Appeals from the United States District Court for the Southern District of Florida. D.C. Docket No. 91-708-CR-JAG.
Before Hatchett and Barkett Circuit Judges, and Godbold, Senior Circuit Judge.
In this "Operation Court Broom" appeal, we affirm the appellants' convictions and sentences.
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.
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 co-defendants 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).*fn1
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, co-defendant 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 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.
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.
The issues we address in this appeal are: (l) 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 ...