# 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 Gelp í , 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 t he verdict form that was submitted to the jury violated Moffe t t's federal constitutional right to a jury trial by expressly referr ing
to certa in trial exhibit s that the government alone s e lected while not otherwise referring to any of the evidence in the case
. I. Moffett joined Aegerion , a Cambridge , Massachusetts

based 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 w as as high as several hundreds of thousands of dollars per patient , per year. For each "sale" of the drug , sales representatives for Aeger ion 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 i ndicted 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 allege d 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, transm its 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. T he g overnment 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 g overnment 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 w hom Juxtapid had been prescribed and for which reimbursement from the health insurers had been sought
.

According to the g overnment, 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 argue d demonstrate d that the y were aware of the only approved use of Juxtapid and that he did not actual ly 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 g overnment to se lect a n 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 g overnment oblige d
.

Moffett objected both orally and in a written filing to the proposed v erdict form insofar as it would reference the
g overnment
- selected exhibits
. 2 Moffett argue d that if the District Court submitted to the jury such a verdict form , then the District Court would be "invading the prov i nce 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 er ror 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 verdic t form that did not list any exhibits. The District Court denied the objection , noting that "[y]our rights are saved, but we're goin g 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 compan ies (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 coun ts 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 g overnment alleged constituted a fraudulent wire . Thus,
t he exhibits selected by the government to support th e aggravated identity theft counts

-- except for one

-- were the same exhibits- 7

-

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):- 8

- _______ not guilty _______ guilty 6. Count 11 , chargi ng 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 _______ gu ilty 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 o n 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- 9

- 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 :

T ake a look at the verdict slip. I set it up

-- simply b ecause 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 charge s wire fraud
. . . . T he other type of charge is aggravated ident ity 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 sa me 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 s et 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 c ounts 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 aggravat ed 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. Mof fett 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 f ollowing that instruction, counsel for the
g overnment asked the District Court to clarify the instruction
. The government exp lained that the District Court had told " the jury that the exhibit number [on the verdict slip was ] the evidence- 11

-

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 so ught 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 specificall y 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 de liberations after providing the jury with other instructions not relevant here
. Following approximately an hour of deliberation s , 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, t he District Court informed the jurors that the answer to their question was yes, "bu t 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 jur y then resumed deliberations and, just over two h ours 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.
I I . Moffet t contends on appeal that the District Court d epriv ed Mo ffett 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
. H e 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.

Th e Sixth Amendment provides in relevant part:
I n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the S tate 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 S tates in construing this constitutional guarantee has long recognized that district courts have substant ial 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). T he Court- 13

-

has also long mad e clear , however, that there are " inherent limitations " on the "privilege of the judge to comment on the facts." Quercia , 289 U.S. at 4 70
.

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 wit h deference [
. ] " Starr v. United States , 153 U.S. 614, 626 (1894). T he 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 S tates 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 t urn. ") . We have thus explained that a- 14

-

d istrict c o urt 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) (p er curiam) , or "relieve[s] the prosecution of [ its ] burden in an unfair way," United States v. Argentine , 814 F.2d 783, 78 7

– 89 (1st Cir. 1987).

Accordingly, in Rivera

- Santiago , we held that a d istrict

c ourt'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 96 5

- 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 96 7
. T hat was so, we explained, because the district court through the answer effectively directed the jury to consider only certain testimony that favored the g overnment , even though "d efendants [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
g overnment'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 consti tutional 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 specif ic witnesses was proper because doing so would have " give [n] over - emphas i s 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 d istrict c ourt 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 encounter ed. But, t h e novelty of this fact pattern does not i nsulate the District Court's choice to invite the g overnment 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 o f th at choice tend s to h eighten our concern that, as Moffet t 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] procedur es just because they are new, but they should be adopted with great hesitation.").

That said, th e novelty of the District Court's choice in this case does not suffice i n and of itself to show that the procedure was violative of the Sixth Amendment. Inst ead, under

o ur 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

- Sa ntiago , 107 F.3d at 965 , in a " manner contrary to the interests of the accused , " Martin Linen Supply , 430 U.S. at 573
.

T he 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 Moffe t t 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 96 6 n.6 (citing U nited States v. Aubin , 961 F.2d 980, 983 (1st Cir. 1992) ).
A nd, a s 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 th e verdi ct form.

T he g overnment is right that the inclusion of the exhibit numbers on the verdict form did not implicitly " direct the jury "
to find Moffet t gu i lty based on ce rtain pieces of evidence. Indeed, the District Court clarified in instructing the jury that the listed exhibits represented only what the g overnment had alleged were the "wires" and "uses." But, we are nonetheless persuaded that

-- in context

-- the District Court , through the verdict form and the instruction s given to the jury that pertained to that form , invaded the jury's power over factfinding by over emphasizing certain of the g overnment's evidence in a manner that

was contrary to Moffett's interests
. 1
. T he 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 exhi b it

-- and only that g overnment
- selected exhi b it , among all the evidence introduced at trial

-- for each of the listed count s .

M ore over, the verdict form d id not contain any language that suggest ed that the exhibit that wa s reference d for each count

was to be considered only for a limited purpose as to that count
. Instead, the form simply identifie d the g overnment
- selected- 18

-

exhibit in parenthes e s next to each count , while refencing no other evidence
. T o be sure, none of t he g overnment
- selected exhibit s that is uniquely listed for each count on its own contain ed sufficient evidence to prove all of the elements of the offense charged for that count. But, th e exhibit referenced in each instance contain ed the very evidence that the g overnment claim ed 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 g overnment relied in support of the various charg es was singled out , while no reference was made to any exhibit or other evidence that Moffe t t had highlighted at trial in his defense to those same charges
. 2.

The g overnment does not

-- because it cannot

-- deny that the verdict form had the qualities tha t 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, t he g overnment contends that the District
Court explained in those instructions that the exhibits were referenced o n 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 g overnment then adds that Moffett did not dispute at trial

-- nor does he dispute on appeal

-- that the reference d 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
g overnment identified as the predicate "wire " or "use" for the charge set forth in the count . In addition , t he g overnment emphasizes that the District Court instructed the jury to review all the evidence in reach ing its own conclusions about the ultimate question of whether the g overnment had prove d the elements necessary to establish each crime.

T he problem with the g overnment'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 verd ict form already gave to the g overnment
selected exhibits me r ely by referencing them while not otherwise referencing any other evi dence . For example, i n t he 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 t hat 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 evid ence of wire fraud, the government also says are evidence that Mr. Moffett is guilty of aggravated identity theft." A nd, even a fter the g overnment asked the District Court to clarify the purpose for which the verdict form was referencing the government

- se lected 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 . M ore specifically it's poi nted 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 exhi b it referenced in each count constitu t ed 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 th e 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 Quer c ia , 289 U.S. at 469)). Rather, even when

co nsidered in that fuller context, the verdict form impermissibly privilege d a portion of the g overnment'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 Quer c ia , 289 U.S. at 470
.

A fter all, u nlike in Brennan , the District Court did not indicate that certain categories of evidence may be relevant to particular issue s . 3 Rather, here , the District Court singled out certain exhibits that we re being relied on by the g ove r nment
-- and the g overnment alone

-- to make out its criminal case against the defendant
. 3
.

The go vernment'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 match ing the "wires" and "uses" alleged in the i ndictment 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 gover n ment
selected exhibi ts 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 de tail 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 insu rance companies about patients' medical diagnoses. Testimony elicited by the g overnment 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 salesf orce.com account from May 2014 showing data entries regarding various communications with insurance companies about patients' medical diagnoses. Testimony elicited by the g overnment at trial suggested that the information communicated to the insurance com panies 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 g overnment 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 M ay 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 g overnment 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 g overnment at trial suggested that the patient's diagnostic information in the faxed documents was false.

• Ex hibit 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 inf ormation on the form had been falsified and that the form contained Moffett's handwriting.

• Exhibit 96 (Count s 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 g overnment at trial suggested was false. Testimony also suggested the fax cover s heet 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 pa tient. Testimony elicited by the g overnment 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.

• Exhi bit 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 in formation 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 exhibit s on the verdict form d id more than simply provide proof that a certain "wire" had been sent, in the way that, say, evidence of meta

- data ab out a wire transmission might. Instead, these summaries make clear that the referenced exhibit s constitu t ed 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" b ut also on other elements of that offense. For example, in addition to constituting the "wires" themselves, each exhibit contain ed or refer red 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 tria l testimony that the government argued tended to link Moffett to each "wire."

The same is no less true if we cons i der 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" ele ment 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 relev ant 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
g overnment 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 reference s to the exhibits on the verdict form did not " plac e 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

-

g overnment'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 t he
g overnment's argument that the Distric t 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 d istrict c ourt abused its discretion in referring to evidence in its a nswer to the jury's question ). Indeed, at oral argument, the g overnment 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 t he 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

- Be cause the District Court's error in submitting this verdict form to the jury is of a "constitutional dimension," the
g overnment bears the burden of establishing that the error was harmless beyond a reasonable doubt. Rivera

- Santiago , 107 F.3d at 966

– 67 ; se e 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 g overnment 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 g overnment cites to a case articulating our harmless error standard for "non

constitutional evidentiary errors." United States v. Hicks , 575 F.3d 130, 143 (1st Cir. 2009) ("We review non

- constitutional evi dentiary 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 96 7 ; 814 F.2d at 789. And, aside from citing Hicks , the g overnment develops no argument as to why we should not do so.- 28

-

aggravated identity theft count, the g overnment had the burden of proving that, " in relation to [ one of the wire fraud offense s ], " 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 t he exhibits on the verdict form was harmless even if in error because their inclusion on that form at most placed emphasis on evidence that establish ed what was in the end only an uncontested fact

-- that a communication qualifying as a " wire " for each cou nt 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 g overnment's ability to prove those charges turns on its ability to prove the w ire 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 consider ation of other elements of the charged crimes
. Thus, the content of the exhibits is such that the re 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 reference d o n t he verdict form constituted "the evidence" of the charged offense s 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

-- o n 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 g overnment suggests that we should assign any we ight to Moffett's failure to specifically contest the existence of the wires at trial, we reject the argument
. Indeed, in Argentine , the g overnment 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 sur e, the g overnment does also appear to suggest that any error here was harmless for the distinct reason that any such worry is misplaced simply b ecause 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
. Th us, th e g overnment 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 g overnment
- selected exhi bits 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
.

T he problem with the g overnment'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 devis ing or intending to devise a scheme to defraud

or to obtain money by means of false representations in a n 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 t he incriminating aspect [s] of the evidence " through the references to the government

- selected exhibits o n 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 understa n ding 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 r eason to be concerned that the jury would have started with the government's hand

- picked exhibits referenced o n 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 C o urt to h a ve 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 g overnment 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 S pock , 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 g u ilt 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 "t he verdicts cannot stand." Rivera

- Santiago , 107 F.3 d at 967.- 33

- I V . For the foregoing reasons, we VACATE Moffett's convictions as to all counts and REMAND for further proceedings not in consistent with this opinion.