United States of America v. Anibal Pagán-Romero

United States Court of Appeals
For the First Circuit
No. 16-1396
UNITED STATES OF AMERICA,
Appellee,
v.
ANIBAL PAGÁN-ROMERO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo Gelpi, U.S. District Judge]
Before
Lynch and Lipez, Circuit Judges,
and Ponsor, District Judge. *
Paul M. Glickman and Glickman Turley LLP, were on brief, for
appellant.
Francisco A. Besosa-Martínez, with whom Rosa Emilia
Rodríguez-Vélez, United States Attorney, and Mariana E. Bauzá-
Almonte, Assistant United States Attorney, Chief, Appellate
Division, were on brief, for appellee.
July 9, 2018
* Of the District of Massachusetts, sitting by designation.

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PONSOR, District Judge. For many years, Appellant, Dr.
Anibal Pagán-Romero, operated a medical clinic in Quebradillas,
Puerto Rico. On October 5, 2015, a jury found him guilty of
conspiracy to commit mail fraud and substantive mail fraud, based
upon his certification of false injury claims submitted to the
American Family Life Insurance Company (“AFLAC”).
This appeal arises from the district court’s decision to
grant the jury’s oral request, made during deliberations, for a
dictionary. As will be seen below, this decision, made over
defendant’s objection and with no discussion on the record, was
improper. A review of the record, however, reveals that the trial
judge took thorough, effective action to investigate the impact of
the error and properly concluded that Appellant suffered no
prejudice. We therefore conclude that the judge did not abuse his
discretion in denying Appellant’s motion for a new trial. Based
on this, we will affirm.
I. Background
Appellant owned the Policlínica Familiar Shalom, a
medical clinic and pharmacy in Quebradillas, Puerto Rico, where he
also practiced medicine. On May 8, 2014, Appellant was charged,
along with thirty-five co-defendants, with twenty-one counts of
conspiracy to commit mail fraud in violation of 18 U.S.C. §§ 1349
and 1341, and sixty-one counts of mail fraud in violation of 18
U.S.C. §§ 2 and 1341. The indictment alleged that between January

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2004 and November 2009, Appellant conspired with others to defraud
AFLAC by filing false claims under its accidental injury policies.
On August 31, 2015, the case went to trial before a jury.
The government’s theory was straightforward: before paying a
claim, AFLAC required certification from a physician that he had,
in fact, provided treatment on a specific date for a particular
medical condition. Appellant, the government contended, had
falsely certified claims over many years without ever treating,
often without even seeing, the claimants. Former employees of the
clinic testified pursuant to plea agreements and confirmed the
extent of the fraud, admitting that they had overseen the
submission of false claims and had even submitted bogus claims,
certified by Appellant, on behalf of themselves and family members.
Eventually, the scope of the fraud reached such
proportions that some of Appellant’s staff became uncomfortable,
and Appellant directed AFLAC claimants to come through a side
entrance of the clinic and work directly with co-conspirators
closer to the heart of the fraudulent operation. Paperwork related
to the AFLAC claimants was filed separately by Appellant and his
co-conspirators; the claimants’ files routinely contained no
progress notes or other routine medical documentation, only the
claim forms. Certification by Appellant of treatment supposedly
given to these claimants was sometimes noted as occurring on dates
when Appellant was out of the country, or on Saturdays and Sundays

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when the clinic was closed. Testimony confirmed that Appellant
received $10 to $20 for each falsified claim. The government’s
evidence included over 270 exhibits, including audio recordings in
which Appellant was heard speaking to two undercover FBI agents
about claim forms he certified using false information.
At trial, Appellant’s defense was that he was unaware of
the fraudulent scheme, which he contended was perpetrated without
his knowledge by employees who stole his signature. Appellant’s
nephew Noel Pagán-Rivera testified that he had filed fraudulent
claims at his uncle’s clinic without the latter’s knowledge.
Appellant himself testified, denying any wrongdoing, asserting
that some of the fraudulent claim forms had been filled out by a
person or persons unknown to him, and asserting that he did not
knowingly participate in any scheme to defraud.
On September 30, 2015, counsel rested. The following
day, the jury heard closing argument and instructions from the
court and began deliberations.
The jury instructions made clear that an essential
element of mail fraud was that “Anibal Pagán-Romero knowingly and
willingly participated in this scheme with the intent to defraud.” 1
The instructions expanded on this point by stating that “Anibal
1 The record offered with this appeal contains no transcript
of the jury instructions, but their text is undisputed.

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Pagán-Romero acted knowingly if he was conscious and aware of his
actions, realized what he was doing or what was happening around
him and did not act because of ignorance, mistake, or accident.”
To determine Appellant’s state of mind, the instructions stated:
[Y]ou may consider any statement made or acts
done or omitted by him and all other facts and
circumstances received in evidence that may
aid you in determination of Anibal Pagán-
Romero’s knowledge or intent. . . . You may
infer, but you are certainly not required to
infer, that a person intends the natural and
probable consequences of his acts knowingly
done or knowingly admitted.
These instructions were perfectly correct, and Appellant
does not argue otherwise. The trial judge also instructed the
jurors, correctly, that they were not to do any outside research
of their own over the course of deliberations. Significantly, the
trial judge included in his instructions the standard admonition
that communications with the judge or his staff needed to be put
in writing.
The day after the jury began deliberating, October 2,
2015, the trial judge advised the jurors that he needed to be
absent for one week and allowed them to choose whether to continue
their deliberations during his absence with another judge
supervising, or suspend until he came back. The jurors chose to
continue their deliberations in the trial judge’s absence, and

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another judge made himself available to supervise the
deliberations as needed.
Deliberations went on for two more days, and on the third
day, October 5, the jury convened to continue its work at
approximately 9:45 a.m. The record of what happened next is not
clear. At some point, an oral request somehow emerged from the
jury for an English-English dictionary. The record does not
identify from whom the request came (the foreperson or some other
member of the jury) or precisely to whom the request was directed
or the time. The docket merely states: “Parties were informed of
oral communication request from the jury with CSO asking for an
English-English dictionary and a laptop, objection from the
defense, as to the dictionary, was denied.” The request was not
in writing, contrary to the trial judge’s instruction, and no
transcript reciting exactly how the objection was articulated, or
how it was denied, appears on the record. Whatever the process,
the upshot was that some time before 12:55 p.m. on October 5, 2015,
an English-English dictionary made its way into the deliberation
room. At 12:55 p.m., a note was received from the jury to the
effect that it had reached a verdict. Appellant was found guilty
on all counts.
Following the conviction, Appellant moved for a new
trial, citing the improper provision of the dictionary. On
February 23, 2016, the original trial judge convened the first

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evidentiary hearing on the motion. The court at this time
questioned the foreperson, who recalled that one juror had used
the dictionary, although he could not remember which juror this
had been or what the juror had used the dictionary for. He did
recall that the requesting juror had been a woman. He could not
recollect whether anyone read aloud from the dictionary. Asked
whether the dictionary affected the jury’s deliberations, the
foreperson answered: “I don’t think so.”
On March 14, 2016, the court held a second hearing on
the possible impact of the dictionary. This time, the four female
members of the jury appeared, and the judge questioned them. The
juror who requested the dictionary reported that she had used it
during deliberations to look up the word “knowingly.” She stated
that the dictionary had not influenced her deliberations, and that
the entire panel of jurors had discussed the dictionary’s
definition. The second juror recalled that the dictionary
definition of “knowingly” was read aloud to the entire jury from
the dictionary. She stated, however, that it did not influence
the deliberations. The third juror stated that the definition had
“helped us out.” She added: “It was just a few persons that were
confused with . . . what was the meaning of knowingly.” This juror
indicated that the jury had made its decision based solely on the
evidence and the jury instructions, not on the dictionary
definition. A fourth juror recalled using the dictionary to look

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up the word “knowingly,” but stated that this did not influence
jury deliberations.
On March 21, 2016, the district court explored the
dictionary issue a third time, on this occasion questioning all
twelve trial jurors individually. Based on this questioning, the
court found that the jurors’ answers were consistent as to the
following: (1) a member of the jury had requested a dictionary;
(2) the dictionary was used to look up the word “knowingly”; (3)
the dictionary definition of the word “knowingly” did not influence
jury deliberations; (4) the jury followed and relied on the
district court’s jury instructions; and (5) the verdict was based
solely on the evidence and the district court’s jury instructions.
Relying on these conclusions, the court ruled that “the use of the
dictionary to look up the word ‘knowingly’ in no way affected or
brought in any extraneous evidence or information to the jury which
would affect their deliberations.” Further, the dictionary
definition of “knowingly” was not inconsistent with, and in no way
undermined, the definition set forth in the jury instructions. In
fact, the trial judge observed that the dictionary definition,
which defined “knowingly” both as “having knowledge” and as being
“shrewd, clever, implying a secret understanding,” would, if
considered by the jury, have imposed a burden on the government
“that [went] even beyond the jury instruction.” The dictionary’s
definition, the court concluded, was not to Appellant’s detriment,

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and, if anything, would have benefitted him. Based on this, the
court concluded that, even assuming the provision of the dictionary
was an error, the mistake was harmless. The motion for new trial
was denied.
Ultimately, Appellant received concurrent sentences of
120 months custody of the Bureau of Prisons and five years of
supervised release on each count, as well as restitution in the
amount of $2,056,303.
II. Discussion
In response to a nonfrivolous claim that a jury might
have been influenced by improper exposure to extrinsic material,
a district court must conduct an inquiry into whether the exposure
in fact occurred and, if so, whether it was prejudicial. United
States v. Camacho-Santiago, 851 F.3d 81, 89 (1st Cir. 2017), cert.
denied, No. 17-5171, 2017 WL 3036780 (U.S. Oct. 2, 2017), reh’g
denied, No. 17-5171, 2017 WL 5240928 (U.S. Nov. 13, 2017).
In this case, the undisputed facts make the first step
in the analysis simple: the jury’s exposure to material not
properly offered during trial -- i.e., the dictionary -- obviously
occurred.
The supervising judge’s decision to grant the jury’s
request, made during its deliberations, to use the dictionary was
error. Previously, we have declined to opine as to whether a
juror’s use of a dictionary during deliberations -- unknown to the

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judge and first disclosed after the verdict -- constituted
misconduct on the part of the juror. United States v. Rogers, 121
F.3d 12, 17, n.5 (1st Cir. 1997). The case now before us goes
beyond Rogers. Here, the court itself blessed the use of the
dictionary by approving the jurors’ request.
Provision of a dictionary to a jury by a judge after the
close of the evidence and the instructions –- except perhaps in
extraordinary circumstances and after thorough discussion with
counsel on the record -– should not happen. At best, an extrinsic
resource of this sort is superfluous. Proper definitions of key
terms should be included in the instructions themselves, as they
were here. At worst, dictionary definitions will conflict with
definitions set forth in the instructions and create confusion, or
even mislead a jury. Other courts have reached the same
conclusion. See United States v. Lawson, 677 F.3d 629, 645 (4th
Cir. 2012); United States v. Aguirre, 108 F.3d 1284, 1288 (10th
Cir. 1997); United States v. Gillespie, 61 F.3d 457, 459 (6th Cir.
1995); United States v. Steele, 785 F.2d 743, 749 (9th Cir. 1986).
As already noted, the substantive mistake here was
compounded by procedural errors in the way the request from the
jury was handled. The proper process for managing a jury
communication during deliberations has been set forth in deeply
engraved authority: (1) the request from the jury should be in
writing; (2) the writing should be marked as an exhibit; (3) the

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writing should be shown, or read verbatim, to counsel; and (4)
counsel should be given an opportunity to be heard as to a proper
response. United States v. Maraj, 947 F.2d 520, 525 (1st Cir.
1991). These steps should ordinarily be traced in open court on
the record, so that a transcript of the pertinent discussion
(including any objection) is available on review. None of these
steps occurred here.
Moving on from the fact that a mistake occurred and that,
as a result, the jury here was exposed improperly to extrinsic
material, the analysis must proceed to the question of prejudice.
In scrutinizing the trial judge’s decision to deny Appellant’s
motion for new trial, we generally apply an abuse-of-discretion
standard. The facts of this case do not, as Appellant contends,
require that we presume prejudice.
It is true that older Supreme Court authority seemed to
suggest that a jury’s exposure to any extrinsic material should be
deemed presumptively prejudicial. Remmer v. United States, 347
U.S. 227, 229 (1954). But see United States v. Bristol-Martir,
570 F.3d 29, 41 n.5 (1st Cir. 2009) (questioning the “continued
vitality” of Remmer’s holding, citing United States v. Bradshaw,
281 F.3d 278, 287-88 (1st Cir. 2002)). It is now well established
that less serious instances of potential taint should be addressed
using the abuse-of-discretion standard, with the presumption of
prejudice being reserved for more serious instances. Camacho-

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Santiago, 851 F.3d at 89; United States v. Zimny, 846 F.3d 458,
464 (1st Cir. 2017); United States v. Morosco, 822 F.3d 1, 13 (1st
Cir. 2016); United States v. Rodriguez, 675 F.3d 48, 58 (1st Cir.
2012); Bristol-Martir, 570 F.3d at 41; Bradshaw, 281 F.3d at 291;
United States v. Gomes, 177 F.3d 76, 80 (1st Cir. 1999). The less
stringent standard applies where exposure to outside material is
“inadvertent,” where the “trial judge responds to the claim of
contamination by conducting an inquiry and employing remedial
measures,” and where “egregious circumstances” are absent. United
States v. Ofray-Campos, 534 F.3d 1, 21 (1st Cir. 2008) (quoting
Bradshaw, 281 F.3d at 288).
It is true that in this case the exposure to the
dictionary was not inadvertent, but rather was affirmatively
approved by the supervising judge. This fact, while troubling, is
insufficient to trigger a presumption of prejudice, where the trial
judge’s response was energetic and probing, and the mistake, while
clear, cannot fairly be described as “egregious.”
This is not a case like Ofray-Campos or United States v.
Santana, 175 F.3d 57 (1st Cir. 1999), where the improper material
significantly enhanced the evidentiary support for the
government’s case, justifying the heavier presumption of prejudice
standard. In general, the use of a dictionary will pose a
qualitatively less serious risk of harm. See United States v.
Cheyenne, 855 F.2d 566, 568 (8th Cir. 1988) (holding, in a case

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where a juror improperly consulted a dictionary, that while
exposure to actual “evidence” would be presumed prejudicial,
exposure to the “definition of a legal term” would not).
Of course, exceptions to this general approach may
arise, in cases where, for example, the dictionary definition was
contrary to, or confusingly inconsistent with, the instructions,
where the jurors confirmed that they had actually relied on the
misleading definition, or where the court made an inadequate effort
to inquire into the impact of the taint. But none of these
circumstances adheres in this case.
Identifying the standard of proof, of course, does not
end the inquiry. Even where the abuse-of-discretion standard
applies, situations may arise where the decision to deny a motion
for new trial would demand reversal. One such situation would be
where the trial judge failed to make an adequate inquiry into
whether the extraneous material actually influenced the jury, as
we found in Bristol-Martir.
Here, we discern no such problem. It is well established
that in examining a trial court’s response to a claim of jury
taint, we “abjure imposition of a rigid set of rules” for the
conduct of the inquiry. United States v. Boylan, 898 F.2d 230,
258 (1st Cir. 1990). Flexible guidelines, however, as to what a
“methodologically sound” inquiry entails set forth a reasonably

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clear path. Id. at 259. For instance, one such response included
the following elements:
The court engaged counsel for both sides in an
ongoing dialogue about the most appropriate
way in which to handle the needed
investigation, examined each juror twice, and
pursued no fewer than eight lines of
questioning proposed by defense counsel. The
court’s probing into the extent of the jurors’
exposure to the extraneous information and its
potential impact on their ability to render an
impartial verdict was thorough and incisive.
The court gave the jury clear and emphatic
curative instructions. Last -- but surely not
least -- the court made explicit findings that
are amply rooted in the transcript of the two
rounds of voir dire examinations and that make
considerable sense when scrutinized against
the record of the trial as a whole.
Bradshaw, 281 F.3d at 291–92.
The inquiry in this case followed similar lines. In
considering Appellant’s motion for a new trial, the district court
convened an evidentiary hearing to inquire into the use, if any,
of the dictionary by the jury. At that hearing, the foreperson
was questioned as to the jurors’ reliance on the dictionary and
gave his opinion that the definition “did not really influence the
deliberations.” A subsequent evidentiary hearing followed, in
which four jurors were questioned. Finally, in a third proceeding,
all twelve jurors were questioned individually prior to
sentencing. The district court’s conclusion that Appellant
suffered no prejudice from the provision of the dictionary was

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firmly anchored in the jurors’ testimony disclaiming reliance on
the dictionary in reaching a verdict.
No sound reason suggests that the trial judge abused his
discretion in reaching this conclusion. This is not a case like
Bristol-Martir, where the trial judge failed even to inquire
whether the jury’s decision had been affected by the extraneous
material. The judge’s inquiry here explicitly probed that very
issue with every single juror. It is true that -- inevitably,
given the twelve individual examinations -- some inconsistencies
in the responses appeared, but the trial judge was in the best
position to weigh the significance of any ambiguities. It is
well established that in conducting inquiries of this kind the
district court has “wide discretion,” Bradshaw, 281 F.3d at 291,
and absent circumstances not present here, we will defer to its
findings. Camacho-Santiago, 851 F.3d at 89.
In sum, the record of this inquiry is more than
sufficient to support the conclusion that the district court
conducted a thorough and meticulous inquiry into the impact of the
use of the dictionary and supportably concluded that it had no
impact on the ultimate verdict.
Two other factors buttress our conclusion here. First,
the evidence against Appellant was strong. The dictionary’s
extraneous influence carried no significant risk of tipping a less
than robust case in the government’s favor. Second, the dictionary

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offered no alternate definition of “knowingly” that was less
favorable to Appellant, or more favorable to the government, than
the definition contained in the instructions. In other words,
even if the jurors had used the dictionary’s definition of
“knowingly,” Appellant would have been no worse off. 2
III. Conclusion
For the reasons set forth above, we conclude that the
denial of Appellant’s motion for new trial constituted no abuse of
discretion. We therefore hereby affirm the decision of the
district court.
2 Appellant’s argument that the dictionary’s alternate
definition of “knowing” as “shrewd, clever, or implying a secret
understanding” may have led the jury down an errant path makes no
sense. This definition, as the trial judge found, would have
increased the burden on the government, since the jury
instruction’s definition required the government only to prove
that Appellant was “conscious and aware of his actions, [and]
realized what he was doing.”

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