,
and doctors told him not to work for three days. Timesheets for
January 2000, however, show that Illingsworth was paid for full
days of work on three days after January 18. According to
disability forms signed by Polimeni, Illingsworth was unable to
work until February 28. Illingsworth never showed up for work at
the commissary after his accident on January 18, but he continued
to be paid.
iii. FBI Investigation
The FBI first approached Dwyer at her home on March 6,
2002. Relying on an MCDI memorandum instructing employees to refer
to the administration any agencies that contacted them, she told
the visiting agents she could not speak to them without first
consulting her supervisors. That night, Dwyer spoke to Polimeni,
and the next morning, she spoke to Phillips. The FBI questioned
inquiry, she may have entered the totals on the Illingsworth
timesheets to reflect the amounts he had been paid but did not
change any of the "time in" or "time out" entries. Dwyer's
handwriting is not found on any of the latter time entries.
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Dwyer about Ortiz at MCDI on March 7, 2002. Dwyer told the FBI she
assumed Ortiz had worked all the hours for which she had been paid,
but that she could not verify that. She did not tell the FBI that
she had been given a standing instruction to pay Ortiz for thirty-
five hours per week, that she regularly filled in the hours on
Ortiz's timesheets, or that Ortiz was paid even after she ceased to
be employed at MCDI. Dwyer also told the FBI the only preferential
treatment Ortiz had received was the chance to work more hours than
other employees. She did not tell the FBI that Ortiz had received
a pay advance she did not repay, even though the FBI specifically
asked her about pay advances and she identified several employees
who received them.
The government sought evidence from MCDI related to its
investigation of no-show employees through grand jury subpoenas,
the first of which was issued on October 23, 2001; a consensual
search; and a warrant-authorized search. Customarily, Grimes
testified, when a subpoena arrived at MCDI, he would inform
essential employees affected by the data collection, including
Dwyer, and would assign individuals, including Dwyer, the
responsibility of retrieving documents, stressing the importance of
producing all documents. Dwyer and another individual, Karen Dean,
were responsible for gathering documents relating to Ortiz. Dwyer,
however, did not produce a copy of the memo from Polimeni about the
$500 advance for Ortiz, even though the memo was in her files and
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the government had subpoenaed all documents "relating to things
received, including, but not limited to, compensation for work
performed, compensatory time, and loans received and/or forgiven,"
with respect to Ortiz, among other people. Dwyer asserts that the
memo was not purposely withheld and that there is no evidence that
Dwyer was aware of a subpoena commanding its production. A copy of
that memo, which the government found during a search of MCDI, had
a copy of the check attached and contained Dwyer's handwriting and
notations indicating that the loan was for housing and had not yet
been repaid.
After the government issued its first subpoena, Grimes
walked into the office of Anne Scala and saw Polimeni standing
behind Scala as she compared Illingsworth's timesheets to payroll
records and covered the hour entries on the timesheets with
correction fluid. The covered hour entries were subsequently
written over with new entries, in Dwyer's handwriting.3
The FBI conducted a warranted search at MCDI on May 21,
2003. Agents discovered a locked vault, in which they found
payroll summary sheets for Ortiz that differed from the sheets
produced in response to the grand jury subpoenas. The payroll
documents were held in two boxes labeled "Jamie's Office." The
documents were in manila folders along with personal correspondence
3
See note 2, supra.
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in Dwyer's name, and included handwritten notes and post-it notes
addressed to Dwyer.
Similarly, payroll documents related to Illingsworth
found at MCDI differed from those produced by MCDI in response to
grand jury subpoenas. The documents seized from MCDI were again in
the vault in a box labeled "Jamie's Office." The timesheets
submitted in response to the subpoenas showed more hours than the
timesheets for the same weeks found in the vault. The original
timesheets from May 1999 through January 20, 2000 consistently
showed total hours that had been concealed by correction fluid and
then altered.
In May 2000, shortly after Ortiz was put on MCDI Baking's
payroll and Dwyer was asked to advance Ortiz $500 in pay, Phillips
asked Grimes to prepare a detailed salary history for Dwyer from
1985 through June 1999. In a memo dated May 2, 2000, Phillips then
instructed Scala to increase Dwyer's salary by fifty dollars, to
$631 a week. On June 13, 2001, Phillips again raised Dwyer's
weekly salary, by $136, to $767 per week. This memo preceded by a
few months the first grand jury subpoena in the case. In July
2002, a few months after Dwyer was interviewed by the FBI, Phillips
again raised her salary, to $789 per week. In just over two years,
Dwyer's salary increased by $289 per week, or approximately fifty
percent, while MCDI, Inc. and MCDI Baking were losing money.
Dwyer's personnel folder documented outstanding performance
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evaluations throughout her time at MCDI. Grimes testified that
Dwyer's pay increases were well-deserved.
Dwyer testified in her own defense. On direct
examination, she stated that she did not have any supervisory or
scheduling responsibilities; that she issued Ortiz the pay advance
in good faith, according to Polimeni's instructions; and that she
entered or changed times on Ortiz's timesheets in good faith to
correct errors or reflect later-obtained information that Ortiz had
worked additional hours. She conceded she had been told to pay
Ortiz for thirty-five hours per week and that Ortiz eventually
stopped submitting timesheets, but she stated her continued
payments to Ortiz were in good faith. She testified she made
notations on Ortiz's payroll documents in case Grimes or outside
auditors had questions about Ortiz's pay. Dwyer said she told the
FBI at her interview that she was unable to verify Ortiz's hours
and that she had received a complaint that Ortiz had been paid
while she was in Puerto Rico. She said the FBI did not ask any
follow-up questions on this point. Dwyer testified she answered
all questions at the FBI interview truthfully and to the best of
her recollection.
On cross-examination, Dwyer asserted it was her good-
faith belief that Ortiz had worked on holidays - including July 4,
Labor Day, and Thanksgiving - when MCDI was closed. She again
admitted that in July, 2000, Polimeni had told her to pay Ortiz for
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thirty-five hours per week until further notice, and that,
eventually, she was issuing Ortiz payroll checks for thirty-five
hours per week without knowing whether Ortiz had worked or not.
Dwyer originally claimed she believed Ortiz had worked
thirty-five hours the week ending December 8, 2000, but then she
admitted writing a note in Ortiz's folder indicating that Ortiz was
terminated on December 1, 2000. Dwyer said that when she arrived
at work on payday, the employees' payroll checks would be in a
mailbox outside her office, but that Ortiz's check had always been
taken out by that point. She acknowledged that, even though the
FBI had asked her about payroll advances, she did not mention the
payroll advance to Ortiz.
The defense argued that Illingsworth had been paid for
hours he did not work because, during his employment by MCDI ending
October 1998, he had built up compensatory time (time accrued by an
employee which can be credited as paid time off). About a year
after the government's second subpoena to MCDI on July 11, 2002,
requesting, inter alia, all records relating to compensatory time
accrued, earned, or received by Illingsworth, MCDI produced a
letter from Illingsworth to Phillips dated November 24, 1998, a
month after he had left MCDI. Illingsworth claimed in the letter
he had accumulated 232 hours of compensatory time at $18/hour
through extra overtime hours he had spent painting the MCDI
building. He sought payment for those hours. Attached to the
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letter were several sheets of notebook paper with handwritten
requests to use the compensatory time. The defendants argued that
Phillips refused Illingsworth's request to be paid for compensatory
time, so Illingsworth returned to MCDI in a part-time capacity. He
then supposedly used the compensatory time he had accumulated in
his earlier stint at MCDI. Dwyer testified at trial that it was
her understanding that Illingsworth would be permitted to recoup
the compensatory time he was owed.
Grimes, however, testified that MCDI's unwritten policy
was that when an employee left MCDI, he lost built-up compensatory
time and could not thereafter be paid for it. Grimes did not know
that Illingsworth was being paid for compensatory time and learned
of that claim only after the government issued subpoenas for
Illingsworth's records. He did not know any other MCDI employee
who had left MCDI and then had compensatory time restored. MCDI
had no written policy regarding compensatory time, and MCDI's
timesheets and leave forms do not mention it. FBI Special Agent
Wittrock testified that, during his investigation, he became aware
of no other employees who had received payment for compensatory
time.
Agent Wittrock testified that Illingsworth's November 24,
1998 letter was unusual because Wittrock had not seen any other
requests for payment for compensatory time in the documents turned
over during the investigation. Unlike other requests for leave,
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Illingsworth's handwritten notes requesting compensation for time
off had not been attached to his related timesheets. Further,
while some of Illingsworth's timesheets contained notations about
compensatory time, the handwritten notes from Illingsworth did not
match the timesheets. Wilson, Illingsworth's direct supervisor,
testified he never saw the handwritten individual requests by
Illingsworth for application of compensatory time. Additionally,
the FBI knew from its gambling investigation that Illingsworth had
been at his home making phone calls on many of the occasions he
said he was working and subsequently attributed his earnings to the
use of compensatory time.
Dwyer testified that she thought Illingsworth had earned
compensatory time for painting the MCDI building outside of regular
work hours. After Illingsworth left MCDI, she said, he was
entitled to be paid for his accrued compensatory time. To this
end, she had helped Illingsworth write the 1998 letter to Phillips
requesting payment. Dwyer denied telling Wilson to enter times on
Illingsworth's timesheets but conceded she "might have" changed the
totals on his timesheets. She denied changing payroll
spreadsheets.
On cross-examination, Dwyer admitted she had "corrected"
Illingsworth's timesheets "[t]o an extent," so that they
corresponded with his paychecks. She also testified to writing in
the hours on top of correction fluid on "one or two" of
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Illingsworth's timesheets. But she said she did this before the
issuance of a grand jury subpoena, and that she had never altered
documents "[a]fter a grand jury subpoena had been issued."
Discussion
Dwyer argues there was insufficient evidence to support
her convictions for conspiring to commit federal program fraud,
committing such fraud, making false statements, obstructing
justice, and conspiring to obstruct justice. She asserts there was
insufficient evidence to support a finding that payments to
Illingsworth were not "bona fide wages" under 18 U.S.C. § 666(c).
Dwyer additionally argues that the indictment was constructively
amended by the court's jury instructions and that the court made
cumulatively prejudicial errors that resulted in the denial of due
process. Each of Dwyer's contentions fails. We address them in
turn.
I. Sufficiency of the Evidence
a. Standard of Review
Dwyer moved for a judgment of acquittal at the close of
the evidence, preserving her claim for review. See United States
v. Van Horn, 277 F.3d 48, 54 (1st Cir. 2002). We review the denial
of a motion for acquittal de novo. United States v. Thompson, 449
F.3d 267, 275 (1st Cir. 2006). In evaluating sufficiency, we view
the evidence and credibility determinations in the light most
favorable to the verdict and inquire whether a reasonable
-22-
factfinder could have found the defendant guilty beyond a
reasonable doubt. Id. We "need not believe that no verdict other
than a guilty verdict could sensibly be reached, but must only
satisfy [ourselves] that the guilty verdict finds support in a
plausible rendition of the record." United States v. Hatch, 434
F.3d 1, 4 (1st Cir. 2006) (internal quotation marks omitted). The
jury is free to choose among reasonable constructions of the
evidence. See United States v. Hughes, 211 F.3d 676, 681 (1st Cir.
2000). An insufficiency claim presents "daunting hurdles." Hatch,
434 F.3d at 4 (internal quotation marks omitted).
b. Conspiracy to Commit and Commission of Program Fraud
i. Conspiracy to Commit Program Fraud
In order to prove the conspiracy, the government had to
demonstrate an agreement to commit program fraud, Dwyer's knowledge
of and voluntary participation in the agreement, and an overt act
in furtherance of the agreement. United States v. Ruiz, 105 F.3d
1492, 1499 (1st Cir. 1997). The agreement need not be express; a
tacit understanding may suffice. Each conspirator need not know
all of the details of the conspiracy or participate in every act in
furtherance of it. United States v. Perez-Gonzalez, 445 F.3d 39,
49 (1st Cir. 2006). But "mere association" with conspirators or
"mere presence" cannot alone establish knowing participation,
United States v. Nelson-Rodriguez, 319 F.3d 12, 28 (1st Cir. 2003)
(internal quotation marks omitted); the defendant must be found to
-23-
have shared her co-conspirators' intent to commit the substantive
offense. United States v. Llinas, 373 F.3d 26, 30 (1st Cir. 2004).
From the evidence introduced at trial, the jury could
reasonably have found that Dwyer had voluntarily joined in an
agreement with Phillips and Polimeni to pay Ortiz from MCDI, Inc.'s
payroll for hours she had not worked. Dwyer stopped deducting pay
from Ortiz to repay an initial $500 loan made to Ortiz at Phillips'
and Polimeni's request. Upon instructions from Phillips and
Polimeni, she took steps to pay Ortiz regularly for thirty-five
hours of work per week while knowing that Ortiz was not working
those hours for MCDI Baking. In furtherance of the conspiracy,
Dwyer ordered or prepared the checks and timesheets needed for the
overpayments to Ortiz. Dwyer acknowledged in her testimony that
she knew that Ortiz was not working the hours listed on her
timesheets.
In respect to Illingsworth, Dwyer kept and filled in
entries on Illingsworth's timesheets, and she instructed and
observed Wilson complete them by writing in hours that added up to
pre-entered totals. There was ample evidence from which the jury
could determine that Dwyer knew Illingsworth was not working during
all the hours for which he was paid.
The government argued at trial that Dwyer's participation
in the overpayments to both people was knowing and voluntary,
noting that she knew the payments were excessive for the hours
-24-
actually being worked at the time and disregarded MCDI's prescribed
procedures about the proper way to complete timesheets. The
government pointed out that Dwyer's own pay-raises dovetailed
suspiciously with the times of her improper actions. While Dwyer
denied any connection, the jury could plausibly have inferred from
the timing and unusually high amounts of the raises that Phillips
and Polimeni were rewarding her for her cooperation. See United
States v. Gomez-Pabon, 911 F.2d 847, 853 (1st Cir. 1990) ("[P]roof
[of membership in a conspiracy] may consist of circumstantial
evidence, including inferences from surrounding circumstances, such
as acts committed by the defendant that furthered the conspiracy's
purposes.").
Dwyer says her involvement with the program fraud was
"reluctant acquiescence" rather than "voluntary participation" and
claims that her "dedication and character" are inconsistent with a
finding that her actions, done at Phillips' and Polimeni's behest,
reflected any criminal intent. She argues that she simply failed
to appreciate that it was wrongful to do what her bosses told her
to do, hence lacked the intent to conspire to commit program fraud.
The evidence indicated, however, that she was well aware
that Ortiz and Illingsworth were being paid from MCDI's funds for
improperly documented work that the two individuals never
performed, and that her own activities directly furthered those
irregularities. She and those she was assisting were employees of
-25-
a firm that was part of a public department of the City of
Springfield. In those circumstances, the jury could have inferred
that she did not believe that Polimeni and Phillips could properly
direct and authorize her to pay out MCDI funds to the two non-
performing public employees. It is true she may have been in part
influenced by the fear that if she did not go along with her
supervisors' directions, they would retaliate against her; but
there was no evidence of threats, and a general concern of this
kind would fall short of precluding a finding of conspiracy. Dwyer
does not argue otherwise. See, e.g., United States v. Freeman, 208
F.3d 332, 342 (1st Cir. 2000) (a generalized fear of harm is no
defense to a conspiracy charge; evidence precluding inference of an
agreement would have to show that the duress to which defendant was
subject was "enough to overbear [her] will and make [her]
participation in the conspiracy involuntary").
The jury heard all the evidence, including Dwyer's
testimony, and could reasonably decide that she had knowingly and
voluntarily participated and that her denial of doing so was
lacking in credibility. See United States v. Maldonado-Garcia, 446
F.3d 227, 231 (1st Cir. 2006) (on sufficiency review, we "may
neither evaluate the credibility of the witnesses nor weigh the
relative merit of theories of innocence postulated by the
defendant"). There was sufficient evidence to support the jury's
verdict on the conspiracy charge.
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ii. Program Fraud
Commission of program fraud in violation of 18 U.S.C.
§ 666(a)(1)(A) may be shown by establishing, inter alia, that a
state government employee knowingly converted to the use of any
person other than the rightful owner, property worth $5,000 or more
belonging to the state, if the defendant's employing agency
receives at least $10,000 in federal funds within a calendar year.
18 U.S.C. § 666; see United States v. Cruzao-Laureano, 404 F.3d
470, 483-84 (1st Cir.), cert. denied, 126 S. Ct. 639 (2005). Dwyer
does not dispute that she was a state government employee and that
MCDI received annually more than $10,000 in federal funds. She
challenges only the finding of a knowing conversion of $5,000 or
more.4
In the case of Ortiz, the uncontroverted evidence was
that she was paid $7,700 from March 2000 through December 14, 2000,
of which $5,300 was paid from July through December 14, 2000. The
evidence showed that from at least June 2000 through December 14,
2000, Ortiz was working either no or, at most, very few hours per
week. The evidence also showed overpayments on occasions prior to
June. We think the evidence overall permitted the jury to conclude
4
Dwyer argues that she did not "benefit in any way from any
alleged wrongdoing at MCDI." That may be true, but section 666
criminalizes conversion to the use of "any other person." 18
U.S.C. § 666(a)(1)(A).
-27-
reasonably that at least $5,000 of the $7,700 paid to Ortiz was
fraudulently converted by Dwyer to Ortiz's use.
Ortiz received, in March 2000, a $500 loan, of which she
repaid only ninety-three dollars. Ortiz's timesheets (which were
in Dwyer's handwriting for the months of April, May, June,
September, October, November, and December, 2000) contained
substantial, repeated deficiencies. Grimes testified that Ortiz
should not have been getting paid based on the poor state of her
timesheets. Despite the fact that her timesheets lacked required
signatures and the "in" and "out" times, Ortiz was regularly paid
for thirty-five hours of work per week. The evidence is clear that
she recorded no hours of work the week ending July 7 as well as the
week ending November 24 when she was vacationing in Puerto Rico.
Ortiz was paid for the week of work following her termination on
December 1, 2000. Ortiz's August 2000 timesheet had no hours
listed for two weeks, and only ten hours each week for the other
two weeks. Nevertheless, she was still paid for thirty-five hours
of work each week. In September, October, and November, Ortiz's
timesheets contained no time-in/time-out documentation, showing
only the totals of thirty-five hours each week. Additionally,
Ortiz cashed her paychecks only until June, 2000, at which point
the signatures on the back of her checks were forged, with Phillips
and Polimeni cashing the checks. In light of all the other
evidence of default, the fact that Ortiz did not fill out her
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timesheets, pick up her checks, or complain when Phillips or
Polimeni cashed her checks, supported a reasonable inference by the
jury that she was not working to any extent at this time.
Ortiz's own testimony, indeed, tended to reinforce such
an inference. She said she remembered only one occasion on which
she worked until 5:30, the prescribed quitting hour. She further
testified that when she was doing janitorial work, she took "about
two, three hours" a day to complete it. The welfare department
required that she work approximately nineteen hours a week, and
Ortiz conceded that though MCDI regularly told the welfare
department that she had worked those hours, she did not always do
so. Moreover, Ortiz responded that she "didn't know" when asked if
she was "certain" she was still working at MCDI after she moved to
Forest Street, a move made on August 1, 2000.
Dwyer insists there was no clear evidence Ortiz was
overpaid by as much as $5,000 since Ortiz's own testimony lacked
any certitude as to the period or periods of time she had worked.
There are no absolute records to verify the precise number of hours
actually worked. But given the total payment to her of $7,700 and,
in particular, the $5,300 paid during the July-December period when
the evidence of her almost total absence from work was quite
strong, we believe there was sufficient evidence from which the
jury could reasonably infer that she was overpaid by at least
$5,000. The government did not have to establish with absolute
-29-
mathematical precision the number of hours Ortiz did or did not
work so long as it presented evidence from which it could
reasonably be inferred that she did not work sufficient hours to
warrant her being paid $5,000 during the period in question. We
think the evidence was sufficient to allow such an inference to be
drawn. We believe a reasonable jury could have inferred that Ortiz
did not perform sufficient work to justify being paid at least
$5,000 of the pay she received.
Regarding Illingsworth, it was established that he was
paid $7,200 in wages from May 1999 through January 2000 and $5,600
from March through July 2000, for a total of $12,800. However,
beginning September 3, 1999, Illingsworth's timesheets became
significantly deficient and around that same time, Illingsworth
began missing time at work until he stopped coming altogether. He
never returned to the commissary after January 18, 2000. The
government thus argues that the record entitled the jury to
conclude that Illingsworth was paid at least $5,000 in wages he did
not earn.
The defense responds that Illingsworth was entitled to
offset compensatory time from unpaid overtime work he allegedly had
earlier performed for MCDI prior to his leaving it in October,
1998. Beginning in December 1997, it is asserted, Illingsworth
painted the inside of the MCDI building during overtime hours. He
says he was not then paid, and was, therefore, entitled to be
-30-
credited with compensatory time, meaning he was entitled to take
equivalent time off after he was rehired by MCDI and be paid for
it. In its opening argument, the government conceded that
Illingsworth seemed to have earned about 240 hours of compensatory
time at $18/hour but asserted that Illingsworth had forfeited the
right to receive that income when he left his employment at MCDI in
October, 1998. The MCDI Employee Policy Manual says nothing about
the subject of compensatory time, and the defense acknowledges that
Phillips, MCDI's executive director, rejected Illingsworth's
request in his November 24, 1998 letter to be paid for the alleged
overtime painting hours. Over Dwyer's objection, the government
elicited testimony from Grimes that there was an unwritten policy
at MCDI that someone who left employment at MCDI lost all accrued
comp time. The government cites Grimes' testimony in contending
that the payments made to Illingsworth after leaving and being
rehired by MCDI could not be justified on the basis of comp time
allegedly earned during his prior employment by MCDI. The
government analogizes the loss of the comp time to the loss of
accrued sick leave or vacation upon leaving a particular job. The
government also points out that the comp time argument was
assembled only after the FBI investigation began and that
Illingsworth's supervisor, Wilson, did not see any requests for
compensatory time from Illingsworth when he was supposedly working
for Wilson. The defense points to no actual agreement with MCDI
-31-
whereby Illingsworth was permitted to apply comp time to the wages
earned after his rehire. By creating what was essentially a false
paper trail of time when Illingsworth was alleged to be working but
in fact was not, Illingsworth, with the assistance of Dwyer and
Illingsworth's father-in-law, Polimeni, simply undertook to pass
along to the City of Springfield the costs of work supposedly done
a year and a half prior.
Given Grimes' testimony that compensatory time could not
be credited after leaving MCDI; the absence of any evidence that
MCDI, in any formal or regular way, credited Illingsworth with
compensatory time; the lack of proper and meaningful
contemporaneous records, including timesheets, establishing that
Illingsworth's pay for work not done was being given for
compensatory time; and the further evidence indicating that the
compensatory time argument was concocted after the investigation
had begun, we believe the jury could have reasonably concluded that
it was improper to compensate him for work he never performed in
1999 and thereafter.
Dwyer responds that while a Massachusetts statute, Mass.
Gen. Laws ch. 149, § 148, prohibits "comp time" as such, it does
require that an employee be paid for all wages earned. That
statute states, in part:
Every person having employees in his service shall pay
weekly or biweekly each such employee the wages earned by
him to within six days of the termination of the pay
period during which the wages were earned if employed for
-32-
five or six days in a calendar week, or to within seven
days of the termination of the pay period during which
the wages were earned if such employee is employed seven
days in a calendar week. [A]ny employee leaving his
employment shall be paid in full on the following regular
pay day, and, in the absence of a regular pay day, on the
following Saturday . . . and every county and city shall
so pay every employee engaged in its business the wages
or salary earned by him . . . . The word "wages" shall
include any holiday or vacation payments due an employee
under an oral or written agreement . . . . No person
shall by a special contract with an employee or by any
other means exempt himself from this section . . . .
Id. Thus, Dwyer argues, MCDI could not lawfully refuse to pay
Illingsworth for the compensatory time he was owed, hence there was
no fraud in paying him later even if such payment was made
informally under the guise of paying him for work he in fact never
performed.
However, the very compensatory time policy which Dwyer
argues entitled Illingsworth to be paid long after the fact would
itself appear, if anything, to violate the plain language of the
statute. According to the statute, Illingsworth was to be paid
promptly after he performed the painting work in 1998; he was not
so paid. Indeed, Phillips apparently refused his request to be
paid. Instead, Illingsworth now claims he was paid later pursuant
to timesheets which reflected a fictional account of work he did
not perform at the times they said he did. The evidence of a
policy that compensatory time was forfeited after departure from
the company, coupled with Illingsworth's failure to secure any form
of official authorization from his employer to carry forward and
-33-
use compensatory time in the manner now claimed - as well as the
surreptitious manner in which his father-in-law Polimeni and Dwyer
went about paying him after his supervisor noted that he was not,
in fact, working at the times he was supposed to work - could have
prompted a reasonable jury to conclude Illingsworth was not
entitled to it, and that he was, at best, using an extra-legal
avenue to secure what he now feels he was owed.
Dwyer's own testimony about her belief that Illingsworth
deserved his compensatory time and her role in helping Illingsworth
request payment for the time in November, 1998, along with her
subsequent participation in the altering of the timesheets, could
also be found to indicate a desire on her part to make payments to
Illingsworth even though she was aware that such belated
reallocation of funds could not properly and legally be effected.
Dwyer testified that she believed Illingsworth had earned
comp time for painting the interior of the building and that he
wanted to be paid for that time. She testified that she assisted
him in drafting the letter requesting comp time after he had left
MCDI. She admitted to the possibility of her having changed some
of the "in" and "out" times on Illingsworth's timesheets so that
they would more correctly reflect what he had been paid, but not
the hours he actually worked. Illingsworth's immediate supervisor,
Wilson, never signed any of the timesheets for his employee during
2000, thus deviating from the established MCDI policy. In 2000,
-34-
Illingsworth was found at home gambling on days when the timesheets
show he was supposedly working. Given Dwyer's role in adjusting
the timesheets to put them in line with the payroll sheets after
the fact, her veracity could reasonably have been doubted by the
jury on the issue of her good faith belief that Illingsworth was
properly entitled to the belated payment. If he was, why was it
necessary to participate in the creation of a false paper trial of
time worked after the fact?
The jury could have reasonably concluded that
Illingsworth's failure to return to work, the lack of a formal
record of his comp time, the evidence of MCDI's non-accrual policy,
and the lack of any demonstrated formal relationship between the
later overpayments and the earlier absence of compensation, all
indicated that he was not receiving legitimate comp wages and thus
that Dwyer had participated in converting to Illingsworth more than
$5,000 as required to prove program fraud under the statute.
iii. Bona Fide Wages Exception
Section 666(c) by its terms "does not apply to bona fide
salary, wages, fees, or other compensation paid, or expenses paid
or reimbursed, in the usual course of business." 18 U.S.C. §
666(c); see United States v. Cornier-Ortiz, 361 F.3d 29, 33 (1st
Cir. 2004). Dwyer contends that her convictions for conspiring to
commit program fraud and committing program fraud are barred by
this exception as related to Illingsworth.
-35-
Whether wages were bona fide is a question of fact for
the jury. See Cornier-Ortiz, 361 F.3d at 36. Here, the district
court instructed the jury on the exception, and there was more than
sufficient evidence to support the jury's conclusion that the
payments to Illingsworth were not bona fide wages.5 As noted,
Illingsworth was engaged to and later married Polimeni's daughter.
The evidence taken in the light most favorable to the government
showed he was paid repeatedly for weeks he did not work.
Illingsworth was paid on days when he was out due to injury, and he
continued to be paid after he stopped working. A reasonable jury
could find that the payments to Illingsworth were not made in the
usual course of business and thus were not bona fide. Cornier-
Ortiz, 361 F.3d at 36 (payments not bona fide "if they were
intentionally misapplied, as they were here via sham contracts that
skirted conflict of interest rules and allowed [a corporation] to
receive preferential treatment and other benefits"); United States
v. Grubb, 11 F.3d 426, 431, 434 (4th Cir. 1993) (bona fide wages
exception inapplicable where employee "performed little work for
the Sheriff's office" and did not "perform functions for the
Sheriff's office on a regular basis"); cf. United States v. Mills,
140 F.3d 630, 633 (6th Cir. 1998) (bona fide wages exception
applicable because there was no allegation that employees "did not
5
Dwyer does not argue that the payments to Ortiz should be
considered under the 18 U.S.C. § 666(c) exception.
-36-
responsibly fulfill the duties associated with their employment").
We would add that to the extent the payments were, as was argued,
not intended as wages for work actually performed but reflected
some kind of informal and unauthorized compensatory time
reimbursement, they were also not bona fide wages. The jury could
reasonably find that the bona fide wages exception does not come
into play.
c. False Statements, Obstruction of Justice, and
Conspiracy to Obstruct Justice
Count Ten charged Dwyer with conspiring with Phillips,
Polimeni, and Cardaropoli to obstruct and impede the government's
investigation of MCDI in violation of 18 U.S.C. § 1503(a), which
provides:
Whoever corruptly, or by threats or force, or by any
threatening letter or communication, endeavors to
influence, intimidate, or impede any grand or petit
juror, or officer in or of any court of the United
States, or officer who may be serving at any examination
or other proceeding before any United States magistrate
judge or other committing magistrate, in the discharge of
his duty, or injures any such grand or petit juror in his
person or property on account of any verdict or
indictment assented to by him, or on account of his being
or having been such a juror, or injures any such
officers, magistrate judge, or other committing
magistrate in his person or property on account of his
performance of his official duties, or corruptly or by
threats or force, or by any threatening letter or
communication, influences, obstructs, or impedes, or
endeavors to influence, obstruct or impede, the due
administration of justice, shall be punished . . . .
The overt acts alleged in Count Ten included the backdating and
alteration of Illingsworth's timesheets; Polimeni's allegedly
-37-
making a false statement to a special agent of the FBI on January
15, 2002; Dwyer's allegedly making false statements to the FBI on
March 7, 2002; Cardaropoli's allegedly making false statements to
the FBI in February, 2003; and Phillips' threatening Densing
Abraham, a seventeen-year-old MCDI employee and potential grand
jury witness, on March 11, 2003. The jury found Dwyer not guilty
of conspiring with Polimeni to alter Illingsworth's timesheets.
Cardaropoli was found not guilty of lying to the FBI, and Dwyer was
found not guilty of program fraud arising from the wages paid to
Cardaropoli. Phillips was found not guilty of threatening Abraham.
Accordingly, after eliminating the overt acts related to these
counts, it can be assumed that Dwyer was found guilty of conspiracy
to obstruct justice in Count 10 on the basis of the statements she
gave to the FBI on March 7, 2002. Dwyer was charged in Count 15
with obstruction of justice based on those statements, violating 18
U.S.C. § 1503, and in Count 16 with making false statements. We
assess the sufficiency of the evidence for these three counts in
concert, as they are all based on the underlying claim of false
statement.
"In order to convict a defendant of making a false
statement under 18 U.S.C. § 1001, the prosecution must prove that
the defendant, in a matter within the jurisdiction of the United
States government, knowingly made a material statement to the
government which was false." United States v. Sebaggala, 256 F.3d
-38-
59, 63 (1st Cir. 2001); see United States v. Duclos, 214 F.3d 27,
33 (1st Cir. 2000).
The government argues that Dwyer knowingly and willfully
made material false statements to the FBI when speaking to Agents
Clifford Hedges and Susan Kossler on March 7, 2002. She told the
FBI she assumed Ortiz had worked all of the hours she was paid for,
but that she could not verify that Ortiz had done so. Dwyer had,
however, been given a standing instruction to pay Ortiz for thirty-
five hours per week; she routinely filled in the hours on Ortiz's
timesheets, noted on the payroll summary that Ortiz had worked zero
hours but was being paid for thirty-five "per Mr. Phillips," and
wrote a check to Ortiz after she knew Ortiz had been terminated.
She did not explain this situation to the FBI. Dwyer also told the
FBI that the only preferential treatment Ortiz had received was the
opportunity to work more hours than other employees. Dwyer knew,
however, that Ortiz had received a payroll advance which she did
not repay. Asked about payroll advances, Dwyer identified several
other employees who had received them but did not mention Ortiz.
The government argues that this was more than enough evidence to
support the jury's finding that Dwyer knowingly made false
statements. See Hatch, 434 F.3d at 6 ("The determination as to
[the defendant's] state of mind - his belief in the untruthfulness
of his statement - is one which the jury is best equipped to
perform."); United States v. Singh, 222 F.3d 6, 10 (1st Cir. 2000).
-39-
Dwyer argues in response that the FBI agents did not ask
any follow-up questions and did not seek more complete answers than
the ones she gave. She also points out that the interview was not
recorded and that no written statement was taken. Kossler
testified that she did not inform Dwyer what the FBI was
investigating beyond telling her that it was about MCDI and her
role there. Kossler additionally testified that Dwyer volunteered
that someone had once complained to her that Ortiz had been paid
for a week when she was not even working, when she had been in
Puerto Rico. The agent did not ask any follow-up questions on that
point.
Dwyer herself also testified about the March 7 interview.
She said that she had answered all questions truthfully and did not
believe she was a focus of the investigation. But Dwyer did not
contest that she stated that she assumed Ortiz's hours were correct
when in fact she knew of a standing order to pay her for thirty-
five hours regardless of whether she worked zero hours. She also
stated that she did not know of any preferential treatment when she
knew Ortiz had not been required to repay a loan. She thus made
affirmative false statements and did not just omit or fail to
volunteer information when the FBI did not ask follow-up questions.
Further, those false statements were material. "The test
of materiality is whether the false statement in question had a
natural tendency to influence, or was capable of influencing, a
-40-
governmental function," Sebaggala, 256 F.3d at 65 (citation
omitted). "[I]f a statement could have provoked governmental
action, it is material regardless of whether the agency actually
relied upon it." Id. Dwyer's statements were about issues at the
center of the investigation. If she had been truthful about
Ortiz's standing thirty-five-hour-per-week pay schedule and the
preferential treatment she received, the investigation could have
been significantly shortened. We hold, therefore, that there was
sufficient evidence to support Dwyer's conviction for making false
statements.
There is likewise sufficient evidence supporting Dwyer's
convictions for obstruction of justice and conspiracy to obstruct
justice. In order to demonstrate obstruction of justice in
violation of 18 U.S.C. § 1503, the government had to prove that
Dwyer corruptly influenced, obstructed, impeded, or endeavored to
influence, obstruct or impede, the due administration of justice.
The government had to show that there was a pending judicial
proceeding; that Dwyer had notice of the proceeding; and that she
acted corruptly with the intent to influence or obstruct, or
endeavored to influence or obstruct, the proceeding. See United
States v. Frankhauser, 80 F.3d 641, 650-51 (1st Cir. 1996).
"It is well-established that a grand jury investigation
constitutes a pending judicial proceeding for purposes of § 1503."
United States v. Macari, 453 F.3d 926, 936 (7th Cir. 2006). The
-41-
grand jury proceeding here was underway before the government
interviewed Dwyer on March 7, 2002. Grimes testified that when a
grand jury subpoena came in, the group of employees, including
specifically Dwyer, responsible for gathering documents responsive
to it would be told of, and would know about, the existence of the
subpoena. Before her interview with the FBI, Dwyer spoke with
Phillips and Polimeni, both of whom, Grimes testified, would also
have been aware of the existence of a grand jury subpoena. A
reasonable jury could have concluded from the testimony that Dwyer
had notice of the October 23, 2001 subpoena, was aware that it had
been issued by a grand jury, and was further aware from the nature
of the materials she was directed to gather that the grand jury's
investigation pertained to the payment of employees at MCDI. The
jury could also conclude that she would have known from the
character of the questions the FBI subsequently put to her in her
interview that matters relevant to the grand jury's investigation
were the subject of the FBI's inquiry. Additionally, evidence that
Dwyer made false statements to the FBI agents supported the jury's
conclusion that she intended to influence or obstruct the grand
jury proceeding.
Dwyer argues that the government didn't prove she knew
her statements would be submitted to a grand jury. See United
States v. Aguilar, 515 U.S. 593, 598-600 (1995) (requiring a
"nexus" between the defendant's act and the judicial proceeding;
-42-
i.e., "the act must have a relationship in time, causation, or
logic with the judicial proceedings"). As we have said, however,
the evidence was sufficient for a jury to infer therefrom that she
was aware her statements would go to the grand jury.
In Aguilar, the government had failed to show that the
FBI agents were acting as an arm of the grand jury or that it had
even sought their testimony, so that the mere "uttering [of] false
statements to an investigating agent . . . who might or might not
testify before a grand jury" was insufficient to establish a
violation of Section 1503. 515 U.S. at 600. In order to show that
an FBI investigation constitutes a "judicial proceeding" for
purposes of § 1503, the government must establish that the FBI was
acting as "an arm of the grand jury." Macari, 453 F.3d at 937. It
must show that the agents were "integrally involved" in the grand
jury investigation and that the investigation was undertaken "with
the intention of presenting evidence before [the] grand jury." Id.(internal quotation marks omitted).
Here, the government showed that the FBI was working as
an arm of the grand jury by collecting evidence that was eventually
presented to the grand jury. Agent Kossler testified that the
grand jury investigation was underway by early 2002, and the FBI
was gathering information, conducting interviews, and reviewing
documents. The agents were not conducting "some ancillary
proceeding, such as an investigation independent of the court's or
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grand jury's authority," Aguilar, 515 U.S. at 599. A reasonable
jury could infer, moreover, that Dwyer knew her statements would be
submitted to the grand jury, as she was aware of the grand jury
subpoena and related investigation, had spoken to Phillips and
Polimeni before her interview with the FBI, and had answered
questions on topics related to documents sought in the October 23,
2001 subpoena. There was sufficient evidence of a nexus between
Dwyer's false statements and the grand jury proceeding.
There was also sufficient evidence for a reasonable jury
to find that Dwyer was guilty of conspiracy to obstruct justice.
The evidence supported the jury's inference of a knowing and
voluntary agreement: Dwyer had spoken with Phillips and Polimeni
before making the false statements about Ortiz. She also received
a pay raise soon after. There was an overt act: the making of the
false statements in interference with a pending grand jury
proceeding. Ruiz, 105 F.3d at 1499. The circumstantial evidence
more than supported a conclusion that Dwyer was part of a
conspiracy to obstruct justice. See Gomez-Pabon, 911 F.2d at 853.
II. Constructive Amendment
Dwyer argues for the first time on appeal that jury
instructions on the federal program fraud count relating to Ortiz
(Count 9) and the false statement count (Count 16) constructively
amended the indictment.
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Had an objection of constructive amendment been made at
trial, this court would determine de novo whether the indictment
was constructively amended. United States v. Kelly, 722 F.2d 873,
876 (1st Cir. 1983) (the question is whether the defendant "has
made a convincing showing that the alleged alteration in the
indictment did in fact change the elements of the offense charged
and whether he was convicted of a crime not charged in the grand
jury indictment"). Here, however, the constructive amendment claim
was not preserved by timely objection made in the district court;
our review, therefore, is for plain error only. United States v.
DeCicco, 439 F.3d 36, 44-45 (1st Cir. 2006).
"An amendment of the indictment occurs when the charging
terms of the indictment are altered, either literally or in effect,
by the prosecutor or the court after the grand jury has returned
the indictment." United States v. Cianci, 378 F.3d 71, 93 (1st
Cir. 2004); see United States v. Dubon-Otero, 292 F.3d 1, 4 (1st
Cir. 2002).
a. Constructive Amendment of Count 9
Count 9 charged the defendants with committing federal
program fraud by submitting to the Springfield School Department
monthly invoices that reflected the labor costs for Ortiz when
Ortiz had not worked. The court instructed the jury that the
defendants were charged with converting or aiding and abetting the
theft of funds under the control of MCDI and/or the City of
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Springfield. That instruction was correct. "A primary objective
of the rule against constructive amendment of indictments is to
ensure defendants have notice of the charges they must defend
against." Dubon-Otero, 292 F.3d at 5.
Dwyer argues that there was no evidence of submission of
"monthly invoices to the Springfield School Department that falsely
included the labor costs of Gretchen Ortiz." She claims the school
department would pay only for the labor of Baking Company employees
who worked at the commissary or warehouse. MCDI would bill the
School Department periodically for that labor. Only the labor for
those workers involved in pizza and cookie production, she says,
was billed to the Springfield School Department, and Ortiz worked
in MCDI's main building wrapping muffins. Thus, Dwyer claims,
Ortiz's labor costs were never billed to the Springfield School
Department. The record does not support Dwyer's characterization
of the payment of labor. She cites the testimony of Thomas Mazza,
the assistant finance manager of the Springfield School Department,
for the proposition that Ortiz's labor costs were never billed to
that department. But Mazza, answering a series of questions about
the cost of the muffins billed to the department, said the
following:
Q: With respect to the hot lunches and the muffins
program, how was the billing done? How did you pay for
it? What was the structure in terms of the way you would
bill for those services?
A: Hot lunch or hot breakfast?
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Q: Excuse me, hot lunches and muffins, the one that was
done at 140 Wilbraham Road [MCDI's main facility].
A: We were billed on a per item cost. There was a set
cost for each per unit that was produced in a given month
and we were billed.
Q: So each muffin would have a particular cost associated
with it?
A: Yes.
Q: And the same with each lunch?
A: Hot breakfast.
Q: Hot breakfast. I want to keep calling it lunch. So
with respect to what went into making up that unit cost,
what were the ingredients, so to speak, of the unit cost
for the muffins for the hot breakfast?
A: I believe it was the labor that MCDI incurred to
produce them, the production (emphasis supplied).
Dwyer had sufficient notice of the charges. Here, as in Cianci,
"[n]o intimations by the court recast the 'essential' elements" of
the crime charged. 378 F.3d at 94.
b. Constructive Amendment of Count 16
Dwyer also argues that the district court impermissibly
broadened Count 16, which alleged a false, fraudulent, and
fictitious material statement in violation of 18 U.S.C. § 1001, by
instructing the jury it could find the defendants guilty if they
made a material false statement or concealed or covered up a
material fact by trick, scheme, or device. She claims that the
reference to "trick, scheme, or device" unlawfully amended the
indictment. The instruction stated in part:
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The first element the government must prove beyond a
reasonable doubt is that the defendant intentionally made
a material false statement or intentionally concealed or
covered up a material fact. These words almost define
themselves.
To falsify means to make an untrue statement which is
untrue at the time made is known to be untrue at the time
made. However a statement that is literally true can
constitute a false statement if the defendants, through
a scheme, trick or device, are actively trying to mislead
the government.
To satisfy this first element, the government must prove
beyond a reasonable doubt that the fact allegedly
falsified or covered up was material. A statement is
material if it has a natural tendency to influence or to
be capable of influencing the decision of the
decisionmaker to which it was addressed, regardless of
whether the agent actually relied on it.
. . .
I will now enumerate the specific charges of false
statement:
. . .
Count 16: Ms. Dwyer is charged with falsely stating to
a special agent of the Federal Bureau of Investigation on
March 27, 2000 that she assumed that Gretchen Ortiz
worked her full shift but could not verify the actual
number of hours worked by Ms. Ortiz, and that the only
preferential treatment received by Ms. Ortiz from the
administration about which Ms. Dwyer had knowledge was
that she had heard other employees complain that Ms.
Ortiz got to work more hours than other employees.
In her brief, Dwyer cites a truncated version of the instruction,
implying that the court failed to address the specific charge of
false statement against her and thus unlawfully amended the
indictment with its reference to a statement which through a
"scheme, trick, or device" actively attempts to mislead the
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government. The court's instruction on the specific charge
pertaining to Dwyer "was taken largely from the indictment,"
Cianci, 368 F.3d at 94, and did not amend it. The court made clear
in its instructions that Dwyer was accused of specific false
statements, which the jury could then judge if she made.
Dwyer's constructive amendment claims fail, therefore,
whether judged de novo or under a plain error standard.
III. Cumulative Errors
Finally, building on her sufficiency argument, Dwyer
claims that a number of other errors by the district court
cumulatively created a substantial risk of the miscarriage of
justice. We deal with these arguments below seriatim, finding that
there was no error as to any of them, hence no prejudice,
cumulative or otherwise. See United States v. Barrow, 448 F.3d 37,
44 (1st Cir.), cert. denied, 127 S. Ct. 176 (2006).
a. Motion to Sever
Dwyer argues that evidence of Phillips's sexual
relationships with MCDI employees entitled her to have her trial
severed from his. We review the district court's denial of a
motion to sever for abuse of discretion. United States v. Casas,
425 F.3d 23, 36 (1st Cir. 2005), cert. denied, 126 S. Ct. 1670(2006). "To demonstrate abuse of discretion, defendants must show
that joinder deprived them of a fair trial, resulting in a
miscarriage of justice." United States v. Soto-Beniquez, 356 F.3d
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1, 29 (1st Cir. 2004). "[T]he burden is on the party who
challenges the refusal to sever to make a convincing showing of
prejudice as a prerequisite to gaining a new trial." United States
v. Vega Molina, 407 F.3d 511, 531 (1st Cir.), cert. denied, 126
S. Ct. 296 (2005).
"Because the general rule is that those indicted together
are tried together to prevent inconsistent verdicts and to conserve
judicial and prosecutorial resources, severance is particularly
difficult to obtain where, as here, multiple defendants share a
single indictment." Soto-Beniquez, 356 F.3d at 29. This is
especially true in conspiracy cases, where "severance will rarely,
if ever, be required." United States v. Flores-Rivera, 56 F.3d
319, 325 (1st Cir. 1995) (internal quotation marks and citations
omitted).
There was no abuse of discretion in the denial of
severance here. Dwyer has not made a convincing showing that the
jury was unable to separate the evidence against Phillips from that
against her. The district court repeatedly instructed the jury
that the evidence about Phillips was not relevant to the other
defendants. See United States v. DeLuca, 137 F.3d 24, 37 (1st Cir.
1998) ("[T]he district court took prudent precautions against
judicial spillover by repeatedly instructing the jury that it must
consider the evidence against each individual defendant in relation
to each count."). We "presume that jurors will follow clear
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instructions to disregard evidence unless there is an overwhelming
probability that the jury will be unable to follow the court's
instructions, and a strong likelihood that the effect of the
evidence will be devastating to the defendant." United States v.
Portela, 167 F.3d 687, 701 (1st Cir. 1999) (internal quotation
marks and citation omitted). "[A] measure of evidentiary spillover
is a foreseeable concomitant of virtually every joint trial, yet
seldom indicates undue prejudice." DeLuca, 137 F.3d at 36. Here,
especially where the court took particular care to emphasize the
need to differentiate the evidence for each defendant, it did not
abuse its discretion in denying a motion to sever.
b. Evidentiary Rulings
Dwyer argues that, in any event, the evidence of
Phillips's sexual relationships should have been excluded as
unfairly prejudicial to her. We review evidentiary decisions for
abuse of discretion. United States v. Flemmi, 402 F.3d 79, 86 (1st
Cir. 2005). "[D]istrict courts enjoy wide latitude in passing upon
the relevancy of evidence." United States v. Maldonado-Garcia, 446
F.3d 227, 231-32 (1st Cir. 2006). "As to prejudice, '[t]rial
judges enjoy wide latitude in making Rule 403 rulings and are only
overturned after a showing of egregious error.'" United States v.
Perez-Gonzalez, 445 F.3d 39, 47 (1st Cir. 2006) (quoting United
States v. Kornegay, 410 F.3d 89, 96 (1st Cir. 2005)). We find
nothing unreasonable in the court's allowance of the evidence
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against Phillips. The district court gave several warning
instructions about use of the Phillips evidence. See United States
v. Richardson, 421 F.3d 17, 41 (1st Cir. 2005), cert. denied, 126
S. Ct. 2319 (2006).
Dwyer also challenges briefly and in the most general
terms a range of additional evidentiary admissions as highly
prejudicial but does not develop any argument as to why any was
improperly admitted. "Virtually all evidence is prejudicial - if
the truth be told, that is almost always why the proponent seeks to
introduce it - but it is only unfair prejudice against which the
law protects." United States v. Pitrone, 115 F.3d 1, 8 (1st Cir.
1997). Dwyer makes no specific argument as to how the evidence
"invite[d] the jury to render a verdict on an improper emotional
basis." United States v. Varoudakis, 233 F.3d 113, 122 (1st Cir.
2000).
c. "Following Orders" Jury Instruction
Dwyer takes issue with the court's instruction to the
jury that "if you find that the evidence established beyond a
reasonable doubt that the defendant willfully and knowingly
participated in the scheme to defraud, it is not a defense to the
crime of wire fraud for a defendant to claim that he or she was
following orders." This instruction pertained only to the wire
fraud counts, which the court dismissed. Dwyer argues that since
the wire fraud counts were only dismissed by the court on her
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motion under Fed. R. Crim. P. 29(c), after the jury returned its
verdicts, it is unlikely that the jury understood that the
following orders instruction pertained only to the wire fraud
counts. The instruction, however, clearly referred to the wire
fraud counts, and the jury demonstrated its ability to distinguish
among counts by acquitting on some and convicting on others. See
United States v. Freeman, 208 F.3d 332, 345-46 (1st Cir. 2000).
d. Prosecutor's Statements in Closing Argument
Dwyer argues that the government improperly equated
"intent" with "knowledge" in its rebuttal closing argument. The
government said:
I want to talk about intent because it's something that
has been mentioned both by Mr. Hoose and some of the
other lawyers during their closing arguments and the
judge will tell you what intent is. You'll be able to
learn from the instruction that intent is not someone
waking up in the morning and saying, "today I am going to
defraud the City of Springfield." Intent is not like
that. Intent is simply knowing the consequences of your
actions. Knowing that when a payroll check is being
issued and someone is not performing work for that
payroll check, that the City of Springfield, MCDI is
losing money as a result. That, in essence is intent,
knowing the consequences of what flows from your actions.
At the conclusion of the rebuttal, the court reminded the jury that
the closing arguments of counsel are not evidence. The defendant
objected to a couple of points, including the intent definition, at
the end of the rebuttal summation, saying, "I want to object to Mr.
Welch's suggestion or his definition of intent. I realize the
Court was giving a curative instruction, but I want to note these
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objections and ask the Court to specifically instruct the jury to
disregard those things." The court responded:
All right. Well, I don't think it's necessary for me to
do the latter [i.e., give specific instruction]. And my
remarks at the end of the closing were not intended to
cure anything specifically related to Mr. Welch's
rebuttal. I hope that wasn't interpreted that way. It
just seemed to me to be a good time at the end, sometimes
I do it at the beginning and perhaps it would have been
better if I had done it at the beginning but it was
simply intended as a general admonition. . . .
The issue of the instructions, several of you have
referred to what you thought I would say in my
instructions, and I'll be saying right in the very first
page or two of my instructions that anything counsel may
say about the instructions that is inconsistent with my
instructions is to be disregarded. So that will be right
at the beginning of the instructions so in a sense you
will get that instruction.
The next day, the court gave the jury instructions which included
the following:
Counsel have quite properly referred to some of the
governing rules of law in their arguments. If, however,
any difference appears to you between the law as stated
by counsel and that stated by the Court in these
instructions, you of course are to be governed by these
instructions. . . .
In weighing the evidence on the conspiracy charge you
must find beyond a reasonable doubt that the defendants
intentionally joined the conspiracy before you may find
them guilty on that charge.
In fact, the law requires that the government prove two
types of knowing intent beyond a reasonable doubt before
a defendant can be said to have willfully joined the
conspiracy.
The court went on for several more paragraphs on the meaning of
intent.
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Where there is prosecutorial argument with
contemporaneous objections, we review de novo whether the comment
was improper and review for abuse of discretion whether the
misconduct, if any, warrants a new trial. United States v. Lewis,
40 F.3d 1325, 1337-38 (1st Cir. 1994). To be held responsible for
participation in a criminal conspiracy, a defendant must be shown
to have entered knowingly, willfully and intentionally into an
agreement with the specific intent that the conspiracy's criminal
purposes be accomplished. United States v. O'Campo, 973 F.2d 1015,
1020 (1st Cir. 1992). The prosecutor's argument suggested to the
jury that if they concluded that Dwyer's notations on the payroll
spreadsheets proved knowledge, then intent could be presumed. The
prosecutor should not have characterized intent and knowledge as
essentially interchangeable, but we find no abuse of discretion in
the court's handling of the summation. The court repeatedly
emphasized the definition of intent during instructions the
following day and emphasized further that the court's
characterization of the law was the one to follow. The jury is
presumed to have followed the court's instructions and the
definition it gave of intent. See Soto-Beniquez, 356 F.3d at 43
(curative instruction and correct instruction on point of law
prevented any prejudice to defendant from prosecutor's misstatement
of law in closing argument).
Affirmed.
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