United States v. Brown

• Citation: 945 F.3d 597
• Decision Date: 20 December 2019
• Docket Number: No. 18-1620,18-1620
• Parties: UNITED STATES of America, Appellee, v. Suzanne BROWN, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

945 F.3d 597

UNITED STATES of America, Appellee,

v.Suzanne BROWN, Defendant, Appellant.

No. 18-1620

United States Court of Appeals, First Circuit.

December 20, 2019

Julia Pamela Heit, New York, NY, for appellant.

Seth R. Aframe, Assistant United States Attorney, with whom Scott W. Murray, United States Attorney, was on brief, for appellee.

Before Thompson, Selya, and Barron, Circuit Judges.

BARRON, Circuit Judge.

Suzanne Brown was convicted in the United States District Court for the District of New Hampshire in 2017 on twelve counts of making a materially false statement to a federal agency under 18 U.S.C. § 1001(a)(2). She now appeals from those convictions on a number of grounds, including that she received ineffective assistance of counsel at trial in violation of the Sixth Amendment of the federal Constitution. We dismiss without prejudice her claim of ineffective assistance of trial counsel. We reject her other challenges to her convictions.

I.

Suzanne Brown founded and ran a nonprofit agricultural organization, the New Hampshire Institute of Agriculture and Forestry ("NHIAF").¹ The NHIAF owned and operated two small plots of land that it rented out to novice farmers and on which it provided agricultural instruction to them. The NHIAF also delivered produce from New Hampshire farmers to buyers elsewhere in the state.

On behalf of the NHIAF, Brown applied for and obtained Rural Business Enterprise Grants ("RBEGs") from the United States Department of Agriculture ("USDA" or "the Department") for both 2011 and 2012. Funds from those grants, which were awarded competitively, were to be used in part to pay Julie Moran and Wilma Yowell for their work as independent contractors for the NHIAF.

To obtain the funds that the RBEGs provided, Brown each month filled out, signed, and submitted a standardized government form -- labeled the "Standard Form 270" ("SF-270") -- to the Department. On each such SF-270, she listed the "[t]otal program outlays" for the month; these dollar amounts, Brown concedes, were based in part on the amount of work that Moran and Yowell had performed for the NHIAF. She also checked a box that confirmed that she was seeking "reimbursement" payments. In addition, on each such SF-270, she signed a certification that stated that "to the best of my knowledge ... all outlays were made in accordance with the grant conditions." The grant conditions were set forth, in part, in a separate letter of conditions from the Department, most of which Anne Getchell, a Department employee, testified that she had reviewed line-by-line with Brown when the NHIAF was awarded the first RBEG.

Brown attached typed reports to the first three SF-270s that she submitted. The typed reports set forth the number of hours that Moran and Yowell allegedly had worked for the NHIAF. Getchell testified that she told Brown that better documentation -- in the form of invoices or paystubs -- would be required in the future. Thereafter, Brown attached invoices that identified the hours that Moran and Yowell allegedly had worked for the NHIAF.

The NHIAF had not paid either Moran or Yowell at the time that Brown submitted the SF-270s. In fact, the NHIAF did not at any point pay them, though the NHIAF did occasionally provide them with some groceries and reimburse them for specific expenditures that they had made with their own funds.

On February 10, 2016, Brown was indicted in the District of New Hampshire on twelve counts of "Making a Material False Statement to a Federal Agency" under 18 U.S.C. § 1001(a)(2). That provision criminalizes, "in any matter within the jurisdiction of the executive ... branch of the Government of the United States, knowingly and willfully ... mak[ing] any materially false ... statement or representation." Id.

Each of the twelve counts charged Brown with falsely "representing to the [Department], in a Standard Form 270 ‘Request for Advance or Reimbursement’ and appended supporting documentation, that the [NHIAF] -- of which BROWN was the Executive Director -- had paid [funds] to [the] NHIAF employees [Moran and Yowell] for services rendered, as grounds to draw down funds from a previously approved USDA [RBEG]." Counts four through nine of the indictment, moreover, charged Brown not only with falsely claiming that the NHIAF had made "payments to [Moran] and [Yowell] for the services rendered" but also with falsely representing that Moran and Yowell "prepared or approved the invoices submitted by BROWN with the Standard Form 270." Counts ten through twelve omitted the references to Yowell but were otherwise the same as counts four through nine.

On January 26, 2017, Brown was convicted by a jury on all twelve counts. After the verdict, Brown brought multiple challenges to her convictions, including that she had received ineffective assistance of counsel at trial. The District Court held an evidentiary hearing on the motion for new trial that she filed based on the claimed ineffective assistance of trial counsel. The hearing focused on a discrete aspect of that motion, which concerned a chambers conference that the District Court had convened to address how to respond to a request for additional information that the jury made during its deliberations. The District Court ultimately denied the motion for new trial based on ineffective assistance of counsel without prejudice. The District Court sentenced Brown to a term of twelve months of imprisonment. She then timely filed this appeal.

II.

We start with Brown's contention that her convictions were not supported by sufficient evidence. The government counters that the evidence sufficed to show that, by listing as "total program outlays" on the SF-270s certain dollar amounts that Brown concedes were partly based on the hours of work that Moran and Yowell had performed for the NHIAF, Brown was necessarily falsely representing to the Department that Moran and Yowell already had been paid for that work when they had not been. At trial, in support of that basis for finding Brown guilty on each of the twelve counts, the government put forth the testimony of Getchell, the Department employee, who stated that the meaning of "total program outlays" on the SF-270 was such that, by listing the dollar figures for the "total program outlays," Brown was necessarily representing that the NHIAF had already paid out the listed amount of funds to Yowell and Moran and not simply that it owed them that amount for the work that they had already performed for the NHIAF but for which the NHIAF had not yet paid them.

The government separately contends, however, that the evidence also sufficed to show that Brown, in her SF-270 submissions, falsely represented that Moran and Yowell already had been paid for their work in another way. The government points out that the SF-270 that Brown signed each month expressly stated that "all outlays were made in accordance with the grant conditions or other agreement." (emphasis added). Because there are no other relevant agreements, the government argues that, in signing and submitting the SF-270s, she was necessarily certifying her compliance with the grant conditions. That certification is important, the government then goes on to contend, because the evidence at trial included the letter from the Department that set forth the grant conditions, which stated that "[t]he [a]gency will disburse grant funds ... on a reimbursement basis" and that "[a]dequate documentation will be required to evidence expenditures." Furthermore, the evidence at trial included Getchell's testimony that she had reviewed most of that letter with Brown line-by-line, that the grant conditions independently required Brown to "actually spend the funds for the purposes outlined" before the Department would reimburse the funds, and that the documentation condition in particular required "show[ing] what was paid out." This testimony accords, moreover, with the text of the grant conditions letter, as the letter states that the funds would be paid out on a "reimbursement" basis and that the NHIAF needed to document "expenditures" to receive funding.

In her opening brief to us, Brown contends, and the government does not dispute, that the term "outlays" in the SF-270 encompasses "in-kind contributions." She then contends that a circular from the United States Office of Management and Budget ("OMB") defines "[t]hird party in-kind contributions" to include uncompensated work performed by contractors. In her view, because the circular purports to establish uniform administrative requirements for certain federal grants, the definition of "third party in-kind contributions" that it provides fatally undermines the government's contention that, when she listed certain dollar amounts as "total program outlays" on the SF-270s, she was necessarily representing that the NHIAF had paid Yowell and Moran for their work for the NHIAF rather than merely that they were owed that amount of money for the work that they had performed for it but for which they had not yet been paid. The government responds, however, that Brown testified that she knew the monies from the grant were meant to reimburse her for paying "salaries," and not to pay her for Yowell and Moran's uncompensated work.

Brown does not address in her opening brief, however, any of the evidence that the government introduced at trial and that we have described above, which concerns the import of her certification to having complied with the grant conditions. Instead, she focuses solely on the evidence introduced at trial that concerns the import of her representation concerning "total program outlays." Thus, Brown leaves unaddressed the other evidentiary basis for affirming the convictions on which the government relies, which consists of the evidence that concerns her certification of compliance with the grant conditions. To be sure, Brown does purport to address in her reply brief this other basis for finding that her convictions were supported...