United States v. Connolly

USCA1 Opinion









December 7, 1993
[Not for Publication]
[Not for Publication]

United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
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No. 93-1625

UNITED STATES,

Appellee,

v.

STEPHEN T. CONNOLLY,

Defendant, Appellant.

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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas W. Hillman,* Senior U.S. District Judge]
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Before

Breyer, Chief Judge,
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Boudin and Stahl, Circuit Judges.
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Cornelius J. Sullivan with whom Brenda E. Walsh-Sullivan was on
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brief for appellant.
Michael J. Tuteur, Assistant United States Attorney, with whom A.
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John Pappalardo, United States Attorney was on brief for appellee.
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*Of the Western District of Michigan, sitting by designation.





















Per Curiam. In this appeal, defendant Stephen
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Thomas Connolly challenges his convictions on four counts of

a five count indictment charging him with making false

statements to the United States, in violation of 18 U.S.C.

1001.1 Finding each of defendant's appellate arguments to

be entirely unpersuasive, we affirm.

This case arises out of defendant's failure to

disclose earned income while applying for and receiving

worker's compensation benefits. Defendant, a postal service

letter carrier, suffered a work-related back injury on

February 20, 1990. Soon thereafter, he made a claim for

partial disability and in support of it, filed a series of

Department of Labor CA-8 forms.2 On the four CA-8 forms

which underpin the counts of conviction, defendant left blank

sections 9a and 9b, which directed him to disclose any

salaried employment and/or commission and self-employment

(regardless of whether any income actually was earned

therefrom) in which he was engaged during the period he was

seeking disability compensation. At trial, however, the



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1. In that portion of the statute relevant to this case,
section 1001 provides: "Whoever, in any matter within the
jurisdiction of any department or agency of the United States
knowingly and willfully . . . makes any false, fictitious or
fraudulent statements or representations . . . shall be fined
not more than $10,000 or imprisoned not more than five years,
or both."

2. The CA-8 forms all carry the caption "Claim for
Continuing Compensation on Account of Disability."

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government demonstrated that, from August 1990 through August

1991, defendant was employed as a delivery man for Aku-Aku, a

Boston restaurant.3 Defendant does not contest this

employment and that he should have noted it in section 9 of

the four relevant CA-8 forms.

In his poorly organized appellate brief, defendant

makes three arguments which warrant brief discussion: (1)

that the evidence presented was insufficient for the jury to

have found that he acted "knowingly and willfully"; (2) that

the omitted information was not "material" and therefore

could not give rise to criminal liability under section 1001;

and (3) that the jury's verdict was impermissibly

inconsistent.4 We address each claim in turn.


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3. Although the government asserts that defendant maintained
his employment with Aku-Aku through October 1991, nothing in
the record indicates that defendant's employment with the
restaurant continued past August 1991. Regardless, this
discrepancy has no impact upon our analysis.

4. Defendant alludes to the question of whether leaving
section 9 blank can constitute a statement or representation
under section 1001. Given the fact that defendant presents
us with no argument and cites to no authority on this point,
and given the further fact that there is authority which
supports the proposition that leaving a form blank can
constitute a statement or representation under section 1001,
see United States v. Mattox, 689 F.2d 531, 533 (5th Cir.
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1982); United States v. Irwin, 654 F.2d 671, 676 (10th Cir.
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1981), cert. denied, 455 U.S. 1016 (1982), we will regard the
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argument as waived. See United States v. Innamorati, 996
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F.2d 456, 468 (1st Cir.) (issues adverted to in a perfunctory
manner deemed waived on appeal), cert. denied, 62 U.S.L.W.
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3320 (Nov. 1, 1993).
Defendant further challenges the indictment as
"multiplicitous." He has, however, also waived this argument
by failing to raise it prior to trial. See Fed. R. Crim. P.
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1. As is always the case when confronted with an

argument that there was insufficient evidence to support a

conviction, we review the evidence "in a light most favorable

to the government and resolv[e] all credibility issues in its

favor." E.g., United States v. Fisher, 3 F.2d 456, 462 n.18
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(1st Cir. 1993). Here, there was ample evidence upon which

the jury could have rested its conclusion that defendant, in

failing to complete sections 9a and 9b of the relevant CA-8

forms, acted "knowingly and willfully." Defendant admitted

at trial that he probably read sections 9a and 9b of the CA-8

forms, and that he didn't find the wording of these sections

ambiguous or confusing. Moreover, there was evidence, in the

form of both a sworn statement given by defendant to postal

inspectors investigating his case and in the form of

testimony by one of these postal inspectors, that defendant

understood that he was obliged to report income from outside

employment on the CA-8 forms.5 In light of this, it is

apparent that defendant's sufficiency argument must fail.

2. Defendant's second argument, that the omitted

information was not "material," does not require extended

discussion. While it is true that "`[m]ateriality of the


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12(b)(2) and Fed. R. Crim. P. 12(f) (defenses and objections
based upon defects in the indictment must be raised prior to
trial); see also United States v. Rodriguez, 858 F.2d 809,
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816-17 (1st Cir. 1988).

5. On appeal, defendant does not argue that this evidence
was improperly admitted.

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alleged misstatements is an essential element of offenses

defined by 18 U.S.C. 1001,'" United States v. Corsino, 812
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F.2d 26, 30 (1st Cir. 1987) (quoting United States v.
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Radetsky, 535 F.2d 556, 571 (10th Cir.), cert. denied, 429
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U.S. 820 (1976)), we have defined "material" information as

merely that which has "`a natural tendency to influence, or

[is] capable of affecting or influencing, a governmental

function,'" Corsino, 812 F.2d at 30 (quoting United States v.
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Markham, 537 F.2d 187, 196 (5th Cir. 1976), cert. denied, 429
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U.S. 1041 (1977)). Thus, statements can be material even if

they were ignored, never relied upon, or never read by the

agency. See Corsino, 812 F.2d at 31.
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Here, there was uncontroverted trial testimony

that, if defendant had disclosed his income from Aku-Aku, the

Department of Labor might have readjusted his disability

compensation. Furthermore, there was uncontroverted trial

testimony that, if defendant had disclosed his delivery job,

the Department of Labor might have reevaluated his medical

status. Given this testimony, there is no basis for us to

upset the district court's finding, see id. at 31 n.3
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(materiality under section 1001 is a question for the

court, and not the jury, to decide), that the omitted

information was material.6


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6. At oral argument, counsel for defendant indicated that he
was precluded from cross-examining the relevant government
witnesses on the issue of materiality. Our review of the

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3. Defendant's third and final argument, that the

jury's verdict was impermissibly inconsistent, also is

unavailing. Even if we were to credit defendant's dubious

assertion that the verdict here necessarily was inconsistent,

it is well settled that, in criminal cases, "[c]onsistency in

the verdict is not necessary." Dunn v. United States, 284
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U.S. 390, 393 (1932); see also United States v. Powell, 469
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U.S. 57, 63-69 (1984); United States v. Gonzalez-Torres, 980
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F.2d 788, 791 (1st Cir. 1992). Accordingly, we summarily

reject defendant's request for a new trial insofar as it is

based upon his claim that the verdict here was inconsistent.

Affirmed.
Affirmed.
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record, however, reveals that defense counsel was not, in
fact, prevented from so inquiring.

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