United States v. Griffin

United States Court of Appeals
For the First Circuit

Nos. 07-1475, 07-1477

UNITED STATES OF AMERICA,

Appellee/Cross-Appellant,

v.

NADINE J. GRIFFIN,

Defendant, Appellant/Cross-Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Lipez and Howard, Circuit Judges,

and Besosa,* District Judge.

Robert E. Barnes, with whom The Bernhoft Law Firm, S.C. was on
brief, for appellant/cross-appellee.
Elissa Hart-Mahan, Attorney, Tax Division, Department of
Justice, with whom Richard T. Morrison, Acting Assistant Attorney
General, Alan Hechtkopf and Karen M. Quesnel, Attorneys, Tax
Division, Department of Justice, were on brief for appellee/cross-
appellant.

April 18, 2008

*
Of the District of Puerto Rico, sitting by designation.
 HOWARD, Circuit Judge. A jury convicted Nadine Griffin

of filing a false income tax return for 1999 in violation of 26

U.S.C. § 7206(1). The district court initially sentenced Griffin

to 27 months imprisonment and a year of supervised release. Over

a month later, the court resentenced Griffin, reducing her term of

incarceration to 21 months.

Before us are an appeal and a cross-appeal. In the

appeal, Griffin challenges her conviction. She argues that the

court erred in instructing the jury on the elements of 26 U.S.C. §

7206(1) and in admitting certain evidence. In the cross-appeal,

the government contends that the district court did not have the

authority to resentence Griffin because, under the terms of Federal

Rule of Criminal Procedure 35(a), the court either lacked

jurisdiction or the initial sentence was not "clear error." We

affirm the conviction, vacate the sentence, and remand for the

imposition of the initial sentence.

I. Facts

We rehearse the background facts here, reserving the

discussion of other facts for our later examination of the

appellate claims. We view these facts in the light most favorable

to the jury's verdict. United States v. Turner, 501 F.3d 59, 63

(1st Cir. 2007).

In each of Griffin's 1998 and 1999 tax returns she

reported an annual income that did not exceed $20,000. Neither of

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these returns reflected income Griffin earned working as an upper-

level salesperson for a company called Global Prosperity Inc.

(Global). In that capacity, Griffin made sales of over $700,000

and netted a profit of about $600,000 in 1998. She made sales of

nearly $200,000 and netted a profit of about $137,000 in 1999.

Global was a multi-level marketing company that sold a

series of audio-cassette tapes as well as tickets to offshore

seminars where lectures were given and additional products sold.

The Global products and lectures promoted various investment and

tax avoidance strategies. As a salesperson for Global, Griffin

sold these materials to customers. She eventually became one of

Global's most successful salespeople and belonged to its top sales

group.

Griffin set up bank accounts in order to store her Global

proceeds and to manage her business with Global and Global

customers. In addition to an offshore account, Griffin opened two

domestic accounts. These accounts were opened in the names of

Capital Finance Strategies (CFS) and Angelica Holdings (AH).

Griffin, however, controlled the accounts and often drew money from

them to finance personal expenditures. Griffin filed W-8 forms

with the IRS when opening these accounts, indicating that both CFS

and AH were foreign entities.

At some point, Griffin told another salesperson at Global

that she did not plan to pay taxes on her income from Global.

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Consistent with this statement, Griffin did not report her Global

income when meeting with the individuals who prepared her 1998 and

1999 tax returns. She did, however, report income she received for

her work as a salesperson for two other marketing companies. These

companies, unlike Global, had sent Form 1099's to both the IRS and

Griffin that reflected Griffin's gross sales.1

Despite filing returns in 1998 and 1999 that reflected a

relatively modest income, when Griffin applied for a mortgage and

car loan she reported a significantly higher income. Her mortgage

application reflected an annual income of $540,000 and her car loan

application an annual income of $100,000.

Ultimately, Griffin's financial situation drew the

government's attention. In July 2005, she was indicted and charged

with two counts of filing a false tax return in violation of 26

U.S.C. § 7206(1). The jury convicted her of one count, but did not

reach a unanimous verdict on the other. The court initially

sentenced Griffin to 27 months' imprisonment and a year of

supervised release. Over a month later, however, it resentenced

Griffin to 21 months' imprisonment with the same period of

supervised release.

1
Global, besides not sending Form 1099's to the IRS or its
salespeople, advised its salespeople to take steps that would
frustrate government detection of their income. Global encouraged
employees to use offshore bank accounts and to use Form W-8's when
opening bank accounts.

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 II. Discussion

A. Appeal

Griffin presents two arguments on appeal. Her first, and

primary argument, is that the court erroneously instructed the jury

regarding the elements of 26 U.S.C. § 7206 (1). Her second is that

the court erred in admitting certain evidence. We consider both

arguments in turn.2

1. Jury Instructions

26 U.S.C. § 7206 (1) provides, in part, that any person

who

[w]illfully makes and subscribes any return,
statement or other document, which contains or
is verified by a written declaration that it
is made under the penalties of perjury, and
which he does not believe to be true and
correct as to every material matter . . .
shall be guilty of a felony.

We have established that this offense has four elements:

(1) that the defendant made or caused to be
made, a federal income tax return for the year
in question which he verified to be true; (2)
that the tax return was false as to a material
matter; (3) that the defendant signed the
return willfully and knowing it was false; and
(4) that the return contained a written
declaration that it was made under the penalty
of perjury.

United States v. Boulerice, 325 F.3d 75, 79-80 (1st Cir. 2003).

2
Griffin also claims ineffective assistance of counsel. Because
the record is not sufficiently developed, we will not entertain
this claim on direct appeal. See United States v. Vega Molina, 407
F.3d 511, 530 (1st Cir. 2005).

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 At the close of the defendant's case, the district court

instructed the jury on these four elements. Of relevance are the

court's instructions regarding the second and third elements,

materiality and willfulness. The court instructed:

Material means that it makes a difference. It
makes a difference as to the actual tax
liability, the amount owed . . . Willful means
an intentional violation of a known duty . . .
[T]he language I want you to use here is,
willful means an intentional violation of a
known duty. No one can be convicted of filing
a false tax return because they made a mistake
or because they were careless or because they
had a genuine, but mistaken, belief in the
requirements of the tax code.

At the government's request, the court supplemented its

instruction on the willfulness element with a "willful blindness"

instruction. This instruction stated:

She cannot, however, be what we call willfully
blind to the duty to know. What do we mean by
that? We mean she cannot willfully, that is
intentionally, blind herself to what a
reasonable person would understand was the
very strong probability that taxes were owed
on the proceeds.

Griffin argues that the court's instructions were

erroneous for three reasons: the court failed to instruct the jury

accurately on both (1) "materiality" and (2) "willfulness"; and (3)

the court's instruction did not specify that the government had to

prove Griffin made false statements with the "intent of inducing

reliance."

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 Because Griffin failed to object to the court's jury

instructions at trial, our standard of review is plain error.

Accordingly, Griffin must show an error that was plain, (i.e.,

obvious and clear under current law), prejudicial (i.e., affected

the outcome of the district court proceedings), and that seriously

impaired the fairness, integrity, or public reputation of the

judicial proceedings. Colon-Millin v. Sears Roebuck de P.R., Inc.,

455 F.3d 30, 41 (1st Cir. 2006). This standard is "exceedingly

difficult to satisfy in jury instruction cases." United States v.

Gonzalez-Velez, 466 F.3d 27, 35 (1st Cir. 2006). We review jury

instructions as a whole determining if they "adequately explained

the law or whether they tended to confuse or mislead the jury on

controlling issues." Id.

a. Materiality

Griffin argues that the district court should have

instructed the jury that a statement is material if it could have

influenced the IRS, not as it did, that "[m]aterial means that it

makes a difference . . . to the actual tax liability, the amount

owed."

The court's instruction on materiality was not plainly

erroneous. We have said that a "material" matter is one that

affects or influences the IRS in carrying out the functions

committed to it by law or "one that is likely to affect the

calculation of tax due and payable." Boulerice, 325 F.3d at 82 n.3

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(citing United States v. DiRico, 78 F.3d 732, 735-36 (1st Cir.

1996)). If anything, the court's instruction that a false

statement is material if it "makes a difference . . . as to the

amount owed" was more narrow than necessary and increased the

government's burden of proof. A false statement may be material

even if it was only likely to influence the calculation of tax due

and payable. Id.3

b. Willfulness

Griffin lodges four complaints against the district

court's instruction on this element. First, she contends that the

trial court made various statements throughout the trial that

tainted the instruction on willfulness. She cites two statements

in particular. One was the court's statement that,

What the government must prove here is that .
. . the things she did either knowing that
they violated, actually knowing in her own
mind, or willfully, which means with reckless
disregard, willful blindness, uncaring whether
she was following the law or not.

The other was the court's statement that, "The government does not

have to prove that a person knew they were violating a specific

3
Griffin vaguely suggests that the government had to prove that
she knew the false statements were "material." To the extent this
argument is not waived, see United States v. Zannino, 895 F.2d 1,
17 (1st Cir. 1990), it is legally incorrect. The government does
not have to prove that the defendant knew the statements were
material. Boulerice, 325 F.3d at 82 ("[W]hether [defendant]
actually knew of the false statements' materiality to the
government does not enter the calculus of proof.") (citations
omitted).

-8-
law." Second, Griffin argues that the court failed to inform the

jury that, in order to convict her, the jury must conclude that she

knew the statements on her tax returns were false when she filed

them. Third, she asserts that the court should not have delivered

the supplementary willful blindness instruction.4 Specifically,

she argues that the government did not present evidence meriting

such an instruction. Fourth, she argues that, even if the willful

blindness instruction was merited, the instruction itself was

erroneous.

In analyzing Griffin's claim that the court's statements

during trial corrupted the willfulness instruction, we start with

the definition of "willfully." "Willfully," for purposes of this

statute, means "a voluntary, intentional violation of a known legal

duty." Boulerice, 325 F.3d at 80 (quoting United States v.

Monteiro, 871 F.2d 204, 209 (1st Cir. 1989) (quoting United States

v. Pomponio, 429 U.S. 10, 12 (1976))). The court instructed the

jury that, "[w]illful means an intentional violation of a known

duty." The court's instruction repeated the accepted definition of

4
A willful blindness instruction informs jurors that they may
"impose criminal liability on people who, recognizing the
likelihood of wrongdoing, nonetheless consciously refuse to take
basic investigatory steps." United States v. St. Michael's Credit
Union, 880 F.2d 579, 585 (1st Cir. 1989) (quoting United States v.
Rothrock, 806 F.2d 318, 323 (1st Cir. 1986)). Some cases refer to
the willful blindness instruction as the "conscious avoidance" or,
colloquially, as the "ostrich" instruction. See United States v.
Nobles, 69 F.3d 172, 184 (7th Cir. 1995).

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willfulness virtually verbatim.5 It is true, as Griffin points

out, that at points during the trial the jury heard from the court

that the government could prove that Griffin acted willfully by

showing she acted recklessly. The judge, however, took affirmative

steps to correct this misstatement of the law during its jury

instructions. The court instructed the jury to "[d]isregard my

[earlier] references to reckless disregard. You can see the judge

actually at work here." In addition, in instructing on

willfulness, the court informed the jury that, "No one can be

convicted of filing a false tax return because they made a mistake

or because they were careless or because they had a genuine, but

mistaken, belief in the requirements of the tax code." These

statements sufficed to correct any misimpression the jury may have

had, and we presume that juries follow instructions. See United

States v. González-Vázquez, 219 F.3d 37, 48 (1st Cir. 2000).

The appellant's second attack on the willfulness

instruction is that the court failed to explicitly instruct the

jury that Griffin had to know that her statements were false in

order to be convicted. This claim fails, because the court's

instruction did adequately advise the jury. The court's

instruction informed the jury that in order to find Griffin guilty

it had to conclude (1) that Griffin knew that she had a legal duty

5
Although the judge initially said, "known duty," rather than
"known legal duty," he later clarified noting "I should have added
a word. The intentional violation of a known legal duty."

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to report her income truthfully, and (2) that she intentionally

chose not to do so. Thus, the court instructed the jury that the

government had to prove that Griffin knew that her statements were

not truthful or, stated differently, that Griffin knew that her

statements were false. The court was not bound to use the

willfulness formulation Griffin insists upon in order to instruct

the jury accurately. See United States v. McFarlane, 491 F.3d 53,

59 (1st Cir. 2007) ("Within wide margins, the district court

maintains discretion in the precise manner that it explains legal

concepts to the jury.") (citation omitted).

We now turn to the third and fourth claims relating to

willfulness. These challenge the court's willful blindness

instruction. Griffin argues that the government did not present

evidence supporting such an instruction. "A willful blindness

instruction is appropriate if (1) a defendant claims a lack of

knowledge, (2) the facts suggest a conscious course of deliberate

ignorance, and (3) the instruction, taken as a whole, cannot be

misunderstood as mandating an inference of knowledge." United

States v. Coviello, 225 F.3d 54, 70 (1st Cir. 2000) (citation and

internal quotation marks omitted); United States v. Singh, 222 F.3d

6, 11 (1st Cir. 2000).

Griffin focuses on the requirement that the facts suggest

deliberate indifference. She suggests that, as a general matter,

there cannot be evidence supporting both a conscious course of

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deliberate ignorance and actual knowledge. She also argues that

where the government alleges that a defendant has actual knowledge,

the case here, it cannot request a willful blindness instruction.

The court did not commit error in issuing a willful

blindness instruction. Evidence presented at trial may support

either a finding of actual knowledge or a finding of willful

blindness. See United States v. Cassiere, 4 F.3d 1006, 1024 (1st

Cir. 1993); see also United States v. Gabriele, 63 F.3d 61, 67 n.8

(1st Cir. 1995). Such evidence was presented in this case. When

filing her 1998 and 1999 tax returns, Griffin reported sales income

she received from two marketing companies. Despite Griffin's

apparent awareness of a duty to report sales income, the government

introduced evidence that she neither discussed sales income she

received from Global with her various tax preparers nor inquired as

to whether she had a legal duty to report this income.

On the one hand, this evidence supports the theory that

Griffin deliberately avoided discussing her income from Global in

order to avoid actual knowledge of her legal obligation to report.

See United States v. Picciandra,788 F.2d 39, 46 (1st Cir. 1987)

(noting court may instruct jury on willful blindness where "the

evidence suggest[s] that the defendant consciously chose not to ask

about what he had 'reason to believe' he would discover") (citation

omitted). On the other hand, this evidence is also consistent with

the theory that Griffin knew of her legal obligation to report this

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income but simply chose not to report it. These theories can

coexist. See United States v. Carrillo, 435 F.3d 767, 784 (7th

Cir. 2006) ("[I]t does not follow that evidence must be placed in

either an actual knowledge category or a deliberate ignorance

category. It is permissible for the government to present evidence

supporting both theories and some of the government's evidence

might be relevant to both actual knowledge and deliberate

ignorance.") (internal citation omitted).

Moreover, the government did not forfeit its right to

request a willful blindness instruction where the evidence

supported such an instruction simply because it contended at trial

that Griffin had actual knowledge. See Cassiere, 4 F.3d at 1024

("Although the government's main contention at trial was that all

three defendants were knowing participants in the scheme, the

government presented evidence from which the jury could have

concluded that if they did not know what was going on, it was only

because they chose to turn a blind eye.").

The final willfulness issue, whether the willful

blindness instruction itself was erroneous, however, presents a

closer question. Griffin argues that the instruction was erroneous

for three reasons.6 First, the instruction failed to inform the

6
Griffin does present a fourth reason that merits little
discussion. She argues that willful blindness instructions are per
se unconstitutional in cases involving a specific intent crime.
The circuits are uniform in approving willful blindness
instructions for specific intent criminal offenses. See United

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jury that Griffin's willful blindness had to be motivated by a

desire to preempt prosecution. Second, the instruction failed to

include an "actual belief caveat."7 The actual belief caveat

informs the jury that a showing of mistake, negligence,

carelessness, or recklessness could not support a finding of

willfulness and that, although knowledge may be inferred from

willful blindness to the existence of a fact, the jury "must find

the defendant had actual knowledge." Third, the instruction

inappropriately made reference to a "reasonable person." In

referring to reasonableness, Griffin stresses, the court

articulated an objective standard rather than the required

subjective one, and therefore allowed the jury to convict on a

finding of recklessness.

The first two contentions are hopeless. Although we have

said that a willful blindness instruction is "proper" when the

government presents evidence that a defendant's willful blindness

was motivated by a desire to preempt prosecution, we have never

required that courts instruct juries that the defendant's willful

blindness must have been motivated by such a desire. Griffin cites

States v. Alston-Graves, 435 F.3d 331, 338 n.2 (D.C. Cir. 2006)
(collecting cases). This approval includes cases involving 26
U.S.C. § 7206(1). See e.g., United States v. Marston, 2008 U.S.
App. Lexis 5065, at *15 (8th Cir. Mar. 10, 2008).
7
Griffin cites United States v. MacKenzie, 777 F.2d 811, 818 n.2
(2d Cir. 1985) as an example of an instruction which includes an
acceptable actual belief caveat.

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no case remotely suggesting that the rule is otherwise. Thus,

there cannot be plain error.

As for the second contention, the court did not commit

plain error in failing to include the specific actual belief caveat

that Griffin insists upon. The court did not commit an error, let

alone a plain one, by not instructing the jury that the jury "must

find the defendant had actual knowledge" in order to convict under

a willful blindness theory. We have never required that willful

blindness instructions contain such a statement. See Coviello, 225

F.3d at 70-71) (approving instruction which informed jury they may

"infer that a defendant had knowledge" but did not contain mandate

that jury "must find the defendant had actual knowledge"); United

States v. Brandon, 17 F.3d 409, 451-53 (1st Cir. 1994) (same); see

also United States v. Lizardo, 445 F.3d 77, 85-86 (1st Cir. 2006)

(same).

Additionally, it is unlikely the court committed error

simply by failing to include within the willful blindness

instruction itself an instruction that a showing of mistake,

negligence, carelessness, or recklessness could not support a

finding of willfulness. The court had already communicated the

point. Earlier it instructed the jury that, "No one can be

convicted of filing a false tax return because they made a mistake

or because they were careless or because they had a genuine, but

mistaken, belief in the requirements of the tax code." See United

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States v. Bailey, 405 F.3d 102, 110 (1st Cir. 2005) ("[Jury]

instructions must be evaluated not in isolation but in the context

of the entire charge.") (quoting Jones, 527 U.S. at 391). In any

event, if there was error it was not prejudicial, in light of the

court's instruction on mistake, carelessness and genuine belief.

See United States v. Cunan, 152 F.3d 29, 39-40 (1st Cir. 1998)

(rejecting defendant's argument that court's willful blindness

instruction was plainly erroneous because it failed to include a

statement that mere recklessness or negligence is not enough to

support a finding of willful blindness where instruction as a whole

adequately conveyed proper standard).

Griffin's third complaint about the willful blindness

instruction, in which she criticizes the instruction's use of the

phrase "reasonable person," is more substantial. As a general

matter, the use of such language could cause a jury to conclude

erroneously that it need only find negligence in order to convict

under a willful blindness theory. See Cassiere, 4 F.3d at 1023

("Caution is necessary in giving a willful blindness instruction

'because of the possibility that the jury will be led to employ a

negligence standard and convict a defendant on the impermissible

ground that he should have known [an illegal act] was taking

place.'") (citations omitted). As the Seventh Circuit noted in

Carrillo, the use of reasonable person language invites a jury to

conclude that, because a reasonable person in the defendant's shoes

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would have had to deliberately blind himself to avoid knowledge,

the particular defendant must have deliberately blinded himself to

avoid knowledge. 435 F.3d at 782. The focus of the willful

blindness instruction must be on the particular defendant and not

on the hypothetical reasonable person.8 Id.

Ultimately, however, the use of the phrase "reasonable

person," did not amount to plain error because it did not prejudice

Griffin. As noted above, the court instructed the jury that it

could not convict Griffin if she was mistaken, careless, or

genuinely believed she was not required to pay taxes on her Global

income. This earlier instruction likely negated any damage the

"reasonable person" phrase may have caused. See United States v.

Moran, 393 F.3d 1, 32 (1st Cir. 2004) (noting that under plain

error review defendant must show improper instruction affected the

outcome of the trial). Moreover, had the court omitted any

reference to the reasonable person, we are confident the jury would

still have convicted Griffin. The government presented a

significant amount of evidence indicating that Griffin either knew

of a legal duty to report her Global income that she intentionally

violated or that she willfully blinded herself to facts strongly

8
The federal pattern jury instruction illustrates the appropriate
focus. It provides in part: "The government may prove that the
defendant acted 'knowingly' by proving, beyond a reasonable doubt,
that this defendant deliberately closed her eyes to what would
otherwise have been obvious to her." See 1A KEVIN F. O'MALLEY ET
AL., FEDERAL JURY PRACTICE AND JURY INSTRUCTIONS, CRIMINAL § 17.09,
at 653 (5th ed. 2000) (emphasis added).

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suggesting she had such a duty. The government produced evidence

that Griffin reported sales income she received from other

marketing companies she worked for, that she told a fellow

salesperson that she did not intend to pay income taxes on her

Global proceeds, and that she did not discuss her Global income

with her tax preparers. See United States v. Sotomayor-Vazquez,

249 F.3d 1, 19 (1st Cir. 2001) ("Even if the court's [instruction]

was incorrect, sufficient evidence was introduced to convict [the

defendants] without any reliance on the [potentially incorrect]

segment of the jury instruction."). As there was no prejudice,

Griffin is unable to satisfy the plain error standard.

c. Intent to induce reliance

Griffin's final claim of instructional error, closely

related to her materiality argument, is that the court should have

instructed the jury that, in order to prove a violation of §

7206(1), the government must demonstrate that the defendant

intended to induce government reliance on the false statements. On

the contrary, the intent to induce government reliance on a false

statement or to deceive the government is not an element of 26

U.S.C. § 7206(1). See Boulerice, 325 F.3d at 79-80.9

9
Griffin argues that our opinion in Gentsil v. United States, 326
F.2d 243 (1st Cir. 1964), supports her position. In that case, a
jury convicted the defendant of violating 26 U.S.C. § 7206(1). Id.
at 244. The defendant claimed that the verdict was not based on
sufficient evidence. Id. In rejecting the defendant's claim, we
noted, "It was not necessary for the government to have actually
relied on the false statements; it is sufficient that they were

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 2. 403 ruling

Griffin argues that the court should have excluded

certain evidence under Federal Rule of Evidence 403 because its

probative value was substantially outweighed by its unfairly

prejudicial impact.10 Because she did not object on Rule 403

grounds at trial, our review is for plain error.11 United States

v. Wallace, 461 F.3d 15, 28 (1st Cir. 2006).

The evidence Griffin claims was improperly admitted falls

into two categories. The first involves items that Griffin sold as

a Global salesperson. The court admitted into evidence Global

audio-cassette tapes and allowed witnesses to testify both about

the subject-matter of these tapes and about other products sold at

Global seminars. The tapes instructed listeners how to "[pull

made with the intention of inducing such reliance." Id. (citation
omitted). Gentsil provides no support for Griffin's position.
Nowhere did we suggest that it was necessary for the government to
prove that the statements were made with the intention of inducing
reliance in order to establish a violation of § 7206(1). Nor did
we indicate that § 7206(1) includes as an element the intent to
induce government reliance on a false statement. In any event, our
more recent precedent in Boulerice accurately sets forth §
7206(1)'s elements.
10
This Rule states: "Although relevant, evidence may be excluded
if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury,
or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence." Fed. R. Evid. 403.
11
Griffin did object to the admission of the Global audio-cassette
tapes and the tapes' companion workbook but on relevancy and
foundation grounds. She does not pursue these objections on
appeal.

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themselves] out of the system," so they could stop paying taxes and

that silver coin is the only real currency. The tapes also

described the social security number as the mark of the devil and

referenced the Bible as authority for a number of their positions.

The second category of evidence includes testimony about Griffin's

standard of living. Witnesses testified that Griffin paid for her

boyfriend to accompany her on trips to and from Bermuda and that

she had a penchant for gambling, jewelry, and fine foods.

In admitting the Global tapes, the court informed the

jury that Griffin was not charged with "saying something or

counseling something that's unlawful" and that:

whatever you think of what people were saying
[on the tapes], you don't hold it against Ms.
Griffin for the saying of it. The reason you
have it in evidence, is to consider whether
[defendant] was part of this Global Prosperity
operation and obtained from it income.

When allowing testimony about Griffin's interest in

gambling, the court informed the jury that, "[T]here's no

suggestion here about any impropriety in gambling. You're just

entitled to know the full picture . . . . And there's no suggestion

that any gambling casinos were illegal . . . where these things

took place."

The district court did not commit error, let alone plain

error, in admitting this evidence. First, the tapes, besides

connecting Griffin to a source of income she did not report, were

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probative of Griffin's state of mind when reporting her income.

Griffin was a salesperson for a company that instructed people how

to avoid paying taxes. This evidence certainly made it more likely

than not that Griffin acted willfully in declining to report her

Global income. See United States v. Turano, 802 F.2d 10, 12 (1st

Cir. 1986) (noting that what defendant did to encourage people not

to file tax returns was probative of defendant's own state of mind

in not filing tax return). Second, the testimony regarding

Griffin's spending habits was highly probative as to whether

Griffin's tax returns, which reported annual incomes of less than

$20,000, were false. See United States v. Zanghi, 189 F.3d 71, 82

(1st Cir. 1999); see also United States v. Simonelli, 237 F.3d 19,

21 (1st Cir. 2001). Finally, when admitting the evidence which

held the greatest potential to prejudice Griffin unfairly or to

confuse the jury, the Global tapes and the testimony about

Griffin's interest in gambling, the court issued cautionary

instructions.

B. Cross-Appeal

On January 16, 2007, the district court sentenced Griffin

to 27 months' imprisonment. After this initial sentencing, the

Supreme Court decided Cunningham v. California, 127 S. Ct. 856

(2007). Believing the case placed limits on its ability to find

facts that could increase a defendant's sentence, the court, acting

sua sponte and five days after the initial sentencing, vacated the

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sentence and scheduled a resentencing hearing. On February 22,

more than a month after issuing the first sentence, the court

resentenced Griffin to 21 months' imprisonment.

The government argues that the court erroneously vacated

its original sentence for two reasons. First, it contends that the

district court did not have jurisdiction when it acted. The

government says that, under Federal Rule of Criminal Procedure

35(a), the district court has a strict seven-day window in which it

can resentence a defendant.12 The district court's resentencing of

Griffin more than a month after the initial sentencing, it

continues, fell outside that window. The government argues in the

alternative that even if Rule 35(a) did not prevent the court from

revisiting the initial sentence, a court can only resentence a

defendant under the rule if the initial sentence was "clear error."

The government argues that the court's initial sentence was not

erroneous, much less clearly erroneous, and that the district court

misunderstood the Supreme Court's decision in Cunningham in

concluding otherwise.

Griffin says that the court properly imposed her second

sentence. She cites Eberhart v. United States, 546 U.S. 12 (2005),

as casting doubt on whether Rule 35 is a jurisdictional rule.

12
Prior to the 2002 amendment to Rule 35, the provision now located
in subsection (a) was located in subsection (c). The movement and
slight rephrasing of the provision was a stylistic change that did
not have any substantive effect. Fed. R. Crim. P. 35 Advisory
Committee's Notes (2002 amendment).

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Moreover, she argues that the court correctly interpreted

Cunningham and thus did not commit clear error under Rule 35.

Once a district court imposes a term of imprisonment, it

may modify that term only to the extent authorized by 18 U.S.C. §

3582(c).13 This statute permits a court to modify a sentence under

Rule 35. Rule 35 provides that: "Within 7 days after sentencing,

the court may correct a sentence that resulted from arithmetical,

technical, or other clear error." Fed. R. Crim. P. 35(a).

We have previously interpreted Rule 35 as imposing a

jurisdictional limit on the district court's ability to correct a

sentence. See United States v. Fahm, 13 F.3d 447, 453 (1st Cir.

1994) (holding that "the district court lacked jurisdiction to

correct its original sentence beyond the limitation period

prescribed in [Rule 35(a)]"). This interpretation is

unremarkable.14 We have not, however, decided whether a district

13
18 U.S.C. § 3582 reads in part: "Modification of an imposed term
of imprisonment - The court may not modify a term of imprisonment
once it has been imposed except that . . . the court may modify an
imposed term of imprisonment to the extent otherwise expressly
permitted by statute or by Rule 35 of the Federal Rules of Criminal
Procedure." Id. at (c)(1)(B).
14
The courts of appeals have uniformly held that Rule 35(a)'s
seven-day time limit is jurisdictional. United States v. Higgs,
504 F.3d 456, 463 (3d Cir. 2007); United States v. Vicol, 460 F.3d
693, 695-96 (6th Cir. 2006); United States v. Smith, 438 F.3d 796,
799 (7th Cir. 2006); United States v. Green, 405 F.3d 1180, 1184-88
(10th Cir. 2005); United States v. Shank, 395 F.3d 466, 468 (4th
Cir. 2005); United States v. Penna, 319 F.3d 509, 511-12 (9th Cir.
2003); United States v. Austin, 217 F.3d 595, 597 (8th Cir. 2000);
United States v. Morrison, 204 F.3d 1091, 1092-93 (11th Cir. 2000);
United States v. Abreu-Cabrera, 64 F.3d 67, 74 (2d Cir. 1995);

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court may "correct" a sentence by suspending or vacating the

sentence within the seven-day window and subsequently resentencing

outside of that window. That is the case presented here -- the

district court vacated its original sentence five days after

Griffin was initially sentenced.

The circuits that have squarely addressed this or similar

scenarios have concluded that if a district court resentences a

defendant, it must do so within the seven-day period following the

initial sentencing. Penna, 319 F.3d at 512 (holding district court

lacked jurisdiction to resentence defendant outside seven-day

period even where court vacated initial sentence within that

period); Morrison, 460 F.3d at 1094 (same); see also Vicol, 460

F.3d at 696 ("Rule 35 requires a district court to actually

resentence a defendant within the seven-day period therein

described."). This reading of Rule 35 is consistent with the

statute's plain language. Vicol, 460 F.3d at 695 ("[T]he plain

language of the rule . . . makes clear that the district court must

correct the sentence within the time limitation imposed, and not

simply take some other undefined action toward that end, such as

scheduling a hearing . . . .").

The rationale for the strict seven-day time limit is

articulated in the advisory committee notes. Fed.R.Crim.P. 35

Advisory Committee's Notes (1991 amendment). "The Committee

United States v. Lopez, 26 F.3d 512, 518-20 (5th Cir. 1994).

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believed that the time for correcting such errors should be

narrowed within the time for appealing the sentence [to avoid

jurisdictional confusion] and to provide the parties with an

opportunity to address the [district] court's correction of the

sentence, or lack thereof, in any appeal of the sentence." Id.

Griffin, nevertheless, argues that the Supreme Court's

ruling in Eberhart suggests that Rule 35(a) is not jurisdictional.

In Eberhart, the Supreme Court analyzed Federal Rule of Criminal

Procedure 33. 546 U.S. at 15-16. This rule allows a defendant to

file a motion for a new trial "within 7 days after the verdict of

finding of guilty." Fed.R.Crim.P. 33(b)(2). The Court

characterized Rule 33 as a "claim-processing rule" that is not

jurisdictional and can be forfeited. Eberhart, 546 U.S. at 19. In

distinguishing between claim-processing rules and jurisdictional

rules, the Court noted that the latter rules "[delineate] the

classes of cases (subject-matter jurisdiction) and the persons

(personal jurisdiction) falling within a court's adjudicatory

authority." Id. at 16 (citation and internal quotation omitted).

Following its decision in Eberhart, the Court, in Bowles

v. Russell, 127 S. Ct. 2360, 2365 (2007), further clarified the

difference between claim-processing rules and jurisdictional rules.

The Court held that if a time limitation is set forth in a statute,

it is jurisdictional -- the rationale being that Congress has the

-25-
power to determine a lower federal court's subject matter

jurisdiction. Id.

Our conclusion that Rule 35(a) is jurisdictional is

consistent with both Eberhart and Bowles. Under Eberhart the

district court no longer had subject-matter jurisdiction when it

acted and therefore lacked the "adjudicatory authority" needed to

resentence Griffin. Section 3582 allows a court to alter an

imposed sentence in a limited class of cases including to the

extent permitted under Rule 35. 18 U.S.C. § 3582(c); Smith, 438

F.3d at 799 ("[Section] 3582(c) limits the substantive authority of

the district court . . . [and] is a real 'jurisdictional' rule

rather than a case-processing requirement."). In this case, the

district court modified Griffin's sentence under Rule 35. In doing

so, it failed to adhere to Rule 35's strictures and, accordingly,

lacked jurisdiction when resentencing Griffin. Moreover, the

conclusion that Rule 35(a) is jurisdictional comports with Bowles,

because the rule's seven-day time limit derives from a statute --

§ 3582(c). Although § 3582 does not expressly reference the rule's

seven-day limit, the entire rule is incorporated into the statute.

18 U.S.C. § 3582(c)(1)(B) ("The court may modify an imposed term of

imprisonment to the extent . . . permitted . . . by Rule 35 of the

Federal Rules of Criminal Procedure."). We thus join the Third

Circuit in holding that Rule 35 is jurisdictional, in light of both

Eberhart and Bowles. See United States v. Higgs, 504 F.3d 456, 464

-26-
(3d Cir. 2007) (holding that Rule 35's seven-day time limit is

jurisdictional under Bowles and rejecting defendant's argument that

Eberhart suggests otherwise).

Because Rule 35 is jurisdictional, it follows that a

district court choosing to resentence under that Rule must do so

within seven days of the initial sentence. Accordingly, Griffin's

original sentence must be reinstated.15

III. Conclusion

For the reasons stated above the conviction is affirmed,

the sentence is vacated, and the case remanded for reimposition of

the original sentence.

15
Because the court lacked authority under Rule 35(a) to resentence
Griffin outside the seven-day period, we need not reach the
government's alternative argument.

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