United States v. Castro

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. 1314 4 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.