United States v. Karani

19-1031P

2021 | Cited 0 times | First Circuit | January 4, 2021

United States Court of Appeals For the First Circuit

No. 19-1031

UNITED STATES OF AMERICA,

Appellee,

v.

ADARBAAD F. KARANI,

Defendant, Appellant.

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

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Howard, Chief Judge, Lynch and Lipez, Circuit Judges.

Katherine C. Essington for appellant. Randall E. Kromm, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellee.

January 4, 2021

LIPEZ, Circuit Judge. After a six-day trial, a jury

convicted Adarbaad F. Karani, a former officer of the Boston Police

Department, on two counts of making false statements during the

purchase of a firearm, in violation of 18 U.S.C. § 922(a)(6), and

one count of making a false statement in a record required to be

kept by federal law, in violation of 18 U.S.C. § 924(a)(1)(A).

The district court sentenced Karani to concurrent three-month

terms of imprisonment, followed by a one-year term of supervised

release.

Karani appeals his conviction on all three counts,

arguing that we must vacate the conviction because the district

court's jury instructions contained several legal and factual

errors. In particular, Karani claims that the decision of the

district court to define the terms "gift" and "actual purchaser,"

used in a document essential to the purchase of the firearms,

invaded the province of the jury. He also argues that the court

provided inconsistent, mistaken, and confusing instructions on the

first count of making false statements during the purchase of a

firearm in violation of § 922(a)(6).1

After careful review of the record and the law, we

affirm.

1 This case does not implicate any Second Amendment concerns.

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I.

A. The Ilnicki Transfer

We recount the facts, most of which are undisputed, as

the jury could have found them. In November 2015, the Boston

Police Department ("BPD") recovered and transferred to the Federal

Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") a Glock

.45 caliber pistol with serial number YVT194. ATF agents traced

the firearm's ownership to David Ilnicki, who had reported the gun

stolen about a month earlier. Ilnicki told police that the gun

was a "gift" from a "friend." ATF's investigation revealed that

the original purchaser of the firearm ("the Ilnicki gun") was

appellant Karani.

Karani met Ilnicki while working police details at

nightclubs in Boston where Ilnicki worked as a security manager

and promoter. Ilnicki testified that he initially sought to build

a rapport with Karani to ensure security ran smoothly at the clubs,

but they eventually became friends. In August 2015, Ilnicki asked

Karani via text message whether Karani knew if any BPD officers

were selling unwanted firearms at a discounted price. Karani

responded that he would "hook [Ilnicki] up." The pair discussed

the various firearms of interest to Ilnicki, who ultimately settled

on a Glock, model 30S, .45 caliber pistol.

That model did not meet Massachusetts' consumer safety

standards and, therefore, could be purchased from an FFL in

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Massachusetts only by qualified law enforcement officers, which

precluded Ilnicki from purchasing the gun on his own. See Mass.

Gen. Laws ch. 140, § 123 (prohibiting the sale of certain

categories of firearms in Massachusetts); 501 Mass. Code Regs. §

7.02 (identifying the categories of firearms that are prohibited);

see also 18 U.S.C. § 926B (providing that, "[n]otwithstanding any

other provision of the law of any State . . . a qualified law

enforcement officer . . . may carry a concealed firearm that has

been shipped or transported in interstate commerce," except

machine guns, firearm silencers, or other destructive devices).

As a police officer, however, Karani could purchase the pistol and

was also eligible to receive a manufacturer discount.2 With the

discount, Karani paid $530 to purchase the Ilnicki Gun from

Precision Point Firearms, a federal firearms licensee ("FFL")

located in Woburn, Massachusetts.

To complete the purchase of the gun, Karani filled out

ATF Form 4473, a document that FFLs must use to gather the details

that they are required by federal law to report about persons

purchasing firearms. See 18 U.S.C. § 923(g); 27 C.F.R. § 478.124.

That data includes the purchaser's name, address, date of birth,

2 In particular, Karani was eligible for Glock, Inc.'s "Blue Label Program," which offers members of law enforcement, firefighters, paramedics, and military personnel a $75-$100 discount on certain Glock pistols. See GLOCK Blue Label Program, GLOCK, Inc., https://us.glock.com/buy/blue-label-program (last visited Nov. 17, 2020).

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ethnicity, height, and weight. Form 4473 also assists FFLs in

collecting the information needed for the criminal background

checks required under federal law.

Form 4473 also contains a series of questions intended

to assess whether an individual may lawfully purchase and possess

a firearm. For example, Questions 11.c. and 11.k. ask whether the

potential purchaser is a felon or illegally present in the United

States, statuses that preclude the possession of a firearm. See

18 U.S.C. § 922(g)(1),(5)(A). Of relevance to this case, Question

11.a. asks whether an individual is "the actual transferee/buyer"

of the firearm. Question 11.a. also offers the following

admonition: "Warning: You are not the actual buyer if you are

acquiring the firearm(s) on behalf of another person. If you are

not the actual buyer, the dealer cannot transfer the firearm(s) to

you. (See Instructions for Question 11.a.)." The associated

instructions state:

Question 11.a. Actual Transferee/Buyer: For purposes of this form, you are the actual transferee/buyer if you are purchasing the firearm for yourself or otherwise acquiring the firearm for yourself (e.g., redeeming the firearm from pawn/retrieving it from consignment, firearm raffle winner). You are also the actual transferee/buyer if you are legitimately purchasing the firearm as a gift for a third party. ACTUAL TRANSFEREE/BUYER EXAMPLES: Mr. Smith asks Mr. Jones to purchase a firearm for Mr. Smith. Mr. Smith gives Mr. Jones the money for the firearm. Mr. Jones is NOT THE ACTUAL TRANSFEREE/BUYER of the firearm and must answer "NO" to question 11.a. The

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licensee may not transfer the firearm to Mr. Jones. However, if Mr. Brown goes to buy a firearm with his own money to give to Mr. Black as a present, Mr. Brown is the actual transferee/buyer of the firearm and should answer "YES" to question 11.a.

The answer to Question 11.a. must be "Yes" for the sale

to proceed; that is, the individual filling out the form must

attest that he is the actual transferee/buyer of the gun. As the

instructions explain, an individual falls into that category if he

purchases the gun either for himself or as a gift for a third

party. The Form does not, however, ask an individual to identify

which of those two scenarios applies.3

In September 2015, Karani checked "Yes" in response to

Question 11.a., attesting that he was the "actual

transferee/buyer" of the Ilnicki gun. He did not indicate to the

FFL whether he was purchasing the firearm for himself or as a gift

and the FFL did not ask.

In addition to Form 4473, Karani also signed an

"Affidavit in Support of Handgun Purchase for Official Duty" ("the

Ilnicki Affidavit" or "the Affidavit"). By signing the Affidavit,

Karani swore, under penalty of perjury, that he was purchasing the

3 If an FFL nonetheless becomes aware during a transaction that the individual is purchasing a firearm as a gift, the FFL might, as a matter of practice, keep the firearm in the store until the recipient picks it up, at which point the recipient himself will complete ATF Form 4473 and undergo a background check. There does not seem to be any law or regulation that explicitly requires this practice.

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firearm to "directly or indirectly supply [himself] with a handgun

for [his] official duties as a law enforcement official or member

of the United States military."4

Either before or shortly after Karani purchased the gun,

Ilnicki provided Karani confirmation of his firearms license and

paid Karani $500 in cash. Ilnicki testified that he intended to

give Karani $530, but the ATM would allow him to take out only

$500. When Ilnicki said he would owe Karani $30, Karani responded

that Ilnicki could make up the difference with a round of drinks.

When Karani completed the documents to transfer the gun

to Ilnicki, he entered the incorrect serial number.5 That serial

number -- XRF158 -- belonged to another Glock firearm that was

4 The FFL testified at trial that the Affidavit was prepared by his attorney for the FFL's own "peace of mind" and to protect him from liability under state law by confirming Karani's status as a law enforcement officer. In closing, however, defense counsel argued that the sole purpose of the Affidavit was to confirm Karani's eligibility for the Glock discount. Although the impetus for the Affidavit is thus somewhat unclear, this uncertainty does not affect the issues presented in this case. The Affidavit was withdrawn from the jury's consideration for the reasons explained infra in Section I.F. 5 Mass. Gen. Laws ch. 140, §§ 128A and 128B require all gun sales, transfers, inheritances, or losses to be reported to the Massachusetts Department of Criminal Justice Information Services Firearms Records Bureau through the online Massachusetts Gun Transaction Portal. See Massachusetts Gun Transaction Portal, https://mircs.chs.state.ma.us/fa10/action/home?app_context=home& app_action=presentHome (last visited Nov. 4, 2020). The required information includes a detailed description of the transferred weapon (caliber, make, model, and serial number) and the name and address of both the seller/transferor and buyer/transferee. Mass. Gen. Laws ch. 140, § 128B.

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purchased by Karani less than a year earlier and was transferred

to another individual, Joseph DePasquale, just two days after its

purchase. The timing of that transfer aroused ATF's suspicion and

led agents to investigate whether Karani had unlawfully purchased

the gun on behalf of DePasquale.

B. The DePasquale Transfer

Like Ilnicki, Karani knew DePasquale through working in

the Boston nightlife industry. DePasquale's father owned various

restaurants and nightclubs in Boston for which Karani regularly

provided police detailing services. DePasquale testified that,

after he told Karani that he was getting his gun license, Karani

offered to help him purchase a firearm at a law enforcement

discount. Based on DePasquale's preferences, Karani purchased a

Glock, model 27, .40 caliber pistol ("the DePasquale gun") in

November 2014, from FFL North Shore Firearms, LLC, in Middleton,

Massachusetts. DePasquale was prohibited from purchasing that

model Glock on his own because it could be purchased from an FFL

in Massachusetts only by qualified law enforcement officers for

the same reasons described above with respect to the Ilnicki gun.

See Mass. Gen. Laws ch. 140, § 123; 501 Mass. Code Regs. § 7.02;

see also 18 U.S.C. § 926B. Karani also purchased a holster for

the DePasquale gun.

Karani completed and signed an ATF Form 4473 for the

DePasquale gun identical to the one described above with respect

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to the Ilnicki gun. Karani similarly checked "Yes" to Question

11.a. He also signed a document titled "Certification Letter,"

stating, not under penalty of perjury, that he was a law

enforcement officer purchasing the firearm for "on or off duty use

and . . . not . . . for resale."6

On November 19, 2014, Karani sent DePasquale a text

message stating: "picked up your piece today. gotta good deal on

it. . . . came out to $500 w/tax. should wait a few days before

we do the transfer." DePasquale agreed to pay Karani the "exact

amount" and sent Karani a picture of his valid firearms license.

On November 21, Karani completed the paperwork to transfer

ownership of the firearm to DePasquale.

A week later, Karani transferred physical possession of

the gun to DePasquale and arranged for payment at a later date.

6 At trial, a seventeen-year ATF veteran explained the function of the Letter somewhat inconsistently. Compare Docket No. 106, at 136 (explaining that the Letter was prepared by the wholesaler/distributor and had the dual effect of confirming Karani was a law enforcement officer eligible to purchase a gun that was otherwise prohibited under Massachusetts law, and providing assurance to the manufacturer that Karani was eligible to receive the manufacturer's law enforcement discount), with Docket No. 106, at 141-42 (explaining that the Letter was not prepared for the manufacturer to confirm eligibility for the discount, but instead was a form that an FFL is required by Massachusetts law to keep in his records). For reasons we will explain infra at note 14, however, the origin and purpose of the Certification Letter do not impact our analysis of the issues presented in this appeal.

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DePasquale ultimately paid Karani $540, which was the total cost

of the firearm and holster with Karani's law enforcement discount.

C. The Indictment

In April 2017, Karani was indicted on four counts of

knowingly making a false statement in connection with purchasing

a firearm. Counts 1 and 2 alleged violations of 18 U.S.C.

§ 922(a)(6), which makes it unlawful for any individual "knowingly

to make any false or fictitious oral or written statement . . .

with respect to any fact material to the lawfulness" of a federal

firearms sale. Counts 3 and 4 alleged violations of 18 U.S.C.

§ 924(a)(1)(A), which provides that whoever "knowingly makes any

false statement . . . with respect to the information required

. . . to be kept in the records" of an FFL, "shall be fined[,]

. . . imprisoned not more than five years, or both."

Counts 1 and 3 involved Karani's purchase of the

DePasquale gun under the respective statutes. Count 1 alleged

that Karani made two false statements in violation of § 922(a)(6):

(1) by claiming that he was the "actual transferee/buyer" of the

DePasquale gun on the ATF Form 4473 that he completed at the time

of purchase; and (2) by stating on the Certification Letter that

he was purchasing the DePasquale gun for "official use and not for

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resale."7 Count 3 alleged that Karani's statement on the ATF Form

4473 alone also violated § 924(a)(1)(A).

Counts 2 and 4 involved Karani's purchase of the Ilnicki

gun under the respective statutes. Count 2 alleged that Karani

made two false statements in violation of § 922(a)(6): (1) by

asserting that he was the "actual transferee/buyer" of the Ilnicki

gun on the ATF Form 4473 that he completed at the time of purchase;

and (2) by claiming on the Ilnicki Affidavit that he was

"indirectly or directly" purchasing the gun for "official use."

Count 4 alleged that Karani's statement on the ATF Form 4473 alone

also violated § 924(a)(1)(A).

D. Karani's Defense at Trial

In his opening statement, Karani presented the essence

of his defense: he "reasonably view[ed] the transfer of the two

firearms at the police discount as being a gift to his friends"

within the meaning of Form 4473. On the third day of trial,

however, the court informed counsel that it intended to charge the

jury "that [Form 4473] pertains to a transfer of a gun or gift of

a gun, not of a discount, and that it is not a defense to the case

to say that Karani was giving a discount." Defense counsel

objected to no avail, arguing that the court was upending the

7The indictment incorrectly quotes the Certification Letter, which actually states that the gun was purchased for "on or off duty use and . . . not . . . for resale." This discrepancy is discussed in further detail infra in Section II.E.

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defense and that whether the "gift" in ATF Form 4473 refers to the

gun itself or the transfer of a discount was a factual question

for the jury to decide.

Testifying on the fourth day of trial, Karani conceded

that he never intended to keep either the DePasquale or the Ilnicki

gun. In both instances, he intended to use his law enforcement

status to purchase a gun at a discounted price for a friend.

Despite the court's warning that it would instruct the jury that

the discount was not a gift, Karani maintained that he was truthful

in his purchases because he reasonably believed that the discount

constituted a gift. Recognizing that the court's previewed

instruction foreclosed that defense, Karani also testified that

the guns themselves were gifts because he transferred them without

profit, was reimbursed only after he had purchased the guns with

his own money, was not reimbursed fully for the Ilnicki gun, and

was not compensated for his time or travel expenses.

E. Jury Instructions

The district court instructed the jury on the fifth day

of trial. The court began by explaining that Karani was indicted

on four counts of knowingly making a false statement under two

different statutes, with respect to two different purchases. In

defining a "gift" ("the gift instruction"), the court stated:

Now, Form 4473 describes an actual buyer/transferee as one who buys a firearm for his own use or one who legitimately buys a firearm as a gift for [a]

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third party. A "gift" means something that is voluntarily transferred to someone without payment, without compensation. In Form 4473, "gift" refers to the firearm, not the discount.

The court further explained that the jury had to decide Karani's

intent ("the actual purchaser instruction"):

Was [Karani] buying the firearm for himself or as a gift for someone else or did he buy it for another with the intention to transfer the gun to that person with the expectation that the person would pay for it and did so, in which case he is not the actual purchaser.

The court pointed out that Karani was charged with making

two false statements concerning each purchase in Counts 1 and 2:

one each on ATF Form 4473 and a supporting document. The court

informed the jury that, even though the indictment alleged that

Karani made both false statements for each gun purchase, there is

an indictment convention that "and" means "or" and "or" means

"and."8 Accordingly, the court explained, "the [g]overnment d[id]

not have to prove . . . that the [d]efendant made a false statement

in two documents."9 The court further informed the jury that "all

12 of you have to be in agreement as to one or the other or both;

8 The parties cite no such generally applicable indictment convention. See infra at note 31. 9 This instruction, when read in the context of the complete jury charge, sought to inform the jury that, even though Counts 1 and 2 each alleged two separate false statements (one each in ATF Form 4473 and a supporting document), the government needed to prove only one false statement on each count in order to sustain a conviction on that count.

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that if all of you do not agree that the [d]efendant made a false

statement in at least one of these documents and which one, you

must find him not guilty."

Following the jury charge, defense counsel objected only

to the court's gift instruction.

F. Questions from the Jury

On the first afternoon of deliberations, the jury

submitted three questions to the court, two of which are relevant

to this appeal: (1) "Under which counts is a false statement on a

4473 a violation?" and (2) "Under which counts would a false

statement on the affidavits signed at the FFL(s) (not the 4473) be

a violation?"10 After a lengthy discussion with counsel, the court

responded: (1) "[O]n all counts, 1 through 4, a false statement on

Form 4473 is a violation of law";11 and (2) "Count 1 is the only

count that references an affidavit on which the [d]efendant is

accused of representing that the 'purchase was for official use

and not for resale.'"12

10 The third question asked for a transcript of Karani's testimony, which the court informed the jury was not yet available. 11 As noted, there were two ATF Form 4473s at issue: one involving the DePasquale gun on Counts 1 and 3 and one involving the Ilnicki gun on Counts 2 and 4. 12 Although the court used the term "affidavit," it was referencing the Certification Letter in Count 1. The implications of the court's misuse of the word affidavit are discussed infra in Section II.E.

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This explanation modified an earlier instruction of the

court that a conviction could be sustained on Count 2 for the

Ilnicki gun based on either the ATF Form 4473 or the Ilnicki

Affidavit.13 The court's revised instruction left only the ATF

Form 4473 as grounds for conviction on Count 2, but left Count 1

untouched. For the DePasquale gun, the subject of Count 1, either

the ATF Form 4473 or the Certification Letter could sustain a

conviction. Defense counsel objected to this modification,

insisting that the court's logic on Count 2 applied equally to

Count 1, and that a false statement on an ATF Form 4473 was

necessary for a conviction on either count. Specifically, defense

counsel argued that because the Certification Letter was not

required for the sale to proceed under federal law, a false

statement on the Certification Letter was not an independent basis

for a conviction on Count 1.14

13 After much back and forth with counsel, the court decided that the Affidavit cited in Count 2 was too "broad" to be submitted to the jury because, unlike the Certification Letter, it did not include a statement that Karani was not purchasing the gun for resale. This supplemental instruction triggered several additional questions from the jury relating to the Count 2 Affidavit. As we shall further explain at the end of this section, that back and forth affected the jury's ultimate task on each count. 14On appeal, Karani no longer argues that the Certification Letter could not support a conviction on Count 1, which charged a violation of 18 U.S.C. § 922(a)(6). He argues only that the court's original and supplemental instructions regarding the Certification Letter were incorrect and confused the jury. The rationale for this change of position seems clear. To prove a violation of § 922(a)(6), the government needed to prove that an

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Approximately one hour later, the jury submitted two

additional questions not relevant to this appeal.15 Less than a

half hour after the court answered those questions, the jury posed

two additional questions, one of which is relevant here:16

Count 2 on the indictment indicated that [Karani] signed an affidavit that the purchase was for official use. Per your first note, you said only Count 1 [] references the affidavit. The second count would fall to a unanimous vote if the affidavit is relevant. So, we just want to check on if that would be true.

After another lengthy conversation with counsel, the

court concluded that it would not retract its previous instruction

oral or written statement was made knowingly, was false, and was material to the lawfulness of a federal firearms sale. 18 U.S.C. § 922(a)(6). Unlike its counterpart, § 924(a)(1)(A), there is no requirement in § 922(a)(6) that the statement be made in a record required by law to be kept by an FFL. Neither is there any requirement that the statement be made in a form required by law or even be one that an individual was required by state or federal law to make. Id. The manner or form of a knowingly false statement is irrelevant so long as the statement is material to the lawful sale of the firearm. Id. Assuming, then, that the statement in the Certification Letter was material to the lawfulness of the sale, a proposition which Karani does not challenge, it was actionable under § 922(a)(6). 15 In the first question, the jury requested a copy of the indictment, which the court provided. In the second question, the jury again asked for a transcript of Karani's testimony and also requested a transcript of the testimony of one of the government's witnesses. The court informed the jury that the requested transcripts could not be prepared "within a reasonable time." 16 In the additional question, the jury asked the court "[p]ursuant to [its] last answer, what [qualifies as] a 'reasonable time'" for the requested transcripts. The court provided the requested transcripts to the jury the following business day.

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directing the jury to disregard the Ilnicki Affidavit in Count 2.

Yet, given the jury's continuing confusion about the focus of its

deliberations, the court deemed it appropriate to provide the jury

with the following supplemental verbal instruction:

All of the Counts, 1, 2, 3 and 4, allege that the false statement was that the [d]efendant was the actual purchaser, and that was made on Form 4473. Now, for each count, it's the same allegation on each count and the same form for each count. Count 1 also alleges substantially the same false statement on an affidavit that says that he bought for official use and not for resale. For purposes of 4473, in all counts he is an actual purchaser if he buys for his own use or is buying to make a gift of the firearm to someone else. For purposes of the affidavit in Count 1, he is a buyer if he bought for official use and not for resale. Those are the facts that you need to examine the evidence, as to which you need to examine and as to which you make a determination. Did he buy for his own use or did he buy for official use or did he buy for resale. . . . So that is really what I can explain to you. I'm not sure I can give you a whole lot more explanation and now the question for you is does that explain enough for you to be able to determine your verdict?

The foreperson responded "No," and again asked about the

Ilnicki Affidavit and its relation to Count 2. The court

responded: "Don't worry about Count 2. The affidavit in Count 2

you can ignore." To clarify further the jury's task, the court

explained that the jury

should first look at 4473 and see whether [Karani] falsely made a statement on that. If you find he did not, then in Count 1 go to the affidavit. And

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if he did not with respect -- if you find that he did not make a false statement under the affidavit on Count 1 as well, then you may find -- must find him not guilty. On Counts 2, 3 and 4, if you find he did not make a false statement knowingly on the form, 4473, then you also must find him not guilty as to Counts 2, 3 and 4.

The jury submitted yet another question to the court on

the morning of the sixth trial day:

Sorry for continuing to ask questions regarding the affidavit in Count 1, but assuming the jury is unable to reach a consensus in regards to whether the [d]efendant knowingly made a false statement on the 4473, but can [all capitals double underlined] reach a consensus that he lied on the affidavit knowingly, would the jury find the [d]efendant guilty on Count 1 or would it continue to be hung?

The court17 conferred with counsel and provided the

following verbal answer: "[Y]es, if the jury finds unanimously

that the [d]efendant knowingly made a false statement in the

affidavit, then the jury should return a guilty finding on

Count 1." The court also gave the jury an Allen18 charge in

response to its suggestion that it was hung.

At this point, after the numerous exchanges between the

court and the jury, this was the posture of the case: (1) a false

17On the sixth day of trial, Judge Leo T. Sorokin covered for Judge Rya W. Zobel, who was unavailable. 18An Allen charge is a "supplemental jury instruction given by the court to encourage a deadlocked jury, after prolonged deliberations, to reach a verdict." Allen Charge, Black's Law Dictionary (11th ed. 2019); see also Allen v. United States, 164 U.S. 492 , 501-02 (1896).

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statement that Karani was the actual buyer of the DePasquale gun

on ATF Form 4473 was sufficient to sustain a conviction on Count 1

and necessary to sustain a conviction on Count 3; (2) a false

statement that the DePasquale gun was for on or off duty use and

not for resale on the Certification Letter was an independent basis

for conviction on Count 1; (3) a false statement that Karani was

the actual buyer of the Ilnicki gun on ATF Form 4473 was necessary

for a conviction on both Counts 2 and 4; and (4) a false statement

on the Ilnicki Affidavit charged in Count 2 was no longer a basis

for conviction on Count 2.

Approximately one hour later, the jury reported by

general verdict that it had found Karani guilty on Counts 1, 2,

and 4, and not guilty on Count 3.19

II.

Karani argues that his convictions must be vacated, and

a new trial ordered, because of prejudicial errors in the jury

instructions. First, he asserts that the court's instructions and

19 The convictions on Counts 1, 2, and 4 have this internal logic. The jury must have determined that Karani's statement that he was the actual buyer of the Ilnicki gun on Form 4473 was false because that statement was the sole basis for a guilty verdict on Counts 2 and 4. The jury found no falsity in Karani's statement that he was the actual buyer of the DePasquale gun on Form 4473 because that statement was the sole basis for Count 3, on which Karani was acquitted. The jury's conviction on Count 1 must have been based on the Certification Letter alone because its acquittal on Count 3 meant that it necessarily found no falsity in the DePasquale Form 4473, the alternative basis for a conviction on Count 1.

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supplemental instruction on the terms "gift" and "actual

purchaser" were incorrect and effectively directed a verdict for

the government. Second, Karani avers that the court misrepresented

the content and legal effect of the Certification Letter. He

contends that if either ground is insufficient on its own to

warrant a new trial, the cumulative effect of the court's errors

requires that outcome.

A. Standard of Review

When addressing a preserved claim of legal error in jury

instructions, we review de novo. See, e.g., United States v.

Figueroa-Lugo, 793 F.3d 179 , 190-91 (1st Cir. 2015). This standard

applies to Karani's challenge to the gift instruction.

Karani concedes, however, that he did not preserve his

objection to the court's actual purchaser instruction or the

court's treatment of the Certification Letter. We therefore review

those portions of the charge and the supplemental instructions for

plain error. United States v. Velázquez-Aponte, 940 F.3d 785 , 800

(1st Cir. 2019). To demonstrate plain error, Karani must show

that (1) the district court erred, and that (2) the error was clear

and obvious, (3) it affected his substantial rights, and (4) it

"seriously impaired the fairness, integrity, or public reputation

of judicial proceedings." Id. at 793 (quoting United States v.

Montañez-Quiñones, 911 F.3d 59 , 63-64 (1st Cir. 2018)).

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B. Legal Background

Karani was found guilty on Counts 1 and 2 of making a

false statement during the purchase of a firearm in violation of

18 U.S.C. § 922(a)(6), which provides, in relevant part:

It shall be unlawful for any person in connection with the acquisition . . . of any firearm . . . knowingly to make any false or fictitious oral or written statement . . . with respect to any fact material to the lawfulness of the sale or other disposition of such firearm . . . .

Karani does not contest the materiality of his statements on

appeal, presumably because the Supreme Court has conclusively

determined that statements regarding whether an individual is

engaging in a straw purchase -- i.e., a sale in which an individual

purchases a firearm on behalf of another while claiming the firearm

is for himself -- are material to the lawfulness of a firearms

purchase. See Abramski v. United States, 573 U.S. 169 , 188-89

(2014).

Relatedly, 18 U.S.C. § 924(a)(1)(A), the basis for

Karani's conviction on Count 4, prohibits an individual from

"knowingly mak[ing] any false statement or representation with

respect to the information required by [Chapter 44 of Title 18] to

be kept in the records of [an FFL]." Although there is some

overlap between these two provisions, § 922(a)(6) encompasses all

materially false statements made regarding the legality of the

firearm sale, whereas § 924(a)(1)(A) lacks a materiality

- 21 -

requirement and applies only to statements made in records an FFL

is required to maintain.

The "twin goals" of these provisions, within the broader

statutory scheme, are "to keep guns out of the hands of criminals

and others who should not have them, and to assist law enforcement

authorities in investigating serious crimes." Abramski, 573 U.S.

at 180 . Exercising congressionally delegated authority, the

Attorney General authorized ATF to develop Form 4473 as a means of

implementing these goals. See id. at 172-73. The Supreme Court has explained that the federal

firearms laws reflect a congressional intent to regulate straw

purchases regardless of whether the "true purchaser" -- i.e., one

who sends an agent to the FFL to purchase a gun on his behalf --

was lawfully entitled to possess the gun. Id. at 186-87. The

Court noted that Congress chose to enforce gun regulations by

requiring a purchaser to transact directly with an FFL when that

individual is purchasing a gun from the FFL. Id.

C. The Gift Instruction

ATF Form 4473 states that a person is an actual purchaser

if he purchases a gun for his own personal use or as a gift. In

its instructions to the jury, the district court defined a "gift,"

as that term is used in Form 4473, as "[a] firearm, not [a]

discount," that is transferred voluntarily "without payment,

without compensation." Karani contends that the court's

- 22 -

definition is inaccurate and, because the term is not defined in

Form 4473 or the applicable statutes, the court erred in defining

what constitutes a "gift" for the jury.

We need look no further than the plain and ordinary

meaning of the language in Form 4473, however, to conclude that

the court properly defined a gift in these circumstances. Cf.

Textron Inc. v. Comm'r of Internal Revenue, 336 F.3d 26 , 31 (1st

Cir. 2003) ("[I]f the language of a statute or regulation has a

plain and ordinary meaning, courts need look no further and should

apply the regulation as it is written."). The instructions to

Question 11.a. state that an individual is an actual purchaser if

he buys a "firearm as a gift for a third party." That language

makes clear that it is the firearm itself -- not a discount or any

other associated benefit of the transfer -- that must be "given."

To discern when a firearm is transferred as a "gift," we

look to the ordinary meaning of that term. Legal and non-legal

dictionaries alike define a gift by using terminology comparable

to that used by the district court -- a transfer without

remuneration. See Gift, Black's Law Dictionary (11th ed. 2019)

("The voluntary transfer of property to another without

compensation"); Gift, Merriam-Webster's Collegiate Dictionary

(11th ed. 2014) ("[S]omething voluntarily transferred by one

person to another without compensation"). The Supreme Court has

described a gift in these circumstances using similar language in

- 23 -

dicta. See Abramski, 573 U.S. at 186-88 (explaining that ATF

sought to allow bona fide gifts and prohibit straw purchases where

an individual purchases a gun on behalf of another with

compensation or reimbursement); see also id. at 199 (Scalia, J.,

dissenting) (explaining that, under the government's view, a

transfer lawfully qualifies as a gift "[s]o long as no money

changes hands, and no agency relationship is formed"). Based on

the foregoing, we conclude that the district court properly defined

the term "gift" in Form 4473 as a firearm, not a discount,

transferred without compensation.

Karani contends that he was nevertheless entitled to

submit his own understanding of the term "gift" to the jury because

his understanding of that term was inextricably intertwined with

whether he (1) made a false statement on Form 4473 and (2) did so

knowingly. In making this argument, Karani relies first on United

States v. DiRico, 78 F.3d 732 (1st Cir. 1996).

In DiRico, where materiality was an element of the

offense, we reversed the district court's determination that the

materiality of a statement on a tax return was a legal question

for it, rather than the jury, to decide. Id. at 736. Although it

was the duty of the court to "properly instruct the jury on the

legal definition of materiality," the jury had to decide

materiality based on the evidence proffered at trial. Id.

- 24 - Here, unlike in DiRico, the court did not remove an

element of the offense from the jury's consideration. Indeed, the

term "gift" is not an element of the false statement offenses.

Instead, it is a term relevant to the determinations that the jury

had to make on the elements of the offenses -- for Counts 1 and 2:

knowledge, falsity, and materiality; for Counts 3 and 4: knowledge,

falsity, and appearance in a record that an FFL was required to

keep by law. The court had a responsibility to define the term

"gift" because the jury's understanding of that term was essential

to its determinations on the elements of the offenses.

Moreover, contrary to Karani's assertion, the court's

definition of "gift" did not necessitate a finding that his

statements were false. After the court informed the parties that

it would instruct the jury that it must find that the firearm

itself, not the discount, was a gift, Karani adjusted his defense.

Although he still argued in closing that the discount was a gift,

he also argued that the firearms themselves were gifts under the

court's definition because he did not profit from their transfers,

he expended time and resources for which he was not compensated,

and he paid for the guns out-of-pocket before he was reimbursed.

Thus, the court's definition of gift did not invade the duty of

the jury to decide whether Karani's statements were false.

We find similarly unavailing Karani's argument, relying

on Cheek v. United States, 498 U.S. 192 (1991), that his

- 25 -

understanding of the term "gift," even if it was wrong, was a

mistake of law that was critical to the jury's determination of

whether he knowingly made a false statement. In Cheek, the

defendant was charged with willfully violating income tax laws.

Id. at 194. Although the defendant conceded that he violated the

law, he argued that his violation was not willful because he

sincerely believed that income taxes were unconstitutional. Id.

at 195-96. The district court instructed the jurors that an

"objectively reasonable good-faith misunderstanding of the law

would negate willfulness." Id. at 196-97. However, it also told

them that the defendant's belief that he had no legal duty to pay

taxes was not objectively reasonable. Id. The Supreme Court reversed, explaining that the sincerity of the defendant's belief

as to whether he had a legal duty to pay taxes, even if

unreasonable, was a jury question because it went to the heart of

whether he had committed a "willful" violation of the tax code.

Id. at 203. Cheek is inapt precedent for Karani's knowledge-based

claim of error. As the Supreme Court has explained, the "highly

technical" tax code risks "ensnaring individuals engaged in

apparently innocent conduct." Bryan v. United States, 524 U.S.

184 , 194 (1998). To counteract that risk, "willful" mens rea in

certain portions of the tax code requires specific intent to

violate a known legal duty. Id. at 193-96. If the jury credits

- 26 -

a defendant's proffered ignorance or misunderstanding of the

specific legal duty he is charged with violating, he cannot be

held criminally liable. Cheek, 498 U.S. at 202 . Cheek thus carves

out a limited exception for certain tax violations to the

traditional rule that a mistake of law does not excuse a violation

of the law.20 See id. at 203-04; see also Bryan, 524 U.S. at 194 -

96.

In Bryan v. United States, to demonstrate the limited

applicability of Cheek, the Court considered specifically whether

18 U.S.C. § 924(a)(1)(D),21 which imposes an increased penalty for

"willful" violations of certain federal firearms laws, carried a

Cheek-like mens rea requirement, such that mistake of the law was

a valid defense. Bryan, 524 U.S. at 194 -96. Despite Congress'

use of the same term -- willful -- the Court held that Cheek was

inapplicable because the federal firearms laws did not present the

same danger of ensnaring apparently innocent conduct that

motivated the decision in Cheek. Id. at 195. Hence, the Court

20 That ignorance of the law is no excuse for violation of the law is "deeply rooted in the American legal system." Cheek, 498 U.S. at 199 . It is premised on the notion that "the law is definite and knowable" and, for that reason, we presume, unless Congress provides otherwise, that every person knows the law. Id. (citing Oliver Wendell Holmes, Jr., The Common Law 47-48 (1881)). 21 Pursuant to § 924(a)(1)(D), "whoever willfully violates any . . . provision of [this chapter except as otherwise provided] shall be fined under this title, imprisoned not more than five years, or both."

- 27 -

held that "willful" in the federal firearms laws "d[id] not carve

out an exception to the traditional rule that ignorance of the law

is no excuse." Id. at 196. Drawing on Bryan, we conclude that, if Cheek does not

apply to a willful violation of the federal firearms laws, it

likewise does not apply to the lesser, knowing violation at issue

here. See id. at 193 (explaining that a willful state of mind

requires an "evil-meaning mind," which is more than a knowing state

of mind). Indeed, we recognized as much in United States v. Meade,

175 F.3d 215 (1st Cir. 1999), although we considered a different

subsection of the firearms laws. There, we explained that "it

simply does not appear plausible" that Congress intended a

"knowing" violation of § 922(g), which criminalizes the possession

of a firearm by prohibited persons, "to carry a mens rea

requirement of actual knowledge of the law." Meade, 175 F.3d at

226 n.5; see also Acosta v. Loc. Union 26, UNITE HERE, 895 F.3d

141 , 145 & n.5 (1st Cir. 2018) (explaining that courts presume,

absent a material variation in the surrounding text, that a word

bears the same meaning throughout a statutory provision).

Accordingly, to prove a knowing violation of the federal

firearms laws at issue here -- §§ 922(a)(6) and 924(a)(1)(A) --

the government only needed to prove that Karani "knowingly [made]

- 28 -

a[] false . . . statement."22 In other words, it needed to show

that when Karani signed the relevant documents affirming that he

was purchasing the gun either for himself or as a gift for a third

party, he knew the facts contrary to those representations -- i.e.,

that he was purchasing a gun on behalf of another and would be

reimbursed -- and, hence, he knew his statements were false. To

assist the jury in making that determination, the district court

properly and accurately instructed the jury on the legal meaning

of the term "gift," and, in doing so, did not direct a verdict on

any element of the offense or otherwise invade the province of the

jury. We therefore detect no error in the district court's gift

instruction.

D. Actual Purchaser Instruction

Karani argues for the first time on appeal that there

were multiple errors in the district court's actual purchaser

instruction, which asked the jury to consider whether:

[Karani was] buying the firearm for himself or as a gift for someone else or did he buy it for another with the intention to transfer the gun to that person with the expectation that the person would pay for it and did so, in which case he is not the actual purchaser.

22 The other requirements of either provision are not at issue here because (1) again, Karani does not challenge materiality under § 922(a)(6), and (2) the false statements alleged to violate § 924(a)(1)(A) in Counts 3 and 4 were made in Form 4473s, which are "required by [Chapter 44 of Title 18] to be kept in the records of [an FFL]," see 18 U.S.C. § 923(g); 27 C.F.R. § 478.124.

- 29 -

As noted above, we review this challenge only for plain error.

See Velázquez-Aponte, 940 F.3d at 800 .

Karani initially contends that the actual purchaser

instruction presupposed that a transfer of a firearm at a discount

could never be considered a gift. As we have explained, the

availability of a discount does not render a firearm purchase a

"gift." Accordingly, the district court did not err by instructing

the jury that a gun purchased by someone who intends to transfer

the firearm to someone else, with reimbursement for the cost, is

not a "gift" and, hence, the transferor is not the actual buyer.

Karani also objects to the actual purchaser instruction

quoted above on the ground that the court directed the jury to

find that Karani was not an actual purchaser because it used the

facts of this case as an example, and stated that, under those

facts, the defendant could not be considered an actual purchaser.

This claim of error also fails. Although it would be

easy to mistake the example used in the court's instruction for

the facts of this case -- an individual purchasing a gun for

another with the expectation that the person would, and did, pay

for the gun -- the instruction merely illustrated a quintessential

straw purchase. That Karani admitted to facts that have a strong

resemblance to a typical straw purchase does not render the court's

instruction erroneous.

- 30 -

Indeed, the district court mirrored language routinely

used by the Supreme Court and our sister circuits in describing a

straw versus actual purchaser. See, e.g., Abramski, 573 U.S. at

171-72 (describing a straw purchaser as "a person who buys a gun

on someone else's behalf while falsely claiming that it is for

himself"); United States v. Blake, 394 F.3d 1089 , 1090 (8th Cir.

2005) (describing a straw purchaser as one who "purchased [guns]

from [FFLs] on behalf of others who provided the money for the

guns"); United States v. Ortiz, 318 F.3d 1030 , 1038 (11th Cir.

2003) (identifying a straw transaction as one where the defendant

"at the time of completing Form 4473 had no intention of keeping

the firearms or giving them as a gift").

Accordingly, we discern no error in the court's actual

purchaser instruction.23

E. The Certification Letter

Karani asserts that the district court committed several

errors in instructing the jury on Count 1 concerning the substance

and legal effect of the Certification Letter. Those errors can be

divided into two categories: (1) claims that the court

mischaracterized the Certification Letter, and (2) claims that the

court improperly instructed the jury on the significance of the

23 Because we conclude that the district court's gift and actual purchaser instructions were not erroneous, we need not consider appellant's argument that the alleged errors were structural.

- 31 -

Certification Letter to Count 1.24 Karani concedes that these

claims were not preserved and, therefore, we review for plain

error.

1. Mischaracterization of the Certification Letter

Karani correctly points out that the district court

inaccurately referred to the Certification Letter as an affidavit

-- mirroring the language of the indictment -- and also misquoted

the Certification Letter's language on several occasions. He

contends that these instructional errors resulted in an improper

variance between the charges against him and the proof at trial.

To prevail on a claim of improper variance, an appellant

must "show a material factual difference between the crime charged

in the indictment and the crime proved at trial." United States

v. Rodríguez-Milián, 820 F.3d 26 , 33 (1st Cir. 2016). He must

also demonstrate that the variance resulted in prejudice. Id.

None of Karani's contentions concerning the Certification Letter

satisfies these requirements.

First, Karani argues that the court's instructions and

supplemental instructions were improper because the Certification

Letter was not signed under penalty of perjury and was, therefore,

not an affidavit. Karani is correct; the Letter was not an

24Again, we note that Karani does not argue on appeal that the Certification Letter itself was a legally insufficient basis for his conviction on Count 1. See supra note 14.

- 32 -

affidavit. Indeed, the government concedes as much, even though

Count 1 of the indictment classifies the Certification Letter as

an affidavit and both parties used that term to describe the

Certification Letter at trial. The Ilnicki Affidavit, which was

signed under penalty of perjury and, as previously discussed,

ultimately withdrawn from the jury's consideration on Count 2, was

apparently the source of this confusion.

Nevertheless, Karani fails to explain how the court's

mischaracterization of the Certification Letter as an affidavit

resulted in a material factual difference between the crime charged

and the crime proven at trial, or prejudiced him in any way. As

we have already explained, to prove a violation of § 922(a)(6) on

Count 1, the government had to prove only that Karani knowingly

made a false statement that was material to the legality of the

federal firearms purchase.25 The statute is not concerned with the

form of the statement so long as it is material, and Karani does

not challenge materiality.26 See § 922(a)(6). Whether the

Certification Letter was an affidavit is simply not relevant to

whether a statement made within the document is a violation of

25 See supra note 14 and Section II.B. 26 See supra note 14 and Section II.B. The allegedly false statement in the Certification Letter -- that the DePasquale gun was for "on or off duty use and . . . not . . . for resale" -- was material to the lawfulness of the sale because it concealed that Karani was engaging in a straw purchase. See Abramski, 573 U.S. at 188-89 .

- 33 -

§ 922(a)(6). Accordingly, the court's errors did not cause a

prejudicial variance.

Second, Karani claims that the court instructed the jury

that he declared on the Certification Letter that he purchased the

DePasquale gun "for official use and not for resale," when, in

fact, the Letter states that he purchased the firearm for "on or

off duty use and . . . not . . . for resale."27 Karani contends

that the jury could have found that he purchased the gun for his

own off-duty use -- meaning that his statement on the Certification

Letter would be true -- but convicted him based on the court's

incorrect instruction that the Certification Letter stated that

the gun was only for official use. Karani further asserts that

the jury must have relied on the Certification Letter in finding

him guilty on Count 1.

For reasons we have already explained, we agree with

Karani's contention that the jury likely convicted him on Count 1

based solely on his statements in the Certification Letter.28

Nevertheless, Karani fails to demonstrate the requisite prejudice

27 The court's instruction quotes the language in Count 1 of the indictment, which states that Karani "signed an affidavit that the purchase was for official use and not for resale." It is the Affidavit in Count 2, however, not the Certification Letter in Count 1, that states that Karani was purchasing the firearm to "directly or indirectly supply [himself] with a handgun for [his] official duties as a law enforcement official." 28 See supra note 19.

- 34 -

resulting from the court's misstatement of the Letter's specific

language. The jury was given the Certification Letter and was

therefore able to review the language itself. Moreover, the

distinction between a purchase for his own official or off-duty

use is inconsequential in the circumstances of this case. The

question before the jury was whether Karani purchased the firearm

for his own use (official or otherwise) or for resale. By

insisting that he purchased the guns as gifts for his friends, he

conceded that he did not purchase the guns for his own use. Hence,

the court's imperfect use of language had no impact on the trial

and is not reversible plain error.

2. Certification Letter's Significance to Count 1

Karani argues that, mistaken description aside, the

instructions related to the Certification Letter were

substantively problematic in multiple respects. He contends that

the court (1) confused the jury by giving inconsistent instructions

regarding whether the government was required to prove a false

statement in both the Certification Letter and ATF Form 4473, as

alleged in Count 1 of the indictment; (2) failed to address the

duplicity in the indictment; and (3) overlooked the government's

waiver of reliance on the Certification Letter as a basis for

conviction on Count 1. We address each argument in turn.

a. Inconsistent instructions. Karani is correct that

the court provided conflicting instructions concerning the

- 35 -

significance of the Certification Letter to the Count 1 charge.

In some parts of its instructions, the court told the jury that a

false statement in either the Certification Letter or Form 4473

could support a conviction on Count 1, and at other times it

referenced only the statement in the Form 4473.29 At the end,

however, when the jurors asked for clarification during their

deliberations, the court instructed them, correctly, that either

statement could form the basis for a conviction on Count 1.30 We

presume jurors follow a district court's curative instruction.

See e.g., United States v. Sepulveda, 15 F.3d 1161 , 1185 (1st Cir.

1993).

b. Duplicitous indictment. Count 1 of the indictment

states that Karani "represented on ATF Form 4473 that he was the

actual transferee/buyer of the firearm and signed an affidavit

29 For example, the court explained to the jury that the "indictment charges that the Defendant represented on 4473 that he was the actual purchaser of the firearm, and at the end of Counts 1 and 2 signed an affidavit that the purchase was for official use and not for resale." Docket No. 109, at 66. In another instance, the court stated that "[a] false statement is one that gives information that is not true or correct. Here the Defendant's answer to Question 11A on this Form 4473, that he was the actual purchaser of the firearm, that's the alleged false statement." Docket No. 109, at 65. In yet another instance, the court explained to the jury that Counts 1 and 2 alleged that Karani made a false statement by representing on "ATF Form 4473 as to each sale that he was the actual buyer for his own official use and was not buying for resale when he actually did buy to sell to someone else." Docket No. 109, at 64. 30See supra Section I.F. discussing the posture of the case following the court's several supplemental instructions.

- 36 -

that the purchase was for official use and not for resale."

(Emphasis added.) Karani claims that the indictment's use of "and"

required the government to prove a false statement in both the

Form 4473 and the Certification Letter and, for that reason, the

district court improperly instructed the jury that Karani could be

found guilty on Count 1 based on either one of the two documents.

Although this claim highlights a flaw in the indictment,

Karani's assertion of error in the court's instructions is

unavailing. Because the indictment charges two distinct and

complete violations of the same statute in a single count joined

by the conjunctive "and," it is duplicitous. See United States v.

Newell, 658 F.3d 1 , 22 (1st Cir. 2011) ("[T]his indictment [i]s

duplicitous in consolidating multiple complete offenses under

single counts."). The remedy for a duplicitous indictment is a

specific unanimity instruction to ensure that the jury understands

that its verdict must be unanimous as to which instance of the

alleged statutory violation resulted in a crime. See id. at 28 ("[T]he failure to provide a specific unanimity instruction [for

the duplicitous charges] was error."). The district court provided

such an instruction:

It is enough if [the government] proves that [d]efendant made a false statement on either Form 4473 or the affidavit or on both documents, but all 12 of you have to be in agreement as to one or the other or both; that if all of you do not agree that the [d]efendant made a false statement in at least

- 37 -

one of these documents and which one, you must find him not guilty.

No more was required.31

c. Government waiver. Finally, to the extent that Karani

argues that the court's instructions failed to account for the

government's abandonment of the Certification Letter as a basis

for conviction on Count 1, his argument fails. Although the

government did not use the phrase "Certification Letter" in its

closing argument, the government referred generally to the

substance of the Certification Letter and referenced the Letter

itself consistently throughout trial -- in its opening statement,

in direct examination of the various witnesses, and in cross-

examination of Karani. Accordingly, the government did not abandon

reliance on the Certification Letter, and Karani's argument that

the court committed plain error in failing to so instruct the jury

fails.

Affirmed.

31 Any error resulting from the court's pronouncement that there is a general indictment convention that, without limitation, "'and' means 'or' and 'or' also means 'and,'" was harmless because the court properly addressed the duplicitous indictment by instructing the jury in the disjunctive and providing a unanimity instruction. See Newell, 658 F.3d at 28 .

- 38 -

United States Court of Appeals For the First Circuit

No. 19-1031

UNITED STATES OF AMERICA,

Appellee,

v.

ADARBAAD F. KARANI,

Defendant, Appellant.

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

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Howard, Chief Judge, Lynch and Lipez, Circuit Judges.

Katherine C. Essington for appellant. Randall E. Kromm, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellee.

January 4, 2021

LIPEZ, Circuit Judge. After a six-day trial, a jury

convicted Adarbaad F. Karani, a former officer of the Boston Police

Department, on two counts of making false statements during the

purchase of a firearm, in violation of 18 U.S.C. § 922(a)(6), and

one count of making a false statement in a record required to be

kept by federal law, in violation of 18 U.S.C. § 924(a)(1)(A).

The district court sentenced Karani to concurrent three-month

terms of imprisonment, followed by a one-year term of supervised

release.

Karani appeals his conviction on all three counts,

arguing that we must vacate the conviction because the district

court's jury instructions contained several legal and factual

errors. In particular, Karani claims that the decision of the

district court to define the terms "gift" and "actual purchaser,"

used in a document essential to the purchase of the firearms,

invaded the province of the jury. He also argues that the court

provided inconsistent, mistaken, and confusing instructions on the

first count of making false statements during the purchase of a

firearm in violation of § 922(a)(6).1

After careful review of the record and the law, we

affirm.

1 This case does not implicate any Second Amendment concerns.

- 2 -

I.

A. The Ilnicki Transfer

We recount the facts, most of which are undisputed, as

the jury could have found them. In November 2015, the Boston

Police Department ("BPD") recovered and transferred to the Federal

Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") a Glock

.45 caliber pistol with serial number YVT194. ATF agents traced

the firearm's ownership to David Ilnicki, who had reported the gun

stolen about a month earlier. Ilnicki told police that the gun

was a "gift" from a "friend." ATF's investigation revealed that

the original purchaser of the firearm ("the Ilnicki gun") was

appellant Karani.

Karani met Ilnicki while working police details at

nightclubs in Boston where Ilnicki worked as a security manager

and promoter. Ilnicki testified that he initially sought to build

a rapport with Karani to ensure security ran smoothly at the clubs,

but they eventually became friends. In August 2015, Ilnicki asked

Karani via text message whether Karani knew if any BPD officers

were selling unwanted firearms at a discounted price. Karani

responded that he would "hook [Ilnicki] up." The pair discussed

the various firearms of interest to Ilnicki, who ultimately settled

on a Glock, model 30S, .45 caliber pistol.

That model did not meet Massachusetts' consumer safety

standards and, therefore, could be purchased from an FFL in

- 3 -

Massachusetts only by qualified law enforcement officers, which

precluded Ilnicki from purchasing the gun on his own. See Mass.

Gen. Laws ch. 140, § 123 (prohibiting the sale of certain

categories of firearms in Massachusetts); 501 Mass. Code Regs. §

7.02 (identifying the categories of firearms that are prohibited);

see also 18 U.S.C. § 926B (providing that, "[n]otwithstanding any

other provision of the law of any State . . . a qualified law

enforcement officer . . . may carry a concealed firearm that has

been shipped or transported in interstate commerce," except

machine guns, firearm silencers, or other destructive devices).

As a police officer, however, Karani could purchase the pistol and

was also eligible to receive a manufacturer discount.2 With the

discount, Karani paid $530 to purchase the Ilnicki Gun from

Precision Point Firearms, a federal firearms licensee ("FFL")

located in Woburn, Massachusetts.

To complete the purchase of the gun, Karani filled out

ATF Form 4473, a document that FFLs must use to gather the details

that they are required by federal law to report about persons

purchasing firearms. See 18 U.S.C. § 923(g); 27 C.F.R. § 478.124.

That data includes the purchaser's name, address, date of birth,

2 In particular, Karani was eligible for Glock, Inc.'s "Blue Label Program," which offers members of law enforcement, firefighters, paramedics, and military personnel a $75-$100 discount on certain Glock pistols. See GLOCK Blue Label Program, GLOCK, Inc., https://us.glock.com/buy/blue-label-program (last visited Nov. 17, 2020).

- 4 -

ethnicity, height, and weight. Form 4473 also assists FFLs in

collecting the information needed for the criminal background

checks required under federal law.

Form 4473 also contains a series of questions intended

to assess whether an individual may lawfully purchase and possess

a firearm. For example, Questions 11.c. and 11.k. ask whether the

potential purchaser is a felon or illegally present in the United

States, statuses that preclude the possession of a firearm. See

18 U.S.C. § 922(g)(1),(5)(A). Of relevance to this case, Question

11.a. asks whether an individual is "the actual transferee/buyer"

of the firearm. Question 11.a. also offers the following

admonition: "Warning: You are not the actual buyer if you are

acquiring the firearm(s) on behalf of another person. If you are

not the actual buyer, the dealer cannot transfer the firearm(s) to

you. (See Instructions for Question 11.a.)." The associated

instructions state:

Question 11.a. Actual Transferee/Buyer: For purposes of this form, you are the actual transferee/buyer if you are purchasing the firearm for yourself or otherwise acquiring the firearm for yourself (e.g., redeeming the firearm from pawn/retrieving it from consignment, firearm raffle winner). You are also the actual transferee/buyer if you are legitimately purchasing the firearm as a gift for a third party. ACTUAL TRANSFEREE/BUYER EXAMPLES: Mr. Smith asks Mr. Jones to purchase a firearm for Mr. Smith. Mr. Smith gives Mr. Jones the money for the firearm. Mr. Jones is NOT THE ACTUAL TRANSFEREE/BUYER of the firearm and must answer "NO" to question 11.a. The

- 5 -

licensee may not transfer the firearm to Mr. Jones. However, if Mr. Brown goes to buy a firearm with his own money to give to Mr. Black as a present, Mr. Brown is the actual transferee/buyer of the firearm and should answer "YES" to question 11.a.

The answer to Question 11.a. must be "Yes" for the sale

to proceed; that is, the individual filling out the form must

attest that he is the actual transferee/buyer of the gun. As the

instructions explain, an individual falls into that category if he

purchases the gun either for himself or as a gift for a third

party. The Form does not, however, ask an individual to identify

which of those two scenarios applies.3

In September 2015, Karani checked "Yes" in response to

Question 11.a., attesting that he was the "actual

transferee/buyer" of the Ilnicki gun. He did not indicate to the

FFL whether he was purchasing the firearm for himself or as a gift

and the FFL did not ask.

In addition to Form 4473, Karani also signed an

"Affidavit in Support of Handgun Purchase for Official Duty" ("the

Ilnicki Affidavit" or "the Affidavit"). By signing the Affidavit,

Karani swore, under penalty of perjury, that he was purchasing the

3 If an FFL nonetheless becomes aware during a transaction that the individual is purchasing a firearm as a gift, the FFL might, as a matter of practice, keep the firearm in the store until the recipient picks it up, at which point the recipient himself will complete ATF Form 4473 and undergo a background check. There does not seem to be any law or regulation that explicitly requires this practice.

- 6 -

firearm to "directly or indirectly supply [himself] with a handgun

for [his] official duties as a law enforcement official or member

of the United States military."4

Either before or shortly after Karani purchased the gun,

Ilnicki provided Karani confirmation of his firearms license and

paid Karani $500 in cash. Ilnicki testified that he intended to

give Karani $530, but the ATM would allow him to take out only

$500. When Ilnicki said he would owe Karani $30, Karani responded

that Ilnicki could make up the difference with a round of drinks.

When Karani completed the documents to transfer the gun

to Ilnicki, he entered the incorrect serial number.5 That serial

number -- XRF158 -- belonged to another Glock firearm that was

4 The FFL testified at trial that the Affidavit was prepared by his attorney for the FFL's own "peace of mind" and to protect him from liability under state law by confirming Karani's status as a law enforcement officer. In closing, however, defense counsel argued that the sole purpose of the Affidavit was to confirm Karani's eligibility for the Glock discount. Although the impetus for the Affidavit is thus somewhat unclear, this uncertainty does not affect the issues presented in this case. The Affidavit was withdrawn from the jury's consideration for the reasons explained infra in Section I.F. 5 Mass. Gen. Laws ch. 140, §§ 128A and 128B require all gun sales, transfers, inheritances, or losses to be reported to the Massachusetts Department of Criminal Justice Information Services Firearms Records Bureau through the online Massachusetts Gun Transaction Portal. See Massachusetts Gun Transaction Portal, https://mircs.chs.state.ma.us/fa10/action/home?app_context=home& app_action=presentHome (last visited Nov. 4, 2020). The required information includes a detailed description of the transferred weapon (caliber, make, model, and serial number) and the name and address of both the seller/transferor and buyer/transferee. Mass. Gen. Laws ch. 140, § 128B.

- 7 -

purchased by Karani less than a year earlier and was transferred

to another individual, Joseph DePasquale, just two days after its

purchase. The timing of that transfer aroused ATF's suspicion and

led agents to investigate whether Karani had unlawfully purchased

the gun on behalf of DePasquale.

B. The DePasquale Transfer

Like Ilnicki, Karani knew DePasquale through working in

the Boston nightlife industry. DePasquale's father owned various

restaurants and nightclubs in Boston for which Karani regularly

provided police detailing services. DePasquale testified that,

after he told Karani that he was getting his gun license, Karani

offered to help him purchase a firearm at a law enforcement

discount. Based on DePasquale's preferences, Karani purchased a

Glock, model 27, .40 caliber pistol ("the DePasquale gun") in

November 2014, from FFL North Shore Firearms, LLC, in Middleton,

Massachusetts. DePasquale was prohibited from purchasing that

model Glock on his own because it could be purchased from an FFL

in Massachusetts only by qualified law enforcement officers for

the same reasons described above with respect to the Ilnicki gun.

See Mass. Gen. Laws ch. 140, § 123; 501 Mass. Code Regs. § 7.02;

see also 18 U.S.C. § 926B. Karani also purchased a holster for

the DePasquale gun.

Karani completed and signed an ATF Form 4473 for the

DePasquale gun identical to the one described above with respect

- 8 -

to the Ilnicki gun. Karani similarly checked "Yes" to Question

11.a. He also signed a document titled "Certification Letter,"

stating, not under penalty of perjury, that he was a law

enforcement officer purchasing the firearm for "on or off duty use

and . . . not . . . for resale."6

On November 19, 2014, Karani sent DePasquale a text

message stating: "picked up your piece today. gotta good deal on

it. . . . came out to $500 w/tax. should wait a few days before

we do the transfer." DePasquale agreed to pay Karani the "exact

amount" and sent Karani a picture of his valid firearms license.

On November 21, Karani completed the paperwork to transfer

ownership of the firearm to DePasquale.

A week later, Karani transferred physical possession of

the gun to DePasquale and arranged for payment at a later date.

6 At trial, a seventeen-year ATF veteran explained the function of the Letter somewhat inconsistently. Compare Docket No. 106, at 136 (explaining that the Letter was prepared by the wholesaler/distributor and had the dual effect of confirming Karani was a law enforcement officer eligible to purchase a gun that was otherwise prohibited under Massachusetts law, and providing assurance to the manufacturer that Karani was eligible to receive the manufacturer's law enforcement discount), with Docket No. 106, at 141-42 (explaining that the Letter was not prepared for the manufacturer to confirm eligibility for the discount, but instead was a form that an FFL is required by Massachusetts law to keep in his records). For reasons we will explain infra at note 14, however, the origin and purpose of the Certification Letter do not impact our analysis of the issues presented in this appeal.

- 9 -

DePasquale ultimately paid Karani $540, which was the total cost

of the firearm and holster with Karani's law enforcement discount.

C. The Indictment

In April 2017, Karani was indicted on four counts of

knowingly making a false statement in connection with purchasing

a firearm. Counts 1 and 2 alleged violations of 18 U.S.C.

§ 922(a)(6), which makes it unlawful for any individual "knowingly

to make any false or fictitious oral or written statement . . .

with respect to any fact material to the lawfulness" of a federal

firearms sale. Counts 3 and 4 alleged violations of 18 U.S.C.

§ 924(a)(1)(A), which provides that whoever "knowingly makes any

false statement . . . with respect to the information required

. . . to be kept in the records" of an FFL, "shall be fined[,]

. . . imprisoned not more than five years, or both."

Counts 1 and 3 involved Karani's purchase of the

DePasquale gun under the respective statutes. Count 1 alleged

that Karani made two false statements in violation of § 922(a)(6):

(1) by claiming that he was the "actual transferee/buyer" of the

DePasquale gun on the ATF Form 4473 that he completed at the time

of purchase; and (2) by stating on the Certification Letter that

he was purchasing the DePasquale gun for "official use and not for

- 10 -

resale."7 Count 3 alleged that Karani's statement on the ATF Form

4473 alone also violated § 924(a)(1)(A).

Counts 2 and 4 involved Karani's purchase of the Ilnicki

gun under the respective statutes. Count 2 alleged that Karani

made two false statements in violation of § 922(a)(6): (1) by

asserting that he was the "actual transferee/buyer" of the Ilnicki

gun on the ATF Form 4473 that he completed at the time of purchase;

and (2) by claiming on the Ilnicki Affidavit that he was

"indirectly or directly" purchasing the gun for "official use."

Count 4 alleged that Karani's statement on the ATF Form 4473 alone

also violated § 924(a)(1)(A).

D. Karani's Defense at Trial

In his opening statement, Karani presented the essence

of his defense: he "reasonably view[ed] the transfer of the two

firearms at the police discount as being a gift to his friends"

within the meaning of Form 4473. On the third day of trial,

however, the court informed counsel that it intended to charge the

jury "that [Form 4473] pertains to a transfer of a gun or gift of

a gun, not of a discount, and that it is not a defense to the case

to say that Karani was giving a discount." Defense counsel

objected to no avail, arguing that the court was upending the

7The indictment incorrectly quotes the Certification Letter, which actually states that the gun was purchased for "on or off duty use and . . . not . . . for resale." This discrepancy is discussed in further detail infra in Section II.E.

- 11 -

defense and that whether the "gift" in ATF Form 4473 refers to the

gun itself or the transfer of a discount was a factual question

for the jury to decide.

Testifying on the fourth day of trial, Karani conceded

that he never intended to keep either the DePasquale or the Ilnicki

gun. In both instances, he intended to use his law enforcement

status to purchase a gun at a discounted price for a friend.

Despite the court's warning that it would instruct the jury that

the discount was not a gift, Karani maintained that he was truthful

in his purchases because he reasonably believed that the discount

constituted a gift. Recognizing that the court's previewed

instruction foreclosed that defense, Karani also testified that

the guns themselves were gifts because he transferred them without

profit, was reimbursed only after he had purchased the guns with

his own money, was not reimbursed fully for the Ilnicki gun, and

was not compensated for his time or travel expenses.

E. Jury Instructions

The district court instructed the jury on the fifth day

of trial. The court began by explaining that Karani was indicted

on four counts of knowingly making a false statement under two

different statutes, with respect to two different purchases. In

defining a "gift" ("the gift instruction"), the court stated:

Now, Form 4473 describes an actual buyer/transferee as one who buys a firearm for his own use or one who legitimately buys a firearm as a gift for [a]

- 12 -

third party. A "gift" means something that is voluntarily transferred to someone without payment, without compensation. In Form 4473, "gift" refers to the firearm, not the discount.

The court further explained that the jury had to decide Karani's

intent ("the actual purchaser instruction"):

Was [Karani] buying the firearm for himself or as a gift for someone else or did he buy it for another with the intention to transfer the gun to that person with the expectation that the person would pay for it and did so, in which case he is not the actual purchaser.

The court pointed out that Karani was charged with making

two false statements concerning each purchase in Counts 1 and 2:

one each on ATF Form 4473 and a supporting document. The court

informed the jury that, even though the indictment alleged that

Karani made both false statements for each gun purchase, there is

an indictment convention that "and" means "or" and "or" means

"and."8 Accordingly, the court explained, "the [g]overnment d[id]

not have to prove . . . that the [d]efendant made a false statement

in two documents."9 The court further informed the jury that "all

12 of you have to be in agreement as to one or the other or both;

8 The parties cite no such generally applicable indictment convention. See infra at note 31. 9 This instruction, when read in the context of the complete jury charge, sought to inform the jury that, even though Counts 1 and 2 each alleged two separate false statements (one each in ATF Form 4473 and a supporting document), the government needed to prove only one false statement on each count in order to sustain a conviction on that count.

- 13 -

that if all of you do not agree that the [d]efendant made a false

statement in at least one of these documents and which one, you

must find him not guilty."

Following the jury charge, defense counsel objected only

to the court's gift instruction.

F. Questions from the Jury

On the first afternoon of deliberations, the jury

submitted three questions to the court, two of which are relevant

to this appeal: (1) "Under which counts is a false statement on a

4473 a violation?" and (2) "Under which counts would a false

statement on the affidavits signed at the FFL(s) (not the 4473) be

a violation?"10 After a lengthy discussion with counsel, the court

responded: (1) "[O]n all counts, 1 through 4, a false statement on

Form 4473 is a violation of law";11 and (2) "Count 1 is the only

count that references an affidavit on which the [d]efendant is

accused of representing that the 'purchase was for official use

and not for resale.'"12

10 The third question asked for a transcript of Karani's testimony, which the court informed the jury was not yet available. 11 As noted, there were two ATF Form 4473s at issue: one involving the DePasquale gun on Counts 1 and 3 and one involving the Ilnicki gun on Counts 2 and 4. 12 Although the court used the term "affidavit," it was referencing the Certification Letter in Count 1. The implications of the court's misuse of the word affidavit are discussed infra in Section II.E.

- 14 -

This explanation modified an earlier instruction of the

court that a conviction could be sustained on Count 2 for the

Ilnicki gun based on either the ATF Form 4473 or the Ilnicki

Affidavit.13 The court's revised instruction left only the ATF

Form 4473 as grounds for conviction on Count 2, but left Count 1

untouched. For the DePasquale gun, the subject of Count 1, either

the ATF Form 4473 or the Certification Letter could sustain a

conviction. Defense counsel objected to this modification,

insisting that the court's logic on Count 2 applied equally to

Count 1, and that a false statement on an ATF Form 4473 was

necessary for a conviction on either count. Specifically, defense

counsel argued that because the Certification Letter was not

required for the sale to proceed under federal law, a false

statement on the Certification Letter was not an independent basis

for a conviction on Count 1.14

13 After much back and forth with counsel, the court decided that the Affidavit cited in Count 2 was too "broad" to be submitted to the jury because, unlike the Certification Letter, it did not include a statement that Karani was not purchasing the gun for resale. This supplemental instruction triggered several additional questions from the jury relating to the Count 2 Affidavit. As we shall further explain at the end of this section, that back and forth affected the jury's ultimate task on each count. 14On appeal, Karani no longer argues that the Certification Letter could not support a conviction on Count 1, which charged a violation of 18 U.S.C. § 922(a)(6). He argues only that the court's original and supplemental instructions regarding the Certification Letter were incorrect and confused the jury. The rationale for this change of position seems clear. To prove a violation of § 922(a)(6), the government needed to prove that an

- 15 -

Approximately one hour later, the jury submitted two

additional questions not relevant to this appeal.15 Less than a

half hour after the court answered those questions, the jury posed

two additional questions, one of which is relevant here:16

Count 2 on the indictment indicated that [Karani] signed an affidavit that the purchase was for official use. Per your first note, you said only Count 1 [] references the affidavit. The second count would fall to a unanimous vote if the affidavit is relevant. So, we just want to check on if that would be true.

After another lengthy conversation with counsel, the

court concluded that it would not retract its previous instruction

oral or written statement was made knowingly, was false, and was material to the lawfulness of a federal firearms sale. 18 U.S.C. § 922(a)(6). Unlike its counterpart, § 924(a)(1)(A), there is no requirement in § 922(a)(6) that the statement be made in a record required by law to be kept by an FFL. Neither is there any requirement that the statement be made in a form required by law or even be one that an individual was required by state or federal law to make. Id. The manner or form of a knowingly false statement is irrelevant so long as the statement is material to the lawful sale of the firearm. Id. Assuming, then, that the statement in the Certification Letter was material to the lawfulness of the sale, a proposition which Karani does not challenge, it was actionable under § 922(a)(6). 15 In the first question, the jury requested a copy of the indictment, which the court provided. In the second question, the jury again asked for a transcript of Karani's testimony and also requested a transcript of the testimony of one of the government's witnesses. The court informed the jury that the requested transcripts could not be prepared "within a reasonable time." 16 In the additional question, the jury asked the court "[p]ursuant to [its] last answer, what [qualifies as] a 'reasonable time'" for the requested transcripts. The court provided the requested transcripts to the jury the following business day.

- 16 -

directing the jury to disregard the Ilnicki Affidavit in Count 2.

Yet, given the jury's continuing confusion about the focus of its

deliberations, the court deemed it appropriate to provide the jury

with the following supplemental verbal instruction:

All of the Counts, 1, 2, 3 and 4, allege that the false statement was that the [d]efendant was the actual purchaser, and that was made on Form 4473. Now, for each count, it's the same allegation on each count and the same form for each count. Count 1 also alleges substantially the same false statement on an affidavit that says that he bought for official use and not for resale. For purposes of 4473, in all counts he is an actual purchaser if he buys for his own use or is buying to make a gift of the firearm to someone else. For purposes of the affidavit in Count 1, he is a buyer if he bought for official use and not for resale. Those are the facts that you need to examine the evidence, as to which you need to examine and as to which you make a determination. Did he buy for his own use or did he buy for official use or did he buy for resale. . . . So that is really what I can explain to you. I'm not sure I can give you a whole lot more explanation and now the question for you is does that explain enough for you to be able to determine your verdict?

The foreperson responded "No," and again asked about the

Ilnicki Affidavit and its relation to Count 2. The court

responded: "Don't worry about Count 2. The affidavit in Count 2

you can ignore." To clarify further the jury's task, the court

explained that the jury

should first look at 4473 and see whether [Karani] falsely made a statement on that. If you find he did not, then in Count 1 go to the affidavit. And

- 17 -

if he did not with respect -- if you find that he did not make a false statement under the affidavit on Count 1 as well, then you may find -- must find him not guilty. On Counts 2, 3 and 4, if you find he did not make a false statement knowingly on the form, 4473, then you also must find him not guilty as to Counts 2, 3 and 4.

The jury submitted yet another question to the court on

the morning of the sixth trial day:

Sorry for continuing to ask questions regarding the affidavit in Count 1, but assuming the jury is unable to reach a consensus in regards to whether the [d]efendant knowingly made a false statement on the 4473, but can [all capitals double underlined] reach a consensus that he lied on the affidavit knowingly, would the jury find the [d]efendant guilty on Count 1 or would it continue to be hung?

The court17 conferred with counsel and provided the

following verbal answer: "[Y]es, if the jury finds unanimously

that the [d]efendant knowingly made a false statement in the

affidavit, then the jury should return a guilty finding on

Count 1." The court also gave the jury an Allen18 charge in

response to its suggestion that it was hung.

At this point, after the numerous exchanges between the

court and the jury, this was the posture of the case: (1) a false

17On the sixth day of trial, Judge Leo T. Sorokin covered for Judge Rya W. Zobel, who was unavailable. 18An Allen charge is a "supplemental jury instruction given by the court to encourage a deadlocked jury, after prolonged deliberations, to reach a verdict." Allen Charge, Black's Law Dictionary (11th ed. 2019); see also Allen v. United States, 164 U.S. 492 , 501-02 (1896).

- 18 -

statement that Karani was the actual buyer of the DePasquale gun

on ATF Form 4473 was sufficient to sustain a conviction on Count 1

and necessary to sustain a conviction on Count 3; (2) a false

statement that the DePasquale gun was for on or off duty use and

not for resale on the Certification Letter was an independent basis

for conviction on Count 1; (3) a false statement that Karani was

the actual buyer of the Ilnicki gun on ATF Form 4473 was necessary

for a conviction on both Counts 2 and 4; and (4) a false statement

on the Ilnicki Affidavit charged in Count 2 was no longer a basis

for conviction on Count 2.

Approximately one hour later, the jury reported by

general verdict that it had found Karani guilty on Counts 1, 2,

and 4, and not guilty on Count 3.19

II.

Karani argues that his convictions must be vacated, and

a new trial ordered, because of prejudicial errors in the jury

instructions. First, he asserts that the court's instructions and

19 The convictions on Counts 1, 2, and 4 have this internal logic. The jury must have determined that Karani's statement that he was the actual buyer of the Ilnicki gun on Form 4473 was false because that statement was the sole basis for a guilty verdict on Counts 2 and 4. The jury found no falsity in Karani's statement that he was the actual buyer of the DePasquale gun on Form 4473 because that statement was the sole basis for Count 3, on which Karani was acquitted. The jury's conviction on Count 1 must have been based on the Certification Letter alone because its acquittal on Count 3 meant that it necessarily found no falsity in the DePasquale Form 4473, the alternative basis for a conviction on Count 1.

- 19 -

supplemental instruction on the terms "gift" and "actual

purchaser" were incorrect and effectively directed a verdict for

the government. Second, Karani avers that the court misrepresented

the content and legal effect of the Certification Letter. He

contends that if either ground is insufficient on its own to

warrant a new trial, the cumulative effect of the court's errors

requires that outcome.

A. Standard of Review

When addressing a preserved claim of legal error in jury

instructions, we review de novo. See, e.g., United States v.

Figueroa-Lugo, 793 F.3d 179 , 190-91 (1st Cir. 2015). This standard

applies to Karani's challenge to the gift instruction.

Karani concedes, however, that he did not preserve his

objection to the court's actual purchaser instruction or the

court's treatment of the Certification Letter. We therefore review

those portions of the charge and the supplemental instructions for

plain error. United States v. Velázquez-Aponte, 940 F.3d 785 , 800

(1st Cir. 2019). To demonstrate plain error, Karani must show

that (1) the district court erred, and that (2) the error was clear

and obvious, (3) it affected his substantial rights, and (4) it

"seriously impaired the fairness, integrity, or public reputation

of judicial proceedings." Id. at 793 (quoting United States v.

Montañez-Quiñones, 911 F.3d 59 , 63-64 (1st Cir. 2018)).

- 20 -

B. Legal Background

Karani was found guilty on Counts 1 and 2 of making a

false statement during the purchase of a firearm in violation of

18 U.S.C. § 922(a)(6), which provides, in relevant part:

It shall be unlawful for any person in connection with the acquisition . . . of any firearm . . . knowingly to make any false or fictitious oral or written statement . . . with respect to any fact material to the lawfulness of the sale or other disposition of such firearm . . . .

Karani does not contest the materiality of his statements on

appeal, presumably because the Supreme Court has conclusively

determined that statements regarding whether an individual is

engaging in a straw purchase -- i.e., a sale in which an individual

purchases a firearm on behalf of another while claiming the firearm

is for himself -- are material to the lawfulness of a firearms

purchase. See Abramski v. United States, 573 U.S. 169 , 188-89

(2014).

Relatedly, 18 U.S.C. § 924(a)(1)(A), the basis for

Karani's conviction on Count 4, prohibits an individual from

"knowingly mak[ing] any false statement or representation with

respect to the information required by [Chapter 44 of Title 18] to

be kept in the records of [an FFL]." Although there is some

overlap between these two provisions, § 922(a)(6) encompasses all

materially false statements made regarding the legality of the

firearm sale, whereas § 924(a)(1)(A) lacks a materiality

- 21 -

requirement and applies only to statements made in records an FFL

is required to maintain.

The "twin goals" of these provisions, within the broader

statutory scheme, are "to keep guns out of the hands of criminals

and others who should not have them, and to assist law enforcement

authorities in investigating serious crimes." Abramski, 573 U.S.

at 180 . Exercising congressionally delegated authority, the

Attorney General authorized ATF to develop Form 4473 as a means of

implementing these goals. See id. at 172-73. The Supreme Court has explained that the federal

firearms laws reflect a congressional intent to regulate straw

purchases regardless of whether the "true purchaser" -- i.e., one

who sends an agent to the FFL to purchase a gun on his behalf --

was lawfully entitled to possess the gun. Id. at 186-87. The

Court noted that Congress chose to enforce gun regulations by

requiring a purchaser to transact directly with an FFL when that

individual is purchasing a gun from the FFL. Id.

C. The Gift Instruction

ATF Form 4473 states that a person is an actual purchaser

if he purchases a gun for his own personal use or as a gift. In

its instructions to the jury, the district court defined a "gift,"

as that term is used in Form 4473, as "[a] firearm, not [a]

discount," that is transferred voluntarily "without payment,

without compensation." Karani contends that the court's

- 22 -

definition is inaccurate and, because the term is not defined in

Form 4473 or the applicable statutes, the court erred in defining

what constitutes a "gift" for the jury.

We need look no further than the plain and ordinary

meaning of the language in Form 4473, however, to conclude that

the court properly defined a gift in these circumstances. Cf.

Textron Inc. v. Comm'r of Internal Revenue, 336 F.3d 26 , 31 (1st

Cir. 2003) ("[I]f the language of a statute or regulation has a

plain and ordinary meaning, courts need look no further and should

apply the regulation as it is written."). The instructions to

Question 11.a. state that an individual is an actual purchaser if

he buys a "firearm as a gift for a third party." That language

makes clear that it is the firearm itself -- not a discount or any

other associated benefit of the transfer -- that must be "given."

To discern when a firearm is transferred as a "gift," we

look to the ordinary meaning of that term. Legal and non-legal

dictionaries alike define a gift by using terminology comparable

to that used by the district court -- a transfer without

remuneration. See Gift, Black's Law Dictionary (11th ed. 2019)

("The voluntary transfer of property to another without

compensation"); Gift, Merriam-Webster's Collegiate Dictionary

(11th ed. 2014) ("[S]omething voluntarily transferred by one

person to another without compensation"). The Supreme Court has

described a gift in these circumstances using similar language in

- 23 -

dicta. See Abramski, 573 U.S. at 186-88 (explaining that ATF

sought to allow bona fide gifts and prohibit straw purchases where

an individual purchases a gun on behalf of another with

compensation or reimbursement); see also id. at 199 (Scalia, J.,

dissenting) (explaining that, under the government's view, a

transfer lawfully qualifies as a gift "[s]o long as no money

changes hands, and no agency relationship is formed"). Based on

the foregoing, we conclude that the district court properly defined

the term "gift" in Form 4473 as a firearm, not a discount,

transferred without compensation.

Karani contends that he was nevertheless entitled to

submit his own understanding of the term "gift" to the jury because

his understanding of that term was inextricably intertwined with

whether he (1) made a false statement on Form 4473 and (2) did so

knowingly. In making this argument, Karani relies first on United

States v. DiRico, 78 F.3d 732 (1st Cir. 1996).

In DiRico, where materiality was an element of the

offense, we reversed the district court's determination that the

materiality of a statement on a tax return was a legal question

for it, rather than the jury, to decide. Id. at 736. Although it

was the duty of the court to "properly instruct the jury on the

legal definition of materiality," the jury had to decide

materiality based on the evidence proffered at trial. Id.

- 24 - Here, unlike in DiRico, the court did not remove an

element of the offense from the jury's consideration. Indeed, the

term "gift" is not an element of the false statement offenses.

Instead, it is a term relevant to the determinations that the jury

had to make on the elements of the offenses -- for Counts 1 and 2:

knowledge, falsity, and materiality; for Counts 3 and 4: knowledge,

falsity, and appearance in a record that an FFL was required to

keep by law. The court had a responsibility to define the term

"gift" because the jury's understanding of that term was essential

to its determinations on the elements of the offenses.

Moreover, contrary to Karani's assertion, the court's

definition of "gift" did not necessitate a finding that his

statements were false. After the court informed the parties that

it would instruct the jury that it must find that the firearm

itself, not the discount, was a gift, Karani adjusted his defense.

Although he still argued in closing that the discount was a gift,

he also argued that the firearms themselves were gifts under the

court's definition because he did not profit from their transfers,

he expended time and resources for which he was not compensated,

and he paid for the guns out-of-pocket before he was reimbursed.

Thus, the court's definition of gift did not invade the duty of

the jury to decide whether Karani's statements were false.

We find similarly unavailing Karani's argument, relying

on Cheek v. United States, 498 U.S. 192 (1991), that his

- 25 -

understanding of the term "gift," even if it was wrong, was a

mistake of law that was critical to the jury's determination of

whether he knowingly made a false statement. In Cheek, the

defendant was charged with willfully violating income tax laws.

Id. at 194. Although the defendant conceded that he violated the

law, he argued that his violation was not willful because he

sincerely believed that income taxes were unconstitutional. Id.

at 195-96. The district court instructed the jurors that an

"objectively reasonable good-faith misunderstanding of the law

would negate willfulness." Id. at 196-97. However, it also told

them that the defendant's belief that he had no legal duty to pay

taxes was not objectively reasonable. Id. The Supreme Court reversed, explaining that the sincerity of the defendant's belief

as to whether he had a legal duty to pay taxes, even if

unreasonable, was a jury question because it went to the heart of

whether he had committed a "willful" violation of the tax code.

Id. at 203. Cheek is inapt precedent for Karani's knowledge-based

claim of error. As the Supreme Court has explained, the "highly

technical" tax code risks "ensnaring individuals engaged in

apparently innocent conduct." Bryan v. United States, 524 U.S.

184 , 194 (1998). To counteract that risk, "willful" mens rea in

certain portions of the tax code requires specific intent to

violate a known legal duty. Id. at 193-96. If the jury credits

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a defendant's proffered ignorance or misunderstanding of the

specific legal duty he is charged with violating, he cannot be

held criminally liable. Cheek, 498 U.S. at 202 . Cheek thus carves

out a limited exception for certain tax violations to the

traditional rule that a mistake of law does not excuse a violation

of the law.20 See id. at 203-04; see also Bryan, 524 U.S. at 194 -

96.

In Bryan v. United States, to demonstrate the limited

applicability of Cheek, the Court considered specifically whether

18 U.S.C. § 924(a)(1)(D),21 which imposes an increased penalty for

"willful" violations of certain federal firearms laws, carried a

Cheek-like mens rea requirement, such that mistake of the law was

a valid defense. Bryan, 524 U.S. at 194 -96. Despite Congress'

use of the same term -- willful -- the Court held that Cheek was

inapplicable because the federal firearms laws did not present the

same danger of ensnaring apparently innocent conduct that

motivated the decision in Cheek. Id. at 195. Hence, the Court

20 That ignorance of the law is no excuse for violation of the law is "deeply rooted in the American legal system." Cheek, 498 U.S. at 199 . It is premised on the notion that "the law is definite and knowable" and, for that reason, we presume, unless Congress provides otherwise, that every person knows the law. Id. (citing Oliver Wendell Holmes, Jr., The Common Law 47-48 (1881)). 21 Pursuant to § 924(a)(1)(D), "whoever willfully violates any . . . provision of [this chapter except as otherwise provided] shall be fined under this title, imprisoned not more than five years, or both."

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held that "willful" in the federal firearms laws "d[id] not carve

out an exception to the traditional rule that ignorance of the law

is no excuse." Id. at 196. Drawing on Bryan, we conclude that, if Cheek does not

apply to a willful violation of the federal firearms laws, it

likewise does not apply to the lesser, knowing violation at issue

here. See id. at 193 (explaining that a willful state of mind

requires an "evil-meaning mind," which is more than a knowing state

of mind). Indeed, we recognized as much in United States v. Meade,

175 F.3d 215 (1st Cir. 1999), although we considered a different

subsection of the firearms laws. There, we explained that "it

simply does not appear plausible" that Congress intended a

"knowing" violation of § 922(g), which criminalizes the possession

of a firearm by prohibited persons, "to carry a mens rea

requirement of actual knowledge of the law." Meade, 175 F.3d at

226 n.5; see also Acosta v. Loc. Union 26, UNITE HERE, 895 F.3d

141 , 145 & n.5 (1st Cir. 2018) (explaining that courts presume,

absent a material variation in the surrounding text, that a word

bears the same meaning throughout a statutory provision).

Accordingly, to prove a knowing violation of the federal

firearms laws at issue here -- §§ 922(a)(6) and 924(a)(1)(A) --

the government only needed to prove that Karani "knowingly [made]

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a[] false . . . statement."22 In other words, it needed to show

that when Karani signed the relevant documents affirming that he

was purchasing the gun either for himself or as a gift for a third

party, he knew the facts contrary to those representations -- i.e.,

that he was purchasing a gun on behalf of another and would be

reimbursed -- and, hence, he knew his statements were false. To

assist the jury in making that determination, the district court

properly and accurately instructed the jury on the legal meaning

of the term "gift," and, in doing so, did not direct a verdict on

any element of the offense or otherwise invade the province of the

jury. We therefore detect no error in the district court's gift

instruction.

D. Actual Purchaser Instruction

Karani argues for the first time on appeal that there

were multiple errors in the district court's actual purchaser

instruction, which asked the jury to consider whether:

[Karani was] buying the firearm for himself or as a gift for someone else or did he buy it for another with the intention to transfer the gun to that person with the expectation that the person would pay for it and did so, in which case he is not the actual purchaser.

22 The other requirements of either provision are not at issue here because (1) again, Karani does not challenge materiality under § 922(a)(6), and (2) the false statements alleged to violate § 924(a)(1)(A) in Counts 3 and 4 were made in Form 4473s, which are "required by [Chapter 44 of Title 18] to be kept in the records of [an FFL]," see 18 U.S.C. § 923(g); 27 C.F.R. § 478.124.

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As noted above, we review this challenge only for plain error.

See Velázquez-Aponte, 940 F.3d at 800 .

Karani initially contends that the actual purchaser

instruction presupposed that a transfer of a firearm at a discount

could never be considered a gift. As we have explained, the

availability of a discount does not render a firearm purchase a

"gift." Accordingly, the district court did not err by instructing

the jury that a gun purchased by someone who intends to transfer

the firearm to someone else, with reimbursement for the cost, is

not a "gift" and, hence, the transferor is not the actual buyer.

Karani also objects to the actual purchaser instruction

quoted above on the ground that the court directed the jury to

find that Karani was not an actual purchaser because it used the

facts of this case as an example, and stated that, under those

facts, the defendant could not be considered an actual purchaser.

This claim of error also fails. Although it would be

easy to mistake the example used in the court's instruction for

the facts of this case -- an individual purchasing a gun for

another with the expectation that the person would, and did, pay

for the gun -- the instruction merely illustrated a quintessential

straw purchase. That Karani admitted to facts that have a strong

resemblance to a typical straw purchase does not render the court's

instruction erroneous.

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Indeed, the district court mirrored language routinely

used by the Supreme Court and our sister circuits in describing a

straw versus actual purchaser. See, e.g., Abramski, 573 U.S. at

171-72 (describing a straw purchaser as "a person who buys a gun

on someone else's behalf while falsely claiming that it is for

himself"); United States v. Blake, 394 F.3d 1089 , 1090 (8th Cir.

2005) (describing a straw purchaser as one who "purchased [guns]

from [FFLs] on behalf of others who provided the money for the

guns"); United States v. Ortiz, 318 F.3d 1030 , 1038 (11th Cir.

2003) (identifying a straw transaction as one where the defendant

"at the time of completing Form 4473 had no intention of keeping

the firearms or giving them as a gift").

Accordingly, we discern no error in the court's actual

purchaser instruction.23

E. The Certification Letter

Karani asserts that the district court committed several

errors in instructing the jury on Count 1 concerning the substance

and legal effect of the Certification Letter. Those errors can be

divided into two categories: (1) claims that the court

mischaracterized the Certification Letter, and (2) claims that the

court improperly instructed the jury on the significance of the

23 Because we conclude that the district court's gift and actual purchaser instructions were not erroneous, we need not consider appellant's argument that the alleged errors were structural.

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Certification Letter to Count 1.24 Karani concedes that these

claims were not preserved and, therefore, we review for plain

error.

1. Mischaracterization of the Certification Letter

Karani correctly points out that the district court

inaccurately referred to the Certification Letter as an affidavit

-- mirroring the language of the indictment -- and also misquoted

the Certification Letter's language on several occasions. He

contends that these instructional errors resulted in an improper

variance between the charges against him and the proof at trial.

To prevail on a claim of improper variance, an appellant

must "show a material factual difference between the crime charged

in the indictment and the crime proved at trial." United States

v. Rodríguez-Milián, 820 F.3d 26 , 33 (1st Cir. 2016). He must

also demonstrate that the variance resulted in prejudice. Id.

None of Karani's contentions concerning the Certification Letter

satisfies these requirements.

First, Karani argues that the court's instructions and

supplemental instructions were improper because the Certification

Letter was not signed under penalty of perjury and was, therefore,

not an affidavit. Karani is correct; the Letter was not an

24Again, we note that Karani does not argue on appeal that the Certification Letter itself was a legally insufficient basis for his conviction on Count 1. See supra note 14.

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affidavit. Indeed, the government concedes as much, even though

Count 1 of the indictment classifies the Certification Letter as

an affidavit and both parties used that term to describe the

Certification Letter at trial. The Ilnicki Affidavit, which was

signed under penalty of perjury and, as previously discussed,

ultimately withdrawn from the jury's consideration on Count 2, was

apparently the source of this confusion.

Nevertheless, Karani fails to explain how the court's

mischaracterization of the Certification Letter as an affidavit

resulted in a material factual difference between the crime charged

and the crime proven at trial, or prejudiced him in any way. As

we have already explained, to prove a violation of § 922(a)(6) on

Count 1, the government had to prove only that Karani knowingly

made a false statement that was material to the legality of the

federal firearms purchase.25 The statute is not concerned with the

form of the statement so long as it is material, and Karani does

not challenge materiality.26 See § 922(a)(6). Whether the

Certification Letter was an affidavit is simply not relevant to

whether a statement made within the document is a violation of

25 See supra note 14 and Section II.B. 26 See supra note 14 and Section II.B. The allegedly false statement in the Certification Letter -- that the DePasquale gun was for "on or off duty use and . . . not . . . for resale" -- was material to the lawfulness of the sale because it concealed that Karani was engaging in a straw purchase. See Abramski, 573 U.S. at 188-89 .

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§ 922(a)(6). Accordingly, the court's errors did not cause a

prejudicial variance.

Second, Karani claims that the court instructed the jury

that he declared on the Certification Letter that he purchased the

DePasquale gun "for official use and not for resale," when, in

fact, the Letter states that he purchased the firearm for "on or

off duty use and . . . not . . . for resale."27 Karani contends

that the jury could have found that he purchased the gun for his

own off-duty use -- meaning that his statement on the Certification

Letter would be true -- but convicted him based on the court's

incorrect instruction that the Certification Letter stated that

the gun was only for official use. Karani further asserts that

the jury must have relied on the Certification Letter in finding

him guilty on Count 1.

For reasons we have already explained, we agree with

Karani's contention that the jury likely convicted him on Count 1

based solely on his statements in the Certification Letter.28

Nevertheless, Karani fails to demonstrate the requisite prejudice

27 The court's instruction quotes the language in Count 1 of the indictment, which states that Karani "signed an affidavit that the purchase was for official use and not for resale." It is the Affidavit in Count 2, however, not the Certification Letter in Count 1, that states that Karani was purchasing the firearm to "directly or indirectly supply [himself] with a handgun for [his] official duties as a law enforcement official." 28 See supra note 19.

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resulting from the court's misstatement of the Letter's specific

language. The jury was given the Certification Letter and was

therefore able to review the language itself. Moreover, the

distinction between a purchase for his own official or off-duty

use is inconsequential in the circumstances of this case. The

question before the jury was whether Karani purchased the firearm

for his own use (official or otherwise) or for resale. By

insisting that he purchased the guns as gifts for his friends, he

conceded that he did not purchase the guns for his own use. Hence,

the court's imperfect use of language had no impact on the trial

and is not reversible plain error.

2. Certification Letter's Significance to Count 1

Karani argues that, mistaken description aside, the

instructions related to the Certification Letter were

substantively problematic in multiple respects. He contends that

the court (1) confused the jury by giving inconsistent instructions

regarding whether the government was required to prove a false

statement in both the Certification Letter and ATF Form 4473, as

alleged in Count 1 of the indictment; (2) failed to address the

duplicity in the indictment; and (3) overlooked the government's

waiver of reliance on the Certification Letter as a basis for

conviction on Count 1. We address each argument in turn.

a. Inconsistent instructions. Karani is correct that

the court provided conflicting instructions concerning the

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significance of the Certification Letter to the Count 1 charge.

In some parts of its instructions, the court told the jury that a

false statement in either the Certification Letter or Form 4473

could support a conviction on Count 1, and at other times it

referenced only the statement in the Form 4473.29 At the end,

however, when the jurors asked for clarification during their

deliberations, the court instructed them, correctly, that either

statement could form the basis for a conviction on Count 1.30 We

presume jurors follow a district court's curative instruction.

See e.g., United States v. Sepulveda, 15 F.3d 1161 , 1185 (1st Cir.

1993).

b. Duplicitous indictment. Count 1 of the indictment

states that Karani "represented on ATF Form 4473 that he was the

actual transferee/buyer of the firearm and signed an affidavit

29 For example, the court explained to the jury that the "indictment charges that the Defendant represented on 4473 that he was the actual purchaser of the firearm, and at the end of Counts 1 and 2 signed an affidavit that the purchase was for official use and not for resale." Docket No. 109, at 66. In another instance, the court stated that "[a] false statement is one that gives information that is not true or correct. Here the Defendant's answer to Question 11A on this Form 4473, that he was the actual purchaser of the firearm, that's the alleged false statement." Docket No. 109, at 65. In yet another instance, the court explained to the jury that Counts 1 and 2 alleged that Karani made a false statement by representing on "ATF Form 4473 as to each sale that he was the actual buyer for his own official use and was not buying for resale when he actually did buy to sell to someone else." Docket No. 109, at 64. 30See supra Section I.F. discussing the posture of the case following the court's several supplemental instructions.

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that the purchase was for official use and not for resale."

(Emphasis added.) Karani claims that the indictment's use of "and"

required the government to prove a false statement in both the

Form 4473 and the Certification Letter and, for that reason, the

district court improperly instructed the jury that Karani could be

found guilty on Count 1 based on either one of the two documents.

Although this claim highlights a flaw in the indictment,

Karani's assertion of error in the court's instructions is

unavailing. Because the indictment charges two distinct and

complete violations of the same statute in a single count joined

by the conjunctive "and," it is duplicitous. See United States v.

Newell, 658 F.3d 1 , 22 (1st Cir. 2011) ("[T]his indictment [i]s

duplicitous in consolidating multiple complete offenses under

single counts."). The remedy for a duplicitous indictment is a

specific unanimity instruction to ensure that the jury understands

that its verdict must be unanimous as to which instance of the

alleged statutory violation resulted in a crime. See id. at 28 ("[T]he failure to provide a specific unanimity instruction [for

the duplicitous charges] was error."). The district court provided

such an instruction:

It is enough if [the government] proves that [d]efendant made a false statement on either Form 4473 or the affidavit or on both documents, but all 12 of you have to be in agreement as to one or the other or both; that if all of you do not agree that the [d]efendant made a false statement in at least

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one of these documents and which one, you must find him not guilty.

No more was required.31

c. Government waiver. Finally, to the extent that Karani

argues that the court's instructions failed to account for the

government's abandonment of the Certification Letter as a basis

for conviction on Count 1, his argument fails. Although the

government did not use the phrase "Certification Letter" in its

closing argument, the government referred generally to the

substance of the Certification Letter and referenced the Letter

itself consistently throughout trial -- in its opening statement,

in direct examination of the various witnesses, and in cross-

examination of Karani. Accordingly, the government did not abandon

reliance on the Certification Letter, and Karani's argument that

the court committed plain error in failing to so instruct the jury

fails.

Affirmed.

31 Any error resulting from the court's pronouncement that there is a general indictment convention that, without limitation, "'and' means 'or' and 'or' also means 'and,'" was harmless because the court properly addressed the duplicitous indictment by instructing the jury in the disjunctive and providing a unanimity instruction. See Newell, 658 F.3d at 28 .

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