Woodward v. United States , 905 F.3d 40 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-2114
FRANCIS H. WOODWARD,
Petitioner, Appellant,
v.
UNITED STATES,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Torruella, Selya, and Barron,
Circuit Judges.
Bruce A. Singal, with whom Lauren E. Dwyer and Barrett &
Singal were on brief, for appellant.
Sonja M. Ralston, Attorney, Criminal Division, Appellate
Section, U.S. Department of Justice, with whom John P. Cronan,
Acting Assistant Attorney General, Matthew S. Miner, Deputy
Assistant Attorney General, and Jenny C. Ellickson, Attorney, were
on brief, for appellee.
September 26, 2018
TORRUELLA, Circuit Judge. In 1996, a jury convicted
former Massachusetts state representative Francis H. Woodward of,
among other crimes, honest-services mail and wire fraud. He
appeals to us from the district court's denial of his most recent
petition for a writ of error coram nobis. We conclude that the
district court did not err in denying that petition.
I.
A.
Our opinion addressing Woodward's direct appeal from his
conviction lays out the underlying facts in considerable detail.
See United States v. Woodward (Woodward I), 149 F.3d 46, 51-54
(1st Cir. 1998). We provide only a brief recap of those facts
here.
Woodward was elected to the Massachusetts House of
Representatives in 1977. Id. at 51. He served on the Joint
Committee on Insurance (the "Committee") from 1985 to 1991. Id.During that time, William Sawyer served as the senior legislative
counsel in the Government Relations Department of John Hancock
Mutual Life Insurance Company ("Hancock"). Id. Sawyer was also
an "active participant" in the Life Insurance Association of
Massachusetts (LIAM), an industry association -- of which Hancock
was a member -- that employed lobbyists "who worked on
Massachusetts legislation." Id. "From 1984 through 1992, Woodward
-2-
accepted in excess of $9,000 in gratuities from Hancock and LIAM
through their lobbyists Sawyer and William F. Carroll, the
president of LIAM. Hancock provided the majority of this largesse,
at least $8,740 in meals, rounds of golf, and other entertainment."
Id. at 52.
While serving on the Committee, "Woodward's official
actions, for the most part, conformed with the way Sawyer and
Hancock wanted the recipient of their gratuities to conduct
himself." Id. at 53. Robert J. Smith, the Committee's research
director, testified that Woodward was the "most pro-life-
insurance-industry chair of the [Committee] during Smith's
tenure." Id. During that time, "Woodward actively supported the
industry's position on most bills of importance to the industry."
Id. Woodward also neglected his statutory duty to disclose gifts
that he or his immediate family received from lobbyists or
businesses with a direct interest in legislation. Id. at 62 (citing
Mass. Gen. Laws ch. 268B, § 5).
A jury convicted Woodward of one count of honest-
services mail fraud, see 18 U.S.C. §§ 1341, 1346, one count of
honest-services wire fraud, see 18 U.S.C. §§ 1343, 1346, two counts
of interstate travel to commit bribery, see 18 U.S.C. § 1952, and
one count of conspiracy to commit those offenses, see 18 U.S.C.
§ 371. The district court granted a judgment of acquittal on one
-3-
count of interstate travel to commit bribery. The district court
then sentenced Woodward to six months of community confinement,
followed by two years of supervised release, and a $200 special
assessment. Woodward appealed from his remaining convictions, and
we affirmed. Woodward I, 149 F.3d at 73. In 2002, the
Massachusetts State Board of Retirement, invoking Mass. Gen. Laws
ch. 32, § 15(4), rescinded Woodward's pension benefits. That
statute provides that "[i]n no event shall any member after final
conviction of a criminal offense involving violation of the laws
applicable to his office or position, be entitled to receive a
retirement allowance[.]" Id. The Supreme Judicial Court of
Massachusetts upheld the State Board of Retirement's decision to
do so. State Bd. of Ret. v. Woodward, 847 N.E.2d 298, 306 (Mass.
2006).
Woodward brought his first collateral attack on his
conviction under 28 U.S.C. § 2255, grounding his petition in two
then-recently decided cases interpreting the federal and
Massachusetts gratuity statutes. See United States v. Sun-Diamond
Growers of Cal., 526 U.S. 398 (1999); Scaccia v. State Ethics
Comm'n, 727 N.E.2d 824 (Mass. 2000). In response, the district
court vacated Woodward's conviction on the conspiracy count and on
the remaining count of interstate travel to commit bribery.
Woodward's second collateral attack took the form of a writ of
-4-
error coram nobis, arguing that his remaining convictions were
invalid in the wake of Skilling v. United States. See 561 U.S.
358 (2010). The district court denied relief. United States v.
Woodward (Woodward II), No. 12-11431, 2012 WL 4856055, at *9 (D.
Mass. Oct. 10, 2012).
B.
This appeal arises from Woodward's third collateral
attack -- his second writ of error coram nobis. Woodward's
petition relied primarily on the Supreme Court's recent decision
in McDonnell v. United States, 136 S. Ct. 2355 (2016). There, the
Supreme Court narrowed the definition of "official act" in the
honest-services fraud prosecutions before it. Id. at 2371-72.
The district court correctly recognized that, to succeed, a coram
nobis petitioner must "explain his failure to seek earlier relief
from the judgment, show that he continues to suffer significant
collateral consequences from the judgment, and demonstrate that
the judgment resulted from an error of the most fundamental
character." United States v. Woodward (Woodward III), No. 17-
12036, 2017 WL 4684000, at *4 (D. Mass. Oct. 18, 2017) (quoting
United States v. George, 676 F.3d 249, 254 (1st Cir. 2012)). So
too did it acknowledge that even if a petitioner meets those three
criteria, "the court retains discretion over the ultimate decision
to grant or deny the writ." Id. (quoting George, 676 F.3d at 255).
-5-
The district court then applied these requirements to Woodward's
petition.
First, the district court, observing that Woodward had
brought his petition approximately six months after the Supreme
Court decided McDonnell, held that Woodward had adequately
explained his failure to seek earlier relief. Id. at *4. Second,
the district observed that "[i]t remains an open question in the
First Circuit whether the loss of pension benefits can qualify as
a significant collateral consequence." Id. at *5. Nonetheless,
it found that "the loss of a pension could constitute a significant
collateral consequence and that vacation of Woodward's conviction
would likely eliminate the grounds for that consequence," and
therefore declined to deny relief on the basis of that prong. Id.
at *6. Third, after reviewing the evidence that the government
introduced during Woodward's trial and the jury instructions from
that trial, the district court found Woodward's conviction to be
compatible with McDonnell, and therefore could not amount to an
error "of the most fundamental character." Id. at *6-10. Fourth
and finally, the district court -- highlighting that Woodward had
flouted the state-law requirement that he disclose the gratuities
he received -- added that "the interests of justice do not justify
the issuance of a writ of coram nobis" to Woodward. Id. at *10.
Woodward has appealed this decision to us.
-6-
II.
Woodward argues that, contrary to what the district
court concluded, his convictions for honest-services mail and wire
fraud now amount to fundamental legal error in light of McDonnell.
Both the federal mail and wire fraud statutes require,
among other things, that the defendant have executed a "scheme or
artifice to defraud." 18 U.S.C. §§ 1341, 1343. 18 U.S.C. § 1346,
in turn, provides that "the term 'scheme or artifice to defraud'
includes a scheme or artifice to deprive another of the intangible
right of honest services." This includes depriving "the public
of its right to the honest services of its legislators." Woodward
I, 149 F.3d at 55. In McDonnell, the parties "agreed that they
would define honest services fraud with reference to the federal
bribery statute, 18 U.S.C. § 201." 136 S. Ct. at 2365. It is
implicit in the parties' arguments here that we should do the same.
The federal bribery statute imposes criminal liability on any
"public official" who "corruptly demands, seeks, receives,
accepts, or agrees to receive or accept anything of value . . . in
return for . . . being influenced in the performance of any
official act." 18 U.S.C. § 201(b)(2)(A). It defines "official
act" as "any decision or action on any question, matter, cause,
suit, proceeding or controversy, which may at any time be pending,
or which may by law be brought before any public official, in such
-7-
official's official capacity, or in such official's place of trust
or profit." Id. § 201(a)(3).
McDonnell turned on whether the defendant, the former
governor of Virginia, had performed "official acts" within this
definition in exchange for various loans and gifts he had received
from the CEO of a Virginia-based company. 136 S. Ct. at 2362, 2365.
The Supreme Court rejected the government's argument for a broad
definition of that term -- which, according to the Court, would
have "encompasse[d] nearly any activity by a public official" --
in favor of a more "bounded interpretation." Id. at 2367-68. The
Supreme Court set forth that definition in this way. First, it
recalled that "an 'official act' is a decision or action on a
'question, matter, cause, suit, proceeding or controversy.'" Id.
at 2371 (quoting 18 U.S.C. § 201(a)(3)). It then explained that
"[t]he 'question, matter, cause, suit, proceeding or controversy'
must involve a formal exercise of governmental power that is
similar in nature to a lawsuit before a court, a determination
before an agency, or a hearing before a committee." Id. at 2372.
The Court added that "[i]t must also be something specific and
focused that is 'pending' or 'may by law be brought' before a
public official." Id. Finally, the Court stressed that "[t]o
qualify as an 'official act,' the public official must make a
-8-
decision or take an action on that 'question, matter, cause, suit,
proceeding or controversy,' or agree to do so." Id.According to Woodward, the trial court's jury
instructions and the body of evidence that the jury heard during
his trial both illustrate that, after McDonnell, his conviction
amounts to a "fundamental legal error" calling for coram nobis
relief. We consider these arguments in turn, reviewing the district
court's treatment of them de novo. See George, 676 F.3d at 256.
A.
We begin with Woodward's claim that the trial court's
jury instructions cannot be squared with McDonnell. Those
instructions explained the "official act" requirement in this way:
An official act means any decision or action in the
enactment of legislation. The Government doesn't have
to show a specific link between a specific item of
substantial value and a specific act to be done by
the legislator. In other words, the Government does
not have to show that there was an agreement requiring
the legislator to perform certain specified official
acts in exchange for the gratuity. The Government
must prove either that the legislator accepted or
received the gratuity with the intent to be influenced
in the future performance of official duties or that
the legislator was influenced in the performance of
official duties by the intention that a gratuity would
be received.
According to Woodward, these instructions are
impermissibly expansive in light of McDonnell. For support, he
leans on the Second Circuit's decision in United States v. Silver.
See 864 F.3d 102 (2d Cir. 2017). That case involved a post-
-9-
McDonnell challenge to jury instructions defining an "official
action" as "any action taken or to be taken under color of official
authority." Id. at 112 (emphasis omitted). The Second Circuit
found that definition incompatible with McDonnell, as it "captured
lawful conduct, such as arranging meetings or hosting events with
constituents." Id. at 118.
The instructions at issue in Silver are not comparable
to the instructions that the trial court gave the jury at the end
of Woodward's trial. Critically, while the Silver instructions
defined "official acts" as encompassing "any action taken . . .
under color of official authority," the instructions in Woodward's
case provided the much narrower definition, "any decision or action
in the enactment of legislation." Requiring a tie to the
"enactment of legislation" also seems to substantially satisfy
McDonnell's definition of "official act." See 136 S. Ct. at 2371-
72. The enactment of legislation certainly qualifies as involving
a "formal exercise of governmental power" pertaining to a
"question, matter, cause, suit, proceeding or controversy" that is
"pending . . . before a public official." See id. The only
manner we discern in which the instructions may not have comported
with McDonnell concerns whether "any decision or action in the
enactment of legislation" would leave room for acts falling outside
of McDonnell's definition.
-10-
We appreciate the existence of arguments that this
language may not precisely comport with McDonnell. Yet we also
recall that we do not find ourselves amid a direct appeal from
Woodward's conviction, which would call for us to review de novo
whether the trial court's instructions correctly captured the
relevant law. See United States v. Sasso, 695 F.3d 25, 29 (1st
Cir. 2012). Rather, the question before us is whether Woodward's
conviction is the result of a fundamental legal error requiring us
to dispense the "strong medicine" of coram nobis relief, see
George, 676 F.3d at 254 -- which, the Supreme Court has cautioned,
is an "extraordinary remedy," United States v. Morgan, 346 U.S.
502, 511 (1954). Below, in analyzing whether Woodward's challenge
to the jury instructions called for granting coram nobis relief,
the district court reasoned "[o]f course, because my instructions
were issued twenty years before McDonnell was decided, the
operative language in them is not perfectly congruent with
McDonnell, but I nevertheless conclude that my definition of
'official act' sufficiently captured the concerns later addressed
in McDonnell." Woodward III, 2017 WL 4684000, at *9. We agree.
To the extent that the jury instructions at Woodward's trial did
not perfectly anticipate McDonnell, the daylight between those two
definitions of "official acts" is so slight that we cannot say we
are before "an error of 'the most fundamental character.'"
-11-
George, 676 F.3d at 256 (quoting Hager v. United States, 993 F.2d
4, 5 (1st Cir. 1993); see also Morgan, 346 U.S. at 512.
B.
We now turn to Woodward's arguments concerning the
evidence that the government introduced against him at trial,
beginning with a review of what exactly the government needed to
prove to secure a conviction.
To convict Woodward of honest-services mail and wire
fraud, the government needed to show that he was engaged in bribery
within the statute of limitations period. The statute of
limitations period began on July 27, 1990, and Woodward left the
Committee on January 19, 1991. Woodward I, 149 F.3d at 52. Citing
United States v. Silver, the district court explained -- and
Woodward does not contest on appeal -- that "even after McDonnell,
the government 'need not prove that an official act occurred within
the statute of limitations period.'" Woodward III, 2017 WL
4684000, at *7 (quoting United States v. Silver, 864 F.3d 102, 122
(2d Cir. 2017)). "Rather," it added, "the government 'need only
prove that some aspect of the particular quid pro quo scheme
continued into the statute of limitations period.'" Id. (quoting
Silver, 864 F.3d at 122).
Additionally, to convict Woodward, the government did
not need to prove a tight nexus between any particular gratuity
-12-
and a specific official act. Rather, "[b]ribery can be accomplished
through an ongoing course of conduct, so long as the evidence shows
that the 'favors and gifts flowing to a public official [are] in
exchange for a pattern of official actions favorable to the
donor.'" United States v. McDonough, 727 F.3d 143, 154 (1st Cir.
2013) (second alteration in original) (quoting United States v.
Ganim, 510 F.3d 134, 149 (2d Cir. 2007)). Such a theory of bribery
is known as a "stream of benefits" theory. See United States v.
López-Cotto, 884 F.3d 1, 8 (1st Cir. 2018) (describing a "'stream
of benefits' prosecution approach" as one "wherein a government
official is charged with entering into an ongoing agreement to
accept benefits in exchange for providing government business to
the briber").
In synthesis, the evidence remains sufficient to convict
Woodward, even when applying McDonnell, so long as it would have
allowed a jury reasonably to conclude that he was engaged in a
quid pro quo scheme in which he received gratuities in exchange
for one or more official acts, and that he either received
gratuities or committed an official act during the statute of
limitations period. The statute of limitations period, once more,
began on July 27, 1990.
The district court's discussion of the relevant evidence
-- which led it to conclude that the jury could have found Woodward
-13-
to have carried out some aspect of the quid pro quo scheme during
the statute of limitations period -- is useful to review here.
First, the district court put forth that "[a] reasonable jury could
have found that Woodward undertook 'official acts' for the benefit
of Sawyer and Hancock" during the statute of limitations period.
Woodward III, 2017 WL 4684000, at *6. Specifically, it referred
to our explanation in Woodward I that
each year from 1985 through 1990, the legislature
considered a bill proposing mandatory discounts on
life insurance for non-smokers. Hancock and LIAM
opposed the bill. In 1989, the bill received
favorable recommendation from the Insurance Committee
based on support from Senator Linda Melconian,
Woodward’s co-chair of the Committee. But despite the
Committee’s favorable report, Woodward led the
opposition to the bill in debate before the full House
of Representatives, and was successful in defeating
the so-called "non-smoker’s bill" for that session.
Hancock’s vice-president, who directly supervised
Sawyer, called the bill’s defeat a "significant
victory for the industry."
Id. (quoting Woodward I, 149 F.3d at 60). The district court
reasoned that "[l]eading the opposition to a major piece of
legislation plainly qualifies as an 'official act' under
McDonnell." Id. As further evidence of pre-statute-of-limitations-
period official acts, the district court highlighted the "many
instances where Woodward 'carried' pro-insurance bills through the
legislative process after they left the [C]ommittee." Id. And it
highlighted that in Woodward I, we held that "the jury was entitled
-14-
to believe . . . that 'carrying' means actively guiding a bill
through the process; it is not merely ministerial." Id. (quoting
Woodward I, 149 F.3d at 61).
Second, the district court added that the evidence would
also have allowed the jury to find that Woodward had undertaken an
official act for Sawyer's benefit during the statute of limitations
period. See id. at *7. This evidence also pertained to the non-
smoker's bill. As we summarized in Woodward I:
As evidence of Woodward's post-gratuity activity, the
government points to Woodward's action with respect
to S. 641, which proposed premium reductions in life
insurance for policyholders who were non-smokers.
The bill was originally reported favorably out of the
Insurance Committee on May 7, 1990. Then on July 24,
1990, just before becoming law, the House of
Representatives recommitted the bill to the Insurance
Committee. The effect of a bill's recommittal is that
both chairs would have to act in order for the bill
to be released. The bill languished in the Insurance
Committee with no further action taken through
January 1, 1991, after Woodward received . . .
gratuities and prior to his removal as co-chair.
Woodward's cochair, Senator Melconian, had actively
supported the 1989 bill by requesting a favorable
recommendation from the Insurance Committee. The
jury could, therefore, reasonably have inferred that
Woodward prevented any further action on S. 641,
because in the previous year he led the floor debate,
on behalf of Hancock and LIAM, against a similar non-
smokers bill.
Woodward I, 149 F.3d at 66.
Third, the district court found that "the record is clear
that Woodward received benefits from Sawyer after July 27, 1990."
-15-
Woodward III, 2017 WL 4684000, at *7. For support, it pointed to
our observation in Woodward I that
After entertaining Woodward for several days at the
Scottsdale COIL conference in 1991, Sawyer left the
conference early, but left his credit card to be used
for paying Woodward's golf and meal expenses during
the remainder of the conference. This is not
consistent with mere friendship as the sole purpose
of these payments, but rather is more consistent with
the theory of a gratuity made because of Woodward’s
potential official actions.
See id. (quoting Woodward I, 149 F.3d at 58). So too did the
district court make reference to our conclusion in Woodward I that
the jury could have reasonably found Sawyer to have provided
gratuities to Woodward at a conference in Orlando in November of
1990. Id. We also add that, in Woodward I, we found the evidence
to show that Woodward began receiving gratuities from Sawyer before
the statute of limitations period -- as early as in 1984. Woodward
I, 149 F.3d at 52.
In light of all of this evidence, the district court
concluded that "a reasonable jury could have found [that] Woodward
committed quid pro quo bribery" during the statute of limitations
period, McDonnell's narrower definition of "official acts"
notwithstanding. Woodward III, 2017 WL 4684000, at *6. Woodward
disagrees. He argues that, in denying his petition below, the
district court relied on a "stream of benefits" theory of bribery
that is no longer valid. Specifically, he asserts that "after
-16-
McDonnell, the stream of benefits theory does not relieve the
government of its burden to identify and prove the specific
official acts that Woodward intended to perform with a corrupt
intent." But this is incorrect. Woodward stresses that a discussion
of the "stream of benefits" theory is "conspicuously absent from
the McDonnell opinion," suggesting that McDonnell implicitly
invalidated that theory. We think, though, that a better reading
of McDonnell indicates that the Court did not discuss the "stream
of benefits" theory not out of disapproval of it, but rather
because it was not implicated in that case. Indeed, McDonnell
hinged on whether the trial court had provided too broad a
definition of "official acts" in its jury instructions. 136 S.
Ct. at 2374. The Court did not take up whether the government had
adequately proven a nexus between the gratuities he received and
the acts he allegedly undertook as a result. Thus, we remain
confident that a "stream of benefits" theory of bribery remains
valid today. Woodward is therefore unsuccessful in arguing that
coram nobis relief is necessary because his conviction rested on
such a theory.
Woodward next argues that the district court below
incorrectly identified his role in tanking the non-smokers bill as
a post-McDonnell official act. But Woodward cannot get out from
under our holding in Woodward I that the jury could "reasonably
-17-
have inferred that [in 1990,] Woodward prevented any further action
on S. 641, because in the previous year he led the floor debate,
on behalf of Hancock and LIAM, against a similar non-smokers bill."
149 F.3d at 66. And actively preventing a vote to take place on
a particular piece of proposed legislation falls well within
McDonnell's definition of "official acts." See 136 S. Ct. at
2371-72.
Woodward likewise contests the notion that "carrying"
bills once they had left the Committee qualifies as an official
act. We disagree. For in Woodward I, as the district court
noted, we held that the evidence would have permitted the jury to
conclude that "'carrying' mean[s] actively guiding a bill through
the process," as opposed to being "merely ministerial" in nature.
Woodward I, 149 F.3d at 61. Furthermore, even if that were not
so, it would not mean that Woodward's conviction was the product
of error. Independent of Woodward's carrying of pro-industry bills
through the legislative process, his opposition to S. 641 -- which
Hancock did not want to pass -- supplies another official act
during the statute of limitations period that a jury could
reasonably have found him to have undertaken in exchange for the
gratuities he received.1
1 In a post-argument letter submitted pursuant to Federal Rule of
Appellate Procedure 28(j), Woodward brought to our attention
United States v. Fattah, No. 16-4397, 2018 WL 3764543 (3d Cir.
-18-
Lastly, Woodward asserts that coram nobis relief from
his conviction is also imperative in light of Skilling v. United
States -- in which the Supreme Court held that honest-services
fraud does not include "undisclosed self-dealing" or the failure
to disclose conflicts-of-interest. See 561 U.S. at 409-11. But
this likewise does not provide us with occasion to grant that
relief. The Supreme Court's decision in Skilling, which is now
eight years old, formed the basis of Woodward's first coram nobis
petition. The district court denied that petition, and Woodward
did not appeal. Insofar as Woodward hasn't waived any Skilling-
based argument, we cannot say that, in invoking that case now, he
Aug. 9, 2018). Woodward argues that Fattah rejected two
propositions "advanced generally by the government" in this case:
1) that a conviction can stand when only one of various "official
acts" charged met McDonnell requirements; and 2) the government's
theory of a "pattern" of unspecified acts, as both allowed the
jury to convict on acts insufficient under McDonnell. We will not
discuss now whether these points correctly interpret Fattah or
properly describe the government's theories, as in any case, they
are inapplicable: we have determined here that the acts Woodward
challenged could constitute "official acts" under McDonnell that
a jury could reasonably have concluded Woodward undertook in
exchange for the gratuities he received. This is the case with:
1) Woodward's role in tanking the non-smokers bill; and 2)
Woodward's "carrying" of pro-industry bills through the
legislative process. See supra at 17-18. Additionally, while
Fattah stemmed from a direct appeal, the bar to grant coram nobis
relief is much higher. Hence, nothing in Fattah persuades us to
depart from our conclusion that Woodward failed to demonstrate
that his conviction is the result of a fundamental error.
-19-
has adequately "explain[ed] his failure to seek earlier relief
from the judgment." George, 676 F.3d at 254.
Woodward, therefore, has failed to show that his
conviction is the result of a fundamental legal error that would
render the extraordinary post-conviction remedy of coram nobis
relief appropriate.
III.
Because Woodward has not demonstrated that his
conviction is the result of any fundamental error, he cannot
prevail in his petition for coram nobis relief. We, therefore,
"decline to exercise [our] discretion so as to disturb a judgment
that has long since become final." Id. at 260.
Affirmed.
-20-