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
-3-
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
-4-
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.
-5-
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.
-6-
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.
-7-
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.
-8-
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
-9-
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
-10-
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).
-11-
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
-12-
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.
-13-
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;
-14-
(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
-15-
— 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
-16-
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.
-17-
"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
-18-
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
-19-
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.
-20-
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
-21-
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
-22-
(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—
-23-
(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
-24-
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).
-25-
"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).
-26-
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
-27-
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.
-28-
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
-30-
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.
-32-