United States v. Bradstreet

United States Court of Appeals
For the First Circuit

No. 97-1164

UNITED STATES,

Appellee,

v.

BERNARD F. BRADSTREET,

Defendant, Appellant.

No. 97-1204

UNITED STATES,

Appellant,

v.

BERNARD F. BRADSTREET

Defendant, Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Torruella, Chief Judge,

Stahl, Circuit Judge,

and Lynch, Circuit Judge.

William J. Kopeny, with whom John W. Powell and Kopeny & Powell,

P.C. were on brief for appellant/cross-appellee.

John J. Falvey, Jr. and Jonathan L. Kotlier, Assistant United

States Attorneys, with whom Mark W. Pearlstein, Acting United States

Attorney, was on brief for appellee/cross-appellant.

January 29, 1998

STAHL, Circuit Judge. Bernard F. Bradstreet is the
STAHL, Circuit Judge.

former President and Chief Financial Officer of Kurzweil

Applied Intelligence, Inc., a Massachusetts company that

develops and sells voice recognition software. Following a

twenty-day trial, a jury convicted Bradstreet of conspiring

to commit securities fraud, see 18 U.S.C. 371; securities

fraud, see 15 U.S.C. 78j(b), 78ff(a), and 17 C.F.R.

240.10b-5 ("Rule 10b-5"); and knowingly falsifying Kurzweil's

books and records in an attempt to conceal his fraud, see 15

U.S.C. 78m(b)(5), 78ff(a), and 17 C.F.R. 240.13b2-2.

Thereafter, the district court departed downward from the

applicable guidelines sentencing range of 51-63 months and

sentenced Bradstreet to 33 months in prison, followed by 24

months of supervised release. It also ordered him to pay

$2.3 million in restitution.

Bradstreet appeals from his convictions on a number

of grounds, only two of which are preserved for plenary

appellate review. The government cross-appeals from the

district court's sentence, arguing that, on the facts of this

case, the downward departure was not within the court's

discretion. We affirm the convictions but vacate the

judgment and remand for resentencing.

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I.
I.

We limit ourselves here to a general overview of

the case, deferring more detailed recitations of the facts to

later discussions of relevant issues.

To sell stock to the general public on the

publicly-traded securities markets, a company must apply for

and receive the approval of the Securities and Exchange

Commission (SEC), and thereafter make an initial public

offering (IPO). In connection with the IPO, the company must

file with the SEC a prospectus detailing its overall

financial condition and recent financial performance.

Subsequently, it also must make quarterly filings of SEC

Forms 10-Q, which contain information about the company's

financial performance during the preceding quarter.

Sometime in the early 1990's, the Kurzweil

management hierarchy, led by Bradstreet, initiated a

substantial effort to "take the company public." To this

end, Bradstreet established quarterly projections for

revenues and profits. Bradstreet then pressured Kurzweil's

sales force to meet these projections because investment

bankers were unlikely to underwrite the contemplated IPO

unless Kurzweil could demonstrate profitability for several

quarters in a row.

Companies determine quarterly profits or losses on

either a cash or an accrual basis. In cash basis accounting,

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profit or loss constitutes actual dollars received less

actual dollars spent. In accrual basis accounting, profit or

loss constitutes revenue due, whether received or not, less

expense incurred, whether paid or not. Because informed

judgment often determines whether and when revenue actually

is "due," public companies that use accrual basis accounting

must develop revenue recognition policies that both guide the

exercise of such judgment and conform to generally accepted

accounting principles (GAAP).

Prior to the decision to go public, Kurzweil, an

accrual basis accounter, adopted a revenue recognition

policy. In June 1992, management circulated to the sales

staff a memorandum reminding the staff of Kurzweil's

"policies regarding shipment and revenue recognition."

Attached to the memorandum was a document dated "7/28/87" and

labeled "Kurzweil Applied Intelligence, Inc. Revenue

Recognition Policy." In relevant part, it stated that

anticipated revenue should not be recognized if "major

uncertainties . . . surround culmination of the [revenue-

generating] transaction" or if "final acceptance by the

customer requires an event out of [Kurzweil's] control . . .

."

After an earlier false start, the IPO closed on

August 17, 1993. Thereafter, as required, Kurzweil submitted

Forms 10-Q for the quarters ending July 31, 1993 and October

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31, 1993. The essence of the government's case was that each

of these submissions contained fraudulently-inflated revenue

figures indicating that Kurzweil was profitable when, in

fact, it was operating near or at a loss. In making its

case, the government sought to prove that Bradstreet; Thomas

E. Campbell, Kurzweil's vice president in charge of sales;

and Debra J. Murray, Kurzweil's treasurer and also a vice

president, conspired to and actually did "book" as revenue

the anticipated proceeds of a number of contingent sales

which occurred in time periods covered by the prospectus and

the Forms 10-Q. The government also endeavored to show that

these same individuals, along with David R. Earl, Kurzweil's

vice president in charge of operations, engaged in a scheme

to conceal the fraud from the company's auditors and

underwriters. The underlying indictment charged Bradstreet

and Campbell with conspiracy (Count I); substantive

securities fraud in connection with each of the three

fraudulent submissions (Counts II - IV respectively); and

knowing falsification of company records (Count V). It also

charged Earl with knowing falsification in Count V. Murray

had previously entered into a cooperation and plea agreement

with the government and had waived indictment.

The indictment set forth 14 improperly-booked

"sales" (and alluded to a fifteenth) as overt acts in the

conspiracy count. The transactions in question, which took

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place between June 1992 and January 1994, were of two basic

types: (1) those in which, near the end of a fiscal-year

quarter, a Kurzweil salesperson had forged a prospective

customer's signature to a sales quote; and (2) those in which

the prospective customer had signed a sales quote, but had

conditioned its agreement to purchase Kurzweil equipment on

the occurrence of some event not within Kurzweil's control,

such as a future commitment from a third-party purchaser. At

trial, the government introduced evidence regarding these

transactions and several others, the defendants' knowledge of

the nature of these transactions, and the defendants' efforts

to conceal the nature of these transactions from Kurzweil's

auditors and underwriters. These efforts included the

creation of side agreements, not shown to the auditors, which

memorialized the conditions of unfinalized sales Kurzweil had

recorded as revenue; the forging by Kurzweil personnel of

responses to audit "confirmation letters" which the auditors

had sent to Kurzweil customers to confirm the details of

certain recorded sales; the pretextual shipment of Kurzweil

products to a storage facility in order to create, on the

books, the illusion of shipment to customers; and the giving

of false explanations of the high and ever-growing percentage

of Kurzweil revenues made up of accounts receivable. The

jury acquitted Earl, but convicted Bradstreet and Campbell on

all charges.

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II.
II.

Bradstreet's appellate brief presents six developed

arguments for reversal of his convictions, but hints at a

good number more. As usual, we confine our discussion to the

issues accompanied by developed argumentation. See United

States v. Bongiorno, 106 F.3d 1027, 1034 (1st Cir. 1997).

Because four of Bradstreet's arguments, including

the primary one, surface for the first time on appeal, we

address them together under the plain-error rubric. See Fed.

R. Crim. P. 52(b) ("Plain errors or defects affecting

substantial rights may be noticed although they were not

brought to the attention of the court."). We then address

the two arguments Bradstreet has preserved.

A. Arguments Governed by Rule 52(b)

Bradstreet asserts that the trial court plainly

erred in failing to give the jury two instructions he never

requested. The first is that "the government bears the burden

of negating a reasonable interpretation of the revenue

recognition policy upon which [its] false statement theory

depends" [sic]; the second is that the jury must "unanimously

agree on either the factual basis for each count, or the

precise legal theory on which [Bradstreet] was guilty" as to

the conspiracy and securities fraud counts. Bradstreet

further contends that the court plainly erred in permitting

the indictment to have been constructively amended and/or in

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permitting the facts at trial to have varied prejudicially

from those alleged in the indictment.

In two recent cases, the Supreme Court has

emphasized and then reaffirmed the circumscribed authority

Rule 52(b) confers upon appellate courts. To be correctable

under Rule 52(b), an error or defect raised for the first

time on appeal must be "plain," meaning "clear" or "obvious,"

United States v. Olano, 507 U.S. 725, 734 (1993), at the time

of appellate consideration, Johnson v. United States, 117 S.

Ct. 1544, 1549-50 (1997); and it must have "affect[ed]

substantial rights," meaning, in most cases, "[i]t must have

affected the outcome of the district court proceedings,"

Olano, 507 U.S. at 734. Even then, an appellate court should

exercise its discretion to notice an error or defect, see id.

at 735-36 (noting the permissive language of the Rule), only

if it "seriously affects the fairness, integrity or public

reputation of judicial proceedings," id. at 736 (citation and

internal quotation marks omitted). Although the Court has

not described the contours of this discretionary inquiry with

much precision, it has declined to exercise its discretion in

the face of "overwhelming" evidence that the outcome would

have been the same in an error-free proceeding. See Johnson,

117 S. Ct. at 1550 (involving failure to instruct on an

element of the offense). We evaluate Bradstreet's first four

appellate arguments against this unfriendly legal backdrop.

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1. The Reasonable Interpretation Instruction

The trial court instructed the jury that there are

three alternative ways one can commit securities fraud under

Rule 10b-5 -- employing a device, scheme or artifice to

defraud; making an untrue statement of a material fact or

omitting to state a material fact necessary to prevent the

statement made from being misleading; or engaging in an act,

practice or course of business which operates or would

operate as a fraud or deceit upon any person -- and that,

although the government need only prove one of these three to

secure conviction, the jury's "finding must be unanimous as

to which type or types of conduct, if any, have been proven

beyond a reasonable doubt." It also told the jury that, to

convict Bradstreet of securities fraud, it had to find that

he engaged in the fraud knowingly, willfully, and with the

intent to defraud. The court then defined for the jury each

of these concepts, and concluded its intent instructions as

follows:

Because the crimes charged in the
indictment involve a specific or
deliberate intent to defraud, a good
faith belief on the part of a defendant
in the truth of his actions or statements
will necessarily negate that intent.
Even false statements or omissions of a
material fact do not constitute a
violation of the criminal provisions of
the securities fraud law unless made with
an intent to defraud. This intent, as I
told you, is one that the government must
prove beyond a reasonable doubt.

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If you were to have a reasonable
doubt as to whether a defendant made an
inaccurate statement while honestly
believing that statement to be true, he
cannot be held criminally liable for that
statement, even if the statement has been
shown demonstrably false. Good faith is
a defense to a crime containing an
element of specific intent even if a
defendant's belief in the proof [sic] of
his statements was one that a reasonable
person would not have embraced.

Bradstreet did not object to these instructions or seek

additional mens rea instructions.

Nevertheless, Bradstreet now contends that the

court plainly erred in failing to instruct the jury that

Bradstreet would not have committed securities fraud if, in

fact, the revenue he knowingly booked was properly booked

under any reasonable interpretation of Kurzweil's revenue

recognition policy. Analogizing to a false statement case

from the Tenth Circuit, see United States v. Migliaccio, 34

F.3d 1517 (10th Cir. 1994), and cases cited therein, see id.

at 1525, Bradstreet asserts that there is here the

possibility that the jury convicted him for one or more

recognitions of revenue that were, in fact, reasonable under

a fair construction of Kurzweil s policy. Central to

Bradstreet's primary argument are subsidiary contentions that

the jury was presented with substantively divergent summaries

of Kurzweil s policy in the documentary evidence and in the

testimony of several witnesses, and that the trial judge

never told the jury which version was controlling.

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Bradstreet also emphasizes our inability to ascertain which

transactions the jury relied upon in reaching its verdicts,

and our putative willingness to look "more tolerantly" on a

"failure to articulate precisely the shape of [a] necessary

protective instruction" in the context of an unprecedented

prosecution. See United States v. Sawyer, 85 F.3d 713, 742

(1st Cir. 1996) (involving a bribery prosecution under the

federal Travel Act, 18 U.S.C. 1952).

The government responds by denying the premises of

Bradstreet s argument. It contends that Bradstreet presented

as his defense theory lack of knowledge of the fraud, not

truth-in-conduct; that all witnesses summaries of Kurzweil's

revenue recognition policy were essentially consonant; that

this prosecution was not nearly so novel as the one reviewed

in Sawyer; and that Bradstreet s utter failure to argue for a

reasonable interpretation instruction below is not comparable

to the more forgivable "imprecise articulation" of the

argument at issue in Sawyer.

While we agree with the government's final two

rejoinders, we think the first two are seriously misleading.

On our reading of the record, Bradstreet presented a

bifurcated defense. As to the vast majority of the

transactions at issue, he denied knowing the critical

incriminating facts. But certainly with respect to three

transactions -- contemplated sales to Transquick, Chicago

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Mercy, and Willard Hall -- and probably with respect to two

others -- contemplated sales to HCA Nashville and HCA Plano -

- he did defend on the basis that the revenue that these

transactions would have generated was properly recognized

under Kurzweil's policy.

Moreover, the jury did hear verbal descriptions of

Kurzweil's revenue recognition policy which, when taken in

isolation, appear to have differed materially from the

written versions of the policy set forth in the trial

exhibits. As we have noted, the written version of the

policy that was circulated internally at Kurzweil stated that

revenue should not be recognized if "major uncertainties . .

. surround culmination of the [revenue-generating]

transaction" or if "final acceptance by the customer requires

an event out of [Kurzweil's] control . . . ." See supra at

5. The jury also had before it notes to financial

statements, which had been attached to the prospectus, that

contained a summary of Kurzweil's policy. In pertinent part,

these notes stated: "Revenue from product sales is recorded

at the time of shipment if no significant obligation relating

to the sale remains and collection is deemed probable."

Arguably, these documentary summaries are consistent with one

another, and with the synopsis of the revenue recognition

inquiry Bradstreet himself presented to the jury: "Are there

any major uncertainties and is collection probable?"

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They are not, however, entirely consistent with the

explanations of the applicable revenue recognition principles

provided by two of the government's more important witnesses:

Debra Murray, Kurzweil's treasurer, and Harvey Creem, who led

Kurzweil's auditing team up to and through the IPO. Both

Murray and Creem used language which might suggest that the

applicable principles were stricter than the written versions

of the policy seemed to indicate.

After being shown a copy of Kurzweil's internal

policy, Murray described it as requiring that a "firm

contract [exist] before any goods could be shipped"; that the

goods "be shipped to the customer and stored at a warehouse

only at the request of a customer and that they were going to

be paying for the storage [sic]"; and that "there . . . be no

obligations beyond the company's control." She also noted

that Kurzweil's policy was in compliance with GAAP. Creem

framed his testimony in terms of GAAP, and not Kurzweil's

written policy, stating that income must be "earned" and

"realizable" to be recognizable: "Putting that into

Kurzweil's terms, Kurzweil would have delivered to a customer

a product that the customer wanted, and the customer has the

ability to pay and is obligated to pay, both."

If Bradstreet had argued that there was an

interpretation of Kurzweil's revenue recognition policy that

differed materially from the government's and under which

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certain of the recognitions of revenue at issue in this case

would have been proper, the trial court, upon request, might

well have been obliged to give some sort of "reasonable

interpretation" instruction. After all, where the government

must prove, as an element of the offense, falsity or, as here

(at least with respect to the second and third of the three

securities fraud scenarios described by Rule 10b-5, see supra

at 9-10), something akin to falsity; where the government

also must prove intent to defraud; where a defendant advances

an understanding of the principles by which truth and falsity

are judged that differs from that of the government; and

where the defendant's actions might have been truthful under

such an understanding, the government cannot carry its burden

without first demonstrating the unreasonableness of the

contrary understanding. See Migliaccio, 34 F.3d at 1522-25.

In this case, however, Bradstreet never

affirmatively claimed, either in testimony or in argument,

that his underlying understanding of Kurzweil's policy

differed from that of Harvey Creem, Debra Murray, or the

government. Nor did he suggest that ambiguities in the

policy made such a contrary understanding possible. He

merely testified that, in his judgment and on his view of the

hotly-contested facts, certain of the transactions put in

issue by the government properly triggered a recognition of

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revenue under Kurzweil's policy. In light of this, we take

Bradstreet's characterization of Kurzweil's written policy, a

document to which his lawyer drew his attention just before

he gave his characterization, to be only a synopsis of the

document. We do not take it to be a de facto assertion that

Bradstreet's baseline understanding of the policy differed

from that of the government, or that a contrary understanding

was possible. And absent such an assertion, there was no

need for the instruction Bradstreet now contends was

necessary.

The transcript demonstrates that the parties tried

this case on disputed historical facts and the inferences to

be drawn from those facts. The principles underlying the

policy by which Bradstreet's conduct was to be judged, though

summarized variously and, perhaps, carelessly, were not

controverted; they seem to have been commonly understood.

This is enough to differentiate this case from Migliaccio and

the cases on which it relies. And it is enough to convince

us that the trial court's failure to give a sua sponte

reasonable interpretation instruction was not plain error.

On this record, there is no basis for concluding that the

jury's verdict would have been different had the trial judge

given the now-suggested instruction. Cf. Johnson, 117 S. Ct.

at 1550.

2. The Remaining Plain Error Claims

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Bradstreet's remaining claims of plain error merit

less discussion. As we have observed, the trial judge

informed the jury that it must unanimously agree upon which

of the three types of securities fraud Bradstreet committed.

See supra at 9-10. In view of this, we are at a loss to

comprehend Bradstreet's suggestion that the jury never was

told to agree on a precise legal theory of guilt as to the

securities fraud and conspiracy counts.

With respect to the argument that the jury should

have been told that it must "unanimously agree on . . . the

factual basis for each count," we simply note that it is

unaccompanied by citation to any case which even remotely

supports it, and that, although this area of the law is still

developing, the weight of the relevant authority appears to

be against requiring juries to reach factual unanimity in

circumstances such as these. See McKoy v. North Carolina,

494 U.S. 433, 449 (1990) ("Plainly there is no general

requirement that the jury reach agreement on the preliminary

factual issues which underlie the verdict.") (Blackmun, J.,

concurring) (footnote omitted); United States v. Tipton, 90

F.3d 861, 885 (4th Cir. 1996) (unanimity instructions need

guard only against a lack of unanimity as to the means by

which a statute was in fact violated), cert. denied, 117 S.

Ct. 2414 (1997); United States v. Bellrichard, 62 F.3d 1046,

1049 (8th Cir. 1995) (similar), cert. denied, 116 S. Ct. 1425

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(1996); United States v. Tarvers, 833 F.2d 1068, 1074 (1st

Cir. 1987) (unanimity generally not required with respect to

a specific act underlying an element of a charged offense);

cf. United States v. Shaoul, 41 F.3d 811, 818 n.4 (2d Cir.

1994) (quoting pattern unanimity instructions). We therefore

discern no "clear" or "obvious" defect in the trial court's

unanimity instructions. See Olano, 507 U.S. at 734.

We are left, then, with Bradstreet's claims of

constructive amendment and/or prejudicial variance. See

United States v. Fisher, 3 F.3d 456, 462-63 (1st Cir. 1993)

("A constructive amendment occurs when the charging terms of

the indictment are altered, either literally or in effect, by

the prosecution or court after the grand jury has last passed

upon them. A variance occurs when the charging terms remain

unchanged but when the facts proved at trial are different

from those alleged in the indictment.") (citations and

internal quotation marks omitted). Bradstreet first

complains about the government's introduction into evidence

of transactions other than those set forth as overt acts in

Count I of the indictment. He also contests the court's

instruction to the jury that it could convict Bradstreet on

Count V under an aiding and abetting theory. Finally, he

points to the discrepancy between the relatively strict

summary of Kurzweil's revenue recognition policy set forth in

paragraph 1(f) of the indictment -- "[Kurzweil] could only

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recognize a sale as revenue for purposes of its financial

statements and balance sheet when (1) it had a firm,

unconditional contract with the buyer evidenced by a signed

purchase order or sales quote signed by the customer and (2)

it had shipped the product to the customer" -- and the more

open-ended language found in the written versions of the

policy the jury saw. None of these alleged defects is within

the purview of Rule 52(b).

First, it is settled that the government "need not

recite all of its evidence in the indictment, nor is it

limited at trial to the overt acts listed in the indictment."

Fisher, 3 F.3d at 462 n.16 (citation and internal quotation

marks omitted). Bradstreet has not pointed us toward

anything that takes this case outside the general rule.

Second, Count V did effectively charge him with falsifying

books and records and aiding and abetting such a

falsification by alleging a violation of the aiding and

abetting statute, 18 U.S.C. 2. And even had it not done

so, "aiding and abetting is an alternative charge in every

count, whether explicit or implicit." United States v.

Oreto, 37 F.3d 739, 751 (1st Cir. 1994) (citation and

internal quotation marks omitted), cert. denied, 513 U.S.

1177 (1995). Third, while the summary of Kurzweil's revenue

recognition policy set forth in the indictment -- a summary

the jury did not hear or read -- did differ materially from

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the language used in the written versions of the policy that

were in evidence, the lack of congruence did not

constructively amend the indictment and cause Bradstreet to

be convicted of a crime other than the ones charged. Cf.,

e.g., United States v. Fletcher, 121 F.3d 187, 191-93 (5th

Cir.) (analyzing the effects of a constructive amendment),

cert. denied, 66 U.S.L.W. 3417 (U.S. Dec. 15, 1997) (No. 97-

6753). Nor did it prejudice him. See Fisher, 3 F.3d at 463

(an objected-to variance constitutes reversible error only if

it results in prejudice). Indeed, the variance we detect

worked only to Bradstreet's advantage, as the versions of the

policy the jury saw were, if anything, more defense-friendly

than the summary of applicable principles set forth in the

indictment. Cf. id. at 463 n.19.

B. Preserved Arguments

Bradstreet contends that the trial court committed

reversible error when, in admitting into evidence the

cooperation agreement between the government and Debra

Murray, it failed to redact from the document the $10 million

loss to investors Murray admitted to having caused. He also

argues that the court committed reversible error when, in

giving the jury an accomplice witness instruction, it

inadvertently failed, despite its having told Bradstreet it

would do so at the charging conference, to tell the jury to

consider what benefits Murray "hopes to receive" in addition

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to the benefits she had been promised or had received. The

first argument is unconvincing and the second is frivolous.

Near the end of the trial's sixth day, Bradstreet

and Campbell argued to the district court that the amount of

loss Murray admitted to having caused should be redacted

because it was irrelevant, see Fed. R. Evid. 401 and 402, or,

even if relevant, was highly inflammatory and therefore

excludable under Fed. R. Evid. 403 ("Although relevant,

evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury . . . .").

The district court rejected this argument, reasoning that the

amount of loss was relevant to the materiality of the

falsely-recorded revenue figures. At Bradstreet and

Campbell's request, the court then instructed the jury that

the loss stipulation was between the government and Murray

only, and that it should not be viewed as binding upon

Bradstreet, Campbell, or Earl.

Although Bradstreet's appellate argument is not

entirely clear on this point, we infer that he continues to

view the amount of loss as either irrelevant or, if relevant,

excludable under Rule 403. The government points out that

Bradstreet has not presented a coherent challenge to the

district court's reasoning in admitting the evidence, and

contends further that the evidence was relevant to Murray's

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knowledge of the scope of the conspiracy. Alternatively, the

government asserts that any error in admitting the loss

figure was harmless because "it is highly probable that the

error did not contribute to the verdict." United States v.

Rose, 104 F.3d 1408, 1414 (1st Cir.), cert. denied, 117 S.

Ct. 2424 (1997).

On the one hand, Bradstreet says little in his

brief about whether the amount of loss was relevant. On the

other, we have some trouble seeing how the amount of loss was

relevant to the materiality of the alleged false statements

or Murray's knowledge of the scope of the conspiracy. We

therefore turn our focus to the harmless-error analysis by

assuming error arguendo and asking whether the error was

likely to have affected the verdict. We see no such

likelihood. The jury was well aware that the IPO netted

Kurzweil approximately $24 million. Moreover, the jury was

told that a private placement of Kurzweil stock would have

netted anywhere from $10-15 million less than an IPO.

Finally, a single investor, Scudder, Stevens, and Clark,

testified without objection that, by April 1994, it had

invested approximately $5.6 million in the company. The jury

therefore could hardly have been shocked by evidence that the

total loss was $10 million. We are confident that this

evidence had no effect on the verdict.

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As to Bradstreet's objection to the accomplice

witness instruction, we think that, although the court failed

to use the "hopes to receive" language Bradstreet requested,

the court's lengthy instruction was adequate to convey to the

jury the need to scrutinize Debra Murray's testimony with

special care. This, in combination with the extensive cross

examination of Murray as to the benefits she hoped to receive

for her plea and cooperation, leaves us with no doubt

whatsoever that the jury fully understood it was to regard

what Murray had to say with some skepticism. Cf. United

States v. Newton, 891 F.2d 944, 950 (1st Cir. 1989)

(rejecting a challenge to a court's failure to give an

accomplice witness instruction because the court's immunized-

witness instruction advised the jury to receive the testimony

of such a witness with caution and to weigh it with care).

III.
III.

Having rejected Bradstreet's challenges to his

convictions, we turn now to the government's cross-appeal.

Appropriately applying the 1995 Guidelines Manual, the

probation officer who prepared Bradstreet's presentence

report (PSR) recommended a base offense level of six; a

two-level increase for more than minimal planning; a

fifteen-level increase because the loss ($11,471,250.00)

exceeded $10 million; a four-level increase because

Bradstreet was an organizer or leader of a criminal activity

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that involved five or more participants or was otherwise

extensive; and a two-level increase for abuse of a position

of public or private trust. This yielded adjusted and total

offense levels of 29 and, because Bradstreet had no criminal

history, a recommended guidelines sentencing range of 87-108

months.

Prior to sentencing, however, Bradstreet and the

government entered into a sentencing agreement which mirrored

the PSR except in two respects. First, the government agreed

not to seek a two-level upward adjustment for abuse of a

position of trust. Second, the parties agreed to request the

court to find that the $11-plus million loss figure

overstated the seriousness of the offense, see Application

Note 7(b) of U.S.S.G. 2F1.1, and that the appropriate

amount of loss to be attributed to Bradstreet was

approximately $2.3 million. Adoption of this calculation

would result in a twelve, rather than fifteen, level increase

for amount of loss. These provisions of the agreement

combined to reduce the recommended total offense level to 24

and the recommended guidelines sentencing range to 51-63

months. The sentencing agreement also provided that the only

ground on which Bradstreet could move for a downward

departure was under a theory that his conduct was "a single

act of aberrant behavior," see United States v. Grandmaison,

77 F.3d 555, 560-64 (1st Cir. 1996) (explicating the contours

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of this ground of departure), and that the government would

oppose the motion. Prior to sentencing, Bradstreet so moved.

The government opposed Bradstreet's motion on three

grounds. First, it argued that it is illogical to find

aberrant conduct where, as here, there has been no admission

of guilt. Alternatively, it asserted that both the record and

the jury's verdicts establish that Bradstreet testified

dishonestly when he testified that he did not act with an

intent to defraud, see supra at 10-11 (outlining the court's

mens rea instructions, which emphasized that the jury must

find an intent to defraud in order to convict); see also,

e.g., United States v. Rostoff, 53 F.3d 398, 413 (1st Cir.

1995) (a court is bound to accept a fact necessarily

established by a jury verdict when that fact is material to

sentencing), and that it is illogical to find criminal

dishonesty aberrant where the defendant subsequently

testified dishonestly. Finally, the government took the

position that the duration, complexity, and sophistication of

Bradstreet's fraud defy characterization as "a single act."

The district court accepted the parties'

recommendations as to the appropriate guidelines

calculations, finding that Bradstreet had a total offense

level of 24 and an applicable guidelines sentencing range of

51-63 months. The court then granted Bradstreet's motion for

a downward departure, reduced Bradstreet's total offense

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level to 20 (yielding a guidelines sentencing range of 33-41

months), and sentenced Bradstreet to 33 months in prison. In

doing so, the court implicitly rejected the government's

argument that a defendant must admit guilt in order to

receive an aberrant conduct departure. The court also

rejected without explanation the argument that the record and

verdicts establish that Bradstreet testified dishonestly, and

that this fact makes him legally ineligible for an aberrant

conduct departure.

Rather, the court looked to our statement in

Grandmaison that "aberrant behavior departures are available

to first offenders whose course of criminal conduct involves

more than one criminal act," 77 F.3d at 563, and our

directive that courts judge aberrance vel non under a

totality-of-circumstances test, see id. at 563-64 (approving

consideration of factors such as the absence of pecuniary

gain to the defendant, prior good deeds, and efforts to

mitigate the effects of the crime), to find that Bradstreet

had engaged in "behavior . . . animated by a single

objective, . . . the success of the Kurzweil IPO." In the

court's view, Bradstreet's conduct was, under the facts of

this case, tantamount to a single act. And the totality of

the circumstances -- a perceived lack of motivation by greed,

an

otherwise exemplary life, a record of significant charitable

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giving, and an impressive outpouring of support from friends

and family -- warranted the conclusion that Bradstreet's

conduct was aberrant.

Even if we were to follow the district court's

approach and to define Bradstreet's criminal conduct at an

exceedingly high level of generality, that is, as a

multi-faceted act of dishonesty designed to obtain for

Kurzweil badly-need cash during the 1992-94 time frame, we

are faced with the government's arguments that what occurred

was not a single aberrant act of dishonesty because

Bradstreet did not plead guilty and/or because Bradstreet

engaged in the wholly-separate act of testifying dishonestly

about his conduct. Because we see no convincing response to

the latter of these two arguments on the facts of this case,

we accept it and leave to another day consideration of

whether an admission of guilt is a prerequisite to an

aberrant behavior departure.

Although Grandmaison takes an expansive view of

that which constitutes a single act of aberrant conduct, it

confirms that the Guidelines Manual means what it says: a

departure for an act that is composed of a number of

component acts, id. at 563 ("[S]ingle acts of aberrant

behavior . . . include multiple acts leading up to the

commission of a crime."), is permissible only if the act is

singular, see id. at 564 (first time offenders who have been

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"convicted of several unrelated offenses" are not entitled to

aberrant conduct departures). Moreover, in the context of

guidelines sentencing, we think it obvious that the term

"aberrant" must look forward as well as backward. In other

words, an aberrant behavior departure is not warranted unless

the conduct at issue is both a marked departure from the past

and is unlikely to recur. Cf. United States v. Lam, 20 F.3d

999, 1004 (9th Cir. 1994) ("[I]n this context, calling a

consistent criminal's behavior aberrant would be an oxymoron

and, perhaps, make us look like oxen or morons or both.").

In so holding, we note that the Ninth Circuit, which also

takes an expansive view of that which constitutes a single

act of aberrant behavior, see United States v. Takai, 941

F.2d 738, 741 (9th Cir. 1991), apparently includes likelihood

of recurrence as part of its aberrance calculation, see Lam,

20 F.3d at 1005.

Under these criteria and on this record, the

district court exceeded its discretion in rejecting the

government's dishonest testimony argument and departing

downward. The argument rests on two premises, one legal and

one factual: (1) one convicted of criminal dishonesty who

testifies dishonestly about his conduct is not entitled to an

aberrant conduct departure as a matter of law; and (2) a

finding that Bradstreet did not testify dishonestly would be

an abuse of discretion. Because the court failed to specify

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which of these premises it did not accept, we examine each in

turn.

We think it obvious that the government's legal

premise is sound. As we have observed, a departure based on

a finding that the relevant criminal conduct was a single act

of aberrant behavior is appropriate only where the conduct

was isolated and is unlikely to recur. Yet one who testifies

dishonestly after engaging in felonious dishonesty cannot

credibly make either claim. One convicted of criminal

dishonesty is therefore not entitled to an aberrant conduct

departure if he has testified dishonestly about his criminal

conduct.

We also agree with the government's factual

premise. As the government pointed out both below and on

appeal, Bradstreet testified that he did not intend to file

false information in connection with the public offering, to

file false financial statements in connection with the

relevant Forms 10-Q, or to conceal records or information

from the auditors. The verdicts against him necessarily

establish, however, that the jury rejected this testimony and

found that he did act with an intent to defraud. See supra

at 10-11 (noting that the court instructed the jury to acquit

unless it found that Bradstreet acted with an intent to

defraud and setting forth the court's mens rea instructions).

In our view, this finding conclusively establishes that

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Bradstreet testified dishonestly at trial. After all, the

jury's verdict must be credited over Bradstreet's contrary

testimony, see, e.g., Rostoff, 53 F.3d at 413; the contrary

testimony strikes us as inherently not subject to

characterization as unintentional, cf. United States v.

Dunnigan, 507 U.S. 87, 94 (1993) (making clear that false

testimony is not perjurious where it is "a result of

confusion, mistake, or faulty memory"); and, in any event,

Bradstreet has not responded to the government's argument by

suggesting that his false intent testimony was unintentional.

To the contrary, he has steadfastly maintained that he acted

without an intent to defraud during the entire pendency of

these proceedings.

Bradstreet attempts to rebut this line of analysis

in three ways. First, he appears in some places to argue

that the district court departed downward on some ground or

grounds other than the guidelines-based single act of

aberrant behavior ground, and that the Supreme Court's

decision in Koon v. United States, 116 S. Ct. 2035 (1996)

(establishing an across-the-board abuse of discretion

reviewing standard for sentencing departures), validates the

court's authority to engage in such a departure. We think it

apparent, however, that the court based its departure on the

ground on which departure was sought: that the conduct

underlying the conviction was a single act of aberrant

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behavior. To the extent that the court ranged far and wide

in explaining its departure, we perceive it only to have been

employing the totality-of-circumstances test we prescribed in

Grandmaison. Second, Bradstreet seems to contend that

Koon precludes appellate courts from establishing the

contours of mixed fact/law concepts such as that which

constitutes a single act of aberrant behavior. Koon makes

clear, however, that the appellate courts are to continue to

establish the legal boundaries and to correct law-based

misapplications of such concepts. See 116 S. Ct. at 2047-48.

Here, for the reasons just stated, we think the sentencing

court went beyond its legal boundaries when it concluded that

the dishonest conduct underlying Bradstreet's convictions was

both a one-time occurrence and an aberration. We simply have

corrected the court's error.

Finally, Bradstreet contends that the jury did not

necessarily reject any aspect of his testimony. In doing so,

he reanimates his argument that, because the jury heard

substantively divergent versions of Kurzweil's revenue

recognition policy and was not told to acquit if it found

that the revenue Bradstreet knowingly booked was properly

booked under a reasonable interpretation of the policy, his

conviction is fatally flawed. In Bradstreet's view, the jury

might have believed that he knew nothing about the true

nature of those transactions involving forgeries, but

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nonetheless convicted him on the basis of those transactions

he defended as having generated properly-recognized revenue.

Even if we assume this unlikely scenario for the

sake of argument, it remains fact that Bradstreet never

argued that there was an interpretation of Kurzweil's policy

that differed in some respect from the government's. And on

this record, there is no basis for an inference that the jury

understood the testifying witnesses' summaries of Kurzweil's

revenue recognition policy to be anything other than

divergent synopses of commonly-understood concepts. We thus

have every confidence that the jury determined that

Bradstreet acted with an intent to defraud by reference to a

common and proper set of principles. As a result, we are

bound to credit the jury's intent finding, which conclusively

demonstrates its rejection of Bradstreet's testimony.

We wish to be clear on the precise nature of our

ruling. We do not employ a per se rule that an accused who

gives testimony that is necessarily rejected by the jury has

intentionally testified dishonestly -- i.e., that he has

perjured himself. As we have stated, such testimony, though

it must be taken as false, see Rostoff, 53 F.3d at 413, may

not have been intentionally false; it may have been the

product of confusion, mistake, or faulty memory, see

Dunnigan, 507 U.S. at 95. Here, though, for reasons we have

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explained, see supra at 29, Bradstreet's false testimony

simply is not capable of being regarded as unintentional.

Because the record is fully developed on this point

and Bradstreet has had an ample opportunity to respond to the

government's argument, we rule, as a matter of law, that the

dishonest activity for which Bradstreet stands convicted was

not a single act of aberrant conduct. Accordingly, we vacate

Bradstreet's sentence and remand for resentencing. See,

e.g., Rostoff, 53 F.3d at 413-14.

IV.
IV.

Our decision to nullify the district court's

downward departure might strike some as harsh. We are

acutely aware that incarceration is but one of a number of

ruinous consequences that the 52-year-old Bradstreet and his

family are suffering as a result of his conduct. And we have

a great deal of respect for the informed judgment of the

experienced judge who determined that, in light of all the

circumstances, nearly three years in prison is enough. But

it hardly bears repeating that, under guidelines sentencing,

a judge has limited discretion to depart from an applicable

guidelines sentencing range. This case is yet another

striking reminder of this fact.

For the reasons stated, we affirm Bradstreet's
affirm

convictions but vacate the judgment and remand for
vacate

resentencing.

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