             United States Court of Appeals
                       For the First Circuit


No. 16-1396

                      UNITED STATES OF AMERICA,

                              Appellee,

                                 v.

                        ANIBAL PAGÁN-ROMERO,

                        Defendant, Appellant.


            APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF PUERTO RICO

              [Hon. Gustavo Gelpi, U.S. District Judge]


                               Before

                  Lynch and Lipez, Circuit Judges,
                    and Ponsor, District Judge.*


     Paul M. Glickman and Glickman Turley LLP, were on brief, for
appellant.
     Francisco A. Besosa-Martínez, with whom Rosa Emilia
Rodríguez-Vélez, United States Attorney, and Mariana E. Bauzá-
Almonte, Assistant United States Attorney, Chief, Appellate
Division, were on brief, for appellee.


                            July 9, 2018




     *   Of the District of Massachusetts, sitting by designation.
              PONSOR, District Judge.         For many years, Appellant, Dr.

Anibal Pagán-Romero, operated a medical clinic in Quebradillas,

Puerto Rico.         On October 5, 2015, a jury found him guilty of

conspiracy to commit mail fraud and substantive mail fraud, based

upon his certification of false injury claims submitted to the

American Family Life Insurance Company (“AFLAC”).

              This appeal arises from the district court’s decision to

grant the jury’s oral request, made during deliberations, for a

dictionary.       As will be seen below, this decision, made over

defendant’s objection and with no discussion on the record, was

improper.     A review of the record, however, reveals that the trial

judge took thorough, effective action to investigate the impact of

the   error    and   properly     concluded    that   Appellant   suffered   no

prejudice.     We therefore conclude that the judge did not abuse his

discretion in denying Appellant’s motion for a new trial.               Based

on this, we will affirm.

                                  I. Background

              Appellant   owned    the   Policlínica    Familiar   Shalom,    a

medical clinic and pharmacy in Quebradillas, Puerto Rico, where he

also practiced medicine.          On May 8, 2014, Appellant was charged,

along with thirty-five co-defendants, with twenty-one counts of

conspiracy to commit mail fraud in violation of 18 U.S.C. §§ 1349

and 1341, and sixty-one counts of mail fraud in violation of 18

U.S.C. §§ 2 and 1341.      The indictment alleged that between January
                                      - 2 -
2004 and November 2009, Appellant conspired with others to defraud

AFLAC by filing false claims under its accidental injury policies.

               On August 31, 2015, the case went to trial before a jury.

The   government’s     theory    was   straightforward:        before    paying    a

claim, AFLAC required certification from a physician that he had,

in fact, provided treatment on a specific date for a particular

medical   condition.         Appellant,      the    government      contended,    had

falsely certified claims over many years without ever treating,

often without even seeing, the claimants.               Former employees of the

clinic testified pursuant to plea agreements and confirmed the

extent    of    the   fraud,    admitting      that    they   had    overseen     the

submission of false claims and had even submitted bogus claims,

certified by Appellant, on behalf of themselves and family members.

               Eventually,     the   scope     of     the   fraud    reached     such

proportions that some of Appellant’s staff became uncomfortable,

and Appellant directed AFLAC claimants to come through a side

entrance of the clinic and work directly with co-conspirators

closer to the heart of the fraudulent operation. Paperwork related

to the AFLAC claimants was filed separately by Appellant and his

co-conspirators;       the   claimants’      files     routinely     contained     no

progress notes or other routine medical documentation, only the

claim forms.       Certification by Appellant of treatment supposedly

given to these claimants was sometimes noted as occurring on dates

when Appellant was out of the country, or on Saturdays and Sundays
                                       - 3 -
when the clinic was closed.      Testimony confirmed that Appellant

received $10 to $20 for each falsified claim.          The government’s

evidence included over 270 exhibits, including audio recordings in

which Appellant was heard speaking to two undercover FBI agents

about claim forms he certified using false information.

          At trial, Appellant’s defense was that he was unaware of

the fraudulent scheme, which he contended was perpetrated without

his knowledge by employees who stole his signature.           Appellant’s

nephew Noel Pagán-Rivera testified that he had filed fraudulent

claims at his uncle’s clinic without the latter’s knowledge.

Appellant himself testified, denying any wrongdoing, asserting

that some of the fraudulent claim forms had been filled out by a

person or persons unknown to him, and asserting that he did not

knowingly participate in any scheme to defraud.

          On September 30, 2015, counsel rested.            The following

day, the jury heard closing argument and instructions from the

court and began deliberations.

          The   jury   instructions   made   clear   that   an   essential

element of mail fraud was that “Anibal Pagán-Romero knowingly and

willingly participated in this scheme with the intent to defraud.”1

The instructions expanded on this point by stating that “Anibal




     1 The record offered with this appeal contains no transcript
of the jury instructions, but their text is undisputed.
                                 - 4 -
Pagán-Romero acted knowingly if he was conscious and aware of his

actions, realized what he was doing or what was happening around

him and did not act because of ignorance, mistake, or accident.”

To determine Appellant’s state of mind, the instructions stated:

          [Y]ou may consider any statement made or acts
          done or omitted by him and all other facts and
          circumstances received in evidence that may
          aid you in determination of Anibal Pagán-
          Romero’s knowledge or intent. . . . You may
          infer, but you are certainly not required to
          infer, that a person intends the natural and
          probable consequences of his acts knowingly
          done or knowingly admitted.


          These instructions were perfectly correct, and Appellant

does not argue otherwise.        The trial judge also instructed the

jurors, correctly, that they were not to do any outside research

of their own over the course of deliberations.        Significantly, the

trial judge included in his instructions the standard admonition

that communications with the judge or his staff needed to be put

in writing.

          The day after the jury began deliberating, October 2,

2015, the trial judge advised the jurors that he needed to be

absent for one week and allowed them to choose whether to continue

their   deliberations   during    his     absence   with   another   judge

supervising, or suspend until he came back.          The jurors chose to

continue their deliberations in the trial judge’s absence, and




                                  - 5 -
another     judge      made   himself      available      to   supervise       the

deliberations as needed.

            Deliberations went on for two more days, and on the third

day,    October   5,    the   jury   convened    to   continue   its    work    at

approximately 9:45 a.m.         The record of what happened next is not

clear.    At some point, an oral request somehow emerged from the

jury for an English-English dictionary.                  The record does not

identify from whom the request came (the foreperson or some other

member of the jury) or precisely to whom the request was directed

or the time.      The docket merely states: “Parties were informed of

oral communication request from the jury with CSO asking for an

English-English        dictionary    and   a   laptop,    objection    from    the

defense, as to the dictionary, was denied.”               The request was not

in writing, contrary to the trial judge’s instruction, and no

transcript reciting exactly how the objection was articulated, or

how it was denied, appears on the record.                Whatever the process,

the upshot was that some time before 12:55 p.m. on October 5, 2015,

an English-English dictionary made its way into the deliberation

room.     At 12:55 p.m., a note was received from the jury to the

effect that it had reached a verdict.            Appellant was found guilty

on all counts.

            Following the conviction, Appellant moved for a new

trial, citing the improper provision of the dictionary.                         On

February 23, 2016, the original trial judge convened the first
                                      - 6 -
evidentiary    hearing    on    the   motion.      The   court    at   this   time

questioned the foreperson, who recalled that one juror had used

the dictionary, although he could not remember which juror this

had been or what the juror had used the dictionary for.                   He did

recall that the requesting juror had been a woman.                 He could not

recollect whether anyone read aloud from the dictionary.                      Asked

whether the dictionary affected the jury’s deliberations, the

foreperson answered: “I don’t think so.”

           On March 14, 2016, the court held a second hearing on

the possible impact of the dictionary.            This time, the four female

members of the jury appeared, and the judge questioned them.                   The

juror who requested the dictionary reported that she had used it

during deliberations to look up the word “knowingly.”                  She stated

that the dictionary had not influenced her deliberations, and that

the   entire   panel     of    jurors    had    discussed   the     dictionary’s

definition.      The    second    juror     recalled     that    the   dictionary

definition of “knowingly” was read aloud to the entire jury from

the dictionary.    She stated, however, that it did not influence

the deliberations.      The third juror stated that the definition had

“helped us out.”       She added: “It was just a few persons that were

confused with . . . what was the meaning of knowingly.”                This juror

indicated that the jury had made its decision based solely on the

evidence   and   the     jury    instructions,     not    on     the   dictionary

definition.    A fourth juror recalled using the dictionary to look
                                        - 7 -
up the word “knowingly,” but stated that this did not influence

jury deliberations.

           On March 21, 2016, the district court explored the

dictionary issue a third time, on this occasion questioning all

twelve trial jurors individually.       Based on this questioning, the

court found that the jurors’ answers were consistent as to the

following: (1) a member of the jury had requested a dictionary;

(2) the dictionary was used to look up the word “knowingly”; (3)

the dictionary definition of the word “knowingly” did not influence

jury deliberations; (4) the jury followed and relied on the

district court’s jury instructions; and (5) the verdict was based

solely on the evidence and the district court’s jury instructions.

Relying on these conclusions, the court ruled that “the use of the

dictionary to look up the word ‘knowingly’ in no way affected or

brought in any extraneous evidence or information to the jury which

would   affect   their   deliberations.”      Further,    the   dictionary

definition of “knowingly” was not inconsistent with, and in no way

undermined, the definition set forth in the jury instructions.           In

fact, the trial judge observed that the dictionary definition,

which defined “knowingly” both as “having knowledge” and as being

“shrewd,   clever,   implying   a   secret   understanding,”    would,   if

considered by the jury, have imposed a burden on the government

“that [went] even beyond the jury instruction.”          The dictionary’s

definition, the court concluded, was not to Appellant’s detriment,
                                    - 8 -
and, if anything, would have benefitted him.     Based on this, the

court concluded that, even assuming the provision of the dictionary

was an error, the mistake was harmless.     The motion for new trial

was denied.

            Ultimately, Appellant received concurrent sentences of

120 months custody of the Bureau of Prisons and five years of

supervised release on each count, as well as restitution in the

amount of $2,056,303.

                           II. Discussion

            In response to a nonfrivolous claim that a jury might

have been influenced by improper exposure to extrinsic material,

a district court must conduct an inquiry into whether the exposure

in fact occurred and, if so, whether it was prejudicial.      United

States v. Camacho-Santiago, 851 F.3d 81, 89 (1st Cir. 2017), cert.

denied, No. 17-5171, 2017 WL 3036780 (U.S. Oct. 2, 2017), reh’g

denied, No. 17-5171, 2017 WL 5240928 (U.S. Nov. 13, 2017).

            In this case, the undisputed facts make the first step

in the analysis simple: the jury’s exposure to material not

properly offered during trial -- i.e., the dictionary -- obviously

occurred.

            The supervising judge’s decision to grant the jury’s

request, made during its deliberations, to use the dictionary was

error.   Previously, we have declined to opine as to whether a

juror’s use of a dictionary during deliberations -- unknown to the
                               - 9 -
judge    and    first      disclosed    after    the    verdict    --   constituted

misconduct on the part of the juror.              United States v. Rogers, 121

F.3d 12, 17, n.5 (1st Cir. 1997).                 The case now before us goes

beyond Rogers.            Here, the court itself blessed the use of the

dictionary by approving the jurors’ request.

               Provision of a dictionary to a jury by a judge after the

close of the evidence and the instructions –- except perhaps in

extraordinary circumstances and after thorough discussion with

counsel on the record -– should not happen.                At best, an extrinsic

resource of this sort is superfluous.                  Proper definitions of key

terms should be included in the instructions themselves, as they

were here.          At worst, dictionary definitions will conflict with

definitions set forth in the instructions and create confusion, or

even    mislead       a   jury.      Other    courts    have    reached   the    same

conclusion.         See United States v. Lawson, 677 F.3d 629, 645 (4th

Cir. 2012); United States v. Aguirre, 108 F.3d 1284, 1288 (10th

Cir. 1997); United States v. Gillespie, 61 F.3d 457, 459 (6th Cir.

1995); United States v. Steele, 785 F.2d 743, 749 (9th Cir. 1986).

               As    already   noted,   the     substantive     mistake   here   was

compounded by procedural errors in the way the request from the

jury    was    handled.        The   proper     process   for     managing   a   jury

communication during deliberations has been set forth in deeply

engraved authority: (1) the request from the jury should be in

writing; (2) the writing should be marked as an exhibit; (3) the
                                        - 10 -
writing should be shown, or read verbatim, to counsel; and (4)

counsel should be given an opportunity to be heard as to a proper

response.    United States v. Maraj, 947 F.2d 520, 525 (1st Cir.

1991).   These steps should ordinarily be traced in open court on

the record, so that a transcript of the pertinent discussion

(including any objection) is available on review.       None of these

steps occurred here.

            Moving on from the fact that a mistake occurred and that,

as a result, the jury here was exposed improperly to extrinsic

material, the analysis must proceed to the question of prejudice.

In scrutinizing the trial judge’s decision to deny Appellant’s

motion for new trial, we generally apply an abuse-of-discretion

standard.    The facts of this case do not, as Appellant contends,

require that we presume prejudice.

            It is true that older Supreme Court authority seemed to

suggest that a jury’s exposure to any extrinsic material should be

deemed presumptively prejudicial.        Remmer v. United States, 347

U.S. 227, 229 (1954).     But see United States v. Bristol-Martir,

570 F.3d 29, 41 n.5 (1st Cir. 2009) (questioning the “continued

vitality” of Remmer’s holding, citing United States v. Bradshaw,

281 F.3d 278, 287-88 (1st Cir. 2002)).      It is now well established

that less serious instances of potential taint should be addressed

using the abuse-of-discretion standard, with the presumption of

prejudice being reserved for more serious instances.         Camacho-
                                - 11 -
Santiago, 851 F.3d at 89; United States v. Zimny, 846 F.3d 458,

464 (1st Cir. 2017); United States v. Morosco, 822 F.3d 1, 13 (1st

Cir. 2016); United States v. Rodriguez, 675 F.3d 48, 58 (1st Cir.

2012); Bristol-Martir, 570 F.3d at 41; Bradshaw, 281 F.3d at 291;

United States v. Gomes, 177 F.3d 76, 80 (1st Cir. 1999).                     The less

stringent standard applies where exposure to outside material is

“inadvertent,” where the “trial judge responds to the claim of

contamination by conducting an inquiry and employing remedial

measures,” and where “egregious circumstances” are absent.                    United

States v. Ofray-Campos, 534 F.3d 1, 21 (1st Cir. 2008) (quoting

Bradshaw, 281 F.3d at 288).

             It    is    true   that   in   this    case   the    exposure    to   the

dictionary    was       not   inadvertent,    but    rather      was   affirmatively

approved by the supervising judge.            This fact, while troubling, is

insufficient to trigger a presumption of prejudice, where the trial

judge’s response was energetic and probing, and the mistake, while

clear, cannot fairly be described as “egregious.”

             This is not a case like Ofray-Campos or United States v.

Santana, 175 F.3d 57 (1st Cir. 1999), where the improper material

significantly           enhanced   the      evidentiary       support      for     the

government’s case, justifying the heavier presumption of prejudice

standard.         In general, the use of a dictionary will pose a

qualitatively less serious risk of harm.                   See United States v.

Cheyenne, 855 F.2d 566, 568 (8th Cir. 1988) (holding, in a case
                                       - 12 -
where   a   juror   improperly   consulted       a   dictionary,    that   while

exposure    to   actual    “evidence”    would    be    presumed   prejudicial,

exposure to the “definition of a legal term” would not).

            Of   course,    exceptions    to     this   general    approach   may

arise, in cases where, for example, the dictionary definition was

contrary to, or confusingly inconsistent with, the instructions,

where the jurors confirmed that they had actually relied on the

misleading definition, or where the court made an inadequate effort

to inquire into the impact of the taint.                   But none of these

circumstances adheres in this case.

            Identifying the standard of proof, of course, does not

end the inquiry.          Even where the abuse-of-discretion standard

applies, situations may arise where the decision to deny a motion

for new trial would demand reversal.             One such situation would be

where the trial judge failed to make an adequate inquiry into

whether the extraneous material actually influenced the jury, as

we found in Bristol-Martir.

            Here, we discern no such problem. It is well established

that in examining a trial court’s response to a claim of jury

taint, we “abjure imposition of a rigid set of rules” for the

conduct of the inquiry.        United States v. Boylan, 898 F.2d 230,

258 (1st Cir. 1990).        Flexible guidelines, however, as to what a

“methodologically sound” inquiry entails set forth a reasonably


                                   - 13 -
clear path.    Id. at 259.   For instance, one such response included

the following elements:

          The court engaged counsel for both sides in an
          ongoing dialogue about the most appropriate
          way   in   which    to   handle   the   needed
          investigation, examined each juror twice, and
          pursued no fewer than eight lines of
          questioning proposed by defense counsel. The
          court’s probing into the extent of the jurors’
          exposure to the extraneous information and its
          potential impact on their ability to render an
          impartial verdict was thorough and incisive.
          The court gave the jury clear and emphatic
          curative instructions. Last -- but surely not
          least -- the court made explicit findings that
          are amply rooted in the transcript of the two
          rounds of voir dire examinations and that make
          considerable sense when scrutinized against
          the record of the trial as a whole.

Bradshaw, 281 F.3d at 291–92.

          The inquiry in this case followed similar lines.              In

considering Appellant’s motion for a new trial, the district court

convened an evidentiary hearing to inquire into the use, if any,

of the dictionary by the jury.        At that hearing, the foreperson

was questioned as to the jurors’ reliance on the dictionary and

gave his opinion that the definition “did not really influence the

deliberations.”       A subsequent evidentiary hearing followed, in

which four jurors were questioned. Finally, in a third proceeding,

all   twelve    jurors    were    questioned   individually     prior   to

sentencing.     The    district   court’s   conclusion   that   Appellant

suffered no prejudice from the provision of the dictionary was


                                  - 14 -
firmly anchored in the jurors’ testimony disclaiming reliance on

the dictionary in reaching a verdict.

            No sound reason suggests that the trial judge abused his

discretion in reaching this conclusion.            This is not a case like

Bristol-Martir, where the trial judge failed even to inquire

whether the jury’s decision had been affected by the extraneous

material.    The judge’s inquiry here explicitly probed that very

issue with every single juror.          It is true that -- inevitably,

given the twelve individual examinations -- some inconsistencies

in the responses appeared, but the trial judge was in the best

position to weigh the significance of any ambiguities.                   It is

well established that in conducting inquiries of this kind the

district court has “wide discretion,” Bradshaw, 281 F.3d at 291,

and absent circumstances not present here, we will defer to its

findings.    Camacho-Santiago, 851 F.3d at 89.

            In   sum,   the   record   of   this   inquiry   is   more    than

sufficient to support the conclusion that the district court

conducted a thorough and meticulous inquiry into the impact of the

use of the dictionary and supportably concluded that it had no

impact on the ultimate verdict.

            Two other factors buttress our conclusion here.          First,

the evidence against Appellant was strong.               The dictionary’s

extraneous influence carried no significant risk of tipping a less

than robust case in the government’s favor. Second, the dictionary
                                  - 15 -
offered no alternate definition of “knowingly” that was less

favorable to Appellant, or more favorable to the government, than

the definition contained in the instructions.                In other words,

even       if   the   jurors   had   used   the   dictionary’s   definition   of

“knowingly,” Appellant would have been no worse off.2

                                 III. Conclusion

                For the reasons set forth above, we conclude that the

denial of Appellant’s motion for new trial constituted no abuse of

discretion.           We therefore hereby affirm the decision of the

district court.




       2Appellant’s argument that the dictionary’s alternate
definition of “knowing” as “shrewd, clever, or implying a secret
understanding” may have led the jury down an errant path makes no
sense.   This definition, as the trial judge found, would have
increased the burden on the government, since the jury
instruction’s definition required the government only to prove
that Appellant was “conscious and aware of his actions, [and]
realized what he was doing.”
                                       - 16 -
