Cluster 518089

But cf., Doherty, 867 F.2d at 60 (“scheme to obtain” independently supported conviction where jury improperly instructed on “scheme to defraud”).

See United States v. Doherty, 867 F.2d 47, 60 (1st Cir. 1989) (“18 U.S.C. § 1341 forbids schemes to defraud or to obtain money by false pretenses; this statutory language suggests no requirement that the scheme must be aimed at money which would not otherwise have gone to someone who honestly obtained the victim’s business.”).

We similarly consider the novel issue underscoring the State's theory that the receipt of a benefit extended the statute of limitations for an official misconduct charge when the indictment did not assert an express agreement to 6 See United States v. Grimm, 738 F.3d 498, 503 (2d Cir. 2013); United States v. Doherty, 867 F.2d 47, 61 (1st Cir. 1989).

See, e.g., United States v. Sorich, 523 F.3d 702, 713 (7th Cir. 2008) (“[W]e hold that jobs are property for purposes of mail fraud.”); United States v. Granberry, 908 F.2d 278, 280 (8th Cir. 1990) (holding that bus driver’s wages were “money or property” for purposes of mail fraud, explaining that “[m]oney is money, and ‘money’ is specifically mentioned in the statutory words”); United States v. Doherty, 867 F.2d 47, 56 (1st Cir. 1989) (Breyer, J.) (holding that the “benefi…

See McLellan, 959 F.3d at 466 (explaining that an error on an instruction that "deals with" an "element of the offense can be harmless beyond a reasonable doubt, if, given the factual circumstances of the case, the jury could not have found the defendant guilty without making the proper factual finding as to that element"); United States v. Doherty, 867 F.2d 47, 58 (1st Cir. 1989) (finding error in instruction on an element of the offense harmless because it was "virtually i…

Thus, an instructional error "on an element of the offense can be harmless beyond a reasonable doubt, if, given the factual circumstances of the case, the jury could not have found the defendant guilty without making the proper factual finding as to that element." United States v. McLellan, 959 F.3d 442, 466 (1st Cir. 2020) (quoting United States v. Doherty, 867 F.2d 47, 58 (1st Cir. 1989)).

Second, the Government musters no binding or persuasive authority to support its interpretation of “obtain.” Most of the Government’s cited cases involve schemes to obtain something new—a job, a promotion, a grant, or bonus—not schemes to “obtain” a “continued salary.” See Opp. 4–7; United States v. Granberry, 908 F.2d 278, 279 (8th Cir. 1990) (upholding conviction for defendant who allegedly falsified his criminal history to obtain a job as a school bus driver); United Stat…

Thus, an instructional error "on an element of the offense can be harmless beyond a reasonable doubt, if, given the factual circumstances of the case, the jury could not have found the defendant guilty without making the proper factual finding as to that element." McLellan, 959 F.3d at 466 (quoting United States v. Doherty, 867 F.2d 47, 58 (1st Cir. 1989)).

Furthermore, “RICO requires no more than a slight 18 effect upon interstate commerce.” United States v. Doherty, 867 F.2d 47, 68 (1st Cir. 1989) 19 Defendants argue that in the present case there is neither an effect nor an engagement in 20 interstate commerce.

Where a potentially erroneous instruction deals with an "essential element -44- of the crime," United States v. Doherty, 867 F.2d 47, 58 (1st Cir. 1989), it is harmless if "it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." United States v. Wright, 937 F.3d 8, 30 (1st Cir. 2019) (internal quotation marks omitted).

United States v. Casas, 425 F.3d 23, 45 (1st Cir. 2005); United States v. Doherty, 867 F.2d 47, 70 (1st Cir. 1989); see also United States v. Frazier, 429 Fed.

La Rompe need only have had a "de minimis" effect on interstate or foreign commerce, see Ramírez-Rivera, 800 F.3d at 19 — which is a fancy way of saying that "RICO requires no more than a slight effect upon interstate commerce," see United States v. Doherty, 867 F.2d 47, 68 (1st Cir. 1989).

See United States v. Granberry, 908 F.2d 278, 280 (8th Cir.1990) (holding that a school bus driver who received a school bus operator permit by falsifying an application and concealing that he had been convicted of first-degree murder committed money or property fraud because the “School District ha[d] been deprived of money in the very elementary sense that its money [went] to a person who would not have received it if all of the facts had been known”); United States v. Doh…

Other courts have considered photographs or video evidence, United States v. Hoelscher, 764 F.2d 491, 496 (8th Cir.1985), a testifying witness’s physical gesture toward defense counsel’s table, Alexander, 48 F.3d at 1490 , and the defendant having the same name as the person charged, United States v. Doherty, 867 F.2d 47, 67 (1st Cir.1989), as sufficient to establish identity.

See, e.g., Sorich, 523 F.3d at 713 (jobs and salaries in political patronage scheme); Granberry, 908 F.2d at 280 (job as bus driver); Doherty, 867 F.2d at 56 (promotions based on scheme to steal examinations).

See, e.g., Segal, 644 F.3d at 366 ; Messinger v. United States, 872 F.2d 217, 222 (7th Cir.1989) (concluding that for jury to find defendant guilty of *678 mail fraud for defrauding county of its intangible rights, it must have found that the county was defrauded of its security interest represented by a cash bail bond); United States v. Doherty, 867 F.2d 47, 58 (1st Cir.1989) (Breyer, J.) (upholding conviction where jury not presented with a money/property fraud theory and …

See, e.g., United States v. Granberry, 908 F.2d 278, 280 (8th Cir. 1990); United States v. Doherty, 867 F.2d 47, 60 (1st Cir.1989) (Breyer, J.); but see United States v. Ratcliff, 488 F.3d 639, 645 (5th Cir.2007) (rejecting that theory in election fraud context); United States v. Turner, 465 F.3d 667, 681 (6th Cir.2006) (same).

It discusses United States v. Doherty, 867 F.2d 47, 61-62 (1st Cir.1989), in which the First Circuit concluded that a conspiracy to cheat on a police sergeant exam did not continue throughout the salary payoff period for purposes of the statute of limitations.

United States v. Green, 757 F.2d 116, 119 (7th Cir.1985); United States v. Doherty, 867 F.2d 47, 67 (1st Cir.1989); United States v. Alexander, 48 F.3d 1477, 1490 (9th Cir.), cert. denied, 516 U.S. 878 , 116 S.Ct. 210 , 133 L.Ed.2d 142 (1995).

In satisfying its burden, the State cites to United States v. Doherty, 867 F.2d 47, 72 (1st Cir. 1989), for the proposition that a court's ex parte communication with an excused juror is harmless error because the ex parte conversation cannot influence the dismissed juror's further deliberations where there are none, nor can it influence the remaining eleven jurors when they have no further contact. ¶ 58.

Jeffers v. United States, 432 U.S. 137, 157 , 97 S.Ct. 2207 , 53 L.Ed.2d 168 (1977); Iannelli v. United States, 420 U.S. 770, 778 , 95 S.Ct. 1284 , 43 L.Ed.2d 616 (1975); Callanan v. United States, 364 U.S. 587, 593 , 81 S.Ct. 321 , 5 L.Ed.2d 312 (1961); United States v. Doherty, 867 F.2d 47, 61 (1st Cir.1989).

United States v. Lugo Guerrero, 524 F.3d 5, 12-13 (1st Cir. 2008); Santana, 175 F.3d at 62 ; United States v. Doherty, 867 F.2d 47, 67 (1st Cir. 1989); United States v. Brown, 603 F.2d 1022, 1024 (1st Cir. 1979).

In Sorich, we noted that “courts have found that salaries fraudulently obtained” are “money or property” for purposes of a traditional mail- or wire-fraud offense. 523 F.3d at 713 (citing United States v. Doherty, 867 F.2d 47, 56, 60 (1st Cir. 1989)).

In Sorich , we noted that “courts have found that salaries fraudulently obtained” are “money or property” for purposes of a traditional mail- or wire-fraud offense. 523 F.3d at 713 (citing United States v. Doherty, 867 F.2d 47, 56, 60 (1st Cir. 1989)).

Hence just as Leahy held that fraudulently obtained contracts are property, courts have found that salaries fraudulently obtained, United States v. Doherty, 867 F.2d 47, 56, 60 (1st Cir.1989) (Breyer, J.), and job opportunities fraudulently denied, United States v. Douglas, 398 F.3d 407, 417-18 (6th Cir.2005); United States v. Granberry, 908 F.2d 278, 280 (8th Cir.1990), represent property for purposes of mail fraud.

Hence just as Leahy held that fraudulently obtained contracts are property, courts have found that salaries fraudulently obtained, United States v. Doherty, 867 F.2d 47, 56, 60 (1st Cir. 1989) (Breyer, J.), and job opportunities fraudulently denied, United States v. Douglas, 398 F.3d 407, 417-18 (6th Cir. 2005); United States v. Granberry, 908 F.2d 278, 280 (8th Cir. 1990), represent property for purposes of mail fraud.

Furthermore, “[a]s a general proposition, any container situated within residential premises which are the subject *10 of a validly-issued warrant may be searched if it is reasonable to believe that the container could conceal items of the kind portrayed in the warrant.” United States v. Gray, 814 F.2d 49, 51 (1st Cir. 1987) (citing United States v. Ross, 456 U.S. 798, 820-21 , 102 S.Ct. 2157 , 72 L.Ed.2d 572 (1982)); see also United States v. Giannetta, 909 F.2d 571, 577 (1…

By contrast, where the government proves less than alleged, the result is — at the very worst 6 — a variance: “A jury need not believe that the defendant did everything that the indictment *39 charges; it may convict if it believes he did some of the things the indictment charges and if those things, by themselves, amount to a violation of the statute[,]” provided that the indictment “enable[s] the accused to know the nature and cause of the accusation against him.” United S…

See Granberry, 908 F.2d at 279-80 (holding that a defendant who obtained a job as a school bus driver by fraudulently concealing on his job application that he had been convicted of murder deprived the school district of money); Doherty, 867 F.2d at 54-57 (holding fraud in a police promotion examination process was a scheme to obtain an additional salary).

See Granberry, 908 F.2d at 279-80 (holding that a defendant who obtained a job as a school bus driver by fraudulently concealing on his job application that he had been convicted of murder deprived the school district of money); Doherty, 867 F.2d at 54-57 (holding fraud in a police promotion examination process was a scheme to obtain an additional salary).

See, e.g., United States v. Farmer, 924 F.2d 647, 651 (7th Cir.1991); United States v. Norton, 867 F.2d 1354, 1359 (11th Cir.1989) (collecting cases); United States v. Doherty, 867 F.2d 47, 68 (1st Cir.1989); United States v. Bagnariol, 665 F.2d 877, 892-93 (9th Cir.1981); United States v. Long, 651 F.2d 239, 241-42 (4th Cir.1981); United States v. Stratton, 649 F.2d 1066, 1075 (5th Cir.1981).

Cf. United States v. Doherty, 867 F.2d 47, 72 (1st Cir.1989) (judge’s ex parte conversation with subsequently dismissed juror “could not have influenced the excused juror’s further deliberations, for there were none; nor could it have influenced the remaining eleven jurors, because the excused juror had no further contact with them”); United States v. Lustig, 555 F.2d 737, 745-46 (9th Cir.1977) (finding no prejudice from judge’s ex parte interview with juror subsequently dis…

See United States v. Lebon, 4 F.3d 1, 2 (1st Cir.1993) (“[T]he fact that a witness contradicts herself or changes her story does not establish perjury”); United States v. Doherty, 867 F.2d 47, 70 (1st Cir.1989) (finding no decision that “prohibits a prosecutor from calling witnesses who will present conflicting stories”); United States v. Hemmer, 729 F.2d 10, 17 (1st Cir.1984) (“Simply because there exist[s] inconsistencies between [a witness’s] grand jury and trial testimon…

See United States v. Lebon, 4 F.3d 1, 2 (1st Cir.1993) ("[T]he fact that a witness contradicts herself or changes her story does not establish perjury."); United States v. Doherty, 867 F.2d 47, 70 (1st Cir.1989) (finding no decision that "prohibits a prosecutor from calling witnesses who will present conflicting stories"); United States v. Hemmer, 729 F.2d 10, 17 (1st Cir.1984) ("Simply because there exist[s] inconsistencies between [a witness's] grand jury and trial testimo…

Id. at 55. 72 .

United States v. Doherty, 867 F.2d 47, 68 (1st Cir.1989); United States v. Martino, 648 F.2d 367, 381 (5th Cir.1981); United States v. Diecidue, 603 F.2d 535, 547 (5th Cir.1979); cf. United States v. Hooker, 841 F.2d 1225, 1232 (4th Cir.1988) (en banc) (finding indictment insufficient where allegation of effect on interstate commerce was entirely absent from indictment). .

See United States v. Lebon , 4 F.3d 1, 2 (1st Cir. 1993) ("[T]he fact that a witness contradicts herself or changes her story does not establish perjury."); United States v. Doherty , 867 F.2d 47, 70 (1st Cir. 1989) (finding no decision that "prohibits a prosecutor from calling witnesses who will present conflicting stories"); United States v. Hemmer , 729 F.2d 10, 17 (1st Cir. 1984) ("Simply because there exist[s] inconsistencies between [a witness's] grand jury and trial t…

“A jury need not believe that the defendant did everything the indictment charges; it may convict if it believes he did some of the things the indictment charges and if those things, by themselves, amount to a violation of the statute[,]” provided that the indictment “enable[s] the accused to know the nature and cause of the accusation against him.” United States v. Doherty, 867 F.2d 47, 55 (1st Cir.1989) (internal quotation marks omitted).

To the contrary, it need only be a “group of persons associated together for a common purpose of engaging in a criminal course of conduct.” United States v. Owens, 167 F.3d 739 , 751 n. 6 (1st Cir.1999) (quoting United States v. Doherty, 867 F.2d 47, 68 (1st Cir.1989)) (modification omitted). 4.

See, e.g., United States v. Juvenile Male, 118 F.3d 1344, 1347 (9th Cir.1997); United States v. Miller, 116 F.3d 641, 674 (2d Cir.1997); United States v. Doherty, 867 F.2d 47, 68 (1st Cir.1989).

United States v. Doherty, 867 F.2d 47, 58 (1st Cir.), cert. denied, 492 U.S. 918 , 109 S. Ct. 3243 , 106 L.

In determining that an enterprise exists, we may also look to the “number of acts, their relationship, their having taken place over several years, and the consistent participation of the central 14 figures in the scheme.” United States v. Doherty, 867 F.2d 47, 68 (1st Cir. 1989).

United States v. Doherty, 867 F.2d 47, 68 (1st Cir.1989). 7 .

United States v. Doherty, 867 F.2d 47, 55 (1st Cir. 1989).

United States v. Doherty, 867 F.2d 47, 60-61 (1st Cir.), cert. denied, 492 U.S. 918 , 109 S.Ct. 3243 , 106 L.Ed.2d 590 (1989).

United States v. Doherty, 867 F.2d 47, 55 (1st Cir.1989).

See Pope, 481 U.S. at 503 , 107 S.Ct. at 1922 ; United States v. Edmonds, 80 F.3d 810, 825 (3d Cir.) (en banc) (affirming conviction despite misinstruction on an element of the offense when facts establishing that element were so inextricably intertwined with the evidence necessarily accepted by the jury in order to convict that acceptance of that evidence was the functional equivalent of finding those facts), 4 cert. denied, — U.S. -, 117 S.Ct. 295 , 136 L.Ed.2d 214 (1996);…

See Pope, 481 U.S. at 503 , 107 S.Ct. at 1922 ; United States v. Edmonds, 80 F.3d 810, 825 (3d Cir.) (en banc) (affirming conviction despite misinstruction on an element of the offense when facts establishing that element were so inextricably intertwined with the evidence necessarily accepted by the jury in order to convict that acceptance of that evidence was the functional equivalent of finding those facts), 4 cert. denied, --- U.S. ----, 117 S.Ct. 295 , 136 L.Ed.2d 214 (1…

See, e.g., United States v. Morrow, 925 F.2d 779, 781 (4th Cir. 1991); United States v. Doherty, 867 F.2d 47, 67 (1st Cir. 1989); United States v. Hoelscher, 764 F.2d 491, 496 (8th Cir. 1985); United States v. Fern, 696 F.2d 1269, 1276 (11th Cir. 1983); State v. Lingar, 726 S.W.2d 728, 732-33 (Mo. App.), cert. denied 484 U.S. 872 (1987).

United States v. Doherty, 867 F.2d 47, 52-53 (1st Cir.), cert, denied, 492 U.S. 918 (1989).