United States Court of Appeals For the First Circuit

No. 21-1823

UNITED STATES OF AMERICA,

Appellee,

v.

JASIEL F. CORREIA, II,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Lynch, Selya, and Howard, Circuit Judges.

Daniel N. Marx, with whom William W. Fick and Fick & Marx LLP were on brief, for appellant. Mark T. Quinlivan, Assistant United States Attorney, with whom Rachael S. Rollins, United States Attorney, was on brief, for appellee.

November 28, 2022 SELYA, Circuit Judge. At a youthful age, defendant-

appellant Jasiel F. Correia, II, successfully persuaded investors

to back his SnoOwl app. He then parlayed his work as an innovator

and entrepreneur into a stunning electoral victory, winning office

(at the age of twenty-three) as mayor of the city of Fall River,

Massachusetts (the City). But the swiftness of the defendant's

rise was matched by the swiftness of his fall: a federal grand

jury indicted him on charges relating to his SnoOwl promotion, and

a superseding indictment added charges relating to public

corruption. The defendant did not seek a severance and, following

an eighteen-day trial, he was convicted on most of the charges.

The district court set aside some convictions, but let others stand

and sentenced the defendant to serve seventy-two months in prison.

The defendant now appeals. After careful consideration of a

chiaroscuro record, we affirm.

I

We start with the relevant facts, recounting them "in

the light most hospitable to the verdict, consistent with record

support." United States v. Tkhilaishvili,

(1st Cir.

2019). We divide this discussion into three parts. First, we set

out the facts supporting the defendant's convictions for wire

fraud. Second, we set out the facts supporting his convictions

under the Hobbs Act. Third, we trace the travel of the case.

- 2 - A

In late 2012, while a college student, the defendant

began putting together a plan to develop an app called SnoOwl.

For help, he enlisted three people: his then-roommate, a friend

from high school, and a software engineer. The defendant hoped

that SnoOwl, when perfected, would enable consumers to find events,

specials, and services being offered by businesses near them.

To realize this vision, though, seed money had to be

obtained. The defendant assumed responsibility for courting

potential investors. Over time, he persuaded at least five people

to invest in the endeavor. All five testified at trial, but we

focus the lens of our inquiry on two of them: Mark Eisenberg and

Victor Martinez. Eisenberg was a business coach who had previously

owned or operated firms in various industries. Martinez — a friend

of Eisenberg's — ran a chain of pizza restaurants.

Eisenberg and Martinez first met the defendant on

November 4, 2014. During that meeting, the defendant lauded the

prospects of SnoOwl and asked them to invest $50,000 toward its

development. As part of his pitch, the defendant told them about

his background. Most relevant here, he described his previous

experience "develop[ing] an app." That app — which the defendant

had developed with a fellow student, Alec Mendes, while at

Providence College — was called FindIt. Like SnoOwl, FindIt's

purpose was to help consumers identify local businesses that were

- 3 - advertising specials and accepting coupons. FindIt earned money

by charging businesses for advertisements — and over the entire

span of its existence, FindIt generated only a few thousand dollars

in revenue.

At their initial meeting, the defendant informed

Eisenberg and Martinez that FindIt was "eventually sold to a group

out of Cambridge." This unidentified group — as the defendant

told it — then "turned around and sold [the app] to Facebook."

Eisenberg recalled being "impress[ed]" by this feat, and he

remembered that the defendant had indicated that he received money

from FindIt's sale.

The defendant's account of FindIt's success was at odds

with the tale told by the record. In point of fact, there was no

evidence that FindIt was ever purchased by an outside group from

Cambridge or elsewhere. To the contrary, Mendes testified that

FindIt was abandoned and went offline. Around the same time,

Mendes and the defendant agreed to divide FindIt's assets amongst

themselves. The defendant received a payout of approximately

$2,000 — but nothing in the record suggests that those funds

derived from any sale of the app or its underlying source code.

Unaware of FindIt's ignominious ending, Eisenberg and

Martinez "believe[d] [the defendant's] representations."

Eisenberg testified unequivocally that he would not have invested

- 4 - in SnoOwl had he "known that there was no college app that was

sold to people in Cambridge, who then sold it to Facebook."

The day after meeting with the two investors, the

defendant sent them an email attaching, among other things, "an

updated business plan." The business plan included information on

SnoOwl's expenses — specifically, $6,750 per month for software,

$179 per month for server space, and $8,000 for a legal-fee

obligation. The business plan also represented that "[o]ther costs

associated with running the day-to-day operation of SnoOwl are

negligible," adding a caveat that "[f]uture expenses will include

hiring new talent and contractors, providing livable salaries to

employees, and cloud server space."

Eisenberg and Martinez each agreed to invest $25,000 in

SnoOwl in exchange for a 3.5% equity stake. These details were

confirmed by email and — to aid in formalizing the investments —

the defendant emailed each of them an "investor agreement."

Through the investor agreements, the defendant committed to (among

other things) "not sell[ing], assign[ing], transfer[ring] or

otherwise convey[ing] business assets . . . owned, held by or owed

to the Company . . . except in the ordinary course of business,

without the Investor's consent." The agreement further required

SnoOwl to act responsibly "to protect the integrity of the company

and the investment." Eisenberg signed the agreement, but the

record is tenebrous as to whether Martinez actually signed. What

- 5 - is luminously clear, though, is that each man cut a check for

$25,000 and delivered it to the defendant.

The defendant did not hesitate to spend the investors'

money on personal expenses. He spent thousands of dollars on

(among other things) car payments, casinos, hotel stays,

transportation expenses, clothing, women's shoes, cologne, and

student loans. He also used company funds in service of his

political ambitions.

Although these expenditures were made outside the

ordinary course of the company's business, the defendant never

sought the investors' consent. Eisenberg testified that had he

"known that investment money . . . was going to" things like

"cologne," "$700 shoes for [the defendant's] girlfriend," and

"strip clubs, casinos, and other places of recreation that were

not involved with the company," he would not have invested.

Martinez, too, testified that he would "[a]bsolutely not" have

invested had he been told that the defendant "was going to use

investment money . . . on expensive shoes, cologne, and many other

personal items."

The defendant also convinced other individuals to invest

in SnoOwl. Three such investors testified at trial, sounding many

of the same themes as Eisenberg and Martinez. This testimony was

reinforced by a substantial amount of documentary evidence. Taken

as a whole, the documents showed that, from 2013 through 2015, the

- 6 - defendant solicited investments totaling $358,190. Of this sum,

the defendant spent approximately $18,600 on "[c]lothing, health

care products, jewelry, personal grooming and personal trainers";

$27,023 on "hotel expenses"; $25,121 on "dining expenses"; $31,780

on "transportation related expenses"; and $37,282 on "personal

credit cards, student loans and a vehicle." He also spent

thousands of company dollars on "entertainment expenses" such as

movies, sightseeing, amusement parks, and golf. Few, if any, of

these expenses were generated in the ordinary course of SnoOwl's

business. An Internal Revenue Service (IRS) agent estimated that

the defendant spent $228,654 from SnoOwl's accounts on "personal

expenditures."

B

The second cache of facts relates to the defendant's

tenure as the City's mayor. After winning election in 2015, the

defendant assumed office in January of 2016. As mayor, the

defendant enjoyed many powers — our concern here is primarily with

his role in allowing marijuana vendors to open marijuana shops in

the City.

Some background helps to lend perspective. When

Massachusetts legalized medical marijuana in 2012 and recreational

marijuana in 2016, it gave localities a place in the application

process for prospective entrants into the market. As relevant

here, between July of 2016 and August of 2018, the Commonwealth's

- 7 - laws and regulations required that an applicant obtain a letter of

support or non-opposition (a non-opposition letter) from the

municipality in which the applicant proposed to operate. See,

e.g.,

(B)(3)(f) (2016). In addition,

an applicant needed to enter into a host community agreement with

the municipality, see Mass. Gen. Laws Ann. ch. 94G, § 3 (West

2018);

(1)(a) (2018), which typically

committed the business to paying up to three percent of its gross

sales to the municipality. The Massachusetts Cannabis Control

Commission required both a non-opposition letter and a host

community agreement as preconditions to the issuance of a license

to sell marijuana at retail. See

(1)(a) (2018).

As mayor, the defendant held sole responsibility and

executive authority to issue non-opposition letters and approve

host community agreements. See Fall River, Mass., Charter § C-3-

2. Soon after he assumed office, a number of prospective vendors

approached the City about opening marijuana businesses. We

encapsulate below the experiences of four of those prospective

vendors.

1

In 2016, David Brayton began trying to open a marijuana

business in the City. His initial attempts failed, so he turned

to his friend, Antonio Costa, for help. Costa had a close

- 8 - relationship with the defendant, and he was able to arrange for

Brayton to meet with the defendant. The meeting proved to be

unproductive, as the location that Brayton proposed for his shop

encountered a zoning problem.

After Brayton identified another potential location, he

again reached out to Costa. When the two men met, Costa told

Brayton that the defendant was "looking to get a donation or a

bribe . . . in order to make this work." Brayton inquired as to

the price tag, and Costa replied that it would cost $250,000.

Brayton could not afford to pay that much in a lump sum, so he

proposed an "alternative arrangement" under which he would pay

$100,000 up front and an additional $150,000 when his new

business's "cash flow [turned] positive." Costa said that he would

need "to get back to" Brayton.

Costa then spoke with the defendant, who asked only

whether Brayton was "good for it?" Subsequently, Costa told

Brayton that he had spoken with "Jasiel" and that the arrangement

Brayton had described — $250,000, divided into two installments,

in exchange for a non-opposition letter and host community

agreement — was acceptable.

Acting on this struck bargain, Brayton delivered a

$100,000 check to Costa on July 14, 2016. Brayton's project then

began to pick up speed: he received a non-opposition letter dated

- 9 - July 14. A host community agreement was signed by the defendant

less than two months thereafter.

Trying does not always pay, and Brayton's marijuana

dispensary never turned a profit. Consequently, he never forked

over the remaining $150,000. Even so, the arrangement proved

profitable for both the defendant and Costa: they divvied up the

proceeds of Brayton's check, with the defendant pocketing $80,000

and Costa pocketing $20,000.

2

The next aspiring marijuana vendor was Brian Bairos. In

the 2017-2018 time frame, Bairos decided to expand his Rhode Island

marijuana business into the City. To this end, Bairos met with

the defendant and the defendant's chief of staff, Genoveva Andrade.

After that meeting produced no immediate results, Bairos made the

acquaintance of Craig Willard who, in turn, introduced him to

Costa.

When Bairos met with Costa, the latter boasted that "he

had a good relationship with the mayor, and that he could get

[Bairos] the letters that [he] need[ed] to move forward with [his]

license." Costa also told Bairos that there would be a "cost" of

$250,000, which Bairos regarded as "[b]asically a bribe." Bairos

objected to the amount, and the two men ultimately agreed to a

total of $150,000, to be split into two installments — the first

due "up front" and the second due when Bairos "got the license."

- 10 - Bairos testified that he came to realize that the defendant "would

be getting th[e] money."

In the weeks following the meeting, Bairos and Costa

exchanged a number of text messages. On May 25, 2018, Costa sent

a text saying that the defendant "gave [him] a call and told [him]

it's a done deal so no worries." Bairos took this to mean that

the defendant had "accepted" the terms he had negotiated with

Costa. Costa testified to a similar interpretation of this text.

On June 19, 2018, the defendant had dinner with Bairos

and asked him "[i]s everything good?" Bairos took this to be a

reference to the arrangement he had reached with Costa, and he

assured the defendant that "we were [good]" — meaning that he was

"prepared and had pledged to pay the bribe." The two men met again

ten days later. During this meeting, the defendant asked Bairos

to "donate" $25,000 "to his legal fund." Bairos understood this

to be a request for money "in addition to the bribe [he] had

[already] agreed to pay." Bairos never made the requested

donation.

In due season, Bairos received a non-opposition letter

dated July 2, 2018, signed by the defendant.1 On July 7, Bairos

says that he gave Costa $25,000 in cash as "part of the first

portion of the agreement." Bairos believed that this payment would

1 The record does not disclose when, if ever, Bairos received a host community agreement.

- 11 - be split in some way between Costa and the defendant. Although he

already had the letter, Bairos testified that he made the payment

because he feared that the letter "could be redacted or taken away

at any time."

Although Costa's testimony reflected a slightly

different recollection of the facts — Costa testified that Bairos

forked over between $30,000 and $50,000 — it also lent further

color to the events surrounding the July 7 payment. Costa

recounted that he gave Bairos's cash to another co-conspirator

(Camara) who, in turn, was to pass it along to the defendant.

According to Costa, the defendant refused to "touch it" for fear

that it was "fed money."

On July 16, Costa texted Bairos, saying that "[he has]

been calling [Costa's] phone looking for paper," which Bairos

interpreted to mean that "Mayor Correia" had been calling Costa

looking for "money." And on July 18, Costa texted Bairos,

reiterating that the defendant "wants his end." Two days later,

Bairos gave Costa a combination of cash and marijuana, which Costa

credited as a $42,550 payment toward the bribe.

In September of 2018, Bairos and the defendant met in

Providence. The defendant wanted to confirm that "everything was

still going forward and everything was moving, that everything was

good." He asked Bairos "[i]s the money good? Are we all set?"

Bairos understood the defendant to be referring to "[f]inish[ing]

- 12 - paying off the first portion of the bribe," and he told the

defendant that "there was [sic] a few hiccups here and there.

There was some additional costs that came through, and that it was

just taking a little bit more time, but it would be done." On

March 28, 2019, Bairos made another cash payment to Costa:

$10,000.

As matters turned out, Costa testified that he never

gave any of Bairos's bribe money to the defendant. Nor is there

any evidence that Costa gave the defendant any of the marijuana

that Costa received from Bairos.

3

The third aspiring marijuana vendor was Charles Saliby,

who called city hall at several points during the first half of

2018 in search of a non-opposition letter and host community

agreement. Around the beginning of June, Saliby spoke with

Andrade, who expressed skepticism that the defendant would issue

additional letters. She nonetheless arranged a meeting between

Saliby and the defendant.

The two men met (with Andrade in attendance) on or about

June 21, 2018 at the mayor's office. During this meeting, the

defendant reiterated that he did not have the capacity to issue

additional letters. He raised the possibility, though, of

rescinding a license that was presently inactive.

- 13 - A few days later, the defendant and Andrade visited

Saliby at Saliby's store. In a backroom office, the defendant and

Andrade told Saliby that the defendant was prepared to issue the

coveted letters. When Saliby asked whether there was "anything

[he] can do," the defendant replied that he was "looking for

$250,000." Saliby understood this to be a request for "a bribe."2

After Andrade left, Saliby asked the defendant "why

$250,000?" The defendant responded that the value of the license

would be "a lot more" and that "he was only going to issue six of

them." The defendant then added that he wanted the money to be

paid to his legal defense fund. Saliby balked at the price, and

the two men haggled, settling upon a figure of $125,000 — a figure

agreed to after the defendant said that he could not "go any

lower." When asked at trial what he thought would have happened

had he refused to pay the bribe, Saliby testified that he believed

the defendant would not have issued the letter and — in the bargain

— would have retaliated against his existing business.

Once the men had agreed on the amount of the bribe,

Saliby escorted the defendant out of his office. On the way out,

they encountered Andrade, who inquired whether "everything" was

2 As context for this understanding, it is important to note that Saliby had learned from Bairos — days earlier — that the defendant was seeking a $250,000 bribe from him.

- 14 - "okay." Saliby replied in the affirmative. Andrade assured him

that "[y]ou're family now."

Saliby later learned of another "annual legal fee" — a

$50,000 "community impact fee" — that he would need to pay to

operate his proposed marijuana business. Upon learning of this

fee, Saliby again met with the defendant and Andrade (this time in

Andrade's city hall office). Saliby voiced his objection to the

$50,000 community impact fee. The defendant replied that he "would

be able to drop [that fee] down to $25,000 a year" on the condition

that Saliby "add another $25,000 on top of" the previously agreed

$125,000. Saliby consented to this arrangement, and the defendant

agreed that Saliby could pay the $150,000 bribe in two equal

installments. The first installment was to be paid when Saliby

received the non-opposition letter and host community agreement

and the second when the Commonwealth issued a provisional license.

Several days after the city hall meeting, the defendant

called Saliby about coming to collect the first installment. As

arranged, the defendant drove to Saliby's store; Saliby got into

the defendant's car; and Saliby gave the defendant $75,000 in cash.

In exchange, the defendant handed Saliby a signed non-opposition

letter and host community agreement.

4

The fourth aspiring marijuana vendor was Matthew

Pichette. In 2018, Pichette and his partners decided that they

- 15 - wanted to open a marijuana business in the City. On July 11, 2018,

Pichette contacted David Hebert, a man who had a close relationship

with the defendant. Hebert explained the process for obtaining

the necessary documents from the City. He added that he had spoken

with the defendant and that — although the City was "maxed out" —

the defendant might still be able to get Pichette what he needed.

Hebert told Pichette that he should put together a proposal and

that — when the proposal was ready — Hebert would set up a meeting

between Pichette and the defendant.

Two weeks later, Pichette notified Hebert that the

proposal was ready. Hebert arranged for Pichette to meet with the

defendant the following day. Hebert conferred with Pichette in

advance of that meeting and told him that completing the process

was "going to come with a cost" — a $25,000 payment to the

defendant's legal defense fund. Although Pichette "[didn't] like

this idea," he agreed to make the payment, believing that "there

was no other way to get" the non-opposition letter and host

community agreement.

Later that day, Pichette and his partners met with the

defendant at city hall and presented their proposal. Afterwards,

Pichette had a private conversation with the defendant during which

the defendant confirmed that Pichette had "talked with [Hebert]

and we're good." Pichette rejoined that he had spoken to Hebert

and "we're good." Pichette took this exchange to be a confirmation

- 16 - that the defendant knew that Pichette had dealt with Hebert and

had agreed to pay the $25,000 bribe. Pichette came away believing

"[t]hat [the defendant] was dirty."

The next day, Pichette met with Hebert and discussed how

the $25,000 payment was to be made. Hebert suggested funneling

the money through a $25,000 campaign contribution. To skirt

campaign finance limits, Hebert further suggested that Pichette

collect $1,000 checks from twenty-five friends and family members.

Before the discussion ended, Hebert agreed that the $25,000 amount

did not have to be paid all at once but, rather, could be split

into two installments.

On August 20, 2018, Hebert advised Pichette that he was

"getting [Pichette's] letters" that day. The two men then agreed

that the bribe would be paid through Pichette's purchase of $25,000

in tickets to the defendant's fundraising events — $12,500 worth

of tickets for a summer event and the rest for a Christmas party.

Pichette collected $11,500 in checks from family members and

colleagues (most of whom Pichette reimbursed) and used those funds

to purchase tickets for the first event. The checks were dated

either August 29 or September 5; they were made out to "Friends of

Mayor Jasiel Correia, II" or some variation thereof. On August

21, Hebert delivered the non-opposition letter and host community

agreement (both of which were dated August 17).

- 17 - C

In the midst of these maneuverings, the government

convened a grand jury to investigate the defendant. On October 4,

2018, the grand jury returned an indictment charging the defendant

with wire fraud and tax fraud in connection with the SnoOwl app.

Almost a year later, the grand jury returned a first superseding

indictment that enlarged the charges against the defendant to

include Hobbs Act extortion, conspiracy to commit Hobbs Act

extortion, and bribery. Most of the new charges related to his

dealings, as mayor, with would-be marijuana vendors. The remainder

alleged variously that the defendant, as mayor, hired and retained

his chief of staff on the condition that she kick back half of her

salary to him and that he extorted and conspired to extort a

businessman in exchange for issuing certain permits. In a second

superseding indictment, the grand jury added charges against

Andrade. All told, the grand jury — as evidenced by the second

superseding indictment — charged the defendant with nine counts of

wire fraud, see

; four counts of tax fraud, see

(1); five counts of conspiracy to commit extortion,

see

(a); five counts of extortion, see id.; and

one count of bribery, see

(a)(1)(B).

Andrade entered a guilty plea, and the defendant

proceeded to trial alone. The government and the defendant agreed

that all the charges should be tried together. Following an

- 18 - eighteen-day trial, the jury convicted the defendant of all nine

counts of wire fraud, all four counts of tax fraud, four counts of

extortion conspiracy, and four counts of extortion. The jury

acquitted the defendant on one count of extortion conspiracy, one

count of extortion, and the bribery count.

The defendant moved for judgment of acquittal and/or a

new trial on all of the counts of conviction. The district court

consolidated the hearing on these motions with the sentencing

hearing. The court acquitted the defendant on six of the nine

wire-fraud counts after determining that a stipulation the parties

had reached did not provide sufficient evidence from which the

jury could find beyond a reasonable doubt that the "interstate

wire" element of the offense had been satisfied. The court

likewise acquitted the defendant on all four of the tax-fraud

counts. In all other respects, the court denied the defendant's

post-trial motions. It then proceeded to sentence the defendant

to a seventy-two-month concurrent term of immurement on each count

of conviction. This timely appeal followed.

II

The defendant challenges his convictions on multiple

fronts. First, he argues that the evidence was insufficient to

sustain several of the counts of conviction. Second, he argues

that the impact of spillover prejudice necessitates a new trial.

Third, he argues that we should order a new trial due to

- 19 - instructional error. Finally, he argues that we should order a

new trial due to prosecutorial misconduct, that is, improper

closing argument. We address these arguments sequentially.

III

We start with the defendant's claim that the evidence

was insufficient to permit the jury to convict on the wire-fraud

counts and some of the Hobbs Act counts. We subdivide our

analysis, separating the wire-fraud convictions from the Hobbs Act

convictions.

As to both classes of claims, our standard of review is

familiar. We review an order denying a motion for judgment of

acquittal de novo. See United States v. Simon,

(1st Cir. 2021), cert. denied sub nom. Kapoor v. United States,

(2022), and cert. denied sub nom. Lee v. United

States,

(2022); United States v. George,

(1st Cir. 2016). Where, as here, the defendant challenges

"the sufficiency of the evidence, all of the proof 'must be perused

from the government's perspective.'" United States v. Kilmartin,

(1st Cir. 2019) (quoting United States v. Gomez,

(1st Cir. 2001)). "This lens demands that 'we

scrutinize the evidence in the light most compatible with the

verdict, resolve all credibility disputes in the verdict's favor,

and then reach a judgment about whether a rational jury could find

guilt beyond a reasonable doubt.'" Simon,

(quoting

- 20 - United States v. Olbres,

(1st Cir. 1995)); see

George,

.

In conducting this tamisage, "we must honor the jury's

evaluative choice among plausible, albeit competing, inferences."

United States v. Rodríguez-Vélez,

(1st Cir. 2010).

We "need not be convinced that the verdict is correct" but, rather,

"need only be satisfied that the verdict is supported by the

record." Kilmartin,

. Thus, "[t]he verdict must

stand unless the evidence is so scant that a rational factfinder

could not conclude that the government proved all the essential

elements of the charged crime beyond a reasonable doubt."

Rodríguez-Vélez,

(emphasis in original).

A

We turn first to the defendant's claim that there was

insufficient evidence to support the three wire-fraud convictions

that the district court allowed to stand. The elements of wire

fraud are "(1) a scheme or artifice to defraud using false or

fraudulent pretenses; (2) the defendant's knowing and willing

participation in the scheme or artifice with the intent to defraud;

and (3) the use of the interstate wires in furtherance of the

scheme." United States v. Arif,

(1st Cir. 2018)

(quoting United States v. Appolon,

(1st Cir.

2013)). The term "false or fraudulent pretenses" encompasses any

false statements or assertions that were either known to be untrue

- 21 - when made or that were made with reckless indifference to their

truth so long as those statements were made with an intent to

defraud. See United States v. Blastos,

(1st Cir.

2001). The term extends to "actual, direct false statements as

well as half-truths and the knowing concealment of facts."

. But in all events, "[t]he false or fraudulent

representation[s] [at issue] must be material." Appolon,

.

Here, the government offered evidence to show that the

defendant — using two different types of materially false

representations — constructed a scheme to defraud and induced

Eisenberg and Martinez to invest $25,000 apiece in SnoOwl. The

first type of fraudulent misrepresentation related to the

defendant's track record in developing FindIt. Specifically, a

reasonable jury could have found from the proffered evidence that

the defendant falsely represented his success in developing and/or

selling FindIt. The second type of fraudulent misrepresentation

related to the defendant's plans for the use of investor money.

Specifically, a reasonable jury could have found from the proffered

evidence that the defendant falsely represented that investor

money would be used only to develop the SnoOwl app. Relatedly, a

reasonable jury could have found that the defendant concealed the

important fact that investor money for SnoOwl would be used for

his personal benefit.

- 22 - The defendant attempts to sidestep the force of this

evidence. Although he does not gainsay his interstate use of wire

transmissions in the course of soliciting investments from

Eisenberg and Martinez, he digs in his heels as to the other

elements of the wire-fraud convictions. He argues that he did not

use false or fraudulent pretenses because his representations

were, variously, puffery, true, or never uttered. And even if the

statements were made and were false, the defendant says, they were

not material.

This rebuttal is all foam and no beer. To begin, the

defendant's claim that his statements to Eisenberg and Martinez

regarding FindIt's sale to a group in Cambridge were mere puffery

is baseless. While the line between puffery and fraud is sometimes

blurred, the law distinguishes "between misrepresentations that go

to the essence of a bargain and those [misrepresentations] that

are merely collateral." Arif,

. It is clear beyond

hope of contradiction that the defendant's misrepresentations

about FindIt were not merely collateral. After all, particularized

factual representations that can definitely be refuted — as opposed

to statements of mere opinions — can constitute fraud. See United

States v. Martinelli,

(11th Cir. 2006); United

States v. Ranney,

(1st Cir. 2002). The defendant's

statements regarding FindIt's sale fall squarely into this bucket.

- 23 - We need not tarry. From the proffered evidence, the

jury reasonably could have inferred that the defendant's story

regarding FindIt's sale was a fable and that the sale never

occurred. Yet, the defendant made a stream of contrary factual

representations to Eisenberg and Martinez. In context, those

representations could not reasonably be deemed to constitute

"exaggerated opinions or hyped-up sales pitches." Martinelli,

. Rather, they were factual statements that were

verifiably refutable.

The cases cited by the defendant do not advance his

cause. A prime example is United States v. Rodriguez,

(11th Cir. 2013). There, the Eleventh Circuit rejected an

argument similar to that made by the defendant. See

.

The court held that the accused's statements to investors

"surpassed 'sellers' talk' or 'mere puffery'" when, among other

things, the accused made "specific" representations to customers

that "he knew . . . were completely unfounded."

So it is

here. The defendant's statements regarding FindIt's sale were

lies, not puffery.

What is more, the defendant's lies about FindIt were

material. "[T]o establish materiality, 'the government need not

prove that the decisionmaker actually relied on the falsehood.'"

United States v. Stepanets,

(1st Cir. 2021)

(internal quotation marks omitted) (quoting United States v.

- 24 - Cadden,

(1st Cir. 2020)), cert. denied,

(2021). Instead, "the government need only show that the false

statement 'had a natural tendency to influence, or was capable of

influencing' its target's decision." Cadden,

(internal alteration and quotation marks omitted) (quoting United

States v. Prieto,

(1st Cir. 2016)); see Appolon,

. The false statements about FindIt easily clear

this low bar: they had a natural tendency to influence the

investors' decisions as to whether to invest in SnoOwl. Indeed,

the jury reasonably could have concluded that the statements were

uttered for this very purpose.

The defendant demurs. He contends that Eisenberg and

Martinez invested in SnoOwl because they were convinced by his

overall business plan — not because he claimed to have had

previously developed and sold FindIt. But Eisenberg specifically

testified that he would not have invested in SnoOwl had he "known

that there was no college app that was sold to people in Cambridge,

who then sold it to Facebook." And more generally, past success

is often seen as a herald of future success. Thus, we think that

a rational jury could infer that a statement regarding a

prospective app-developer's past success in creating and selling

a similar app would have a natural tendency to influence a

prospective investor's decision to invest in a new endeavor. The

- 25 - defendant's false statements regarding FindIt's sale were,

therefore, material.

This leaves the defendant's claim that there was

insufficient evidence for a jury to find that he falsely

represented his plans for the use of investors' money. In support,

he advances two arguments. First, he argues that he truthfully

told investors that he would not draw a salary for his work on

SnoOwl. Second, he argues that he did not tell Eisenberg or

Martinez that he would use "all" of the investor money to develop

SnoOwl. Neither argument gains the defendant any traction.

The defendant's "salary" argument is a red herring.

Whether the defendant represented that he would not take a salary

is entirely beside the point. The government's theory of fraud

encompassed two broad categories of misrepresentation — and

neither category included a claim that the defendant told investors

that he intended not to draw a salary.

The defendant's second claim of error is swallowed up by

the district court's jury instructions. The court instructed the

jury that the defendant could be found guilty if he falsely

represented "that investor money for the SnoOwl project would be

used to develop the SnoOwl app" or if he "omitt[ed] to state and

conceal[ed] that investor money for the SnoOwl project would be

used for [the defendant's] personal benefit and not for the

development of the SnoOwl app." Under these instructions, the

- 26 - jury did not need to find that the defendant stated an intent to

put every cent of investor funds toward SnoOwl's development.

With that clarification, we think that the evidence was

sufficient to support the jury's verdict. Both Eisenberg and

Martinez testified that the defendant never told them that he

intended to pay for personal expenses — let alone extravagant

personal expenses — using company funds. And in the investor

agreements, the defendant warranted that he would not "transfer or

otherwise convey" SnoOwl's assets except in the ordinary course of

business. Those assets included the funds invested by Eisenberg

and Martinez.

The jury reasonably could have found that this assurance

was honored only in the breach. Following receipt of the

investment, the defendant proceeded to spend thousands of SnoOwl's

dollars on personal expenses, ranging from casinos to cologne to

student loans. No more was exigible to ground the jury's finding

that the defendant had made materially false representations in

this respect.

That ends this aspect of the matter. We conclude that

the evidence was sufficient for the jury to find that the defendant

had committed the various acts of wire fraud of which he stands

convicted.

- 27 - B

We turn next to the defendant's challenges to his

convictions for conspiring to commit extortion in violation of the

Hobbs Act. (We separately address, see infra Part III(C), his

challenges to the underlying extortion convictions.) The

defendant argues that the evidence was insufficient to show that

he conspired with two go-betweens — Hebert and Andrade — to extort

Pichette and Saliby, respectively. Both aspects of this argument

lack force.

The Hobbs Act makes it a felony to "obstruct[], delay[],

or affect[] commerce or the movement of any article or commodity

in commerce, by robbery or extortion" or to attempt or conspire to

do so. Tkhilaishvili,

(quoting

(a)); see United States v. Goodoak,

(1st

Cir. 1988). Extortion, in turn, "is defined under the Hobbs Act

as 'the obtaining of property from another, with his consent,

induced by wrongful use of actual or threatened force, violence,

or fear, or under color of official right.'" Tkhilaishvili,

(quoting

(b)(2)). This case focuses on

the "official right" strain of extortion.

Extortion under color of official right is the "rough

equivalent of what we would now describe as 'taking a bribe.'"

Ocasio v. United States,

(2016) (quoting Evans

v. United States,

(1992)); see United States v.

- 28 - Buffis,

, 235 n.5 (1st Cir. 2017). To prove this type

of extortion, the government must "show that a public official has

obtained a payment to which he was not entitled, knowing that the

payment was made in return for official acts." Ocasio,

(quoting Evans,

); see United States v.

Turner,

(1st Cir. 2012). "[T]he offense is

completed at the time when the public official receives a payment

in return for his agreement to perform specific official acts;

fulfillment of the quid pro quo is not an element of the offense."

Turner,

(emphasis in original) (quoting Evans,

).

The jury supportably could have found that the

government's evidence showed that the prospective marijuana

vendors (for purposes of this discussion, Pichette and Saliby)

agreed to make payments to the defendant in exchange for official

actions (non-opposition letters and/or host community agreements).

The defendant nonetheless contends that there was insufficient

evidence to support his convictions for conspiracy to commit Hobbs

Act extortion. See, e.g., United States v. Echeverri,

(1st Cir. 1993) (noting that — to prove conspiracy —

government must "show, inter alia, that an agreement or working

relationship existed, that it had an unlawful purpose, and that

the defendant was a voluntary participant in it" (emphasis in

original)).

- 29 - 1

One branch of the defendant's argument centers on the

extortion of Pichette (who agreed to pay $25,000 to the defendant's

campaign fund and actually delivered $11,500 in partial

fulfillment of that agreement). The jury convicted the defendant

both of extorting Pichette directly and of conspiring to do so.

As relevant here, the defendant insists that the evidence was

insufficient to prove a conspiracy.

At trial, the government's theory of the case was that

the defendant conspired with Hebert to extort Pichette. In this

court, the defendant challenges the premise on which this theory

rests: to the extent that Hebert extorted Pichette, the defendant

suggests, he acted alone and out of self-interest, fueled by a

desire to enrich himself and to curry favor with the defendant.

Contrary to the defendant's importunings, there was

adequate evidence from which the jury reasonably could have

concluded that the defendant and Hebert conspired to extort

Pichette. Among other things, the jury heard testimony that, hours

prior to Pichette's meeting with the defendant, Hebert (who had

arranged the meeting) advised Pichette that obtaining the non-

opposition letter and host community agreement from the defendant

was going to "come with a [$25,000] cost." And during the meeting

itself, the defendant confirmed with Pichette that Pichette had

"talked to [Hebert]" and that they were "good." Juries are

- 30 - permitted to draw reasonable inferences from the evidence, and the

jury in this case fairly could have inferred from this evidence

both that the defendant was aware that Hebert had informed Pichette

of the demanded bribe and that Pichette had agreed to pay it. And

after the meeting, Hebert helped Pichette work out how best to pay

the bribe and agreed that it could be paid in installments. This

evidence and the reasonable inferences therefrom painted a picture

of a conspiracy with Pichette as the bribe-payer, Hebert as the

go-between, and the defendant as the bribe-taker. On these facts,

the jury was free to accept or reject that picture.

The defendant points elsewhere in the record to argue

that the "equal or greater" inference is that Hebert was acting

alone and solely for personal gain. Specifically, the defendant

points to the fact that, while brokering the arrangement, Hebert

unsuccessfully sought $100,000 in consulting fees from Pichette

and arranged for tens of thousands of dollars in mortgage

forgiveness on a loan that he owed to Pichette's brother. But

even if we assume that these facts support a plausible inference

that Hebert was acting to his own behoof — a matter on which we

take no view — that assumed fact does not undercut the inference

that Hebert also conspired with the defendant to extort a bribe

from Pichette. See Simon,

; Rodríguez-Vélez,

; United States v. Arias,

(1st Cir. 2001).

Wrongdoers sometimes may have mixed motives; and where, as here,

- 31 - the evidence is sufficient to support more than one motive, it is

for the jury — not for an appellate court — to separate wheat from

chaff. See United States v. Woodward,

(1st

Cir. 1998) (noting that "jury was free to 'choose among the

reasonable alternatives posed by the evidence,' and we will not

second-guess the jury's conclusion in this regard" (internal

citation omitted) (quoting United States v. Sawyer,

(1st Cir. 1996))).

The assumed fact — that the evidence may have been

sufficient for the jury to have found that Hebert was acting, in

part, out of self-interest — does not give rise to an equal or

nearly equal inference that Hebert and the defendant were acting

independently. See Rodríguez-Vélez,

(rejecting

defendant's argument that "the evidence, even if credited, shows

him to be a freelance entrepreneur rather than a coconspirator").

Notwithstanding any benefits that Hebert may have garnered for

himself, the jury reasonably could have found that he persuaded

Pichette to agree to donate $25,000 to the defendant's campaign

fund in exchange for the desired documents. And the $11,500 in

checks that Pichette subsequently donated were made out to "Friends

of Jasiel Correia, II," not "David Hebert."

The defendant has a fallback position. He argues that

the sequence of events demonstrates that, from the defendant's

perspective, there was no quid pro quo. At its core, this argument

- 32 - rests on the fact that Pichette received the documents before he

made the campaign contributions.

This is smoke and mirrors. In the analogous context of

illegal bribery under

, we have observed that "the

timing of the payment may not provide a conclusive answer as to

whether [a] payment is a bribe or a gratuity, [but] the timing of

the agreement to make or receive a payment may." United States v.

Fernandez,

(1st Cir. 2013) (emphases in original);

see United States v. Jennings,

(4th Cir. 1998)

(explaining that "the timing of the payment in relation to the

official act for which it is made is (in theory) irrelevant");

United States v. Griffin,

(8th Cir. 1998)

(explaining that the distinguishing characteristic of a bribe is

the agreement to exchange something of value for official action),

as amended (Sept. 8, 1998). To be sure, "one cannot agree to

perform an act in exchange for payment when that act has already

been performed." Fernandez,

. But timing is

critical: as long as the agreement to exchange a thing of value

for an official act is made before the act is performed, the

requisite quid pro quo is established. See Griffin,

.

Those principles apply here. To convict on this charge,

the jury had to find that the defendant obtained a payment to which

he was not entitled in exchange for his agreement to supply the

- 33 - documents Pichette needed to open a marijuana business. See

Turner,

. The jury was not required to find that

the payment was made before the official act occurred. See Evans,

.

From the evidence introduced at trial, the jury

reasonably could have found that Pichette and the defendant agreed

that Pichette would pay a bribe in exchange for the documents

before the defendant signed them. It is thus of no moment that

the defendant proceeded to sign the documents in advance of

Pichette's payment of the bribe. By effecting the payment,

Pichette was simply completing his end of the bargain. When asked

why he followed through on contributing to the defendant's campaign

even after the documents were a "done deal," Pichette said

"[b]ecause that was the deal we made." We hold, therefore, that

it was well within the jury's province both to infer the existence

of an explicit quid pro quo between Pichette and the defendant,

see Griffin,

; see also McCormick v. United States,

(1991) (holding that where payments are

structured as campaign contributions, Hobbs Act liability lies

when "payments are made in return for an explicit promise or

undertaking by the official to perform or not to perform an

official act"), and to infer that Hebert conspired with the

defendant to arrange that quid pro quo.

- 34 - 2

This brings us to the defendant's relationship with

Saliby. Although he refrains from challenging the underlying

extortion conviction, he takes aim at whether the government proved

a conspiracy to extort. Upon close perscrutation, we reject the

claim that there was insufficient evidence for the jury to find

that Andrade conspired with the defendant to extort Saliby.

This claim rests on the notion that Andrade was not a

coconspirator. Although Andrade was present during certain

meetings between the defendant and Saliby, the defendant posits

that she was not actively involved in the scheme. In support, the

defendant cites a number of cases holding that mere presence at

the scene of a crime and close association with those involved are

insufficient to show participation in a conspiracy. See, e.g.,

United States v. Morillo,

(1st Cir. 1998); United

States v. Andujar,

(1st Cir. 1995); United States

v. Ocampo,

(1st Cir. 1992).

That is true as far as it goes — but it does not take

the defendant very far. Presence and close association, though

insufficient without more, are nonetheless "relevant factors for

the jury" to consider. Andujar,

. And as we have

said, a "defendant's presence during the commission of a crime can

establish guilt where the surrounding circumstances imply

participation." United States v. Rogers,

(1st

- 35 - Cir. 1997); see Echeverri,

(distinguishing between

"mere presence" and "culpable presence"). In the last analysis,

the "question is always whether the circumstances of the particular

case add up to showing both knowledge and voluntary participation

in a conspiracy beyond a reasonable doubt." Morillo,

(emphasis in original).

We think that the circumstances here are sufficient to

permit the jury to have found both knowledge and voluntary

participation on Andrade's part. Consequently, the evidence was

sufficient to show that Andrade conspired with the defendant to

extort Saliby. For a start, "it reasonably can be assumed that

'criminals rarely welcome innocent persons as witnesses to serious

crimes and rarely seek to perpetrate felonies before larger-than-

necessary audiences.'" United States v. Patch,

(1st Cir. 2021) (quoting United States v. Ortiz,

(1st Cir. 1992)); see Morillo,

. And in other

contexts in which nefarious activity is afoot, we have said that

it is much less likely that a person is "an innocent

bystander . . . where [that] person is brought to a neutral site

by a [criminal] preliminary to the actual consummation of [the

crime]." Ortiz,

. These observations apply four-

square to Andrade. She accompanied the defendant to Saliby's store

and was present when the defendant solicited Saliby for a $250,000

bribe. She was also present for the duration of a later meeting

- 36 - at which the defendant and Saliby negotiated an increased bribe in

exchange for the lowering of an annual municipal fee. Seen in

this light, this was not a case in which Andrade simply arranged

meetings but lacked knowledge of what transpired at those meetings.

The defendant dismisses this logic, relying on cases

such as Andujar and Ocampo. But the defendant's reliance is

misplaced. In Andujar, we overturned the defendant's conspiracy

conviction largely because the defendant was neither present at

any of the "critical . . . meetings" nor "aware" that the subject

matter of the meetings concerned a prospective crime.

. That pattern is repeated in Ocampo, in which we reversed the

defendant's conviction after determining that "there was no

evidence that [the defendant] participated in any meetings" with

her alleged coconspirators, even though it might have been a "fair

inference" that she "knew what was going on."

.

Unlike in Andujar and Ocampo, the evidence here suffices

to link Andrade to the scheme. Not only was she present at two

pivotal meetings at which bribes were negotiated, but she also

asked Saliby if "everything [was] okay" after he and the defendant

had wrapped up their negotiation. When Saliby responded in the

affirmative, Andrade assured him that "[y]ou're family now."

Jurors are expected to use their common sense, and a common-sense

interpretation of Andrade's remark, in the context of what had

- 37 - gone before, was to welcome Saliby into the "family" of those who

were doing under-the-table business with the defendant.

The defendant, in effect, entreats us to examine each

piece of evidence in isolation — but the jury was entitled to draw

reasonable inferences from the evidence as a whole. See Olbres,

. Taking into account Andrade's presence at the two

meetings, the surrounding circumstances, her close relationship

with the defendant, and her contemporaneous statement to Saliby,

the jury reasonably could have inferred both her knowledge of and

her culpable participation in the bribery scheme.

3

We summarize succinctly. The record, read favorably to

the verdict, adequately supports both the jury's finding that the

defendant conspired with Hebert to extort Pichette and its finding

that the defendant conspired with Andrade to extort Saliby.3

C

The defendant's final pair of challenges to the

sufficiency of the evidence implicates two of his four extortion

3 Given our validation of these verdicts on the grounds stated, we need not reach the government's alternative argument that the verdicts may be upheld because the evidence suffices to show that the defendant conspired with the marijuana vendors themselves. Consequently, we take no view of the defendant's assertion that, as a matter of law, he could not be found guilty of conspiring with a marijuana vendor to extort that vendor himself.

- 38 - convictions: those involving Pichette and Bairos. We consider

these challenges separately.

1

With respect to Pichette, the defendant argues that the

evidence did not show that he himself demanded the payment of a

bribe. He also argues that — because he did not receive a personal

benefit from Pichette — the evidence was insufficient to show

extortion. Neither argument moves the needle.

The defendant's argument that the evidence was

insufficient to show that he extorted Pichette relies on theories

that we already have rejected. See supra Part III(B)(1). As

before, he argues that the evidence showed only that Hebert "acted

independently and for his own personal benefit." But the jury

heard evidence that, in a meeting at city hall, the defendant had

a side conversation with Pichette during which he confirmed that

Hebert had told Pichette about the required bribe and that Pichette

had agreed to pay it. Based on that conversation and the fact

that Hebert had discussed the bribe with Pichette earlier that

day, the jury rationally could have concluded — as it did — that

the defendant himself was extorting the bribe.

The defendant does present one new wrinkle. He says

that — in order to find him guilty of "official right" extortion

— the jury needed to find that he "personally receive[d] payments"

from the victims of his extortion. In other words, he argues that

- 39 - he cannot be found guilty under the Hobbs Act of extorting Pichette

if the benefit of his illicit acts accrued solely to some other

person or people. And because the bribe paid by Pichette was not

paid directly to the defendant, his thesis runs, he could not

lawfully have been found guilty of extorting Pichette.

We can swiftly dispose of this argument. Even if the

defendant was right that he needed to obtain a personal benefit to

be guilty of "official right" extortion, he in fact received such

a benefit. Pichette's donation of $11,500 to the defendant's

campaign fund surely would qualify under that rubric. And as we

already have determined, see supra Part III(B)(1), the jury

reasonably could have found that Pichette made this contribution

in exchange for the defendant's explicit undertaking to approve a

non-opposition letter and host community agreement on Pichette's

behalf. That meant, in essence, that Pichette received a specific

quid pro quo in return for his political contribution. No more

was exigible. See Turner,

n.4; United States v.

Cruzado-Laureano,

(1st Cir. 2005).

2

With respect to Bairos, the defendant reiterates his

claim that — in order to find him guilty of "official right"

extortion — the jury would have had to find that he personally

received something of value from Bairos. This argument has a

foothold in the record because the alleged middleman — Costa —

- 40 - testified that he never turned over to the defendant the money and

drugs that he received from Bairos.

We nonetheless reject the premise on which this argument

rests. The Hobbs Act defines extortion in relevant part as "the

obtaining of property from another, with his consent, under color

of official right." Turner,

(internal alteration

omitted) (quoting

(b)(2)). In United States v.

Brissette,

(1st Cir. 2019), we held that

the statute's "obtaining of property" element is satisfied as long

as the defendant "brings about th[e] transfer [of another's

property] to a third party." In the process, we refused to credit

the claim that "the defendant[] must also 'enjoy a personal benefit

from' th[e] directed transfer [of another's property] in order for

the 'obtaining' element to be satisfied."

(internal

alteration omitted); see Tkhilaishvili,

(holding

that "the government was not required to show that the defendants

stood to benefit personally from the extortionate transfer of

[victim's] property to a third party"). And with respect to the

Hobbs Act's "official right" element, we noted that the Supreme

Court has never held "that the 'obtaining of property' element

requires proof that the defendant received a personal benefit

separate and apart from having 'brought about a transfer of

property to another.'" Brissette,

(internal

- 41 - alterations omitted) (quoting Scheidler v. Nat'l Org. for Women,

Inc.,

, 408 n.13 (2003)).

Recognizing the force of this precedent, the defendant

tries an end run. He directs our attention to the term "official

right" and emphasizes that the Supreme Court has held that the

"official right" strain of Hobbs Act extortion envisions proof of

either "the sale of public favors for private gain," Wilkie v.

Robbins,

(2007), or a quid pro quo, see Evans,

; McCormick,

; see also Turner,

(collecting cases). Building on this foundation,

the defendant suggests that the quid pro quo requirement cannot be

satisfied unless the public official charged with "official right"

extortion personally benefited from the extortionate scheme. In

the defendant's words, the crime "requires that the official

personally receive an unlawful payment for an official act."

We believe that the defendant takes too crabbed a view

of "official right" extortion. To satisfy the quid pro quo

requirement, "the Government need only show that a public official

has obtained a payment to which he was not entitled, knowing that

the payment was made in return for official acts." Evans,

. Justice Kennedy elaborated that the requirement of

a quid pro quo means only:

that without pretense of any entitlement to the payment, a public official violates § 1951 if he intends the payor to believe that absent

- 42 - payment the official is likely to abuse his office and his trust to the detriment and injury of the prospective payor or to give the prospective payor less favorable treatment if the quid pro quo is not satisfied.

Id. at 274 (Kennedy, J., concurring) (emphasis in original).

Neither element of this definition limits the quid pro quo

requirement to situations in which a public official personally

benefits from the corrupt payment. This makes good sense,

especially when one considers that the Court has long held that

"extortion as defined in the [Hobbs Act] in no way depends upon

having a direct benefit conferred on the person who obtains the

property." United States v. Green,

(1956).

Nor are we blazing a new trail in holding — as we do —

that "official right" extortion does not require that the

extortionist receive a direct benefit. Other courts that have

considered the question have reached the same conclusion. See,

e.g., United States v. Renzi,

(9th Cir. 2014);

United States v. Hairston,

(4th Cir. 1995); United

States v. Haimowitz,

(11th Cir. 1984); United

States v. Margiotta,

(2d Cir. 1982) overruled on

other grounds by McNally v. United States,

(1987).

The two Supreme Court cases on which the defendant pins

his hopes do not suggest a different result. See Evans,

; McCormick,

. In each of those cases, the Court

"simply had no reason to address" whether a public official can be

- 43 - convicted of "official right" extortion when he does not "receive[]

a personal benefit separate and apart from having 'brought about

a transfer of property to another.'" Brissette,

-

80 (internal alterations omitted) (quoting Scheidler,

n.13).

By the same token, Wilkie v. Robbins,

, does

not spring to the defendant's rescue. There, the Court clarified

that "official right" extortion includes "the sale of public favors

for private gain," but not "efforts of Government employees to get

property for the exclusive benefit of the Government."

. That is a far cry from saying that the public official

must personally receive an unlawful payment in order to be guilty

of extortion.

To say more on this point would be supererogatory.4 We

conclude that there was sufficient evidence from which a reasonable

jury could find that the defendant extorted Bairos. The jury heard

evidence that — over the course of several months in 2018 and 2019

— Bairos paid Costa $77,550 through a combination of cash and in-

4 We do not address the defendant's argument (which by his own admission he raises solely for preservation purposes) that Evans was wrongly decided. Cf. Agostini v. Felton,

(1997) ("If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions." (quoting Rodriguez de Quijas v. Shearson/Am. Exp., Inc.,

(1989))).

- 44 - kind payments. It also heard evidence sufficient to ground a

conclusion that Costa — in receiving the bribes — was acting in

concert with the defendant. That evidence, if credited by the

jury, was sufficient to satisfy the Hobbs Act's "obtaining of

property" element. See Brissette,

.

Although Costa testified that he kept all the money for

himself, the jury could infer that both Bairos and the defendant

believed that the payments were made in exchange for the

defendant's issuance of a non-opposition letter and host community

agreement on Bairos's behalf. Both text-message evidence and

Costa's testimony supported the inference that the defendant had

agreed to receive money in exchange for the letters. To cinch the

matter, Bairos testified that the defendant had asked him about

the status of the payments on several occasions.

All in all, the evidence was sufficient to furnish a

foundation for the extortion convictions involving the defendant's

interactions with Pichette and Bairos.

IV

The defendant next argues that evidence admitted with

respect to the charges of which he was acquitted unfairly tainted

the jury's findings against him on the convictions that remain.

Specifically, he argues that he was prejudiced by "evidentiary

spillover" resulting from the "transference of guilt" from the ten

- 45 - counts that the district court dismissed in a post-trial ruling.5

United States v. Wihbey,

(1st Cir. 1996) (quoting

United States v. Sutherland,

(1st Cir. 1991)).

Relatedly, the defendant argues that the government introduced

themes in its evidentiary presentation undergirding the dismissed

charges (such as that he "was 'the type of person' who would do

anything to enrich himself") that unfairly reinforced the

remaining counts of conviction. Finally, he argues that seemingly

credible witness testimony and documentary evidence introduced in

connection with the dismissed counts "lent a false sense of

corroboration to the corruption case."

The defendant first raised the issue of prejudicial

spillover in his post-trial motion for a new trial. The district

court rejected the defendant's plaint. The court took pains to

note that the jury had been "very careful" and had reached a

"discriminating verdict."

"We review the district court's denial of a new trial

based on allegations of prejudicial spillover for abuse of

discretion." Simon,

. Prejudicial spillover "occurs

when the evidence admitted to prove a charge as to which the

defendant was acquitted 'was so extensive, inflammatory, and

prejudicial that it necessarily spilled over into the jury's

5 The government does not appeal this ruling, and we do not address its merits.

- 46 - consideration of his guilt on other charges.'"

(internal

alteration omitted) (quoting United States v. Mubayyid,

(1st Cir. 2011)). "To determine whether an unacceptable

threat of prejudicial spillover materialized, we must evaluate

whether the record evinces 'a serious risk that the joinder of

offenses compromised a specific trial right or prevented the jury

from making a reliable judgment about guilt or innocence.'"

(internal alterations and quotation marks omitted) (quoting

Mubayyid,

). "The devoir of persuasion rests with

the defendant to show 'prejudice so pervasive that a miscarriage

of justice looms.'"

at 43-44 (quoting United States v.

Trainor,

(1st Cir. 2007)).

Here, we discern no abuse of discretion in the district

court's determination that the threat of prejudicial spillover did

not require a new trial. To begin, we address the defendant's

contention that he was prejudiced by the wire- and tax-fraud

evidence incidental to the dismissed counts — evidence that he

claims was irrelevant to the Hobbs Act counts. Much of this

evidence, he says, would have been inadmissible in a trial limited

to the remaining counts of conviction.

We consider this argument in two parts, beginning with

the evidence that was admitted on the six dismissed wire-fraud

counts. The district court supportably found that much of the

evidence on those counts would have been admissible in connection

- 47 - with the remaining charges. The court viewed the evidence as

admissible under Federal Rule of Evidence 404(b)(2) to prove the

defendant's intent, which the court noted was the "core relevant

issue in this case." United States v. Correia,

,

at *6 (D. Mass. Apr. 4, 2022). And "[t]o the degree that the

evidence was prejudicial," the court observed, "it was not unfairly

so."

; see Fed. R. Evid. 403; see also United States v.

Rodriguez-Estrada,

(1st Cir. 1989) ("By design,

all evidence is meant to be prejudicial; it is only unfair

prejudice which must be avoided." (emphasis in original)).

We conclude that the district court did not abuse its

discretion in finding no significant spillover prejudice from the

six dismissed wire-fraud counts. Importantly, three other wire-

fraud counts resulted in still-standing convictions — so any trial

that included those counts would have involved much of the same

evidence regarding how the defendant misled investors and used

company funds for his personal benefit. See United States v.

Zimny,

(1st Cir. 2017) (rejecting spillover claim

when some evidence "would still have been relevant and admissible

to [some of] the counts" of conviction); see also United States v.

Edgar,

(1st Cir. 1996) (finding no prejudicial

spillover from evidence on acquitted count when "[s]ome of the

[same] evidence . . . would have been admissible" with respect to

counts of conviction). And even if some modest amount of evidence

- 48 - on the six dismissed wire-fraud counts would have been inadmissible

in a case winnowed down to the Hobbs Act counts and a subset of

the wire-fraud counts, the evidence was not so "extensive,

inflammatory, and prejudicial" that it was apt to have affected

the jury's consideration of the defendant's guilt or innocence.

Simon,

(quoting Mubayyid,

).

The second part of the defendant's argument targets the

evidence admitted on the tax-fraud counts (all of which were

dismissed by the district court in its post-trial ruling). But

once again, the district court refused to grant a new trial based

on spillover prejudice, invoking Federal Rule of Evidence

404(b)(2) and noting that much of the tax-fraud evidence would

still have been admissible in the context of the remaining charges.

We need not tarry. Even assuming, for argument's sake,

that the evidence related to the tax-fraud counts would not have

been admissible in relation to the Hobbs Act counts, we discern no

abuse of discretion in the district court's rebuff of the spillover

prejudice claim.6

We limit our analysis to the question of whether the evidence 6

admitted on the dismissed tax-fraud counts led to spillover prejudice vis-à-vis the Hobbs Act counts. The defendant has not developed any argument that the evidence admitted on the tax-fraud counts prejudiced him with respect to the three remaining wire- fraud convictions. See United States v. Zannino,

(1st Cir. 1990).

- 49 - For one thing, the government's tax-fraud evidence was

neither inflammatory nor unfairly prejudicial. One reliable

measure of whether evidence can be considered inflammatory or

unfairly prejudicial is "whether the evidence on the reversed

count[s] would have tended to incite or arouse the jury into

convicting the defendant on the remaining counts." United States

v. Rooney,

(2d Cir. 1994). The government's tax-

fraud evidence consisted primarily of the defendant's tax returns,

spreadsheets documenting money the defendant owed to SnoOwl, an

accountant's files, and the testimony of two tax professionals.

Much of this evidence was dry as dust and — at any rate — it

resembled in kind parts of the evidence properly admitted to prove

the still-standing wire-fraud convictions (such as bank records,

credit card statements, receipts, and the testimony of an IRS

agent). Given its nature, there is no realistic possibility that

the tax-fraud evidence was prejudicial to such a degree that it

would have improperly influenced the jury's disposition of the

Hobbs Act charges. Cf. Mubayyid,

(finding

evidence of defendants' support of terrorist organizations and

"violent jihad" did not unfairly prejudice jury against defendants

on counts of, among other things, tax fraud and making false

statements to federal agency).

For another thing, there were sufficient dissimilarities

between the evidentiary presentations on the tax-fraud and Hobbs

- 50 - Act counts to make it easy for the jury to differentiate among the

discrete charges. As other courts have observed, the degree to

which "charges are intertwined with each other" and the extent to

which "the evidence for the remaining counts is sufficiently

distinct" are factors that shed light on the likelihood that the

jury was able to compartmentalize evidence relevant to different

groups of charges. United States v. Wright,

(3d

Cir. 2012) (quoting United States v. Murphy,

(3d

Cir. 2003)); see Rooney,

. "[W]hen the reversed and

remaining counts arise from completely distinct fact patterns and

the evidence can be easily compartmentalized," it is more likely

that the jury was able to "evaluate[] each count on the specific

evidence attributed to it." Rooney,

; see Mubayyid,

.

This is such a case. Here, the Hobbs Act evidence

focused on the defendant's alleged bribe-taking from marijuana

vendors during his tenure as mayor. The tax-fraud evidence, by

contrast, focused on his private-sector handling of SnoOwl funds

during an earlier period and before he was elected to office. That

latter evidence was sufficiently distinct from the Hobbs Act

evidence to dissipate the threat of spillover prejudice. On this

record, we are confident that the jury would have been able to

compartmentalize and apply the distinct bodies of evidence to the

- 51 - separate groups of charges. See United States v. Portela,

(1st Cir. 1999).

Our conclusion that there was no spillover prejudice

from the reversed counts is fortified by the fact that the jury

acquitted the defendant on two of the Hobbs Act counts and the

lone bribery count. Put simply, the jury returned a discriminating

verdict — and a discriminating verdict is an indication that

spillover prejudice did not infect the jury's decisional calculus.

As we have said, the fact that the jury's findings distinguished

among counts can be "evidence that no spillover prejudice

occurred." Simon,

; see Edgar,

(holding that jury's acquittal on one of several counts

demonstrated harmlessness of spillover evidence). In a case like

this one, in which the jury rendered a judgment of conviction "on

only some of the charges, we are particularly reluctant to presume

that the jury was unable to compartmentalize the evidence of each

offense." Mubayyid,

. But a caveat is in order:

because the jury acquitted on only three counts — counts unrelated

to the counts of conviction — we give the jury's discerning verdict

less weight than we ordinarily might.

We add that the basics for believing that the jury was

able to compartmentalize is strengthened by the district judge's

evaluation. After all, the district judge — a veteran presider —

saw the relevant events unfold at first hand and had a unique

- 52 - opportunity to assess the trial's dynamics. When — as in this

case — the trial judge assesses the possibility of spillover

prejudice and finds that possibility to be chimerical, an appellate

court ought to give that assessment great weight. See United

States v. Sam Goody, Inc.,

, 26 n.9 (2d Cir. 1982)

(recognizing that a "trial judge is better situated than" an

appellate court to assess the "presence and effect" of factors

leading to spillover prejudice).

It bears mentioning, too, that the district court did

yeomen's work in protecting against the possibility of unfair

prejudice. We have held that the district court adequately guards

"against potential spillover prejudice by instructing the jury to

consider the evidence separately as to each count." United States

v. Bailey,

(1st Cir. 2005); see Trainor,

n.23; United States v. Tracy,

(1st

Cir. 1993). The court did that here by telling the jury in

substance — not once, but three times — that it was required to

consider each of the counts separately; that it needed to parse

the facts and circumstances in evidence regarding each count

individually; and that its decision on any one count did not

necessarily mean that it should reach the same decision on other

related counts.

The defendant tries to parry this thrust by arguing that

the district court should have instructed the jury that it needed

- 53 - to consider the "groups" of charges separately. The failure to do

so, the defendant says, may have implied to the jurors that they

could conflate the evidence underlying the different groups of

charges. But no such instruction was requested, nor did the

defendant object to the charge on this ground. And in all events,

no such instruction was required. In Zimny, for example, we held

that a jury instruction nearly identical to the one given here was

sufficient to protect against spillover prejudice notwithstanding

that the district court had explicitly "told the jurors that the

[assertedly unrelated] offenses were related."

-

60. We conclude, therefore, that the court's instructions guarded

adequately against any cognizable risk of spillover prejudice.

The defendant tries to undermine the verdict from yet

another angle. In a variation on his principal argument, the

defendant suggests that he suffered spillover prejudice by virtue

of the government's use of elements of the wire- and tax-fraud

case to introduce themes that reinforced its Hobbs Act case.

Specifically, the defendant says that the government used the wire-

and tax-fraud case as a vehicle for portraying him as having a

criminal disposition. Moreover, he says that the government

injected the theme that he led a "lavish lifestyle" and would do

or say "anything to enrich himself." In support, the defendant

points mainly to comments that the government made during opening

and closing statements to the jury.

- 54 - The record provides some grounding for these arguments.

In both its opening and closing statements, the government made

comments that might be construed to suggest that the defendant had

a criminal propensity. In its summation, for instance, the

government stated (in relation to the tax-fraud charges) that

"someone who says he has partners when it makes him look good but

no partners when it costs him money [in taxes] is someone who will

say anything to get what he wants." But neither this comment nor

the other comments identified by the defendant drew any

contemporaneous objection from defense counsel. And in all events,

those comments were not sufficiently egregious or inflammatory to

warrant a new trial. See United States v. Fattah,

(3d Cir. 2019); United States v. Henry,

(2d Cir. 2003).

The same is true of the statements linking the

defendant's spending habits to political corruption. The

defendant's strongest example is a comment made by the government

in its closing statements to the effect that the defendant "would

and did say anything to anyone to get what he wanted," including

by "convinc[ing] and persuad[ing] people from all walks of life,

from a trusting [investor] to rough-and-tumble street guys, to do

what he wanted, and what he wanted was money, and what he wanted

was power. Money he was willing to steal and power he was willing

to sell." This statement, too — and its cousins in the record —

- 55 - drew no contemporaneous objection from defense counsel. And at

any rate, this line of argument was not sufficiently egregious or

inflammatory to warrant a new trial. See Fattah,

(declining to deem reference to defendants' "lies and deception"

inflammatory).

Even so, our opinion should not be read as an endorsement

of the statements made by the prosecutor. As a general matter,

prosecutors would do well to refrain from using such statements in

the future. Under abuse of discretion review and viewed in context

of the record as a whole, however, the prosecutor's comments —

though inelegant — are insufficient to warrant annulment of the

jury verdict on the ground of prejudicial spillover. See Henry,

.

Our conclusion that the purported thematic connections

did not give rise to prejudicial spillover is reinforced by the

strength of the district court's instructions. As we have said,

the district court substantially lessened the risk that the jury

would conflate the wire- and tax-fraud charges with the Hobbs Act

charges by instructing in unmistakable terms that each count should

be considered separately. See Bailey,

. Just as

those instructions minimized the risk that the jury would

improperly conflate the evidence, so too did those instructions

safeguard against the possibility that the jury would seize upon

the prosecutor's comments to forge impermissible thematic links.

- 56 - Finally, the defendant strives to persuade us that the

cumulative effect of the dismissed wire- and tax-fraud counts

clouded the jury's ability to assess the evidence. Specifically,

the defendant claims that, absent the wire- and tax-fraud evidence,

the jury would have more carefully scrutinized the government's

evidence and witnesses regarding the Hobbs Act counts. In other

words, the defendant exhorts us to find that the credible evidence

on the dismissed counts lent a false sense of corroboration to the

counts of conviction. As an example, the defendant points to

Costa's testimony and says that, without the testimony of the

credible wire- and tax-fraud witnesses and the volume of evidence

introduced in support of those charges, the jury likely would not

have "accepted Costa's testimony at face value."

We are not convinced. For a start, the defendant's

assent to a joint trial meant that the jury would be presented

with evidence relating to both SnoOwl and the defendant's alleged

extortion of marijuana vendors as mayor. And because three of the

wire-fraud convictions remain standing, the jury would have heard

much of the same wire-fraud evidence in any event. Last — but far

from least — we afford appreciable deference to jury determinations

of witness credibility. See United States v. Carroll,

(1st Cir. 1997) (noting that "[c]redibility

determinations are . . . squarely within the jury's domain").

Given these facts and given the extensive evidence undergirding

- 57 - the Hobbs Act convictions, the defendant has failed to show

"prejudice so pervasive that a miscarriage of justice looms."

Simon,

-44 (quoting Trainor,

).

We add a coda. We do not gainsay that, in particular

cases, spillover prejudice may be inimical to a defendant's fair-

trial right. In this case, though, the record makes manifest that

the district court was sensitive to this danger and carefully

guarded against it. We discern no abuse of discretion in the

court's refusal to order a new trial based on the claim of

spillover prejudice.

V

Battling on, the defendant challenges the form and

substance of the district court's jury instructions. "The scope

of our review is shaped by whether [the appellant] properly raised

and preserved an objection to the instructions at trial." United

States v. Gonzalez,

(1st Cir. 2009) (quoting Jones

v. United States,

(1999)). We review preserved

objections to the wording and form of instructions for abuse of

discretion. See

We review preserved claims of error that

target the substance of the instructions — that is, whether they

conveyed the essence of the applicable law — de novo. See United

States v. De La Cruz,

(1st Cir. 2016); United States

v. Sasso,

(1st Cir. 2012). So, too, preserved

- 58 - objections to the omission of necessary jury instructions engender

de novo review. See De La Cruz,

.

Unpreserved claims of error stand on a different

footing. We review all such claims, regardless of whether they go

to the wording, form, or substance of the instructions, for plain

error. See United States v. Goris,

(1st Cir.

2017). Under this standard, a conviction may only be disturbed if

the defendant shoulders the heavy burden of proving "(1) that an

error occurred (2) which was clear or obvious and which not only

(3) affected the defendant's substantial rights, but also (4)

seriously impaired the fairness, integrity, or public reputation

of judicial proceedings." United States v. Duarte,

(1st Cir. 2001). The party claiming "plain error must carry

the devoir of persuasion as to all four of the[] elements" embedded

in this construct. United States v. Pinkham,

, 136-

37 (1st Cir. 2018).

A

The defendant's first claim of instructional error is

that the district court abused its discretion by submitting

fractional written instructions to the jury that did not include

overarching instructions on concepts such as the presumption of

- 59 - innocence, reasonable doubt, and witness credibility. Some

background helps to set the stage.

The district court's charge, given ore sponte at the

conclusion of the trial, fully covered the concepts of the

presumption of innocence, reasonable doubt, and witness

credibility. The defendant does not fault those instructions.

But the court then proceeded to give the jury portions of its

instructions, in writing, to take into the jury room. These

portions included a description of the elements of the crimes

charged and what the government was required to prove. They did

not, however, include the court's instructions on the presumption

of innocence, reasonable doubt, and witness credibility. That

said, the court cautioned the jury "not to get too entranced by

the written instructions" and reminded the jurors that they could

not "disregard" the "foundational kinds of issues, like the idea

that the government must prove each essential element beyond a

reasonable doubt [and] that the defendant is presumed innocent."

The defendant contends that the court underemphasized

the latter concepts and the concept of witness credibility by

excluding them from the fractional portions of its charge that

were reduced to writing and sent into the jury room. We assume

for argument's sake that this contention was preserved.7 As such,

7 The defendant voiced this objection during the pre-charge conference, but the district court brushed it aside. The court

- 60 - it engenders review for abuse of discretion. Evaluating the

contention on this basis, we find it unconvincing.

A district court enjoys "considerable discretion in how

it formulates, structures, and words its jury instructions."

United States v. Prigmore,

(1st Cir. 2001). That

discretion extends to decisions about whether to submit written

instructions to the jury. See United States v. Previte,

(1st Cir. 1981). The defendant argues that this discretion

is nonetheless cabined: in his view, the court may only submit

either the written version of its complete charge or nothing at

all.

Our evaluation of this all-or-nothing proposition is

guided by our decision in United States v. Parent,

(1st Cir. 1992). There, the district court submitted a written

excerpt of its charge in response to the jury's request for a

written supplemental instruction. See

. We noted that,

by submitting only a portion of the charge, the court elevated the

told the defendant that he could clarify the objection after the court had delivered the charge and sent the jurors to deliberate. Following the court's lead, the defendant objected again at that time. The defendant should have raised the objection before the jury was sent to deliberate. See Fed. R. Crim. P. 30(d); see also United States v. Serrano-Delgado,

(1st Cir. 2022) ("[W]e deem objections to jury instructions automatically unpreserved unless made after the instructions are given and before the jury retires."). But that failure may well be absolved because defense counsel appears to have been acting pursuant to the district court's explicit instructions.

- 61 - risk that the jury would place undue weight on the portion of the

charge committed to writing. See

. But we also noted

that it was not "per se error for a judge, having charged orally,

to honor a jury's request for a written supplemental instruction."

(emphasis in original). And we went on to admonish that

"if a fractional written supplement is to be used following the

entirety of an oral charge, the judge must be extremely careful to

avoid the possibility of prejudicial emphasis."

Finally, we

suggested that a district court might guard against prejudicial

emphasis "by carefully reminding the jury of other aspects of the

original charge and cautioning them that the segment of the charge

which is amplified or explained should be considered in the light

of the other instructions and is not to be given undue weight."

(quoting Beardshall v. Minuteman Press Int'l, Inc.,

(3d Cir. 1981)). Parent leaves no doubt that the

defendant's all-or-nothing proposition is not good law.

The question remains, though, whether the district court

acted within the encincture of its discretion in deciding to submit

these particular fractional written instructions to the jury. We

approach that question with care, mindful that submitting

fractional written instructions to a jury is always a risky

business. A district court's employment of such a praxis always

must be evaluated on a case-by-case basis. In this instance, we

find that the district court stepped carefully in Parent's

- 62 - footprints and successfully "avoid[ed] the possibility of

prejudicial emphasis."

During its initial charge to the jury,

the court eloquently elaborated the concepts of the presumption of

innocence, reasonable doubt, and the importance of judging witness

credibility. It referred to those concepts repeatedly throughout

its instructions on the elements of the different categories of

offenses. Then — immediately before it submitted the fractional

written excerpts to the jurors — the court warned them not to "get

too entranced by the written instructions." And the court wisely

reminded the jurors of the "foundational . . . issues" such as

"that the government must prove each essential element beyond a

reasonable doubt [and] that the defendant is presumed innocent."

The court then directed the jurors to "keep all of those in mind"

and not "disregard them."

Viewed against this backdrop, we discern no abuse of the

district court's wide discretion. To begin, we think it important

that the submission of the fractional written instructions to the

jury was made as part of the charge as a whole (and not in response

to a mid-deliberation jury question). Moreover, although the

fractional written instructions were incomplete, the court gave

the jury suitable warnings about placing too much emphasis on them.

It also explicitly reminded the jury of the reasonable-doubt

standard and the presumption of innocence. We presume that juries

follow instructions given by the district court, see United States

- 63 - v. Bradshaw,

(1st Cir. 2002), and the defendant

has advanced no credible reason for eschewing that presumption

here.

Let us be perfectly clear. Our opinion should not be

read to condone the district court's approach as per se acceptable.

But in the circumstances of this case, we do not think that the

court abused its discretion, given the safeguards that it employed

to limit the possibility that the jury would place undue weight on

the fractional written instructions.

B

The defendant also challenges the substance of the jury

instructions in three respects. Because none of these challenges

was preserved, we review them for plain error. See Goris,

. "[T]he plain error hurdle, high in all events, nowhere

looms larger than in the context of alleged instructional errors."

United States v. Paniagua-Ramos,

(1st Cir. 2001).

It is "the rare case in which an improper instruction will justify

reversal of a criminal conviction when no objection has been made

in the trial court." Gonzalez,

(quoting United

States v. Weston,

(1st Cir. 1992)). This is not

that rare case.

1

The defendant submits that the district court should

have instructed the jury to consider the different "groups" of

- 64 - crimes separately. He takes issue with the fact that, when the

court instructed the jury on the elements of the various groups of

crimes charged, it introduced each new group with a version of the

following instruction:

You must consider each of these counts, they're separate counts, each of these counts on the facts and circumstances of the evidence regarding them separately. Your decision as to any one of those counts does not necessarily mean that you will reach the same decision with respect to any other of those counts. They stand on their own and are evaluated on their own.

In the defendant's view, this type of instruction may have led the

jurors to believe that they could draw inferences as to the

defendant's guilt across groups even if they understood that they

could not do the same within groups.

We think that the defendant's fears are overblown. The

chief difficulty with his argument — beyond the stark fact that

the defendant did not make the argument below — is that a jury

instruction "must be evaluated not in isolation but in the context

of the entire charge." See Gonzalez,

(quoting

Jones,

). Looking to the charge as a whole, we

find ample reason to believe that the jury was adequately

instructed about its obligation to assess each count — both across

and within groups — individually.

Notably, the defendant does not suggest that the

district court failed to instruct the jury on the specific elements

- 65 - of each group of charges. Nor could he: the court was careful to

explain that the government was required to prove each element of

each offense beyond a reasonable doubt. In this way, the court

highlighted that the counts were distinct. Cf. Trainor,

n.23 (emphasizing that district court instructed jury that

each count was separate and that government had to prove each

element of each count beyond a reasonable doubt); United States v.

Chambers,

(1st Cir. 1992) (similar).

Equally as important, the verdict slip required that the

jury make an individual determination of the defendant's guilt or

innocence on each and all of the twenty-four charged counts. See,

e.g., United States v. Saunders,

(1st Cir. 2009)

(noting with approval that verdict slip differentiated between all

counts). The court — in telling the jurors about the verdict slip

— explained "that [the slip] w[ould] show you how each one of these

counts is separate and requires a separate determination by each

of you in which you're asked to answer not guilty or guilty with

respect to those counts." Although this explanation was given

after the court had instructed the jury on the elements of wire

fraud, the court later emphasized that the verdict slip required

the jurors to assess "whether or not [the government] proved beyond

a reasonable doubt each essential element of the offenses that are

reflected in that . . . slip" — thereby reinforcing the separate

and distinct nature of all twenty-four counts.

- 66 - The best evidence that the district court charge

adequately conveyed the separate nature of the counts is the jury's

discriminating verdict. That verdict is strong evidence that the

jurors fully understood that their decision on one count was

separate and distinct from their decisions on the other counts.

See, e.g., United States v. Brennan,

(1st Cir.

1993) (noting that "discriminating verdict suggests to us that the

jury was fully able to follow the court's instructions and

differentiate between the counts"); United States v. Boylan,

(1st Cir. 1990) (concluding that discriminating

verdict, in and of itself, "evidenced that the jurors were able

to, and did, follow the court's instructions").

To say more would be to paint the lily. There was no

plain error in the district court's instructions regarding the

separate nature of the counts.

2

The defendant's next claim of instructional error

targets the district court's jury instructions with respect to the

counts charging him with extortion under color of official right.

The court, he says, should have instructed the jury that it had to

find that he personally benefited from each extortive scheme.

This claim of error entails — albeit in different garb

— a view of the law that we already have debunked. See supra Part

III(C)(2). We see no reason to repastinate soil that has already

- 67 - been well-plowed. Suffice it to say that there was no plain error

in this respect.

3

In his last claim of instructional error, the defendant

asserts that the district court's instructions regarding

conspiracy to commit extortion failed adequately to explain the

applicable law. As he envisions it, the court should have

indicated that when consent or acquiescence is inherent in the

underlying substantive offense, "something more than bare consent

or acquiescence may be needed to prove that the person was a

conspirator." Ocasio,

. Absent such an

instruction, the defendant suggests, the jury could have found a

conspiratorial arrangement between the defendant and a bribe-payer

(say, Pichette or Saliby) based on the latter's mere acquiescence

in the payment of the bribe.

Even if we assume that the omission of the proposed

instruction was error — a matter on which we take no view — the

defendant stumbles at the second step of the plain error construct.

At that step, the defendant must make an incremental showing: he

must show a "clear or obvious" error. Duarte,

. A

clear or obvious error is one that "at the very least,

contradict[s] existing law." United States v. Gonzalez,

(1st Cir. 2020), cert. denied,

(2021); see

United States v. Rabb,

(1st Cir. 2021) (describing

- 68 - such an error as one that "is contrary to existing law" or

"'indisputable' in light of controlling law" (quoting United

States v. Jones,

(1st Cir. 2014))). We do not

think that the court's omission of the belatedly sought instruction

can fairly be said to have surmounted that high threshold.

As said, to prove that the defendant was guilty of

conspiracy to commit Hobbs Act extortion, the government was

required to show that he conspired to obtain property from another,

with the other's consent, under color of official right — meaning,

in practical terms, that he conspired to obtain a payment to which

he was not entitled, knowing that the payment was made in return

for an official act. See Ocasio,

(quoting Evans,

); Turner,

. And to prove the

requisite conspiracy, the government had to "show, inter alia,

that an agreement or working relationship existed, that it had an

unlawful purpose, and that the defendant was a voluntary

participant in it." Echeverri,

(emphasis in

original).

The district court's instructions regarding conspiracy

to commit extortion tracked these elements. The court told the

jury that, to find the defendant guilty of conspiring to violate

the Hobbs Act, it had to find that he "willfully" entered into an

"agreement" with "at least one other person" to "commit extortion

under color of official right." The court added that the

- 69 - government must "prove beyond a reasonable doubt that those who

were involved [in the agreement] shared a general understanding

about the object of their agreement" and warned that "[m]ere

similarity of conduct among various people or the fact that they

may have associated together with each other or discussed common

[aims] and interests does not necessarily establish proof of the

existence of a conspiracy." The court's partial written

instructions recapitulated these points.

It also bears mention that the court — in both its oral

and written instructions — made clear that the "agreement" which

the jury needed to find was the agreement specified in the relevant

count of the indictment and "not some other agreement with other

people involving other things." The indictment — itself sent to

the jury — charged that Brayton, Bairos, Pichette, and Saliby were

"[v]ictim[s]" of the defendant's extortionate scheme, not co-

conspirators, and that the defendant had conspired to commit Hobbs

Act extortion by "obtaining property" from those "victims" with

their consent.8

8 For the sake of completeness, we note that elsewhere in his brief, the defendant concedes that, in a jury note, the jury "distinguished between 'member of conspiracy' and 'victim.'" According to the defendant, that distinction demonstrates that the jury "understood the prosecution's trial theory to be that Mr. Correia agreed with Hebert and Andrade to extort Pichette and Saliby, respectively." Taking the defense at its word, then, the jury did not understand the government's theory to be that Pichette and Saliby were simultaneously victims and the lone co- conspirators of the respective extortion schemes, such that the

- 70 - Even if the court's instructions may not have been

letter-perfect, they "constitute[d] a fair statement of the

applicable law concerning" conspiracy to commit extortion under

the Hobbs Act. Paniagua-Ramos,

. At the very

least, the instructions were not "contrary to existing law." Rabb,

.

We hold, therefore, that — in the absence of a

contemporaneous objection — the district court did not commit clear

or obvious error by failing to instruct the jury sua sponte that

"something more than bare consent" was needed to prove extortion

conspiracy. Plain error was plainly absent.

VI

The defendant's final claim of error posits that alleged

prosecutorial misconduct during closing argument compromised his

right to a fair trial. This claim has a porous foundation: the

defendant did not contemporaneously challenge the conduct of which

he now complains, nor did he challenge it in his post-trial motion.

Our review, therefore, is only for plain error. See United States

v. Walker-Couvertier,

(1st Cir. 2017).

We first supply some context. During his closing, the

prosecutor played and referred to a video clip, previously admitted

into evidence, which was excerpted from a 2015 mayoral campaign

government would need to show that their payment of bribes amounted to more than "mere acquiescence." Ocasio,

.

- 71 - debate. Early in the debate, the defendant had touted his

entrepreneurial accomplishments and cited SnoOwl as the pièce de

résistance. In the video clip, the defendant's opponent challenged

the defendant to:

Show us the proof. It looks to me as if SnoOwl isn't doing much of anything. How much money did you borrow to get SnoOwl started? And have you paid any of your investors back? Because once again, that's something that the public deserves to know. My record over the past 10 years in public life is an absolute open book. You – yours is the opposite of that.

The defendant responded:

[My opponent] is again showing his inexperience in the business community. An investor is a partner in your business. It's not a loan. We have taken in hundreds of thousands of dollars from investors, and our goal is to get them a return on their investment. That's exactly what I do. And that's why I am running for mayor, because I am going to take your ta[x] dollars, and I'm going to invest them in the right places. . . . I am going to take your money and spend it wisely. That's what I do in my business. You can talk to any of my investor-partners, and they'll tell you they love SnoOwl, they love their investment. It's not a loan. It's not a debt. The word "investor" means "partner." They are partners in my company.

The prosecutor played this clip three times during his

closing, all in the portion dedicated to the fraud charges. The

first time he played it he asked the jury to compare what the

defendant "said to the voters of Fall River in that October 2015

mayoral debate" with the testimony of the defendant's ex-

- 72 - girlfriend, who had testified to some of the defendant's

extravagant spending habits. After that display of the video clip,

the prosecutor said:

Spend it wisely? Like he does in his business? $32,118 on [his ex-girlfriend], $3,000 at the Intercontinental, Tiffany jewelry, $18,000 in personal purchases, campaign literature and stickers. Spend it wisely? He had no problem looking the voters right in the eye and telling them he spent this money wisely, knowing it wasn't true. Think about that. It tells you a lot.

Later in his summation, the prosecutor again used the

video clip (this time when deriding the defendant's boasts about

SnoOwl). Before playing the clip, the prosecutor suggested that

the jurors should "remember again . . . when the defendant stood

before the voters and touted what he had done for SnoOwl." Then

— after the video clip had been shown — the prosecutor commented:

"That's exactly what I do. I get them a return on their investment." That's what he said to the voters in October of 2015. But think about that statement in the context of what the bank records for SnoOwl actually showed at that very time. The Citizens account in October of 2015 had $69. Hundreds of thousands gone. $69. The BayCoast account, negative $709, the same month.

Folks, someone who can look the voters in the eye and say he got his investors a return when he knows negative $600 is what the company has and that the app is dead, that is someone who will say anything to get what he wants.

The prosecutor's last use of the video clip occurred in

connection with the tax-fraud charges. Specifically, that use

- 73 - occurred when the prosecutor was discussing the defendant's tax

returns and the question of whether the defendant cheated on his

taxes by claiming SnoOwl was a sole proprietorship as opposed to

a partnership. Again, the prosecutor asked the jury to remember

what the defendant said when he "looked the voters in the

eye . . . when he was questioned about SnoOwl and whether there

were loans." The prosecutor played the video clip for a third

time and then remarked:

Couldn't be clearer, right? October 2015, Jasiel Correia has partners. Then somehow in 2017 when he has to amend his returns and partners will cost him tens of thousands of dollars in tax liability, those partners disappear. He files a sole proprietorship return. Magically, the partners, just the way SnoOwl did in 2015, have disappeared. Now he's supposedly a sole proprietorship, one owner. Not true. And someone who says he has partners when it makes him look good but no partners when it costs him money is someone who will say anything to get what he wants. And it's the type of person who, after taking all the money he admitted he took to [an accountant], would still have the gall to ask the IRS for a refund.

The defendant did not object to the prosecutor's use of

the video clip on any of these three occasions. Nor did he object

to any of the prosecutor's related statements. And although the

defendant made a passing mention of the video clip in his post-

trial motion, that mention was only in connection with his

contention that the charges against him should have been severed.

Thus, the district court had no occasion to comment upon the

- 74 - prosecutor's use of the video clip when it denied the defendant's

alternative motion for judgment of acquittal or for a new trial.9

In this venue, the defendant contends that the

prosecutor's use of the video clip during his closing and his

associated comments amounted to prejudicial misconduct for two

principal reasons. First, the defendant alleges that the

prosecutor's actions constituted an improper propensity argument.

See, e.g., United States v. Taylor,

(1st Cir.

2002). Second, the defendant alleges that the video clip and the

associated comments played too heavily to the jurors' emotions by

inviting them to convict the defendant for pulling the wool over

the eyes of Fall River voters. See, e.g., United States v.

Manning,

(1st Cir. 1994) (explaining that

"arguments urging a jury to act in any capacity other than as the

9 Even so, the district court's views are not a secret. In passing upon a motion for continued release on bail, the district court canvassed the arguments made in the defendant's opening brief in this court. That brief apprised the district court — for the first time — of the defendant's contention that prosecutorial misconduct related to the use of the video clip during closing argument warranted a new trial. The court made pellucid that it did not consider "the government's use in closing argument of a videotape clip of [the defendant's] statements in a mayoral debate []as sufficiently improper to justify a new trial." Correia,

, at *6. The court "did not then view the [prosecutor's] argument, graphically presented and underscored through the video clip, to be improper in whole or in part."

Rather, "it was fair argument . . . go[ing] to the core relevant issue in this case, that of scienter."

- 75 - impartial arbiter of the facts in the case before it are

improper").

Plain error review is not appellant-friendly. We

previously have outlined the steep uphill climb that is required

for an appellant to prevail under plain error review. See supra

Part V (quoting Duarte,

). As applied to closing

arguments, we have given the plain error standard a practical

twist. In that setting, "the plain error standard requires the

court first to determine whether the challenged comment is

obviously improper, that is, whether the first two prongs of the

plain error standard have been satisfied." Walker-Couvertier,

. And if that is so, "the court must proceed to consider

whether the comment 'so poisoned the well that the trial's outcome

was likely affected.'"

(quoting United States v. Mejia-Lozano,

(1st Cir. 1987)). In conducting this appraisal,

we "must weigh factors such as the severity of the misconduct, the

context in which it occurred, the presence or absence of curative

instructions, and the strength of the evidence." Id.; see United

States v. Kasenge,

(1st Cir. 2011).

The district court did not regard the deployment of the

video clip and the associated comments as "improper in whole or in

part." See supra note 9. But even if we assume, favorably to the

defendant, that the alleged misconduct constituted clear or

obvious error — a matter on which we take no view — it cannot

- 76 - fairly be said that the alleged misconduct "so poisoned the well

that the trial's outcome was likely affected." See Mejia-Lozano,

. We explain briefly.

We start with some general observations. Our inquiry is

case-specific, see Simon,

, and the trappings of

this case are sui generis. We recognize both that the prosecutor's

statements were deliberate — the government frankly admits that it

used the video clip as a means of contrasting the defendant's

statements with other evidence in the case — and that the

deliberate nature of the statements is a factor favoring the

defendant in the misconduct analysis. See United States v.

Belanger,

(1st Cir. 2018).

Here, however, the alleged misconduct was not so severe

as to require reversal. Indeed, the trial judge — who saw the

three uses of the video clip and heard the associated comments in

real time — found nothing amiss. See supra note 9.

To be sure, statements made in the heat of a political

campaign cannot and should not always be taken literally. That

does not mean, though, that the campaigner is entitled to a free

pass. But the same is true for the prosecution. In that regard,

we note our concern that the government's use of campaign videos

in criminal prosecutions, especially on unrelated charges, may

have a chilling effect on political speech — the very category of

speech as to which the First Amendment affords the highest level

- 77 - of protection. See, e.g., Rideout v. Gardner,

(1st Cir. 2016). We caution, then, that our opinion should not be

read as a wholesale condonation of the tactic employed by the

government in this case; and we will continue to evaluate

allegations of prosecutorial misconduct that implicate free-speech

concerns on a case-by-case basis.

Notwithstanding our generalized concern, we find no

plain error here. The deployment of the video clip and the

comments associated with it appear to have been little more than

a rhetorical device, thrice repeated. And even though the

challenged comments may have suggested that the voters of Fall

River had been duped, nothing in the record suggests that invoking

the plight of those voters would have clouded the jury's ability

to weigh the evidence fairly.10

Nor was this a case in which the prosecutor introduced

improper argument early in the trial and proceeded to weave that

improper theme into the fabric of the case. See, e.g., United

States v. Canty,

(1st Cir. 2022). The opposite

is true: the prosecutor's use of the video clip played only a

tiny part in a long and complex trial. The video clip itself was

introduced into evidence without objection, and the challenged

We note that there is no indication in the record that any 10

Fall River voter was seated on the jury that decided the defendant's case.

- 78 - comments — which were limited to the wire- and tax-fraud counts —

take up only a few lines of a transcript that runs thousands of

pages.

We also find it significant that the defendant's trial

counsel did not object to what the defendant now alleges was

misconduct. Where, as here, a seasoned attorney does not object

to remarks made during closing argument, this silence "suggest[s]

that the remarks were not seen at the time" as poisoning the well.

Belanger,

; see Kasenge,

.

The sockdolager, of course, is the strength of the

government's evidence. We consistently have held that "the well

is less likely to have been poisoned where strong evidence supports

the prosecutor's case." Walker-Couvertier,

(internal alteration omitted) (quoting Kasenge,

).

So it is here. Viewing the record as a whole, see Arrieta-Agressot

v. United States,

(1st Cir. 1993), the proof of

the defendant's guilt on each and every count of conviction was

solid.

In this case, all roads lead to Rome. In view of the

prosecutor's scattershot references in his summation to the video

clip, the absence of any contemporaneous objection to those

references, the government's independently powerful case against

- 79 - the defendant, and the instructions given by the district court,11

we conclude that the defendant has not shown a likelihood that the

alleged misconduct prejudiced the jury and, thus, influenced the

outcome of the case.

The defendant resists this conclusion. He marshals some

case law in support of his resistance — but the defendant is

comparing plums with pomegranates. Two examples suffice to

illustrate this point.

In Canty — a case in which the defendants were convicted

of conspiracy to possess and distribute drugs — "the prosecutor

made four types of improper comments at different points during

the opening statement, at closing, and at rebuttal."

. "Each built upon the others and introduced improper themes."

Notably, the prosecutor improperly appealed to the jury's

emotions by casting the defendants "as cruel and greedy outsiders

who came to [the state] to distribute illegal drugs to suffering

[citizens]"; argued that the defendants were guilty by association

with others who had already been convicted; vouched for the

The district court carefully instructed the jury that its 11

verdict must be based solely on the evidence. That instruction mitigated any improper residual impact that the prosecutor's statements may have had. See, e.g., United States v. Veloz,

(1st Cir.) (holding that similar instructions significantly undercut any prejudice from improper statements), cert. denied,

(2020); Walker-Couvertier,

(same); see also Mejia-Lozano,

(collecting cases).

- 80 - credibility of witnesses; and mischaracterized video evidence,

thus subverting the court's instruction that the evidence was

admissible only against one of the defendants. See

at 786-

90. Given these serial missteps, we held that the prosecutor's

obviously improper statements were cumulatively severe and — even

on plain error review — were so prejudicial as to warrant a new

trial. See id. at 791.

Our decision in United States v. Carpenter,

(1st Cir. 2007), also serves to illustrate the incongruity of the

authorities on which the defendant relies. There, the defendant

was convicted of defrauding investors by misrepresenting his

investment strategy. See

. During closing argument, the

prosecutor made extensive use of a metaphor that likened the

defendant to a "gambler" and his management of his clients' money

to "gambling." See

. The prosecutor "used some

permutation of the word 'gamble'" eighteen times, including

through "provocative references to 'cashing in chips,' 'doubling

down' and 'river boat gambler.'"

. We affirmed the grant

of a new trial based on "the frequency with which the gambling

references were made," their persistently pejorative nature, and

our conclusion that they "were intended to, and did, inflame the

jury's passions against the defendant."

.

The case at hand is cut from markedly different cloth.

Viewed in light of the record as a whole, the alleged misconduct

- 81 - simply does not support the defendant's claim that the prosecutor's

deployment of the video clip during closing argument and the

associated comments likely skewed the outcome of the trial.

Because the well was not poisoned here, it necessarily follows

that plain error lies beyond the defendant's reach.

VII

We need go no further. The record reveals that the

defendant was fairly tried and lawfully convicted by an impartial

jury in a trial presided over by an able judge and unblemished by

any reversible error. For the reasons elucidated above, the

judgment of the district court is

Affirmed.

- 82 -