United States v. Arcadipane

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-1342

UNITED STATES OF AMERICA,

Appellee,

v.

PHILIP G. ARCADIPANE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Selya, Circuit Judge,

Bownes, Senior Circuit Judge,

and Stahl, Circuit Judge.

Willie J. Davis, with whom Davis, Robinson & White was on

brief, for appellant.
Robert E. Richardson, Assistant United States Attorney, with

whom Donald K. Stern, United States Attorney, was on brief, for

appellee.

November 23, 1994

SELYA, Circuit Judge. Defendant-appellant Philip G.
SELYA, Circuit Judge.

Arcadipane appeals his conviction on multiple counts of mail

fraud and making false statements. In the last analysis, the

plethora of arguments that he advances, though ably presented,

signify nothing of consequence. Accordingly, we affirm.

I. BACKGROUND
I. BACKGROUND

In April of 1988, while working for the United States

Postal Service, appellant suffered a job-related psychiatric

disability. He eventually filed a claim for benefits with the

Office of Workers' Compensation Programs (OWCP) of the United

States Department of Labor (DOL). He received his first

disability check in February of 1989, retired from the Postal

Service eight months later, and continued to receive disability

payments thereafter.

Prior to the onset of his disability, appellant had

been repairing firearms and reloading shell casings as a for-

profit sideline. In connection with its initial processing of

the disability claim, OWCP wrote to him in June of 1988

requesting information about extra-curricular employment

activities. After consulting with counsel, appellant explained

that his sideline business had been reorganized and that he was

no longer gainfully employed in it.1 OWCP did not press the

point at that time.

In 1990, 1991, and 1992, OWCP requested appellant, in

1Appellant informed OWCP that his wife now owned the
business; that it was not operating profitably; and that, when he
assisted her at all, he did so without remuneration.

2

conjunction with his ongoing receipt of compensation benefits, to

complete Form 1032. This is a standardized form designed to

obtain historical information regarding benefit recipients'

income from sources such as employment and self-employment. OWCP

uses the data to compute benefit levels.

On September 7, 1990, after again consulting with

counsel, appellant submitted a completed Form 1032 to OWCP. He

made similar submissions on September 7, 1991, and August 20,

1992.2 Each time he stated that he "had not been employed for

the previous twelve months," and that he "had been unemployed

during the previous fifteen months."

In 1992, DOL launched an investigation of appellant's

business activities. In May, an agent posing as a purchasing

officer for an out-of-state police department contacted appellant

and, after some negotiations, ordered 20,000 rounds of

ammunition. The "purchaser" arranged to pick up the order at

appellant's home. Upon his arrival, however, he whipped out a

search warrant instead of a requisition, combed the premises, and

seized various incriminating business records (including income

tax returns).

Soon thereafter, a federal grand jury returned a 31-

count indictment against appellant. Twenty-eight counts charged

mail fraud in violation of 18 U.S.C. 1341 (1988), on the theory

that appellant had wrongfully obtained money through the mails

2Each form, by its terms, covered "the 12 months prior to
the date of [the benefit recipient's] completion and signature."

3

(specifically, 28 monthly disability checks) by "falsely

[claiming] that [he] was not employed and that [he] was

unemployed." The remaining three counts charged appellant with

making false statements (one for each Form 1032 that he submitted

to OWCP) to the effect that he was "unemployed".

A jury convicted appellant on all counts, and OWCP

suspended benefit payments. This appeal ensued.

II. ANALYSIS
II. ANALYSIS

Appellant has advanced several asseverations in support

of his appeal. We deal with them seriatim.

A. OWCP's Authority.
A. OWCP's Authority.

Appellant maintains that his convictions under the

false statement statute cannot stand.3 He constructs the

following syllogism: (1) inasmuch as he was totally disabled

during the time frame covered by the indictment, his situation is

controlled by 5 U.S.C. 8105(a) (which provides in relevant part

that, when an employee's "disability is total, the United States

shall pay the employee during the disability monthly monetary

3The false statement statute provides:

Whoever, in any matter within the
jurisdiction of any department or agency of
the United States knowingly and willfully
falsifies, conceals or covers up by any
trick, scheme, or device a material fact, or
makes any false, fictitious or fraudulent
statements or representations, or makes or
uses any false writing or document knowing
the same to contain any false, fictitious or
fraudulent statement or entry, shall be
[punished as provided].

18 U.S.C. 1001 (1988).

4

compensation"), (2) section 8105 does not specifically authorize

DOL to prod benefit recipients to report earnings from employment

and self-employment;4 and, therefore, (3) the government had no

authority to request the information that it now asserts

appellant falsely supplied. He adds, moreover, that because 5

U.S.C. 8105 did not authorize the solicitation of earnings

information, he had no way of knowing that section 1001 applied

to Form 1032, and thus did not receive fair warning that

inscribing false statements on the form could subject him to a

federal criminal prosecution. We do not find either facet of

this argument persuasive.

1. Lack of Authority. It seems self-evident that
1. Lack of Authority.

section 1001 is intended to promote the smooth functioning of

government agencies and the expeditious processing of the

government's business by ensuring that those who deal with the

government furnish information on which the government

confidently may rely. To this end, section 1001 in and of itself

constitutes a blanket proscription against the making of false

statements to federal agencies. Thus, while section 1001

prohibits falsification in connection with documents that persons

4Appellant contrasts section 8105 with a sister statute
which specifically provides that:

The Secretary of Labor may require a
partially disabled employee to report his
earnings from employment or self-employment,
by affidavit or otherwise, in the manner and
at the times the Secretary specifies . . . .

5 U.S.C. 8106(b) (1988).

5

are required by law to file with agencies of the federal

government, see, e.g., United States v. Dale, 991 F.2d 819, 828-

29 (D.C. Cir.) (involving a fraudulent application for a

Department of Defense security clearance), cert. denied, 114 S.

Ct. 286, 650 (1993), its prohibitory sweep is not limited to such

documents. The statute equally forbids falsification of any

other statement, whether or not legally required, made to a

federal agency. See United States v. Meuli, 8 F.3d 1481, 1485

(10th Cir. 1993) (explaining that section 1001 "prohibits false

statements whether or not another law requires the information be

provided"), cert. denied, 114 S. Ct. 1403 (1994); United States

v. Kappes, 936 F.2d 227, 231 (6th Cir. 1991) (explaining that

section 1001 itself provides "clear statutory authority to

justify holding [persons] to the reporting requirement"); United

States v. Olson, 751 F.2d 1126, 1127 (9th Cir. 1985) (per curiam)

(holding that section 1001's prohibition of false statements is

not restricted to those that are submitted pursuant to some

(other) specific statutory requirement); see also United States

v. Corsino, 812 F.2d 26, 31 (1st Cir. 1987) (holding sub silentio

to same effect).

Applying this rationale to the case at hand, we

conclude that the "lack of authority" issue is a red herring.

Under section 1001, the government does not need to show that it

had some particular extrinsic authority to request the

information falsely provided by the defendant. Consequently,

whether DOL or OWCP had the specific statutory authority to seek

6

employment and self-employment data from appellant is irrelevant

to the validity of the convictions under review.

2. Fair Warning. The second prong of appellant's
2. Fair Warning.

assignment of error posits that, because the benefits he received

under 5 U.S.C. 8105 were not conditioned by statute upon his

truthful completion of Form 1032, he did not receive fair warning

that inscribing false statements on that form would expose him to

criminal charges. Appellant's protest lacks force.

To be sure, the Due Process Clause forbids the

government from depriving an individual of his liberty by reason

of specified conduct unless he is given fair warning of the

consequences of that conduct. See Marks v. United States, 430

U.S. 188, 191 (1977); United States v. Gallo, 20 F.3d 7, 12 (1st

Cir. 1994). Fair warning thus requires that a criminal statute

be sufficiently definite to apprise a person of ordinary

intelligence that his anticipated behavior will transgress the

law. See United States v. Barker Steel Co., 985 F.2d 1123, 1129

(1st Cir. 1993). Fair warning, however, does not mean that the

first bite is free, nor does the doctrine demand an explicit or

personalized warning. Although a prospective defendant is

entitled to notice of what behavior will be deemed to infract the

criminal code, the fair warning doctrine neither excuses

professed ignorance of the law nor encourages deliberate

blindness to the obvious consequences of one's actions. See

Gallo, 20 F.3d at 12.

7

In this instance, appellant had ample warning because

section 1001 is clear on its face. The Court held as much in

United States v. Yermian, 468 U.S. 63 (1984), a case in which the

defendant made false statements on a form provided by his

employer. The employer, unbeknownst to the defendant, later

forwarded the form to the Department of Defense. In affirming

the defendant's conviction, the Court held that section 1001

"unambiguously dispenses with any requirement that the Government

also prove that [the false] statements were made with actual

knowledge of federal agency jurisdiction." Id. at 69 (citations

omitted). Under Yermian, the plain language of section 1001

constitutes a constitutionally sufficient warning.

We think that the instant case is even stronger than

Yermian. Here, appellant knew that Form 1032 originated with a

government agency. He had every reason to believe that the

continued receipt of government funds his disability benefits

depended, at least in part, on his responses. Form 1032 itself

placed appellant on notice, through a warning conspicuously

printed on the front page of the form, that he must make honest

answers to the questions, regardless of who would later read the

completed document. In short, appellant's claim that he was not

adequately forewarned rings surpassingly hollow.

B. Variance.
B. Variance.

The indictment charged, inter alia, that appellant

falsely stated on Form 1032 that he was "unemployed." Appellant

complains that the prosecutor told the jury that it could convict

8

not only if it found appellant to have been "employed," but also

if it found appellant to have been "self-employed." In

appellant's view, this is a fatal variance between the indictment

and the proof at trial. We think that the reports of the

indictment's demise are greatly exaggerated.

Appellant's contention suffers from two vices. First,

he did not raise it in the district court appellant did not

object to the introduction of evidence regarding his self-

employment, and never presented the alleged discrepancy between

the charge and the evidence to the trial judge by motion or

otherwise and he has, therefore, waived the point. See, e.g.,

United States v. Slade, 980 F.2d 27, 31 (1st Cir. 1992) (holding

that "a party is not at liberty to articulate specific arguments

for the first time on appeal simply because the general issue was

before the district court"); United States v. Figueroa, 818 F.2d

1020, 1025 (1st Cir. 1987) (similar).

In addition to being procedurally defaulted,

appellant's contention is substantively wanting. A variance

occurs when the proof at trial portrays a scenario that differs

materially from the scenario limned in the indictment. See

United States v. Vavlitis, 9 F.3d 206, 210 (1st Cir. 1993);

United States v. Moran, 984 F.2d 1299, 1304 (1st Cir. 1993). A

variance requires reversal of a conviction only if it is both

material and prejudicial, for example, if the variance works a

substantial interference with the defendant's right to be

informed of the charges laid at his doorstep. See Vavlitis, 9

9

F.3d at 210; United States v. Sutherland, 929 F.2d 765, 772 (1st

Cir.), cert. denied, 112 S. Ct. 83 (1991). We afford plenary

review to the question of whether an asserted variance requires

retrial. See United States v. Cardall, 885 F.2d 656, 670 (10th

Cir. 1989); see also 2 Steven A. Childress & Martha S. Davis,

Federal Standards of Review 11.32, at 125 (1992).

We see no cognizable prejudice here. When, as now, an

indictment gives a defendant particular notice of the events

charged, and the proof at trial centers on those events, minor

differences in the details of the facts charged, as contrasted to

those proved, are unlikely to be either material or prejudicial.

See, e.g., United States v. Morrow F.3d , (1st Cir.

1994) [No. 93-1463, slip op. at 14]. So it is here: self-

employment is merely one form of employment, and a person who is

either employed or self-employed could not be said in any

meaningful sense to be "unemployed." Whatever slight difference

may exist between employment and self-employment cannot support

the weight of the claimed variance.

We are fortified in this conclusion because the record

makes transpicuously clear that appellant at all times understood

his statements about both employment and self-employment to be at

issue. For example, the government, in its opening discourse,

told the jury the evidence would show that appellant "stated that

he was not employed or self-employed . . . ." Appellant did not

object to this assertion. He likewise did not object during the

trial as the government placed into evidence his statements

10

regarding self-employment. Appellant's persistent failure to

object belies his afterthought claim that he was misled. So does

defense counsel's opening statement, in which he advised the

jury:

The gist of the charge is the fact that he is
accused of filing on Form 1032 a statement
that he was not employed and not self-
employed. The government says that he was

self-employed, and that the answers that he

filed, indicating that he was not, deceived

the government. [Emphasis supplied.]

By like token, both attorneys discussed self-employment in their

summations.

To reverse a conviction on the basis of a variance we

must find that the variance caused a defendant to be misinformed

of the charges against him or otherwise affected his substantial

rights. See Vavlitis, 9 F.3d at 210; United States v. Fisher, 3

F.3d 456, 462 (1st Cir. 1993); Moran, 984 F.2d at 1304;

Sutherland, 929 F.2d at 772. Appellant's claim of variance does

not come close to meeting this criterion.

C. Materiality.
C. Materiality.

In order to sustain a conviction under 18 U.S.C.

1001, the government is required to prove not only that the

defendant's statements were false, but also that they were

material. See Corsino, 812 F.2d at 30; United States v.

Notarantonio, 758 F.2d 777, 785 (1st Cir. 1985); cf. United

States v. Scivola, 766 F.2d 37, 44 (1st Cir. 1985) (holding to

like effect in prosecution for perjury). The district court

decided the question of materiality rather than asking the jury

11

to decide it. Appellant fulminates that the court erred in

following this protocol, and suggests that determinations of

materiality should be consigned to the jury's exclusive province.

He is incorrect.

Materiality in a "false statement" case is a question

of law to be determined by the court. See, e.g., United States

v. Daily, 921 F.2d 994, 1004-06 (10th Cir.), cert. denied, 112 S.

Ct. 405 (1991); United States v. Bullock, 857 F.2d 367, 370-71

(7th Cir. 1988); United States v. Hansen, 772 F.2d 940, 950 (D.C.

Cir. 1985), cert. denied, 475 U.S. 1045 (1986); United States v.

Bryant, 770 F.2d 1283, 1290 (5th Cir. 1985), cert. denied, 475

U.S. 1030 (1986); United States v. Greber, 760 F.2d 68, 73 (3d

Cir.), cert. denied, 474 U.S. 988 (1985); United States v.

Norris, 749 F.2d 1116, 1121 (4th Cir. 1984), cert. denied, 471

U.S. 1065 (1985); United States v. Elkin, 731 F.2d 1005, 1009 (2d

Cir.), cert. denied, 469 U.S. 822 (1984); United States v. Abadi,

706 F.2d 178, 180 (6th Cir.), cert. denied, 464 U.S. 821 (1983);

United States v. Richmond, 700 F.2d 1183, 1188 (8th Cir. 1983).

We have heretofore adopted this view, see Corsino, 812 F.2d at 31

n.3; see also United States v. Nazzaro, 889 F.2d 1158, 1166 (1st

Cir. 1989) (stating in perjury prosecution "that the materiality

of perjurious testimony is within the exclusive domain of the

court, not the jury"), and continue to believe that it is

correct. We recognize that one circuit has maintained a

different stance. See United States v. Gaudin, 28 F.3d 943, 943-

44 (9th Cir. 1994) (en banc) (adhering to United States v.

12

Valdez, 594 F.2d 725, 728-29 (9th Cir. 1979)), petition for cert.

filed, 63 U.S.L.W. 3268 (U.S. Sept. 19, 1994) (No. 94-514) and 63

U.S.L.W. (U.S. Oct. 21, 1994) (No. 94-6571). With respect,

we consider the Ninth Circuit cases to be wrongly decided and, as

have so many of our sister circuits, we decline to follow them.

We conclude, therefore, that the trial court did not err in

withholding the question of materiality from the jury.

Appellant's fallback position is that his false

statements did not surpass the materiality threshold. However,

the test for materiality is not stringent:

[M]ateriality requires only that the fraud in
question have a natural tendency to
influence, or be capable of affecting or
influencing, a governmental function. The
alleged concealment or misrepresentation need
not have influenced the actions of the
Government agency, and the Government agents
need not have been actually deceived.

Corsino, 812 F.2d at 30 (quoting United States v. Markham, 537

F.2d 187, 196 (5th Cir. 1976), cert. denied, 429 U.S. 1041

(1977)); see also Notarantonio, 758 F.2d at 787; cf. Scivola,

766 F.2d at 44 (articulating equivalent test in perjury case).

Here, the false statements easily qualify as material.

Statements made on Form 1032 have a natural tendency to

affect benefit levels. An OWCP claims examiner testified at

trial that any reported "changes in [recipients'] employment

activity . . . would change their entitlement to the amount of

compensation that they [had] been receiving." Based on this

testimony alone, the district court did not err in finding

appellant's false statements to be material.

13

D. The Jury Instructions.
D. The Jury Instructions.

Appellant assigns error to the lower court's charge in

two respects. First, he maintains that the court blundered when

it refused to give his requested "good faith" instructions.

Second, he complains that the court strayed beyond the pale in

discussing the function of appellate courts vis-a-vis jury

verdicts. Neither thesis withstands scrutiny.

1. Good Faith. Appellant suggested two "good faith"
1. Good Faith.

instructions at the close of trial.5 The judge refused to adopt

these suggestions verbatim. Appellant now asserts that the

judge's failure to instruct the jury in accordance with the

precise language that appellant recommended constituted

reversible error. We think not.

It is a settled rule that "jury instructions are to be

evaluated in the context of the charge as a whole, and a

defendant has no absolute right to the use of particular

language." United States v. Dockray, 943 F.2d 152, 154 (1st Cir.

1991); accord Cupp v. Naughten, 414 U.S. 141, 146-47 (1973);

United States v. Nivica, 887 F.2d 1110, 1124 (1st Cir. 1989),

cert. denied, 494 U.S. 1005 (1990). The language that the

district court actually used in its charge especially certain

language that we have set forth in the margin6 was more than

5One proposed instruction dealt with generic good faith in
completing the forms. The second referred specifically to
appellant's good faith reliance on the advice of counsel.

6The court framed the key question for the jury in the
following way:

14

adequate to protect appellant's rights. The charge explicitly

mentioned both good faith and appellant's reliance on counsel in

the course of submitting the forms. Moreover, other parts of the

court's instructions unambiguously put the jury on notice that

the government had to prove beyond a reasonable doubt that

appellant knew the statements were false when made, and that he

intended to defraud DOL by his answers. No more was exigible.

See Dockray 943 F.2d at 155; Nivica, 887 F.2d at 1124-25; see

also New England Enters., Inc. v. United States, 400 F.2d 58, 71

(1st Cir. 1968) (holding that a forthright instruction on

specific intent is ordinarily a sufficient response to a

defendant's request for a good faith instruction), cert. denied,

393 U.S. 1036 (1969).

In sum, a defendant who has fully preserved his rights

is entitled to a charge that fairly apprises the jury of the

elements of the offense, the presumption of innocence, the burden

and quantum of proof, and such theories of defense as may be

supported by the evidence. He is not entitled to the nuances of

phrasing that he finds most soothing.

2. The Court's Comment. Appellant's final assignment
2. The Court's Comment.

of error concerns a portion of the charge in which the court

Did [the defendant] in good faith deny
that he was employed or self-employed or has
the government proven that he knew that the
answer to the question was false and that he
intended to defraud the Department of Labor?

In this connection, the court also told the jury that "the
defendant has offered evidence that he acted on the advice of a
lawyer when he told the government that he was not employed."

15

said:

You are the judges of the facts, and I
will leave to you entirely the judgment of
the facts. I ask you to leave to me entirely
the judgment as to the law.

You should also understand that if I am
in error, there is a higher court that can
and cheerfully will reverse me. However,
there is no higher court that will review
your judgment of facts. You are the only,
the final judges of the facts in this case.

Appellant argues that this commentary lessened the government's

burden of proof by easing the jury's sense of responsibility.

Being told explicitly that appellate review is available by a

court that is prepared "cheerfully" to set aside the verdict,

appellant reasons, makes jurors less responsible, ergo, more

prone to convict, bolstered by the knowledge that if the

defendant is innocent the jury's mistake likely will be repaired

by a panel of appellate judges.

Instructing a criminal jury about the appellate process

is a fairly prevalent practice among trial judges. Nonetheless,

such instructions are usually unnecessary, and we counsel against

them unless there is some special reason to give such

instructions in a particular case. See, e.g., United States v.

Greenberg, 445 F.2d 1158, 1162 (2d Cir. 1971) ("It might have

been better procedure not to have told the jury . . . `[not] to

worry' because this court would reverse if there were error.");

Commonwealth v. Burke, 382 N.E.2d 192, 195 (Mass. 1978) ("[I]n

the absence of special circumstances, the judge should not refer

to the appellate process."). Be that as it may, reversal does

16

not follow automatically merely because a trial judge succumbs to

a bad idea. Thus, instructions anent the appellate process do

not ordinarily constitute error as long as they are accurate.

See, e.g., United States v. Ferra, 900 F.2d 1057, 1060 (7th Cir.

1990) ("Truth usually promotes the operation of the judicial

system. Jurors need not be left to wonder about the allocation

of tasks between trial and appellate courts."), cert. denied, 112

S. Ct. 1939 (1992); see also United States v. Miceli, 446 F.2d

256, 259-60 (1st Cir. 1971) (finding no error in an instruction

that "merely indicated to the jury that it had no responsibility

as to questions of law").

Challenges to instructions regarding the function of

appellate courts should be treated like other challenges to the

charge: the court of appeals must examine the charge as a whole

to determine if the judge balanced the instructions, correctly

informed the jurors of the governing law, imbued the jurors with

an appropriate sense of responsibility, and avoided undue

prejudice. In this case, surveying the charge in its entirety

persuades us that the challenged comments were unlikely either to

have confused the jurors or to have camouflaged the solemnity of

their task. Indeed, the judge's instruction may well have

impelled the jury to consider its determination of facts more,

rather than less, cautiously; after all, the judge's remarks

about the finality of the jury's factfinding function probably

17

overstated the law.7 See, e.g., United States v. Loder, 23 F.3d

586, 592-93 (1st Cir. 1994) (reversing jury verdict on grounds of

evidentiary insufficiency). Therefore, the challenged

instruction did not "dilute the [jury's] sense of responsibility

but rather focus[ed] jurors on their true responsibilities."

Ferra, 900 F.2d at 1061.

III. CONCLUSION
III. CONCLUSION

We need go no further. Appellant's asseverational

array

lacks merit. For aught that appears, appellant was fairly tried

and lawfully convicted. The judgment below, must, therefore, be

Affirmed.
Affirmed.

7This is not a case like United States v. Fiorito, 300 F.2d

424 (7th Cir. 1962), in which the trial judge diminished the
jurors' role and diluted their collective sense of responsibility
by assuring them that, if they forgot something, "that's part of
the game . . . . That's why we have a court of appeals . . . ."
Id. at 426. To the contrary, the court's instruction here had

precisely the opposite import.

18