United States v. Moran

United States Court of Appeals
For the First Circuit

No. 03-2148

UNITED STATES OF AMERICA,

Appellee,

v.

NORA F. MORAN,

Defendant, Appellant.

No. 03-2149

UNITED STATES OF AMERICA,

Appellee,

v.

JOHN M. MORAN,

Defendant, Appellant.

____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Reginald C. Lindsay, U.S. District Judge]

Before

Selya, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.
 Chauncey B. Wood, with whom Jean Larocque and Shea, Larocque
& Wood were on brief, for appellant Nora F. Moran.
Francis J. DiMento, with whom Jason A. Kosow and DiMento &
Sullivan were on brief, for appellant John M. Moran.
Christopher L. Varner, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, was on brief, for
appellee.

December 15, 2004
 SELYA, Circuit Judge. This case is before us for a

second time — but with the parties' roles reversed. In its first

iteration, a panel of this court set aside the district court's

entry of judgment n.o.v. for the defendants and reinstated guilty

verdicts returned by the jury. See United States v. Moran, 312

F.3d 480 (1st Cir. 2002) (Moran I). The district court

subsequently declared untimely the defendants' belated efforts to

secure a new trial and imposed sentence. The defendants now

appeal.

This time around, we are asked to reconsider the original

panel decision; to reverse the district court's determination that

the defendants did not file a timeous motion for new trial; and to

grant relief from the judgments of conviction on the ground that

the defendants were burdened by ineffective assistance of counsel.

In addition, the defendants advance, for the first time, claims of

instructional error and prosecutorial misconduct. We reject

outright the vast majority of these animadversions. As to the

ineffective assistance claims, however, we find the record

insufficient to rule definitively, and so dismiss those claims

without prejudice to their renewal in proceedings under 28 U.S.C.

§ 2255.

I. BACKGROUND

We sketch the facts of the offenses of conviction,

referring the reader who hungers for more exegetic detail to our

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earlier opinion. See Moran I, 312 F.3d at 482-87. Following the

established praxis, we rehearse these facts in the light most

compatible with the verdicts. See, e.g., United States v. Hussein,

351 F.3d 9, 11 (1st Cir. 2003).

In October of 1986, John M. Moran, an attorney who

represented, inter alios, First American Bank for Savings, met with

Edgar Puente and David Boersner, aspiring real estate developers,

who were seeking financing for a pair of projects in Boston,

Massachusetts. The developers hired Mr. Moran as their mortgage

broker and agreed to pay him 1.5% of the face amount of any loans

that he procured on their behalf. Mr. Moran arranged a meeting

between the developers and a First American loan officer, Edmund

Noke, during which Noke agreed to lend Puente and Boersner

$17,000,000. Following this meeting, the developers agreed that

Mr. Moran would receive a 20% profit interest in the two projects.

His wife, Nora F. Moran — who sat on the board of directors of

First American — created the Moran Development Group Trust (MDG

Trust) to hold the equity interest and named herself sole trustee.

Under state law, the identity of the beneficiaries of the MDG Trust

was not a matter of public record.

In November of 1986, Mr. Moran submitted formal loan

proposals to First American on behalf of Puente and Boersner. He

disclosed neither his 20% profit interest nor his anticipated 1.5%

brokerage fee, even though he was duty bound to do so. First

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American's executive committee approved the loans in December, and

the bank designated Mr. Moran as its closing attorney. Mr. Moran

conducted the closing, charged the bank handsomely for his

services, and (unbeknownst to the bank) collected $255,000 from the

developers. He never submitted the customary settlement sheets,

which would have detailed the use of the loan proceeds (and, thus,

would have revealed his conflicted interests).

The record indicates that the Puente/Boersner loans were

among 153 loans approved that month by the bank's executive

committee. The committee considered those loans for approval in

two groups. The first vote approved a block of 140 loans, and the

second approved the remaining 13. The Puente/Boersner loans were

part of the second (smaller) lot. The executive committee sent a

report of its December activities to the bank's board of directors,

but only provided details as to the first batch of loans.

In January 1987, the board of directors, including Mrs.

Moran, met to consider the December report. The parties fiercely

contest exactly what transpired at that meeting. The government's

version, disputed by the defendants, is that Mrs. Moran voted

either to ratify or approve the Puente/Boersner loans instead of

disqualifying herself due to her and her husband's financial

interests. Whatever happened that day, it is clear that Mrs. Moran

never disclosed to First American the Morans' financial interests

in the loans.

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 By 1988, the Puente/Boersner loans were underwater.

Spurred by the prospect of a substantial loss, First American began

an investigation that would eventually uncover the manifold

irregularities surrounding the loans and the Morans' interests in

them. In a meeting with First American's outside counsel, Mrs.

Moran admitted that she knew about her husband's financial stake at

the time the loans were approved. For his part, Mr. Moran claimed

that he had fully recounted his conflicted interests to Noke. The

bank's records did not reflect any such disclosure.

Even though the Puente/Boersner loans eventually soured

and the bank failed, the saga continued. On July 9, 1997, a

federal grand jury indicted the Morans for, inter alia, committing

bank fraud by failing to disclose their financial interests in the

Puente/Boersner projects, 18 U.S.C. § 1344, aiding and abetting

bank fraud, id. § 2, and conspiring to commit bank fraud, id. §

371.1 Trial commenced on May 17, 1999. As to Mr. Moran, the

government introduced evidence describing his fiduciary duties to

the bank. It also adduced evidence showing that the paperwork he

had submitted to First American did not disclose either the

brokerage or profit-sharing arrangements. Finally, Noke testified

that Mr. Moran never divulged his economic stake in the development

1
The indictment contained a second, unrelated count of bank
fraud against Mrs. Moran. The district court granted her motion
for judgment of acquittal as to that count at the close of the
government's case in chief, Moran I, 312 F.3d at 485-86, and we
eschew any further reference to it.

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projects and stated that such a revelation would have led to the

filing of an insider transaction report. The government then

showed that no such report appeared in the bank's archives.

The government's case against Mrs. Moran was thinner. It

did, however, introduce evidence limning her regulatory and

fiduciary duties and showing that she was involved in various ways

with the Puente/Boersner loans (e.g., she had visited the sites

during a pre-loan inspection, had created the MDG Trust and named

herself as trustee, and was generally privy to her husband's

financial dealings). The government also proved that Mrs. Moran

had failed to apprise her fellow board members about the Morans'

financial interests in the Puente/Boersner projects.2

The defense moved for judgment of acquittal following the

close of the government's case in chief. Fed. R. Crim. P. 29(a).

The district court denied the motions. During the defense case,

Mr. Moran testified that he had made full disclosure to Noke. Mrs.

Moran did not testify. The government presented one rebuttal

witness. At the close of all the evidence, the defense again moved

for judgment of acquittal. The district court reserved decision,

Fed. R. Crim. P. 29(b), and the jury found the defendants guilty on

all the submitted counts.

2
As mentioned above, the government tried to show that, on
January 15, 1987, Mrs. Moran had voted to ratify or approve the
Puente/Boersner loans, instead of disqualifying herself from the
vote. The Moran I panel did not rely on this evidence, see 312
F.3d at 492, and we do not dwell on it at this juncture.

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 The verdicts were recorded on July 14, 1999, and judgment

entered on that date. The next day, the Morans filed a renewed

motion for judgment of acquittal. See Fed. R. Crim. P. 29(c). The

district court granted the Morans an extension of time within which

to file supplemental memoranda. On September 15, each defendant

filed a supplemental memorandum that asked the court, among other

things, to treat the joint July 15 motion, in the alternative, as

a motion for new trial under Fed. R. Crim. P. 33. The government

opposed both the motion for judgment of acquittal and the requests

for conversion. The district court pondered the matter at length.3

On July 13, 2000, it granted the motion for judgment of acquittal

without addressing the conversion requests.

The government appealed from this ruling. We reversed.

Moran I, 312 F.3d at 494. As to Mr. Moran, we found ample evidence

to support the verdict: he had a plain duty to disclose his

sharply conflicted financial interests to the bank, and his

testimony that he had made the disclosure allowed the jury, based

on credibility and demeanor, to disbelieve him and credit Noke's

contrary testimony. Id. at 490-91. To buttress that permissible

finding, the record supported the conclusion that Mr. Moran

3
In October of 1999, the defendants jointly filed a separate
motion for a new trial based on newly discovered evidence
(specifically, alleged juror misconduct). That motion was timely.
See Fed. R. Crim. P. 33(b)(1). However, the district court denied
it on December 27, 1999. On appeal, the defendants do not attempt
to challenge that ruling.

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intentionally failed to disclose the information in order to gain

a financial advantage. Id. at 491. "In sum, there was sufficient

evidence to allow a rational jury to conclude, beyond a reasonable

doubt, that . . . Moran concealed his financial arrangements with

Puente and Boersner . . . pursuant to an affirmative endeavor

calculated to defraud First American." Id. at 491-92.

As to Mrs. Moran, we found that although the government's

theory that she had voted to ratify or approve the Puente/Boersner

loans did not pass muster, see supra note 2, there were other,

independently sufficient grounds for upholding the verdict. Id. at

492. Specifically, the government had presented adequate evidence

to allow a rational jury to conclude that Mrs. Moran, "aware of her

husband's outside dealings and arrangements concerning the projects

prior to the consummation of the transactions at issue, chose not

to disclose the conflicts . . . because she anticipated that a

financial windfall would accrue to her husband (and by extension to

her) should the loans be approved." Id. We also discerned

significant evidence that Mrs. Moran had aided and abetted her

husband's scheme: she accompanied her husband on an inspection of

the properties before the loan applications were submitted; she

created the MDG Trust two days before the bank's executive

committee approved the loans; and she named herself as trustee

instead of Mr. Moran's secretary (as was their custom). Id. We

also observed that Mrs. Moran regularly shared financial matters

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with her husband and that she was, in her own right, "an astute

real estate broker and bank director familiar with the affirmative

duties of disclosure." Id. at 492. Taken as a whole, this

evidence sufficed for a rational jury to convict Mrs. Moran of both

bank fraud and conspiracy. Id. at 493-94. Chief Judge Boudin

joined in the reinstatement of the convictions but wrote separately

to suggest that the thinness of the evidence against Mrs. Moran

probably would support an order granting her a new trial if the

district court found that she had timely sought that anodyne. Id.

at 495-96 (Boudin, C.J., concurring).

On remand, the Morans moved for a hearing on their

outstanding requests to convert their Rule 29 motion into a Rule 33

motion. The government filed an opposition. The district court

rebuffed the conversion requests, ruling that the defendants had

not seasonably moved for a new trial. The court proceeded to

pronounce sentence. These timely appeals followed.

II. ANALYSIS

We divide our analysis into several discrete segments,

corresponding with the variety of the defendants' arguments.

A. Law of the Case.

We start with Mrs. Moran's explicit beseechment that we

revisit and repudiate the prior panel opinion. The government

counters that we are without the power to conduct such a review

under the law of the case doctrine and that, in all events, the

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predecessor panel got it right. We give each side half a loaf. On

the one hand, we agree with Mrs. Moran that, as a theoretical

matter, we have some authority — albeit limited authority — to

reexamine our earlier decision. On the other hand, we agree with

the government that the circumstances at hand do not warrant

displacing the earlier ruling.

The law of the case doctrine "posits that when a court

decides upon a rule of law, that decision should continue to govern

the same issues in subsequent stages in the same case." Arizona v.

California, 460 U.S. 605, 618 (1983). The doctrine has two

branches. The first branch — the mandate rule — prevents

relitigation in the trial court of matters that were explicitly or

implicitly decided by an earlier appellate decision in the same

case. United States v. Vigneau, 337 F.3d 62, 67 (1st Cir. 2003).

The second branch contemplates that a legal decision made at one

stage of a criminal or civil proceeding should remain the law of

that case throughout the litigation, unless and until the decision

is modified or overruled by a higher court. See Christianson v.

Colt Indus. Oper'g Corp., 486 U.S. 800, 816-17 (1988). That branch

binds, for example, a successor appellate panel in a second appeal

in the same case, see Cohen v. Brown Univ., 101 F.3d 155, 167-68

(1st Cir. 1996), and a successor trial judge who steps in to

complete a pending case, see Flibotte v. Pa. Truck Lines, Inc., 131

F.3d 21, 24-25 (1st Cir. 1997).

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 We are dealing here with the second branch of the law of

the case doctrine. That branch is prudential and, accordingly, is

more flexible than the first. We recently catalogued several

situations in which a court might appropriately reconsider its past

decision. See Ellis v. United States, 313 F.3d 636, 647-48 (1st

Cir. 2002). Mrs. Moran asseverates that this case comes within

that taxonomy as a case in which "reconsideration may be

appropriate to avoid manifest injustice." Id. at 648.

While Ellis recognized this exception — and we reaffirm

its vitality — a litigant seeking to fit within its confines must

negotiate a steep uphill climb. In this context, a finding of

manifest injustice requires, at a bare minimum, "a definite and

firm conviction that a prior ruling on a material matter is

unreasonable or obviously wrong," and resulted in prejudice. Id.

at 648 & n.5. Mrs. Moran cannot scale these heights.

In mounting her argument, Mrs. Moran relies exclusively

on Chief Judge Boudin's concurring opinion in Moran I. What she

seemingly fails to appreciate is that even the author of that

concurrence concluded that there was sufficient evidence upon which

to ground a conviction. Moran I, 312 F.3d at 495-96 (Boudin, C.J.,

concurring). That conclusion is antithetic to Mrs. Moran's claim

that the concurrence necessitates (or even supports) a finding that

the earlier panel opinion was, in the Ellis phrase, "unreasonable

or obviously wrong." Ellis, 313 F.3d at 648. Since Mrs. Moran

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points to no other authority to support such a finding, there is no

basis for suspecting manifest injustice here. We therefore decline

Mrs. Moran's invitation to disturb the decision in Moran I.

B. The Attempted Conversion.

A motion for a new trial in a federal criminal case,

other than a motion alleging newly discovered evidence, must be

filed within seven days next following the initial entry of

judgment. Fed. R. Crim. P. 33(b)(2). Mr. Moran filed no such

motion within the allotted interval. In an endeavor to repair this

omission, he asseverates that the defendants' timely motion for

judgment of acquittal should have been considered "alternatively"

as a motion for new trial and that, therefore, the district court

should have converted that Rule 29 motion into a Rule 33 motion for

a new trial.4 This asseveration is hopeless.

The motion to which Mr. Moran alludes was captioned

"Motion[] for Judgment of Acquittal and for Additional Time to File

Memoranda." The body of the motion reads in relevant part:

NOW COME defendants John and Nora
Moran, through counsel, and pursuant to Rule
29 of the Federal Rules of Criminal Procedure
and hereby renew their motions for this
Honorable Court to enter a judgment of
acquittal as to all counts of the Superseding
Indictment. In support thereof, counsel
states the following:

. . .

4
Although the Morans jointly filed the motion for judgment of
acquittal, Mrs. Moran does not pursue this line of argument.

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 6. . . . [T]he government failed to
offer sufficient evidence upon which a
rational jury could find the Defendants guilty
beyond a reasonable doubt of the crimes of
bank fraud and conspiracy to commit bank
fraud.

7. The government's evidence is
equally consistent with guilt as it is with
innocence which requires a judgment of
acquittal.

8. Assuming arguendo that the
government established that the Defendants
violated bank policy and/or civil banking
regulations, the government failed to
introduce any other conduct which may form the
basis for a bank fraud conviction.

9. The government has failed to prove
intent on the part of the Defendants.

10. Assuming arguendo that the
government has proven that the Defendants
intended to defraud First American Bank, it
failed to prove that their statements or
omissions were material.

WHEREFORE, based upon the foregoing arguing
[sic] arguments and authorities this Honorable
Court is respectfully urged to permit the
Defendants additional time to file memoranda
in support of the instant motion and to enter
a judgment of acquittal as to all counts of
the Superseding Indictment.

Mr. Moran suggests that this motion was sufficient to permit a

judge to grant him a new trial based on the following syllogism:

(i) the substance of a motion, not its title, controls; (ii) a

motion pointing out that the government did not have enough

evidence to convict a defendant, a priori, supports a claim that

the weight of the evidence tipped greatly in the defendant's favor;

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(iii) such a weight-of-the-evidence finding would support the

granting of a new trial; and so (iv) a motion seeking judgment of

acquittal because of insufficient evidence — like Mr. Moran's

motion — "logically" must encompass a request for a new trial.

Taken in the abstract, some of these premises are

correct. For example, we have stated that "[i]n addressing a post-

judgment motion, a court is not bound by the label that the movant

fastens to it" and may "reclassify the motion as its substance

suggests." Vasapolli v. Rostoff, 39 F.3d 27, 36 (1st Cir. 1994).

So too a timely motion for new trial may be granted when "evidence

preponderates heavily against the verdict." United States v.

Wilkerson, 251 F.3d 273, 278 (1st Cir. 2001) (internal quotation

marks omitted). But two swallows do not a summer make, and Mr.

Moran's syllogism falls apart when one analyzes its conclusion:

that a motion seeking a judgment of acquittal on sufficiency-of-

the-evidence grounds necessarily must be read as requesting a

consolation prize in the nature of a new trial.

That reading is neither logically compelled nor legally

appropriate. Where the motion papers cannot be fairly construed as

a request for a new trial, a district court does not have the

authority, sua sponte, to convert a motion for judgment of

acquittal into a motion for a new trial. United States v. Navarro

Viayra, 365 F.3d 790, 793 (9th Cir. 2004); United States v. Brown,

587 F.2d 187, 189 (5th Cir. 1979). That choice is the defendant's

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— and the defendant's alone. What is more, it must be exercised

within the time parameters prescribed by the Criminal Rules.

As said, Fed. R. Crim. P. 33(b)(2) specifies that a

motion for new trial, other than a motion grounded on newly

discovered evidence, must be filed within seven days of the jury

verdict (i.e., the entry of judgment). That rule was amended in

1966 to "make it clear that a judge has no power to order a new

trial on his own motion" once judgment has entered. Fed. R. Crim.

P. 33 advisory committee notes (1966 Amendments). Simultaneously,

the advisory committee made it pellucid that the Criminal Rules

forbid an interpretation that would allow a district court, on its

own initiative, to evade the temporal strictures of Rule 33 by

reading into a Rule 29 motion for judgment of acquittal a request

for a new trial, not solicited by the movant. See Fed. R. Crim. P.

29 advisory committee notes (1966 Amendments, Subdivision (c))

(explaining that Rule 29(c) precludes an interpretation that "gives

the [district] court power to order a new trial even though the

defendant . . . has not asked for one").

Viewed against this backdrop, it is transparently clear

that even if a motion for judgment of acquittal contains a

substantive basis sufficient to ground the grant of a new trial, a

court is without power to treat the motion as a motion for a new

trial unless it also contains some overt indication that the movant

desires that relief. The motion in this case contained no such

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indication. It invoked Rule 29, not Rule 33, and the only relief

requested was an outright acquittal. It was not until September

15, 1999 — well beyond the seven-day deadline — that Mr. Moran

informed the district court of his desire for a new trial. That

was too late.5

That disposes of this assignment of error. The Criminal

Rules gave Mr. Moran seven days within which to move for a new

trial. He failed to seek that relief, and his timely motion for

judgment of acquittal did not fill the void. Consequently, the

district court acted appropriately both in denying Mr. Moran's

belated conversion request and in refusing to grant a new trial.

C. Ineffective Assistance of Counsel.

The defendants next claim that the failure of their trial

attorneys to file timely new trial motions constitutes ineffective

assistance of counsel and, as such, justifies retrial. This claim,

raised for the first time in this venue, is premature.

5
Mr. Moran's citation to United States v. Baker, 432 F.2d 994
(10th Cir. 1970) (per curiam), is of little value. Baker states,
without analysis, that the motion for judgment of acquittal filed
by the defendant in that case "should be construed as containing
allegations sufficient to constitute a motion for new trial." Id.
at 995. The court neither described the contents of the motion nor
explained what relief the defendant had sought. To the extent that
Baker suggests that a district court can grant a new trial sua
sponte after the entry of judgment in a criminal case, without a
timely indication from the defendant that he desires one, its
holding is flatly inconsistent with the Criminal Rules and, like
the Ninth Circuit, see Navarro Viayra, 365 F.3d at 795, we
respectfully decline to follow it.

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 "We have held with a regularity bordering on the

monotonous that fact-specific claims of ineffective assistance

cannot make their debut on direct review of criminal convictions,

but, rather, must originally be presented to, and acted upon by,

the trial court." United States v. Mala, 7 F.3d 1058, 1063 (1st

Cir. 1993) (collecting cases). This rule is prudential in nature.

A claim of ineffective assistance requires a showing that the

attorney turned in a constitutionally deficient performance that

prejudiced the defendant's substantial rights. See Strickland v.

Washington, 466 U.S. 668, 687 (1984); United States v. Martinez-

Vargas, 321 F.3d 245, 251 (1st Cir. 2003). Claims of this sort

"typically require the resolution of factual issues that cannot

efficaciously be addressed in the first instance by an appellate

tribunal." Mala, 7 F.3d at 1063. In addition, the insights of the

trier, who has seen and heard the witnesses at first hand and

watched the dynamics of the trial unfold, are often of great

assistance. See, e.g., United States v. Fish, 34 F.3d 488, 494 n.4

(7th Cir. 1994); United States v. McGill, 952 F.2d 16, 19 (1st Cir.

1991).

This is such a case. No ineffective assistance claim

surfaced in the district court, and the record is barren of

evidence as to why the lawyers did what they did. There are both

tactical and strategic reasons why a party might seek a judgment of

acquittal but not a new trial (for example, a fear that the

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prosecution will learn from its mistakes and put in a more

persuasive case the second time around, a fear that the

decisionmaker will take a request for acquittal less seriously if

a possible compromise — such as a new trial — is on the table, or

a fear that a shift in judges will lead to a stiffer sentence).

Although hindsight is always 20/20, we cannot tell from this record

whether the decision not to seek a new trial, when made, was a

calculated stratagem or a mere oversight. Factfinding will be

required to make that determination, which means that the district

court should hear the claim in the first instance. See, e.g.,

McGill, 952 F.2d at 19.

We add, moreover, that even if the failure to ask for a

new trial betokens objectively unreasonable (and, therefore,

constitutionally deficient) performance on the part of the lawyers

— a matter on which we take no view — it remains to be determined

whether any such failure was prejudicial within the meaning of

Strickland. A finding of prejudice here would require a subsidiary

finding that, but for the error, the moving defendant probably

would have received a new trial. See, e.g., Flores v. Demskie, 215

F.3d 293, 305 (2d Cir. 2000). That question is not open and shut.

Each defendant must independently demonstrate that, given the

holding of this court in Moran I, an objectively reasonable

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district court would likely have granted a new trial.6 See Butcher

v. United States, 368 F.3d 1290, 1294-95 (11th Cir. 2004); Ouber v.

Guarino, 293 F.3d 19, 32-33, 33 n.10 (1st Cir. 2002). The nisi

prius court is the proper forum in which the defendants may attempt

to make this showing.

For these reasons, we decline to entertain the

ineffective assistance claims here and now. Instead, we dismiss

them without prejudice to their reassertion, should the defendants

so choose, in proceedings under 28 U.S.C. § 2255.

D. Miscellaneous Assignments of Error.

There are two other issues lurking at the periphery of

these appeals: both defendants argue that the district court

incorrectly instructed the jury on the bank fraud count and Mrs.

Moran urges that the prosecutors' summation misstated both the

facts and the law. Before addressing these issues, we turn to a

threshold question: are these claims of error foreclosed by the

defendants' failure, as appellees, to pursue them during the

original appeal (Moran I)?

6
The fact that the district court originally granted the
defendants' motion for judgment of acquittal is not an infallible
harbinger of how motions for new trial would fare. The district
court's judgment, informed by the opinion in Moran I, may well be
different. In any event, no less an authority than the Supreme
Court has stated that in the ineffective assistance context, "the
idiosyncracies of the particular decisionmaker . . . are irrelevant
to the prejudice inquiry." Strickland, 466 U.S. at 695.

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 1. Preclusion. We begin our discussion on a cautionary

note: the government did not make a preclusion argument in its

main appellate brief, but, rather, frontally addressed the

substance of the Morans' assignments of error. We recognized the

possibility of preclusion during oral argument and requested

supplemental briefing on the point. The government, in its

supplemental brief, has argued for preclusion — but its failure to

raise the preclusion issue in a timely manner is reason enough to

deem it waived. See United States v. Rodriguez-Marrero, ___ F.3d

___, ___ (1st Cir. 2004) [No. 01-1647, slip op. at 32]; United

States v. Caraballo-Cruz, 52 F.3d 390, 393 (1st Cir. 1995).

To be sure, we have discretion, in the interests of

justice, to overlook this kind of waiver — a lack of developed

argumentation — by the government in a criminal case. See, e.g.,

United States v. Rose, 104 F.3d 1408, 1414 (1st Cir. 1997). Even

were we prone to exercise that discretion here, it would not profit

the government. We explain briefly.

In general, available claims of error not raised in an

initial appeal may not be raised during subsequent appeals in the

same case. See United States v. Abreu-Cabrera, 94 F.3d 47, 49 (2d

Cir. 1996) (explaining that "appellate courts will refuse to

consider trial court rulings that could have been raised on an

earlier appeal"); see also United States v. Ticchiarelli, 171 F.3d

24, 28-29 (1st Cir. 1999). Here, however, the Morans were

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appellees during the first appeal. That juxtaposition may make a

material difference where, as here, the judgment from which an

appeal is taken is entirely favorable to the appellee and that

party, after losing the appeal, then seeks to raise a new issue

during a later appeal of an unfavorable judgment. See, e.g.,

Laitram Corp. v. NEC Corp., 115 F.3d 947, 954 (Fed. Cir. 1997);

Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 740-41 (D.C. Cir.

1995). Absent a cross-appeal, an appellee can only raise arguments

in support of the judgment during the course of an appeal. United

States v. Am. Ry. Express Co., 265 U.S. 425, 435-36 (1924); Martin

v. Tango's Restaurant, Inc., 969 F.2d 1319, 1325 (1st Cir. 1992).

A cross-appeal normally is improper when taken by a defendant from

a favorable judgment, Field v. Mans, 157 F.3d 35, 41 (1st Cir.

1998), and arguably impermissible when taken by a defendant from a

judgment of acquittal in a criminal case. See United States v.

Boyd, 958 F.2d 247, 250 (8th Cir. 1992); United States v. Williams,

679 F.2d 504, 507 (5th Cir. 1982).

Given these authorities, we need not decide definitively

whether a cross-appeal might have been permitted in connection with

the government's earlier appeal of the judgments of acquittal.

When an appellee fails to contest a point that is irrelevant unless

the main appeal results in reversal or remand, this court, even if

a cross-appeal theoretically might have been possible, has been

reluctant to find preclusion. See Field, 157 F.3d at 41-42

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(abjuring preclusion based solely on a failure to file a

"procedurally dubious cross-appeal" relating to what "might

[originally] have seemed an entirely redundant point").

Let us be perfectly clear. There are times when even an

appellee who is defending an entirely favorable judgment must

either raise an error purportedly committed by the district court

or waive it. Typically, however, this occurs when correction of

the error would provide either an alternate or an additional basis

for affirmance of a favorable judgment. See, e.g., Schering Corp.

v. Ill. Antibiotics Co., 89 F.3d 357, 358-59 (7th Cir. 1996). That

is not the situation here: the defendants' newly asserted

assignments of error — an ostensible flaw in the jury instructions

and allegations of prosecutorial misconduct — are claims of legal

error which, if sustained, would lead only to a retrial, not to an

acquittal. Thus, even apart from the government's waiver, we would

likely deem the defendants free to raise the assigned errors for

the first time in this proceeding.

2. Jury Instructions. We turn next to the jury

instructions. The defendants contend that the district court

improperly charged the jury on the elements of bank fraud. We

examine that contention.

The federal bank fraud statute provides in pertinent

part:

Whoever knowingly executes, or attempts to
execute, a scheme or artifice—

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 (1) to defraud a financial
institution; or

(2) to obtain any of the
moneys, funds, credits, assets,
securities, or other property
owned by, or under the custody
or control of, a financial
institution, by means of false
or fraudulent pretenses,
representations, or promises;

shall be [punished as provided].

18 U.S.C. § 1344. The Supreme Court has glossed this language,

stating that any scheme to defraud a financial institution must

"employ material falsehoods." Neder v. United States, 527 U.S. 1,

20 (1999) (emphasis omitted).

In this case, the lower court instructed the jury,

without objection, that it could base a guilty verdict on either

subsection (1) or (2), and then explicated each subsection. With

regard to section 1344(1), the court defined a scheme to defraud

without specifying that the prevarications embodied in the scheme

had to be materially false. The court did, however, indicate the

necessity of finding material falsehood with regard to section

1344(2)'s "obtaining money by false pretenses" prong.

During oral argument in this court, the government

conceded that the district court's section 1344(1) instruction was

erroneous for this reason. See United States v. Benjamin, 252 F.3d

1, 6 (1st Cir. 2001); United States v. Colon-Munoz, 192 F.3d 210,

221 (1st Cir. 1999). It pointed out, however, that neither of the

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defendants had objected to the instruction during the time frame

specified in Fed. R. Crim. P. 30(d) (requiring that objections to

jury instructions be made after the judge has charged the jury, but

before the jury retires to deliberate).7 Under these

circumstances, our review is limited to plain error. See Fed. R.

Crim. P. 30(d), 52(b); see also United States v. Olano, 507 U.S.

725, 731-32 (1993).

A party undertaking the rigors of plain error review must

carry a heavy burden. Under that regime, an appealing defendant

must demonstrate: "(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." United

States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). Even then, the

reviewing court may, but is not required to, rectify the situation.

Olano, 507 U.S. at 735-36. The net result is that plain error

review tends to afford relief to appellants only for

7
Mrs. Moran tries to talk around the problem, insisting that
her attorney quibbled with the trial court as to the materiality
instruction during the pre-charge conference. Such a pre-charge
colloquy is insufficient to satisfy the requirements of Rule 30(d).
See United States v. Coady, 809 F.2d 119, 123 (1st Cir. 1987)
(stating that though "counsel may have discoursed upon the nature
of his theory at some time prior to the giving of the charge," that
circumstance "will not excuse noncompliance with the express
mandates of Rule 30"); see also United States v. Arthurs, 73 F.3d
444, 448 (1st Cir. 1996).

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"blockbuster[]" errors. United States v. Griffin, 818 F.2d 97, 100

(1st Cir. 1987).

In this instance, the first two prongs of the test are

satisfied. The defendants stumble, however, over the third prong.

The assigned error did not affect their substantial rights: the

defendants do not and cannot show that the inclusion of an

additional materiality instruction had any effect at all on the

trial or its outcome.

"Materiality" requires only that a false or omitted

statement have "a natural tendency to influence, or is capable of

influencing, the decision of the decisionmaking body to which it

was addressed." Neder, 527 U.S. at 16 (brackets and internal

quotation marks omitted). This court already has noted that the

materiality of the falsehoods inherent in the defendants' scheme to

defraud was evident. See Moran I, 312 F.3d at 491 & n.13

(concluding that the bank might well have acted differently had it

known of the defendants' interests); see also id. at 496 (Boudin,

C.J., concurring) (finding "unpersuasive" Mrs. Moran's non-

materiality argument). On the basis of this record, there is

simply no justification for upsetting the verdict on this ground.

See Neder, 527 U.S. at 19-20 (holding failure to instruct on

materiality harmless when record contains no "evidence that could

rationally lead" to a contrary finding); United States v. Blastos,

258 F.3d 25, 29 (1st Cir. 2001) (same).

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 3. The Summation. The prosecution's closing argument

was given by two individuals and in two parts, bracketing the

defendants' summations. Mrs. Moran asserts that this bifurcated

closing argument so tainted the trial as to deny her due process.

This assertion rests on four separate statements attributable to

members of the prosecution team.

Mrs. Moran maintains that the first two statements

misstated the facts. During the initial phase of his summation,

one prosecutor said:

If you go to Exhibit number 43, minutes of the
Board of Directors, January of '87, Nora Moran
is present. It talks about how the activities
of the Executive Committee are brought up for
presentation and the summarization by Mr.
Murray. There was testimony they would be
summarized, the individual loans might be
talked about, they would be brought forth for
review and approval. And the records
affirmatively show Nora Moran was there that
day. She voted in favor of the loan, her
loan, involving Puente and Boersner and their
finances and made no dissent, no abstention,
no disclosure.

Another prosecutor made essentially the same comment during the

rebuttal phase of the summation. We treat these two statements

together. Inasmuch as the defense did not interpose a

contemporaneous objection on either occasion, we review only for

plain error. See Griffin, 818 F.2d at 99-100.

We discern no plain error. The evidence supported a

reasonable inference that First American's board of directors voted

on the Puente/Boersner loans. The evidence showed that the

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executive committee approved the loans in December; that the

committee's custom and practice was to transmit a complete list of

its approved loans to the board; that the board typically would

consider, and vote on, the approved loans at the next month's board

meeting; and that Mrs. Moran attended that meeting (held in January

of 1987). No more was exigible to allow the argument to be

proffered.

Mrs. Moran suggests that these statements were improper

based on the observations subsequently made by the district court

in support of its entry of judgment of acquittal. In that

decision, the court opined that, even had Mrs. Moran voted on the

Puente/Boersner loans, the most that could be said was that she had

voted to accept a summary report rather than to ratify or approve

those particular loans (as the bank, by the time of the vote,

already had committed, and largely disbursed, the funds).

Mrs. Moran's suggestion is a non-sequitur. At the close

of the evidence, the court allowed the case to go to the jury on a

primary theory of liability having two strains — a voting theory

and a non-disclosure theory — and a less prominent aiding and

abetting theory. Moran I, 312 F.3d at 492 & n.14. This court

found the voting theory insufficiently proven, but found the

evidence adequate to support the verdict on both the non-disclosure

theory and the aiding and abetting theory. Id. at 492-93. Given

this posture of the case, Mrs. Moran's challenge lacks bite.

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 It is common ground that when "disjunctive theories are

submitted to the jury and the jury renders a general verdict of

guilty . . . as long as there was sufficient evidence to support

one of the theories presented, then the verdict should be

affirmed." United States v. Garcia, 992 F.2d 409, 416 (2d Cir.

1993) (citing Griffin v. United States, 502 U.S. 46, 49-51, 55-60

(1991)). If it does not offend due process to affirm a conviction

even though one of several charged theories of guilt had an

insufficient evidentiary predicate, see Griffin, 502 U.S. at 51;

United States v. Nieves-Burgos, 62 F.3d 431, 434-36 (1st Cir.

1995), a fortiori, mere argument in support of that insufficient

theory, fairly derived from the record, cannot violate due process.

To hold otherwise would eviscerate the Griffin doctrine.

Mrs. Moran fares no better on the other aspect of her

prosecutorial misconduct claim. This involves her insistence that

the prosecutors twice misstated the law (once during the initial

phase of the summation and again during the rebuttal phase) when it

was said, in effect, that Mr. Moran could not make any legally

exculpatory disclosures on behalf of his wife. Here, too, neither

statement drew a contemporaneous objection, so appellate review is

limited to plain error. See Griffin, 818 F.2d at 99-100.

In order to prevail under the four-part plain error

regime, see Duarte, 246 F.3d at 60, Mrs. Moran's first obligation

-29-
is to show that the prosecutors' statements were legally flawed.

She has failed to make that showing.

As said, there were three routes to finding that Mrs.

Moran possessed the scienter necessary to have committed bank

fraud. The voting theory implicated banking regulations, uniquely

applicable to Mrs. Moran in her capacity as a director of the bank,

which required her to inform her fellow directors about any loans

in which she had a financial interest and to disqualify herself

from voting on them. The non-disclosure theory implicated Mrs.

Moran's duty, as the bank's fiduciary, to report her husband's

double-dealing. The aiding and abetting theory implicated her

knowing assistance to her husband's fraud. Under the latter two

theories, Mrs. Moran's criminal intent was premised on knowledge

that her husband had breached his ethical duties to the bank. This

was what attracted Chief Judge Boudin's concern. See Moran I, 312

F.3d at 494-95 (Boudin, C.J., concurring).

This segmentation is critical to our disposition of this

aspect of Mrs. Moran's prosecutorial misconduct claim, for the

context of the challenged statements makes it clear that they

referred to her personal obligation under the voting theory. The

prosecutor was arguing, in effect, that Mrs. Moran's obligation to

the board of directors could not be deemed satisfied by her

husband's alleged disclosure to Noke. This argument restated

competent testimony that such a disclosure was insufficient because

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Noke was a subordinate employee of the bank, not a fellow director.

Viewed in this light, the challenged statements can be read as

positing that even if Mr. Moran had fulfilled his ethical duty,

Mrs. Moran knew that she had an independent, supervening duty to

First American's board and nonetheless voted on the loans with full

awareness that she had not satisfied that duty. We believe that

was within the ambit of permissible advocacy.

The worst that can be said is that this strain of

argument was ambiguous; it was legally accurate as to one of the

prosecution's theories of guilt, arguably inaccurate as to the

others, and did not clearly differentiate among them. But context

is important, and both times the prosecutor made the challenged

statement, it served as the starting point of a discussion of the

voting theory. We do "not lightly infer that a prosecutor intends

an ambiguous remark to have its most damaging meaning or that a

jury, sitting through lengthy exhortation, will draw that meaning

from the plethora of less damaging interpretations." United States

v. Lilly, 983 F.2d 300, 307 (1st Cir. 1992) (quoting Donnelly v.

DeChristoforo, 416 U.S. 637, 647 (1974)). We make no such

inference here. Considering the context of the statements and the

fact that no contemporaneous objection was lodged, we must give the

prosecutor the benefit of the doubt. See United States v. Taylor,

54 F.3d 967, 979 (1st Cir. 1995); Lilly, 983 F.2d at 307.

-31-
 If more were needed — and we doubt that it is — we are

satisfied that the judge's charge dispelled any possible confusion.

The charge clearly differentiated among the government's three

theories. It identified how the regulatory duties of Mrs. Moran,

as a director, differed from the general fiduciary duties owed by

both defendants, and limned the contours of the aiding and abetting

theory. To cinch matters, the court explicitly instructed that "if

what [the attorneys] have said about the law seems to . . . have a

different meaning in any way from my instructions on the law, you

must be guided only by my instructions." Under these

circumstances, we are confident that any prejudice stemming from

the challenged statements did not survive the court's charge.

There was, therefore, no plain error. See Taylor, 54 F.3d at 977.

III. CONCLUSION

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

we affirm the convictions and sentences of both defendants. In so

doing, however, we do not adjudicate the merits of the defendants'

ineffective assistance of counsel claims. Those claims are

dismissed without prejudice and may be resurrected, should either

or both of the defendants so elect, in post-conviction proceedings

under 22 U.S.C. § 2255. See Mala, 7 F.3d at 1064.

Affirmed.

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