United States Court of Appeals

For the First Circuit

No. 22-1075

UNITED STATES OF AMERICA,

Appellee,

v.

MARK MOFFETT,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William D. Young, U.S. District Judge]

Before

Barron, Chief Judge,

Lynch and Gelpí, Circuit Judges.

Michael Pabian, with whom Martin G. Weinberg was on brief, 

for appellant.

Karen L. Eisenstadt, Assistant United States Attorney, with 

whom Rachael S. Rollins, United States Attorney, was on brief, for 

appellee.

November 18, 2022
- 2 -

BARRON, Chief Judge. Mark Moffett was charged in 2019 

in the United States District Court for the District of 

Massachusetts with nine counts of wire fraud and six counts of 

aggravated identity theft for his participation in an alleged 

health insurance fraud scheme. After a ten-day jury trial, he was 

convicted on all counts. Moffett contends in this appeal that the 

convictions must be vacated on a number of distinct grounds, 

including the one that we conclude is decisive -- namely, that the 

verdict form that was submitted to the jury violated Moffett's

federal constitutional right to a jury trial by expressly referring 

to certain trial exhibits that the government alone selected while 

not otherwise referring to any of the evidence in the case.

I.

Moffett joined Aegerion, a Cambridge, Massachusettsbased pharmaceutical company, as a sales representative in 2014. 

The company at that time promoted and sold a cholesterol-lowering 

drug, "Juxtapid." The sticker price for Juxtapid was as high as 

several hundreds of thousands of dollars per patient, per year. 

For each "sale" of the drug, sales representatives for Aegerion 

like Moffett received a bonus.

The U.S. Food and Drug Administration ("FDA") as of that 

time had approved Juxtapid only for the treatment of a specific 

disease, homozygous familial hypercholesterolemia ("HoFH"). Many 

health insurance companies in turn had approved coverage for 
- 3 -

Juxtapid only if it had been prescribed to a patient to treat a 

qualifying HoFH diagnosis. Moffett often assisted doctors and 

their offices with completing health insurance paperwork, 

including documents necessary to demonstrate the requisite 

indication of such a diagnosis so that a prescription for Juxtapid 

would be covered by the patient's insurance.

In 2019, a federal grand jury in the District of 

Massachusetts indicted Moffett on nine counts of wire fraud under 

18 U.S.C. § 1343 and six counts of aggravated identity theft under 

18 U.S.C. § 1028A. 1 The indictment alleged that Moffett 

"devised . . . a scheme and artifice to defraud, and to obtain 

money from health insurance companies to pay [Aegerion] for 

[Juxtapid] by falsely representing that patients for whom doctors 

had prescribed [the drug] met the health insurance companies' 

coverage criteria."

1 The wire fraud statute, 18 U.S.C. § 1343, provides that 

"[w]hoever, having devised or intending to devise any scheme or 

artifice to defraud, or for obtaining money or property by means 

of false or fraudulent pretenses, representations, or promises, 

transmits or causes to be transmitted by means of 

wire . . . communication in interstate or foreign commerce, any 

writings . . . for the purpose of executing such scheme or 

artifice, shall be fined under this title or imprisoned not more 

than 20 years, or both." 

The aggravated identity theft statute, 18 U.S.C. § 1028A, as 

relevant here, provides that "[w]hoever, during and in relation to 

[a wire fraud offense], knowingly . . . uses, without lawful 

authority, a means of identification of another person shall, in 

addition to the punishment provided for such felony, be sentenced 

to a term of imprisonment of 2 years."
- 4 -

A ten-day jury trial was held in the District of 

Massachusetts in December 2019. The government introduced 

evidence at trial of communications that it claimed included false 

statements about patient diagnoses that had been submitted to 

health insurers to obtain reimbursement from them for 

prescriptions for Juxtapid. The government also put on witnesses 

-- including five doctors and some of their staff members -- to 

show that Moffett made or caused those false statements to be made 

regarding the diagnoses of the patients for whom Juxtapid had been 

prescribed and for which reimbursement from the health insurers 

had been sought.

According to the government, Moffett's alleged false 

statements on the insurance documents were communicated to health 

insurers through "wires." 18 U.S.C. § 1343. The government also 

alleged that Moffett included the doctors' identifying information 

on some of those documents in a manner that constituted the

unauthorized "uses" of that identifying information for purposes 

of the federal statute that makes identity theft a crime. 18 

U.S.C. § 1028A.

Moffett introduced evidence at trial of email exchanges

with doctors that he argued demonstrated that they were aware of 

the only approved use of Juxtapid and that he did not actually

encourage "off label" prescriptions for that drug. He also

elicited testimony for the purpose of impugning the credibility of 
- 5 -

the witnesses whose testimony tended to suggest that Moffett added 

false information or signatures to insurance letters and 

authorization forms. He further introduced evidence that sought 

to show that at least some of the doctors personally approved and 

signed the allegedly fraudulent documents.

On the second day of trial, after the jury had been 

dismissed, the District Court informed the parties that it had 

been working on a verdict form to give to the jury that would 

"organize[] the case in a logical foundation." The next day the 

District Court provided the parties with the draft verdict form

and invited the government to select an exhibit that constituted

the alleged "wire" for each of the wire fraud counts, as well as 

an exhibit that constituted the alleged "use" for each of the 

"identity theft" counts, so that the selected exhibit could be 

identified on the verdict form in relation to the relevant count.

The government obliged.

Moffett objected both orally and in a written filing to 

the proposed verdict form insofar as it would reference the 

government-selected exhibits. 2 Moffett argued that if the 

District Court submitted to the jury such a verdict form, then the 

District Court would be "invading the province of the jury to 

2 Moffett also objected to the District Court's decision to 

re-order the counts on the verdict form, but he does not press 

that theory of error on appeal, and we therefore do not address 

it.
- 6 -

deliberate how it wants to deliberate and . . . relieving the 

government of [its] burden" to "identify and prove which 

communications are the subject of the various counts in the 

indictment without assistance from the court or suggestion from 

the verdict slip." Moffett proposed that the District Court 

instead provide the jury a verdict form that did not list any 

exhibits. The District Court denied the objection, noting that 

"[y]our rights are saved, but we're going to use the verdict slip 

as [the District Court] proposed it."3F

Five of the nine exhibits that the government selected 

to support the wire fraud counts contained the document that the 

government alleged Moffett had faxed to insurance companies

(Counts 3, 4, 7, 8, and 9), two of the nine exhibits contained

emails that Moffett had sent about new Juxtapid prescriptions 

(Counts 5 and 6), and the other two exhibits contained "[s]creen 

shots" of Aegerion's salesforce.com account showing data entries 

about various communications between Aegerion and insurance 

companies (Counts 1 and 2).

Each of the six aggravated identity theft counts was 

based on an alleged use of a doctor's identifying information in 

an insurance document associated with one of the faxes or emails 

that the government alleged constituted a fraudulent wire. Thus, 

the exhibits selected by the government to support the aggravated 

identity theft counts -- except for one -- were the same exhibits 
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that it had selected to support the corresponding wire fraud counts 

(Counts 10, 11, 13, 14, and 15).

The other exhibit referenced on the verdict form that 

had been selected by the government pertained to Count 12. This 

exhibit contained an insurance authorization form that Moffett had 

allegedly faxed and which he had referenced in an email the same 

day, which the government alleged was the corresponding "wire." 

The resulting verdict form that the District Court 

provided to the jury for it to use appeared as follows:

* * *

We find Mark T. Moffett as to

1. Count 2, charging wire fraud on or about 

May 7, 2014 (Exhibit 53):

_______ not guilty _______ guilty

2. Count 3, charging wire fraud on or about 

May 14, 2014 concerning a certain FAX 

(Exhibit 66):

_______ not guilty _______ guilty

3. Count 10, charging aggravated identity 

theft on or about May 14, 2014 concerning 

a certain FAX (Exhibit 66):

_______ not guilty _______ guilty

4. Count 1, charging wire fraud on or about 

May 19, 2014 (Exhibit 42):

_______ not guilty _______ guilty

5. Count 4, charging wire fraud on or about 

May 22, 2014 concerning a certain FAX 

(Exhibit 77):
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_______ not guilty _______ guilty

6. Count 11, charging aggravated identity 

theft on or about May 22, 2014 concerning 

a certain FAX (Exhibit 77):

_______ not guilty _______ guilty

7. Count 5, charging wire fraud on or about 

August 5, 2014 concerning a certain e-mail 

(Exhibit 86):

_______ not guilty _______ guilty

8. Count 12, charging aggravated identity 

theft on or about August 5, 2014 concerning 

a certain FAX (Exhibit 93):

_______ not guilty _______ guilty

9. Count 8, charging wire fraud on or about 

August 15, 2014 concerning a certain FAX 

(Exhibit 124):

_______ not guilty _______ guilty

10.Count 6, charging wire fraud on or about 

August 20, 2014 concerning a certain e-mail 

(Exhibit 96):

_______ not guilty _______ guilty

11.Count 13, charging aggravated identity 

theft on or about August 20, 2014 

concerning a certain email (Exhibit 96):

_______ not guilty _______ guilty

12.Count 7, charging wire fraud on or about 

September 17, 2014 concerning a certain FAX 

(Exhibit 109):

_______ not guilty _______ guilty
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13.Count 14, charging aggravated identity 

[sic] on or about September 17, 2014 

concerning a certain FAX (Exhibit 109):

_______ not guilty _______ guilty

14.Count 9, charging wire fraud on or about 

September 4, 2015 concerning a certain FAX 

(Exhibit 148):

_______ not guilty _______ guilty

15.Count 15, charging aggravated identity 

theft on or about September 4, 2015 

concerning a certain FAX (Exhibit 148):

_______ not guilty _______ guilty

* * *

On the final day of trial, after the close of evidence 

and closing arguments, the District Court prepared the jury for 

its deliberations. In doing so, the District Court provided the 

following instructions about the verdict form:

Take a look at the verdict slip. I set it up 

-- simply because I think it may be helpful to 

you in analyzing the case, I simply put the 

counts and I set them up chronologically. 

There's 15 of them. There's two types of 

counts. 

One type charges wire fraud . . . . The other 

type of charge is aggravated identity theft. 

The reason that there are different counts are 

each time the government has alleged that the 

crime was committed, that's a separate crime, 

it involved a different, um, document or a 

different setting. The government has argued 

that it's the same scheme. I have nothing to 

say about that. But each -- the law is that 

each time the law is violated, that's a 

different crime. That's what the counts 

allege.
- 10 -

And then I've explained each one and, um, you 

have a large mass of exhibits and the 

government suggests -- this is not me 

suggesting, but I've at least adopted their 

numbering, the government suggests that the 

actual document, which is the evidence of the 

particular crime being committed, where there 

is a particular document is set forth with the 

exhibit number. That's what they suggest, 

it's not what I suggest, but this is so that 

you'll look there in order to do your 

analysis.

Let me say one other thing and we'll get into 

it. On this evidence your verdict on each of 

the 15 counts can be not guilty, it can be 

guilty, or it can be any combination of not 

guilty or guilty, with the following 

exception. Let me take a look at Numbers 2 

and 3, this is the example, but you'll see 

this again in other pairings throughout this 

verdict slip, and I use my Numbers 2 and 3 

just to illustrate it.

The government says, they've charged in Count 

3 that certain facts, which they say is 

Exhibit 66, is evidence of wire fraud. They 

also say, in Count 10, that the same facts is 

evidence of aggravated identity theft. And 

there is a relationship, and it's this. If 

you find Mr. Moffett not guilty on Count 3, 

the wire fraud, you must find him not guilty 

on the related Count 10, aggravated identity 

theft. The contrary is not true. If you find 

Mr. Moffett guilty of wire fraud on Count 3, 

he's not necessarily guilty on Count 10, and 

you must go on and evaluate that.

At sidebar following that instruction, counsel for the

government asked the District Court to clarify the instruction. 

The government explained that the District Court had told "the 

jury that the exhibit number [on the verdict slip was] the evidence 
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of a crime, but that's actually a reference to the wire, which is 

a unit of the charge." Back in front of the jury, the District 

Court then sought to clarify the instruction:

I think I said, um, trying to be helpful, I 

pointed out that, um, the reference to a 

specific exhibit was what the government says 

is evidence of the -- of the wire fraud or the 

aggravated identity theft. More specifically 

it's pointed out that that is the document 

that supposedly went over the wires. There 

may be other documents that they claim is 

evidence, but that's supposedly the document 

that went over the wires. 

The District Court released the jury to begin its 

deliberations after providing the jury with other instructions not 

relevant here. Following approximately an hour of deliberations, 

the jury sent a note to the District Court. The note inquired, 

"Can we please have a written description of what the charges are, 

definitions and qualifications of wire fraud and identity theft?" 

With the jury back in the courtroom, the District Court informed 

the jurors that the answer to their question was yes, "but not 

right away." The District Court explained that it would likely 

take until the following morning for the court reporter to prepare 

an exact version of what the court had said, but that the jurors

were free to reach a verdict in the meantime. The jury then 

resumed deliberations and, just over two hours later, returned a 

guilty verdict on all 15 charges.
- 12 -

The District Court sentenced Moffett to 54 months in

prison on October 28, 2021, and final judgment issued on January 

26, 2022. Moffett now timely appeals his convictions.

II.

Moffett contends on appeal that the District Court 

deprived Moffett of his "right to a trial by jury" under the Sixth 

Amendment to the U.S. Constitution by submitting the verdict form 

for the jury's use. He further contends that the government has 

failed to show that the constitutional violation was harmless 

beyond a reasonable doubt and thus that each of the convictions 

must be vacated. We agree.

A.

The Sixth Amendment provides in relevant part: 

In all criminal prosecutions, the accused 

shall enjoy the right to a speedy and public 

trial, by an impartial jury of the State and 

district wherein the crime shall have been 

committed, which district shall have been 

previously ascertained by law, and to be 

informed of the nature and cause of the 

accusation . . . .

The Supreme Court of the United States in construing 

this constitutional guarantee has long recognized that district

courts have substantial discretion both in administering trials in 

criminal cases and in managing jury deliberations in such trials. 

See Quercia v. United States, 289 U.S. 466, 469–70 (1933); 

Bollenbach v. United States, 326 U.S. 607, 612 (1946). The Court 
- 13 -

has also long made clear, however, that there are "inherent 

limitations" on the "privilege of the judge to comment on the 

facts." Quercia, 289 U.S. at 470.4F

These "inherent limitations" reflect the practical 

reality that "under any system of jury trials the influence of the 

trial judge on the jury is necessarily and properly of great 

weight" and that a trial judge's "lightest word or intimation is 

received with deference[.]" Starr v. United States, 153 U.S. 614, 

626 (1894). The Court for that reason has long admonished trial 

judges that, in addressing the evidence, "great care should be 

exercised that such expression should be so given as not to 

mislead, and especially that it should not be one-sided." Id. 

The caution aims to ensure that trial judges do not in addressing 

the evidence "interfere with the jurors' independent judgment in 

a manner contrary to the interests of the accused." United States

v. Martin Linen Supply Co., 430 U.S. 564, 573 (1977).

Consistent with this understanding of the Sixth 

Amendment, our precedents recognize that the jury must be free not 

only from "direct control in its verdict" by the district court 

but also "from judicial pressure" "[i]n the exercise of its 

functions." United States v. Spock, 416 F.2d 165, 181 (1st Cir. 

1969) ("Put simply, the right to be tried by a jury of one's peers 

finally exacted from the king would be meaningless if the king's 

judges could call the turn."). We have thus explained that a 
- 14 -

district court in commenting on the evidence to the jury in a 

criminal case may not do so in a manner that "usurp[s] the jury's 

factfinding role," United States v. Rivera-Santiago, 107 F.3d 960, 

965 (1st Cir. 1997) (per curiam), or "relieve[s] the prosecution 

of [its] burden in an unfair way," United States v. Argentine, 814 

F.2d 783, 787–89 (1st Cir. 1987).

Accordingly, in Rivera-Santiago, we held that a district 

court's answer to a jury's question that "selected only a part of 

[a witness's] testimony given on direct examination to be read"

back to the jury violated the defendants' Sixth Amendment right to 

a trial by jury. 107 F.3d at 965-67. We explained that the 

violation resulted because the district court's answer to the 

jury's question "culled the evidence" in a manner that was contrary 

to the defendants' interests. Id. at 967. That was so, we 

explained, because the district court through the answer 

effectively directed the jury to consider only certain testimony

that favored the government, even though "defendants [a]re 

entitled to have their theory of the case, as developed through 

their evidence, presented to the jury on an equal footing with the 

government's theory of the case." Id.

We also have indicated that a district court may cross 

the constitutional line even without in effect directing the jury 

to consider only the government's evidence. We have indicated 

that the constitutional line also may be crossed whenever the 
- 15 -

district court, in addressing the jury regarding evidence, places 

"undue weight" on portions of the government's evidence and thereby 

tilts the trial in that party's favor. United States v. Almonte,

594 F.2d 261, 265 (1st Cir. 1979) (holding that the district court 

did not err in declining to answer a jury question seeking 

reutterance of trial testimony related to "the timing of [a 

particular day's] events," citing United States v. Baxter, 492 

F.2d 150, 175 (9th Cir. 1973)); Baxter, 492 F.2d at 175 n.19

(explaining that the district court's denial of a jury's request 

for testimony from specific witnesses was proper because doing so 

would have "give[n] over-emphasis to that particular area of 

evidence"). 

B.

We do not confront here a district court's response to 

a jury's question regarding the evidence as we confronted in prior 

cases that have addressed Sixth Amendment challenges based on 

contentions that the district court had commented on the evidence 

in an impermissible manner. Nor do we consider here an instance 

of a trial judge commenting on the evidence in a criminal case 

that precisely mirrors any fact pattern that either our Circuit or 

-- as far as we are aware -- any other has encountered. But, the 

novelty of this fact pattern does not insulate the District Court's 

choice to invite the government to select the exhibit to be 

referenced with respect to each count on the verdict form from 
- 16 -

Sixth Amendment review. If anything, the novelty of that choice 

tends to heighten our concern that, as Moffett contends, that 

choice fell outside the District Court's considerable discretion 

to manage a criminal trial. See Spock, 416 F.2d at 183 ("We are 

not necessarily opposed to new [criminal] procedures just because 

they are new, but they should be adopted with great hesitation."). 

That said, the novelty of the District Court's choice in 

this case does not suffice in and of itself to show that the 

procedure was violative of the Sixth Amendment. Instead, under 

our precedents, we must conduct a "review of the record" so that 

we may determine whether, given the surrounding "context," the 

District Court's submission of this verdict form for use by the 

jury "usurped the jury's factfinding role," Rivera-Santiago, 107 

F.3d at 965, in a "manner contrary to the interests of the 

accused," Martin Linen Supply, 430 U.S. at 573. 

The parties appear to agree that, in conducting this 

inquiry, we must review the District Court's choice to submit this 

verdict form to the jury under an abuse of discretion standard, 

given that Moffett preserved this challenge below. We proceed on 

that understanding. See United States v. Ellis, 168 F.3d 558, 562 

(1st Cir. 1999); see also Rivera-Santiago, 107 F.3d at 966 n.6 

(citing United States v. Aubin, 961 F.2d 980, 983 (1st Cir. 1992)). 

And, as we will explain, we conclude that the District Court did 

abuse its discretion here, even after accounting for the jury 
- 17 -

instructions that the District Court gave that pertained to the 

verdict form.

The government is right that the inclusion of the exhibit 

numbers on the verdict form did not implicitly "direct the jury"

to find Moffett guilty based on certain pieces of evidence.

Indeed, the District Court clarified in instructing the jury that 

the listed exhibits represented only what the government had 

alleged were the "wires" and "uses." But, we are nonetheless 

persuaded that -- in context -- the District Court, through the 

verdict form and the instructions given to the jury that pertained 

to that form, invaded the jury's power over factfinding by overemphasizing certain of the government's evidence in a manner that 

was contrary to Moffett's interests. 

1.

The District Court gave the verdict form directly to the 

jury and that form was printed under official court caption. The 

form then referred to a single government-selected exhibit -- and 

only that government-selected exhibit, among all the evidence 

introduced at trial -- for each of the listed counts.

Moreover, the verdict form did not contain any language 

that suggested that the exhibit that was referenced for each count 

was to be considered only for a limited purpose as to that count. 

Instead, the form simply identified the government-selected 
- 18 -

exhibit in parentheses next to each count, while refencing no other 

evidence.

To be sure, none of the government-selected exhibits

that is uniquely listed for each count on its own contained

sufficient evidence to prove all of the elements of the offense

charged for that count. But, the exhibit referenced in each 

instance contained the very evidence that the government claimed

at trial established that Moffett had made the alleged 

"false . . . representations," 18 U.S.C. § 1343, and/or "uses [of] 

a means of identification of another person," 18 U.S.C. § 1028A. 

Thus, for each count, an especially salient component of the 

evidence on which the government relied in support of the various 

charges was singled out, while no reference was made to any exhibit

or other evidence that Moffett had highlighted at trial in his 

defense to those same charges.

2.

The government does not -- because it cannot -- deny 

that the verdict form had the qualities that we have just 

described. The government nonetheless contends that the District 

Court's choice to submit such a verdict form to the jury did not 

constitute an abuse of discretion for Sixth Amendment purposes in 

light of the instructions that the District Court gave to the jury 

that pertained both to the verdict form and to the evidence more 

generally.
- 19 -

Specifically, the government contends that the District 

Court explained in those instructions that the exhibits were 

referenced on the verdict form only for the purpose of identifying 

which "wire" and which "use" of a doctor's information was at issue 

in each count. The government then adds that Moffett did not 

dispute at trial -- nor does he dispute on appeal -- that the 

referenced exhibit did in fact refer to a "wire" or "use" of 

information that had occurred, or that the "wire" or "use" to which 

each exhibit referred was in fact the "wire" or "use" that the 

government identified as the predicate "wire" or "use" for the 

charge set forth in the count. In addition, the government

emphasizes that the District Court instructed the jury to review 

all the evidence in reaching its own conclusions about the ultimate 

question of whether the government had proved the elements 

necessary to establish each crime.

The problem with the government's attempt to fend off 

Moffett's Sixth Amendment challenge by pointing to the jury 

instructions is that in certain respects the instructions added to 

the emphasis that the verdict form already gave to the governmentselected exhibits merely by referencing them while not otherwise 

referencing any other evidence. For example, in the course of 

explaining the verdict form to the jury and the references to the 

exhibits that the form contains, the District Court stated: "you 

have a large mass of exhibits and . . . the government suggests 
- 20 -

that the [exhibits listed on the form are] the evidence of the 

particular crime being committed." (Emphasis added.) The District 

Court then added, "it's not what I suggest, but this is so that 

you'll look there in order to do your analysis." (Emphasis added.)

The District Court went on thereafter to state that "some of these 

exhibits, which the government says are evidence of wire fraud, 

the government also says are evidence that Mr. Moffett is guilty 

of aggravated identity theft." And, even after the government 

asked the District Court to clarify the purpose for which the 

verdict form was referencing the government-selected exhibits, the 

District Court simply instructed the jury that "I pointed out 

that . . . the reference to a specific exhibit was what the 

government says is evidence of the . . . wire fraud or the 

aggravated identity theft. More specifically it's pointed out 

that that is the document that supposedly went over the wires."

Thus, the record shows that the District Court 

instructed the jury that the government-selected exhibit 

referenced in each count constituted what the government alleged 

was "the evidence of the particular crime being committed" and 

that the jury was to "look there in order to do [its] analysis." 

(Emphases added.) As a result, even when considered in the context

of the jury instructions, the verdict form did not merely direct 

the jury's attention in a neutral manner to the "parts of [the 

evidence] which" the District Court appropriately deemed to be 
- 21 -

"important." United States v. Brennan, 994 F.2d 918, 929 (1st 

Cir. 1993) (quoting Quercia, 289 U.S. at 469)). Rather, even when 

considered in that fuller context, the verdict form impermissibly 

privileged a portion of the government's evidence over that of the 

defendant's, at least by giving "undue weight" to that evidence by 

singling it out in such a salient manner. Almonte, 594 F.2d at 

265; see Quercia, 289 U.S. at 470. 

After all, unlike in Brennan, the District Court did not 

indicate that certain categories of evidence may be relevant to 

particular issues.3 Rather, here, the District Court singled out 

certain exhibits that were being relied on by the government --

and the government alone -- to make out its criminal case against

the defendant.

3.

The government's remaining argument as to why we should

not find error also comes up short. Here, the government claims 

that the District Court's decision to list a government-selected 

exhibit for each count on the verdict form was intended only to

serve the limited purpose of matching the "wires" and "uses" 

alleged in the indictment to the charged counts on the verdict 

3 The challenged instruction in Brennan was: "In addition, 

with regard to these charges, you may also consider the evidence 

concerning Mr. McHugh's loan authority and question whether he 

acted with intent to injure [the Bank] in his dealings with Mr. 

Brennan." 994 F.2d at 929. The district court there did not 

identify particular evidence or link it to particular counts. Id.
- 22 -

form. The government proceeds to argue that, due to this limited 

purpose, the District Court's decision to construct the verdict 

form in a manner that included the references to the governmentselected exhibits should be understood as a matter of mere trial 

administration that fell within the broad range of discretion that 

a district court has to manage a complicated trial. 

To assess the government's contention in this regard, it 

helps to add some further detail about each of the exhibits in 

question. We thus briefly summarize each of them: 

• Exhibit 42 (Count 1) (Wire Fraud): "[S]creen shot[s]" of 

Aegerion's salesforce.com account from May 2014 showing 

data entries regarding various communications with 

insurance companies about patients' medical diagnoses. 

Testimony elicited by the government at trial suggested 

that the information communicated to the insurance 

companies was false. 

• Exhibit 53 (Count 2) (Wire Fraud): "[S]creen shot[s]" of 

Aegerion's salesforce.com account from May 2014 showing 

data entries regarding various communications with 

insurance companies about patients' medical diagnoses. 

Testimony elicited by the government at trial suggested 

that the information communicated to the insurance 

companies was false. 

• Exhibit 66 (Counts 3 & 10) (Wire Fraud & Aggravated 

Identity Theft): A May 14, 2014 fax of a letter sent 

from a healthcare provider to an insurance company 

appealing the denial of coverage for Juxtapid for a 

patient. Testimony elicited by the government at trial 

suggested that the letter contained false information 

about the patient's medical diagnoses and that the fax 

cover sheet contained Moffett's handwriting. 

• Exhibit 77 (Counts 4 & 11) (Wire Fraud & Aggravated 

Identity Theft): A May 14, 2014 fax of a letter sent 

from a healthcare provider to an insurance company 

seeking coverage for Juxtapid for a patient. Testimony 
- 23 -

elicited by the government at trial suggested that 

Moffett had prepared the letter but that a doctor refused 

to sign it because it contained false medical 

information, and that the fax cover sheet contained 

Moffett's handwriting.

• Exhibit 86 (Count 5) (Wire Fraud): An August 5, 2014

email from Moffett to an Aegerion employee stating that 

"new prescriptions for patients" had been faxed to a 

provider. Testimony elicited by the government at trial 

suggested that the patient's diagnostic information in 

the faxed documents was false.

• Exhibit 93 (Count 12) (Aggravated Identity Theft): An 

August 5, 2014 fax of a drug authorization form sent 

from a healthcare provider to an insurance company 

seeking coverage for Juxtapid. Testimony elicited by 

the government at trial suggested that the information 

on the form had been falsified and that the form 

contained Moffett's handwriting.

• Exhibit 96 (Counts 6 & 13) (Wire Fraud and Aggravated 

Identity Theft): An August 20, 2014 email from Moffett 

to an Aegerion employee with attachments showing a fax 

of the same date sent from a healthcare provider to 

Aegerion containing a patient's medical documents, some 

of which contained information that the testimony 

elicited by the government at trial suggested was false. 

Testimony also suggested the fax cover sheet contained 

Moffett's handwriting.

• Exhibit 109 (Counts 7 & 14) (Wire Fraud & Aggravated 

Identity Theft): A September 17, 2014 fax of a letter 

sent from a healthcare provider to an insurance company 

appealing the denial of coverage for Juxtapid for a 

patient. Testimony elicited by the government at trial 

suggested that the doctor was not familiar with the 

letter, that it contained false information about the 

patient's medical diagnoses, and that the fax cover 

sheet contained Moffett's handwriting.

• Exhibit 124 (Count 8) (Wire Fraud): An August 14, 2014 

fax of a letter sent from a healthcare provider to an 

insurance company appealing the denial of coverage for 

Juxtapid for a patient. Testimony elicited by the 

government at trial suggested that the doctor whose 
- 24 -

signature appeared on the letter had never approved or 

signed it, that the letter contained false medical 

information, and that the fax cover sheet contained the 

handwriting of Moffett's ex-girlfriend, who testified 

that Moffett provided her with information necessary to 

fill out such forms.

• Exhibit 148 (Counts 9 & 15) (Wire Fraud & Aggravated 

Identity Theft): A September 4, 2015 fax of an 

authorization form sent from a healthcare provider to an 

insurance company seeking coverage for Juxtapid for a 

patient. Testimony elicited by the government at trial 

suggested that the medical information was false, that 

the doctor had not approved the form, and that it 

contained Moffett's handwriting.

These summaries of the contents of the referenced 

government-selected exhibits reveal that, with respect to the wire 

fraud counts, the listing of the government-selected exhibits on 

the verdict form did more than simply provide proof that a certain 

"wire" had been sent, in the way that, say, evidence of meta-data 

about a wire transmission might. Instead, these summaries make 

clear that the referenced exhibits constituted evidence of the 

content of the communication contained in the "wire" that pertained 

to each count that plainly bears not only on the element of the

wire fraud offense that concerns whether there was a "wire" but 

also on other elements of that offense. For example, in addition 

to constituting the "wires" themselves, each exhibit contained or 

referred to medical information that the government argued at trial 

constituted false statements that Moffett himself added or caused 

to be added to the documents that constituted the alleged "wires" 

themselves. It should therefore be unsurprising that each of the 
- 25 -

exhibits was also the subject of significant trial testimony that 

the government argued tended to link Moffett to each "wire."

The same is no less true if we consider the exhibits 

referenced in connection with the aggravated identity theft 

counts, as they, too, were hardly barebones. They each contained 

not only the doctor's information that the government alleged that 

Moffett had "used," but also the handwriting that the government 

had labored at trial to convince the jury was Moffett's.

Thus, even if the "wire" element was not itself in 

material dispute for any of the wire fraud counts, and even if the 

fact that a doctor's information was "used" was similarly not in 

material dispute for any of the identity theft counts, it cannot 

be said that the exhibits were relevant to the jury's consideration 

of the charges only for the purpose of proving those singular 

elements of any of the charged offenses. And, as noted, the 

government makes no such contention, despite asserting that the 

exhibits were listed for the limited purpose of identifying the 

"wires" and "uses" at issue.4 We thus reject the government's 

contention that, in context, the references to the exhibits on the 

verdict form did not "place undue weight" on specific parts of the 

4 The District Court did not provide an instruction that the 

jury could consider the referenced exhibits only for such a limited 

purpose, and we therefore do not consider what the effect of such 

an instruction would be on the error or harm identified in this 

case.
- 26 -

government's evidence, Almonte, 594 F.2d at 265, because the 

exhibits that were referred to on the jury form bore only on 

uncontested aspects of the case against Moffett. For, because the 

record shows otherwise, it follows that we cannot accept the 

government's argument that the District Court's choice to submit 

this verdict form fell within the District Court's considerable

discretion to organize a complicated criminal trial in a manner 

that would avoid jury confusion. See United States v. Miller, 738 

F.3d 361, 383 (D.C. Cir. 2013) (noting the availability of "other 

options" that do not implicate the "line between judicial 

clarification and impermissible judicial interference" in holding 

that the district court abused its discretion in referring to 

evidence in its answer to the jury's question). Indeed, at oral 

argument, the government itself acknowledged (though it did not 

raise this concern to the District Court) that "this is not 

something district courts should be doing."

III.

Having determined that the District Court abused its 

discretion in violation of Moffett's Sixth Amendment right by 

submitting the verdict form that we have described, we still must

determine "whether or not the error is such that it requires us to 

reverse the convictions on some or all of the wire fraud [and 

identity theft] counts." Argentine, 814 F.2d at 788–89. In other 

words, we must determine whether the error was a harmless one.
- 27 -

Because the District Court's error in submitting this 

verdict form to the jury is of a "constitutional dimension," the 

government bears the burden of establishing that the error was 

harmless beyond a reasonable doubt. Rivera-Santiago, 107 F.3d at 

966–67; see also Argentine, 814 F.2d at 789. Thus, the government 

must show that, on this record, there is no "reasonable possibility 

that the error at issue influenced the jury in reaching the 

verdict." Rivera-Santiago, 107 F.3d at 967.5

To prove each wire fraud violation, the government had 

the burden of proving beyond a reasonable doubt that Moffett 

"devised or intend[ed] to devise" a "scheme or artifice to defraud, 

or for obtaining money or property by means of false or fraudulent 

pretenses, representations, or promises," and "transmit[ed] or 

cause[d] to be transmitted by means of wire" a communication in 

interstate or foreign commerce "for the purpose of executing such 

scheme or artifice." 18 U.S.C. § 1343. And, to prove each 

5 In arguing that any error here was harmless, the government 

cites to a case articulating our harmless error standard for "nonconstitutional evidentiary errors." United States v. Hicks, 575 

F.3d 130, 143 (1st Cir. 2009) ("We review non-constitutional 

evidentiary errors for harmlessness; an error is harmless if it is 

'highly probable that the error did not influence the verdict.'" 

(quoting United States v. Roberson, 459 F.3d 39, 49 (1st Cir. 

2006))). Because we find a constitutional error similar in kind 

to the errors that we found in Rivera-Santiago and Argentine, 

however, we follow those cases and consider the error here to be 

of a "constitutional dimension." 107 F.3d at 967; 814 F.2d at 

789. And, aside from citing Hicks, the government develops no 

argument as to why we should not do so.
- 28 -

aggravated identity theft count, the government had the burden of 

proving that, "in relation to [one of the wire fraud offenses]," 

Moffett "knowingly . . . use[d], without lawful authority, a means 

of identification of another person."6

In arguing that any error with respect to the verdict 

form was harmless, the government presses a similar argument to 

the one that, as we have just seen, it advanced in service of its 

argument that there was no error at all. Specifically, the 

government argues that the District Court's inclusion of the 

exhibits on the verdict form was harmless even if in error because 

their inclusion on that form at most placed emphasis on evidence 

that established what was in the end only an uncontested fact --

that a communication qualifying as a "wire" for each count had 

been sent, or that a doctor's information had been "use[d]." But, 

as we have already explained, the exhibits themselves demonstrate 

that they contain evidence relevant not only to establishing those 

6 The nature of the identity theft statute is such that the 

government's ability to prove those charges turns on its ability 

to prove the wire fraud charges. See 18 U.S.C. § 1028A ("Whoever 

during and in relation to [a wire fraud offense], 

knowingly . . . uses, without lawful authority, a means of 

identification of another person shall, in addition to the 

punishment provided for such felony, be sentenced to a term of 

imprisonment of 2 years."). Thus, because each identity theft 

count is necessarily tied to a wire fraud count, it follows that

if the District Court's error was not harmless with respect to a 

wire fraud count, the error was not harmless with respect to the 

corresponding identity theft count. Regardless, though, we 

conclude that the error cannot be construed as harmless as to any 

of the counts in any event.
- 29 -

singular elements but also to the jury's consideration of other 

elements of the charged crimes. Thus, the content of the exhibits 

is such that there is reason to be concerned that the verdict form,

at least when combined with the District Court's instruction to 

the jury that the exhibits referenced on the verdict form 

constituted "the evidence" of the charged offenses and to "look 

there" to do "your analysis," had the effect of tilting the playing 

field to the government's advantage. Given the nature of the 

exhibits, there is reason to be concerned that the express 

reference to them -- and to no other evidence -- on the verdict 

form would draw the jurors' attention away from the evidence that 

Moffett put forward to show that he was not guilty of any of the 

charged offenses beyond reasonable doubt and toward the case that 

the government was making for finding him guilty of each of those 

offenses.7

7 To the extent that the government suggests that we should 

assign any weight to Moffett's failure to specifically contest the 

existence of the wires at trial, we reject the argument. Indeed, 

in Argentine, the government argued that the Court should write 

off any concerns about the implicit suggestion that the defendant 

had in fact participated in the wires at issue (there telephone 

calls) because "these matters were undisputed." 814 F.2d at 788. 

As we recognized, this "misses the point" because "it 

is . . . settled, in a criminal case, that '[t]he plea of not 

guilty places every issue in doubt, and not even undisputed fact 

may be removed from the jury's consideration,'" and therefore "[n]o 

matter how persuasive the government's evidence may seem to the 

court, there is no burden on a defendant to dispute it." Id.

(alterations in original) (first quoting United States v. Natale, 

526 F.2d 1160, 1167 (2d Cir. 1975), cert. denied, 425 U.S. 950 
- 30 -

To be sure, the government does also appear to suggest 

that any error here was harmless for the distinct reason that any 

such worry is misplaced simply because none of the exhibits in and 

of itself sufficed to prove all of the elements of the offense 

charged in any count. That is significant, the government 

contends, because we must assume that the jury followed the 

District Court's general instruction to consider all the evidence 

in the record on equal footing. Thus, the government reasons,

with some force, that we should not understand the jury's

evaluation of the evidentiary record to have been influenced by 

any emphasis of the government-selected exhibits on the verdict 

form, because the jury to convict would have had to have looked 

beyond the exhibits referenced on the verdict form in any event 

and so must be assumed to have accounted for any competing evidence 

before it that Moffett had introduced. 

The problem with the government's theory in this regard, 

however, is that it was the jury's task to weigh a "large mass" of 

evidence to determine as to each wire fraud count whether Moffett 

was guilty of devising or intending to devise a scheme to defraud 

or to obtain money by means of false representations in an 

interstate wire. 18 U.S.C. § 1343. And, it was the jury's task 

to then weigh that same evidence to determine whether Moffett had 

(1976), then DeCecco v. United States, 338 F.2d 797, 798 (1st Cir. 

1964)).
- 31 -

"knowingly . . . use[d], without lawful authority, a means of 

identification of another person" in the commission of each wire 

fraud offense. 18 U.S.C. § 1028A. The concern is thus that this 

process "might well have been shortcircuited by [the District 

Court's] injection of the incriminating aspect[s] of the evidence"

through the references to the government-selected exhibits on the 

verdict form. Rivera-Santiago, 107 F.3d at 967 (rejecting 

harmless error argument on this basis). 

True, the government makes a strong case for our 

understanding that the jury did not stop its assessment of the 

record after consulting only the exhibits referenced on the verdict 

form. But the jury's neutral assessment of the evidence could 

have been knocked off course nonetheless in making its way through 

the evidentiary morass. In particular, there is reason to be 

concerned that the jury would have started with the government's 

hand-picked exhibits referenced on the verdict form -- and then 

considered the case through the framing of it that the government 

had pressed -- not because it chose on its own to do so for reasons 

of efficiency but because it understood the District Court to have 

encouraged it to do so. 

Thus, even if the circumstantial evidence of Moffett's 

guilt was "significant," we cannot be assured that the jury would 

have ultimately viewed all the evidence together -- including 

Moffett's exculpatory evidence -- in the same neutral manner that 
- 32 -

it would have absent the District Court's decision to list on the 

verdict form only the precise exhibits that the government was 

arguing showed through their contents that Moffett had committed 

the charged crimes and then to instruct the jury both that those 

exhibits were in the government's view "the evidence of the 

particular crime" and to "look there in order to do your analysis."

See id.; see also Spock, 416 F.2d at 182 (explaining that special 

verdict forms are disfavored in criminal cases because a jury's 

consideration of charges from the lens of a "step by step" 

framework favors the government and is more likely to lead to a 

guilty verdict); cf. Braley v. Gladden, 403 F.2d 858, 860 (9th 

Cir. 1968) (where the district court had failed to include a "not 

guilty" option on the verdict form, noting that, while "it may not 

[have been] unreasonable to assume that the jury inferred from the

[the district court's] instructions that it might be empowered to 

write its own form of a verdict of not guilty, it [would have been]

equally reasonable to assume that the jury inferred that the judge 

intended that only one verdict was possible"). And as this is not 

a case in which the evidence of guilt is overwhelming, we conclude 

that "there is a reasonable possibility that the error at issue 

influenced the jury in reaching its verdicts in this case" and 

thus that "the verdicts cannot stand." Rivera-Santiago, 107 F.3d 

at 967.
- 33 -

IV.

For the foregoing reasons, we VACATE Moffett's 

convictions as to all counts and REMAND for further proceedings

not inconsistent with this opinion.