United States Court of Appeals

For the First Circuit

No. 04-2447

UNITED STATES OF AMERICA,

Appellee,

v.

JAMES O'BRIEN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

 Boudin, Chief Judge,

Stahl, Senior Circuit Judge,

and Lynch, Circuit Judge.

Dana A. Curhan with whom Brad Bennion was on brief for

appellant.

Virginia M. Vander Jagt, Assistant United States Attorney,

with whom Michael J. Sullivan, United States Attorney, was on brief

for appellee.

January 18, 2006
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BOUDIN, Chief Judge. James O'Brien, who is appealing his

conviction and sentence, is a computer consultant. From 1997 until

1999, O'Brien was employed by Mill-Run Tours, a travel wholesaler

that sells airline tickets to travel agents using a secure website

and an airline reservation system--familiar to O'Brien--called

Amadeus. In July 1999, O'Brien, then living in Massachusetts, was

fired from Mill-Run for making unauthorized changes to the Amadeus

system.

During the third week of December 2000, several airline

reservations that had been made through Mill-Run Tours were

inexplicably cancelled, causing hardship to customers and loss to

the firm. Mill-Run traced these cancellations to an IP (internet

protocol) address for a computer later determined to be O'Brien's.

Two specific logins to Amadeus by the user of that unique IP

address occurred on December 18, 2000; once at 7:47 a.m. (when the

bulk of the cancellations occurred) and again at 5:37 p.m.

The FBI executed a search warrant at O'Brien's Worcester,

Massachusetts home on January 19, 2001, and seized his computer.

He was interviewed when the seizure occurred but did not admit to

wrongdoing and was not arrested at the time. Later, after an

investigation, O'Brien was indicted in April 2003 for intentionally

causing damage to a computer used in interstate commerce. 18

U.S.C. § 1030(a)(5)(A)(i) (2000).
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At trial, the parties stipulated that the cancellations

had been made through O'Brien's computer, and the government

presented evidence from which the jury could have concluded that

O'Brien had left the company on bad terms; that at 7:43 a.m. on

December 18, 2000, a few minutes before most of the cancellations

had occurred, O'Brien had himself sent a message from his computer;

and that he had initially told the FBI agent during the search that

he had been in New York on December 18th--a claim readily disproved

by other evidence.

O'Brien testified in his own defense, saying that he had

left home immediately after 7:43 a.m. to meet a professor, one

Joshua Aisiku, at 8 a.m.; that he had remained away all day; and

that perhaps his now deceased brother had accidentally erased the

reservations--O'Brien said that his brother had access to the

computer and was interested in Amadeus. Aisiku also testified, but

said that he was relying on O'Brien as to the time of the meeting

and that he (Aisiku) usually did not arrive at work until 8:30 a.m.

During cross-examination of O'Brien, the prosecutor asked

whether, when O'Brien had been interviewed at the search scene by

the FBI, he had mentioned the possibility that his brother was

responsible. O'Brien said no. The prosecutor then asked, "[Y]ou

never told the U.S. Attorney's Office, isn't that correct, that

your brother was the person responsible for this activity?"

Defense counsel then objected that O'Brien was under no obligation
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to speak to the FBI; the objection was overruled and the question

was then repeated.

O'Brien then answered, testifying that the FBI had said

during the interview that it would be back in touch but had never

returned or contacted him again. When the prosecutor asked whether

after his indictment in April 2003 O'Brien had contacted the U.S.

Attorney's office and said that his brother was responsible,

O'Brien answered, "I leave those things to my attorney." In

closing, the prosecutor several times referred to O'Brien's failure

to mention the brother to the government prior to his court

testimony.

The jury convicted O'Brien. At sentencing, the judge

calculated the guideline range for the offense at 15 to 21 months

based on a loss amount of between $25,000 and $40,000 and sentenced

O'Brien to 15 months' imprisonment. On this appeal, O'Brien argues

that the district court erred in allowing him to be questioned

about his failure to tell the U.S. Attorney's office that his

brother might be responsible. He also contests two upward

adjustments made in the calculation of his guideline sentence.

The heart of the evidentiary objection is that the

prosecutor's questioning of O'Brien about this failure to mention

his brother, and the prosecutor's later statements in closing

argument to the jury about this failure, were barred by Doyle v.

Ohio, 426 U.S. 610 (1976), and follow-on cases. Jenkins v.
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Anderson, 447 U.S. 231, 240 (1980); Fletcher v. Weir, 455 U.S. 603,

606-07 (1982); South Dakota v. Neville, 459 U.S. 553, 565-66

(1983). Doyle held succinctly that "the use for impeachment

purposes of petitioners' silence, at the time of arrest and after

receiving Miranda warnings, violated the Due Process Clause." 426

U.S. at 619.

Written in the wake of Miranda, Doyle is a case in which

a defendant was taken into custody, warned that he had a right to

remain silent, and then later impeached at trial--when he offered

an alibi--on the ground that he had not mentioned this exculpatory

information to the police. Id. at 611-14. In explaining why this

was impermissible, Justice Powell said two things: that after such

a warning the defendant's silence was "insolubly ambiguous"

(because he might just be following the police's advice) and that

it was "fundamentally unfair" to tell the defendant he could remain

silent and then use that silence against him. Doyle, 426 U.S. at

617-19.

However, in our view the Doyle objection to the question

was not properly preserved (no Doyle objection at all was made to

the closing argument). Thus, the question for us on review is one

of plain error. The legal principle is clear: 

[Where] the ruling is one admitting evidence,

a timely objection or motion to strike [must]

appear[] of record, stating the specific

ground of objection, if the specific ground

was not apparent from the context.
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Fed. R. Evid. 103(a)(1). Because the purpose is to allow the judge

to avoid error, the corollary is that to preserve the objection,

the "specific ground" stated must be the correct one. See United

States v. Diaz, 300 F.3d 66, 75-76 (1st Cir. 2002).

Here, the objection was not obvious from context. And

although defense counsel gave a specific ground for objecting, it

was the wrong ground. It is true (as defense counsel argued to the

judge) that O'Brien was "not under any general obligation to speak

to the FBI"; but this is not a valid objection to the question;

the adverse inference works, if at all, regardless of "obligation."

Nor did the objection raise the Doyle issue, which rests upon two

different grounds (ambiguity and unfairness).

This is not necessarily a criticism of defense counsel.

No lawyer carries around in his or her head all of the endless

precedents on evidence and procedure, and while it would be strange

for a defense counsel not to know the Miranda rule, many lawyers

have never heard of Doyle. And neither have many judges: that is

why objecting counsel either had to point to Doyle or a counterpart

case or had to articulate an objection that was in substance close

to the rationale of Doyle. See Diaz, 300 F.3d at 75-76.

The law is nothing if not practical. Where objecting

counsel offers the right objection, the judge has to get the ruling

right and will otherwise be reversed unless the error is patently

harmless. United States v. Piper, 298 F.3d 47, 56-57 (1st Cir.
The government invokes plain error review as to the closing 1

argument to which no objection was made, but it assumes that

harmless error governs as to the objection on cross-examination

(and then argues that, if there was error, it was harmless). We

remain free to apply the correct standard of review. See United

States v. Cudlitz, 72 F.3d 992, 998-99 (1st Cir. 1996).

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2002). If the wrong objection or none at all is offered, the

conviction will still ordinarily be reversed if (1) an error

occurred in admitting evidence; (2) the error was plain; (3) it

likely altered the result; and (4) it reflects some fundamental

unfairness. United States v. Olano, 507 U.S. 725, 732 (1993). The

Olano standard governs here and we are free to apply it even though

the government did not urge us to do so.1

Whether there was an error at all may be debatable.

Between the time of the FBI search of O'Brien's house in January

2001 and his arraignment in May 2003, his failure to disclose his

brother's supposed possible culpability is free of any Doyle

objection. Jenkins, 447 U.S. at 240. O'Brien was neither arrested

nor given a Miranda warning at the time of the search. Thus,

neither the language of Doyle ("at the time of his arrest and after

receiving Miranda warnings") nor either of its rationales applies.

See Weir, 455 U.S. at 607. Failure to disclose an alibi before any

warning is given can be used to impeach the later assertion of that

alibi.

Admittedly, at O'Brien's arraignment in May 2003, he

apparently was told by the arraigning judicial officer that he had
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a right to remain silent. So, arguably Doyle bars any reference by

the prosecutor to O'Brien's failure to come forward with the alibi

after this warning. See Brecht v. Abrahamson, 507 U.S. 619, 628-29

(1993). The literal language of Doyle may apply in such a case;

the force of its rationale might be somewhat weakened in a case

where the defendant was not in jail, but might be strengthened if

his lawyer warned him not to talk.

The prosecutor's questions in this case did not segment

the time periods into before and after the warning; but because

O'Brien could be impeached by his pre-arraignment silence, the

cross-examination was admissible as to the earlier period (and that

lengthy period was perhaps also the more powerful impeachment).

Defense counsel suggests that any warning of silence that he

(counsel) gave to O'Brien independently triggered Doyle but, timing

issues aside, the government's assurance was the core of Doyle's

due process rationale.

Even if the impeachment as a whole were improper--and we

hold that it was not improper as to O'Brien's pre-arraignment

silence--it would not be "plainly" so, nor would we say that it had

more likely than not altered the outcome. Indeed, the government

argues that the cross-examination was harmless beyond a reasonable

doubt, which is perhaps further than we would be prepared to go.

But under Olano it is enough to sustain the conviction that the
Technically, whether an error "affected substantial rights"-- 2

the third prong of Olano--is not always treated as a mechanical

matter of probabilities, United States v. Procopio, 88 F.3d 21, 31

(1st Cir.), cert. denied, 519 U.S. 1046 (1996); but likelihood is

a central element, id., even though the test is not an inflexible

mathematical one. Cf. United States v. Heldeman, 402 F.3d 220, 224

(1st Cir. 2005).

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result would quite likely have been the same without the crossexamination or closing.2

The jury had evidence from which it could readily

conclude that the defendant had both motive and opportunity to

commit the offense. O'Brien does not even deny that he was at the

computer a few minutes before the initial erasure instructions were

sent, and his effort to invoke Aisiku as an alibi probably

backfired as a second seeming attempt to manufacture an alibi (just

like O'Brien's initial claim to have been in New York on December

18). On this evidence, an acquittal would be surprising,

regardless of the objected-to questioning.

Then, at trial, O'Brien revealed, apparently for the

first time, that his brother might well be to blame. The brother

was no longer available to refute the charge but had no known

motive to erase reservations. The idea that he accessed the

Amadeus program and accidentally erased a whole set of reservations

(seemingly on two separate occasions) appears far-fetched in the

extreme. It is more than possible that this purported explanation

itself did O'Brien more harm than good--not that he had much to

lose by trying, considering the other evidence against him.
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Thus, the impeachment of this very thin effort by O'Brien

to blame his brother added something to the prosecutor's case but

relatively little. It would be one thing if O'Brien had

affirmatively mentioned his brother as a prime possibility in his

first encounter with investigators; but the jury was not told that

he had. To have the possibility emerge out of the blue at the

trial, and after the brother's death, conveyed its own message to

any thoughtful jury.

Our view that there was no prejudicial plain error brings

us to O'Brien's claims of error at sentencing. The district judge

calculated the guideline range with a base level of 4 for property

damage or destruction, U.S.S.G. § 2B1.3(a) (2000), adding 6 levels

for a loss of $25,000-$40,000, U.S.S.G. § 2B1.1, and then adding 2

levels for obstruction of justice, U.S.S.G. § 3C1.1, and 2 levels

for use of a special skill, U.S.S.G. § 3B1.3. On appeal, O'Brien

says that the latter two enhancements were error.

The obstruction of justice enhancement rested on

O'Brien's trial testimony that he had not erased the reservations

but that his brother had done so. Deliberately false testimony by

a defendant constitutes obstruction, but inadvertent falsity does

not. United States v. Dunnigan, 507 U.S. 87, 94 (1993).

Inadvertence is not an issue in this case: O'Brien knew whether he

had erased the reservations and, if he did so, both lied in denying

it and also knew that his brother had not done the erasing.
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The district judge imposed the enhancement on the ground

that the jury, by its verdict, must have found that O'Brien lied.

The enhancement requires that the district judge, not the jury,

find that the false testimony was willful and material. Dunnigan,

507 U.S. at 95; United States v. Camuti, 78 F.3d 738, 745 (1st Cir.

1996). But O'Brien's complaint is not that the judge relied on the

jury: indeed, given the evidence, the judge would surely have found

(only a preponderance of the evidence is required) that O'Brien

deliberately and materially lied. Rather, O'Brien's primary claim

about the enhancement is his contention that the jury was required

to make the finding of perjury and that it is unclear that the jury

made such a finding.

Under United States v. Booker, 125 S. Ct. 738 (2005), it

remains (as before Booker) for the judge to determine the factual

basis for an enhancement, United States v. Antonakopoulos, 399 F.3d

68, 80 (1st Cir. 2005), so long as the statutory ceiling is not

raised, Booker, 125 S. Ct. at 756. Booker alters the equation only

by making the guidelines advisory. Id. at 756-57. No jury

determination of perjury was required in this case--although it

seems fairly evident to us that the jury did believe that O'Brien

lied.

The other enhancement that O'Brien contests is that for

using a "special skill" in the commission of the crime. The

district judge questioned both sides about the Amadeus airline-
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reservations program and O'Brien's knowledge of it. That knowledge

was considerable: O'Brien had in fact taught the subject to others

in the travel agency. Consistent with the pre-sentence report, the

judge then found the special-skill enhancement to be warranted.

O'Brien says the skill he used was not sufficiently

special to qualify under the guideline; but in a similar prior

case, arguably presenting stronger facts for the defendant, we held

otherwise. United States v. Prochner, 417 F.3d 54, 61 (1st Cir.

2005). See also United States v. Noah, 130 F.3d 490, 499-500 (1st

Cir. 1997). Given the special training needed for Amadeus, O'Brien

would qualify for the enhancement even under the Sixth Circuit's

more defendant-friendly view of the enhancement taken in United

States v. Godman, 223 F.3d 320, 322-23 (6th Cir. 2000), a case on

which O'Brien relies. In addition, Godman is not the law in this

circuit.

O'Brien also says that the enhancement is double counting

because the ability to use a computer is "a defining element of the

offense," and therefore his skill is implicitly counted against him

in the offense itself. Objections to guideline calculations based

on "double counting" are a peculiar animal: sometimes the

guidelines permit or require what a layman might regard as double
Compare U.S.S.G. § 3B1.1 (adding points for a leadership role 3

in the offense even though leadership role also triggers other

enhancements), with U.S.S.G. § 3C1.1 n.7 (prohibiting application

of obstruction of justice enhancement for certain offenses on

grounds of double counting). See also United States v. Talladino,

38 F.3d 1255, 1261-62 (1st Cir. 1994).

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counting and sometimes they do not. Nor is the case law entirely 3

consistent from one circuit to the next.

The subject is complicated and the government offers a

multitude of replies. We think it is enough to say here that the

use of special computer skills is certainly not an element of the

statutory offense and that O'Brien was plausibly found to have had

such skills beyond those possessed by an ordinary computer user.

O'Brien also fits the rationale behind the enhancement, which is

the special danger posed by one whose training magnifies or

facilitates the potential for harm. See United States v. Connell,

960 F.2d 191, 198-99 (1st Cir. 1992). 

Affirmed.