Appellate Law

CA1: not quite telling the truth about working for Walmart

By S. COTUS

US v. Riccio, No. 07-2604.  The defendant working for the TSA, and needed a security clearance.  He filled out a SF-86.  But, it turns out he neglected to state on it that he had worked at Walmart before (understandable, since many this is considered a shame in many cultures).  He also seems to have claimed that he was injured at the TSA, even though he was on disability because of something that happened at Walmart.  So, the government charged him with violating ?18 U.S.C. § 1001, by knowingly and willfully making a materially false, fictitious or fraudulent statement on a document he submitted to the TSA, the SF-86 Form in which he did not list his Wal-Mart employment.?  Again, I sort of feel for this guy.

The biggest issue is whether the ?knowing and willfully? prong of the statute was properly explained to the jury.  On plain error review, the First says that there was no plain error in the instructions or on the verdict form even though it left out the words ?knowingly and willfully.?

During closing arguments, the prosecutor referred to a deposition in proceedings against Walmart that was not in evidence.  The District Court looked a the record and gave a curative instruction, rather than granting a request for a mistrial.  The government admits that the statements made by the government were ?factually inaccurate.?  The First says is ?prosecutorial misconduct? (but drops a footnote saying that this isn?t really as bad as it sounds.)  It cites United States v. Azubike, 504 F.3d 30, 38 (1st Cir. 2007) (our coverage here.) 

But, having found that the government committed misconducting, the First rushes scurries around to save the conviction and give the green light to prosecutors that want to do this in the future, thereby turning some form of harmless error analysis into a rule of decision. It concludes that the curative instruction was okay, and it wasn?t a close case.  Whatever.

At sentencing, the District Court admitted the deposition.  There was some dispute as to whether it was reliable, but the First says that it was good enough.

Finally, the First says that the written judgment ?fleshes out the details? of the oral sentence, and therefore it is not in contradiction.

For more reasons why I (and most lawyers) do not associate with people that work at or shop at Walmart, see this collection of Walmart stories.

Full post as published by Appellate Law and Practice on June 17, 2008 (boomark / email).