United States v. Kilmartin ( 2019 )

United States Court of Appeals
For the First Circuit
No. 18-1513
UNITED STATES OF AMERICA,
Appellee,
v.
SIDNEY P. KILMARTIN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Barron, Selya, and Boudin,
Circuit Judges.
Jamesa J. Drake, with whom Drake Law LLC was on brief, for
appellant.
Benjamin M. Block, Assistant United States Attorney, with
whom Halsey B. Frank, United States Attorney, was on brief, for
appellee.
December 6, 2019
SELYA, Circuit Judge. This appeal arises against the
backdrop of a criminal scheme that was as cruel as it was cynical.
When the scheme came to light, a federal grand jury sitting in the
District of Maine charged defendant-appellant Sidney P. Kilmartin
with an array of offenses. The defendant pleaded guilty to nine
fraud-related counts and went to trial on the remaining six counts
of the superseding indictment (one charging mailing injurious
articles resulting in death, see 18 U.S.C. § 1716; two charging
wire fraud, see id. § 1343; one charging mail fraud, see id.
§ 1341; one charging witness tampering, see id. § 1512; and one
charging witness retaliation, see id. § 1513). The jury found the
defendant guilty on five of the six tried counts, acquitting him
of witness retaliation. The district court denied the defendant's
post-trial motion for judgment of acquittal and/or a new trial.
It then sentenced him to concurrent terms of immurement on the
fourteen counts of conviction.
In this venue, the defendant raises a golconda of issues.
We hold that the evidence was sufficient to convict on the tried
"mailing injurious articles" and witness tampering counts (counts
1 and 14). With respect to those counts and the fraud-related
counts involving Denton (counts 5, 7, and 12), all of which were
tried, we hold that the district court abused its discretion in
admitting highly charged evidence having powerfully prejudicial
effect but scant probative value. Given the strength of the
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government's evidence of guilt, this error, though egregious, was
harmless as to most of the tried counts. However, as to count 14
(the witness tampering count) the error was not harmless, and we
order a new trial on that count. Finally, we reject the
defendant's claim of sentencing error. The tale follows.
I. BACKGROUND
We briefly rehearse the background and travel of the
case, taking the facts in the light most congenial to the
government, consistent with record support. See, e.g., United
States v. Singh, 222 F.3d 6, 8 (1st Cir. 2000).
In September of 2012, the defendant falsely posed as a
commercial goldsmith to order one hundred grams (at least five
hundred lethal doses) of ninety-eight percent pure potassium
cyanide (cyanide) from a California vendor. The cyanide cost him
about $127. Because the vendor would not ship the cyanide to a
residential address, the defendant had it sent to a UPS store in
Augusta, Maine. He retrieved the merchandise on the day that it
arrived.
The defendant's next step was to create a Gmail account,
which allowed him to blog. He proceeded to post, on a website for
suicidal people called "wantdeathblogspot," that he had
industrial-grade cyanide for sale. From around September of 2012
until approximately May of the following year, the defendant
exchanged cyanide-related emails with people all over the world,
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including Australia, Canada, India, Nigeria, South Africa, the
United Kingdom, and the United States. A subsequent search of the
defendant's Gmail account revealed 484 email strings from about
274 unique email addresses. In these emails, the defendant agreed
to sell cyanide to several persons from whom he received payments
ranging from $150 to $250. But there was a rub: instead of
mailing cyanide to these purchasers, the defendant sent them Epsom
salts (which he represented to be cyanide).
One of the defendant's duped customers was Andrew Denton
of Hull, England. According to his niece, Denton "was just adamant
that he wanted to commit suicide." Denton ordered cyanide from
the defendant, who mailed Epsom salts to him on November 16, 2012.
The parcel arrived at the end of November, and Denton ingested the
substance in an effort to kill himself. The attempt failed, and
an irate Denton complained to the FBI Internet Crime Complaint
Center (IC3).
In his complaint, Denton described his dealings with the
defendant, noting that what he received could not have been cyanide
since "[i]t did not work." Denton also advised the defendant about
the IC3 complaint. On December 8, 2012, the defendant emailed
Denton, mentioned the possibility of a second shipment, and
described how Denton could order cyanide directly from the
California vendor "if all else fails." The following day, Denton
updated his IC3 complaint, stating that his issue had been resolved
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and he did not wish to pursue his complaint. Two days later, the
defendant mailed a second parcel to Denton.
The second parcel, which actually contained cyanide,
arrived on December 20. That same day, the defendant emailed
Denton asking if Denton could "do something" with his hard drive
"before [his] event." Expressing concern about the FBI being
"aware of [his] goings on," the defendant stated that "the last
thing" he needed was "to give [the FBI] more fodder." Denton
replied that he would delete their emails, explained his
understanding that the IC3 complaint would remain open but inactive
for three months, and expressed his hope that the cyanide would
"work[] this time." Denton's niece found him dead on December 31.
Subsequent toxicological examination disclosed lethal levels of
cyanide in his blood.
Notwithstanding Denton's effort to retract his
complaint, the FBI continued its investigation. This probe ripened
into an indictment and — in December of 2015 — the grand jury
returned a superseding indictment. Count 1 limned the "mailing
injurious articles" charge; counts 2 through 13 charged wire and
mail fraud offenses (based on a scheme to defraud suicidal people
and to obtain money by false pretenses, specifically, by pretending
to sell cyanide but sending Epsom salts instead);1 count 14 charged
1 Three of these fraud counts related to the defendant's
initial transaction with Denton. The remainder related to the
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the defendant with witness tampering, that is, with killing Denton
knowingly, intending to prevent his testimony in an official
proceeding and to prevent him from communicating information
related to the possible commission of a federal offense to a law
enforcement officer; and count 15 charged the defendant with
witness retaliation, that is, killing Denton to retaliate for
Denton's supplying of information to IC3 regarding the commission
of a federal offense.
The defendant's trial was scheduled to start on October
3, 2016. That morning, the defendant entered guilty pleas to the
nine non-Denton counts. The trial went forward on the remaining
six counts. Four of the defendant's fraud victims testified for
the government (including one as to whom the defendant's fraud had
not been charged). A victim's grandmother also testified at the
government's behest about the uncharged fraud perpetrated against
her minor granddaughter. In addition, the government introduced
testimony from a British detective about yet another victim.
When the trial concluded, the jury convicted the
defendant on all the tried counts, save for count 15 (witness
retaliation). In post-trial proceedings, the defendant moved for
defendant's communication with, receipt of payment from, and
mailing Epsom salts to four other victims of the scheme. We
sometimes refer to the counts involving these four victims,
collectively, as the non-Denton counts and to victims of the
scheme, other than Denton, as non-Denton victims.
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judgments of acquittal on counts 1 and 14 due to allegedly
insufficient evidence. See Fed. R. Crim. P. 29(c). In the same
motion, he sought a new trial on all of the tried counts of
conviction based on claimed evidentiary error. See id. R. 33.
The district court denied the motion in all its aspects. It then
sentenced the defendant to twenty years of incarceration (the
statutory maximum) on each fraud-related count and twenty-five
years of incarceration on counts 1 and 14, stipulating that all of
the sentences were to run concurrently. This timely appeal
followed.
II. ANALYSIS
The defendant's asseverational array contains three main
parts. First, he argues that the district court erred in refusing
to order judgments of acquittal on counts 1 and 14. Second, he
argues that the district court should have excluded certain
evidence and that the failure to do so unfairly prejudiced the
jury against him, necessitating a new trial on all the tried counts
that resulted in convictions. Third, he alleges sentencing error
as to the sentences imposed on the fraud-related counts. We
address these arguments below.
Before undertaking our analysis, we pause to confirm
that we review the district court's denial of a motion for judgment
of acquittal de novo. See United States v. Gomez, 255 F.3d 31, 35
(1st Cir. 2001). Where, as here, the defendant challenges the
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sufficiency of the evidence, all of the proof "must be perused
from the government's perspective." Id. A reviewing court must
determine whether that evidence, including the plausible
inferences therefrom, "enables a rational factfinder to conclude
beyond a reasonable doubt that the defendant committed the charged
crime." Id. (quoting United States v. Noah, 130 F.3d 490, 494 (1st
Cir. 1997)). The court need not be convinced that the verdict is
correct; it need only be satisfied that the verdict is supported
by the record. See id.
Although the defendant's motion for judgment of acquittal
targets both count 1 and count 14, the circumstances attendant to
this appeal counsel in favor of bifurcating our inquiry. Thus, we
treat separately each of the targeted counts.
A. Judgment of Acquittal: Count 1.
It is not possible to address the motion for judgment of
acquittal on count 1 in a vacuum. First, we must resolve a
threshold issue. Only then can we turn to the merits of the
request for an acquittal. Specifically, we must resolve an
apparent discrepancy between the indictment and the proof at trial.
1. Constructive Amendment. As stated in the superseding
indictment, count 1 charged the defendant with a misdemeanor
(mailing nonmailable poison), together with an enhancement for
"death resulting." The indictment itself did not allude to a mens
rea requirement. At trial, though, the parties and the district
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court approached count 1 as if it charged a felony under a
different paragraph of the "mailing injurious articles" statute.
That paragraph requires the government to show that the defendant
had mailed an injurious article with the intent to kill or injure
another. The government labored to prove this intent at trial,
both parties requested that the district court instruct the jury
on this intent element, and the district court obliged. As
explained below, this series of events added up to a constructive
amendment of count 1.
"A constructive amendment occurs when the charging terms
of an indictment are altered, either literally or in effect, by
prosecution or court after the grand jury has last passed upon
them." United States v. McIvery, 806 F.3d 645, 652 (1st Cir. 2015)
(quoting United States v. Brandao, 539 F.3d 44, 57 (1st Cir.
2008)). Constructive amendments have Fifth and Sixth Amendment
implications. See id. These implications typically arise from "a
mismatch between the indictment's description of the charged
offense and some other variable," such as the evidence offered,
the jury instructions given, or the sentence imposed. Id.
In this instance, the statute of conviction provides in
relevant part:
(1) Whoever knowingly deposits for
mailing or delivery . . . anything declared
nonmailable by this section, unless in
accordance with the rules and regulations
authorized to be prescribed by the Postal
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Service, shall be fined under this title or
imprisoned not more than one year, or both.
(2) Whoever knowingly deposits for
mailing or delivery . . . anything declared
nonmailable by this section, whether or not
transmitted in accordance with the rules and
regulations authorized to be prescribed by the
Postal Service, with intent to kill or injure
another . . . shall be fined under this title
or imprisoned not more than twenty years, or
both.
(3) Whoever is convicted of any crime
prohibited by this section, which has resulted
in the death of any person, shall be subject
also to the death penalty or to imprisonment
for life.
18 U.S.C. § 1716(j). Count 1 of the superseding indictment, by its
terms, charged the defendant with the misdemeanor offense
described in (j)(1) along with the sentencing enhancement
described in (j)(3):
[T]he defendant . . . knowingly deposited for
mailing and delivery something declared
nonmailable . . . not in accordance with rules
and regulations prescribed by the United
States Postal Service, in other words,
potassium cyanide, a poison, which resulted in
the death of a person . . . . All in violation
of 18 U.S.C. § 1716(j)(3).
At trial, however, the parties and the district court treated count
1 as if the offense was charged under (j)(2) and (j)(3), not (j)(1)
and (j)(3).2 During its preliminary instructions, the district
court told the jurors that in order to find the defendant guilty
2 Although the record is tenebrous as to the reason for this
shift in focus, we note that the original indictment (later
superseded) clearly charged the defendant with violating paragraph
(j)(2).
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under count 1, they had to find, among other things, that the
defendant acted "with the intent to kill or injure another." The
jury instructions proposed by both the government and the defendant
included this "intent to kill or injure another" element. Not
surprisingly, then, the district court mirrored this language in
defining the elements of count 1 when it charged the jury.
Although the constructive amendment of an indictment may
constitute grounds for reversal of a conviction, see United States
v. Bucci, 525 F.3d 116, 131 (1st Cir. 2008); cf. McIvery, 806 F.3d
at 651 (reviewing unpreserved claim of constructive amendment for
plain error), the defendant has not raised this issue on appeal
(or, for that matter, in the district court). Except in rare
instances — and this is not one of them — we have no duty to raise
arguments for a party who has not seen fit to raise those arguments
himself. See, e.g., United States v. Flete-Garcia, 925 F.3d 17,
38 (1st Cir.), cert. denied, No. 19-5757, 2019 WL 5150648 (U.S.
Oct. 15, 2019); cf. United States v. Mercado-Flores, 872 F.3d 25,
28 (1st Cir. 2017) (noting appellate court's obligation to raise
jurisdictional issues sua sponte). At any rate, the constructive
amendment did not prejudice the defendant in any respect because
it had the effect of adding another element that the government
was required to prove beyond a reasonable doubt. We therefore
conclude that count 1 was constructively amended with the implied
consent of the parties. We proceed accordingly.
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2. The Merits. Having ironed out this wrinkle, we now
reach the question of whether the evidence was sufficient to
support the defendant's conviction on count 1 (as constructively
amended). To begin, it is important to note that the defendant
challenges the sufficiency of the evidence only with respect to
the "death resulting" element of the offense. He contends that
his conduct was neither the actual nor the proximate cause3 of
Denton's death because Denton voluntarily took his own life.
The defendant's conduct is an actual, but-for cause of
harm when that harm would not have occurred without it. See United
States v. Ortiz-Carrasco, 863 F.3d 1, 5 (1st Cir. 2017) (concluding
that defendant's conduct was but-for cause of victim's drowning
where defendant embarked on voyage on overcrowded yola, traveled
in rough seas in the dark, and had no safety equipment aboard).
But-for causation is often regarded as "the minimum requirement
for a finding of causation." Id. (emphasis in original) (quoting
Burrage v. United States, 134 S. Ct. 881, 888 (2014)). A
defendant's conduct can be a but-for cause of harm even when it
3 The defendant's briefing on this point is confusing. For
instance, his reply brief indicates that this "case is about actual
causation, not . . . proximate causation." Yet his opening brief
contends at some length that Denton's own conduct "was an
intervening and superseding cause" of Denton's death. In fairness
to the defendant, we think that this latter argument remains in
the case — and it is steeped in the language of proximate cause.
See, e.g., 1 Wayne R. LaFave, Substantive Criminal Law § 6.4(c)
(3d ed. 2018).
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combines with other independent causes. See Burrage, 134 S. Ct.
at 888. As Justice Scalia explained: "if poison is administered
to a man debilitated by multiple diseases, it is a but-for cause
of his death even if those diseases played a part in his demise,
so long as, without the incremental effect of the poison, he would
have lived." Id.
Appraising the evidence in the light most favorable to
the government, it was more than sufficient to ground a finding
that the defendant's conduct was a but-for cause of Denton's
demise. The jury saw the empty beaker and the mailer with the
defendant's return address recovered from Denton's home, and it
heard evidence of test results indicating that the residue in the
mailer was cyanide. So, too, the jury heard evidence that a lethal
quantity of cyanide had been discovered in Denton's blood.
Finally, the jury heard testimony from investigators who had
determined Denton's death to be a suicide and had ruled out other
causes of death. If the defendant had not sent Denton a deadly
dose of cyanide, the defendant could not have ingested it and died.
No more was exigible to ground a finding that the defendant's
conduct was a but-for cause of Denton's death.
The defendant rejoins that this conception of the chain
of causation is too "literal" and that Denton's actions in mixing
and ingesting the poison were intervening events that broke the
but-for causal connection. This rejoinder blinks reality.
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Although Denton's desire to end his life surely played a part in
his suicide, he would not have been successful but for the
defendant's provision of cyanide. Viewing the evidence in the
requisite light, a rational factfinder could conclude — as this
jury did — that the defendant actually caused Denton's death.
In an effort to change the trajectory of the debate, the
defendant tries to invoke the rule of lenity. Marshaling a
sampling of cases in which defendants were charged with mailing
explosives under 18 U.S.C. § 1716, see, e.g., United States v.
Caraway, 534 F.3d 1290, 1292-93 (10th Cir. 2008), the defendant
baldly asserts that Congress did not intend the statute to cover
cases of assisted suicide. This assertion is belied by the broad
sweep of the language that Congress employed. Arraying the
evidence favorably to the government — as we must — the defendant's
actions fall squarely within the four corners of the conduct that
the text of the statute proscribes.
Undaunted, the defendant claims that the rule of lenity
requires construing the statute, notwithstanding its text, to
exclude the conduct with which he was charged. This is wishful
thinking. The rule of lenity only requires reading a criminal
statute in the accused's favor when that statute is so unclear
that courts are left to guess what Congress intended. See United
States v. Ahlers, 305 F.3d 54, 62 (1st Cir. 2002). To engage the
gears of the rule, the lack of clarity must be genuine: "a statute
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is not ambiguous simply because litigants . . . question its
interpretation." Id.
The defendant argues that section 1716 is ambiguous
because (in his view) it is meant to cover things like bombs (which
are mailed to unwitting victims and kill immediately), not things
like the cyanide (which he mailed to a person who specifically
requested it and which kills only after some further act, such as
ingestion). The text of the statute of conviction does not give
this argument as much as a shred of support. As written, the
statute has a plain and plausible meaning. It unambiguously
prohibits mailing not only things like bombs but also poisons,
insects, and scabs (which do not necessarily kill immediately).
The sentencing enhancement applies whenever mailing such an
injurious article "result[s] in the death" of a person. That
enhancement, read in context, is not ambiguous and does not permit
the distinction that the defendant attempts to insinuate into it.
In short, both the superseding indictment (as constructively
amended) and the government's proof bring count 1 comfortably
within the statute's well-defined reach. And because we discern
no relevant ambiguity, we find no basis for resorting to the rule
of lenity. See id.
As a fallback, the defendant attempts to argue that the
proper measure of causation was proximate cause (a more rigorous
standard). See, e.g., Paroline v. United States, 134 S. Ct. 1710,
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1719 (2014). This argument, though, is foregone. During the
charge conference, a protracted discussion ensued about the
propriety of a but-for causation instruction as the appropriate
means of establishing the "death resulting" element under count 1.
Defense counsel told the court that he could not "argue that it
isn't the law." The district court proceeded to instruct on but-
for causation, and the defendant neither interposed an objection
nor asked for a proximate cause instruction. Cf. Fed. R. Crim. P.
30 (providing that parties may request specific instructions at or
before close of evidence and must object to instructions given
before jury retires to deliberate).
"We have made it luminously clear that '[a] party waives
a right when he intentionally relinquishes or abandons it.'"
United States v. Orsini, 907 F.3d 115, 119 (1st Cir. 2018)
(alteration in original) (quoting United States v. Rodriguez, 311
F.3d 435, 437 (1st Cir. 2002)). As a general rule, waived claims
are unreviewable on appeal. See id. In this instance, the
defendant waived any entitlement to a proximate cause instruction.
What happened here falls comfortably within the general rule of
unreviewability, not within the long-odds exception to that rule.
See id. at 120-21. By explicitly acquiescing in the
appropriateness of a but-for causation standard, eschewing any
objection to the district court's but-for causation instruction,
and failing to request a proximate cause instruction, the defendant
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waived any claim that the offense of conviction required a finding
of proximate cause.
If more were needed — and we doubt that it is — "[i]t is
settled that, when a cause is submitted to the jury under an
instruction, not patently incorrect or internally inconsistent, to
which no timely objection has been lodged, the instruction becomes
the law of the case." United States v. Gomes, 969 F.2d 1290, 1294
(1st Cir. 1992); see United States v. Zanghi, 189 F.3d 71, 77-80
(1st Cir. 1999) (concluding that jury instruction increasing level
of intent required to convict was "patently erroneous" and did not
become the law of the case). That is precisely the situation here:
the district court's treatment of causation in its charge to the
jury was neither patently incorrect nor internally inconsistent.
The court instructed on but-for causation, consistent with case
law interpreting similarly worded "results" elements in other
criminal statutes. See, e.g., United States v. Webb, 655 F.3d
1238, 1250, 1255-56 (11th Cir. 2011) (18 U.S.C. § 1347(a) and 21
U.S.C. § 841(b)(1)(C)); United States v. De La Cruz, 514 F.3d 121,
137-38 (1st Cir. 2008) (21 U.S.C. § 841(b)(1)(A)); cf. United
States v. Pacheco, 489 F.3d 40, 46-47 (1st Cir. 2007) (interpreting
USSG §5K2.2's authorization of upward departure when significant
physical injury resulted from commission of offense of
conviction). Thus, all roads lead to Rome: whether we examine
the defendant's proximate cause argument in terms of waiver or
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law-of-the-case doctrine, a conviction on count 1 required the
government to prove no more than but-for causation.
The final piece of the puzzle falls easily into place.
As we already have elaborated, the jury had ample evidence from
which to find that the defendant's conduct was the but-for cause
of Denton's death. Consequently, the district court did not err
in denying the defendant's motion for judgment of acquittal with
respect to count 1.
B. Judgment of Acquittal: Count 14.
The defendant also challenges the denial of his motion
for judgment of acquittal with respect to count 14 (the witness
tampering count). In his view, the evidence on this count was
insufficient for two reasons. First, he contends that the
government's proof was inadequate because it did not show that his
conduct actually or proximately caused Denton's death. Second, he
contends that the evidence was inadequate to show that he "killed"
Denton within the purview of the statute of conviction. We address
each contention in turn.
The statute of conviction provides in relevant part:
(a)(1) Whoever kills or attempts to kill
another person, with intent to —
(A) prevent the attendance or
testimony of any person in an official
proceeding; [or]
. . .
(C) prevent the communication by any
person to a law enforcement officer or
judge of the United States of information
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relating to the commission or possible
commission of a Federal offense . . .
shall be punished as provided [by law].
18 U.S.C. § 1512. In order to convict the defendant under section
1512(a)(1)(C), the government had to prove a killing aimed at
preventing a communication to a federal law enforcement officer
about the commission or possible commission of a federal crime.
See Fowler v. United States, 563 U.S. 668, 672 (2011). The
defendant's initial complaint about evidentiary insufficiency is
narrowly focused. He says that the government failed to prove the
requisite causation. We already have rejected the defendant's
argument that no reasonable jury could have found that his conduct
was a but-for cause of Denton's death, see supra Part II(A)(2),
and no useful purpose would be served by repastinating that ground.
The remaining pieces of the defendant's causation
argument — that proof of proximate cause was required to sustain
a conviction under 18 U.S.C. § 1512(a)(1) and that such proof was
lacking here — fare no better. Importantly, the district court
did not give any specific instruction on causation (nor was it
asked to do so). Instead, the court charged the jury that to
convict on count 14, it simply had to find "[f]irst, that . . .
[the defendant] knowingly killed [Denton]; and second, that [the
defendant] did so with the intent to prevent a communication about
the commission of a federal offense to a federal law enforcement
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officer." Inasmuch as the defendant did not object to this
instruction, his claim of error is forfeited, and our review is
for plain error.4 See United States v. Duarte, 246 F.3d 56, 60
(1st Cir. 2001). Such review requires four showings: "(1) that
an error occurred (2) which was clear or obvious and which not
only (3) affected the defendant's substantial rights, but also
(4) seriously impaired the fairness, integrity, or public
reputation of judicial proceedings." Id. The proponent of plain
error (here, the defendant) must carry the devoir of persuasion as
to each of these four components. See United States v. Brown, 235
F.3d 2, 4 (1st Cir. 2000).
When a crime specifies both conduct and result elements,
a defendant ordinarily may not be convicted unless his conduct is
both the but-for and the proximate cause of the result. See
Burrage, 134 S. Ct. at 887 (citing 1 Wayne R. LaFave, Substantive
Criminal Law § 6.4(a) (2d ed. 2003); Model Penal Code § 2.03 (Am.
Law Inst. 1985)). As to count 14, the statute of conviction is
silent regarding the nature of the requisite causal nexus. See 18
4 While the defendant neither objected to the court's
instruction nor requested a proximate cause instruction with
respect to count 14, these circumstances differ from those
surrounding count 1. With respect to the latter count, the
defendant expressly agreed that but-for causation sufficed to
convict. Yet he made no such representation with respect to count
14. The absence of such an express representation explains why we
treat his argument vis-à-vis count 14 as forfeited, not waived.
See Rodriguez, 311 F.3d at 437 (explicating distinction between
forfeited claims and waived claims).
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U.S.C. § 1512(a)(1). We are cognizant, though, that the Supreme
Court on several occasions has found a proximate cause requirement
built into a statute that did not explicitly impose such a
requirement. See Paroline, 134 S. Ct. at 1720 (collecting cases).
Proximate causation sets a higher bar than but-for causation,
demanding "some direct relation between the injury asserted and
the injurious conduct alleged." Id. at 1719 (quoting CSX Transp.,
Inc. v. McBride, 564 U.S. 685, 707 (2011) (Roberts, C.J.,
dissenting)).
It is an interesting question whether section 1512(a)(1)
demands proof of proximate causation as opposed to some lesser
strain of causation. But courts should not rush to answer
unsettled questions, see Privitera v. Curran (In re Curran), 855
F.3d 19, 22 (1st Cir. 2017), and this question is one that we need
not answer. Even assuming (as the government concedes) that the
statute of conviction requires a showing of proximate cause, it is
neither clear nor obvious that the evidence in this case is
insufficient to sustain the conviction on count 14. We explain
briefly.
Viewing the evidence in the light most hospitable to the
government, a rational jury could find that the defendant's conduct
proximately caused Denton's death. After all, the evidence was
sufficient to support findings that the defendant, the second time
around, sent real cyanide to Denton, knowing that the cyanide was
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lethal and that Denton intended to ingest it; that Denton received
the cyanide; that Denton swallowed it; and that he died as a
result. Proximate cause is commonly understood as a function of
the foreseeability of the harm. See, e.g., United States v.
Chiaradio, 684 F.3d 265, 284 (1st Cir. 2012) ("The evidence must
show that the defendant's conduct created a reasonably foreseeable
risk of harm to the victim, notwithstanding that others may also
have contributed to that harm."). Intervening causes normally do
not break the causal chain if they are foreseeable. See Paroline,
134 S. Ct. at 1719 (explaining that purpose of proximate cause
requirement is to preclude liability where link between conduct
and result is merely fortuitous).
Here, Denton's death was entirely foreseeable. Among
other things, the defendant posted his cyanide advertisement on a
suicide blog, and his avowed purpose in sending Denton genuine
cyanide the second time around was to facilitate Denton's demise.
On this record, we are satisfied that a rational jury could
conclude that the defendant proximately caused Denton's death by
mailing him cyanide with which to commit suicide.
The defendant has a fallback position as to count 14.
This position hinges on the meaning of "kill" as that word is used
in the statute of conviction. The defendant would have us read
"kill" in that context as synonymous with "murder." But this "kill
is tantamount to murder" argument is presented only in connection
- 22 -
with his assertion that the statute of conviction requires proof
of some direct causal link between the charged conduct and Denton's
death. That assertion goes nowhere: as we previously have
explained, the evidence was sufficient to ground a finding that a
causal relationship existed between the defendant's conduct and
Denton's death.5 See text supra. No more is exigible.
Even though the defendant eschews a mens rea attack, his
comments about the meaning of "kill" might theoretically be
directed to the mens rea that a defendant must possess in relation
to his victim's death. See Schad v. Arizona, 501 U.S. 624, 640
(1991) (plurality opinion) ("At common law, murder was defined as
the unlawful killing of another human being with 'malice
aforethought.'"). The statute of conviction does not define the
word "kill." And during the charge conference, neither party
requested an instruction elucidating the meaning of the word.
Following the parties' lead, the district court did not expound on
the meaning in its jury instructions, and neither party objected.
5To like effect, the defendant contends that "resulted in,"
as used in the statute of conviction for count 1 (18 U.S.C.
§ 1716), requires the same causation as murder. The ordinary
meaning of the phrase forecloses this argument. See Burrage, 134
S. Ct. at 887 (explaining that "[a] thing 'results' when it
'[a]rise[s] as an effect, issue, or outcome from some action,
process or design'" (second and third alterations and emphasis in
original) (quoting 2 The New Shorter Oxford English Dictionary
2570 (1993))); see also De La Cruz, 514 F.3d at 137-38
(interpreting similarly worded "result" element in 21 U.S.C.
§ 841(b)(1)(A) as requiring only but-for causation).
- 23 -
Subsequent to the verdict, the defendant shifted gears and argued
for the first time that, under the statutory regime, the word
"kill" must be construed as synonymous with murder. Building on
this foundation, he submitted that he merely supplied the means
that Denton used to kill himself and did not participate in the
final act. Thus, he did not "kill" Denton but, rather, merely
assisted Denton's suicide.
In litigation as in life, timing is critically
important. So it is here: the defendant did not develop his
statutory "kill is tantamount to murder" argument until he filed
his post-conviction motion for judgment of acquittal under Federal
Rule of Criminal Procedure 29(c). Even then, he did not direct it
at the mens rea element. Because he did not seasonably raise this
mens rea argument at any time prior to the jury's verdict, his
post-conviction motion cannot give it a new lease on life. See
United States v. Alberico, 559 F.3d 24, 27 (1st Cir. 2009). In
light of this conspicuous procedural default, the most that the
defendant can expect is for us to review his late-blooming argument
for plain error.6
6 Given the defendant's decision not to brief a mens rea
theory, this aspect of his argument is likely waived, see United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues
adverted to in a perfunctory manner, unaccompanied by some effort
at developed argumentation, are deemed waived."), and, thus,
either unreviewable or reviewable only for "clear and gross
injustice," United States v. Valenzuela, 849 F.3d 477, 484 (1st
Cir. 2017) (quoting United States v. Cheung, 836 F.2d 729, 730 n.1
- 24 -
We need not tarry. As we have said, the defendant's
argument rests on the premise that "kill," as used in 18 U.S.C.
§ 1512(a)(1), means "murder." To support this argument, the
defendant points to cases in which courts have used "murder"
interchangeably with "kill" in discussing the witness tampering
statute. See, e.g., Fowler, 563 U.S. at 679-80 (Scalia, J.,
concurring in the judgment) (using "murder" hypothetical); United
States v. Burgos-Montes, 786 F.3d 92, 111-12 (1st Cir. 2015)
(stating that defendant faced charges for "murdering" victim to
prevent communication with law enforcement); United States v.
Tyler, 732 F.3d 241, 245 (3d Cir. 2013) (similar). But judicial
dicta often include imprecise shorthands. This is such an
instance. Because none of the quoted statements concerns the
"kill" element, those cases are of scant assistance here.
The defendant also points to section 1512's penalty
provisions and specifically notes that killing a witness shall be
punished as provided in 18 U.S.C. §§ 1111 and 1112. See 18 U.S.C.
§ 1512(a)(3)(A). Those sections, in turn, set out the penalties
for first degree murder, second degree murder, voluntary
manslaughter, and involuntary manslaughter — penalties that range
from a term of years all the way to capital punishment. The
(1st Cir. 1988) (per curiam)). Here, however, nothing turns on
these distinctions, so we assume, favorably to the defendant, that
review for plain error is available.
- 25 -
defendant argues that punishing violations of section 1512(a) on
the level of manslaughter might make sense but that his conduct
did not even meet the elements of manslaughter, as he merely
"suppl[ied] the means of death" rather than murdered or killed
Denton.
Even if "kill," as used in section 1512(a), means murder
or manslaughter — a matter on which we express no opinion — it is
neither clear nor obvious that the defendant's conduct amounted to
something less than murder. "Murder is the unlawful killing of a
human being with malice aforethought." Id. § 1111(a). The
elements of murder require that a defendant engage in some conduct,
such as an affirmative act; that he act with a malicious mens rea,
such as an intent to kill; and that his conduct cause death. See
2 Wayne R. LaFave, Substantive Criminal Law § 14.1(f) (3d ed.
2018). Here, it is neither clear nor obvious that a rational jury
could not conclude that the defendant acted with the intent to
kill when he shipped a lethal dose of cyanide to a man whom he
knew to be suicidal.
Similarly, it is neither clear nor obvious that a
rational jury could not find that the defendant's conduct amounted
to manslaughter (which, after all, is a lesser included offense of
murder under federal law, see 18 U.S.C. § 1112(a) ("Manslaughter
is the unlawful killing of a human being without malice."); United
States v. Lincoln, 630 F.2d 1313, 1320 (8th Cir. 1980)). And for
- 26 -
what it may be worth, many states treat assisted suicide as a
species of manslaughter. See, e.g., Alaska Stat. § 11.41.120;
Ariz. Rev. Stat. Ann. § 13-1103; Ark. Code Ann. § 5-10-104; Colo.
Rev. Stat. § 18-3-104; Conn. Gen. Stat. § 53a-56; Fla. Stat.
§ 782.08; Mo. Rev. Stat. § 565.023; N.Y. Penal Law § 125.15; Or.
Rev. Stat. § 163.125; see also LaFave, supra, § 15.6(c).
No more need be said. For these reasons, we hold that
the district court committed no reversible error in denying the
defendant's motion for judgment of acquittal with respect to count
14.
C. Admission of Evidence.
We proceed next to the defendant's contention that some
evidence was improperly admitted. He contends that his objections
should have been sustained to certain testimony from or about the
non-Denton victims, as well as to Exhibit 16 — a 113-page chart
containing the contents of 484 email strings, which memorialize
the defendant's correspondence with persons who replied to his
cyanide advertisement (including both purchasers and potential
purchasers). For ease in exposition, we refer to all of this body
of evidence, in the aggregate, as the "anecdotal background
evidence." In the defendant's view, the anecdotal background
evidence was either wholly or partially inadmissible under Federal
Rule of Evidence 403.
- 27 -
By means of a pretrial filing, the defendant indicated
that he intended to object generally to the anecdotal background
evidence (specifically, to any evidence that he had swindled any
victims other than those identified in the various fraud counts of
the superseding indictment and, in addition, to any testimony about
non-Denton victims' mental health histories). On the morning that
trial began, the district court indicated that the objections —
which the defendant tied so tightly at sidebar to Rule 403 that
the court described this as his "real objection" — should be raised
during trial. The court stated that it would make a "formal[]
rul[ing]" at that time, and defense counsel would have a continuing
objection from that point forward, without needing to object
thereafter. The trial got underway. The first time the government
sought to introduce any specific evidence about non-Denton
victims, the defendant — in furtherance of the praxis prescribed
by the district court — objected to Exhibit 10 (a document
concerning a non-Denton victim not named in the indictment). The
court nonetheless admitted the evidence and gave a limiting
instruction, based on Federal Rule of Evidence 404(b), about the
purposes for which the jury could consider it.
Before any more evidence about non-Denton victims was
admitted (including anecdotal background evidence), the defendant
sought clarification as to whether the court had provided a
"definitive ruling" because he did not want to continue "being
- 28 -
overruled" in front of the jury and "interrupt[ing] the trial."
The court replied in the affirmative and asked only that the
defendant request a further limiting instruction whenever he
deemed it necessary.
From then on, the parties appear to have treated the
defendant's Rule 403 objection to the anecdotal background
evidence as subject to a continuing objection (which we sometimes
call a "blanket objection"). Reinforcing this blanket objection,
the defendant objected from time to time to the admission of
specific pieces of non-Denton evidence (including Exhibit 16).
Our case law has long permitted the use of blanket
objections at or before trial as an efficacious means of preserving
issues for appellate review. See United States v. Ladd, 885 F.2d
954, 958 (1st Cir. 1989). In determining whether a blanket
objection sufficiently preserves a particular claim of evidentiary
error, courts typically consider whether the trier had the
opportunity to address the issue, see United States v. Simms, 757
F.3d 728, 733-34 (8th Cir. 2014); whether "[t]he substance of the
objection . . . was thoroughly explored," Palmerin v. City of
Riverside, 794 F.2d 1409, 1413 (9th Cir. 1986); whether the
objecting party was entitled to rely on the trier's grant of the
blanket objection, see United States v. Sanchez-Hernandez, 507
F.3d 826, 831 (5th Cir. 2007); and whether testimony admitted
without specific objection after a blanket objection "presented
- 29 -
substantially the same type of information" as testimony admitted
over a specific objection, id.
In this instance, each of these considerations counsel
in favor of concluding that the defendant's blanket objection
adequately preserved his Rule 403 objection for appellate review.
To begin, the district court had ample opportunity to address the
objection before trial, as the defendant initially raised it weeks
in advance. Moreover, the court explored the relevance and
admissibility of the anecdotal background evidence at several
points, confirmed that the defendant's objection was based on Rule
403, and explicitly declared that the Rule 403 balance weighed in
favor of admitting the anecdotal background evidence. So, too,
the defendant appears to have relied on the blanket objection;
even when he lodged specific objections to particular pieces of
anecdotal background evidence, he stated that he was making his
"usual" objection. Finally, when the defendant did not lodge a
specific objection to a specific piece of anecdotal background
evidence, the information presented was substantially similar to
Exhibit 16 (to which he expressly objected). Given the district
court's repeated assurance both before and during trial that the
defendant need not object to each reference to the anecdotal
background evidence, the defendant's reliance on this assurance
was reasonable.
- 30 -
We add a note of caution. Although blanket objections
are sometimes a useful mechanism, see United States v. Cianci, 378
F.3d 71, 105 (1st Cir. 2004) (noting that "stop-and-go evidentiary
evaluations" can cause delay and prejudice), trial courts should
not dispense them indiscriminately, see United States v.
Fortenberry, 919 F.2d 923, 924 (5th Cir. 1990); cf. Cianci, 378
F.3d at 104-05 (noting that ambiguous blanket objection may fail
to preserve point for appeal). Here, however, it seems fair to
the parties and the district court to give force to the blanket
objection. After all, the defendant clearly stated the grounds
for his objection, the government knew exactly where it stood, and
the district court acted sensibly in preferring this mechanism to
a steady stream of specific objections. We conclude, therefore,
that the blanket objection adequately preserved the claimed
evidentiary errors. See United States v. Thompson, 976 F.2d 666,
669-70 n.2 (11th Cir. 1992); Ladd, 885 F.2d at 958; see also 3B
Charles Alan Wright & Peter J. Henning, Federal Practice and
Procedure § 842 (4th ed. 2013) ("If the problem has been brought
to the attention of the court, and the court has indicated in no
uncertain terms what its views are, to require an objection would
exalt form over substance.").
With the issue preserved for review, we turn to its
particulars. Notwithstanding the district court's grant of the
blanket objection and the spate of follow-up objections, the court
- 31 -
allowed the government to call four non-Denton victims (Walter
Cottle, Stacy Williams, Cynthia Kirschling, and Autumn Roland) in
its case in chief.7 The court also permitted the government to
call two other witnesses (Detective Stuart Daniel Quinn and Edith
Collins) to testify about the travails of particular non-Denton
victims. Detective Quinn testified concerning Derek Jorgensen, a
victim named in counts 6 and 11, and Collins testified concerning
her minor granddaughter, a victim not named in the indictment.
All in all, this testimony went into excruciating detail
about the non-Denton victims' personal lives, medical issues,
histories of depression, earlier suicide attempts, suicidal
motivations, and the like. It was augmented, and its effect
exponentially increased, by the government's introduction, over
specific objection, of Exhibit 16.
Where, as here, objections to evidentiary rulings are
preserved, review is for abuse of discretion. See United States
v. Sabean, 885 F.3d 27, 35 (1st Cir. 2018). Although this standard
of review is deferential, it "does not render trial court decisions
impervious to scrutiny." Ruiz-Troche v. Pepsi Cola of P.R.
Bottling Co., 161 F.3d 77, 83 (1st Cir. 1998). As we have observed,
abuse of discretion "sounds worse than it really is." Schubert v.
7 The defendant pleaded guilty to wire and mail fraud counts
involving three of these victims. The defendant was never charged
with any crimes related to his communications or transactions with
the fourth victim (Roland).
- 32 -
Nissan Motor Corp. in U.S.A., 148 F.3d 25, 30 (1st Cir. 1998)
(quoting In re Josephson, 218 F.2d 174, 182 (1st Cir. 1954)). It
simply means that "when judicial action is taken in a discretionary
matter, such action cannot be set aside by a reviewing court unless
it has a definite and firm conviction that the court below
committed a clear error of judgment in the conclusion it reached
upon a weighing of the relevant factors." Id. (quoting Josephson,
218 F.2d at 182).
Evidence is relevant as long as it has some tendency to
make a fact of consequence more or less probable. See Fed. R.
Evid. 401. In a criminal case, the government is generally
"entitled to prove its case by evidence of its own choice." Old
Chief v. United States, 519 U.S. 172, 186 (1997). But this
entitlement is hedged with exceptions. For instance, a lack of
dispute or concession of a central allegation may significantly
reduce the probative value of particular evidence and, thus, call
its admissibility into question. See United States v. Ford, 839
F.3d 94, 109 (1st Cir. 2016).
To ameliorate these competing concerns, a trial court
"may exclude relevant evidence if its probative value is
substantially outweighed by a danger of . . . unfair prejudice."
Fed. R. Evid. 403. This balance is sometimes difficult to strike.
As a practical matter, nearly all evidence is offered for the
purpose of prejudicing the factfinder's views, and Rule 403 is
- 33 -
meant to stand as a sentinel, which can be alerted to screen out
unfair prejudice. See Sabean, 885 F.3d at 38; United States v.
Rodriguez-Estrada, 877 F.2d 153, 155-56 (1st Cir. 1989). Evidence
presents a risk of unfair prejudice when it has "the capacity
. . . to lure the factfinder into declaring guilt on a ground
different from proof specific to the offense charged." Old Chief,
519 U.S. at 180. Put another way, unfair prejudice ensues when
particular evidence "serves only to evoke an improper emotional
response" and distracts "from careful consideration of the
relevant issues." United States v. Fulmer, 108 F.3d 1486, 1498
(1st Cir. 1997). Although there is no blanket prohibition against
the admission of such evidence, a trial court faced with an
objection to its introduction must strike a delicate balance
between the government's need for the evidence (that is, its
probative value) and the risk that the evidence will inflame the
jurors' passions (that is, its unfairly prejudicial effect). See
id. at 1497-98; see also Fed. R. Evid. 403.
Assessing the totality of the relevant circumstances, we
conclude that the district court abused its discretion in failing
to exclude the anecdotal background evidence under Rule 403.
Though marginally relevant, it had "the capacity . . . to lure the
factfinder into declaring guilt on a ground different from proof
specific to the offense charged." Old Chief, 519 U.S. at 180. A
- 34 -
few examples help to illustrate why much of this evidence was
unfairly prejudicial:
 On direct examination, Cottle testified that he was
so overwhelmed that he "didn't want to see [his]
wife" and "didn't want to see [his] child." He
"was crying probably twenty, twenty-five times a
day for no reason."
 Williams testified about a myriad of factors that
rendered her suicidal (including going through a
"terrible" second divorce, experiencing great
financial pressure, watching her neighbor shoot her
dog, and undergoing a horrible car accident). She
also described why she was looking for cyanide: "I
knew that I didn't have the courage to shoot myself,
and . . . I knew I didn't have the courage to cut
myself."
 Kirschling testified that she "suffered from major
depression," was lonely, "couldn't do [her] job,"
and was "just in constant pain."
 Roland testified that "severe distress" led her to
look for cyanide after she was diagnosed with
schizophrenia, was unable to work, and found
herself homeless. She was also having "side
effects from psychological medications that were
- 35 -
affecting [her] motor skills to the point where it
became excruciatingly hard just to turn over in
bed."
There was more. Called as a government witness,
Detective Quinn, testifying about Jorgensen, stated in part:
Twenty years ago, [Jorgensen] entered a public
house, a bar, where people were drinking and
identified four males that had bullied him
while he was at childhood school and continued
to bully him into young . . . adulthood. And
Mr. Jorgensen was armed with a shotgun. He
walked into the public house and discharged
the shotgun at the people who had bullied him,
fortunately, missing all of them. He then ran
out of the public house, placed a shotgun into
his mouth, and discharged it. Fortunately,
the cartridge of the firearm left the right
cheek of his face and didn't go up into the
brain. He required extensive facial surgery
. . . .
In addition, Detective Quinn told the jury about several of
Jorgensen's botched suicide attempts. These included sitting in
a tree with a noose, willing himself to jump, and swimming out to
sea, waiting for "tiredness" to get "the better of him."
So, too, Collins testified that her minor granddaughter
lived with the granddaughter's father after her mother's death.
That arrangement, though, "didn't work out." She then moved in
with her maternal grandparents but "grandma died." She was sent
"to a girls' home and ended up with" Collins, who soon discovered
that her granddaughter, then a young teenager, "ha[d] posted a
- 36 -
picture of herself with a scarf around her neck like she was
hanging herself."
This barrage of emotionally laden testimony was merely
the tip of the iceberg. Through the medium of Exhibit 16, the
government displayed to the jury a mountain of emails to and from
the defendant pertaining to cyanide-related transactions. Some
authors wrote paragraphs explaining how their lives had fallen
apart. Others emailed repeatedly, begging the defendant to
respond. Taken collectively, these lachrymose emails were likely
to evoke an emotional response in even the most hardened
individuals. Once again, a few examples suffice to make the point:
 "[I] have been suffering an infection since birth
. . . [I] don[']t want to continue my life . . .
[I] need some potassium cyanide . . . tell me the
price."
 "I need enough C to make me go fast and painlessly
. . . I keep trying to kill myself but won't die.
. . . How much will I need how long will it take to
make me sleep forever."
 "I am ready to die and this seemed like the best
method."
 "[H]ow much can [I] get it for [I'm] sick of this
shit world."
- 37 -
 "I don't know what to expect from this email but
the darkness has overtaken me and my friend."
 "Rumour has it you can hook me up with sweet
release. How much, how quickly?"
This evidence permeated the record: it was as copious
as it was emotionally charged. And it had virtually no probative
value.
In an effort to dredge up some semblance of probative
value, the government notes that it had the burden to prove the
existence of the fraudulent scheme. That is true as far as it
goes — but it does not take the government very far. The existence
and dimensions of the scheme were amply demonstrated by proof of
the defendant's advertisement, the number of victims, their
initial contacts, and the defendant's responses. Although the
anecdotal background evidence may have had a scintilla of probative
value with respect to the existence of the fraudulent scheme, it
was wholly cumulative and, thus, gratuitous. See Fed. R. Evid.
403; Sabean, 885 F.3d at 40.
The short of it is that the extensive evidence as to the
circumstances of the defendant's customers and the thought
processes that led them to the brink of suicide added virtually
nothing of legitimate value to the government's case. This
evidence was not needed to prove the existence of the scheme, nor
did it assist the government in proving, say, the defendant's
- 38 -
identity or motive. Just because evidence may have a smidgen of
probative value, that bare fact does not give the government free
rein to capitalize upon its emotionally laden content,
particularly where, as here, the government can easily prove its
case without fanning the flames of unfair prejudice.
The prosecution — which has available to it the immense
resources of the federal government — possesses a significant
advantage in criminal cases, and there seldom is a good reason for
a prosecutor to push the envelope of that advantage. Mindful of
this imbalance, we consistently have "warn[ed] the government"
about "the folly of . . . overkill." United States v. Frankhauser,
80 F.3d 641, 650 (1st Cir. 1996) (quoting United States v. Arias-
Montoya, 967 F.2d 708, 714 (1st Cir. 1992)). We echo this warning
today.
For these reasons, we hold that the anecdotal background
evidence unfairly prejudiced the defendant because it dwelled upon
the desperation of severely depressed individuals in what amounted
to a blatant attempt to engage and inflame the jurors' passions.
In our view, such unfair prejudice substantially outweighed
whatever scant probative value the anecdotal background evidence
may have had. We are left with a definite and firm conviction
that the district court committed a manifest error of judgment in
working the Rule 403 calculus. As a result, admitting the
anecdotal background evidence was an abuse of discretion.
- 39 -
The government has a fallback position. It says that
even if the district court abused its discretion in admitting the
anecdotal background evidence, the error was harmless. The
question reduces to whether admission of this evidence "results in
actual prejudice because it had a substantial and injurious effect
or influence in determining the jury's verdict." Ruiz-Troche, 161
F.3d at 87 (quoting United States v. Shay, 57 F.3d 126, 134 (1st
Cir. 1995)).
"An error will be treated as harmless only if it is
'highly probable' that the error did not contribute to the
verdict." Fulmer, 108 F.3d at 1498 (quoting United States v.
Melvin, 27 F.3d 703, 708 (1st Cir. 1994)). "To sustain the
verdict, the reviewing court must be able to say with a fair degree
of assurance that the erroneous ruling did not substantially sway
the jury." Ruiz-Troche, 161 F.3d at 87.
[A] harmlessness determination demands a
panoramic, case-specific inquiry considering,
among other things, the centrality of the
tainted material, its uniqueness, its
prejudicial impact, the uses to which it was
put during the trial, the relative strengths
of the parties' cases, and any telltales that
furnish clues to the likelihood that the error
affected the factfinder's resolution of a
material issue.
United States v. Piper, 298 F.3d 47, 57 (1st Cir. 2002) (quoting
United States v. Sepulveda, 15 F.3d 1161, 1182 (1st Cir. 1993)).
For criminal cases, the strength or weakness of the government's
- 40 -
evidence of guilt is normally the most important integer in the
harmlessness equation. Practically speaking, a reviewing court
may find an error harmless when the properly admitted evidence, in
and of itself, furnished overwhelming proof of the defendant's
guilt. See Ford, 839 F.3d at 110; see United States v. Eads, 729
F.3d 769, 778 (7th Cir. 2013); Clark v. Moran, 942 F.2d 24, 27
(1st Cir. 1991). Here, we hold that the error in admitting the
anecdotal background evidence was harmless as to counts 1, 5, 7,
and 12 but not as to count 14.
At the outset of the trial but before the jury was in
the courtroom, defense counsel acknowledged that the government
would not "hear much" from him as to counts 5, 7, and 12 (the
Denton fraud counts). He explained that the defendant already had
pleaded guilty to the non-Denton fraud counts and, thus, had
admitted the existence of the fraudulent scheme. Consistent with
these statements, the defense focused at trial primarily on
attacking the elements of counts 1 and 14 rather than attempting
to present a full-throated defense to the fraud counts. And during
his summation, defense counsel stated outright that Denton was a
victim of the fraudulent scheme and that counsel could "not deny
that the [g]overnment" proved that scheme.
These admissions did not come out of the blue. During
the trial, the government presented copious — and uncontradicted
— evidence of the scheme. In addition, the government introduced
- 41 -
documentary evidence of Denton's payment to the defendant, their
email correspondence, tracking information for the first package
the defendant sent to Denton, and Denton's IC3 complaint (which
pointed out that the first package did not contain cyanide).
On whole-record review, we are confident that the guilty
verdicts on the fraud counts were mandated by the properly admitted
evidence. This evidence, standing alone, supplied overwhelming
proof of the defendant's guilt. Thus, even though the error in
admitting the anecdotal background evidence was egregious, we do
not think that the jury verdicts on the fraud counts were tainted
by that evidence.
We reach the same conclusion as to count 1 (mailing
injurious articles resulting in death). With respect to this
charge, the evidence of guilt was very strong. After the
constructive amendment, see supra Part II(A)(1), the government
had to prove that the defendant "knowingly deposit[ed] for mailing
. . . anything declared nonmailable . . . with intent to kill or
injure another . . . [and that such mailing] resulted in the death
of any person." 18 U.S.C. § 1716(j). The government made that
showing — and it did so without reference to the improperly
admitted evidence. Although the defendant made a feeble effort to
suggest that he was not the source of the cyanide that killed
Denton, the government presented plentiful evidence, properly
admitted, confirming the existence of each element required by the
- 42 -
statute of conviction. For instance, there were postal records
tracking the defendant's second shipment to Denton; the envelope
discovered near Denton's body contained cyanide residue and
identified the defendant as its sender; records detailing the
defendant's receipt of cyanide from California and his payment for
it were admitted into evidence; and the jury reviewed emails
between Denton and the defendant discussing the former's desire to
end his life and the latter's willingness to send cyanide to
assist. There was, moreover, ample proof that the defendant's
actions resulted in Denton's death. See supra Part II(A)(2).
Given the strength of the government's case on count 1, we have a
high degree of assurance that the anecdotal background evidence,
though improperly admitted, did not tarnish the verdict. It
follows that as to count 1, the error was harmless. See Ford, 839
F.3d at 108; Piper, 298 F.3d at 58.
This leaves count 14 (the witness tampering count). That
count required proof of the defendant's intent to "prevent the
communication by [Denton] to a law enforcement officer . . . of
information relating to the commission . . . of a Federal offense."
18 U.S.C. § 1512(a)(1)(C). Intent is inherently difficult to
demonstrate, see United States v. Whiffen, 121 F.3d 18, 21 (1st
Cir. 1997), and in this instance we discern no overwhelming
evidence of the culpable intent required by the statute of
conviction.
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To be sure, there was some circumstantial evidence of
this intent. For instance, there was evidence that Denton had
complained to IC3, that the defendant knew about this complaint
when he shipped the cyanide, and that the defendant was concerned
about the FBI's awareness of his "goings on." But the defendant
might have sent the cyanide, the second time around, for any number
of reasons apart from trying to prevent Denton from communicating
with law enforcement. As his counsel implied at trial, the
defendant simply may have wanted to assist Denton's suicide. Given
the inherent difficulty of proving the necessary intent and the
peculiarities of this case, we cannot conclude with the requisite
degree of assurance that the anecdotal background evidence did not
influence the verdict on count 14.
This conclusion is fortified by the other considerations
revealed through a panoramic inquiry into the relevant
circumstances. It strains credulity to imagine that the poignant
nature of the anecdotal background evidence was somehow
overshadowed by properly admitted evidence of the defendant's
guilt on count 14, especially since the properly admitted evidence
on this count lacked emotional valence. Common sense and human
experience suggest that raw testimony about severe depression,
failed suicide attempts, and the like would substantially sway a
jury, whereas drier documentary evidence such as UPS records and
purchase invoices would have considerably less impact.
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The government's actual use of the anecdotal background
evidence is telling. In his opening statement, the prosecutor
alluded to the anecdotal background evidence — mentioning Cottle's
difficulties at work as well as Williams's divorce, car accident,
and dead dog. A full quarter of the government's witnesses (seven
out of twenty-eight) provided anecdotal background evidence. Last
but not least, the prosecutor's summation made abundant use of the
anecdotal background evidence, first recounting contents from some
of the Exhibit 16 emails and then discussing in detail how the
defendant "toyed" with Roland.
When a panoramic inquiry into the relevant circumstances
has been carried out, we are left without fair assurance that the
erroneous admission of the anecdotal background evidence did not
materially influence the jury's verdict on count 14. The anecdotal
background evidence was central to the government's presentation
of its count 14 case; it was unique; its emotional content was
highly charged and its potential for prejudice was correspondingly
great; and the government made powerful use of it at critical
stages of the trial. These factors tilt the balance of the
harmlessness equation against the government as to this count.
In an attempt to snatch victory from the jaws of defeat,
the government makes two additional arguments. First, it submits
that the acquittal on count 15 (witness retaliation) is a telltale
clue that the jury dispassionately considered the proof as to count
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14, notwithstanding the force of the anecdotal background
evidence. We do not agree. Simply because a jury acts rationally
in acquitting on one charge while convicting on others does not
relegate improperly admitted evidence to the scrap heap of harmless
error. See United States v. Litvak, 889 F.3d 56, 71-72 (2d Cir.
2018). This is such a case: the strongly provocative nature of
the anecdotal background evidence, improvidently admitted, created
too high a likelihood that such evidence influenced the jury's
consideration of count 14.
Second, the government suggests that because the
district court instructed the jury on several occasions that the
use of certain exhibits, including Exhibit 16, must be restricted
to purposes delineated in Rule 404(b) (motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident), the admission of the anecdotal
background evidence was harmless. The flaws in this suggestion
are at least twofold. First, the court did not give this
instruction relative to any anecdotal background evidence, save
for Exhibit 16. Second — and more fundamentally — the limiting
instruction did nothing to insulate the jurors from the emotional
clout of the challenged evidence.
That ends this aspect of the matter. We find the error
in admitting the anecdotal background evidence harmless as to most
counts. Count 14, though, requires a different calculus. As to
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that count, the error was not harmless, and the verdict cannot
stand.
D. Sentencing.
This brings us to the defendant's claim of sentencing
error. The defendant attempts to argue that the court erred in
calculating his base offense level with respect to count 1 by
analogizing that conviction to first degree murder. We deem this
argument waived: the appellant's brief mentions it only in a
cursory manner, without citation to any relevant authority. See
Zannino, 895 F.2d at 17.
The defendant also contends that the concurrent twenty-
year sentences on the wire and mail fraud counts (counts 2 through
13) are unconstitutional. Because this claim relates only to
sentences imposed on the fraud counts, it is unaffected by our
vacation of the jury verdict on count 14.
The defendant's claim rests on the Eighth Amendment's
proscription against "cruel and unusual punishments." U.S. Const.
amend. VIII. As relevant here, this proscription applies to
criminal sentences that are "grossly disproportionate" to the
underlying offenses. Solem v. Helm, 463 U.S. 277, 288 (1983).
When — as in this case — capital punishment is not implicated,
"the Eighth Amendment 'does not require a precise calibration of
crime and punishment.'" United States v. Rivera-Ruperto, 852 F.3d
1, 17 (1st Cir. 2017) (quoting United States v. Graciani, 61 F.3d
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70, 76 (1st Cir. 1995)), cert. denied, 139 S. Ct. 1258 (2019).
Given this latitude, it is not surprising that, in non-capital
cases, "successful challenges to the proportionality of particular
sentences have been exceedingly rare." Rummel v. Estelle, 445
U.S. 263, 272 (1980); see United States v. Polk, 546 F.3d 74, 76
(1st Cir. 2008) (describing such cases as "hen's-teeth rare").
Here, the defendant complains that his concurrent
twenty-year sentences on the wire and mail fraud counts were
grossly disproportionate to the offenses of conviction. Because
the defendant proffers this plaint for the first time on appeal,
our review is for plain error. See United States v. Blodgett, 872
F.3d 66, 71 (1st Cir. 2017); Duarte, 246 F.3d at 60.
As a general rule, defining federal crimes and
establishing appropriate penalties are matters within Congress's
exclusive domain. See Polk, 546 F.3d at 76-77. Congress has made
the reasoned judgment that a fraud offense can, under certain
circumstances, be so blameworthy as to warrant a twenty-year term
of immurement. See 18 U.S.C. §§ 1341, 1343. Courts owe
substantial deference to such legislative judgments; they cannot
sit as "'superlegislature[s]' to second-guess" congressional
wisdom. Ewing v. California, 538 U.S. 11, 28 (2003) (plurality
opinion); see Rivera-Ruperto, 852 F.3d at 17-18.
In this instance, the challenged sentences were within
— though at the apex of — the penalties that Congress established
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for the offenses of conviction. Those offenses included seven
wire fraud counts and five mail fraud counts. At sentencing, the
district court explained that the defendant's crimes were much
"more egregious than . . . common fraud." After all, the defendant
sought out and preyed upon vulnerable, suicidal victims, offering
to sell them cyanide but instead sending them Epsom salts. The
court appropriately identified the defendant's chosen targets, his
use of the internet to enlarge the reach of his criminal
activities, and the protracted duration of the scheme (roughly
thirteen months). Moreover, the court acknowledged that the
defendant had gone from bad to worse and had taken drastic measures
to conceal his fraud by sending real cyanide to the one victim
whom he knew had dared to blow the whistle and report the
defendant's chicanery to federal authorities. Against this
backdrop, the sentencing judge — an experienced hand — concluded
that the offenses of conviction were "among the most heinous" that
he had ever seen. This depravity was all the more opprobrious
because the defendant operated in an "appalling moral vacuum."
Given the sentencing court's supportable findings, we think that
the twenty-year sentences, though severe, scarcely can be seen as
grossly disproportionate to the defendant's conduct.
The defendant demurs. In his repast, he trivializes the
scope of his cruel and cynical scheme by pointing to his relatively
few victims (nine) and the relatively meager revenues ($2,732.55)
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garnered through his scheme. Similarly, he tries to minimize the
gravity of his conduct by noting that "there is no evidence" that
any of the victims besides Denton actually "attempted suicide with
the Epsom salts." Finally, he argues that the guideline sentencing
range for fraud offenses suggests sentences much more modest than
the sentences that he received.
These arguments lack force. They ignore not only the
fragility of the defendant's victims but also the broad scope and
breathtaking cruelty of the defendant's scheme. By the same token,
they ignore the sordid fact that no fewer than 274 desperate
individuals, all of whom were contemplating suicide, reached out
to the defendant in response to his ads. Considering all of the
relevant circumstances, there is no principled way for us to say
that the sentences imposed were grossly disproportionate to the
conduct surrounding the offenses of conviction.
The sentencing guidelines do not lead us to a different
conclusion. Although the guideline sentencing range for a garden-
variety fraud case is well below twenty years, the guidelines are
designed for cases that fall within the "heartland" of a given
offense. Kimbrough v. United States, 552 U.S. 85, 109 (2007)
(quoting Rita v. United States, 551 U.S. 338, 351 (2007)). The
case at hand is well outside the heartland of fraud offenses: the
defendant's conduct and his subsequent coverup were far more
egregious than that entailed in a run-of-the-mill fraudulent
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scheme. The guidelines account for atypical cases through
departures and variances, see Rita, 551 U.S. at 344, and thus, the
guideline sentencing range for a particular offense bears very
little relation to the question of whether a particular sentence
in an out-of-the-ordinary case violates the Eighth Amendment, see,
e.g., United States v. Bowers, 811 F.3d 412, 432-33 (11th Cir.
2016) (holding sentence that exceeded top of guideline range by
more than 150 years not grossly disproportionate).
If more were needed — and we doubt that it is — the
Supreme Court has repeatedly upheld lengthy sentences against
Eighth Amendment challenges for offenses less grievous than the
offenses of conviction. See, e.g., Ewing, 538 U.S. at 28-31
(affirming lengthy sentence based on recidivist statute for theft
conviction); Harmelin v. Michigan, 501 U.S. 957, 961, 996 (1991)
(affirming sentence of life imprisonment for possession of
cocaine); Rummel, 445 U.S. at 265-66, 284-85 (upholding life
sentence under recidivist statute when triggering offenses
involved small amounts of money). So, too, the courts of appeals
have rejected Eighth Amendment challenges to lengthy sentences in
fraud cases which, like this one, are embedded in an array of
aggravating circumstances. See, e.g., United States v. Neba, 901
F.3d 260, 264-65 (5th Cir. 2018) (affirming seventy-five-year
sentence for healthcare fraud), cert. denied, 139 S. Ct. 1322
(2019); United States v. Hebert, 813 F.3d 551, 565-66 (5th Cir.
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2015) (affirming ninety-two-year sentence for bank fraud and
related offenses); United States v. Tolliver, 730 F.3d 1216, 1231-
32 (10th Cir. 2013) (affirming consecutive ten- and twenty-year
sentences for two counts of using fire to commit mail fraud).
To say more would be to paint the lily. We hold, without
serious question, that the concurrent twenty-year sentences on
counts 2 through 13 are not grossly disproportionate to the
offenses of conviction. Thus, they do not offend the Eighth
Amendment. Plain error is plainly absent.
III. CONCLUSION
We need go no further. For the reasons elucidated above,
the sentences imposed on counts 1 through 13 are affirmed. The
judgment on count 14 is vacated and that count is remanded for
further proceedings consistent with this opinion.
Affirmed in part, vacated in part, and remanded.
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