U.S. v. Arcadipane

• Decision Date: 10 November 1994
• Docket Number: No. 94-1342,94-1342
• Citation: 41 F.3d 1
• Parties: UNITED STATES of America, Appellee, v. Philip G. ARCADIPANE, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1

41 F.3d 1

UNITED STATES of America, Appellee, v. Philip G. ARCADIPANE, Defendant, Appellant.

No. 94-1342.

United States Court of Appeals First Circuit.

Heard Nov. 10, 1994.

Decided Nov. 23, 1994.

Willie J. Davis, with whom Davis, Robinson & White, Boston, MA, was on brief, for appellant.

Robert E. Richardson, Asst. U.S. Atty., with whom Donald K. Stern, U.S. Atty., Boston, MA, was on brief, for appellee.

Before SELYA, Circuit Judge, BOWNES, Senior Circuit Judge, and STAHL, Circuit Judge.

SELYA, Circuit Judge.

Defendant-appellant Philip G. Arcadipane appeals his conviction on multiple counts of mail fraud and making false statements. In the last analysis, the plethora of arguments that he advances, though ably presented, signify nothing of consequence. Accordingly, we affirm.

I. BACKGROUND

In April of 1988, while working for the United States Postal Service, appellant suffered a job-related psychiatric disability. He eventually filed a claim for benefits with the Office of Workers' Compensation Programs (OWCP) of the United States Department of Labor (DOL). He received his first disability check in February of 1989, retired from the Postal Service eight months later, and continued to receive disability payments thereafter.

Prior to the onset of his disability, appellant had been repairing firearms and reloading shell casings as a for-profit sideline. In connection with its initial processing of the disability claim, OWCP wrote to him in June of 1988 requesting information about extra-curricular employment activities. After consulting with counsel, appellant explained that his sideline business had been reorganized and that he was no longer gainfully employed in it. ¹ OWCP did not press the point at that time.

In 1990, 1991, and 1992, OWCP requested appellant, in conjunction with his ongoing receipt of compensation benefits, to complete Form 1032. This is a standardized form designed to obtain historical information regarding benefit recipients' income from sources such as employment and self-employment. OWCP uses the data to compute benefit levels.

On September 7, 1990, after again consulting with counsel, appellant submitted a completed Form 1032 to OWCP. He made similar submissions on September 7, 1991, and August 20, 1992. ² Each time he stated that he "had not been employed for the previous twelve months," and that he "had been unemployed during the previous fifteen months."

In 1992, DOL launched an investigation of appellant's business activities. In May, an agent posing as a purchasing officer for an out-of-state police department contacted appellant and, after some negotiations, ordered 20,000 rounds of ammunition. The "purchaser" arranged to pick up the order at appellant's home. Upon his arrival, however, he whipped out a search warrant instead of a requisition, combed the premises, and seized various incriminating business records (including income tax returns).

Soon thereafter, a federal grand jury returned a 31-count indictment against appellant. Twenty-eight counts charged mail fraud in violation of 18 U.S.C. Sec. 1341 (1988), on the theory that appellant had wrongfully obtained money through the mails (specifically, 28 monthly disability checks) by "falsely [claiming] that [he] was not employed and that [he] was unemployed." The remaining three counts charged appellant with making false statements (one for each Form 1032 that he submitted to OWCP) to the effect that he was "unemployed".

A jury convicted appellant on all counts, and OWCP suspended benefit payments. This appeal ensued.

II. ANALYSIS

Appellant has advanced several asseverations in support of his appeal. We deal with them seriatim.

A. OWCP's Authority.

Appellant maintains that his convictions under the false statement statute cannot stand. ³ He constructs the following syllogism: (1) inasmuch as he was totally disabled during the time frame covered by the indictment, his situation is controlled by 5 U.S.C. Sec. 8105(a) (which provides in relevant part that, when an employee's "disability is total, the United States shall pay the employee during the disability monthly monetary compensation"), (2) section 8105 does not specifically authorize DOL to prod benefit recipients to report earnings from employment and self-employment; ⁴ and, therefore, (3) the government had no authority to request the information that it now asserts appellant falsely supplied. He adds, moreover, that because 5 U.S.C. Sec. 8105 did not authorize the solicitation of earnings information, he had no way of knowing that section 1001 applied to Form 1032, and thus did not receive fair warning that inscribing false statements on the form could subject him to a federal criminal prosecution. We do not find either facet of this argument persuasive.

1. Lack of Authority. It seems self-evident that section 1001 is intended to promote the smooth functioning of government agencies and the expeditious processing of the government's business by ensuring that those who deal with the government furnish information on which the government confidently may rely. To this end, section 1001 in and of itself constitutes a blanket proscription against the making of false statements to federal agencies. Thus, while section 1001 prohibits falsification in connection with documents that persons are required by law to file with agencies of the federal government, see, e.g., United States v. Dale, 991 F.2d 819, 828-29 (D.C.Cir.) (involving a fraudulent application for a Department of Defense security clearance), cert. denied, --- U.S. ----, ----, 114 S.Ct. 286, 650, 126 L.Ed.2d 236 (1993), its prohibitory sweep is not limited to such documents. The statute equally forbids falsification of any other statement, whether or not legally required, made to a federal agency. See United States v. Meuli, 8 F.3d 1481, 1485 (10th Cir.1993) (explaining that section 1001 "prohibits false statements whether or not another law requires the information be provided"), cert. denied, --- U.S. ----, 114 S.Ct. 1403, 128 L.Ed.2d 76 (1994); United States v. Kappes, 936 F.2d 227, 231 (6th Cir.1991) (explaining that section 1001 itself provides "clear statutory authority to justify holding [persons] to the reporting requirement"); United States v. Olson, 751 F.2d 1126, 1127 (9th Cir.1985) (per curiam) (holding that section 1001's prohibition of false statements is not restricted to those that are submitted pursuant to some (other) specific statutory requirement); see also United States v. Corsino, 812 F.2d 26, 31 (1st Cir.1987) (holding sub silentio to same effect).

Applying this rationale to the case at hand, we conclude that the "lack of authority" issue is a red herring. Under section 1001, the government does not need to show that it had some particular extrinsic authority to request the information falsely provided by the defendant. Consequently, whether DOL or OWCP had the specific statutory authority to seek employment and self-employment data from appellant is irrelevant to the validity of the convictions under review.

2. Fair Warning. The second prong of appellant's assignment of error posits that, because the benefits he received under 5 U.S.C. Sec. 8105 were not conditioned by statute upon his truthful completion of Form 1032, he did not receive fair warning that inscribing false statements on that form would expose him to criminal charges. Appellant's protest lacks force.

To be sure, the Due Process Clause forbids the government from depriving an individual of his liberty by reason of specified conduct unless he is given fair warning of the consequences of that conduct. See Marks v. United States, 430 U.S. 188, 191, 97 S.Ct. 990, 992, 51 L.Ed.2d 260 (1977); United States v. Gallo, 20 F.3d 7, 12 (1st Cir.1994). Fair warning thus requires that a criminal statute be sufficiently definite to apprise a person of ordinary intelligence that his anticipated behavior will transgress the law. See United States v. Barker Steel Co., 985 F.2d 1123, 1129 (1st Cir.1993). Fair warning, however, does not mean that the first bite is free, nor does the doctrine demand an explicit or personalized warning. Although a prospective defendant is entitled to notice of what behavior will be deemed to infract the criminal code, the fair warning doctrine neither excuses professed ignorance of the law nor encourages deliberate blindness to the obvious consequences of one's actions. See Gallo, 20 F.3d at 12.

In this instance, appellant had ample warning because section 1001 is clear on its face. The Court held as much in United States v. Yermian, 468 U.S. 63, 104 S.Ct. 2936, 82 L.Ed.2d 53 (1984), a case in which the defendant made false statements on a form provided by his employer. The employer, unbeknownst to the defendant, later forwarded the form to the Department of Defense. In affirming the defendant's conviction, the Court held that section 1001 "unambiguously dispenses with any requirement that the Government also prove that [the false] statements were made with actual knowledge of federal agency jurisdiction." Id. at 69, 104 S.Ct. at 2940 (citations omitted). Under Yermian, the plain language of section 1001 constitutes a constitutionally sufficient warning.

We think that the instant case is even stronger than Yermian. Here, appellant knew that Form 1032 originated with a government agency. He had every reason to believe that the continued receipt of government funds--his disability benefits--depended at least in part, on his responses. Form 1032 itself placed appellant on notice, through a warning conspicuously printed on the front page of the form, that he must make honest answers to the questions, regardless of who would later read the completed document. In short, appellant's claim that he was not adequately forewarned rings surpassingly hollow.

B. Variance.

The indictment charged, inter alia, that appellant falsely stated on Form 1032 that he was "unemployed." Appellant complains...