
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 94-1342                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                PHILIP G. ARCADIPANE,                                Defendant, Appellant.                              __________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Rya W. Zobel, U.S. District Judge]                                           ___________________                              __________________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                              __________________________               Willie  J. Davis, with whom  Davis, Robinson &  White was on               ________________             ________________________          brief, for appellant.               Robert E. Richardson, Assistant United States Attorney, with               ____________________          whom Donald K. Stern,  United States Attorney, was on  brief, for               _______________          appellee.                              _________________________                                  November 23, 1994                              _________________________                     SELYA,  Circuit Judge.   Defendant-appellant  Philip G.                    SELYA,  Circuit Judge.                            _____________          Arcadipane  appeals his  conviction  on multiple  counts of  mail          fraud and making  false statements.   In the  last analysis,  the          plethora of  arguments that  he advances, though  ably presented,          signify nothing of consequence.  Accordingly, we affirm.          I.  BACKGROUND          I.  BACKGROUND                    In April of 1988,  while working for the  United States          Postal  Service,  appellant  suffered  a  job-related psychiatric          disability.   He eventually filed  a claim for  benefits with the          Office  of Workers'  Compensation Programs  (OWCP) of  the United          States  Department  of  Labor  (DOL).    He  received  his  first          disability check  in February of  1989, retired  from the  Postal          Service eight  months later, and continued  to receive disability          payments thereafter.                    Prior  to the  onset of  his disability,  appellant had          been repairing firearms  and reloading  shell casings  as a  for-          profit  sideline.  In  connection with its  initial processing of          the  disability  claim,  OWCP  wrote  to  him  in  June  of  1988          requesting   information    about   extra-curricular   employment          activities.  After  consulting with counsel,  appellant explained          that his sideline business  had been reorganized and that  he was          no longer gainfully  employed in  it.1   OWCP did  not press  the          point at that time.                    In 1990,  1991, and 1992, OWCP  requested appellant, in                                        ____________________               1Appellant  informed  OWCP  that  his  wife  now  owned  the          business; that it was not operating profitably; and that, when he          assisted her at all, he did so without remuneration.                                          2          conjunction with his ongoing receipt of compensation benefits, to          complete  Form 1032.   This  is a  standardized form  designed to          obtain  historical  information  regarding   benefit  recipients'          income from sources such as employment and self-employment.  OWCP          uses the data to compute benefit levels.                    On September  7,  1990,  after  again  consulting  with          counsel, appellant submitted a  completed Form 1032 to OWCP.   He          made similar  submissions on  September 7, 1991,  and August  20,          1992.2   Each time he stated  that he "had not  been employed for          the  previous twelve  months," and that  he "had  been unemployed          during the previous fifteen months."                    In 1992,  DOL launched an  investigation of appellant's          business activities.  In  May, an  agent  posing as a  purchasing          officer for an out-of-state police department contacted appellant          and,   after  some   negotiations,  ordered   20,000  rounds   of          ammunition.  The  "purchaser" arranged  to pick up  the order  at          appellant's  home.  Upon his  arrival, however, he  whipped out a          search warrant instead of a requisition, combed the premises, and          seized various incriminating  business records (including  income          tax returns).                    Soon thereafter,  a federal  grand jury returned  a 31-          count indictment against appellant.   Twenty-eight counts charged          mail fraud in violation of 18 U.S.C.   1341 (1988), on the theory          that appellant  had wrongfully  obtained money through  the mails                                        ____________________               2Each  form, by its terms,  covered "the 12  months prior to          the date of [the benefit recipient's] completion and signature."                                          3          (specifically,   28  monthly   disability  checks)   by  "falsely          [claiming]  that  [he]  was  not   employed  and  that  [he]  was          unemployed."   The remaining three counts  charged appellant with          making false statements (one for each Form 1032 that he submitted          to OWCP) to the effect that he was "unemployed".                    A  jury convicted  appellant  on all  counts, and  OWCP          suspended benefit payments.  This appeal ensued.          II.  ANALYSIS          II.  ANALYSIS                    Appellant has advanced several asseverations in support          of his appeal.  We deal with them seriatim.                                            ________                                A.  OWCP's Authority.                                A.  OWCP's Authority.                                    ________________                    Appellant  maintains  that  his convictions  under  the          false  statement  statute  cannot  stand.3    He  constructs  the          following  syllogism:  (1)  inasmuch as  he was  totally disabled          during the time frame covered by the indictment, his situation is          controlled by 5 U.S.C.   8105(a) (which provides in relevant part          that,  when an employee's "disability is total, the United States          shall  pay the  employee during  the disability  monthly monetary                                        ____________________               3The false statement statute provides:                    Whoever,   in   any    matter   within    the                    jurisdiction of  any department or  agency of                    the  United  States  knowingly and  willfully                    falsifies,  conceals  or  covers  up  by  any                    trick, scheme, or device a material fact,  or                    makes  any  false,  fictitious or  fraudulent                    statements  or  representations, or  makes or                    uses  any false  writing or  document knowing                    the same  to contain any false, fictitious or                    fraudulent  statement  or  entry,   shall  be                    [punished as provided].          18 U.S.C.   1001 (1988).                                          4          compensation"), (2) section 8105  does not specifically authorize          DOL to prod benefit recipients to report earnings from employment          and self-employment;4  and, therefore, (3) the  government had no          authority  to  request  the   information  that  it  now  asserts          appellant  falsely supplied.   He adds, moreover,  that because 5          U.S.C.    8105 did  not authorize  the  solicitation of  earnings          information, he had no  way of knowing that section  1001 applied          to  Form 1032,  and  thus  did  not  receive  fair  warning  that          inscribing  false statements on the  form could subject  him to a          federal criminal prosecution.   We  do not find  either facet  of          this argument persuasive.                    1.   Lack  of  Authority.   It seems  self-evident that                    1.   Lack  of  Authority.                         ___________________          section 1001  is intended  to promote  the smooth functioning  of          government  agencies   and  the  expeditious  processing  of  the          government's business  by ensuring that  those who deal  with the          government   furnish  information   on   which   the   government          confidently may rely.  To this end, section 1001 in and of itself                                                           __ ___ __ ______          constitutes a  blanket proscription  against the making  of false          statements  to  federal  agencies.    Thus,  while  section  1001          prohibits falsification in connection with documents that persons                                        ____________________               4Appellant  contrasts section  8105  with  a sister  statute          which specifically provides that:                         The  Secretary  of Labor  may  require a                    partially  disabled  employee  to report  his                    earnings from  employment or self-employment,                    by affidavit or otherwise, in the  manner and                    at the times the Secretary specifies . . . .          5 U.S.C.   8106(b) (1988).                                          5          are  required by  law  to  file  with  agencies  of  the  federal          government,  see, e.g., United States v. Dale, 991 F.2d 819, 828-                       ___  ____  _____________    ____          29  (D.C.  Cir.)  (involving   a  fraudulent  application  for  a          Department of  Defense security clearance), cert.  denied, 114 S.                                                      _____  ______          Ct. 286, 650 (1993), its prohibitory sweep is not limited to such          documents.   The  statute  equally forbids  falsification of  any          other  statement,  whether or  not  legally required,  made  to a          federal agency.   See United States  v. Meuli, 8 F.3d  1481, 1485                            ___ _____________     _____          (10th Cir.  1993) (explaining that section  1001 "prohibits false          statements whether or not another law requires the information be          provided"), cert. denied,  114 S. Ct. 1403  (1994); United States                      _____ ______                            _____________          v. Kappes, 936  F.2d 227,  231 (6th Cir.  1991) (explaining  that             ______          section  1001  itself  provides  "clear  statutory  authority  to          justify holding  [persons] to the reporting requirement"); United                                                                     ______          States v. Olson, 751 F.2d 1126, 1127 (9th Cir. 1985) (per curiam)          ______    _____          (holding that  section 1001's prohibition of  false statements is          not restricted  to  those that  are  submitted pursuant  to  some          (other)  specific statutory requirement);  see also United States                                                     ___ ____ _____________          v. Corsino, 812 F.2d 26, 31 (1st Cir. 1987) (holding sub silentio             _______                                           ___ ________          to same effect).                    Applying  this  rationale  to  the  case  at  hand,  we          conclude that the  "lack of  authority" issue is  a red  herring.          Under section 1001, the government does not need to show that  it          had   some   particular  extrinsic   authority  to   request  the          information falsely provided by  the defendant.     Consequently,          whether  DOL or OWCP had the specific statutory authority to seek                                          6          employment and self-employment data  from appellant is irrelevant          to the validity of the convictions under review.                    2.   Fair  Warning.   The second  prong  of appellant's                    2.   Fair  Warning.                         _____________          assignment of error posits that, because the benefits he received          under 5  U.S.C.   8105  were not conditioned by  statute upon his          truthful completion of Form 1032, he did not receive fair warning          that inscribing false statements on that form would expose him to          criminal charges.  Appellant's protest lacks force.                    To  be  sure,  the   Due  Process  Clause  forbids  the          government from depriving an individual  of his liberty by reason          of  specified  conduct unless  he is  given  fair warning  of the          consequences  of that conduct.   See Marks v.  United States, 430                                           ___ _____     _____________          U.S. 188,  191 (1977); United States v. Gallo, 20 F.3d 7, 12 (1st                                 _____________    _____          Cir. 1994).  Fair  warning thus requires that a  criminal statute          be  sufficiently  definite  to   apprise  a  person  of  ordinary          intelligence that his  anticipated behavior  will transgress  the          law.  See United States v.  Barker Steel Co., 985 F.2d 1123, 1129                ___ _____________     ________________          (1st Cir. 1993).   Fair warning, however, does not  mean that the          first bite  is free, nor does the  doctrine demand an explicit or          personalized  warning.    Although  a  prospective  defendant  is          entitled to notice of what behavior will be deemed to infract the          criminal  code,   the  fair  warning  doctrine   neither  excuses          professed  ignorance  of   the  law  nor  encourages   deliberate          blindness  to  the obvious  consequences of  one's actions.   See                                                                        ___          Gallo, 20 F.3d at 12.          _____                                          7                    In this  instance, appellant had ample  warning because          section 1001 is  clear on its  face.  The  Court held as  much in          United States v. Yermian, 468 U.S. 63 (1984), a case in which the          _____________    _______          defendant  made  false statements  on  a  form  provided  by  his          employer.   The  employer,  unbeknownst to  the defendant,  later          forwarded  the form to the  Department of Defense.   In affirming          the  defendant's conviction,  the  Court held  that section  1001          "unambiguously dispenses with any requirement that the Government          also  prove that  [the false]  statements were  made with  actual          knowledge of federal agency jurisdiction."  Id. at 69  (citations                                                      ___          omitted).   Under  Yermian, the  plain language  of section  1001                             _______          constitutes a constitutionally sufficient warning.                    We think that  the instant case  is even stronger  than          Yermian.  Here, appellant  knew that Form 1032 originated  with a          _______          government  agency.   He  had every  reason  to believe  that the          continued receipt of government funds   his disability benefits            depended,  at least in part, on  his responses.  Form 1032 itself          placed  appellant  on  notice,  through  a warning  conspicuously          printed  on the front page of the  form, that he must make honest          answers  to the questions, regardless of who would later read the          completed  document.  In short, appellant's claim that he was not          adequately forewarned rings surpassingly hollow.                                    B.  Variance.                                    B.  Variance.                                        ________                    The  indictment  charged,  inter alia,  that  appellant                                               _____ ____          falsely  stated on Form 1032 that he was "unemployed."  Appellant          complains that the prosecutor told the jury that it could convict                                          8          not only if it found appellant to have been "employed," but  also          if  it  found  appellant  to   have  been  "self-employed."    In          appellant's view, this is a fatal variance between the indictment          and  the  proof at  trial.   We  think  that the  reports  of the          indictment's demise are greatly exaggerated.                    Appellant's  contention suffers from two vices.  First,          he did not  raise it in  the district court    appellant did  not          object  to  the  introduction  of evidence  regarding  his  self-          employment, and  never presented the alleged  discrepancy between          the charge  and the  evidence to  the trial  judge  by motion  or          otherwise   and he has, therefore, waived  the point.  See, e.g.,                                                                 ___  ____          United States v. Slade, 980 F.2d 27, 31 (1st Cir. 1992)  (holding          _____________    _____          that  "a party is not at liberty to articulate specific arguments          for the first time on appeal simply because the general issue was          before the  district court"); United States v. Figueroa, 818 F.2d                                        _____________    ________          1020, 1025 (1st Cir. 1987) (similar).                     In   addition   to   being    procedurally   defaulted,          appellant's contention  is  substantively wanting.    A  variance          occurs when the proof  at trial portrays a scenario  that differs          materially  from the  scenario  limned in  the  indictment.   See                                                                        ___          United  States  v. Vavlitis,  9 F.3d  206,  210 (1st  Cir. 1993);          ______________     ________          United  States v. Moran, 984 F.2d 1299,  1304 (1st Cir. 1993).  A          ______________    _____          variance requires reversal  of a  conviction only if  it is  both          material and  prejudicial, for example,  if the variance  works a          substantial  interference  with  the  defendant's  right   to  be          informed  of the charges laid  at his doorstep.   See Vavlitis, 9                                                            ___ ________                                          9          F.3d at 210; United States v. Sutherland, 929 F.2d 765, 772  (1st                       _____________    __________          Cir.), cert. denied,  112 S.  Ct. 83 (1991).   We afford  plenary                 _____ ______          review  to the question of whether  an asserted variance requires          retrial.  See United  States v. Cardall, 885 F.2d  656, 670 (10th                    ___ ______________    _______          Cir. 1989);  see also 2  Steven A.  Childress & Martha  S. Davis,                       ___ ____          Federal Standards of Review   11.32, at 125 (1992).          ___________________________                    We  see no cognizable prejudice here.  When, as now, an          indictment  gives a  defendant  particular notice  of the  events          charged,  and the proof at  trial centers on  those events, minor          differences in the details of the facts charged, as contrasted to          those proved, are unlikely to  be either material or prejudicial.          See, e.g., United States  v. Morrow ___  F.3d ___, ___ (1st  Cir.          ___  ____  _____________     ______          1994) [No.  93-1463, slip  op. at  14].   So it  is here:   self-          employment is merely one form of employment, and  a person who is          either  employed or  self-employed  could  not  be  said  in  any          meaningful sense to be  "unemployed."  Whatever slight difference          may exist between  employment and self-employment cannot  support          the weight of the claimed variance.                    We are fortified in  this conclusion because the record          makes transpicuously clear that appellant at all times understood          his statements about both employment and self-employment to be at                               ____          issue.  For  example, the government,  in its opening  discourse,          told the jury the evidence would show that appellant "stated that          he was not employed or self-employed . . . ."  Appellant did  not          object to this assertion.  He likewise did  not object during the          trial  as  the government  placed  into  evidence his  statements                                          10          regarding  self-employment.   Appellant's  persistent  failure to          object belies his afterthought claim that he was misled.  So does          defense  counsel's opening  statement,  in which  he advised  the          jury:                    The gist of the charge is the fact that he is                    accused of  filing on  Form 1032  a statement                    that  he  was  not  employed  and  not  self-                    employed.  The  government says  that he  was                               __________________________________                    self-employed, and that  the answers that  he                    _____________________________________________                    filed, indicating  that he was  not, deceived                    _____________________________________________                    the government. [Emphasis supplied.]                    _______________          By like token, both  attorneys discussed self-employment in their          summations.                    To reverse a conviction  on the basis of a  variance we          must  find that the variance caused a defendant to be misinformed          of the charges  against him or otherwise affected his substantial          rights.  See Vavlitis, 9 F.3d at 210;  United States v. Fisher, 3                   ___ ________                  _____________    ______          F.3d  456,  462  (1st  Cir.  1993);  Moran,  984  F.2d  at  1304;                                               _____          Sutherland,  929 F.2d at 772.  Appellant's claim of variance does          __________          not come close to meeting this criterion.                                   C.  Materiality.                                   C.  Materiality.                                       ___________                    In order  to sustain  a  conviction under  18 U.S.C.             1001,  the  government is  required to  prove  not only  that the          defendant's  statements  were  false,  but also  that  they  were          material.   See  Corsino,  812  F.2d  at  30;  United  States  v.                      ___  _______                       ______________          Notarantonio, 758  F.2d  777, 785  (1st  Cir. 1985);  cf.  United          ____________                                          ___  ______          States v. Scivola, 766  F.2d 37, 44 (1st  Cir. 1985) (holding  to          ______    _______          like  effect  in prosecution  for perjury).   The  district court          decided the question  of materiality rather than asking  the jury                                          11          to  decide  it.   Appellant fulminates  that  the court  erred in          following  this protocol,  and  suggests  that determinations  of          materiality should be consigned to the jury's exclusive province.          He is incorrect.                    Materiality in  a "false statement" case  is a question          of law to  be determined by the court.   See, e.g., United States                                                   ___  ____  _____________          v. Daily, 921 F.2d 994, 1004-06 (10th Cir.), cert. denied, 112 S.             _____                                     _____ ______          Ct.  405 (1991); United States  v. Bullock, 857  F.2d 367, 370-71                           _____________     _______          (7th Cir. 1988); United States v. Hansen, 772 F.2d 940, 950 (D.C.                           _____________    ______          Cir.  1985), cert. denied, 475 U.S. 1045 (1986); United States v.                       _____ ______                        _____________          Bryant,  770 F.2d 1283, 1290  (5th Cir. 1985),  cert. denied, 475          ______                                          _____ ______          U.S. 1030 (1986); United  States v. Greber,  760 F.2d 68, 73  (3d                            ______________    ______          Cir.), cert.  denied,  474  U.S. 988  (1985);  United  States  v.                 _____  ______                           ______________          Norris,  749 F.2d 1116, 1121  (4th Cir. 1984),  cert. denied, 471          ______                                          _____ ______          U.S. 1065 (1985); United States v. Elkin, 731 F.2d 1005, 1009 (2d                            _____________    _____          Cir.), cert. denied, 469 U.S. 822 (1984); United States v. Abadi,                 _____ ______                       _____________    _____          706 F.2d 178, 180 (6th Cir.), cert. denied, 464  U.S. 821 (1983);                                        _____ ______          United States v. Richmond,  700 F.2d 1183, 1188 (8th  Cir. 1983).          _____________    ________          We have heretofore adopted this view, see Corsino, 812 F.2d at 31                                                ___ _______          n.3; see also United States v. Nazzaro, 889 F.2d 1158,  1166 (1st               ___ ____ _____________    _______          Cir. 1989) (stating in  perjury prosecution "that the materiality          of perjurious  testimony is  within the  exclusive domain of  the          court,  not  the  jury"), and  continue  to  believe  that it  is          correct.    We  recognize  that  one  circuit  has  maintained  a          different stance.  See United States v. Gaudin, 28 F.3d 943, 943-                             ___ _____________    ______          44  (9th Cir.  1994)  (en banc)  (adhering  to United  States  v.                                                         ______________                                          12          Valdez, 594 F.2d 725, 728-29 (9th Cir. 1979)), petition for cert.          ______                                         __________________          filed, 63 U.S.L.W. 3268 (U.S. Sept. 19, 1994) (No. 94-514) and 63          _____          U.S.L.W. ___ (U.S. Oct.  21, 1994) (No. 94-6571).   With respect,          we consider the Ninth Circuit cases to be wrongly decided and, as          have so many  of our sister circuits, we decline  to follow them.          We  conclude,  therefore, that  the trial  court  did not  err in          withholding the question of materiality from the jury.                    Appellant's  fallback   position  is  that   his  false          statements did  not surpass the materiality  threshold.  However,          the test for materiality is not stringent:                    [M]ateriality requires only that the fraud in                    question   have   a   natural   tendency   to                    influence,  or be  capable  of  affecting  or                    influencing,  a  governmental function.   The                    alleged concealment or misrepresentation need                    not   have  influenced  the  actions  of  the                    Government agency, and the  Government agents                    need not have been actually deceived.          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));  see also  Notarantonio,  758 F.2d at  787; cf. Scivola,                    ___ ____  ____________                     ___ _______          766 F.2d  at 44 (articulating  equivalent test in  perjury case).          Here, the false statements easily qualify as material.                    Statements made on Form 1032 have a natural tendency to          affect  benefit levels.   An  OWCP claims  examiner testified  at          trial  that  any reported  "changes  in [recipients']  employment          activity .  . . would change  their entitlement to the  amount of          compensation  that they  [had]  been receiving."   Based  on this          testimony alone,  the  district  court did  not  err  in  finding          appellant's false statements to be material.                                          13                              D.  The Jury Instructions.                              D.  The Jury Instructions.                                  _____________________                    Appellant assigns error to  the lower court's charge in          two  respects.  First, he maintains that the court blundered when          it  refused  to give  his  requested  "good faith"  instructions.          Second,  he complains that the  court strayed beyond  the pale in          discussing  the  function  of  appellate  courts  vis-a-vis  jury          verdicts.  Neither thesis withstands scrutiny.                    1.  Good  Faith.  Appellant suggested two  "good faith"                    1.  Good  Faith.                        ___________          instructions at the close of trial.5  The judge refused  to adopt          these  suggestions  verbatim.   Appellant  now  asserts that  the          judge's  failure to  instruct  the jury  in  accordance with  the          precise   language   that   appellant   recommended   constituted          reversible error.  We think not.                    It  is a settled rule that "jury instructions are to be          evaluated  in  the  context of  the  charge  as  a whole,  and  a          defendant  has  no  absolute  right  to  the  use  of  particular          language."  United States v. Dockray, 943 F.2d 152, 154 (1st Cir.                      _____________    _______          1991);  accord Cupp  v. Naughten,  414 U.S.  141, 146-47  (1973);                  ______ ____     ________          United States v.  Nivica, 887  F.2d 1110, 1124  (1st Cir.  1989),          _____________     ______          cert.  denied, 494  U.S.  1005 (1990).    The language  that  the          _____  ______          district  court actually used in its  charge   especially certain          language that we have  set forth in the margin6     was more than                                        ____________________               5One proposed  instruction dealt with generic  good faith in          completing  the  forms.    The second  referred  specifically  to          appellant's good faith reliance on the advice of counsel.               6The  court  framed the  key question  for  the jury  in the          following way:                                          14          adequate to  protect appellant's  rights.  The  charge explicitly          mentioned both good faith and  appellant's reliance on counsel in          the course of submitting the forms.  Moreover, other parts of the          court's instructions  unambiguously put  the jury on  notice that          the  government  had  to  prove beyond  a  reasonable  doubt that          appellant knew the statements  were false when made, and  that he          intended to  defraud DOL by his  answers.  No  more was exigible.          See Dockray  943 F.2d at  155; Nivica,  887 F.2d at  1124-25; see          ___ _______                    ______                         ___          also New England Enters., Inc. v. United States, 400 F.2d  58, 71          ____ _________________________    _____________          (1st  Cir.  1968)  (holding  that  a  forthright  instruction  on          specific  intent  is  ordinarily   a  sufficient  response  to  a          defendant's request for a  good faith instruction), cert. denied,                                                              _____ ______          393 U.S. 1036 (1969).                    In sum, a defendant who has fully  preserved his rights          is  entitled to  a charge  that fairly apprises  the jury  of the          elements of the offense, the presumption of innocence, the burden          and quantum  of proof, and  such theories  of defense  as may  be          supported by the evidence.  He  is not entitled to the nuances of          phrasing that he finds most soothing.                    2.  The Court's  Comment.  Appellant's final assignment                    2.  The Court's  Comment.                        ____________________          of  error concerns  a portion  of the  charge in which  the court                                        ____________________                         Did [the  defendant] in good  faith deny                    that he was employed  or self-employed or has                    the government proven  that he knew  that the                    answer to the question  was false and that he                    intended to defraud the Department of Labor?          In  this connection,  the  court also  told  the jury  that  "the          defendant has offered evidence  that he acted on the  advice of a          lawyer when he told the government that he was not employed."                                          15          said:                         You are  the judges of the  facts, and I                    will  leave to  you entirely the  judgment of                    the facts.  I ask you to leave to me entirely                    the judgment as to the law.                         You should also understand  that if I am                    in error,  there is  a higher court  that can                    and  cheerfully  will reverse  me.   However,                    there is  no higher  court  that will  review                    your judgment  of facts.   You are  the only,                    the final judges of the facts in this case.          Appellant argues  that this commentary lessened  the government's          burden of  proof by  easing the  jury's sense  of responsibility.          Being  told explicitly  that appellate review  is available  by a          court that  is prepared  "cheerfully" to  set aside  the verdict,          appellant  reasons, makes  jurors  less responsible,  ergo,  more          prone  to  convict,  bolstered  by  the  knowledge  that  if  the          defendant is innocent the jury's mistake likely  will be repaired          by a panel of appellate judges.                    Instructing a criminal jury about the appellate process          is  a fairly prevalent practice among trial judges.  Nonetheless,          such instructions are usually unnecessary, and we counsel against          them  unless  there   is  some  special   reason  to  give   such          instructions in a particular  case.  See, e.g., United  States v.                                               ___  ____  ______________          Greenberg, 445 F.2d  1158, 1162  (2d Cir. 1971)  ("It might  have          _________          been better procedure not  to have told the jury .  . . `[not] to          worry' because this court would  reverse if there were  error.");          Commonwealth v.  Burke, 382 N.E.2d  192, 195 (Mass.  1978) ("[I]n          ____________     _____          the absence of special circumstances, the  judge should not refer          to  the appellate process.").   Be that as  it may, reversal does                                          16          not follow automatically merely because a trial judge succumbs to          a  bad idea.  Thus,  instructions anent the  appellate process do          not ordinarily  constitute error as  long as  they are  accurate.          See,  e.g., United States v. Ferra, 900 F.2d 1057, 1060 (7th Cir.          ___   ____  _____________    _____          1990)  ("Truth usually  promotes  the operation  of the  judicial          system.   Jurors need not be  left to wonder about the allocation          of tasks between trial and appellate courts."), cert. denied, 112                                                          _____ ______          S. Ct.  1939 (1992); see also  United States v. Miceli,  446 F.2d                               ___ ____  _____________    ______          256, 259-60 (1st Cir.  1971) (finding no error in  an instruction          that  "merely indicated to the jury that it had no responsibility          as to questions of law").                    Challenges  to instructions  regarding the  function of          appellate  courts should be treated  like other challenges to the          charge:   the court of appeals must examine the charge as a whole          to determine  if the  judge balanced the  instructions, correctly          informed  the jurors of the governing law, imbued the jurors with          an  appropriate  sense  of  responsibility,   and  avoided  undue          prejudice.   In this case,  surveying the charge  in its entirety          persuades us that the challenged comments were unlikely either to          have  confused the jurors or to have camouflaged the solemnity of          their task.    Indeed,  the  judge's instruction  may  well  have          impelled the jury  to consider its  determination of facts  more,          rather  than less,  cautiously;  after all,  the judge's  remarks          about the  finality of  the jury's factfinding  function probably                                          17          overstated the law.7  See, e.g., United States v. Loder, 23  F.3d                                ___  ____  _____________    _____          586, 592-93 (1st Cir. 1994) (reversing jury verdict on grounds of          evidentiary   insufficiency).      Therefore,    the   challenged          instruction did not "dilute  the [jury's] sense of responsibility          but  rather focus[ed]  jurors  on their  true  responsibilities."          Ferra, 900 F.2d at 1061.            _____          III.  CONCLUSION          III.  CONCLUSION                    We  need go  no  further.   Appellant's  asseverational          array           lacks  merit.  For aught that appears, appellant was fairly tried          and lawfully convicted.  The judgment below, must, therefore, be          Affirmed.          Affirmed.          ________                                        ____________________               7This is  not a case like United States v. Fiorito, 300 F.2d                                         _____________    _______          424  (7th Cir.  1962), in  which the  trial judge  diminished the          jurors' role and diluted their collective sense of responsibility          by  assuring them that, if they forgot something, "that's part of          the game .  . . .  That's why we have a court of appeals . . . ."          Id.  at 426.  To  the contrary, the  court's instruction here had          ___          precisely the opposite import.                                          18
