PER CURIAM:
In order to build a new home improvement center, Lowe's Home Centers, Inc. ("Lowe's") obtained the right to purchase a tract of land owned by the Virginia B. Fryman Trust ("Trust") in Highlands County, Florida ("County"). The deal involved the development of the surrounding lands, including the construction of two retention ponds — one to collect stormwater runoff primarily from the parcel of land on which the home improvement center would be built and the other for use by the County to collect runoff from adjacent properties. Construction of the County's retention pond was abruptly halted when the Trust asserted that it never granted access and drainage easements for the benefit of the County's retention pond. Also, when the Trust refused to sign a proposed final development plan, the so-called "Final Plat," the opening of the Lowe's location was delayed.
Lowe's brought suit seeking damages, declaratory relief, and specific performance under the series of contracts executed in the deal. In ruling on the Trust's motion for summary judgment, the district court held that while the Trust had intended to convey some easements for the County's retention pond, it was not obligated to convey the easements on the terms sought by Lowe's. It also held that the Trust had a contractual obligation to execute a final plat containing some wet-lands designation. After review and oral argument, we affirm.
I.
In February 2005, Lowe's assumed the right to purchase 17.37 acres of the Trust's land. In April of that year, the parties executed a "Second Amendment" to the purchase agreement. That amendment required the deeding of two areas of land for the construction of retention ponds, one to Lowe's and the other to the County. The Second Amendment explicitly contemplated that the parties would later provide for an easement to benefit Lowe's retention pond as well as other easements in the development plan, but did not include similar language with respect to easements for the benefit of the County's retention pond. It also required the parties to cooperate in developing a plat reflecting a legal subdivision of the land in substantial conformity to a site plan attached to the agreement.
On May 13, 2005, the parties executed both an "Easement and Restriction Agreement" and a "Cooperation Agreement." The Easement and Restriction Agreement explicitly granted and described by metes and bounds the easements for Lowe's retention pond and various other easements involved in the development plan. It did not, however, include similar language or descriptions with respect to easements for the County's retention pond. The Cooperation Agreement also executed by the parties purported to require them to cooperate in recording a plat that was "in conformity with the laws of the State of Florida and the County" and in substantial conformity to an attached site plan. The parties agreed "to accept changes lawfully required by the County as a condition to recording the plat."
Also at this time, Lowe's counsel submitted a "Pond Easement Agreement" for the Trust's signature, to effect conveyance of easements to the County for the benefit of its retention pond. However, the Trust refused to sign it on the ground that it had not received any consideration for the easements. Despite the unexecuted Pond Easement Agreement, the Trust later deeded the land for the County's retention pond and construction on the pond commenced. However, when digging began on the Trust's lands for the associated access and drainage easements, the Trust ordered it halted. Then on December 1, 2005, the Trust refused to execute Lowe's proposed Final Plat, arguing that the Final Plat improperly designated 20 acres of the Trust's land as wetlands and depicted easements that were not provided for in the executed contracts.
As the district court noted, the record does not indicate that either Lowe's or the County contacted the Trust about finalizing the Pond Easement Agreement.
On appeal, the parties dispute whether the executed contracts expressly conveyed easements for the County's pond notwithstanding the unexecuted Pond Easement Agreement and whether the Trust was required to sign the proposed Final Plat.
II.
"We review the trial court's grant or denial of a motion for summary judgment de novo, viewing the record and drawing all reasonable inferences in the light most favorable to the non-moving party." HR Acquisition I Corp. v. Twin City Fire Ins. Co., 547 F.3d 1309, 1313-14 (11th Cir. 2008). A party is entitled to summary judgment if there is no genuine issue of material fact and should be granted judgment as a matter of law. Id. at 1314. Because this is a diversity action, we apply Florida law to all substantive legal issues. Three Palms Pointe, Inc. v. State Farm Fire Cas. Co., 362 F.3d 1317, 1318 (11th Cir. 2004).
Under Florida law, an easement may be created by express grant, by implication, or by prescription. Jonita, Inc. v. Lewis, 368 So.2d 114, 116 (Fla. 1st DCA 1979). No magical words are needed to create an express easement. Am. Quick Sign, Inc. v. Reinhardt, 899 So.2d 461, 465 (Fla. 5th DCA 2005). Instead, all that is needed are words showing that the parties intended their language to create an easement. Id. To discern the parties' intent, courts must look to the surrounding agreements and circumstances. Behm v. Saeli, 560 So.2d 431, 432 (Fla. 5th DCA 1990).
In looking at the surrounding agreements, courts employ the rules of contract construction. See One Harbor Fin. Ltd. Co. v. Hynes Props., LLC, 884 So.2d 1039, 1045 (Fla. 5th DCA 2004). "[I]f the [contractual] language is clear, concise, and unambiguous, we must give effect to the terms as stated without resort to other rules of construction to ascertain their meaning." Reinhardt, 899 So.2d at 465. If the language is ambiguous, however, "extrinsic evidence may be examined to determine the intent of the parties" at the time the documents purported to establish the easement were created. Id.
Lowe's argues that both the Second Amendment and the Easement and Restriction Agreement expressly grant easements over the Trust's retained lands for the benefit of the County's retention pond. Specifically, Lowe's points to the Second Amendment, which requires Lowe's to cause the County to construct its retention "pond and related collection and other systems . . . in accordance with approved plans, and generally as depicted on Exhibit A," and which Lowe's believes shows the easements for the benefit of the County's pond. However, we do not read this language to clearly reflect the intention of the parties to convey easements for the County's pond. Rather than impose an obligation on the Trust to grant the easements, it imposes an obligation on Lowe's to ensure that the County performs certain construction. We note that the language stands in sharp contrast to the explicit language in the Second Amendment regarding the conveyance of other easements, including the easements for Lowe's retention pond.
The poor quality of Exhibit A makes it hard to determine whether the easements are actually present, but the Trust does not dispute that they are depicted.
In connection with the Easement and Restriction Agreement, Lowe's points to the attached Site Plan as an exhibit and a "Final Plat," dated May 6, 2005, which Lowe's contends the agreement incorporated by reference. Lowe's argues that the Site Plan conveys the easements for the County's pond because it depicts those easements and the notes to the Site Plan state that "Retention Area Two is to be made available by [the Trust] to Highlands County, Florida as the site of a regional retention pond, and [the Trust] has agreed to this." However, the notes also state that the "Site Plan details . . . are for illustrative purposes only, and do not constitute binding commitments unless such commitments are otherwise set forth in the Agreement." The Site Plan thus provided only a rough depiction of the easements that were specifically conveyed in the agreement. The agreement makes explicit binding commitments for several easements in the development plan, including the easements for the benefit of Lowe's retention pond, and specifically describes those easements using metes and bounds. But the agreement simply fails to give such treatment to the easements for the County's retention pond.
Lowe's also relies on the Easement and Restriction Agreement's language that "Lowe's shall . . . construct all improvements for the Reciprocal Access Easement and the Common Stormwater Facilities as . . . further identified on PLAN EXHIBIT attached hereto and made a part hereof, which plans and specifications have been approved by the parties." Because the "PLAN EXHIBIT" lists a Final Plat, dated May 6, 2005, that depicts the easements for the County's retention pond, Lowe's argues that those easements were thus approved by the Trust. Like the district court, we reject this interpretation of the contract. As with the Site Plan, the Final Plat was merely referenced to provide guidance in the construction process regarding commitments made in the agreement. Specifically, the Final Plat was referenced with respect to the Reciprocal Access Easement and the Common Stormwater Facilities, both defined terms. Neither term, however, relates to the County's retention pond. For these reasons, we cannot say that the language Lowe's points to in the Easement and Restriction Agreement clearly shows that the parties intended that language to convey easements for the County's pond.
Our conclusion is also supported by the unsigned Pond Easement Agreement. This agreement was prepared for the signatures of the Trust and the County and, unlike the Second Amendment or the Easement and Restriction Agreement, was specifically drafted to convey the easements for the County's retention pond. The parties thus clearly intended the easements to be conveyed by the unexecuted Pond Easement Agreement, not by way of language in the Second Amendment or the Easement and Restriction Agreement.
III.
In its complaint, Lowe's sought specific performance requiring the Trust to execute the proposed Final Plat submitted for the Trust's approval on December 1, 2005. The Trust had declined to execute the plat because it designated approximately 20 acres of its lands in a particular tract as wetlands and depicted the easements for the County's pond, which the Trust said were never conveyed in the executed contracts.
When the Trust moved for summary judgment, it asserted one contractual basis for refusing the proposed Final Plat. Specifically, under Section 22(h) of the Second Amendment the Trust was not "required to execute a plat that designate[d] lands then owned by [it] as `wetlands.'" The district court rejected the Trust's argument but ultimately held that it had made no finding regarding the amount of wet-lands on the Trust's property and agreed that its ruling had only obligated the Trust to execute a final plat with the wetlands designation yet to be determined by the County.
On appeal, the Trust does not challenge the district court's ruling on Section 22(h) of the Second Amendment. The Trust only challenges the district court's ruling to the extent that it can be interpreted as obligating the Trust to execute the proposed Final Plat submitted for its approval on December 1, 2005. We hold that the Trust was not required to execute the proposed Final Plat. The Trust is obligated, however, to execute a final plat in accordance with its contractual obligations and the district court's order.
For the reasons stated above, we AFFIRM the district court's order.
le dispute;" (3) the error "affected the appellant's substantial rights, which in the ordinary case means" it "affected the outcome of the district court proceedings;" and (4) "the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings."
United States v. Marcus,
___ U.S. ___,
130 S.Ct. 2159, 2164,
___ L.Ed.2d ___ (2010) (alteration in original) (quoting
Puckett v. United States,
___ U.S. ___,
129 S.Ct. 1423, 1429,
173 L.Ed.2d 266
(2009));
see also United States v. Moran, 393 F.3d 1, 13 (1st Cir. 2004).
Under any standard, Gerhard's claim is meritless. Counts 1, 2B, and 3 each mandate evidence of facts the others do not. Blockburger, 284 U.S. at 304, 52 S.Ct. 180; see also United States v. Gomez-Ruiz, 931 F.2d 977, 979-80 (1st Cir. 1991) (comparing multiple statutes).
We begin by comparing Counts 1 and 3. The facts required for conviction under these counts are obviously distinct. Count 3, which charged a violation of 18 U.S.C. § 3, the accessory-after-the-fact statute, mandated proof that a defendant "knowing that an offense against the United States ha[d] been committed, receive[d], relieve[d], comfort[ed] or assist[ed] the offender in order to hinder or prevent his apprehension, trial or punishment." Id. Count 1 did not. Id. § 372. And Count 1 required proof, unlike Count 3, that the defendant conspired to prevent a federal officer from performing his duty. Id.
Count 1 was also not multiplicitous with Count 2B, which alleged a conspiracy to violate § 3. Unlike Count 1, Count 2B demanded proof of an overt act to effect the object of the conspiracy and evidence that the conspirators sought to violate § 3. 18 U.S.C. §§ 371 and 3. Count 1, as stated, required proof of entirely different conduct. Id. § 372.
Finally, despite any superficial similarity, Count 2B (conspiracy to be an accessory after the fact) and Count 3 (being an accessory after the fact) are also not multiplicitous. "[I]t has long been established that conspiracy to commit a crime is not the same offense as the substantive crime for double jeopardy purposes because the agreement to do the act is distinct from the [completed] act itself." United States v. Fornia-Castillo, 408 F.3d 52, 69 (1st Cir. 2005) (alteration in original) (internal quotation marks and citation omitted).
3. The Indictment Adequately Alleged the Federal Crimes Committed by the Browns
All three defendants claim that the accessory counts in the indictment are defective because Counts 2B and 3 stated only that the defendants,
knowing that offenses against the United States had been committed by Edward Brown and Elaine Brown, received, relieved, comforted and assisted Edward Brown and Elaine Brown in order to hinder and prevent their apprehension, trial and punishment.
Counts 2B and 3 also incorporated earlier paragraphs, which alleged (1) that a jury had returned verdicts on January 18, 2007, "convicting Edward Brown and Elaine Brown of conspiracy and a number of federal tax crimes;" (2) that a federal warrant was issued against Edward Brown on January 12, 2007, when he failed to appear for the completion of his trial; (3) that a federal arrest warrant was issued for Elaine Brown's arrest postconviction when she violated the conditions of her release pending sentencing; (4) that on April 24, 2007, the Browns were sentenced to 63 months in prison; and (5) that while the Browns were fugitives, the USMS made efforts to arrest them.
The defendants claim that the indictment was insufficient because it did not name or otherwise specifically identify the Browns' offenses of conviction. None of the defendants raised this objection to the trial court, so appellate review is for plain error. United States v. Stein, 233 F.3d 6, 22-23 (1st Cir. 2000). The defendants' argument is misplaced.
It is unclear if they are arguing that the indictment was defective because it did not supply citations to the U.S. Code. If so, defendants' argument turns on its head the usual rule that statutory citations cannot normally supply a missing element in an indictment. See United States v. McLennan, 672 F.2d 239, 243 (1st Cir. 1982).
The initial issue is whether the indictment gave the three defendants adequate notice of the charges they faced, the elements of the crimes they allegedly committed, and sufficient information for double jeopardy purposes. Hamling v. United States, 418 U.S. 87, 117-18, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); see also Russell v. United States, 369 U.S. 749, 767-69, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); United States v. Cianci, 378 F.3d 71, 80 (1st Cir. 2004). The accessory-after-the-fact statute, 18 U.S.C. § 3, makes it a crime for a defendant, "knowing that an offense against the United States has been committed, [to] receive[], relieve[], comfort[] or assist[] the offender in order to hinder or prevent his apprehension, trial or punishment." Id.
Here, the fact that the indictment charged that the Browns were convicted of conspiracy and tax crimes establishes adequate notice to defendants that "an offense against the United States ha[d] been committed." The government gave notice to defendants it intended to prove that they had knowledge that the Browns had been convicted of tax crimes and conspiracy and that, with that knowledge, defendants assisted the Browns to hinder or prevent the Browns' apprehension or punishment. All the necessary elements of § 3 were charged, and the defendants had sufficient notice of the charges against them for double jeopardy purposes. Under these circumstances, no more was needed.
We need not address the entirely different situation of a defendant's assistance to an offender in the period preceding conviction. Those circumstances could raise questions regarding the adequacy of notice to a defendant of what underlying offense the defendant was supposedly an accessory to. In that situation, the defendant could argue he must have fair notice of the elements of the underlying offense he allegedly aided to be sure he has the requisite knowledge. See, e.g., United States v. Graves, 143 F.3d 1185, 1190 (9th Cir. 1998).
If Gerhard and Gonzalez intended to raise an additional argument under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), their claim "lacks sufficient developed argumentation and is therefore waived." United States v. Gonzalez-Melendez, 594 F.3d 28, 34 (1st Cir. 2010).
Finally, for the first time on appeal, Gerhard and Riley appear to argue that the accessory statute cannot apply to conduct that occurred after the Browns' conviction. The plain text of the statute here reaches conduct that assists a postconviction offender to avoid apprehension or punishment. 18 U.S.C. § 3. They have no claim. Seahorse Marine Supplies, Inc. v. P.R. Sun Oil Co., 295 F.3d 68, 75 (1st Cir. 2002) ("[W]hen a statute's text is encompassing, clear on its face, and productive of a plausible result, it is unnecessary to search for a different, contradictory meaning. . . .").
B. Arguments Related to the Trial
Defendants' objections to their trial fall into five general categories: (1) a frivolous challenge by Riley and Gonzalez to federal jurisdiction over their crimes, (2) arguments by Riley pertaining to his representation, (3) additional claims by Riley, (4) arguments by all three defendants contesting the jury instructions and the verdict form, and (5) Gerhard and Gonzalez's assertion that the evidence was insufficient to support their convictions on Counts 2B and 3. Each of defendants' trial claims, which we address in roughly chronological order, lacks merit.
1. The United States Had "Territorial Jurisdiction" to Prosecute Defendants
Riley, joined by Gonzalez, makes an argument that by any objective measure could not have been advanced in good faith nor advanced consistently with the obligations of counsel to the court. See, e.g., Smith v. Robbins, 528 U.S. 259, 272, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000) ("[A]n attorney is under an ethical obligation to refuse to prosecute a frivolous appeal." (internal quotation marks omitted)); see also Pimentel v. Jacobsen Fishing Co., Inc., 102 F.3d 638, 640 (1st Cir. 1996) ("An appeal is frivolous if the . . . arguments are wholly without merit." (internal quotation marks omitted)).
They primarily argue that only New Hampshire, and not the United States, has jurisdiction to prosecute crimes occurring in Plainfield, New Hampshire. They also argue that there is no venue in a federal courthouse in Concord, New Hampshire. Their theory is that either the United States must buy the land on which the offense occurred or the land must have been ceded by New Hampshire to the federal government for federal criminal laws to attach. Defendants' murky and confused argument seems to posit that this federal prosecution entails a violation of the sovereignty of the state of New Hampshire and that these defendants may assert whatever sovereign rights New Hampshire has. The claim is utterly frivolous and has been rejected before by this court and others. See, e.g., United States v. Lussier, 929 F.2d 25, 27 (1st Cir. 1991).
Defendants, who were not themselves convicted of tax evasion, seem to have modeled their argument on "the hackneyed tax protester refrain that federal criminal jurisdiction only extends to the District of Columbia, United States territorial possessions and ceded territories." United States v. Collins, 920 F.2d 619, 629 (10th Cir. 1990) (collecting cases). Those arguments have been sanctioned as frivolous, e.g., id. at 623, 633-34, and are no less so when made in the context of this case.
The argument ignores the fact that New Hampshire chose to enter into a national union governed by the Constitution. In United States v. Worrall, 2 U.S. (2 Dall.) 384, 1 L.Ed. 426 (1798), the Supreme Court affirmed that the enumerated powers granted to Congress in Article I, § 8, included the general power "to create, define, and punish, crimes and offenses, whenever they shall deem it necessary and proper by law to do so, for effectuating the objects of the [federal] government." Id. at 394; see also United States v. Comstock, ___ U.S. ___, 130 S.Ct. 1949, 1957-58, 176 L.Ed.2d 878 (2010) (noting that the Constitution "grants Congress broad authority" to create federal crimes, which Congress "routinely exercises," and collecting examples).
There is no offense to state sovereignty by this federal prosecution, nor has New Hampshire claimed that there is. In fact, New Hampshire deployed its own law enforcement to help federal authorities arrest the Browns. It is black-letter law that an act defined as a crime by both national and state sovereignties is "an offense against the peace and dignity of both and may be punished by each." United States v. Lanza, 260 U.S. 377, 382, 43 S.Ct. 141, 67 L.Ed. 314 (1922). This dual-sovereignty doctrine allows for a federal prosecution even after a prior state prosecution for the same conduct. E.g., Abbate v. United States, 359 U.S. 187, 195-96, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959).
Congress has chosen to vest jurisdiction and venue over federal crimes in the federal courts. Congress has given the U.S. district courts exclusive original jurisdiction over all offenses against the laws of the United States. 18 U.S.C. § 3231. That jurisdiction is not limited to crimes which occur on federally owned property, nor is a state's permission needed for federal prosecution. See United States v. Hamilton, 263 F.3d 645, 655 (6th Cir. 2001); United States v. Sitton, 968 F.2d 947, 953 (9th Cir. 1992), abrogated on other grounds by Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996); see also Cantrell v. Reno, 36 Fed.Appx. 651, 652 (1st Cir. 2002).
Defendants' argument depends upon severely misreading the text of the U.S. Constitution. Defendants point to clause 17 of Article I, § 8, the Exclusive Legislation Clause, which vests Congress with the power
[t]o exercise exclusive Legislation in all Cases. . . . and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.
Id. The argument misses the point that the United States has not claimed it has the
exclusive right to promulgate laws over the lands where the crimes were committed; New Hampshire also has jurisdiction. So the clause is not at issue.
The Exclusive Legislation Clause has been used to limit a state's authority to regulate activities on U.S. military bases and similarly exclusive federal areas/buildings absent permission from Congress. See, e.g., United States v. State Tax Comm'n, 412 U.S. 363, 372-73, 93 S.Ct. 2183, 37 L.Ed.2d 1 (1973); Collins v. Yosemite Park Curry Co., 304 U.S. 518, 527-30, 58 S.Ct. 1009, 82 L.Ed. 1502 (1938); see also S. Lipsky, The Citizen's Constitution 81 (2009) ("In 43 Federalist, Madison offers a straightforward explanation for this clause: `The public money expended on such places, and the public property deposited in them, require that they should be exempt from the authority of the particular State.'").
Finally, there is no basis for a venue objection when the trial took place in Concord, New Hampshire, and a judge from the District of Maine sat because the New Hampshire judges were recused. See, e.g., United States v. Scott, 270 F.3d 30, 35 (1st Cir. 2001).
2. Riley's Objections to His Representation Fail
a.
Riley's Sixth Amendment Right to Represent Himself Was Not Violated
Through his counsel on appeal, Riley argues that his Sixth Amendment right to proceed without counsel, recognized in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), was violated at trial.
We give a brief chronology of Riley's representation. On September 13, 2007, Riley made his initial appearance and asked that counsel be appointed. His first attorney was appointed that day and moved to withdraw less than three weeks later, on October 2, 2007. On October 22, 2007, Riley moved to proceed without counsel. The court allowed the first counsel to withdraw, but it denied without prejudice Riley's motion because the court was not convinced that Riley's waiver of counsel was knowing and voluntary. At the same time, it appointed a second lawyer to represent Riley.
On December 7, 2007, the court held a brief hearing on Riley's renewed request to proceed without a lawyer, granted the request, and converted the second lawyer to standby counsel.
On March 14, 2008, at a pretrial conference, Riley changed his mind and requested that his standby counsel represent him at trial. The court granted his request and counsel did represent Riley at trial, which started on March 20, 2008.
Riley's argument seems to proceed in several parts. First, Riley acknowledges that he was allowed to proceed without counsel earlier, when he claimed his right to self-representation. The court then appointed standby counsel. He does not complain about having been appointed standby counsel. See McKaskle v. Wiggins, 465 U.S. 168, 176-77, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) (describing the role of standby counsel).
To the extent that Riley claims he did not ask for counsel to be appointed at his first appearance, the record flatly contradicts his assertion. Riley also makes a separate complaint, which we discuss later, that his first appointed counsel provided ineffective assistance.
On March 14, six days before trial, Riley asked the court to permit his then-standby counsel to represent him at trial. Riley concedes, and the record is quite clear, that he made this request and the court granted it. Riley's complaint on appeal is that he felt he was "forced" into asking for appointed counsel because he did not feel prepared to represent himself at trial. This feeling was apparently connected to problems he had getting documents when he was representing himself but had standby counsel.
There was no abuse of discretion in the district court's denial of a continuance of the trial date to Riley's counsel, who had been involved in the case for almost six months. Riley has failed to "identify specific ways in which the court's [purportedly] erroneous denial of a continuance prejudiced his . . . defense." United States v. Rodriguez-Marrero, 390 F.3d 1, 22 n. 10 (1st Cir. 2004).
This scenario does not come close to invalidating Riley's voluntary, "knowing[,] and intelligent[]" waiver of his right to proceed without counsel. Faretta, 422 U.S. at 835, 95 S.Ct. 2525. He was "literate, competent, and understanding," id., and he voluntarily exercised his informed free will when he asked for trial counsel. He was not forced to do anything. As to difficulties in Riley's self-representation, the court did address his concerns about delays in getting certain trial materials when Riley requested trial counsel.
The record is clear that defendant "kn[ew] what he [wa]s doing and his choice [wa]s made with eyes open." Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942).
b.
Riley's Ineffective Assistance of Counsel Claim Is Premature
Riley's second claim as to counsel, presented for the first time on appeal, is that his first appointed counsel had a conflict of interest and therefore provided ineffective assistance. This claim was not developed before the trial court and Riley's brief is devoid of citation to any facts.
This claim is a poster child for invoking the rule that we will decline to hear fact-dependent ineffective assistance claims presented for the first time on appeal. United States v. Uribe-Londono, 409 F.3d 1, 4 (1st Cir. 2005); United States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993) (collecting cases). We routinely apply that rule to ineffective assistance claims under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), including conflict-of-interest claims. E.g., United States v. Torres-Rosario, 447 F.3d 61, 64 (1st Cir. 2006).
3. Riley's Remaining Claims Related to the Trial Are Meritless
a.
Riley Was Not Denied the Opportunity to Present a Self-Defense Theory at Trial
Riley asserts, for the first time on appeal and without any citation to the record, that the district court did not allow him to argue a theory of self-defense as an affirmative defense to his crimes. At trial, the district court asked if any defendant intended to assert this theory. Riley's counsel explicitly responded that he had no intention of doing so. Riley never requested a jury instruction on self-defense, nor has he cited a single instance in which he was denied an opportunity to introduce evidence on this theory. The argument fails.
b.
Riley Was Properly Convicted under Count 6, Though He Was Already Subject to an Enhanced Penalty for Using a Dangerous Weapon
Riley challenges his conviction on Count 6, for carrying, using, or possessing a firearm or destructive device in connection with a crime of violence, 18 U.S.C. § 924(c)(1)(A)-(B). Relying on a 1980 case, Busic v. United States, 446 U.S. 398, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980), he urges, for the first time on appeal, that his conviction on this count was precluded by the fact that he was already subject to a penalty enhancement for the use of a dangerous weapon for his conviction under Count 2, 18 U.S.C. § 111(a)(2). See Busic, 446 U.S. at 399-400, 100 S.Ct. 1747 (holding that § 924(c) does not apply to a defendant "who uses a firearm in the course of a felony that is proscribed by a statute which itself authorizes enhancement if a dangerous weapon is used"). This argument fails.
Congress explicitly "amended § 924(c) to include a mandatory penalty for the use of a firearm during a federal crime of violence and to statutorily overrule . . . Busic." United States v. Centeno-Torres, 50 F.3d 84, 85 (1st Cir. 1995) (per curiam) (footnote omitted); see also id. ("Congress intended to completely revise § 924(c) so that it would serve as a cumulative punishment in addition to that provided for the underlying violent crime.").
4. There Was No Error in the Verdict Form or Jury Instructions
a.
The District Court's Instructions on Reasonable Doubt Were Correct
Gerhard and Gonzalez claim the court committed reversible error when it instructed that
[a] reasonable doubt does not mean a mere possibility that the defendant may be not guilty; nor does it mean a fanciful or imaginary doubt, nor one based upon groundless conjuncture. It means a doubt based upon reason.
They argue there was a reasonable likelihood the jury misunderstood the reasonable doubt standard. See Victor v. Nebraska, 511 U.S. 1, 6, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994) (noting that the correct standard for prejudice is not whether jurors could have applied an instruction unconstitutionally but whether there is a reasonable likelihood the jurors did so). Their objections are misplaced both as to the specific language cited and in the context of the instructions overall.
Defendants concede it is permissible to instruct the jury that doubt may not be imaginary or speculative, but they say even a small doubt may be enough to be a reasonable doubt. They rely on Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990) (per curiam), overruled in part by Estelle v. McGuire, 502 U.S. 62, 73 n. 4, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991), which stated that certain terms, not those used here, impermissibly suggest a higher degree of doubt than is in fact required. Id. at 41, 111 S.Ct. 328.
In Victor, the Supreme Court expressly found no error in an instruction that reasonable doubt is "not a mere possible doubt." 511 U.S. at 17, 114 S.Ct. 1239. There, as here, the phrase was followed by a description that reasonable doubt is not "some possible or imaginary doubt." Id. Following the command of Victor, we have found no error in similar instructions. See United States v. Rodriguez, 162 F.3d 135, 145-46 (1st Cir. 1998).
The language under attack, in any event, must be seen against the charge as a whole. Id. at 145. In its instructions to the jury, the court repeatedly emphasized the presumption of innocence and the government's burden of proof. The reasonable doubt instruction was not error and there was no reasonable likelihood the jury was misled.
b.
There Was No Error in the District Court's Instruction that U.S. Marshals Are Officers of the United States
When instructing the jury on Counts 1 and 2A, which alleged conspiracy to prevent federal officers from discharging their duties, 18 U.S.C. § 372, and to impede them in the discharge of those duties, id. §§ 371 and 111(a), the district court explained "that employees of the United States Marshals Service are in fact officers of the United States." Since both § 372 and § 111(a) refer to federal officers, we will assume this is an element of the crimes.
The supposed error was that the jury was prevented from finding an element of a crime and that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), this purported error could not be harmless. The argument is confused and wrong.
First, as a matter of law, it is true that employees of the USMS are officers of the United States. See, e.g., 28 U.S.C. § 566. Defendants, indeed, did not say differently at trial or on appeal. There can be no Apprendi error on a statement of law.
Second, perhaps defendants mean to argue there was a fact question as to whether the people who defendants conspired "to preven[], impede[], intimidate[], or interfere[] with" were federal officers. They made no such objection at trial and cannot with a straight face make that argument here.
Finally, defendants have misrepresented the law. Even if there were a failure to submit an element of an offense to the jury, that failure would be subject to the Neder harmless-error rule. Neder v. United States, 527 U.S. 1, 19, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). Apprendi, contrary to defendants' argument, does not alter the Neder rule. The Supreme Court has, post- Apprendi, repeated that a trial court's "failure to instruct a jury on all of the statutory elements of an offense is subject to harmless-error analysis." Mitchell v. Esparza, 540 U.S. 12, 16, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003); see also Washington v. Recuenco, 548 U.S. 212, 222, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006).
c.
The District Court Correctly Instructed that the Jury Could Find Just One Defendant Guilty of Conspiracy
During its deliberations, the jury asked the court if it had to find "either two or three of the defendants guilty [of conspiracy] for any of the defendants to be guilty." (emphasis added). The question had to do with the defendants, and not with other persons. After discussing the question with all parties, the court responded:
The answer to your question is no. You need not find either two or three of the defendants guilty for any of the defendants to be guilty. You should still refer
to the definition of a conspiracy as set forth in the instructions.
The conspiracy instructions, in turn, had referred to an agreement "between at least two people." Riley perfunctorily argues, as he did before the district court, that the instruction "in effect entirely negated the requirement that a conspiracy involve an agreement between two or more defendants." We review his claim de novo, United States v. Luisi, 482 F.3d 43, 51 (1st Cir. 2007), and find it utterly without merit.
The court's answer to the query was accurate and explicitly referred back to its instruction on conspiracy. When multiple defendants are charged with conspiracy, a jury may convict just one of them. United States v. Rogers, 121 F.3d 12, 16 (1st Cir. 1997). Further, the indictment in this case alleged that defendants had conspired with "other individuals." In light of the evidence presented at trial, the jury could certainly have found that a single defendant was guilty of conspiring with people other than his co-defendants.
d.
The Defendants Were Properly Convicted by General Verdict on Count 2
Gerhard and Riley urge that the verdict form was deficient for Count 2 because it did not allow the jury to specify which object of the dual-object conspiracy charged in that count was the basis for its verdict. Count 2 charged defendants with conspiracy to interfere with federal officers in the discharge of their duties, in violation of §§ 371 and 111(a) (Count 2A), as well as conspiracy to be an accessory after the fact in violation of §§ 371 and 3 (Count 2B).
Relying on challenges to the legality of Counts 2A and 2B that we rejected above, defendants assert that the guilty verdict on Count 2 must be vacated because the form's phrasing resulted in uncertainty as to the particular object(s) of the conspiracy on which the jury relied and one or both of them may have been legally insufficient. The Supreme Court has held that a jury may render a general verdict on a multiobject conspiracy, provided (1) the evidence is sufficient with respect to any one of the acts charged, and (2) the jury could not have relied on a defective legal theory. Griffin v. United States, 502 U.S. 46, 59-60, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991); see also Sochor v. Florida, 504 U.S. 527, 538, 112 S.Ct. 2114, 119 L.Ed.2d 326 (1992); United States v. Capozzi, 486 F.3d 711, 718 (1st Cir. 2007). Since defendants have made no meritorious challenges to the legal or evidentiary sufficiency of either Count 2A or Count 2B, their argument necessarily fails. E.g., Griffin, 502 U.S. at 59-60, 112 S.Ct. 466.
The court instructed the jury that it could find defendants guilty if the government carried its burden as to either object of the conspiracy. The pertinent part of the instructions stated that the jury could only render a guilty verdict if it found that a defendant joined in an agreement "to either (A) assault, resist, or impede officers of the United States in the discharge of their duties, or (B) receive, relieve comfort or assist Edward and Elaine Brown in order to hinder and prevent their apprehension, trial and punishment." The verdict form required the jury to indicate whether it found each defendant guilty "of conspiracy to hinder or prevent the U.S. Marshals in attempting to arrest Edward and Elaine Brown." No party objected to the form of the verdict.
e.
The Jury Was Properly Instructed in the Disjunctive on Count 2
Gonzalez makes a related claim, urging that Count 2 must be vacated because the indictment charged defendants with violating both Counts 2A and 2B and the jury was instructed that it could find defendants guilty on the basis of either object of the conspiracy. We review Gonzalez's preserved argument de novo, United States v. Gonzalez-Velez, 466 F.3d 27, 34 (1st Cir. 2006), and reject it.
We have routinely affirmed the use of the conjunctive in indictments followed by the use of the disjunctive in jury instructions. See Capozzi, 486 F.3d at 717 ("The indictment followed the usual practice of using the conjunction `and' in reference to the planned offenses, but guilt can be established by adequate proof on any one of the . . . charged grounds.") (citing Griffin, 502 U.S. at 59-60, 112 S.Ct. 466); see also United States v. Mitchell, 85 F.3d 800, 810-11 (1st Cir. 1996).
Gonzalez attempts to distinguish our precedents, which address general verdicts, by urging that what the jury rendered was a special verdict on Count 2. Not so. Neither defendants nor the government requested a special verdict, and a straightforward reading of the verdict form and jury instructions confirms that the jury reached a general verdict. See United States v. Riccio, 529 F.3d 40, 47 (1st Cir. 2008); see also Black v. United States, ___ U.S. ___ n. 11, 130 S.Ct. 2963, 2968-69 n. 11, ___ L.Ed.2d ___ (2010) (noting that the Federal Rules of Criminal Procedure only provide for general verdicts and cautioning against using special verdicts in most criminal trials).
For the same reason, we reject Gonzalez's related challenge to his sentence, anchored in his erroneous assertion that he was wrongly sentenced on both objects of the Count 2 conspiracy, though the jury's "special verdict" only found him guilty of one.
5. Defendants' Convictions on Counts 2B and 3 Were Supported by Sufficient Evidence
Gerhard and Gonzalez argue that the evidence was insufficient to convict them on Count 2B, 18 U.S.C. §§ 371 and 3 (conspiracy to be an accessory after the fact), and Count 3, id. § 3 (being an accessory after the fact). Defendants argue that because there was no evidence they were aware of the specific elements of the crimes the Browns were convicted of committing, the government could not satisfy the "knowledge" component of the accessory statute. Our review is de novo. We have already rejected the legal premise for the argument; in any event, the evidence on this point was ample.
Once again, there is no need for us to address the unrelated situation of a defendant charged with assisting an offender before that offender's conviction. Cf. Graves, 143 F.3d at 1190.
Both Gerhard and Gonzalez were aware the Browns had been convicted of federal tax crimes and acted with that knowledge. Evidence at trial included two newspaper articles, written by Gerhard in February or March of 2007, in which he reported that the Browns had been convicted in January 2007 of "conspiring to commit tax fraud, conspiring to disguise large financial transactions and disguising large financial transactions," and that Elaine Brown was also convicted of "evading income taxes and failing to withhold taxes from her employees." Gonzalez acknowledged discussing the Browns' tax-related convictions with Edward and Elaine Brown shortly after his April 2007 arrival in New Hampshire. That suffices.
C. Arguments Related to Sentencing
Each defendant argues his sentence was too harsh and based on error.
Gerhard received an above-guidelines sentence of 240 months' imprisonment, consisting of 72 months on Count 1; 60 months on Counts 2 and 3, to run concurrently with each other but consecutively to Count 1; and 108 months on Count 4, to be served consecutively to the terms imposed on the other counts. Gerhard's guidelines sentencing range was 57 to 71 months' imprisonment.
Gonzalez received an above-guidelines sentence of 96 months' imprisonment, consisting of 60 months on Count 2 and 36 months on Count 3, to be served consecutively. Gonzalez's guidelines sentencing range was 41 to 51 months' imprisonment.
Riley received a sentence of 432 months' imprisonment, consisting of 72 months on Count 1, 25 months on Counts 2 and 3 to run concurrently with each other and with Count 1, and 360 months on Count 6 to be served consecutively to the terms imposed on Counts 1 through 3. Riley's guidelines sentencing range was 78 to 97 months' imprisonment, and his conviction on Count 6 carried a minimum sentence of 360 months, 18 U.S.C. § 924(c)(1)(B)(ii).
Defendants' sentencing claims fall into three groups: (1) Gerhard and Riley's argument that the district court was unable to calculate their accessory sentences on Count 3 because the sentences for the crimes to which they were accessories were not determined, (2) an unpreserved argument from all three defendants that they were improperly sentenced on Count 2, and (3) additional challenges by Gerhard and Gonzalez. Each of defendants' claims fails.
"We review [preserved] claims of sentencing error in the application of the guidelines on a sliding scale. Pure issues of law, such as interpretations of the guidelines, are reviewed de novo; findings of fact are reviewed for clear error; and there is a continuum between those two poles." United States v. Stella, 591 F.3d 23, 27 (1st Cir. 2009); United States v. Sicher, 576 F.3d 64, 70-71 (1st Cir. 2009).
1. Gerhard and Riley Were Properly Sentenced as Accessories after the Fact, 18 U.S.C. § 3
Accessories after the fact may receive sentences up to "one-half the maximum term of imprisonment" to which the principals were exposed. 18 U.S.C. § 3. In a variation on claims we have rejected, Gerhard and Riley say, for the first time on appeal, that absent a showing of the Browns' specific crimes of conviction, the district court could not calculate their accessory sentences. Defendants' argument relies on a faulty premise. Gerhard and Riley's respective Pre-Sentence Reports ("PSR") did specify the Browns' crimes of conviction and the district court could rely on this information. See United States v. Olivero, 552 F.3d 34, 40 (1st Cir. 2009).
Both PSRs reported the Browns' most serious conviction. It carried a maximum penalty of 120 months' imprisonment. 31 U.S.C. § 5324(d)(2). This meant Gerhard and Riley were subject to up to 60 months' imprisonment on Count 3. Gerhard's 60-month sentence and Riley's 25-month sentence on that count were proper.
When more than one underlying offense is at issue, courts should use the most serious offense to calculate a defendant's guidelines range. U.S.S.G. § 1B1.5 comment. (n. 3).
The defendants cannot plausibly argue that the factual basis for their sentences unduly surprised them at sentencing. See Olivero, 552 F.3d at 40; see also Irizarry v. United States, 553 U.S. 708, 128 S.Ct. 2198, 2203, 171 L.Ed.2d 28 (2008).
2. The Defendants Were Properly Sentenced on Count 2
All three defendants claim that the district court erred by sentencing them to more than 12 months' imprisonment on Count 2. They urge that without the specifics of the Browns' convictions, no sentence could be calculated for Count 2B, eliminating that count as a basis for their sentences. They say that the only remaining count, Count 2A, was a "simple assault" misdemeanor, subject to a maximum sentence of 12 months. See 18 U.S.C. § 111.
When calculating a defendant's guidelines range, conviction of a conspiracy to commit more than one offense is treated "as if the defendant had been convicted on a separate count of conspiracy for each offense that the defendant conspired to commit." U.S.S.G. § 1B1.2(d). As a result, the district court considered Counts 2A and 2B separately.
Defendants' argument is precluded by our determination that the court could sentence them on Count 2B for conspiring to be accessories after the fact. That alone defeats their claim. In any event, the evidence does not at all support a conclusion that only a simple misdemeanor assault was involved under Count 2A.
3. Gerhard and Gonzalez's Remaining Sentencing Claims Fail
a.
The District Court Did Not Err by Applying U.S.S.G. § 2J1.2 to Gerhard's Count 1 Conviction
Since the guidelines do not specify a base offense level for violations of 18 U.S.C. § 372 (conspiracy to prevent an officer from discharging his duties), the district court determined the most analogous guideline. The court used U.S.S.G. § 2J1.2, the obstruction-of-justice guideline, which has a base offense level of 14. Gerhard claims that the district court erred by not using U.S.S.G. § 2A2.4, which governs convictions for obstructing or impeding officers and has a base offense level of 10. We disagree.
Gerhard's argument relies in significant part on his already rejected assertion that Count 1 involved the "same substantive offense" as Count 2A, 18 U.S.C. §§ 371 and 111(a) (conspiracy to interfere with an officer in the midst of discharging his duties), to which the district court applied U.S.S.G. § 2A2.4.
On the evidence before it, the district court found that Gerhard conspired to thwart USMS efforts to arrest the Browns, wanted after their convictions, and so obstructed the administration of justice. No more was needed. Not all conspiracies to prevent federal officers from discharging their duties will involve obstruction of justice; this one did.
b.
The District Court Did Not Abuse Its Discretion by Running Gerhard's Sentence on Counts 2 and 3 Consecutive to His Sentence on Count 1
Gerhard perfunctorily argues that the district court abused its discretion by imposing consecutive sentences on Count 1 and Counts 2 and 3 because the resulting sentence was too severe. He does not argue there was any procedural error, and there was none.
The district court used the sentencing factors in 18 U.S.C. § 3553(a) to frame Gerhard's sentence, citing, among other facts, Gerhard's purchase of "extremely dangerous weapons" and "bomb components" for the Browns, his willingness to use force to protect them, and his evident "intent to continue his conduct and endanger the community." Based on information in Gerhard's PSR, as well as testimony at sentencing from a deputy U.S. Marshal and a prisoner who had conversed with Gerhard after his arrest, the court also noted that Gerhard had joined the U.S. Army "to learn more about explosives" and hoped to emulate Oklahoma City bomber Timothy McVeigh. The sentence received was well within the court's discretion. See United States v. Ziskind, 471 F.3d 266, 268-69, 271 (1st Cir. 2006).
c.
Gerhard's Challenges to the District Court's Guidelines Calculations as to Counts 2 and 3 Are, at Most, Harmless Error
Gerhard raises four additional objections to the district court's guidelines calculations as to Counts 2 and 3. We bypass the merits of these arguments because neither of these counts had any impact on Gerhard's guidelines range. See United States v. Rivera, 448 F.3d 82, 86 n. 1 (1st Cir. 2006); United States v. Caldwell, 358 F.3d 138, 143 (1st Cir. 2004).
The district court grouped Counts 1, 2B, and 3 together. The total offense level for that group, 25, was derived entirely from Count 1, the most serious offense. See U.S.S.G. § 3D1.3(a). Count 2A was grouped separately and assigned a total offense level of 10. Because Count 2A's offense level was more than nine levels less serious than the group with the highest offense level, the district court disregarded it when calculating Gerhard's guidelines range. See U.S.S.G. § 3D1.4(c). In short, only Counts 1 and 4 impacted Gerhard's guidelines range. Any guidelines error as to Counts 2 and 3 was harmless. E.g., Rivera, 448 F.3d at 86 n. 1.
Gerhard's guidelines sentence on Count 4, 18 U.S.C. § 924(c) (possession of a firearm in furtherance of a crime of violence) was the mandatory-minimum sentence required by statute to be imposed separately and consecutively to the other counts. U.S.S.G. § 2K2.4(b). Gerhard does not object to the district court's calculation for Count 4.
d.
The District Court Properly Imposed Obstruction-of-Justice Enhancements to Gonzalez's Sentence
The district court imposed the obstruction-of-justice enhancement, U.S.S.G. § 3C1.1, when calculating Gonzalez's guidelines sentence. The court cited fourteen separate examples of perjury by Gonzalez, which he does not contest on appeal, and, further, an instance in which Gonzalez personally instructed the jury that "Jury nullification is your right," which he does contest. The district court found that these incidents, individually and cumulatively, merited imposing the enhancement.
Gonzalez's argument about his jury nullification statements is beside the point. Cf. United States v. Manning, 79 F.3d 212, 219 (1st Cir. 1996). The perjury findings were independently sufficient to justify the enhancement. See, e.g., United States v. Shinderman, 515 F.3d 5, 19-20 (1st Cir. 2008); United States v. Meada, 408 F.3d 14, 24-25 (1st Cir. 2005).
e.
The District Court Did Not Err by Imposing a Sentencing Enhancement for Gonzalez's Use of a Dangerous Weapon under U.S.S.G. § 2A2.4(b)(1)(B)
Gonzalez claims that the district court erred by imposing a three-level enhancement for use of a dangerous weapon, U.S.S.G. § 2A2.4(b)(1)(B). He argues that this conduct constituted a distinct, charged offense, which the jury rejected when it hung on the possession-in-furtherance count, 18 U.S.C. § 924(c), and that sentencing may not be based on acquitted conduct. He is mistaken.
"[A]cquitted conduct, if proved by a preponderance of the evidence, . . . may form the basis for a sentencing enhancement." United States v. Gobbi, 471 F.3d 302, 314 (1st Cir. 2006); see also id. at 313-14 (rejecting a defendant's challenge to a dangerous-weapon enhancement imposed despite acquittal on a § 924(c) charge). At trial, the evidence against Gonzalez included (1) video of him carrying a rifle over his shoulder while walking behind Edward Brown, (2) his testimony that he brought two guns with him to New Hampshire and purchased an additional .50 caliber rifle that he kept with him on the Browns' property, (3) his recorded statement that he served as "volunteer security" for the Browns, and (4) his declaration in an interview with a media correspondent that he and other supporters of the Browns had "weapons and . . . [we]re going to defend [them]selves." On these facts, the district court could easily have found the enhancement was warranted.
f.
Any Error in Calculating Gonzalez's Guidelines Range on Counts 2B and 3 Was Harmless
The district court used U.S.S.G. § 2J1.2 (obstruction of justice) as the base offense level for Gonzalez's convictions on Counts 2B and 3. Gonzalez claims a lower offense level was appropriate on both counts because he was not charged with obstructing justice.
We need not resolve this purported guidelines issue, as the errors, if any, would not have affected the district court's sentence. United States v. Marsh, 561 F.3d 81, 86 (1st Cir. 2009); United States v. Teague, 469 F.3d 205, 209-10 (1st Cir. 2006). After calculating Gonzalez's guidelines sentence, the district court explicitly stated that it considered a longer, 96-month sentence "sufficient, but not greater than necessary, to effectuate the goals of 18 U.S.C. § 3553(a)," citing "the seriousness of the offense, the need to promote respect for the law, the need for just punishment and the need for general and specific deterrence, as well as the need to protect the public from further crimes."
The district court noted, in particular, that Gonzalez went to the Browns' "prepared to intimidate, prevent and, if necessary, kill members of the [USMS] or other law enforcement officers should they attempt to enforce a lawful order" and acquired weapons capable of delivering on his threats. The court observed that "[i]t was only because of the restraint of the [USMS] that a significant number of individuals were not injured or killed." It cited Gonzalez's defiant attitude during trial and allocution and determined that "he remains a serious danger to the community." Any error in the court's guidelines calculation would not have affected Gonzalez's sentence.
III. Conclusion
This was a difficult case and the trial court handled it well. Defendants' convictions and sentences are affirmed.