United States v. Wayne Moore ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 06-4211, 06-4212, 06-4271, 07-1940, 07-2012
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
R ODGER G RIGGS, D ONALD G RIGGS,
JULIE G RIGGS, W AYNE M OORE,
and S HAWN S HROYER,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:04-CR-00071—Allen Sharp, Judge.
A RGUED F EBRUARY 9, 2009—D ECIDED JUNE 24, 2009
Before P OSNER and SYKES, Circuit Judges, and D OW,
District Judge.1
P OSNER, Circuit Judge. The defendants were charged
with a variety of federal crimes (wire fraud and con-
1
Judge Robert M. Dow, Jr., of the Northern District of
Illinois, sitting by designation.
2 Nos. 06-4211, 06-4212, 06-4271, 07-1940, 07-2012
spiracy to commit wire fraud, money laundering and
conspiracy to commit money laundering, and tax
evasion and failure to file tax returns) committed in
furtherance of a typical Ponzi scheme, in which
investors in the defendants’ enterprises were made
false promises of exorbitant profits and lost more than
$5 million. The defendants, all but Moore, were tried
together to a jury, and convicted; Moore was tried sepa-
rately, also to a jury, and was also convicted. The defen-
dants received sentences ranging from 30 months for
Shroyer to 235 months for Rodger Griggs, the ringleader.
All five defendants challenge the sufficiency of the
evidence to convict them. In the case of Rodger Griggs,
the challenge is frivolous and so requires no discussion.
In the case of the other defendants the challenge
borders on the frivolous and warrants only a brief dis-
cussion. As is typical in fraud cases, most of the partici-
pants claimed not to have known that they were par-
ticipating in a fraudulent scheme. Julie Griggs, for ex-
ample, Rodger Griggs’s wife, testified that she knew
nothing about her husband’s business, though she was
a trustee of two of the phony enterprises that he used
in executing the Ponzi scheme and the signatory on one
of the bank accounts to which investors wired their
investments. She made efforts to avoid learning of her
husband’s scheme, for example by leaving the room in
which he was discussing it with another of the conspira-
tors. But avoidance behavior is itself evidence of guilty
knowledge—the classic “ostrich” behavior that elicits
an ostrich instruction, which the judge gave. United States
v. Strickland, 935 F.2d 822, 826-28 (7th Cir. 1991); United
Nos. 06-4211, 06-4212, 06-4271, 07-1940, 07-2012 3
States v. Giovannetti, 919 F.2d 1223, 1228 (7th Cir. 1990);
United States v. Ramsey, 785 F.2d 184, 189 (7th Cir. 1986);
United States v. Azubike, 564 F.3d 59, 66-68 (1st Cir. 2009).
The only other issue that requires discussion concerns
omissions in the instructions given to the jury in Moore’s
trial. The jury was not instructed that to convict him of
conspiracy, in violation of 18 U.S.C. § 371, which
requires proof of an overt act committed by a conspirator
in furtherance of the conspiracy, it had to agree unani-
mously on at least one overt act. Nor was it instructed
that to find him guilty of conspiracy to commit wire
fraud it had to find that the fraudulent scheme involved
an interstate or foreign transmission by wire. His lawyer
did not object to these omissions, and so our review is
for plain error.
We don’t think the judge was required (or indeed
permitted) to tell the jury that, to convict Moore, it had
to agree unanimously on an overt act that at least one of
the conspirators had committed. We thus agree with
the only previous appellate case to have answered the
question, United States v. Sutherland, 656 F.2d 1181, 1202
(5th Cir. 1981), though a number of cases have avoided
deciding it because the answer would not have affected
the outcome of the appeal. See United States v. Matthews,
505 F.3d 698, 709-10 (7th Cir. 2007); United States v.
Jorgensen, 144 F.3d 550, 561 (8th Cir. 1998); United States v.
Shaoul, 41 F.3d 811, 817-18 (2d Cir. 1994).
The law distinguishes between the elements of a crime,
as to which the jury must be unanimous, and the means
by which the crime is committed. Richardson v. United
4 Nos. 06-4211, 06-4212, 06-4271, 07-1940, 07-2012
States, 526 U.S. 813, 817-18 (1999); Schad v. Arizona, 501
U.S. 624, 631 (1991) (plurality); id. at 649 (concurring
opinion); United States v. Gibson, 530 F.3d 606, 611-12 (7th
Cir. 2008); United States v. Talbert, 501 F.3d 449, 451-52
(5th Cir. 2007). If the jurors in our case disagreed about
which of the overt acts charged were committed, that
was less momentous than failing to agree on what crime
the defendant had committed. Suppose a person is
charged with Medicare fraud and child molestation,
and half the jury think him guilty of the first crime and
innocent of the second and the other half think him
guilty of the second crime and innocent of the first. The
defendant would have been convicted of a crime—actually
of two crimes—on the basis of a nonunanimous jury
verdict, and the convictions would have to be set aside.
See Schad v. Arizona, supra, 501 U.S. at 633 (plurality
opinion).
The jurors agreed unanimously on what crime Moore
had committed—agreed in other words that he had
taken a step toward accomplishing the goal of the con-
spiracy, had gone beyond mere words. Yates v. United
States, 354 U.S. 298, 334 (1957), overruled on other
grounds by Burks v. United States, 437 U.S. 1 (1978).
That they may have disagreed on what step he took
was inconsequential, especially since they didn’t have
to find that the step was itself a crime, Braverman v.
United States, 317 U.S. 49, 53 (1942); United States v. Soy,
454 F.3d 766, 768 (7th Cir. 2006), or even base conviction
on an overt act charged in the indictment. United States
v. McKinney, 954 F.2d 471, 476-77 (7th Cir. 1992); United
States v. Pomales-Lebrón, 513 F.3d 262, 269 (1st Cir. 2008).
Nos. 06-4211, 06-4212, 06-4271, 07-1940, 07-2012 5
The requirement of proving an overt act is a statutory
afterthought. Conspiracy was criminal at common law
without an overt act, United States v. Shabani, 513 U.S. 10,
13-14 (1994), and remains so with regard to conspiracies
to violate the federal drug laws, for example. 21 U.S.C.
§ 846. Although Moore was convicted of conspiracy in
violation of a statute (18 U.S.C. § 371, the general federal
conspiracy statute) that requires proof of an overt act,
two of his codefendants were convicted of violating
18 U.S.C. § 1956(h)—conspiracy to engage in money
laundering—which does not require such proof. Whitfield
v. United States, 543 U.S. 209 (2005). It is no surprise that,
as stated in the plurality opinion in the Schad case, “an
indictment need not specify which overt act, among
several named, was the means by which a crime was
committed.” 501 U.S. at 631.
Failing to agree on the overt act that the defendant
committed is not like failing to agree on the object
of the conspiracy, United States v. Sababu, 891 F.2d 1308,
1325-26 (7th Cir. 1989); United States v. Mauskar, 557 F.3d
219, 227 (5th Cir. 2009); United States v. Pierce, 479 F.3d
546, 552 (8th Cir. 2007), or on which statement is the
basis of a perjury conviction, United States v. Fawley,
137 F.3d 458, 471 (7th Cir. 1998); United States v. Richardson,
421 F.3d 17, 31 (1st Cir. 2005), or on which offenses consti-
tute the predicate of a continuing criminal enterprise
conviction. Richardson v. United States, supra, 526 U.S. at
824. All those are cases in which the jury fails to agree
on the crime that the defendant committed.
But, turning now to Moore’s second argument, we
discover that the jury may not have been unanimous
6 Nos. 06-4211, 06-4212, 06-4271, 07-1940, 07-2012
about the elements of his crime. It was not instructed that
the prosecution had to prove the interstate use of wire
transmissions, though it is an element of the crime of wire
fraud and not just a jurisdictional prerequisite to be
determined by the judge. 18 U.S.C. § 1343; Hugi v.
United States, 164 F.3d 378, 380-81 (7th Cir. 1999). But the
error was not prejudicial, and so does not merit reversal
on plain-error review. United States v. Olano, 507 U.S.
725, 734 (1993). For that matter, it would not merit
reversal even if it had been objected to, because it was
a harmless error (a more exacting standard than not
prejudicial); and even the error of failing to state in an
instruction an element of the defendant’s crime can if
harmless be forgiven. Neder v. United States, 527 U.S. 1, 15-
16 (1999); United States v. Webber, 536 F.3d 584, 596 (7th
Cir. 2008). There was never doubt that the conspiracy
had involved the use of interstate communications by
wire, which may be why the lawyers and the district
judge didn’t notice the omission from the instructions.
Nor for that matter was there doubt that the con-
spirators had committed numerous overt acts; so even
if the judge should have instructed the jury that it had
to agree unanimously about which overt act or acts
had been committed, the error would have been harmless.
A FFIRMED.
6-24-09