United States Court of Appeals For the First Circuit
UNITED STATES OF AMERICA,
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
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
HOWARD, Chief Judge. Defendant-Appellant 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, the district court sentenced Herman to eighty-four
months' imprisonment. 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
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." Id. at
55 (first alteration in original) (citation omitted). Herman's
claim falters on the first element. We perceive no error, much
less plain error, in the district court's reasonable doubt
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. Four are easily
disposed of. 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. United States v.
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").
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 It
ultimately imposed an incarcerative sentence of eighty-four
months, a full two years below the bottom of the GSR.
Herman now argues that, notwithstanding this below-
guidelines 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."). In
1 Herman's co-conspirator pled guilty, testified against Herman, and was sentenced to forty-two months' imprisonment.
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any event, whether the issue is framed as 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. Maguire, 752 F.3d 1 , 7 (1st Cir. 2014)
("[D]iscretionary refusals to vary or depart are 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." United
States v. King, 741 F.3d 305 , 310 (1st Cir. 2014). We apply these
principles in turn to each of Herman's purported grounds for
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. We have, however, clarified that "[d]epartures
based upon health 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 not deal appropriately with [Herman's] medical
problems." Maguire, 752 F.3d at 7. 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
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Herman's second proposed ground for departure, her
family responsibilities, is "not ordinarily relevant" to the
sentencing determination. 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." United States v. Louis, 300 F.3d 78 ,
82 (1st Cir. 2002). Departure is only warranted in "exceptional"
cases. Id. Exceptional circumstances may exist where the
defendant's caretaking is "irreplaceable" to her family. U.S.S.G.
§ 5H1.6 cmt. n.1(B)(iii). 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 second has "brain damage"
resulting from a traffic accident. 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. He is employed
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as a "concrete/cement worker." 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, she fails to demonstrate that her care is
irreplaceable. 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 in Las Vegas, while her husband remained in
Massachusetts. 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
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).
For the foregoing reasons, we AFFIRM Herman's
convictions and sentence.
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