United States v. Riccio

United States Court of Appeals
For the First Circuit

No. 07-2604

UNITED STATES OF AMERICA,

Appellee,

v.

JOHN L. RICCIO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, Senior U.S. District Judge]

Before

Howard, Circuit Judge,
Stahl, Senior Circuit Judge,
and Besosa, District Judge.*

Kathleen J. Hill for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Robert Clark Corrente, United States Attorney, and Zechariah
Chafee, Assistant United States Attorney, were on brief, for
appellee.

June 17, 2008

*
Of the District of Puerto Rico, sitting by designation.
 Besosa, District Judge. Appellant John L. Riccio was

convicted of violating 18 U.S.C. § 1001 by submitting a false

statement on a background check form (SF-86) to his former

employer, the Transportation Security Administration (TSA). On

appeal, Mr. Riccio argues (1) that the district court abused its

discretion in denying a motion for mistrial based on the

government’s “prosecutorial misstatements” during the trial;

(2) that the Court erred in instructing the jury on the intent

element of § 1001; (3) that the Court erred in considering, at

sentencing, Mr. Riccio’s sworn and counseled deposition testimony

given in a suit he had filed against a previous employer, Wal-Mart,

and (4) that the Court erred in ordering mental health counseling

as a condition of his supervised release. We affirm.

I. FACTUAL BACKGROUND

Mr. Riccio worked at a Wal-Mart store in Rhode Island from

December 9, 2003 through February 3, 2004 as a sales clerk. On

February 3, 2004, he claimed he could no longer work due to a

job-related back injury and began collecting workers’ compensation.

Mr. Riccio continued to collect disability payments from Wal-Mart

until October 2005. He was terminated from that employment on

May 5, 2006.1

1
Mr. Riccio’s disability claim led to litigation with
Wal-Mart which began in October 2005 and continued through
February 2007.

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 In July 2004, while collecting disability payments from

Wal-Mart, Mr. Riccio began employment as a screener with the TSA.

He was stationed at T.F. Green Airport in Warwick. As part of this

job, he had to stand for long periods of time and move heavy bags.

In December 2005, Mr. Riccio filed a disability claim with the

TSA alleging he had been injured while on the job at the airport.

As part of his TSA employment, Mr. Riccio completed a SF-86

background check form titled “Questionnaire for National Security

Positions”. On June 19, 2006, Mr. Riccio faxed the completed and

signed SF-86 Form to a TSA official who had requested it. He

attached to the form a signed cover letter in which he noted that

he had submitted previous SF-86 forms.

In section 11 of the form, Mr. Riccio was required to list all

of his employment going back several years, whether full-time or

part-time, including any “paid work”.2 Just above the block where

Mr. Riccio’s signature appears, the SF-86 Form included a warning

that false statements in the form could be punished by

2
Section 11 of the SF-86 Form provides, in its pertinent part,
as follows: “YOUR EMPLOYMENT ACTIVITIES. List your employment
activities, beginning with the present (#1) and working back 7
years. You should list all full-time work, part-time work,
military service, temporary military duty locations over 90 days,
self-employment, other paid work, and all periods of unemployment.
The entire 7-year period must be accounted for without breaks, but
you need not list employments before your 18th birthday. EXCEPTION:
Show all Federal civilian service, whether it occurred within the
last 7 years or not.”

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imprisonment.3 Mr. Riccio made no reference to his Wal-Mart

employment, however, when he completed the SF-86 Form. Mr. Riccio

was suspended from his TSA employment in October 2006.

On January 24, 2007, a one count indictment was returned by a

grand jury charging Mr. Riccio with a violation of 18 U.S.C. §

1001, by knowingly and willfully making a materially false,

fictitious or fraudulent statement on a document he submitted to

the TSA, the SF-86 Form in which he did not list his Wal-Mart

employment. Mr. Riccio elected to represent himself at trial; a

standby counsel was appointed by the court.

A. The government’s closing argument

During its closing argument, the government argued that

Mr. Riccio’s statement that he had simply forgotten about his

Wal-Mart employment while completing the SF-86 Form was farfetched

because he was engaged in the Wal-Mart litigation at that very

time. The prosecutor suggested a double motive for Mr. Riccio’s

failure: he did not want the TSA to learn of his earlier Wal-Mart

employment, and conversely, he did not want Wal-Mart to discover

that he was working for the TSA (because this might jeopardize his

disability suit). Mr. Riccio did not object to the prosecutor’s

suggestion.

3
The information in the SF-86 Form is relied upon by the TSA
in conducting background checks into the fitness of its screeners.
Concealed prior employment impedes investigators from discovering
whether any problems arose during that employment which might
reflect negatively on the trustworthiness of a screener.

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 During the closing argument, however, the government referred

to evidence that was not admitted at trial: an answer given by

Mr. Riccio in a deposition conducted by Vivian Dogan, a Wal-Mart

attorney, in which Mr. Riccio allegedly denied having any

employment after leaving Wal-Mart. Mr. Riccio objected before the

prosecutor could complete the question, accurately observing that

Ms. Dogan’s statement was not in evidence. The court initially

overruled the objection; the prosecutor then added, “So you recall

Vivian Dogan saying, when she asked him if he had had any

employment since Wal-Mart, since he left Wal-Mart and had his

injury in 2004, February 3rd, 2004, he said, no, he hadn’t. He’s

hiding from her he’s at TSA.”

At a sidebar conference immediately following the prosecutor’s

closing, Mr. Riccio moved for a mistrial based on these remarks.

Because it recalled the trial evidence differently from Mr. Riccio,

the court promised to look back at the record to make sure that its

recollection was accurate. Mr. Riccio then gave his closing

argument, during which he told the jury that the court had barred

all evidence concerning the Wal-Mart deposition and that the

prosecutor had made comments that were not based on evidence. The

government did not return to the subject in its rebuttal.

After reviewing Ms. Dogan’s testimony and its prior rulings on

objections, the court addressed the prosecutor at another sidebar

conference held just after the government’s rebuttal, and indicated

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that Mr. Riccio’s answer to the question of whether he had been

employed after Wal-Mart had not been admitted. The Court stated,

“So I think – and I – I’m satisfied it’s ambiguous enough that I

can understand how you would have had the impression that she did

say that, but she didn’t.” Nonetheless, the court held that a

mistrial was not warranted but that it would give curative

instructions. It further expressed that Mr. Riccio could renew his

mistrial motion if the jury convicted him.

The district court then informed the jury that there was no

evidence that Mr. Riccio had denied having other employment when

questioned by Ms. Dogan during the deposition, and that the

prosecutor was “incorrect” in stating otherwise. It further

explained that “Mr. Riccio did not tell Ms. Dogan at any time that

he was not employed elsewhere” and that “there’s no evidence that

Mr. Riccio told her that he was not working any place else.” The

court then instructed the jury that the issue of what Mr. Riccio

had said or not said to Ms. Dogan during the deposition was

irrelevant, reminded the jury that the trial was not about Mr.

Riccio’s worker’s compensation claims, and told the jury to “put

that one out of your mind.” During the final instructions,

delivered moments later, the court again cautioned that the closing

arguments by the prosecutor and Mr. Riccio were not evidence.

There was no criticism of the curative instruction or the final

jury instructions.

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B. The Jury Instructions

The court then charged the jury on the elements of a § 1001

violation. While doing so, the court recited the language of the

statute, including the “knowingly and willfully” element. It

further explained that to convict Mr. Riccio, the government had to

prove, first, that he made the statement in question on a document

submitted to the TSA; second, that the statement was materially

false; third, that Mr. Riccio knew that the statement was false at

the time he made it; and fourth, that Mr. Riccio made the statement

voluntarily and intentionally. As to the fourth element of the

offense, the court stated that:

“. . .the Government has to prove that, as I said, the
statement was made voluntarily and that he intended to
make the statement, in other words, that he didn’t make
the statement by accident or mistake, that he intended to
make that statement and he knew the statement was false.”

After the jury returned a guilty verdict, Mr. Riccio did not

renew his mistrial motion.

C. Sentencing4

At sentencing, the district court admitted the Wal-Mart

deposition in evidence. After finding that there was “no dispute

about the genuineness of the transcript,” the court stated that the

deposition transcript was relevant for sentencing purposes and

explained in detail why it found it to be germane to its decision

4
The standby counsel, Mr. Kevin J. Fitzgerald, represented
Mr. Riccio at the sentencing hearing.

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under 18 U.S.C. § 3553. The only objection raised by Mr. Riccio to

the admission of the deposition transcript was that the statements

given during the deposition were not “relevant conduct” “based on

the trial.” The Court rejected the objection, however, and stated

that the transcript showed:

. . . that either Mr. Riccio made false statements during
the course of the deposition about whether he was then
employed any place else or makes false statements - or,
to the extent that the deposition indicates that he was
collecting Worker's Comp. benefits from Wal-Mart during
the time he worked at TSA, those things would be relevant
on the question of motive, which would certainly be
within the scope of this sentencing hearing.”

Mr. Riccio was later sentenced to a three-month prison term,

with two years of supervised release.

II. ANALYSIS

A. Mr. Riccio’s Request for a Mistrial

Mr. Riccio argues on appeal that the district judge should

have granted his motion for a mistrial based on the prosecutor’s

misconduct in making reference to evidence that was not admitted at

trial. He further contends that the district judge (1) failed to

make a legal determination of the prejudicial effects of the

prosecutor’s misstatements in light of the evidence at trial;

(2) did not ask to hear any argument regarding the prejudicial

effect of the misstatements “applied to the issue of Mr. Riccio’s

credibility”; (3) made no findings about the risk of any

prejudicial effect on the jury; (4) failed to state its reasoning

for denying the mistrial motion; and (5) unduly gave a defective

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jury instruction. Without a contemporaneous, aggressive curative

instruction, the defense argued, “. . .there is no way that we can

determine whether the jury did, in fact, disregard the prosecutor’s

misstatement when discussing the weight of all conflicting

admissible evidence.”

If, like in this case, the government admits that its

recitation of the evidence was factually inaccurate, the

misstatements constituted prosecutorial misconduct.5 See United

States v. Azubike, 504 F.3d 30, 38 (1st Cir. 2007).

Because the prosecutor’s statements constituted misconduct, we

must then determine whether they resulted in prejudice to

Mr. Riccio. Id.; see also United States v. Mangual-García, 505

F.3d 1, 6 (1st Cir. 2007). In determining whether the prosecutor’s

misconduct “so poisoned the well” as to require a new trial, this

court has applied a three part test: “(1) whether the prosecutor’s

conduct was isolated and/or [sic] deliberate; (2) whether the trial

court gave a strong and explicit cautionary instruction; and

(3) whether it is likely that any prejudice surviving the

instruction could have affected the outcome of the case.” Azubike,

504 F.3d at 39; Mangual-García, 505 F.3d at 6; United States v.

Cormier, 468 F.3d 63, 73 (1st Cir. 2006).

5
As we explained in United States v. Azubike, 504 F.3d 30,
38 (1st Cir. 2007), we use the term “misconduct” not to suggest
deliberate wrongdoing but rather to signal a statement of fact that
is mistaken or unsupported by any evidence.

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 Having carefully reviewed the transcript of the proceedings

before the district court, it is clear that the district court did

not abuse its discretion in denying Mr. Riccio’s request for a

mistrial.

Applying the first prong of the analysis, we agree with the

government that the prosecutor’s remarks were relatively brief in

nature, were not deliberate and, as the district court itself

found, stemmed from an “understandable misrecollection” of

Ms. Dogan’s testimony.

Second, the district court gave strong and thorough curative

instructions to the jury. Moreover, the court informed the jury

that there was no evidence that Mr. Riccio had denied having other

employment when questioned by Ms. Dogan, and that the prosecutor

was “incorrect” in stating otherwise. It explained that

“Mr. Riccio did not tell Ms. Dogan at any time that he was not

employed elsewhere” and that “there’s no evidence that Mr. Riccio

told her that he was not working any place else.” The court then

instructed the jury that the issue of what Mr. Riccio had said or

not said to Ms. Dogan during the deposition was irrelevant,

reminded the jury that the trial was not about the worker’s

compensation claims, and told the jury to “put that one out of your

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mind.” Finally, the court diligently cautioned that statements of

the prosecutor and Mr. Riccio were not evidence.6

We believe the court’s curative instructions - given without

objection - were sufficiently explicit to allow the jury to render

a fair verdict. This court has repeatedly held that a strong,

explicit and thorough curative instruction to disregard improper

comments by the prosecutor is sufficient to cure any prejudice from

prosecutorial misconduct. Mangual-García, 505 F.3d at 7 (quoting

United States v. Cormier, 468 F.3d 63, 74 (1st Cir. 2006) and

United States v. Boldt, 929 F.3d 35, 41 (1st Cir. 1991)). Our

holding dove tails with the fact that “our system of trial by jury

is premised on the assumption that jurors will scrupulously follow

the court’s instruction . . .”. United States v. Owens, 167 F.3d

739, 756 (1st Cir. 1999).

Finally, this is not a close case and there is no likelihood

that the remarks could have affected its outcome. The record is

clear that there was enough independent evidence that Mr. Riccio

submitted a false SF-86 Form and that he did so intentionally.

Considering the evidence in this case, the “terse character of the

remarks” and the thorough curative instructions given by the court,

it is unlikely that the remarks altered the result of the trial.

6
Ironically, Mr. Riccio, in his brief, acknowledges the
judge’s “several clear orders” throughout the proceedings.

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Thus, the district court correctly denied Mr. Riccio’s motion for

a mistrial. No error occurred.7

B. Jury Instructions

Mr. Riccio also argues that the district court erred in

defining the intent element of § 1001 in its jury instructions and

when it omitted the “knowingly and willfully” elements on the

verdict form. Without a jury instruction “. . . on the element of

‘willfully’, and with the omission of ‘knowingly and willfully’ on

the verdict form we cannot speculate that the jury did, in fact,

properly make the requisite scienter findings before reaching the

legal conclusion of guilt in this case.”

Because there was no objection raised below, our review, to

which the parties agree, is for plain error. To prevail on a plain

error review, Mr. Riccio bears the heavy burden of showing (1) that

an error occurred; (2) that the error was clear or obvious; (3)

that the error affected his substantial rights; and (4) that the

error also seriously impaired the fairness, integrity, or public

reputation of judicial proceedings. United States v.

Medina-Martínez, 396 F.3d 1, 8 (1st Cir. 2005)(citing Johnson v.

7
Mr. Riccio alleges three other errors, none of which were
presented in support of his motion for a mistrial. We will not
consider any of them, however, as they have been waived for
purposes of this appeal. United States v. Henry, 519 F.3d 69, 71
(1st Cir. 2008)(quoting United States v. Jiménez, 498 F.3d 82,
88 (1st Cir. 2007)(noting “the well-settled appellate rule that
‘issues adverted to in a perfunctory manner, unaccompanied by some
effort at developed argumentation, are deemed waived.’”))

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United States, 520 U.S. 461, 466-67 (1997); United States v. Olano,

507 U.S. 725, 732 (1993); and United States v. Gómez, 255 F.3d 31,

37 (1st Cir. 2001)). In applying this standard, we are mindful

that “the plain-error exception is cold comfort to most defendants

pursuing claims of instructional error.” Medina-Martínez, 396 F.3d

at 8 (internal citations omitted). See also United States v.

Weston, 960 F.2d 212, 216 (1st Cir. 1992) (“while reversal of a

conviction predicated on unpreserved instructional error is

theoretically possible, [it is] the rare case in which an improper

instruction will justify reversal of a criminal conviction when no

objection has been made in the trial court.”)

Nonetheless, this court is “. . . cognizant of the fundamental

importance of adequate jury instructions. It is a long recognized

principle in this Circuit that ‘clear, easily understood jury

instructions are vitally important in assuring that jurors grasp

subtle or highly nuanced legal concepts’.” Medina-Martínez, 396

F.3d at 8 (quoting United States v. DeStefano, 59 F.3d 1, 4 (1st

Cir. 1995)).

Section 1001 requires proof that the false statement was made

“knowingly and willfully”. 18 U.S.C. § 1001(a). While

interpreting the term willfulness, we have held that it means

“. . . nothing more in this context than that the defendant knew

that his statement was false when he made it or - which amounts in

law to the same thing - consciously disregarded or averted his eyes

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from its likely falsity.” United States v. Gonsalves, 435 F.3d 64,

72 (1st Cir. 2006). In Gonsalves, we expressly rejected the

argument that § 1001 requires “an intent to deceive.” Id.; see

also United States v. Yermian, 468 U.S. 63, 73 (1984). We need not

go further.

The district court’s instruction correctly followed Gonsalves

and correctly described the willful element of § 1001 to the jury.

Mr. Riccio presents no valid argument for us to deviate from this

clear precedent.

Additionally, Mr. Riccio challenges the verdict form. His

main argument is that the district court “withdrew the scienter

requirement from the verdict form.” His argument also fails as a

matter of law for several reasons.

It is clear from the transcript that Mr. Riccio stated he had

no objection to the verdict form. We have consistently expressed

that a verdict form “. . . must be reasonably capable of an

interpretation that would allow the jury to address all factual

issues essential to judgment.” Sheek v. Asia Badger, Inc., 235

F.3d 687, 699 (1st Cir. 2000). Thus, we review the form as a

whole, in conjunction with the jury instructions, in order to

determine whether the issues were fairly presented to the jury.

Johnson v. Teamsters Local 559, 102 F.3d 21, 28 (1st Cir. 1996).

As we previously have discussed, the district court properly

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instructed the jury; it was not required to reiterate all the

elements of a § 1001 violation in the verdict form.

Consequently, and because Mr. Riccio has not shown plain error

here, either with respect to the instructions or the verdict form,

we affirm the district court’s decision.

C. Sentencing

Mr. Riccio’s main contention regarding his sentencing is that

we should remand for resentencing because the district judge

incorrectly admitted and considered the Wal-Mart deposition during

sentencing. He maintains that the deposition was “unreliable”

because it did not satisfy certain federal rules of evidence and

civil procedure or Rhode Island’s rules of civil procedure.

Although Mr. Riccio argued before the district court that the

statements in the deposition were not “relevant conduct”, he never

argued what he now argues before this court. Thus, our review is

again for plain error. United States v. Earle, 488 F.3d 537, 549

(1st Cir. 2007) (“if the defendant fails to preserve a sentencing

issue, we review only for plain error.”) (internal citations

omitted).

At sentencing, the district court is not directly bound by

ordinary rules of evidence, and strict confrontation rules do not

apply. United States v. Fanfan, 468 F.3d 7, 15 (1st Cir. 2006).

Moreover, the sentencing court has broad discretion to accept even

hearsay evidence at sentencing as long as the court concludes, with

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proper support, that the information has sufficient indicia of

trustworthiness to warrant a finding of probable accuracy. United

States v. Rodríguez, 336 F.3d 67, 71 (1st Cir. 2003).

Mr. Riccio’s allegation that the deposition was unreliable is

also mistaken. As the district judge noted before admitting

Mr. Riccio’s deposition into evidence, there was no dispute as to

the transcript’s genuineness. Contrary to Mr. Riccio’s assertion,

the district judge did not consider the deposition arbitrarily; he

considered the deposition only after finding that it was relevant

for sentencing purposes, and after he explained in detail why he

found the deposition to be germane to his decision under 18 U.S.C.

§ 3553. Finally, and as correctly asserted by the government,

“. . . if such sworn, transcribed, and counseled statements are too

‘unreliable’ to be considered at sentencing, it is hard to imagine

what a court may rely upon short of in-court testimony.”

The district court acted within the realm of its discretion in

accepting Mr. Riccio’s deposition for sentencing purposes and its

decision must be affirmed.

D. Judgment

As a final argument, Mr. Riccio urges us to remand for a

correction of his sentence because there is a conflict between the

written judgment and the oral sentencing judgment. He specifically

asks that we “remand for re-sentencing and direct the district

court to exclude that part of the sentence imposing as a special

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condition of supervised release that [he] must participate in a

mental health treatment plan ‘on an inpatient or outpatient basis,

as approved by the U.S. Probation Office,’ because the sentencing

judge issued no such directive.” (Emphasis added).

The court has reviewed the transcript of the sentencing

proceedings and the written judgment later entered by the district

court and finds that there is no conflict between them. In fact,

at sentencing, the district judge ordered that Mr. Riccio “undergo

treatment for mental health counseling” as a condition of

supervised release. In the written judgment, on the other hand,

the court expressed that he “shall participate in and

satisfactorily complete a program of mental health counseling and

treatment, on an inpatient or outpatient basis, as approved by the

U.S. Probation Office.” As the government correctly asserts, the

written judgment merely fleshes out the details of the more general

oral judgment, but in no way is it inconsistent with the orally

pronounced sentence.

Even if we were to construe Mr. Riccio’s argument to be that

the district court’s decision to impose mental health counseling as

a supervised release condition was mistaken, this argument also

fails as a matter of law. We briefly explain.

We review the imposition of special conditions of supervised

release for abuse of discretion. United States v. Allen, 312 F.3d

512, 514 (1st Cir. 2002). Because Mr. Riccio had the opportunity

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to object to this special condition and failed to do so, we review

for plain error only. “The plain error hurdle is high. Under this

standard, we may set aside the challenged portion of the instant

sentence if, and only if, the appellant succeeds in showing an

obvious and clear error under current law that affected his

substantial rights.” Id. (quoting United States v. Brown, 235 F.3d

2, 4 (1st Cir. 2000). “Even then, we may decline to correct an

error that does not seriously affect the fairness, integrity or

public reputation of judicial proceedings.” Id.

United States Sentencing Guidelines § 5D1.3(d)(5) expressly

allows courts to impose mental health counseling as a supervised

release condition “[i]f the court has reason to believe that the

defendant is in need of psychological or psychiatric treatment.”

As it appears in the record, and after considering the presentence

report, that reason was precisely why the court found that it was

“important” for Mr. Riccio to continue treatment for mental health

counseling as a condition of supervised release. Mr. Riccio raised

no objections to the district court’s determination. In fact,

Mr. Riccio’s attorney recommended that Mr. Riccio serve his prison

sentence at FMC Devens because “not only do they have the medical

facilities that would be able to treat Mr. Riccio’s numerous

illnesses, but also have a mental health component there . . .”

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(Emphasis added).8 For these reasons, it is hard to construe his

challenge on appeal as one against the imposition of the supervised

release condition. Accordingly, the sentence is affirmed.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the

district court.

8
Neither is this a case where the district judge impermissibly
delegated its authority to the probation officer when he ordered
that Mr. Riccio participate in a mental health treatment. See
e.g. United States v. Allen, 312 F.3d 512, 516 (1st Cir. 2002)
(Holding that “if [a defendant] is required to participate in a
mental health intervention only if directed to do so by his
probation officer, then this special condition constitutes an
impermissible delegation of judicial authority to the probation
officer. On the other hand, if the District Court was intending
nothing more than to delegate to the probation officer details with
respect to the selection and schedule of the program, such
delegation was proper.” (Internal citations omitted)); United
States v. Peterson, 248 F.3d 79, 85 (2d Cir. 2001).

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