United States v. Potter

United States Court of Appeals
For the First Circuit

Nos. 05-2676, 05-2677, 05-2678

UNITED STATES OF AMERICA,

Appellee,

v.

NIGEL POTTER; DANIEL BUCCI;
and LPRI, LLC, f/k/a Burrillville Racing Association,
a/k/a Lincoln Park, a/k/a Lincoln Greyhound Park,
a/k/a Lincoln Park, Inc.,

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

Before

Boudin, Chief Judge,

Selya, Circuit Judge,

and Saris,* District Judge.

John A. MacFadyen with whom B. Jean Rosiello and MacFadyen,
Gescheidt & O'Brien were on brief for appellant Nigel Potter.
Anthony M. Traini for appellant Daniel Bucci.
John A. Tarantino with whom Patricia K. Rocha and Adler
Pollock & Sheehan P.C. were on brief for LPRI, LLC.

*
Of the District of Massachusetts, sitting by designation.
 Donald C. Lockhart, Assistant United States Attorney, with
whom Robert Clark Corrente, United States Attorney, and Lee H.
Vilker and Peter F. Neronha, Assistant United States Attorneys,
were on consolidated brief for appellee.

September 8, 2006
 BOUDIN, Chief Judge. These are appeals by three

defendants–-two individuals, Daniel Bucci and Nigel Potter, and a

business entity, LPRI, LLC ("Lincoln Park")--convicted after a jury

trial of conspiracy to commit wire fraud and of multiple counts of

wire fraud. 18 U.S.C. §§ 371, 1343, 1346 (2000). The essence of

the scheme charged by the government was to bribe the then-speaker

of the Rhode Island House of Representatives, John Harwood, to

influence state legislation in ways favorable to Lincoln Park.

Lincoln Park ran a gambling facility and dog track in

Lincoln, Rhode Island. The company was wholly owned by Denver-

based Wembley USA which in turn was wholly owned by Wembley PLC of

Great Britain. Lincoln Park generated huge revenues (over $170

million in 2000), much of it from coinless slot machines, and after

Wembley PLC's sale of another major asset in 1998-1999, Lincoln

Park accounted for most of Wembley PLC's profits.

Bucci was general manager of Lincoln Park, responsible

for its business strategy. During the period in question, his

direct superior was Francis Sherman, the president of Lincoln Park

and of Wembley USA. Potter was the chief executive officer of

Wembley PLC. Daniel McKinnon was a Rhode Island lawyer who

represented Lincoln Park on zoning and other matters; Harwood was

McKinnon's law firm partner. Annual fees paid to McKinnon &

Harwood prior to 2000 were in the range of $200,000 to $300,000.

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 On September 9, 2003, a federal grand jury indicted the

three defendants for conspiracy to deprive Rhode Island citizens of

their right to honest services and for individual counts of

transmitting messages by wire communication in interstate and

foreign commerce for purposes of executing this scheme. 18 U.S.C.

§§ 371, 1343, 1346. The government's evidence, yet to be

described, was intended to show that in 2000-2001 Bucci and Potter

had plotted to pay McKinnon's law firm a very large sum in order to

pay Harwood to shape legislation to assist Lincoln Park.

A first trial led to acquittals of the defendants on

certain of the substantive wire-fraud counts but a hung jury on the

conspiracy charge and on other substantive counts. In a second

trial, all three defendants were convicted of the charged

conspiracy; each defendant was convicted of two or more specific

substantive counts and acquitted on others. The court sentenced

Bucci to 41 months in prison, Potter to 36 months and Lincoln Park

to a fine of $1.5 million.1

Sufficiency of the Evidence. The appeals now before us,

by all three defendants, present issues relating to the convictions

but none as to the sentences. We begin with challenges to the

sufficiency of the evidence, reserving for later treatment one such

1
In connection with various post-trial motions, the district
court wrote opinions addressing, inter alia, the sufficiency of the
evidence and alleged prosecutorial misconduct. United States v.
Potter, 2005 U.S. Dist. LEXIS 21451 (D.R.I. Sept. 27, 2005); United
States v. Potter, 2005 WL 2367627 (D.R.I. Sept. 27, 2005).

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issue peculiar to Lincoln Park. Because these sufficiency claims

were preserved by motions for judgment of acquittal, review is de

novo, United States v. Shea, 211 F.3d 658, 664 (1st Cir. 2000),

cert. denied, 531 U.S. 1154 (2001). The question is whether

any rational factfinder could have found that
the evidence presented at trial, together with
all reasonable inferences, viewed in the light
most favorable to the government, established
each element of the particular offense beyond
a reasonable doubt.

United States v. Richard, 234 F.3d 763, 767 (1st Cir. 2000)

(quoting United States v. Gabriele, 63 F.3d 61, 67 (1st Cir.

1995)).

The substantive offense is defined by 18 U.S.C. § 1343,

which pertinently states:

Whoever, having devised or intending to
devise any scheme or artifice to defraud, . .
. transmits . . . by means of wire . . . in
interstate or foreign commerce, any writings,
. . . for the purpose of executing such scheme
or artifice, shall be fined under this title
or imprisoned . . . .

The conspiracy offense consists of an agreement to do the same.

Id. § 371. As a result of a 1988 statutory amendment, a scheme to

deprive citizens of their officials' honest services can fall

within the statute if the necessary transmittal occurs (or, for a

conspiracy, is agreed to). Id. § 1346.

The government's evidence, based primarily on faxes and

other company documents, showed that beginning in August 2000,

Bucci began to press Potter to support a very large payment to

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McKinnon because Lincoln Park had received benefits in "hundreds of

millions of additional revenues" due to its "supporters" and would

need additional support to advance its interests. Bucci said that,

while no one had stated “that a quid pro quo is essential,” “a wink

is as good as a nod to a blind man” and that “we are represented by

people who believe it is incumbent upon us to reflect gratitude.”

Initially, the proposal was for a $1 million "performance

bonus" to McKinnon. At an August 25, 2000, meeting of Wembley USA,

Bucci supported the payment, while Sherman and David Brents,

Wembley USA's chief financial officer, opposed it. Potter did not

commit himself. In September, Bucci, Potter and Claes Hultman,

chairman of the Wembley PLC board, had dinner with McKinnon. In

early October, Bucci sent a fax to Sherman, which Potter later

received, outlining Lincoln Park's political goals–-such as

authority for more lottery machines–-and again proposing a large

payment to McKinnon.

Potter then raised the issue with the Wembley PLC board

on October 11, 2000, leading some members to question the propriety

of such a payment. Later that month, at a Wembley USA meeting in

Las Vegas, Sherman told Potter, according to Sherman's testimony,

that such a payment would be "improper and illegal," and Brents

omitted the item from Wembley USA's 2001 budget. Nevertheless,

Bucci pursued the matter with Potter in a one-on-one meeting in

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November. Memorializing the meeting in a December 1, 2000, fax to

Bucci, Potter wrote:

Clearly most of the lobbying of the
above will be done by yourself and other
members of the Lincoln Park team. We also
agreed however, that Dan McKinnon was an
unimportant element to the success of this
strategy. [The parties agreed that the
intended word was "important."] I suggested
(following your requests for recognition of
McKinnon's past contribution as well as
further commitment) that we should pay
McKinnon's law practice a 'retainer' of $500k
in 2001 and 2002. If the strategy is
successful and extra machines (1000+) are
implemented in 2002 we would consider
increasing the retainer to $1m for each of
2003/2004/2005. Similarly if no additional
machines are achieved then the $500k p.a. for
2001 and 2002 would cease.

There followed a number of faxes between Potter and Bucci

arguing about the details of the plan and making quite clear that

the payments contemplated were intended to advance Lincoln Park's

legislative agenda. In an exchange of faxes on December 11 and

12, 2000, Potter stated:

I am happy that the McKinnon payments
are as we agreed when we met and which you
reiterated in your note to me of last Friday,
i.e. $500,000 a year in 2001 and 2002 followed
by $1m a year for the next three years (or
sooner if machines installed prior to
31/12/2002) subject to the receipt of
permission to install at least 1,000 extra VLT
or slot machines.

Sherman was not copied on most of these communications, Potter

later testifying that under a new corporate reorganization plan,

the responsibility for handling the matter would be Bucci's.

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 At a Wembley PLC board meeting in December 2000, a

$600,000 retainer for McKinnon & Harwood was inserted at Potter's

request into the 2001 Wembley USA budget. On January 18, 2001,

Bucci faxed Potter an editorial from the Providence Journal that

described Harwood as the “Ocean State emperor,” a reference to

Harwood’s alleged vast influence in Rhode Island politics. In the

margin of the article, Bucci wrote a comment emphasizing the

article's description of Harwood's "power [and] influence."

Another Wembley USA meeting was held on January 24, 2001,

and Sherman (according to his testimony) again complained about

inappropriate payments. Brents testified that Potter told him and

Sherman that the payments had been approved by the Wembley PLC

board and were a “done deal.” Sherman testified that, in response,

he resigned as president of Lincoln Park, although he remained

president of Wembley USA for several months. After a discussion

with the company's accountants, a legal opinion as to the payment

plan was sought; but no clearance was ever obtained.

After Potter was hospitalized in February 2001, Bucci

pursued the payment plan with Hultman and another Wembley PLC

director. This evidence, admitted only against Bucci, included

further faxes charged as counts against Bucci, but it simplifies

our discussion to focus on the evidence implicating all of the

defendants. At trial Potter testified that he had made no final

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commitment and had acted in good faith–-evidence whose value was a

matter for the jury.

In substance, the government's claim as to the conspiracy

was that Potter and Bucci, no later than December 11-12, 2000, had

agreed with each other to pay McKinnon a very large sum for the

purpose of influencing Harwood improperly to use his authority as

a state official to assist Lincoln Park in obtaining favorable

legislation (and defeating unfavorable proposals). The first

question is whether the jury could rationally have found that in

fact such a conspiracy had been formed. See Richard, 234 F.3d at

767.

Harwood and McKinnon were partners; McKinnon, as the

evidence makes clear, was not engaged primarily to perform ordinary

lobbying services and had previously been paid only $200,000-

$300,000 a year; by contrast, the much larger sums envisioned–-

ultimately $4 million–-were explicitly aimed at achieving future

legislation. We think a reasonable jury could infer that Potter

and Bucci expected some of the money to reach Harwood--a partner in

the firm--even if they did not know the precise way in which the

money would reach him.

This inference of intended gain to Harwood is a matter of

some importance. If McKinnon were merely a lobbyist with a golden

touch and Harwood did not exist, a very large payment to McKinnon

alone--contingent on results but without any intimation of intended

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bribery or other wrongdoing--could not be said to aim at depriving

the public of an official's honest services. With the inference of

intended payment to Harwood, a scheme to deprive is made out.

Much of the language used by the defendants about the

expectations and identity of their unnamed "supporters" was vague,

but this is hardly of help to them; one fax fills in the gaps left

by another and the pattern permitted the jury to infer that Harwood

was the real target.2 The evidence includes indirect or coded

references to Harwood, descriptions of Harwood's power, and

discussions of Harwood's past accomplishments.

Further, the indirect language supports the inference of

concealment or deceit, which is a necessary part of a "scheme or

artifice to defraud." See United States v. Sawyer, 239 F.3d 31, 41

(1st Cir. 2001) ("Sawyer II"). The evidence of conspiracy and

concealment went well beyond the use of cryptic language and

included evidence of Potter and Bucci's concealment of the plan or

of critical details of it from both Sherman and the Wembley PLC

board. This element, at least, was not remotely a close call.

Defendants argue that in this instance a final agreement

on such a scheme never occurred. In particular, relying upon

2
The defendants argue that United States v. Petrozziello, 548
F.2d 20 (1st Cir. 1977), prohibited the district court from
considering the conditionally admitted faxes between the individual
defendants in its Rule 29 determination because a definitive
Petrozziello finding occurs only at the end of the case. The
argument is mistaken: if Petrozziello is satisfied on the evidence
available when the government rests, then the evidence is properly
considered by the judge at this stage.

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various qualifications in his faxes and other documents, Potter

argues that he never definitively agreed to have the company pay

large sums to McKinnon; rather, he describes his actions as

preliminary and contingent, possibly even dependent on further

assurances as to its lawfulness. The jury, however, could

rationally reach the opposite conclusion.

If there was an agreement covertly to compensate Harwood

for using his office to assist Lincoln Park in obtaining

legislation, it could hardly be disputed that interstate faxes were

to be used in executing the scheme; this was a major means of

communication between Potter and Bucci. And, for the substantive

counts, which identified specific faxes as violations, the same

scheme or artifice would satisfy the predicate "devised or

intending to device" requirement of the statute.

Attacking both the evidence and the indictment, the

defendants say that there is no evidence that Harwood was a party

to any agreement or even knew of the scheme. Admittedly, some

honest services fraud decisions assume that one of the parties to

such a scheme will be a public official;3 but it is hard to find

any considered holding that this is essential. Neither the

language nor the policy of the wire-fraud statute suggests such a

3
See United States v. Gray, 790 F.2d 1290, 1295 (6th Cir.
1986); United States v. Alexander, 741 F.2d 962, 964 (7th Cir.
1984), overruled on other grounds, United States v. Ginsburg, 773
F.2d 798 (7th Cir. 1985); United States v. Kaye, 593 F. Supp. 193,
196 (N.D. Ill. 1984); United States v. Freedman, 568 F. Supp. 450,
453-56 (N.D. Ill. 1983).

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requirement. See United States v. Sawyer, 878 F. Supp. 279, 289

(D. Mass. 1995), vacated on other grounds by 85 F.3d 713 (1st Cir.

1996); United States v. Yonan, 622 F. Supp. 721, 731-32 (N.D. Ill.

1985).

Certainly Harwood himself could not be convicted without

proof of his knowing participation; but under the statute anyone

could concoct a scheme to deprive Rhode Island citizens of

Harwood's honest services and could send a fax for the purpose of

executing such a scheme. Similarly, two persons could conspire to

devise the scheme and to use faxes for purposes of executing the

scheme. That Harwood might prove unwilling or unable to perform,

or that the scheme never achieved its intended end, would not

preclude conviction for either the substantive offense (sending the

fax) or forming the conspiracy.

The statute also requires that the message be for the

purpose of "executing" the scheme. Juxtaposing "executing" with

"devised or intending to devise" a scheme, see 18 U.S.C. § 1343,

the defendants argue that the faxes they sent could at most relate

to the devising (rather than the executing) of the scheme. True

enough, much of the faxing concerns whether such payments are

necessary at all, what form they should take, and similar details

that the defendants say were at most preliminary to execution.4

4
Bucci and Potter also say that they differed on and never
settled certain of the details; but the central agreement to make
the payment can constitute the conspiracy without regard to whether
some details were unsettled. United States v. Sanchez, 917 F.2d

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 However, this argument depends on whether the term

"executing" is construed narrowly and whether some sharp division

exists between devising and executing schemes. In our view, the

statute requires no strict sequence of exclusive phases: a faxed

document that aims to settle the amount to be paid for illicit

conduct can be part of the devising of a scheme and also sent "for

the purpose of executing" the scheme. We have found little direct

precedent but words and policy support this view.

To execute is to "perform or complete," Black's Law

Dictionary 609 (8th ed. 2004); but the statute does not require

that the scheme be "executed" or that the fax be directed to the

last step of the scheme. A scheme, after all, may comprise a

series of steps and any one of them integral to the scheme can be

part of the execution. What is necessary is that the fax be sent

"for the purpose" of fostering that execution. See, e.g., United

States v. Luongo, 11 F.3d 7, 8-9 (1st Cir. 1993).

The defendants say that a narrow construction of

"executing" is required; there is some case law suggesting the

opposite. See, e.g., United States v. Silvano, 812 F.2d 754, 760

(1st Cir. 1987); accord Jed S. Rakoff, The Federal Mail Fraud

Statute (Part I), 18 Duq. L. Rev. 771 (1980). It is enough here

that the term executing, if used in its ordinary sense, includes

the various steps in the execution and is not limited to the very

607, 610 (1st Cir. 1990), cert. denied, 499 U.S. 977 (1991).

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last one.5 This alone answers the defendants' claim that the

statute as applied did not give them fair warning of the elements

of the offense.

Even if the defendants expected the payments to benefit

Harwood, defendants say that there was no direct evidence that such

payments were for a specific legislative act, such as a vote by

Harwood; the government stipulated that Harwood, presumably because

of his partner's normal work for Lincoln Park, had recused himself

from voting on matters that might affect the company. The

government, say the defendants, never proved that they sought to

have Harwood misuse his official power and thereby deprive the

state's citizens of his honest services.

It is common knowledge that powerful legislative leaders

are not dependent on their own votes to make things happen. The

honest services that a legislator owes to citizens fairly include

his informal and behind-the-scenes influence on legislation. There

was adequate evidence, if any was needed beyond the size of the

payment, that Bucci and Potter both believed Harwood to be

powerful. And Sawyer II, 239 F.3d at 40 n.8, forecloses any

argument that the government must prove the specific official act

targeted by the defendants.

5
Certain instructions tendered by the defendants which the
trial judge refused to give were thus not proper because their
premise was that the law does create a rigid division between
devising and executing. Indeed, if the judge had been called upon
to instruct in detail on the relationship, the instruction would
likely not have been to the defendants' advantage.

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 We have held that favors, such as lunches, golf games,

and sports tickets, may be modest enough and sufficiently

disconnected from any inferable improper quid pro quo that a

factfinder might conclude that only business friendship was at

work, or at least nothing more than a warm welcome was being sought

by the favor giver. See United States v. Sawyer, 85 F.3d 713, 728-

29 (1st Cir. 1996) ("Sawyer I"). The line between permissible

courting and improper use of gifts to obtain behind-the-scenes

influence by an official is not always an easy one to draw, but one

draws close at one's peril.

Given the sum involved in this case, its contingent

character and the link to specific legislative ends, a jury could

easily have found that this was a heartland quid pro quo case.

Indeed, as we will explain in due course in relation to

instructions, a reasonable jury could hardly find otherwise. Thus

the predicates for the conspiracy conviction exist; the defendants

do not make detailed separate claims addressed to the individual

faxes.

Defendants cite a couple of cases to suggest that other

courts have held that the kind of conduct involved in this case did

not involve a contemplated theft of honest services, but these

cases are distinguishable. For example, United States v. Rabbitt,

583 F.2d 1014 (8th Cir. 1978), cert. denied, 439 U.S. 1116 (1979),

involved only payments to a third party for introductions to

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decision makers, and United States v. McNeive, 536 F.2d 1245 (8th

Cir. 1976), was a case of gratuities rather than quid pro quo

bribery. See also Sawyer I, 85 F.3d at 725 (discussing these

cases). None of the cases cited involves conduct of the kind

proved here.

Jury Instructions. The next set of arguments by

defendants is directed to the instructions. Broadly speaking, the

instructions must give the jury an accurate picture of the

pertinent law (e.g., elements of the offense, defenses colorably

presented by the evidence); the trial judge enjoys latitude in

phrasing and emphasis; objections must be preserved subject to

plain error (just as preserved objections are subject to harmless

error); and, if a tendered instruction is itself inaccurate, it

need not be given.6

The defendants' most important claim is that the district

court should have given instructions crystalizing the distinction

just touched upon: between forbidden efforts to deprive the public

of honest services and permissible efforts--so far as the fraud

statutes are concerned–-merely to express friendship and assure a

warm welcome. The defendants asked the district judge to give

instructions, paraphrasing language mandated by us in Sawyer I, to

tell the jury what would not be a theft of honest services.

6
Jones v. United States, 527 U.S. 373, 388-90 (1999); United
States v. Prigmore, 243 F.3d 1, 17 (1st Cir. 2001); United States
v. Gamache, 156 F.3d 1, 9 (1st Cir. 1998).

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 In Sawyer I, the lobbyist had provided gifts of some

value (sports tickets, trips, meals) to certain legislators, but

there was mixed evidence as to what was sought in exchange.

Because in Sawyer I these activities could easily have been viewed

as distasteful, and were arguably illegal under state anti-gratuity

laws, see Sawyer I, 85 F.3d at 727-32, the jury could have believed

that cultivating a business friendship by means of gifts was itself

honest services fraud. We said that the jury should be told that

the latter was not honest services fraud. Id. at 727-29, 732, 741.

So far as proposed instructions sought a paraphrase of

this proposition, the short answer is that this prosecution did not

present the risk posed in Sawyer I. The defendants perhaps had

colorable arguments for a jury on other issues (e.g., that the

scheme had never become sufficiently concrete). But if the jury

agreed that a matured scheme existed, aimed at providing millions

of dollars in which Harwood would share, no jury could rationally

believe that this was merely to cultivate friendship.

Thus, the Sawyer instruction was not required. That an

instruction sought may be an accurate legal proposition does not

make it relevant. This is obvious in cases where a defendant seeks

an instruction on an affirmative defense like entrapment; the judge

is entitled to refuse if the evidence does not make this a

colorable claim for the jury. See, e.g., United States v. Sanchez-

Berrios, 424 F.3d 65, 76-77 (1st Cir. 2005), cert. denied sub nom.,

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Cruz-Pagan v. United States, 126 S. Ct. 1105 (2006). Here, the

principle is the same: what the jury is to be given is the law

pertinent to the case before it.

In two other instructions, the defense sought to have the

jury told that it was not unlawful merely to hire a lawyer whose

partner is a member of the legislature even if the client has

business in the legislature nor honest services fraud to violate

conflict of interest or ethics laws. In the context of this case,

the government's case rested on no such theory, nor was there any

likelihood that jury might convict on such a theory. Again, the

instructions were unnecessary.

Similarly, another instruction proposed by the defendants

closely tracks language from Sawyer I stating that if "the 'scheme'

does not, as its necessary outcome, deprive the public of honest

services, then independent evidence of the intent to deprive

another of those services must be presented." 85 F.3d at 725.

Again, this was required by the weaker facts in Sawyer I. Here, by

contrast, if the defendants schemed to pay millions of dollars,

some of which would go to Harwood in exchange for various

legislative acts, the necessary outcome (if the scheme worked)

would be to defraud the citizens of Rhode Island.

Finally, defendants asked that the jury be told that "it

is not enough . . . that a defendant intended to make a payment as

a reward for past services or in order to ensure future services."

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The former proposition might or might not be true depending upon

context; a payment that had been promised in advance but paid

afterwards could be unlawful. In any event the latter proposition

is patently too broad and disqualifies the instruction in

question.7

Potter also argues that the jury should have been

instructed that withdrawal is a defense to conspiracy. His basis

for the requested instruction was evidence that, in late January

2001, Potter contacted an attorney seeking advice as to whether the

proposal payment was lawful. Withdrawal is a demanding defense

requiring affirmative evidence of an effort to defeat or disavow or

confess, United States v. Munoz, 36 F.3d 1229, 1234 (1st Cir.

1994), cert. denied, 513 U.S. 1179 (1995), and Potter's evidence

proved nothing of the kind.

Rulings on Evidence. Certain evidentiary rulings by the

district judge are challenged on appeal. The first claim,

primarily by Potter, grew out of evidence that Potter, in the

January 24, 2001, meeting in Las Vegas, said that the Wembley PLC

board had approved the payment to McKinnon. Reviewing the minutes

of the Las Vegas meeting, Potter added the phrase "in principle" to

7
In Sawyer I, we said that a gratuity for an act already taken
or planned by the legislator was not, absent an intended causal
connection, a theft of honest services. 85 F.3d at 730; see also
United States v. Mariano, 983 F.2d 1150, 1159 (1st Cir. 1993). By
contrast, the term "ensure" in the proposed instruction suggests a
causal connection and yet seeks exculpation.

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the word "approval." The jury was shown the minutes and Potter was

allowed to testify as to what he intended by the addition.

What the court did not allow was Potter's attempt then to

offer two faxes from him to Bucci in which he used the phrase "in

principle" together with further language in the faxes indicating

that Potter was using the phrase "in principle" to mean something

short of unqualified or unconditional approval. The government

argued that "in principle" in the minutes spoke for itself and that

the faxes were irrelevant.

The faxes were not irrelevant. They arguably had some

tendency to show that Potter sometimes used the phrase "in

principle" to mean less than unqualified approval; this is how many

people use the phrase anyway, but Potter had a special interest in

softening any evidence of his approval. The district judge did not

explain her ruling; she probably thought that the other faxes--not

directed to the Wembley PLC approval--were more confusing than

enlightening.

The latter judgment would be reviewable only for abuse of

discretion, United States v. Perez-Ruiz, 353 F.3d 1, 10 (1st Cir.

2003), cert. denied, 541 U.S. 1005 (2004), but, even if we deemed

it mistaken (and we make no such ruling), there is no realistic

possibility that exclusion of the faxes altered the outcome of the

case. The phrase "in principle," mildly helpful to Potter with or

without a separate gloss, was contained in the admitted minutes;

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and he was allowed to elaborate from the stand on what he meant.

The excluded documents would have added very little.

In his brief, Potter says that in English business argot,

approval "in principle" was not approval at all but merely a green

light for a proposer to renew his request. Potter could have so

testified, but he did not, and the faxes do not support such a

view. While the government doubtless stressed the "approval"

language, its claim that Potter had effectively signed on to the

payment scheme rested on a succession of events involving Potter

and not on one document.

The defendants also claim that the district court erred

in refusing to admit into evidence three contracts between Lincoln

Park and Alan Goldman, a Rhode Island attorney who had provided

political consulting and lobbying services for Lincoln Park in the

early 1990s. Having successfully achieved results for the company,

Goldman renegotiated his previous two contracts, leading to a third

contract paying him $1 million for his past work.

Potter was allowed to testify to these events, obviously

hoping to support the contention that the payment to McKinnon was

for past work or, alternatively, that large payments contingent on

legislative outcomes were not uncommon. However, the district

court refused to allow the contracts themselves to be offered in

evidence once Potter conceded that he had not earlier seen the

contracts or even had their specific terms described to him.

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 If Potter did not see the contracts, it is hard to see

how they were relevant to his state of mind; and it is also

debatable whether the contracts, even assuming away authentication

and hearsay issues, were proper evidence of ordinary practice in

Rhode Island--being at most a single datum. Anyway, as Potter had

testified to the key terms (which the government did not dispute),

it is hard to see what the contractual detail would have added--and

Potter offers no explanation.

The whole Goldman episode was of marginal importance.

The evidence in this case showed that the proposed payments to

McKinnon were patently linked to future performance and were not

merely a renegotiated award for past service. And, while the

Goldman contracts also contemplated payment for results, there is

no evidence that they involved indirect payments to a legislator.

The district court's compromise--testimony but no documents--was

just the kind of judgment that Rule 403 leaves to the trial judge.

E.g., United States v. Cunan, 152 F.3d 29, 36 (1st Cir. 1998).

Potter, in an argument adopted by Bucci, offers a

separate claim of error addressed to the government's evidence.

The trial court admitted some pieces of government evidence for

limited purposes (e.g., against one defendant but not another or to

show knowledge or intent but not for the truth of the matter

asserted). Although the district court gave such limiting rulings

as evidence came in, it refused at the close of the case to give

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the jury a separate list of items admitted only for limited

purposes.

The defendants say that despite the presumption that the

jury follows the court's directions, United States v. Smith, 46

F.3d 1223, 1229 n.2 (1st Cir.), cert. denied, 516 U.S. 864 (1995),

and the court's wide discretion in matters of this kind, United

States v. Moreno, 991 F.2d 943, 947 (1st Cir.), cert. denied, 510

U.S. 971 (1993), the jury needed the help of a list in its

deliberations. They argue that the present case was unusual

because of the length of the trial, number of exhibits and variety

of limitations.

Judged by such numbers, the trial was not unusually

complex: there were 11 days of testimony, 54 exhibits from the

government and several others from the defense, and conventional

limits on permissible use were imposed on a number of the exhibits

but by no means all. Major drug cases are often far lengthier and

far more complicated. Nevertheless, just how great a threat of

misunderstanding existed depends upon specific evidence and issues

more than on numbers alone.

Here, the defendants quite properly do point to a couple

of specific examples--presumably their best examples--of evidence

that they say the jury may well have overvalued. Two of the items-

-exhibits concerning Harwood's alleged power--are quite important.

The first was a newspaper editorial proclaiming Harwood the "Ocean

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State emperor" and expressing the view that Harwood through secret

backroom deals managed the legislature. This was sent by Bucci to

Potter and admitted for state of mind but not for truth (for the

latter purpose it was mere hearsay).

The defendants now complain that the limitation on use

may have been ignored, noting that the government itself referred

to Harwood in closing as the Ocean State emperor. But all that

mattered for the crimes charged was whether the defendants believed

that Harwood possessed such power. See Yonan, 622 F. Supp. at 731.

The document, in context, was some evidence that they did so

believe (Bucci sent it to persuade Potter of Harwood's importance),

and their actions then confirmed that they so believed.

If defendants formed such a scheme and took such actions,

it would not matter if their belief as to Harwood's power were

mistaken. A plot to purchase drugs is unlawful even if the

supposed supplier turns out to be a government agent. E.g., United

States v. Giry, 818 F.2d 120, 126 (1st Cir.), cert. denied, 484

U.S. 855 (1987). No impossibility defense was offered nor could

one have succeeded on the present facts. United States v. Pierce,

224 F.3d 158, 166 (2d Cir. 2000), is inapposite, for it presents an

issue of legal impossibility whereas the defendants in this case

now press a claim of factual impossibility. See United States v.

Ames Sintering Co., 927 F.2d 232, 235-36 (6th Cir. 1990).8

8
In part for this reason, the defendants' proposed instruction
stating that it was lawful for them to pay McKinnon any amount so

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 The other document was a fax from Bucci to Potter placing

Harwood at the top of the hierarchy of legislators concerned with

the state budget. The document was admitted only against Bucci and

yet the government's reference to it in closing could have been

taken to use the document against Potter as well. But Potter's

counsel made no timely objection directed to this arguable

misstatement; and this fax was a much milder version of the Ocean

State emperor fax properly admitted against Potter.

No substantial trial is likely to be without minor errors

or close judgment calls that might better have been made otherwise.

Cumulative effect is relevant; but so is trial judge latitude,

failures to object, and the overall strength of the government's

case. See United States v. Sepulveda, 15 F.3d 1161, 1195-96 (1st

Cir. 1993), cert. denied, 512 U.S. 1223 (1994); Moreno, 991 F.2d at

947. Just how and in what terms to tell the jury (again) about

evidence earlier admitted for limited purposes is not the subject

of strict rules. We see neither an abuse of discretion nor any

resulting miscarriage of justice in what occurred here.

Alleged Misconduct. Next, the defendants claim as error

the district court's denial of their motion for a new trial. The

substantive claim is that a new trial was required because of

allegedly improper and prejudicial remarks by the prosecutor in

long as Harwood "did not vote [on matters] or do any official acts"
relating to the defendants was an incorrect statement of the law;
the relevant question is whether the defendants intended for
Harwood to perform such acts.

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closing arguments to the jury. Although refusal to grant a new

trial is reviewed for "manifest abuse of discretion," United States

v. Mooney, 315 F.3d 54, 59 (1st Cir. 2002), specific wrongful

remarks can be challenged under conventional standards, which

depend principally on whether a claim of error was preserved.

If a specific remark was improper and a timely objection

was made, the issue is usually whether (taking account of any

curative instruction) it likely affected the trial's outcome,

Mooney, 315 F.3d at 61; deliberate misconduct may be viewed more

harshly. United States v. Balsam, 203 F.3d 72, 87 n.19 (1st Cir.),

cert. denied, 531 U.S. 852 (2000). Absent a timely objection, the

test is for plain error under the familiar four-part test of United

States v. Olano, 507 U.S. 725, 732-35 (1993).

Defendants allege that nine different statements by the

prosecutor were improper. We focus first on the one rather lengthy

passage which the government concedes to have been improper in one

important particular. In his rebuttal argument, the prosecutor

stated the following:

I also want to mention just briefly
what the case is not about. It is not about
who is not charged. It is not about what is
not charged. It is not about, well, what
didn't the Government bring in. It's not
about what didn't the Government tell you. It
is not about one line in one exhibit, one line
in another exhibit.

It's not about any of that. Why?
Because, as the Court will instruct you, your
job is to decide this case on the evidence,

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 the evidence you've heard in this courtroom,
and that's all, according to the law as the
Court provides it.

If something's missing, if something
isn't perfect, blame me. The Government's not
perfect. I'm not perfect. Maybe it could
have been done better. Maybe there could have
been something that I could have given you,
brought in here. Maybe I could have brought
something in that the Court would have allowed
in that didn't come in.

I brought you the evidence as we have
it. I put if before you, and that's what you
have to work with, that and what the defense
put on and what the Court instructs you about.
And in that regard, I want to discuss a couple
of pieces of the evidence, just a couple.

Following the close of the rebuttal, the defendants moved

for a mistrial and got instead a cautionary instruction:

In the course of his rebuttal
testimony, Mr. Moore indicated and said
something along the lines of that perhaps
there was some additional evidence he might
have been able to bring or that the Court
would have allowed for your consideration.

It is not something that you should
take into account at all, and I'm asking you
at this time to disregard those comments
completely.

On appeal, the government agrees that the prosecutor's remarks were

improper so far as they suggested--primarily in the next-to-last

paragraph--that the government might have other evidence that it

did not offer because the prosecutor was not perfect. The

government says that no timely objection was offered and anyway the

comments did not alter the outcome of the case.

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 Our recent decisions have reserved the issue of precisely

when objections must be made to closing statements to preserve the

objection for ordinary review.9 Circumstances vary (the nature of

the objection, problems of repetition and cumulative effect) as may

the relief sought; whether a single rule would serve might be

debated. Since the issue has not been fully briefed and does not

affect the result in this case, we follow the practice of United

States v. Laboy-Delgado, 84 F.3d 22, 31 n.7 (1st Cir. 1996), and

assume for present purposes that the objection was adequately

preserved by the mistrial motion.

Turning to substance, a clear and deliberate reference in

closing to supposedly favorable evidence that the government says

it possesses but did not offer at trial is one of the worst sins a

prosecutor can commit; and the effect may be just as bad even

though the jury is left to guess at the content. See United States

v. Manning, 23 F.3d 570, 572-75 (1st Cir. 1994). This may be so

even though a cautionary instruction is given--everything depends

on context, e.g., whether specific evidence was described (such an

instruction may be more likely to be effective where no specific

evidence is described), the timing and force of the cautionary

instruction, and the like.

9
United States v. Laboy-Delgado, 84 F.3d 22, 31 n.7 (1st Cir.
1996); United States v. Wihbey, 75 F.3d 761, 771 (1st Cir. 1996).
Compare United States v. Mandelbaum, 803 F.2d 42, 44 n.1 (1st Cir.
1986), with Sepulveda, 15 F.3d at 1186-87.

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 However, in this case, the prosecutor's mistake, although

real, was neither blatant nor seemingly calculated. The defense in

closing stressed lack of evidence--importantly, lack of proof of

Harwood's power and what specifically he could do to advance

legislation in favor of Lincoln Park. This explains how the

prosecutor got into the subject of arguing that the case was not

about "what didn't the Government bring in."

The prosecutor's two references to other evidence that

might exist (both qualified as "maybe") are something less than an

avowal of the existence of other evidence; and the very next

sentence says in substance that the government has no other

evidence: "I brought you the evidence as we have it." Nor need we

ignore the fact that the prosecutor's main theme in the quoted

remarks was that the jury should decide the case on "the evidence

you've heard in this courtroom."

This would be a very easy call if, as often happens, the

evidence were such as to guarantee a conviction. See, e.g.,

Mooney, 315 F.3d at 60-61. Contrary to the defendants' claim that

the case was very close, we think that the evidence amply supports

the verdict. But the jury at the first trial hung and we can

imagine how any jury might be led to entertain doubts in this case

(e.g., as to whether the plot got far enough) even though the

doubts might not be of much force from a strictly legal standpoint.

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 Nevertheless, we are confident that the outcome was not

changed by the two sentences of the prosecutor that are the heart

of the error. Given their vagueness, the prosecutor's own

qualifications (that the case should be decided on the evidence and

that the government had given all it had) and the cautionary

instruction from the judge, this is not a case where the sentences

had any substantial chance--let alone a likelihood--of changing the

outcome. See generally Balsam, 203 F.3d at 87.

Defendants fairly argue that we should consider this

improper comment not alone but together with any other significant

errors in the prosecutor's closing. We have examined each of the

other errors alleged--to only one of which a timely objection was

made. In a couple of instances, there was nothing wrong with the

statement; in others, the prosecutor may arguably have misstated

evidence or could be taken to have asserted personal views or

otherwise erred.

The timely objection was to the prosecutor's statement in

rebuttal that Potter had never told the attorney (who was asked by

Wembley PLC to provide a legal opinion) that the payment was in

exchange for legislation raising the number of machines. The

district court in its post-trial opinion adequately explains why

the defendants are not persuasive in arguing that this claim

misstated the evidence. United States v. Potter, 2005 WL 2367627,

at *7 (D.R.I. Sept. 27, 2005).

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 As for the other claims, most involve errors (if they

were errors at all) that were marginal on the facts of this case

(e.g., the implied claims of personal knowledge). A misstatement

of the evidence by the prosecutor did occur, but the district court

reasonably found that it was not harmful, Potter, 2005 WL 2367627,

at *7. All in all, unpreserved claims have to approach a

miscarriage of justice before they warrant reversal. Olano, 507

U.S. at 732-35. Taking all of the claims made here together,

nothing like that occurred in this case.

Corporate Liability. This brings us to a quite different

issue, involving both instructions and evidence, which concerns the

liability of Lincoln Park as a corporation. Lincoln Park says on

appeal that its judgment of acquittal motion should have been

granted. It points out that Sherman, president of Lincoln Park,

told Bucci not to pay McKinnon any supplemental amount and that

the district judge's own instructions appeared to make this a

defense.

In her post-trial decision, the district judge correctly

ruled that a corporation may be held liable for "the criminal acts

of its agents" so long as those agents are acting within the scope

of employment. United States v. Potter, 2005 U.S. Dist. LEXIS

21451, at *36 (D.R.I. Sept. 27, 2005); accord United States v.

Cincotta, 689 F.2d 238, 241 (1st Cir.), cert. denied, 459 U.S. 991

(1982). The test is whether the agent is "performing acts of the

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kind which he is authorized to perform," and those acts are

"motivated--at least in part--by an intent to benefit the

corporation." Cincotta, 689 F.2d at 241-42.

In this case, the evidence amply confirmed the district

court's statement that "Bucci, as General Manager of Lincoln Park,

assumed primary responsibility for maintaining relationships with

political figures" in an effort to achieve the company's political

goals. Potter, 2005 U.S. Dist. LEXIS 21451, at *37. As Potter

confirmed, Bucci "led the whole lobbying effort in Rhode Island."

The evidence, summarized above, also showed that Bucci led the

effort to make the payments to McKinnon's firm, advocating for them

at every stage.

Lincoln Park's brief on appeal concentrates almost

entirely upon Sherman's testimony, the truth of which is not

disputed, that he told Bucci not to make such payments. This,

Lincoln Park argues, shows that the payment plan was not

authorized. Further, it says that this testimony dovetailed with

the district court's jury instructions that a corporation is not

liable for acts that the corporation "in good faith" has forbidden

or those that it "tries to prevent."

The legal rules for imputing criminal responsibility to

corporations are built upon analogous rules for civil liability.

For obvious practical reasons, the scope of employment test does

not require specific directives from the board or president for

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every corporate action; it is enough that the type of conduct

(making contracts, driving the delivery truck) is authorized. See

United States v. Beusch, 596 F.2d 871, 877-78 (9th Cir. 1979).

The case law has rejected arguments that the corporation

can avoid liability by adopting abstract rules that no agent can

make an unlawful price-fixing contract or no driver exceed the

speed limit. United States v. Automated Med. Labs., Inc., 770 F.2d

399, 406 & n.5 (4th Cir. 1985); United States v. Basic Constr. Co.,

711 F.2d 570, 573 (4th Cir.), cert. denied, 464 U.S. 956 (1983).

Even a specific directive to an agent or employee or honest efforts

to police such rules do not automatically free the company for the

wrongful acts of agents. Thus,

The principal is held liable for acts done on
his account by a general agent which are
incidental to or customarily a part of a
transaction which the agent has been
authorized to perform. And this is the case,
even though it is established fact that the
act was forbidden by the principal.

H. Reuschlein & Gregory, The Law of Agency and Partnership 167

(1990) (footnote omitted).10

There is admittedly a gray area. The restrictions,

although not mechanically exculpatory of corporate liability, may

well bear upon what is or is not within the scope of the agent's

10
The Restatement (Second) of Agency explains by way of
illustration: P directs the salesman in selling guns, never to
insert a cartridge while exhibiting a gun. A, a salesman, does so.
This act is within the scope of employment. Restatement (Second)
of Agency § 230, illus. 1 (1958) (forbidden acts).

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duties. See generally Basic Constr., 711 F.2d at 572; Beusch, 596

F.2d at 878. Such fine distinctions are of no moment here:

despite the instructions Bucci remained the high-ranking official

centrally responsible for lobbying efforts and his misdeeds in that

effort made the corporation liable even if he overstepped those

instructions.

The district judge went too far in the above-quoted

instruction in seeming automatically to preclude liability for

actions that the company forbade or tried to prevent, but the

instruction--being overly favorable to the company--was a harmless

mistake. The mistake might be of concern if the overstatement

distracted the jury from its task. But the district court did give

a proper instruction on scope of employment, and the over-favorable

addendum was obviously ignored or found irrelevant on the facts.

Further, on the present evidence a reasonable jury could

not have avoided holding the corporation liable once Bucci was

found to have committed the offenses. Although a court may not

direct a verdict for the government in a criminal jury case, Rose

v. Clark, 478 U.S. 570, 578 (1986), the harmless error doctrine,

where it applies, may rescue a jury verdict despite deficiencies in

instructions--save for a small class of so-called structural

errors. Neder v. United States, 527 U.S. 1, 8-15 (1999).

We are thus spared any need to pursue a different and

potentially difficult question as to how far actions of Potter

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might themselves bear upon Lincoln Park's liability for Bucci's

acts. Potter, while higher than Sherman in the inter-corporate

hierarchy, was not an officer of Lincoln Park--although the

government makes something of his presence on the Lincoln Park

board. Such conundrums can be addressed in a case where they might

alter the outcome.

Our discussion has addressed the most prominent arguable

claims; other claims raised by defendants, including the claim that

they should have been granted a new trial based on the weight of

the evidence, have been considered but do not warrant discussion.

The trial was well conducted and the outcome is not a surprise.

The able appellate briefs by counsel on both sides are appreciated.

Affirmed.

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