United States v. Castro , 89 F.3d 1443 ( 1996 )

United States Court of Appeals,
Eleventh Circuit.
No. 94-4338.
UNITED STATES of America, Plaintiff-Appellant,
v.
William CASTRO, Arthur Luongo, Nancy Lechtner, Harry Boehme,
Defendants-Appellants.
July 12, 1996.
Appeal from the United States District Court for the Southern
District of Florida. (No. 91-708-CR-JAG), Jose A. Gonzalez, Jr.,
Judge.
Before HATCHETT and BARKETT, Circuit Judges, and GODBOLD, Senior
Circuit Judge.
HATCHETT, Circuit Judge:
In this "Operation Court Broom" appeal, we affirm the
appellants' convictions and sentences.
FACTS
In the late 1980s, federal and state law enforcement officials
conducted "Operation Court Broom," an investigation into alleged
corrupt activities occurring among judges and lawyers in the Dade
County Florida Circuit Court. One of the targets of the
investigation, Roy T. Gelber, took the office of circuit court
judge for the Eleventh Judicial Circuit in Dade County in January
1989. Prior to becoming a circuit court judge in 1989, Gelber
served as an elected county court judge for Dade County since 1987
and previously had practiced as a criminal defense attorney.
In Metropolitan Dade County, circuit court judges have the
authority to appoint special assistant public defenders (SAPDs) and
approve their compensation terms for which Metropolitan Dade County
issues payment upon receipt of a court approved bill. Shortly
after assuming the position of circuit court judge, Gelber had
discussions with another circuit court judge, Alfonso C. Sepe,
regarding making SAPD appointments for kickbacks. Sepe arranged to
have Gelber appoint Arthur Massey, a lawyer, as an SAPD in return
for kickbacks. Gelber appointed Massey to some cases and received
kickbacks for those appointments. Likewise, Judge Harvey N.
Shenberg arranged for Gelber to appoint Manny Casabielle and Miguel
DeGrandy, lawyers, as SAPDs in return for kickback payments.
In August of 1989, state and federal law enforcement officials
procured the services of Raymond Takiff, a lawyer, to act in an
undercover capacity as a corrupt lawyer in the Operation Court
Broom investigation. From August 1989 to June 1991, Takiff engaged
in a number of corrupt activities with Gelber and other judges in
the Eleventh Judicial Circuit. Most of Gelber's conversations with
Takiff regarding illegal conduct were tape-recorded. Takiff
enlisted Gelber and other judges in activities ranging from paying
kickbacks and fixing cases to releasing the name of a confidential
informant believing that the informant would be killed. Sepe,
Shenberg, and Judge Philip S. Davis participated in many of the
schemes.
During the relevant period, Gelber recruited his secretary to
assist him in the kickback scheme. Gelber asked the secretary if
she knew any lawyers who would be willing to accept appointments as
SAPDs in return for paying him kickbacks. Upon her agreement,
Gelber used the secretary as a conduit to lawyers agreeing to join
the kickback scheme. The secretary approached Arthur Luongo, Harry
Boehme, and Nancy Lechtner, all lawyers, asking them to join in the
kickback scheme. All of the lawyers agreed to accept SAPD
appointments in exchange for paying kickbacks.
Gelber approached William Castro, a lawyer, in the fall of
1989 about the possibility of Castro investing in Gelber's
corporation. Castro did not want to invest in the corporation, but
he agreed to assist Gelber financially through paying kickbacks for
receiving SAPD appointments. Gelber and Castro agreed that Castro
would pay Gelber twenty percent of his anticipated fees within a
few days of receiving appointments. Gelber began appointing Castro
to cases, and Castro paid kickbacks for those appointments. Gelber
received an average kickback payment of $1,000 from Castro. A few
months after Castro began paying kickbacks to Gelber, Castro
convinced Gelber to bring Kent Wheeler, a lawyer, into the kickback
scheme. Castro served as an intermediary between Gelber and
Wheeler because Gelber did not know Wheeler well.
From October 1989 to June 8, 1991, Gelber appointed Castro to
sixty-four cases and received $77,000 in kickbacks. From January
1990 to June 8, 1991, Gelber appointed Wheeler to thirty-seven
cases and received $34,000 in kickbacks. Similarly, Gelber
appointed Boehme to twelve cases for $13,000 in kickbacks;
Lechtner to four cases for $7,000 in kickbacks; and Luongo to
thirty-one cases for over $20,000 in kickbacks.
PROCEDURAL HISTORY
On May 27, 1992, a federal grand jury in the Southern District
of Florida returned a superseding 106-count indictment against
William Castro, Arthur Luongo, Harry Boehme, Nancy Lechtner,
(appellants) and codefendants Harvey N. Shenberg, Alfonso Sepe,
Phillip Davis, David Goodhart, and Arthur Massey. The indictment
charged appellants with conspiracy to violate RICO in violation of
18 U.S.C. §§ 1962(d) and 1963(a), mail fraud in violation of 18
U.S.C. §§ 1341, 1346, and bribery in violation of 18 U.S.C. §
666(a)(2).1
Appellants moved to dismiss the RICO conspiracy count, mail
fraud, and bribery counts for failure to state an offense. The
district court denied these motions. In July 1992, appellants
filed their first round of severance motions based on prejudicial
misjoinder seeking separate trials from each other, codefendant
Massey, and the indicted judges. The district court severed the
trial of Judges Goodhart, Sepe, Shenberg, and Davis from
appellants' trial, and severed Massey's trial from the appellants.
The district court denied appellants' subsequent motions to sever
their trials from each other. The trial began on October 25, 1993.
At the close of the government's case-in-chief, appellants moved
for judgment of acquittal on all counts under Rule 29 of the
Federal Rules of Criminal Procedure. The district court denied the
motions. Appellants renewed the motions at the conclusion of their
case, and the district court again denied the motions. The jury
returned guilty verdicts as to all appellants on all counts.
The district court sentenced Castro to concurrent terms of
thirty-seven months imprisonment, three years supervised release,
and ordered him to pay a $1,400 special assessment. The district
1
Gelber, an unindicted co-conspirator, pleaded guilty to
RICO conspiracy and testified for the government.
court sentenced Luongo to thirty-seven months imprisonment, three
years supervised release, and ordered him to pay $850 in fines.
The district court sentenced Lechtner to concurrent terms of thirty
months imprisonment, three years supervised release, and ordered
her to pay a $300 special assessment. The district court sentenced
Boehme to concurrent terms of twenty-four months imprisonment, two
years supervised release, and ordered him to pay a $500 special
assessment. This appeal followed.
CONTENTIONS
First, appellants contend that the government failed to prove
the existence of a single RICO conspiracy. Appellants assert that
the government offered proof of multiple conspiracies, and that
this constitutes an impermissible variance from the charge of a
single conspiracy. Appellants also claim that the district court's
failure to sever their trial amounted to a misjoinder. Second,
appellants contend that the government failed to present evidence
sufficient to establish that they agreed to affect the "operation
or management" of the RICO enterprise as required under Reves v.
Ernst & Young, 507 U.S. 170, 113 S.Ct. 1163, 122 L.Ed.2d 525(1993).
Third, appellants contend that the district court's jury
instructions and the prosecutor's summation constructively amended
the RICO conspiracy count of the indictment by referring to the
Eleventh Judicial Circuit as the RICO enterprise, rather than the
Circuit Court of the Eleventh Judicial Circuit. Appellants insists
that the district court's instructions and the prosecutor's
summation resulted in an expansion of the indictment because the
government failed to introduce evidence demonstrating that the
Circuit Court of the Eleventh Judicial Circuit affected interstate
commerce.
Fourth, appellants contend that their bribery convictions
cannot stand because the evidence failed to prove that they
intended to influence an agent of Metropolitan Dade County.
Specifically, appellants argue that since the government charged
Metropolitan Dade County as the agency receiving federal grant
money, under 18 U.S.C. § 666 the government had to prove that
appellants' bribes were intended to influence or reward an agent of
Metropolitan Dade County.
Fifth, appellants contend that the mail fraud counts fail to
state an offense. Appellants assert that 18 U.S.C. § 1346 does not
protect a sovereign state from the fraudulent deprivation of
intangible rights. Also, appellants maintain that the term "honest
services" in section 1346 is unconstitutionally vague. Sixth,
appellants contend that the prosecutor impermissibly vouched for
the credibility of a government witness and made improper and
prejudicial remarks during closing arguments. Seventh, appellants
contend that the district court erred in preventing them from
offering evidence to prove a government witness's self-interest,
bias, and motive.
First, the government contends that a RICO conspiracy charge
brings a defendant within the conspiracy regardless of the
unrelatedness of the acts of the other members of the conspiracy as
long as the government can show an agreement on an overall
objective or that the defendant agreed to the commission of two or
more predicate acts, individually or through others. The
government contends that no material variance occurred because a
reasonable trier of fact could have found beyond a reasonable doubt
the existence of a single conspiracy. Also, for this reason, the
government contends that the appellants were properly joined.
Second, the government contends that the appellants were
convicted of a RICO conspiracy, and not a substantive RICO offense.
Therefore, the government only had to allege and prove that the
appellants "agreed" to affect the operation or management of the
RICO enterprise, and not that the appellants actually exerted any
control or direction over the RICO enterprise. Third, the
government contends that when the prosecutor's summation and the
district court's instructions are viewed in context, it is clear
that no constructive amendment occurred. Fourth, the government
contends that the evidence presented at trial was sufficient to
establish that appellants intended to influence an agent of
Metropolitan Dade County.
Fifth, the government contends that the plain language of 18
U.S.C. §§ 1341 and 1346 does not exclude governmental entities such
as a state from coverage under the mail fraud statute. The
government also asserts that this circuit has already rejected a
void-for-vagueness challenge to section 1346. Sixth, the
government contends that it properly argued the credibility of the
witness based on the evidence in the record and did not make
prejudicial remarks during closing arguments. Seventh, the
government contends that the district court did not abuse its
discretion in preventing appellants' proffer of extrinsic evidence
to show specific prior conduct to impeach a government witness.
ISSUES
The issues we address in this appeal are: (1) whether a
material variance or misjoinder occurred; (2) whether sufficient
evidence existed to establish that appellants conspired to
participate in the RICO enterprise; (3) whether the district
court's instructions and the prosecutor's summations constructively
amended the RICO conspiracy count of the indictment; (4) whether
appellants were properly convicted for bribery under 18 U.S.C. §
666(a)(2); (5) whether appellants were properly convicted for mail
fraud under 18 U.S.C. §§ 1341, 1346; (6) whether prosecutorial
misconduct occurred through impermissible vouching for witness's
credibility and through improper remarks; and (7) whether the
district court abused its discretion in excluding appellants'
proffered evidence.
STANDARDS OF REVIEW
This appeal involves multiple issues requiring differing
standards of review. We review the claim of a material variance
through viewing the evidence in the light most favorable to the
government to determine whether a reasonable trier of fact could
have found that a single conspiracy existed beyond a reasonable
doubt. United States v. Reed, 980 F.2d 1568, 1581 (11th Cir.),
cert. denied, 509 U.S. 932, 113 S.Ct. 3063, 125 L.Ed.2d 745 (1993).
We will uphold the conviction unless the variance (1) was material
and (2) substantially prejudiced the defendant. Reed, 980 F.2d at
1581. Our review of the claim of a misjoinder is plenary. United
States v. Morales, 868 F.2d 1562, 1567 (11th Cir.1989).
We review the sufficiency of the evidence de novo, viewing
the evidence in the light most favorable to the government and
drawing all reasonable inferences in favor of the jury's verdict.
United States v. Church, 955 F.2d 688, 693 (11th Cir.), cert.
denied, 506 U.S. 881, 113 S.Ct. 233, 121 L.Ed.2d 169 (1992). In
evaluating whether the indictment was constructively amended, we
review the district court's jury instructions and the prosecutor's
summation "in context" to determine whether an expansion of the
indictment occurred either literally or in effect. United States
v. Behety, 32 F.3d 503, 509 (11th Cir.1994), cert. denied, --- U.S.
----, 115 S.Ct. 2568, 132 L.Ed.2d 820 (1995).
In reviewing the claim of prosecutorial misconduct, we assess
(1) whether the challenged comments were improper and (2) if so,
whether they prejudicially affected the substantial rights of the
defendant. United States v. Obregon, 893 F.2d 1307, 1310 (11th
Cir.), cert. denied, 494 U.S. 1090, 110 S.Ct. 1833, 108 L.Ed.2d 961(1990). We review a district court's evidentiary rulings for abuse
of discretion. United States v. Calle, 822 F.2d 1016, 1020 (11th
Cir.1987). Finally, our review of a district court's legal
conclusion is de novo. United States v. Waymer, 55 F.3d 564, 568
(11th Cir.1995).
DISCUSSION
I. Material Variance and Joinder
Appellants contend that at best the government's proof at
trial revealed the existence of multiple conspiracies even though
the indictment only charged a single conspiracy. For this reason,
appellants claim that a material variance occurred that constitutes
reversible error under United States v. Sutherland, 656 F.2d 1181,
1189 (5th Cir. Unit A 1981), cert. denied, 455 U.S. 949, 102 S.Ct.
1451, 71 L.Ed.2d 663 (1982).2 Appellants also contend that they
were improperly joined because the government failed to prove that
any of them knew about other lawyers participating in the kickback
scheme or whether any of them knew of the existence of a single
conspiracy.
A material variance between an indictment and the
government's proof at trial occurs if the government proves
multiple conspiracies under an indictment alleging only a single
conspiracy. Kotteakos v. United States, 328 U.S. 750, 66 S.Ct.
1239, 90 L.Ed. 1557 (1946). In order to prove a RICO conspiracy,
the government must show an agreement to violate a substantive RICO
provision. United States v. Gonzalez, 921 F.2d 1530, 1539 (11th
Cir.), cert. denied, 502 U.S. 860, 112 S.Ct. 178, 116 L.Ed.2d 140(1991). Specifically, the government must prove that the
conspirators agreed to participate directly or indirectly in the
affairs of an enterprise through a pattern of racketeering
activity. 18 U.S.C.A. § 1962(d) (West 1984); United States v.
Sutherland, 656 F.2d 1181, 1191-1192 (5th Cir. Unit A 1981), cert.
denied, 455 U.S. 949, 102 S.Ct. 1451, 71 L.Ed.2d 663 (1982).
The government may prove the existence of an "agreement" to
participate in a RICO conspiracy through showing (1) the existence
of an agreement on an overall objective, or (2) in the absence of
2
In Bonner v. City of Prichard, 661 F.2d 1206 (11th
Cir.1981) (en banc ), the Eleventh Circuit adopted as binding
precedent all decisions of the former Fifth Circuit Court of
Appeals rendered prior to October 1, 1981.
an agreement, on an overall objective that the defendant agreed
personally to commit two or more predicate acts. United States v.
Church, 955 F.2d 688, 694 (11th Cir.1992), cert. denied, 506 U.S.
881, 113 S.Ct. 233, 121 L.Ed.2d 169 (1992). In meeting its burden
of proof on showing an agreement on an overall objective, the
government must offer direct evidence of an explicit agreement on
an overall objective or, in the absence of direct evidence, the
government must offer circumstantial evidence demonstrating "that
each defendant must necessarily have known that others were also
conspiring to participate in the same enterprise through a pattern
of racketeering activity." Sutherland, 656 F.2d at 1193-94; see
also, United States v. Valera, 845 F.2d 923, 929-30 (11th
Cir.1988), cert. denied, 490 U.S. 1046, 109 S.Ct. 1953, 104 L.Ed.2d
422 (1989).
In this case, the indictment charged a single RICO
conspiracy, and the government presented evidence that adequately
proved the existence of a single conspiracy. At trial, Gelber
testified that he informed the appellants that they would not only
receive appointments from him but also from another judge in the
circuit court. In light of this testimony, each appellant knew
that at least two circuit judges agreed to use the Circuit Court of
the Eleventh Judicial Circuit to engage in a kickback scheme. In
addition to Gelber's testimony, other evidence adduced at trial
indicates appellants' agreement to participate in and awareness
that others also participated in a single conspiracy. For example,
when Gelber's secretary asked appellant Boehme to enroll in the
kickback scheme, she asked him whether he wished to join the
"preferred list" for court appointments. Similarly, appellant
Lechtner was informed that a kickback scheme was "something that's
being done" in the Circuit Court of the Eleventh Judicial Circuit.
Appellant Castro actually recruited another lawyer to join the
kickback scheme. In light of this evidence, we find that each
appellant agreed on an overall objective and agreed personally to
commit two or more predicate acts by paying kickbacks for SAPD
appointments.
Additionally we note that, contrary to appellants'
assertions, in proving the existence of a single RICO conspiracy,
the government does not need to prove that each conspirator agreed
with every other conspirator, knew of his fellow conspirators, was
aware of all of the details of the conspiracy, or contemplated
participating in the same related crime. United States v. Pepe,
747 F.2d 632, 659-60 (11th Cir.1984).3 In viewing the evidence in
the light most favorable to the government, a jury could have
reasonably concluded that one common agreement on a single overall
objective existed. Consequently, we find that no material variance
occurred.
In considering appellants' misjoinder claim, we recognize
that the Federal Rules of Criminal Procedure prohibit joinder of
defendants unless the indictment covered the same act or
transaction or the same series of acts or transactions.
3
We note that when a defendant "embarks upon a criminal
venture of indefinite outline, he takes his chances as to its
content and membership, so be it that they fall within the common
purposes as he understands them." United States v. Elliott, 571
F.2d 880, 905 (5th Cir.1978) (quoting United States v.
Andolschek, 142 F.2d 503, 507 (2d Cir.1944).
Fed.R.Crim.P. 8(b). In this circuit we have observed that
"[w]hether or not separate offenses are part of a "series of acts
or transactions' under 8(b) depends ... on the relatedness of the
facts underlying each offense.... [W]hen the facts underlying each
offense are so closely connected that proof of such facts is
necessary to establish each offense, joinder of defendants and
offenses is proper." United States v. Welch, 656 F.2d 1039, 1049
(5th Cir. Unit A 1981) (quoting United States v. Gentile, 495 F.2d
626, 630 (5th Cir.1974)), cert. denied, 456 U.S. 915, 102 S.Ct.
1767, 1768, 72 L.Ed.2d 173 (1982).
Since more than sufficient evidence existed in this trial to
support the indictment and conviction of a single conspiracy, we
conclude that no misjoinder occurred. United States v. Weinstein,
762 F.2d 1522, 1541, modified on other grounds, 778 F.2d 673 (11th
Cir.1985), cert. denied, 475 U.S. 1110, 106 S.Ct. 1519, 89 L.Ed.2d
917 (1986).4
II. Sufficiency of the Evidence
Appellants contend that the government's evidence was
insufficient to establish that they conspired to participate in the
"operation or management" of the RICO enterprise. Appellants argue
that under Reves v. Ernst & Young, 507 U.S. 170, 113 S.Ct. 1163,
4
Even where the evidence does not support proof of a single
conspiracy, we will not overturn a conviction unless either (1)
the proof adduced at trial was so different from the indictment
so as to unfairly surprise defendants in the preparation of their
defense, or (2) so many defendants exist that the jury was likely
to confuse the evidence at trial among the defendants. United
States v. LeQuire, 943 F.2d 1554, 1561 (11th Cir.1991) (citing
United States v. Caporale, 806 F.2d 1487, 1500 (11th Cir.1986),
cert. denied, 483 U.S. 1021, 107 S.Ct. 3265, 97 L.Ed.2d 763(1987)), cert. denied, 505 U.S. 1223, 112 S.Ct. 3037, 120 L.Ed.2d
906 (1992).
122 L.Ed.2d 525 (1993), the government was required to produce
evidence showing that appellants agreed to exercise control or
direction in the management of the Circuit Court of the Eleventh
Judicial Circuit. Appellants suggest that as outsiders they could
not have exerted the requisite degree of control over the
"operation or management" of the Circuit Court of the Eleventh
Judicial Circuit to meet the requirements of Reves.
As a preliminary matter, we reject appellants' limited
reading of Reves. Under Reves, section 1962(c) liability is not
limited to insiders or upper management as appellants suggests.
Reves, 507 U.S. at 184-86, 113 S.Ct. at 1173. In Reves, the
Supreme Court emphasized that because the statute includes the
phrase "to participate directly or indirectly," RICO liability is
not confined to those with a formal position in the enterprise.
Reves, 507 U.S. at 178-80, 113 S.Ct. at 1170.5 The language in
Reves indicates that persons in appellants' position fall within
the scope of section 1962(c)'s coverage because "an enterprise
might be operated or managed by others associated with the
enterprise who exert control over it as, for example, by bribery."
Reves, 507 U.S. at 184, 113 S.Ct. at 1173 (emphasis added).
5
In fact, the Court expressly disagreed with the District of
Columbia Circuit's suggestion that section 1962(c) requires
significant control over or within an enterprise. Reves, 507
U.S. at 176-78, 179 n. 4, 113 S.Ct. 1169, 1170 n. 4 (1993).
Outsiders may exert control over an enterprise's affairs through
illegal means sufficient to satisfy Reves 's requirements. See,
e.g., Aetna Cas. Sur. Co. v. P & B Autobody, 43 F.3d 1546, 1559-
60 (1st Cir.1994) (auto repair shops, their employees, and
insurance claimants who submitted fraudulent claims to insurance
company caused the insurance company to pay out large sums of
money and thus exerted sufficient control over affairs of the
insurance company to satisfy the dictates of Reves ).
We reject the appellants' narrow reading of Reves and their
attempt to infuse the Reves analysis into this case. In this case,
the indictment charged the appellants with RICO conspiracy under
section 1962(d), and not a substantive RICO offense under section
1962(c). This court recently decided that the Reves "operation or
management" test does not apply to section 1962(d) convictions.
United States v. Starrett, 55 F.3d 1525, 1547 (11th Cir.1995); see
also Napoli v. United States, 45 F.3d 680, 683, 684 (2d Cir.),
cert. denied, --- U.S. ----, 115 S.Ct. 1796, 131 L.Ed.2d 724(1995). Our view of the evidence in the light most favorable to
the government indicates that more than sufficient evidence existed
to demonstrate that appellants "agreed" to affect the operation or
management of the Circuit Court of the Eleventh Judicial Circuit
through paying kickbacks.
III. Constructive Amendment of Indictment
A constructive "amendment occurs when the essential elements
of the offense contained in the indictment are altered to broaden
the possible bases for conviction beyond what is contained in the
indictment." United States v. Behety, 32 F.3d 503, 508 (11th
Cir.1994) (quoting United States v. Keller, 916 F.2d 628, 634 (11th
Cir.1990), cert. denied, 499 U.S. 978, 111 S.Ct. 1628, 113 L.Ed.2d
724 (1991)), cert. denied --- U.S. ----, 115 S.Ct. 2568, 132
L.Ed.2d 820 (1995). The indictment may be amended as a result of
erroneous jury instructions or a prosecutor's statements. Behety,
32 F.3d at 508. When a constructive amendment occurs it violates
"a fundamental principle" stemming from the Fifth Amendment:
specifically, "that a defendant can only be convicted for a crime
charged in the indictment." United States v. Keller, 916 F.2d 628,
633 (11th Cir.1990), cert. denied, 499 U.S. 978, 111 S.Ct. 1628,
113 L.Ed.2d 724 (1991).
In this case, appellants contend that a constructive amendment
of the indictment occurred on the RICO conspiracy count because
both the prosecutor's summation and the district court's jury
instructions substituted the "Eleventh Judicial Circuit" for the
"Circuit Court of the Eleventh Judicial Circuit" as the RICO
enterprise affecting interstate commerce. Appellants argue that
the jury relied on proof of the Eleventh Judicial Circuit's effect
on interstate commerce. Appellants claim that the government
failed to prove that the Circuit Court of the Eleventh Judicial
Circuit affected interstate commerce.
In determining whether an indictment was constructively
amended, we must assess the prosecutor's comments and the court's
instructions "in context" to see whether the indictment was
expanded either literally or in effect. United States v. Andrews,
850 F.2d 1557, 1559 (11th Cir.1988) (en banc ), cert. denied, 488
U.S. 1032, 109 S.Ct. 842, 102 L.Ed.2d 974 (1989). Admittedly, at
trial, the prosecutor referred to the Eleventh Judicial Circuit,
rather than the Circuit Court of the Eleventh Judicial Circuit, as
the RICO enterprise in his closing argument. The prosecutor
immediately informed the jury, however, to rely on Judge Smith's
testimony which only defined the Circuit Court of the Eleventh
Judicial Circuit. Similarly, the district court instructed the
jury that the Eleventh Judicial Circuit was the RICO enterprise
that must have affected interstate commerce to satisfy the
requirements of section 1962(d).
Even though the jury heard the term Eleventh Judicial Circuit
during the trial, the government's evidence focused on the circuit
court's effect on interstate commerce. For example, the government
presented testimony from the court administrator for the Eleventh
Judicial Circuit of Dade County who testified that the circuit
court judges traveled out of state on business. Moreover, he
testified that the circuit court purchased and used computers,
books, and supplies from vendors outside of Florida. Neither the
court administrator nor Judge Smith explained to the jury that the
Circuit Court of the Eleventh Judicial Circuit was a division of
the Eleventh Judicial Circuit.
When we view the prosecutor's single remark, the district
court's instructions, and the evidence proffered at trial in
context, we do not believe the jury could have convicted appellants
based upon a charge not contained in the indictment.
IV. Bribery Convictions
Appellants contend that their bribery convictions must be
reversed. Appellants assert that since the government charged them
under 18 U.S.C. § 666(a)(2), the government was required to show
that they intended to enter into a direct exchange with an agent of
the organization receiving federal funds.6 Appellants argue that
6
The statute provides in relevant part:
(a) Whoever, if the circumstance described in
subsection (b) of this section exists—(2) corruptly
gives, offers, or agrees to give anything of value to
any person with intent to influence or reward an agent
of an organization or of a State, local or Indian
tribal government, or any agency thereof, in connection
with any business, transaction, or series of
the government produced no evidence showing that they intended to
influence or reward anyone in the Dade County Finance Department.
Moreover, appellants challenge the sufficiency of the evidence
presented at trial to establish that Metropolitan Dade County
received federal grants in excess of $10,000.
At trial, the appropriate inquiry was: did the government
prove beyond a reasonable doubt that the appellants (1) gave or
offered to give a thing of value to any person (2) with the corrupt
intent to influence or reward an agent of an organization that in
a one-year period received benefits in excess of $10,000 under a
federal program (3) in connection with any business transaction or
series of transactions of such organization, government, or agency
involving anything of the value of $5,000 or more. 18 U.S.C.A. §
666(a)(2) (West 1976 & Supp.1995). The government presented
evidence at trial establishing that the appellants (1) paid
kickbacks to Judge Gelber (2) with the intent to have Judge Gelber
appoint them as SAPDs and authorize an agent of the Dade County
Finance Department to issue them compensation checks (3) in
connection with their rendering of legal services of a value
exceeding $5,000.
We reject appellants' suggestion that the government had to
show a direct quid pro quo relationship between them and an agent
of the agency receiving federal funds. We believe that the
appellants' narrow reading of the bribery statute would belie the
transactions of such organization, government, or
agency involving anything of value of $5,000 or
more....
18 U.S.C.A. § 666(a)(2) (West 1976 & Supp.1995).
statute's purpose "to protect the integrity of the vast sums of
money distributed through federal programs from theft, fraud, and
undue influence by bribery." S.Rep. No. 225, 98th Cong., 2d Sess.
369-370 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3510-11. It
is clear from the record that the appellants knew that payments for
SAPD services came from Metropolitan Dade County and not the
circuit court. Moreover, appellants also knew that they could not
receive payments from Metropolitan Dade County unless a circuit
court judge authorized Metropolitan Dade County to pay the bill or
influenced an agent in the Dade County Finance Department to issue
the checks. We believe that the government proved that appellants
not only intended to influence Gelber, but they also intended to
influence an agent in the Dade County Finance department by having
Gelber authorize the agent to issue payments for their SAPD
services. Accordingly, we hold that appellants were properly
convicted of bribery under 18 U.S.C. § 666(a)(2).
Appellants also contend that the district court erred in
admitting the testimony, over objections, establishing that
Metropolitan Dade County received federal grants in excess of
$10,000. Appellants argue that the district court should have
excluded the testimony of Willis Patterson, an assistant controller
in the Dade County Finance Department, as a violation of Federal
Rules of Evidence 602 and 1002.
We cannot agree with appellants' suggestion that the district
court abused its discretion in admitting Patterson's testimony.
According to Rule 602 of the Federal Rules of Evidence, a witness
may not testify to a matter unless evidence is introduced to
establish that the witness possesses personal knowledge of the
matter.7 In this case, the record shows that Patterson had
personal knowledge about the federal grants that Metropolitan Dade
County received. Patterson testified that he was the assistant
controller of the Dade County Finance Department for the past seven
years, and his department was responsible for receiving federal
8
grant monies on behalf of the county. The defense had an
opportunity to cross-examine Patterson about his personal knowledge
but did not examine him. Accordingly, we find that the district
court did not abuse its discretion in admitting this testimony.
Similarly, we reject appellants' contention that under Rule
1002 of the Federal Rules of Evidence or "the best evidence rule"
the district court should have precluded Patterson's testimony
because the government should have entered composite exhibit 406
that detailed federal funds Metropolitan Dade County received. We
do not believe that Rule 1002 of the Federal Rules of Evidence was
implicated in this case because the questions posed to Patterson
did not seek to elicit the "contents" of composite exhibit 406.
7
Rule 602 provides:
A witness may not testify to a matter unless
evidence is introduced sufficient to introduce a
finding that the witness has personal knowledge of the
matter. Evidence to prove personal knowledge may, but
need not, consist of the witness' own testimony. This
rule is subject to the provisions of rule 703, relating
to opinion testimony by expert witnesses.
Fed.R.Evid. 602.
8
Although Patterson could not recall the specific number of
grants Dade County received from 1988 to 1991, he testified that
the grants exceeded $90 million in each year during that time
period which is substantially more than the $10,000 statutory
requirement under 18 U.S.C. § 666.
See, e.g., Allstate Ins. Co. v. Swann, 27 F.3d 1539, 1542-43 (11th
Cir.1994) (recognizing that Fed.R.Evid. 1002 does not always
require the introduction of a writing merely because the writing
contains facts similar to the testimony). Rather, the questions
were aimed at showing that Dade County received substantially more
than $10,000 in federal grants, and not necessarily the exact
amount or details surrounding the county's receipt of millions of
dollars in federal grants. See Swann, 27 F.3d at 1542-43 (finding
that the best evidence rule was not implicated where an insurance
underwriting manager's answers to questions based on his
familiarity with underwriting guidelines and did not necessarily
require him to state the contents of the underwriting guidelines).
V. Mail Fraud
Appellants seek to invalidate their mail fraud conviction
because they claim (1) that the term "honest services" in the mail
fraud statute is unconstitutionally vague, and (2) that the mail
fraud statute does not extend to cover schemes whose ultimate
intent is to deprive a sovereign state of intangible rights.
Since the appellants' void-for-vagueness challenge to section
1346 does not raise a First Amendment issue, we will consider
section 1346 as applied to the facts of this case. United States
v. Waymer, 55 F.3d 564, 568 (11th Cir.1995); United States v.
Awan, 966 F.2d 1415, 1424 (11th Cir.1992). In assessing a statute
under a void-for-vagueness challenge, we may find a statute
unconstitutionally vague when it fails to "define the criminal
offense with sufficient definiteness that ordinary people can
understand what conduct is prohibited and in a manner that does not
encourage arbitrary and discriminatory enforcement." Kolendar v.
Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903(1983).
Moreover, this court has observed that "[t]he
constitutionality of a vague statutory standard is closely related
to whether the standard incorporates a requirement of mens rea."
Waymer, 55 F.3d at 568 (citing Colautti v. Franklin, 439 U.S. 379,
99 S.Ct. 675, 58 L.Ed.2d 596 (1979)). In United States v. Conner,
this court also mentioned that "the statutory requirement that an
act must be willful or purposeful may not render certain, for all
purposes, a statutory definition of the crime which is in some
respects uncertain. But it does relieve the statute of the
objection that it punishes without warning an offense which the
accused was unaware." United States v. Conner, 752 F.2d 566, 574
(11th Cir.) (quoting Screws v. United States, 325 U.S. 91, 102, 65
S.Ct. 1031, 1036, 89 L.Ed. 1495 (1945) (Douglas, J., concurring)),
cert. denied sub nom., Taylor v. United States, 474 U.S. 821, 106
S.Ct. 72, 88 L.Ed.2d 59 (1985). When the Second Circuit addressed
a challenge to section 1341 of the mail fraud statute in United
States v. Margiotta, that circuit found that section 1341 was not
unconstitutionally vague because it "contains the requirement that
the defendant must have acted willfully and with the specific
intent to defraud." United States v. Margiotta, 688 F.2d 108, 129
(2d Cir.1982), cert. denied, 461 U.S. 913, 103 S.Ct. 1891, 77
L.Ed.2d 282 (1983).
We believe that the reasoning from the foregoing cases is
instructive here. In this case, the government had to prove that
the appellants had the "specific intent" to defraud. 18 U.S.C.A.
§§ 1341, 1346 (West 1984 & Supp.1995). The jury found that
appellants had the specific intent to defraud the state of Florida
of its honest services. In light of the foregoing reasoning, we
hold that the term "honest services" in section 1346 was not
unconstitutionally vague as applied to the appellants.9
In considering appellants' argument regarding the scope of
the mail fraud statute's protection, we decline to adopt
appellants' construction of 18 U.S.C. §§ 1341 and 1346. Under
appellants' interpretation of sections 1341 and 1346, the mail
fraud statute would not protect states. First, appellants contend
that it is inconsistent with federalism principles to apply this
statute to a sovereign state. The Supreme Court has made it clear,
however, that Congress may forbid putting letters into the post
office when "such acts are done in furtherance of a scheme that it
regards contrary to public policy, whether it can forbid the scheme
or not." Badders v. United States, 240 U.S. 391, 393, 36 S.Ct.
367, 368, 60 L.Ed. 706 (1916). Therefore, appellants' federalism
argument is without merit.
Appellants also suggest that Congress's enactment of section
1346 restricts section 1341's protection to nongovernmental
victims. In 1988, Congress enacted section 1346 of the mail fraud
statute to state an offense for the deprivation of intangible
rights such as "honest services," thus overruling the Supreme
9
Appellants did not challenge the sufficiency of the
evidence regarding the jury's findings of specific intent to
defraud. Also, appellants do not challenge the jury instructions
on specific intent.
Court's decision in McNally v. United States, 483 U.S. 350, 107
S.Ct. 2875, 97 L.Ed.2d 292 (1987). Pub.L. No. 100-690, § 7603, 102
Stat. 4508 (codified as amended at 18 U.S.C. § 1346 (1988)); see
also 134 Cong.Rec. H11,251 (daily ed. Oct. 21, 1988). Appellants
assert that sections 1341 and 1346 read together seek to punish
"whoever having devised or intended to devise any scheme or
artifice to deprive "another' of the intangible right of honest
services ... places in any post office or authorized depository for
mail matter...." Appellants argue that the term "another" cannot
encompass a state. We disagree.
Neither the plain language of section 1346 nor its legislative
history supports the limitation appellants urge. We find it
instructive to note that prior to section 1346's enactment, similar
questions arose regarding the reach of section 1341's protection.
In United States v. Martinez, the Third Circuit found that the mail
fraud statute protected the Commonwealth of Pennsylvania from
deprivation of its property interests. United States v. Martinez,
905 F.2d 709, 715 (3d Cir.), cert. denied, 498 U.S. 1017, 111 S.Ct.
591, 112 L.Ed.2d 595 (1990).
Indeed, other cases decided based upon section 1341
violations, prior to the clarifying amendment of section 1346,
support our finding that the mail fraud statute does protect
governmental entities such as a state. See, e.g., United States v.
Coyne, 4 F.3d 100, 110-11 (2d Cir.1993) (upholding mail fraud
convictions where a county was victim of mail fraud); United
States v. Paccione, 949 F.2d 1183 (2d Cir.1991) (affirming mail
fraud conviction where city of New York defrauded), cert. denied,
505 U.S. 1220, 112 S.Ct. 3029, 120 L.Ed.2d 900 (1992); United
States v. Wilson, 904 F.2d 656, 660-61 (11th Cir.1990) (upholding
mail fraud conviction where indictment alleged defendants intended
to defraud the Internal Revenue Service), cert. denied, 502 U.S.
889, 112 S.Ct. 250, 116 L.Ed.2d 205 (1991). We can discern no
reason to read sections 1341 and 1346 as appellants suggest to
exclude states, and presumably, all governmental entities from the
mail fraud statute's protection. We believe that such a result
would belie a clear congressional intent to construe the mail fraud
statute broadly. See generally United States v. Martinez, 905 F.2d
709 (3d Cir.1990).
VI. Prosecutorial Misconduct
Appellants contend that prosecutorial misconduct occurred in
two respects. First, appellants allege that the prosecutor
impermissibly vouched for the credibility of Gelber, the
government's main witness. Primarily, appellants' challenge the
prosecutor's attempts to elicit testimony from Gelber regarding the
truth telling provisions in his plea agreement. Second, appellants
contend that the prosecutor made disparaging remarks about the
defense attorneys and other improper remarks. Appellants state
that the prosecutor suggested that prosecutors are sworn to pursue
justice while criminal defense attorneys are beholden to the
manipulation of the justice system.
When faced with a question of whether improper vouching
occurred we ask: "whether the jury could reasonably believe that
the prosecutor was indicating a personal belief in the witness's
credibility." United States v. Sims, 719 F.2d 375, 377 (11th
Cir.1983), cert. denied, 465 U.S. 1034, 104 S.Ct. 1304, 79 L.Ed.2d
703 (1984). In applying this test, we look for whether (1) the
prosecutor placed the prestige of the government behind the witness
by making explicit assurances of the witness's credibility, or (2)
the prosecutor implicitly vouched for the witness's credibility by
implying that evidence not formally presented to the jury supports
the witness's testimony. Sims, 719 F.2d at 377.
Since appellants' initial concern is about Gelber's testimony
surrounding his plea agreement, we note that prosecutors are not
generally prohibited from entering a plea agreement into evidence
for the jury's consideration. United States v. Dennis, 786 F.2d
1029, 1047 n. 18 (11th Cir.1986), cert. denied, 481 U.S. 1037, 107
S.Ct. 1973, 95 L.Ed.2d 814 (1987). Moreover, our careful review of
the circumstances under which this testimony was elicited compels
us to find that a jury could not have reasonably believed that the
prosecutor was personally vouching for Gelber's credibility, or
that the prosecutor was indicating that evidence beyond what was
presented to the jury supported Gelber's testimony. In this case,
the prosecutor merely questioned Gelber about the requirements of
the plea agreement to testify fully and truthfully. Furthermore,
in his questioning of Gelber, the prosecutor merely pointed out
that Gelber risked prosecution if he perjured himself. We have
found similar questioning proper. See United States v. Sims, 719
F.2d 375, 377 (11th Cir.1983), cert. denied, 465 U.S. 1034, 104
S.Ct. 1304, 79 L.Ed.2d 703 (1984). Consequently, we find that no
prosecutorial misconduct occurred with respect to impermissible
vouching.
A similar result obtains in our consideration of the
prosecutor's alleged disparaging remarks and other improper
statements. We may find prosecutorial misconduct where (1) a
prosecutor makes improper remarks (2) that prejudicially affect the
substantial rights of the defendant. United States v. Eyster, 948
F.2d 1196, 1206 (11th Cir.1991).
Both the prosecution and defense came close to making
improper comments as they exchanged vitriol during closing
arguments. Appellants challenge the prosecutors following remark:
"And these fellows here, these guys are prosecutors, they're sworn
to be prosecutors, to pursue justice. These defense counsel, they
represent their clients, they come in here and say what they want
to help their clients." While we do not condone the prosecutor's
remarks, we cannot find that they constitute grounds for reversal.
The prosecutor made the statement on rebuttal in response to the
defense counsel's comments that the prosecutors were liars and
suborners of perjury. The defense counsel invited the prosecutor's
concomitant attack. In light of the circumstances surrounding the
exchange and the substantial evidence against the appellants, we
cannot agree that appellants suffered any prejudice. See United
States v. Cotton, 631 F.2d 63, 66 (5th Cir.1980) (where defense
counsel referred to government agents as liars, and persons engaged
in coverups, government entitled to respond to assertions), cert.
denied, 450 U.S. 1032, 101 S.Ct. 1743, 68 L.Ed.2d 227 (1981).
Appellants also contend that the prosecutor made improper
statements by trying to prove guilt by association. We find this
contention meritless as the prosecutor properly commented on the
evidence presented to the jury when he described the close
association that appellants shared with others involved in the
kickback scheme prior to and during their criminal activities.
United States v. Tisdale, 817 F.2d 1552, 1555 (11th Cir.) (stating
that when the evidence supports a prosecutor's comments, no error
occurs), cert. denied, 484 U.S. 868, 108 S.Ct. 194, 98 L.Ed.2d 145(1987).
VII. Exclusion of Witness Testimony
Appellants contend that reversible error occurred when the
district court precluded them from introducing a witness to expose
Gelber's self-interest, bias, or motive to testify falsely. It is
clear from the record, however, that appellants sought to impeach
Gelber's credibility through introducing testimony of a convicted
drug dealer regarding Gelber's alleged prior bad act of soliciting
help to smuggle marijuana.
The district court did not abuse its discretion in excluding
this proposed testimony. Specific instances of prior bad acts may
not be admitted through extrinsic evidence to attack a witness's
credibility. Fed.R.Evid. 608(b); see also United States v.
Darwin, 757 F.2d 1193, 1204 (11th Cir.1985), cert. denied, 474 U.S.
1110, 106 S.Ct. 896, 88 L.Ed.2d 930 (1986). Consequently, we find
that the district court did not abuse its discretion in excluding
this testimony.
CONCLUSION
For the foregoing reasons, we affirm appellants' convictions
and sentences.
AFFIRMED.
BARKETT, Circuit Judge, specially concurring:
I concur fully with the majority's opinion affirming the
appellants' convictions for mail fraud and bribery and Castro's
conspiracy conviction under RICO, and concur in affirming Boehme's,
Lechtner's, and Luongo's conspiracy convictions but for different
reasons. With respect to Boehme's, Lechtner's, and Luongo's
conspiracy convictions, I do not think the government proffered
sufficient evidence to prove the existence of the agreement
necessary to prove the single overarching conspiracy charged in the
indictment. Instead, the government only proved the existence of
multiple independent conspiracies each of which involved one of the
defendants. However, because the variance between the allegations
contained in the indictment and the proof adduced at trial did not
affect defendants' substantial rights, I would affirm their
convictions on the RICO conspiracy charge.
To convict a defendant for conspiracy in violation of RICO,
the defendant must (1) have been associated with (2) an enterprise
engaged in interstate commerce, and (3) must have conducted or
participated in the conduct of the enterprise's affairs (4) through
a pattern of racketeering. See 18 U.S.C. § 1962(c); see also U.S.
v. Bright, 630 F.2d 804, 829 (5th Cir.1980).1 To prove the
existence of a single overarching conspiracy, rather than multiple
independent conspiracies, the government must show that the
conspirators agreed to an overall objective. U.S. v. Sutherland,
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th
Cir.1981) (en banc), this circuit adopted as binding precedent
all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
656 F.2d 1181, 1192-93 (5th Cir.1981) (as in any other conspiracy,
under RICO the government must prove the existence of an "agreement
on an overall objective"); see also U.S. v. Valera, 845 F.2d 923,
929 (11th Cir.1988). Under RICO, the government need not show that
the conspirators agreed to commit specific crimes or accomplish
common goals; it is enough that they each agreed to participate in
a conspiracy to commit the substantive RICO offense of affecting,
directly or indirectly, the affairs of the enterprise through a
pattern of racketeering. Sutherland, 656 F.2d at 1192. Sutherland
warns, however, that it is not enough that the defendants were
simply participating in the conduct of the same enterprise, or had
knowledge of other criminal activity; the gravamen of a RICO
conspiracy, like any other conspiracy, is that the defendant not
only knows about the conspiracy, but also agrees to participate in
it to accomplish an overall objective.2 Id. at 1192-93; see also
Valera, 845 F.2d at 929.
To show that a defendant agreed with others to participate in
the affairs of the enterprise through a pattern of racketeering,
the government must prove either (1) an explicit agreement, or (2)
in the absence of direct evidence, that the nature of the
conspiracy is such that the defendant must necessarily have known
2
It's worth noting that Congress's express purpose in
enacting the Organized Crime Control Act of 1970, of which RICO
is a part, was "to seek the eradication of organized crime ... by
establishing new penal prohibitions, and by providing enhanced
sanctions and new remedies to deal with the unlawful activities
of those engaged in organized crime." James F. Holderman,
Reconciling RICO's Conspiracy and "Group" Enterprise Concepts
with Traditional Conspiracy Doctrine, 52 U.Cin.L.Rev. 385, 386-87
(1983) (quoting Pub.L. No. 91-452, 84 Stat. 922, 923 (1970))
(emphasis added).
that others also were conspiring to participate in the same
enterprise through a pattern of racketeering activity. Valera, 845
F.2d at 929 (11th Cir.1988); Sutherland, 656 F.2d at 1194. Under
(2), an agreement to participate in a single conspiracy can be
inferred because the participation of others is necessary for the
defendant to benefit from his own criminal activity. Thus, for
example, an agreement can be proved circumstantially when the
defendant is a member of an enterprise specifically formed for
illegal purposes ("association in fact"), see, e.g., U.S. v.
Church, 955 F.2d 688 (11th Cir.1992); U.S. v. Elliott, 571 F.2d
880 (5th Cir.1978), or is a link in a chain of criminal activity,
see, e.g., Valera, 845 F.2d 923, because the inherent nature of
those conspiracies necessarily involve other participants.
The indictment in this case charged Boehme, Lechtner, and
Luongo, attorneys practicing in and associated with the Eleventh
Judicial Circuit, with agreeing to participate in the affairs of
the Circuit Court of the Eleventh Judicial Circuit, through a
pattern of racketeering, to wit, Extortion, Conspiracy to Commit
Extortion and Attempt to Commit Extortion, Bribery, Unlawful
Compensation or Reward for Official Behavior, Conspiracy to Commit
Murder, Mail Fraud, and Laundering of Monetary Instruments, with
the object of corruptly utilizing the Circuit Court for personal
financial gain. Each was charged with committing at least two
predicate acts in furtherance of the conspiracy, namely, on
numerous occasions paying kickbacks to judges in exchange for
appointments as Special Assistant Public Defenders.
Because the nature of the kickback activities did not
necessarily involve anyone other than the attorney and judge to
which the kickbacks were paid, the government was required to prove
that each of the defendants explicitly agreed to participate in a
larger conspiracy—one that involved people outside of the
individual kickback deals—to conduct the affairs of the Circuit
Court through a pattern of racketeering. At trial the government
proffered sufficient evidence to show that each of the charged
attorneys were participants in a conspiracy involving his/herself,
Judge Gelber, Judge Davis, and Margaret Ferguson. However, the
evidence was insufficient to show that Luongo, Boehme, or Lechtner
explicitly agreed to participate in a conspiracy in which others
also were corruptly utilizing the Circuit Court through a pattern
of racketeering.3 With respect to Luongo, the government did not
present any evidence to suggest he was even aware that there was
any other criminal activity afoot in the Circuit Court. Lechtner
was advised that the payment of kickbacks on court appointments was
"something that's being done." Similarly, Boehme was informed that
he would be placed on the "preferred list" for court appointments.
These statements alone, while possibly establishing knowledge of
other criminal activity within the Circuit Court, are insufficient
to establish beyond a reasonable doubt that Boehme and Lechtner
explicitly agreed to accomplish anything more than the receipt of
3
We review the jury's verdict for sufficiency of the
evidence de novo, but view the evidence in the light most
favorable to the government and determine whether a reasonable
factfinder could find guilt beyond a reasonable doubt. See
United States v. Kelly, 888 F.2d 732 (11th Cir.1989).
court appointments for their own monetary gain.4 Nothing suggests
that they were aware of the contours or scope of the conspiracy as
charged in the indictment, or that they would be interested in or
benefit from the similar activities of others. To the contrary,
they were interested only in profiting from their individual,
clearly-defined wrongful acts, and neither benefitted from or was
dependent upon the larger conspiracy. Although conspirators need
not know their fellow conspirators or be aware of all the details
of a conspiracy, U.S. v. Pepe, 747 F.2d 632, 659 (11th Cir.1984),
it is equally true that "one who embarks on a criminal venture with
a circumscribed outline is not responsible for acts of his
co-conspirator which are beyond the goals as the defendant
understands them." Bright, 630 F.2d at 834 n. 52. Therefore, I
believe that there was a variance between the single conspiracy
charged in the indictment and the multiple conspiracies proved at
trial. See Sutherland, 656 F.2d at 1194 (finding multiple
conspiracies rather than a single conspiracy where indicted
co-conspirators were involved in similar schemes to bribe the same
public official, but where there was no agreement among them);
Bright, 630 F.2d at 834 (same).
Luongo, Boehme, and Lechtner are entitled to a new trial,
however, only if they can show that the variance affected their
substantial rights. Sutherland, 656 F.2d at 1190 n. 6., 1195. In
Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 13144
Castro actually solicited the participation of new
attorneys in Judge Gelber's kickback scheme, and thus a
reasonable trier-of-fact could find that Castro agreed to
participate in a conspiracy involving numerous participants to
corruptly utilize the Circuit Court.
(1935), the Supreme Court held that a variance between a single
conspiracy charged in an indictment and multiple conspiracies
proved at trial is fatal to a conviction only if it "affects the
substantial rights" of the accused. Id. at 81-81, 55 S.Ct. at 630-
31. In general, a defendant's substantial rights are not affected
merely because other people are not guilty of the same conspiracy
in which the defendant was involved. Instead, the primary dangers
resulting from a variance between the indictment and proof at trial
are (1) the accused will not be able to present an adequate defense
because of inadequate notification as to the charges, (2) the jury
will transfer guilt among the defendants in a joint trial, and (3)
the accused may be prosecuted for the same offense later. Id.In Sutherland, the Fifth Circuit focused on three factors to
determine whether a variance has affected an accused's substantial
rights. First, the court should look to the number of defendants
involved in the joint trial and the number of conspiracies actually
proved at trial. Id. at 1196. The greater the number of
defendants and conspirators, the more complex the case, creating a
greater risk of jury confusion and transference of guilt from one
defendant to another. Second, the court should examine whether
evidence of a co-defendant's guilt, which has no bearing on the
defendant's guilt, has been kept separate and distinct from
evidence material to the defendant's guilt. Id. Third, a court
should examine whether the government introduced overwhelming
evidence of guilt as to each defendant, and whether that evidence
would have been admissible had separate trials been held. Id.
In this case, there were four defendants and the government
proved the existence of four similar conspiracies. This case was
not so complex as to render it likely that the jury transferred
guilt among the defendants. Compare Berger, 295 U.S. at 82-83, 55
S.Ct. at 631 (no substantial rights affected where there were four
defendants and two distinct conspiracies) with Kotteakos v. U.S.,
328 U.S. 750, 766-69, 66 S.Ct. 1239, 1249-50, 90 L.Ed. 1557 (1946)
(substantial rights affected where there were thirty-two defendants
and eight distinct conspiracies). Second, evidence as to each
defendant's role in the kickback schemes was distinct enough so
that the jury was unlikely to use evidence of one defendant's guilt
against another defendant. Although the similarities between each
of the defendant's activities may have made an assertion of
innocence more difficult for the jury to believe, I find that the
evidence as to the underlying crimes was sufficiently distinct and
separate for the jury to consider each defendant's guilt
independently. Similarly, the evidence as to each defendant's
involvement in the kickback activities was more than sufficient to
find them guilty of the individual conspiracies.
In sum, although I believe that a variance existed between the
single conspiracy charged in the indictment and the multiple
conspiracies proved at trial, the appellants' substantial rights
were not affected, and thus reversal is not required. Therefore,
I would affirm their convictions on all counts.