United States v. Denson , 689 F.3d 21 ( 2012 )

United States Court of Appeals
For the First Circuit
Nos. 11-1042 & 11-1043
UNITED STATES OF AMERICA,
Appellee,
v.
TODD DENSON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Torruella, Howard, and Thompson,
Circuit Judges.
James M. Falvey, by appointment of the court, with whom Law
Office of James Falvey was on brief, for appellant.
Renée M. Bunker, Assistant United States Attorney, with whom
Thomas E. Delahanty, II, United States Attorney, was on brief, for
appellee.
August 2, 2012
THOMPSON, Circuit Judge.
WHAT THIS CASE IS ABOUT
Todd Denson spent about a year in federal prison for mail
and wire fraud after he got caught up in one of those notorious
"Nigerian" money "scams," as law enforcement calls them. See 18
U.S.C. §§ 1341 (mail fraud) & 1343 (wire fraud). The short version
of what happened is this.
Apparently persons in Africa emailed Denson saying that
he (Denson) had inherited the rights to an overseas company worth
$9-plus million. They also said that there was a pile of cash in
a Barclays Bank account in London just waiting there for him. All
he had to do was send over a few thousand dollars to take care of
taxes, wire-transfer fees, and the like, and he would be a very
rich man.
Deals that look too good to be true often are, and this
one certainly was. Calling a local Secret Service office (in
addition to protecting some elected leaders, the Secret Service
also investigates certain financial crimes, see 18 U.S.C. § 3056),
Denson had an agent tell him point blank that this was a scam and
that he should not send a dime overseas because, if he did, he
would "never see that money again." Importantly, the agent also
added that, "now that I've told you that this is a scam," if you
"solicit[] money from others" to send abroad, you "could" be on the
hook "criminally" for that. (Emphasis added.)
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Pouncing on the fact that the agent had said "could"
rather than "would," Denson went ahead and did what he was told not
to do, taking tens of thousands of dollars from persons who had
trusted him. Convinced (probably rightly) that no one would hand
him money if he mentioned the email, Denson had said things like he
needed their cash to help with some "window-washing invention" he
had "a patent for." Naturally, he dangled the prospect of a big
payback to hook the unsuspecting.
At some point Denson called up the agent again and freely
admitted that he had "deceived" others into giving him money.
Meeting with some agents two days later, Denson copped to a lot
more. To deflect suspicion away from what he was doing, he and his
foreign-based attorney, Paul Jones, had created a fictitious
company to make it look like he had really earned the $9-plus
million, Denson said. A Barclays Bank official, he added, had told
him that Jones was "a Nigerian scammer," that there was no money
waiting there for him, and that the email thing "was a scam." At
a follow-up meeting, agents again stressed that all of this "was a
scam." Denson replied that he was done with the scheme because he
too had "realized" that "it was a scam." He said the same thing a
week later, but this time agents confronted him with proof that he
had tried to get an undercover agent to "invest" $30,000 in an
overseas-construction venture. As part of his pitch, Denson had
handed the undercover agent false documents showing that he
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(Denson) had sold over $4 million in construction equipment.
Essentially caught red handed, Denson fessed up to what he had
done, saying it "was wrong."
We could go on and on, but this is enough for now to show
why Denson ended up doing a year (give or take) behind bars.
Incredibly, once out on supervised release, he returned to his old
ways, hustling a bunch of people out of thousands of dollars by
saying (among other lies) that he had made a killing in the
overseas stock markets or had millions sitting in a Scottish bank
but that he needed their money – which he would pay back, and then
some – to get what he said was rightfully his.1 Denson got caught,
again. And his actions culminated in a jury's convicting him on
multiple wire-fraud counts and a district judge's revoking his
supervised release.2 As for how sentencing went, what matters for
our purposes is that the judge imposed concurrent 30-month prison
1
We highlight this vignette so the reader has a full picture
of the lengths Denson went to fleece the innocent after his
release: Responding to a Craigslist ad placed by a couple looking
for private financing to buy a house, Denson (who at first claimed
that his name was "Tim Brashner") said that he would happily loan
them the $185,000 that they needed if they would give him $5,000 up
front so that he could get a London bank to release his millions.
The couple agreed, depositing the money into an account that Denson
had selected – money that eventually went to London. Needless to
say, the couple never received any money from Denson.
2
Denson violated his supervised release by (a) committing
wire fraud, (b) neglecting to file truthful and complete monthly
reports with probation, and (c) failing to disclose financial gains
(like lottery winnings, income-tax refunds, etc.) and to apply them
to court-ordered obligations.
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terms for each wire-fraud conviction – a sentence within the 24-30
month advisory guidelines sentencing range. After holding a
revocation hearing later that same day, the judge also sentenced
him to a total imprisonment term of 15 months for the supervised-
release violations – even though the sentencing range was 4-10
months. And the judge made the 30-month term run consecutively
with the 15-month term.3
Which brings us to Denson's appeal. His arguments for
reversal fall into two general categories – protests about the jury
instructions and criticisms about the sentencing. We explain below
why all of his arguments fail, adding more information as we move
along.
JURY INSTRUCTIONS
The parties – who agree on little else – agree that the
elements of wire fraud are a "scheme to defraud," the accused's
3
For those uninitiated into the modern world of federal
sentencing, we offer this primer: when fashioning a sentence under
the current guidelines system, a judge
"ordinarily . . . begin[s] by calculating the applicable
guideline sentencing range; then determine[s] whether or
not any departures are in order; then mull[s] the factors
delineated in 18 U.S.C. § 3553(a) as well as any other
relevant considerations; and, finally, determine[s] what
sentence, whether within, above, or below the guideline
sentencing range, appears appropriate."
United States v. Dávila-González, 595 F.3d 42, 46 (1st Cir. 2010)
(quoting United States v. Pelletier, 469 F.3d 194, 203 (1st Cir.
2006)). We need not get into the nitty-gritty of what the judge
did here. Denson only complains about certain aspects of the
judge's § 3553(a) analysis, and we can and will save the details of
that for later.
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"knowing and willful participation in the scheme with the intent to
defraud," and the use of interstate or foreign "wire
communications" to further that scheme. See United States v.
Cassiere, 4 F.3d 1006, 1011 (1st Cir. 1993). The judge instructed
the jury to that effect. Critically for our purposes, the judge
gave a willful-blindness instruction too – i.e., an instruction
that (broadly speaking) allowed the jury to infer that Denson had
acted knowingly if he had deliberately closed his eyes to obvious
facts. See, e.g., United States v. De Jesús-Viera, 655 F.3d 52, 59
(1st Cir. 2011), cert. denied, 132 S. Ct. 1045 (2012). Then the
judge also told the jury that Denson's "good faith" was a complete
defense to the charges against him.4
4
Here are the two instructions in full:
Now, in deciding whether the defendant acted
knowingly, you may infer that the defendant had knowledge
of a fact if you find that he deliberately closed his
eyes to a fact that otherwise would have been obvious to
him. In order to infer knowledge, you must find that two
things have been established: First, that the defendant
was aware of a high probability of the fact in question;
second, that the defendant consciously and deliberately
avoided learning of that fact, that is to say, the
defendant willfully made himself blind to that fact.
It's entirely up to you to decide whether he deliberately
closed his eyes to the fact and, if so, what inference,
if any, should be drawn. However, it is important to
bear in mind that mere negligence or mistake in failing
to learn the fact is not sufficient. There must be a
deliberate effort to remain ignorant of the fact.
An act or failure to act is willful if done
voluntarily and intentionally and with the specific
intent to do something that the law forbids or with a
specific intent to fail to do something the law requires
to be done, that is to say, with bad purpose either to
disobey or to disregard the law. Thus, if the defendant
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Denson complains that the willful-blindness instruction
likely confused the jury into thinking that it could convict based
on what a reasonable person in his shoes should have known rather
than on what he actually believed or intended. He is right about
one thing: "[t]he focus of [a] willful blindness instruction must
be on the particular defendant and not on the hypothetical
reasonable person." United States v. Griffin, 524 F.3d 71, 80 (1st
Cir. 2008); see generally Global-Tech Appliances, Inc. v. SEB S.A.,
131 S. Ct. 2060, 2070 & n.9 (2011) (distilling from willful-
blindness cases "two basic requirements" – "(1) the defendant must
subjectively believe that there is a high probability that a fact
exists and (2) the defendant must take deliberate actions to avoid
learning of that fact") (citing, among other cases, United States
v. Pérez-Meléndez, 599 F.3d 31, 41 (1st Cir. 2010)). Faced with a
properly preserved challenge like this one, we give fresh review to
whether the instructions contained "an error of law" but abuse-of-
discretion review to whether they "adequately explained the law or
whether they tended to confuse or mislead the jury on the
controlling issues."5 United States v. Jadlowe, 628 F.3d 1, 14
acted in good faith, he cannot be guilty of the crime.
The burden to prove intent, as with all other elements of
the crime, rests with the government.
5
Aside from raising the specter of jury confusion, Denson
does not contest the judge's decision to offer the willful-
blindness instruction in the first place. See generally United
States v. Azubike, 564 F.3d 59, 66 (1st Cir. 2009) (noting that a
willful-blindness instruction is justified if the defendant
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(1st Cir. 2010) (internal quotation marks omitted); accord United
States v. Gonzalez, 570 F.3d 16, 21 (1st Cir. 2009). Ultimately,
despite what Denson says, we believe that the instructions focused
the jury's attention on him.
What the judge said (emphasis ours) is that the jury
could find that "the defendant acted knowingly . . . if he
deliberately" turned a blind eye "to a fact that otherwise would
have been obvious to him." "[T]o infer knowledge," the judge
added, the jury had to conclude "that the defendant was aware of a
high probability of the fact in question" and "that the defendant
consciously and deliberately avoided" confirming that fact – in
other words, "the defendant willfully made himself blind to that
fact." And it was up to the jury "to decide whether he
deliberately closed his eyes to the fact and, if so, what
inference, if any," to draw. Obviously, fairly read, the charge's
references to "the defendant," "he," "his," "him," and "himself"
all refer to Denson, and not to some generic reasonable person, as
Denson would have us believe. The long and the short of it is that
disclaims knowledge of the wrongdoing but the facts indicate "a
conscious course of deliberate ignorance" – adding also that the
charge, taken in context, cannot be misunderstood as mandating an
inference of knowledge). Had he done so, that might have affected
how we set up the standard of review. See, e.g., United States v.
Mitrano, 658 F.3d 117, 123 (1st Cir. 2011) (pointing out that we
have used "'both de novo and deferential standards of review'" when
reviewing a defendant's preserved challenge to the giving of a
willful-blindness instruction) (quoting Azubike, 564 F.3d at 66
n.5), cert. denied, 132 S. Ct. 2117 (2012). But since he has not,
we can move on.
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this instruction squares with our cases6 – even Denson does not
suggest otherwise – and could not have misled the jury into
applying a reasonable-person standard. Consequently, Denson's
first argument goes nowhere.
Targeting the good-faith instruction, Denson tells us
next that that charge was less than what he deserved because
(despite his request) it did not "clarify" that good faith turned
on what he subjectively believed instead of what some reasonable
person would have believed. We will reverse a decision like this
one only if the rejected charge was (a) substantively correct,
(b) not substantially covered by other instructions, and (c) so
essential to an important point in the trial that failure to give
it seriously impaired the defendant's ability to defend himself.
See, e.g., United States v. Dunbar, 553 F.3d 48, 62 (1st Cir. 2009)
(discussing an abuse-of-discretion standard of review). It is a
rare case where all of these conditions are met, see United States
v. Prigmore, 243 F.3d 1, 17 (1st Cir. 2001), and this is not that
case – not by a long shot.
To speed things up, we focus in on (b) – whether Denson's
rejected instruction was covered by the given charge – and remind
the reader that the judge told the jury (again, emphasis ours) that
"if the defendant" – meaning Denson – "acted in good faith" then
6
See, e.g., De Jesús-Viera, 655 F.3d at 59; United States v.
Singh, 222 F.3d 6, 11 n.4 (1st Cir. 2000); United States v.
Gabriele, 63 F.3d 61, 66 n.6 (1st Cir. 1995).
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"he" could hardly be guilty of wire fraud. The judge had the jury
concentrate on Denson's actual, subjective beliefs after all, which
means that his charge basically did what Denson wanted it to do.
Conscious that judges generally need not mimic the precise wording
of a party's preferred instruction, see, e.g., United States v.
Barnes, 251 F.3d 251, 260 (1st Cir. 2001), we easily reject
Denson's whole line of attack on the good-faith charge.
In a parting shot, Denson blasts the judge for giving the
willful-blindness and good-faith charges back-to-back. He did not
make this claim below, though, so we review only for plain error,
which means he "must show (1) error, (2) plainness, (3) prejudice,
and (4) an outcome that is a miscarriage of justice or akin to it."
United States v. Edelkind, 467 F.3d 791, 797 (1st Cir. 2006).
Denson's big problem is that his criticism is a throwaway, made in
a single sentence with no citations or argument to show how the
judge's ordering of the instructions was error, let alone plain
error. That does not suffice, obviously. See, e.g., United States
v. Tan, 674 F.3d 103, 111 n.7 (1st Cir. 2012). And, if more were
needed, having rejected challenges first to the willful-blindness
charge and then to the good-faith charge, we believe that
complaints about the instructions' sequencing cannot succeed in any
event. See, e.g., Prigmore, 243 F.3d at 17 (explaining that judges
have "considerable" leeway in how they "formulate[], structure[],
and word[]" their jury charges); see generally Texas & Pac. R.R. v.
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Jones, 298 F.2d 188, 191 (5th Cir. 1962) (noting that because
"neither judge nor jury can contrive, communicate or assimilate
complex knowledge with the superhuman speed of a data
computer, . . . the law as it is laid down must perforce come word
by word, sentence by sentence" – with "[s]omething . . . com[ing]
first, something last," naturally – which means that the
"burden . . . is a heavy one in demonstrating that an error has
come about from sequential arrangement of sentences"). Again,
there is no error, say nothing of plain error.
SENTENCING
Moving past the jury instructions, we turn to Denson's
sentencing arguments. Each has to do with the judge's handling of
18 U.S.C. § 3553(a) – a statute that sets out factors designed to
help judges exercise their sentencing discretion. A partial list
of those factors includes "the nature and circumstances of the
offense and the history and characteristics of the defendant," plus
the need to deter criminal conduct, protect the public, and provide
the defendant with necessary medical care. 18 U.S.C. § 3553(a)(1),
(a)(2)(B)-(D). And at the end of the day, the sentences imposed
must be sufficient but not greater than necessary to serve these
factors. Id. § 3553(a).
We typically examine sentencing decisions for abuse of
discretion, which is really a review for reasonableness. See,
e.g., United States v. Gallardo-Ortiz, 666 F.3d 808, 811 (1st Cir.
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2012). Reasonableness has two aspects – procedural and
substantive. See id. Denson accuses the judge of overlooking his
terminal illness, infracting, he says, both § 3553(a)(1) (directing
judges to consider the defendant's history and characteristics) and
(a)(2)(D) (telling judges to ponder the defendant's medical needs).
This sounds like a procedural-reasonableness-type claim. See
United States v. Clogston, 662 F.3d 588, 590 (1st Cir. 2011).
Denson also accuses the judge of placing too much weight on the
need to protect the public. And that has the feel of a
substantive-reasonableness-type claim, see id. at 592, which
depends largely on whether the sentence imposed represents a
defensible result supported by a plausible rationale, see United
States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008). Before we
address these arguments, though, we need to get a couple of things
straight.
Denson is not entirely clear about which sentence he has
a problem with – the within-guidelines sentence of 30 months for
the wire-fraud convictions or the above-guidelines sentence of 15
months for the supervised-release violations. Some parts of his
brief suggest that he is only concerned with the "within-the-range
sentence," but others sort of target both groups of sentences. We
will give him the benefit of the doubt on this, which segues neatly
into another issue. The government tells us that Denson has either
waived or forfeited any challenge to the within-guidelines sentence
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because he basically got the sentence that he asked for. Denson's
reply brief goes on explaining why the government is wrong about
that. Again, we will give him the benefit of the doubt and assume
for argument's sake that no waiver or forfeiture happened. See
United States v. Mateo-Espejo, 426 F.3d 508, 512 (1st Cir. 2005)
(taking that tack in a similar situation). Now, on to the merits
of Denson's sentencing claims, which are easily resolved.
Denson's health was very much front and center for
sentencing purposes. The probation office's presentence report on
the wire-fraud convictions noted that Denson has a condition called
"pure autonomic failure" (an incurable degenerative neurological
disorder), which, the report added, might justify a downward
departure under the sentencing guidelines. And the probation
office's report on the revocation violations also pointed out
Denson's disorder and listed some of the symptoms.
Denson drove these points home in his sentencing memo,
stressing that his illness causes (among other things) periodic
drops in blood pressure, which reduces oxygen flow to the brain.
His counsel stayed with that theme at the two sentencing hearings,
telling the judge that Denson's "physical problem is going to cut
his life short" and that "he's already . . . on borrowed time."7
7
Recall that the judge handed down the sentences all on the
same day, with the sentences for the wire-fraud crimes coming
during a morning hearing and the sentences for the supervised-
release offenses coming during an afternoon session held some 30
minutes later. The second hearing took less time than the first,
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Even a five-year term may be a "life sentence" for him, counsel
added. And Denson struck the same note in his statements to the
judge before being sentenced (his "allocution," in legal lingo).
"I've outlived [my] life [expectancy]," he said at the first
sentencing hearing. "It's a very rare, rare illness," he
explained, "[a]nd the older I get, the more it affects me." "[M]y
life just went . . . spiral[ing]" out of control after being
diagnosed with this "very rare" disorder, he emphasized at the
second hearing.
Having read probation's presentence report, reviewed the
parties' memos, considered counsel's arguments, and listened to
Denson's statements (all of which, again, spotlighted Denson's
disorder), the judge ran through the § 3553(a) factors and imposed
a within-guidelines sentence of 30 months for the wire-fraud
offenses. Touching on Denson's illness, the judge said that that
sentence best serves the goals of § 3553(a), and will (among other
things) drive home the point "that further conduct of this type"
will lead to "an even longer sentence" – which, given "his present
condition," might result in his "spend[ing] the rest of his life in
prison." From the circumstances present – the papers filed, the
arguments made, the statements given, etc. – we have no trouble
concluding that, despite what Denson now claims, the judge did
no doubt because the lawyers, rather than repeating themselves,
incorporated by references their earlier arguments.
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factor this disorder into the sentencing calculus for the wire-
fraud crimes.
The same is true about the above-guidelines sentence of
15 months for the supervised-release violations. Explaining his
sentencing decision, the judge labeled "egregious" Denson's blowing
his supervised release by doing the exact same things that had
landed him on supervised release to begin with. And then the judge
ruled that a guidelines sentence would not do – though he did not
specifically mention Denson's disorder, as he had at the just-
concluded wire-fraud-sentencing hearing. But at the risk of
becoming tedious, we repeat that Denson's malady had a starring
role in both hearings – again, thanks to probation's presentence
and revocation reports, the combatants' memos, the lawyers' oral
presentations, and Denson's allocutions – so we can and do infer
from this that the judge thought about the health issue before
selecting a sentence. See, e.g., United States v. Vargas-Dávila,
649 F.3d 129, 130 (1st Cir. 2011); Dávila-González, 595 F.3d at 48-
49; United States v. Turbides-Leonardo, 468 F.3d 34, 40-41 (1st
Cir. 2006).
Denson's claim that the judge fixated obsessively on
public protection fares no better. To back up his charge, Denson
points us to the judge's comment that the "real issue" in trying to
come up with the right sentence for the wire-fraud crimes was how
to protect the public. Denson neglects to mention that his counsel
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agreed with the judge – "[c]orrect, your Honor," she said. Once
again, we put aside any concerns about waiver or forfeiture,
because Denson's obsession argument does not work even if properly
preserved.
Hot on the heels of this exchange, the judge called
public protection "[o]ne of the issues" that he had to deal with.
What was troubling to the judge was defense counsel's saying that
Denson really believes in his heart of hearts that the millions
overseas were still his for the taking, which, the judge added,
raised the real possibility that "as soon as he [got] out" of
prison he would backslide like he had before. In almost the same
breath, the judge mentioned the need to deter Denson from
committing future crimes, given his serial history of wire fraud,
and, moments later, the judge also took account of the other
§ 3553(a) factors, including Denson's history and characteristics,
the seriousness of the offense, and the need to promote respect for
the law. The judge again touched on many of these same concerns at
the revocation hearing by calling what Denson had done "egregious."
We see nothing reversible here. A judge need not mention
every § 3553(a) factor nor intone any particular magic words. See,
e.g., United States v. Dixon, 449 F.3d 194, 205 (1st Cir. 2006).
And certainly a judge need not give each factor equal billing. See
id. The reason for this is simple: because sentencing decisions
turn mostly on "case-specific and defendant-specific" concerns,
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"[t]he relative weight of each factor will vary with the
idiosyncratic circumstances of each case," so the judge "is free to
adapt the calculus accordingly." Id. (internal citation omitted).
And having read the record as a seamless whole, we remain convinced
that the judge did his duty, offering up an analysis that is
specific and plausible enough to stand. See, e.g., Clogston, 662
F.3d at 592-93; Martin, 520 F.3d at 96. Sure, the judge's
explanation for the revocation sentence was somewhat short. But
"'brevity'" is not the same as "'inattention,'" United States v.
Madera-Ortiz, 637 F.3d 26, 31 (1st Cir. 2011) (quoting Turbides-
Leonardo, 468 F.3d at 42), and we deem it sufficient under our
caselaw, for the reasons just given.
The upshot is that the challenged sentences are
procedurally sound and substantively reasonable. And that is that.
WHAT THIS ALL MEANS
Our work over, we affirm the judgments below in all
respects.
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