author: BARRON, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Robel Kidane PHILLIPOS, Defendant, Appellant.
    No. 15-1716
    United States Court of Appeals, First Circuit.
    February 24, 2017

      Derege B. Demissie, with whom Demis-sie & Church, Cambridge, MA, was on brief, for appellant.
    Randall E. Kromm, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.
    Before BARRON, SELYA, and STAHL, Circuit Judges.
   BARRON, Circuit Judge.

On October 28, 2014, Robel Phillipos was convicted under 18 U.S.C. § 1001(a)(2) on two counts of making false statements to federal authorities in the weeks following the Boston Marathon bombing. The bombing occurred on April 15, 2013. The statements related to Phillipos’s possible participation, three days later, in the removal and disposal of a backpack thought to contain evidence related to the attack from the college dormitory room of Dzhokhar Tsarnaev, one of the bombing suspects and a'Mend of the defendant’s at college. Phil-lipos was sentenced to three years’ imprisonment and three years’ supervised release. He now challenges his convictions on a number of grounds that we will address, along with the facts relevant to each, in turn. Because we find that none of these challenges has merit, we affirm.

I.

We start with Phillipos’s challenges to the admission into evidence of a signed confession, in which Phillipos admitted to making the false statements that are at issue during two informal interviews with federal agents in the two weeks following the bombing. Phillipos signed that confession at the conclusion of an interview with an agent of the Federal Bureau of Investigation (“FBI”) on April 26, 2013. Phillipos contends that the District Court erred in both (1) refusing to conduct a preliminary hearing on the admissibility of the confession unless Phillipos would agree to submit to cross-examination at that hearing on the contents of an affidavit that he submitted regarding the circumstances of the confession, and (2) failing to make a determination prior to the introduction of the confession into evidence as to whether Phillipos made the confession voluntarily. Neither challenge warrants reversal of the convictions.

A.

We begin with the first of Phillipos’s challenges to the admissibility of the confession, which concerns the denial of his request for an evidentiary hearing on the voluntariness of his confession because he refused to submit to cross-examination. Phillipos sought the hearing in connection with his motion to suppress the confession pursuant to the Fifth Amendment’s Due Process Clause.

Phillipos acknowledged that he had been informed of his rights, as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), prior to making the confession. But he contended that the circumstances under which he made it were coercive. In support of this motion, Phillipos relied solely on his own affidavit recounting his version of those circumstances.

Specifically, Phillipos’s affidavit alleged that the interviewing FBI agent, Michael Delapena, “interrogated [Phillipos] for several hours in a small room.” Phillipos also alleged that, during that time, Delapena administered a polygraph test, and told Phillipos that Phillipos could only answer questions with “yes or no.” As a result, Phillipos alleged, he answered “no” to certain questions because he could not give the truthful answer, which would have been that he did not remember. Phillipos also alleged that Delapena did not offer Phillipos food; that Delapena “got close to [Phillipos’s] face” and cursed at him; and that Delapena locked the door and told Phillipos, “[T]ell me everything that happened. There are wolves outside the door, you don’t want me to unlock the door.” In addition, Phillipos alleged that, at the end of the interrogation, Delapena presented him with a typed confession to sign, which Phillipos signed because “[he] felt that [he] had no choice but to sign it if [he] were to leave without being arrested.”

Phillipos argued that the affidavit he submitted sufficed to show that there were facts in dispute regarding the confession’s voluntary nature, because the account in the affidavit conflicted in key respects with the account the government set forth in its opposition to his motion to suppress the confession that it had filed. In its filing, the government did not dispute that Delapena questioned Phillipos for several hours in a small room.

The government did, however, dispute other aspects of Phillipos’s account. Specifically, the government stated that, prior to administering the polygraph, Delapena explained to Phillipos that the polygraph questions had to be answered with a “yes or no,” and that if Phillipos did not remember something, Delapena would rephrase the question so that Phillipos could truthfully answer with a “yes” or “no.” The government’s account also conflicted with Phillipos’s in the following respects: De-lapena did offer Phillipos food; Delapena “at no time ... raise[d] his voice, curse[d], or otherwise treatfed] the defendant discourteously”; Delapena locked the door to the interview room only after Phillipos expressed concern that agents outside were angry with him, and, in doing so, Delapena told Phillipos, “Don’t worry about them. They’re outside; I’m here with you. I don’t judge you.” Finally, the government stated in its filing that Phillipos sat with Delape-na as Delapena typed up the confession, that Delapena “conferred constantly” with Phillipos to ensure that Delapena was accurately setting forth Phillipos’s account, and that, at several points, Phillipos asked Delapena to make specific changes to the account, which Delapena did.

A defendant is entitled to an evi-dentiary hearing as to the voluntariness of his confession only if the defendant “makes a sufficient threshold showing that material facts are in doubt or dispute, and that such facts cannot reliably be resolved on a paper record.” United States v. Staula, 80 F.3d 596, 603 (1st Cir. 1996). Applying that requirement to Phillipos’s request for the hearing, the District Court acknowledged that the allegations in Phillipos’s affidavit, if credited, would suffice to establish a factual dispute that would warrant a hearing. But the District Court went on to explain that the affidavit could suffice to establish that factual dispute only if Philli-pos agreed to be cross-examined about the affidavit’s contents at the hearing. Otherwise, the District Court ruled, the affidavit “cannot be tested” and would be “illusory.” And, as a result, there would be no basis for finding that Phillipos had established the requisite factual dispute.

We review a preserved challenge to a denial of a request for a preliminary hearing for abuse of discretion. United States v. Jiménez, 419 F.3d 34, 42 (1st Cir. 2005). “Abuse of discretion occurs ‘when a relevant factor deserving of significant weight is overlooked, or when an improper factor is accorded significant weight, or when the court considers the appropriate mix of factors, but commits a palpable error of judgment in calibrating the decisional scales.’” Id. at 43 (quoting United States v. Gilbert, 229 F.3d 15, 21 (1st Cir. 2000)). “Within this framework, an error of law is always tantamount to an abuse of discretion.” Torres-Rivera v. O’Neill-Cancel, 524 F.3d 331, 336 (1st Cir. 2008).

Phillipos contends that the District Court abused its discretion by making his willingness to submit to cross-examination a condition of holding the hearing. Philli-pos contends that the condition effectively — and impermissibly — “[f]orc[ed] him to choose between” asserting his constitutional right against self-incrimination and asserting his right to an evidentiary hearing regarding the voluntariness of his confession. But, we do not agree.

Phillipos points to nothing in the record besides his affidavit that could have provided a basis for finding that he had met his burden of demonstrating a factual dispute that would warrant an evidentiary hearing at the time that the District Court imposed the cross-examination condition. In fact, when the District Court asked one of Phillipos’s attorneys, prior to denying the motion for the hearing, to “[pjoint [the court] to” evidence in the record besides Phillipos’s own affidavit that would support Phillipos’s contention that his confession was not voluntary, the attorney failed to do so.

As a result, the District Court simply determined that Phillipos failed to establish a sufficient threshold basis for finding that there was a factual dispute over the voluntariness of his confession because he had proffered only an untested — and thus illusory — affidavit. In doing so, the District Court followed a course that we approved, albeit in a different context, in United States v. Baskin, 424 F.3d 1 (1st Cir. 2005), which is a case that Phillipos fails to address.

There, a defendant relied solely on factual allegations set forth in his own affidavit in moving on Fourth Amendment grounds to suppress the fruits of a search. Id. at 3. The defendant refused, however, to submit to cross-examination that would allow the government to “test the truth” of the factual allegations set forth in the affidavit; the defendant instead invoked his Fifth Amendment privilege against self-incrimination. Id. In consequence, the District Court refused to credit the affidavit and then denied the motion to suppress. Id. We held that the district court did not abuse its discretion in so ruling, because the district court was entitled to conclude that the defendant’s own untested affidavit was not in and of itself sufficient to “establish any ground for asserting a Fourth Amendment right.” Id.

To be sure, Baskin involved a district court’s denial, after an evidentiary hearing, of a defendant’s motion to suppress evidence allegedly acquired in violation of the defendant’s Fourth Amendment right against an unreasonable search. Id. By contrast, here we confront a defendant’s motion for an evidentiary hearing to determine whether, under the Fifth Amendment, a confession was voluntarily made. But, like the defendant in Baskin, Phillipos sought to establish the requisite factual predicate for his motion solely on the basis of his own affidavit, which he would not allow the government to test through cross-examination. Nor did Phillipos identify any additional evidence that he would be able to present at the hearing, other than his speculative assertions that he might have established support for his affidavit’s account through his own cross-examination of the government agents who conducted the interviews that led to the confession.

In light of Baskin, we see no basis for concluding that the District Court abused its discretion in finding that the affidavit, on its own, failed to establish the sufficient threshold showing of a factual dispute that Phillipos was required to make. As we have said before, “[t]he district court has considerable discretion in determining the need for, and the utility of, evidentiary hearings, and we will reverse the court’s denial of an evidentiary hearing in respect to a motion in a criminal case only for manifest abuse of that discretion.” Staula, 80 F.3d at 603. Accordingly, this first challenge regarding the use of the confession at trial fails.

B.

Phillipos next contends that the District Court erred by failing to make a finding as to the voluntariness of the confession before admitting it into evidence. Phillipos does not contend that the District Court was required to find that Phillipos’s confession was involuntary, as he concedes that the record as it then stood supported the voluntariness finding made. Phillipos contends only that the timing of the District Court’s voluntariness determination-prejudiced Phillipos’s ability to develop a complete record in support of his contention that the confession was not voluntarily-given.

Phillipos failed to raise this objection below, and so our review is only for plain error. United States v. Piano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). “Review for plain error entails four showings: (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, 246 F.3d 56, 60 (1st Cir. 2001).

Although the District Court made a preliminary finding pre-trial that the confession was voluntary, the government does not appear to dispute that the District Court erred in failing to make a conclusive voluntariness determination “[bjefore [the] confession [was] received in evidence.” 18 U.S.C. § 3501(a). See also Sims v. State of Georgia, 385 U.S. 538, 543-44, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967) (“[A] jury is not to hear a confession unless and until the trial judge has determined that it was freely and voluntarily given.”); Crane v. Kentucky, 476 U.S. 683, 687-88, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986) (“To assure that the fruits of such techniques are never used to secure a conviction, due process also requires ‘that a jury [not] hear a confession unless and until the trial judge ... has determined that it was freely and voluntarily given.’ ” (alteration in original) (quoting Sims, 385 U.S. at 543-44, 87 S.Ct. 639)); United States v. Feliz, 794 F.3d 123, 130 (1st Cir. 2015) (“Although the judge need not make formal findings of fact or write an opinion, his conclusion that the confession is voluntary must appear from the record with unmistakable clarity.” (quoting Sims, 385 U.S. at 544, 87 S.Ct. 639)). But, as Phillipos identifies no way in which the timing of the District Court’s voluntariness determination affected his substantial rights, we agree with the government that there is no plain error. See Duarte, 246 F.3d at 60.

Phillipos argues otherwise on the ground that the late timing of the volun-tariness determination interfered with his ability to make his case for suppressing the confession pre-trial, as he contends that it would have been easier for him to make his case for suppression at that time. But Phillipos did have the chance to make that pre-trial case. He simply failed at that time to establish any factual dispute with the government’s account. Thus, the fact that the District Court made only a preliminary voluntariness determination prior to the start of the trial did not prejudice Phillipos. Accordingly, this version of his challenge concerning the use of the confession at trial also fails.

II.

Phillipos next contends that the District Court erred by excluding testimony from Phillipos’s proposed expert on false confessions, Dr. Richard Leo, without first conducting a hearing under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), as to whether Dr. Leo’s testimony qualified as expert testimony. We do not agree.

Daubert establishes that before admitting expert testimony, the trial court must fulfill its “gatekeeping role” by making an independent determination that the expert’s proffered scientific knowledge is both reliable and relevant. 509 U.S. at 597, 113 S.Ct. 2786. Daubert.also explains that the reliability determination “entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” Id. at 592-93, 113 S.Ct. 2786.

Phillipos contends that such an assessment may be made only after a hearing. There is, however, no such requirement. Phillipos identifies no precedent that supports his view. And we have made clear that “[tjhere is no particular procedure that the trial court is required to follow in executing its gatekeeping function under Daubert.” Smith v. Jenkins, 732 F.3d 51, 64 (1st Cir. 2013) (internal quotation marks and citation omitted); see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (affirming district court’s Daubert inquiry where the court did not hold a hearing because “[tjhe trial court must have the same kind of latitude in deciding how to test an expert’s reliability ... as it enjoys when it decides whether or not that expert’s relevant testimony is reliable” (emphasis in original)); United States v. Nichols, 169 F.3d 1255, 1262-64 (10th Cir. 1999) (a district court has discretion not to hold a pretrial evidentiary reliability hearing in carrying out its gatekeeping function); Hopkins v. Dow Corning Corp., 33 F.3d 1116, 1124 (9th Cir. 1994) (“The district court is not required to hold a ... hearing, but rather must merely make a determination as to the proposed expert’s qualifications.”).

The only cases that Phillipos relies on in arguing otherwise are not on point. Each held only that the district court erred in excluding testimony under Daubert because the district court had not considered the Daubert factors at all. See United States v. Hall, 93 F.3d 1337 (7th Cir. 1996); United States v. Belyea, 159 Fed.Appx. 525 (4th Cir. 2005) (per curiam) (unpublished).

The District Court made no such mistake here. It provided both Phillipos and the government multiple opportunities to explain why Dr. Leo’s testimony should or should not be admitted under Daubert. Moreover, when the District Court ulti.mately decided to exclude Dr. Leo’s testimony, the District Court explained that it had given a fair amount of thought to the issue and provided a detailed explanation of why it was excluding the testimony under the Daubert factors. It is thus clear to us that the District Court performed the gatekeeping role that Daubert requires.

Phillipos does appear to contend, separately, that the District Court erred in performing that gatekeeping role by ruling that Dr. Leo’s testimony was insufficiently reliable and thus must be excluded. Because Phillipos preserved this challenge, our review is for abuse of discretion. Smith, 732 F.3d at 64. We find none.

Under Daubert, “[t]o determine whether an expert’s testimony is sufficiently reliable, the trial court considers whether ‘the testimony is based on sufficient facts or data’; whether ‘the testimony is the product of reliable principles and methods’; and whether ‘the expert has reliably applied the principles and methods to the facts of the case.’ ” Id. at 64 (quoting Fed. R. Evid. 702(b-d)). The trial court may also consider other factors, “including but not limited to the verifiability of the expert’s theory or technique, the error rate inherent therein, whether the theory or technique has been published and/or subjected to peer review, and its level of acceptance within the scientific community.” Samaan v. St. Joseph Hosp., 670 F.3d 21, 31-32 (1st Cir. 2012) (internal quotation marks and citation omitted).

In this case, the District Court considered competing analyses of the reliability of Dr. Leo’s studies and found that there was “no indication that there is a body of reliable material that constitutes understanding in this area,” and that “it would introduce the jury ... to 'a kind of faux science to present Dr. Leo’s testimony.” Whether or not we would reach the same conclusion, the record certainly shows that the one that the District Court reached is reasonable. Cf. People v. Kowalski, 492 Mich. 106, 821 N.W.2d 14, 31-32 (2012) (no abuse of discretion where trial court concluded that Dr. Leo’s testimony relied on “unreliable” sources and used “unreliable methodology” that “resulted in conclusions consistent with Leo’s own preconceived beliefs rather than testable results consistent with an objective, scientific process”); State v. Rafay, 168 Wash.App. 734, 285 P.3d 83, 112 (2012) (no abuse of discretion where “Leo was unable to- testify about any meaningful correlation between specific interrogation methods and false confessions or provide any method for the trier of fact to analyze the effect of the general concepts on the reliability of the defendants’ confessions”); Vent v. State, 67 P.3d 661, 667-670 (Alaska Ct. App. 2003) (no abuse of discretion where trial court concluded that “there was no way to quantify or test Dr. Leo’s conclusions that certain techniques might lead to false confessions”).

III.

Finally, and most significantly, Phillipos appeals the District Court’s denial of his motion for acquittal. The jury found Philli-pos guilty of two counts of violating 18 U.S.C. § 1001(a)(2), which applies to those who “make[] any materially false, fictitious, or fraudulent statement or representation” to federal authorities.

Specifically, the jury found Phillipos guilty, under Count One of the indictment, of making the following false statements to a federal agent during an interview on April 20, 2013: (1) Phillipos did not remember going to Tsarnaev’s dormitory room on the evening of April 18; and (2) Phillipos went to the room with Dias Kadyrbayev and Azamat Tazhayakov, two friends of his and Tsarnaev’s from college, on the evening of April 18, but no one entered the room.

The jury also found Phillipos guilty, under Count Two of the indictment, of making the following three false statements during an April 25, 2013 interview with a federal agent: (1) Phillipos had only entered Tsarnaev’s dormitory room on one occasion on April 18, which was sometime in the afternoon when he spoke to Tsar-naev for approximately ten minutes; (2) neither Phillipos, Kadyrbayev, or Tazhaya-kov took a backpack from Tsarnaev’s room on the evening of April 18; and (3) Philli-pos was nbt aware of Kadyrbayev or Ta-zhayakov removing anything from Tsar-naev’s room on the evening of April 18.

On appeal, Phillipos does not contest the falsity of these statements. Instead, he makes three separate arguments as to why the denial of his motion for acquittal must be reversed. First, he contends that there was insufficient evidence to support a finding that these statements, even though false, were ones to which section 1001 applies. Second, he contends that there was insufficient evidence to support a finding that he made the statements “knowingly and willfully.” Third, he contends that, as applied to his statements, the statute is unconstitutionally vague.

Reviewing the denial of Phillipos’s motion for acquittal de novo, eschewing credibility judgments, and drawing all reasonable inferences in favor of the verdict, see United States v. Mardirosian, 602 F.3d 1, 7 (1st Cir. 2010), we conclude that a rational jury could have found beyond a reasonable doubt that section 1001 encompassed statements in each count for which Phillipos was convicted and that Phillipos made these statements knowingly and willfully. We also reject Phillipos’s constitutional vagueness challenge.

A.

Phillipos relies on two separate arguments in contending that the record does not suffice to show that the five false statements at issue are of the type which violate section 1001. We reject both.

1.

Phillipos first argues that the evidence at trial did not suffice to show that his statements were “material,” as section 1001 requires. In rejecting this aspect of Phillipos’s challenge, we base our analysis on our decision in United States v. Mehanna, 735 F.3d 32 (1st Cir. 2014), cert. denied, — U.S. -, 135 S.Ct. 49, 190 L.Ed.2d 29 (2014).

There, a jury had convicted the defendant, Tarek Mehanna, of violating section 1001 by making false statements in connection with an ongoing terrorism investigation to the FBI during informal interviews not unlike the ones that are at issue here. 735 F.3d at 41-42. The statements concerned the whereabouts of one of Me-hanna’s friends, Daniel Maldonado. Id. When FBI agents asked Mehanna when he had last heard from Maldonado, Me-hanna falsely told the agents that he had last heard from Maldonado two weeks earlier and that Maldonado was living in Egypt. Id. at 54. In fact, however, Mehan-na had spoken to Maldonado that week and was aware that Maldonado was in Somalia training for violent jihad. Id

On appeal, Mehanna argued that no reasonable jury could find that his false statements were material, because the agents knew the answers to their questions even before they asked them, such that Mehan-na’s false statements did not in fact mislead them. Id We rejected that argument. Id. at 54-55. We held that to be material, a false statement “need not actually have influenced the governmental function,” id. at 54, but rather need only be of the kind that “could have provoked governmental action,” id (quoting United States v. Sebaggala, 256 F.3d 59, 65 (1st Cir. 2001)). We explained that “the proper inquiry is not whether the tendency to influence bears upon a particular aspect of the investigation but, rather, whether it would bear upon the investigation in the abstract or in the normal course.” Id.

Applying that standard, we then concluded that a jury reasonably could find that Mehanna’s statements about Maldonado “had a natural tendency to influence an FBI investigation into terrorism.” Id. at 55. In setting forth this conclusion, we explained that the record supported a jury’s finding that “the defendant was plainly attempting to obscure both Maldonado’s participation in terrorist endeavors and the telephone call in which he and Maldonado had discussed jihad and terrorist training,” and that “the defendant’s mendacity was undertaken for the purpose of misdirecting the ongoing FBI investigation.” Id.

Given Mehanna, we have little difficulty rejecting Phillipos’s contention that the evidence is insufficient to support Phillipos’s convictions under both of the false statement counts in the indictment. The jury found Phillipos guilty, under both counts of the indictment, of making false statements that are akin to the statements we found material in Mehanna. See, e.g., United States v. Natelli, 527 F.2d 311, 324 (2d Cir. 1975) (recognizing that where a single count of an indictment charges a defendant with multiple false statements, jury can convict provided that it unanimously agrees defendant was guilty of making at least one of the false statements charged); United States v. Duncan, 850 F.2d 1104, 1105 (6th Cir. 1988) (same), overruled on other grounds by Schad v. Arizona, 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991); United States v. Mangieri, 694 F.2d 1270, 1279-81 (D.C. Cir. 1982) (same); United States v. Jessee, 605 F.2d 430, 431 (9th Cir. 1979) (per curiam) (same).

Specifically, the jury found Phillipos guilty under Count One for stating, on April 20, that, when he returned to the door of Tsarnaev’s dormitory room on April 18 at approximately 10:00 P.M. with Kadyrbayev and Tazhayakov, no one entered the room. And the jury found Philli-pos guilty under Count Two for the following statements on April 25: that Phillipos was not aware of Kadyrbayev or Tazhaya-kov taking anything from Tsarnaev’s dormitory room on the evening of April 18; and that neither he nor Kadyrbayev or Tazhayakov took a backpack from Tsar-naev’s dormitory room on the evening of April 18.

These statements were made in the midst of a federal terrorism investigation. And they provided false information about whether Phillipos and his compatriots entered the bombing suspect’s dormitory room soon after the deadly bombing, went into the suspect’s backpack, and left the room with evidence in tow. Thus, like the statements in Mehanna, these statements by Phillipos could reasonably be deemed to have been intended to obscure the potentially unlawful activities of the defendant’s friends from law enforcement and thereby to frustrate.an ongoing terrorism investigation. See Mehanna, 735 F.3d at 55 (“During the critical interview, the defendant was plainly attempting to obscure both Maldonado’s participation in terrorist endeavors and the telephone call in which he and Maldonado had discussed jihad and terrorist training. The misinformation imparted by the defendant thus had a natural propensity to influence an FBI investigation into terrorist activity.”).

To be sure, other individuals had given law enforcement information about the backpack. Phillipos thus contends that law enforcement already knew the information that his false statements obscured. Mehan-na makes clear, however, that such knowledge on the part of law enforcement is of no moment in determining whether false statements are material. What matters is whether the statement in question would be material to an investigation in the normal course, not whether the statement was actually material to the particular investigation in fact. And, here, a jury could reasonably find that Phillipos’s statements deprived the agents of important corroborating information regarding where, when, and by whom key evidence had been removed.

We recognize that Phillipos contends that Mehanna is distinguishable because the investigation into the Boston Marathon bombing was already complete at the time Phillipos made the false statements. But, as the government rightly notes, it is impossible to conclude that a jury could not reasonably find otherwise. Even though Tsarnaev had been apprehended at the time of Phillipos’s interviews, the government still had an interest in continuing to investigate the matter, given the significant public safety interest in determining who might have been involved in the bombing and the government’s need to develop the case for prosecution. Thus, Phillipos’s materiality-based sufficiency challenge fails.

2.

Phillipos also contends that his motion for acquittal was wrongly denied — Mehan-na’s materiality holding notwithstanding— because none of the false statements at issue are “the type of statements and conduct that [C]ongress intended to criminalize.” To support this contention, Phillipos relies on a line of cases that had established, for a time, what was known as the “exculpatory no” doctrine.

When the cases in that line were decided, the version of section 1001 that was in place prohibited the making of “any false, fictitious or fraudulent statements” in certain government matters. See Brogan v. United States, 522 U.S. 398, 400, 118 S.Ct. 805, 139 L.Ed.2d 830 (1998) (quoting 18 U.S.C. § 1001 (1988 ed.)). The “exculpatory no” doctrine interpreted that version of section 1001, despite its seemingly all-encompassing sweep, not to apply to a statement that a defendant made to a law enforcement officer during an informal interview in which the defendant simply denied engaging in wrongdoing. See, e.g., United States v. Chevoor, 526 F.2d 178, 182 (1st Cir. 1975) (holding that statements that “fall within the ‘exculpatory no’ category of responses ... are outside the scope of ‘statements’ within the meaning of the statute”).

Phillipos contends that “Chevoor’s scenario is nearly identical” to his own, because, like the defendant in. Chevoor, Phil-lipos “did not fabricate a misleading story ... or send the [federal] agents on a wild goose chase.” Instead, he merely “gave negative, oral responses to the questioning.” As the government points out, however, the “exculpatory no” doctrine that we adopted in Chevoor was overturned by the Supreme Court in Brogan, 522 U.S. 398, 118 S.Ct. 805. In Brogan, the Supreme Court held that, by its plain terms, the earlier version of section 1001 “cover[ed] ‘any’ false statement — that is, a false statement ‘of whatever kind,’ ” and “[t]he word ‘no’ in response to a question assuredly makes a ‘statement.’ ” Id. at 400-01, 118 S.Ct. 805 (citation omitted). As such, the Court held that the plain text of the statute as it then existed applied to “exculpatory no” statements, even though, as Justice Ginsburg observed, “[i]t is doubtful Congress intended § 1001 to cast so large a net.” Id at 412, 118 S.Ct. 805 (Ginsburg, J., concurring in the judgment). .

Phillipos’s only answer is to suggest that Brogan overruled only “portions” of Chev-oor, and that Chevoor’s holding regarding the “exculpatory no” doctrine remains binding regardless. This contention, of course, has no merit, given that Chevoor’s construction of the- statute was explicitly ■ rejected. And Phillipos develops no argument as to how some version of the “exculpatory no” lives on in the current version of section 1001.

In any event, for the same reasons that a jury could reasonably find material the statements by Phillipos that we discussed above about who did or did not enter the lead suspect’s dormitory room and take evidence from his backpack shortly after the bombing occurred, a jury also could reasonably reject Phillipos’s contention that such statements were not meant “to fabricate a story or send agents on a wild goose chase.” See Mehanna, 735 F.3d at 55 (“[W]here a defendant’s statements are intended to misdirect government investigators, they may satisfy the materiality requirement of section 1001 even if they stand no chance of accomplishing their objective.”). Thus, this sufficiency challenge fails as well.

B.

Phillipos next trains his focus on the fact that section 1001 applies to only those false statements and representations that an individual makes knowingly and willfully. 18 U.S.C. § 1001(a). Phillipos contends that, even if he violated the statute, the government failed to present sufficient evidence that he did so with the requisite mens rea. We disagree.

The Supreme Court has made clear that “in order to establish a ‘willful’ violation of a statute, ‘the Government must prove that the defendant acted with knowledge that his conduct was unlawful.’ ” Bryan v. United States, 524 U.S. 184, 191-92, 118 S.Ct. 1939, 141 L.Ed.2d 197 (quoting Ratzlaf v. United States, 510 U.S. 135, 137, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994)). But “[willfulness can rarely be proven by direct evidence, since it is a state of mind.” United States v. Bank of New Eng., N.A., 821 F.2d 844, 854 (1st Cir. 1987). As such, willfulness is “usually established by drawing reasonable inferences from available facts.” Id.

With respect to the false statements in Count Two, which Phillipos made during the April 25 interview, there would have been no need for the jury to infer much. The interviewing agent testified at trial that he affirmatively told Phillipos that Phillipos could be prosecuted for making false statements. This direct evidence suffices to support a jury’s finding that section 1001’s willfulness requirement had been met.

The government did not present similarly direct evidence with respect to the statements at issue in Count One, which Phillipos made during the April 20 interview. But, the government notes, by April 20 — five days after the Boston Marathon bombing occurred — Phillipos, along with his friends, had become the focus of intense law enforcement interest due to their relationship with Tsarnaev. And, Phillipos had already been interviewed by law enforcement the previous day, on April 19.

A jury could reasonably infer that someone who potentially had information about the removal and destruction of evidence in a historic terrorism investigation into a deadly attack on a symbolic event, and who was interviewed by federal law enforcement agents twice, would know that it was unlawful to make false statements to investigators about what he knew. The reasonableness of this inference is further bolstered by the fact that, on April 20, Phillipos’s interviewer told him that “now [was] the time to tell [the government]” what he knew. The interviewer also asked whether “this w^s the story he want[ed] to go with” and gave Phillipos the opportunity to “correct” it. We thus reject this challenge.

C.

Finally, Phillipos contends that section 1001 is unconstitutionally vague as applied to the five false statements that he was convicted of making. He argues that, by virtue of the express materiality requirement that section 1001 now contains, it is not clear which statements fall under section 1001 and which do not. But this argument, too, is unavailing.

A criminal statute is void for vagueness only if it “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.” United States v. Williams, 553 U.S. 285, 304, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008). Applying section 1001’s materiality standard to Phillipos’s statements raises no such concerns. A criminal statute is not unconstitutionally vague merely because it sets forth a standard for determining liability that is not mathematically precise. And here, the challenged standard — “materiality”—is a familiar one. Indeed, “[i]ts use in the context of false statements to public officials goes back as far as Lord Coke” in 1680. Kungys v. United States, 485 U.S. 759, 769, 108 S.Ct. 1537, 99 L.Ed.2d 839 (1987).

Moreover, Mehanna laid out a test for determining when statements are material under section 1001 that used the same language as the test that had been set forth decades before in Kungys, which itself tracked the “uniform understanding of the ‘materiality’ concept” that “federal courts have long displayed.” See Kungys, 485 U.S. at 770, 108 S.Ct. 1537. Under that standard, as we have explained, the evidence was more than sufficient to permit a reasonable jury to find the materiality requirement was satisfied as to each count. Thus, we reject Phillipos’s as-applied, constitutional vagueness challenge.

IV.

In light of the foregoing, we affirm.

      . At oral argument, Phillipos contended for the first time that there was enough evidence in the record, apart from Phillipos's affidavit, to create a factual dispute regarding the vol-untariness of the confession so as to warrant a pre-trial hearing. Leaving aside the allegations set forth in his affidavit, Phillipos pointed to the evidence otherwise in the record that Phillipos was interviewed from 10:00 A.M. until 3:00 P.M., was interviewed in a small room, and that, before he gave his confession, he was told, among other things, that he had failed the polygraph test and thus would be in trouble. But Phillipos conceded at oral argument that none of these facts were disputed by the government at the time that he moved for the evidentiary hearing. And “[a] hearing is required only if the movant makes a sufficient threshold showing that material facts are in doubt or dispute, and that such facts cannot reliably be resolved on a paper record[ ] ... which, if resolved in his favor, would entitle him to the requested relief.” Staula, 80 F.3d at 603.

      . We note that the "exculpatory no” doctrine was, in many circuits, based on an implied materiality requirement that we — and many of our sister circuits- — read into the earlier version of section 1001. Brogan did away with the doctrine due to the absence of a textual basis for it in an earlier version of section 1001. See Brogan, 522 U.S. at 400, 118 S.Ct. 805 (construing version of section 1001 that applied broadly to “any false, fictitious, or fraudulent statement” (quoting 18 U.S.C. § 1001(a)(2) (1988 ed.))). In 1996, however, Congress added the statute's current materiality requirement for the express purpose of resolving the “conflict among circuits as to whether materiality is an element” of the false statements prohibition. H.R. Rep. No. 104-680, at 8 (1996). Several of our sister circuits have since held, albeit with little analysis, that Brogan precludes application of the "exculpatory no” doctrine under the amended statute, notwithstanding that it contains an express materiality requirement. See, e.g., United States v. Watkins, 691 F.3d 841, 852 (6th Cir. 2012); United States v. Ali, 508 F.3d 136, 153 (3d Cir. 2007).


source: Caselaw Access Project

author: STAHL, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Rafael Humberto Celaya VALENZUELA, Defendant, Appellant.
    No. 16-1009
    United States Court of Appeals, First Circuit.
    February 24, 2017

      Julie K. Connolly, with whom Julie Connolly Law, PLLC was on brief, for appellant.
    Seth R. Aframe, Assistant United States Attorney, with whom Emily Gray Rice, United States Attorney, was on brief for appellee.
    Before HOWARD, Chief Judge, SOUTER, Associate Justice, and STAHL, Circuit Judge.

       Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation.

   STAHL, Circuit Judge.

Beginning in May of 2009, the FBI launched a sting operation, codenamed Operation Dark Water, targeting the Sinaloa Drug Cartel. Undercover agents held themselves out as an organized crime operation, led by an Italian mafia boss who went by the name El Viejo (“the Old Man”), which sought to procure a long-term source of cocaine from the cartel. Among the high-level cartel members eventually ensnared by this investigative web was Rafael Humberto Celaya Valenzuela (“Celaya”), a financial planner and lawyer with close personal ties to the Cartel’s then-leader, Joaquin Guzman-Loera, known more commonly as “El Chapo.” Ce-laya was charged in the District of New Hampshire with conspiracy to distribute and possess with intent to distribute controlled substances, in violation of 21 U.S.C. § 846. He was convicted following a five-day jury trial and sentenced to 210 months imprisonment, and now appeals both his conviction and sentence. Finding no merit to his various claims, we AFFIRM.

I. Facts & Background

Celaya first came to the attention of law enforcement in August 2010, when he accompanied Jesus Manuel Gutierrez-Guzman (“Guzman”), El Chapo’s cousin and close confidant, and other coconspirators to a meeting with the undercover agents (the “FBI Organization”) in Hallandale, Florida. At that meeting, Celaya was introduced as a lawyer and financial planner. The parties discussed how their partnership could move forward, with the FBI Organization expressing a preference for using seaports on the east coast of the United States as a transit point for shipments of cocaine from South America to Europe. The FBI represented to the Cha-po Organization that because of their contacts in the longshoremens’ unions at the ports, they could ensure smooth entry into and out of the ports, while avoiding detection by customs authorities. They suggested this method would be advantageous because shipments sent directly from South America to Europe would be more likely to raise suspicion. The specific ports discussed, and subsequently included on code sheets drawn up by the Chapo Organization for use in future communications, were Philadelphia, Newark, Providence, and Portsmouth, New Hampshire.

Celaya made statements at this meeting that it was his understanding that the FBI Organization had contacts in the stevedores’ unions that would allow the drugs to be repackaged and sent on to Europe. He reiterated that the Chapo Organization did not have a preference for a particular port, but would simply “prefer the port that you say is the safest one for you.” When Guzman expressed concerns that “the gringos are really fucking with everyone about coming into the United States,” the defendant sought to allay these fears by suggesting that “if the product is sent directly [to] Europe it will have a red flag on it already ... Once it’s brought in [to U.S. ports], relabeled and sent ... [i]t practically goes preapproved.” The defendant added that using U.S. ports, where the FBI Organization had local dockworkers in on the scheme, would be a “green light.” The following day, the parties met again to discuss methods for laundering the proceeds from the drug sales. Celaya was a central player in these discussions, apparently because of his legal and financial expertise.

On April 21, 2011, Guzman met with El Viejo, the FBI agent purporting to be the head of the crime organization, at a hotel in New Hampshire near Portsmouth. The purpose of the meeting was to discuss the first shipment on which the two sides would be cooperating, which would originate in Ecuador and be shipped to Spain. While Guzman explained that it was El Chapo’s preference for this first shipment to proceed directly from Ecuador to Spain without stopping in any U.S. ports, he said that the Chapo Organization was open to “modifying” the delivery method in the future.

Also in that meeting, El Viejo told Guzman that the cocaine provided by the Cha-po Organization would be distributed in Europe and the United States, because he had many clients that needed the drugs, including in Florida and New Hampshire. El Viejo told Guzman that “everybody thinks I’m a legitimate businessman,” adding that “I’m like the American Donald Trump ... except I don’t have the hair” and “there is going to be an explosion of business” once El Viejo could obtain El Chapo’s “high quality product.” Guzman replied that he understood that distribution in the United States was one of El Viejo’s objectives. Guzman also made reference to the defendant, telling El Viejo that Celaya was a trusted member of the Chapo Organization and that he had personally met with El Chapo and “explained everything to him.” Other meetings followed, including one in Boston in August 2011 at which the defendant was present.

Initially, a series of delays, including the Chapo Organization’s desire to run several test shipments without contraband, prevented the actual shipment of cocaine to Europe. In order to maintain the goodwill of the FBI Organization, on June 7, 2012, Guzman arranged for the delivery of heroin to the FBI Organization in Detroit, Michigan. In July 2012, the Chapo Organization finally sent 346 kilograms of cocaine from Brazil to Algeciras, Spain, bypassing U.S. ports. The following month, Guzman traveled to Spain to meet with El Viejo. At that meeting, El Viejo reiterated that the United States would be one of the destinations for the cocaine shipped by the Chapo Organization in the future, to which Guzman replied, ‘Tes, sir.”

Shortly after this meeting, Spanish authorities placed Celaya under arrest. After Celaya waived his Miranda rights, the FBI then interviewed him. In that interview, Celaya admitted that he had conspired to distribute cocaine, and that in March 2011, after one of the initial meetings, he had travelled to Mexico to personally meet with El Chapo. At that meeting, he told El Chapo that he believed the FBI Organization was a real drug cartel and that El Chapo should proceed with the plan to supply it with cocaine.

Celaya was indicted in the District of New Hampshire and charged with conspiring, between March 2009 and September 2012, to distribute and possess with intent to distribute a quantity of heroin, methamphetamine, and 1,000 kilograms or more of cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1). The ease proceeded to a jury trial. At the close of the government’s case-in-chief, the defendant moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29, claiming that there was insufficient evidence that he had participated in the conspiracy, and that there was insufficient evidence of venue. More specifically, he argued that at the time the actual shipments took place, he “was no longer in the picture” and was not involved in the conspiracy. On the venue point, he argued that the only overt act in furtherance of the conspiracy that occurred in New Hampshire was the Portsmouth meeting, and since it was an FBI source who drove Guzman from Boston’s Logan Airport to the meeting, the government had “manufactured” venue in New Hampshire.

The district court denied this motion, and after a five-day trial, the jury returned a guilty verdict against Celaya. Six months after the verdict, Celaya filed a motion to reconsider the denial of his earlier Rule 29 motion, raising for the first time the argument that the overarching conspiracy did not have a sufficient jurisdictional nexus to the United States, and that the government had failed to present any evidence that Celaya knew that an object of the conspiracy was to possess or distribute controlled substances in the United States. The district court denied this motion as untimely, but also concluded that the defendant’s argument on jurisdictional nexus would have failed on the merits in any event since the evidence introduced at trial was sufficient for a jury to conclude that the conspiracy envisioned the distribution of drugs into the United States and the use of seaports on the east coast of the United States as transit points on the way to Europe, and that overt acts in furtherance of the conspiracy took place on U.S. soil.

At sentencing, the district court calculated that the defendant’s criminal conduct warranted a total offense level of 38 (largely as a result of the weight of drugs attributed to the conspiracy) and a criminal history category of I, which yielded a guideline sentence range of 235 to 293 months imprisonment. The district court rejected a defense counsel request for a minimal/minor role downward adjustment under U.S.S.G. § 3B1.2, concluding that the defendant was a “top level negotiator ... with access to the highest levels of the cartel.” The court ultimately did allow a minor downward variance to bring Cela-ya’s sentence in line with that of Guzman (who had pleaded guilty), eventually settling on 210 months’ imprisonment. This appeal followed.

II. Discussion

On appeal, Celaya challenges three aspects of the district court’s ruling below. First, he argues that the government failed to prove that the conspiracy in question had a “jurisdictional nexus” to the United States. Second, he argues that the government “manufactured” venue in the District of New Hampshire by driving Guzman, a co-conspirator, from Boston’s Logan Airport across the border into New Hampshire for a meeting. As a derivative of those arguments, Celaya contends that the district 'court’s failure to instruct the jury on jurisdictional nexus and manufactured venue was in error. Third, he argues that his 210-month prison sentence was substantively unreasonable. We address, and dispose of, each of these arguments seriatim.

A. Jurisdictional Nexus

i Standard of Review

The first group of challenges that Celaya presents concerns the sufficiency of evidence against him at trial and the district court’s denial of both his Rule 29 Motion for a Judgment of Acquittal and his Motion for Reconsideration of his Motion for Judgment of Acquittal. The Court of Appeals reviews the denial of a motion to reconsider for an abuse of discretion. See United States v. Allen, 573 F.3d 42, 53 (1st Cir. 2009). However, when a Rule 29 motion (or a Motion to Reconsider a previous Rule 29 motion) presents a new argument not previously presented to the district court, appellate review is more circumscribed. See United States v. Castro-Lara, 970 F.2d 976, 980 n.2 (1st Cir. 1992) (“Where a Rule 29 motion is not preserved for appeal, the defendant forfeits the benefit of the customary standard of review, thereby negating any claim of evi-dentiary insufficiency unless affirming the conviction would work a ‘clear and gross injustice.’ ”) (quoting United States v. Cheung, 836 F.2d 729, 730 n.1 (1st Cir. 1988)).

We find that the “jurisdictional nexus” argument was not timely raised in the district court, either at trial or in Celaya’s original Rule 29 motion. The only arguments made by the defendant in his original Rule 29 motion were that (1) he was not actually a member of the conspiracy, and (2) there was insufficient evidence of venue in New Hampshire. At no point did he raise the objection that the alleged conspiracy was entirely extraterritorial in nature and thus insufficient, as a matter of law, to convict him for a violation of 21 U.S.C. § 846 if the jury found that he was a member of the conspiracy. In fact, in his Rule 29 Motion, Celaya conceded that “there was substantial evidence introduced by the Government that could reasonably be understood by the jury to show that the Sinaloan cartel wanted to expand its drug trafficking network into Europe, and perhaps the United States.” After conceding this point, however, the defense argued that “the evidence failed to demonstrate that the cartel actually agreed to include Celaya in that conspiracy.”

Six months later, in his Motion for Reconsideration, Celaya switched gears, arguing that while the jury may have found that he was a member of the conspiracy, the evidence adduced at trial “can only be reasonably and fairly understood as establishing that the [sic] Celaya and his cocon-spirators agreed to the common goal of shipping cocaine from South America to Europe” and nothing in the record .“remotely shows, or even suggests, that Cela-ya knowingly agreed to participate in a conspiracy to distribute or possess with intent to distribute illegal drugs in New Hampshire or anywhere else in the United States, so as to violate §§ 841(a) and 846.” Indeed, at oral argument before the district court accompanying their motion for reconsideration, defense counsel admitted that this was a new argument that they had not previously presented to the court.

We have routinely emphasized that a party’s decision to adopt this sort of shifting litigation tactic results in an elevated standard of review. See, e.g., United States v. Marston, 694 F.3d 131, 134 (1st Cir. 2012) (“[W]hen a defendant chooses only to give specific grounds for a Rule 29 motion, all grounds not specified are considered waived and are reviewed under [the] less forgiving ‘clear and gross injustice’ standard.”) (quoting United States v. Upham, 168 F.3d 532, 537 (1st Cir. 1999), cert. denied, 527 U.S. 1011, 119 S.Ct. 2353, 144 L.Ed.2d 249 (1999)); United States v. Foley, 783 F.3d 7, 12 (1st Cir. 2015) (stating that when a “sufficiency challenge [is] un-preserved,” the appeals court “review[s] for clear and gross injustice only”).

Because a Motion for Reconsideration of the denial of a previous Rule 29 motion is not the appropriate time to raise new, much less contradictory, arguments, we will affirm the district court’s ruling unless doing so would produce a “clear and gross injustice.” Cheung, 836 F.2d at 730 n.1. Under this “stringent standard, which we have described as a particularly exacting variant of plain error review,” Foley, 783 F.3d at 12, the “already high bar for plain error becomes even higher.” United States v. Acosta-Colón, 741 F.3d 179, 192-93 (1st Cir. 2013). Even to prevail under-the more lenient plain error review, a defendant must show (1) that an error occurred, (2) which was clear or obvious, (3) that affected the defendant’s substantial rights, and (4) seriously impaired the fairness, integrity, or public reputation of the judicial proceedings. United States v. Flemmi, 402 F.3d 79, 86 (1st Cir. 2005). As we explain below, there was no error in finding that an adequate jurisdictional nexus existed between the conspiratorial agreement and objectives and the United States, and Celaya therefore cannot prevail under plain error review, much less under the more exacting “clear and gross injustice” standard.

ii. Jurisdictional Nexus

The question of what is required to prove a sufficient jurisdictional nexus with the United States to prosecute a § 846 conspiracy is an issue that has not been squarely addressed by this Court. However, both parties agree that some jurisdictional nexus is required. This conclusion is bolstered by the general presumption that Congress does not legislate with extraterritorial effect unless clearly specified. Finally, this Court has held that § 841, which covers distribution or possession with the intent to distribute controlled substances, does not cover purely extraterritorial . crimes. See United States v. Hayes, 653 F.2d 8, 15 (1st Cir. 1981); see also United States v. McKenzie, 818 F.2d 115, 118 (1st Cir. 1987) (holding that § 841 is triggered if the defendant intended that the controlled substances be distributed in the United States, even if no actual distribution took place, or if the defendant possessed the controlled substances in the United States with the intent to distribute the drugs abroad). Because a conspiracy under § 846 is an agreement to violate § 841, it stands to reason that the same jurisdictional requirement needs to be met. However, in this case, several specific factors, including the meeting in New Hampshire between Guzman and El Viejo, the discussion of using eastern seaboard ports for future trafficking, and the shipment of heroin and methamphetamine to Detroit in June 2012, combine to clearly satisfy the required jurisdictional nexus.

Celaya first contends that the meeting in New Hampshire between Guzman and El Viejo, the undercover FBI agent posing as a mafia boss, is not enough evidence to establish a jurisdictional tie to the United States. Celaya makes the same argument with respect to the meetings in Florida and Boston that he himself attended. In support of this argument, he cites United States v. Lopez-Vanegas, 493 F.3d 1305 (11th Cir. 2007), for the proposition that meetings inside the United States are not sufficient to establish a jurisdictional nexus when “the object of the conspiracy was to possess controlled substances outside the United States with the intent to distribute outside the United States.” Id. at 1313. This is true enough, and the government in this case concedes that mere meetings in the United States to discuss the details of an entirely international drug distribution scheme would not be sufficient.

However, the problem for Celaya with this argument is twofold. First, there was other evidence suggesting that members of the conspiracy, including Guzman, saw distribution in the United States as one of the objects of the conspiracy. In a meeting, El Viejo informed Guzman that their goal in acquiring cocaine from the Chapo Organization was to distribute the drugs in the United States, among other places, and Guzman responded affirmatively that he understood this. Celaya protests that it was the government agent, not Guzman, who discussed plans to distribute drugs in the United States. However, this is a distinction without a difference when dealing with conspiracy • liability, as conspirators who have previously entered into a criminal agreement among themselves, in concert with government agents, can be convicted based on the distribution plans articulated by government agents if they fail to object to those plans. See United States v. Giry, 818 F.2d 120, 125 (1st Cir. 1987) (finding that even though the two defendants’ role was limited to importing cocaine from Colombia to the West Indies, liability still attached because they “agreed to arrange and carry out the cocaine sale after being told by agents ... of the lat-ters’ plans to import the cocaine for distribution in the New York area”).

Second, Celaya’s argument that he did not know about the New Hampshire meeting fails because there is no governing law in this circuit which suggests that Celaya’s alleged lack of knowledge of the actions of his co-conspirator is a defense to liability. Indeed, one out-of-circuit case appears to suggest the opposite. See United States v. Manuel, 371 F.Supp.2d 404, 409 (S.D.N.Y. 2005) (holding that where a crime is within the jurisdiction of the United States, it is not necessary that the defendant know the facts that establish jurisdiction). Such a rule fits with the broader principles of conspiracy liability enforced by courts, including the First Circuit. See United States v. Barnes, 244 F.3d 172, 176 (1st Cir. 2001) (noting that “[ojnce a participant knowingly helps to initiate the agreement and set it in motion, he assumes conspirator’s responsibility for the foreseeable actions of his confederates within the scope of the conspiratorial agreement, whether or not he is aware of precisely what steps they plan to take to accomplish the agreed goals”).

Two more points undermine Celaya’s argument. First, Guzman, one of his co-eon-spiratprs and a close cousin and lieutenant of El Chapo, arranged for a delivery of drugs (heroin and methamphetamine) to Detroit in June 2012 in order to maintain the goodwill of the FBI Organization and to make amends for having failed to disclose that one of the first shipments to Spain was a test run that did not contain any actual drugs. It is immaterial that Celaya did not “explicitly or tacitly agree[ ] to the delivery of drugs to Detroit,” as he argues in his brief. The discussions between the Chapo Organization and the FBI Organization were sufficient to find that members of the Chapo Organization entered into a major, transnational conspiracy in which they agreed to regularly supply the FBI Organization with drugs for distribution primarily in Europe, but also the United States. The Detroit shipment was designed to build goodwill and maintain the relationship in light of frustrations on the part of the FBI Organization with some of the delays and expense connected with the initial cocaine shipment to Spain. It was not, therefore, a one-off event, nor was it a separate conspiratorial agreement. Rather, the Detroit shipment was part of the ongoing conspiracy. There was no gross injustice in finding that Cela-ya was a part of this conspiracy and that the Detroit shipment, when coupled with Guzman’s knowledge that some of the drugs were to be delivered into the United States and with the meeting in New Hampshire to advance these plans, was sufScient to establish the required jurisdictional nexus to the United States.

Second, the jury reasonably could have found that the parties continued to contemplate the use of seaports on the east coast of the United States, even if the one shipment of cocaine to Spain which actually took place did not proceed via a U.S. port. At meetings in Madrid, Spain, in March 2011, a representative of the Sina-loa Cartel, Jose Locheo del Rio, expressed concern about the use of American ports when the drugs originated in Ecuador (as they were scheduled to in the initial shipment), because this would mean the drugs would have to travel through the Panama Canal. In particular, Del Rio expressed concern that the use of the Panama Canal would require a transfer by train which could render the drugs susceptible to hijackings and also to law enforcement inter-dictions. However, representatives from the Chapo Organization also emphasized at various points during their meetings that the drugs would originate in various South American countries, including some along the Atlantic Ocean, and they never definitively ruled out the use of U.S. ports as a transit point that might reduce law enforcement suspicion. Therefore, a jury could reasonably have found that the use of eastern seaports in the continental United States continued to be contemplated by the parties for future shipments, as agreed to during the August 2010 Florida meetings.

In conclusion, unlike in Lopez-Vanegas, there was sufficient evidence for a jury to find that this was not an entirely “international” drug distribution scheme which, but for the meetings in the United States, would have had no connection to the country. As previously discussed, Celaya himself conceded in his Rule 29 motion that “there was substantial evidence introduced by the Government that could reasonably be understood by the jury to show that the Sinaloan cartel wanted to expand its drug trafficking network into Europe, and perhaps the United States.”

Our holding does not rest on any individual factor identified above, rather, taken together, we think they clearly meet the jurisdictional nexus requirement, and the district court’s decision to deny Cela-ya’s Rule 29 Motion and his Motion for Reconsideration did not result in a “clear and gross injustice.” Finally, because .we have found that there was more than sufficient evidence for a jury to find that the conspiracy both involved the intent to distribute controlled substances in the United States and, on one occasion, did include such a shipment, we find no error in the district court’s failure to specifically instruct the jury on jurisdictional nexus.

B. Venue

Celaya’s second argument for acquittal is that there was insufficient evidence that the conspiracy was “begun, continued or completed” in the District of New Hampshire, and thus venue was improper. Because this argument was included in the defendant’s original Rule 29 motion, we undertake de novo review. See, e.g., Marston, 694 F.3d at 134. With respect to sufficiency of venue, the government must prove venue by a preponderance of the evidence. United States v. Scott, 270 F.3d 30, 34 (1st Cir. 2001).

According to Celaya, the three pieces of evidence offered by the government to establish venue in New Hampshire, (i) including Portsmouth on the list of possible transit ports for shipments; (ii) representing that El Viejo would distribute his cocaine in New Hampshire, among other places; and (iii) bringing Guzman to New Hampshire from Logan Airport to meet with El Viejo, were all insufficient. This argument fails because an overt act in furtherance of the conspiracy, the meeting between Guzman and El Viejo, clearly took place in Portsmouth, NH. At that meeting, Guzman and El Viejo discussed detailed plans for the Chapo Organization’s role in providing cocaine to the FBI Organization. This discussion represented a key part of the planning process after the various members of the Chapo Organization had reached an agreement among themselves to provide cocaine to the FBI Organization. Since Guzman was a clear co-conspirator of Celaya, it is immaterial that Celaya himself was not present at this meeting. See United States v. Santiago, 83 F.3d 20, 25 (1st Cir. 1996) (“[I]n a conspiracy case venue is proper in any district in which an act in furtherance of the charged conspiracy has taken place, even if a particular coconspirator was not himself physically present in that district.”)

Celaya’s fallback argument is that because it was a government agent who drove Guzman from Boston’s Logan Airport to the Portsmouth meeting, the government “manufactured” venue in New Hampshire, and therefore this fails as a matter of law. However, the First Circuit has never accepted the existence of a “manufactured venue” doctrine, and most circuits have rejected the concept of manufactured venue or “venue entrapment.” See, e.g., United States v. Rodríguez-Rodríguez, 453 F.3d 458, 462 (7th Cir. 2006) (“[Government] agents may influence where the federal crime occurs, and thus where venue lies, as well as whether the crime comes under federal rather than state law. The entrapment doctrine protects the defendant against manufactured offenses (unless the defendant is predisposed); it does not limit venue.”); see also United States v. Al-Talib, 55 F.3d 923, 929 (4th Cir. 1995) (“There is no such thing as ‘manufactured venue’ or Venue entrapment.’ ”); United States v. Spriggs, 102 F.3d 1245, 1250 (D.C. Cir. 1996) (“[W]e are uncertain whether there is such a thing as ‘venue entrapment.’ It is a little hard to conceive of a person predisposed to commit a federal crime — but not in some specific district.”).

The better rule appears to be that to the extent that prosecutorial forum shopping “is a concern in a given case, it is more appropriately handled at the trial level by a transfer to a more reasonable forum” under Federal Rule of Criminal Procedure 21. Andrews v. United States, 817 F.2d 1277, 1279-80 (7th Cir. 1987). Indeed, it is hard to understand what the underlying logic for “venue entrapment” would be, since entrapment in criminal law is designed to avoid punishment for “an ‘otherwise innocent’ person whose ‘alleged offense’ is ‘the product of the creative activity’ of government officials,” United States v. Gendron, 18 F.3d 955, 961 (1st Cir. 1994) (quoting Sorrells v. United States, 287 U.S. 435, 451, 53 S.Ct. 210, 77 L.Ed. 413 (1932)), not to avoid punishment for a defendant involved in a wide-ranging global narcotics conspiracy because government agents drove one of his co-conspirators an hour from Boston to Portsmouth, NH, for a meeting to discuss a planned drug distribution network. The high-level meeting in New Hampshire involving Guzman, a co-conspirator and close confidant of El Chapo — the Sinaloa Cartel’s chief — suggests an even stronger argument for venue than previous acts found sufficient for venue in federal courts, including telephone conversations. See, e.g., United States v. Cordero, 668 F.2d 32, 44 (1st Cir. 1981) (noting that phone calls from defendants outside of Puerto Rico to a coconspirator in Puerto Rico was likely sufficient for venue to lie in Puerto Rico because the offense “continued” in that forum, but finding the appellants’ argument waived in any event).

We therefore join the other circuits in rejecting the manufactured venue doctrine. However, even if such a doctrine were to be available in extreme cases of government misconduct, that would simply not be the case here. The undercover agent drove Guzman from Boston’s Logan Airport to a Portsmouth, NH-area hotel for a meeting (a drive of roughly an hour). We see no reason why the government could not bring its case in an adjacent jurisdiction, when it could have arranged the meeting just a few miles south in Massachusetts and secured venue there without any possible objection.

C. Reasonableness of the Sentence

Celaya’s final argument is that his 210-month prison sentence was unreasonable, on the grounds that the district court erred by failing to give him a downward adjustment for what he claims was a minor role in the conspiracy, and also erred in applying the sentencing factors under 18 U.S.C. § 3558. We are not convinced.

To qualify for a three-level reduction for a minimal/minor role in the offense under U.S.S.G. § 3bl.2(b), a defendant bears the burden of showing that he is less culpable than his confederates and less culpable than “most other miscreants convicted of comparable crimes.” United States v. Montes-Fosse, 824 F.3d 168, 172 (1st Cir. 2016) (quoting United States v. Ortiz-Santiago, 211 F.3d 146, 149 (1st Cir. 2000)). Because “[r]ole-in-the offense determinations are notoriously fact-sensitive,” the district court’s “decision to apply a minor-role reduction is subject to clear error review.” Id. (citing Ortiz-Santiago, 211 F.3d at 148-49).

Here, the district court properly considered whether the reduction was appropriate, and found that it was not. Specifically, the court noted that Celaya was at the negotiating table with the FBI Organization and, in light of his legal and financial background, was a leading voice in discussing the money laundering aspects of the conspiracy. He also admitted to meeting with El Chapo personally in the mountains in Mexico to recommend that the Sinaloa Cartel enter into a partnership with the FBI Organization. We find no reason to conclude that the district court committed plain error in not applying the three-level reduction.

Finally, Celaya argues that his sentence was substantively unreasonable because he received a sentence that was longer than those of his co-conspirators, who received sentences ranging from 60 months to 192 months. The latter sentence was handed down to Guzman, and Celaya contends that it was unreasonable to sentence him to a term of imprisonment that was eighteen months longer than Guzman, who was El Chapo’s right-hand man and “dominated the conspiracy proven at trial” by attending every single meeting with the undercover agents and orchestrating the shipment of drugs to Detroit. This sentencing decision, according to Celaya, resulted in a misapplication of the § 3553(a) factors, which require that a Court “avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6).

This argument fails for two reasons. First, it is not clear from the record that Guzman was necessarily a more central player than Celaya, who met with El Cha-po and was intimately involved m the planning process for the conspiracy. Therefore, the fact that his sentence exceeded that given to Guzman and other co-conspirators may well constitute a “plausible sentencing rationale and a defensible result,” United States v. Rivera-Gonzalez, 626 F.3d 639, 647 (1st Cir. 2010) (quoting United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008)), as required under this court’s standard of review for the substantive reasonableness of a sentence. Secondly, if that is not enough, there was a crucial difference between Celaya and his co-defendants: Cela-ya was the only one who elected not to plead guilty. Therefore, while Guzman and other co-defendants were entitled to a three-level reduction for acceptance of responsibility, Celaya was not. This court “routinely [has] rejected disparity claims” where “complaining defendants ... fail to acknowledge material differences between their own circumstances and those of their more leniently punished confederates.” United States v. Reyes-S'antiago, 804 F.3d 453, 467 (1st Cir. 2015). A decision to proceed to trial, rather than to plead guilty alongside other co-defendants, is a permissible factor that a court may consider in determining a possible sentencing disparity between a defendant and his other co-conspirators. See, e.g., United States v. Ortiz-Islas, 829 F.3d 19, 29 (1st Cir. 2016). For both of the above reasons, Celaya’s claim that the sentence was substantively unreasonable fails.

III. Conclusion

.For the aforementioned reasons, we AFFIRM Celaya’s conviction and sentence.

      . Of course, the conspiratorial agreement was among members of the Chapo Organization, because a defendant cannot be guilty of conspiring to commit crimes with government agents. See, e.g., United States v. Nelson-Rodriguez, 319 F.3d 12, 39 (1st Cir. 2003).

      . THE COURT: As I read this argument, it is not an argument you’ve ever made before you filed this motion; is that right?
      COUNSEL: That's right, your Honor.

      COUNSEL: I think that the papers readily concede that the lawyers did not present this argument to you, so it’s not that we presented it and you missed it. It was that this is a new argument that wasn’t presented before and it would result in a manifest error of law if it were to stand going forward, and therefore we're presenting it to the Court now and giving the Court an opportunity to consider it.

      . In a case decided last June, the Supreme Court clarified its test for deciding whether a statute applies extraterritorially. See RJR Nabisco, Inc, v. European Cmty., - U.S. -, 136 S.Ct. 2090, 2101, 195 L.Ed.2d 476 (2016).
      Morrison and Kiobel reflect a two-step framework for analyzing extraterritoriality issues. At the first step, we ask whether the presumption against extraterritoriality has been rebutted — that is, whether the statute gives a clear, affirmative indication that it applies extraterritorially. We must ask this question regardless of whether the statute in question regulates conduct, affords relief, or merely confers jurisdiction. If the statute is not extraterritorial, then at the second step we determine whether the case involves a domestic application of the statute, and we do this by looking to the statute’s "focus.” If the conduct relevant to the statute’s focus occurred in the United States, then the case involves a permissible domestic application even if other conduct occurred abroad; but if the conduct relevant to the focus occurred in a foreign country, then the case involves an impermissible extraterritorial application regardless of any other conduct that occurred in U.S. territory.
      Id. (citing and discussing Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010) and Kiobel v. Royal Dutch Petroleum Co., - U.S. -, 133 S.Ct. 1659, 185 L.Ed.2d 671 (2013)).

      . We also find Celaya’s argument that he was no longer a member of the conspiracy at the time of the Detroit shipment to be without any factual basis in the record. As counsel for Celaya conceded at oral argument, this would require a showing that Celaya had withdrawn from the conspiracy sometime between 2011 and the June 2012 shipment, and he has made no such showing.

      . Even the two circuits that have not categorically refused to rule out manufactured venue have emphasized that it would only be viable in cases of extreme government misconduct. See United States v. Chi Tong Kuok, 671 F.3d 931, 938 (9th Cir. 2012) (electing not to reach the question of whether a manufactured venue challenge might succeed because there was nothing “extreme” about an Immigration and Customs Enforcement undercover operation, based in San Diego, deciding to cash the foreign defendant’s money order for arms sales in a bank in San Diego, thus leading to venue in the Southern District of California); United States v. Myers, 692 F.2d 823, 847 n.21 (2d Cir. 1982) (not precluding a possible manufactured venue defense "in which key events occur in one district, but the prosecution, preferring trial elsewhere, lures a defendant to a distant district for some minor event simply to establish venue,” but finding that standard inapplicable in that case). Indeed, in a more recent case, the Second Circuit noted that "[i]n the quarter century since Myers, this court has never vacated a conviction on the basis of manufactured venue.” United States v. Rommy, 506 F.3d 108, 127 (2d Cir. 2007).


author: LYNCH, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Janice TROISI, Defendant, Appellant.
    No. 16-1046
    United States Court of Appeals, First Circuit.
    February 24, 2017

      James L. Sultan, with whom Kerry A. Haberlin and Rankin & Sultan, Boston, MA, were on brief, for appellant.
    Kelly Begg Lawrence, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.
    Before HOWARD, Chief Judge, LYNCH and LIPEZ, Circuit Judges.
   LYNCH, Circuit Judge.

After a bench trial, Janice Troisi was convicted in 2015 both of conspiracy to commit healthcare fraud, see 18 U.S.C. § 1349, and of healthcare fraud, see id. § 1347, for her role from January 2010 forward in an extensive scheme between 2006 and 2012 to defraud Medicare by billing the program for services provided to patients falsely presented as eligible to receive them. Troisi does not dispute the role that she played in the fraudulent scheme, which involved billing the government for $27.6 million in false claims, $19.9 million of which were paid. She appeals, arguing that there was insufficient evidence to prove beyond a reasonable doubt that she acted with the required culpable state of mind. We affirm her convictions.

I.

We summarize the basic contours of the healthcare fraud scheme and proceedings below, reserving a fuller exposition of the relevant facts for our analysis of the particular issues presented by this appeal. See United States v. López-Díaz, 794 F.3d 106, 109 (1st Cir. 2015) (citing United States v. Flores-Rivera, 787 F.3d 1, 9 (1st Cir. 2015)), cert. denied, — U.S. -, 136 S.Ct. 1229, 194 L.Ed.2d 226 (2016).

On September 18, 2013, Troisi and co-defendant Michael Galatis were indicted by a grand jury in the District of Massachusetts on one count of conspiracy to commit healthcare fraud, see 18 U.S.C. § 1349, and eleven counts of substantive healthcare fraud, see id. § 1347. Galatis was also separately charged with seven counts of money laundering. See id. § 1957. The indictment alleged that Gala-tis, the owner of At Home VNA (“AHV-NA”), a home health-services agency, and Troisi, AHVNA’s Director of Clinical Services since January 2010, had used AHV-NA as a vehicle for defrauding Medicare by providing Medicare-reimbursable in-home nursing services to ineligible patients and then billing Medicare for those services based on falsified documents.

Medicare determines whether a beneficiary qualifies for coverage of home health services- — -and, in turn, whether and to what extent to reimburse the beneficiary’s healthcare provider for the cost of such services — based primarily on information contained in two forms submitted by the healthcare provider. The first form, called the OASIS Form, documents the healthcare provider’s assessment of the beneficiary’s medical condition and needs. In filling out this form, a healthcare provider must, inter alia, rate on a numerical scale the beneficiary’s ability to perform certain activities — such as eating, dressing, and bathing — without assistance. The second form, called the Form 485 Home Health Certification and Plan of Care (“Form 485”), requires a physician to certify that (1) the beneficiary is confined to the home (“homebound”), (2) the beneficiary is in need of skilled services, (3) such “services will be or were furnished while the [beneficiary is or] was under the care of a physician,” and (4) a “plan for furnishing the services has been established and will be or was periodically reviewed by a physician.” 42 C.F.R. § 424.22. Additionally, for services started after April 1, 2011, a physician must certify that a “face-to-face” encounter between the beneficiary and a physician, related to the beneficiary’s need for the services, occurred no more than 90 days prior to or 30 days after the start of the services. Id

The prosecution charged that the AHV-NA scheme proceeded as follows. AHVNA aggressively recruited Medicare-insured individuals for in-home nursing services, for which they could not legally receive Medicare coverage, either because they. were not homebound or because they were not in need of such services. Troisi instructed AHVNA’s nurses to fill out those patients’ OASIS Forms to represent, inaccurately, that the patients were incapable of caring for themselves. Troisi then personally prepared a Form 485 for each patient, populating it with whatever false information was required to obtain Medicare coverage for in-home nursing services. And AHVNA’s Medical Director, Dr. Spencer Wilking, signed the forms without reviewing their contents or even, in many cases, meeting with the patients.

AHVNA nurses made home visits to patients, but most of those visits did not actually involve the nurses providing skilled services. Yet at Troisi’s direction, the nurses falsified their notes to indicate that they had provided such services. Using fraudulent records, AHVNA billed Medicare for tens of millions of dollars’ worth of skilled nursing services, which had not been provided or had been provided unnecessarily, between 2006 and 2012, inclusive.

Only the portion of the scheme beginning on January 1, 2010 — when Troisi became AHVNA’s Clinical Director — is relevant to this appeal. The government’s theory was that Galatis agreed to promote Troisi from part-time employee to Clinical Director at that time because she could — and did — take the scheme “to another level.” Accordingly, she had a direct stake in the fraud even though she did not personally receive the reimbursement checks from Medicare.

Troisi and Galatis proceeded jointly to a jury trial on October 27, 2014. The district court declared a mistrial as to Troisi on November 30, 2014, after she became too ill to proceed. Troisi waived her right to a jury on retrial. A bench trial before the same district judge who had presided over the earlier trial started on July 28, 2015.

The parties stipulated that “transcripts of the testimony of 27 government witnesses who testified at the earlier, joint trial, along with the exhibits admitted during the joint trial,” would be admissible evidence at Troisi’s bench trial. The government supplemented this evidence with live testimony from four additional witnesses. In total, the government introduced 217 documentary exhibits, including the transcripts. Its witnesses included patients linked to the substantive fraud counts, nurses who had provided care to those patients, most of those patients’ primary care providers, and Dr. Wilking.

■ At the conclusion of the government’s case, Troisi moved for a judgment of acquittal, which was denied. In her defense, Troisi called no witnesses and introduced five exhibits. The thrust of her defense was that the government had not proved that she. possessed the requisite mens rea to commit the relevant crimes.

On August 5, 2015, the day after the trial ended, the district court delivered its verdict from the bench, finding Troisi guilty on all of the conspiracy and fraud counts. The court concluded that Troisi had participated in a “sophisticated scheme among the senior managers [of AHVNA] ... to provide inaccurate information” to the government so as to secure payments, “which the [government was not obligated to make.” While “[h]er knowing and willful participation in this scheme with the intent to defraud [was] largely demonstrated circumstantially,” the court found sufficient evidence that Troisi had “manipulat[ed] ... the staff and ... the paperwork” with the purpose of “extracting monies that [AHVNA was] not entitled to ... through fraud, that is, [the] misrepresentation of material facts.” The court sentenced Troisi to 36 months of imprisonment to be followed by three years of supervised release. This appeal followed.

II.

“In assessing a challenge to the sufficiency of the evidence, we ‘examine the evidence, together with all inferences that may be reasonably drawn from it, in the light most favorable to the’ ” verdict. López-Díaz, 794 F.3d at 111 (quoting United States v. Andújar, 49 F.3d 16, 20 (1st Cir. 1995)). Where the factfinder drew “inferences from circumstantial evidence,” we will not “second-guess[ ] [its] ensuing conclusions as long as (1) the inferences derive support from a plausible rendition of. the record, and (2) the conclusions flow rationally from those inferences.” United States v. Spinney, 65 F.3d 231, 234 (1st Cir. 1995). Ultimately, we ask “whether ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” United States v. O’Donnell, 840 F.3d 15, 18 (1st Cir. 2016) (quoting United States v. Grace, 367 F.3d 29, 33 (1st Cir. 2004)).

A defendant violates 18 U.S.C. § 1347 if she “knowingly and willfully executed] a scheme [intended] to defraud a government health-care program,” United States v. Iwuala, 789 F.3d 1, 12 (1st Cir. 2015), cert. denied, — U.S. -, 136 S.Ct. 913, 193 L.Ed.2d 803 (2016), and she violates 18 U.S.C. § 1349 if she engages in a conspiracy to execute such a scheme, id. at 9. “[T]he government may carry its burden of proof [as to both offenses] wholly through circumstantial evidence.” Id. at 11.

Troisi does not dispute that officials at AHVNA successfully executed a conspiratorial scheme intended to defraud Medicare. Nor does she dispute that she took actions that directly and crucially furthered that scheme. She attacks her convictions solely on the ground that the government allegedly failed to present sufficient evidence that she took those actions with the required culpable state of mind. Cfi id. at 9.

We disagree. Troisi’s culpable state of mind can be readily gleaned from “several strands of circumstantial evidence” presented at trial. Vega, 813 F.3d at 398.

First, Troisi cannot claim that she was ignorant. She was deeply familiar with the regulatory scheme that she helped contravene. She knew what was permitted and what was not. Compare López-Díaz, 794 F.3d at 112 (finding no evidence in the record to support claim that a defendant dentist knew about the “different” physician billing code system), with United States v. Singh, 390 F.3d 168, 187-89 (2d Cir. 2004) (allowing inference of fraudulent intent based on a defendant doctor’s possession of the applicable billing code guidebook and his instructions to nurses as to how to fill out the forms). Troisi demonstrated her familiarity with the relevant regulations in multiple conversations in 2010 and 2011 with Martha Fisk of Ho-lyoke Health Center, who called AHVNA to express concern about the fact that all of the orders prescribing home health services to Holyoke patients had been signed by Dr. Wilking, who had not seen the patients, rather than by the patients’ primary care physicians. More than that, the conversations showed Troisi defending the questionable practices. Troisi insisted that AHVNA’s paperwork was fine because the new “face-to-face” requirement in 42 C.F.R. § 424.22 had not yet taken effect. In addition, on her resume, Troisi professed her “[e]xpertise” in “PPS,” the process by which medical providers submit payment requests to Medicare based on patients’ OASIS Forms.

Troisi also exercised total control over AHVNA’s preparation of the documentation required for Medicare reimbursement — the aspect of the scheme that directly contravened the regulations she knew so well. See Vega, 813 F.3d at 398-99 (finding the defendant’s “large degree of control over [her company’s] operations” evidence that she knew the claims the company was submitting to Medicare were fraudulent); United States v. Willett, 751 F.3d 335, 340 (5th Cir. 2014) (finding the defendant’s “proximity to” and prominent role in “fraudulent activities” evidence of a culpable state of mind). As AHVNA’s Clinical Director, Troisi was in charge of “developing [and] implementing ... the day--to-day functions of clinical services, in accordance with current rules, regulations, and guidelines that govern Home Health Agencies.” In fact, she oversaw AHVNA’s team of nurses, who were hired fresh out of nursing school with no experience in home health services or Medicare regulations.' Those inexperienced nurses were tasked with filling out patients’ OASIS Forms, which Troisi reviewed and edited at weekly meetings along with the notes reflecting the services that the nurses had provided. Troisi also personally filled out the Form 485s before giving them to Dr. Wilking so that he could sign them. All of this documentation contained misrepresentations material to Medicare’s payment decisions.

Further, in exercising her control over the documentation process, Troisi instructed the nurses to put in particular information regardless of whether it was true or not. She insisted that the nurses filling out OASIS Forms never assign a score of “zero” to a patient’s ability to perform any activity (as such a score would indicate full independence); never state that a patient had not been home at the time of a scheduled visit (as doing so would indicate that the patient was not homebound); and never check a box indicating that a patient had been “alert and oriented.” When nurses protested that a patient’s condition warranted a zero and that they were “not ... comfortable” assigning a different score, Troisi would force them to do so, even though Troisi had not evaluated the patient herself and had no basis for disagreement.

At oral argument, Troisi tried to put an innocent gloss on this behavior, explaining that she was just an “aggressive” boss and that her rules were aimed at ensuring that the nurses qualified patients for home health services she believed the patients needed. But Troisi’s “insistence” on qualifying patients for Medicare-reimbursable services “creates a strong inference that she did not care” whether the services “served a legitimate medical purpose” and that she therefore “not only knew of the fraud, but actively played a role in directing it.” Vega, 813 F.3d at 399.

Additionally, Troisi’s purported management style does not account for the incriminating actions she took on her own. Troisi would often personally change the number that a nurse had entered on an OASIS Form, using the same color pen that the nurse had used so as to make the form appear unaltered. Troisi would even replace entire pages in OASIS Forms completed by nurses if the forms contained information suggesting that the patient was not actually homebound or in need of skilled services. She knew that the OASIS Forms did not accurately reflect the opinions of the medical professionals who had evaluated the patients, and she directly facilitated the fraud. See United States v. Njoku, 737 F.3d 55, 63 (5th Cir. 2013) (finding the defendant’s instructions to a nurse to represent patients as homebound on OASIS Forms, despite the nurse’s “concern that some patients were not home-bound,” evidence of the defendant’s culpable state of mind).

Finally, Troisi filled out patients’ Form 485s based on the contents of those falsified OASIS Forms, knowing that Dr. Wilking would sign them without taking the time to read them — let alone meet with and evaluate the patients. See Vega, 813 F.3d at 399 (finding evidence of the defendant’s knowing complicity in healthcare fraud where she “allowed” her company to seek Medicare reimbursement for services “prescribe[d] [by a doctor] for patients he did not see”). And she continued to recertify patients for further home health services even when their nurses had recommended that they be discharged, their primary care physicians had sent letters explaining that such services were not needed, and the patients themselves had tried to discontinue the visits.

This evidence was sufficient to permit a reasonable factfinder to conclude, beyond a reasonable doubt, that Troisi conspired to commit, and indeed committed, heálthcare fraud. See, e.g., United States v. Eghobor, 812 F.3d 352, 362 (5th Cir. 2015) (finding sufficient evidence of a healthcare-fraud conspiracy where the defendant “admitted patients ... by falsifying OASIS forms,” “create[d] [Form 485s] prescribing [those patients] home health care,” and had the forms signed by a doctor who had never treated those patients). The circumstances underlying each of the substantive fraud counts “share[ ] ... the [same] badges of fraud that characterize[ ] the overall scheme.” Iwuala, 789 F.3d at 12. Ultimately, “the guilty verdict finds [sufficient] support” in this record. O’Donnell, 840 F.3d at 18 (quoting United States v. Hatch, 434 F.3d 1, 4 (1st Cir. 2006)).

III.

The convictions are affirmed.

      . We have affirmed Galatis’s conviction in United States v. Galatis, No. 15-1322, 849 F.3d 455, 2017 WL 727548 (1st Cir. Feb. 24, 2017).

      . One of the substantive fraud counts was ultimately dismissed as to both defendants upon the government’s motion because the Medicare beneficiary associated with the conduct underlying that charge was unable to testify at trial.

      . During the time period relevant here, each Form 485 "covered 60 days of services and could be renewed indefinitely upon- recertifi-cation of the patient’s continued need for such services.”

      . Dr. Wilking pled guilty to one count of healthcare fraud for his role in the scheme and served as a witness for the government at trial.

      . On December 3, 2014, the jury convicted Galatis of all of the charges against him, and he was ultimately sentenced to 92 months of imprisonment, to be followed by three years of supervised release, and ordered to pay $7,000,000 in restitution and a $50,000 fine.

      . This evidence had been received before the court ordered a mistrial and thus had been subject to cross-examination by Troisi.

      . The court noted that the AHVNA scheme was “somewhat unusual” because in most Medicare-fraud schemes, "no services are actually provided.” The court correctly held, however, that the "services apparently provided” by AHVNA "simply were not services that the United States [was] supposed to pay for, and the parties to the fraud understood that.” See, e.g., United States v. Vega, 813 F.3d 386, 398-99 (1st Cir. 2016) (describing a Medicare-fraud scheme that involved seeking reimbursement for services provided to ineligible beneficiaries).

      . The parties do not dispute the applicable mens rea requirement. Troisi’s brief frames that requirement as comprising two distinct elements: the defendant must have acted "willfully with knowledge that her conduct was unlawful” and with the "specific intent to defraud.” Our case law recognizes that “willfulness” is normally understood to encompass "specific intent,” and both terms require a finding that the defendant acted with a purpose to disobey or disregard the law, rather than by ignorance, accident, or mistake. See, e.g., United States v. LaPlante, 714 F.3d 641, 644 (1st Cir. 2013); United States v. Allen, 670 F.3d 12, 17 (1st Cir. 2012); United States v. Gonzalez, 570 F.3d 16, 24 (1st Cir. 2009); United States v. Lizardo, 445 F.3d 73, 86 (1st Cir. 2006); see also Bryan v. United States, 524 U.S. 184, 191-92, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998).