ALARCÓN, Senior Circuit Judges:
Barbara Jean Bravender Ah Loo ("Ah Loo") and Norbert Schlei have appealed from the judgments of conviction.
We vacate the order denying Schlei a new trial and an evidentiary hearing with directions that the district court make express findings regarding the alleged witness intimidation claim. We vacate the judgment of conviction on Count Ten because we conclude that the district court erred in denying Schlei's motion to strike duplicitous allegations regarding a separate crime in a different venue. We affirm the district court's order on the balance of Schlei's contentions.
The transactions that preceded the indictment in this case are unusual, if not bizarre. Most of the evidence was undisputed.
The prosecution presented evidence that Schlei, and others attempted to sell certain financial instruments in the United States. Schlei and his salespersons represented that these financial instruments had been issued by the government of Japan or the Dai-Ichi Kangyo Bank. The instruments were labeled "Certificates of Balance of Redemption, Series 57" (the "bond certificates"), with face amounts ranging from ten billion yen to 500 billion yen, and cashier's checks allegedly issued by the Dai-Ichi Kangyo Bank (the "bank notes"), each drawn for fifty billion yen. The bond certificates were purportedly issued by the government of Japan in exchange for money or property received from the bond certificate holders or payees.
The prosecution's theory at trial was that Schlei had actual knowledge, or deliberately closed his eyes, to the fact that these financial instruments were worthless because they were not issued by the government of Japan or the Dai-Ichi Kangyo Bank. Schlei testified that he believed that the instruments were valid but that corrupt officials of the government of Japan had falsely claimed that they were not genuine. The jury was persuaded beyond a reasonable doubt that the bond certificates and bank notes were not genuine and that Schlei had the requisite criminal intent to defraud when he represented to prospective purchasers that these instruments were valid.
SUFFICIENCY OF THE EVIDENCE
Schlei argues that the judgment must be reversed because the Government failed to present evidence that he intended to defraud anyone in attempting to sell the bond certificates and the bank notes. He asserts that the record shows that he informed each prospective buyer that the government of Japan claimed that these financial instruments were not valid. He also maintains that fraud has not been demonstrated because no reasonable person would have purchased these instruments without receiving confirmation of their validity from the Japanese government, in view of their extraordinary face value and the disclosures made to prospective purchasers.
In discussing whether the evidence is sufficient to sustain the judgment of conviction against Schlei, we are required to review the facts produced at trial by the parties in the light most favorable to the Government. United States v. Calhoon, 97 F.3d 518, 523-24 (11th Cir.1996), cert. denied, ___ U.S. ___, 118 S.Ct. 44, ___ L.Ed.2d ___ (1997). In reviewing a sufficiency claim, we "accept all reasonable inferences and credibility choices made in the government's favor,
1. The Source of the Financial Instruments
In the early part of 1985, Sam M. Han, a Korean-American, met with C.K. Lee, a fellow Korean-American, and T. Hiraki, a Japanese national, in Los Angeles, California. Lee and Hiraki told Han that they represented certain persons who wanted Han's assistance in getting the government of Japan to acknowledge the validity of the bond certificates and bank notes. Han was told by Hiraki and Lee that the government of Japan claimed that the financial instruments were not genuine and had refused to honor them. Han urged Lee and Hiraki to seek legal advice.
In March of 1985, Han and Lee met with Schlei at his law office in Los Angeles to discuss negotiation of the financial instruments. Han and Lee informed Schlei that the government of Japan would not negotiate with them without pressure from outside of Japan. Sometime shortly thereafter, Schlei met with Han and Lee, as well as a group of Japanese nationals, including Toshio Takahashi. Schlei, Han, and Takahashi later traveled to Japan and interviewed persons who possessed some of the bond certificates and bank notes. The holders of these instruments informed Schlei and Han that they received them from a woman named Hatsu Aoyagi.
On April 8, 1985, Schlei and Han met with Stanley Sporkin, the general counsel for the Central Intelligence Agency ("CIA"). At this meeting, Schlei told Sporkin that he had been informed by a group of Japanese citizens that a secret, two billion dollar fund had been accumulated by General Douglas MacArthur during the American occupation of Japan. Schlei stated the secret fund came from money confiscated from foreigners, the imperial family, and property seized during Japan's occupation of Korea. Schlei's alleged informants referred to it as the Marquat Fund (the "M Fund"). Schlei told Sporkin that the fund was administered by the United States and the Liberal Democratic Party in Japan. Schlei related that he was informed that in 1958, then-Vice President Nixon promised to give Okinawa to Japan and turn control of the M Fund over to Japan in exchange for Japan's support in electing him president of the United States. Schlei told Sporkin that a woman who had been indicted for the forgery of these financial instruments had been acquitted of that charge.
Sporkin testified that Schlei declared that he wanted the CIA to know he was going to try to present these instruments for payment and "wanted to give [him] a heads up to a possible political problem." Sporkin informed Schlei that he knew nothing about the financial instruments or the M Fund, and that the story Schlei had related "seem[ed] extraordinary." Sporkin also testified that he thought "it was a crazy idea, preposterous."
Sporkin promised Schlei that he would call him to indicate whether the CIA had any interest in Schlei's plan to attempt to sell the bond certificates and the bank notes. In a subsequent telephone call, Sporkin told Schlei that the CIA had no interest in the proposed sale of the financial instruments because "[i]t was a private matter."
After returning to Los Angeles, Schlei agreed to provide legal representation to Hiraki, Takahashi, Lee, and Han "in relation to the negotiation and cashing of certain checks and other instruments."
In furtherance of the plan to sell the bond certificates and bank notes, Schlei filed the articles of incorporation of the Japan-America Foundation, Inc. ("Foundation") in Panama on January 6, 1986. Schlei was designated as a member of the board of the Foundation as well as its secretary and treasurer. Takahashi was named as the chairman of the board and chief executive officer. Han was designated as the president of the Foundation. Pursuant to the articles of incorporation, the Foundation was formed to arrange the assignment of the bond certificates and bank notes from the nominees or payees, and to invest the proceeds of any sale "to benefit the peoples of Japan and the United States or secondarily the peoples of the nations of the Pacific Basin and the world."
Lee, Michael Dow, and Jesse Levine were indicted on January 31, 1986, in the District of Nevada for attempting to sell some of the bond certificates. Upon being informed of the arrest of Lee, Dow, and Levine, Schlei went to Nevada to help them. Schlei also wrote a letter to the United States Attorney for the District of Nevada, demanding the return of the bond certificates and bank notes to the Foundation as the owner of the instruments.
On February 17, 1986, approximately three weeks after Lee was indicted for attempting to sell forged bond certificates, Schlei met with United States Ambassador Mike Mansfield at the United States embassy in Tokyo, Japan. Also present were Daniel Russel, the Ambassador's executive assistant, and John Weeks, the embassy's assistant financial attaché. At this meeting, Schlei related the alleged genesis of the bond certificates and the bank notes, as related to him by his clients.
Russel testified at trial. He summarized Schlei's narration as follows:
At his meeting with Ambassador Mansfield, Schlei did not present any documents or other evidence to corroborate his account of the source of the financial instruments. Schlei also failed to advise Ambassador Mansfield that Lee had been recently indicted for attempting to sell forged bond certificates.
Russel testified that his position as executive assistant to the Ambassador required him to be informed regarding Japanese politics. Russel testified that he found "it totally unbelievable that such a conspiracy could have been in progress for decades without becoming widely known," because "it involved such a massive conspiracy that would have entailed the connivance of virtually every senior politician in Japan."
The day following his meeting in the United States embassy, Schlei drafted a letter to Ambassador Mansfield in which Schlei related in greater detail his clients' representations regarding the source of the bond certificates and bank notes. Schlei's message was typed on the letterhead of the United States embassy in Japan in two separate formats.
Exhibit 17 ended with the words "Sincerely, Norbert A. Schlei." The other statement, received into evidence as Exhibit 21, did not contain the above-quoted language.
Russel testified that memoranda typed on the letterhead of an embassy of the United States could only be used for official business. Foreign Service employees are forbidden from using embassy letterhead for personal reasons.
During the search of Roger A. Hill's safety deposit box at the Embassy Suites Hotel in Tampa, on January 18, 1992, the officers found a copy of Exhibit 21. Hill testified that he used the memorandum typed on embassy letterhead in attempting to sell the bonds because he believed it showed that "the United States was supporting Mr. Schlei."
On February 18, 1986, Schlei met with Mr. Kubono of the Ministry of Finance in Tokyo. During this meeting, Schlei delivered the following letter to Kubono:
On February 28, 1986, Schlei dispatched a letter to the Minister of Finance, Noboru Takeshita, containing the following words:
On March 26, 1986, Kazuhiko Koguchi responded to Schlei's letter on behalf of the office of the vice minister for international affairs of the Ministry of Finance. Koguchi's letter reads as follows:
On July 26, 1988, depositions were taken in the United States embassy in Japan in connection with the prosecution of Lee and his codefendants for attempting to sell the forged bond certificates in Nevada. A judge of the United States District Court for the District of Nevada authorized Schlei to be present at these deposition proceedings as a consultant to the attorneys for Lee, Dow, and Levine, over the objection of Assistant United States Attorney ("AUSA") Thomas R. Green.
On July 28, 1988, the parties to the criminal prosecution in the District of Nevada deposed Aoyagi at the Tochigi Prison in Japan. Aoyagi had previously been sentenced to prison for participating in a scheme to counterfeit and distribute the bond certificates and bank notes. She testified that she sold these instruments in Japan. She identified the bond certificates and bank notes taken from Lee and his codefendants as part of the group that had been forged.
When the deposition of Aoyagi was completed, AUSA Green, made the following comment to Stephen Stein, Levine's attorney: "[O]kay, you have to admit now that these are forgeries, don't you?" Stein replied:
Schlei was standing next to Stein when this exchange took place. Stein turned to Schlei and said "What do you think?" Schlei replied: "I agree. They can't be real after listening to this."
At trial, AUSA Green testified that Lee pled nolo contendere in the District of Nevada to a charge arising out of his arrest for attempting to sell the bond certificate.
2. Attempted Sale of the Financial Instruments Prior to the Sting Operation
a. Roger A. Hill's Role in Attempting to Negotiate the Financial Instruments
David Lazar, a longtime friend of Han, introduced Hill to Han, who in turn introduced Hill to Schlei. On April 24, 1986, approximately three months after Lee was indicted in the District of Nevada for attempting to sell forged bond certificates, Schlei wrote Hill regarding their ongoing negotiations for Hill to purchase some bond certificates and bank notes from the Foundation. The letter provided, in part:
The April 24, 1986 letter to Hill makes no reference to the fact that Schlei was aware that Lee had been indicted for attempting to sell forged bond certificates.
Signed agreements for the sale or lease of the bond certificates and bank notes between the Foundation and Hill & Associates for the years 1986, 1987, 1988, and 1989
On July 2, 1991, Hill called Agent Phil Rence of the FBI at the request of a law firm he had contacted regarding an attempted sale of the bond certificates. Hill informed Agent Rence that he had been involved in the sale of these instruments for approximately six years. Hill stated that he previously had offered bond certificate number 1261 for sale. Agent Rence notified Hill that he had taken a copy of bond certificate 1261 to the Japanese consulate in San Francisco. A Ministry of Finance representative provided the FBI with a letter that stated that the certificate was not genuine.
Approximately one week after his conversation with Agent Rence, Hill received bond certificate 1261 from Bobby Chamberlain, Takahashi's accountant. In November 1991, Hill asked Agent Rence whether he was doing anything wrong in continuing to try and sell the bond certificates in view of the fact that he intended to have any prospective buyer sign an agreement in which the purchaser acknowledged that he or she had been informed that the genuineness of the bond certificate was in dispute. Agent Rence told Hill that the bond certificates were "bogus," and that no "buyer-beware clause" would help him if he continued to try to sell the bond certificates.
During Hill's negotiations with the Foundation, he met with Han and Takahashi in Schlei's office. Hill saw at least fifty of the bond certificates on Schlei's coffee table.
Hill made several attempts to sell the bond certificates and the bank notes prior to January 18, 1992. None was successful.
b. The Role of Ah Loo and Howard Olson in Attempting to Negotiate the Financial Instruments
Beginning in December 1986, Ah Loo conducted business in Hong Kong as Transfield Investments Limited ("Transfield"). In September 1987, Ah Loo negotiated with John Blomfield of Merrill Lynch, Pierce, Fenner and Smith regarding the sale of "Japanese debentures." During the course of their correspondence, Blomfield sent Ah Loo a copy of an unsigned letter he had received, dated February 28, 1987, from Minoru Yoneda, an associate advisor in the Government Bond Department of the Bank of Japan in Tokyo. This letter provided in pertinent part that "[i]n Japan, the Government do [sic] not issue the Certificate of Redemption Balance that you sent us in the copy-form. Such Certificate is not a true bond, but a fictitious one, and we reg[r]et to inform you that the Certificate is often used in fraudulent practices."
On October 1, 1987, Takahashi granted Kelly Chang and Lau Jim Koon his power of attorney to "negotiate on [his] behalf with investment consultant firms, financial consortium, banks and trust body [sic] as may be deemed qualified and necessary for the investment of these Debentures." On October 15, 1987, Koon and Chang assigned bond certificates to Transfield to assist "in the disposition of said Bonds."
On October 28, 1987, Schlei wrote to Ah Loo's bank in Hong Kong, "[a]t the request of [his] client, Mr. Toshio Takahashi," to verify that funds were available to pay for the assignment of the bond certificate to Transfield. Schlei also attached an affidavit, in which he alleged that he possessed bond certificates 1276, 1280, 1354, and 1664, and advised that pursuant to instructions from his client, he was prepared to deliver the bond certificates to a buyer. Over the ensuing months, Ah Loo and Alistair Robertson, her attorney, communicated with Takahashi and Schlei regarding her efforts to sell the bond certificates.
In January 1988, Ah Loo contacted Howard Olson, a resident of Minot, North Dakota, to discuss his interest in obtaining financing
Ah Loo first mentioned the bond certificates to Olson in January 1988. Olson told Ah Loo that he thought he could use one of the bond certificates as collateral for a loan on his development project. In February 1988, Ah Loo sent bond certificate number 1395 to First American. Olson then transferred bond certificate 1395 to E.F. Hutton Securities ("E.F.Hutton"). E.F. Hutton served as his broker in negotiations concerning the instrument. E.F. Hutton requested that Shearson Lehman determine whether the instrument was valid. After making an inquiry through its Tokyo office, Shearson Lehman informed E.F. Hutton that the bond certificate was forged. E.F. Hutton immediately advised Olson that they would not accept the bond certificate because it was "no good." Shortly thereafter, the FBI ordered Olson to cease and desist his attempts to negotiate the bond certificate. Olson informed Ah Loo of the FBI's warning, as well as E.F. Hutton's refusal to deal with the bond certificate.
Once Olson's plan to use the bond certificate as collateral for a bank loan failed, Olson began negotiating with Paul Bennett, who indicated that a pension fund he represented was interested in purchasing the bond certificate. In the first half of March 1988, Olson and Schlei had several telephone conversations regarding the potential sale of the bond certificate to the pension fund. Olson testified that he informed Schlei that E.F. Hutton "didn't want to deal with [the bond certificate]." In addition, Olson advised Schlei of the FBI's warning. Nevertheless, Schlei told him to continue his efforts to sell the bond certificate.
On March 9, 1988, Takahashi sent a letter to Olson demanding either $2,362,205 in payment for bond certificate 1395, or immediate return of the instrument to Schlei as Takahashi's representative. On March 11, 1988, Schlei sent a letter to Ah Loo which included the following:
On March 18, 1988, Olson informed Schlei that Olson would be dealing directly with Schlei regarding bond certificate 1395, and that Ah Loo would no longer participate in the pending negotiations with the pension fund. That same day, Schlei sent a letter to Takahashi concerning Olson's efforts to sell the bond certificate. It reads in pertinent part as follows:
Olson's proposed sale of bond certificate 1395 to the pension fund fell through in April 1988. At that time, bond certificate 1395 was in Bennett's possession. Olson instructed Bennett to mail the instrument to Schlei. Schlei also directed Bennett to return the bond. Bond certificate 1395 was never returned to Schlei. Olson had no further direct contact with Schlei after April 1988.
On April 22, 1988, Olson wrote the following letter to Dr. Carmelo Profilo and Chang, Ah Loo's business associates:
On October 7, 1988, Ah Loo was informed by an attorney, with whom she had been dealing with respect to the sale of the bond certificates, that officials at the Bank of Japan had determined that they were forgeries, and were "exactly the same as copies used in a previous case of fraud in Hong Kong."
c. The Attempted Sale of Bond Certificates to Kazimir Golac by Schlei and Takahashi
The record shows that, late in 1988, Schlei and Takahashi attempted to sell several bond certificates to Kazimir Golac. In a letter to Schlei, dated October 14, 1988, Takahashi set forth a proposed distribution of the proceeds from the anticipated Golac sale. The letter provided that half of the income should go to the Foundation from the sale of "your and my shares" of the ten billion yen bond certificates. Takahashi also suggested that the Foundation should get fifteen billion yen "from our share of the sale of the Y300 billion bond certificates." Takahashi explained that "personally and privately your income will be 1.8bs + 3.0bs = 4.8 billion japanese yens. Mine is the same." Takahashi also recommended that the proceeds of the sale, excluding those designated for the Foundation, should be divided equally among Han, Schlei, and Takahashi. The Golac transaction was never consummated.
d. Craig Ivester's Role in Attempting to Negotiate the Financial Instruments
Sometime during 1987 or 1988, Ah Loo was introduced to Craig Ivester. Ivester was employed by Bancorp International as a finder of commodity transactions. Ivester informed Ah Loo that he had prospective buyers for the bond certificates. Ah Loo furnished Ivester with a copy of a bond certificate. Ivester sent the copy of the bond certificate to Bancorp International. Bancorp International presented the copy of the bond certificate to UVS Switzerland. UVS
3. The Sting Operation
In August 1991, Ah Loo was reintroduced to Ivester by Dallas Thompkins. Ivester was assisting Thompkins in attempting to obtain financing for Thompkins's company, Mid-Way Capital.
Ivester and Ah Loo discussed the bond certificates. Thereafter, Ivester contacted Special Agent Noonan of the United States Customs Service, to determine whether he was interested in investigating Ah Loo's involvement with the bond certificates. Ivester had previously worked with Agent Noonan as a confidential informant. After Agent Noonan expressed interest in pursuing the investigation, Ivester arranged to meet Ah Loo on September 11, 1991. At this meeting, Ivester told Ah Loo that he represented a group interested in purchasing bond certificates. On September 12, 1991, Ah Loo sent Ivester a copy of a document entitled "Private Placement Procedures," and copies of two bond certificates. Ivester forwarded these documents to Agent Noonan. Agent Noonan shared the information he had received from Ivester with Secret Service Agent Jack Fox.
Ivester arranged the initial meeting between Ah Loo and his alleged prospective buyers. This meeting occurred in Reno, Nevada in October 1991. In attendance were Ivester, Ah Loo, Agent Fox, and Customs Service Special Agent Michael Sankey. Agent Fox introduced himself as an officer of the First National Bank of Chicago. Agent Sankey identified himself as Michael Montclair, the president of a large international investment company. The conversation was surreptitiously recorded by the agents.
During the Reno meeting, Ah Loo explained to Agent Fox and Agent Sankey that General MacArthur, in an attempt to shorten the supply lines for the Korean War, created a fund to permit Japan, which at the time was prohibited from developing its military, to manufacture munitions for use in the Korean War. She stated that the proceeds for the fund were obtained from the money and property of certain persons who had been loyal followers of the Emperor of Japan. In exchange, these investors received bond certificates. Ah Loo also informed Agent Fox and Agent Sankey that the bank notes had been issued as payment for redemption of the bond certificates, but that someone had printed an overrun of these bank notes. She told the agents that the excess bank notes were fraudulent.
Ah Loo warned Agent Fox and Agent Sankey that they might not want to purchase the bond certificates because some persons had been arrested, and others killed, for dealing in these financial instruments. She also represented that the bond certificates would not be redeemed at maturity, but would be rolled over. Agent Fox and Agent Sankey expressed interest in purchasing one bond certificate, but no agreement was reached during the Reno meeting.
In early September 1991, Hill was introduced to Ah Loo by J. Maillian. Maillian informed Ah Loo that he was representing Hill in his efforts to sell bond certificates. At this time Ah Loo did not have any of the bond certificates in her possession. Hill agreed to make a bond certificate available to Ah Loo for sale to Agent Fox and Agent Sankey.
On September 20, 1991, Hill signed a handwritten agreement drafted by Takahashi in which Hill agreed to sell three bond certificates and one bank note. This agreement provides that Hill and Takahashi "should keep strict secrecy from anyone regarding this agreement and should not disclose to any one [sic] else for ever [sic] without written agreement by Both." The agreement is signed by Hill as "Party A," and Takahashi as "Party B." Takahashi provided Hill with three bond certificates, including number 1261, and bank note 59155. On the same date, Takahashi placed nine calls to Schlei, from his hotel room at the Sheraton Grande in Los Angeles. The record also shows that Schlei paid Takahashi's hotel bill.
Hill testified that he did not inform Takahashi that Ah Loo was involved in the transaction. Hill also testified that Takahashi had
Ah Loo met again with Agent Fox and Agent Sankey in early December 1991. Ah Loo represented to the agents that the bond certificates could be redeemed, but not everyone could redeem them. She told the agents that the bonds had already been certified as valid in the Japanese courts, and that she had originally obtained one of these instruments in Hong Kong from Schlei, a former assistant attorney general of the United States. During this meeting, they did not reach an agreement on the terms of the sale of the bond certificate. In late December 1991, Agent Fox informed Ah Loo that he preferred to use the Smith Barney office in Tampa as the escrow agent.
Throughout the early part of January 1992, Agent Fox and Ah Loo communicated by telephone to discuss final arrangements for the sale of the bond certificate. On January 7, 1992, Ah Loo, Ah Loo's son Bruce Hansberry, and Lee met at Ah Loo's residence in Los Angeles to discuss the acquisition of additional bond certificates by Lee. Hansberry testified that during this meeting "the validity or authenticity of these bonds were [sic] brought into question regarding [Lee's] involvement in an effort by the FBI to confiscate the bonds from [Lee]." Although this meeting was unrelated to the sale of the bond certificate to Agent Fox and Agent Sankey, Hansberry testified that "[t]he [bond certificate] series was the same. The question was implanted, there were doubts."
On January 9, 1992, A. George Saks, the executive vice president and general counsel of Smith Barney, signed a proposal letter, at Agent Fox's request, that set forth Smith Barney's purported willingness to purchase three "Series 57 Certificates of Balance of Redemption Japanese National Bonds" from Ah Loo for $140 million. In return, Smith Barney's fee for its services as escrow agent was set forth as $1.4 million.
Ah Loo assured Agent Fox that, at the closing, someone would explain to him how to certify the bond certificate's authenticity. Hansberry told Agent Fox that he had already sold three of the bond certificates. Hansberry admitted after his arrest that this representation was false.
The parties agreed that the purchase price for one bond certificate would be one hundred million dollars. Of that amount, Ah Loo was to receive nineteen million dollars, Smith Barney would be paid one million dollars for its services, and Hill was to receive eighty million dollars. Hill agreed to pay Takahashi twenty million dollars.
On January 16, 1992, Hill and Takahashi met in Takahashi's hotel room at the Sheraton Grande in Los Angeles. Takahashi told Hill that his twenty million dollar share of the proceeds from the sale to Agent Fox and Agent Sankey would be divided between Han, Schlei, Sakai, Horiguchi, and himself. Takahashi's notes reflecting this division of the proceeds were described at trial as the "payout sheet." Takahashi told Hill at the January 16, 1992 meeting that Schlei knew that a bond certificate transaction was closing.
On January 17, 1992, Hill and Hansberry traveled to Tampa to deliver the bond certificate to Agent Fox and Agent Sankey. Because of medical problems, Ah Loo did not attend the meeting, but participated by telephone. On January 18, 1992, Hill handed bond certificate 1291 to Agent Fox. Immediately thereafter, Hill and Hansberry were arrested.
At the time of their arrest, Hill and Hansberry admitted that they knew that bond certificate 1291 was fraudulent. Hill consented to a search of the safety deposit box assigned to him at the Embassy Suites Hotel in Tampa. The search disclosed additional bond certificates, bank note 59155, the disclosure form, a copy of the United States embassy letter identified at trial as Exhibit 21, and Takahashi's "payout sheet" for the Tampa transaction.
Hill placed a telephone call to Takahashi following his arrest. On the same date, Takahashi made eleven phone calls to Schlei, including two that were placed immediately after he spoke with Hill over the telephone.
On January 19, 1992, agents searched Takahashi's Los Angeles hotel room. The room
4. Proof that the Instruments Were Forgeries
At trial, the Government presented the testimony of Hideo Inoue, the special officer for research at the Government Bond Section of the Ministry of Finance in Japan, regarding the authenticity of the bond certificates. He testified that the bond certificates were not genuine. Inoue compared the bond certificates with genuine Japanese bonds. He identified the following distinguishing characteristics: (1) the bond certificates did not contain the term "Government of Japan," which appears on genuine Japanese bonds; (2) the Japanese government has never issued an instrument termed a "certificate of redemption"; (3) the bond certificates contain the letter "A," which does not appear on genuine Japanese bonds; (4) the numbering on the bond certificates appeared to have been rubber stamped, whereas genuine bonds contain a "very clear number," because of the special technology that is used; (5) the bond certificates used four-digit numbers, whereas genuine bonds contain six-digit numbers; (6) the bond certificates contained the words "Dai-Ichi Kangyo Bank," but genuine bonds do not refer to any private bank; (7) the bond certificates contained Japanese/Chinese characters with a horizontal line through them that genuine bonds do not include; (8) the bond certificates had the name of the nominee and genuine bonds do not bear the name of any person as the bondholder; (9) the seal on the bond certificates was slightly faded, not as clear, and a less-bright red than genuine Japanese bonds, and the lines around the seal of the bond certificates were thicker than around that of genuine bonds; (10) the bond certificates had face amounts of between ten and fifty billion yen, but the government of Japan has never issued a bond in an amount greater than one billion yen; (11) the bond certificates did not have the raised print and Ministry of Finance watermarks that genuine bonds contain; and (12) the reverse side of the bond certificates did not contain the same design and warning as that on genuine bonds.
Takashi Iwanaga, a vice president of the Manhattan branch of the Dai-Ichi Kangyo Bank, testified regarding the authenticity of the bank notes. Iwanaga described the physical differences between the bank notes and a genuine Dai-Ichi Kangyo Bank cashier's check issued in 1982. Iwanaga told the jury that the bank notes were counterfeit.
5. Proceedings in the District Court
Schlei was charged in Count One of the second superseding indictment with conspiring with Ah Loo, Hill, Hansberry, Takahashi, and Alan Reedy (1) to utter and pass falsely made, forged and counterfeit Japanese bonds in violation of 18 U.S.C. § 479; (2) to possess and deliver false and counterfeit foreign bank notes in violation of 18 U.S.C. § 480; (3) to use interstate wires in execution of scheme to defraud in violation of 18 U.S.C. § 1343; (4) to execute a scheme to defraud a bank in violation of 18 U.S.C. §§ 2 and 1344; (5) to offer or sell securities by employing a scheme and artifice to defraud in violation of 15 U.S.C. § 77q; and (6) to engage and attempt to engage in a monetary transaction in criminally derived property that is of a value greater than $10,000 in violation of 18 U.S.C. § 1957. The jury was furnished with a special verdict form. The jury found Schlei guilty of conspiracy. The jury found that the object of the conspiracy in which Schlei participated was "[t]o possess and deliver false and counterfeit bank notes, in violation of 18 U.S.C. § 480." The jury also found that it was not an object of Schlei's conspiracy "[t]o utter and pass falsely made, forged, and counterfeit Government of Japan Series 57 M-Bonds, in violation of 18 U.S.C. § 479."
Schlei was found not guilty of uttering or passing false, forged, and counterfeit bonds, five counts of wire fraud, bank fraud, and engaging in a monetary transaction involving unlawfully derived property. Schlei was found guilty of securities fraud in violation of 15 U.S.C. §§ 77q and 77x. The jury found specially that "[Schlei] obtained money or
1. The Evidence Demonstrates that Schlei Affirmatively Misled Potential Purchasers Regarding Material Facts
Schlei argues that the evidence presented to the jury is legally insufficient to demonstrate that he committed fraud — an essential element of conspiracy to commit fraud and the substantive offense of securities fraud charged in Count Ten of the second superseding indictment. Schlei contends that the Government failed to present evidence that he was involved in a scheme "reasonably calculated to deceive persons of ordinary prudence and comprehension." He argues that pursuant to the rule announced in United States v. Brown, 79 F.3d 1550 (11th Cir.1996), we must reverse. We disagree. The facts and circumstances presented to the jury in this matter are readily distinguishable from those reviewed by this court in Brown.
In Brown, the defendants represented to prospective customers from snow-belt states that the homes they were selling in Florida were a safe business investment and could be rented for an amount greater than the mortgage payments. Id. at 1554. In fact, the houses were being sold at a higher price than an almost identical home next door. The houses were not a good investment because they were overpriced. The rental income was less than represented. Some of the purchasers resold their homes for much less than they paid. Id.
In reversing the judgment of conviction, this court held that "[a] `scheme to defraud' under the pertinent criminal statutes has not been proved where a reasonable juror would have to conclude that the representation is about something which the customer should, and could, easily confirm — if they wished to do so — from readily available external sources." Id. at 1559. Applying this rule to the facts before it, this court concluded that potential home buyers were encouraged to travel to Florida at the expense of the developer to visit the properties offered for sale. The court noted that "this matter is not a `sale of distant property' case: the kind where the purchaser has no chance to investigate the property's condition and value." Id. at 1560. The court held that reliance on the value representations was unreasonable because a person of ordinary prudence could have easily discovered the cost of buying or renting comparable properties in Florida. Id. at 1551.
Here, unlike the situation in Brown, we have a "distant property" case. The conspirators represented that "a secret fund to be used for various purposes not suitable for public view" was created in Japan by General MacArthur and Japanese officials approximately fifty years ago. They also claimed that the government of Japan issued the financial instruments to persons who contributed to the secret fund, but that corrupt Japanese officials were now falsely claiming that they were not genuine. In making these representations, the conspirators told prospective purchasers that a former assistant attorney general of the United States had determined that the financial instruments were genuine and negotiable. Furthermore, a document typed on the letterhead of the United States embassy was shown to potential customers to persuade them that "the United States was supporting Mr. Schlei."
Under these circumstances, a reasonable juror could be persuaded beyond a reasonable doubt that a potential customer could not easily confirm the truth of the representation that a secret fund allegedly created by persons who have since died is now being covered up by a corrupt government of Japan. The conspirators represented that the financial instruments were genuine, but that the government of Japan would deny that the financial instruments were genuine. Had any potential customer of the conspirators and their salespersons attempted to contact the government of Japan, he or she would have been confronted with a self-fulfilling prophecy. Because the instruments were
2. Sufficient Evidence Was Presented to Support the Judgment of Conviction for Conspiring to Sell the Fraudulent Bank Notes
Schlei also maintains that "[n]o evidence was presented at trial showing that Schlei or anyone else engaged at any time in fraudulent behavior with respect to the `bank notes.'" The record does not support this argument.
Schlei entered into an agreement with Hiraki, Takahashi, Lee, and Han concerning the negotiation and cashing of bank notes drawn on the Dai-Ichi Kangyo Bank in the spring of 1985. In May of that year, Schlei and Lee attempted to cash one of the bank notes at the Dai-Ichi Kangyo Bank in Japan. They were informed that the bank note was not genuine. Nevertheless, on May 7, 1986, Schlei, as secretary and treasurer of the Foundation, assigned a bank note described as "cashier's check No. A35240" to Hill & Associates, Inc. The disclosure form letter that Schlei presented to Hill for distribution to potential purchasers expressly referred to cashier's checks "that purport to be issued by the Dai-Ichi Kangyo Bank." Thus, contrary to Schlei's assertion, members of the conspiracy entered into an agreement to sell fraudulent bank notes after Schlei and Lee had been informed by a representative of the Dai-Ichi Kangyo Bank that they were not genuine.
The record also discloses that Hill was furnished an additional bank note by Takahashi on September 20, 1991. Takahashi was aware that Hill was involved in the proposed sale of a bond certificate to Agent Fox and Agent Sankey. One of the bank notes was seized from Hill following his arrest in Tampa, Florida. This evidence was sufficient to persuade a rational juror that the members of the conspiracy, including Schlei, had not abandoned their agreement to sell bank notes that were known to be worthless prior to January 18, 1992. The fact that no bank notes were successfully negotiated does not affect the validity of the judgment of conviction for conspiracy to sell them. See United States v. Cuni, 689 F.2d 1353, 1356 (11th Cir.1982) ("[W]hether the object of the conspiracy is achieved is immaterial to the commission of the crime of conspiracy.").
3. The Evidence Is Sufficient to Demonstrate that Schlei's Misrepresentations and Concealment Were Material
Schlei asserts that the representations made by the alleged conspirators did not relate to a material fact. He argues that the only fact that is material to a prospective purchaser of a financial instrument is "whether the instrument will be paid when due." Schlei contends that where it is represented that a financial instrument will not be paid "other information that might indirectly suggest a possibility or probability of nonpayment becomes merely cumulative and is immaterial." Schlei's argument ignores the fact that he and his coconspirators represented that the financial instruments were genuine. Clearly, a representation of genuineness is material to a prospective purchaser of an alleged negotiable instrument. Perhaps of more significance, however, is the fact that Schlei and his coconspirators concealed the fact that Schlei knew that Aoyagi had been convicted in a Japanese court for participating in producing forged bond certificates and bank notes. These financial instruments were delivered to persons who transferred them to the Foundation. Schlei also concealed from the Foundation's salespersons and prospective purchasers the fact that after hearing Aoyagi's sworn testimony, when asked his opinion regarding the genuineness of the bond certificates, Schlei stated to Stein and AUSA Green: "I agree. They can't be real after listening to this."
Notwithstanding his firm conviction that the bond certificates and bank notes were forged, Schlei did not withdraw from the
4. The Evidence Was Sufficient to Convict Schlei of Conspiracy to Sell Fraudulent Bank Notes
Schlei contends that the evidence is insufficient to convict him of conspiracy to sell forged bank notes because he did not personally participate in the Tampa transaction. Schlei also argues that the district court erred in denying his motion for judgment of acquittal because the record shows he had no knowledge that Hill and Ah Loo were planning to sell a bond certificate furnished by Takahashi.
A person who is involved in a conspiracy from which he or she has not withdrawn is "responsible for any later act of a coconspirator which was a necessary or natural consequence of the conspiracy." United States v. Marable, 574 F.2d 224, 230 (5th Cir.1978).
As set forth above, the undisputed evidence shows that Schlei entered into a written agreement to sell bond certificates and bank notes with knowledge that the government of Japan and the Dai-Ichi Kangyo Bank had declared that these instruments were not genuine. The record shows that Schlei did not withdraw from the conspiracy to sell these forged instruments prior to January 18, 1992.
While the evidence that Schlei entered into an agreement with Lee, Han, Hiraki, and Takahashi to sell the bond certificates and the bank notes is undisputed, the jury found that Schlei conspired to sell the bank notes, but not the bond certificates. We have no clue regarding the basis for this curious determination. Schlei argues that the jury's finding that Schlei was not involved in a conspiracy whose object was "[t]o utter and pass ... Government of Japan Series 57 M-Bonds" demonstrates that "the jury intended to acquit Schlei of involvement in the Tampa transaction." This argument ignores the fact that the sale of a bond certificate was a necessary or natural consequence of an agreement to sell fraudulent bank notes also furnished to its salespersons by the Foundation. Sale of the bond certificate in Tampa, Florida was in furtherance of the conspiracy to negotiate fraudulent financial instruments allegedly evidencing a debt owed by the government of Japan. We are persuaded that the evidence was sufficient to support Schlei's conviction for conspiracy to sell forged bank notes.
Schlei challenges the district court's refusal to instruct the jury on seriatim conspiracies, which was his theory of defense. He also challenges the district court's refusal to instruct on the liability of corporate officers for acts of other officers. In addition, he
We review the district court's refusal to give a defendant's requested jury instructions for an abuse of discretion. United States v. Chirinos, 112 F.3d 1089, 1101 (11th Cir.1997). "The district court has broad discretion in formulating a jury charge as long as the charge as a whole is a correct statement of the law." United States v. Perez-Tosta, 36 F.3d 1552, 1564 (11th Cir.1994), cert. denied sub nom. Perez-Aguilera v. United States, 515 U.S. 1145, 115 S.Ct. 2584, 132 L.Ed.2d 833 (1995). "We will not reverse a conviction unless we find that issues of law were presented inaccurately or the charge improperly guided the jury in such a substantial way as to violate due process." Id.
A. Theory of Defense — Seriatim Conspiracies
Schlei maintains that the district court abused its discretion when it denied his requested jury instructions regarding seriatim conspiracies. "The district court should instruct the jury on the defendant's defense theory if the theory has a foundation in evidence and legal support." Chirinos, 112 F.3d at 1101. If the instruction would not assist the jury in deciding the issues before it, the district court need not grant defendant's request. Id.
Schlei's theory of defense centered around the written agreements to sell the instruments that were presented at trial. Schlei argues that
Schlei requested that his theory of defense be set forth in the following requested jury instructions:
Schlei contends that because the district court rejected his requested instruction that a conspiracy ends when its objectives have either been accomplished or abandoned, the jury "could have convicted [him] on Count One because they found that he had joined in an agreement at some remote time or place that ended long before the alleged conspiracy over which the court had jurisdiction." The district court did not abuse its discretion in denying the proffered instructions on seriatim conspiracies because there is no evidence in the record that Schlei withdrew from the original conspiracy to sell the fraudulent bank notes. Instead, the evidence shows that the original conspirators met to discuss the future of the Foundation after the arrests of Hill, Hansberry, and Ah Loo on January 18, 1992. While it is true that separate agreements were entered into with Olson, Hill, and Ah Loo to enlist their efforts in selling the financial instruments, the evidence is uncontradicted that the agreement between Schlei, Han, and Takahashi to sell the bond certificates and the bank notes by using the Foundation was never abandoned. The effect of Schlei's proposed instructions would have been to admonish the jury that although the objects of the conspiracy were not abandoned by his coconspirators, Schlei could not be found guilty because he abandoned the conspiracy. This is not an abandonment theory, but rather a withdrawal argument. It was an attempt to require the jury to consider the defense of withdrawal from the conspiracy. There is no evidentiary support for the defense of withdrawal from a conspiracy.
United States v. Starrett, 55 F.3d 1525, 1550 (11th Cir.1995), cert. denied sub nom. Sears v. United States, ___ U.S. ___, 116 S.Ct. 1335, 134 L.Ed.2d 485 (1996).
The district court charged the jury as follows:
This instruction required the jury to find that there was a single conspiracy. The jury was admonished that if it found that there were several separate conspiracies, but no overall conspiracy, as charged in the indictment, the defendants must be found not guilty. This instruction incorporated Schlei's request that the jury be informed that they could not find him guilty if there was no evidence that he was no longer a member of the conspiracy on January 17, 1992. The district court did not abuse its discretion when it denied Schlei's proposed seriatim conspiracy instructions.
B. Liability of Corporate Officers
Schlei also requested that the district court instruct the jury that criminal liability cannot be premised solely on a defendant's position in a corporation, based on the acts of others. He requested the following instruction:
Schlei maintains that the requested instruction was necessary because "the Government, grasping at straws to implicate Schlei in the Tampa transaction, attempted throughout the trial to convey to the jury the idea that Schlei was necessarily involved in the activities of others because he was a corporate officer of the Foundation."
Under the facts of this case, the requested instruction would have confused the jury regarding the applicable law. "[P]articipation by a business entity in a scheme to defraud in no way necessitates a finding that officers were participants in that scheme." Brown, 79 F.3d at 1555 n. 9 (quoting United States v. Toney, 605 F.2d 200, 208 (5th Cir.1979), cert. denied, 444 U.S. 1090, 100 S.Ct. 1055, 62 L.Ed.2d 779 (1980)). Rather, "the evidence must show that each officer, the person, `willfully participated' in the scheme." Id. (quoting United States v. Sawyer, 799 F.2d 1494, 1502 (11th Cir.1986), cert. denied, 479 U.S. 1069, 107 S.Ct. 961, 93 L.Ed.2d 1009 (1987)).
Here, the undisputed evidence is that the Foundation was incorporated by Schlei, Han, and Takahashi, for the sole purpose of selling the counterfeit financial instruments. As a member of a conspiracy to sell forged bank notes, Schlei was responsible
C. Definition of Security
The district court instructed the jury that, with respect to the securities fraud charge, the term "security" means:
Schlei contends that the highlighted section of the district court's instructions misstates the applicable law. He argues that Congress provided an exhaustive definition of "securities" in 15 U.S.C. § 77b(1). He contends that the district court's expansion of this definition to include "counterfeit and forged securities and securities that did not exist," permitted the jury to convict him of a crime not created by Congress. He maintains that this instruction deprived him of his right to due process. The thrust of his argument is that the securities laws were designed "to prohibit only the sale of genuine securities by fraudulent means."
The Supreme Court has instructed that "[t]he aim [of the Securities Act] is to prevent further exploitation of the public by the sale of unsound, fraudulent, and worthless securities through misrepresentation." United States v. Naftalin, 441 U.S. 768, 775, 99 S.Ct. 2077, 2083, 60 L.Ed.2d 624 (1979) (quoting S.Rep. No. 73-47, at 1 (1933) (emphasis added)). Schlei's argument was expressly rejected by the Fifth Circuit in Seeman v. United States, 90 F.2d 88 (5th Cir. 1937). In Seeman, the Fifth Circuit reasoned as follows: "It is difficult to imagine any transaction that would be better calculated to deceive and defraud a purchaser than to sell and ship him forged imitations of genuine bonds. The [securities] act is broad enough to cover the transaction charged as a crime in the indictment." Id. at 89.
More recently, the Fifth Circuit reiterated this principle in First Nat'l Bank of Las Vegas, New Mexico v. Estate of Russell, 657 F.2d 668 (5th Cir. Unit A Sept.1981). "The fraud provisions are not defeated by the fact that a security purportedly traded is nonexistent or fictitious.... A contrary result would encourage rather than curb fraud." Id. at 673 n. 16 (quoting 1 A. Bromberg, Securities Law: Fraud—SEC Rule 10b-5, § 4.6, at 316 (1977)).
The district court did not abuse its discretion in instructing the jury that counterfeit,
D. Deliberate Ignorance
Schlei maintains that the court abused its discretion in instructing the jury on deliberate ignorance. The district court instructed the jury as follows:
A district court should not instruct a jury regarding deliberate ignorance "when the evidence only points to either actual knowledge or no knowledge on the part of the defendant." United States v. Stone, 9 F.3d 934, 937 (11th Cir.1993), cert. denied, 513 U.S. 833, 115 S.Ct. 111, 130 L.Ed.2d 58 (1994).
Perez-Tosta, 36 F.3d at 1564 (quotation omitted).
Here, the evidence demonstrated that Schlei had actual knowledge that the instruments were counterfeit, but chose to disregard that knowledge. Under these circumstances, the district court should not have instructed the jury on deliberate ignorance. See id. (concluding that deliberate ignorance instruction was error where evidence established only actual knowledge). This error, however, was harmless because the evidence of actual knowledge presented at trial "strongly supported a finding" that Schlei knew the instruments were counterfeit. Id. at 1565. See also Stone, 9 F.3d at 937 (concluding error not harmless where the evidence was not "so overwhelming as to compel a guilty verdict.") (quoting United States v. Rivera, 944 F.2d 1563, 1572-73 (11th Cir.1991)).
Schlei further asserts that the court's deliberate ignorance instruction was an incorrect statement of the law. He contends that the requisite mens rea for the crimes committed required a finding that defendants acted willfully as well as knowingly, and the instruction given permitted the jury to convict Schlei without finding that he acted willfully.
Although Schlei objected to the deliberate ignorance instruction at trial, he did not raise this specific contention before the district court. "In order to preserve an objection to jury instructions for appellate review, a party must object before the jury retires, stating distinctly the specific grounds for the objection." United States v. Starke, 62 F.3d 1374, 1380-81 (11th Cir.1995). Because no specific objection was made at trial, we review this claim for plain error. Id. For plain error to occur, "[t]here must be an `error' that is `plain' and that `affect[s] substantial rights.'" United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993).
In contrast to the charge given to the jury in the instant matter, the Eleventh Circuit pattern instruction provides that "the Defendant
Schlei's argument that the instruction permitted the jury to substitute conscious avoidance of knowledge for willfulness is not persuasive. The instruction provides an alternative definition for "knowingly." Further, the omission of "deliberate" avoidance from the instruction given is remedied by the instruction's summary of when a defendant can be found to have acted "knowingly." The instruction permitted a finding that the defendant acted knowingly where "One: That the defendant actually knew that the bonds were false, fraudulent, or counterfeit; or Two: That he or she deliberately closed his or her eyes to what he or she had every reason to believe was the fact." The instruction presented to the jury, therefore, permitted the jury to substitute conscious avoidance for knowingly, but not willfully, and, the summary portion of the instruction required the jury to find either actual knowledge or "deliberate" avoidance. The court's deliberate ignorance instruction did not constitute plain error because it did not affect Schlei's substantial rights.
Schlei asserts that the Middle District of Florida did not have venue over the conspiracy and the securities fraud charges in the indictment. "[T]erritorial jurisdiction and venue are essential elements of any offense in the sense that the burden of proof is on the prosecution to prove their existence.... However, venue need only be proved by a preponderance of the evidence as opposed to beyond a reasonable doubt." United States v. Barnes, 681 F.2d 717, 722 (quotation omitted), amended by, 694 F.2d 233 (11th Cir. 1982), cert. denied sub nom. Riddle v. United States, 460 U.S. 1046, 103 S.Ct. 1447, 75 L.Ed.2d 802 (1983).
United States v. Smith, 918 F.2d 1551, 1557 (11th Cir.1990).
A. The Conspiracy Charge — Count One
Schlei was convicted of a conspiracy that had as its object the possession and delivery of false and counterfeit foreign bank notes in violation of 18 U.S.C. § 480. Schlei asserts that venue was improper as to this crime because "there was no geographical connection of any kind between any `bank note' conspiracy and the Middle District of Florida on which jurisdiction and venue could be predicated."
Schlei maintains that the jury verdict reflects the jury's determination that he was not a conspirator "with respect to any of the acts or events that took place in Tampa." Schlei maintains that because he had no direct contact with Hill, Ah Loo, Hansberry, Agent Fox, or Agent Sankey, he could only have been found responsible for the Tampa transaction because of his relationship with Takahashi. Schlei contends that because the jury acquitted him of all charges relating to the bond certificates, it necessarily determined that Takahashi and Hill entered a separate conspiracy when they entered into their agreement in September 1991. Because Hill obtained bank note 59155 at the same time he obtained three bond certificates from Takahashi, Schlei asserts that the jury could not have found that Schlei conspired with Hill to sell bank note 59155 because the jury found that he did not conspire
The retainer agreement between Schlei, Han, Hiraki, Takahashi, and Lee, states in pertinent part, that "Norbert A. Schlei agrees to provide such legal services as may be required in relation to the negotiation and cashing of certain checks and other instruments with respect to which his assistance is sought, including but not limited to checks numbered A35261, A35262, A35263, A35264, A35265 and A35266 drawn on the Dai-[I]chi Kangyo Bank." Based on the retainer agreement, the jury may have concluded that Schlei entered a conspiracy to sell the bank notes but not the bond certificates.
The jury's verdict does not support an inference that Schlei no longer was a member of the conspiracy to sell the financial instruments solely because he was unaware that Takahashi had secretly hired Hill to sell bond certificates and bank notes in 1991. Takahashi's conduct was in furtherance of the overall conspiracy to sell bond certificates and bank notes, and, as discussed above, Schlei never withdrew from that conspiracy.
The jury was also presented with evidence that Schlei personally attempted to pass one of the bank notes, only to be informed that the bank note was a forgery. Even after Schlei gained this knowledge in 1985, he signed an agreement in May 1986 to sell Hill & Associates bond certificates and bank notes. Additionally, bank notes were transferred to Hill in agreements entered by the Foundation in 1987, 1988, and 1989. The 1988 and 1989 agreements were entered into after Schlei attended Aoyagi's deposition in Japan.
Schlei contends that Hill's possession of bank note 59155 in Tampa was not an overt act
A conspiracy may be prosecuted in the district where it was formed or in any district where an overt act was committed in furtherance of its objects. Smith, 918 F.2d at 1557; Barnes, 681 F.2d at 722. An overt act "may be that of only a single one of the conspirators and need not be itself a crime." Braverman v. United States, 317 U.S. 49, 53, 63 S.Ct. 99, 101, 87 L.Ed. 23 (1942). "[A]n individual conspirator need not participate in the overt act in furtherance of the conspiracy. Once a conspiracy is established, and an individual is linked to that conspiracy, an overt act committed by any conspirator is sufficient." United States v. Thomas, 8 F.3d 1552, 1560 n. 21 (11th Cir.1993). Hill's possession of the bank note in Tampa was an overt act sufficient to confer jurisdiction on the Middle District of Florida for the conspiracy to possess or deliver foreign bank notes.
B. The Securities Fraud Charge — Count Ten
On September 19, 1994, Schlei filed a motion to strike the 1988 Olson transaction
Count Ten charged defendants as follows:
Schlei argues that by alleging two separate transactions in the securities fraud charge, the Government permitted the jury to convict him based solely on the evidence of the Olson transaction. It is undisputed that the district court had no venue over the Olson transaction. The Government argues that Schlei was "not entitled to a new trial on the ground that the jury's verdict may have been a legally inadequate ground, i.e., the Olson transaction.... The Olson transaction was part of the ongoing securities fraud offense, and, therefore, it properly was alleged as part of the Middle District of Florida Indictment." Schlei responds that "[s]eparate transactions constitute separate offenses under the statute even if they are part of the same scheme to defraud. As a result, each transaction must be charged in a separate count." Schlei maintains that because the securities fraud count charged two offenses, the jury may not have been in unanimous agreement regarding whether Schlei participated in the Tampa transaction as a coconspirator or an aider and abettor.
Although somewhat convoluted, this argument boils down to an assertion that the securities fraud count was duplicitous, and that the district court abused its discretion when it denied Schlei's motion to strike the Olson transaction to correct this defect.
A count in an indictment is duplicitous if it charges two or more "separate and distinct" offenses. United States v. Burton, 871 F.2d 1566, 1573 (11th Cir.1989). A duplicitous count poses three dangers: "(1) A jury may convict a defendant without unanimously agreeing on the same offense; (2) A defendant may be prejudiced in a subsequent double jeopardy defense; and (3) A court may have difficulty determining the admissibility of evidence." United States v. Wiles, 102 F.3d 1043, 1061 (10th Cir.1996) (finding no duplicity where the indictment merely alleged multiple means or methods of committing a single offense), modified, 106 F.3d 1516 (10th Cir.1997), petition for cert. filed, 65 U.S.L.W. 3632 (U.S. Mar. 10, 1997) (No. 96-1430). Under this analysis, the key issue to be determined is what conduct constitutes a single offense.
The securities fraud statute provides:
15 U.S.C. § 77q,
In determining the parameters of an offense, we must look to congressional intent. "It is Congress, and not the prosecution, which establishes and defines offenses." Sanabria v. United States, 437 U.S. 54, 69, 98 S.Ct. 2170, 2181, 57 L.Ed.2d 43 (1978). "[O]nce Congress has defined a statutory offense by its prescription of the `allowable unit of prosecution,' that prescription determines the scope of protection afforded by a prior conviction or acquittal." Id. at 69-70, 98 S.Ct. at 2181-82 (citations omitted).
The former Fifth Circuit previously held that each fraudulent offer or sale of any security by the use of the mails in violation of section 77q(a) is a separate offense. In Sanders v. United States, 415 F.2d 621 (5th Cir.1969), cert. denied, 397 U.S. 976, 90 S.Ct. 1096, 25 L.Ed.2d 271 (1970), the defendant was convicted for conspiracy under section 371 and multiple counts of mail fraud under 18 U.S.C. § 1341 and securities fraud under section 77q(a). Id. at 623. The district court
In United States v. Ashdown, 509 F.2d 793 (5th Cir.), cert. denied, 423 U.S. 829, 96 S.Ct. 48, 46 L.Ed.2d 47 (1975), the defendants, who were also convicted on multiple counts under sections 77q(a) and 1341, argued that only one crime was committed because only one conspiracy was charged. Id. at 800. In affirming the judgment of conviction, the former Fifth Circuit stated: "It avails defendants nothing that the same scheme is incorporated in each count; they were convicted of ten separate offenses based on ten different transactions." Id. (citing Sanders, 415 F.2d at 626) (emphasis added).
In United States v. Langford, 946 F.2d 798 (11th Cir.1991), cert. denied, 503 U.S. 960, 112 S.Ct. 1562, 118 L.Ed.2d 209 (1992), this court analyzed the "parallel language" in section 78j(b) and recognized that Congress intended to confine the section's scope "to transactions effected by the use of the mails, the instrumentalities of interstate commerce, and the facilities of a national securities exchange." Id. at 803 n. 20 (quoting S.Rep. No. 73-792, at 18 (1934)). In light of this intent, this court held that "[t]o avoid the vices of multiplicity in securities fraud cases, each count of the indictment must be based on a separate purchase or sale of securities and each count must specify a false statement of material fact — not a full-blown scheme to defraud — in connection with that purchase or sale." Id. at 804. Langford involved a violation of section 78j(b). The same reasoning, however, applies to a violation of section 77q(a). Id. at 803-04 n. 21 ("Although this circuit has not yet determined whether the units of prosecution under 15 U.S.C. § 78(j)b, Rule 10b-5, and 15 U.S.C. § 77q(a) are the same, we see no reason to interpret the sections differently in this respect — the relevant language of the sections is extremely similar — hence, congressional intent likely was the same under both statutes.").
The rationale underlying Sanders, Ashdown, and Langford leads us to conclude that the chargeable offense under section 77q(a) is each separate offer or sale of a security in connection with an instrumentality of interstate commerce. Our holding is consistent with the rule adopted in other circuits. See United States v. Waldman, 579 F.2d 649, 654 (1st Cir.1978) ("We agree with every other circuit that has faced the question that the appropriate units of prosecution under 77q(a) are separate transactions accompanied by use of the mails."); United States v. Phillips, 726 F.2d 417, 419 n. 6 (8th Cir.1984) ("It is well-established that under 15 U.S.C. § 77q(a) each fraudulent offer or sale of a security accompanied by the use of the mail or any means or instruments of interstate transportation or communication is a separate offense."); United States v. Dioguardi, 492 F.2d 70, 83 (2d Cir.) ("[E]ach transaction in a securities fraud case constitutes a separate offense."), cert. denied, 419 U.S. 873, 95 S.Ct. 134, 42 L.Ed.2d 112 (1974). See also United States v. MacKay, 491 F.2d 616, 623-24 (10th Cir.1973) (recognizing that each separate use of the mails is a separate offense under the mail fraud statute and noting that "the repeated violation of the Securities Act is subject to the same doctrine"), cert. denied, 416 U.S. 972, 94 S.Ct. 1996, 40 L.Ed.2d 560 (1974).
All of the cases discussed above address the offense in the context of either a multiplicity
In Bins v. United States, 331 F.2d 390 (5th Cir.), cert. denied, 379 U.S. 880, 85 S.Ct. 149, 13 L.Ed.2d 87 (1964), the former Fifth Circuit concluded that because Rule 8(a), of the Federal Rules of Criminal Procedure, requires that each offense be stated in a separate count, a count that charged two violations of the same statute was duplicitous.
Id. at 393. Several circuits have rejected the Bins analysis, see, e.g., United States v. Aracri, 968 F.2d 1512, 1518 (2d Cir.1992) ("We have declined to accept the law of the Fifth Circuit `that any acts capable of being charged as separate offenses must be alleged in separate counts.'") (quoting United States v. Margiotta, 646 F.2d 729, 733 (2d Cir.1981), cert. denied, 461 U.S. 913, 103 S.Ct. 1891, 77 L.Ed.2d 282 (1983)); United States v. Canas, 595 F.2d 73, 78 (1st Cir.1979) ("Whether or not this case is factually distinguishable from Bins, we find merit in the Government's position.... Other circuits have not adopted the ... approach of Bins."). The Eleventh Circuit, however, has adhered to the Bins court's analysis. See United States v. Davis, 730 F.2d 669, 672 (11th Cir.1984) ("Although the rationale of Canas may be tempting, we are bound by the decision of the former Fifth Circuit Court of Appeals in Bins, a case cited as contrary authority by the Canas court.").
Because the Olson transaction and the Tampa transaction are two distinct offenses, "each should [have been] alleged in a separate and distinct count of the indictment." Bins, 331 F.2d at 393. The failure to do so creates a venue problem.
"The Constitution requires that the trial shall be held in the state and district wherein the crime was committed." Ashdown, 509 F.2d at 797. See also Fed. R.Crim.P. 18 ("[T]he prosecution shall be had in a district in which the offense was committed.") Venue must exist for each offense charged. United States v. Davis, 666 F.2d 195, 198 (5th Cir. Unit B 1982)
As noted above, we cannot determine from this record whether the jury unanimously concluded that Schlei was guilty of the Tampa transaction either as an aider or abettor or as a conspirator. The fact that the jury found that Schlei did not conspire with others to sell the fraudulent bond certificates adds to our uncertainty concerning the jury's verdict on Count Ten. The jury may have concluded that Schlei was guilty of Count Ten because he was liable for the acts of his coconspirators in Tampa, Florida that were the natural consequence of the conspiracy to
The district court's failure to strike the Olson transaction from Count Ten cannot be deemed harmless. The absence of a unanimity instruction with respect to the two transactions created the risk that the jury found Schlei guilty without unanimously agreeing upon the transaction that formed the basis for the conviction. Further, the jury may have convicted Schlei based upon a transaction that could not be tried in the Middle District of Florida. Thus, Schlei's conviction on Count Ten must be vacated.
DISCOVERY AND EVIDENTIARY RULINGS
A. Admission of Coconspirators' Post-Arrest Documents and Statements
Schlei contends that the district court erred in admitting third-party documents seized from codefendants after their arrest. "A district court's ruling on the admissibility of evidence is reviewed for abuse of discretion." Joiner v. General Elec. Co., 78 F.3d 524, 529 (11th Cir.1996), cert. granted, ____ U.S. ____, 117 S.Ct. 1243, 137 L.Ed.2d 325 (1997).
The district court admitted four documents seized from Hill and Hansberry following their arrests. The court held that these documents were admissible as statements of a coconspirator pursuant to Rule 801(d)(2)(E) of the Federal Rules of Evidence.
To lay a foundation for the admission of a coconspirator's statement, "the government must establish by a preponderance of the evidence: (1) that a conspiracy existed, (2) that the defendant and the declarant were members of the conspiracy, and (3) that the statement was made during the course and in furtherance of the conspiracy." United States v. Van Hemelryck, 945 F.2d 1493, 1497-98 (11th Cir.1991). Here, the record shows that the statements in the four documents were made by persons who were not coconspirators.
We must now determine whether the admission of these statements was prejudicial. "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." Fed. R.Crim.P. 52(a). "[E]videntiary and other non-constitutional errors do not constitute grounds for reversal unless there is a reasonable likelihood that they affected the defendant's substantial rights; where an error had no substantial influence on the outcome, and sufficient evidence uninfected by error supports the verdict, reversal is not warranted." United States v. Hawkins, 905 F.2d 1489, 1493 (11th Cir.1990), cert. denied, 498 U.S. 1038, 111 S.Ct. 707, 112 L.Ed.2d 696 (1991).
These documents were admitted to prove that Schlei had knowledge that the bond certificates were counterfeit. The Government introduced sufficient evidence unaffected by error that demonstrated that Schlei knew the bond certificates and bank notes were not genuine. The record shows that Schlei had heard Aoyagi swear under oath that she participated in a conspiracy to print and distribute forged bond certificates and bank notes. He was also aware that Lee had been indicted for attempting to sell the forged bond certificates. In addition, the record shows that Schlei was aware that the FBI had warned Olson that the bond certificates were forgeries. Furthermore, Schlei had presented a bank note for payment. The bank refused payment because the bank note was not genuine. The four documents merely provided cumulative information regarding Schlei's actual knowledge that the
B. Admission of Testimony Regarding the Aoyagi Deposition
Schlei contends that the district court abused its discretion when it admitted evidence regarding Aoyagi's testimony at her deposition in Japan. Stein, Green, and FBI Special Agent Michael Schulstad testified that Schlei was present during Aoyagi's testimony and heard her statement that the bond certificates and bank notes involved in the Lee case were forged. In addition, both Stein and Green testified that Schlei admitted, after hearing Aoyagi testify, that the bond certificates could not be real.
Schlei first contends that the evidence regarding Aoyagi's deposition testimony was inadmissible because her statements were offered for the truth of the matter asserted concerning a material issue in this case.
Rule 801(c) of the Federal Rules of Evidence defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed.R.Evid. 801(c). The record shows that the Government did not offer evidence of Aoyagi's deposition testimony for the truth of the matter asserted. Instead, it was offered to demonstrate Schlei's state of mind regarding whether he believed the financial instruments were valid. The district court instructed the jury on several occasions that it could not consider Aoyagi's statements for the truth of the matter asserted. The jury was admonished that this evidence was offered solely for the purpose of demonstrating Schlei's state of mind.
Schlei also asserts that even if the testimony was admissible it should have been excluded as unduly prejudicial. Rule 403 of the Federal Rules of Evidence provides that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." This court has opined that "[t]he major function of [Rule 403] is limited to excluding matter[s] of scant or cumulative probative force, dragged in by the heels for the sake of [their] prejudicial effect[s]." United States v. Veltmann, 6 F.3d 1483, 1500 (11th Cir.1993) (quoting United States v. McRae, 593 F.2d 700, 707 (5th Cir.1979)).
The prejudicial effect of Aoyagi's testimony did not substantially outweigh its probative force. No other evidence directly established that after hearing Aoyagi's deposition testimony, Schlei stated he was persuaded that the financial instruments were counterfeit.
Finally, Schlei asserts that the denial of an opportunity to depose Aoyagi violated his rights under the Confrontation Clause. Schlei had the opportunity to cross-examine each of the witnesses who testified about Aoyagi's statements. As noted above, her deposition testimony was admitted for the purpose of showing Schlei's reaction to it, and not for its truth. Thus, Schlei was not deprived of his rights under the Confrontation Clause. See Tennessee v. Street, 471 U.S. 409, 413, 105 S.Ct. 2078, 2081, 85 L.Ed.2d 425 (1985) (holding that the Confrontation Clause was not violated when an out-of-court statement made by another party was used by a witness on the stand for a purpose other than to assert its truth because the respondent was permitted to cross-examine the witness and the court gave the jury limiting instructions).
C. Motion to Compel Evidence from the CIA
Schlei claims that the district court abused its discretion in denying his emergency motion for production of documents subpoenaed from the CIA, Department of State, and National Archives and Record Administration. The enforcement of subpoenas is committed to the sound discretion of the district court. United States v. Nixon, 418 U.S. 683, 702, 94 S.Ct. 3090, 3104, 41 L.Ed.2d 1039 (1974).
Immediately prior to the issuance of the subpoenas, Schlei requested that the district court require the agencies to provide these documents for immediate inspection. After the subpoenas had been served, and the agencies had refused to search for the requested documents until ordered by the court to do so, Schlei filed a motion to compel compliance. After the district court heard oral argument on this issue, the court denied the motion to compel compliance on the ground that there was no evidence in the record to substantiate the existence of a secret fund.
After the New York Times article appeared, the prosecution made inquiry of various government agencies to ensure that the government did not possess material required to be turned over to the defense under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In an ex parte in camera conference, the Government represented to the district court that it had contacted the CIA, Secret Service, National Archives, which has the files from the Office of Strategic Services and the Central Intelligence Group, and the State Department and had determined that these agencies did not possess any Brady material. The government detailed the searches that had been conducted. The government searched hundreds of files of CIA paper records dating back to 1948 in search of any documents that might indicate that payments made by the CIA to either the Japanese government, the Liberal Democratic Party, or individual party members. They also conducted computer searches for Marquat Fund, Marquet Fund, Marqeat Fund, MacArthur Fund, and fund generally. The district court then required the Government to search for all names and relevant information contained in the embassy letter and the New York Times article, including all names, information regarding "spoils of war," and the ink used by the Japanese government in printing bonds. In fact, when Ah Loo testified regarding a particular book that contained information about General Marquat, the court directed the CIA to search for a connection. The court subsequently ordered numerous in camera ex parte proceedings involving the prosecutors and CIA representative, and directed many searches to cover every conceivable connection to Schlei's recitation of the history of the M Fund. We have reviewed the sealed record of the court's in camera proceedings. The search of the records of the CIA, the Secret Service, and the National Archives did not disclose any relevant or material documents or information that substantiated the report in the New York Times that the CIA gave money to employees or officials of the Japanese government, or any political party in Japan.
In his motion for a new trial, Schlei argued that the district court abused its discretion in denying his request to enforce the subpoenas. The district court denied the motion for a new trial. Relying in part on United States v. Valenzuela-Bernal, 458 U.S. 858, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982), the district court stated that Schlei had failed to "demonstrate that the requested information would be relevant[,] material and vital to his defense."
In Valenzuela-Bernal, the defendant claimed that he was deprived of his constitutional right to compulsory process because he had not had the opportunity to interview two witnesses deported by the Government. The Court determined that sanctions could be imposed on the Government for deporting a witness "only if the criminal defendant makes a plausible showing that the testimony of the deported witnesses would have been material and favorable to his defense, in ways not merely cumulative to the testimony of available witnesses." Id. at 873, 102 S.Ct. at 3449. The Court also stated that "[i]n adopting this standard, we express no opinion on the showing which a criminal defendant must make in order to obtain compulsory process for securing the attendance at his criminal trial of witnesses within the United States." Id. at 873 n. 9, 102 S.Ct. at 3449 n. 9.
The Court pointed out, however, that pursuant to its prior decisions, a defendant "must at least make some plausible showing of how [the] testimony [sought] would have been both material and favorable to his defense." Id. at 867, 102 S.Ct. at 3446.
Schlei has failed to demonstrate that the CIA and other government agencies possessed information regarding potential witnesses or government documents that would provide evidence that would be relevant and material to his defense that the financial instruments had been issued by the government of Japan and the Dai-Ichi Kangyo Bank. Because Schlei failed to make the foundational showing that the evidence sought would be material and favorable to his defense, we need not decide whether the court erred in stating that the requested material must also be vital to the defense. The district court did not deprive Schlei of his right to compulsory process.
D. Motion to Depose Witnesses in Japan
Schlei argues that the district court abused its discretion in denying him leave to take depositions of Japanese nationals in Japan. A district court's denial of a party's motion to take a deposition is reviewed for abuse of discretion. United States v. Ramos, 45 F.3d 1519, 1522 (11th Cir.1995).
Rule 15(a), of the Federal Rules of Criminal Procedure provides:
The record shows that Schlei did not file a motion to depose witnesses in Japan, nor did he join in Hill's motion to do so. Accordingly, Schlei has failed to preserve that issue for appellate review.
Schlei maintains that the district court erred in denying his motion for severance. He argues that severance was required because the Government alleged a single conspiracy when there were actually multiple conspiracies. He also argues that the district court should have granted severance "pursuant to Rule 14 [of the Federal Rules of Criminal Procedure] because he was prejudiced by the enormous disparity in the evidence admissible against him compared to the other defendants." We must review the denial of a motion for severance for abuse of discretion. United States v. Adams, 1 F.3d 1566, 1578 (11th Cir.1993), cert. denied, 510 U.S. 1198, 114 S.Ct. 1310, 127 L.Ed.2d 660 (1994).
Rule 8(b) of the Federal Rules of Criminal Procedure permits the Government to join
If joinder of defendants proves to be prejudicial, Rule 14 permits a defendant to move for a severance.
The defendant's burden remains the same when seeking reversal of the denial of a motion to sever on appeal. Saget, 991 F.2d at 707. "This court is reluctant to reverse a district court's denial of severance, particularly in conspiracy cases, as generally persons who are charged together should also be tried together." United States v. Knowles, 66 F.3d 1146, 1158 (11th Cir.1995) (quotation omitted), cert. denied sub nom. Wright v. United States, ___ U.S. ___, 116 S.Ct. 1449, 134 L.Ed.2d 568 (1996).
Schlei has not met his burden. As discussed above, the Government produced sufficient evidence to demonstrate that Schlei was a member of a single overall conspiracy from which he never withdrew. Schlei also has not identified any specific prejudice he suffered as a result of the joint trial. The mere fact that there may be an "enormous disparity in the evidence admissible against him compared to the other defendants" is not a sufficient basis for reversal. "A defendant does not suffer compelling prejudice, sufficient to mandate a severance, simply because much of the evidence at trial is applicable only to co-defendants." United States v. Smith, 918 F.2d 1501, 1510 (11th Cir.1990), cert. denied sub nom. Hicks v. United States, 502 U.S. 849, 112 S.Ct. 151, 116 L.Ed.2d 117 (1991). The district court avoided any potential prejudice by instructing the jury that "[e]ach offense, and the evidence pertaining to it, should be considered separately" and that "each defendant should be considered separately and individually." It is readily apparent that the jury followed these instructions as it acquitted Schlei on eight counts. Reedy was acquitted on all counts. The verdict demonstrates the jury's ability to sift through the evidence and make individualized determinations as to each defendant.
The district court did not abuse its discretion when it denied Schlei's motion for severance.
A. The Speedy Trial Act
Schlei asserts that the district court erred in denying his motions to dismiss the indictment for violation of the Speedy Trial Act, 18 U.S.C. §§ 3161-3174. Schlei maintains that the court improperly excluded 179 days from the speedy trial limitation. We review the district court's construction and interpretation of the Speedy Trial Act de novo. United States v. Twitty, 107 F.3d 1482, 1488 (11th Cir.1997). The district court's factual determination as to what constitutes excludable time under the Speedy Trial Act is reviewed for clear error. United States v. McCutcheon, 86 F.3d 187, 190 (11th Cir.1996).
Schlei's speedy trial clock started running on October 15, 1992.
Schlei contends, however, that the district court erroneously excluded fifty-nine days for the period of September 11, 1993 through November 7, 1993, and forty-nine days for the period of December 7, 1993 through January 23, 1994. Schlei argues that these periods of delay were the result of the Government's lack of diligence in securing a timely resolution to the defendants' safe passage to Japan to be present during the taking of depositions by the Government.
On November 23, 1992, the Government filed a motion to depose key witnesses located in Japan, and for continuance of the trial date until the depositions were completed and transcribed.
On January 6, 1993, the district court referred the matter to a magistrate judge to determine whether the foreign depositions were necessary. After conducting an evidentiary hearing, the magistrate judge issued a report in which it was recommended that the Government's motion be denied without prejudice. The magistrate judge found that the Government had failed to make an adequate showing that the Japanese witnesses were unavailable for trial and that their testimony was material.
On February 19, 1993, the Government filed a motion to reopen the evidentiary hearing for a stay of the magistrate judge's recommendation and report. Alternatively, the Government recommended that the district court grant the request to depose witnesses in Japan. On February 25, 1993, the district court granted the Government's motion over Schlei's opposition, and referred the motion to the magistrate judge for a report and recommendation. On March 30, 1993, the magistrate judge conducted an evidentiary hearing. The Government introduced additional evidence concerning the materiality of the witnesses and its efforts to obtain the witnesses' presence at trial. The magistrate judge issued an amended report and recommendation on May 5, 1997. The magistrate judge recommended that the Government be permitted to take depositions in Japan subject to certain requirements, including a guarantee that Schlei would be granted safe passage to attend the depositions in Japan.
On August 16, 1993, the Government filed a letter dated August 13, 1993 from the Japanese embassy. The letter stated that while prosecution of Schlei had not been initiated, the Government of Japan would not guarantee his safe passage. On August 17, 1993, the district court adopted the magistrate judge's July 2, 1993 report and recommendation. Accordingly, before the deposition could be conducted, the Government was ordered to obtain written verification of safe passage for Schlei from the government of Japan. The district court ordered that the depositions be conducted between September 13 through September 17, 1993.
In response to the court's August 17, 1993 order, the Government filed an emergency motion in which it requested that the district court issue an order directing that any party choosing not to attend the depositions, to avoid arrest, should participate in the deposition proceedings telephonically. On August 27, 1993, the Government filed a motion for a continuance on the scheduled depositions. Schlei did not oppose this motion. On September 9, 1993, Schlei filed an opposition to the Government's emergency motion to modify the court's order requiring safe passage.
On September 10, 1993, the district court granted an indefinite continuance to enable the Government to pursue the safe passage issue. The court deferred ruling on the Government's emergency motion until the Government had further investigated the government of Japan's willingness to guarantee safe passage to Schlei. On April 4, 1994, the Government filed a motion to withdraw its request to take depositions in Japan. The court denied this request as moot on October 4, 1994, the first day of trial.
We review an order granting a continuance for abuse of discretion. United States v. Vasser, 916 F.2d 624, 627 (11th Cir.1990), cert. denied, 500 U.S. 907, 111 S.Ct. 1688, 114 L.Ed.2d 82 (1991). Pursuant to 18 U.S.C. § 3161(h)(9), a district court has the authority to grant a continuance of up to one year to allow the government to obtain evidence located in a foreign country. The district court did not abuse its discretion when it granted the Government's unopposed motion for a continuance in order to obtain the deposition testimony in Japan.
Pursuant to section 3161(h)(9), the time that the continuance remains in effect tolls the speedy trial clock. Thus, the periods from September 11, 1993 through November 7, 1993 (59 days); December 7, 1993 through January 23, 1994 (49 days); January 26th, 29th, and 30th (3 days); and February 1 through February 9, 1994 (9 days) were all properly excludable. The total excludable days resulting from the continuance of the depositions was 120 days. Schlei was, therefore, brought to trial within 59 includable days. Thus, no violation of the Speedy Trial Act occurred.
B. Schlei's Sixth Amendment Right to a Speedy Trial
Schlei also contends that the delays in the pretrial proceedings violated his Sixth Amendment right to a speedy trial. Although compliance with the Speedy Trial Act does not bar Sixth Amendment speedy trial claims, "it will be an unusual case in which time limits of the Speedy Trial Act have been met but the [S]ixth [A]mendment right to a speedy trial has been violated." United States v. Saintil, 705 F.2d 415, 418 (11th Cir.) (citation omitted), cert. denied, 464 U.S. 855, 104 S.Ct. 171, 78 L.Ed.2d 155 (1983). The district court's denial of Schlei's motion to dismiss based upon the Sixth Amendment right to a speedy trial is reviewed de novo. United States v. Beamon, 992 F.2d 1009, 1012 (9th Cir.1993). We review the district court's factual findings for clear error. Id.
In evaluating whether the constitutional guarantee to a speedy trial had been violated, this court must consider (1) the
1. Length of the Delay
The length of the delay must be "presumptively prejudicial" to trigger an inquiry into the other three factors. Ringstaff v. Howard, 885 F.2d 1542, 1543 (11th Cir. 1989), cert. denied, 496 U.S. 927, 110 S.Ct. 2622, 110 L.Ed.2d 643 (1990). A delay is considered presumptively prejudicial as it approaches one year. United States v. Davenport, 935 F.2d 1223, 1239 (11th Cir.1991).
In this case, more than two years elapsed between Schlei's indictment on October 8, 1992, and the commencement of trial on October 4, 1994. The Government concedes that this period of time is sufficient to merit an inquiry into the three remaining Barker factors.
2. Reason for the Delay
Different reasons for delay are accorded different weight in the Barker analysis. 407 U.S. at 531, 92 S.Ct. at 2192. Government actions which are tangential, frivolous, dilatory, or taken in bad faith weigh heavily in favor of a finding that a speedy trial violation occurred. United States v. Loud Hawk, 474 U.S. 302, 315-17, 106 S.Ct. 648, 656-57, 88 L.Ed.2d 640 (1986). Conversely, delays that occur for valid reasons, such as overcrowded courts or strongly contested interlocutory appeals, will not be accorded heavy weight against the Government. Id.
This court has held that where the delay was caused by "numerous pretrial motions; the illness of an essential government witness; [defendant's] substitution of counsel; and scheduling conflicts resulting in the unavailability of certain defense counsel," there was no violation of the Sixth Amendment. Twitty, 107 F.3d at 1490. In addition, even where the Government was responsible for the delay, if that delay was "inherent to the government's good faith effort to conduct a complex, joint trial," there was no Sixth Amendment violation in the absence of actual prejudice, because "defendants who are jointly indicted should be tried together, [particularly] in conspiracy cases." Davenport, 935 F.2d at 1239-40.
Here, the reason for the delay was in large part twofold. First, the Government sought to depose witnesses in Japan, who were unavailable for trial. In June 1993, the district court found that the Government had been diligent in its efforts to obtain the presence of these witnesses at trial. In connection with these depositions, to safeguard Schlei's Sixth Amendment right to confront witnesses against him, the Government attempted to obtain the guarantee of the government of Japan that they would not arrest Schlei on charges arising from the bond certificates if Schlei entered Japan for the depositions. When the Government was notified that Japan would not guarantee safe passage, the Government requested a continuance to pursue additional diplomatic channels. Schlei did not object to the continuance. From the time the Government moved to take foreign depositions, until the Government ultimately withdrew its request, there were numerous motions and hearings on this issue, which from beginning to end took over a year and a half. The Government, therefore, had valid reasons for the delay.
The second major reason for the delay resulted from well over 100 pretrial motions filed by Schlei and his codefendants. For example, codefendant Hill requested a continuance to depose witnesses in Japan. The district court granted the continuance, and in response, moved the trial date from May 31, 1994 to October 4, 1994, resulting in a five month period of delay.
3. Defendant's Assertion of the Right to a Speedy Trial
A defendant's failure to assert his Sixth Amendment right to a speedy trial before the day of trial weighs heavily against the defendant. Twitty, 107 F.3d at 1490. Schlei repeatedly asserted his right to a speedy trial, beginning shortly after his arraignment on October 27, 1992. Although factors one and three weigh in favor of Schlei, the second factor, the reasons for the delay, weighs in favor of the Government. Therefore, Schlei must establish actual prejudice.
4. Prejudice to the Defendant
Prejudice to the defendant is evaluated in view of the three interests the right to a speedy trial was designed to protect: "(1) to prevent oppressive pretrial incarceration; (2) to minimize anxiety and concern of the accused; and (3) to limit the possibility that the defense will be impaired." Barker, 407 U.S. at 532, 92 S.Ct. at 2193. Of these, the most important is the third, "because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious." Id. In Barker, the Supreme Court found that the prejudice to defendant after a five-year delay was minimal, even where defendant had spent ten months in jail, because there was no harmful impact to the presentation of his case as a result of the error. Barker, 407 U.S. at 534, 92 S.Ct. at 2194. In contrast, the Supreme Court held in Doggett v. U.S., 505 U.S. 647, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992), that there was no need for the defendant to demonstrate actual prejudice where there was an 8½-year delay between indictment and trial due mainly to the Government's negligence. Id. at 657, 112 S.Ct. at 2693. The Court based this holding on the fact that "excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify." Id. at 655, 112 S.Ct. at 2693.
Schlei argues that he was prejudiced by the following:
Schlei was free on bail throughout the proceedings. Further, the record reflects that although Schlei surrendered his passport, it was temporarily returned to him several times to allow him to travel overseas.
Schlei has not demonstrated that he was prejudiced because Tanaka died before this case went to trial. Schlei never contacted Tanaka to determine whether his testimony would have been material to his defense. Tanaka died in December 1993, over one year after Schlei was indicted. Further, at Hill's request to depose high-level officials, the Government verified the availability of these witnesses with the government of Japan, and were told "[t]he Ministry of Justice has declined to contact [these witnesses] because, in its opinion, the witnesses alleged relationship to this case is too vague and obviously fraudulent." Although this request was submitted after Tanaka's death, it would seem unlikely that the government of Japan would have granted a request by Schlei to depose Tanaka.
Because Schlei has failed to demonstrate actual prejudice, we hold that he was not deprived of his constitutional right to a speedy trial.
ALLEGED GOVERNMENT MISCONDUCT
A. Alleged Brady Violation
Schlei claims that he is entitled to a new trial because the prosecution violated Brady, by denying him access to exculpatory grand jury testimony until the last week of trial. Schlei argues that
This court reviews an alleged Brady violation de novo. United States v. Mejia, 82 F.3d 1032, 1036 (11th Cir.), cert. denied sub nom. Lopez v. United States, ___ U.S. ___, 117 S.Ct. 188, 136 L.Ed.2d 126 (1996).
In Brady, the Supreme Court stated that "suppression by the prosecution of evidence favorable to an accused upon request violates due process when the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97. A defendant who seeks reversal based on an alleged Brady violation,
United States v. Newton, 44 F.3d 913, 918 (11th Cir.), cert. denied, ___ U.S. ___, 116 S.Ct. 161, 133 L.Ed.2d 104 (1995).
Schlei asserts that "[t]he withholding of this testimony prevented the defense from using it to cross-examine Hill, Russel, and Weeks, among other witnesses whose testimony intersected with Han's." Schlei has not demonstrated, however, how Han's grand jury testimony would have been effective in cross-examining these witnesses. We are persuaded from our review of the record that prior disclosure of Han's grand jury testimony would not have been helpful to defense counsel in preparing to cross-examine Hill. Han testified that following Hill's arrest, Takahashi revealed to Han and Schlei his September 1991 agreement with Hill to sell financial instruments. Hill had no knowledge of that meeting. Therefore, access to Han's grand jury testimony would not have assisted Schlei's attorney in cross-examining Hill. The evidence shows that Schlei was present at that meeting with Takahashi and Han. Accordingly, Schlei was fully aware of the events to which Han testified.
Weeks and Russel testified that they did not recall whether Han was present at the meeting with Ambassador Mansfield. Han testified that he was present at this meeting. He also testified that Schlei told him that a memorandum of his remarks was typed at the embassy. Because Weeks and Russel could not recall whether Han was present at the meeting, and were not present when Schlei arranged to have his memorandum typed, the Han grand jury transcript would not have assisted in impeaching them. Schlei has failed to demonstrate that there is a reasonable probability that the outcome of the proceedings would have been different had he received a copy of Han's grand jury testimony at an earlier date.
B. Admissibility of Evidence of a Prior Bad Act Regarding the Embassy Memorandum
Schlei contends that the district court abused its discretion when it admitted Russel's testimony that Schlei's use of embassy letterhead violated applicable regulations, because the Government did not provide him with reasonable notice as required pursuant to Rule 404(b) of the Federal Rules of Evidence.
"Determinations regarding the admissibility of evidence rest largely with the sound discretion of the trial court and will not be disturbed on appeal absent a clear showing of abuse of discretion." United States v. Muscatell, 42 F.3d 627, 630 (11th Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 2617, 132 L.Ed.2d 859 (1995). We must decide "whether the evidence in question is actually extrinsic evidence and therefore subject to 404(b) analysis." Id. "Evidence of criminal activity other than the charged offense is not extrinsic within the meaning of Rule 404(b) if it is an uncharged offense that arose out of the same transaction or series of transactions as the charged offense." Id. "[O]ther transactions connected with the offenses charged have long been used to show a general pattern, the necessary criminal intent, or the guilty knowledge of the defendant." Id. at 631 (citation omitted).
Russel's testimony was admissible as intrinsic evidence connected with the offenses charged in the indictment. The evidence with respect to the use of the embassy letterhead was directly related to the scheme to defraud. Hill testified that he used the memorandum typed on embassy letterhead to demonstrate to potential buyers that the United States supported the authenticity of the bond certificates. A rational juror could infer from the preparation and subsequent distribution of this memorandum to the Foundation's sales representatives that Schlei intended it to be used to persuade potential buyers that the authenticity of the forged financial instruments was supported by the government of the United States. Schlei has failed to demonstrate that the district court abused its discretion in admitting Russel's testimony regarding the use of embassy letterhead.
Schlei further claims that the Government knew, or should have known, that Russel's testimony regarding the origin of the embassy memorandum was absolutely false. Schlei argues that the entry in Breer's appointment book indicating a meeting with Schlei, combined with a handwritten notation in the margin of Schlei's copy of the memorandum, seems "to confirm that the letter was typed at the embassy." Schlei has failed to demonstrate that Russel, knew or should have known, that the memorandum was typed by embassy personnel. The fact that Schlei met with Breer and that someone placed a notation on the memorandum, does not support an inference that Russel had any knowledge that an embassy employee typed the memorandum, or that the use of the embassy letterhead was authorized.
MOTIONS FOR A NEW TRIAL
Schlei challenges the district court's refusal to grant evidentiary hearings on his motion for a new trial in the interest of justice regarding his claim of witness intimidation, and his motion for a new trial based on newly discovered evidence.
"The decision of the trial court not to hold [an evidentiary] hearing is within the trial court's sound discretion, subject to review only for an abuse of that discretion." United States v. Slocum, 708 F.2d 587, 600 (11th Cir.1983).
United States v. Hall, 854 F.2d 1269, 1270-71 (11th Cir.1988) (reversing district court's order for a new trial in the interest of justice where district court deemed motion for a new trial filed after the seven-day limit as a supplement to the original motion for a new trial in the interest of justice filed within the seven-day limit, although the grounds set forth in the earlier-filed motion "were specific and did not relate in any way to newly discovered evidence").
To succeed on a motion for a new trial based on newly discovered evidence, the movant must establish that (1) the evidence was discovered after trial, (2) the failure of the defendant to discover the evidence was not due to a lack of due diligence, (3) the evidence is not merely cumulative or impeaching, (4) the evidence is material to issues before the court, and (5) the evidence is such that a new trial would probably produce a different result. United States v. Gates, 10 F.3d 765, 767 (11th Cir.1993), modified, 20 F.3d 1550 (11th Cir.1994). "The failure to satisfy any one of these elements is fatal to a motion for a new trial." United States v. Lee, 68 F.3d 1267, 1274 (11th Cir.1995).
A. Motion for a New Trial in the Interest of Justice
Schlei contends that the district court erred in denying his motion for a new trial in the interest of justice on the question whether the prosecution threatened Han and Senator Arlen Specter to deter them from testifying as defense witnesses without conducting an evidentiary hearing.
This court has held that "[s]ubstantial [government] interference with a defense witness' free and unhampered choice to testify violates due process rights of the defendant. If such a due process violation occurs, the court must reverse without regard to prejudice to the defendants." United States v. Terzado-Madruga, 897 F.2d 1099, 1108 (11th Cir.1990) (quoting Demps v. Wainwright, 805 F.2d 1426, 1433 (11th Cir.1986)).
On January 25, 1995, within the extended time frame granted by the district court to file a motion for a new trial, Schlei filed a motion for a new trial in the interest of justice, in which he raised the witness intimidation issue and requested an evidentiary hearing. In this motion, Schlei alleged that the Government had threatened Han with a loss of immunity from prosecution if he testified for the defense at trial. He also asserted that the Government threatened to ask Senator Specter inappropriate questions on cross-examination should he testify for the defense. On July 29, 1995, Schlei filed Han's affidavit in support of his motion. Han alleged that AUSA Mark Krum, the prosecutor in this matter, stated that if Han testified for the defense, the immunity agreement would be "nullified." Han also alleged that AUSA Krum stated that he had been opposed to granting Han immunity and that Han "had better not give him any basis to withdraw the immunity because he would not hesitate to do so." Ah Loo subpoenaed Han to appear as a witness at trial. Schlei called Han as a witness for the defense at trial. Schlei did not proffer any evidence relating to the alleged threats against Senator Specter.
The district court did not rule on Schlei's motion for a new trial or for an evidentiary hearing until immediately preceding sentencing on August 4, 1995. Prior to ruling on the motions, the district court heard oral argument regarding whether to grant Schlei's request for an evidentiary hearing in support of his allegation of witness intimidation. The Government "strenuously object[ed] to any continuance." The Government argued (1) that the issue had been fully briefed post-trial; (2) that Schlei's counsel did not diligently attempt to obtain Han's affidavit in a timely manner; (3) that Schlei's witness intimidation claim has no merit; and (4) that Schlei's defense was not prejudiced because Han testified as his witness. Schlei argued that Han's affidavit was newly discovered evidence.
Prior to ruling on the pending motions, the district court noted that "had this Court received this motion for an evidentiary hearing with regard to this matter involving Mr. Han at any time prior to today's date ... we
In denying the motion for an evidentiary hearing, the court made the following comment:
The court also denied the motion for a new trial insofar as it was based on witness intimidation. The court reasoned as follows:
We cannot determine from the court's explanation of its ruling whether it denied an evidentiary hearing because it concluded that, assuming that Han's allegations are true, they do not constitute witness intimidation. This possible interpretation of the court's comments is undermined by its statement that had the affidavit been filed at an earlier date, the court would have had enough time to determine whether there is any merit to the witness intimidation issue. Because the court did not hold an evidentiary hearing we do not know whether the grant of immunity to Han was conditioned upon his promise not to testify as a defense witness, or the truth of Han's allegation that the prosecutor threatened to void the grant of immunity if Han did so.
The former Fifth Circuit has previously ruled that a plea agreement that provides that it will be void if the accused testifies on behalf of a codefendant violates due process. United States v. Henricksen, 564 F.2d 197, 198 (5th Cir.1977). In Henricksen, the witness refused to testify on behalf of his codefendants. Id.
Here, Schlei alleges that the Government intimidated a defense witness. That witness, however, testified for the defense at trial. We cannot decide today whether the Henricksen rule applies to a grant of immunity in a case where the witness testifies for a codefendant, notwithstanding an attempted intimidation, because of the absence of a proper record and findings regarding the alleged conduct of the prosecution or its impact on the witness' testimony.
Where defendants present evidence to the district court that the government intimidated a defense witness a trial court must grant a hearing to determine whether the allegations of intimidation are true. If the witness did not testify, and the allegations of intimidation are true, no prejudice need be shown. See United States v. Goodwin, 625 F.2d 693, 703 (5th Cir.1980) ("On this appeal we now face unresolved claims of government intimidation of defense witnesses. If we were not reversing the convictions on other grounds, we would be required to remand to the district court for findings on the validity of these claims. And if proven such violations of due process would require automatic reversal."). Where, as here, the witness testified at trial, we cannot determine whether Schlei was deprived of his right to due process, in the absence of a finding that Han withheld evidence favorable
Equally enigmatic is the court's observation that no "Court of Law" had previously determined the factual basis for the claim of "witness tampering." We cannot discern from this record whether the court assumed that, as a matter of law, a claim of witness intimidation cannot be asserted in a motion for a new trial absent a showing that someone had been convicted of "witness tampering."
Relying on United States v. Holloway, 778 F.2d 653 (11th Cir.1985), cert. denied, 476 U.S. 1158, 106 S.Ct. 2276, 90 L.Ed.2d 719 (1986), the Government argues that "Schlei does not even suggest that he was prejudiced by the prosecutor's conduct." The Government's reliance on Holloway is misplaced. This court held in Holloway that there was no showing that any witness had been intimidated. Id. at 658.
In 1980, this court held in Goodwin that
Goodwin, 625 F.2d at 703. This court reversed on other grounds. Id. The court noted that two witnesses did not testify following their alleged intimidation by prison officials. Id. at 702. This court instructed the district court that "if witnesses called at the new trial refuse to testify because of alleged threats, the trial judge should take appropriate steps to investigate such claims." Id. at 703.
Because the court did not conduct an evidentiary hearing in this matter, we do not know whether the prosecutor's alleged attempt to intimidate Han constitutes a due process violation. We do know that Han testified as a defense witness. We cannot ascertain from this record whether he withheld exculpatory evidence because of the threat to nullify the grant of immunity.
The record is also unclear regarding whether the district court denied Schlei's motion for a new trial because the evidence was not newly discovered, or on the basis that Schlei did not exercise due diligence in investigating this factual issue. Because the record is insufficient to resolve the serious questions raised by Schlei's claim of witness intimidation, we are compelled to vacate the denial of the motion for a new trial on the question of whether Han was intimidated by the prosecutor. The district court should decide if an evidentiary hearing is required to determine whether the alleged intimidation deprived Schlei of his right to due process in view of the fact that Han testified on behalf of the defense. The district court is also requested to make express findings reflecting the factual basis for its rulings.
B. Motion for a New Trial Based on Newly Discovered Evidence
Schlei also moved for a new trial based on newly discovered evidence. Schlei informed the court that subsequent to the trial he discovered that Lazar could impeach Hill's testimony. The district court denied his motion on this ground and rejected his request for an evidentiary hearing because Schlei failed to demonstrate that the evidence was unavailable at the time of trial or that it would produce a different result if the case were retried.
In an affidavit submitted in support of Schlei's motion for a new trial, Lazar alleged that
Lazar's affidavit corroborates Hill's testimony that Schlei had no knowledge of Hill's involvement in the transaction. Lazar's testimony
The district court also properly denied Schlei's request for a hearing on his motion for a new trial without an evidentiary hearing. In determining whether a motion for a new trial based on newly discovered evidence was properly denied, we are persuaded that "the acumen gained by a trial judge over the course of the proceedings [makes her] well qualified to rule on the basis of affidavits without a hearing." United States v. Hamilton, 559 F.2d 1370, 1373-74 (5th Cir.1977) ("Where evidentiary hearings are ordered, it is because of certain unique situations typically involving allegations of jury tampering, prosecutorial misconduct, or third party confession.").
THE VOIR DIRE EXAMINATION
Schlei maintains that the district court abused its discretion in denying his request for a jury voir dire procedure "that would have provided a meaningful voir dire." He argues that the voir dire examination conducted by the district court failed to inquire whether the prospective jurors were biased because of the pretrial publicity, the fact that two of the defendants were lawyers, and the large face value of the bond certificates and bank notes. Schlei requested that the district court (1) submit a questionnaire to the venire before jury selection, or ask the venire the same questions orally, (2) allow questions probative of bias to be posed to the venirepersons individually, and (3) allow each defense counsel thirty minutes to conduct voir dire.
The conduct of a voir dire examination of a jury is committed to the sound discretion of the district court. United States v. Hurley, 746 F.2d 725, 726-27 (11th Cir.1984). "The district court's discretion extends both to the decision whether or not to submit suggested questions to the jury, and to the decision whether to question prospective jurors collectively or individually." United States v. Delval, 600 F.2d 1098, 1102 (5th Cir.1979) (citations omitted).
United States v. Nash, 910 F.2d 749, 753 (11th Cir.1990).
Schlei has failed to demonstrate that the voir dire proceedings did not comply with the essential demands of fairness. Schlei's assertions regarding juror bias due to pretrial publicity, the large face amount of the instruments, and the fact that some of the defendants were lawyers, is pure speculation that finds no support in the record. The voir dire examination revealed that only four prospective jurors had been exposed to media publicity regarding this matter. None of them was selected to serve on the jury. Defense counsel were permitted to inquire whether a lawyer who is accused of crime should be judged by a different standard. They also asked the jurors whether they believed that a lawyer should be held criminally responsible for the conduct of his client. The jurors were also thoroughly examined concerning their familiarity with sophisticated financial matters. Defense counsel did not ask any questions regarding the unusually high face value of the financial instruments.
The voir dire examination provided the parties with the reasonable assurance that any juror bias would be detected. Any elicited response that provided even the slightest basis to suspect bias was followed up with specific questions by the court directed at determining the extent of that bias.
Schlei also contends that the district court abused its discretion when it refused to grant the group of five defendants more peremptory challenges than that required for an individual defendant. Schlei did not exercise all of the peremptory challenges available to him. For that reason, Schlei lacks standing to challenge the district court refusal to grant additional peremptory challenges. See Mills v. GAF Corp., 20 F.3d 678, 679 n. 2 (6th Cir.1994) ("One who does not exercise all of his peremptory challenges cannot assign as error the court's refusal to allow a greater number.") (citing Connecticut Mut. Life Ins. Co. v. Hillmon, 188 U.S. 208, 212, 23 S.Ct. 294, 295-96, 47 L.Ed. 446 (1903)).
Furthermore, "the fact that the appellant failed to use all of [his] allotted peremptory challenges indicates the absence of juror prejudice." United States v. Alvarez, 755 F.2d 830, 859 (11th Cir.), cert. denied sub nom. Hernandez v. United States, 474 U.S. 905, 106 S.Ct. 274, 88 L.Ed.2d 235 (1985). See also United States v. Gorel, 622 F.2d 100, 103-04 (5th Cir.1979) ("Indicative of the absence of juror prejudice is the fact that of defendant's ten peremptory challenges, only six were used to strike potential jurors from the case."). The district court did not abuse its discretion when it denied Schlei's objection to the voir dire examination and the denial of his request for additional peremptory challenges.
THE SENTENCING DECISION
Schlei asserts that the district court erred in calculating his sentence based upon an intended loss of more than eighty million dollars, pursuant to United States Sentencing Guidelines ("USSG") § 2F1.1(b)(1)(S). This determination increased Schlei's base offense levels by eighteen levels. Schlei contends that section 2F1.1 does not allow an adjustment for loss in a government sting operation because no actual loss is incurred. Alternatively, Schlei maintains that it was not reasonably foreseeable that a loss in excess of eighty million dollars would be incurred. We review the district court's finding as to the amount of loss for clear error. United States v. Toussaint, 84 F.3d 1406, 1407 (11th Cir.1996).
Section 2F1.1(b)(1) provides that "[i]f the loss exceeded $2,000," the base offense level should be increased based upon the amount of loss, e.g., if the loss was more than eighty million dollars, add eighteen to the base offense level. USSG § 2F1.1(b)(1)(S). "[I]f an intended loss that the defendant was attempting to inflict can be determined, this figure will be used if it is greater than the actual loss. For example, if the fraud consisted of selling or attempting to sell $40,000 in worthless securities, or representing that a forged check for $40,000 was genuine, the loss would be $40,000." USSG § 2F1.1 comment n. 7 (emphasis added).
Toussaint, 84 F.3d at 1407-08 (citing United States v. Menichino, 989 F.2d 438 (11th Cir. 1993)).
Schlei urges us to adopt the law of the Tenth Circuit, which holds that the intended loss in cases of government sting operations is zero. See United States v. Sneed, 34 F.3d 1570, 1584 (10th Cir.1994) ("[W]e agree that the intended loss [in a government sting operation] is zero."); United States v. Galbraith, 20 F.3d 1054, 1059 (10th Cir.) ("Because this was an undercover sting operation ..., defendant could not have occasioned any loss even if the scheme had been completed. We conclude the intended or probable loss was zero."), cert. denied, 513 U.S. 889, 115 S.Ct. 233, 130 L.Ed.2d 157 (1994). This interpretation of an intended loss is inconsistent with our caselaw, as well as that of other circuits. See, e.g., United States v. Robinson, 94 F.3d 1325, 1329 (9th Cir.1996) ("There is no reason why defendants caught as a result of a sting operation should be treated any differently than defendants caught participating in an ongoing fraud. As in general fraud cases, `[s]imply because the government's crime prevention efforts prove successful ... does not mean that the "intended loss" is zero.'") (quotation omitted); United States v. Coffman, 94 F.3d 330, 337 (7th Cir.1996) ("[F]rauds that have no chance of succeeding are nevertheless punishable, and it would be ... contrary to the language of the guidelines, to treat all such frauds the same, as frauds involving an intended loss of zero, even if the magnitude of the intended loss differed vastly."), cert. denied, ___ U.S. ___, 117 S.Ct. 1426, 137 L.Ed.2d 535 (1997).
The commentary to the guidelines clearly explains that a permissible basis for enhancement is the loss that the defendant intended to inflict. Consistent with the law of this circuit, the fact that the fraud occurs in connection with a sting operation does not affect the evidence of defendant's intent to defraud others. The bond certificates had face values ranging from one hundred million dollars to five billion dollars. The bank notes had a face value of five hundred million dollars. The district court did not clearly err in calculating the amount of the foreseeable intended loss as eighty million dollars.
Because of the complexity of the issues in this matter we deem it appropriate to summarize our views. The record reveals sufficient facts to persuade a rational juror beyond a reasonable doubt that Schlei entered into a conspiracy in 1985 with Takahashi and others to sell forged bank notes. That conspiracy was not abandoned prior to the arrest of his coconspirators on January 18, 1992. Schlei did not withdraw from the conspiracy prior to that date. The evidence is also sufficient to support an inference that Schlei knew that these financial instruments were forged. The falsity of the coconspirators' representations regarding the authenticity of the financial instruments was not susceptible to verification by a reasonable purchaser because the alleged secret fund was purportedly amassed in a foreign country approximately fifty years ago by persons who are no longer alive. The fact that potential purchasers were truthfully told that Japanese officials would deny that the bond certificates and bank notes were genuine does not affect the materiality of the false representation that the financial instruments were valid because they had been issued by the Government of Japan. Accordingly, we reject Schlei's argument that we must reverse the conviction because the evidence of fraudulent intent was insufficient to support the verdict.
We are also persuaded that the evidence was sufficient to persuade a rational juror beyond a reasonable doubt that Schlei was guilty as a coconspirator of a scheme to defraud regarding the offer for sale of a counterfeit bond instrument on January 18, 1992 in Tampa, Florida, as alleged in Count Ten of the indictment. The fact that Schlei may not have had knowledge of the Tampa transaction is not relevant because it was a foreseeable act conducted by Takahashi and others in furtherance of the conspiracy to sell the bank notes. As noted above, Schlei did
We are compelled, however, to vacate the conviction of Schlei in Count Ten of the indictment, however, because it also included allegations of a separate securities fraud transaction which occurred in Minot, North Dakota in 1988. The inclusion of two discrete crimes in the same count violated the principle that securities fraud transactions must be set forth in separate counts. Because of this error, we cannot tell whether each juror was convinced beyond a reasonable doubt that Schlei was guilty of the scheme to defraud Agent Fox and Agent Sankey. The Middle District of Florida was not the proper venue for a securities fraud transaction that occurred in Minot, North Dakota. Because it is possible that some of the jurors voted to convict Schlei based upon Olson's conduct in Minot, North Dakota, rather than the January 18, 1992 Tampa transaction, we conclude that the district court abused its discretion in denying Schlei's motion to strike the Olson transaction from Count Ten of the indictment.
The present record also does not support the denial of an evidentiary hearing on Schlei's claim that the prosecutor's threat to nullify Han's grant of immunity was a violation of due process. While we recognize that the witness testified, because no evidentiary hearing was held, we cannot determine from the record whether the witness may have withheld evidence that was favorable to Schlei. For that reason, we vacate the judgment of conviction on all counts with directions that the district court determine whether the prosecutor made the statements attributed to him in Han's affidavit, and if so, whether this conduct affected Han's testimony at trial. The district court is also requested to make express findings in support of its ruling on this issue. If the court determines that the alleged intimidation did not occur, or that, notwithstanding the threat, no prejudice resulted, it may re-enter its judgment of conviction as to Schlei on Count One.
We affirm the district court on all the remaining issues raised by Schlei.
AFFIRMED IN PART, VACATED IN PART WITH DIRECTIONS.
The undersigned parties agree as follows:
Norbert A. Schlei agrees to provide such legal services as may be required in relation to the negotiation and cashing of certain checks and other instruments with respect to which his assistance is sought, including but not limited to checks numbered A35261, A35262, A35263, A35264, A35265 and A35266 drawn on the Dai-[I]chi Kangyo Bank, Inc.
? T. Hiraki and T. Takahashi, acting on their own behalf and on behalf of Sadao Niwa and other owners of the documents to which this agreement relates, and C.K. Lee and S.M. Han, acting on their own behalf, agree that the fee to be paid for such legal services shall be a contingent fee of 5% of the amount recovered on such checks or other instruments; provided, however, that T. Hiraki and T. Takahashi shall have the option, for thirty days after the date hereof, to reduce the contingent fee (a) by 1% (to 4%) by paying a retainer fee of $50,000 in cash, or (b) by 2% (to 3%) by paying a retainer fee of $100,000 in cash.
Wherefore the undersigned have duly executed this agreement.
February 21, 1986
MEMORANDUM OF MEETING
Subject: Letter to Ambassador Mansfield from Norbert A. Schlei: Subject Matter of his visit to Japan its historical value
Meeting Held: February 17, 1986, at 10:00 a.m.
Thank you for your courtesy in seeing me yesterday despite the fact that it was a holiday. Pursuant to the request made by your colleagues after our meeting, I am writing this memorandum to provide in more usable form the information I gave you at our meeting.
As I told you at our meeting, I have come to Japan nominally representing only a newlyformed non-profit corporation, Japan-America Foundation, Inc. However, in substance I represent approximately 80 Japanese individuals, active in the Liberal Democratic Party, who are seeking to gain control of what they consider to be their share of a very large, confidential, quasi-governmental fund which has been administered for decades by the leadership of the Liberal Democratic Party.
The fund is represented by checks, bonds and other instruments issued by the Bank of Japan, the Ministry of Finance and the leading private banks of Japan. My Japanese clients are the holders of a large number of these instruments which they have been prevented from cashing by government opposition. They have sought help ouside [sic] Japan in the belief that this would force the issue and induce the government to deal with their claims. That indeed has been the result, and it is for the purpose of participating in the negotiations now taking place that I have come to Japan. It remains to be seen whether I will be able to participate directly in these negotiations or will simply act as adviser to our side's Japanese representatives.
The present negotiations arose out of our group's arranging late last year for the presentation to the Dai-Ichi Kangyo Bank of a cashier's check for Yen 50 billion (then about $200 million). The check was presented by Prudential Bache Securities through the Morgan Guaranty Bank. When the check arrived in Japan it precipitated great agitation and conferences about what to do; meanwhile, the check sat at the Bank for 35 days without eliciting a response. Finally, the Bank rejected the check and sent it back, but a solution then began to take shape.
As a result of the presentation of the Dai-Ichi check a confidential committee was formed under Mr. Fujinami, then the Secretary of the Cabinet, to consider how to resolve the matter. Members of the Committee included a Mr. Kubota, head of a bureau of the Ministry of Finance, and a Mr. Taniguichi, an intelligence official, among others whose identity I do not know. The Committee recommended that the outstanding checks and other instruments be compromised by paying 5% of the outstanding amount (i.e., approximately yen 7 trillion or $35 billion) provided that adequate assurance could be secured that the funds would indeed be used for constructive purposes in Japan's interests, and not deverted [sic] to personal uses. The Minister of Finance, Mr. Takeshita, approved the Committee's recommendation and began accumulating and segregating the funds required to effect the settlement.
Our group was in contact with the Committee and as a result of discussions in early December asked me to form the Japan-American Foundation, Inc., to be the recipient of the proceeds of the settlement. The Foundation will be governed by up to 36 trustees, half of which must be Americans and half Japanese, and will distribute its income annually to good causes in Japan, the United States and Pacific Rim countries.
Later in December Mr. Fujinami was replaced by Mr. Masaharu Gotoda. Mr. Gotoda took a less favorable view of the proposed settlement and the negotiations slowed to a stop. However, they have recently resumed their progress and last week the government made an offer to our group of 3% of face value; this would involve a total payment of about yen 4 trillion or some $20 million.
As I did in our meeting, I will set forth the background as I understand it from my clients. I may have it garbled in some respects but I am confident that in essence it is correct.
The fund for which my clients are contending had its origin in the immediate postwar era. At that time General MacArthur became convinced that it was essential to establish a secret fund to be used for various purposes not suitable for public view. Among these purposes was the financing of political activity deemed necessary to give democratic forces a running start and keep leftists in check until the new system was operating properly.
Such a fund was duly created, utilizing primarily money and treasures which had been brought to Japan during the war from occupied areas (China, Korea, Taiwan, The Philippines, etc.) and funds and properties which had been owned by Japanese military forces. So-called counterpart funds were later added. These funds were administered by General MacArthur's Headquarters with the active assistance and advice of Prime Minister Yoshida.
The fund established by MacArthur is sometimes called the "M Fund" or "Marcut [sic] Fund" after an officer named Marcut [sic] who was identified with the fund's establishment and early operation. The fund was used not only for political purposes but for governmental or quasi-governmental purposes, such as providing very low-interest loans to Japanese key industries including coal, fertilizer, iron, shipbuilding, power and other heavy industries.
When the Korean War broke out in 1950, General MacArthur required Japan to establish a National Police Reserve for the purpose of filling the vacuum in the maintenance of public order left upon the departure of the occupation army for Korea. The Police Reserve was the predecessor of today's National Defense Force. About yen 20 million needed to establish the Police Reserve was allocated from the M Fund.
After the US-Japan Security Pact came into effect the fund continued to be jointly administered by the U.S. and Japan until the terms of the Pact were revised in the late 1950's through negotiations between Vice President Nixon and Prime Minister Nobusuke Kishi. My clients assert that Nixon agreed with Kishi that if Japan would assist him in becoming President, he would see to it that the U.S. withdrew from its role in managing the M Fund and upon being elected would return Okinawa to Japan. The revision of the Security Pact accomplished the former and in 1972 Mr. Nixon did the latter.
My clients also assert that in due course Mr. Kishi helped himself to a fortune of yen 1 trillion from the fund.
According to my clients a condition of the release of Japan of the M Fund was that Japan add a specified amount to the yen 12.3 trillion of which it consisted at that time. The task of adding the required amount to the Fund fell to the administration of Premier Hayato Ikeda, who succeeded Kishi. The plan was to obtain the necessary amount by selling the Japanese real estate which the government had confiscated during the war from people of enemy countries. The task of carrying out this plan was delegated to Kakuei Tanaka, Finance Minister in the Ikeda Cabinet.
Tanaka started the work in 1960 with financial assistance from Kenji Osano, Hideki Yokoi (and, later, a number of my clients) and such companies as Nissho Iwai, Nishikawa Futon and Konishi Sake Brewery. A total of 1,681 properties were sold at a total profit of yen 7.9 trillion. Most of these funds were deposited in the Nippon Kogyo Bank because Soppei Nakayama, President of the Bank, had greatly assisted Tanaka's work. Fund sales were halted by Premier Sato in 1970 in order to avoid public disclosure of the program after questions were raised in a Diet committee by Akira Kuroyanagi Diet member from Komeito.
During the years of Japanese administration of the Fund, it was normally held in the form of negotiable documents in the name of the Prime Minister or a small number of key officials. However, when the Lockheed scandal threatened to erupt in the 1970's and it was thought necessary to have the documents held in others' names, a different policy was adopted and a large number of holders were utilized. At the present time about 80 individuals hold documents representing a portion of the Fund.
When the individuals holding the documents representing the Fund began to demand a voice in administering the Fund, the government vigorously resisted. At various times it forcefully demanded return of the documents, but very few holders responded. In order to prevent these documents from being negotiated, the government has at times advised persons making inquiry about these documents that they are forged. However, my clients assert that most of the documents presently ots presently outstanding can be shown to have been printed at a factory of the Finance Ministry in 1981 by order of Finance Minister Michio Watanabe, now Minister of International Trade and Industry. The ink used for the printing, they assert, is the ink used for printing the old paper money, now no longer circulating, and is totally unavailable except to the Ministry of Finance.
The face value of instruments now outstanding probably exceeds by a considerable margin the amount of money actually in the Fund. This results partly from the activities of a woman named Hatsu Aoyagi, who worked closely with Tanaka and had a role in selecting the holders of the securities representing the Fund. Ms. Aoyagi was convicted of fraud and misappropriation of funds within the past year in a Tokyo court. One thing she apparently did was to charge people large sums to become holders of the Fund's securities. She represented that the fees charged would go to the Party, but in fact she pocketed most of them. Also, although in some instances she was supposed to exchange one set of securities for another, in some instances she simply distributed the new ones without collecting the old. Because of this practice and perhaps other irregularities, the face value of the instruments outstanding is approximately yen 130 trillion whereas the actual amount of the Fund is believed to be a maximum of approximately yen 50 trillion.
My clients assert that one of the reasons for their determination to bring this matter to a head is that the Fund has been productive of impropriety and corruption. In addition to Mr. Kishi, they say that Mr. Tanaka misappropriated a large fortune of yen 10 trillion which is invested through the Swiss Union Bank. They state that Mrs. Hiroko Sato, widow of premier Eisaku Sato, cashed documents amounting to yen 300 billion through the Case Bank. According to my clients Mr. Masaharu Gotoda, Secretary of the Cabinet who has somewhat impeded their settlement, has personally cashed three checks through the Dai-Ichi Kangyo Bank for a total sum of yen 60 billion. It is, of course, possible that some of these sums were further transferred and applied to proper purposes.
With a view to testing the reliability of some of the assertions made by my clients I asked how it was known that Mr. Gotado had obtained yen 60 billion from the Dai-Ichi Kangyo Bank. The reply was that a member of our group is an official of a government agency which was engaged at the time in a special investigation; that when Mr. Gotoda conducted his final negotiation with a high official of the Bank, he did so on a telephone line that happened to be tapped; that the Bank asked Mr. Gotoda to accept yen 50 billion but he adamantly refused, after which arrangements were made on the telephone to pay him the full amount demanded.
I believe that the negotiations relating to this matter will be concluded in any and all events by the end of the Japanese government's fiscal year on March 31. If the non-profit foundation we have formed is indeed founded, it will have an enormous potential for good. Two people — Senator Alan Cranston and Jack Anderson, the syndicated columnist — have been asked by people in our group to serve as trustees and have agreed to do so. I plan to ask Ted Kennedy to join us. You would be an ideal trustee if your post would permit such service.
As you know, I am providing this information on the understanding that it will be kept confidential in the sense of not being disclosed to the public, and will not be attributed to me. Any use of this information you may feel is in the interests of the United States in terms of disclosure within the government is not objectionable to me or my clients.
I will keep you informed.
Again thanks, and kindest personal regards.
September ___, 1988
As you know we have discussed several times various Japanese Certificates of Redemption and Cashiers Checks denomiated [sic] in Japanese Yen, that purport to be issued by the Bank of Japan, the Dai-Ichi Kangyo Bank and other leading Japanese financial institutions.
It is the purpose of this letter to establish that Hill & Associates, Inc. has made full disclosure of the problems that exist with respect to these instruments, and that none of our discussions have been based on any material misrepresentation or non-disclosure of material facts.
The payees of the instruments here involved have stated that they believe the instruments were in fact issued by the institutions by whom they purport to have been issued, and that the instruments represent a confidential fund of money (the so-called M-Fund) which has been administered by the Liberal Democratic party for some three decades. The fund is believed to have been established during the U.S. occupation with the approval of General MacArthur, and to have been the subject of several secret agreements between the U.S. and Japan or the Liberal Democratic Party culminating in the giving up by the U.S. in the late 1950's of any right to participate in administration of the fund. Although I have informed you of these matters and other details, I wish to make it clear that this information is entirely heresay [sic] so far as I am concerned and I cannot and do not warrant the correctness or completeness of this information.
The payees of the instruments have also stated that in their view there is no legal obstacle to negotiation of the instruments by them; that opposition by the Government of Japan or the Liberal Democratic Party is merely political and not legally sustainable. However, it certainly is clear that the Government of Japan and those of the institutions do challenge the genuineness and the enforceability of these instruments. In the only case in which any of these instruments was formally presented for payment, a cashier's check purportedly issued by the Dai-Ichi Kangyo Bank was rejected as not genuine after being held by the Bank for 35 days after presentation. Hill & Associates, Inc., is, accordingly, unable to warrant and does not warrant the genuineness or enforceability of the instruments.
Essentially, Hill & Associates, Inc., is stating to you that these instruments are without warranty other than a warranty that it has duly acquired the proper power of attorney in and to these instruments. By your signature below, you acknowledge receipt of the information set forth above and your understanding of the severe limitations on the warranty in relation to any proposed transactions between ______________ and Hill & Associates, Inc.
Fed.R.Evid. 404(b) (emphasis added).