U.S. v. Tierney

Decision Date08 March 1985
Docket NumberNo. 84-1594,84-1594
Citation760 F.2d 382
Parties18 Fed. R. Evid. Serv. 76 UNITED STATES of America, Appellee, v. Robert F. TIERNEY, Defendant, Appellant. . Heard
CourtU.S. Court of Appeals — First Circuit

Jamie Ann Sabino, Wellesley, Mass., with whom Klibaner & Sabino, Wellesley, Mass., was on brief for defendant, appellant.

Thomas J. Curley, Jr., Asst. U.S. Atty., Boston, Mass., with whom William F. Weld, U.S. Atty., and A. John Pappalardo, Asst. U.S. Atty., Boston, Mass., were on brief for appellee.

Before BREYER and TORRUELLA, Circuit Judges, and SELYA, * District Judge.

SELYA, District Judge.

Appellant, Robert F. Tierney, appeals his conviction in the United States District Court for the District of Massachusetts upon an indictment charging him with eighteen counts of mail fraud in violation of 18 U.S.C. Sec. 1341. The core element of the indictment was the thesis that Tierney, formerly a supervisor of attendance for the school department of the city of Boston, knowingly and wilfully devised and implemented a scheme to defraud the State/Boston Retirement System (SBRS) of pension benefits, whilst repeatedly using the mails in furtherance of his artifice. (Tierney, as a municipal employee, was eligible to partake of the benefices of the SBRS.) The affairs of the SBRS were at the time administered in pertinent part by a Retirement Board (Board).

Tierney was indicted by a federal grand jury on February 15, 1984 and arraigned on February 23. After a six day trial, a jury returned guilty verdicts on all counts on May 24, 1984. He was subsequently sentenced and seasonably prosecuted this appeal.

Appellant raises but two issues for our consideration. He urges, first, that the evidence was insufficient to support the government's case against him. The second string to his bow is that the district judge committed prejudicial error in admitting evidence of, and references to, an earlier indictment lodged against him. We find both contentions bootless.


Tierney's broader proffer need not long detain us (though it necessarily occupies some substantial time to set out the relevant facts). That asseveration questions whether there was enough evidence to support a jury finding that appellant was guilty. The proper yardstick to be applied when the evidence is largely circumstantial is "whether the total evidence, including reasonable inferences, when put together is sufficient to warrant a jury to conclude that defendant is guilty beyond a reasonable doubt." Dirring v. United States, 328 F.2d 512, 515 (1st Cir.1964). See also United States v. Drougas, 748 F.2d 8, 15 (1st Cir.1984); United States v. Mehtala, 578 F.2d 6, 10 (1st Cir.1978); United States v. Francomano, 554 F.2d 483, 486 (1st Cir.1977). See generally Holland v. United States, 348 U.S. 121, 139-40, 75 S.Ct. 127, 137, 99 L.Ed. 150 (1954). In conducting this measurement, we consider the evidence in its totality, taken in the light most flattering to the government, together with all legitimate inferences to be drawn therefrom, in an effort to ascertain whether a rational trier of the facts could have found the appellant guilty beyond any reasonable doubt. Drougas, 748 F.2d at 15; United States v. Smith, 680 F.2d 255, 259 (1st Cir.1982), cert. denied, 459 U.S. 1110, 103 S.Ct. 738, 74 L.Ed.2d 960 (1983); United States v. Patterson, 644 F.2d 890, 893 (1st Cir.1981).

We cannot say that the evidence in this case, so viewed, was inadequate to support the verdicts. To the contrary, after a careful examination of the record, we find the government's proof to be compelling. A decurtate summary, drawn, as required, from the prosecution's vantage point, suffices to make the point beyond cavil.

The saga began with a minor vehicular accident which occurred on November 25, 1975, ostensibly while the appellant was on a work-related mission. Tierney, despite the absence of apparent personal injury or visible damage to either of the cars involved, pressed a bodily injury claim. He had sustained (so he said) cervical and lumbo-sacral damage. He stayed out of work (on sick leave) until the following May. He toiled without incident for the remainder of 1976 and thereafter. Several physicians examined him in 1976 and 1977 in connection with, inter alia, his worker's compensation claim against the city and his third-party tort suit against the adverse operator. There was plethoric evidence that he had, by 1977, fully recovered from whatever neck and back injuries he might have sustained in the November, 1975 accident. Indeed, Tierney himself testified in a deposition taken on July 20, 1977 that he had no lingering sequellae.

The record further reflects that the appellant's employment record was, from mid-1976 forward, admirable. He lost virtually no time from work due to illness of any kind. By way of illustration, he took not a single "sick day" from September 1, 1979 to October 15, 1980. And, during these years, the industrious Mr. Tierney moonlighted in a regular second (evening) job and toiled summers as a gardener (a non-sedentary position which required heavy labor).

On October 15, 1980, without any prior notice to his superiors, the appellant resigned, effective forthwith. That very afternoon, he requested an application for superannuation retirement from SBRS. 1 The Board computed his maximum superannuation benefits and notified him in early December that he would be entitled to receive an annual pension of $10,515. At that point, Tierney seemingly lost interest in exploring this avenue; instead, in July of 1981, he applied to SBRS for an accidental disability retirement pension (ADRP). Such a stipend promised to be considerably more munificent than a superannuation arrangement; ADRP benefits are calculated to equal 72% of the applicant's salary at (i) the time of injury, or (ii) the last year of covered employment, whichever is greater. See M.G.L. c. 32 Sec. 7(2)(a)(ii). There was, however, a catch: an ADRP is available only to one who is totally and permanently disabled, by reason of a work-related injury, from performing his duties. See id.

Tierney posited his ADRP application upon the November 25, 1975 automobile accident. He claimed, in substance, that he had been compelled to quit his job because of severe low-back pain which had plagued him since that occurrence. Various documents which he submitted to the Board in the course of the ensuing proceedings were sent through the mails; these mailings, collectively, form the predicate for the multiple counts of mail fraud set out in the instant indictment. Tierney went through the wonted medical review process and testified at a hearing before the Board on December 8, 1981. The Board hearing was tape recorded, and relevant portions of the tape were admitted into evidence at the trial in the court below. The Board ceded an ADRP to the appellant in January, 1982, retroactive to March 2, 1981, granting him a lifetime annuity of $19,060 yearly.

Though more will be said on the point hereafter, see text post at Part II, it should also be mentioned at this juncture that on October 16, 1980, the day after the appellant so abruptly resigned from his lifelong employment, he was indicted by a federal grand jury for Hobbs Act violations (18 U.S.C. Secs. 1951, 1952) involving an alleged extortion attempt carried out in the course of the school department's business (the 1980 Indictment). Inasmuch as the attempted extortion was an offense cognizable under M.G.L. c. 268A Sec. 25, 2 the bringing of the indictment would have jeopardized any claim by Tierney for retirement benefits of any sort had he not resigned the day before.

We need not burrow into the minutiae of the appellant's deceit. The record of his dealings with the SBRS is honeycombed with evidence of statements, claims, declarations, and assertions by Tierney which, if the jurors believed the government's proof at the trial (as indeed they did), could be viewed only as palpably and designedly false and fraudulent. We call attention to but a few of the strands in the encompassing fabric of Tierney's complicity:

1. His overblown description of the November, 1975 mishap as a "large trauma" and his claim of loss of consciousness and other dread afflictions were belied by the great weight of the credible evidence offered at trial.

2. His jeremiad anent his "gradually increasing low-back pain" and his lament to the Board that his supposed injuries had caused him "continued difficulty" since 1975 were completely undermined not only by the believable medical evidence, but by Tierney's near-perfect work record, his deposition testimony in the civil suit, the absence of any bills for medical treatment between 1976 and 1981, 3 the testimony of coworkers, and his ability both to hold down a second job and to perform the operose tasks of his chosen summertime vocation.

3. The delay in applying for an ADRP, and the intervening exploration of superannuation benefits, were themselves probative. If Tierney had been genuinely disabled, the superannuation pavane would have been entirely unnecessary. No innocent explanation for this delay (or for the ensuing change in signals) satisfactorily appears of record.

4. After the appellant resigned from his school department post, he worked for several weeks in a more physically demanding occupation, i.e., at an automobile maintenance and repair area. That job involved, inter alia, the changing of truck tires. His work was good in all respects.

5. Last--but surely not least--Tierney, shortly before he filed the July, 1981 ADRP petition, applied privately for the issuance of life insurance. He advised the prospective insurer in April of 1981 that he had no physical limitations; that he suffered from no "current medical problems which ... require[d] immediate medical treatment;" 4 that his health was "good;" that he was not taking any medication; and that he had never been "unable to hold a job" because...

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