United States District Court, D. Maine
ORDER ON DEFENDANT MESSIER'S MOTION FOR JUDGMENT OF ACQUITTAL OR NEW TRIAL
D. BROCK HORNBY, District Judge.
The defendant F. William Messier has moved for judgment of acquittal or a new trial following a jury verdict that found him guilty on Counts One and Two of the Indictment and not guilty on Counts Three through Seven. Def.'s Mot. for J. of Acquittal or a New Trial ("Def.'s Mot.") (ECF No. 155). I address his arguments (the headings I use are his) in the order he has presented them and DENY the motion.
I. THE COURT'S INSTRUCTIONS ON CORRUPT ENDEAVOR WERE ERRONEOUS TO A CONSTITUTIONAL PROPORTION.
Count One was a charge of corruptly endeavoring to impede administration of the tax laws in violation of 26 U.S.C. § 7212(a). The defendant argues that the "instructions for corrupt endeavor defeated mens rea, and amounted to a directed verdict in a criminal case, " and that "[t]he instructions, required by the First Circuit, must be changed to require some intent to do something that violates the criminal law." Def.'s Mot. at 2. The defendant did not object to this portion of the charge when I entertained objections before jury deliberations, and thus review is for "plain error." See United States v. Bailey, 405 F.3d 102, 110 (1st Cir. 2005); United States v. Hallock, 941 F.2d 36, 42 (1st Cir. 1991); see also United States v. Brandao, 448 F.Supp.2d 311, 317-18 (D. Mass. 2006) (it is appropriate for district courts to apply plain error review to post-trial objections concerning jury instructions because of district courts' appellate role in these circumstances), aff'd, 539 F.3d 44, 57 (1st Cir. 2008).
In any event, the corrupt endeavor charge complies with First Circuit law. The First Circuit has stated: "Even actions that would otherwise be lawful may transgress [26 U.S.C. § 7212(a)] if they are undertaken with the intention of securing an unlawful benefit." United States v. Floyd, 740 F.3d 22, 31 (1st Cir. 2014). My charge here, in relevant part, was: "To act corruptly' means to act with the intent to secure an unlawful advantage or benefit or financial gain for oneself or for another. The acts themselves need not be illegal, so long as the defendant commits them to secure an unlawful benefit for himself or for others." There was no error in the charge.
II. THE INSTRUCTIONS TO THE JURY ON THE SEVERAL CHARGES, COMBINED WITH ANSWERS TO THE JURY'S QUESTIONS, WERE SO PREJUDICIAL TO DEFENDANT AS TO REQUIRE A NEW TRIAL.
There appear to be three components to this argument: (a) that the instructions "were unconstitutionally unclear, " Def.'s Mot. at 2, and created "confusion on the conspiracy charge, " id. at 3, a confusion exacerbated by the nature of a defense under Cheek v. United States, 498 U.S. 192 (1991); (b) that there was error in my failure to give the instruction the defendant requested concerning mental state; and (c) that I improperly answered the questions posed by the jury's notes.
(a) The instructions were not unclear, and properly charged the jury on corrupt endeavor (Count One) and conspiracy to defraud (Count Two) in accordance with First Circuit precedent. So far as Cheek is concerned,  the defendant secured a not guilty verdict on Counts Three through Seven, the only counts where I gave a Cheek-related instruction. In other words, he prevailed on this issue. Nothing in the instructions suggests any Cheek issues on Counts One and Two. To the extent that the defendant now is arguing that a Cheek defense applied to those two counts, he failed to make that objection to the jury charge. Moreover, the Cheek defense derives from the specific "willfulness" language in certain provisions of the criminal tax laws, such as 26 U.S.C. § 7203. There is no such "willfulness" requirement in the corrupt endeavor crime, 26 U.S.C. § 7212(a), or in the conspiracy to defraud crime, 18 U.S.C. § 371. Several circuits have held specifically that Cheek is not an available defense to the corrupt endeavor or conspiracy to defraud crimes. United States v. Williamson, 746 F.3d 987, 991-92 (10th Cir. 2014) (regarding 26 U.S.C. § 7212(a)); United States v. Kelly, 147 F.3d 172, 176 (2d Cir. 1998) (same); United States v. Damra, 621 F.3d 474, 501 n. 7 (6th Cir. 2010) (regarding 18 U.S.C. § 371); United States v. Derezinski, 945 F.2d 1006, 1012 (8th Cir. 1991) (same).
(b) The defendant asked that I instruct the jury as follows:
It is Defendant Messier's defense that he did not possess the required mental state to have committed the crimes alleged. The burden of proof is upon the Government to prove beyond a reasonable doubt every element of the offenses charged.
Def. Messier's Requested Jury Instructions ("Def.'s Requested Instructions") at 1 (ECF No. 141). What I charged was this:
It is the defense of each defendant that he did not have the intent required for any of the specific crimes charged. It is the government's burden to prove beyond a reasonable doubt each of the elements of the charged crime, including the necessary intent on the part of a particular defendant with respect to that crime.
Trial Tr. Excerpts ("Trial Tr.") at 23:23-24:4 (ECF No. 161). Instead of using the defendant's language "mental state, " I used the term "intent." I did so because this was not an insanity defense case, see 18 U.S.C. § 17, and because "intent, " not "mental state, " is the relevant element of the crimes charged. See Trial Tr. at 14-15. There was no error in my presentation of the defendant's theory of the case.
With respect to Count One in particular, the defendant requested this language:
Defendant Messier has presented expert psychiatric testimony on the issue of whether he had the necessary intent, as I have defined this, required for conviction. It is up to you to decide what weight to give to this evidence. The burden of proof remains with the Government to prove that Defendant Messier possessed the required element of intent, beyond a reasonable doubt.
With respect to Count Two, he requested:
Defendant Messier has presented expert psychiatric testimony on the issue of whether he had the necessary willfulness, specific intent, or knowledge, as I have defined this, required for conviction. It is up to you to decide what weight to give to this evidence. The burden of proof remains with the Government to prove that Defendant Messier possessed the ...