15-985-cr

United States v. Rowland



# United States Court of Appeals

FOR THE SECOND CIRCUIT

______________

August Term, 2015

(Argued: March 18, 2016 Decided: June 17, 2016)

Docket No. 15

‐ 985

______________

U NITED S TATES OF A MERICA

,

Appellee

,

–v.–

J OHN G. R OWLAND

,

Defendant

‐ Appellant.

______________

B e f o r e :

W INTER

, C HIN

, and C ARNEY

, Circuit Judges

.

______________ 1

2

Defendant

‐ Appellant John G. Rowland, the former governor of Connecticut, 3

came under scrutiny in 2012 for his efforts to obtain paid political consulting work on 4

behalf of two Republican Congressional candidates in the 2010 and 2012 election cycles. 5

One of those candidates, Lisa Wilson

‐ Foley, allegedly arranged with Rowland to pay 6

him through her husband’s nursing home company, Apple Rehab, in order to avoid 7

reporting the payments to the Federal Election Commission. After a trial, a jury 8

convicted Rowland on seven counts of violating campaign

‐ finance laws and falsifying 9

records. The United States District Court for the District of Connecticut (Janet Bond 102 Arterton, J. ) sentenced Rowland principally to 30 months’ imprisonment. Rowland 1

now challenges both his conviction and his sentence. 2

3

We conclude that Rowland was properly convicted under 18 U.S.C. § 1519 4

because he created or participated in the creation of documents that misrepresented—or 5

“falsified”—his relationships with the Congressional candidates, Wilson

‐ Foley and 6

Mark Greenberg, and he did so with the intent to impede a possible future federal 7

investigation. We reject Rowland’s assertion that principles of contract law prevent us 8

from concluding that documents styled as contracts are “falsified” within the meaning 9

of the statute. We also determine that the government adequately disclosed Wilson

‐ 10

Foley’s statements to Rowland, and that even if it did not, he would not be able to show 11

that he was prejudiced by the deficiency. Finally, we reject his challenges to the District 12

Court’s evidentiary rulings, jury instructions, and Sentencing Guidelines calculation. 13

14

A FFIRMED

.

______________ 15

L IAM B. B RENNAN

, Assistant United States Attorney (Marc H. 16

Silverman, Assistant United States Attorney, on the 17

brief ), for Deirdre M. Daly, United States Attorney for 18

the District of Connecticut, New Haven, Connecticut, 19

for Appellee

. 20

21

A NDREW L. F ISH (R. James DeRose III, on the brief ), Locke 22

Lord LLP, New York, New York, for Defendant

‐ 23

Appellant

. 24

______________

S USAN L. C ARNEY

, Circuit Judge :

Defendant

‐ Appellant John G. Rowland, the former governor of Connecticut, 25

came under scrutiny in 2012 for his efforts to obtain paid political consulting work on 26

behalf of two Republican Congressional candidates in the 2010 and 2012 election cycles. 273 One of those candidates, Lisa Wilson

‐ Foley, allegedly arranged with Rowland to pay 1

him through her husband’s company, Apple Rehab, to avoid reporting the payments to 2

the Federal Election Commission (“FEC”). After a trial, a jury convicted Rowland on 3

seven counts of violating campaign

‐ finance laws and falsifying records. The United 4

States District Court for the District of Connecticut (Janet Bond Arterton, J. ) sentenced 5

Rowland principally to 30 months’ imprisonment. 6

Rowland now appeals his conviction and sentence. His primary argument on 7

appeal is that 18 U.S.C. § 1519, which prohibits “knowingly

. . . falsif[ying]

. . . any 8

record, [or] document,” does not apply to his conduct: namely, preparing contracts that 9

purported to establish business consulting relationships with political candidates or 10

their businesses, when in fact the parties were negotiating for him to provide political 11

consulting services to the candidates’ campaigns. He also asserts a Brady violation 12

based on the government’s alleged failure to disclose statements made by Lisa Wilson

‐ 13

Foley in an interview with investigators. Finally, he challenges the District Court’s 14

evidentiary rulings, jury instructions, and application of the Sentencing Guidelines. 15

For the reasons set forth below, we AFFIRM the judgment of the District Court. 16

We conclude that the broad language of § 1519 encompasses the creation of 17

documents—like the contracts at issue here—that misrepresent the true nature of the 18

parties’ negotiations, when the documents are created in order to frustrate a possible 194 future government investigation. We reject Rowland’s assertion that principles of 1

contract law prevent us from concluding that documents styled as contracts are 2

“falsified” within the meaning of the statute. We also determine that the government 3

adequately disclosed Wilson

‐ Foley’s statements to Rowland, and that even if it did not, 4

he is not able to show that he was prejudiced by the deficiency. Finally, we reject his 5

challenges to the District Court’s other rulings at trial and at sentencing. 6

BACKGROUND 1 7

John G. Rowland, the former governor of Connecticut, resigned that post in 2004 8

amid a corruption scandal, and later pled guilty to a federal charge of conspiracy to 9

commit honest

‐ services and tax fraud. After serving his sentence, Rowland sought to 10

use his political experience by doing political consulting work on behalf of Republican 11

candidates seeking federal office in Connecticut. The instant charges stem from his 12

efforts to secure employment on two campaigns: the 2010 campaign of Mark Greenberg 13

and the 2012 campaign of Lisa Wilson

‐ Foley. 14

Rowland and Greenberg first met in the summer of 2009, when Greenberg told 15

Rowland he was considering a run for the United States Senate. Rowland suggested 16

that Greenberg “think about Congress” and repeatedly offered to serve as a paid 17

1 The following recitation of facts is taken from the trial record, viewing the evidence, as we

must for purposes of this appeal, “in the light most favorable to the government, with all

reasonable inferences drawn in its favor.” United States v. Mi Sun Cho

, 713 F.3d 716, 720 (2d Cir.

2013) (per curiam).5 consultant for the campaign. Gov’t App. at 23 (Tr. 91:24). Rowland told Greenberg he 1

did not want to be paid by the campaign—which would have had to report his 2

employment—but instead wanted to be paid by Greenberg’s business or charitable 3

interests. Later that year, Rowland prepared and gave to Greenberg a draft contract, 4

according to which he proposed to provide “consulting services” for Greenberg’s 5

businesses and his nonprofit, the Simon Foundation. Under the proposal, Rowland 6

would be paid $35,000 per month for 14 months and $25,000 per month for the year 7

thereafter. Greenberg never hired Rowland to work on his campaign or for any other 8

entity, and “ripped

. . . up” the draft contract after his meeting with Rowland. App. at 9

118 (Tr. 207:16). 10

Rowland met Wilson

‐ Foley two years later, in September 2011. Rowland 11

contacted Wilson

‐ Foley—who by then had declared her Congressional candidacy—and 12

her husband, Brian Foley, with “an idea to run by [them]”: namely, that he would take 13

on a paid role in her campaign. Gov’t App. at 716. Wilson

‐ Foley and her husband 14

believed that Rowland could be helpful to the campaign, but were concerned that (in 15

Foley’s words) “having a former governor who was a convicted felon connected to the 16

campaign as an advisor” could potentially jeopardize her candidacy. Gov’t App. at 199 17

(Tr. 796:17

‐ 19). Several of Wilson

‐ Foley’s staffers and friends urged her to remain at a 18

distance from Rowland. 196 Foley, who headed Apple Rehab (“Apple”), a nursing home company, made a 1

suggestion: Apple would hire Rowland as a consultant, but in reality Rowland would 2

work primarily for Wilson

‐ Foley’s campaign. Because Rowland would be paid by 3

Apple rather than by the campaign, they believed that by this stratagem they could 4

avoid the requirement that his employment be publicly reported to FEC. 2 Foley and 5

Rowland ultimately agreed that Rowland would receive $5,000 per month, to be paid 6

by Apple’s attorney, Christian Shelton, in order to avoid direct “connections” between 7

Rowland and the Foleys. Gov’t App. at 724. Wilson

‐ Foley explained to her campaign 8

manager that Rowland would be paid by Apple because “that way they wouldn’t have 9

to report it to the FEC.” Gov’t App. at 310 (Tr. 1240:23

‐ 24). 10

After this agreement was finalized, Rowland worked on Wilson

‐ Foley’s 11

campaign almost daily, vetted press releases, used a campaign e

‐ mail address, and 12

received access to the campaign calendar. He attended staff meetings and was involved 13

with communications strategy and fund

‐ raising. Rowland also did some work for 14

Apple during this period: He met with Apple staff on eight to ten occasions, conducted 15

research at Apple’s request about the nursing home industry in Connecticut, helped 16

Apple hire a new lobbyist, and advised Apple on union issues, among other tasks. The 17

2 The FEC requires House candidates to disclose and itemize disbursements to an individual

from official campaign funds when the individual receives disbursements totaling in excess of

$200 per calendar year. See 11 C.F.R. § 104.3(b)(3)(i). The FEC also requires candidates to

disclose their own in

‐ kind contributions to a campaign. See 11 C.F.R. §§ 100.52(d)(1), 110.10.7 record indicates, however, that Rowland’s campaign involvement may have 1

substantially exceeded the amount of work he performed on behalf of Apple. For 2

example, during the relevant period, Rowland participated in 787 e

‐ mail exchanges 3

about the campaign, but only 63 e

‐ mail exchanges regarding Apple, and 23 e

‐ mail 4

exchanges about both Apple and the campaign. 5

Rowland’s relationship with the Wilson

‐ Foley campaign became public in April 6

2012. Although Wilson

‐ Foley, Foley, and Rowland denied anything improper about the 7

arrangement, Rowland’s ties to the campaign and Apple ended shortly thereafter. After 8

the disclosures, the federal government began investigating Rowland’s work for the 9

campaign. 10

In June 2014, a grand jury returned an indictment charging Rowland with 11

(1) falsification of records in a federal investigation in violation of 18 U.S.C. § 1519, 12

based on the Greenberg contract; (2) conspiracy to commit various offenses in violation 13

of 18 U.S.C. § 371, based on an alleged unlawful conspiracy with Wilson

‐ Foley and 14

Foley; (3) falsification of records in a federal investigation in violation of 18 U.S.C. 15

§§ 1519 and 2, based on the Foley contract; (4) two counts of causing the submission of 16

false statements to the FEC in violation of 18 U.S.C. §§ 1001(a)(2) and 2, based on the 17

omission of Rowland’s payments from two FEC reports filed by the Wilson

‐ Foley 18

campaign; and (5) two counts of causing illegal campaign contributions in violation of 2 198 U.S.C. §§ 441a(a)(1)(A), 441a(f), and 437g(d)(1)(A)(ii) and 18 U.S.C. § 2, based on Foley’s 1

payments to Rowland for his campaign work in 2011 and 2012. 2

Following a jury trial, Rowland was convicted on all counts. The District Court 3

denied Rowland’s motion for a new trial on the basis of alleged Brady violations: 4

namely, the government’s alleged failure to disclose certain statements made by 5

Wilson

‐ Foley at an investigatory interview. Rowland was sentenced to 30 months’ 6

imprisonment and three years of supervised release. He now appeals both his 7

conviction and sentence. 8

DISCUSSION 9

Rowland’s primary argument on appeal is that the evidence did not support his 10

convictions under 18 U.S.C. § 1519 because the contract he offered to Greenberg and the 11

contract he signed with the law office of Apple’s lawyer, Christian Shelton, were not 12

“falsified” within the meaning of the statute. He also argues that he is entitled to a new 13

trial because the government improperly withheld Brady material from the defense. 14

Finally, he raises a number of other issues relating to the District Court’s evidentiary 15

rulings, its jury instructions, and his sentence. We address these arguments in turn. 16

I. 18 U.S.C. § 1519 17

We review Rowland’s challenge to the sufficiency of the evidence de novo

, 18

viewing the evidence “in the light most favorable to the government, with all 199 reasonable inferences drawn in its favor.” United States v. Mi Sun Cho

, 713 F.3d 716, 720 1

(2d Cir. 2013) (per curiam). 2

Rowland was convicted of two counts of violating 18 U.S.C. § 1519, an 3

obstruction of justice statute that was passed in 2002 as part of the Sarbanes

‐ Oxley Act. 4

The statute prohibits 5

knowingly alter[ing], destroy[ing], mutilat[ing], 6

conceal[ing], cover[ing] up, falsif[ying], or mak[ing] a false 7

entry in any record, document, or tangible object with the 8

intent to impede, obstruct, or influence the investigation or 9

proper administration of any matter within the jurisdiction 10

of any department or agency of the United States

. . . or in 11

relation to or contemplation of any such matter or case. 12

13

18 U.S.C. § 1519. The government contended that Rowland “falsif[ied]

. . . 14

document[s]” when he (1) prepared the contract proposal that he presented to 15

Greenberg in 2009, and (2) drafted the contract with Brian Foley, Apple, and Apple’s 16

lawyer, Christian Shelton, in 2011. 17

A. Meaning of “Falsify” 18

Rowland first argues that the documents could not be “falsified” within the 19

meaning of the statute because to “falsify” means only to tamper with a preexisting 20

document, not to create a new document from whole cloth. 21

“Our starting point in statutory interpretation is the statute’s plain meaning, if it 22

has one.” United States v. Dauray

, 215 F.3d 257, 260 (2d Cir. 2000). The plain meaning 2310 “does not turn solely on dictionary definitions of [the statute’s] component words,” but 1

is also determined by “the specific context in which that language is used, and the 2

broader context of the statute as a whole.” Yates v. United States

, 135 S.Ct. 1074, 1081

‐ 82 3

(2015) (plurality opinion) (internal quotation marks omitted). If the meaning is plain, 4

the inquiry ends there. Daniel v. Am. Bd. of Emergency Medicine

, 428 F.3d 408, 423 (2d Cir. 5

2005). If we find the statutory provision ambiguous, however, “we then turn to canons 6

of statutory construction for assistance in interpreting the statute. Greathouse v. JHS Sec. 7

Inc.

, 784 F.3d 105, 111 (2d Cir. 2015). We resort to legislative history only if, after 8

consulting canons of statutory instruction, the meaning remains ambiguous. Daniel

, 428 9

F.3d at 423. 10

We begin with the text. Where, as here, there is no statutory definition of a term, 11

we consider “the ordinary, common

‐ sense meaning of the words.” Dauray

, 215 F.3d at 12

260. 13

Webster’s Third New International Dictionary offers two relevant definitions of 14

“falsify.” The first is the definition offered by Rowland: “to make false by mutilation or 15

addition : tamper with.” Falsify

, Webster’s Third New International Dictionary, 16

Unabridged (2002). But the second supports the government’s position here: “to 17

represent falsely : misrepresent, distort.” Id. ; see also Falsify

, Oxford English Dictionary 18

(2d ed. 1989) (defining “falsify” as “[t]o give a false account of; to misrepresent”). 1911 Dictionary definitions thus confirm that, in common usage, it is acceptable to say that 1

someone “falsifies” a document when he creates a document that misrepresents the 2

truth. 3 3

We acknowledge that, as Rowland points out, the Supreme Court has cautioned 4

against overreliance on dictionary definitions in interpreting this particular statute. See 5

Yates

, 135 S. Ct. at 1081

‐ 82. But the same interpretive clues that led the plurality in Yates 6

to depart from the ordinary dictionary definition in that case counsel in favor of 7

following the dictionary definition here. 8

First, § 1519’s caption is “Destruction, alteration, or falsification of records in 9

Federal investigations and bankruptcy.” In Yates

, the plurality concluded that this 10

caption pointed away from interpreting the statute’s phrase “tangible object” to include 11

a fish because the caption “conveys no suggestion that the section prohibits spoliation 12

of any and all physical evidence, however remote from records.” Id. at 1083. Rather, 13

§ 1519, the plurality observed, was intended to sweep in only “records, documents, or 14

devices closely associated with them.” Id. Here, unlike in Yates

, interpreting “falsify”— 15

in accordance with its dictionary definition—to include the creation of a document fits 16

comfortably within the general purview of the statute suggested by the title. 17

3 “Falsify” can also mean “to prove to be false” or “to prove unsound or untrue by experience,”

but neither party suggests that those meanings aid in our understanding of the statute. See

Falsify

, Webster’s Third New International Dictionary, Unabridged (2002).12 Second, Rowland’s preferred definition of “falsify” would overlap with other 1

verbs in the statute. Cf. id. at 1085 (rejecting government’s interpretation because it 2

would “render superfluous” another statutory provision). He argues that “falsify” 3

prohibits only changes to existing documents. But the statute expressly prohibits 4

“alter[ing]

. . . any record, document, or tangible object” with the requisite intent. If we 5

limited the reach of “falsify” as Rowland suggests, the word would add nothing to the 6

statute’s meaning. “It is well

‐ settled that courts should avoid statutory interpretations 7

that render provisions superfluous: ‘It is our duty to give effect, if possible, to every 8

clause and word of a statute.’” State St. Bank & Tr. Co. v. Salovaara

, 326 F.3d 130, 139 (2d 9

Cir. 2003) (quoting Duncan v. Walker

, 533 U.S. 167, 174 (2001)). 10

Rowland argues that the interpretive canon of noscitur a sociis —“a word is known 11

by the company it keeps,” Yates

, 135 S. Ct. at 1085—also supports his position here. We 12

rely on that principle “to avoid ascribing to one word a meaning so broad that it is 13

inconsistent with its accompanying words, thus giving unintended breadth to the Acts 14

of Congress.” Id. (quoting Gustafson v. Alloyd Co.

, 513 U.S. 561, 575 (1995)) (internal 15

quotation marks omitted). In § 1519, “falsifies” appears in a list of other verbs—“alters, 16

destroys, mutilates, conceals, covers up

. . . or makes a false entry in”—that, Rowland 17

argues, imply the preexistence of a document. Rowland plausibly argues that we 18

should therefore interpret “falsify,” too, to apply only to preexisting documents. But 1913 when the plain meaning of “falsify” and other interpretive guideposts lead to the 1

opposite conclusion, a lone canon of construction cannot cabin the meaning of “falsify” 2

as Rowland urges. 3

To the extent any ambiguity remains, legislative history also supports the 4

government’s contention that creating a new document can violate § 1519: “Section 5

1519 is meant to apply broadly to any acts to destroy or fabricate physical evidence so 6

long as they are done with the intent to obstruct, impede or influence the investigation 7

or proper administration of any matter, and such matter is within the jurisdiction of an 8

agency of the United States, or such acts done either in relation to or in contemplation of 9

such a matter or investigation.” S. Rep. No. 107

‐ 146, at 14 (2002) (emphasis added). 10

B. Falsity of Rowland Contracts 11

Having concluded that a defendant may violate § 1519 by creating a document 12

that is false or that misrepresents the truth—that is, was “falsified”—we turn to the 13

question whether the contracts at issue here were “falsified.” 14

Rowland’s primary support for his claim that the contracts at issue were not 15

“falsified” lies in United States v. Blankenship

, 382 F.3d 1110 (11th Cir. 2004). In that case, 16

the Eleventh Circuit interpreted a different statute that prohibited knowingly and 17

willfully “mak[ing] or us[ing] any false writing or document” in any matter under 18

federal jurisdiction. See 18 U.S.C. § 1001(a)(3). The defendant, the owner of a minority

‐ 1914 owned business, entered into subcontracts and equipment leases to make it appear that 1

he was providing services to a government contractor. Blankenship

, 382 F.3d at 1116

‐ 17. 2

In fact, the services were provided by a different company, not owned by a minority, 3

that sought to take advantage of the government’s preference for contracts with 4

minority

‐ owned businesses. Id. 5

The court vacated the defendant’s conviction, reasoning that the contracts 6

between the defendant and the other company were not “false.” Id. at 1132

‐ 36. The 7

court began its analysis with the proposition that 8

there are only two ways in which a contract can possibly be 9

considered “false.” First, a contract is false if a person forges 10

or alters it.

. . . The only other way in which a contract can be 11

“false” is if it contains factual misrepresentations. 12

13

Id. at 1132. The court concluded that promises made in a contract are not “false,” even 14

if “neither party actually intended to carry through on their promises,” because “[a] 15

‘promise’ contained in a contract is not a certification that the promisor will actually 16

perform the specified acts, or presently intends to perform those acts.” Id. at 1133. 17

Instead, the court observed, a contract simply creates a legal relationship requiring 18

either performance or payment of damages. Id. at 1134. 19

Although in some circumstances, we might agree with these observations, our 20

approach diverges from that of the Eleventh Circuit. We think that importing principles 21

of contract law into the interpretation of this criminal statute muddies the issues rather 2215 than clarifies them. In our view, a written contract may be “falsified” for purposes of 1

§ 1519 if it misrepresents the true nature of the parties’ agreement. Here, Rowland 2

purported to memorialize the terms of his arrangements with Greenberg and the Foleys 3

in written documents. In fact, according to the government’s evidence at trial, those 4

documents intentionally did not reflect the arrangement contemplated by the parties, 5

which involved Rowland providing political consulting to Greenberg’s and Wilson

‐ 6

Foley’s campaigns. Instead, the documents reflected and were designed to reflect that 7

he would be providing business consulting services to their corporate or charitable 8

interests. If Rowland had written a memo to his file purporting to summarize the 9

negotiations in this misleading way (that is, as business rather than political consulting), 10

we think it plain that the memo would properly have been treated as a “falsified” 11

document: that is, it would have misrepresented the conversations on which it was 12

based. Where the government is able to prove the knowledge and intent elements of 13

the statute as well, that Rowland presented his notes in the form of a contract does not 14

avoid his criminal liability under § 1519. 15

Our decision in United States v. Jespersen

, 65 F.3d 993 (2d Cir. 1995), is instructive. 16

In that case, we easily concluded that a contract was “false” when it was inconsistent 17

with the true relationship between the parties. Jespersen, an IRS employee, arranged 18

for government contractors to do repairs on his home for free in exchange for 1916 government contracts. Id. at 995

‐ 96. When the arrangement was uncovered, he created 1

a backdated contract setting out a schedule of payments that he was supposed to make 2

(but never did). Id. at 996. Jespersen was convicted under 18 U.S.C. § 1503 for, among 3

other things, creating a false document in response to a grand jury subpoena. Id. at 997. 4

We sustained his conviction on the basis that the contract was “not merely backdated, 5

but fraudulently showed that [the contractor] had been paid for the work performed.” 6

Id. at 998. The fact that the document took the form of a contract erected no barrier to 7

our determination that it was “false.” See also United States v. Mandanici

, 729 F.2d 914, 8

920 (2d Cir. 1984) (in prosecution under 18 U.S.C.§ 1001, finding a contract to be “false” 9

when promisor had no intention of complying with promise when making it); United 10

States v. Shah

, 44 F.3d 285, 294 (5th Cir. 1995) (same). 11

Rowland’s use of the draft Greenberg contract as part of his effort to derail the 12

government’s investigation in 2013 does not conclusively establish his liability, but it 13

does illustrate how the document falsified—i.e., misrepresented—the true relationship 14

between the parties. In a letter to prosecutors, Rowland’s counsel wrote that the draft 15

contract “evidence[s] my statement that the discussion concerning raising funds for the 16

charity took place in October and early November. As you will see from the contract, 17

there is no mention of the campaign, and indeed the contract continues for a period of 18

time long after the campaign would have ended.” App. at 576. In fact, Greenberg 1917 testified at trial that the October and November negotiations principally concerned 1

political consulting, not work for his charity. That the Greenberg document was styled 2

as a contract does not preclude our conclusion that it was in fact “falsified” and 3

therefore may be the basis for liability under § 1519. 4

The government’s case that the Wilson

‐ Foley contract was falsified is even 5

stronger. First, the contract purported to establish a relationship between Rowland and 6

Christian Shelton, Apple’s attorney, when Rowland was in fact retained primarily to 7

provide services to Lisa Wilson

‐ Foley’s political campaign. As Shelton wrote in an 8

e

‐ mail to Foley, the drafters put Shelton’s name on the contract to avoid direct 9

“connections” between Rowland and Wilson

‐ Foley, because of “Rowland’s background 10

and the compliance issue that creates.” Gov’t App. at 724. During the drafting process, 11

Rowland suggested that the contract should use his corporate identity—JGR Associates, 12

LLC—rather than his name, for “more cover.” App. at 562. 4 Express references to 13

political consulting that were present in the original contract were deleted from the final 14

version, supplying further circumstantial evidence that the parties intended to conceal 15

the true nature of the agreement. Compare Gov’t App. at 726 with App. at 549

‐ 53. The 16

jury could readily conclude from this and other evidence that Rowland and his co

‐ 17

conspirators intentionally created a document that misrepresented their relationships 18

4 In fact, the final contract was signed by Rowland personally, not as a representative of his LLC.18 with the aim of concealing the truth from the FEC—and, not incidentally, the public. 1

Because the jury was entitled to conclude that both the Greenberg and Foley 2

contracts were “falsified” in the sense that they were created to misrepresent the true 3

relationships among the parties, Rowland’s convictions under § 1519 stand, and we 4

need not reach his argument that the “prejudicial spillover” from the § 1519 evidence 5

requires us to overturn his convictions on all other counts. 6

II. Alleged Brady Violation 7

Next, Rowland argues that he is entitled to a new trial because the government 8

did not comply with its disclosure obligations under Brady v. Maryland

, 373 U.S. 83 9

(1963). In particular, he contends that Lisa Wilson

‐ Foley made exculpatory statements 10

to the government during a March 10, 2014 interview that were omitted from the 11

government’s Memorandum of Interview (MOI) (which was provided to the defense) 12

and not otherwise disclosed to Rowland. Had they been provided, the defense would 13

likely have called her to testify about her statements, he asserts. 14

“ Brady requires that the government disclose material evidence favorable to a 15

criminal defendant.” United States v. Mahaffy

, 693 F.3d 113, 127 (2d Cir. 2012). 16

“Evidence is favorable if it is either exculpatory or impeaching, and it is material if there 17

is a reasonable probability that, had the evidence been disclosed to the defense, the 18

result of the proceeding would have been different.” Id. (citations and internal 1919 quotation marks omitted). The defendant need not show that the suppressed evidence 1

would have resulted in an acquittal. See Youngblood v. West Virginia

, 547 U.S. 867, 870 2

(2006) (per curiam). Rather, a conviction must be reversed “upon a showing that the 3

favorable evidence could reasonably be taken to put the whole case in such a different 4

light as to undermine confidence in the verdict.” Id. (internal quotation marks omitted). 5

When reviewing alleged Brady violations, we “examine the record de novo to 6

determine whether the information in question is material as a matter of law.” Mahaffy

, 7

693 F.3d at 127. The trial judge’s assessment of the effect of nondisclosure is entitled to 8

“great weight.” Id. 9

Rowland bases his assertion of a Brady violation on (1) an affidavit by Craig 10

Raabe, Wilson

‐ Foley’s attorney at the time of the interview with the government, and 11

(2) an e

‐ mail and notes written by another lawyer for the Foley family, Jessica Santos. 12

According to Raabe, the MOI was incomplete in several respects, one of which Rowland 13

identifies as a possible Brady violation. Raabe asserts that, despite pressure from the 14

government during a break in the interview, Wilson

‐ Foley refused to adopt the 15

government’s view that Rowland’s work for Apple was a “sham” rather than a real job. 16

App. at 446

‐ 47. Similarly, Santos’s notes from the interview reflect that Wilson

‐ Foley 17

told the government that “it didn’t ring out to her that Brian hired him as a sham; she 18

didn’t know this at the time.” Id. at 513. Wilson

‐ Foley’s rejection of the government’s 1920 characterization of Rowland’s job as a “sham” is not expressly recorded in the MOI. 1

After that interview, the government withdrew the joint plea agreement it had offered 2

Foley and Wilson

‐ Foley, under which Wilson

‐ Foley would not have been prosecuted. 3

Rowland contends that Wilson

‐ Foley’s refusal to accept the government’s 4

characterization of his job as a “sham” tends to exculpate him by casting doubt on one 5

of the government’s key claims at trial: that when Rowland wrote “I get it” in an e

‐ mail 6

to Brian Foley, he was referring to the need to conceal their unlawful scheme to 7

“employ” Rowland at Apple in exchange for services that he would actually provide to 8

the campaign. 5 9

But the Raabe affidavit and Santos notes are basically consistent with the MOI, 10

which was disclosed to Rowland. According to the MOI, Wilson

‐ Foley denied telling 11

her campaign manager, Chris Covucci, that “it was good to have Mr. Rowland working 12

5 The context for the “I get it” e

‐ mail tends to confirm this understanding. On September 14,

2011, Wilson

‐ Foley spoke with campaign staffer Chris Syrek about hiring Rowland. Syrek

attempted to dissuade her from hiring Rowland because Rowland’s employment would have to

be reported on the campaign’s quarterly FEC reports. In response to these concerns, Wilson

‐ Foley told Syrek, “Well, maybe the campaign doesn’t have to pay him.” Gov’t App. at 358 (Tr.

1432:1

‐ 2). In the 20 minutes following this conversation, Wilson

‐ Foley had three phone calls

with Rowland. Twenty

‐ two minutes after his final call with Wilson

‐ Foley, Rowland wrote the

following message to Brian Foley:

Brian,

had a brief chat with Lisa, I get it, let’s you and I meet

, good time

for you ?

. . .

App. at 556.21 for her husband and there was no concern with Mr. Rowland and the FEC filings.” 1

Gov’t App. at 868. When she was asked about Rowland’s e

‐ mail reminding her that he 2

was a “volunteer,” she told the government that “it did not register to her that her 3

husband, Brian, was paying Mr. Rowland.” Id. In other words, the MOI records 4

Wilson

‐ Foley’s denial of a connection between her campaign and Rowland’s 5

employment at Apple—exactly what Rowland now claims he did not know. 6

In addition, as the District Court found, Wilson

‐ Foley’s position that Rowland’s 7

employment with Apple was not a “sham” because she expected Rowland to do some 8

work there was already known to the defense from other evidence. “[E]vidence is not 9

considered to have been suppressed within the meaning of the Brady doctrine if the 10

defendant or his attorney either knew, or should have known, of the essential facts 11

permitting him to take advantage of that evidence.” United States v. Paulino

, 445 F.3d 12

211, 225 (2d Cir. 2006) (internal quotation marks omitted). Other evidence disclosed to 13

Rowland—including a voicemail left for a prosecutor by Wilson

‐ Foley’s counsel shortly 14

after this interview and statements she made to the press in 2012—evinced Wilson

‐ 15

Foley’s stated belief that Rowland had a real job at Apple. 16

Rowland argues that he could have used Wilson

‐ Foley’s statements to impeach 17

Brian Foley’s testimony by emphasizing that Wilson

‐ Foley had originally stuck to her 18

story that Rowland was a volunteer for her campaign with a legitimate job at Apple. 1922 But Rowland had abundant other evidence with which to impeach Brian Foley, and in 1

fact Rowland’s counsel did cross

‐ examine him on the fact that the original “package” 2

plea agreement had changed. Gov’t. App. at 296. “[W]here the undisclosed evidence 3

merely furnishes an additional basis on which to challenge a witness whose credibility 4

has already been shown to be questionable or who is subject to extensive attack by 5

reason of other evidence, the undisclosed evidence may be cumulative, and hence not 6

material.” United States v. Avellino

, 136 F.3d 249, 257 (2d Cir. 1998). 7

Furthermore, Rowland has not shown that the Wilson

‐ Foley statements put “the 8

whole case in such a different light as to undermine confidence in the verdict.” 9

Youngblood

, 547 U.S. at 870 (internal quotation marks omitted). We give “great weight” 10

to the District Court’s determination that, “[g]iven the strength of the other trial 11

evidence against Defendant,

. . . [he] has not met his burden of showing that there are 12

grounds for a new trial.” United States v. Rowland

, No. 3:14cr79(JBA), 2015 WL 1190118, 13

at *4 (D. Conn. Mar. 16, 2015). Here, there was considerable record evidence that 14

Rowland, Foley, and Wilson

‐ Foley conspired to conceal payments to Rowland made in 15

exchange for services rendered to the Wilson

‐ Foley campaign. For instance, Wilson

‐ 16

Foley’s campaign manager testified that when he objected to the prospect of having 17

Rowland on the official campaign payroll, she suggested that “maybe the campaign 18

doesn’t have to pay him.” Gov’t App. at 358 (Tr. 1432:1

‐ 2). Shortly after that 1923 conversation, Rowland and Wilson

‐ Foley had three telephone conversations, which 1

were followed by Rowland’s “I get it” e

‐ mail to Brian Foley. In another e

‐ mail, 2

Rowland also described his work on the campaign as “‘helping,’” with quotation marks 3

suggesting that “help” was a euphemism for paid work. Id. at 722. Later in the 4

campaign, Rowland reminded Wilson

‐ Foley that he was “just a volunteer helping you 5

and ‘many other Republican candidates’ in case anyone asks.” Id. at 743. Finally, as the 6

District Court noted, Rowland’s role on the campaign expanded as soon as he agreed to 7

the contract with Apple. He reported to campaign headquarters more frequently and 8

his campaign

‐ related e

‐ mail correspondence also increased substantially. From the time 9

the contract was signed in November 2011 until his campaign role was made public in 10

April 2012, his work for Apple and his Apple

‐ related correspondence remained 11

minimal. 12

Against the backdrop of this powerful documentary and testimonial evidence of 13

Rowland’s guilt, neither Wilson

‐ Foley’s testimony—which, had it been favorable to 14

Rowland, would have been subject to cross

‐ examination by the government—nor the 15

use of her interview statements to impeach Brian Foley would have changed the 16

outcome of the trial. Accordingly, Rowland would not be entitled to a new trial even if 17

he could persuade us—as he has not—that the government failed to meet its disclosure 18

obligations. 1924 III. Evidentiary Rulings 1

Rowland also challenges three of the District Court’s evidentiary rulings. This 2

Court reviews rulings on the admissibility of trial evidence for abuse of discretion. See 3

United States v. Fazio

, 770 F.3d 160, 165 (2d Cir. 2014). “A district court has abused its 4

discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous 5

assessment of the evidence or rendered a decision that cannot be located within the 6

range of permissible decisions.” Id. (quoting In re Sims

, 534 F.3d 117, 132 (2d Cir. 2008)). 7

We will reverse only if an error affects a “substantial right,” Fed. R. Evid. 103(a), 8

meaning that the error “had a ‘substantial and injurious effect or influence’ on the jury’s 9

verdict,” United States v. Garcia

, 413 F.3d 201, 210 (2d Cir. 2005) (quoting United States v. 10

Dukagjini

, 326 F.3d 45, 62 (2d Cir. 2003)). “[W]here a court, upon review of the entire 11

record, is sure that the evidentiary error did not influence the jury, or had but very 12

slight effect, the verdict and the judgment should stand.” Id. (quoting Kotteakos v. 13

United States

, 328 U.S. 750, 764 (1946)) (alterations and other marks omitted). 14

Only one of Rowland’s evidentiary challenges merits detailed discussion. At 15

trial, Rowland sought to introduce e

‐ mails and text messages that he wrote to Apple 16

Chief Operating Officer Brian Bedard about matters related to the company. The 17

District Court ruled that the writings were inadmissible hearsay because they would in 18

effect allow Rowland to testify without making himself available for cross

‐ examination. 1925 An out

‐ of

‐ court statement is hearsay only if it is offered “to prove the truth of the 1

matter asserted in the statement.” Fed. R. Evid. 801(c). Here, Rowland’s purpose in 2

offering the writings was not to establish the truth of his statements that, for instance, 3

“the unions will push to nail non

‐ union shops which of course flys [sic] in the face of 4

saving $$,” as Rowland wrote in one e

‐ mail. App. at 578. Instead, Rowland sought to 5

establish that he “was, in fact, working at Apple and taking the initiative to 6

communicate with Bedard.” Appellant’s Br. at 54

‐ 55. The text messages and e

‐ mails 7

were therefore not hearsay and should have been admitted into evidence. 8

But no new trial is warranted, because this error was harmless. The defense was 9

permitted to use the writings to refresh Bedard’s recollection. Bedard then testified 10

about the nature of the communications: namely, that he and Rowland communicated 11

via text message about the status of the contract negotiations. The defense also 12

introduced other evidence of Rowland’s actual work for Apple, such as a report that he 13

prepared at Apple’s request about a state

‐ sponsored study of nursing care in 14

Connecticut. Under these circumstances, we are confident that the District Court’s 15

evidentiary error “did not influence the jury, or had but very slight effect,” and 16

therefore no new trial is warranted. Garcia

, 413 F.3d at 210 (quoting Kotteakos

, 328 U.S. 17

at 764). 1826 Rowland’s remaining evidentiary challenges are meritless. It was not error for 1

the District Court to allow Brian Foley to testify about the meaning of Rowland’s use of 2

expressions like “I get it,” “this arrangement,” and “cover,” because those expressions 3

were ambiguous without the context that Foley supplied. See United States v. Urlacher

, 4

979 F.2d 935, 939 (2d Cir. 1992). It was also proper for Sam Fischer and Mark Katz, 5

Greenberg’s campaign aides, to testify regarding what Greenberg told them about his 6

meetings with Rowland, namely Rowland’s proposal to work for the campaign while 7

being paid by the Simon Foundation. What Greenberg told Fischer and Katz was not 8

offered for the truth of the matters asserted, but instead to provide context for what 9

Fischer and Katz knew during their subsequent meeting with Rowland. The statement 10

was offered for its effect on the listeners, not its truth, and was therefore not hearsay. 11

See Fed. R. Evid. 801(c). And even if we assume that the government may have, in its 12

closing statement, treated Fischer and Katz’s testimony as if it had been offered for the 13

truth of the matter, those comments were (1) not objected to by Rowland at the time and 14

(2) not unfairly prejudicial. See United States v. Rodriguez

, 968 F.2d 130, 142 (2d Cir. 1992) 15

(“It is a rare case in which improper comments in a prosecutor’s summation are so 16

prejudicial that a new trial is required.” (internal quotation marks omitted)). 17

18

1927 IV. Jury Instructions 1

Rowland identifies a number of alleged errors in the District Court’s jury 2

instructions. We review those instructions de novo

. United States v. Roy

, 783 F.3d 418, 420 3

(2d Cir. 2015) (per curiam). “A jury instruction is erroneous if it misleads the jury as to 4

the correct legal standard or does not adequately inform the jury on the law.” Id. 5

(quoting United States v. Naiman

, 211 F.3d 40, 50 (2d Cir. 2000)). A defendant 6

challenging a jury instruction on appeal must demonstrate that he requested a charge 7

that “accurately represented the law in every respect,” that the charge delivered was 8

erroneous, and that he was prejudiced by the error. Id. (internal quotation marks 9

omitted). 10

“[A] criminal defendant is entitled to have instructions presented relating to any 11

theory of defense for which there is any foundation in the evidence, no matter how 12

weak or incredible[] that evidence may be.” United States v. Durham

, 825 F.2d 716, 718

‐ 13

19 (2d Cir. 1987) (internal quotation marks omitted). The defendant bears the burden of 14

establishing that an adequate evidentiary basis exists for the requested charge. See 15

United States v. Bok

, 156 F.3d 157, 163 (2d Cir. 1998). A district court’s determination to 16

the contrary is reviewed for abuse of discretion. See United States v. Hurtado

, 47 F.3d 17

577, 585 (2d Cir. 1995). 1828 Rowland argues that the District Court erred by failing to instruct the jury that 1

“Mr. Rowland contends that he understood that any payments he received were for 2

work performed for Apple.” App. at 293. The District Court rejected this charge, 3

reasoning that “[i]t’s a proxy for [Rowland’s] testimony, which the jury didn’t hear.” Id. 4

at 318. Instead, the jury was instructed that Rowland “contends that

. . . any payments 5

he received were for work performed for Apple Healthcare, Inc.” Id. at 401

‐ 02. 6

Rowland now argues that this instruction did not properly represent his defense, which 7

was that—no matter what Brian Foley’s intentions were—Rowland believed that he was 8

being compensated only for his work for Apple. But this aspect of his defense was 9

adequately reflected in other parts of the jury instructions, in which the court informed 10

the jury that “Mr. Rowland

. . . contends that he acted in good faith at all times and not 11

with the intent alleged in each count of the Indictment” and that “Mr. Rowland 12

contends that any work performed by him for the Wilson

‐ Foley campaign was in a 13

volunteer capacity. ” Id. at 400

‐ 02. The District Court did not err in declining to use 14

Rowland’s preferred phrasing. 15

None of Rowland’s other objections to the jury instructions has merit. His 16

contention that the jury needed detailed instructions regarding the FEC rules that 17

govern a candidate’s contributions to his own campaign is unavailing. He argues that 18

this testimony was needed to correct the “misimpression” from Greenberg’s testimony 1929 that Rowland’s proposal to have Greenberg pay him directly was “wrong.” Appellant’s 1

Br. at 52. But the jury was in fact told (albeit in other words) that Greenberg personally 2

would have been permitted to pay Rowland for his services, as long as Greenberg 3

reported those payments to the FEC. See Gov’t App. at 666 (Tr. 2579:14

‐ 23). Rowland’s 4

final argument on jury instructions, that the court erred by instructing the jury that a 5

defendant can falsify a document by knowingly omitting a material fact, is erroneous 6

for the same reasons that Rowland’s challenge to his § 1519 convictions fails. 7

V. Guidelines Calculation 8

Finally, Rowland challenges the District Court’s application of a six

‐ level 9

sentencing enhancement for “the value of the illegal transactions” pursuant to U.S.S.G. 10

§§ 2C1.8 and 2B1.1. “This Court reviews a district court’s application of the Guidelines 11

de novo

, while factual determinations underlying a district court’s Guidelines calculation 12

are reviewed for clear error.” United States v. Cramer

, 777 F.3d 597, 601 (2d Cir. 2015). 13

The applicable 2014 Sentencing Guidelines include a sentencing enhancement for 14

campaign finance offenses that is based on the value of the illegal transactions, if the 15

value exceeds $5,000. See U.S.S.G. § 2C1.8 (2014). The District Court calculated the 16

value of the illegal transactions to be $35,000, the total amount of the payments 17

Rowland received from Apple. That results in a six

‐ level enhancement under the 2014 18

Guidelines. See U.S.S.G. § 2B1.1 (2014). 1930 Rowland argues that the District Court erred in its calculation. He does not 1

dispute that he received $35,000 in payments from Apple. But he argues that the 2

amount he received should have been offset by $5,000, which he asserts to be the value 3

of the services he actually provided to the company. 4

The District Court rejected this argument on the ground that the value to Apple 5

of any services Rowland rendered was simply “a byproduct of the attempted cover

‐ up 6

of the true nature of the campaign contributions.” United States v. Rowland

, No. 7

3:14cr79(JBA), 2015 WL 1275655, at *5 (D. Conn. Mar. 19, 2015). We agree with the 8

District Court. The record supports the court’s conclusion that the legitimate services 9

Rowland performed for Apple were inseparably intertwined with the services he 10

performed for Wilson

‐ Foley’s campaign, and that Rowland would not have performed 11

services for Apple at all but for his planned cover

‐ up. Because the District Court’s 12

factual finding regarding the nature of the payments to Apple is not “clear error,” 13

Cramer

, 777 F.3d at 601, the six

‐ level sentencing enhancement was proper and the 14

sentence need not be disturbed. 15

CONCLUSION 16

Rowland’s remaining argument, regarding the constitutionality of limits on 17

individual campaign contributions, is foreclosed by the Supreme Court’s decision in 1831 Buckley v. Valeo

, 424 U.S. 1 (1976). Accordingly, for the foregoing reasons, we AFFIRM 1

the judgment of the District Court. 2