          United States Court of Appeals
                        For the First Circuit

No. 12-2441

                      UNITED STATES OF AMERICA,

                              Appellee,

                                  v.

                         STEVEN G. MARSHALL,

                        Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Patti B. Saris, U.S. District Judge]


                                Before
                        Howard, Circuit Judge,
                     Souter,* Associate Justice,
                      and Stahl, Circuit Judge.


     Todd C. Pomerleau, with whom Chase A. Marshall and Pomerleau
Wood LLP were on brief, for appellant.
     Mark T. Quinlivan, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.



                             June 4, 2014




     *
      Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
               SOUTER, Associate Justice.            Steven Marshall appeals his

conviction for knowingly and willfully obstructing the passage of

mails under 18 U.S.C. § 1701. He challenges the court's definition

of     the    term    "willfully,"     claims       that   evidence     of   willful

obstruction          was   insufficient,      and     argues     that    scheduling

irregularities violated due process.                We affirm.

                                         I.

               Marshall had 26 years of experience with the United

States Postal Service as a letter carrier, and in the fall of 2009

he was employed at the Greenfield, Massachusetts Postal Service

Annex.       Prior to setting out on his route each day, Marshall had to

"case" his mail, sorting it by address and placing it in sequence

for delivery.         Postal workers are instructed to discard items that

are addressed to a house or apartment known to be vacant as

"undeliverable," and mail carriers are responsible for keeping a

list of known vacancies on their routes in an "edit book" at their

work stations, to be updated monthly.                Commercial items discarded

as undeliverable are placed in a bin marked "undeliverable bulk

business mail," where they are checked by a supervisor and, if

indeed undeliverable, recycled.

               Mailings routinely handled on Marshall's route included

"Town Criers," local newspapers featuring advertisements, which

post    office       customers   pay   to     have    delivered,      although   the

newspapers typically identify the subscriber simply as "Current


                                        -2-
Resident" or "Postal Customer."            In October 2009, after being

informed that Marshall was discarding an "excessive" number of Town

Criers, James Lengieza, Marshall's supervisor, told Marshall to

"make sure that all the good Town Criers were being delivered."

Over the next two weeks, Lengieza noticed a dramatic reduction in

the number of Town Criers Marshall left in the discard bin.

            In February 2010, Special Agent Kenneth Velazquez of the

Postal   Service    Office    of   Inspector    General   was   assigned    to

investigate Marshall's performance and began video surveillance of

Marshall casing his mail, focusing on days the Town Criers were to

be delivered.      On February 26, Velazquez saw Marshall alternately

casing Town Criers for delivery and discarding them into his bin,

at times at a one-to-one ratio.          After Marshall left on his route,

Velazquez   and    Lengieza    checked    the   bin,   which   contained   208

discarded Town Criers, to see how many were deliverable.

            Velazquez monitored Marshall by video again on March 4

and March 18 and saw that sometimes Marshall checked the address

while sorting the newspapers, but sometimes appeared to discard

them without looking.        Lengieza and Velazquez found that Marshall

discarded 183 Town Criers on March 4 and 168 on March 18, and by

checking the discarded mail against the edit book at Marshall's

work station Lengieza determined that 80 to 90 percent of the Town

Criers tossed out on March 4 should have been delivered.




                                     -3-
             On March 11, the interim postmaster, Joan Bates, went

with Marshall on a "walk with," traveling the carrier's route to

confirm the number of vacancies and assess how long it takes for

the carrier to complete the route.            During that excursion Marshall

delivered more of the Town Criers than he did on either March 4 or

March 18.

             On May 27, Velazquez and fellow Special Agents Allison

Glassick and Gerard Fernandez interviewed Marshall, who orally and

in writing admitted his practice of discarding the Town Criers.

Marshall explained that he had treated some of the copies as

undeliverable    because      the    locations   addressed    were   vacant   or

because residents had asked him not to deliver them, and he

acknowledged that he delivered more Town Criers on the "walk with"

than usual, but "only to get a street time that was more acceptable

for the route." He remarked that delivering the Town Criers was "a

waste of energy" and although he insisted that he was not aware

that discarding the volume of Town Criers was problematic, he also

admitted that, "I'm not saying there's any excuse for [the non-

delivery]."    He promised that henceforth he would "deliver any and

all   Town    Criers    to     vacant     apartments    and    multiapartment

deliveries."

             Marshall   was   charged     with   obstructing   the   mails    in

violation of 18 U.S.C. § 1701, and the magistrate judge set a bench

trial date of October 14.           Because no scheduling order was issued,


                                        -4-
the parties communicated informally with the clerk and with each

other about discovery deadlines.     Although the Government notified

Marshall prior to trial that it planned to proceed with only two

witnesses, Lengieza and Special Agent Glassick, it was only on the

morning set for trial that Marshall filed four motions in limine:

to exclude anonymous complaints, to exclude testimonial hearsay, to

exclude photocopied Town Criers, and to exclude video of the

surveillance and related testimony.         To give the government a

chance to respond, the magistrate judge rescheduled the trial for

October 18, and following further motions for continuance, some by

the Government and at least one by Marshall, she scheduled a final

trial date of March 8, 2011.     The judge granted Marshall's motions

to exclude the anonymous complaints and hearsay, but admitted

original evidence of the Town Criers and video surveillance.

           On March 8, 2011, the bench trial began before the

magistrate judge, at which the Government called not only Lengieza

and Glassick but also (with three days' notice to Marshall)

Velazquez as a witness to authenticate the video surveillance

evidence. The judge found Marshall guilty of obstructing the mails

under 18 U.S.C. § 1701 and sentenced him to pay a fine of $1,500,

as well as a $25 processing fee and $10 special assessment fee.         On

November   9,   2012,   the   District   Court   for   the   District   of

Massachusetts affirmed the conviction.




                                   -5-
                                        II.

             We review factual findings for clear error and legal

questions, including statutory interpretation and sufficiency of

the evidence, de novo. United States v. McFarland, 445 F.3d 29, 31

(1st Cir. 2006).      On a sufficiency challenge, we take the evidence

in the light most favorable to the verdict and reverse only where

"no rational factfinder could have concluded that the evidence

presented    at    trial,    together    with    all   reasonable    inferences,

established each element of the crime beyond a reasonable doubt."

United States v. Symonevich, 688 F.3d 12, 23 (1st Cir. 2012).

             The   statute    provides    that    "[w]hoever    knowingly    and

willfully obstructs or retards the passage of the mail . . . shall

be fined under this title or imprisoned not more than six months,

or both."         18 U.S.C. § 1701.           Marshall says first that the

magistrate    judge    and    the   district      court    applied   the   wrong

definition of "willfulness" in convicting him under 18 U.S.C.

§ 1701.   The court followed the Second Circuit in United States v.

Wooden in taking the position that showing willful action requires

proof only that a defendant had an "illegitimate or improper

intent" to obstruct deliverance of the mail.              61 F.3d 3, 5 (2d Cir.

1995). Marshall, in contrast, suggests that "willfulness" is shown

only when a defendant knew his conduct was unlawful at the time he

engaged in it.




                                        -6-
            The statutory term "willfully" is a chameleon, what the

Supreme     Court    has   called   "a    word   of    many    meanings     whose

construction    is    often   dependent     on   the   context   in    which   it

appears."      Bryan v. United States, 524 U.S. 184, 191 (1998)

(quoting      Spies v. United States, 317 U.S. 492, 497 (1943))

(internal quotation marks omitted); see also United States v.

Ladish Malting Co., 135 F.3d 484, 487 (7th Cir. 1998) ("'Willfully'

is . . . notoriously slippery . . . .").            Although this Circuit has

never explained willfulness under § 1701, the Supreme Court took up

an early version of the statute in United States v. Kirby and read

the phrase "'knowingly and wilfully' obstruct or retard the passage

of the mail" as applying to "those who know that the acts performed

will have that effect, and perform them with the intention that

such shall be their operation." 74 U.S. 482, 485-86 (1868). While

Kirby, to be sure, has an ancient ring to it, its precedential

force is buttressed by the general rule that reenactment of a

statute    carries    congressional      approval     of   phrases   with   prior

judicial construction.        See Keene Corp. v. United States, 508 U.S.

200, 212 (1993) ("Since . . . these cases represented settled law

when Congress reenacted the [statutory language], we apply the

presumption that Congress was aware of these earlier judicial

interpretations and, in effect, adopted them.").                     And Kirby's

interpretation has been echoed by other federal courts applying 18

U.S.C. § 1701 in more recent decades, which have read the term


                                      -7-
"willfully"   to   require   some    level    of   intent   greater   than

"inadverten[ce] or mere[] negligen[ce]." United States v. Johnson,

620 F.2d 413, 415 (4th Cir. 1980); see also Wooden, 61 F.3d at 5

(finding that "an inadvertent or negligent delay of the mail does

not violate [§ 1701]").

          Marshall, to be sure, does not argue that the willfulness

requirement of § 1701 requires proof that a defendant was aware of

the specific provision violated, as has been held with respect to

some statutes in the criminal code.        See, e.g., Ratzlaf v. United

States, 510 U.S. 135, 149 (1994) (willfully violating financial

anti-structuring laws); Cheek v. United States, 498 U.S. 192, 201

(1991) (willful tax evasion); cf. Trans World Airlines, Inc. v.

Thurston, 469 U.S. 111, 126 (1985) (willfully violating the Age

Discrimination in Employment Act).           As the Supreme Court has

explained it, "highly technical statutes" like the Internal Revenue

Code and the currency structuring law present a particular "danger

of ensnaring individuals engaged in apparently innocent conduct."

Bryan, 524 U.S. at 194.      To obviate that risk, their specific

intent requirements "carv[e] out . . . exception[s]" to the

"general rule that ignorance of the law or a mistake of law is no

defense to criminal prosecution."         Cheek, 498 U.S. at 199-200.

          Rather, Marshall's argument that the jury should have

been required to find that the "illegitimate or improper intent"

was unlawful rests on the Supreme Court's suggestion in Bryan


                                    -8-
(dealing with firearms sales by a vendor having no license as

required) that criminal willfulness generally requires knowledge

that       the   action   charged       was    unlawful,    albeit   less   specific

knowledge than the statutes just mentioned.                      524 U.S. at 196.1

This, as it turns out, was the position taken by the Government in

a recent brief in opposition to certiorari to the Supreme Court in

Russell v. United States, No. 13-7357, involving the construction

of 18 U.S.C. § 1035; on the Government's concession, the Court

vacated the appellate panel's contrary holding and remanded for

reconsideration.          134 S. Ct. 1872 (2014).

                 We   think   it   is    unnecessary       to   decide   whether   the

Government's position in Russell should ultimately apply to the

construction of § 1701. Even if we assume in Marshall's favor that

it should, he is not entitled to a reversal here, for the reason

that any error was harmless when assessed under the standard that

instructional error, including omission of an element, is harmless

if it is clear beyond a reasonable doubt that a rational jury would




       1
       Marshall also cites two First Circuit cases.      The first
refutes his own reading, holding that a requirement that false
statements be made "knowingly and willfully . . . means nothing
more in this context than that the defendant knew that his
statement was false when he made it or . . . disregarded or averted
his eyes from its likely falsity." United States v. Gonsalves, 435
F.3d 64, 72 (1st Cir. 2006). The second has been vacated in light
of intervening Supreme Court precedent. United States v. Aversa,
984 F.2d 493 (1st Cir. 1993), vacated sub nom. Donovan v. United
States, 510 U.S. 1069 (1994).

                                              -9-
have found guilt absent the error.                Neder v. United States, 527

U.S. 1, 18 (1999).

              Marshall, to be sure, testified that he was unaware that

his    destruction    was   unlawful,      insisting    that   his     supervisors

"never" addressed the issue with him and that he "was not aware

there was a problem until approached by [investigators]."                       This

position was consistent with his emphasis, which we will mention

again below, that his discards were not surreptitious, and that for

some period of time his supervisors let him get away with his

practice.       Indeed, the trial judge observed that if knowledge of

unlawfulness were a necessary element, this would be a closer case.

              But we think the case for guilt would surely have

satisfied a knowledge-of-unlawfulness requirement.                    When he was

interviewed by the investigators regarding his conduct, Marshall

admitted that he was "not saying there's any excuse for it."                       The

only    way   this   admission    could    be     squared   with     his   claim    of

ignorance of the law would be to assume that he thought that

throwing deliverable mail away was merely a departure from postal

service practice lacking the sanction of law. But this probability

is just too far-fetched.          Marshall had to have known that he was

being paid to make good on the responsibility of a national

governmental agency to deliver mail entrusted to it.                       Since the

agency was not an agent of charity, he must likewise have been

aware    that    someone    had   paid    money    to   have   the    Town    Criers


                                         -10-
delivered, so long as they were deliverable.                    No front-line

employee   like   him   could   have    believed   that   the    Government's

obligation was not a requirement of the law, let alone that someone

in his position would not be violating the law by taking the

payer's money, in effect, while deliberately refusing to provide

the service paid for. There is no reasonable doubt that a rational

fact-finder   would     have    found   Marshall    guilty      of   willfully

"unlawful" conduct.

           Next, Marshall contends that, under any definition, the

government has presented insufficient evidence to prove that he

acted "willfully" in violation of 18 U.S.C. § 1701.                    On the

contrary, however, the government presented ample evidence for a

reasonable fact-finder to conclude that Marshall knowingly and

willfully obstructed the delivery of mail.         Marshall does not deny

that he acted "knowingly" under the statute and could hardly do so.

There is no question that he knew that discarding the Town Criers

would result in their failure to be delivered to their intended

recipients. See United States v. Schankowski, 782 F.2d 628, 633

(6th Cir. 1986) ("'[K]nowingly and willfully' as used in § 1701

requires the government to prove beyond a reasonable doubt that the

defendant knew that her acts had this effect.").          Nor is there any

question that Marshall intended to prevent the delivery of hundreds

of Town Criers to occupied residences along his route.               The sheer

number of discards belies Marshall's claim that he aimed to filter


                                    -11-
out only items he thought genuinely undeliverable, and in fact

Lengieza's comparison of the contents of Marshall's bin against

Marshall's own edit book showed that 80 to 90 percent of the

discarded Criers were deliverable.            Were more needed, Lengieza's

admonition   to   deliver     "all   the     good   Town   Criers"   led   to     a

substantial, temporary reduction in the amount Marshall discarded.

The   evidence    demands     the    conclusion     that    Marshall     knew     a

substantial amount of his discarded mail was in fact deliverable,

and meant to prevent its delivery. And, as mentioned before, it is

not credible that Marshall might have thought his admittedly

inexcusable actions were not unlawful.

             Nevertheless, in an attempt to show good faith efforts

at delivery, Marshall points out that he never sought to conceal

his discarded mail, his discard bin being there for a supervisor's

review, and that his heightened delivery rate during the walk-with

can be explained by what he chooses to call a legitimate motive.

But even leaving aside the rule that in reviewing a conviction

evidentiary ambiguities are to be resolved in the Government's

favor, see Symonevich, 688 F.3d at 23, neither of these facts

undermines the weight of the preceding evidence. Section 1701 does

not provide that a supervisor's objection or warning is a condition

of liability, and an effort to pad the number of actual stops is

hardly an exculpatory explanation for failing to deliver all he

should   have    when   a   supervisor     was   looking   the   other     way.


                                      -12-
Ultimately, the inference to be drawn from the record is just what

Marshall admitted in his interview: that he found delivering the

Town Criers "a waste of energy" and tried to save all the effort he

thought he could get away with.

           Finally, Marshall argues that the magistrate judge denied

him due process by failing to issue a scheduling order and by

delaying the trial after Marshall filed his motions in limine.

These contentions are baseless.      Rules of the District Court for

the District of Massachusetts require magistrate judges to issue

scheduling orders only in criminal felony cases, see D. Mass. Mag.

J. R. 7(a)(2), leaving the matter discretionary in a case of petty

offense.   While the magistrate judge in this case gave the parties

the option of a formal pretrial order, Marshall neither requested

a scheduling order nor objected to its absence.      He lost nothing

under the rule and was denied nothing he asked for.

           As to the orders continuing the trial date, trial courts

have "wide discretion to grant or deny a request for continuance,"

and only a serious error of law or judgment can produce the

substantial prejudice to the objecting party that would warrant

appellate relief.      West v. United States, 631 F.3d 563, 568 (1st

Cir. 2011) (quoting      United States v. Fink, 499 F.3d 81, 89 (1st

Cir. 2007)).   Marshall argues that delaying the bench trial until

March 8, 2011, prejudiced his case by allowing the Government to

procure    Velazquez     to   authenticate   surveillance   evidence


                                  -13-
inadmissible without him.      This is an odd argument coming from the

mouth of a defendant whose own dubious decision to surprise the

Government with four motions in limine the morning of the scheduled

trial was the occasion for the first continuance.                 See Fed. R.

Crim. P. 47(c)(requiring that, absent a scheduling order, written

motions be served at least seven days before the hearing date).

And   its   strangeness   is   not   mitigated   by   the    fact     that    the

magistrate judge issued at least one subsequent continuance at

Marshall's own request.        In short, by filing motions that were

untimely under the rules, Marshall prompted the first in a series

of continuances, after which the Government had the forethought and

the opportunity to call a witness necessary to introduce probative

evidence that would presumably have been inadmissible without that

witness on the original trial date.         Whatever that may say about

Marshall's    own   tactical   planning,    it   points     to   no   lack     of

justification    for   the   first   continuance   and    to     nothing     more

prejudicial than legitimately incriminating evidence.                   To the

extent that Marshall may have been caught off-guard by Velazquez's

testimony, the judge offered him additional time to prepare a

cross-examination, which he declined.        Thus, the record fails to

lend color to the suggestions that the magistrate judge abused her

discretion in granting the continuances or that Marshall suffered

prejudice distinct from probative evidence as a result.




                                     -14-
                    III.

The judgment of the district court is affirmed.




                    -15-
