Woodward v. United States

United States Court of Appeals
For the First Circuit

No. 17-2114

FRANCIS H. WOODWARD,

Petitioner, Appellant,

v.

UNITED STATES,

Respondent, Appellee.

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

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Torruella, Selya, and Barron,
Circuit Judges.

Bruce A. Singal, with whom Lauren E. Dwyer and Barrett &
Singal were on brief, for appellant.
Sonja M. Ralston, Attorney, Criminal Division, Appellate
Section, U.S. Department of Justice, with whom John P. Cronan,
Acting Assistant Attorney General, Matthew S. Miner, Deputy
Assistant Attorney General, and Jenny C. Ellickson, Attorney, were
on brief, for appellee.

September 26, 2018
 TORRUELLA, Circuit Judge. In 1996, a jury convicted

former Massachusetts state representative Francis H. Woodward of,

among other crimes, honest-services mail and wire fraud. He

appeals to us from the district court's denial of his most recent

petition for a writ of error coram nobis. We conclude that the

district court did not err in denying that petition.

I.

A.

Our opinion addressing Woodward's direct appeal from his

conviction lays out the underlying facts in considerable detail.

See United States v. Woodward (Woodward I), 149 F.3d 46, 51-54

(1st Cir. 1998). We provide only a brief recap of those facts

here.

Woodward was elected to the Massachusetts House of

Representatives in 1977. Id. at 51. He served on the Joint

Committee on Insurance (the "Committee") from 1985 to 1991. Id.

During that time, William Sawyer served as the senior legislative

counsel in the Government Relations Department of John Hancock

Mutual Life Insurance Company ("Hancock"). Id. Sawyer was also

an "active participant" in the Life Insurance Association of

Massachusetts (LIAM), an industry association -- of which Hancock

was a member -- that employed lobbyists "who worked on

Massachusetts legislation." Id. "From 1984 through 1992, Woodward

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accepted in excess of $9,000 in gratuities from Hancock and LIAM

through their lobbyists Sawyer and William F. Carroll, the

president of LIAM. Hancock provided the majority of this largesse,

at least $8,740 in meals, rounds of golf, and other entertainment."

Id. at 52.

While serving on the Committee, "Woodward's official

actions, for the most part, conformed with the way Sawyer and

Hancock wanted the recipient of their gratuities to conduct

himself." Id. at 53. Robert J. Smith, the Committee's research

director, testified that Woodward was the "most pro-life-

insurance-industry chair of the [Committee] during Smith's

tenure." Id. During that time, "Woodward actively supported the

industry's position on most bills of importance to the industry."

Id. Woodward also neglected his statutory duty to disclose gifts

that he or his immediate family received from lobbyists or

businesses with a direct interest in legislation. Id. at 62 (citing

Mass. Gen. Laws ch. 268B, § 5).

A jury convicted Woodward of one count of honest-

services mail fraud, see 18 U.S.C. §§ 1341, 1346, one count of

honest-services wire fraud, see 18 U.S.C. §§ 1343, 1346, two counts

of interstate travel to commit bribery, see 18 U.S.C. § 1952, and

one count of conspiracy to commit those offenses, see 18 U.S.C.

§ 371. The district court granted a judgment of acquittal on one

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count of interstate travel to commit bribery. The district court

then sentenced Woodward to six months of community confinement,

followed by two years of supervised release, and a $200 special

assessment. Woodward appealed from his remaining convictions, and

we affirmed. Woodward I, 149 F.3d at 73. In 2002, the

Massachusetts State Board of Retirement, invoking Mass. Gen. Laws

ch. 32, § 15(4), rescinded Woodward's pension benefits. That

statute provides that "[i]n no event shall any member after final

conviction of a criminal offense involving violation of the laws

applicable to his office or position, be entitled to receive a

retirement allowance[.]" Id. The Supreme Judicial Court of

Massachusetts upheld the State Board of Retirement's decision to

do so. State Bd. of Ret. v. Woodward, 847 N.E.2d 298, 306 (Mass.

2006).

Woodward brought his first collateral attack on his

conviction under 28 U.S.C. § 2255, grounding his petition in two

then-recently decided cases interpreting the federal and

Massachusetts gratuity statutes. See United States v. Sun-Diamond

Growers of Cal., 526 U.S. 398 (1999); Scaccia v. State Ethics

Comm'n, 727 N.E.2d 824 (Mass. 2000). In response, the district

court vacated Woodward's conviction on the conspiracy count and on

the remaining count of interstate travel to commit bribery.

Woodward's second collateral attack took the form of a writ of

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error coram nobis, arguing that his remaining convictions were

invalid in the wake of Skilling v. United States. See 561 U.S.

358 (2010). The district court denied relief. United States v.

Woodward (Woodward II), No. 12-11431, 2012 WL 4856055, at *9 (D.

Mass. Oct. 10, 2012).

B.

This appeal arises from Woodward's third collateral

attack -- his second writ of error coram nobis. Woodward's

petition relied primarily on the Supreme Court's recent decision

in McDonnell v. United States, 136 S. Ct. 2355 (2016). There, the

Supreme Court narrowed the definition of "official act" in the

honest-services fraud prosecutions before it. Id. at 2371-72.

The district court correctly recognized that, to succeed, a coram

nobis petitioner must "explain his failure to seek earlier relief

from the judgment, show that he continues to suffer significant

collateral consequences from the judgment, and demonstrate that

the judgment resulted from an error of the most fundamental

character." United States v. Woodward (Woodward III), No. 17-

12036, 2017 WL 4684000, at *4 (D. Mass. Oct. 18, 2017) (quoting

United States v. George, 676 F.3d 249, 254 (1st Cir. 2012)). So

too did it acknowledge that even if a petitioner meets those three

criteria, "the court retains discretion over the ultimate decision

to grant or deny the writ." Id. (quoting George, 676 F.3d at 255).

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The district court then applied these requirements to Woodward's

petition.

First, the district court, observing that Woodward had

brought his petition approximately six months after the Supreme

Court decided McDonnell, held that Woodward had adequately

explained his failure to seek earlier relief. Id. at *4. Second,

the district observed that "[i]t remains an open question in the

First Circuit whether the loss of pension benefits can qualify as

a significant collateral consequence." Id. at *5. Nonetheless,

it found that "the loss of a pension could constitute a significant

collateral consequence and that vacation of Woodward's conviction

would likely eliminate the grounds for that consequence," and

therefore declined to deny relief on the basis of that prong. Id.

at *6. Third, after reviewing the evidence that the government

introduced during Woodward's trial and the jury instructions from

that trial, the district court found Woodward's conviction to be

compatible with McDonnell, and therefore could not amount to an

error "of the most fundamental character." Id. at *6-10. Fourth

and finally, the district court -- highlighting that Woodward had

flouted the state-law requirement that he disclose the gratuities

he received -- added that "the interests of justice do not justify

the issuance of a writ of coram nobis" to Woodward. Id. at *10.

Woodward has appealed this decision to us.

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 II.

Woodward argues that, contrary to what the district

court concluded, his convictions for honest-services mail and wire

fraud now amount to fundamental legal error in light of McDonnell.

Both the federal mail and wire fraud statutes require,

among other things, that the defendant have executed a "scheme or

artifice to defraud." 18 U.S.C. §§ 1341, 1343. 18 U.S.C. § 1346,

in turn, provides that "the term 'scheme or artifice to defraud'

includes a scheme or artifice to deprive another of the intangible

right of honest services." This includes depriving "the public

of its right to the honest services of its legislators." Woodward

I, 149 F.3d at 55. In McDonnell, the parties "agreed that they

would define honest services fraud with reference to the federal

bribery statute, 18 U.S.C. § 201." 136 S. Ct. at 2365. It is

implicit in the parties' arguments here that we should do the same.

The federal bribery statute imposes criminal liability on any

"public official" who "corruptly demands, seeks, receives,

accepts, or agrees to receive or accept anything of value . . . in

return for . . . being influenced in the performance of any

official act." 18 U.S.C. § 201(b)(2)(A). It defines "official

act" as "any decision or action on any question, matter, cause,

suit, proceeding or controversy, which may at any time be pending,

or which may by law be brought before any public official, in such

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official's official capacity, or in such official's place of trust

or profit." Id. § 201(a)(3).

McDonnell turned on whether the defendant, the former

governor of Virginia, had performed "official acts" within this

definition in exchange for various loans and gifts he had received

from the CEO of a Virginia-based company. 136 S. Ct. at 2362, 2365.

The Supreme Court rejected the government's argument for a broad

definition of that term -- which, according to the Court, would

have "encompasse[d] nearly any activity by a public official" --

in favor of a more "bounded interpretation." Id. at 2367-68. The

Supreme Court set forth that definition in this way. First, it

recalled that "an 'official act' is a decision or action on a

'question, matter, cause, suit, proceeding or controversy.'" Id.

at 2371 (quoting 18 U.S.C. § 201(a)(3)). It then explained that

"[t]he 'question, matter, cause, suit, proceeding or controversy'

must involve a formal exercise of governmental power that is

similar in nature to a lawsuit before a court, a determination

before an agency, or a hearing before a committee." Id. at 2372.

The Court added that "[i]t must also be something specific and

focused that is 'pending' or 'may by law be brought' before a

public official." Id. Finally, the Court stressed that "[t]o

qualify as an 'official act,' the public official must make a

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decision or take an action on that 'question, matter, cause, suit,

proceeding or controversy,' or agree to do so." Id.

According to Woodward, the trial court's jury

instructions and the body of evidence that the jury heard during

his trial both illustrate that, after McDonnell, his conviction

amounts to a "fundamental legal error" calling for coram nobis

relief. We consider these arguments in turn, reviewing the district

court's treatment of them de novo. See George, 676 F.3d at 256.

A.

We begin with Woodward's claim that the trial court's

jury instructions cannot be squared with McDonnell. Those

instructions explained the "official act" requirement in this way:

An official act means any decision or action in the
enactment of legislation. The Government doesn't have
to show a specific link between a specific item of
substantial value and a specific act to be done by
the legislator. In other words, the Government does
not have to show that there was an agreement requiring
the legislator to perform certain specified official
acts in exchange for the gratuity. The Government
must prove either that the legislator accepted or
received the gratuity with the intent to be influenced
in the future performance of official duties or that
the legislator was influenced in the performance of
official duties by the intention that a gratuity would
be received.

According to Woodward, these instructions are

impermissibly expansive in light of McDonnell. For support, he

leans on the Second Circuit's decision in United States v. Silver.

See 864 F.3d 102 (2d Cir. 2017). That case involved a post-

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McDonnell challenge to jury instructions defining an "official

action" as "any action taken or to be taken under color of official

authority." Id. at 112 (emphasis omitted). The Second Circuit

found that definition incompatible with McDonnell, as it "captured

lawful conduct, such as arranging meetings or hosting events with

constituents." Id. at 118.

The instructions at issue in Silver are not comparable

to the instructions that the trial court gave the jury at the end

of Woodward's trial. Critically, while the Silver instructions

defined "official acts" as encompassing "any action taken . . .

under color of official authority," the instructions in Woodward's

case provided the much narrower definition, "any decision or action

in the enactment of legislation." Requiring a tie to the

"enactment of legislation" also seems to substantially satisfy

McDonnell's definition of "official act." See 136 S. Ct. at 2371-

72. The enactment of legislation certainly qualifies as involving

a "formal exercise of governmental power" pertaining to a

"question, matter, cause, suit, proceeding or controversy" that is

"pending . . . before a public official." See id. The only

manner we discern in which the instructions may not have comported

with McDonnell concerns whether "any decision or action in the

enactment of legislation" would leave room for acts falling outside

of McDonnell's definition.

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 We appreciate the existence of arguments that this

language may not precisely comport with McDonnell. Yet we also

recall that we do not find ourselves amid a direct appeal from

Woodward's conviction, which would call for us to review de novo

whether the trial court's instructions correctly captured the

relevant law. See United States v. Sasso, 695 F.3d 25, 29 (1st

Cir. 2012). Rather, the question before us is whether Woodward's

conviction is the result of a fundamental legal error requiring us

to dispense the "strong medicine" of coram nobis relief, see

George, 676 F.3d at 254 -- which, the Supreme Court has cautioned,

is an "extraordinary remedy," United States v. Morgan, 346 U.S.

502, 511 (1954). Below, in analyzing whether Woodward's challenge

to the jury instructions called for granting coram nobis relief,

the district court reasoned "[o]f course, because my instructions

were issued twenty years before McDonnell was decided, the

operative language in them is not perfectly congruent with

McDonnell, but I nevertheless conclude that my definition of

'official act' sufficiently captured the concerns later addressed

in McDonnell." Woodward III, 2017 WL 4684000, at *9. We agree.

To the extent that the jury instructions at Woodward's trial did

not perfectly anticipate McDonnell, the daylight between those two

definitions of "official acts" is so slight that we cannot say we

are before "an error of 'the most fundamental character.'"

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George, 676 F.3d at 256 (quoting Hager v. United States, 993 F.2d

4, 5 (1st Cir. 1993); see also Morgan, 346 U.S. at 512.

B.

We now turn to Woodward's arguments concerning the

evidence that the government introduced against him at trial,

beginning with a review of what exactly the government needed to

prove to secure a conviction.

To convict Woodward of honest-services mail and wire

fraud, the government needed to show that he was engaged in bribery

within the statute of limitations period. The statute of

limitations period began on July 27, 1990, and Woodward left the

Committee on January 19, 1991. Woodward I, 149 F.3d at 52. Citing

United States v. Silver, the district court explained -- and

Woodward does not contest on appeal -- that "even after McDonnell,

the government 'need not prove that an official act occurred within

the statute of limitations period.'" Woodward III, 2017 WL

4684000, at *7 (quoting United States v. Silver, 864 F.3d 102, 122

(2d Cir. 2017)). "Rather," it added, "the government 'need only

prove that some aspect of the particular quid pro quo scheme

continued into the statute of limitations period.'" Id. (quoting

Silver, 864 F.3d at 122).

Additionally, to convict Woodward, the government did

not need to prove a tight nexus between any particular gratuity

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and a specific official act. Rather, "[b]ribery can be accomplished

through an ongoing course of conduct, so long as the evidence shows

that the 'favors and gifts flowing to a public official [are] in

exchange for a pattern of official actions favorable to the

donor.'" United States v. McDonough, 727 F.3d 143, 154 (1st Cir.

2013) (second alteration in original) (quoting United States v.

Ganim, 510 F.3d 134, 149 (2d Cir. 2007)). Such a theory of bribery

is known as a "stream of benefits" theory. See United States v.

López-Cotto, 884 F.3d 1, 8 (1st Cir. 2018) (describing a "'stream

of benefits' prosecution approach" as one "wherein a government

official is charged with entering into an ongoing agreement to

accept benefits in exchange for providing government business to

the briber").

In synthesis, the evidence remains sufficient to convict

Woodward, even when applying McDonnell, so long as it would have

allowed a jury reasonably to conclude that he was engaged in a

quid pro quo scheme in which he received gratuities in exchange

for one or more official acts, and that he either received

gratuities or committed an official act during the statute of

limitations period. The statute of limitations period, once more,

began on July 27, 1990.

The district court's discussion of the relevant evidence

-- which led it to conclude that the jury could have found Woodward

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to have carried out some aspect of the quid pro quo scheme during

the statute of limitations period -- is useful to review here.

First, the district court put forth that "[a] reasonable jury could

have found that Woodward undertook 'official acts' for the benefit

of Sawyer and Hancock" during the statute of limitations period.

Woodward III, 2017 WL 4684000, at *6. Specifically, it referred

to our explanation in Woodward I that

each year from 1985 through 1990, the legislature
considered a bill proposing mandatory discounts on
life insurance for non-smokers. Hancock and LIAM
opposed the bill. In 1989, the bill received
favorable recommendation from the Insurance Committee
based on support from Senator Linda Melconian,
Woodward’s co-chair of the Committee. But despite the
Committee’s favorable report, Woodward led the
opposition to the bill in debate before the full House
of Representatives, and was successful in defeating
the so-called "non-smoker’s bill" for that session.
Hancock’s vice-president, who directly supervised
Sawyer, called the bill’s defeat a "significant
victory for the industry."

Id. (quoting Woodward I, 149 F.3d at 60). The district court

reasoned that "[l]eading the opposition to a major piece of

legislation plainly qualifies as an 'official act' under

McDonnell." Id. As further evidence of pre-statute-of-limitations-

period official acts, the district court highlighted the "many

instances where Woodward 'carried' pro-insurance bills through the

legislative process after they left the [C]ommittee." Id. And it

highlighted that in Woodward I, we held that "the jury was entitled

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to believe . . . that 'carrying' means actively guiding a bill

through the process; it is not merely ministerial." Id. (quoting

Woodward I, 149 F.3d at 61).

Second, the district court added that the evidence would

also have allowed the jury to find that Woodward had undertaken an

official act for Sawyer's benefit during the statute of limitations

period. See id. at *7. This evidence also pertained to the non-

smoker's bill. As we summarized in Woodward I:

As evidence of Woodward's post-gratuity activity, the
government points to Woodward's action with respect
to S. 641, which proposed premium reductions in life
insurance for policyholders who were non-smokers.
The bill was originally reported favorably out of the
Insurance Committee on May 7, 1990. Then on July 24,
1990, just before becoming law, the House of
Representatives recommitted the bill to the Insurance
Committee. The effect of a bill's recommittal is that
both chairs would have to act in order for the bill
to be released. The bill languished in the Insurance
Committee with no further action taken through
January 1, 1991, after Woodward received . . .
gratuities and prior to his removal as co-chair.
Woodward's cochair, Senator Melconian, had actively
supported the 1989 bill by requesting a favorable
recommendation from the Insurance Committee. The
jury could, therefore, reasonably have inferred that
Woodward prevented any further action on S. 641,
because in the previous year he led the floor debate,
on behalf of Hancock and LIAM, against a similar non-
smokers bill.

Woodward I, 149 F.3d at 66.

Third, the district court found that "the record is clear

that Woodward received benefits from Sawyer after July 27, 1990."

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Woodward III, 2017 WL 4684000, at *7. For support, it pointed to

our observation in Woodward I that

After entertaining Woodward for several days at the
Scottsdale COIL conference in 1991, Sawyer left the
conference early, but left his credit card to be used
for paying Woodward's golf and meal expenses during
the remainder of the conference. This is not
consistent with mere friendship as the sole purpose
of these payments, but rather is more consistent with
the theory of a gratuity made because of Woodward’s
potential official actions.

See id. (quoting Woodward I, 149 F.3d at 58). So too did the

district court make reference to our conclusion in Woodward I that

the jury could have reasonably found Sawyer to have provided

gratuities to Woodward at a conference in Orlando in November of

1990. Id. We also add that, in Woodward I, we found the evidence

to show that Woodward began receiving gratuities from Sawyer before

the statute of limitations period -- as early as in 1984. Woodward

I, 149 F.3d at 52.

In light of all of this evidence, the district court

concluded that "a reasonable jury could have found [that] Woodward

committed quid pro quo bribery" during the statute of limitations

period, McDonnell's narrower definition of "official acts"

notwithstanding. Woodward III, 2017 WL 4684000, at *6. Woodward

disagrees. He argues that, in denying his petition below, the

district court relied on a "stream of benefits" theory of bribery

that is no longer valid. Specifically, he asserts that "after

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McDonnell, the stream of benefits theory does not relieve the

government of its burden to identify and prove the specific

official acts that Woodward intended to perform with a corrupt

intent." But this is incorrect. Woodward stresses that a discussion

of the "stream of benefits" theory is "conspicuously absent from

the McDonnell opinion," suggesting that McDonnell implicitly

invalidated that theory. We think, though, that a better reading

of McDonnell indicates that the Court did not discuss the "stream

of benefits" theory not out of disapproval of it, but rather

because it was not implicated in that case. Indeed, McDonnell

hinged on whether the trial court had provided too broad a

definition of "official acts" in its jury instructions. 136 S.

Ct. at 2374. The Court did not take up whether the government had

adequately proven a nexus between the gratuities he received and

the acts he allegedly undertook as a result. Thus, we remain

confident that a "stream of benefits" theory of bribery remains

valid today. Woodward is therefore unsuccessful in arguing that

coram nobis relief is necessary because his conviction rested on

such a theory.

Woodward next argues that the district court below

incorrectly identified his role in tanking the non-smokers bill as

a post-McDonnell official act. But Woodward cannot get out from

under our holding in Woodward I that the jury could "reasonably

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have inferred that [in 1990,] Woodward prevented any further action

on S. 641, because in the previous year he led the floor debate,

on behalf of Hancock and LIAM, against a similar non-smokers bill."

149 F.3d at 66. And actively preventing a vote to take place on

a particular piece of proposed legislation falls well within

McDonnell's definition of "official acts." See 136 S. Ct. at

2371-72.

Woodward likewise contests the notion that "carrying"

bills once they had left the Committee qualifies as an official

act. We disagree. For in Woodward I, as the district court

noted, we held that the evidence would have permitted the jury to

conclude that "'carrying' mean[s] actively guiding a bill through

the process," as opposed to being "merely ministerial" in nature.

Woodward I, 149 F.3d at 61. Furthermore, even if that were not

so, it would not mean that Woodward's conviction was the product

of error. Independent of Woodward's carrying of pro-industry bills

through the legislative process, his opposition to S. 641 -- which

Hancock did not want to pass -- supplies another official act

during the statute of limitations period that a jury could

reasonably have found him to have undertaken in exchange for the

gratuities he received.1

1 In a post-argument letter submitted pursuant to Federal Rule of
Appellate Procedure 28(j), Woodward brought to our attention
United States v. Fattah, No. 16-4397, 2018 WL 3764543 (3d Cir.

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 Lastly, Woodward asserts that coram nobis relief from

his conviction is also imperative in light of Skilling v. United

States -- in which the Supreme Court held that honest-services

fraud does not include "undisclosed self-dealing" or the failure

to disclose conflicts-of-interest. See 561 U.S. at 409-11. But

this likewise does not provide us with occasion to grant that

relief. The Supreme Court's decision in Skilling, which is now

eight years old, formed the basis of Woodward's first coram nobis

petition. The district court denied that petition, and Woodward

did not appeal. Insofar as Woodward hasn't waived any Skilling-

based argument, we cannot say that, in invoking that case now, he

Aug. 9, 2018). Woodward argues that Fattah rejected two
propositions "advanced generally by the government" in this case:
1) that a conviction can stand when only one of various "official
acts" charged met McDonnell requirements; and 2) the government's
theory of a "pattern" of unspecified acts, as both allowed the
jury to convict on acts insufficient under McDonnell. We will not
discuss now whether these points correctly interpret Fattah or
properly describe the government's theories, as in any case, they
are inapplicable: we have determined here that the acts Woodward
challenged could constitute "official acts" under McDonnell that
a jury could reasonably have concluded Woodward undertook in
exchange for the gratuities he received. This is the case with:
1) Woodward's role in tanking the non-smokers bill; and 2)
Woodward's "carrying" of pro-industry bills through the
legislative process. See supra at 17-18. Additionally, while
Fattah stemmed from a direct appeal, the bar to grant coram nobis
relief is much higher. Hence, nothing in Fattah persuades us to
depart from our conclusion that Woodward failed to demonstrate
that his conviction is the result of a fundamental error.

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has adequately "explain[ed] his failure to seek earlier relief

from the judgment." George, 676 F.3d at 254.

Woodward, therefore, has failed to show that his

conviction is the result of a fundamental legal error that would

render the extraordinary post-conviction remedy of coram nobis

relief appropriate.

III.

Because Woodward has not demonstrated that his

conviction is the result of any fundamental error, he cannot

prevail in his petition for coram nobis relief. We, therefore,

"decline to exercise [our] discretion so as to disturb a judgment

that has long since become final." Id. at 260.

Affirmed.

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