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USCA1 Opinion
December 7, 1993
[Not for Publication]
[Not for Publication]
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
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No. 93-1625
UNITED STATES,
Appellee,
v.
STEPHEN T. CONNOLLY,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas W. Hillman,* Senior U.S. District Judge]
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Before
Breyer, Chief Judge,
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Boudin and Stahl, Circuit Judges.
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Cornelius J. Sullivan with whom Brenda E. Walsh-Sullivan was on
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brief for appellant.
Michael J. Tuteur, Assistant United States Attorney, with whom A.
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John Pappalardo, United States Attorney was on brief for appellee.
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*Of the Western District of Michigan, sitting by designation.
Per Curiam. In this appeal, defendant Stephen
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Thomas Connolly challenges his convictions on four counts of
a five count indictment charging him with making false
statements to the United States, in violation of 18 U.S.C.
1001.1 Finding each of defendant's appellate arguments to
be entirely unpersuasive, we affirm.
This case arises out of defendant's failure to
disclose earned income while applying for and receiving
worker's compensation benefits. Defendant, a postal service
letter carrier, suffered a work-related back injury on
February 20, 1990. Soon thereafter, he made a claim for
partial disability and in support of it, filed a series of
Department of Labor CA-8 forms.2 On the four CA-8 forms
which underpin the counts of conviction, defendant left blank
sections 9a and 9b, which directed him to disclose any
salaried employment and/or commission and self-employment
(regardless of whether any income actually was earned
therefrom) in which he was engaged during the period he was
seeking disability compensation. At trial, however, the
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1. In that portion of the statute relevant to this case,
section 1001 provides: "Whoever, in any matter within the
jurisdiction of any department or agency of the United States
knowingly and willfully . . . makes any false, fictitious or
fraudulent statements or representations . . . shall be fined
not more than $10,000 or imprisoned not more than five years,
or both."
2. The CA-8 forms all carry the caption "Claim for
Continuing Compensation on Account of Disability."
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government demonstrated that, from August 1990 through August
1991, defendant was employed as a delivery man for Aku-Aku, a
Boston restaurant.3 Defendant does not contest this
employment and that he should have noted it in section 9 of
the four relevant CA-8 forms.
In his poorly organized appellate brief, defendant
makes three arguments which warrant brief discussion: (1)
that the evidence presented was insufficient for the jury to
have found that he acted "knowingly and willfully"; (2) that
the omitted information was not "material" and therefore
could not give rise to criminal liability under section 1001;
and (3) that the jury's verdict was impermissibly
inconsistent.4 We address each claim in turn.
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3. Although the government asserts that defendant maintained
his employment with Aku-Aku through October 1991, nothing in
the record indicates that defendant's employment with the
restaurant continued past August 1991. Regardless, this
discrepancy has no impact upon our analysis.
4. Defendant alludes to the question of whether leaving
section 9 blank can constitute a statement or representation
under section 1001. Given the fact that defendant presents
us with no argument and cites to no authority on this point,
and given the further fact that there is authority which
supports the proposition that leaving a form blank can
constitute a statement or representation under section 1001,
see United States v. Mattox, 689 F.2d 531, 533 (5th Cir.
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1982); United States v. Irwin, 654 F.2d 671, 676 (10th Cir.
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1981), cert. denied, 455 U.S. 1016 (1982), we will regard the
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argument as waived. See United States v. Innamorati, 996
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F.2d 456, 468 (1st Cir.) (issues adverted to in a perfunctory
manner deemed waived on appeal), cert. denied, 62 U.S.L.W.
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3320 (Nov. 1, 1993).
Defendant further challenges the indictment as
"multiplicitous." He has, however, also waived this argument
by failing to raise it prior to trial. See Fed. R. Crim. P.
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1. As is always the case when confronted with an
argument that there was insufficient evidence to support a
conviction, we review the evidence "in a light most favorable
to the government and resolv[e] all credibility issues in its
favor." E.g., United States v. Fisher, 3 F.2d 456, 462 n.18
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(1st Cir. 1993). Here, there was ample evidence upon which
the jury could have rested its conclusion that defendant, in
failing to complete sections 9a and 9b of the relevant CA-8
forms, acted "knowingly and willfully." Defendant admitted
at trial that he probably read sections 9a and 9b of the CA-8
forms, and that he didn't find the wording of these sections
ambiguous or confusing. Moreover, there was evidence, in the
form of both a sworn statement given by defendant to postal
inspectors investigating his case and in the form of
testimony by one of these postal inspectors, that defendant
understood that he was obliged to report income from outside
employment on the CA-8 forms.5 In light of this, it is
apparent that defendant's sufficiency argument must fail.
2. Defendant's second argument, that the omitted
information was not "material," does not require extended
discussion. While it is true that "``[m]ateriality of the
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12(b)(2) and Fed. R. Crim. P. 12(f) (defenses and objections
based upon defects in the indictment must be raised prior to
trial); see also United States v. Rodriguez, 858 F.2d 809,
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816-17 (1st Cir. 1988).
5. On appeal, defendant does not argue that this evidence
was improperly admitted.
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alleged misstatements is an essential element of offenses
defined by 18 U.S.C. 1001,'" United States v. Corsino, 812
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F.2d 26, 30 (1st Cir. 1987) (quoting United States v.
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Radetsky, 535 F.2d 556, 571 (10th Cir.), cert. denied, 429
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U.S. 820 (1976)), we have defined "material" information as
merely that which has "``a natural tendency to influence, or
[is] capable of affecting or influencing, a governmental
function,'" Corsino, 812 F.2d at 30 (quoting United States v.
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Markham, 537 F.2d 187, 196 (5th Cir. 1976), cert. denied, 429
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U.S. 1041 (1977)). Thus, statements can be material even if
they were ignored, never relied upon, or never read by the
agency. See Corsino, 812 F.2d at 31.
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Here, there was uncontroverted trial testimony
that, if defendant had disclosed his income from Aku-Aku, the
Department of Labor might have readjusted his disability
compensation. Furthermore, there was uncontroverted trial
testimony that, if defendant had disclosed his delivery job,
the Department of Labor might have reevaluated his medical
status. Given this testimony, there is no basis for us to
upset the district court's finding, see id. at 31 n.3
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(materiality under section 1001 is a question for the
court, and not the jury, to decide), that the omitted
information was material.6
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6. At oral argument, counsel for defendant indicated that he
was precluded from cross-examining the relevant government
witnesses on the issue of materiality. Our review of the
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3. Defendant's third and final argument, that the
jury's verdict was impermissibly inconsistent, also is
unavailing. Even if we were to credit defendant's dubious
assertion that the verdict here necessarily was inconsistent,
it is well settled that, in criminal cases, "[c]onsistency in
the verdict is not necessary." Dunn v. United States, 284
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U.S. 390, 393 (1932); see also United States v. Powell, 469
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U.S. 57, 63-69 (1984); United States v. Gonzalez-Torres, 980
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F.2d 788, 791 (1st Cir. 1992). Accordingly, we summarily
reject defendant's request for a new trial insofar as it is
based upon his claim that the verdict here was inconsistent.
Affirmed.
Affirmed.
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record, however, reveals that defense counsel was not, in
fact, prevented from so inquiring.
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Document Info
Docket Number： 93-1625
Filed Date： 12/7/1993
Precedential Status： Precedential
Modified Date： 9/21/2015