
USCA1 Opinion

	




          December 7, 1993                                [Not for Publication]                                [Not for Publication]                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 93-1625                                    UNITED STATES,                                      Appellee,                                          v.                                 STEPHEN T. CONNOLLY,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                [Hon. Douglas W. Hillman,* Senior U.S. District Judge]                                           __________________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                          Boudin and Stahl, Circuit Judges.                                            ______________                                 ____________________            Cornelius J.  Sullivan with whom Brenda  E. Walsh-Sullivan was  on            ______________________           _________________________        brief for appellant.            Michael J. Tuteur,  Assistant United States Attorney, with whom A.            _________________                                               __        John Pappalardo, United States Attorney was on brief for appellee.        _______________                                 ____________________                                 ____________________        _____________________        *Of the Western District of Michigan, sitting by designation.                      Per  Curiam.   In  this  appeal, defendant  Stephen                      ____________            Thomas  Connolly challenges his convictions on four counts of            a  five count  indictment  charging  him  with  making  false            statements to the United States,  in violation of 18 U.S.C.              1001.1   Finding each  of defendant's appellate  arguments to            be entirely unpersuasive, we affirm.                      This  case arises  out  of  defendant's failure  to            disclose  earned  income  while applying  for  and  receiving            worker's compensation benefits.  Defendant,  a postal service            letter  carrier,  suffered  a  work-related  back  injury  on            February  20, 1990.   Soon  thereafter, he  made a  claim for            partial disability  and in support  of it, filed a  series of            Department  of Labor  CA-8 forms.2   On  the four  CA-8 forms            which underpin the counts of conviction, defendant left blank            sections 9a  and  9b,  which directed  him  to  disclose  any            salaried  employment  and/or commission  and  self-employment            (regardless  of  whether  any  income  actually   was  earned            therefrom) in which  he was engaged during the  period he was            seeking  disability  compensation.   At  trial, however,  the                                            ____________________            1.  In  that portion of  the statute  relevant to  this case,            section 1001 provides:   "Whoever, in  any matter within  the            jurisdiction of any department or agency of the United States            knowingly and willfully . .  . makes any false, fictitious or            fraudulent statements or representations . . . shall be fined            not more than $10,000 or imprisoned not more than five years,            or both."            2.  The  CA-8  forms   all  carry  the  caption   "Claim  for            Continuing Compensation on Account of Disability."                                         -2-                                          2            government demonstrated that, from August 1990 through August            1991, defendant was employed as a delivery man for Aku-Aku, a            Boston   restaurant.3    Defendant   does  not  contest  this            employment and that he  should have noted it in  section 9 of            the four relevant CA-8 forms.                      In his poorly organized  appellate brief, defendant            makes  three arguments which  warrant brief discussion:   (1)            that the  evidence presented was insufficient for the jury to            have found that he acted "knowingly  and willfully"; (2) that            the omitted  information  was not  "material"  and  therefore            could not give rise to criminal liability under section 1001;            and   (3)   that  the   jury's   verdict  was   impermissibly            inconsistent.4  We address each claim in turn.                                            ____________________            3.  Although the government asserts that defendant maintained            his  employment with Aku-Aku through October 1991, nothing in            the  record indicates  that  defendant's employment  with the            restaurant  continued past  August  1991.   Regardless,  this            discrepancy has no impact upon our analysis.            4.  Defendant  alludes  to  the question  of  whether leaving            section  9 blank can constitute a statement or representation            under section 1001.   Given the fact that  defendant presents            us  with no argument and cites to no authority on this point,            and  given the  further fact  that  there is  authority which            supports  the proposition  that  leaving  a  form  blank  can            constitute a statement or representation  under section 1001,            see  United States  v. Mattox,  689 F.2d  531, 533  (5th Cir.            ___  _____________     ______            1982); United States  v. Irwin, 654 F.2d 671,  676 (10th Cir.                   _____________     _____            1981), cert. denied, 455 U.S. 1016 (1982), we will regard the                   ____________            argument as  waived.   See United  States v.  Innamorati, 996                                   ___ ______________     __________            F.2d 456, 468 (1st Cir.) (issues adverted to in a perfunctory            manner  deemed waived on  appeal), cert. denied,  62 U.S.L.W.                                               _____ ______            3320 (Nov. 1, 1993).                   Defendant   further   challenges   the   indictment   as            "multiplicitous."  He has, however, also waived this argument            by failing to raise it prior to trial.  See Fed. R.  Crim. P.                                                    ___                                         -3-                                          3                      1.  As  is always the case when  confronted with an            argument  that there was  insufficient evidence to  support a            conviction, we review the evidence "in a light most favorable            to the government and resolv[e] all credibility issues in its            favor."  E.g., United States v.  Fisher, 3 F.2d 456, 462 n.18                     ____  _____________     ______            (1st Cir. 1993).   Here, there was ample  evidence upon which            the jury could have rested its conclusion  that defendant, in            failing to complete  sections 9a and 9b of  the relevant CA-8            forms, acted "knowingly  and willfully."  Defendant  admitted            at trial that he probably read sections 9a and 9b of the CA-8            forms, and that he didn't  find the wording of these sections            ambiguous or confusing.  Moreover, there was evidence, in the            form of both  a sworn statement given by  defendant to postal            inspectors   investigating  his  case  and  in  the  form  of            testimony by one  of these postal inspectors,  that defendant            understood that he was obliged to report  income from outside            employment  on the  CA-8  forms.5   In light  of this,  it is            apparent that defendant's sufficiency argument must fail.                      2.  Defendant's  second argument, that  the omitted            information  was not  "material," does  not  require extended            discussion.   While  it is true  that "`[m]ateriality  of the                                            ____________________            12(b)(2) and Fed. R. Crim.  P. 12(f) (defenses and objections            based upon defects in the  indictment must be raised prior to            trial); see  also United States  v. Rodriguez, 858  F.2d 809,                    ___  ____ _____________     _________            816-17 (1st Cir. 1988).            5.  On  appeal, defendant does  not argue that  this evidence            was improperly admitted.                                         -4-                                          4            alleged  misstatements is  an essential  element of  offenses            defined by 18 U.S.C.    1001,'" United States v. Corsino, 812                                            _____________    _______            F.2d  26,  30  (1st  Cir.  1987)  (quoting  United  States v.                                                        ______________            Radetsky, 535  F.2d 556, 571  (10th Cir.), cert.  denied, 429            ________                                   _____  ______            U.S. 820 (1976)),  we have defined "material"  information as            merely  that which has "`a  natural tendency to influence, or            [is]  capable of  affecting  or  influencing, a  governmental            function,'" Corsino, 812 F.2d at 30 (quoting United States v.                        _______                          _____________            Markham, 537 F.2d 187, 196 (5th Cir. 1976), cert. denied, 429            _______                                     _____ ______            U.S. 1041 (1977)).  Thus,  statements can be material even if            they were  ignored, never relied  upon, or never read  by the            agency.  See Corsino, 812 F.2d at 31.                     ___ _______                      Here,  there  was  uncontroverted  trial  testimony            that, if defendant had disclosed his income from Aku-Aku, the            Department  of Labor  might  have  readjusted his  disability            compensation.   Furthermore,  there was  uncontroverted trial            testimony  that, if defendant had disclosed his delivery job,            the  Department of Labor  might have reevaluated  his medical            status.   Given this testimony, there  is no basis for  us to            upset  the  district  court's  finding, see  id.  at  31  n.3                                                    ___  ___            (materiality  under    section  1001  is a  question  for the            court,  and  not  the  jury, to  decide),  that  the  omitted            information was material.6                                            ____________________            6.  At oral argument, counsel for defendant indicated that he            was precluded  from cross-examining  the relevant  government            witnesses on  the issue  of materiality.   Our review  of the                                         -5-                                          5                      3.   Defendant's third and final argument, that the            jury's  verdict  was  impermissibly  inconsistent,  also   is            unavailing.  Even  if we were  to credit defendant's  dubious            assertion that the verdict here necessarily was inconsistent,            it is well settled that, in criminal cases, "[c]onsistency in            the verdict  is not necessary."   Dunn v. United  States, 284                                              ____    ______________            U.S. 390, 393  (1932); see also United States  v. Powell, 469                                   ___ ____ _____________     ______            U.S.  57, 63-69 (1984); United States v. Gonzalez-Torres, 980                                    _____________    _______________            F.2d 788, 791  (1st Cir.  1992).   Accordingly, we  summarily            reject defendant's request  for a new trial insofar  as it is            based upon his claim that the verdict here was inconsistent.                      Affirmed.                      Affirmed.                      _________                                            ____________________            record, however,  reveals that  defense counsel  was not,  in            fact, prevented from so inquiring.                                         -6-                                          6
