United States v. Gaw

United States Court of Appeals
For the First Circuit
No. 14-2242
UNITED STATES OF AMERICA,
Appellee,
v.
DAVID P. GAW,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Lynch, Stahl, and Barron,
Circuit Judges.
William J. Cintolo, with whom Cosgrove Eisenberg & Kiley was
on brief, for appellant.
Evan Rose, Attorney, United States Department of Justice,
with whom Carmen M. Ortiz, United States Attorney, was on brief,
for appellee.
March 9, 2016
1
BARRON, Circuit Judge. David Gaw, an employee with the
Massachusetts Registry of Motor Vehicles ("RMV"), appeals from his
conviction on two counts of mail fraud, 18 U.S.C. §§ 2, 1341, 1346,
and one count of conspiracy to interfere with interstate commerce
by threats or violence, id. § 1951 ("Hobbs Act"). The convictions
relate to an alleged scheme to sell automotive service station
owners RMV licenses to perform state-mandated vehicle inspections.
Gaw contends that the evidence was insufficient to support the
convictions, but we reject this challenge. And because we also
reject Gaw's other arguments for overturning the convictions, we
affirm them.
I.
Gaw's convictions arise from allegations concerning his
work as a field investigator with the RMV. In Massachusetts,
automotive service station owners must obtain a license from the
RMV in order to perform state-mandated vehicle inspections. See
540 C.M.R. § 4.08. In 2008, the RMV placed a cap on the number of
licenses that the RMV would issue to service stations to perform
inspections of regular passenger vehicles.
Because inspection licenses are generally not
transferable, the cap matters a lot. Once the RMV hits the cap,
a service station owner who seeks a license is seemingly out of
luck. See id. § 4.08(1)(a)(2). The RMV, however, had an unwritten
policy that allowed licenses to follow a station owner if the owner
- 1 -
merged the station into another that did not have a license. And
this unwritten policy -- and the ambiguity about the rules, if
any, that govern merger approvals -- figures prominently here for
the following reason.
In 2009, the RMV had hit the cap. The government alleges
that Gaw and two others -- Simon Abou Raad, a service station
owner, and Mark LaFrance, an RMV employee in charge of the vehicle
inspection program -- developed a scheme to enrich themselves by
taking advantage of the interaction between the cap and the
unwritten merger policy.
According to the government, the conspirators would
identify service station owners who held licenses but were not
doing a large inspection business. The conspirators would then
either attempt to shut down those owners' service stations on
technicalities or offer to buy their inspection equipment in the
hope that the service station owners would agree to give up their
licenses.
If station owners who were approached in connection with
this scheme agreed to give up their licenses, the government
contended, the conspirators would then find a "buyer" for the
license and draw up sham paperwork to make it appear that the
station owner giving up its license was merging into the "buyer."
In this way, the participants in the scheme were able to profit
- 2 -
from the unlawful transfer of licenses by selling them while
disguising them as transfers effected pursuant to mergers.
Due to his alleged involvement in the scheme, Gaw was
indicted in the United States District Court for the District of
Massachusetts on 16 counts of mail fraud and one count of violating
the Hobbs Act. In addition to the Hobbs Act count, the government
pursued three of the 16 mail fraud counts at trial: two relating
to the sale of one license and one relating to the sale of another.
At the conclusion of the evidence, Gaw moved for
acquittal on all counts. The District Court denied the motion and
the case then went to the jury. The jury returned guilty verdicts
on two of the mail fraud counts, a not guilty verdict on the third
mail fraud count, and a guilty verdict on the Hobbs Act count.
Gaw then moved for acquittal pursuant to Federal Rule of
Criminal Procedure 29. Gaw also moved for a new trial pursuant to
Federal Rule of Criminal Procedure 33. Both motions were denied.
The District Court sentenced Gaw on each charge to one year and
one day in prison, followed by a year of supervised release. The
sentences were to run concurrently.
On appeal, Gaw challenges the sufficiency of the
government's evidence as to each of his convictions, argues that
the District Court should have ordered a new trial, and contends
that the cumulative error doctrine also requires that his
- 3 -
convictions be vacated. We address these arguments in turn, and
we reject each one.
II.
We start with Gaw's challenge to the District Court's
denial of his Rule 29 motion. Our review is de novo. United
States v. Hatch, 434 F.3d 1, 4 (1st Cir. 2006).
The question that we must resolve is whether "a rational
factfinder could find, beyond a reasonable doubt, that the
prosecution successfully proved the essential elements of the
crime." Id. (internal quotation mark and citation omitted).
"[T]his court need not believe that no verdict other than a guilty
verdict could sensibly be reached, but must only satisfy itself
that the guilty verdict finds support in a plausible rendition of
the record." Id. (internal quotation marks and citation omitted).
In undertaking that review, we consider "the evidence in the light
most amiable to the government," make "all reasonable inferences
in its favor," and resolve all credibility disputes in favor of
the verdict. Id. (internal quotation mark and citation omitted).
Our sufficiency review is made more complicated here by
virtue of the number of distinct theories of criminal liability
the government pursued at trial. Thus, before we turn to what the
record shows about the evidence, we briefly discuss the theories
the government put into play.
- 4 -
As we have said, the government charged Gaw with
violating the mail fraud statute and the Hobbs Act. And with
regard to the mail fraud counts, the parties agree, the government
charged Gaw both as a principal and as an aider and abettor.
At trial, the government argued that Gaw could be
convicted of each count of mail fraud under one theory -- known as
the "money or property" theory -- either as a principal, or as an
aider and abettor of either Mark LaFrance or Simon Abou Raad. The
government also argued that Gaw could be convicted of each count
of mail fraud under a second theory -- known as the "honest
services" theory -- as either a principal or as an aider and
abettor of LaFrance. There were thus, effectively, five theories
of liability in play for each count of mail fraud.
The government also argued that Gaw could have been
convicted under either of two separate theories of Hobbs Act
liability, known respectively as the "fear of economic loss" and
"color of official right" theories. And, the government argued,
Gaw could be convicted under either theory for conspiring with
either Abou Raad or LaFrance. There were thus effectively four
theories of liability in play as to that charge.
The District Court, understandably, raised some concern
that the broad array of theories would be too confusing to the
jury. But, ultimately, the District Court allowed the government
to proceed with all of these theories in presenting its case.
- 5 -
Gaw does not challenge that decision on appeal. Nor
does he argue that the case was not in fact so presented. As a
result, we must affirm each count if the evidence is sufficient
for the jury to have convicted Gaw under any one of the relevant
theories of liability presented to the jury as to that count. See
United States v. Gobbi, 471 F.3d 302, 309 (1st Cir. 2006) ("The
law is crystalline that, when the government has advanced several
alternate theories of guilt and the trial court has submitted the
case to the jury on that basis, an ensuing conviction may stand as
long as the evidence suffices to support any one of the submitted
theories.").
As we shall explain, Gaw has failed to show that any of
the counts must be reversed as to all of the theories that were
presented to the jury for that count. In particular, he has not
shown that his Hobbs Act conviction must be overturned for lack of
sufficient evidence on the fear of economic loss theory. Nor has
he shown that his mail fraud convictions must be overturned for
lack of sufficient evidence on the theory that he aided and abetted
LaFrance's honest services fraud. We thus affirm each of these
convictions.
A.
We begin with Gaw's contention that there was
insufficient evidence to convict him of conspiracy to commit
- 6 -
extortion in violation of the Hobbs Act. We conclude that Gaw has
failed to show on appeal that the evidence was insufficient to
support this conviction.
The Hobbs Act makes it a crime to "in any way or degree
obstruct[], delay[], or affect[] commerce or the movement of any
article or commodity in commerce, by robbery or extortion or
attempt[] or conspire[] so to do." 18 U.S.C. § 1951(a). The Act
further defines extortion as "the obtaining of property from
another, with his consent, induced by wrongful use of actual or
threatened force, violence, or fear, or under color of official
right." Id. § 1951(b)(2). And with respect to the wrongful use
of fear, "we have clarified that 'fear' can mean the 'fear of
economic loss.'" United States v. Bucci, 839 F.2d 825, 827 (1st
Cir. 1988) (quoting United States v. Hathaway, 534 F.2d 386, 394
(1st Cir. 1976)).
In this case, the special verdict form shows that the
jury found Gaw guilty of the Hobbs Act violation under both the
color of official right and fear of economic loss theories. Gaw
argues only that there was insufficient evidence to convict him of
conspiracy to violate the Hobbs Act under a color of official right
theory. Therefore, we agree with the government that waiver
provides a sufficient ground on which to uphold Gaw's Hobbs Act
conviction.
- 7 -
"The 'color of official right' and 'fear' prongs provide
alternative, independently sufficient grounds for finding
extortion; thus, adequate proof of one obviates any need for proof
of the other." United States v. Cruz-Arroyo, 461 F.3d 69, 73 (1st
Cir. 2006). Because Gaw makes no argument that the evidence was
insufficient to support his conviction of conspiracy to violate
the Hobbs Act under a fear of economic loss theory, see United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990), that conviction
must be affirmed. See Cruz-Arroyo, 461 F.3d at 73.1
1 We note that, setting waiver aside, there was sufficient
evidence for the jury to find Gaw guilty of conspiracy to commit
Hobbs Act extortion under a color of official right theory. That
is because the same evidence that supports Gaw's conviction for
aiding and abetting LaFrance's honest services fraud -- which we
discuss at length below -- would support his conviction for
conspiracy to commit Hobbs Act extortion under color of official
right. See United States v. McDonough, 727 F.3d 143, 155-56 (1st
Cir. 2013) ("Here, for the same reasons that we found the evidence
sufficient to support the honest-services fraud convictions, we
hold that the jury was presented with enough evidence to support
[defendant]'s extortion [under color of official right]
conviction."). From this record, the jury could rationally infer
that Gaw "actively participate[d] in" LaFrance's commission of
honest services mail fraud with "advance knowledge" of all of "the
circumstances constituting the charged offense." Rosemond v.
United States, 134 S. Ct. 1240, 1248-49 (2014). The jury could
also rationally infer that there was a tacit agreement between Gaw
and LaFrance to commit Hobbs Act extortion under color of official
right. See United States v. Muñoz-Franco, 487 F.3d 25, 45-46 (1st
Cir. 2007) ("A formal agreement is not required; rather, the
agreement may be shown by a concert of action, all the parties
working together understandingly, with a single design for the
accomplishment of a common purpose." (internal quotation marks,
brackets, and citations omitted)); United States v. Martinez-
Medina, 279 F.3d 105, 113-14 (1st Cir. 2002) ("The jury may infer
an agreement circumstantially by evidence of, inter alia, a common
purpose . . . overlap of participants, and interdependence of
- 8 -
B.
We next turn to Gaw's sufficiency challenge to his two
convictions for mail fraud. These convictions -- and thus the
evidence that the government contends supports them -- relate to
a single transaction: the transfer of an inspection license from
one station owner, Frank Pignatare, to another, Michael Youssef,
for $75,000.
The government alleges that this transaction -- which we
will refer to as the "Youssef transaction" -- was engineered by
Gaw, Abou Raad, and LaFrance. The two mail fraud counts against
Gaw stem from the fact that there were two separate mailings made
with respect to that transaction. The indictment identifies those
mailings as a "Forged Letter purportedly from 'F.P.'" mailed by
Abou Raad to the RMV on December 24, 2012, and an "Application for
Inspection Station Approval," which was mailed by the RMV to
"'S.A.W.' Stoneham, MA" on January 7, 2013. The parties do not
differentiate between the two counts of mail fraud on appeal.
The indictment alleges that Gaw, Abou Raad, and LaFrance
committed mail fraud "aided and abetted by each other." Thus,
Gaw's mail fraud convictions may be upheld if the evidence suffices
various elements in the overall plan."); United States v. Palmer,
203 F.3d 55, 64 (1st Cir. 2000) ("A conspiracy may be established
through circumstantial evidence, and the government need only
demonstrate a tacit understanding between the conspirators to
prove its case.").
- 9 -
to show that he aided and abetted either Abou Raad's or LaFrance's
mail fraud, even if the evidence is not sufficient to support a
finding that Gaw was guilty of mail fraud as a principal. United
States v. García-Carrasquillo, 483 F.3d 124, 131 (1st Cir. 2007).
Finally, there are two types of mail fraud. Mail fraud
may deprive the victim of money or property, as is usually the
case, United States v. Sawyer, 85 F.3d 713, 723 (1st Cir. 1996),
or mail fraud may deprive the victim of "honest services," as may
occur in some special cases, 18 U.S.C. § 1346; see also United
States v. Urciuoli, 613 F.3d 11, 12 n.1 (1st Cir. 2010). And the
government presented each theory of mail fraud to the jury in
pursuing its case against Gaw.
Gaw contends that the evidence cannot support his mail
fraud convictions under either of these theories, as either a
principal or as an aider and abettor. We disagree.
In reaching this conclusion, we are aware that Gaw argues
that he could not have committed money or property mail fraud as
either a principal or as an aider and abettor. He grounds this
argument on his contentions that an RMV license cannot be
considered "money or property" for the purposes of the statute,
see Cleveland v. United States, 531 U.S. 12, 26 (2000), and that
Youssef cannot be said to have been deprived of the money he paid
to buy the license given that he was in on the scheme and thus got
- 10 -
exactly what he knew he was buying.2 But even if we were to
conclude for those reasons that the evidence was insufficient to
find Gaw guilty -- as either a principal or as an aider and
abettor -- of money or property mail fraud, that would not
necessitate overturning his mail fraud convictions. We would be
required to overturn them only if there were also insufficient
evidence to support finding Gaw guilty, on these two counts, of
honest services mail fraud. Gaw, however, has failed to show that
that is the case, as we will now explain.
C.
In an honest services mail fraud prosecution, the
government must prove that an official received something of value
in exchange for being influenced in the performance of an "official
act." United States v. McDonough, 727 F.3d 143, 152 (1st Cir.
2013). Gaw argues that he cannot be found guilty as a principal
because he did not enter into an agreement to be influenced in the
performance of official acts in exchange for receiving something
of value and because the acts that he did perform fall outside the
2
The National Association of Criminal Defense Lawyers
submitted an amicus brief that contends that the jury instructions
on money or property fraud were erroneous because they would have
allowed the jury to find Gaw guilty even without finding that he
intended to deprive the victim of property. See United States v.
Sandler, 750 F.3d 585 (6th Cir. 2014). Gaw does not adopt this
argument regarding the jury instructions, and, in any event,
because we decide the case on alternative grounds, we need not
address it.
- 11 -
scope of honest services mail fraud, as those acts were "relatively
straightforward task[s] that simply do[] not raise the specter of
secretive, self-interested action, as does a discretionary,
decision-making role." United States v. Czubinski, 106 F.3d 1069,
1076-77 (1st Cir. 1997).
As the government points out, however, the evidence was
sufficient to convict Gaw as an aider and abettor of LaFrance's
honest services mail fraud. And we thus affirm the convictions
for mail fraud on that separate basis. To see why we reach this
conclusion, it helps to start with a brief recap of the elements
of the crime.
As we have explained before, "[t]he crime of mail fraud
includes three elements: '(1) a scheme to defraud based on false
pretenses; (2) the defendant's knowing and willing participation
in the scheme with the intent to defraud; and (3) the use of
interstate mail communications in furtherance of that scheme.'"
United States v Soto, 799 F.3d 68, 92 (1st Cir. 2015) (quoting
United States v. Hebshie, 549 F.3d 30, 35 (1st Cir. 2008)
(alteration omitted)). Moreover, as we have also explained before,
to prove that a defendant is liable as an aider and abettor, the
government must prove "that: 1) the substantive offense was
actually committed [by someone]; 2) the defendant assisted in the
commission of that crime or caused it to be committed; and 3) the
defendant intended to assist in the commission of that crime or to
- 12 -
cause it to be committed." United States v. Davis, 717 F.3d 28,
33 (1st Cir. 2013) (citing United States v. Rodríguez–Adorno, 695
F.3d 32, 42 (1st Cir. 2012)); see also Rosemond v. United States,
134 S. Ct. 1240, 1248-49 (2014) (the intent prong is satisfied
when a defendant "actively participates in a criminal venture" and
has "advance knowledge" of all of "the circumstances constituting
the charged offense").
Gaw does not dispute a number of these elements with
regard to aiding and abetting LaFrance's honest services mail
fraud. He does not dispute that LaFrance helped engineer the
Youssef transaction. Nor does Gaw dispute that LaFrance committed
honest services mail fraud in doing so -- which is to say, Gaw
does not dispute that LaFrance was paid in exchange for his role
in undertaking official acts to effect a sham merger to facilitate
the Youssef transaction. Nor, finally, does Gaw contend that he
did not assist in, with the intent to further, the Youssef
transaction that he concedes LaFrance committed honest services
mail fraud in facilitating. In light of those concessions, Gaw's
only contention that is potentially relevant to whether he aided
and abetted LaFrance's honest services mail fraud is his general
assertion that he lacked the requisite knowledge for him to be
convicted. But that assertion does not help him here.
The evidence is sufficient for a rational jury to find
"that [Gaw] consciously shared [LaFrance]'s knowledge of"
- 13 -
Lafrance's honest services fraud, "the underlying criminal act."
United States v. Negrón-Sostre, 790 F.3d 295, 311 (1st Cir. 2015)
(quoting United States v. Bristol–Mártir, 570 F.3d 29, 39 (1st
Cir. 2009)); see also Rosemond, 134 S. Ct. at 1248-49 (to be
convicted of aiding and abetting, a defendant must have "advance
knowledge" of all of "the circumstances constituting the charged
offense"). And that is because the record provides sufficient
support for a rational jury to find that Gaw understood both that
LaFrance was using his position in the RMV to further the Youssef
transaction and that LaFrance was being paid to do so from the
proceeds of the transaction. See McDonough, 727 F.3d at 152.
D.
As an initial matter, the record provides ample
support -- in the form of testimony from others and recorded
wiretaps -- for finding that Gaw participated intimately in
furthering the entire Youssef transaction. Indeed, the record
provides sufficient evidence for the jury to have found that it
was Gaw who both identified Youssef as a potential buyer for the
license and put Youssef in touch with Abou Raad. And, in fact,
Gaw admits that he was paid $2,000 for his role.
Moreover, the evidence directly supports finding that
Gaw was in fact aware that LaFrance was involved in approving the
Youssef transaction. In particular, the government put into
evidence a recording of a wiretapped phone call in which Abou Raad
- 14 -
told Gaw that he would try to get paperwork to LaFrance without
Michael Devaney, Gaw's immediate supervisor, knowing about it.
The government argues -- and the evidence suggests -- that the
paperwork mentioned in that call was related to effecting the
Youssef "merger," and Gaw does not contend otherwise.
Nor could Gaw argue that the record did not sufficiently
support that conclusion, given a number of other recorded calls
that the government introduced at trial. One of those calls was
made the day after the call in which Gaw and Abou Raad spoke about
Abou Raad getting the paperwork to LaFrance. On that call, Abou
Raad talked to Youssef about making sure that Youssef had all of
the necessary equipment to perform state-mandated vehicle
inspections, for which he needed approval from LaFrance's
department. On another of those calls, from about a week later,
Abou Raad and Youssef discussed waiting to get "papers" from the
RMV. And, finally, recorded phone calls introduced by the
government support the conclusion that Gaw and Abou Raad had talked
about Youssef's paperwork on three prior occasions within about
two weeks leading up to the call in which Abou Raad and Gaw spoke
about Abou Raad getting "paperwork" to LaFrance on the sly.
Gaw does contend that he did not know that the merger in
the Youssef transaction was fraudulent. But even assuming that
such knowledge would be necessary for Gaw to be convicted of aiding
and abetting LaFrance's honest services mail fraud, the jury could
- 15 -
reasonably have concluded that Gaw did know that the merger was
fraudulent. As we have noted, the government introduced evidence
to show that Gaw knew Abou Raad was trying to get the Youssef
paperwork to LaFrance without Devaney -- Gaw's supervisor --
knowing about it. In the same call that Abou Raad and Gaw discussed
Abou Raad getting paperwork to LaFrance on the sly, moreover, Gaw
told Abou Raad that he had been joking with LaFrance about "merger"
being the "new word" in the RMV vocabulary. And, as the wiretaps
showed, Gaw even told Youssef to hide Gaw's involvement in the
transaction. This evidence suffices to support a finding by the
jury that Gaw understood that the merger was fraudulent. See
United States v. Nivica, 887 F.2d 1110, 1115 (1st Cir. 1989) ("His
attempts to hide the truth, or cast it in a false light, were
competent proof of guilty knowledge.").
Other record evidence rounds out the picture of Gaw's
knowledge of LaFrance's role. The government introduced a
recording of a call in which Gaw told Abou Raad that he spoke to
LaFrance about the overall scheme (though with no mention of the
Youssef transaction in particular), and that LaFrance had told Gaw
that "as long as the guy that owned the business, his name is on
the paperwork, they can do any fucking thing they want." And,
further, the government introduced yet another recording of a call
in which Gaw indicated that he knew of LaFrance's involvement in
the Youssef transaction itself. In that call, Gaw told Abou Raad
- 16 -
that he should collect the money from Youssef because LaFrance had
just called Gaw and told him to go by Youssef's station and that
once he did, Youssef would be open for business.
Simply put, there was a great deal of evidence pertaining
to both Gaw's intimate knowledge of the Youssef transaction as a
whole and Gaw's knowledge of LaFrance's involvement in both that
same transaction and the overall sham merger scheme. In light of
that evidence, the record supports the reasonable inference that
Gaw knew what Gaw does not dispute -- that LaFrance was using his
position with the RMV to further the effort to effect a sham merger
in connection with the Youssef transaction.
That leaves only the question whether the evidence also
supports the conclusion that Gaw knew LaFrance was performing his
role in the Youssef transaction in return for payment from the
proceeds of the scheme. But the record shows that the jury could
rationally infer from the evidence that Gaw possessed just such
knowledge.
The record provides overwhelming support for the
conclusion that Gaw understood that he would himself be paid by
Abou Raad for assisting with the Youssef transaction. In addition
to the evidence from recorded calls that showed Gaw expected that
he would be paid by Abou Raad for that transaction, the government
also introduced a recording of a wiretapped call that took place
- 17 -
after the Youssef sale was completed in which Gaw and Abou Raad
discussed making money via similar sham mergers going forward.
Specifically, Abou Raad stated in that call, "We can
make, we can make lot [sic] of money if we . . . have the buyer.
We don't want the buyers, we want the sellers. That's where we
can make fucking five thousand apiece. You know what I mean?"
Gaw then responded, "[y]ep," at which point Abou Raad continued,
"So we need the sellers, not buyers we, we don't make much. We
need the sellers. That's where we can control the shit."
In light of this evidence, it would hardly be an
unreasonable leap for the jury to conclude that Gaw knew that
LaFrance was being similarly paid for his role in the Youssef
transaction as well. The evidence provided support for a rational
jury finding that Gaw was intimately involved in an effort to
facilitate a sham merger so that he could be paid. The evidence
also showed that those with whom he spoke in carrying out the
Youssef transaction were performing their role in order to be paid
from the proceeds of the sale. Furthermore, the evidence supports
the inference that Gaw knew that LaFrance was in on the same
transaction and was providing the necessary approval of the
paperwork. It thus would be quite reasonable for a jury to
conclude that Gaw knew that LaFrance, too, was performing his role
in the Youssef transaction in exchange for money from the proceeds
of the sale -- as, Gaw concedes, LaFrance actually was. See United
- 18 -
States v. Ortiz, 966 F.2d 707, 712 (1st Cir. 1992) (explaining
that "jurors are neither required to divorce themselves from their
common sense nor to abandon the dictates of mature experience" and
that "factfinders may draw reasonable inferences from the evidence
based on shared perceptions and understandings of the habits,
practices, and inclinations of human beings").
E.
As we have already pointed out, Gaw challenges only one
element of aiding and abetting liability. He does not argue that
LaFrance did not in fact commit honest services mail fraud. Nor
does he argue that he did not assist in its commission. Nor does
he argue that he did not intend to help LaFrance. The only
contention Gaw arguably does make is that he lacked the requisite
knowledge of the crime that he assisted LaFrance in committing.
But, as we have shown, the evidence supports the reasonable finding
that Gaw did know that LaFrance was taking money in exchange for
performing official acts to effectuate a fraudulent merger in
furtherance of the Youssef transaction. See McDonough, 727 F.3d
at 152. Therefore, the evidence is sufficient for a rational jury
to find "that [Gaw] consciously shared [LaFrance]'s knowledge of
the underlying criminal act." Negrón-Sostre, 790 F.3d at 311.
To be sure, much of the evidence concerning Gaw's
knowledge of LaFrance's commission of honest services fraud is
circumstantial, rather than direct. But "[t]he law is long since
- 19 -
settled that the prosecution may prove its case without direct
evidence of a defendant's guilty knowledge so long as the array of
circumstantial evidence possesses sufficient persuasive power."
United States v. O'Brien, 14 F.3d 703, 706 (1st Cir. 1994).
Therefore, "taking the evidence and reasonable
inferences in the light most helpful to the prosecution," United
States v. Munyenyezi, 781 F.3d 532, 536 (1st Cir. 2015), we
conclude that the evidence is sufficient for a rational jury to
have found beyond a reasonable doubt that Gaw aided and abetted
LaFrance's honest services fraud. Accordingly, Gaw's mail fraud
convictions must be affirmed.
III.
We next address Gaw's assertion that the District Court
erred in denying his motion for a new trial under Federal Rule of
Criminal Procedure 33. Gaw first contends that the motion should
have been granted because at trial the District Court improperly
excluded certain evidence that Gaw intended to use to support a
good faith defense. Gaw next argues that the District Court should
have granted him a new trial because the evidence weighed so
heavily against the verdict.
We "review the [D]istrict [C]ourt's denial of a Rule 33
motion for 'manifest abuse of discretion.'" United States v.
Flores-Rivera, 787 F.3d 1, 15 (1st Cir. 2015) (citing United States
v. González–González, 258 F.3d 16, 20 (1st Cir. 2001)). We
- 20 -
identify no such abuse, and we thus reject each of Gaw's
contentions.
A.
Gaw argues that the District Court erred in refusing to
allow him to introduce into evidence "the RMV's Code of Conduct,
regulations and other state law evidence." He contends that this
evidence would have supported the conclusion that he believed paid
referrals of buyers and sellers of licenses were lawful and thus
would have supported his contention that he lacked the requisite
intent to have committed the crimes.
We review such evidentiary decisions by district courts
only for abuse of discretion, United States v. Peake, 804 F.3d 81,
96 (1st Cir. 2015), and we see none here. Gaw contends that "if
[he] believed that he could make paid referrals to Abou Raad, he
could not simultaneously possess the required willful intent to
violate the statutes under which he was charged." But even
assuming that that is the case, Gaw must still show how the code
of conduct that he contends was improperly excluded was relevant
to whether he possessed the requisite criminal intent.
His brief, however, does not cite to the actual document,
explain what it is, or argue that Gaw even knew about it at the
relevant time, let alone that he actually relied on it in taking
- 21 -
the steps to facilitate the Youssef transaction that he took.3
Cf. Urciuoli, 613 F.3d at 15 ("Urciuoli claims that the class
exception was still relevant to his defense that he (Urciuoli)
acted in good faith because he knew of the class exception . . . ."
(emphasis added)).4 Given that the District Court ruled that Gaw
could admit evidence of state law or RMV codes of conduct so long
as he could show that he had known of them, we cannot see how the
District Court abused its discretion in making the evidentiary
3 His brief quotes at length from Section 7.01 of the "code
of conduct" that he contends should have been admitted into
evidence: "The Commonwealth seeks to give employees the maximum
freedom possible to engage in outside employment or business
activities consistent with their responsibilities to the
Commonwealth. However, the extremely sensitive mission of the
Commonwealth and its employees necessitates certain restrictions.
Employees may engage in outside employment or business activity
provided such activity is not prohibited by this Code or by any
statute, regulation or departmental order. If employees plan to
engage in outside employment or business activity, they must give
prior written notice to their appointing authority of the planned
employment or activity." It also quotes Section 7.02: "Employees
are generally not required to submit written notice before engaging
in outside activities which are not considered to be employment or
business."
4 Gaw also contends that the District Court erred by not
"provid[ing]" the jury with what he terms a "state law
explication." But Gaw did not object to the jury instructions
that the District Court gave, and he makes no developed argument
on appeal as to how the demanding plain error standard that thus
applies could possibly be met. See United States v. Colon, 744
F.3d 752, 757 (1st Cir. 2014). In fact, his briefs do not make
clear what instructions should have been given to the jury that
was not. We thus reject the argument as waived. See Zannino, 895
F.2d at 17.
- 22 -
ruling that it did. Accordingly, we reject Gaw's evidentiary
challenge to the denial of his new trial motion.
B.
Gaw also contends that the District Court erred in not
granting him a new trial for an additional reason. He contends
that the District Court "did not weigh the preponderance and
exercise its discretion in denying the motion for a new trial."
But the record shows otherwise.
In rejecting the new trial motion, the District Court
wrote: "After careful consideration of the arguments in light of
the trial evidence, I conclude that the jury was correctly
instructed as to the law and its verdict was adequately supported
by evidence introduced at trial." Moreover, we will overturn the
denial of a motion for a new trial "predicated on the district
court's evaluation of the weight of the evidence," only if it is
"quite clear that the jury has reached a seriously erroneous
result." United States v. Rivera Rangel, 396 F.3d 476, 486 (1st
Cir. 2005) (internal quotation mark and citation omitted). That
is simply not the case here.
Our review of the evidence supporting Gaw's mail fraud
convictions shows that the jury did not reach a seriously erroneous
result. See id. And Gaw develops no argument as to why it was
seriously erroneous for the jury to convict him of a Hobbs Act
violation under a fear of economic loss theory of liability. Thus,
- 23 -
as with his sufficiency challenge, Gaw has waived any argument
that he was entitled to a new trial on his Hobbs Act conviction.
IV.
As should be clear by now, Gaw's final contention --
that his convictions must be vacated pursuant to the doctrine of
cumulative error -- cannot succeed. For while "[i]ndividual
errors, insufficient in themselves to necessitate a new trial, may
in the aggregate have a more debilitating effect," United States
v. Sepulveda, 15 F.3d 1161, 1195-96 (1st Cir. 1993), "cumulative-
error analysis is inappropriate when a party complains of the
cumulative effect of non-errors." United States v. Stokes, 124
F.3d 39, 43 (1st Cir. 1997). And, for the reasons already given,
that is the situation here. See United States v. Laureano-Pérez,
797 F.3d 45, 79 (1st Cir. 2015).
V.
For the foregoing reasons, Gaw's convictions are
affirmed.
- 24 -