US v. Herman

Filing

OPINION issued by Jeffrey R. Howard, Chief Appellate Judge; Juan R. Torruella, Appellate Judge and Kermit V. Lipez, Appellate Judge. Published. [16-2001]

Case: 16-2001

Document: 00117114605

Page: 1

Date Filed: 02/06/2017

Entry ID: 6067639

United States Court of Appeals
For the First Circuit
No. 16-2001
UNITED STATES OF AMERICA,
Appellee,
v.
ROSALIND HERMAN,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]

Before
Howard, Chief Judge,
Torruella and Lipez, Circuit Judges.

Steven A. Feldman and Feldman and Feldman on brief for
appellant.
Craig Estes, Assistant United States Attorney, and Carmen M.
Ortiz, United States Attorney, on brief for appellee.

February 6, 2017

Case: 16-2001

Document: 00117114605

HOWARD,

Chief

Page: 2

Judge.

Date Filed: 02/06/2017

Defendant-Appellant

Entry ID: 6067639

Rosalind

Herman was convicted, after a jury trial, of conspiracy, willful
violation of the Investment Advisers Act, wire fraud, and corruptly
impeding the administration of internal revenue laws.

These

charges arose from a scheme in which Herman and a co-conspirator
solicited funds for purported investment in a hedge fund management
company.

Rather than investing the money they obtained, totaling

more than $1.3 million, Herman and her confederate used it for
personal expenses.

Herman also allegedly defrauded the Internal

Revenue Service by claiming false business deductions and failing
to file tax returns in some years, resulting in almost $1.85
million in unreported income.

After the jury returned its guilty

verdict,

sentenced

the

district

months' imprisonment.

court

Herman

to

eighty-four

On appeal, Herman raises two narrow claims,

one relating to her convictions and a second challenging her
sentence.

Because we find each of these claims unavailing, we

affirm.
I.
We begin with Herman's challenge to her convictions,
which is predicated entirely upon purported deficiencies in the
district court's instructions on the reasonable doubt standard.
Because Herman failed to object to the instructions below, we
review only for plain error.

See United States v. Van Anh, 523

F.3d 43, 57 (1st Cir. 2008).

In order to satisfy this demanding

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standard, Herman must establish that "(1) [] an error occurred (2)
which was clear or obvious and which not only (3) affected [her]
substantial rights, but also (4) seriously impaired the fairness,
integrity, or public reputation of judicial proceedings."
55 (first alteration in original) (citation omitted).
claim falters on the first element.
less

plain

error,

in

the

district

Id. at
Herman's

We perceive no error, much
court's

reasonable

doubt

instructions.
As an initial matter, we have repeatedly noted "that
reasonable doubt does not require definition."

United States v.

Rodríguez-Cardona, 924 F.2d 1148, 1160 (1st Cir. 1991).

Thus, "an

instruction which uses the words reasonable doubt without further
definition adequately apprises the jury of the proper burden of
proof."

United States v. Ademaj, 170 F.3d 58, 66 (1st Cir. 1999)

(citation omitted); see also Victor v. Nebraska, 511 U.S. 1, 5
(1994) ("[T]he Constitution neither prohibits trial courts from
defining reasonable doubt nor requires them to do so as a matter
of course.").

Where, however, the court does undertake to define

the term, it cannot employ a definition that creates "a reasonable
likelihood of leading the jury to believe that it can convict on
some lesser standard of proof."

Van Anh, 523 F.3d at 57 (citation

omitted). With that said, "the Constitution does not require . . .
any particular form of words." Victor, 511 U.S. at 5. The district
court, thus, retains significant discretion in formulating its

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instructions, so long as it "correctly conve[ys] the concept of
reasonable doubt to the jury."

Id. (citation omitted).

Here, Herman takes issue with the following passage from
the court's instructions:
[T]he burden of proof here is not common
sense, of course you can use your common
sense, the burden of proof here is proof
beyond a reasonable doubt, and there must be
no guesswork, no speculation, no "maybe this
happened," "perhaps," "possibly," "it could
have," not even that it's likely that this or
that happened, it has to be proved beyond a
reasonable doubt.
Herman makes five specific arguments as to why the
reasonable doubt instructions were deficient.
disposed of.

Four are easily

First, while Herman correctly notes that the court

was not required to define reasonable doubt, neither was it
prohibited from doing so.

See Victor, 511 U.S. at 5.

Second,

once it decided to provide a definition, the court was not bound
to use one of the specific formulations that Herman now proposes.
See id.

Third, the mere fact that the district court gave a

"negative" definition, explaining reasonable doubt by reference to
what it is not, does not, in itself, require reversal.

United

States v. DeVincent, 632 F.2d 147, 152-53 (1st Cir. 1980). Fourth,
the court's allusion to the jury's use of "common sense," while
perhaps unnecessary, did not constitute error.
Munson, 819 F.2d 337, 346 (1st Cir. 1987).

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Herman's fifth claim of instructional error is the most
substantial, but it too ultimately fails.

Herman posits that, by

presenting "a choice between guesswork and speculation on the one
hand, and reasonable doubt on the other," the court "effectively
reduced the government's burden of proof."

This is because the

instructions could have led the jury to believe that "it could
return a guilty verdict so long as it found the government's proof
was

non-speculative."

Unfortunately

for

Herman,

we

have

previously upheld the use of language very similar to that at issue
here.

See United States v. Burnette, 375 F.3d 10, 20 (1st Cir.

2004) ("The jury must never find the defendant guilty on mere
suspicion, conjecture or guess."), vacated on other grounds, 543
U.S. 1181 (2005); United States v. Whiting, 28 F.3d 1296, 1304
(1st Cir. 1994) ("[A] defendant is never to be convicted 'on the
basis of mere conjecture, surmise or guesswork.'").
Any suggestion that the jury may have been misled is
further undermined by the court's repeated emphasis that proof
beyond a reasonable doubt was required for conviction.

Indeed,

the court mentioned the reasonable doubt standard no fewer than
nine times in its instructions to the jury.

And it introduced the

concept on the very first day of trial, when it made clear that
Herman sat before the jury as "an innocent woman" who could only
be convicted based on proof "beyond a reasonable doubt."

In this

context, we perceive no reasonable likelihood that the language

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cited by Herman led the jury to apply a lesser standard of proof.
See Van Anh, 523 F.3d at 58 (holding that instruction "adequately
communicated the government's burden" where the court mentioned
that burden ten times and "stressed the presumption of innocence").
II.
We turn now to Herman's claim of sentencing error.

The

parties do not contest the district court's calculation of the
guideline sentencing range ("GSR") as 108 to 135 months.

After

arriving at this GSR, the court proceeded to vary downward to
"avoid unwarranted sentencing disparities among defendants."1
ultimately

imposed

an

incarcerative

sentence

of

It

eighty-four

months, a full two years below the bottom of the GSR.
Herman now argues that, notwithstanding this belowguidelines sentence, the court erred by refusing to grant, in
addition, a downward departure on two alternative bases:

(1)

Herman's own physical impairments, see U.S.S.G. § 5H1.4; and (2)
her responsibilities caring for family members, see id. § 5H1.6.
Herman characterizes her claim as a challenge to the substantive
reasonableness of the sentence.

See United States v. Del Valle–

Rodríguez, 761 F.3d 171, 176 (1st Cir. 2014) ("The substantive
dimension [of our sentencing review] focuses on the duration of
the sentence in light of the totality of the circumstances.").

1

In

Herman's co-conspirator pled guilty, testified against
Herman, and was sentenced to forty-two months' imprisonment.

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any

Document: 00117114605

event,

whether

the

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issue

Date Filed: 02/06/2017

is

framed

as

Entry ID: 6067639

substantive

or

procedural, we review the district court's "discretionary refusal
to depart" from the GSR for "reasonableness."

United States v.

Anonymous Defendant, 629 F.3d 68, 74 (1st Cir. 2010); see also
United

States

v.

("[D]iscretionary

Maguire,
refusals

752
to

F.3d
vary

1,
or

7

(1st

depart

Cir.

are

2014)

open

to

reasonableness review in accordance with an abuse of discretion
standard.").

And Herman faces an even steeper climb than most

defendants seeking to establish sentencing error.

This is because

"[i]t is a rare below-the-range sentence that will prove vulnerable
to a defendant's claim of substantive unreasonableness."
States v. King, 741 F.3d 305, 310 (1st Cir. 2014).

United

We apply these

principles in turn to each of Herman's purported grounds for
departure.
The guidelines provide that "[a]n extraordinary physical
impairment may be a reason to depart downward" from the GSR.
U.S.S.G. § 5H1.4.
based

upon

health

We have, however, clarified that "[d]epartures
problems

are

discouraged

and

can

only

be

justified if the medical problems are present in unusual kind or
degree."

United States v. LeBlanc, 24 F.3d 340, 348 (1st Cir.

1994) (citation omitted).

Thus, in order to be entitled to a

departure, a defendant must establish that her "life would be
threatened or shortened by virtue of being incarcerated" or that

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"the Bureau of Prisons would be unable to adequately accommodate
[her] medical needs."

Id. at 349.

Here, the evidence of Herman's physical impairment falls
well short of this bar.

Herman cites portions of the Presentence

Investigation Report ("PSR") indicating that:

(1) she is five-

foot-two-inches tall but weighs only seventy-two pounds; (2) she
claimed

to

have

been

diagnosed

with

"malnourishment

and

dehydration" during her spring 2016 trial; and (3) she reported
suffering from tachycardia (an elevated heart rate), resulting in
blood pressure fluctuations and difficulty breathing.

Herman, who

was sixty-one years old at the time of sentencing, conclusorily
asserts that, in light of these conditions, she "is unlikely to
survive 84-months' imprisonment."

But the PSR also indicated that

Herman "does not regularly see any doctors and does not take any
prescription

medications."

And,

before

the

district

court,

defense counsel expressly acknowledged the lack of medical records
substantiating Herman's health issues.

In these circumstances, we

"discern no hint of unreasonableness" in the district court's
conclusion "that there was no evidence that the federal prison
system

could

problems."

not

deal

appropriately

Maguire, 752 F.3d at 7.

with

[Herman's]

medical

We note also that the court

recommended that the Bureau of Prisons initially house Herman in
a "medical facility for a complete evaluation of [her] medical
situation."

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Herman's
family

Page: 9

second

responsibilities,

Date Filed: 02/06/2017

proposed
is

sentencing determination.

"not

ground

for

ordinarily

Entry ID: 6067639

departure,

relevant"

to

her
the

U.S.S.G. § 5H1.6.

Accordingly, this

too is a "discouraged" basis for departure.

United States v.

Pereira, 272 F.3d 76, 80 (1st Cir. 2001).

Indeed, as we have

explained, "[a] defendant's incarceration will invariably cause
hardship to [her] family."
82 (1st Cir. 2002).
cases.

Id.

United States v. Louis, 300 F.3d 78,

Departure is only warranted in "exceptional"

Exceptional

circumstances

may

exist

where

defendant's caretaking is "irreplaceable" to her family.
§ 5H1.6 cmt. n.1(B)(iii).

the

U.S.S.G.

By contrast, courts should not grant a

departure where "there are feasible alternatives of care that are
relatively comparable to what the defendant provides."

Pereira,

272 F.3d at 83.
In the present case, while Herman cites evidence that
she provided care to her family prior to her incarceration, she
fails to demonstrate that such care is irreplaceable.

First, she

points to the fact that one of her sons "suffers from a minor
learning

disability"

and

that

the

resulting from a traffic accident.

second

has

"brain

damage"

With respect to the former,

Herman does not explain how any care that she provided for her
son's "minor learning disability" is irreplaceable.

Herman's

other son, who was thirty-two years old at the time of sentencing,
sustained a brain injury in a 2000 car accident.

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He is employed

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as a "concrete/cement worker."

Date Filed: 02/06/2017

Entry ID: 6067639

He has also graduated from high

school and taken some college courses since the accident.

Herman

provides no information about the seriousness of her son's injuries
or the extent of any care that she provided for him.
Herman's

most

substantial

contention

on

this

issue

relates to care that she provided for her husband, but, even in
this

context,

irreplaceable.

she

fails

to

demonstrate

that

her

care

is

Herman's husband has been largely incapacitated

since 2012. He suffers from a variety of medical conditions, which
Herman details in her briefing. The PSR recounts a number of tasks
that Herman performed for her husband prior to her incarceration.
But Herman fails to dispute the government's assertion that, during
part of the time her husband was experiencing these health issues,
Herman

lived

Massachusetts.

in

Las

Vegas,

while

her

husband

remained

in

Moreover, the record reflects multiple alternative

sources of care for Herman's husband.

Both of the couple's sons

live in Woburn, Massachusetts, the same town as their father.
Herman also has three sisters who live in that state.

Moreover,

after Herman was ordered detained, the family hired a visiting
nurse to care for her husband. Nowhere in her briefing does Herman
explain why any of these alternative care options are not feasible.

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Accordingly, the district court's decision not to depart downward
was reasonable.2
While

the

foregoing

is

sufficient

to

dispatch

with

Herman's claim of sentencing error, we pause for a moment to note
other factors that the district court was permitted to consider in
exercising its broad discretion.

See United States v. Politano,

522 F.3d 69, 73 (1st Cir. 2008).

Herman stole more than $1.3

million from several victims, some of whom were unsophisticated
investors who entrusted Herman with their life savings.

And, even

after the jury returned its guilty verdict, Herman refused to take
responsibility for abusing that trust.

Instead, she placed the

blame squarely at the feet of her co-conspirator.

The district

court, however, did not find Herman's denials credible.

These

facts relating to Herman's offense conduct and her subsequent

2

The cases Herman cites on this point are readily
distinguishable.
First, both resulted in affirmance of the
district court's decision to grant a departure under U.S.S.G.
§ 5H1.6. See United States v. Roselli, 366 F.3d 58, 70 (1st Cir.
2004); United States v. Sclamo, 997 F.2d 970, 974 (1st Cir. 1993).
In light of the discretionary nature of this determination, our
holdings do not imply that the district courts were required to
depart downward. Moreover, the cases are distinguishable because,
unlike the present case, they involved evidence that the
defendant's care was truly irreplaceable. See Roselli, 366 F.3d
at 70 (affirming downward departure where the defendant's "two
children require[d] round-the-clock care because of [cystic
fibrosis], where adequate help [wa]s not readily available, and
where the other parent [wa]s battling her own debilitating health
problems"); Sclamo, 997 F.2d at 974 (citing evidence that the
defendant played a "critical and unique role" in psychological
treatment of stepson).

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refusal to accept responsibility were plainly relevant to the
court's sentencing determination.

See 18 U.S.C. § 3553(a).

The

fact that the district court may have weighed these considerations
more heavily than Herman would have preferred, especially in
relation

to

her

proffered

physical

impairments

and

family

responsibilities, does not render the sentence unreasonable.

See

United States v. Clogston, 662 F.3d 588, 593 (1st Cir. 2011).
III.
For

the

foregoing

reasons,

convictions and sentence.

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we

AFFIRM

Herman's