United States v. Rowland

• Decision Date: 17 June 2016
• Docket Number: August Term, 2015,Docket No. 15-985
• Citation: 826 F.3d 100
• Parties: United States of America, Appellee, v. John G. Rowland, Defendant–Appellant.
• Court: U.S. Court of Appeals — Second Circuit

826 F.3d 100

United States of America, Appellee

v.John G. Rowland, Defendant–Appellant.

Docket No. 15-985

August Term, 2015

United States Court of Appeals, Second Circuit.

Argued: March 18, 2016

Decided: June 17, 2016

Liam B. Brennan, Assistant United States Attorney (Marc H. Silverman, Assistant United States Attorney, on the brief), for Deirdre M. Daly, United States Attorney for the District of Connecticut, New Haven, Connecticut, for Appellee.

Andrew L. Fish (R. James DeRose III, on the brief), Locke Lord LLP, New York, New York, for Defendant–Appellant.

Before: Winter, Chin, and Carney, Circuit Judges.

Susan L. Carney, Circuit Judge:

Defendant-Appellant John G. Rowland, the former governor of Connecticut, came under scrutiny in 2012 for his efforts to obtain paid political consulting work on behalf of two Republican Congressional candidates in the 2010 and 2012 election cycles. One of those candidates, Lisa Wilson–Foley, allegedly arranged with Rowland to pay him through her husband's company, Apple Rehab, to avoid reporting the payments to the Federal Election Commission (“FEC”). After a trial, a jury convicted Rowland on seven counts of violating campaign-finance laws and falsifying records. The United States District Court for the District of Connecticut (Janet Bond Arterton, J. ) sentenced Rowland principally to 30 months' imprisonment.

Rowland now appeals his conviction and sentence. His primary argument on appeal is that 18 U.S.C. § 1519, which prohibits “knowingly ... falsif [ying] ... any record, [or] document,” does not apply to his conduct: namely, preparing contracts that purported to establish business consulting relationships with political candidates or their businesses, when in fact the parties were negotiating for him to provide political consulting services to the candidates' campaigns. He also asserts a Brady violation based on the government's alleged failure to disclose statements made by Lisa Wilson–Foley in an interview with investigators. Finally, he challenges the District Court's evidentiary rulings, jury instructions, and application of the Sentencing Guidelines.

For the reasons set forth below, we AFFIRM the judgment of the District Court. We conclude that the broad language of § 1519 encompasses the creation of documents—like the contracts at issue here—that misrepresent the true nature of the parties' negotiations, when the documents are created in order to frustrate a possible future government investigation. We reject Rowland's assertion that principles of contract law prevent us from concluding that documents styled as contracts are “falsified” within the meaning of the statute. We also determine that the government adequately disclosed Wilson–Foley's statements to Rowland, and that even if it did not, he is not able to show that he was prejudiced by the deficiency. Finally, we reject his challenges to the District Court's other rulings at trial and at sentencing.

BACKGROUND¹

John G. Rowland, the former governor of Connecticut, resigned that post in 2004 amid a corruption scandal, and later pled guilty to a federal charge of conspiracy to commit honest-services and tax fraud. After serving his sentence, Rowland sought to use his political experience by doing political consulting work on behalf of Republican candidates seeking federal office in Connecticut. The instant charges stem from his efforts to secure employment on two campaigns: the 2010 campaign of Mark Greenberg and the 2012 campaign of Lisa Wilson–Foley.

Rowland and Greenberg first met in the summer of 2009, when Greenberg told Rowland he was considering a run for the United States Senate. Rowland suggested that Greenberg “think about Congress” and repeatedly offered to serve as a paid consultant for the campaign. Gov't App. at 23 (Tr. 91:24). Rowland told Greenberg he did not want to be paid by the campaign—which would have had to report his employment—but instead wanted to be paid by Greenberg's business or charitable interests. Later that year, Rowland prepared and gave to Greenberg a draft contract, according to which he proposed to provide “consulting services” for Greenberg's businesses and his nonprofit, the Simon Foundation. Under the proposal, Rowland would be paid $35,000 per month for 14 months and $25,000 per month for the year thereafter. Greenberg never hired Rowland to work on his campaign or for any other entity, and “ripped ... up” the draft contract after his meeting with Rowland. App. at 118 (Tr. 207:16).

Rowland met Wilson–Foley two years later, in September 2011. Rowland contacted Wilson–Foley—who by then had declared her Congressional candidacy—and her husband, Brian Foley, with “an idea to run by [them]”: namely, that he would take on a paid role in her campaign. Gov't App. at 716. Wilson–Foley and her husband believed that Rowland could be helpful to the campaign, but were concerned that (in Foley's words) “having a former governor who was a convicted felon connected to the campaign as an advisor” could potentially jeopardize her candidacy. Gov't App. at 199 (Tr. 796:17-19). Several of Wilson–Foley's staffers and friends urged her to remain at a distance from Rowland.

Foley, who headed Apple Rehab (“Apple”), a nursing home company, made a suggestion: Apple would hire Rowland as a consultant, but in reality Rowland would work primarily for Wilson–Foley's campaign. Because Rowland would be paid by Apple rather than by the campaign, they believed that by this stratagem they could avoid the requirement that his employment be publicly reported to FEC.² Foley and Rowland ultimately agreed that Rowland would receive $5,000 per month, to be paid by Apple's attorney, Christian Shelton, in order to avoid direct “connections” between Rowland and the Foleys. Gov't App. at 724. Wilson–Foley explained to her campaign manager that Rowland would be paid by Apple because “that way they wouldn't have to report it to the FEC.” Gov't App. at 310 (Tr. 1240:23-24).

After this agreement was finalized, Rowland worked on Wilson–Foley's campaign almost daily, vetted press releases, used a campaign e-mail address, and received access to the campaign calendar. He attended staff meetings and was involved with communications strategy and fund-raising. Rowland also did some work for Apple during this period: He met with Apple staff on eight to ten occasions, conducted research at Apple's request about the nursing home industry in Connecticut, helped Apple hire a new lobbyist, and advised Apple on union issues, among other tasks. The record indicates, however, that Rowland's campaign involvement may have substantially exceeded the amount of work he performed on behalf of Apple. For example, during the relevant period, Rowland participated in 787 e-mail exchanges about the campaign, but only 63 e-mail exchanges regarding Apple, and 23 e-mail exchanges about both Apple and the campaign.

Rowland's relationship with the Wilson–Foley campaign became public in April 2012. Although Wilson–Foley, Foley, and Rowland denied anything improper about the arrangement, Rowland's ties to the campaign and Apple ended shortly thereafter. After the disclosures, the federal government began investigating Rowland's work for the campaign.

In June 2014, a grand jury returned an indictment charging Rowland with (1) falsification of records in a federal investigation in violation of 18 U.S.C. § 1519, based on the Greenberg contract; (2) conspiracy to commit various offenses in violation of 18 U.S.C. § 371, based on an alleged unlawful conspiracy with Wilson–Foley and Foley; (3) falsification of records in a federal investigation in violation of 18 U.S.C. §§ 1519 and 2, based on the Foley contract; (4) two counts of causing the submission of false statements to the FEC in violation of 18 U.S.C. §§ 1001(a)(2) and 2, based on the omission of Rowland's payments from two FEC reports filed by the Wilson–Foley campaign; and (5) two counts of causing illegal campaign contributions in violation of 2 U.S.C. §§ 441a(a)(1)(A), 441a(f), and 437g(d)(1)(A)(ii) and 18 U.S.C. § 2, based on Foley's payments to Rowland for his campaign work in 2011 and 2012.

Following a jury trial, Rowland was convicted on all counts. The District Court denied Rowland's motion for a new trial on the basis of alleged Brady violations: namely, the government's alleged failure to disclose certain statements made by Wilson–Foley at an investigatory interview. Rowland was sentenced to 30 months' imprisonment and three years of supervised release. He now appeals both his conviction and sentence.

DISCUSSION

Rowland's primary argument on appeal is that the evidence did not support his convictions under 18 U.S.C. § 1519 because the contract he offered to Greenberg and the contract he signed with the law office of Apple's lawyer, Christian Shelton, were not “falsified” within the meaning of the statute. He also argues that he is entitled to a new trial because the government improperly withheld Brady material from the defense. Finally, he raises a number of other issues relating to the District Court's evidentiary rulings, its jury instructions, and his sentence. We address these arguments in turn.

I. 18 U.S.C. § 1519

We review Rowland's challenge to the sufficiency of the evidence de novo , viewing the evidence “in the light most favorable to the government, with all reasonable inferences drawn in its favor.” United States v. Mi Sun Cho , 713 F.3d 716, 720 (2d Cir. 2013) (per curiam).

Rowland was convicted of two counts of violating 18 U.S.C. § 1519, an obstruction of justice statute that was passed in 2002 as part of the Sarbanes–Oxley Act. The statute prohibits

knowingly alter[ing], destroy[ing], mutilat[ing], conceal[ing], cover[ing] up, falsif[ying], or mak[ing] a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States ... or

...