United States v. Richardson

United States Court of Appeals
For the First Circuit

No. 04-1617

UNITED STATES OF AMERICA,

Appellee,

v.

JOANNE RICHARDSON,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]
[Hon. Reginald C. Lindsay, U.S. District Judge]
[Hon. William G. Young, U.S. District Judge]

Before

Selya, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lipez, Circuit Judge.

Robert M. Andalman, with whom Jeremy D. Margolis, Sonnenschein
Nath & Rosenthal LLP, A. John Pappalardo, Evan Georgopoulos, and
Greenberg Traurig LLP were on brief, for appellant.
Susan G. Winkler, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, and Michael K. Loucks,
Assistant United States Attorney, were on brief, for appellee.

August 30, 2005
 LIPEZ, Circuit Judge. Defendant-appellant Joanne

Richardson appeals her conviction under 18 U.S.C. § 1623 for making

false statements during immunized testimony before a grand jury

investigating allegations of Medicare/Medicaid fraud. Richardson

first contends that the district court erroneously denied her

motion to dismiss the indictment because her trial took place after

the deadline imposed by the Speedy Trial Act, 18 U.S.C. §§ 1361-74

("STA"). Next, Richardson asserts that at least one of the

nineteen false statements charged against her in a single count of

perjury advances a theory of conviction that is contrary to law,

requiring that we vacate the jury's general verdict because it may

have rested on an illegal ground. Finally, Richardson challenges

the court's admission of allegedly irrelevant and unduly

prejudicial evidence at trial. We reject all of these claims and

affirm Richardson's perjury conviction.

I. BACKGROUND

A. Grand Jury Investigation and Indictment

We set forth the facts "in the light most flattering to

the government's theory of the case, consistent with record

support." United States v. Sebaggala, 256 F.3d 59, 62 (1st Cir.

2001). From about 1997 to 2000, Richardson was employed as a

Regional Account Manager for TAP Pharmaceuticals Inc. ("TAP"),

which manufactures, among other drugs, Lupron, a prescription drug

used in the treatment of prostate cancer. Richardson was

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responsible for maintaining relationships with institutional and

managed care customers, including, in 1997, the Lahey Clinic in

Burlington, Massachusetts.

In 1999-2000, the government convened a grand jury to

investigate allegations that, in violation of federal statutes, TAP

and some of its employees had provided "things of value," including

educational grants and free items, (1) as an inducement to certain

customers to purchase and prescribe TAP products and/or (2) as a

hidden discount to those customers, which allowed TAP to pay

reduced rebates to state Medicaid programs based on an artificially

inflated invoice or contract price. See 42 U.S.C. § 1320a-7b(b)

(prohibiting the offering or paying of and the solicitation or

receipt of remuneration "in cash or in kind" in exchange for making

certain referrals or for engaging in certain transactions "for

which payment may be made in whole or in part under a Federal

health care program"); id. § 1396r-8(c)(1)(A), (C) (providing for

payment of rebates by drug manufacturers to state Medicaid programs

based on difference between "average manufacturer price" and "the

lowest price available from the manufacturer during the rebate

period").

Richardson testified before the grand jury pursuant to an

order of immunity on October 31, 2000 and December 19, 2000. In

response to questioning about her discussions with Lahey Clinic

representatives and TAP employees in 1997 regarding renewal of

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Lahey's contract with TAP for the clinic's Lupron purchases,

Richardson denied that she had ever offered or discussed offering

things of value to Lahey Clinic, in her words, "as a way of

reducing [Lupron's] price outside of a contract form."

On June 25, 2002, Richardson was indicted on one count of

making false statements before a grand jury, 18 U.S.C. § 1623

(Count One),1 and one count of obstruction of justice, id. § 1503

(Count Two),2 based on her grand jury testimony of December 19,

2000. On October 31, 2002, the grand jury returned a superseding

indictment amending Count One, re-alleging Count Two, and adding

one count each of perjury and obstruction of justice (Counts Three

and Four) based on a statement Richardson had made in a sworn

declaration submitted to the court on September 24, 2002 in

opposition to the government's motion to disqualify her defense

counsel.

As amended, Count One alleged that, contrary to nineteen

statements she made before the grand jury during her December 19,

2000 grand jury testimony, Richardson had

1
18 U.S.C. § 1623(a) provides, in relevant part: "Whoever
under oath . . . in any proceeding before or ancillary to any court
or grand jury of the United States knowingly makes any false
material declaration . . . shall be fined under this title or
imprisoned not more than five years, or both."
2
18 U.S.C. § 1503(a) prohibits, among other things, a person
from "corruptly . . . endeavor[ing] to influence, obstruct, or
impede[] the due administration of justice . . . ."

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 discussed with, offered[,] and provided to
Lahey Clinic things of value outside the
written contract as a way of making Lupron
cheaper, . . . to help make up the difference
between the price of Lupron and the price of
Zoladex, [a competing drug], [and] as an
inducement to the Lahey Clinic and some of its
employees to . . . renew[] the contract with
TAP and . . . to purchase Lupron for patients
being treated in the Clinic's facilities;

and that Richardson had "discussed those arrangements with other[]

employees at TAP."3 Count One further alleged that "such things of

value includ[ed] golf outings, research support, educational

grants, free or nominally priced goods, and other items."

B. Pre-Trial through Post-Trial Proceedings

Richardson moved to dismiss all four counts in the

superseding indictment on March 7, 2003, arguing with respect to

Count One that the perjury charges against her were insupportable

as a matter of law because her statements before the grand jury

were literally true, the indictment took those statements out of

context, and her statements were made in response to the

prosecutor's fundamentally ambiguous questions during the grand

jury colloquy. Judge Stearns heard argument and took the motion

under advisement on May 29, 2003.4

3
The nineteen allegedly false statements charged in Count One
of the superseding indictment are reproduced in Appendix A.
4
We identify the four different district court judges involved
in this case at various stages solely to prevent confusion over the
chronology of the proceedings.

-5-
 On August 11, 2003, one week before Richardson's trial

was scheduled to begin, Judge Stearns, who had not yet ruled on

Richardson's motion to dismiss the superseding indictment, recused

himself. On August 13, 2003, the case was reassigned to Judge

Wolf, who immediately recused himself, and then to Judge Lindsay.

During the parties' first appearance before Judge Lindsay on

September 22, 2003, Richardson requested a trial date, noting that

the time period for trial permitted by the STA either had already

expired or was due to expire. Judge Lindsay stated that his trial

calendar was booked through much of January, with the exception of

the week of October 14, 2003. Richardson acknowledged that an

October trial date would leave too little time for Judge Lindsay to

decide her motion to dismiss the superseding indictment. Judge

Lindsay therefore declined to set a trial date.

On October 16, 2003, Judge Lindsay denied Richardson's

motion to dismiss the superseding indictment. When the parties

appeared before Judge Lindsay again on November 17, 2003, he

inquired about the speedy trial status of the case. The government

stated that the docket showed no ruling by the court on

Richardson's objections to a magistrate judge's order denying her

motion to strike material from the government's opposition to her

motion to dismiss the superseding indictment. Richardson reminded

the court and the government that Judge Lindsay had declared the

matter to be moot in his October 16, 2003 decision because he had

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excluded the material subject to Richardson's motion to strike from

his consideration of her motion to dismiss the superseding

indictment. As a result, no motions had been pending since late

October.

The government then requested a trial date of January 19,

2004 because its chosen trial attorney was already engaged in

another trial expected to run through part of December. Richardson

indicated her readiness for an immediate trial. Judge Lindsay then

stated: "there are two problems, one is that –- one of the counsel

for the government is not ready because he's engaged elsewhere.

And I have two criminal cases preceding this one in December." He

concluded: "if we are impinging on [Richardson's speedy trial]

rights, . . . then I'm going to have to refer this to another judge

who can try it before January 19th," even if a different government

attorney would have to try the case. Richardson again requested an

immediate trial and asked that the case be reassigned quickly.

The government protested, predicting that "if we end up

being [reassigned] to another judge, we'll be even later than

January 19th." Judge Lindsay then accepted the government's

suggestion that the government submit its calculation of the number

of days remaining on the speedy trial clock so that Judge Lindsay

could determine whether his earliest available trial date of

January 19, 2004 would satisfy the requirements of the STA, or

whether the case would instead have to be reassigned to another

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judge. Accordingly, Judge Lindsay requested that the government

"report to my clerk" by noon the next day on the speedy trial

status of the case.

The government timely filed its report, captioned a

"Motion to Set a Trial Date of January 19 and for Excludable Delay

for the Period Between November 17, 2003 and January 19, 2004," in

which it calculated that the STA required Richardson's trial to

"commence on or before December 18, 2003." The government

nevertheless requested that the court schedule trial for January

19, 2004 and exclude the period of time between November 17, 2003

and January 19, 2004 from the speedy trial clock as a continuance

in the interest of justice pursuant to 18 U.S.C. § 3161(h)(8)(A).5

5
18 U.S.C. § 3161(h)(8)(A) requires the exclusion from the
speedy trial clock of "[a]ny period of delay resulting from a
continuance granted by any judge on his own motion or at the
request of the defendant or his counsel or at the request of the
attorney for the Government, if the judge granted such continuance
on the basis of his findings that the ends of justice served by
taking such action outweigh the best interest of the public and the
defendant in a speedy trial," provided that the court "sets forth,
in the record of the case, either orally or in writing," its
reasons for so finding. "The factors, among others, which a judge
shall consider in determining whether to grant a continuance under
subparagraph (A) of this paragraph in any case" are set forth in 18
U.S.C. § 1361(h)(8)(B)(i)-(iv):

(i) Whether the failure to grant such a
continuance in the proceeding would be likely
to make a continuation of such proceeding
impossible, or result in a miscarriage of
justice.

(ii) Whether the case is so unusual or so
complex, due to the number of defendants, the
nature of the prosecution, or the existence of

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As grounds for the continuance, the government asserted that: (1)

a trial date earlier than January 19, 2004 would "unreasonably

deny . . . the Government continuity of counsel" because its chosen

trial attorney had been involved since mid-October in another trial

that was unlikely to end before December 10, 2003, justifying a

continuance for that period of time; (2) the court could "require

the parties to file any motions in limine by [November 24,

novel questions of fact or law, that it is
unreasonable to expect adequate preparation
for pretrial proceedings or for the trial
itself within the time limits established by
[18 U.S.C. § 3161].

(iii) Whether, in a case in which arrest
precedes indictment, delay in the filing of
the indictment is caused because the arrest
occurs at a time such that it is unreasonable
to expect return and filing of the indictment
within the period specified in section
3161(b), or because the facts upon which the
grand jury must base its determination are
unusual or complex.

(iv) Whether the failure to grant such a
continuance in a case which, taken as a whole,
is not so unusual or so complex as to fall
within clause (ii), would deny the defendant
reasonable time to obtain counsel, would
unreasonably deny the defendant or the
Government continuity of counsel, or would
deny counsel for the defendant or the attorney
for the Government the reasonable time
necessary for effective preparation, taking
into account the exercise of due diligence.

Finally, 18 U.S.C. § 3161(h)(8)(C) provides that "[n]o continuance
under subparagraph (A) of this paragraph shall be granted because
of general congestion of the court's calendar, or lack of diligent
preparation or failure to obtain available witnesses on the part of
the attorney for the Government."

-9-
2003] . . . as a legitimate case management tool," thereby tolling

the STA clock where "the defendant is likely to have such motions";

and (3) because it was unlikely that the case could be reassigned

to another judge who could schedule the case for trial on or before

December 18, 2003, "any transfer to another judge in this district

will likely result in a miscarriage of justice because the case

will probably have to be dismissed without prejudice due to a

violation of the [STA]."

Upon the November 19, 2003 request of Judge Lindsay's

clerk, Richardson submitted a letter to the court on November 20,

2003 addressing the "impact under the [STA] of the Government's

November 18 filing." In the letter, Richardson disputed the

government's STA calculation and argued that November 20, 2003 was

the last day on which a trial could begin in compliance with the

STA. Richardson also asserted that despite its caption, the

government's report was not a "motion" whose filing on November 18,

2003 operated to toll the speedy trial clock pursuant to 18 U.S.C.

§ 3161(h)(1)(F),6 but was instead a mere status report that

"acknowledged that the first date on which the Court could try the

case [January 19, 2004] indeed present[s] problems under the [STA],

even by the Government's calculation." In Richardson's view, the

6
18 U.S.C. § 3161(h)(1)(F) requires the exclusion from the
speedy trial clock of any period of "delay resulting from any
pretrial motion, from the filing of the motion through the
conclusion of the hearing on, or other prompt disposition of, such
motion."

-10-
government's attempt to characterize its filing as a motion was a

pretext for avoiding the STA's requirements.

The government filed a reply to Richardson's letter on

November 24, 2003 contesting Richardson's STA calculation and

reiterating the arguments made in its November 18, 2003 filing.

Richardson filed a "Memorandum in Opposition" the next day,

November 25, 2003, seeking dismissal of the indictment with

prejudice for violation of the STA. Without formally responding to

any of the parties' papers filed between November 18 and November

25, 2003, and without determining how many days, if any, remained

on the speedy trial clock, Judge Lindsay had the case reassigned to

a fourth judge on December 1, 2003.7

When the parties appeared before Judge Young that same

day, December 1, 2003, Richardson maintained that the time period

within which the STA required her trial to begin had expired on

November 20, 2003. Judge Young stated that he thought the speedy

trial clock had not yet expired, but was about to. Although he

offered to empanel a jury on December 8, 2003, he advised the

parties that his schedule that week would not permit an

uninterrupted trial. In the alternative, Judge Young offered to

set a trial date of January 5, 2004 and to exclude the time between

7
Judge Lindsay apparently utilized "a new procedure" through
which the "case [could] be redrawn from a pool of those judges
indicating the matter could be tried on an expedited basis."
United States v. Richardson, 324 F. Supp. 2d 339, 341 (D. Mass.
2004) (Young, J.).

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December 8, 2003, and January 5, 2004 as a continuance in the

interest of justice under 18 U.S.C. § 3161(h)(8)(A), without

prejudice to Richardson's right to seek dismissal of the indictment

under the STA on the theory that the speedy trial clock had expired

on November 20, 2003. The parties eventually agreed to set a trial

date of January 12, 2004 and to exclude the time between December

8, 2003 and January 12, 2004 as a continuance in the interest of

justice.8

On December 5, 2003, Richardson renewed her motion to

dismiss the superseding indictment, reiterating her previous

arguments that all of the charges against her were facially

insufficient. On December 16, 2003, continuing to press her claim

that the speedy trial clock had expired on November 20, 2003,

Richardson moved to dismiss the indictment with prejudice for

violation of the STA. On that same day, the government filed a

"Further Submission on Speedy Trial Act Issues" in which it

informed the court that it had miscalculated the number of days

that had run on the speedy trial clock in its November 18, 2003

filing, and that, as of November 17, 2003, the STA required

Richardson's trial to begin no later than December 3, not December

18, 2003.

8
Appendix B sets forth a timeline of the dates and filings
relevant to the STA calculation.

-12-
 The government agreed to dismiss Counts Three and Four of

the superseding indictment on December 17, 2003. On December 29,

2003, Richardson filed a motion in limine seeking to exclude

allegedly irrelevant and unduly prejudicial evidence. On January

12, 2004, the date of trial, the court denied Richardson's motion

to dismiss the indictment on STA grounds. The court also denied

her motion in limine without prejudice.

Richardson's trial took place from January 12, 2004

through January 23, 2004. At the close of the government's

evidence, Richardson moved for an acquittal under Fed. R. Crim. P.

29. The court permitted the trial to proceed, and Richardson

presented evidence in her defense. On January 23, 2004, the jury

returned a general verdict finding Richardson guilty of perjury as

charged in Count One, but acquitting her of obstruction of justice

as charged in Count Two. After receiving an extension of time,

Richardson filed a motion for acquittal notwithstanding the jury

verdict on February 10, 2004, arguing that at least one of the

nineteen allegedly false statements forming a possible ground for

the guilty verdict was legally insupportable. The court denied the

motion after oral argument on March 16, 2004, reserving the right

to reconsider its decision, as well as Richardson's oral motion for

a new trial, while expressly stating that it made no promise of any

further decision.

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 On April 29, 2004, the court sentenced Richardson to six

months of imprisonment, to be followed by two years of supervised

release (including four months of home confinement), a fine of

$3,000, and a special monetary assessment of $100. The court

entered a final judgment of conviction on April 30, 2004, and

Richardson timely appealed. On May 11, 2004, the court, citing

Richardson's STA claim, allowed her motion to stay execution of her

sentence pending appeal. See 18 U.S.C. § 3143 (providing for

detention pending appeal except where judicial officer finds that

appeal is not for purposes of delay and raises a "substantial

question of law . . . likely to result" in a different

disposition). On July 13, 2004, the court issued a memorandum

explaining its reasons for denying Richardson's motion to dismiss

the indictment on STA grounds. See United States v. Richardson,

324 F. Supp. 2d 339 (D. Mass. 2004).

II. THE SPEEDY TRIAL ACT

The STA provides that the trial of a defendant charged by

indictment "shall commence within seventy days from the filing date

(and making public) of the . . . indictment, or from the date the

defendant has appeared before a judicial officer of the court in

which such charge is pending, whichever date last occurs." 18

U.S.C. § 3161(c)(1). This requirement reflects the Act's purpose

of protecting both a defendant's private interest and the broader

public interest "in the fair –- but expeditious –- trial of

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criminal cases." United States v. Hastings, 847 F.2d 920, 924 (1st

Cir. 1988).9 If a defendant's trial begins after the seventy-day

time period has elapsed, the STA requires the court, "on motion of

the defendant," to dismiss the indictment, either with or without

prejudice. 18 U.S.C. § 3162(a)(2); see also United States v.

Barnes 159 F.3d 4, 16-18 (1st Cir. 1998) (discussing factors to be

considered). However, in calculating the seventy-day period within

which a trial must commence, the STA "mandates the exclusion of

certain periods of delay." United States v. Salimonu, 182 F.3d 63,

67 (1st Cir. 1999); see 18 U.S.C. § 3161(h)(1)-(9). Among the

periods of delay that must be excluded is "delay resulting from any

pretrial motion, from the filing of the motion through the

conclusion of the hearing on, or other prompt disposition of, such

motion." 18 U.S.C. § 3161(h)(1)(F).

For purposes of this appeal, the parties do not dispute

that by November 17, 2003, the day of the second pre-trial status

conference before Judge Lindsay, sixty-seven out of seventy non-

excludable days had run on the speedy trial clock. The government

thus does not press its arguments, raised below, that, as of

November 17, 2003, the STA permitted Richardson's trial to begin as

late as December 18, 2003 (as stated in the government's November

18, 2003 filing) or on or before December 3, 2003 (as stated in the

9
The STA "increases a defendant's speedy trial safeguards
beyond the constitutional minima." Hastings, 847 F.2d at 923 n.4.

-15-
government's December 16, 2003 "Further Submission on Speedy Trial

Act Issues"). Richardson, for her part, concedes that if the

speedy trial clock did not expire on November 20, 2003, she was

tried within the seventy-day period allowed by the STA.

The parties' disagreement is therefore confined to the

question whether the government's filing of November 18, 2003 was

a "motion" within the meaning of 18 U.S.C. § 3161(h)(1)(F), which

operated to toll the speedy trial clock "from the filing of the

motion through [its] . . . prompt disposition."10 Richardson argues

that the government's November 18, 2003 filing was nothing more

than a status report responding to Judge Lindsay's request for

information that did not toll the speedy trial clock, which expired

two days later without the commencement of her trial.

Alternatively, Richardson argues that even if the government's

filing otherwise qualified as a motion, it did not operate to toll

the speedy trial clock because it was filed as a pretext to avoid

the consequences of an STA violation. To permit tolling under

these circumstances, Richardson maintains, would frustrate the

purposes of the STA. The government takes the position that it

filed a legitimate motion for a continuance in the interest of

justice, without pretext, whose filing tolled the clock until the

case was reassigned from Judge Lindsay to Judge Young on December

10
Richardson does not argue that, if the government's November
18, 2003 filing qualifies as a motion, the court exceeded the
permissible period of excludable time for disposing of the motion.

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1, 2003. By the government's count, only one additional non-

excludable day, December 2, 2003, elapsed on the speedy trial clock

before Richardson's trial began on January 12, 2004 with two days

to spare.11

In his July 13, 2004 memorandum explaining his reasons

for denying Richardson's motion to dismiss the indictment on STA

grounds, Judge Young recognized Richardson's "frustration with the

timing of the Government's filing" and acknowledged that "this is

a close call." Richardson, 324 F. Supp. 2d at 342. He

nevertheless concluded that the government's filing of November 18,

2003 qualified as a legitimate, non-pretextual motion that tolled

the speedy trial clock under 18 U.S.C. § 3161(h)(1)(F). Judge

Young explained that the government's filing

request[ed] . . . a continuance until January
19, 2004 and [exclusion of] the intervening
delay instead of [having the case reassigned]
to another judge so that it could be put to
trial before December 18, 2003. The
Government put forth three reasons why the
court should grant the continuance and exclude
the delay, citing relevant provisions of the
[STA]. On its face, the Government's filing
appeared to be a genuine motion. The motion
also appeared to be sufficiently
straightforward as to warrant action without a
hearing. The last brief relating to the
Government's motion was [the Memorandum of

11
The government filed a motion in limine on December 3, 2003,
which overlapped with the filing of other pretrial motions that
were decided on January 12, 2004. The parties also agreed on
December 1, 2003 to exclude the period of time from December 8,
2003 through January 12, 2004 as a continuance in the interest of
justice. See infra Appendix B.

-17-
 Opposition] filed by Richardson on November
25, 2003, and, although Judge Lindsay never
issued an order relating to the motion, he
essentially denied it when he promptly had the
case redrawn on December 1, 2003, instead of
granting the continuance and excluding the
delay.

Richardson, 324 F. Supp. 2d at 342 (citations omitted).12 Judge

Young thus determined that Judge Lindsay effectively denied the

government's legitimately filed motion for a continuance when he

had the case reassigned to Judge Young on December 1, 2003. As a

result, the filing of the motion tolled the speedy trial clock from

November 18, 2003 through December 1, 2003. Accordingly, Judge

Young agreed with the government's position that the disputed

period of time was excludable from the speedy trial clock and

denied Richardson's motion to dismiss the indictment on STA

grounds.

The question whether the government's filing was a

"motion" within the meaning of 18 U.S.C. § 3161(h)(1)(F) is a

question of law subject to de novo review. Cf. United States v.

Staula, 80 F.3d 596, 600 (1st Cir. 1996) (reviewing de novo

question whether colloquy qualifies as a "hearing" within the

meaning of 18 U.S.C. § 3161(h)(1)(F)). We review for clear error

12
Judge Young also noted that "the [STA] separately provides
for disciplinary action against attorneys who file frivolous
motions for the purpose of delay" under 18 U.S.C. 3162(b).
Richardson, 324 F. Supp. 2d at 342 n.3. Because Richardson did not
seek sanctions against the government's attorneys, Judge Young
declined to comment on "whether the Government's motion qualified
for such punishment." Id.

-18-
the district court's factual findings on the question whether the

government's filing was merely a pretext to avoid dismissal of the

indictment under the STA. See United States v. Zayas, 876 F.2d

1057, 1058 (1st Cir. 1989) (reviewing factual determination that

jury empanelment was not pretextual for clear error).

"[W]e have read the term 'pretrial motion' broadly to

encompass all manner of motions" for purposes of tolling the speedy

trial clock, "ranging from informal requests for laboratory reports

to 'implied' requests for a new trial date." Barnes, 159 F.3d at

11 (citations omitted); see also United States v. Arbelaez, 7 F.3d

344, 348 (3d Cir. 1993) (defendant's letter to court qualifies as

motion tolling speedy trial clock where "the government, in good

faith, treated the letter as a motion" despite court's refusal to

consider the filing until resubmitted in proper form). But see

United States v. Brown, 285 F.3d 959, 961 (11th Cir. 2002) (per

curiam) (document filed by government that "served the function of

[regular] status reports required by [a] local rule" but also

requested that the court set a trial date does not constitute

motion that tolls speedy trial clock). The district court

accurately characterized the government's November 18, 2003 filing,

which not only reported the government's calculation of the number

of days remaining on the speedy trial clock but also sought relief

in the form of a continuance in the interest of justice pursuant to

-19-
18 U.S.C. § 3161(h)(8)(A), as a motion that tolled the speedy trial

clock pursuant to 18 U.S.C. § 3161(h)(1)(F).

The statutory grounds for exclusion of time from the

speedy trial clock "are designed to take account of specific and

recurring periods of delay which often occur in criminal cases;

they are not to be used either to undermine the time limits

established by the Act, or to subvert the very purpose the Act was

designed to fulfill." Henderson v. United States, 476 U.S. 321,

333 (1986) (White, J., dissenting). Accordingly, we have

repeatedly cautioned that neither counsel nor district courts may

employ measures for excluding time from the speedy trial clock that

impermissibly frustrate the STA's purpose of protecting the shared

interest of criminal defendants and the public in "bringing

criminal charges to the bar of justice as promptly as practicable."

Hastings, 847 F.2d at 923. See, e.g., United States v. Scott, 270

F.3d 30, 56 (1st Cir. 2001) (period of delay not excludable where

court's retroactive reasons for exclusion "would undermine the

purposes of the [STA]"); Staula, 80 F.3d at 602 n.3 ("[W]e will not

permit either the district court or the prosecution to jerry-build

a 'hearing' in order to thwart the concinnous operation of the

Speedy Trial Act."); United States v. Rodriguez, 63 F.3d 1159, 1165

(1st Cir. 1995) (declining to adopt "broad rule" requiring

exclusion of "extended delay attributable solely to the

-20-
government's unexcused failure to comply with a court-ordered

briefing schedule" because of "potential [for] abuse").

The record in this case supports Judge Young's

determination that the government's facially valid motion was not

filed as a pretext to avoid the consequences of an STA violation,

but was filed for the legitimate purpose of seeking a continuance

in the interest of justice. In particular, the motion justifiably

sought a continuance to prevent the loss of continuity of counsel

in the event the case was reassigned to a different judge for an

earlier trial date.13 The government's need for continuity of

counsel is a valid statutory ground for granting a continuance in

the interest of justice. See 18 U.S.C § 3161(h)(8)(B)(iv) (among

factors court "shall consider" in determining whether ends of

justice outweigh interests favoring speedy trial is whether failure

to grant a continuance "would unreasonably deny the defendant or

the Government continuity of counsel"); United States v.

Scantleberry-Frank, 158 F.3d 612, 615 (1st Cir. 1998) (excluding

time period resulting from "continuance . . . granted to aid

defense counsel, and maintain continuity of counsel").

13
We do not address the other two grounds raised in the
government's November 18, 2003 motion in support of a continuance
in the interest of justice: (1) that the court could "require the
parties to file any motions in limine by [November 24,
2003] . . . as a legitimate case management tool" and (2) that "any
transfer to another judge in this district will likely result in a
miscarriage of justice because the case will probably have to be
dismissed without prejudice due to a violation of the [STA]."

-21-
 Richardson does not dispute that the government's

attorney was in fact unavailable because he was engaged in another

trial during much of December.14 She points out, however, that

while continuity of counsel is an express statutory ground for a

continuance in the interest of justice, the STA explicitly

prohibits a court from granting such a continuance "because of

general congestion of the court's calendar." 18 U.S.C.

§ 3161(h)(8)(C). The events in this case, Richardson argues,

demonstrate that although the government cited continuity of

counsel as a reason to grant a continuance in the interest of

justice, the real reason a continuance was necessary was because

Judge Lindsay's trial schedule was full.15

The record reflects that Judge Lindsay notified the

parties, both during the November 17, 2003 status conference and

during the earlier September 22, 2003 conference, that his trial

calendar was filled through most of January. However, the record

also shows that during the November 17, 2003 status conference –-

before either of the parties had submitted their speedy trial

14
A different government attorney eventually tried Richardson's
case in January.
15
Richardson argues that the government's motion was pretextual
because the court could not grant a continuance in the interest of
justice in order to postpone a trial date that had not yet been set
and, more importantly, could not be set within the seventy-day
period allotted by the STA. However, Richardson cites no
authority, and we have found none, for the proposition that a trial
date must first be set before a court may grant "a continuance in
the proceeding," 18 U.S.C. § 3161(h)(8)(B)(i).

-22-
calculations –- the government identified its chosen trial team and

apprised the court of one attorney's unavailability for trial

before January 19, 2004 because of his involvement in an ongoing

trial expected to last for several more weeks. The schedule

conflicts of the court and the government's counsel thus coincided.

As Judge Lindsay stated, "since I have two other cases with speedy

trial problems preceding this one in December, it turns out that

the date [the government] suggest[s,] [January 19, 2004,] is the

best date for me." When Richardson requested an immediate trial,

Judge Lindsay responded that if a January trial date would not

comply with the requirements of the STA, he would have the case

randomly reassigned to a different judge who might be able to

commence trial before the speedy trial clock expired.

Given the circumstances, the district court committed no

clear error in determining that, despite the timing of its motion,

the government legitimately sought relief from having the case

reassigned to a different judge in the form of a continuance in the

interest of justice. The government recognized that even if the

case were reassigned to a judge who could try the case sooner than

January 19, 2004, thereby solving Judge Lindsay's scheduling

problem, its own need for continuity of counsel would remain, as

one of its chosen attorneys would still be unavailable for trial.

As Judge Young found, the government properly "request[ed] . . . a

continuance until January 19, 2004 and [exclusion of] the

-23-
intervening delay instead of [having the case reassigned] to

another judge so that it could be put to trial before December 18,

2003." Richardson, 324 F. Supp. 2d at 342. As Judge Young also

found, Judge Lindsay "essentially denied [the government's request]

when he promptly had the case redrawn on December 1, 2003, instead

of granting the continuance and excluding the delay." Id. While

Judge Lindsay ultimately denied the government's motion, it was a

motion nonetheless within the meaning of the STA.

Accordingly, Judge Young correctly concluded that the

government's filing of November 18, 2003 qualified as a motion that

tolled the speedy trial clock "from the filing of the motion" on

November 18, 2003 through its "prompt disposition" when the case

was reassigned on December 1, 2003. 18 U.S.C. § 3161(h)(1)(F). As

a result, when Richardson's trial began on January 12, 2004, only

sixty-eight days had elapsed on the speedy trial clock, and Judge

Young properly denied her motion to dismiss the indictment on STA

grounds.

III. THE PERJURY CONVICTION

A. Validity of a General Verdict

The district court instructed the jury that in order to

convict Richardson of perjury on Count One, its members had to

agree unanimously that the same false statement or statements

amounted to perjury beyond a reasonable doubt. See United States

v. Glantz, 847 F.2d 1, 10 (1st Cir. 1988) (no error in jury

-24-
"instructions [that] could only be interpreted by the jury to mean

that the defendant must be acquitted on the count unless the entire

jury believed beyond a reasonable doubt that the appellant was

guilty of one specific act of perjury alleged in that count").

Because the court submitted the case to the jury for a general

verdict instead of a special verdict, it is impossible to know

which one or more of the nineteen false statements it found,

unanimously and beyond a reasonable doubt, to constitute perjury,

and which statements (if any) it determined to fall short of that

standard when it found Richardson guilty of perjury on Count One.

Richardson argues that the jury's guilty verdict must be

vacated because at least one of the nineteen alternate grounds

submitted by the government is legally insupportable, and the

jury's verdict may have rested on such an invalid ground.

Richardson acknowledges that, ordinarily, "a general jury verdict

[is] valid so long as it [is] legally supportable on one of the

submitted grounds -- even though that [gives] no assurance that a

valid ground, rather than an invalid one, was actually the basis

for the jury's action." Griffin v. United States, 502 U.S. 46, 49

(1991). However, a guilty verdict may rest on an invalid ground

either because it is based on "evidence that no reasonable person

could regard as sufficient," id. at 59, or because it advances "a

particular theory of conviction . . . [that] is contrary to law,"

id. While jurors, in a criminal case, are "well equipped to

-25-
analyze the evidence" in order to avoid resting a guilty verdict on

a "factually inadequate" theory, they "are not generally equipped

to determine whether a particular theory of conviction submitted to

them is contrary to law." Id. (emphasis added). Accordingly,

where a general verdict may rest on a ground that is invalid

because the theory of conviction is contrary to law –- as opposed

to a ground that is invalid because the evidence supporting it is

insufficient as a matter of law –- the verdict must be set aside

despite the existence of an alternate, legally valid ground of

conviction. Id.; see also United States v. Nieves-Burgos, 62 F.3d

431, 434-36 (1st Cir. 1995).

Richardson argues that at least one of the nineteen false

statements alleged in Count One of the indictment advances a

legally erroneous theory of perjury, requiring us to vacate her

conviction. See United States v. Boots, 80 F.3d 580, 589 (1st Cir.

1996) (general verdict that may have been grounded on legally

erroneous theory requires setting aside verdict on all grounds),

overruled in part by Pasquantino v. United States, 125 S. Ct. 1766

(2005); cf. United States v. Lighte, 782 F.2d 367, 377 (2d Cir.

1986) (remanding for new trial on one count of perjury alleging

multiple false statements without determining whether legal defect

resulted from insufficiency of evidence or legally erroneous theory

of conviction). We review this question of law de novo. United

States v. Ferrario-Pozzi, 368 F.3d 5, 8 (1st Cir. 2004).

-26-
B. Validity of Government's Theories of Conviction

The statute under which Richardson was convicted, 18

U.S.C. § 1623(a), prohibits a grand jury witness from "knowingly

mak[ing] any false material declaration" under oath during the

colloquy. Richardson does not dispute that she testified under

oath before the grand jury, nor that her allegedly false statements

were material to the grand jury investigation. Rather, she argues

that the government's theories of perjury are contrary to law

because her statements are either literally true or were made in

response to fundamentally ambiguous questions. In either case,

Richardson argues, she could not have made statements with the

knowledge that they were false.

In general, "[t]he determination as to the defendant's

state of mind -- [her] belief in the untruthfulness of [her]

statement -- is one which a jury is best equipped to perform."

United States v. Reveron Martinez, 836 F.2d 684, 689 (1st Cir.

1988) (internal quotation marks omitted). Furthermore, because the

falsity of a statement in many circumstances depends on the meaning

of the question to which it responds, a jury may be required to

examine "the question and answer . . . in the context of the

investigation as a whole and the state of the defendant's

knowledge." United States v. DeZarn, 157 F.3d 1042, 1048 (6th Cir.

1998). Richardson nevertheless maintains that her challenges go

beyond assailing the sufficiency of the evidence before the jury

-27-
because several of the government's alternate theories of

conviction are contrary to the strict requirements imposed by the

law of perjury.

1. Literally True Statements

In Bronston v. United States, 409 U.S. 352 (1973), the

Supreme Court set exacting standards for maintaining a perjury

prosecution.16 The Court recognized that "[u]nder the pressures and

tensions of interrogation, it is not uncommon for the most earnest

witnesses to give answers that are not entirely responsive.

Sometimes the witness does not understand the question, or may in

an excess of caution or apprehension read too much or too little

into it." Id. at 358. Given this practical reality, "[t]he burden

is on the questioner to pin the witness down to the specific object

of the questioner's inquiry." Id. at 360. Accordingly, "[p]recise

questioning is imperative as a predicate for the offense of

perjury." Id. at 362.

Despite these general pronouncements, the Bronston

Court's holding was narrow. The Court decided only that a jury

could not be allowed to consider a perjury charge where the

allegedly false statement was "literally true but not responsive to

the question asked and arguably misleading by negative

16
Bronston construed the general perjury statute, 18 U.S.C.
§ 1621. Courts have applied Bronston to the related statute
governing false statements before a grand jury or a court, 18
U.S.C. § 1623. See Reveron Martinez, 836 F.2d at 689.

-28-
implication." Id. at 353. The Court reasoned that "[a] jury

should not be permitted to engage in conjecture whether an

unresponsive answer, true and complete on its face, was intended to

mislead or divert the examiner; the state of mind of the witness is

relevant only to the extent that it bears on whether 'he does not

believe [his answer] to be true.'" Id. at 359 (quoting 18 U.S.C.

§ 1621; alteration in original). Bronston thus requires dismissal

of an indictment "where . . . the government hinges its charge on

the false implications of a statement that is not alleged to be

false in itself." United States v. Finucan, 708 F.2d 838, 848 (1st

Cir. 1983).

Richardson, relying on Bronston, argues that several of

the perjury charges against her are contrary to law because they

allege the falsity of statements that are literally true.

Bronston, however, is inapplicable to any of the false statements

charged against Richardson. The government does not allege that

any of Richardson's statements are facially true but "arguably

misleading by negative implication," Bronston, 409 U.S. at 353,

thereby evincing only her intent to "mislead or divert the

examiner," id. at 359. Rather, the government alleges that

Richardson knowingly made statements that are in direct conflict

with facts the government alleges to be true, by denying that she

committed acts the government maintains she in fact committed. See

Glantz, 847 F.2d at 6 (Bronston's "literal truth" defense

-29-
inapplicable where "no claim is made that [defendant's]

statement . . . was true but unresponsive to the question asked

before the grand jury"). Whether or not the government's evidence

was sufficient to prove the falsity of Richardson's statements, as

well as that she knew her statements to be false when she made

them, its theory of perjury is not contrary to law.

2. Fundamentally Ambiguous Questions

Richardson also argues that several of the false

statements alleged in Count One of the indictment advance theories

of conviction that are contrary to the law of perjury because they

were made in response to fundamentally ambiguous questions. "A

question that is truly ambiguous or which affirmatively misleads

the testifier can never provide a basis for a finding of perjury,

as it could never be said that one intended to answer such a

question untruthfully." DeZarn, 157 F.3d at 1049; see also United

States v. Manapat, 928 F.2d 1097, 1101 (11th Cir. 1991) ("When the

question that led to the allegedly false response is fundamentally

ambiguous, we cannot allow juries to criminally convict a defendant

based on their guess as to what the defendant was thinking at the

time the response was made.").

By contrast, where a question is only arguably ambiguous,

"it is for the jury to decide whether the defendant has committed

perjury. In such a case there is an actual possibility that the

defendant intended to and did in fact give a response that was

-30-
literally false." Finucan, 708 F.2d at 848 (citations omitted).

In determining whether a statement made in response to an ambiguous

question could be said to be false, "the context of the question

and answer becomes critically important." United States v. Farmer,

137 F.3d 1265, 1269 (10th Cir. 1998); see also DeZarn, 157 F.3d at

1049 (jury must be allowed to consider "evidence of the context of

the questioning which would establish that the [d]efendant –-

despite the false premise of the question –- knew exactly what the

questions meant and exactly what they were referring to").17

Because the meaning of a response to an ambiguous

question may be highly context-specific, "[w]here a question . . .

is only arguably ambiguous, courts reviewing perjury convictions

have viewed the defense of ambiguity as an attack upon the

sufficiency of the evidence." Farmer, 137 F.3d at 1269; see also

Glantz, 847 F.2d at 6 (noting that perjury convictions are barred

"for arguably untrue answers to vague or ambiguous questions when

there is insufficient evidence of how they were understood by the

witness"). Richardson maintains that a perjury conviction based on

a response to a fundamentally ambiguous question not only rests on

insufficient contextual evidence of the intended falsity of the

response, but also advances a theory of conviction that is contrary

to law. Even assuming this to be true, none of the questions

17
Both a transcript and an audio recording of the grand jury
colloquy were available to the jury during its deliberations.

-31-
Richardson identifies rises to the level of being fundamentally,

rather than arguably, ambiguous.

"[T]o precisely define the point at which a question

becomes fundamentally ambiguous, and thus not amenable to jury

interpretation, is impossible." Farmer, 137 F.3d at 1269. Courts

have nevertheless recognized that:

A question is fundamentally ambiguous when it
"is not a phrase with a meaning about which
men of ordinary intellect could agree, nor one
which could be used with mutual understanding
by a questioner and answerer unless it were
defined at the time it were sought and offered
as testimony."

Lighte, 782 F.2d at 375 (quoting United States v. Lattimore, 127 F.

Supp. 405, 410 (D.D.C.), aff'd per curiam by an equally divided

court, 232 F.2d 334 (D.C. Cir. 1955)).

Richardson claims that several of the prosecutor's

questions during the grand jury colloquy were fundamentally

ambiguous because she and the prosecutor did not share the same

understanding of the term "price" throughout the colloquy.

Instead, she argues, the prosecutor injected insurmountable

ambiguity into his questions by alternately using the word "price"

to refer to (1) the amount TAP charged Lahey Clinic for Lupron "in

the contract" and (2) the cost of Lupron to Lahey Clinic "in

reality," that is, after subtracting the value of goods for which

TAP, not Lahey Clinic, footed the bill.

-32-
 The government's theory that TAP had engaged in health

care fraud -- the focus of the grand jury investigation -- depended

on the premise that TAP purposefully omitted from the written

contract any cost savings it provided to Lahey Clinic in the form

of things of value for which Lahey Clinic did not have to pay.

Richardson asserts that if "price" refers only to the price of

Lupron listed in the written contract between TAP and Lahey Clinic,

her responses merely confirm the uncontested fact that no things of

value were listed in the contract as offsets to the "price" listed

therein. However, because the prosecutor sometimes used "price" to

mean something different, namely, the actual cost of Lupron to

Lahey Clinic after accounting for items TAP provided to the clinic

free of charge, Richardson argues that it is impossible to tell

whether she followed each of the prosecutor's shifts in meaning

when she gave her responses.

In several of his questions during the grand jury

colloquy, the prosecutor explicitly distinguished between the

contract price of Lupron and the actual cost of Lupron. For

example, in the question preceding statement A1 alleged in the

indictment,18 the prosecutor asked Richardson, "have you ever

offered a customer or discussed with a customer giving them an

18
Throughout this opinion, we refer to the false statements
alleged in Count One, according to our own numbering system, as A1-
A19, in the order in which they are set forth in the indictment.
Only the statements highlighted in boldface are alleged to be
false.

-33-
educational grant to give them a lower price in reality but not

changing the price in the contract?" (emphases added). In her

allegedly false statement A1, Richardson responded, "No, never

outside of a contract." Similarly, in the question preceding

statement A12, the prosecutor asked,

Q. And were those part of the discussions
with the folks at Lahey Clinic, that you
might not be able to reduce the price,
but you could give them some support
elsewhere?

A12. No that is not correct.

(Emphases added.)

Immediately after Richardson's statement in A12, however,

the prosecutor asked:

Q. As a way of effecting a reduction in
price?

A13. No that was separate.

(Emphasis added.) Richardson argues that the prosecutor's

reference to "a reduction in price" in his follow-up question was

fundamentally ambiguous because he could have been asking whether

she discussed providing "support elsewhere" to Lahey Clinic that

resulted not only in the reduction of the actual cost of Lupron to

the clinic, but also in a reduction of the price of Lupron as

listed in the contract.

Richardson's interpretation of the prosecutor's follow-up

question is not plausible. First, the prosecutor had just stated

his assumption that Richardson "might not be able to reduce the

-34-
price" in the contract, so that any additional "support" would

necessarily have to be provided "elsewhere." Second, even if the

prosecutor did intend to refer to the price as written in the

contract in his follow-up question, the context of the exchange

suggests a much more reasonable interpretation of the prosecutor's

questions than the one Richardson advances. After asking

Richardson whether she discussed giving Lahey Clinic "support

elsewhere" because she could not "reduce the price" of Lupron that

was written in the contract, the prosecutor immediately followed up

the question by asking whether the provision of "support elsewhere"

was a way of "effecting a reduction in [the] price" written in the

contract, that is, as a way of reducing the price in effect without

actually changing the written contract price. "[A] witness cannot

twist the meaning of a question in his own mind into some totally

unrecognizable shape and then hide behind it" by alleging its

fundamental ambiguity. Reveron Martinez, 836 F.2d at 691.

The indictment alleges three other false statements made

by Richardson, A2-A4, in response to questions in which the

prosecutor used the word "price" without specifying whether he was

referring to the price of Lupron listed in Lahey Clinic's written

contract with TAP or to the actual cost of Lupron to Lahey Clinic

after taking into account things of value that TAP provided to the

clinic free of charge. The context of each exchange reveals that

-35-
any ambiguity in the questions was not fatal to a perjury charge.

Richardson made statement A2 during the following exchange:

Q. Have you ever had a customer tell you
they needed a couple of hundred-thousand
dollars more off of the price because
Zoladex's price was so much less?

A. Yes. Customers have come before, saying
that the competitor is less expensive,
so can you lower your price? Yes.

Q. And in those conversations with
customers, have you ever discussed with
a customer giving them educational
grants or nominal goods or research
support to make up the difference in
price between Lupron and Zoladex?

A2. No, never to make up the difference.

(Emphasis added.) Based on the preceding discussion of Lupron's

high cost relative to that of a competing drug, the prosecutor

could reasonably be understood to be asking whether Richardson

discussed giving a customer "educational grants or nominal goods or

research support" as a hidden discount, that is, as a substitute

for matching the competitor's price in the contract. While

Richardson maintains that she understood the prosecutor to be

asking only whether educational grants or nominal goods were listed

in the contract to offset the price of Lupron stated therein, the

prosecutor's question is again only arguably ambiguous.

The indictment further alleges the following false

statements:

-36-
 Q. Did you ever do that with Lahey Clinic?
Offer them educational grants to reduce
the price on a contract?

A3. No I did not.

Q. Did you ever discuss that with them?

A4. That customer had brought up some things
that they would do, and it would be
included in the contract, in order to
bring the price closer together, but we
did never do that.

Statements A3 and A4 respond to the prosecutor's questions whether

Richardson offered or discussed offering Lahey Clinic "educational

grants to reduce the price on a contract" (emphasis added). While

the prosecutor sought to determine whether Richardson offered or

discussed offering Lahey Clinic educational grants instead of

reducing the price written in the contract, Richardson points out

that the phrase "on a contract" is not generally interpreted to

mean "outside a contract." When read in context, however, the

prosecutor's questions continue a line of inquiry into whether TAP

provided financial support to Lahey Clinic that was not listed in

the written contract but was nevertheless part of the parties'

agreement regarding the clinic's Lupron purchases.19

Because each of the prosecutor's questions that

Richardson characterizes as fundamentally ambiguous is, at most,

19
Richardson argues that her statement in A4 that "we did never
do that" is literally true because TAP never did list any
additional financial support "in the contract." Richardson's
argument goes only to the sufficiency of the evidence that
statement A4 was false, an issue we do not reach.

-37-
only arguably ambiguous, Richardson's claim that the corresponding

perjury charges are contrary to law must fail. We have reviewed

each of the remaining false statements alleged in Count One of the

indictment, and we reject the argument that any of them advance

theories of conviction that are contrary to the law of perjury,

requiring us to vacate Richardson's conviction.

On appeal, Richardson does not challenge the sufficiency

of the evidence supporting each of the nineteen false statements

charged against her (i.e., those that she does not identify as

advancing legally erroneous theories of conviction). As a result,

she has forfeited any argument that not one of the nineteen charges

against her is supported by adequate evidence. See United States

v. Mitchell, 85 F.3d 800, 812 (1st Cir. 1996) (defendant forfeited

challenge to sufficiency of evidence supporting alternate ground of

conviction through failure to develop argument). Nonetheless, we

have compared the charges in Count One of the indictment against

the record evidence, including the transcripts and audio recordings

of the grand jury colloquies that were submitted to the jury.

Based on our review, we readily conclude that the evidence was

sufficient to support not just one, but several, of the perjury

charges against Richardson.20 See Reveron Martinez, 836 F.2d at

20
By limiting our discussion of the sufficiency of the evidence
to several of the allegedly false statements, we do not imply that
the evidence was insufficient to support a guilty verdict on the
other charged grounds. Nor do we suggest that more than one ground
was required to be supported by sufficient evidence in order for

-38-
689-90 (evidence sufficient to support conviction for knowingly

made false statement where, "taking into account the totality of

the evidence, direct and circumstantial, and giving due weight to

the indirect evidence anent appellant's motive to falsify, the

proof was adequate to underbrace a guilty verdict"). In

particular, a reasonable jury could have inferred, based on the

government's strong circumstantial evidence (including Richardson's

own contemporaneous internal office memoranda and notes), that

Richardson knew at the time she testified before the grand jury

that the things of value that she offered or discussed offering to

Lahey Clinic, and that she discussed with other TAP employees, were

intended to provide the clinic with a hidden discount or incentive

to renew its contract for Lupron, contrary to Richardson's

statements in A1 and A8-A11. See infra Appendix A.

Because Richardson has not established that any of the

charges against her was contrary to law, and because the evidence

was sufficient to support at least one of the charges, Richardson's

conviction for perjury must stand. See Nieves-Burgos, 62 F.3d at

436, 439 (affirming conviction where only one out of three grounds

charged in single count was supported by sufficient evidence).

the guilty verdict to stand. We make the point about evidentiary
sufficiency on several of the statements to dispel any notion that
Richardson could have argued successfully that the general verdict
should be vacated on the basis that there was insufficient evidence
for all nineteen statements.

-39-
 IV. EVIDENTIARY RULINGS

Richardson challenges the district court's admission of

two categories of evidence at trial. First, she contests the

relevance of testimonial and documentary evidence tending to show

that TAP provided free samples of Lupron worth $15,000 to Lahey

Clinic after the clinic renewed its contract with TAP in October

1997. See Fed. R. Evid. 401, 402. Second, Richardson assails the

admission of testimonial and documentary evidence concerning a

government witness's plea agreement, in which the witness admitted

conspiring to commit health care fraud, as irrelevant and unfairly

prejudicial. See Fed. R. Evid. 401-403.

We review preserved challenges to a district court's

evidentiary rulings regarding relevance and unfair prejudice for

abuse of discretion. United States v. Otero-Mendez, 273 F.3d 46,

53 (1st Cir. 2001) ("In reviewing Rule 403 challenges, we are

extremely deferential to the district court's determination.");

United States v. Newton, 891 F.2d 944, 946 (1st Cir. 1989)

("[R]ulings on relevance and admissibility are reversible only for

abuse of discretion."). However, because Richardson failed to

raise a contemporaneous objection to the admission of testimonial

evidence relating to the free Lupron samples after the denial

without prejudice of her motion in limine, we review the court's

decision to admit the testimony for plain error only. See United

States v. Noah, 130 F.3d 490, 496 (1st Cir. 1997) (evidentiary

-40-
challenge on grounds of unfair prejudice ordinarily must be renewed

in trial context in order to be preserved); United States v. Kayne,

90 F.3d 7, 11 (1st Cir. 1996) (reviewing unpreserved challenge to

relevance of evidence for plain error).

A. Admissibility of Evidence Concerning Free Lupron Samples

At trial, the government introduced the testimony of a

TAP employee, Jennifer Weiler, who shared responsibility for the

Lahey Clinic account. Weiler testified that when Richardson

stopped working with Lupron customers in late 1997 and passed on

information about the Lahey Clinic account to her, Richardson told

her that TAP owed Lahey Clinic fifty Lupron samples (which, at the

contract price of $305 per dose, were worth more than $15,000) free

of charge as part of Lahey Clinic's contract to purchase Lupron.

Weiler also testified that she, Richardson, and a supervisor had

delivered the free Lupron samples to Lahey Clinic in November 1997

and February 1998. The government introduced documentary evidence

in the form of nine sample cards signed by the clinic's physicians

when they received the samples. All of the sample cards bore a

typewritten date of October 13, 1997, which, according to

Richardson's notes and TAP's contract with Lahey Clinic, fell

between the date on which Richardson presented a new contract to

Lahey Clinic, September 29, 1997, and the signing of that contract

on October 20, 1997.

-41-
 The government also introduced the testimony of another

TAP employee, Daniel Steiner, who confirmed that in February 1998

he had emailed a PowerPoint presentation to other TAP employees,

including Richardson, explaining the restrictions on distribution

of free drug samples to customers. A print-out of the presentation

introduced into evidence includes the statement: "If MCO [managed-

care organizations]/Hospitals ask for large quantities of samples

to achieve a contract price - you must include these in the

contract. Of course, this affects the per unit cost . . . ."

Federal Rule of Evidence 401 defines "relevant evidence"

as evidence having "any tendency to make the existence of any fact

that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence."

"Evidence which is not relevant is not admissible." Fed. R. Evid.

402. Richardson argues that the evidence relating to the free

Lupron samples was not relevant to the charges against her because

the prosecutor never explicitly asked her any questions about the

free samples during the grand jury colloquy. Richardson further

argues that the evidence was irrelevant because the government

failed to prove that the free Lupron samples had any effect on

Lahey Clinic's bottom line, for example, by showing that the clinic

had sold the samples it received free of charge to patients or

insurers for a profit.

-42-
 As the government argues, however, the evidence relating

to the free Lupron samples was relevant to prove that the following

statement made by Richardson during her grand jury testimony was

false:

Q. And what was done?

A19. Actually, it was just pricing. We came
down on the [our] price, I believe. I
don't remember exactly how much.

Similarly, the free sample evidence was relevant to prove that

Richardson discussed TAP's provision of "educational grants or

nominal goods or research support" with Lahey Clinic as part of a

purchase agreement, contrary to her statement in A2:

Q. And in those conversations with
customers, have you ever discussed with
a customer giving them educational
grants or nominal goods or research
support to make up the difference in
price between Lupron and Zoladex?

A2. No, never to make up the difference.

The free sample evidence tended to prove that Richardson

offered things of value to Lahey Clinic in exchange for the

clinic's renewal of its contract. The free samples, which were

prepared for delivery in close temporal proximity to Richardson's

contract negotiations with Lahey Clinic, could reasonably be

considered to be an integral –- though unwritten –- part of Lahey

Clinic's purchase agreement with TAP, as Weiler's testimony also

suggested. Further, the PowerPoint presentation tended to

establish that the provision of free drug samples did in fact lower

-43-
"the per unit cost" of large customers' Lupron purchases. The free

sample evidence was thus relevant to the factual dispute over

whether Richardson knew at the time she made statement A19 before

the grand jury that "what was done" to satisfy Lahey Clinic's

concerns about the high price of Lupron during contract negotations

involved more than "just pricing," but also involved TAP's

provision of free Lupron samples not accounted for in the written

contract.

Because the evidence was relevant to the charges against

Richardson, the district court neither abused its discretion by

admitting the documentary evidence, nor committed plain error by

admitting the testimonial evidence, concerning the free Lupron

samples.

B. Admissibility of Evidence Concerning Government Witness's
Guilty Plea

At trial, the government introduced the testimony of a

former TAP employee, Kimberlee Chase, who was Richardson's

supervisor in 1996 and who left TAP's employment in July 1997.

Chase testified about TAP's internal procedures, explaining that

Richardson's regular reports to her supervisors, which contained

details about Richardson's contract negotiations with Lahey Clinic,

were expected to be complete and accurate because they were heavily

relied upon by other TAP employees. Chase also testified that

employees such as Richardson were eligible for salary bonuses as an

incentive to increase their sales performance. In order to remove

-44-
the sting of any attempt by Richardson to impeach Chase, the

government also introduced testimonial and documentary evidence

that Chase had pled guilty to conspiracy to defraud a federal

agency and other charges based on conduct during her employment

with TAP.

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, or by

considerations of undue delay, waste of time, or needless

presentation of cumulative evidence." Fed. R. Evid. 403; see also

United States v. Rodriguez-Estrada, 877 F.2d 153, 156 (1st Cir.

1989) ("[B]y design, all evidence is meant to be prejudicial; it is

only unfair prejudice which must be avoided."). Richardson argues

that the jury could have inferred that she was guilty of perjury

under "a theory of guilt by association" because Chase, her former

supervisor, had pled guilty to a crime. United States v. St.

Michael's Credit Union, 880 F.2d 579, 602 (1st Cir. 1989).

Moreover, because Chase had pled guilty to conspiracy to commit

health care fraud, while Richardson was on trial only for the

offenses of perjury and obstruction of justice, Richardson argues

that the jury could have been confused about whether Richardson was

also on trial for health care fraud.21

21
Richardson asks us to take judicial notice of the fact that
Chase's guilty plea was vacated months after Richardson's trial had
concluded and after she had filed her notice of appeal. See E.I.

-45-
 This risk of prejudice, Richardson maintains,

substantially outweighed the weak probative force of Chase's

substantive testimony. Richardson points out that Chase was no

longer employed by TAP when Richardson began negotiating Lahey

Clinic's contract renewal. Indeed, Richardson adduced on cross-

examination that Chase had no personal knowledge of Richardson's

contract negotiations with Lahey Clinic.

Finally, Richardson argues that the government had no

need to preemptively impeach its own witness because she offered to

forego impeachment of Chase in order to prevent the government from

introducing evidence of the guilty plea in its case-in-chief. The

Federal Rules of Evidence permit a party to impeach its own

witness. See Fed. R. Evid. 607 ("The credibility of a witness may

be attacked by any party, including the party calling the

witness."); United States v. Frappier, 807 F.2d 257, 259 (1st Cir.

du Pont de Nemours & Co., Inc. v. Cullen, 791 F.2d 5, 7 (1st Cir.
1986) (federal court may take judicial notice of complaint filed in
related case); but see Eagle-Picher Indus., Inc. v. Liberty Mut.
Ins. Co., 682 F.2d 12, 22, n.8 (1st Cir. 1982) (court of appeals
"may not ordinarily consider factual material not presented to the
court below"). Richardson suggests that the jury may have found
her guilty of perjury on a theory of guilt by association with a
person whose own guilt has since been called into question. We
need not take notice of the fact that new developments have arisen
in Chase's case (much less draw any conclusions regarding Chase's
guilt or innocence based on those developments). This is so
because unfair prejudice is measured not retrospectively, but as it
existed at the time the contested evidence was introduced at trial,
that is, at the time of the "district court's on-the-spot
judgment." Freeman v. Package Machinery Co., 865 F.2d 1331, 1340
(1st Cir. 1988).

-46-
1986). This is so even where the defendant agrees to forego

impeachment on cross-examination. See United States v. McNeill,

728 F.2d 5, 14 (1st Cir. 1984) (defendant's statement that he would

not impeach government's witness "does not diminish the benefit to

the jury of having before it information relevant to its task of

judging credibility and weighing testimony"). Nevertheless, we

have recognized the "possibility of using . . . impeachment of

one's own witness improperly if there is no relevant contribution

to be made by the witness's principal testimony on direct

examination." Frappier, 807 F.2d at 259. Richardson argues that

because Chase's testimony was largely irrelevant to the charges

against Richardson, her testimony served the sole purpose of

permitting the government to introduce, as impeachment evidence,

unduly prejudicial evidence it could not otherwise have introduced.

Having reviewed the record in this case with care, we

agree with the government that Chase's testimony about TAP's

internal procedures made a "relevant contribution" to its case-in-

chief, id., and that the government properly sought to introduce

evidence of her guilty plea so that the jury could evaluate her

credibility. "Only rarely -- and in extraordinarily compelling

circumstances -- will we, from the vista of a cold appellate

record, reverse a district court's on-the-spot judgment concerning

the . . . weighing of probative value and unfair effect." Freeman,

865 F.2d at 1340. In this case, the district court, attentive to

-47-
the possibility of undue prejudice, issued a lengthy jury

instruction soon after the government elicited Chase's testimony

regarding the circumstances of her guilty plea and her possible

self-interest in a reduced sentence in exchange for her testimony

against Richardson:22

it's up to you whether you believe her, or
disbelieve her or believe her in part, she
testifies she's got a plea bargain with the
government and she's hoping for a lesser
sentence having pleaded guilty to whatever
she's pleaded guilty to.
Now you are entitled to know that the
better to help you assess her testimony, the
believability of her testimony.
Here's what I want to caution you on.
The fact that [Chase has] pleaded guilty to
something in no way affects your judgment
about Ms. Richardson. In no way. It doesn't
at all. Now, you listen to what she says like
with all the other witnesses, . . . if you
believe that that may have something to do
with the case as between the government and
Ms. Richardson. But this business that she
has . . . pleaded guilty [to] is only before
you so that you can evaluate her testimony.
That's the only reason.

The court reiterated its instruction when it submitted the case to

the jury. "We have held that within wide margins, the potential

for prejudice . . . can be satisfactorily dispelled by appropriate

curative instructions. Jurors are presumed to follow such

instructions, except in extreme cases." United States v. Freeman,

208 F.3d 332, 345-46 (1st Cir. 2000) (internal quotation marks and

22
Richardson did not and does not challenge the curative jury
instruction.

-48-
citations omitted; alteration in original) (discussing spillover

prejudice). In light of the immediacy and specificity of the

district court's curative instruction, we conclude that the court

acted within its discretion by admitting evidence of Chase's guilty

plea as impeachment evidence.

As a final matter, Richardson also asserts that the

admission of Chase's plea agreement was unduly prejudicial because

it contained a reference to TAP's separate "global criminal and

civil agreement with the United States, which agreement required

the payment of $585,000,000 in civil settlement payments, including

restitution," in order to explain why the government recommended

"[t]hat the court enter no order of restitution" as part of Chase's

individual sentence. Although the offending reference was redacted

before Chase's plea agreement was made available to the jury during

its deliberations, the government published an unredacted version

of the plea agreement to the jury during Chase's testimony at

trial. That publication, Richardson argues, raised the risk that

the jury would infer that Richardson was guilty of perjury because

of her association with an employer that had entered into a "global

criminal and civil agreement with the United States."

Richardson did not object to the publication of the

unredacted plea agreement, whose unduly prejudicial effect we

review for plain error. We discern no such error. Where a plea

agreement is introduced, it ordinarily may be introduced in its

-49-
entirety. Newton, 891 F.2d at 951 (discussing "long-standing rule

that the entire plea agreement of a government witness may be

placed before the jury" because "[o]nly by viewing the entire

agreement can the jury get the whole picture, from which to assess,

as best it can, the probable motives or interests the witnesses

could have in testifying truthfully or falsely") (internal

quotation marks omitted). The admission of the full plea agreement

here did not amount to plain error.

V. CONCLUSION

Having found that Richardson was tried in compliance with

the Speedy Trial Act, that none of the nineteen allegedly false

statements charged in Count One advances a theory of conviction for

perjury that is contrary to law, and that there was no reversible

error in the admission of the challenged evidence, we affirm

Richardson's conviction.

Appendices follow.

-50-
 APPENDIX A

Count One of the superseding indictment charges the

following statements as being false:23

Q. How about in exchange for a lower price?
Rather than giving them a lower price on
a contract, have you ever offered a
customer or discussed with a customer
giving them an educational grant to give
them a lower price in reality but not
changing the price in the contract?

A1. No, never outside of a contract.

. . .

Q. Have you ever had a customer tell you
they needed a couple of hundred-thousand
dollars more off of the price because
Zoladex's price was so much less?

A. Yes. Customers have come before, saying
that the competitor is less expensive,
so can you lower your price? Yes.

Q. And in those conversations with
customers, have you ever discussed with
a customer giving them educational
grants or nominal goods or research
support to make up the difference in
price between Lupron and Zoladex?

A2. No, never to make up the difference.

. . .

23
The indictment contains several variations from the
transcript of Richardson's grand jury testimony and the audio
recording of that testimony. Where such variations might
materially affect the meaning of the testimony, we have provided
the version contained in the transcript and the audio recording in
brackets. Ellipses indicate that sections of the grand jury
colloquy are omitted from the indictment. As we have noted, the
jury had access to both the transcript and the audio recording of
the testimony during its deliberations.

-51-
Q. Did you ever do that with Lahey Clinic?
Offer them educational grants to reduce
the price on a contract?

A3. No I did not.

Q. Did you ever discuss that with them?

A4. That customer had brought up some things
that they would do, and it would be
included in the contract, in order to
bring the price closer together, but we
did never do that.

. . .

Q. Ma'am, did you ever tell anybody that we
need to give this customer an
educational grant?

A5. No. That we need to give the customer
an educational grant?

Q. Yes.

A6. No.

. . .

Q. Ma'am, you just told us earlier today
that you knew that it was wrong to give
an educational grant to get or keep
business, right?

A. To get business, yes.

Q. How about to keep business?

A. To keep business.

Q. So you knew it was wrong to keep the
business, to give an educational grant
as well, right?

A. Right.

Q. Did you ever do that?

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A7. No, I did not.

. . .

Q. I'm right, am I not, Ma'am, that you
discussed giving educational grants to
the Lahey Clinic, though, to keep their
business, right?

A8. No I did not.

Q. You didn't discuss it with anybody at
the company?

A9. I did not discuss it with Lahey Clinic
to keep their business. No I did not.

Q. Did you discuss it with anybody at TAP,
whether or not to give educational
grants to Lahey Clinic as part of a way
to keep their business from switching to
Zoladex?

A10. When you put it like that, no I did not.

Q. You did not discuss that with anybody at
the company?

A11. I did not discuss giving them an
educational grant instead of pricing in
order to keep their business. No I
never had that discussion.

. . .

Q. Did you support their golf tournament?

A. Yes, that's their charity tournament.

Q. And were those part of the discussions
with the folks at Lahey Clinic, that you
might not be able to reduce the price,
but you could give them some support
elsewhere?

A12. No that is not correct.

-53-
Q. As a way of effecting a reduction in
price?

A13. No that was separate.

. . .

Q. Who at the Lahey Clinic suggested
nominal goods or educational grants as
a way of reducing price?

A14. I really can't remember the exact
conversation and it was never mentioned
as a way of reducing price outside of
[a] contract form.

. . .

Q. Okay, ma'am, just so that it's perfectly
clear, here, your testimony is that it
was not your idea that educational
grants and/or nominal goods were posed
as a way of effecting a lower price,
that that was Mr. Anderson's idea?

A. Again I don't remember the specific
conversation and how that came up.

Q. I thought you testified earlier that it
was not your proposal ---

A. I did not --

Q. to offer educational grants to reduce
price?

A. I didn't -- it was not my proposal.

Q. And it was not then your proposal?

A15. And it was not to decrease the price.

. . .

Q. Did you ever tell anybody in the company
that you could work with the customer or
[and] TAP could work with the customer,

-54-
 a combination of things that included
grants, as a way of reducing price?

A. We talked about that, but it would be
something that would be included in a
contract.

Q. What does that mean?

A16. That means if we do any of the things
that the customer proposed, that it
would be within [written into] the
contract and would affect the bottom
line price.

. . .

Q. So when the doctors proposed that to
you, did you tell them that was illegal,
that you couldn't do that?

A. That it would need to be in a written
[written into a] contract.

Q. Is that what you told them?

A. I'm sure I did. I mean, it would need
to be put in a contract form.

Q. Quote, I think the account will be
fairly flexible. We can work with a
combination of straight pricing,
educational support/grants and/or
rebates, closed quote.

A17. In a contract form, in a legal, proper
way.

Q. Did you discuss that with your boss,
Brian Duda?

A18. I proposed on to him what the account
would be willing to work with and we
would do it in a legal proper way.

Q. And what was done?

-55-
A19. Actually, it was just pricing. We came
down on the [our] price, I believe. I
don't remember exactly how much.

-56-
 APPENDIX B

Timeline of Dates and Filings
Relevant to Richardson's STA Claim

Date Event Richardson's Government's
Calculation, Calculation,
Days Remaining Days Remaining
11/17 Parties appear before 3 3
Judge Lindsay
11/18 Government files 2 3
"Motion to Set a Trial
Date . . . and for
Excludable Delay"
11/20 Richardson files 0 3
response
11/24 Government files reply 0 3
11/25 Richardson files 0 3
"Memorandum of
Opposition" seeking
dismissal of indictment
on STA grounds
12/1 Case is reassigned by 0 3
Judge Lindsay, parties
reappear before Judge
Young and agree to
exclusion of period
from 12/8 until 1/12 in
the interest of justice
12/3 Government files motion 0 2
in limine
12/5 Richardson files 0 2
renewed motion to
dismiss for legal
defects in indictment
12/16 Richardson files motion 0 2
to dismiss indictment
on STA grounds

-57-
12/23 Richardson responds to 0 2
government's motion in
limine
12/29 Richardson files motion 0 2
in limine
1/12 Richardson's trial 0 2
begins, Richardson's
motion to dismiss on
STA grounds is denied,
Richardson's motion in
limine is denied

-58-