United States v. Polos

17-418 (L)
United States v. Polos
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
23rd day of May, two thousand eighteen.
Present: ROSEMARY S. POOLER,
RICHARD C. WESLEY,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. 17-418-cr (L),
17-533-cr (con)
DAVID POLOS, GLEN GLOVER,
Defendants-Appellants.
_____________________________________________________
Appearing for Defendant-Appellant Polos: Kedar S. Bhatia, Greenberg Traurig, LLP (Marc L.
Mukasey, on the brief), New York, N.Y.
Appearing for Defendant-Appellant Glover: Harold J. Ruvoldt, Fleming Ruvoldt, PLLC (Cathy
A. Fleming, Megan R. Calme, on the brief), New
York, N.Y.
Appearing for Appellee: Paul M. Monteleoni, Assistant United States
Attorney (Martin S. Bell, Karl Metzner, Assistant
United States Attorneys, on the brief), for Geoffrey
S. Berman, United States Attorney for the Southern
District of New York, New York, N.Y.
Appeal from the United States District Court for the Southern District of New York (Gardephe,
J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
Defendants-Appellants David Polos and Glen Glover appeal from the February 14, 2017
judgment of the United States District Court for the Southern District of New York (Gardephe,
J.).1 The district court entered judgment after a jury found Polos and Glover guilty of lying on
the background questionnaires they were required to submit to maintain their security clearance
as employees of the Drug Enforcement Administration. The jury also found them guilty of
conspiring to lie on their forms. We assume the parties’ familiarity with the underlying facts,
procedural history, and specification of issues for review.
Polos and Glover were charged with making false statements in violation of 18 U.S.C. §
1001; they claim, however, that the questions were “fundamentally ambiguous,” such that a
conviction under Section 1001 is not possible. We review this question of law de novo. See
United States v. Lighte, 782 F.2d 367, 375 (2d Cir. 1986). In doing so, we assess challenges to
Section 1001 convictions using the same legal standards we apply to perjury convictions under
18 U.S.C. § 1621. See United States v. Mandanici, 729 F.2d 914, 921 (2d Cir. 1984) (citing
Bronston v. United States, 409 U.S. 352, 359-62 (1973)). A question is fundamentally
ambiguous when it “is not a phrase with a meaning about which men of ordinary intellect could
agree.” Lighte, 782 F.2d at 375. (quoting United States v. Lattimore, 127 F. Supp. 405, 410
(D.D.C. 1955)). When such a question is asked, the reviewing court may “override a jury
determination” because the question is essentially one of legal sufficiency. Id. Simply “because
the words used in the question have different meanings in different situations does not make
them fundamentally ambiguous.” Id.
Polos and Glover argue that the question regarding “employment activities” was
“fundamentally ambiguous.” Polos additionally argues that the question regarding “foreign
contacts” was fundamentally ambiguous. Both arguments fail as a matter of law.
While it is true that two individuals may have different understandings of the word
“employment,” the question at issue is very explicitly asking for a broad range of activities that
could reasonably be considered employment, even listing a range of examples. The broad
1
The judgment was amended on March 3, 2017. The defendants did not appeal the amended
judgment, but we have found that a notice of appeal for an original judgment may “ripen[] into
an effective notice of appeal from the amended judgment” where there is no government
objection or prejudice. See United States v. Hyde, 556 F. App’x 62, 63 n.1 (2d Cir. 2014)
(internal quotation marks omitted).
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language of the question is not fundamentally ambiguous; it is instead designed to capture all
employment activities in an applicant’s recent history. We have previously held that the word
“ever” is “not an imprecise word.” United States v. Kross, 14 F.3d 751, 756 (2d Cir. 1994). The
language of the question at issue here, asking for “all . . . employment activities,” is similarly not
imprecise—let alone “fundamentally ambiguous”—simply because it is expansive in its
meaning.
Polos was additionally convicted under Section 1001 for failing to include the name of
his foreign-national paramour under the section of the form requiring applicants to list “close
and/or continuing contact with foreign nationals within the last 7 years with whom you, your
spouse, or your cohabitant are bound by affection, influence, and/or obligation.” App’x at 1895.
Polos claims this question is also fundamentally ambiguous. Again, we disagree. Simply put, the
question is not on its face so vague as to suggest that individuals of ordinary intellect could not
agree on its meaning. See Lighte, 782 F.2d at 375.
Polos and Glover also argue there was insufficient evidence to convict them of the
Section 1001 crimes. We review Rule 29 motions alleging insufficient evidence under an
extremely deferential standard of review. Though our review is de novo, “we ask ‘whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.’” United States
v. Khalil, 857 F.3d 137,139 (2d Cir. 2017) (quoting Jackson v. Virginia, 443 U.S. 307, 319,
(1979)).
A rational juror was clearly entitled to find that Polos and Glover lied about their
employment activities when they failed to mention their work at Twins Plus Lounge (“Twins”),
in light of the substantial evidence presented by the government regarding their extensive work
there, including regularly covering night shifts to count the money and lock up, making
personnel decisions, and supervising discrete projects at Twins. Because the question asked
about “all” employment activities, it was reasonable for the jury to find that listing only one
employment activity when others remained unstated was an untrue answer. And notwithstanding
Polos’ assertions to the contrary, it is hard to imagine how a rational juror could have found that
a romantic relationship was not covered by the question regarding foreign contacts.
There was also sufficient evidence to convict both defendants on the additional
conspiracy charge under 18 U.S.C. § 371. We are obligated to “credit every inference that the
jury may have drawn in favor of the government.” United States v. Finley, 245 F.3d 199, 202 (2d
Cir. 2001) (quoting United States v. Gore, 154 F.3d 34, 40 (2d Cir. 1998)). Additionally, we
must be “careful to avoid usurping the role of the jury since Rule 29 does not provide the trial
court with an opportunity to substitute its own determination of the weight of the evidence and
the reasonable inferences to be drawn for the jury.” United States v. Cassese, 428 F.3d 92, 98 (2d
Cir. 2005) (internal quotation marks and ellipsis omitted). We have previously observed that “[a]
defendant challenging the sufficiency of the evidence bears a heavy burden.” United States v.
Kozeny, 667 F.3d 122, 139 (2d Cir. 2011). Conspiracy consists of three elements: “(1) an
agreement between two or more persons to commit an unlawful act; (2) knowingly engaging in
the conspiracy intending to commit those offenses that were the objects of the conspiracy; and
(3) commission of an ‘overt act’ by one or more members of the conspiracy in furtherance of the
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conspiracy.” United States v. Allen, 788 F.3d 61, 70 (2d Cir. 2015) (quoting United States v.
Reyes, 302 F.3d 48, 53 (2d Cir. 2002)). In a conspiracy case, “[t]he traditional deference
accorded to a jury’s verdict is especially important” because “a conspiracy by its very nature is a
secretive operation, and it is a rare case where all aspects of a conspiracy can be laid bare in
court with the precision of a surgeon’s scalpel.” United States v. Jackson, 335 F.3d 170, 180 (2d
Cir. 2003) (internal quotation marks omitted).
In the opinion denying the Rule 29 motion regarding the conspiracy counts, the district
court relied on three types of evidence presented by the government at trial: 1) evidence of both
defendants’ deep involvement in the management of the club and close communication with one
another regarding those efforts, 2) evidence of each defendant’s motive to conceal their work
from the DEA, and 3) Glover’s decision to list Polos as a reference on his security clearance
form. Given this evidence, a rational juror could have found that Polos and Glover conspired to
lie on the forms.
We have considered the remainder of Polos’ and Glover’s arguments and find them to be
without merit. Accordingly, the order of the district court hereby is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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