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United States v. Gaw

United States Court of Appeals, First Circuit

March 9, 2016

UNITED STATES OF AMERICA, Appellee,
v.
DAVID P. GAW, Defendant, Appellant

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. George A. O'Toole, Jr., U.S. District Judge.

William J. Cintolo, with whom Cosgrove Eisenberg & Kiley was on brief, for appellant.

Evan Rose, Attorney, United States Department of Justice, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

Before Lynch, Stahl, and Barron, Circuit Judges.

OPINION

BARRON, Circuit Judge.

David Gaw, an employee with the Massachusetts Registry of Motor Vehicles (" RMV" ), appeals from his conviction on two counts of mail fraud, 18 U.S.C. § § 2, 1341, 1346, and one count of conspiracy to interfere with interstate commerce by threats or violence, id. § 1951 (" Hobbs Act" ). The convictions relate to an alleged scheme to sell automotive service station owners RMV licenses to perform state-mandated vehicle inspections. Gaw contends that the evidence was insufficient to support the convictions, but we reject this challenge. And because we also reject Gaw's other arguments for overturning the convictions, we affirm them.

I.

Gaw's convictions arise from allegations concerning his work as a field investigator with the RMV. In Massachusetts, automotive service station owners must obtain a license

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from the RMV in order to perform state-mandated vehicle inspections. See 540 C.M.R. § 4.08. In 2008, the RMV placed a cap on the number of licenses that the RMV would issue to service stations to perform inspections of regular passenger vehicles.

Because inspection licenses are generally not transferable, the cap matters a lot. Once the RMV hits the cap, a service station owner who seeks a license is seemingly out of luck. See id. § 4.08(1)(a)(2). The RMV, however, had an unwritten policy that allowed licenses to follow a station owner if the owner merged the station into another that did not have a license. And this unwritten policy -- and the ambiguity about the rules, if any, that govern merger approvals -- figures prominently here for the following reason.

In 2009, the RMV had hit the cap. The government alleges that Gaw and two others -- Simon Abou Raad, a service station owner, and Mark LaFrance, an RMV employee in charge of the vehicle inspection program -- developed a scheme to enrich themselves by taking advantage of the interaction between the cap and the unwritten merger policy.

According to the government, the conspirators would identify service station owners who held licenses but were not doing

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a large inspection business. The conspirators would then either attempt to shut down those owners' service stations on technicalities or offer to buy their inspection equipment in the hope that the service station owners would agree to give up their licenses.

If station owners who were approached in connection with this scheme agreed to give up their licenses, the government contended, the conspirators would then find a " buyer" for the license and draw up sham paperwork to make it appear that the station owner giving up its license was merging into the " buyer." In this way, the participants in the scheme were able to profit from the unlawful transfer of licenses by selling them while disguising them as transfers effected pursuant to mergers.

Due to his alleged involvement in the scheme, Gaw was indicted in the United States District Court for the District of Massachusetts on 16 counts of mail fraud and one count of violating the Hobbs Act. In addition to the Hobbs Act count, the government pursued three of the 16 mail fraud counts at trial: two relating to the sale of one license and one relating to the sale of another.

At the conclusion of the evidence, Gaw moved for acquittal on all

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counts. The District Court denied the motion and the case then went to the jury. The jury returned guilty verdicts on two of the mail fraud counts, a not guilty verdict on the third mail fraud count, and a guilty verdict on the Hobbs Act count.

Gaw then moved for acquittal pursuant to Federal Rule of Criminal Procedure 29. Gaw also moved for a new trial pursuant to Federal Rule of Criminal Procedure 33. Both motions were denied. The District Court sentenced Gaw on each charge to one year and one day in prison, followed by a year of supervised release. The sentences were to run concurrently.

On appeal, Gaw challenges the sufficiency of the government's evidence as to each of his convictions, argues that the District Court should have ordered a new trial, and contends that the cumulative error doctrine also requires that his convictions be vacated. We address these arguments in turn, and we reject each one.

II.

We start with Gaw's challenge to the District Court's denial of his Rule 29 motion. Our review is de novo. United States v. Hatch, 434 F.3d 1, 4 (1st Cir. 2006).

The question that we must resolve is whether " a rational factfinder could find, beyond a reasonable doubt, that the prosecution successfully proved the essential elements of the crime." Id. (internal quotation mark and citation omitted). " [T]his court need not

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believe that no verdict other than a guilty verdict could sensibly be reached, but must only satisfy itself that the guilty verdict finds support in a plausible rendition of the record." Id. (internal quotation marks and citation omitted). In undertaking that review, we consider " the evidence in the light most amiable to the government," make " all reasonable inferences in its favor," and resolve all credibility disputes in favor of the verdict. Id. (internal quotation mark and citation omitted).

Our sufficiency review is made more complicated here by virtue of the number of distinct theories of criminal liability the government pursued at trial. Thus, before we turn to what the record shows about the evidence, we briefly discuss the theories the government put into play.

As we have said, the government charged Gaw with violating the mail fraud statute and the Hobbs Act. And with regard to the mail fraud counts, the parties agree, the government charged Gaw both as a principal and as an aider and abettor.

At trial, the government argued that Gaw could be convicted of each count of mail fraud under one theory -- known as the " money or property" theory -- either as a principal, or as an

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aider and abettor of either Mark LaFrance or Simon Abou Raad. The government also argued that Gaw could be convicted of each count of mail fraud under a second theory -- known as the " honest services" theory -- as either a principal or as an aider and abettor of LaFrance. There were thus, effectively, five theories of liability in play for each count of mail fraud.

The government also argued that Gaw could have been convicted under either of two separate theories of Hobbs Act liability, known respectively as the " fear of economic loss" and " color of official right" theories. And, the government argued, Gaw could be convicted under either theory for conspiring with either Abou Raad or LaFrance. There were thus effectively four theories of liability in play as to that charge.

The District Court, understandably, raised some concern that the broad array of theories would be too confusing to the jury. But, ultimately, the District Court allowed the government to proceed with all of these theories in presenting its case.

Gaw does not challenge that decision on appeal. Nor does he argue that the case was not in fact so presented. As a result, we must affirm ...


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