             United States Court of Appeals
                        For the First Circuit

No. 11-2100

                       UNITED STATES OF AMERICA,

                               Appellee,

                                  v.

                            RAMIE MARSTON,

                         Defendant, Appellant.


             APPEAL FROM THE UNITED STATES DISTRICT COURT

                   FOR THE DISTRICT OF NEW HAMPSHIRE

            [Hon. Paul J. Barbadoro,   U.S. District Judge]


                                Before

                       Boudin, Hawkins* and Dyk,

                            Circuit Judges.


     Behzad Mirhashem, Federal Defender Office, for appellant.
     Seth R. Aframe, Assistant United States Attorney, with whom
John P. Kacavas, United States Attorney, was on brief for appellee.



                          September 20, 2012




     *
         Of the Ninth Circuit, sitting by designation.
           BOUDIN,        Circuit    Judge.       Ramie      Marston     appeals    her

convictions, after a jury trial, for two counts of bankruptcy

fraud.     The    convictions       stemmed      from    a   pro   se    petition   for

bankruptcy that Marston filed in March 2009 under Chapter 7 of the

Bankruptcy Code, 11 U.S.C. §§ 701 et seq. (2006).                   The prosecution

alleged that Marston failed to include in the petition information

related to her past fraudulent use of credit cards that she

obtained under the names of two acquaintances--Susan Blake and

Kristy Kromer.

           A debtor who files such a bankruptcy petition has to

identify   "All Other Names used by the Debtor in the last 8 years

(include   married,       maiden,     and    trade      names)."        Marston   wrote

"Marston, Robbi"          in answer to that question, but she did not

mention the names of Susan Blake or Kristy Kromer.                  She then signed

under penalty of perjury that the information she provided in the

petition was "true and correct."

           A     debtor    must     also    identify     creditors       of   different

classes in separate schedules.              In Schedule E, which asks for all

creditors with unsecured priority claims, Marston listed Susan

Blake as holding a $50,000 claim incurred on February 3, 2009, of

which $46,000 was entitled to priority.                 In Schedule F, which asks

for all creditors holding unsecured nonpriority claims, Marston

listed Susan Blake as holding a disputed $50,000 claim incurred on

September 22, 2007.         Marston made no reference to the credit card


                                           -2-
issuers that had issued the cards in Susan Blake's name.     Again,

Marston's signature under penalty of perjury represented that the

information in the schedules was "true and correct to the best of

my knowledge, information, and belief."

            Eventually, the petition was dismissed on Marston's own

motion after the United States Trustee challenged her right to a

discharge. On April 27, 2011, Marston was charged with five counts

of bankruptcy fraud, 18 U.S.C. § 152, each count alleging that she

had made a false statement in her application or schedule.   The two

counts ultimately submitted to the jury alleged as follows:

            -- Count One: that Marston had used the names
            Kristy Kromer and Susan Blake but knowingly
            and fraudulently failed to disclose this as
            required in the petition.

            -- Court Four: that Marston knowingly and
            fraudulently failed and refused to disclose
            debts to Bank of America, BMW Bank of North
            America, and American Express.

            The government's theory as to the first count was that

Marston had used the names of her two friends, Blake and Kromer, in

credit card applications without their approval in order to secure

cards with which Marston then made unauthorized purchases in their

names; as to the fourth count, its theory was that the credit card

issuers had claims against Marston for purchases made with those

accounts.     The jury convicted on both counts and Marston was

ultimately sentenced to concurrent terms of 37 months imprisonment

and three years supervised release for each count, as well as a


                                 -3-
statutory $100 special assessment imposed separately for each

count.

          Marston now appeals, contending that the evidence was

insufficient for a reasonable jury to convict on either count.         In

the course of her Rule 29 motion at trial, Marston made a general

objection to the adequacy of the evidence and also pointed to

certain specific concerns about the evidence of materiality and

mens rea.1    Following the Rule 29 motion, the district court

conducted a detailed analysis of those concerns as well as of the

evidence of falsity, and then denied the motion.

          A    false   oath   conviction   under   18   U.S.C.   § 152(2)

requires the government to prove (1) the existence of a bankruptcy

proceeding; (2) that the defendant made a false statement in that

proceeding under penalty of perjury; (3) that the false statement

concerned a material fact; and (4) that the defendant made the

false statement knowingly and fraudulently.             United States v.

Cutter, 313 F.3d 1, 4 n.4 (1st Cir. 2002).         See also Metheany v.

United States, 390 F.2d 559, 561 (9th Cir.), cert. denied, 393 U.S.

824 (1968) (same elements restated under five headings).

          Although Marston now attacks the adequacy of the evidence

in several different ways, she does not deny that she fraudulently



     1
      Marston put on no case of her own and so no issue arises as
to the need to renew the motion after the close of all the
evidence. See United States v. Hernández, 218 F.3d 58, 63 n.3 (1st
Cir. 2000), cert. denied, 531 U.S. 1103 (2001).

                                  -4-
secured   credit       cards   by   listing    her   friends,   without      their

permission, as the applicants or co-applicants and that she made

purchases with those accounts.           The government offered substantial

evidence of the unauthorized applications, issuance of the cards,

and Marston's use of them to make purchases; and we review the

evidence in the light most favorable to the government.                     United

States v. Troy, 583 F.3d 20, 24 (1st Cir. 2009).

            Marston apparently met Kristy Kromer while both women

were working at an insurance agency in Nevada.               Kromer thereafter

discovered, among other things, that a Chase Visa card had been

taken out in her name with an address corresponding to Marston's

residence in Henderson, Nevada and that a Certegy loan credit card

had been issued under her name with Marston listed as the co-

borrower.       A later search of Marston's home in New Hampshire

revealed that several other credit cards had also been opened in

Kromer's name but mailed to Marston's addresses in Nevada and New

Hampshire.

            The evidence as to Susan Blake is more circumscribed

because the government, instead of presenting a full scale case,

accepted a stipulation in which Marston admitted inter alia that

she had possessed credit cards bearing the names of both Marston

and   Blake,    that    she    made   purchases      with   those   cards   never

authorized by Blake, and that the "fraudulent liabilities incurred

in    Blake's   name     by    Marston   totaled     approximately    $61,545."


                                         -5-
Specific credit card issuers were identified in the stipulation,

including the ones named in the indictment on Count Four.

            Although appellate review of preserved sufficiency claims

is de novo, albeit taking the evidence in the light most favorable

to the verdict, the government argues that several of Marston's

objections were not specifically identified in the Rule 29 motion

so   that   their   review   should   be    only   for   "'clear    and   gross'

injustice."    United States v. Upham, 168 F.3d 532, 537 (1st Cir.),

cert. denied, 527 U.S. 1011 (1999) (quoting United States v.

Greenleaf, 692 F.2d 182, 185 (1st Cir. 1982)).                 The law as to

preserving     sufficiency     claims       differs      somewhat    from    the

requirements for most objections.

            In most circuits, the rule is that a general challenge to

the adequacy of the evidence preserves for de novo review "the full

range of challenges, whether stated or unstated," United States v.

Hammoude, 51 F.3d 288, 291 (D.C. Cir.), cert. denied, 515 U.S. 1128

(1995),2 and we have suggested that the same rule applies in this

circuit as well.     See Slater v. United States 562 F.2d 58, 59 (1st

Cir. 1976).     By contrast, when a defendant chooses only to give

specific grounds for a Rule 29 motion, all grounds not specified

are considered waived and are reviewed under Upham's less forgiving


      2
      See also United States v. Chance, 306 F.3d 356, 369 (6th Cir.
2002); United States v. Hoy, 137 F.3d 726, 729 (2d Cir.), cert.
denied, 525 U.S. 850 (1998); 2A Wright & Henning, Federal Practice
and Procedure § 466, at 356 n.2 (2000). But see United States v.
McDowell, 498 F.3d 308, 312 (5th Cir. 2007).

                                      -6-
"clear and gross injustice" standard.    See United States v. Pena-

Lora, 225 F.3d 17, 26 n.5 (1st Cir. 2000), cert. denied, 537 U.S.

877 (2002); United States v. Belardo-Quinones, 71 F.3d 941, 945

(1st Cir. 1995).

          Marston's Rule 29 motion could be viewed as straddling

both of these categories.   Her counsel began with what taken alone

is purely a general objection to the government's evidence:

          Pursuant to Rule 29 of the Federal Rules of
          Criminal Procedure, I respectively move that
          Counts 1, 2, 3 and 4 be subjected to a
          directed verdict of acquittal on the grounds
          that the government has failed to meet its
          constitutional obligation to prove each of the
          essential elements beyond a reasonable doubt.

But the situation is slightly muddied because Marston's counsel

continued with specific objections relating both to scienter and

materiality   without   making   clear   that   these   were   merely

illustrative and without mentioning the other attacks now made on

appeal:

          The essential element that I submit that they
          have not proved beyond a reasonable doubt, the
          one I want to focus on, is the obligation that
          they have first to show that my client's
          conduct   as alleged in each of those four
          counts was knowing and fraudulent, and
          secondly, their obligation to prove that the
          omissions...in my client's bankruptcy petition
          were material...and for those reasons I move
          for directed verdict of acquittal.

Again, standing alone, this language seems to express specific

objections to the government's evidence that would constitute a

waiver of all unspecified challenges.

                                 -7-
             There is good reason in case of doubt to treat an

ambiguous motion like this one as "general" in the sense that it

preserves all grounds.        It is helpful to the trial judge to have

specific concerns explained even where a general motion is made;

and to penalize the giving of examples, which might be understood

as abandoning all other grounds, discourages defense counsel from

doing so and also creates a trap for the unwary defense lawyer.

The tendency would be to encourage general objections without

examples.

             This situation arises only because general objections are

permissible on Rule 29 motions.                 Ordinarily, the law calls on

counsel to make specific objections which state the grounds for or

scope   of    the      objection,    e.g.,      objections      to   evidence   or

instructions, in order to aid the trial judge and avoid unnecessary

retrials.    But the practice of allowing general Rule 29 objections

is well accepted and the retrial problem does not arise if the

motion is granted.

             As   it    happens,    the    judge    in   this    case   seemingly

understood Marston's challenge as a general one.                 After Marston's

counsel announced his Rule 29 motion in the language quoted above,

the judge replied:

             I guess I have a more fundamental question,
             which is have they proved even...falsity to
             the alleged portions of the bankruptcy
             filings.   So let's start with that and then
             let's move on to -- what I hear you saying is
             I'm challenging mens rea and materiality.

                                          -8-
          Before you even get to mens rea and
          materiality you have to demonstrate falsity,
          and I want to be clear as to what counts
          falsity has been sufficiently demonstrated and
          then go on and ask whether there's evidence of
          materiality and mens rea.

He then went on to examine the sufficiency of the government's

evidence as to each element of the four remaining counts. That the

trial judge considered such a ground would alone justify review,

"as if such a motion had been made."   United States v. Moynagh, 566

F.2d 799, 802 (1st Cir. 1977), abrogated on other grounds by United

States v. Nieves-Burgos, 62 F.3d 431, 436 (1st Cir. 1995).

          With respect to Count One, Marston's attack is several-

fold: even positing that Marston had fraudulently applied for and

also used credit cards in the names of her two friends, she argues

that (1) this did not call for the listing of such names as ones

"used by" Marston; (2) the omissions were immaterial since they

would not have lead to discovery of assets relevant in bankruptcy;

and   (3) the evidence of fraudulent intent in omitting the names

was insufficient.

          The first objection rests on the view that the language

of the petition did not call for Marston to reveal other people's

names that she had entered on fraudulent credit card applications

and then presented as her own when using the cards she received or,

at least, that the question in the bankruptcy application was

wholly unclear as to whether such a deployment of another's name

was "use."   In our view, both branches of this attack fail: the

                               -9-
language did call for Blake and Kromer's names and it was in no way

fatally ambiguous.

          True, "use" is a word that has various layers of meaning,

but certainly an individual literally "uses" another person's name

by entering it on a credit card application or presenting it as

one's own in making purchases.    This is not so different than using

another person's name as a trade name--say, the deceased founder of

one's company--save that this "use" is fraudulent and that one

permissible.    The   parenthetical's    reference   to   trade   names,

however, is neither necessary to our conclusion nor helpful to

Marston although she urges the contrary.

          Marston    argues   that the   parenthetical    references to

"married, maiden, and trade names" confine the meaning of "use"

under the ejusdem generis canon; but the canon is weakest, and only

dubiously applicable, where as here the general term comes first.

Compare American Sur. Co. of N.Y. v. Marotta, 287 U.S. 513, 517

(1933) with United States v. McKelvey, 203 F.3d 66, 71 (1st Cir.

2000). Indeed, as already noted, the more specific examples in the

question can be used effectively against Marston herself by way of

analogy to trade names.

          Neither is Marston's proposed interpretation saved by her

argument that the petition only asked for names "used by the Debtor

in the last 8 years," and that it therefore could be read only to

include the names under which she might have previously filed for


                                 -10-
bankruptcy, as a means to enforce the prohibition on successive

discharges.   See 11 U.S.C. § 727(a)(8).   Obviously the requirement

for listing alias names has various uses in bankruptcy, including

the tracing of assets obtained or concealed under other names.

Anyway, the question literally called for her to disclose Blake and

Kromer's names without limiting it to names used in bankruptcy

petitions.

          There is an outer limit to confusing or misleading

questions and courts do regard some questions as so inherently

ambiguous as to defeat a false statement prosecution without regard

to the defendant's state of mind.     One formulation distinguishes

ordinary ambiguity from "fundamental ambiguity," the latter barring

conviction outright;3 we have also said a conviction is improper if

the answer given is literally correct even if it could be regarded

as misleading.   United States v. Rowe, 144 F.3d 15, 21 (1st Cir.

1998).

          The answer here was not literally correct nor was the

question fundamentally ambiguous.     This follows from the commonly

understood breadth of the term "use," only slightly narrower than

words like "do" or "make," combined with the fact that using the

name of another on a credit card application or making purchases


     3
      United States v. Mubayyid, 658    F.3d 35, 61 (1st Cir. 2011),
cert. denied, 132 S.Ct. 2378 (2012);    United States v. Boskic, 545
F.3d 69, 89-90 (1st Cir. 2008), cert.   denied, 555 U.S. 1175 (2009);
United States v. Richardson, 421 F.3d   17, 33 (1st Cir. 2005), cert.
denied, 547 U.S. 1162 (2006).

                               -11-
with the resulting credit card is plainly portraying oneself as

that other person.       True, even a reasonably clear question can be

innocently misunderstood; but no conviction for making a false

statement is complete without a finding of scienter.

          The remaining wrinkle is, as Marston points out, that

some of the cards bore her own name in addition to those of Kromer

or Blake, but this also is of no help to her.      Whether or not one

could distinguish dubitante between using another's name without

more and using it fraudulently along with one's own, the evidence

includes correspondence seized from Marston's home that clearly

supported the inference that at least some of the cards Marston

secured and used bore only the names "Kristy Kromer" or "Susan

Blake."

          Marston also suggests that her answer, true or false, was

immaterial.    As the bankruptcy trustee in this case explained at

trial, finding all names used by the debtor in any capacity in the

last eight years serves as a tool for locating additional assets to

distribute    to   the   debtor's   creditors.   That   the   particular

appropriation of Kristy Kromer and Susan Blake's names here would

have lead rather to more claims against the estate than to more

assets matters not.      United States v. Edgar, 82 F.3d 499, 510 (1st

Cir.), cert. denied, 519 U.S. 870 (1996); United States v. Grant,

971 F.2d 799, 809 n.18 (1st Cir. 1992).




                                    -12-
           Finally, the evidence was sufficient for the jury to

conclude that Marston's failure to reveal the aliases she had used

was done with         the    kind of dishonest        or   fraudulent     awareness

required by the statute.                 The language reasonably called for

disclosure of Blake and Kromer's names as ones previously assumed

by   Marston   in     credit     card    applications,      and   Marston       had   an

affirmative motive to falsify her answers by omitting their names.

Cf. United States v. Shadduck, 112 F.3d 523, 525-27 (1st Cir.

1997).

           The first point is covered by our earlier discussion.

The second is obvious: to reveal her use of the names would have

pointed directly to Marston as the perpetrator of credit card

fraud.   She responds that investigators were already looking into

the matter; but it is one thing to be subject to suspicion and

another to make admissions that would go far toward conviction. Of

course, Marston did not have to make any such admissions; but once

she chose to file for bankruptcy she could not then represent under

penalty of perjury that she had accurately answered the questions

on her petition.

           Turning          to   Count    Four,   Marston    contends       that      no

reasonable     jury    could      have    concluded   that   she   made     a    false

statement by omitting the debts she had incurred under Blake's name

to Bank of America, BMW Bank of North America, and American

Express, because it was an "objectively reasonable interpretation"


                                          -13-
of the bankruptcy form that it did not call on her to include that

information.   Rowe, 144 F.3d at 21.        The section of the petition at

issue read:

              "SCHEDULE F - CREDITORS HOLDING UNSECURED
            NONPRIORITY CLAIMS...State the name, mailing
            address, including zip code, and last four
            digits of any account number, of all entities
            holding unsecured claims without priority
            against the debtor or the property of the
            debtor, as of the date of filing of the
            petition."

            Marston's   stipulation         conceded   that    "[f]raudulent

liabilities incurred in Blake's name totaled approximately $61,545"

and that this was corroborated by records of the named creditors.

But Marston    argues   to   us    that   she    reasonably   understood   the

question to exclude claims against her by the creditors identified

in the count because the debts she ran up on the credit cards

created claims against Blake, not against her.

            It is not clear that the banks held claims against Blake

if the cards were obtained solely by Marston's fraud, but that

hardly matters. As a result of Marston's actions, the banks almost

certainly   held   contract,      fraud   or    restitution   claims   against

Marston for merchandise or services that she secured through her

use of the cards that she had procured using Blake's name.                 See

generally   Restatement (Second) of Torts § 525 (1977); Restatement

(Third) of Restitution & Unjust Enrichment § 41 (2011).

            The term "claim" easily comprehends claims of the issuers

against Marston.    The bankruptcy statute defines a            "claim" as a

                                     -14-
"right      to    payment,    whether   or     not    such    right    is     reduced    to

judgment, liquidated, unliquidated, fixed, contingent, matured,

unmatured, disputed, undisputed, legal, equitable, secured, or

unsecured."         11 U.S.C. § 101(5)(A).       See also Johnson v. Home State

Bank, 501 U.S. 78, 83 (1991) ("Congress intended by this language

to adopt the broadest available definition of 'claim.'").4

                 The problem for the government on Count Four has nothing

to   do     with    ambiguity     nor   with    the    other       elements    (assuming

falsity).        If there were falsity, that and her motive to lie would

permit an inference of scienter; and the materiality requirement is

easily satisfied: a listing of claims can identify debts including

funds supplied to the debtor, which in turn may lead the trustee or

creditors to savings or other assets. And Marston does not dispute

that       the   cards     were   fraudulently       used    for    purchases    and     so

presumptively created claims against her by the issuing banks.

                 Instead, the missing element is proof that at the time

that the bankruptcy petition was filed, there were still extant

claims against Marston. The stipulation quoted above was enough to

prove beyond a reasonable doubt that claims against Marston had

arisen       when    the    unauthorized       purchases      were    made;     but     the



       4
      Although both the statute and the bankruptcy form use the
word "claim," the indictment in this case used the term "debt"
which, if applied to an unliquidated fraud claim, must be an
unusual usage; but presumably the drafter assumed that Marston, if
she ordered goods using a false name, had contracted a debt for
which she was liable.

                                         -15-
prosecutor accepted a stipulation that nowhere said that these

claims    remained       unpaid   at   the   time    Marston    filled    out    the

bankruptcy forms.

               The stipulation, it appears, was drafted by defense

counsel and gives every evidence of soft-pedaling concessions and

confusing matters; the district judge cautioned the prosecutor

against accepting it.          Quite apart from the failure to make clear

that     the    bank     claims    endured,    the    stipulation        seems    so

disadvantageous to the prosecutor as to remain a mystery, although

there are sometimes practical reasons for trial-counsel choices

that remain invisible to the appellate court.

               Likely    the   stipulation's    failure    to    nail    down    the

duration of the claims was not a deliberate tactic by defense

counsel, for he argued in his closing to the jury that the amounts

that the government claimed to be owed to the card issuers were in

fact expressly disclosed on the petition as debts Marston herself

owed to Blake.          That closing argument more or less suggests that

Marston's disclosure as to Blake comprehended whatever was owed to

the card issuers.

               The latter claim could easily have been rejected by the

jury: the amounts owed to Blake directly did not correspond to what

was owed to the issuers and there was evidence of other debts owed

by Marston to Blake to which the listings on Marston's schedules

better corresponded.           But it is pretty clear that defense counsel


                                       -16-
made no effort to argue either on the Rule 29 motion or to the jury

the defect now sought to be raised on appeal, namely, that the

debts were not shown to persist at the time the bankruptcy petition

was filed.

          But, for reasons already explained, a general objection

under Rule 29 preserves just such previously unmentioned defects.

Contrary to the government's rescue effort on appeal, there is no

way to read the stipulation to say that the claims remained

outstanding at the time Marston filed her bankruptcy petition. And

while we would hardly expect Marston to have paid those claims in

the interim (and in fact we now know that she did not5), the

government bore the burden of proof at trial and it ultimately

failed to establish the element of falsity.

          A slightly better argument, advanced as an alternative by

the government, is that defense counsel in closing conceded that

the claims remained unpaid.   In a civil case, counsel's concession

of a factual point in argument is usually sufficient without any

need for formal proof, e.g., Butynski v. Springfield Terminal R.

Co., 592 F.3d 272, 277 (1st Cir. 2010); and several circuits have

applied the same rule to criminal cases.   See, e.g., United States

v. Rusan, 460 F.3d 989, 993-94 (8th Cir. 2006), cert. denied, 549


     5
      Shortly after filing for bankruptcy, Marston was convicted of
identity, social security, and access device fraud for illegally
securing the credit cards; the judgment of conviction included
restitution orders in favor of the card issuers, but the jury in
this case had no knowledge of that proceeding.

                                -17-
U.S. 1312 (2007).     But while we might well follow this course

ourselves, a requisite would be a reasonably clear concession.

           Defense counsel did not contest in his closing the

government's implicit assumption that the card issuers' claims

against Marston    were   outstanding      at    the   time   she   signed   the

bankruptcy forms; but this is not an explicit concession. Whatever

else one makes of defense counsel's gambit of conflating the

disclosed debts to Blake with any possible card issuer claims

against Marston, it simply does not address the question of whether

the   issuers'   claims   existed    at    the    time   Marston    filed    for

bankruptcy.

           The result is that Count Four fails for lack of proof and

the judgment on Count Four is reversed.            The conviction on Count

One is affirmed; the sentence on Count One was not independently

challenged on appeal but the district court has leave to re-

sentence on Count One if the present sentence on that count was in

any way affected by the conviction on Count Four.

           It is so ordered.




                                    -18-
