United States v. Kilmartin

United States Court of Appeals
For the First Circuit

No. 18-1513

UNITED STATES OF AMERICA,

Appellee,

v.

SIDNEY P. KILMARTIN,

Defendant, Appellant.

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

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

Barron, Selya, and Boudin,
Circuit Judges.

Jamesa J. Drake, with whom Drake Law LLC was on brief, for
appellant.
Benjamin M. Block, Assistant United States Attorney, with
whom Halsey B. Frank, United States Attorney, was on brief, for
appellee.

December 6, 2019
 SELYA, Circuit Judge. This appeal arises against the

backdrop of a criminal scheme that was as cruel as it was cynical.

When the scheme came to light, a federal grand jury sitting in the

District of Maine charged defendant-appellant Sidney P. Kilmartin

with an array of offenses. The defendant pleaded guilty to nine

fraud-related counts and went to trial on the remaining six counts

of the superseding indictment (one charging mailing injurious

articles resulting in death, see 18 U.S.C. § 1716; two charging

wire fraud, see id. § 1343; one charging mail fraud, see id.

§ 1341; one charging witness tampering, see id. § 1512; and one

charging witness retaliation, see id. § 1513). The jury found the

defendant guilty on five of the six tried counts, acquitting him

of witness retaliation. The district court denied the defendant's

post-trial motion for judgment of acquittal and/or a new trial.

It then sentenced him to concurrent terms of immurement on the

fourteen counts of conviction.

In this venue, the defendant raises a golconda of issues.

We hold that the evidence was sufficient to convict on the tried

"mailing injurious articles" and witness tampering counts (counts

1 and 14). With respect to those counts and the fraud-related

counts involving Denton (counts 5, 7, and 12), all of which were

tried, we hold that the district court abused its discretion in

admitting highly charged evidence having powerfully prejudicial

effect but scant probative value. Given the strength of the

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government's evidence of guilt, this error, though egregious, was

harmless as to most of the tried counts. However, as to count 14

(the witness tampering count) the error was not harmless, and we

order a new trial on that count. Finally, we reject the

defendant's claim of sentencing error. The tale follows.

I. BACKGROUND

We briefly rehearse the background and travel of the

case, taking the facts in the light most congenial to the

government, consistent with record support. See, e.g., United

States v. Singh, 222 F.3d 6, 8 (1st Cir. 2000).

In September of 2012, the defendant falsely posed as a

commercial goldsmith to order one hundred grams (at least five

hundred lethal doses) of ninety-eight percent pure potassium

cyanide (cyanide) from a California vendor. The cyanide cost him

about $127. Because the vendor would not ship the cyanide to a

residential address, the defendant had it sent to a UPS store in

Augusta, Maine. He retrieved the merchandise on the day that it

arrived.

The defendant's next step was to create a Gmail account,

which allowed him to blog. He proceeded to post, on a website for

suicidal people called "wantdeathblogspot," that he had

industrial-grade cyanide for sale. From around September of 2012

until approximately May of the following year, the defendant

exchanged cyanide-related emails with people all over the world,

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including Australia, Canada, India, Nigeria, South Africa, the

United Kingdom, and the United States. A subsequent search of the

defendant's Gmail account revealed 484 email strings from about

274 unique email addresses. In these emails, the defendant agreed

to sell cyanide to several persons from whom he received payments

ranging from $150 to $250. But there was a rub: instead of

mailing cyanide to these purchasers, the defendant sent them Epsom

salts (which he represented to be cyanide).

One of the defendant's duped customers was Andrew Denton

of Hull, England. According to his niece, Denton "was just adamant

that he wanted to commit suicide." Denton ordered cyanide from

the defendant, who mailed Epsom salts to him on November 16, 2012.

The parcel arrived at the end of November, and Denton ingested the

substance in an effort to kill himself. The attempt failed, and

an irate Denton complained to the FBI Internet Crime Complaint

Center (IC3).

In his complaint, Denton described his dealings with the

defendant, noting that what he received could not have been cyanide

since "[i]t did not work." Denton also advised the defendant about

the IC3 complaint. On December 8, 2012, the defendant emailed

Denton, mentioned the possibility of a second shipment, and

described how Denton could order cyanide directly from the

California vendor "if all else fails." The following day, Denton

updated his IC3 complaint, stating that his issue had been resolved

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and he did not wish to pursue his complaint. Two days later, the

defendant mailed a second parcel to Denton.

The second parcel, which actually contained cyanide,

arrived on December 20. That same day, the defendant emailed

Denton asking if Denton could "do something" with his hard drive

"before [his] event." Expressing concern about the FBI being

"aware of [his] goings on," the defendant stated that "the last

thing" he needed was "to give [the FBI] more fodder." Denton

replied that he would delete their emails, explained his

understanding that the IC3 complaint would remain open but inactive

for three months, and expressed his hope that the cyanide would

"work[] this time." Denton's niece found him dead on December 31.

Subsequent toxicological examination disclosed lethal levels of

cyanide in his blood.

Notwithstanding Denton's effort to retract his

complaint, the FBI continued its investigation. This probe ripened

into an indictment and — in December of 2015 — the grand jury

returned a superseding indictment. Count 1 limned the "mailing

injurious articles" charge; counts 2 through 13 charged wire and

mail fraud offenses (based on a scheme to defraud suicidal people

and to obtain money by false pretenses, specifically, by pretending

to sell cyanide but sending Epsom salts instead);1 count 14 charged

1 Three of these fraud counts related to the defendant's
initial transaction with Denton. The remainder related to the

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the defendant with witness tampering, that is, with killing Denton

knowingly, intending to prevent his testimony in an official

proceeding and to prevent him from communicating information

related to the possible commission of a federal offense to a law

enforcement officer; and count 15 charged the defendant with

witness retaliation, that is, killing Denton to retaliate for

Denton's supplying of information to IC3 regarding the commission

of a federal offense.

The defendant's trial was scheduled to start on October

3, 2016. That morning, the defendant entered guilty pleas to the

nine non-Denton counts. The trial went forward on the remaining

six counts. Four of the defendant's fraud victims testified for

the government (including one as to whom the defendant's fraud had

not been charged). A victim's grandmother also testified at the

government's behest about the uncharged fraud perpetrated against

her minor granddaughter. In addition, the government introduced

testimony from a British detective about yet another victim.

When the trial concluded, the jury convicted the

defendant on all the tried counts, save for count 15 (witness

retaliation). In post-trial proceedings, the defendant moved for

defendant's communication with, receipt of payment from, and
mailing Epsom salts to four other victims of the scheme. We
sometimes refer to the counts involving these four victims,
collectively, as the non-Denton counts and to victims of the
scheme, other than Denton, as non-Denton victims.

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judgments of acquittal on counts 1 and 14 due to allegedly

insufficient evidence. See Fed. R. Crim. P. 29(c). In the same

motion, he sought a new trial on all of the tried counts of

conviction based on claimed evidentiary error. See id. R. 33.

The district court denied the motion in all its aspects. It then

sentenced the defendant to twenty years of incarceration (the

statutory maximum) on each fraud-related count and twenty-five

years of incarceration on counts 1 and 14, stipulating that all of

the sentences were to run concurrently. This timely appeal

followed.

II. ANALYSIS

The defendant's asseverational array contains three main

parts. First, he argues that the district court erred in refusing

to order judgments of acquittal on counts 1 and 14. Second, he

argues that the district court should have excluded certain

evidence and that the failure to do so unfairly prejudiced the

jury against him, necessitating a new trial on all the tried counts

that resulted in convictions. Third, he alleges sentencing error

as to the sentences imposed on the fraud-related counts. We

address these arguments below.

Before undertaking our analysis, we pause to confirm

that we review the district court's denial of a motion for judgment

of acquittal de novo. See United States v. Gomez, 255 F.3d 31, 35

(1st Cir. 2001). Where, as here, the defendant challenges the

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sufficiency of the evidence, all of the proof "must be perused

from the government's perspective." Id. A reviewing court must

determine whether that evidence, including the plausible

inferences therefrom, "enables a rational factfinder to conclude

beyond a reasonable doubt that the defendant committed the charged

crime." Id. (quoting United States v. Noah, 130 F.3d 490, 494 (1st

Cir. 1997)). The court need not be convinced that the verdict is

correct; it need only be satisfied that the verdict is supported

by the record. See id.

Although the defendant's motion for judgment of acquittal

targets both count 1 and count 14, the circumstances attendant to

this appeal counsel in favor of bifurcating our inquiry. Thus, we

treat separately each of the targeted counts.

A. Judgment of Acquittal: Count 1.

It is not possible to address the motion for judgment of

acquittal on count 1 in a vacuum. First, we must resolve a

threshold issue. Only then can we turn to the merits of the

request for an acquittal. Specifically, we must resolve an

apparent discrepancy between the indictment and the proof at trial.

1. Constructive Amendment. As stated in the superseding

indictment, count 1 charged the defendant with a misdemeanor

(mailing nonmailable poison), together with an enhancement for

"death resulting." The indictment itself did not allude to a mens

rea requirement. At trial, though, the parties and the district

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court approached count 1 as if it charged a felony under a

different paragraph of the "mailing injurious articles" statute.

That paragraph requires the government to show that the defendant

had mailed an injurious article with the intent to kill or injure

another. The government labored to prove this intent at trial,

both parties requested that the district court instruct the jury

on this intent element, and the district court obliged. As

explained below, this series of events added up to a constructive

amendment of count 1.

"A constructive amendment occurs when the charging terms

of an indictment are altered, either literally or in effect, by

prosecution or court after the grand jury has last passed upon

them." United States v. McIvery, 806 F.3d 645, 652 (1st Cir. 2015)

(quoting United States v. Brandao, 539 F.3d 44, 57 (1st Cir.

2008)). Constructive amendments have Fifth and Sixth Amendment

implications. See id. These implications typically arise from "a

mismatch between the indictment's description of the charged

offense and some other variable," such as the evidence offered,

the jury instructions given, or the sentence imposed. Id.

In this instance, the statute of conviction provides in

relevant part:

(1) Whoever knowingly deposits for
mailing or delivery . . . anything declared
nonmailable by this section, unless in
accordance with the rules and regulations
authorized to be prescribed by the Postal

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 Service, shall be fined under this title or
imprisoned not more than one year, or both.
(2) Whoever knowingly deposits for
mailing or delivery . . . anything declared
nonmailable by this section, whether or not
transmitted in accordance with the rules and
regulations authorized to be prescribed by the
Postal Service, with intent to kill or injure
another . . . shall be fined under this title
or imprisoned not more than twenty years, or
both.
(3) Whoever is convicted of any crime
prohibited by this section, which has resulted
in the death of any person, shall be subject
also to the death penalty or to imprisonment
for life.

18 U.S.C. § 1716(j). Count 1 of the superseding indictment, by its

terms, charged the defendant with the misdemeanor offense

described in (j)(1) along with the sentencing enhancement

described in (j)(3):

[T]he defendant . . . knowingly deposited for
mailing and delivery something declared
nonmailable . . . not in accordance with rules
and regulations prescribed by the United
States Postal Service, in other words,
potassium cyanide, a poison, which resulted in
the death of a person . . . . All in violation
of 18 U.S.C. § 1716(j)(3).

At trial, however, the parties and the district court treated count

1 as if the offense was charged under (j)(2) and (j)(3), not (j)(1)

and (j)(3).2 During its preliminary instructions, the district

court told the jurors that in order to find the defendant guilty

2 Although the record is tenebrous as to the reason for this
shift in focus, we note that the original indictment (later
superseded) clearly charged the defendant with violating paragraph
(j)(2).

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under count 1, they had to find, among other things, that the

defendant acted "with the intent to kill or injure another." The

jury instructions proposed by both the government and the defendant

included this "intent to kill or injure another" element. Not

surprisingly, then, the district court mirrored this language in

defining the elements of count 1 when it charged the jury.

Although the constructive amendment of an indictment may

constitute grounds for reversal of a conviction, see United States

v. Bucci, 525 F.3d 116, 131 (1st Cir. 2008); cf. McIvery, 806 F.3d

at 651 (reviewing unpreserved claim of constructive amendment for

plain error), the defendant has not raised this issue on appeal

(or, for that matter, in the district court). Except in rare

instances — and this is not one of them — we have no duty to raise

arguments for a party who has not seen fit to raise those arguments

himself. See, e.g., United States v. Flete-Garcia, 925 F.3d 17,

38 (1st Cir.), cert. denied, No. 19-5757, 2019 WL 5150648 (U.S.

Oct. 15, 2019); cf. United States v. Mercado-Flores, 872 F.3d 25,

28 (1st Cir. 2017) (noting appellate court's obligation to raise

jurisdictional issues sua sponte). At any rate, the constructive

amendment did not prejudice the defendant in any respect because

it had the effect of adding another element that the government

was required to prove beyond a reasonable doubt. We therefore

conclude that count 1 was constructively amended with the implied

consent of the parties. We proceed accordingly.

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 2. The Merits. Having ironed out this wrinkle, we now

reach the question of whether the evidence was sufficient to

support the defendant's conviction on count 1 (as constructively

amended). To begin, it is important to note that the defendant

challenges the sufficiency of the evidence only with respect to

the "death resulting" element of the offense. He contends that

his conduct was neither the actual nor the proximate cause3 of

Denton's death because Denton voluntarily took his own life.

The defendant's conduct is an actual, but-for cause of

harm when that harm would not have occurred without it. See United

States v. Ortiz-Carrasco, 863 F.3d 1, 5 (1st Cir. 2017) (concluding

that defendant's conduct was but-for cause of victim's drowning

where defendant embarked on voyage on overcrowded yola, traveled

in rough seas in the dark, and had no safety equipment aboard).

But-for causation is often regarded as "the minimum requirement

for a finding of causation." Id. (emphasis in original) (quoting

Burrage v. United States, 134 S. Ct. 881, 888 (2014)). A

defendant's conduct can be a but-for cause of harm even when it

3 The defendant's briefing on this point is confusing. For
instance, his reply brief indicates that this "case is about actual
causation, not . . . proximate causation." Yet his opening brief
contends at some length that Denton's own conduct "was an
intervening and superseding cause" of Denton's death. In fairness
to the defendant, we think that this latter argument remains in
the case — and it is steeped in the language of proximate cause.
See, e.g., 1 Wayne R. LaFave, Substantive Criminal Law § 6.4(c)
(3d ed. 2018).

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combines with other independent causes. See Burrage, 134 S. Ct.

at 888. As Justice Scalia explained: "if poison is administered

to a man debilitated by multiple diseases, it is a but-for cause

of his death even if those diseases played a part in his demise,

so long as, without the incremental effect of the poison, he would

have lived." Id.

Appraising the evidence in the light most favorable to

the government, it was more than sufficient to ground a finding

that the defendant's conduct was a but-for cause of Denton's

demise. The jury saw the empty beaker and the mailer with the

defendant's return address recovered from Denton's home, and it

heard evidence of test results indicating that the residue in the

mailer was cyanide. So, too, the jury heard evidence that a lethal

quantity of cyanide had been discovered in Denton's blood.

Finally, the jury heard testimony from investigators who had

determined Denton's death to be a suicide and had ruled out other

causes of death. If the defendant had not sent Denton a deadly

dose of cyanide, the defendant could not have ingested it and died.

No more was exigible to ground a finding that the defendant's

conduct was a but-for cause of Denton's death.

The defendant rejoins that this conception of the chain

of causation is too "literal" and that Denton's actions in mixing

and ingesting the poison were intervening events that broke the

but-for causal connection. This rejoinder blinks reality.

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Although Denton's desire to end his life surely played a part in

his suicide, he would not have been successful but for the

defendant's provision of cyanide. Viewing the evidence in the

requisite light, a rational factfinder could conclude — as this

jury did — that the defendant actually caused Denton's death.

In an effort to change the trajectory of the debate, the

defendant tries to invoke the rule of lenity. Marshaling a

sampling of cases in which defendants were charged with mailing

explosives under 18 U.S.C. § 1716, see, e.g., United States v.

Caraway, 534 F.3d 1290, 1292-93 (10th Cir. 2008), the defendant

baldly asserts that Congress did not intend the statute to cover

cases of assisted suicide. This assertion is belied by the broad

sweep of the language that Congress employed. Arraying the

evidence favorably to the government — as we must — the defendant's

actions fall squarely within the four corners of the conduct that

the text of the statute proscribes.

Undaunted, the defendant claims that the rule of lenity

requires construing the statute, notwithstanding its text, to

exclude the conduct with which he was charged. This is wishful

thinking. The rule of lenity only requires reading a criminal

statute in the accused's favor when that statute is so unclear

that courts are left to guess what Congress intended. See United

States v. Ahlers, 305 F.3d 54, 62 (1st Cir. 2002). To engage the

gears of the rule, the lack of clarity must be genuine: "a statute

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is not ambiguous simply because litigants . . . question its

interpretation." Id.

The defendant argues that section 1716 is ambiguous

because (in his view) it is meant to cover things like bombs (which

are mailed to unwitting victims and kill immediately), not things

like the cyanide (which he mailed to a person who specifically

requested it and which kills only after some further act, such as

ingestion). The text of the statute of conviction does not give

this argument as much as a shred of support. As written, the

statute has a plain and plausible meaning. It unambiguously

prohibits mailing not only things like bombs but also poisons,

insects, and scabs (which do not necessarily kill immediately).

The sentencing enhancement applies whenever mailing such an

injurious article "result[s] in the death" of a person. That

enhancement, read in context, is not ambiguous and does not permit

the distinction that the defendant attempts to insinuate into it.

In short, both the superseding indictment (as constructively

amended) and the government's proof bring count 1 comfortably

within the statute's well-defined reach. And because we discern

no relevant ambiguity, we find no basis for resorting to the rule

of lenity. See id.

As a fallback, the defendant attempts to argue that the

proper measure of causation was proximate cause (a more rigorous

standard). See, e.g., Paroline v. United States, 134 S. Ct. 1710,

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1719 (2014). This argument, though, is foregone. During the

charge conference, a protracted discussion ensued about the

propriety of a but-for causation instruction as the appropriate

means of establishing the "death resulting" element under count 1.

Defense counsel told the court that he could not "argue that it

isn't the law." The district court proceeded to instruct on but-

for causation, and the defendant neither interposed an objection

nor asked for a proximate cause instruction. Cf. Fed. R. Crim. P.

30 (providing that parties may request specific instructions at or

before close of evidence and must object to instructions given

before jury retires to deliberate).

"We have made it luminously clear that '[a] party waives

a right when he intentionally relinquishes or abandons it.'"

United States v. Orsini, 907 F.3d 115, 119 (1st Cir. 2018)

(alteration in original) (quoting United States v. Rodriguez, 311

F.3d 435, 437 (1st Cir. 2002)). As a general rule, waived claims

are unreviewable on appeal. See id. In this instance, the

defendant waived any entitlement to a proximate cause instruction.

What happened here falls comfortably within the general rule of

unreviewability, not within the long-odds exception to that rule.

See id. at 120-21. By explicitly acquiescing in the

appropriateness of a but-for causation standard, eschewing any

objection to the district court's but-for causation instruction,

and failing to request a proximate cause instruction, the defendant

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waived any claim that the offense of conviction required a finding

of proximate cause.

If more were needed — and we doubt that it is — "[i]t is

settled that, when a cause is submitted to the jury under an

instruction, not patently incorrect or internally inconsistent, to

which no timely objection has been lodged, the instruction becomes

the law of the case." United States v. Gomes, 969 F.2d 1290, 1294

(1st Cir. 1992); see United States v. Zanghi, 189 F.3d 71, 77-80

(1st Cir. 1999) (concluding that jury instruction increasing level

of intent required to convict was "patently erroneous" and did not

become the law of the case). That is precisely the situation here:

the district court's treatment of causation in its charge to the

jury was neither patently incorrect nor internally inconsistent.

The court instructed on but-for causation, consistent with case

law interpreting similarly worded "results" elements in other

criminal statutes. See, e.g., United States v. Webb, 655 F.3d

1238, 1250, 1255-56 (11th Cir. 2011) (18 U.S.C. § 1347(a) and 21

U.S.C. § 841(b)(1)(C)); United States v. De La Cruz, 514 F.3d 121,

137-38 (1st Cir. 2008) (21 U.S.C. § 841(b)(1)(A)); cf. United

States v. Pacheco, 489 F.3d 40, 46-47 (1st Cir. 2007) (interpreting

USSG §5K2.2's authorization of upward departure when significant

physical injury resulted from commission of offense of

conviction). Thus, all roads lead to Rome: whether we examine

the defendant's proximate cause argument in terms of waiver or

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law-of-the-case doctrine, a conviction on count 1 required the

government to prove no more than but-for causation.

The final piece of the puzzle falls easily into place.

As we already have elaborated, the jury had ample evidence from

which to find that the defendant's conduct was the but-for cause

of Denton's death. Consequently, the district court did not err

in denying the defendant's motion for judgment of acquittal with

respect to count 1.

B. Judgment of Acquittal: Count 14.

The defendant also challenges the denial of his motion

for judgment of acquittal with respect to count 14 (the witness

tampering count). In his view, the evidence on this count was

insufficient for two reasons. First, he contends that the

government's proof was inadequate because it did not show that his

conduct actually or proximately caused Denton's death. Second, he

contends that the evidence was inadequate to show that he "killed"

Denton within the purview of the statute of conviction. We address

each contention in turn.

The statute of conviction provides in relevant part:

(a)(1) Whoever kills or attempts to kill
another person, with intent to —
(A) prevent the attendance or
testimony of any person in an official
proceeding; [or]
. . .
(C) prevent the communication by any
person to a law enforcement officer or
judge of the United States of information

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 relating to the commission or possible
commission of a Federal offense . . .

shall be punished as provided [by law].

18 U.S.C. § 1512. In order to convict the defendant under section

1512(a)(1)(C), the government had to prove a killing aimed at

preventing a communication to a federal law enforcement officer

about the commission or possible commission of a federal crime.

See Fowler v. United States, 563 U.S. 668, 672 (2011). The

defendant's initial complaint about evidentiary insufficiency is

narrowly focused. He says that the government failed to prove the

requisite causation. We already have rejected the defendant's

argument that no reasonable jury could have found that his conduct

was a but-for cause of Denton's death, see supra Part II(A)(2),

and no useful purpose would be served by repastinating that ground.

The remaining pieces of the defendant's causation

argument — that proof of proximate cause was required to sustain

a conviction under 18 U.S.C. § 1512(a)(1) and that such proof was

lacking here — fare no better. Importantly, the district court

did not give any specific instruction on causation (nor was it

asked to do so). Instead, the court charged the jury that to

convict on count 14, it simply had to find "[f]irst, that . . .

[the defendant] knowingly killed [Denton]; and second, that [the

defendant] did so with the intent to prevent a communication about

the commission of a federal offense to a federal law enforcement

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officer." Inasmuch as the defendant did not object to this

instruction, his claim of error is forfeited, and our review is

for plain error.4 See United States v. Duarte, 246 F.3d 56, 60

(1st Cir. 2001). Such review requires four showings: "(1) that

an error occurred (2) which was clear or obvious and which not

only (3) affected the defendant's substantial rights, but also

(4) seriously impaired the fairness, integrity, or public

reputation of judicial proceedings." Id. The proponent of plain

error (here, the defendant) must carry the devoir of persuasion as

to each of these four components. See United States v. Brown, 235

F.3d 2, 4 (1st Cir. 2000).

When a crime specifies both conduct and result elements,

a defendant ordinarily may not be convicted unless his conduct is

both the but-for and the proximate cause of the result. See

Burrage, 134 S. Ct. at 887 (citing 1 Wayne R. LaFave, Substantive

Criminal Law § 6.4(a) (2d ed. 2003); Model Penal Code § 2.03 (Am.

Law Inst. 1985)). As to count 14, the statute of conviction is

silent regarding the nature of the requisite causal nexus. See 18

4 While the defendant neither objected to the court's
instruction nor requested a proximate cause instruction with
respect to count 14, these circumstances differ from those
surrounding count 1. With respect to the latter count, the
defendant expressly agreed that but-for causation sufficed to
convict. Yet he made no such representation with respect to count
14. The absence of such an express representation explains why we
treat his argument vis-à-vis count 14 as forfeited, not waived.
See Rodriguez, 311 F.3d at 437 (explicating distinction between
forfeited claims and waived claims).

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U.S.C. § 1512(a)(1). We are cognizant, though, that the Supreme

Court on several occasions has found a proximate cause requirement

built into a statute that did not explicitly impose such a

requirement. See Paroline, 134 S. Ct. at 1720 (collecting cases).

Proximate causation sets a higher bar than but-for causation,

demanding "some direct relation between the injury asserted and

the injurious conduct alleged." Id. at 1719 (quoting CSX Transp.,

Inc. v. McBride, 564 U.S. 685, 707 (2011) (Roberts, C.J.,

dissenting)).

It is an interesting question whether section 1512(a)(1)

demands proof of proximate causation as opposed to some lesser

strain of causation. But courts should not rush to answer

unsettled questions, see Privitera v. Curran (In re Curran), 855

F.3d 19, 22 (1st Cir. 2017), and this question is one that we need

not answer. Even assuming (as the government concedes) that the

statute of conviction requires a showing of proximate cause, it is

neither clear nor obvious that the evidence in this case is

insufficient to sustain the conviction on count 14. We explain

briefly.

Viewing the evidence in the light most hospitable to the

government, a rational jury could find that the defendant's conduct

proximately caused Denton's death. After all, the evidence was

sufficient to support findings that the defendant, the second time

around, sent real cyanide to Denton, knowing that the cyanide was

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lethal and that Denton intended to ingest it; that Denton received

the cyanide; that Denton swallowed it; and that he died as a

result. Proximate cause is commonly understood as a function of

the foreseeability of the harm. See, e.g., United States v.

Chiaradio, 684 F.3d 265, 284 (1st Cir. 2012) ("The evidence must

show that the defendant's conduct created a reasonably foreseeable

risk of harm to the victim, notwithstanding that others may also

have contributed to that harm."). Intervening causes normally do

not break the causal chain if they are foreseeable. See Paroline,

134 S. Ct. at 1719 (explaining that purpose of proximate cause

requirement is to preclude liability where link between conduct

and result is merely fortuitous).

Here, Denton's death was entirely foreseeable. Among

other things, the defendant posted his cyanide advertisement on a

suicide blog, and his avowed purpose in sending Denton genuine

cyanide the second time around was to facilitate Denton's demise.

On this record, we are satisfied that a rational jury could

conclude that the defendant proximately caused Denton's death by

mailing him cyanide with which to commit suicide.

The defendant has a fallback position as to count 14.

This position hinges on the meaning of "kill" as that word is used

in the statute of conviction. The defendant would have us read

"kill" in that context as synonymous with "murder." But this "kill

is tantamount to murder" argument is presented only in connection

- 22 -
with his assertion that the statute of conviction requires proof

of some direct causal link between the charged conduct and Denton's

death. That assertion goes nowhere: as we previously have

explained, the evidence was sufficient to ground a finding that a

causal relationship existed between the defendant's conduct and

Denton's death.5 See text supra. No more is exigible.

Even though the defendant eschews a mens rea attack, his

comments about the meaning of "kill" might theoretically be

directed to the mens rea that a defendant must possess in relation

to his victim's death. See Schad v. Arizona, 501 U.S. 624, 640

(1991) (plurality opinion) ("At common law, murder was defined as

the unlawful killing of another human being with 'malice

aforethought.'"). The statute of conviction does not define the

word "kill." And during the charge conference, neither party

requested an instruction elucidating the meaning of the word.

Following the parties' lead, the district court did not expound on

the meaning in its jury instructions, and neither party objected.

5To like effect, the defendant contends that "resulted in,"
as used in the statute of conviction for count 1 (18 U.S.C.
§ 1716), requires the same causation as murder. The ordinary
meaning of the phrase forecloses this argument. See Burrage, 134
S. Ct. at 887 (explaining that "[a] thing 'results' when it
'[a]rise[s] as an effect, issue, or outcome from some action,
process or design'" (second and third alterations and emphasis in
original) (quoting 2 The New Shorter Oxford English Dictionary
2570 (1993))); see also De La Cruz, 514 F.3d at 137-38
(interpreting similarly worded "result" element in 21 U.S.C.
§ 841(b)(1)(A) as requiring only but-for causation).

- 23 -
Subsequent to the verdict, the defendant shifted gears and argued

for the first time that, under the statutory regime, the word

"kill" must be construed as synonymous with murder. Building on

this foundation, he submitted that he merely supplied the means

that Denton used to kill himself and did not participate in the

final act. Thus, he did not "kill" Denton but, rather, merely

assisted Denton's suicide.

In litigation as in life, timing is critically

important. So it is here: the defendant did not develop his

statutory "kill is tantamount to murder" argument until he filed

his post-conviction motion for judgment of acquittal under Federal

Rule of Criminal Procedure 29(c). Even then, he did not direct it

at the mens rea element. Because he did not seasonably raise this

mens rea argument at any time prior to the jury's verdict, his

post-conviction motion cannot give it a new lease on life. See

United States v. Alberico, 559 F.3d 24, 27 (1st Cir. 2009). In

light of this conspicuous procedural default, the most that the

defendant can expect is for us to review his late-blooming argument

for plain error.6

6 Given the defendant's decision not to brief a mens rea
theory, this aspect of his argument is likely waived, see United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues
adverted to in a perfunctory manner, unaccompanied by some effort
at developed argumentation, are deemed waived."), and, thus,
either unreviewable or reviewable only for "clear and gross
injustice," United States v. Valenzuela, 849 F.3d 477, 484 (1st
Cir. 2017) (quoting United States v. Cheung, 836 F.2d 729, 730 n.1

- 24 -
 We need not tarry. As we have said, the defendant's

argument rests on the premise that "kill," as used in 18 U.S.C.

§ 1512(a)(1), means "murder." To support this argument, the

defendant points to cases in which courts have used "murder"

interchangeably with "kill" in discussing the witness tampering

statute. See, e.g., Fowler, 563 U.S. at 679-80 (Scalia, J.,

concurring in the judgment) (using "murder" hypothetical); United

States v. Burgos-Montes, 786 F.3d 92, 111-12 (1st Cir. 2015)

(stating that defendant faced charges for "murdering" victim to

prevent communication with law enforcement); United States v.

Tyler, 732 F.3d 241, 245 (3d Cir. 2013) (similar). But judicial

dicta often include imprecise shorthands. This is such an

instance. Because none of the quoted statements concerns the

"kill" element, those cases are of scant assistance here.

The defendant also points to section 1512's penalty

provisions and specifically notes that killing a witness shall be

punished as provided in 18 U.S.C. §§ 1111 and 1112. See 18 U.S.C.

§ 1512(a)(3)(A). Those sections, in turn, set out the penalties

for first degree murder, second degree murder, voluntary

manslaughter, and involuntary manslaughter — penalties that range

from a term of years all the way to capital punishment. The

(1st Cir. 1988) (per curiam)). Here, however, nothing turns on
these distinctions, so we assume, favorably to the defendant, that
review for plain error is available.

- 25 -
defendant argues that punishing violations of section 1512(a) on

the level of manslaughter might make sense but that his conduct

did not even meet the elements of manslaughter, as he merely

"suppl[ied] the means of death" rather than murdered or killed

Denton.

Even if "kill," as used in section 1512(a), means murder

or manslaughter — a matter on which we express no opinion — it is

neither clear nor obvious that the defendant's conduct amounted to

something less than murder. "Murder is the unlawful killing of a

human being with malice aforethought." Id. § 1111(a). The

elements of murder require that a defendant engage in some conduct,

such as an affirmative act; that he act with a malicious mens rea,

such as an intent to kill; and that his conduct cause death. See

2 Wayne R. LaFave, Substantive Criminal Law § 14.1(f) (3d ed.

2018). Here, it is neither clear nor obvious that a rational jury

could not conclude that the defendant acted with the intent to

kill when he shipped a lethal dose of cyanide to a man whom he

knew to be suicidal.

Similarly, it is neither clear nor obvious that a

rational jury could not find that the defendant's conduct amounted

to manslaughter (which, after all, is a lesser included offense of

murder under federal law, see 18 U.S.C. § 1112(a) ("Manslaughter

is the unlawful killing of a human being without malice."); United

States v. Lincoln, 630 F.2d 1313, 1320 (8th Cir. 1980)). And for

- 26 -
what it may be worth, many states treat assisted suicide as a

species of manslaughter. See, e.g., Alaska Stat. § 11.41.120;

Ariz. Rev. Stat. Ann. § 13-1103; Ark. Code Ann. § 5-10-104; Colo.

Rev. Stat. § 18-3-104; Conn. Gen. Stat. § 53a-56; Fla. Stat.

§ 782.08; Mo. Rev. Stat. § 565.023; N.Y. Penal Law § 125.15; Or.

Rev. Stat. § 163.125; see also LaFave, supra, § 15.6(c).

No more need be said. For these reasons, we hold that

the district court committed no reversible error in denying the

defendant's motion for judgment of acquittal with respect to count

14.

C. Admission of Evidence.

We proceed next to the defendant's contention that some

evidence was improperly admitted. He contends that his objections

should have been sustained to certain testimony from or about the

non-Denton victims, as well as to Exhibit 16 — a 113-page chart

containing the contents of 484 email strings, which memorialize

the defendant's correspondence with persons who replied to his

cyanide advertisement (including both purchasers and potential

purchasers). For ease in exposition, we refer to all of this body

of evidence, in the aggregate, as the "anecdotal background

evidence." In the defendant's view, the anecdotal background

evidence was either wholly or partially inadmissible under Federal

Rule of Evidence 403.

- 27 -
 By means of a pretrial filing, the defendant indicated

that he intended to object generally to the anecdotal background

evidence (specifically, to any evidence that he had swindled any

victims other than those identified in the various fraud counts of

the superseding indictment and, in addition, to any testimony about

non-Denton victims' mental health histories). On the morning that

trial began, the district court indicated that the objections —

which the defendant tied so tightly at sidebar to Rule 403 that

the court described this as his "real objection" — should be raised

during trial. The court stated that it would make a "formal[]

rul[ing]" at that time, and defense counsel would have a continuing

objection from that point forward, without needing to object

thereafter. The trial got underway. The first time the government

sought to introduce any specific evidence about non-Denton

victims, the defendant — in furtherance of the praxis prescribed

by the district court — objected to Exhibit 10 (a document

concerning a non-Denton victim not named in the indictment). The

court nonetheless admitted the evidence and gave a limiting

instruction, based on Federal Rule of Evidence 404(b), about the

purposes for which the jury could consider it.

Before any more evidence about non-Denton victims was

admitted (including anecdotal background evidence), the defendant

sought clarification as to whether the court had provided a

"definitive ruling" because he did not want to continue "being

- 28 -
overruled" in front of the jury and "interrupt[ing] the trial."

The court replied in the affirmative and asked only that the

defendant request a further limiting instruction whenever he

deemed it necessary.

From then on, the parties appear to have treated the

defendant's Rule 403 objection to the anecdotal background

evidence as subject to a continuing objection (which we sometimes

call a "blanket objection"). Reinforcing this blanket objection,

the defendant objected from time to time to the admission of

specific pieces of non-Denton evidence (including Exhibit 16).

Our case law has long permitted the use of blanket

objections at or before trial as an efficacious means of preserving

issues for appellate review. See United States v. Ladd, 885 F.2d

954, 958 (1st Cir. 1989). In determining whether a blanket

objection sufficiently preserves a particular claim of evidentiary

error, courts typically consider whether the trier had the

opportunity to address the issue, see United States v. Simms, 757

F.3d 728, 733-34 (8th Cir. 2014); whether "[t]he substance of the

objection . . . was thoroughly explored," Palmerin v. City of

Riverside, 794 F.2d 1409, 1413 (9th Cir. 1986); whether the

objecting party was entitled to rely on the trier's grant of the

blanket objection, see United States v. Sanchez-Hernandez, 507

F.3d 826, 831 (5th Cir. 2007); and whether testimony admitted

without specific objection after a blanket objection "presented

- 29 -
substantially the same type of information" as testimony admitted

over a specific objection, id.

In this instance, each of these considerations counsel

in favor of concluding that the defendant's blanket objection

adequately preserved his Rule 403 objection for appellate review.

To begin, the district court had ample opportunity to address the

objection before trial, as the defendant initially raised it weeks

in advance. Moreover, the court explored the relevance and

admissibility of the anecdotal background evidence at several

points, confirmed that the defendant's objection was based on Rule

403, and explicitly declared that the Rule 403 balance weighed in

favor of admitting the anecdotal background evidence. So, too,

the defendant appears to have relied on the blanket objection;

even when he lodged specific objections to particular pieces of

anecdotal background evidence, he stated that he was making his

"usual" objection. Finally, when the defendant did not lodge a

specific objection to a specific piece of anecdotal background

evidence, the information presented was substantially similar to

Exhibit 16 (to which he expressly objected). Given the district

court's repeated assurance both before and during trial that the

defendant need not object to each reference to the anecdotal

background evidence, the defendant's reliance on this assurance

was reasonable.

- 30 -
 We add a note of caution. Although blanket objections

are sometimes a useful mechanism, see United States v. Cianci, 378

F.3d 71, 105 (1st Cir. 2004) (noting that "stop-and-go evidentiary

evaluations" can cause delay and prejudice), trial courts should

not dispense them indiscriminately, see United States v.

Fortenberry, 919 F.2d 923, 924 (5th Cir. 1990); cf. Cianci, 378

F.3d at 104-05 (noting that ambiguous blanket objection may fail

to preserve point for appeal). Here, however, it seems fair to

the parties and the district court to give force to the blanket

objection. After all, the defendant clearly stated the grounds

for his objection, the government knew exactly where it stood, and

the district court acted sensibly in preferring this mechanism to

a steady stream of specific objections. We conclude, therefore,

that the blanket objection adequately preserved the claimed

evidentiary errors. See United States v. Thompson, 976 F.2d 666,

669-70 n.2 (11th Cir. 1992); Ladd, 885 F.2d at 958; see also 3B

Charles Alan Wright & Peter J. Henning, Federal Practice and

Procedure § 842 (4th ed. 2013) ("If the problem has been brought

to the attention of the court, and the court has indicated in no

uncertain terms what its views are, to require an objection would

exalt form over substance.").

With the issue preserved for review, we turn to its

particulars. Notwithstanding the district court's grant of the

blanket objection and the spate of follow-up objections, the court

- 31 -
allowed the government to call four non-Denton victims (Walter

Cottle, Stacy Williams, Cynthia Kirschling, and Autumn Roland) in

its case in chief.7 The court also permitted the government to

call two other witnesses (Detective Stuart Daniel Quinn and Edith

Collins) to testify about the travails of particular non-Denton

victims. Detective Quinn testified concerning Derek Jorgensen, a

victim named in counts 6 and 11, and Collins testified concerning

her minor granddaughter, a victim not named in the indictment.

All in all, this testimony went into excruciating detail

about the non-Denton victims' personal lives, medical issues,

histories of depression, earlier suicide attempts, suicidal

motivations, and the like. It was augmented, and its effect

exponentially increased, by the government's introduction, over

specific objection, of Exhibit 16.

Where, as here, objections to evidentiary rulings are

preserved, review is for abuse of discretion. See United States

v. Sabean, 885 F.3d 27, 35 (1st Cir. 2018). Although this standard

of review is deferential, it "does not render trial court decisions

impervious to scrutiny." Ruiz-Troche v. Pepsi Cola of P.R.

Bottling Co., 161 F.3d 77, 83 (1st Cir. 1998). As we have observed,

abuse of discretion "sounds worse than it really is." Schubert v.

7 The defendant pleaded guilty to wire and mail fraud counts
involving three of these victims. The defendant was never charged
with any crimes related to his communications or transactions with
the fourth victim (Roland).

- 32 -
Nissan Motor Corp. in U.S.A., 148 F.3d 25, 30 (1st Cir. 1998)

(quoting In re Josephson, 218 F.2d 174, 182 (1st Cir. 1954)). It

simply means that "when judicial action is taken in a discretionary

matter, such action cannot be set aside by a reviewing court unless

it has a definite and firm conviction that the court below

committed a clear error of judgment in the conclusion it reached

upon a weighing of the relevant factors." Id. (quoting Josephson,

218 F.2d at 182).

Evidence is relevant as long as it has some tendency to

make a fact of consequence more or less probable. See Fed. R.

Evid. 401. In a criminal case, the government is generally

"entitled to prove its case by evidence of its own choice." Old

Chief v. United States, 519 U.S. 172, 186 (1997). But this

entitlement is hedged with exceptions. For instance, a lack of

dispute or concession of a central allegation may significantly

reduce the probative value of particular evidence and, thus, call

its admissibility into question. See United States v. Ford, 839

F.3d 94, 109 (1st Cir. 2016).

To ameliorate these competing concerns, a trial court

"may exclude relevant evidence if its probative value is

substantially outweighed by a danger of . . . unfair prejudice."

Fed. R. Evid. 403. This balance is sometimes difficult to strike.

As a practical matter, nearly all evidence is offered for the

purpose of prejudicing the factfinder's views, and Rule 403 is

- 33 -
meant to stand as a sentinel, which can be alerted to screen out

unfair prejudice. See Sabean, 885 F.3d at 38; United States v.

Rodriguez-Estrada, 877 F.2d 153, 155-56 (1st Cir. 1989). Evidence

presents a risk of unfair prejudice when it has "the capacity

. . . to lure the factfinder into declaring guilt on a ground

different from proof specific to the offense charged." Old Chief,

519 U.S. at 180. Put another way, unfair prejudice ensues when

particular evidence "serves only to evoke an improper emotional

response" and distracts "from careful consideration of the

relevant issues." United States v. Fulmer, 108 F.3d 1486, 1498

(1st Cir. 1997). Although there is no blanket prohibition against

the admission of such evidence, a trial court faced with an

objection to its introduction must strike a delicate balance

between the government's need for the evidence (that is, its

probative value) and the risk that the evidence will inflame the

jurors' passions (that is, its unfairly prejudicial effect). See

id. at 1497-98; see also Fed. R. Evid. 403.

Assessing the totality of the relevant circumstances, we

conclude that the district court abused its discretion in failing

to exclude the anecdotal background evidence under Rule 403.

Though marginally relevant, it had "the capacity . . . to lure the

factfinder into declaring guilt on a ground different from proof

specific to the offense charged." Old Chief, 519 U.S. at 180. A

- 34 -
few examples help to illustrate why much of this evidence was

unfairly prejudicial:

 On direct examination, Cottle testified that he was

so overwhelmed that he "didn't want to see [his]

wife" and "didn't want to see [his] child." He

"was crying probably twenty, twenty-five times a

day for no reason."

 Williams testified about a myriad of factors that

rendered her suicidal (including going through a

"terrible" second divorce, experiencing great

financial pressure, watching her neighbor shoot her

dog, and undergoing a horrible car accident). She

also described why she was looking for cyanide: "I

knew that I didn't have the courage to shoot myself,

and . . . I knew I didn't have the courage to cut

myself."

 Kirschling testified that she "suffered from major

depression," was lonely, "couldn't do [her] job,"

and was "just in constant pain."

 Roland testified that "severe distress" led her to

look for cyanide after she was diagnosed with

schizophrenia, was unable to work, and found

herself homeless. She was also having "side

effects from psychological medications that were

- 35 -
 affecting [her] motor skills to the point where it

became excruciatingly hard just to turn over in

bed."

There was more. Called as a government witness,

Detective Quinn, testifying about Jorgensen, stated in part:

Twenty years ago, [Jorgensen] entered a public
house, a bar, where people were drinking and
identified four males that had bullied him
while he was at childhood school and continued
to bully him into young . . . adulthood. And
Mr. Jorgensen was armed with a shotgun. He
walked into the public house and discharged
the shotgun at the people who had bullied him,
fortunately, missing all of them. He then ran
out of the public house, placed a shotgun into
his mouth, and discharged it. Fortunately,
the cartridge of the firearm left the right
cheek of his face and didn't go up into the
brain. He required extensive facial surgery
. . . .

In addition, Detective Quinn told the jury about several of

Jorgensen's botched suicide attempts. These included sitting in

a tree with a noose, willing himself to jump, and swimming out to

sea, waiting for "tiredness" to get "the better of him."

So, too, Collins testified that her minor granddaughter

lived with the granddaughter's father after her mother's death.

That arrangement, though, "didn't work out." She then moved in

with her maternal grandparents but "grandma died." She was sent

"to a girls' home and ended up with" Collins, who soon discovered

that her granddaughter, then a young teenager, "ha[d] posted a

- 36 -
picture of herself with a scarf around her neck like she was

hanging herself."

This barrage of emotionally laden testimony was merely

the tip of the iceberg. Through the medium of Exhibit 16, the

government displayed to the jury a mountain of emails to and from

the defendant pertaining to cyanide-related transactions. Some

authors wrote paragraphs explaining how their lives had fallen

apart. Others emailed repeatedly, begging the defendant to

respond. Taken collectively, these lachrymose emails were likely

to evoke an emotional response in even the most hardened

individuals. Once again, a few examples suffice to make the point:

 "[I] have been suffering an infection since birth

. . . [I] don[']t want to continue my life . . .

[I] need some potassium cyanide . . . tell me the

price."

 "I need enough C to make me go fast and painlessly

. . . I keep trying to kill myself but won't die.

. . . How much will I need how long will it take to

make me sleep forever."

 "I am ready to die and this seemed like the best

method."

 "[H]ow much can [I] get it for [I'm] sick of this

shit world."

- 37 -
  "I don't know what to expect from this email but

the darkness has overtaken me and my friend."

 "Rumour has it you can hook me up with sweet

release. How much, how quickly?"

This evidence permeated the record: it was as copious

as it was emotionally charged. And it had virtually no probative

value.

In an effort to dredge up some semblance of probative

value, the government notes that it had the burden to prove the

existence of the fraudulent scheme. That is true as far as it

goes — but it does not take the government very far. The existence

and dimensions of the scheme were amply demonstrated by proof of

the defendant's advertisement, the number of victims, their

initial contacts, and the defendant's responses. Although the

anecdotal background evidence may have had a scintilla of probative

value with respect to the existence of the fraudulent scheme, it

was wholly cumulative and, thus, gratuitous. See Fed. R. Evid.

403; Sabean, 885 F.3d at 40.

The short of it is that the extensive evidence as to the

circumstances of the defendant's customers and the thought

processes that led them to the brink of suicide added virtually

nothing of legitimate value to the government's case. This

evidence was not needed to prove the existence of the scheme, nor

did it assist the government in proving, say, the defendant's

- 38 -
identity or motive. Just because evidence may have a smidgen of

probative value, that bare fact does not give the government free

rein to capitalize upon its emotionally laden content,

particularly where, as here, the government can easily prove its

case without fanning the flames of unfair prejudice.

The prosecution — which has available to it the immense

resources of the federal government — possesses a significant

advantage in criminal cases, and there seldom is a good reason for

a prosecutor to push the envelope of that advantage. Mindful of

this imbalance, we consistently have "warn[ed] the government"

about "the folly of . . . overkill." United States v. Frankhauser,

80 F.3d 641, 650 (1st Cir. 1996) (quoting United States v. Arias-

Montoya, 967 F.2d 708, 714 (1st Cir. 1992)). We echo this warning

today.

For these reasons, we hold that the anecdotal background

evidence unfairly prejudiced the defendant because it dwelled upon

the desperation of severely depressed individuals in what amounted

to a blatant attempt to engage and inflame the jurors' passions.

In our view, such unfair prejudice substantially outweighed

whatever scant probative value the anecdotal background evidence

may have had. We are left with a definite and firm conviction

that the district court committed a manifest error of judgment in

working the Rule 403 calculus. As a result, admitting the

anecdotal background evidence was an abuse of discretion.

- 39 -
 The government has a fallback position. It says that

even if the district court abused its discretion in admitting the

anecdotal background evidence, the error was harmless. The

question reduces to whether admission of this evidence "results in

actual prejudice because it had a substantial and injurious effect

or influence in determining the jury's verdict." Ruiz-Troche, 161

F.3d at 87 (quoting United States v. Shay, 57 F.3d 126, 134 (1st

Cir. 1995)).

"An error will be treated as harmless only if it is

'highly probable' that the error did not contribute to the

verdict." Fulmer, 108 F.3d at 1498 (quoting United States v.

Melvin, 27 F.3d 703, 708 (1st Cir. 1994)). "To sustain the

verdict, the reviewing court must be able to say with a fair degree

of assurance that the erroneous ruling did not substantially sway

the jury." Ruiz-Troche, 161 F.3d at 87.

[A] harmlessness determination demands a
panoramic, case-specific inquiry considering,
among other things, the centrality of the
tainted material, its uniqueness, its
prejudicial impact, the uses to which it was
put during the trial, the relative strengths
of the parties' cases, and any telltales that
furnish clues to the likelihood that the error
affected the factfinder's resolution of a
material issue.

United States v. Piper, 298 F.3d 47, 57 (1st Cir. 2002) (quoting

United States v. Sepulveda, 15 F.3d 1161, 1182 (1st Cir. 1993)).

For criminal cases, the strength or weakness of the government's

- 40 -
evidence of guilt is normally the most important integer in the

harmlessness equation. Practically speaking, a reviewing court

may find an error harmless when the properly admitted evidence, in

and of itself, furnished overwhelming proof of the defendant's

guilt. See Ford, 839 F.3d at 110; see United States v. Eads, 729

F.3d 769, 778 (7th Cir. 2013); Clark v. Moran, 942 F.2d 24, 27

(1st Cir. 1991). Here, we hold that the error in admitting the

anecdotal background evidence was harmless as to counts 1, 5, 7,

and 12 but not as to count 14.

At the outset of the trial but before the jury was in

the courtroom, defense counsel acknowledged that the government

would not "hear much" from him as to counts 5, 7, and 12 (the

Denton fraud counts). He explained that the defendant already had

pleaded guilty to the non-Denton fraud counts and, thus, had

admitted the existence of the fraudulent scheme. Consistent with

these statements, the defense focused at trial primarily on

attacking the elements of counts 1 and 14 rather than attempting

to present a full-throated defense to the fraud counts. And during

his summation, defense counsel stated outright that Denton was a

victim of the fraudulent scheme and that counsel could "not deny

that the [g]overnment" proved that scheme.

These admissions did not come out of the blue. During

the trial, the government presented copious — and uncontradicted

— evidence of the scheme. In addition, the government introduced

- 41 -
documentary evidence of Denton's payment to the defendant, their

email correspondence, tracking information for the first package

the defendant sent to Denton, and Denton's IC3 complaint (which

pointed out that the first package did not contain cyanide).

On whole-record review, we are confident that the guilty

verdicts on the fraud counts were mandated by the properly admitted

evidence. This evidence, standing alone, supplied overwhelming

proof of the defendant's guilt. Thus, even though the error in

admitting the anecdotal background evidence was egregious, we do

not think that the jury verdicts on the fraud counts were tainted

by that evidence.

We reach the same conclusion as to count 1 (mailing

injurious articles resulting in death). With respect to this

charge, the evidence of guilt was very strong. After the

constructive amendment, see supra Part II(A)(1), the government

had to prove that the defendant "knowingly deposit[ed] for mailing

. . . anything declared nonmailable . . . with intent to kill or

injure another . . . [and that such mailing] resulted in the death

of any person." 18 U.S.C. § 1716(j). The government made that

showing — and it did so without reference to the improperly

admitted evidence. Although the defendant made a feeble effort to

suggest that he was not the source of the cyanide that killed

Denton, the government presented plentiful evidence, properly

admitted, confirming the existence of each element required by the

- 42 -
statute of conviction. For instance, there were postal records

tracking the defendant's second shipment to Denton; the envelope

discovered near Denton's body contained cyanide residue and

identified the defendant as its sender; records detailing the

defendant's receipt of cyanide from California and his payment for

it were admitted into evidence; and the jury reviewed emails

between Denton and the defendant discussing the former's desire to

end his life and the latter's willingness to send cyanide to

assist. There was, moreover, ample proof that the defendant's

actions resulted in Denton's death. See supra Part II(A)(2).

Given the strength of the government's case on count 1, we have a

high degree of assurance that the anecdotal background evidence,

though improperly admitted, did not tarnish the verdict. It

follows that as to count 1, the error was harmless. See Ford, 839

F.3d at 108; Piper, 298 F.3d at 58.

This leaves count 14 (the witness tampering count). That

count required proof of the defendant's intent to "prevent the

communication by [Denton] to a law enforcement officer . . . of

information relating to the commission . . . of a Federal offense."

18 U.S.C. § 1512(a)(1)(C). Intent is inherently difficult to

demonstrate, see United States v. Whiffen, 121 F.3d 18, 21 (1st

Cir. 1997), and in this instance we discern no overwhelming

evidence of the culpable intent required by the statute of

conviction.

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 To be sure, there was some circumstantial evidence of

this intent. For instance, there was evidence that Denton had

complained to IC3, that the defendant knew about this complaint

when he shipped the cyanide, and that the defendant was concerned

about the FBI's awareness of his "goings on." But the defendant

might have sent the cyanide, the second time around, for any number

of reasons apart from trying to prevent Denton from communicating

with law enforcement. As his counsel implied at trial, the

defendant simply may have wanted to assist Denton's suicide. Given

the inherent difficulty of proving the necessary intent and the

peculiarities of this case, we cannot conclude with the requisite

degree of assurance that the anecdotal background evidence did not

influence the verdict on count 14.

This conclusion is fortified by the other considerations

revealed through a panoramic inquiry into the relevant

circumstances. It strains credulity to imagine that the poignant

nature of the anecdotal background evidence was somehow

overshadowed by properly admitted evidence of the defendant's

guilt on count 14, especially since the properly admitted evidence

on this count lacked emotional valence. Common sense and human

experience suggest that raw testimony about severe depression,

failed suicide attempts, and the like would substantially sway a

jury, whereas drier documentary evidence such as UPS records and

purchase invoices would have considerably less impact.

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 The government's actual use of the anecdotal background

evidence is telling. In his opening statement, the prosecutor

alluded to the anecdotal background evidence — mentioning Cottle's

difficulties at work as well as Williams's divorce, car accident,

and dead dog. A full quarter of the government's witnesses (seven

out of twenty-eight) provided anecdotal background evidence. Last

but not least, the prosecutor's summation made abundant use of the

anecdotal background evidence, first recounting contents from some

of the Exhibit 16 emails and then discussing in detail how the

defendant "toyed" with Roland.

When a panoramic inquiry into the relevant circumstances

has been carried out, we are left without fair assurance that the

erroneous admission of the anecdotal background evidence did not

materially influence the jury's verdict on count 14. The anecdotal

background evidence was central to the government's presentation

of its count 14 case; it was unique; its emotional content was

highly charged and its potential for prejudice was correspondingly

great; and the government made powerful use of it at critical

stages of the trial. These factors tilt the balance of the

harmlessness equation against the government as to this count.

In an attempt to snatch victory from the jaws of defeat,

the government makes two additional arguments. First, it submits

that the acquittal on count 15 (witness retaliation) is a telltale

clue that the jury dispassionately considered the proof as to count

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14, notwithstanding the force of the anecdotal background

evidence. We do not agree. Simply because a jury acts rationally

in acquitting on one charge while convicting on others does not

relegate improperly admitted evidence to the scrap heap of harmless

error. See United States v. Litvak, 889 F.3d 56, 71-72 (2d Cir.

2018). This is such a case: the strongly provocative nature of

the anecdotal background evidence, improvidently admitted, created

too high a likelihood that such evidence influenced the jury's

consideration of count 14.

Second, the government suggests that because the

district court instructed the jury on several occasions that the

use of certain exhibits, including Exhibit 16, must be restricted

to purposes delineated in Rule 404(b) (motive, opportunity,

intent, preparation, plan, knowledge, identity, absence of

mistake, or lack of accident), the admission of the anecdotal

background evidence was harmless. The flaws in this suggestion

are at least twofold. First, the court did not give this

instruction relative to any anecdotal background evidence, save

for Exhibit 16. Second — and more fundamentally — the limiting

instruction did nothing to insulate the jurors from the emotional

clout of the challenged evidence.

That ends this aspect of the matter. We find the error

in admitting the anecdotal background evidence harmless as to most

counts. Count 14, though, requires a different calculus. As to

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that count, the error was not harmless, and the verdict cannot

stand.

D. Sentencing.

This brings us to the defendant's claim of sentencing

error. The defendant attempts to argue that the court erred in

calculating his base offense level with respect to count 1 by

analogizing that conviction to first degree murder. We deem this

argument waived: the appellant's brief mentions it only in a

cursory manner, without citation to any relevant authority. See

Zannino, 895 F.2d at 17.

The defendant also contends that the concurrent twenty-

year sentences on the wire and mail fraud counts (counts 2 through

13) are unconstitutional. Because this claim relates only to

sentences imposed on the fraud counts, it is unaffected by our

vacation of the jury verdict on count 14.

The defendant's claim rests on the Eighth Amendment's

proscription against "cruel and unusual punishments." U.S. Const.

amend. VIII. As relevant here, this proscription applies to

criminal sentences that are "grossly disproportionate" to the

underlying offenses. Solem v. Helm, 463 U.S. 277, 288 (1983).

When — as in this case — capital punishment is not implicated,

"the Eighth Amendment 'does not require a precise calibration of

crime and punishment.'" United States v. Rivera-Ruperto, 852 F.3d

1, 17 (1st Cir. 2017) (quoting United States v. Graciani, 61 F.3d

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70, 76 (1st Cir. 1995)), cert. denied, 139 S. Ct. 1258 (2019).

Given this latitude, it is not surprising that, in non-capital

cases, "successful challenges to the proportionality of particular

sentences have been exceedingly rare." Rummel v. Estelle, 445

U.S. 263, 272 (1980); see United States v. Polk, 546 F.3d 74, 76

(1st Cir. 2008) (describing such cases as "hen's-teeth rare").

Here, the defendant complains that his concurrent

twenty-year sentences on the wire and mail fraud counts were

grossly disproportionate to the offenses of conviction. Because

the defendant proffers this plaint for the first time on appeal,

our review is for plain error. See United States v. Blodgett, 872

F.3d 66, 71 (1st Cir. 2017); Duarte, 246 F.3d at 60.

As a general rule, defining federal crimes and

establishing appropriate penalties are matters within Congress's

exclusive domain. See Polk, 546 F.3d at 76-77. Congress has made

the reasoned judgment that a fraud offense can, under certain

circumstances, be so blameworthy as to warrant a twenty-year term

of immurement. See 18 U.S.C. §§ 1341, 1343. Courts owe

substantial deference to such legislative judgments; they cannot

sit as "'superlegislature[s]' to second-guess" congressional

wisdom. Ewing v. California, 538 U.S. 11, 28 (2003) (plurality

opinion); see Rivera-Ruperto, 852 F.3d at 17-18.

In this instance, the challenged sentences were within

— though at the apex of — the penalties that Congress established

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for the offenses of conviction. Those offenses included seven

wire fraud counts and five mail fraud counts. At sentencing, the

district court explained that the defendant's crimes were much

"more egregious than . . . common fraud." After all, the defendant

sought out and preyed upon vulnerable, suicidal victims, offering

to sell them cyanide but instead sending them Epsom salts. The

court appropriately identified the defendant's chosen targets, his

use of the internet to enlarge the reach of his criminal

activities, and the protracted duration of the scheme (roughly

thirteen months). Moreover, the court acknowledged that the

defendant had gone from bad to worse and had taken drastic measures

to conceal his fraud by sending real cyanide to the one victim

whom he knew had dared to blow the whistle and report the

defendant's chicanery to federal authorities. Against this

backdrop, the sentencing judge — an experienced hand — concluded

that the offenses of conviction were "among the most heinous" that

he had ever seen. This depravity was all the more opprobrious

because the defendant operated in an "appalling moral vacuum."

Given the sentencing court's supportable findings, we think that

the twenty-year sentences, though severe, scarcely can be seen as

grossly disproportionate to the defendant's conduct.

The defendant demurs. In his repast, he trivializes the

scope of his cruel and cynical scheme by pointing to his relatively

few victims (nine) and the relatively meager revenues ($2,732.55)

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garnered through his scheme. Similarly, he tries to minimize the

gravity of his conduct by noting that "there is no evidence" that

any of the victims besides Denton actually "attempted suicide with

the Epsom salts." Finally, he argues that the guideline sentencing

range for fraud offenses suggests sentences much more modest than

the sentences that he received.

These arguments lack force. They ignore not only the

fragility of the defendant's victims but also the broad scope and

breathtaking cruelty of the defendant's scheme. By the same token,

they ignore the sordid fact that no fewer than 274 desperate

individuals, all of whom were contemplating suicide, reached out

to the defendant in response to his ads. Considering all of the

relevant circumstances, there is no principled way for us to say

that the sentences imposed were grossly disproportionate to the

conduct surrounding the offenses of conviction.

The sentencing guidelines do not lead us to a different

conclusion. Although the guideline sentencing range for a garden-

variety fraud case is well below twenty years, the guidelines are

designed for cases that fall within the "heartland" of a given

offense. Kimbrough v. United States, 552 U.S. 85, 109 (2007)

(quoting Rita v. United States, 551 U.S. 338, 351 (2007)). The

case at hand is well outside the heartland of fraud offenses: the

defendant's conduct and his subsequent coverup were far more

egregious than that entailed in a run-of-the-mill fraudulent

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scheme. The guidelines account for atypical cases through

departures and variances, see Rita, 551 U.S. at 344, and thus, the

guideline sentencing range for a particular offense bears very

little relation to the question of whether a particular sentence

in an out-of-the-ordinary case violates the Eighth Amendment, see,

e.g., United States v. Bowers, 811 F.3d 412, 432-33 (11th Cir.

2016) (holding sentence that exceeded top of guideline range by

more than 150 years not grossly disproportionate).

If more were needed — and we doubt that it is — the

Supreme Court has repeatedly upheld lengthy sentences against

Eighth Amendment challenges for offenses less grievous than the

offenses of conviction. See, e.g., Ewing, 538 U.S. at 28-31

(affirming lengthy sentence based on recidivist statute for theft

conviction); Harmelin v. Michigan, 501 U.S. 957, 961, 996 (1991)

(affirming sentence of life imprisonment for possession of

cocaine); Rummel, 445 U.S. at 265-66, 284-85 (upholding life

sentence under recidivist statute when triggering offenses

involved small amounts of money). So, too, the courts of appeals

have rejected Eighth Amendment challenges to lengthy sentences in

fraud cases which, like this one, are embedded in an array of

aggravating circumstances. See, e.g., United States v. Neba, 901

F.3d 260, 264-65 (5th Cir. 2018) (affirming seventy-five-year

sentence for healthcare fraud), cert. denied, 139 S. Ct. 1322

(2019); United States v. Hebert, 813 F.3d 551, 565-66 (5th Cir.

- 51 -
2015) (affirming ninety-two-year sentence for bank fraud and

related offenses); United States v. Tolliver, 730 F.3d 1216, 1231-

32 (10th Cir. 2013) (affirming consecutive ten- and twenty-year

sentences for two counts of using fire to commit mail fraud).

To say more would be to paint the lily. We hold, without

serious question, that the concurrent twenty-year sentences on

counts 2 through 13 are not grossly disproportionate to the

offenses of conviction. Thus, they do not offend the Eighth

Amendment. Plain error is plainly absent.

III. CONCLUSION

We need go no further. For the reasons elucidated above,

the sentences imposed on counts 1 through 13 are affirmed. The

judgment on count 14 is vacated and that count is remanded for

further proceedings consistent with this opinion.

Affirmed in part, vacated in part, and remanded.

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