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