FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW
HAMPSHIRE [Hon. Joseph N. Laplante, U.S. District Judge]
Pamela Heit for appellant.
R. Aframe, Assistant United States Attorney, with whom Scott
W. Murray, United States Attorney, was on brief, for
Thompson, Selya, and Barron, Circuit Judges.
BARRON, CIRCUIT JUDGE.
Brown was convicted in the United States District Court for
the District of New Hampshire in 2017 on twelve counts of
making a materially false statement to a federal agency under
18 U.S.C. § 1001(a)(2). She now appeals from those
convictions on a number of grounds, including that she
received ineffective assistance of counsel at trial in
violation of the Sixth Amendment of the federal Constitution.
We dismiss without prejudice her claim of ineffective
assistance of trial counsel. We reject her other challenges
to her convictions.
Brown founded and ran a nonprofit agricultural organization,
the New Hampshire Institute of Agriculture and Forestry
("NHIAF"). The NHIAF owned and operated two small
plots of land that it rented out to novice farmers and on
which it provided agricultural instruction to them. The NHIAF
also delivered produce from New Hampshire farmers to buyers
elsewhere in the state.
behalf of the NHIAF, Brown applied for and obtained Rural
Business Enterprise Grants ("RBEGs") from the
United States Department of Agriculture ("USDA" or
"the Department") for both 2011 and 2012. Funds
from those grants, which were awarded competitively, were to
be used in part to pay Julie Moran and Wilma Yowell for their
work as independent contractors for the NHIAF.
obtain the funds that the RBEGs provided, Brown each month
filled out, signed, and submitted a standardized government
form -- labeled the "Standard Form 270"
("SF-270") -- to the Department. On each such
SF-270, she listed the "[t]otal program outlays"
for the month; these dollar amounts, Brown concedes, were
based in part on the amount of work that Moran and Yowell had
performed for the NHIAF. She also checked a box that
confirmed that she was seeking "reimbursement"
payments. In addition, on each such SF-270, she signed a
certification that stated that "to the best of my
knowledge . . . all outlays were made in accordance with the
grant conditions." The grant conditions were set forth,
in part, in a separate letter of conditions from the
Department, most of which Anne Getchell, a Department
employee, testified that she had reviewed line-by-line with
Brown when the NHIAF was awarded the first RBEG.
attached typed reports to the first three SF-270s that she
submitted. The typed reports set forth the number of hours
that Moran and Yowell allegedly had worked for the NHIAF.
Getchell testified that she told Brown that better
documentation -- in the form of invoices or paystubs -- would
be required in the future. Thereafter, Brown attached
invoices that identified the hours that Moran and Yowell
allegedly had worked for the NHIAF.
NHIAF had not paid either Moran or Yowell at the time that
Brown submitted the SF-270s. In fact, the NHIAF did not at
any point pay them, though the NHIAF did occasionally provide
them with some groceries and reimburse them for specific
expenditures that they had made with their own funds.
February 10, 2016, Brown was indicted in the District of New
Hampshire on twelve counts of "Making a Material False
Statement to a Federal Agency" under 18 U.S.C. §
1001(a)(2). That provision criminalizes, "in any matter
within the jurisdiction of the executive . . . branch of the
Government of the United States, knowingly and willfully . .
. mak[ing] any materially false . . . statement or
the twelve counts charged Brown with falsely
"representing to the [Department], in a Standard Form
270 'Request for Advance or Reimbursement' and
appended supporting documentation, that the [NHIAF] -- of
which BROWN was the Executive Director -- had paid [funds] to
[the] NHIAF employees [Moran and Yowell] for services
rendered, as grounds to draw down funds from a previously
approved USDA [RBEG]." Counts four through nine of the
indictment, moreover, charged Brown not only with falsely
claiming that the NHIAF had made "payments to [Moran]
and [Yowell] for the services rendered" but also with
falsely representing that Moran and Yowell "prepared or
approved the invoices submitted by BROWN with the Standard
Form 270." Counts ten through twelve omitted the
references to Yowell but were otherwise the same as counts
four through nine.
January 26, 2017, Brown was convicted by a jury on all twelve
counts. After the verdict, Brown brought multiple challenges
to her convictions, including that she had received
ineffective assistance of counsel at trial. The District
Court held an evidentiary hearing on the motion for new trial
that she filed based on the claimed ineffective assistance of
trial counsel. The hearing focused on a discrete aspect of
that motion, which concerned a chambers conference that the
District Court had convened to address how to respond to a
request for additional information that the jury made during
its deliberations. The District Court ultimately denied the
motion for new ...