United States Court of Appeals
For the First Circuit
No. 22-1075
UNITED STATES OF AMERICA,
Appellee,
v.
MARK MOFFETT,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William D. Young, U.S. District Judge]
Before
Barron, Chief Judge,
Lynch and Gelpí, Circuit Judges.
Michael Pabian, with whom Martin G. Weinberg was on brief,
for appellant.
Karen L. Eisenstadt, Assistant United States Attorney, with
whom Rachael S. Rollins, United States Attorney, was on brief, for
appellee.
November 18, 2022
BARRON, Chief Judge. Mark Moffett was charged in 2019
in the United States District Court for the District of
Massachusetts with nine counts of wire fraud and six counts of
aggravated identity theft for his participation in an alleged
health insurance fraud scheme. After a ten-day jury trial, he was
convicted on all counts. Moffett contends in this appeal that the
convictions must be vacated on a number of distinct grounds,
including the one that we conclude is decisive -- namely, that the
verdict form that was submitted to the jury violated Moffett's
federal constitutional right to a jury trial by expressly referring
to certain trial exhibits that the government alone selected while
not otherwise referring to any of the evidence in the case.
I.
Moffett joined Aegerion, a Cambridge, Massachusetts-
based pharmaceutical company, as a sales representative in 2014.
The company at that time promoted and sold a cholesterol-lowering
drug, "Juxtapid." The sticker price for Juxtapid was as high as
several hundreds of thousands of dollars per patient, per year.
For each "sale" of the drug, sales representatives for Aegerion
like Moffett received a bonus.
The U.S. Food and Drug Administration ("FDA") as of that
time had approved Juxtapid only for the treatment of a specific
disease, homozygous familial hypercholesterolemia ("HoFH"). Many
health insurance companies in turn had approved coverage for
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Juxtapid only if it had been prescribed to a patient to treat a
qualifying HoFH diagnosis. Moffett often assisted doctors and
their offices with completing health insurance paperwork,
including documents necessary to demonstrate the requisite
indication of such a diagnosis so that a prescription for Juxtapid
would be covered by the patient's insurance.
In 2019, a federal grand jury in the District of
Massachusetts indicted Moffett on nine counts of wire fraud under
18 U.S.C. § 1343 and six counts of aggravated identity theft under
18 U.S.C. § 1028A. 1 The indictment alleged that Moffett
"devised . . . a scheme and artifice to defraud, and to obtain
money from health insurance companies to pay [Aegerion] for
[Juxtapid] by falsely representing that patients for whom doctors
had prescribed [the drug] met the health insurance companies'
coverage criteria."
1 The wire fraud statute, 18 U.S.C. § 1343, provides that
"[w]hoever, having devised or intending to devise any scheme or
artifice to defraud, or for obtaining money or property by means
of false or fraudulent pretenses, representations, or promises,
transmits or causes to be transmitted by means of
wire . . . communication in interstate or foreign commerce, any
writings . . . for the purpose of executing such scheme or
artifice, shall be fined under this title or imprisoned not more
than 20 years, or both."
The aggravated identity theft statute, 18 U.S.C. § 1028A, as
relevant here, provides that "[w]hoever, during and in relation to
[a wire fraud offense], knowingly . . . uses, without lawful
authority, a means of identification of another person shall, in
addition to the punishment provided for such felony, be sentenced
to a term of imprisonment of 2 years."
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A ten-day jury trial was held in the District of
Massachusetts in December 2019. The government introduced
evidence at trial of communications that it claimed included false
statements about patient diagnoses that had been submitted to
health insurers to obtain reimbursement from them for
prescriptions for Juxtapid. The government also put on witnesses
-- including five doctors and some of their staff members -- to
show that Moffett made or caused those false statements to be made
regarding the diagnoses of the patients for whom Juxtapid had been
prescribed and for which reimbursement from the health insurers
had been sought.
According to the government, Moffett's alleged false
statements on the insurance documents were communicated to health
insurers through "wires." 18 U.S.C. § 1343. The government also
alleged that Moffett included the doctors' identifying information
on some of those documents in a manner that constituted the
unauthorized "uses" of that identifying information for purposes
of the federal statute that makes identity theft a crime. 18
U.S.C. § 1028A.
Moffett introduced evidence at trial of email exchanges
with doctors that he argued demonstrated that they were aware of
the only approved use of Juxtapid and that he did not actually
encourage "off label" prescriptions for that drug. He also
elicited testimony for the purpose of impugning the credibility of
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the witnesses whose testimony tended to suggest that Moffett added
false information or signatures to insurance letters and
authorization forms. He further introduced evidence that sought
to show that at least some of the doctors personally approved and
signed the allegedly fraudulent documents.
On the second day of trial, after the jury had been
dismissed, the District Court informed the parties that it had
been working on a verdict form to give to the jury that would
"organize[] the case in a logical foundation." The next day the
District Court provided the parties with the draft verdict form
and invited the government to select an exhibit that constituted
the alleged "wire" for each of the wire fraud counts, as well as
an exhibit that constituted the alleged "use" for each of the
"identity theft" counts, so that the selected exhibit could be
identified on the verdict form in relation to the relevant count.
The government obliged.
Moffett objected both orally and in a written filing to
the proposed verdict form insofar as it would reference the
government-selected exhibits. 2 Moffett argued that if the
District Court submitted to the jury such a verdict form, then the
District Court would be "invading the province of the jury to
2 Moffett also objected to the District Court's decision to
re-order the counts on the verdict form, but he does not press
that theory of error on appeal, and we therefore do not address
it.
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deliberate how it wants to deliberate and . . . relieving the
government of [its] burden" to "identify and prove which
communications are the subject of the various counts in the
indictment without assistance from the court or suggestion from
the verdict slip." Moffett proposed that the District Court
instead provide the jury a verdict form that did not list any
exhibits. The District Court denied the objection, noting that
"[y]our rights are saved, but we're going to use the verdict slip
as [the District Court] proposed it." 3F
Five of the nine exhibits that the government selected
to support the wire fraud counts contained the document that the
government alleged Moffett had faxed to insurance companies
(Counts 3, 4, 7, 8, and 9), two of the nine exhibits contained
emails that Moffett had sent about new Juxtapid prescriptions
(Counts 5 and 6), and the other two exhibits contained "[s]creen
shots" of Aegerion's salesforce.com account showing data entries
about various communications between Aegerion and insurance
companies (Counts 1 and 2).
Each of the six aggravated identity theft counts was
based on an alleged use of a doctor's identifying information in
an insurance document associated with one of the faxes or emails
that the government alleged constituted a fraudulent wire. Thus,
the exhibits selected by the government to support the aggravated
identity theft counts -- except for one -- were the same exhibits
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that it had selected to support the corresponding wire fraud counts
(Counts 10, 11, 13, 14, and 15).
The other exhibit referenced on the verdict form that
had been selected by the government pertained to Count 12. This
exhibit contained an insurance authorization form that Moffett had
allegedly faxed and which he had referenced in an email the same
day, which the government alleged was the corresponding "wire."
The resulting verdict form that the District Court
provided to the jury for it to use appeared as follows:
* * *
We find Mark T. Moffett as to
1. Count 2, charging wire fraud on or about
May 7, 2014 (Exhibit 53):
_______ not guilty _______ guilty
2. Count 3, charging wire fraud on or about
May 14, 2014 concerning a certain FAX
(Exhibit 66):
_______ not guilty _______ guilty
3. Count 10, charging aggravated identity
theft on or about May 14, 2014 concerning
a certain FAX (Exhibit 66):
_______ not guilty _______ guilty
4. Count 1, charging wire fraud on or about
May 19, 2014 (Exhibit 42):
_______ not guilty _______ guilty
5. Count 4, charging wire fraud on or about
May 22, 2014 concerning a certain FAX
(Exhibit 77):
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_______ not guilty _______ guilty
6. Count 11, charging aggravated identity
theft on or about May 22, 2014 concerning
a certain FAX (Exhibit 77):
_______ not guilty _______ guilty
7. Count 5, charging wire fraud on or about
August 5, 2014 concerning a certain e-mail
(Exhibit 86):
_______ not guilty _______ guilty
8. Count 12, charging aggravated identity
theft on or about August 5, 2014 concerning
a certain FAX (Exhibit 93):
_______ not guilty _______ guilty
9. Count 8, charging wire fraud on or about
August 15, 2014 concerning a certain FAX
(Exhibit 124):
_______ not guilty _______ guilty
10.Count 6, charging wire fraud on or about
August 20, 2014 concerning a certain e-mail
(Exhibit 96):
_______ not guilty _______ guilty
11.Count 13, charging aggravated identity
theft on or about August 20, 2014
concerning a certain email (Exhibit 96):
_______ not guilty _______ guilty
12.Count 7, charging wire fraud on or about
September 17, 2014 concerning a certain FAX
(Exhibit 109):
_______ not guilty _______ guilty
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13.Count 14, charging aggravated identity
[sic] on or about September 17, 2014
concerning a certain FAX (Exhibit 109):
_______ not guilty _______ guilty
14.Count 9, charging wire fraud on or about
September 4, 2015 concerning a certain FAX
(Exhibit 148):
_______ not guilty _______ guilty
15.Count 15, charging aggravated identity
theft on or about September 4, 2015
concerning a certain FAX (Exhibit 148):
_______ not guilty _______ guilty
* * *
On the final day of trial, after the close of evidence
and closing arguments, the District Court prepared the jury for
its deliberations. In doing so, the District Court provided the
following instructions about the verdict form:
Take a look at the verdict slip. I set it up
-- simply because I think it may be helpful to
you in analyzing the case, I simply put the
counts and I set them up chronologically.
There's 15 of them. There's two types of
counts.
One type charges wire fraud . . . . The other
type of charge is aggravated identity theft.
The reason that there are different counts are
each time the government has alleged that the
crime was committed, that's a separate crime,
it involved a different, um, document or a
different setting. The government has argued
that it's the same scheme. I have nothing to
say about that. But each -- the law is that
each time the law is violated, that's a
different crime. That's what the counts
allege.
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And then I've explained each one and, um, you
have a large mass of exhibits and the
government suggests -- this is not me
suggesting, but I've at least adopted their
numbering, the government suggests that the
actual document, which is the evidence of the
particular crime being committed, where there
is a particular document is set forth with the
exhibit number. That's what they suggest,
it's not what I suggest, but this is so that
you'll look there in order to do your
analysis.
Let me say one other thing and we'll get into
it. On this evidence your verdict on each of
the 15 counts can be not guilty, it can be
guilty, or it can be any combination of not
guilty or guilty, with the following
exception. Let me take a look at Numbers 2
and 3, this is the example, but you'll see
this again in other pairings throughout this
verdict slip, and I use my Numbers 2 and 3
just to illustrate it.
The government says, they've charged in Count
3 that certain facts, which they say is
Exhibit 66, is evidence of wire fraud. They
also say, in Count 10, that the same facts is
evidence of aggravated identity theft. And
there is a relationship, and it's this. If
you find Mr. Moffett not guilty on Count 3,
the wire fraud, you must find him not guilty
on the related Count 10, aggravated identity
theft. The contrary is not true. If you find
Mr. Moffett guilty of wire fraud on Count 3,
he's not necessarily guilty on Count 10, and
you must go on and evaluate that.
At sidebar following that instruction, counsel for the
government asked the District Court to clarify the instruction.
The government explained that the District Court had told "the
jury that the exhibit number [on the verdict slip was] the evidence
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of a crime, but that's actually a reference to the wire, which is
a unit of the charge." Back in front of the jury, the District
Court then sought to clarify the instruction:
I think I said, um, trying to be helpful, I
pointed out that, um, the reference to a
specific exhibit was what the government says
is evidence of the -- of the wire fraud or the
aggravated identity theft. More specifically
it's pointed out that that is the document
that supposedly went over the wires. There
may be other documents that they claim is
evidence, but that's supposedly the document
that went over the wires.
The District Court released the jury to begin its
deliberations after providing the jury with other instructions not
relevant here. Following approximately an hour of deliberations,
the jury sent a note to the District Court. The note inquired,
"Can we please have a written description of what the charges are,
definitions and qualifications of wire fraud and identity theft?"
With the jury back in the courtroom, the District Court informed
the jurors that the answer to their question was yes, "but not
right away." The District Court explained that it would likely
take until the following morning for the court reporter to prepare
an exact version of what the court had said, but that the jurors
were free to reach a verdict in the meantime. The jury then
resumed deliberations and, just over two hours later, returned a
guilty verdict on all 15 charges.
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The District Court sentenced Moffett to 54 months in
prison on October 28, 2021, and final judgment issued on January
26, 2022. Moffett now timely appeals his convictions.
II.
Moffett contends on appeal that the District Court
deprived Moffett of his "right to a trial by jury" under the Sixth
Amendment to the U.S. Constitution by submitting the verdict form
for the jury's use. He further contends that the government has
failed to show that the constitutional violation was harmless
beyond a reasonable doubt and thus that each of the convictions
must be vacated. We agree.
A.
The Sixth Amendment provides in relevant part:
In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public
trial, by an impartial jury of the State and
district wherein the crime shall have been
committed, which district shall have been
previously ascertained by law, and to be
informed of the nature and cause of the
accusation . . . .
The Supreme Court of the United States in construing
this constitutional guarantee has long recognized that district
courts have substantial discretion both in administering trials in
criminal cases and in managing jury deliberations in such trials.
See Quercia v. United States, 289 U.S. 466, 469–70 (1933);
Bollenbach v. United States, 326 U.S. 607, 612 (1946). The Court
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has also long made clear, however, that there are "inherent
limitations" on the "privilege of the judge to comment on the
facts." Quercia, 289 U.S. at 470. 4F
These "inherent limitations" reflect the practical
reality that "under any system of jury trials the influence of the
trial judge on the jury is necessarily and properly of great
weight" and that a trial judge's "lightest word or intimation is
received with deference[.]" Starr v. United States, 153 U.S. 614,
626 (1894). The Court for that reason has long admonished trial
judges that, in addressing the evidence, "great care should be
exercised that such expression should be so given as not to
mislead, and especially that it should not be one-sided." Id.
The caution aims to ensure that trial judges do not in addressing
the evidence "interfere with the jurors' independent judgment in
a manner contrary to the interests of the accused." United States
v. Martin Linen Supply Co., 430 U.S. 564, 573 (1977).
Consistent with this understanding of the Sixth
Amendment, our precedents recognize that the jury must be free not
only from "direct control in its verdict" by the district court
but also "from judicial pressure" "[i]n the exercise of its
functions." United States v. Spock, 416 F.2d 165, 181 (1st Cir.
1969) ("Put simply, the right to be tried by a jury of one's peers
finally exacted from the king would be meaningless if the king's
judges could call the turn."). We have thus explained that a
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district court in commenting on the evidence to the jury in a
criminal case may not do so in a manner that "usurp[s] the jury's
factfinding role," United States v. Rivera-Santiago, 107 F.3d 960,
965 (1st Cir. 1997) (per curiam), or "relieve[s] the prosecution
of [its] burden in an unfair way," United States v. Argentine, 814
F.2d 783, 787–89 (1st Cir. 1987).
Accordingly, in Rivera-Santiago, we held that a district
court's answer to a jury's question that "selected only a part of
[a witness's] testimony given on direct examination to be read"
back to the jury violated the defendants' Sixth Amendment right to
a trial by jury. 107 F.3d at 965-67. We explained that the
violation resulted because the district court's answer to the
jury's question "culled the evidence" in a manner that was contrary
to the defendants' interests. Id. at 967. That was so, we
explained, because the district court through the answer
effectively directed the jury to consider only certain testimony
that favored the government, even though "defendants [a]re
entitled to have their theory of the case, as developed through
their evidence, presented to the jury on an equal footing with the
government's theory of the case." Id.
We also have indicated that a district court may cross
the constitutional line even without in effect directing the jury
to consider only the government's evidence. We have indicated
that the constitutional line also may be crossed whenever the
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district court, in addressing the jury regarding evidence, places
"undue weight" on portions of the government's evidence and thereby
tilts the trial in that party's favor. United States v. Almonte,
594 F.2d 261, 265 (1st Cir. 1979) (holding that the district court
did not err in declining to answer a jury question seeking
reutterance of trial testimony related to "the timing of [a
particular day's] events," citing United States v. Baxter, 492
F.2d 150, 175 (9th Cir. 1973)); Baxter, 492 F.2d at 175 n.19
(explaining that the district court's denial of a jury's request
for testimony from specific witnesses was proper because doing so
would have "give[n] over-emphasis to that particular area of
evidence").
B.
We do not confront here a district court's response to
a jury's question regarding the evidence as we confronted in prior
cases that have addressed Sixth Amendment challenges based on
contentions that the district court had commented on the evidence
in an impermissible manner. Nor do we consider here an instance
of a trial judge commenting on the evidence in a criminal case
that precisely mirrors any fact pattern that either our Circuit or
-- as far as we are aware -- any other has encountered. But, the
novelty of this fact pattern does not insulate the District Court's
choice to invite the government to select the exhibit to be
referenced with respect to each count on the verdict form from
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Sixth Amendment review. If anything, the novelty of that choice
tends to heighten our concern that, as Moffett contends, that
choice fell outside the District Court's considerable discretion
to manage a criminal trial. See Spock, 416 F.2d at 183 ("We are
not necessarily opposed to new [criminal] procedures just because
they are new, but they should be adopted with great hesitation.").
That said, the novelty of the District Court's choice in
this case does not suffice in and of itself to show that the
procedure was violative of the Sixth Amendment. Instead, under
our precedents, we must conduct a "review of the record" so that
we may determine whether, given the surrounding "context," the
District Court's submission of this verdict form for use by the
jury "usurped the jury's factfinding role," Rivera-Santiago, 107
F.3d at 965, in a "manner contrary to the interests of the
accused," Martin Linen Supply, 430 U.S. at 573.
The parties appear to agree that, in conducting this
inquiry, we must review the District Court's choice to submit this
verdict form to the jury under an abuse of discretion standard,
given that Moffett preserved this challenge below. We proceed on
that understanding. See United States v. Ellis, 168 F.3d 558, 562
(1st Cir. 1999); see also Rivera-Santiago, 107 F.3d at 966 n.6
(citing United States v. Aubin, 961 F.2d 980, 983 (1st Cir. 1992)).
And, as we will explain, we conclude that the District Court did
abuse its discretion here, even after accounting for the jury
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instructions that the District Court gave that pertained to the
verdict form.
The government is right that the inclusion of the exhibit
numbers on the verdict form did not implicitly "direct the jury"
to find Moffett guilty based on certain pieces of evidence.
Indeed, the District Court clarified in instructing the jury that
the listed exhibits represented only what the government had
alleged were the "wires" and "uses." But, we are nonetheless
persuaded that -- in context -- the District Court, through the
verdict form and the instructions given to the jury that pertained
to that form, invaded the jury's power over factfinding by over-
emphasizing certain of the government's evidence in a manner that
was contrary to Moffett's interests.
1.
The District Court gave the verdict form directly to the
jury and that form was printed under official court caption. The
form then referred to a single government-selected exhibit -- and
only that government-selected exhibit, among all the evidence
introduced at trial -- for each of the listed counts.
Moreover, the verdict form did not contain any language
that suggested that the exhibit that was referenced for each count
was to be considered only for a limited purpose as to that count.
Instead, the form simply identified the government-selected
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exhibit in parentheses next to each count, while refencing no other
evidence.
To be sure, none of the government-selected exhibits
that is uniquely listed for each count on its own contained
sufficient evidence to prove all of the elements of the offense
charged for that count. But, the exhibit referenced in each
instance contained the very evidence that the government claimed
at trial established that Moffett had made the alleged
"false . . . representations," 18 U.S.C. § 1343, and/or "uses [of]
a means of identification of another person," 18 U.S.C. § 1028A.
Thus, for each count, an especially salient component of the
evidence on which the government relied in support of the various
charges was singled out, while no reference was made to any exhibit
or other evidence that Moffett had highlighted at trial in his
defense to those same charges.
2.
The government does not -- because it cannot -- deny
that the verdict form had the qualities that we have just
described. The government nonetheless contends that the District
Court's choice to submit such a verdict form to the jury did not
constitute an abuse of discretion for Sixth Amendment purposes in
light of the instructions that the District Court gave to the jury
that pertained both to the verdict form and to the evidence more
generally.
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Specifically, the government contends that the District
Court explained in those instructions that the exhibits were
referenced on the verdict form only for the purpose of identifying
which "wire" and which "use" of a doctor's information was at issue
in each count. The government then adds that Moffett did not
dispute at trial -- nor does he dispute on appeal -- that the
referenced exhibit did in fact refer to a "wire" or "use" of
information that had occurred, or that the "wire" or "use" to which
each exhibit referred was in fact the "wire" or "use" that the
government identified as the predicate "wire" or "use" for the
charge set forth in the count. In addition, the government
emphasizes that the District Court instructed the jury to review
all the evidence in reaching its own conclusions about the ultimate
question of whether the government had proved the elements
necessary to establish each crime.
The problem with the government's attempt to fend off
Moffett's Sixth Amendment challenge by pointing to the jury
instructions is that in certain respects the instructions added to
the emphasis that the verdict form already gave to the government-
selected exhibits merely by referencing them while not otherwise
referencing any other evidence. For example, in the course of
explaining the verdict form to the jury and the references to the
exhibits that the form contains, the District Court stated: "you
have a large mass of exhibits and . . . the government suggests
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that the [exhibits listed on the form are] the evidence of the
particular crime being committed." (Emphasis added.) The District
Court then added, "it's not what I suggest, but this is so that
you'll look there in order to do your analysis." (Emphasis added.)
The District Court went on thereafter to state that "some of these
exhibits, which the government says are evidence of wire fraud,
the government also says are evidence that Mr. Moffett is guilty
of aggravated identity theft." And, even after the government
asked the District Court to clarify the purpose for which the
verdict form was referencing the government-selected exhibits, the
District Court simply instructed the jury that "I pointed out
that . . . the reference to a specific exhibit was what the
government says is evidence of the . . . wire fraud or the
aggravated identity theft. More specifically it's pointed out
that that is the document that supposedly went over the wires."
Thus, the record shows that the District Court
instructed the jury that the government-selected exhibit
referenced in each count constituted what the government alleged
was "the evidence of the particular crime being committed" and
that the jury was to "look there in order to do [its] analysis."
(Emphases added.) As a result, even when considered in the context
of the jury instructions, the verdict form did not merely direct
the jury's attention in a neutral manner to the "parts of [the
evidence] which" the District Court appropriately deemed to be
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"important." United States v. Brennan, 994 F.2d 918, 929 (1st
Cir. 1993) (quoting Quercia, 289 U.S. at 469)). Rather, even when
considered in that fuller context, the verdict form impermissibly
privileged a portion of the government's evidence over that of the
defendant's, at least by giving "undue weight" to that evidence by
singling it out in such a salient manner. Almonte, 594 F.2d at
265; see Quercia, 289 U.S. at 470.
After all, unlike in Brennan, the District Court did not
indicate that certain categories of evidence may be relevant to
particular issues.3 Rather, here, the District Court singled out
certain exhibits that were being relied on by the government --
and the government alone -- to make out its criminal case against
the defendant.
3.
The government's remaining argument as to why we should
not find error also comes up short. Here, the government claims
that the District Court's decision to list a government-selected
exhibit for each count on the verdict form was intended only to
serve the limited purpose of matching the "wires" and "uses"
alleged in the indictment to the charged counts on the verdict
3 The challenged instruction in Brennan was: "In addition,
with regard to these charges, you may also consider the evidence
concerning Mr. McHugh's loan authority and question whether he
acted with intent to injure [the Bank] in his dealings with Mr.
Brennan." 994 F.2d at 929. The district court there did not
identify particular evidence or link it to particular counts. Id.
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form. The government proceeds to argue that, due to this limited
purpose, the District Court's decision to construct the verdict
form in a manner that included the references to the government-
selected exhibits should be understood as a matter of mere trial
administration that fell within the broad range of discretion that
a district court has to manage a complicated trial.
To assess the government's contention in this regard, it
helps to add some further detail about each of the exhibits in
question. We thus briefly summarize each of them:
• Exhibit 42 (Count 1) (Wire Fraud): "[S]creen shot[s]" of
Aegerion's salesforce.com account from May 2014 showing
data entries regarding various communications with
insurance companies about patients' medical diagnoses.
Testimony elicited by the government at trial suggested
that the information communicated to the insurance
companies was false.
• Exhibit 53 (Count 2) (Wire Fraud): "[S]creen shot[s]" of
Aegerion's salesforce.com account from May 2014 showing
data entries regarding various communications with
insurance companies about patients' medical diagnoses.
Testimony elicited by the government at trial suggested
that the information communicated to the insurance
companies was false.
• Exhibit 66 (Counts 3 & 10) (Wire Fraud & Aggravated
Identity Theft): A May 14, 2014 fax of a letter sent
from a healthcare provider to an insurance company
appealing the denial of coverage for Juxtapid for a
patient. Testimony elicited by the government at trial
suggested that the letter contained false information
about the patient's medical diagnoses and that the fax
cover sheet contained Moffett's handwriting.
• Exhibit 77 (Counts 4 & 11) (Wire Fraud & Aggravated
Identity Theft): A May 14, 2014 fax of a letter sent
from a healthcare provider to an insurance company
seeking coverage for Juxtapid for a patient. Testimony
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elicited by the government at trial suggested that
Moffett had prepared the letter but that a doctor refused
to sign it because it contained false medical
information, and that the fax cover sheet contained
Moffett's handwriting.
• Exhibit 86 (Count 5) (Wire Fraud): An August 5, 2014
email from Moffett to an Aegerion employee stating that
"new prescriptions for patients" had been faxed to a
provider. Testimony elicited by the government at trial
suggested that the patient's diagnostic information in
the faxed documents was false.
• Exhibit 93 (Count 12) (Aggravated Identity Theft): An
August 5, 2014 fax of a drug authorization form sent
from a healthcare provider to an insurance company
seeking coverage for Juxtapid. Testimony elicited by
the government at trial suggested that the information
on the form had been falsified and that the form
contained Moffett's handwriting.
• Exhibit 96 (Counts 6 & 13) (Wire Fraud and Aggravated
Identity Theft): An August 20, 2014 email from Moffett
to an Aegerion employee with attachments showing a fax
of the same date sent from a healthcare provider to
Aegerion containing a patient's medical documents, some
of which contained information that the testimony
elicited by the government at trial suggested was false.
Testimony also suggested the fax cover sheet contained
Moffett's handwriting.
• Exhibit 109 (Counts 7 & 14) (Wire Fraud & Aggravated
Identity Theft): A September 17, 2014 fax of a letter
sent from a healthcare provider to an insurance company
appealing the denial of coverage for Juxtapid for a
patient. Testimony elicited by the government at trial
suggested that the doctor was not familiar with the
letter, that it contained false information about the
patient's medical diagnoses, and that the fax cover
sheet contained Moffett's handwriting.
• Exhibit 124 (Count 8) (Wire Fraud): An August 14, 2014
fax of a letter sent from a healthcare provider to an
insurance company appealing the denial of coverage for
Juxtapid for a patient. Testimony elicited by the
government at trial suggested that the doctor whose
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signature appeared on the letter had never approved or
signed it, that the letter contained false medical
information, and that the fax cover sheet contained the
handwriting of Moffett's ex-girlfriend, who testified
that Moffett provided her with information necessary to
fill out such forms.
• Exhibit 148 (Counts 9 & 15) (Wire Fraud & Aggravated
Identity Theft): A September 4, 2015 fax of an
authorization form sent from a healthcare provider to an
insurance company seeking coverage for Juxtapid for a
patient. Testimony elicited by the government at trial
suggested that the medical information was false, that
the doctor had not approved the form, and that it
contained Moffett's handwriting.
These summaries of the contents of the referenced
government-selected exhibits reveal that, with respect to the wire
fraud counts, the listing of the government-selected exhibits on
the verdict form did more than simply provide proof that a certain
"wire" had been sent, in the way that, say, evidence of meta-data
about a wire transmission might. Instead, these summaries make
clear that the referenced exhibits constituted evidence of the
content of the communication contained in the "wire" that pertained
to each count that plainly bears not only on the element of the
wire fraud offense that concerns whether there was a "wire" but
also on other elements of that offense. For example, in addition
to constituting the "wires" themselves, each exhibit contained or
referred to medical information that the government argued at trial
constituted false statements that Moffett himself added or caused
to be added to the documents that constituted the alleged "wires"
themselves. It should therefore be unsurprising that each of the
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exhibits was also the subject of significant trial testimony that
the government argued tended to link Moffett to each "wire."
The same is no less true if we consider the exhibits
referenced in connection with the aggravated identity theft
counts, as they, too, were hardly barebones. They each contained
not only the doctor's information that the government alleged that
Moffett had "used," but also the handwriting that the government
had labored at trial to convince the jury was Moffett's.
Thus, even if the "wire" element was not itself in
material dispute for any of the wire fraud counts, and even if the
fact that a doctor's information was "used" was similarly not in
material dispute for any of the identity theft counts, it cannot
be said that the exhibits were relevant to the jury's consideration
of the charges only for the purpose of proving those singular
elements of any of the charged offenses. And, as noted, the
government makes no such contention, despite asserting that the
exhibits were listed for the limited purpose of identifying the
"wires" and "uses" at issue.4 We thus reject the government's
contention that, in context, the references to the exhibits on the
verdict form did not "place undue weight" on specific parts of the
4 The District Court did not provide an instruction that the
jury could consider the referenced exhibits only for such a limited
purpose, and we therefore do not consider what the effect of such
an instruction would be on the error or harm identified in this
case.
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government's evidence, Almonte, 594 F.2d at 265, because the
exhibits that were referred to on the jury form bore only on
uncontested aspects of the case against Moffett. For, because the
record shows otherwise, it follows that we cannot accept the
government's argument that the District Court's choice to submit
this verdict form fell within the District Court's considerable
discretion to organize a complicated criminal trial in a manner
that would avoid jury confusion. See United States v. Miller, 738
F.3d 361, 383 (D.C. Cir. 2013) (noting the availability of "other
options" that do not implicate the "line between judicial
clarification and impermissible judicial interference" in holding
that the district court abused its discretion in referring to
evidence in its answer to the jury's question). Indeed, at oral
argument, the government itself acknowledged (though it did not
raise this concern to the District Court) that "this is not
something district courts should be doing."
III.
Having determined that the District Court abused its
discretion in violation of Moffett's Sixth Amendment right by
submitting the verdict form that we have described, we still must
determine "whether or not the error is such that it requires us to
reverse the convictions on some or all of the wire fraud [and
identity theft] counts." Argentine, 814 F.2d at 788–89. In other
words, we must determine whether the error was a harmless one.
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Because the District Court's error in submitting this
verdict form to the jury is of a "constitutional dimension," the
government bears the burden of establishing that the error was
harmless beyond a reasonable doubt. Rivera-Santiago, 107 F.3d at
966–67; see also Argentine, 814 F.2d at 789. Thus, the government
must show that, on this record, there is no "reasonable possibility
that the error at issue influenced the jury in reaching the
verdict." Rivera-Santiago, 107 F.3d at 967.5
To prove each wire fraud violation, the government had
the burden of proving beyond a reasonable doubt that Moffett
"devised or intend[ed] to devise" a "scheme or artifice to defraud,
or for obtaining money or property by means of false or fraudulent
pretenses, representations, or promises," and "transmit[ed] or
cause[d] to be transmitted by means of wire" a communication in
interstate or foreign commerce "for the purpose of executing such
scheme or artifice." 18 U.S.C. § 1343. And, to prove each
5 In arguing that any error here was harmless, the government
cites to a case articulating our harmless error standard for "non-
constitutional evidentiary errors." United States v. Hicks, 575
F.3d 130, 143 (1st Cir. 2009) ("We review non-constitutional
evidentiary errors for harmlessness; an error is harmless if it is
'highly probable that the error did not influence the verdict.'"
(quoting United States v. Roberson, 459 F.3d 39, 49 (1st Cir.
2006))). Because we find a constitutional error similar in kind
to the errors that we found in Rivera-Santiago and Argentine,
however, we follow those cases and consider the error here to be
of a "constitutional dimension." 107 F.3d at 967; 814 F.2d at
789. And, aside from citing Hicks, the government develops no
argument as to why we should not do so.
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aggravated identity theft count, the government had the burden of
proving that, "in relation to [one of the wire fraud offenses],"
Moffett "knowingly . . . use[d], without lawful authority, a means
of identification of another person."6
In arguing that any error with respect to the verdict
form was harmless, the government presses a similar argument to
the one that, as we have just seen, it advanced in service of its
argument that there was no error at all. Specifically, the
government argues that the District Court's inclusion of the
exhibits on the verdict form was harmless even if in error because
their inclusion on that form at most placed emphasis on evidence
that established what was in the end only an uncontested fact --
that a communication qualifying as a "wire" for each count had
been sent, or that a doctor's information had been "use[d]." But,
as we have already explained, the exhibits themselves demonstrate
that they contain evidence relevant not only to establishing those
6 The nature of the identity theft statute is such that the
government's ability to prove those charges turns on its ability
to prove the wire fraud charges. See 18 U.S.C. § 1028A ("Whoever
during and in relation to [a wire fraud offense],
knowingly . . . uses, without lawful authority, a means of
identification of another person shall, in addition to the
punishment provided for such felony, be sentenced to a term of
imprisonment of 2 years."). Thus, because each identity theft
count is necessarily tied to a wire fraud count, it follows that
if the District Court's error was not harmless with respect to a
wire fraud count, the error was not harmless with respect to the
corresponding identity theft count. Regardless, though, we
conclude that the error cannot be construed as harmless as to any
of the counts in any event.
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singular elements but also to the jury's consideration of other
elements of the charged crimes. Thus, the content of the exhibits
is such that there is reason to be concerned that the verdict form,
at least when combined with the District Court's instruction to
the jury that the exhibits referenced on the verdict form
constituted "the evidence" of the charged offenses and to "look
there" to do "your analysis," had the effect of tilting the playing
field to the government's advantage. Given the nature of the
exhibits, there is reason to be concerned that the express
reference to them -- and to no other evidence -- on the verdict
form would draw the jurors' attention away from the evidence that
Moffett put forward to show that he was not guilty of any of the
charged offenses beyond reasonable doubt and toward the case that
the government was making for finding him guilty of each of those
offenses.7
7To the extent that the government suggests that we should
assign any weight to Moffett's failure to specifically contest the
existence of the wires at trial, we reject the argument. Indeed,
in Argentine, the government argued that the Court should write
off any concerns about the implicit suggestion that the defendant
had in fact participated in the wires at issue (there telephone
calls) because "these matters were undisputed." 814 F.2d at 788.
As we recognized, this "misses the point" because "it
is . . . settled, in a criminal case, that '[t]he plea of not
guilty places every issue in doubt, and not even undisputed fact
may be removed from the jury's consideration,'" and therefore "[n]o
matter how persuasive the government's evidence may seem to the
court, there is no burden on a defendant to dispute it." Id.
(alterations in original) (first quoting United States v. Natale,
526 F.2d 1160, 1167 (2d Cir. 1975), cert. denied, 425 U.S. 950
- 29 -
To be sure, the government does also appear to suggest
that any error here was harmless for the distinct reason that any
such worry is misplaced simply because none of the exhibits in and
of itself sufficed to prove all of the elements of the offense
charged in any count. That is significant, the government
contends, because we must assume that the jury followed the
District Court's general instruction to consider all the evidence
in the record on equal footing. Thus, the government reasons,
with some force, that we should not understand the jury's
evaluation of the evidentiary record to have been influenced by
any emphasis of the government-selected exhibits on the verdict
form, because the jury to convict would have had to have looked
beyond the exhibits referenced on the verdict form in any event
and so must be assumed to have accounted for any competing evidence
before it that Moffett had introduced.
The problem with the government's theory in this regard,
however, is that it was the jury's task to weigh a "large mass" of
evidence to determine as to each wire fraud count whether Moffett
was guilty of devising or intending to devise a scheme to defraud
or to obtain money by means of false representations in an
interstate wire. 18 U.S.C. § 1343. And, it was the jury's task
to then weigh that same evidence to determine whether Moffett had
(1976), then DeCecco v. United States, 338 F.2d 797, 798 (1st Cir.
1964)).
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"knowingly . . . use[d], without lawful authority, a means of
identification of another person" in the commission of each wire
fraud offense. 18 U.S.C. § 1028A. The concern is thus that this
process "might well have been shortcircuited by [the District
Court's] injection of the incriminating aspect[s] of the evidence"
through the references to the government-selected exhibits on the
verdict form. Rivera-Santiago, 107 F.3d at 967 (rejecting
harmless error argument on this basis).
True, the government makes a strong case for our
understanding that the jury did not stop its assessment of the
record after consulting only the exhibits referenced on the verdict
form. But the jury's neutral assessment of the evidence could
have been knocked off course nonetheless in making its way through
the evidentiary morass. In particular, there is reason to be
concerned that the jury would have started with the government's
hand-picked exhibits referenced on the verdict form -- and then
considered the case through the framing of it that the government
had pressed -- not because it chose on its own to do so for reasons
of efficiency but because it understood the District Court to have
encouraged it to do so.
Thus, even if the circumstantial evidence of Moffett's
guilt was "significant," we cannot be assured that the jury would
have ultimately viewed all the evidence together -- including
Moffett's exculpatory evidence -- in the same neutral manner that
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it would have absent the District Court's decision to list on the
verdict form only the precise exhibits that the government was
arguing showed through their contents that Moffett had committed
the charged crimes and then to instruct the jury both that those
exhibits were in the government's view "the evidence of the
particular crime" and to "look there in order to do your analysis."
See id.; see also Spock, 416 F.2d at 182 (explaining that special
verdict forms are disfavored in criminal cases because a jury's
consideration of charges from the lens of a "step by step"
framework favors the government and is more likely to lead to a
guilty verdict); cf. Braley v. Gladden, 403 F.2d 858, 860 (9th
Cir. 1968) (where the district court had failed to include a "not
guilty" option on the verdict form, noting that, while "it may not
[have been] unreasonable to assume that the jury inferred from the
[the district court's] instructions that it might be empowered to
write its own form of a verdict of not guilty, it [would have been]
equally reasonable to assume that the jury inferred that the judge
intended that only one verdict was possible"). And as this is not
a case in which the evidence of guilt is overwhelming, we conclude
that "there is a reasonable possibility that the error at issue
influenced the jury in reaching its verdicts in this case" and
thus that "the verdicts cannot stand." Rivera-Santiago, 107 F.3d
at 967.
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IV.
For the foregoing reasons, we VACATE Moffett's
convictions as to all counts and REMAND for further proceedings
not inconsistent with this opinion.
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