United States v. Dwyer

Not for Publication in West's Federal Reporter

United States Court of Appeals
For the First Circuit

No. 05-2051

UNITED STATES,

Appellee,

v.

JAMIE DWYER,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

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

John S. Ferrara with whom Dalsey, Ferrara & Albano was on
brief for appellant.
Vijay Shanker, Attorney, Criminal Division, with whom
Michael J. Sullivan, United States Attorney, and William M.
Welch, II, Assistant U. S. Attorney, United States Department of
Justice, were on brief, for appellee.

August 24, 2007
 CAMPBELL, Senior Circuit Judge. Following a jury trial

in the district court, Jamie Dwyer appeals from her convictions for

conspiracy to commit federal program fraud, federal program fraud

itself, conspiracy to obstruct justice, obstruction of justice, and

making false statements. Dwyer argues (1) there was insufficient

evidence for a jury to convict her; (2) her prosecution for

conspiracy to commit federal program fraud was barred by the "bona

fide wages" exclusion of 18 U.S.C. § 666(c); (3) the district

court's instructions regarding two of the counts impermissibly

amended the indictment; and (4) the cumulative effect of the

court's allegedly mistaken denial of pretrial motions, erroneous

evidentiary rulings, improper jury instructions, and the improper

prosecutorial argument created a substantial risk of the

miscarriage of justice. We affirm the convictions.

Background

On September 2, 2004, a federal grand jury returned a

nineteen-count superseding indictment against Dwyer and co-

defendants Gerald Phillips, Giuseppe Polimeni, and Luisa

Cardaropoli. Eleven of the counts involved Dwyer, who was charged

with the following crimes: conspiracy to commit wire fraud and

federal program fraud (1); two counts of wire fraud (2, 4); four

counts of federal program fraud (3, 7, 8, and 9); conspiracy to

obstruct justice (10); two counts of obstruction of justice (11 and

15); and making false statements (16). The district court denied

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Dwyer's motions to dismiss the indictment and to sever trial of the

charges against her from those against her co-defendants. On

October 1, 2004, we denied her interlocutory appeal from the denial

of her motion to dismiss. A jury trial of the four defendants

began on January 18, 2005. On February 28, 2005, the jury found

Dwyer guilty of Counts 1, 2, 4, 7, 9, 10, 15, and 16 and acquitted

her on Counts 3, 8, and 11. On June 8, 2005, the district court

granted Dwyer's motion for judgment of acquittal on the two wire

fraud counts (Counts 2 and 4) on the ground that there was no

interstate communication as required under the wire fraud statute.

Dwyer accordingly stands convicted on six of the counts: 1, 7, 9,

10, 15, and 16.1 The district court sentenced her to concurrent

three-year terms of probation on each count of conviction and

further ordered her to pay a fine of $5,000 and $12,300 restitution

to the city of Springfield, Massachusetts. This appeal followed.

Facts

The evidence at trial was as follows. The Massachusetts

Career Development Institute ("MCDI") is a public department of the

City of Springfield. It is a skills-training center for citizens

1
Defendant states in her appellate brief that "Count One also
alleged conspiracy to commit wire fraud, but the Trial Court
determined that there was no interstate communication as required
by 18 U.S.C. § 1343, and dismissed all wire fraud counts.
Implicitly, the Court's ruling narrowed Count One to the Program
Fraud allegations." The government did not disagree with this
statement, and, without ruling on the matter, we shall assume that
the conspiracy conviction as it now stands is for program fraud
only.

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on welfare or trying to get off welfare. MCDI has a private,

incorporated, not-for-profit affiliate known as MCDI, Inc. MCDI,

Inc. was formed in part to use its tax-exempt status in applying

for grants to fund MCDI's programs. MCDI and MCDI, Inc. received

at least eighty percent of their funds from state and federal

grants. Phillips became the executive director of MCDI in 1997 and

also served as police commissioner of Springfield. Polimeni was

president of MCDI, Inc. MCDI and MCDI, Inc. were technically

separate entities and maintained separate accounting books. In

practice, however, Phillips ran both MCDI and MCDI, Inc., and

Polimeni was Phillips' closest aide in both entities. Polimeni was

in charge of day-to-day operations, including payroll, at MCDI and

MCDI, Inc. At times, more than 200 employees worked for the two

entities.

MCDI Baking Company ("MCDI Baking") was part of MCDI,

Inc. and was run by Polimeni. MCDI Baking supplied hot breakfasts,

lunches, and muffins to Springfield public schools. The

Springfield School Department paid for MCDI Baking's ingredients

and labor. MCDI Baking operated out of three locations: a kitchen

in MCDI's main building, a commissary where the school department

items were produced, and a warehouse. It made its own revenues

through payments from the school department, money from catering

jobs, and daily cash receipts from the main building kitchen where

MCDI employees bought meals.

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 Dwyer was an administrative assistant at MCDI who

reported to Phillips and Polimeni. She joined MCDI in 1982 and

assisted with MCDI Baking's personnel and financial business,

including payroll, from its creation in 1992 through April 2001.

Dwyer collected MCDI Baking employee timesheets; checked the

calculations on them; totaled the hours; created a weekly payroll

spreadsheet; faxed the information to Checkwriters (the check-

writing company for MCDI and MCDI, Inc.); and distributed MCDI

Baking employee paychecks. Dwyer also wrote checks (but she could

not sign them), deposited checks, and balanced MCDI Baking's

checkbook. Thomas Grimes, the fiscal officer of MCDI, testified

that Dwyer had no role in policy-making decisions for MCDI, no

authority to hire or fire employees, and no check-signing

authority. She never signed a check that issued from MCDI Baking.

Dwyer had some oversight of MCDI Baking's muffin-making

program. She took orders and calculated how many muffins had to be

produced and how much labor would be needed. Every month, Dwyer

compiled and sent to the school department the bills for MCDI's

production of the hot meals and muffins.

The timesheets at MCDI Baking had spaces for "time in,"

"time out," total hours, employee signature, supervisor signature,

and authorizing signature. Each timesheet spanned one month, with

a row for each week. Once a week, Dwyer went to the kitchen to

pick up employees' timesheets. She checked the math totals for

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accuracy and entered the data onto a spreadsheet, and then

generated a report for Checkwriters. If there was a discrepancy on

the timesheet, Dwyer told the employee.

On August 11, 1998, Phillips sent a memo to the MCDI

staff stating that when employees completed timesheets, they were

representing that they had worked the stated hours, and that if

they had not worked the hours claimed, they were subject to

termination. On February 1, 2000, Phillips sent another memo to

MCDI employees, noting that new payroll timesheets were being

implemented, explaining how to complete them, stating that they be

submitted every Friday, and warning that non-submission would

result in reduced pay. The memo also included a sample timesheet,

which carried a warning against "perjury" and required the

signatures of the employee and the employee's supervisor. The memo

had been prompted by an audit company's finding that many

timesheets lacked employees' and supervisor's signatures.

In an April 27, 2000 memo, Phillips again advised MCDI

staff that "filling out your timesheets properly is a very serious

matter" (emphasis in original). On February 27, 2001, Phillips

sent out a memo reiterating that "all timesheets MUST be completed

and turned in by Friday," that "[e]ach staff member is responsible

for his or her own timesheets," and that failure to turn in a

timesheet would prevent the employee from getting paid. This memo

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had also been prompted by an auditor's observation that timesheets

were missing necessary signatures.

In 2000, the FBI was investigating allegations of an

illegal gambling operation in Springfield. The investigation led

to the arrest of several MCDI employees and also brought to light

significant discrepancies between the timesheets and payroll

information of several MCDI employees. Two of these employees

relate to Dwyer's present appeal: Gretchen Ortiz and Todd

Illingsworth.

i. Gretchen Ortiz

Gretchen Ortiz was a student and then an employee at

MCDI. In early 2000, Ortiz was evicted from her apartment.

Polimeni told Dwyer via a March 30, 2000 memo to advance Ortiz $500

pay. The next day, as MCDI Baking's check register showed, Dwyer

wrote and Polimeni signed a $500 check to Ortiz as advance pay.

Ortiz was then summoned to an MCDI office, where Phillips

presented her the $500 check. Phillips then took Ortiz to an

apartment complex his brother owned. Ortiz gave the check to

Phillips's brother and in exchange got an apartment on the second

floor of the building. She did not sign a lease, and she never

wrote a rent check; Phillips paid her rent and utility bills.

Ortiz and Phillips became involved in a sexual relationship.

Phillips visited Ortiz at the apartment once or twice a day.

Phillips also often summoned Ortiz from class or work to meet him

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at his office. Grimes and Dwyer, both of whom had daily contact

with Phillips, testified that they were unaware of his relationship

with Ortiz. Dwyer kept track of the loan to Ortiz. Initially,

Dwyer caused three hours' pay, or $24, to be deducted from Ortiz's

weekly paycheck to help repay the loan. In May 2000, however,

Polimeni told Dwyer to stop deducting Ortiz's pay. Dwyer made

handwritten notes on Ortiz's payroll documents showing that a

balance of $403 was left on the loan at that time. Ortiz never

repaid the remainder of the $500 loan from MCDI Baking, nor was she

asked to do so.

Ortiz was first designated by MCDI Baking as a muffin-

wrapper and then as a janitor. In about July 2000, Phillips, via

Polimeni, told Dwyer to pay Ortiz for thirty-five hours of work per

week until further notice. In accordance with this instruction,

Dwyer regularly issued payroll checks to Ortiz paying her for

thirty-five hours of work per week, even for weeks when Dwyer knew

that Ortiz had worked fewer than thirty-five hours and even when

Ortiz had either not submitted any timesheet or had submitted an

incomplete one. Dwyer never told MCDI's fiscal officers or outside

auditors about Phillips' instruction to her to pay Ortiz weekly for

thirty-five hours. The payroll records reflecting payment to Ortiz

for thirty-five hours of work per week were reviewed weekly by

Grimes and Phillips. Grimes never questioned Dwyer about Ortiz's

hours. There was evidence that Ortiz did not work the thirty-five

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weekly hours for which she was paid. She was supposed to work

until 5:30 p.m. each day, but in her trial testimony she recalled

only one day that she actually did so. She further testified that

when she was doing janitorial work, she took "about two, three

hours" a day to complete it. The welfare department required that

she work approximately nineteen hours a week, and Ortiz testified

that though MCDI regularly told the welfare department that she had

worked those hours, she did not always do so. Once or twice a

week, Phillips would ask Ortiz to leave work early. On those

occasions, Phillips would take Ortiz to a lake, the woods, and

other places. Other employees noticed that Ortiz was being paid

despite not being at work, and that she worked only occasionally

and for a few months total. Phillips occasionally told Ortiz not

to worry about her failure to work her required hours; he said he

would take care of it.

Dwyer, the payroll clerk for MCDI Baking, picked up

Ortiz's timesheets from the kitchen and reviewed them. Starting in

June 2000, Ortiz's timesheets showed significant deficiencies.

They lacked the required signatures and the "in" and "out" times.

Payroll summary sheets showed that Ortiz was nonetheless

consistently paid for thirty-five hours of work. For the week

ending June 30, 2000, Ortiz worked only five hours. She received

through Checkwriters a check for that number of hours, but she also

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received another check, for the same week, for thirty hours of

work. The check was handwritten by Dwyer and signed by Polimeni.

By mid-July 2000, Ortiz was working few hours or not at

all, but she was still receiving thirty-five hours' pay each week.

For the week ending July 7, 2000, Ortiz's timesheet reflected that

she had worked zero hours, but she was paid for thirty-five hours.

That week included two days off for Independence Day, but Ortiz was

paid as though she had worked every day of the week, reinforcing

the inference that her weekly payments were not based on reality.

Ortiz also received five days' pay each week for the weeks in which

Labor Day, Columbus Day, and a two-and-a-half-day Thanksgiving

holiday occurred. Dwyer entered thirty-five hours in the total

hours section of those timesheets.

On Ortiz's August 2000 timesheet, the rows for two weeks

had no hours listed, the rows for the other two weeks showed ten

hours of work per week, and Ortiz did not sign the timesheet.

Ortiz was nevertheless paid for thirty-five hours every week that

month. In September, October, and November, Ortiz's timesheets had

no time-in/time-out documentation; they showed only totals of

thirty-five hours each week, and Ortiz was paid for thirty-five

hours per week.

Airline boarding passes showed that Ortiz went to Puerto

Rico on November 20, 2000, but she received a full week's pay for

the week ending November 24. Dwyer received a complaint from

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another MCDI employee that Ortiz was paid despite having gone on

vacation. In addition, though Ortiz was terminated December 1,

2000, a form in Ortiz's personnel folder, completed by Dwyer, and

a note in the folder in Dwyer's handwriting indicated that Ortiz

was nonetheless paid for the week ending December 8, 2000. Ortiz's

file contained a December timesheet for the weeks ending December

1 and 8, with no times or signatures but totals of thirty-five

hours per week. For the week ending December 8, 2000, the

timesheet initially recorded that Ortiz worked zero hours, but a

"35" was written over the "0." Ortiz's check for the week ending

December 8, dated December 14, was handwritten by Dwyer and signed

by Polimeni. No taxes were withheld.

The entries on Ortiz's timesheets for April, May, June,

and August-December 2000 were all in Dwyer's handwriting. Dwyer's

payroll summary sheets show that from August 25, 2000, forward,

Ortiz did not submit any timesheets but was paid for thirty-five

hours per week "per Mr. Phillips." Dwyer testified that she added

the "per Mr. Phillips" notation "in case Grimes inquired about me

or there was an audit and I can refer back to them to refresh my

memory."

Unlike other employees, Ortiz was handed her weekly

paycheck by either Phillips or Polimeni. Dwyer was aware that

Ortiz's paycheck was missing each week from the group of paychecks

she received for distribution. Although Ortiz originally cashed

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many of her paychecks, beginning in June 2000, the endorsements on

the backs of her checks were forged. Phillips and Polimeni cashed

Ortiz's checks. Ortiz never approached MCDI saying she had not

received her pay. Phillips was paying Ortiz's personal bills,

including rent and utilities, through November 2000. The wages

paid to Ortiz from March 2000 through December 14, 2000, totaled

$7,700. Of that total, $5,300 was paid from the beginning of July

through December 14, 2000, during which period, the government

asserts, Ortiz worked close to zero hours.

ii. Todd Illingsworth

Todd Illingsworth was engaged to and then married to

Polimeni's daughter. Illingsworth worked at MCDI from July 1992

through October 1998, at which time he left. He returned in May

1999. When Illingsworth returned to MCDI in 1999, he began working

at the commissary for eight dollars an hour, and, initially, he

showed up to work regularly. After four or five months, however,

his attendance began to diminish until he stopped showing up almost

entirely. Another employee working at the commissary from late

1999-2001 saw Illingsworth only a "handful" of times.

Illingsworth's supervisor, Dennis Wilson, called Polimeni to report

the absenteeism; Polimeni told Wilson not to worry because, he

said, Illingsworth was using accrued compensatory time, or "comp

time." After Wilson questioned Illingsworth's attendance,

Illingsworth's timesheets began to be kept in the MCDI main

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building rather than at the commissary, and Wilson stopped

receiving Illingsworth's timesheets. Previously, following normal

practice, Wilson would enter the "time in" and "time out" and

"total hours" figures on Illingsworth's timesheets and would have

Illingsworth sign them at the end of the week. Wilson would then

take the timesheets to Dwyer. Now Wilson had to go to the main

building, where Dwyer worked, in order to complete Illingsworth's

monthly timesheets, a procedure not utilized for any other

employee. Wilson received no explanation for this separate

procedure. Wilson was told by Dwyer or Polimeni to fill out

Illingsworth's timesheets which already contained weekly hour

totals marked on them. Wilson would simply add daily hours so that

they added up to these weekly hour totals.

In September 1999, Illingsworth's timesheets began to

show significant deficiencies. His timesheets for September-

December 1999 showed alterations to several of the time entries.

On some of Illingsworth's timesheets, the full "total hours" row

was covered with correction fluid and new numbers were inserted.

The handwriting in the "total hours" column of Illingsworth's

timesheets was Dwyer's.2 In addition, Polimeni and Phillips, who

2
Dwyer notes that she was acquitted of the charge of
purposefully altering Illingsworth's timesheets to obstruct the
grand jury investigation. After Illingsworth was arrested in 2000
for gambling, Dwyer testified, Anne Scala, the payroll and accounts
receivable clerk, spoke to Dwyer about reconciling his timesheets
to reflect comp time he had been paid which had not been entered on
his timesheets. Dwyer testified that in response to Scala's

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were not Illingsworth's immediate supervisors, nevertheless signed

many of his timesheets, in contravention of the process laid out in

Phillips' own memos. Dennis Wilson, who was his supervisor, did

not sign any of his timesheets in 2000. From May 1999 through July

2000, Illingsworth was paid a total of $12,800. $5,600 of that was

for time supposedly worked between March and July, 2000.

Illingsworth was in a car accident on January 18, 2000,

and doctors told him not to work for three days. Timesheets for

January 2000, however, show that Illingsworth was paid for full

days of work on three days after January 18. According to

disability forms signed by Polimeni, Illingsworth was unable to

work until February 28. Illingsworth never showed up for work at

the commissary after his accident on January 18, but he continued

to be paid.

iii. FBI Investigation

The FBI first approached Dwyer at her home on March 6,

2002. Relying on an MCDI memorandum instructing employees to refer

to the administration any agencies that contacted them, she told

the visiting agents she could not speak to them without first

consulting her supervisors. That night, Dwyer spoke to Polimeni,

and the next morning, she spoke to Phillips. The FBI questioned

inquiry, she may have entered the totals on the Illingsworth
timesheets to reflect the amounts he had been paid but did not
change any of the "time in" or "time out" entries. Dwyer's
handwriting is not found on any of the latter time entries.

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Dwyer about Ortiz at MCDI on March 7, 2002. Dwyer told the FBI she

assumed Ortiz had worked all the hours for which she had been paid,

but that she could not verify that. She did not tell the FBI that

she had been given a standing instruction to pay Ortiz for thirty-

five hours per week, that she regularly filled in the hours on

Ortiz's timesheets, or that Ortiz was paid even after she ceased to

be employed at MCDI. Dwyer also told the FBI the only preferential

treatment Ortiz had received was the chance to work more hours than

other employees. She did not tell the FBI that Ortiz had received

a pay advance she did not repay, even though the FBI specifically

asked her about pay advances and she identified several employees

who received them.

The government sought evidence from MCDI related to its

investigation of no-show employees through grand jury subpoenas,

the first of which was issued on October 23, 2001; a consensual

search; and a warrant-authorized search. Customarily, Grimes

testified, when a subpoena arrived at MCDI, he would inform

essential employees affected by the data collection, including

Dwyer, and would assign individuals, including Dwyer, the

responsibility of retrieving documents, stressing the importance of

producing all documents. Dwyer and another individual, Karen Dean,

were responsible for gathering documents relating to Ortiz. Dwyer,

however, did not produce a copy of the memo from Polimeni about the

$500 advance for Ortiz, even though the memo was in her files and

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the government had subpoenaed all documents "relating to things

received, including, but not limited to, compensation for work

performed, compensatory time, and loans received and/or forgiven,"

with respect to Ortiz, among other people. Dwyer asserts that the

memo was not purposely withheld and that there is no evidence that

Dwyer was aware of a subpoena commanding its production. A copy of

that memo, which the government found during a search of MCDI, had

a copy of the check attached and contained Dwyer's handwriting and

notations indicating that the loan was for housing and had not yet

been repaid.

After the government issued its first subpoena, Grimes

walked into the office of Anne Scala and saw Polimeni standing

behind Scala as she compared Illingsworth's timesheets to payroll

records and covered the hour entries on the timesheets with

correction fluid. The covered hour entries were subsequently

written over with new entries, in Dwyer's handwriting.3

The FBI conducted a warranted search at MCDI on May 21,

2003. Agents discovered a locked vault, in which they found

payroll summary sheets for Ortiz that differed from the sheets

produced in response to the grand jury subpoenas. The payroll

documents were held in two boxes labeled "Jamie's Office." The

documents were in manila folders along with personal correspondence

3
See note 2, supra.

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in Dwyer's name, and included handwritten notes and post-it notes

addressed to Dwyer.

Similarly, payroll documents related to Illingsworth

found at MCDI differed from those produced by MCDI in response to

grand jury subpoenas. The documents seized from MCDI were again in

the vault in a box labeled "Jamie's Office." The timesheets

submitted in response to the subpoenas showed more hours than the

timesheets for the same weeks found in the vault. The original

timesheets from May 1999 through January 20, 2000 consistently

showed total hours that had been concealed by correction fluid and

then altered.

In May 2000, shortly after Ortiz was put on MCDI Baking's

payroll and Dwyer was asked to advance Ortiz $500 in pay, Phillips

asked Grimes to prepare a detailed salary history for Dwyer from

1985 through June 1999. In a memo dated May 2, 2000, Phillips then

instructed Scala to increase Dwyer's salary by fifty dollars, to

$631 a week. On June 13, 2001, Phillips again raised Dwyer's

weekly salary, by $136, to $767 per week. This memo preceded by a

few months the first grand jury subpoena in the case. In July

2002, a few months after Dwyer was interviewed by the FBI, Phillips

again raised her salary, to $789 per week. In just over two years,

Dwyer's salary increased by $289 per week, or approximately fifty

percent, while MCDI, Inc. and MCDI Baking were losing money.

Dwyer's personnel folder documented outstanding performance

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evaluations throughout her time at MCDI. Grimes testified that

Dwyer's pay increases were well-deserved.

Dwyer testified in her own defense. On direct

examination, she stated that she did not have any supervisory or

scheduling responsibilities; that she issued Ortiz the pay advance

in good faith, according to Polimeni's instructions; and that she

entered or changed times on Ortiz's timesheets in good faith to

correct errors or reflect later-obtained information that Ortiz had

worked additional hours. She conceded she had been told to pay

Ortiz for thirty-five hours per week and that Ortiz eventually

stopped submitting timesheets, but she stated her continued

payments to Ortiz were in good faith. She testified she made

notations on Ortiz's payroll documents in case Grimes or outside

auditors had questions about Ortiz's pay. Dwyer said she told the

FBI at her interview that she was unable to verify Ortiz's hours

and that she had received a complaint that Ortiz had been paid

while she was in Puerto Rico. She said the FBI did not ask any

follow-up questions on this point. Dwyer testified she answered

all questions at the FBI interview truthfully and to the best of

her recollection.

On cross-examination, Dwyer asserted it was her good-

faith belief that Ortiz had worked on holidays - including July 4,

Labor Day, and Thanksgiving - when MCDI was closed. She again

admitted that in July, 2000, Polimeni had told her to pay Ortiz for

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thirty-five hours per week until further notice, and that,

eventually, she was issuing Ortiz payroll checks for thirty-five

hours per week without knowing whether Ortiz had worked or not.

Dwyer originally claimed she believed Ortiz had worked

thirty-five hours the week ending December 8, 2000, but then she

admitted writing a note in Ortiz's folder indicating that Ortiz was

terminated on December 1, 2000. Dwyer said that when she arrived

at work on payday, the employees' payroll checks would be in a

mailbox outside her office, but that Ortiz's check had always been

taken out by that point. She acknowledged that, even though the

FBI had asked her about payroll advances, she did not mention the

payroll advance to Ortiz.

The defense argued that Illingsworth had been paid for

hours he did not work because, during his employment by MCDI ending

October 1998, he had built up compensatory time (time accrued by an

employee which can be credited as paid time off). About a year

after the government's second subpoena to MCDI on July 11, 2002,

requesting, inter alia, all records relating to compensatory time

accrued, earned, or received by Illingsworth, MCDI produced a

letter from Illingsworth to Phillips dated November 24, 1998, a

month after he had left MCDI. Illingsworth claimed in the letter

he had accumulated 232 hours of compensatory time at $18/hour

through extra overtime hours he had spent painting the MCDI

building. He sought payment for those hours. Attached to the

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letter were several sheets of notebook paper with handwritten

requests to use the compensatory time. The defendants argued that

Phillips refused Illingsworth's request to be paid for compensatory

time, so Illingsworth returned to MCDI in a part-time capacity. He

then supposedly used the compensatory time he had accumulated in

his earlier stint at MCDI. Dwyer testified at trial that it was

her understanding that Illingsworth would be permitted to recoup

the compensatory time he was owed.

Grimes, however, testified that MCDI's unwritten policy

was that when an employee left MCDI, he lost built-up compensatory

time and could not thereafter be paid for it. Grimes did not know

that Illingsworth was being paid for compensatory time and learned

of that claim only after the government issued subpoenas for

Illingsworth's records. He did not know any other MCDI employee

who had left MCDI and then had compensatory time restored. MCDI

had no written policy regarding compensatory time, and MCDI's

timesheets and leave forms do not mention it. FBI Special Agent

Wittrock testified that, during his investigation, he became aware

of no other employees who had received payment for compensatory

time.

Agent Wittrock testified that Illingsworth's November 24,

1998 letter was unusual because Wittrock had not seen any other

requests for payment for compensatory time in the documents turned

over during the investigation. Unlike other requests for leave,

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Illingsworth's handwritten notes requesting compensation for time

off had not been attached to his related timesheets. Further,

while some of Illingsworth's timesheets contained notations about

compensatory time, the handwritten notes from Illingsworth did not

match the timesheets. Wilson, Illingsworth's direct supervisor,

testified he never saw the handwritten individual requests by

Illingsworth for application of compensatory time. Additionally,

the FBI knew from its gambling investigation that Illingsworth had

been at his home making phone calls on many of the occasions he

said he was working and subsequently attributed his earnings to the

use of compensatory time.

Dwyer testified that she thought Illingsworth had earned

compensatory time for painting the MCDI building outside of regular

work hours. After Illingsworth left MCDI, she said, he was

entitled to be paid for his accrued compensatory time. To this

end, she had helped Illingsworth write the 1998 letter to Phillips

requesting payment. Dwyer denied telling Wilson to enter times on

Illingsworth's timesheets but conceded she "might have" changed the

totals on his timesheets. She denied changing payroll

spreadsheets.

On cross-examination, Dwyer admitted she had "corrected"

Illingsworth's timesheets "[t]o an extent," so that they

corresponded with his paychecks. She also testified to writing in

the hours on top of correction fluid on "one or two" of

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Illingsworth's timesheets. But she said she did this before the

issuance of a grand jury subpoena, and that she had never altered

documents "[a]fter a grand jury subpoena had been issued."

Discussion

Dwyer argues there was insufficient evidence to support

her convictions for conspiring to commit federal program fraud,

committing such fraud, making false statements, obstructing

justice, and conspiring to obstruct justice. She asserts there was

insufficient evidence to support a finding that payments to

Illingsworth were not "bona fide wages" under 18 U.S.C. § 666(c).

Dwyer additionally argues that the indictment was constructively

amended by the court's jury instructions and that the court made

cumulatively prejudicial errors that resulted in the denial of due

process. Each of Dwyer's contentions fails. We address them in

turn.

I. Sufficiency of the Evidence

a. Standard of Review

Dwyer moved for a judgment of acquittal at the close of

the evidence, preserving her claim for review. See United States

v. Van Horn, 277 F.3d 48, 54 (1st Cir. 2002). We review the denial

of a motion for acquittal de novo. United States v. Thompson, 449

F.3d 267, 275 (1st Cir. 2006). In evaluating sufficiency, we view

the evidence and credibility determinations in the light most

favorable to the verdict and inquire whether a reasonable

-22-
factfinder could have found the defendant guilty beyond a

reasonable doubt. Id. We "need not believe that no verdict other

than a guilty verdict could sensibly be reached, but must only

satisfy [ourselves] that the guilty verdict finds support in a

plausible rendition of the record." United States v. Hatch, 434

F.3d 1, 4 (1st Cir. 2006) (internal quotation marks omitted). The

jury is free to choose among reasonable constructions of the

evidence. See United States v. Hughes, 211 F.3d 676, 681 (1st Cir.

2000). An insufficiency claim presents "daunting hurdles." Hatch,

434 F.3d at 4 (internal quotation marks omitted).

b. Conspiracy to Commit and Commission of Program Fraud

i. Conspiracy to Commit Program Fraud

In order to prove the conspiracy, the government had to

demonstrate an agreement to commit program fraud, Dwyer's knowledge

of and voluntary participation in the agreement, and an overt act

in furtherance of the agreement. United States v. Ruiz, 105 F.3d

1492, 1499 (1st Cir. 1997). The agreement need not be express; a

tacit understanding may suffice. Each conspirator need not know

all of the details of the conspiracy or participate in every act in

furtherance of it. United States v. Perez-Gonzalez, 445 F.3d 39,

49 (1st Cir. 2006). But "mere association" with conspirators or

"mere presence" cannot alone establish knowing participation,

United States v. Nelson-Rodriguez, 319 F.3d 12, 28 (1st Cir. 2003)

(internal quotation marks omitted); the defendant must be found to

-23-
have shared her co-conspirators' intent to commit the substantive

offense. United States v. Llinas, 373 F.3d 26, 30 (1st Cir. 2004).

From the evidence introduced at trial, the jury could

reasonably have found that Dwyer had voluntarily joined in an

agreement with Phillips and Polimeni to pay Ortiz from MCDI, Inc.'s

payroll for hours she had not worked. Dwyer stopped deducting pay

from Ortiz to repay an initial $500 loan made to Ortiz at Phillips'

and Polimeni's request. Upon instructions from Phillips and

Polimeni, she took steps to pay Ortiz regularly for thirty-five

hours of work per week while knowing that Ortiz was not working

those hours for MCDI Baking. In furtherance of the conspiracy,

Dwyer ordered or prepared the checks and timesheets needed for the

overpayments to Ortiz. Dwyer acknowledged in her testimony that

she knew that Ortiz was not working the hours listed on her

timesheets.

In respect to Illingsworth, Dwyer kept and filled in

entries on Illingsworth's timesheets, and she instructed and

observed Wilson complete them by writing in hours that added up to

pre-entered totals. There was ample evidence from which the jury

could determine that Dwyer knew Illingsworth was not working during

all the hours for which he was paid.

The government argued at trial that Dwyer's participation

in the overpayments to both people was knowing and voluntary,

noting that she knew the payments were excessive for the hours

-24-
actually being worked at the time and disregarded MCDI's prescribed

procedures about the proper way to complete timesheets. The

government pointed out that Dwyer's own pay-raises dovetailed

suspiciously with the times of her improper actions. While Dwyer

denied any connection, the jury could plausibly have inferred from

the timing and unusually high amounts of the raises that Phillips

and Polimeni were rewarding her for her cooperation. See United

States v. Gomez-Pabon, 911 F.2d 847, 853 (1st Cir. 1990) ("[P]roof

[of membership in a conspiracy] may consist of circumstantial

evidence, including inferences from surrounding circumstances, such

as acts committed by the defendant that furthered the conspiracy's

purposes.").

Dwyer says her involvement with the program fraud was

"reluctant acquiescence" rather than "voluntary participation" and

claims that her "dedication and character" are inconsistent with a

finding that her actions, done at Phillips' and Polimeni's behest,

reflected any criminal intent. She argues that she simply failed

to appreciate that it was wrongful to do what her bosses told her

to do, hence lacked the intent to conspire to commit program fraud.

The evidence indicated, however, that she was well aware

that Ortiz and Illingsworth were being paid from MCDI's funds for

improperly documented work that the two individuals never

performed, and that her own activities directly furthered those

irregularities. She and those she was assisting were employees of

-25-
a firm that was part of a public department of the City of

Springfield. In those circumstances, the jury could have inferred

that she did not believe that Polimeni and Phillips could properly

direct and authorize her to pay out MCDI funds to the two non-

performing public employees. It is true she may have been in part

influenced by the fear that if she did not go along with her

supervisors' directions, they would retaliate against her; but

there was no evidence of threats, and a general concern of this

kind would fall short of precluding a finding of conspiracy. Dwyer

does not argue otherwise. See, e.g., United States v. Freeman, 208

F.3d 332, 342 (1st Cir. 2000) (a generalized fear of harm is no

defense to a conspiracy charge; evidence precluding inference of an

agreement would have to show that the duress to which defendant was

subject was "enough to overbear [her] will and make [her]

participation in the conspiracy involuntary").

The jury heard all the evidence, including Dwyer's

testimony, and could reasonably decide that she had knowingly and

voluntarily participated and that her denial of doing so was

lacking in credibility. See United States v. Maldonado-Garcia, 446

F.3d 227, 231 (1st Cir. 2006) (on sufficiency review, we "may

neither evaluate the credibility of the witnesses nor weigh the

relative merit of theories of innocence postulated by the

defendant"). There was sufficient evidence to support the jury's

verdict on the conspiracy charge.

-26-
 ii. Program Fraud

Commission of program fraud in violation of 18 U.S.C.

§ 666(a)(1)(A) may be shown by establishing, inter alia, that a

state government employee knowingly converted to the use of any

person other than the rightful owner, property worth $5,000 or more

belonging to the state, if the defendant's employing agency

receives at least $10,000 in federal funds within a calendar year.

18 U.S.C. § 666; see United States v. Cruzao-Laureano, 404 F.3d

470, 483-84 (1st Cir.), cert. denied, 126 S. Ct. 639 (2005). Dwyer

does not dispute that she was a state government employee and that

MCDI received annually more than $10,000 in federal funds. She

challenges only the finding of a knowing conversion of $5,000 or

more.4

In the case of Ortiz, the uncontroverted evidence was

that she was paid $7,700 from March 2000 through December 14, 2000,

of which $5,300 was paid from July through December 14, 2000. The

evidence showed that from at least June 2000 through December 14,

2000, Ortiz was working either no or, at most, very few hours per

week. The evidence also showed overpayments on occasions prior to

June. We think the evidence overall permitted the jury to conclude

4
Dwyer argues that she did not "benefit in any way from any
alleged wrongdoing at MCDI." That may be true, but section 666
criminalizes conversion to the use of "any other person." 18
U.S.C. § 666(a)(1)(A).

-27-
reasonably that at least $5,000 of the $7,700 paid to Ortiz was

fraudulently converted by Dwyer to Ortiz's use.

Ortiz received, in March 2000, a $500 loan, of which she

repaid only ninety-three dollars. Ortiz's timesheets (which were

in Dwyer's handwriting for the months of April, May, June,

September, October, November, and December, 2000) contained

substantial, repeated deficiencies. Grimes testified that Ortiz

should not have been getting paid based on the poor state of her

timesheets. Despite the fact that her timesheets lacked required

signatures and the "in" and "out" times, Ortiz was regularly paid

for thirty-five hours of work per week. The evidence is clear that

she recorded no hours of work the week ending July 7 as well as the

week ending November 24 when she was vacationing in Puerto Rico.

Ortiz was paid for the week of work following her termination on

December 1, 2000. Ortiz's August 2000 timesheet had no hours

listed for two weeks, and only ten hours each week for the other

two weeks. Nevertheless, she was still paid for thirty-five hours

of work each week. In September, October, and November, Ortiz's

timesheets contained no time-in/time-out documentation, showing

only the totals of thirty-five hours each week. Additionally,

Ortiz cashed her paychecks only until June, 2000, at which point

the signatures on the back of her checks were forged, with Phillips

and Polimeni cashing the checks. In light of all the other

evidence of default, the fact that Ortiz did not fill out her

-28-
timesheets, pick up her checks, or complain when Phillips or

Polimeni cashed her checks, supported a reasonable inference by the

jury that she was not working to any extent at this time.

Ortiz's own testimony, indeed, tended to reinforce such

an inference. She said she remembered only one occasion on which

she worked until 5:30, the prescribed quitting hour. She further

testified that when she was doing janitorial work, she took "about

two, three hours" a day to complete it. The welfare department

required that she work approximately nineteen hours a week, and

Ortiz conceded that though MCDI regularly told the welfare

department that she had worked those hours, she did not always do

so. Moreover, Ortiz responded that she "didn't know" when asked if

she was "certain" she was still working at MCDI after she moved to

Forest Street, a move made on August 1, 2000.

Dwyer insists there was no clear evidence Ortiz was

overpaid by as much as $5,000 since Ortiz's own testimony lacked

any certitude as to the period or periods of time she had worked.

There are no absolute records to verify the precise number of hours

actually worked. But given the total payment to her of $7,700 and,

in particular, the $5,300 paid during the July-December period when

the evidence of her almost total absence from work was quite

strong, we believe there was sufficient evidence from which the

jury could reasonably infer that she was overpaid by at least

$5,000. The government did not have to establish with absolute

-29-
mathematical precision the number of hours Ortiz did or did not

work so long as it presented evidence from which it could

reasonably be inferred that she did not work sufficient hours to

warrant her being paid $5,000 during the period in question. We

think the evidence was sufficient to allow such an inference to be

drawn. We believe a reasonable jury could have inferred that Ortiz

did not perform sufficient work to justify being paid at least

$5,000 of the pay she received.

Regarding Illingsworth, it was established that he was

paid $7,200 in wages from May 1999 through January 2000 and $5,600

from March through July 2000, for a total of $12,800. However,

beginning September 3, 1999, Illingsworth's timesheets became

significantly deficient and around that same time, Illingsworth

began missing time at work until he stopped coming altogether. He

never returned to the commissary after January 18, 2000. The

government thus argues that the record entitled the jury to

conclude that Illingsworth was paid at least $5,000 in wages he did

not earn.

The defense responds that Illingsworth was entitled to

offset compensatory time from unpaid overtime work he allegedly had

earlier performed for MCDI prior to his leaving it in October,

1998. Beginning in December 1997, it is asserted, Illingsworth

painted the inside of the MCDI building during overtime hours. He

says he was not then paid, and was, therefore, entitled to be

-30-
credited with compensatory time, meaning he was entitled to take

equivalent time off after he was rehired by MCDI and be paid for

it. In its opening argument, the government conceded that

Illingsworth seemed to have earned about 240 hours of compensatory

time at $18/hour but asserted that Illingsworth had forfeited the

right to receive that income when he left his employment at MCDI in

October, 1998. The MCDI Employee Policy Manual says nothing about

the subject of compensatory time, and the defense acknowledges that

Phillips, MCDI's executive director, rejected Illingsworth's

request in his November 24, 1998 letter to be paid for the alleged

overtime painting hours. Over Dwyer's objection, the government

elicited testimony from Grimes that there was an unwritten policy

at MCDI that someone who left employment at MCDI lost all accrued

comp time. The government cites Grimes' testimony in contending

that the payments made to Illingsworth after leaving and being

rehired by MCDI could not be justified on the basis of comp time

allegedly earned during his prior employment by MCDI. The

government analogizes the loss of the comp time to the loss of

accrued sick leave or vacation upon leaving a particular job. The

government also points out that the comp time argument was

assembled only after the FBI investigation began and that

Illingsworth's supervisor, Wilson, did not see any requests for

compensatory time from Illingsworth when he was supposedly working

for Wilson. The defense points to no actual agreement with MCDI

-31-
whereby Illingsworth was permitted to apply comp time to the wages

earned after his rehire. By creating what was essentially a false

paper trail of time when Illingsworth was alleged to be working but

in fact was not, Illingsworth, with the assistance of Dwyer and

Illingsworth's father-in-law, Polimeni, simply undertook to pass

along to the City of Springfield the costs of work supposedly done

a year and a half prior.

Given Grimes' testimony that compensatory time could not

be credited after leaving MCDI; the absence of any evidence that

MCDI, in any formal or regular way, credited Illingsworth with

compensatory time; the lack of proper and meaningful

contemporaneous records, including timesheets, establishing that

Illingsworth's pay for work not done was being given for

compensatory time; and the further evidence indicating that the

compensatory time argument was concocted after the investigation

had begun, we believe the jury could have reasonably concluded that

it was improper to compensate him for work he never performed in

1999 and thereafter.

Dwyer responds that while a Massachusetts statute, Mass.

Gen. Laws ch. 149, § 148, prohibits "comp time" as such, it does

require that an employee be paid for all wages earned. That

statute states, in part:

Every person having employees in his service shall pay
weekly or biweekly each such employee the wages earned by
him to within six days of the termination of the pay
period during which the wages were earned if employed for

-32-
 five or six days in a calendar week, or to within seven
days of the termination of the pay period during which
the wages were earned if such employee is employed seven
days in a calendar week. [A]ny employee leaving his
employment shall be paid in full on the following regular
pay day, and, in the absence of a regular pay day, on the
following Saturday . . . and every county and city shall
so pay every employee engaged in its business the wages
or salary earned by him . . . . The word "wages" shall
include any holiday or vacation payments due an employee
under an oral or written agreement . . . . No person
shall by a special contract with an employee or by any
other means exempt himself from this section . . . .

Id. Thus, Dwyer argues, MCDI could not lawfully refuse to pay

Illingsworth for the compensatory time he was owed, hence there was

no fraud in paying him later even if such payment was made

informally under the guise of paying him for work he in fact never

performed.

However, the very compensatory time policy which Dwyer

argues entitled Illingsworth to be paid long after the fact would

itself appear, if anything, to violate the plain language of the

statute. According to the statute, Illingsworth was to be paid

promptly after he performed the painting work in 1998; he was not

so paid. Indeed, Phillips apparently refused his request to be

paid. Instead, Illingsworth now claims he was paid later pursuant

to timesheets which reflected a fictional account of work he did

not perform at the times they said he did. The evidence of a

policy that compensatory time was forfeited after departure from

the company, coupled with Illingsworth's failure to secure any form

of official authorization from his employer to carry forward and

-33-
use compensatory time in the manner now claimed - as well as the

surreptitious manner in which his father-in-law Polimeni and Dwyer

went about paying him after his supervisor noted that he was not,

in fact, working at the times he was supposed to work - could have

prompted a reasonable jury to conclude Illingsworth was not

entitled to it, and that he was, at best, using an extra-legal

avenue to secure what he now feels he was owed.

Dwyer's own testimony about her belief that Illingsworth

deserved his compensatory time and her role in helping Illingsworth

request payment for the time in November, 1998, along with her

subsequent participation in the altering of the timesheets, could

also be found to indicate a desire on her part to make payments to

Illingsworth even though she was aware that such belated

reallocation of funds could not properly and legally be effected.

Dwyer testified that she believed Illingsworth had earned

comp time for painting the interior of the building and that he

wanted to be paid for that time. She testified that she assisted

him in drafting the letter requesting comp time after he had left

MCDI. She admitted to the possibility of her having changed some

of the "in" and "out" times on Illingsworth's timesheets so that

they would more correctly reflect what he had been paid, but not

the hours he actually worked. Illingsworth's immediate supervisor,

Wilson, never signed any of the timesheets for his employee during

2000, thus deviating from the established MCDI policy. In 2000,

-34-
Illingsworth was found at home gambling on days when the timesheets

show he was supposedly working. Given Dwyer's role in adjusting

the timesheets to put them in line with the payroll sheets after

the fact, her veracity could reasonably have been doubted by the

jury on the issue of her good faith belief that Illingsworth was

properly entitled to the belated payment. If he was, why was it

necessary to participate in the creation of a false paper trial of

time worked after the fact?

The jury could have reasonably concluded that

Illingsworth's failure to return to work, the lack of a formal

record of his comp time, the evidence of MCDI's non-accrual policy,

and the lack of any demonstrated formal relationship between the

later overpayments and the earlier absence of compensation, all

indicated that he was not receiving legitimate comp wages and thus

that Dwyer had participated in converting to Illingsworth more than

$5,000 as required to prove program fraud under the statute.

iii. Bona Fide Wages Exception

Section 666(c) by its terms "does not apply to bona fide

salary, wages, fees, or other compensation paid, or expenses paid

or reimbursed, in the usual course of business." 18 U.S.C. §

666(c); see United States v. Cornier-Ortiz, 361 F.3d 29, 33 (1st

Cir. 2004). Dwyer contends that her convictions for conspiring to

commit program fraud and committing program fraud are barred by

this exception as related to Illingsworth.

-35-
 Whether wages were bona fide is a question of fact for

the jury. See Cornier-Ortiz, 361 F.3d at 36. Here, the district

court instructed the jury on the exception, and there was more than

sufficient evidence to support the jury's conclusion that the

payments to Illingsworth were not bona fide wages.5 As noted,

Illingsworth was engaged to and later married Polimeni's daughter.

The evidence taken in the light most favorable to the government

showed he was paid repeatedly for weeks he did not work.

Illingsworth was paid on days when he was out due to injury, and he

continued to be paid after he stopped working. A reasonable jury

could find that the payments to Illingsworth were not made in the

usual course of business and thus were not bona fide. Cornier-

Ortiz, 361 F.3d at 36 (payments not bona fide "if they were

intentionally misapplied, as they were here via sham contracts that

skirted conflict of interest rules and allowed [a corporation] to

receive preferential treatment and other benefits"); United States

v. Grubb, 11 F.3d 426, 431, 434 (4th Cir. 1993) (bona fide wages

exception inapplicable where employee "performed little work for

the Sheriff's office" and did not "perform functions for the

Sheriff's office on a regular basis"); cf. United States v. Mills,

140 F.3d 630, 633 (6th Cir. 1998) (bona fide wages exception

applicable because there was no allegation that employees "did not

5
Dwyer does not argue that the payments to Ortiz should be
considered under the 18 U.S.C. § 666(c) exception.

-36-
responsibly fulfill the duties associated with their employment").

We would add that to the extent the payments were, as was argued,

not intended as wages for work actually performed but reflected

some kind of informal and unauthorized compensatory time

reimbursement, they were also not bona fide wages. The jury could

reasonably find that the bona fide wages exception does not come

into play.

c. False Statements, Obstruction of Justice, and

Conspiracy to Obstruct Justice

Count Ten charged Dwyer with conspiring with Phillips,

Polimeni, and Cardaropoli to obstruct and impede the government's

investigation of MCDI in violation of 18 U.S.C. § 1503(a), which

provides:

Whoever corruptly, or by threats or force, or by any
threatening letter or communication, endeavors to
influence, intimidate, or impede any grand or petit
juror, or officer in or of any court of the United
States, or officer who may be serving at any examination
or other proceeding before any United States magistrate
judge or other committing magistrate, in the discharge of
his duty, or injures any such grand or petit juror in his
person or property on account of any verdict or
indictment assented to by him, or on account of his being
or having been such a juror, or injures any such
officers, magistrate judge, or other committing
magistrate in his person or property on account of his
performance of his official duties, or corruptly or by
threats or force, or by any threatening letter or
communication, influences, obstructs, or impedes, or
endeavors to influence, obstruct or impede, the due
administration of justice, shall be punished . . . .

The overt acts alleged in Count Ten included the backdating and

alteration of Illingsworth's timesheets; Polimeni's allegedly

-37-
making a false statement to a special agent of the FBI on January

15, 2002; Dwyer's allegedly making false statements to the FBI on

March 7, 2002; Cardaropoli's allegedly making false statements to

the FBI in February, 2003; and Phillips' threatening Densing

Abraham, a seventeen-year-old MCDI employee and potential grand

jury witness, on March 11, 2003. The jury found Dwyer not guilty

of conspiring with Polimeni to alter Illingsworth's timesheets.

Cardaropoli was found not guilty of lying to the FBI, and Dwyer was

found not guilty of program fraud arising from the wages paid to

Cardaropoli. Phillips was found not guilty of threatening Abraham.

Accordingly, after eliminating the overt acts related to these

counts, it can be assumed that Dwyer was found guilty of conspiracy

to obstruct justice in Count 10 on the basis of the statements she

gave to the FBI on March 7, 2002. Dwyer was charged in Count 15

with obstruction of justice based on those statements, violating 18

U.S.C. § 1503, and in Count 16 with making false statements. We

assess the sufficiency of the evidence for these three counts in

concert, as they are all based on the underlying claim of false

statement.

"In order to convict a defendant of making a false

statement under 18 U.S.C. § 1001, the prosecution must prove that

the defendant, in a matter within the jurisdiction of the United

States government, knowingly made a material statement to the

government which was false." United States v. Sebaggala, 256 F.3d

-38-
59, 63 (1st Cir. 2001); see United States v. Duclos, 214 F.3d 27,

33 (1st Cir. 2000).

The government argues that Dwyer knowingly and willfully

made material false statements to the FBI when speaking to Agents

Clifford Hedges and Susan Kossler on March 7, 2002. She told the

FBI she assumed Ortiz had worked all of the hours she was paid for,

but that she could not verify that Ortiz had done so. Dwyer had,

however, been given a standing instruction to pay Ortiz for thirty-

five hours per week; she routinely filled in the hours on Ortiz's

timesheets, noted on the payroll summary that Ortiz had worked zero

hours but was being paid for thirty-five "per Mr. Phillips," and

wrote a check to Ortiz after she knew Ortiz had been terminated.

She did not explain this situation to the FBI. Dwyer also told the

FBI that the only preferential treatment Ortiz had received was the

opportunity to work more hours than other employees. Dwyer knew,

however, that Ortiz had received a payroll advance which she did

not repay. Asked about payroll advances, Dwyer identified several

other employees who had received them but did not mention Ortiz.

The government argues that this was more than enough evidence to

support the jury's finding that Dwyer knowingly made false

statements. See Hatch, 434 F.3d at 6 ("The determination as to

[the defendant's] state of mind - his belief in the untruthfulness

of his statement - is one which the jury is best equipped to

perform."); United States v. Singh, 222 F.3d 6, 10 (1st Cir. 2000).

-39-
 Dwyer argues in response that the FBI agents did not ask

any follow-up questions and did not seek more complete answers than

the ones she gave. She also points out that the interview was not

recorded and that no written statement was taken. Kossler

testified that she did not inform Dwyer what the FBI was

investigating beyond telling her that it was about MCDI and her

role there. Kossler additionally testified that Dwyer volunteered

that someone had once complained to her that Ortiz had been paid

for a week when she was not even working, when she had been in

Puerto Rico. The agent did not ask any follow-up questions on that

point.

Dwyer herself also testified about the March 7 interview.

She said that she had answered all questions truthfully and did not

believe she was a focus of the investigation. But Dwyer did not

contest that she stated that she assumed Ortiz's hours were correct

when in fact she knew of a standing order to pay her for thirty-

five hours regardless of whether she worked zero hours. She also

stated that she did not know of any preferential treatment when she

knew Ortiz had not been required to repay a loan. She thus made

affirmative false statements and did not just omit or fail to

volunteer information when the FBI did not ask follow-up questions.

Further, those false statements were material. "The test

of materiality is whether the false statement in question had a

natural tendency to influence, or was capable of influencing, a

-40-
governmental function," Sebaggala, 256 F.3d at 65 (citation

omitted). "[I]f a statement could have provoked governmental

action, it is material regardless of whether the agency actually

relied upon it." Id. Dwyer's statements were about issues at the

center of the investigation. If she had been truthful about

Ortiz's standing thirty-five-hour-per-week pay schedule and the

preferential treatment she received, the investigation could have

been significantly shortened. We hold, therefore, that there was

sufficient evidence to support Dwyer's conviction for making false

statements.

There is likewise sufficient evidence supporting Dwyer's

convictions for obstruction of justice and conspiracy to obstruct

justice. In order to demonstrate obstruction of justice in

violation of 18 U.S.C. § 1503, the government had to prove that

Dwyer corruptly influenced, obstructed, impeded, or endeavored to

influence, obstruct or impede, the due administration of justice.

The government had to show that there was a pending judicial

proceeding; that Dwyer had notice of the proceeding; and that she

acted corruptly with the intent to influence or obstruct, or

endeavored to influence or obstruct, the proceeding. See United

States v. Frankhauser, 80 F.3d 641, 650-51 (1st Cir. 1996).

"It is well-established that a grand jury investigation

constitutes a pending judicial proceeding for purposes of § 1503."

United States v. Macari, 453 F.3d 926, 936 (7th Cir. 2006). The

-41-
grand jury proceeding here was underway before the government

interviewed Dwyer on March 7, 2002. Grimes testified that when a

grand jury subpoena came in, the group of employees, including

specifically Dwyer, responsible for gathering documents responsive

to it would be told of, and would know about, the existence of the

subpoena. Before her interview with the FBI, Dwyer spoke with

Phillips and Polimeni, both of whom, Grimes testified, would also

have been aware of the existence of a grand jury subpoena. A

reasonable jury could have concluded from the testimony that Dwyer

had notice of the October 23, 2001 subpoena, was aware that it had

been issued by a grand jury, and was further aware from the nature

of the materials she was directed to gather that the grand jury's

investigation pertained to the payment of employees at MCDI. The

jury could also conclude that she would have known from the

character of the questions the FBI subsequently put to her in her

interview that matters relevant to the grand jury's investigation

were the subject of the FBI's inquiry. Additionally, evidence that

Dwyer made false statements to the FBI agents supported the jury's

conclusion that she intended to influence or obstruct the grand

jury proceeding.

Dwyer argues that the government didn't prove she knew

her statements would be submitted to a grand jury. See United

States v. Aguilar, 515 U.S. 593, 598-600 (1995) (requiring a

"nexus" between the defendant's act and the judicial proceeding;

-42-
i.e., "the act must have a relationship in time, causation, or

logic with the judicial proceedings"). As we have said, however,

the evidence was sufficient for a jury to infer therefrom that she

was aware her statements would go to the grand jury.

In Aguilar, the government had failed to show that the

FBI agents were acting as an arm of the grand jury or that it had

even sought their testimony, so that the mere "uttering [of] false

statements to an investigating agent . . . who might or might not

testify before a grand jury" was insufficient to establish a

violation of Section 1503. 515 U.S. at 600. In order to show that

an FBI investigation constitutes a "judicial proceeding" for

purposes of § 1503, the government must establish that the FBI was

acting as "an arm of the grand jury." Macari, 453 F.3d at 937. It

must show that the agents were "integrally involved" in the grand

jury investigation and that the investigation was undertaken "with

the intention of presenting evidence before [the] grand jury." Id.

(internal quotation marks omitted).

Here, the government showed that the FBI was working as

an arm of the grand jury by collecting evidence that was eventually

presented to the grand jury. Agent Kossler testified that the

grand jury investigation was underway by early 2002, and the FBI

was gathering information, conducting interviews, and reviewing

documents. The agents were not conducting "some ancillary

proceeding, such as an investigation independent of the court's or

-43-
grand jury's authority," Aguilar, 515 U.S. at 599. A reasonable

jury could infer, moreover, that Dwyer knew her statements would be

submitted to the grand jury, as she was aware of the grand jury

subpoena and related investigation, had spoken to Phillips and

Polimeni before her interview with the FBI, and had answered

questions on topics related to documents sought in the October 23,

2001 subpoena. There was sufficient evidence of a nexus between

Dwyer's false statements and the grand jury proceeding.

There was also sufficient evidence for a reasonable jury

to find that Dwyer was guilty of conspiracy to obstruct justice.

The evidence supported the jury's inference of a knowing and

voluntary agreement: Dwyer had spoken with Phillips and Polimeni

before making the false statements about Ortiz. She also received

a pay raise soon after. There was an overt act: the making of the

false statements in interference with a pending grand jury

proceeding. Ruiz, 105 F.3d at 1499. The circumstantial evidence

more than supported a conclusion that Dwyer was part of a

conspiracy to obstruct justice. See Gomez-Pabon, 911 F.2d at 853.

II. Constructive Amendment

Dwyer argues for the first time on appeal that jury

instructions on the federal program fraud count relating to Ortiz

(Count 9) and the false statement count (Count 16) constructively

amended the indictment.

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 Had an objection of constructive amendment been made at

trial, this court would determine de novo whether the indictment

was constructively amended. United States v. Kelly, 722 F.2d 873,

876 (1st Cir. 1983) (the question is whether the defendant "has

made a convincing showing that the alleged alteration in the

indictment did in fact change the elements of the offense charged

and whether he was convicted of a crime not charged in the grand

jury indictment"). Here, however, the constructive amendment claim

was not preserved by timely objection made in the district court;

our review, therefore, is for plain error only. United States v.

DeCicco, 439 F.3d 36, 44-45 (1st Cir. 2006).

"An amendment of the indictment occurs when the charging

terms of the indictment are altered, either literally or in effect,

by the prosecutor or the court after the grand jury has returned

the indictment." United States v. Cianci, 378 F.3d 71, 93 (1st

Cir. 2004); see United States v. Dubon-Otero, 292 F.3d 1, 4 (1st

Cir. 2002).

a. Constructive Amendment of Count 9

Count 9 charged the defendants with committing federal

program fraud by submitting to the Springfield School Department

monthly invoices that reflected the labor costs for Ortiz when

Ortiz had not worked. The court instructed the jury that the

defendants were charged with converting or aiding and abetting the

theft of funds under the control of MCDI and/or the City of

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Springfield. That instruction was correct. "A primary objective

of the rule against constructive amendment of indictments is to

ensure defendants have notice of the charges they must defend

against." Dubon-Otero, 292 F.3d at 5.

Dwyer argues that there was no evidence of submission of

"monthly invoices to the Springfield School Department that falsely

included the labor costs of Gretchen Ortiz." She claims the school

department would pay only for the labor of Baking Company employees

who worked at the commissary or warehouse. MCDI would bill the

School Department periodically for that labor. Only the labor for

those workers involved in pizza and cookie production, she says,

was billed to the Springfield School Department, and Ortiz worked

in MCDI's main building wrapping muffins. Thus, Dwyer claims,

Ortiz's labor costs were never billed to the Springfield School

Department. The record does not support Dwyer's characterization

of the payment of labor. She cites the testimony of Thomas Mazza,

the assistant finance manager of the Springfield School Department,

for the proposition that Ortiz's labor costs were never billed to

that department. But Mazza, answering a series of questions about

the cost of the muffins billed to the department, said the

following:

Q: With respect to the hot lunches and the muffins
program, how was the billing done? How did you pay for
it? What was the structure in terms of the way you would
bill for those services?

A: Hot lunch or hot breakfast?

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 Q: Excuse me, hot lunches and muffins, the one that was
done at 140 Wilbraham Road [MCDI's main facility].

A: We were billed on a per item cost. There was a set
cost for each per unit that was produced in a given month
and we were billed.

Q: So each muffin would have a particular cost associated
with it?

A: Yes.

Q: And the same with each lunch?

A: Hot breakfast.

Q: Hot breakfast. I want to keep calling it lunch. So
with respect to what went into making up that unit cost,
what were the ingredients, so to speak, of the unit cost
for the muffins for the hot breakfast?

A: I believe it was the labor that MCDI incurred to
produce them, the production (emphasis supplied).

Dwyer had sufficient notice of the charges. Here, as in Cianci,

"[n]o intimations by the court recast the 'essential' elements" of

the crime charged. 378 F.3d at 94.

b. Constructive Amendment of Count 16

Dwyer also argues that the district court impermissibly

broadened Count 16, which alleged a false, fraudulent, and

fictitious material statement in violation of 18 U.S.C. § 1001, by

instructing the jury it could find the defendants guilty if they

made a material false statement or concealed or covered up a

material fact by trick, scheme, or device. She claims that the

reference to "trick, scheme, or device" unlawfully amended the

indictment. The instruction stated in part:

-47-
 The first element the government must prove beyond a
reasonable doubt is that the defendant intentionally made
a material false statement or intentionally concealed or
covered up a material fact. These words almost define
themselves.

To falsify means to make an untrue statement which is
untrue at the time made is known to be untrue at the time
made. However a statement that is literally true can
constitute a false statement if the defendants, through
a scheme, trick or device, are actively trying to mislead
the government.

To satisfy this first element, the government must prove
beyond a reasonable doubt that the fact allegedly
falsified or covered up was material. A statement is
material if it has a natural tendency to influence or to
be capable of influencing the decision of the
decisionmaker to which it was addressed, regardless of
whether the agent actually relied on it.

. . .

I will now enumerate the specific charges of false
statement:

. . .

Count 16: Ms. Dwyer is charged with falsely stating to
a special agent of the Federal Bureau of Investigation on
March 27, 2000 that she assumed that Gretchen Ortiz
worked her full shift but could not verify the actual
number of hours worked by Ms. Ortiz, and that the only
preferential treatment received by Ms. Ortiz from the
administration about which Ms. Dwyer had knowledge was
that she had heard other employees complain that Ms.
Ortiz got to work more hours than other employees.

In her brief, Dwyer cites a truncated version of the instruction,

implying that the court failed to address the specific charge of

false statement against her and thus unlawfully amended the

indictment with its reference to a statement which through a

"scheme, trick, or device" actively attempts to mislead the

-48-
government. The court's instruction on the specific charge

pertaining to Dwyer "was taken largely from the indictment,"

Cianci, 368 F.3d at 94, and did not amend it. The court made clear

in its instructions that Dwyer was accused of specific false

statements, which the jury could then judge if she made.

Dwyer's constructive amendment claims fail, therefore,

whether judged de novo or under a plain error standard.

III. Cumulative Errors

Finally, building on her sufficiency argument, Dwyer

claims that a number of other errors by the district court

cumulatively created a substantial risk of the miscarriage of

justice. We deal with these arguments below seriatim, finding that

there was no error as to any of them, hence no prejudice,

cumulative or otherwise. See United States v. Barrow, 448 F.3d 37,

44 (1st Cir.), cert. denied, 127 S. Ct. 176 (2006).

a. Motion to Sever

Dwyer argues that evidence of Phillips's sexual

relationships with MCDI employees entitled her to have her trial

severed from his. We review the district court's denial of a

motion to sever for abuse of discretion. United States v. Casas,

425 F.3d 23, 36 (1st Cir. 2005), cert. denied, 126 S. Ct. 1670

(2006). "To demonstrate abuse of discretion, defendants must show

that joinder deprived them of a fair trial, resulting in a

miscarriage of justice." United States v. Soto-Beniquez, 356 F.3d

-49-
1, 29 (1st Cir. 2004). "[T]he burden is on the party who

challenges the refusal to sever to make a convincing showing of

prejudice as a prerequisite to gaining a new trial." United States

v. Vega Molina, 407 F.3d 511, 531 (1st Cir.), cert. denied, 126

S. Ct. 296 (2005).

"Because the general rule is that those indicted together

are tried together to prevent inconsistent verdicts and to conserve

judicial and prosecutorial resources, severance is particularly

difficult to obtain where, as here, multiple defendants share a

single indictment." Soto-Beniquez, 356 F.3d at 29. This is

especially true in conspiracy cases, where "severance will rarely,

if ever, be required." United States v. Flores-Rivera, 56 F.3d

319, 325 (1st Cir. 1995) (internal quotation marks and citations

omitted).

There was no abuse of discretion in the denial of

severance here. Dwyer has not made a convincing showing that the

jury was unable to separate the evidence against Phillips from that

against her. The district court repeatedly instructed the jury

that the evidence about Phillips was not relevant to the other

defendants. See United States v. DeLuca, 137 F.3d 24, 37 (1st Cir.

1998) ("[T]he district court took prudent precautions against

judicial spillover by repeatedly instructing the jury that it must

consider the evidence against each individual defendant in relation

to each count."). We "presume that jurors will follow clear

-50-
instructions to disregard evidence unless there is an overwhelming

probability that the jury will be unable to follow the court's

instructions, and a strong likelihood that the effect of the

evidence will be devastating to the defendant." United States v.

Portela, 167 F.3d 687, 701 (1st Cir. 1999) (internal quotation

marks and citation omitted). "[A] measure of evidentiary spillover

is a foreseeable concomitant of virtually every joint trial, yet

seldom indicates undue prejudice." DeLuca, 137 F.3d at 36. Here,

especially where the court took particular care to emphasize the

need to differentiate the evidence for each defendant, it did not

abuse its discretion in denying a motion to sever.

b. Evidentiary Rulings

Dwyer argues that, in any event, the evidence of

Phillips's sexual relationships should have been excluded as

unfairly prejudicial to her. We review evidentiary decisions for

abuse of discretion. United States v. Flemmi, 402 F.3d 79, 86 (1st

Cir. 2005). "[D]istrict courts enjoy wide latitude in passing upon

the relevancy of evidence." United States v. Maldonado-Garcia, 446

F.3d 227, 231-32 (1st Cir. 2006). "As to prejudice, '[t]rial

judges enjoy wide latitude in making Rule 403 rulings and are only

overturned after a showing of egregious error.'" United States v.

Perez-Gonzalez, 445 F.3d 39, 47 (1st Cir. 2006) (quoting United

States v. Kornegay, 410 F.3d 89, 96 (1st Cir. 2005)). We find

nothing unreasonable in the court's allowance of the evidence

-51-
against Phillips. The district court gave several warning

instructions about use of the Phillips evidence. See United States

v. Richardson, 421 F.3d 17, 41 (1st Cir. 2005), cert. denied, 126

S. Ct. 2319 (2006).

Dwyer also challenges briefly and in the most general

terms a range of additional evidentiary admissions as highly

prejudicial but does not develop any argument as to why any was

improperly admitted. "Virtually all evidence is prejudicial - if

the truth be told, that is almost always why the proponent seeks to

introduce it - but it is only unfair prejudice against which the

law protects." United States v. Pitrone, 115 F.3d 1, 8 (1st Cir.

1997). Dwyer makes no specific argument as to how the evidence

"invite[d] the jury to render a verdict on an improper emotional

basis." United States v. Varoudakis, 233 F.3d 113, 122 (1st Cir.

2000).

c. "Following Orders" Jury Instruction

Dwyer takes issue with the court's instruction to the

jury that "if you find that the evidence established beyond a

reasonable doubt that the defendant willfully and knowingly

participated in the scheme to defraud, it is not a defense to the

crime of wire fraud for a defendant to claim that he or she was

following orders." This instruction pertained only to the wire

fraud counts, which the court dismissed. Dwyer argues that since

the wire fraud counts were only dismissed by the court on her

-52-
motion under Fed. R. Crim. P. 29(c), after the jury returned its

verdicts, it is unlikely that the jury understood that the

following orders instruction pertained only to the wire fraud

counts. The instruction, however, clearly referred to the wire

fraud counts, and the jury demonstrated its ability to distinguish

among counts by acquitting on some and convicting on others. See

United States v. Freeman, 208 F.3d 332, 345-46 (1st Cir. 2000).

d. Prosecutor's Statements in Closing Argument

Dwyer argues that the government improperly equated

"intent" with "knowledge" in its rebuttal closing argument. The

government said:

I want to talk about intent because it's something that
has been mentioned both by Mr. Hoose and some of the
other lawyers during their closing arguments and the
judge will tell you what intent is. You'll be able to
learn from the instruction that intent is not someone
waking up in the morning and saying, "today I am going to
defraud the City of Springfield." Intent is not like
that. Intent is simply knowing the consequences of your
actions. Knowing that when a payroll check is being
issued and someone is not performing work for that
payroll check, that the City of Springfield, MCDI is
losing money as a result. That, in essence is intent,
knowing the consequences of what flows from your actions.

At the conclusion of the rebuttal, the court reminded the jury that

the closing arguments of counsel are not evidence. The defendant

objected to a couple of points, including the intent definition, at

the end of the rebuttal summation, saying, "I want to object to Mr.

Welch's suggestion or his definition of intent. I realize the

Court was giving a curative instruction, but I want to note these

-53-
objections and ask the Court to specifically instruct the jury to

disregard those things." The court responded:

All right. Well, I don't think it's necessary for me to
do the latter [i.e., give specific instruction]. And my
remarks at the end of the closing were not intended to
cure anything specifically related to Mr. Welch's
rebuttal. I hope that wasn't interpreted that way. It
just seemed to me to be a good time at the end, sometimes
I do it at the beginning and perhaps it would have been
better if I had done it at the beginning but it was
simply intended as a general admonition. . . .

The issue of the instructions, several of you have
referred to what you thought I would say in my
instructions, and I'll be saying right in the very first
page or two of my instructions that anything counsel may
say about the instructions that is inconsistent with my
instructions is to be disregarded. So that will be right
at the beginning of the instructions so in a sense you
will get that instruction.

The next day, the court gave the jury instructions which included

the following:

Counsel have quite properly referred to some of the
governing rules of law in their arguments. If, however,
any difference appears to you between the law as stated
by counsel and that stated by the Court in these
instructions, you of course are to be governed by these
instructions. . . .

In weighing the evidence on the conspiracy charge you
must find beyond a reasonable doubt that the defendants
intentionally joined the conspiracy before you may find
them guilty on that charge.

In fact, the law requires that the government prove two
types of knowing intent beyond a reasonable doubt before
a defendant can be said to have willfully joined the
conspiracy.

The court went on for several more paragraphs on the meaning of

intent.

-54-
 Where there is prosecutorial argument with

contemporaneous objections, we review de novo whether the comment

was improper and review for abuse of discretion whether the

misconduct, if any, warrants a new trial. United States v. Lewis,

40 F.3d 1325, 1337-38 (1st Cir. 1994). To be held responsible for

participation in a criminal conspiracy, a defendant must be shown

to have entered knowingly, willfully and intentionally into an

agreement with the specific intent that the conspiracy's criminal

purposes be accomplished. United States v. O'Campo, 973 F.2d 1015,

1020 (1st Cir. 1992). The prosecutor's argument suggested to the

jury that if they concluded that Dwyer's notations on the payroll

spreadsheets proved knowledge, then intent could be presumed. The

prosecutor should not have characterized intent and knowledge as

essentially interchangeable, but we find no abuse of discretion in

the court's handling of the summation. The court repeatedly

emphasized the definition of intent during instructions the

following day and emphasized further that the court's

characterization of the law was the one to follow. The jury is

presumed to have followed the court's instructions and the

definition it gave of intent. See Soto-Beniquez, 356 F.3d at 43

(curative instruction and correct instruction on point of law

prevented any prejudice to defendant from prosecutor's misstatement

of law in closing argument).

Affirmed.

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