United States v. Boyle

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
_______________

No. 95-20532
_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

CHARLES WILLIAM BOYLE and
ROBERT EUGENE SMITH,

Defendants-Appellants.

_________________________

Appeal from the United States District Court
for the Southern District of Texas
(91-CR-50-7 & 91-CR-50-6)
_________________________

August 28, 1996
Before KING, JONES, and SMITH, Circuit Judges.

PER CURIAM:*

Charles Boyle and Robert Smith were convicted of conspiring to

obstruct a grand jury investigation and to mislead a person into

withholding evidence from a grand jury, in violation of 18 U.S.C.

§§ 371, 1503, and 1512. Smith was also convicted of conspiring to

give false testimony to a grand jury, in violation of 18 U.S.C.

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
§ 1623. We affirm.

I.

A.

Boyle and Smith were attorneys for Linda Ivey,1 a distributor

of sexually explicit materials who owns a network of adult

bookstores in several states. Smith helped Ivey establish an

elaborate corporate structure for the management of her stores;

Boyle represented Ivey in various legal matters.

In 1985, a grand jury in Tennessee was investigating possible

violations of 18 U.S.C. § 1462, which bars the interstate transpor-

tation of obscene materials. The grand jury subpoenaed the

custodian of records of four bookstores in Memphis, seeking

information about thirty-six videotapes. On May 15, 1985, Boyle

appeared before the grand jury. He testified that he was appearing

at Smith’s request, that he was a representative of Praxis

Management and the corporate owners of the four bookstores, and

that the documents came from Praxis, a corporation that had

physical possession of the bookstores’ records. He denied that

Praxis was a management corporation for the stores.

In 1986, the grand jury issued a subpoena to Praxis. On

June 26, 1986, Boyle again appeared, at Smith’s request, as

1
Linda Ivey has been referred to in the record as “Mary Jane Jenkins” and
“Lydia Entratter.” We refer to her as Linda Ivey.

2
custodian of records for Praxis.2 He testified that some records

were missing because Praxis no longer existed and the company had

returned the records to its customers. Boyle also qualified his

testimony by stating that his knowledge of Praxis came from

conversations with Smith. Contradicting his earlier testimony,

Boyle testified that Praxis had managed the bookstores.

Smith also testified before the grand jury, stating that

Phoenix, which had replaced Praxis, provided bookkeeping services

to various entities. He claimed that former Praxis personnel were

not working for Phoenix. He denied that he was involved in the

formation of Phoenix, that Phoenix and Praxis were the same

companies, and that he knew who Phoenix’s officers were.

In 1991, a federal grand jury in Houston issued subpoenas to

Phoenix and other Ivey corporations, seeking account numbers and

information regarding numerous accounts maintained by the target

institutions. The subpoena was specifically limited to accounts

with banks or financial institutions.

Michael Cescon, Phoenix’s comptroller, consulted Boyle and

asked for account numbers for some offshore accounts. Boyle knew

the missing account numbers but did not provide them. Instead, he

told Cescon that “there wasn’t any account numbers and just insert

'N/A' in its place.” Boyle also informed Cescon that the offshore

2
In the interim, Smith had modified the corporate structures so that
Phoenix Management succeeded Praxis. According to the government, everything but
the name of the corporation stayed the same.

3
accounts were outside the scope of the subpoena when he told Cescon

that he was not certain that the accounts were with banks or

financial institutions.

B.

On April 9, 1991, the appellants and six other defendants were

charged in an indictment arising out of the grand jury investiga-

tions. Count 12 charged them with conspiring to obstruct grand

jury investigations.3 The six other defendants were charged with

racketeering and obscenity offenses.

The appellants initially were charged with (1) knowingly

engaging in misleading conduct toward a witness in a federal grand

jury to cause and induce the witness to withhold testimony,

records, and/or documents from the grand jury in violation of

18 U.S.C. § 1512(b)(2)(A); (2) corruptly influencing, obstructing,

impeding or attempting to influence, obstruct, or impede the

administration of justice in violation of 18 U.S.C. § 1503; and

(3) knowingly making a false material declaration before a grand

jury in violation of 18 U.S.C. § 1623(a). The indictment included

thirty-one overt acts in furtherance of the alleged conspiracies

and a charge of conspiracy to defraud the United States in

violation of 18 U.S.C. § 371.4 The government withdrew the § 371

3
The district court severed count 12 on the appellants’ motion.

4
This portion of count 12 is sometimes referred to as “paragraph 3.”

4
charge.

The appellants challenged the sufficiency of count 12, and the

court ordered a bill of particulars. The government responded, and

the defendants renewed their motion to dismiss count 12, or in the

alternative to compel additional answers to the bill of particu-

lars. The court denied both motions.

Following a jury trial, Boyle and Smith were convicted, under

§ 371, of conspiring to obstruct justice (18 U.S.C. § 1503) and to

mislead a person into withholding evidence from a grand jury

(18 U.S.C. § 1512). Smith was also convicted, as part of the same

count, of conspiring to give false testimony to a grand jury

(18 U.S.C. § 1623).

II.

The defendants contend that the indictment failed adequately

to apprise them of the conspiracy offenses with which they were

charged. Their specific complaint is that the indictment and the

bill of particulars failed to describe how they actually had

violated the underlying substantive offenses. They assert that the

bill of particulars was insufficient because it listed seventy-

eight instances of false, incomplete, or misleading testimony

without explaining why the testimony was false.

We review the sufficiency of the indictment de novo. United

States v. Flores, 63 F.3d 1342, 1360 (5th Cir. 1995), petition for

5
cert. filed (Mar. 14, 1996) (No. 95-8346). An indictment is

sufficient if it (1) enumerates each prima facie element of the

charged offense, (2) notifies the defendant of the charges filed;

and (3) provides him with a double jeopardy defense against future

prosecution. Id.

A conspiracy indictment is sufficient if it sets out an

unlawful agreement and the commission of at least one overt act by

at least one of the conspirators. The conspiracy, rather than the

accomplishment of its underlying objectives, is the gravamen of the

offense, so it is not necessary that the object of the conspiracy

be described in the detail that would be required to charge a

violation of the substantive offense. United States v. Ivey, 949

F.2d 759, 765 (5th Cir. 1991), cert. denied, 506 U.S. 819 (1992);

United States v. Evans, 572 F.2d 455, 483 (5th Cir.), cert. denied,

439 U.S. 870 (1978).

Count 12 was sufficient to provide the defendants with notice

of the charges against them. They were not entitled to an

indictment that provided a breakdown of how they violated each

substantive crime or the evidence the government intended to

produce. Ivey, 949 F.2d at 765; United States v. Gordon, 780 F.2d

1165, 1172 (5th Cir. 1986) (“Moreover, a defendant’s constitutional

right to know the offense with which he is charged must be

distinguished from a defendant’s need to know the evidentiary

details establishing the facts of such offense, which can be

6
provided through a motion for a bill of particulars.”). The

indictment alleged a conspiracy to commit three substantive crimes;

it generally described an agreement between the defendants to

conceal the identities of the true owners of the obscene book-

stores; it contained a description of the various grand jury

investigations and a general account of the conspiracy’s goal to

withhold specific information from the investigators; and it

contained thirty-one overt acts, including allegations that Boyle

and Smith testified falsely or instructed others to do so.

The defendants failed to demonstrate that the district court

abused its discretion in denying their motion for further elabora-

tion on the bill of particulars. See United States v. Johnson, 575

F.2d 1347, 1357 (5th Cir. 1978), cert. denied, 440 U.S. 907 (1979).

Like their challenge to the sufficiency of the indictment, the

challenge to the bill of particulars is based on a claim that the

government did not adequately explain how their actions violated

the substantive crimes they are accused of conspiring to violate.

Without more, the defendants have failed to show that the district

court abused its discretion in denying their request for further

elaboration.

III.

We also reject the defendants’ closely related argument that

they were denied their Sixth Amendment right to a unanimous verdict

7
because the indictment included multiple alleged conspiracy

offenses in a single count. It is settled law in this circuit that

“[t]he allegation in a single count of a conspiracy to commit

several crimes is not duplicitous, for '[t]he conspiracy is the

crime, and that is one, however diverse its objects.'” United

States v. Cooper, 966 F.2d 936, 939 (5th Cir.) (quoting Braverman

v. United States, 317 U.S. 49, 54 (1942)), cert. denied, 506 U.S.

980 (1992).

Count 12 alleged one conspiracy, a conspiracy to obstruct

grand jury investigations of Ivey’s illicit activities. That the

conspiracy entailed more than one crime does not turn a single

conspiracy into multiple conspiracies. Id. To that extent, cases

cited by the defendants are distinguishable. See, e.g., United

States v. Gordon, 844 F.2d 1397, 1401 (9th Cir. 1988) (finding that

the count was duplicitous because it charged two distinct conspira-

cies, one to defraud the United States Navy and a second to

obstruct a grand jury investigation of the fraud).

IV.

The defendants contend that various acts by the court and the

government impermissibly amended the indictment. They assert three

instances of constructive amendment. The first involves the bill

of particulars. The defendants argue that the bill of particulars

included two allegations that were not included in the indictment.

8
The second instance involves the redaction of the overt acts from

the indictment. The defendants argue that the removal of the overt

acts, in combination with the government’s closing remarks, the

court’s instructions regarding overt acts, and the court’s response

to the jury’s question resulted in a conviction premised on overt

acts that were not alleged in the indictment. The third instance

involves the submission of paragraph three of the indictment, which

had been dismissed, to the jury.

Once an indictment has been returned, its charge may not be

broadened through amendment except by grand jury. Stirone v.

United States, 361 U.S. 212 (1960); United States v. Doucet, 994

F.2d 169, 172 (5th Cir. 1993); United States v. Baytank, 934 F.2d

599, 606 (1991). As we recognized in United States v. Young, 730

F.2d 221, 223 (5th Cir. 1984):

Stirone requires the courts distinguish between
constructive amendments of the indictment, which are
reversible per se, and variances between indictment and
proof, which are evaluated under the harmless error
doctrine. The accepted test is that a constructive
amendment of the indictment occurs when the jury is
permitted to convict the defendant upon a factual basis
that effectively modifies an essential element of the
offense charged. In such cases, reversal is automatic,
because the defendant may have been convicted on a ground
not charged in the indictment. If, on the other hand,
the variation between proof and indictment does not
effectively modify an essential element of the offense
charged, “the trial court’s refusal to restrict the jury
charge to the words of the indictment is merely another
of the flaws in trial that mar its perfection but do not
prejudice the defendant.” [Citations omitted.]

The defendants have failed to prove that the bill of particu-

9
lars constructively amended the indictment. The original indict-

ment charged a conspiracy to commit three felonies, one of which

was corruptly to influence, obstruct, and impede the due adminis-

tration of justice. In response to the request for more particu-

larized facts, the government included allegations that the

defendants’ conspiratorial objectives included presenting incom-

plete testimony and incomplete facts to the jury. The government’s

response did not add a new charge, but rather provided particular-

ized examples of the type of conduct the defendants were charged

with conspiring to commit.

We also find no reversible error in the second class of

alleged constructive amendments. The defendants’ basic argument is

that redaction of the overt acts opened the door to a conviction

based on overt acts that were not alleged in the indictment. The

prosecutor’s closing arguments, the court’s jury charge, and the

court’s response to the jury question are the only instances as to

which redaction of the overt acts could have resulted in the

alleged expansion of the indictment.

The defendants failed to object to the redaction of the overt

acts, so we review for plain error. See United States v.

Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc), cert.

denied, 115 S. Ct. 1266 (1995). The alleged errors, if they were

errors, were not plain at the time of trial.

A court is not required to submit the indictment to the jury;

10
the decision to do so is within its broad discretion. United

States v. Haynes, 573 F.2d 236, 241 (5th Cir.), cert. denied, 439

U.S. 850 (1978). Moreover, a conviction may be based on an overt

act that is not pled as part of the conspiracy if the overt act is

one that occurs during the life of the conspiracy charged.5

Given this caselaw, we cannot say that providing the jury with

a copy of the indictment and redacting the overt acts was plainly

an act of constructive amendment. Nor can we say that the court

committed plain error when it allowed for the possibility that the

defendants would be convicted on overt acts that occurred during

the life of the conspiracy but were not listed in the indictment.

Even assuming error, we do not find that allowing the convictions

to stand would seriously affect the fairness, integrity, or public

reputation of judicial proceedings.

We also reject the argument that submitting paragraph three to

the jury constructively amended the indictment. The defendants

have conceded that they failed to object to the submission of

paragraph three. The court’s clerical error does not seriously

affect the fairness, integrity, or public reputation of judicial

5
United States v. Carlock, 806 F.2d 535, 550 (5th Cir. 1986) (holding that
the government is not limited to the overt acts pleaded in proving a conspiracy,
but may rely on other overt acts of the conspirators during the life of the
conspiracy), cert. denied, 480 U.S. 949, and cert. denied, 480 U.S. 950 (1987);
Johnson, 575 F.2d at 1357 (recognizing the rule that a prejudicial variance does
not occur when the government relies on overt acts other than those alleged in
the indictment or bill of particulars); United States v. Elliott, 571 F.2d 880,
911 (5th Cir.), cert. denied, 439 U.S. 953 (1978); United States v. Perez, 489
F.2d 51, 70 (5th Cir.), cert. denied, 417 U.S. 945 (1974).

11
proceedings. See Calverley, 37 F.3d at 162-64.

V.

The defendants next argue that the district court denied them

a fair trial by intimidating Andrew Grod and Michael Cescon into

giving damaging testimony and by limiting cross examination of the

two witnesses. We discuss each alleged error in turn.

A.

When a defendant asserts judicial misconduct, our role

is to determine whether the [district court’s] behavior
was so prejudicial that it denied the defendant a fair,
as opposed to a perfect, trial. To rise to the level of
constitutional error, the district [court’s] actions,
viewed as a whole, must amount to an intervention that
could have led the jury to a predisposition of guilt by
improperly confusing the functions of judge and prosecu-
tor. The [court’s] intervention in the proceedings must
be quantitatively and qualitatively substantial to meet
this test.

United States v. Bermea, 30 F.3d 1539, 1569 (5th Cir. 1994)

(citations omitted), cert. denied, 115 S. Ct. 113, and cert.

denied, 115 S. Ct. 1825 (1995). See also Flores, 63 F.3d at 1360).

The court’s statements to Grod did not substantially lead to a

predisposition of guilt by the jury. The statements took place

outside the presence of the jury, limiting any prejudice. United

States v. Samak, 7 F.3d 1196 (5th Cir. 1993) (per curiam) (noting

that comments made outside the presence of the jury could not lead

to a predisposition of guilt by the jury).

12
 The defendants’ real complaint is that the court’s interven-

tion led to the damaging testimony. A court is allowed to admonish

a witness who is evasive, however. Absent evidence that the

court’s comments caused Grod to lie on the stand, the defendants

cannot complain of prejudice when the court simply instructed a

witness to provide concise and responsive testimony.

B.

Defendants also complain that the court limited cross-

examination of Grod and Cescon. We review rulings on the admissi-

bility of evidence and restrictions on the scope of cross examina-

tion for abuse of discretion. United States v. Crawford, 52 F.3d

1303, 1307 (5th Cir. 1995).

The court did not abuse its discretion by allowing Grod to

testify about foreign bank accounts. The status of the offshore

accounts was relevant to the charge that Boyle had misled Grod by

advising him that the accounts were not bank accounts. Grod, an

accountant who previously had testified that the offshore accounts

were bank accounts, was qualified to give opinion testimony

regarding what types of financial institutions controlled the

offshore accounts. Moreover, the court was within its discretion

in refusing to allow Boyle’s attorney to explain Grod’s testimony;

the attorney’s statements were not evidence and were best left for

closing argument.

13
 The court did not abuse its discretion by limiting the cross-

examination of Cescon. On direct examination, Cescon testified

that he did not know why funds from Ivey’s offshore accounts had

passed through Bankers Trust Company. On cross, Boyle’s attorney

made a bald-faced attempt to change Cescon’s answer by attempting

to elicit an affirmative answer to an explanation of why the funds

had passed through Bankers Trust. The court, outside the presence

of the jury, advised Boyle’s attorney that he could not testify on

behalf of Cescon and that Cescon would be perjuring himself if he

changed his answer. None of the court’s actions could be viewed as

an abuse of discretion. See Delaware v. Van Arsdall, 475 U.S. 673,

679 (1985).

VI.

A.

The defendants argue that the district court erred in its

response to a note sent by the jury during its deliberations. The

jury asked, “Is the 'Count Twelve' the overt acts that we deliber-

ate. If not what is 'Count Twelve's' purpose. Can we get 6 more

copies of the Count 12.” The court responded, “The overt acts are

those set forth in the indictment and arguments of the attorneys.

Count 12 is the allegation of acts in violation of the various

statutes set forth therein.”

The jury made no request for elaboration. The defendants

14
contend that the question demonstrated the jury's confusion over

the overt acts and that the court’s answer furthered that confusion

by referring the jury to count 12, which did not describe any overt

acts.

The district court is granted broad discretion in responding

to jury questions. United States v. Duvall, 846 F.2d 966, 977 (5th

Cir. 1988). When a deliberating jury expresses confusion and

difficulty, the court must clear that confusion away with “concrete

accuracy.” United States v. Stevens, 38 F.3d 167, 169-70 (5th Cir.

1994). We must ask whether the court’s answer was reasonably

responsive to the jury’s question and whether the original and

supplemental instructions as a whole allowed the jury to understand

the issue presented to it. Id. at 170. “There is nothing wrong in

responding in a narrow fashion allowing a jury to decide if the

answer is responsive.” United States v. Stowell, 947 F.2d 1251,

1257 (5th Cir. 1991), cert. denied, 503 U.S. 908, and cert. denied,

506 U.S. 902 (1992).

B.

The jury’s question concerning the overt acts obviously

signaled its confusion on this point. A jury’s expression of

confusion after deliberation imposes a heightened duty on the

district court to eliminate that confusion. “When a deliberating

jury expresses confusion and difficulty over an issue submitted to

15
it, the trial court’s task is to clear that confusion away with

'concrete accuracy.'” Stevens, 38 F.3d at 169-70. This task

requires extreme care:

Under those circumstances, a trial judge must be acutely
sensitive to the probability that the jurors will listen
to his additional instructions with particular interest
and will rely more heavily on such instructions than on
any single portion of the original charge. Thus, the
court must exercise special care to see that inaccuracy
or imbalance in the supplemental instructions do not
poison an otherwise healthy trial.

United States v. Carter, 491 F.2d 625, 633 (5th Cir. 1974). While

the district court has wide latitude in crafting responses to the

jury's questions, the supplemental instruction must be reasonably

responsive in clearing that confusion with “concrete accuracy.”

Stevens, 38 F.3d at 170.

The government would have us place the burden of clearing up

the confusion on the jury, stating that “[i]f the district court's

response was unhelpful, the jury could have asked the court one or

more additional clarifying questions." In support of this

proposition, the government cites Stowell.

In Stowell, the jury sent out a note during deliberations

asking, “Can any defendant whom we find was not entrapped become an

ignorant pawn of the government and in turn entrap another

defendant?” 947 F.2d at 1257. The court responded with a simple

“Yes.” Id. The defendants in Stowell argued that the response was

inadequate because “the jury essentially asked for a clarification

on the applicable burden of proof.” Id. We determined that the

16
response was adequate because it was correct and concise, conclud-

ing, “[t]here is nothing wrong in responding in a narrow fashion

allowing the jury to decide if the answer is responsive.” Id.

Stowell is distinguishable from the instant case. In Stowell,

the jury’s question called for a simple "yes" or "no" answer.

Neither party disputed that the answer given was correct, but the

defendants argued that the court should have elaborated more. Id.

In the case at bar, the answer called for was more than 'yes'

or 'no,' and the court’s answer was incorrect and confusing. The

court referred the jury to the indictment for the overt acts, even

though the court had redacted the overt acts from the indictment

given to the jury. The court referred the jury to the closing

arguments, which, while discussing various acts, did not label them

“overt acts.” The issue is not, as in Stowell, whether the court

should have elaborated more in its answer even though it was

correct, but whether, instead, the court’s answer was correct at

all.

C.

Although the answer to the jury’s question was erroneous, the

defendants did not object. Thus, we review for plain error only.

See United States v. Olano, 507 U.S. 725, 731-32 (1993); Calverley,

37 F.3d at 162. Plain error is not reversible unless it affects

the defendants' substantial rights. Olano, 507 U.S. at 732;

17
Calverley, 37 F.3d at 164.

As we stated in Calverley, in most cases, for an error to

affect substantial rights, “it must affect the outcome of the

proceeding.” 37 F.3d at 164. The defendants have the burden of

persuasion. Id. Thus, for the error to justify reversal under

plain error review, the defendants must establish that if the court

had properly instructed the jury, they would have been acquitted.

The defendants have not made this showing.

VII.

The defendants challenge the adequacy of the jury instruc-

tions. We afford the district court substantial latitude in

framing instructions to the jury. United States v. Smithson,

49 F.3d 138, 142 (5th Cir. 1995). The refusal to give a requested

instruction is reviewed for abuse of discretion. Id. When

reviewing challenges to instructions, we take into account the

court’s charge as a whole and the surrounding context of the trial,

including arguments made to the jury. Flores, 63 F.2d at 1374. To

prevail, the defendants must demonstrate that the requested

instruction “(1) was a correct statement of the law, (2) was not

substantially covered in the charge as a whole, and (3) concerned

an important point in the trial such that the failure to instruct

the jury on the issue seriously impaired the defendant’s ability to

present a given defense.” Smithson, 49 F.3d at 142.

18
 The defendants contend that the district court erred by

redacting the overt acts alleged in the indictment and by deleting

the provision in the pattern jury instruction that refers to the

overt acts in the indictment.6 The defendants submitted six

different jury charges that referred to overt acts.7 The

6
The court deleted the following paragraph from the Fifth Circuit Pattern
Jury Instructions, § 2.21 (1990):

Third: That one of the conspirators during the existence of the
conspiracy knowingly committed at least one of the overt acts
described in the indictment, in order to accomplish some object or
purpose of the conspiracy.
7
The first proposed charge relating to overt acts stated the following:

Mere knowledge or approval, without participation, does not make one
a party to a conspiracy. Mere association does not establish a
conspiracy. There must be intentional participation in the
conspiracy with a view to the furtherance of the common design and
purpose to violate the law. The doing of an act which may
unknowingly further any such conspiracy or without the intent to
further such conspiracy is not sufficient.

The second proposed charge stated, in pertinent part:

The government must prove the following three (3) essential elements
beyond a reasonable doubt:

. . .

Two: At some time during the existence or life [sic] the conspiracy,
one of the Defendants knowingly performed one of the overt acts
charged in the Indictment in order to further or advance the purpose
of the agreement to violate the law. . . .

The third proposed charge stated:

The essential elements of a conspiracy are an agreement by two or
more persons to combine efforts for an illegal purpose and an overt
act by one of the members in furtherance of the agreement to violate
the law.

The fourth proposed charge stated, in pertinent part:

The evidence before the jury must show beyond a reasonable doubt
. . . that one of the Defendants engaged in an overt act to further
the illegal goal of the conspiracy. . . . the doing of an act which
was not intended to further the conspiracy does not make someone a
(continued...)

19
defendants contend that the deviation from their proposed charges

impaired their ability to show that all the acts charged by the

grand jury were not intended to further an unlawful agreement or

were never proven.

The district court did not abuse its discretion in submitting

jury instructions without the overt acts alleged in the indictment.

The court’s instructions to the jury did include a statement that

the overt acts must be in furtherance of the conspiracy. To that

extent, the defendants’ requested charge was substantially covered

by the court’s charge.

At oral argument, the defendants added a new twist to their

theory. While admitting that the court’s charge did indeed include

a statement that the act must be “in furtherance of the conspir-

acy,” they claimed the charge was deficient because it did not say

that the overt act must be committed by the conspirator or be

7
(...continued)
member of the conspiracy or a conspirator.

The next charge relating to over acts stated:

Evidence has been received in this case that certain persons, who
are alleged in the Indictment to be a co-conspirator have done or
said things during the existence or life of the alleged conspiracy
in order to further or advance its goal(s). . . . Before even
considering such acts or statements you must find beyond a
reasonable doubt that a conspiracy existed, that the person was a
knowing member of the conspiracy and that the act or statement was
made in furtherance of the conspiracy.

The final charge to discuss overt acts contained the following:

The government must prove beyond a reasonable doubt that one of the
members to the conspiracy knowingly performed at least one overt act
and that this overt act was performed during the existence or life
of the conspiracy and was done with the specific intent to further
[sic] object of the conspiracy.

20
committed during the time of the conspiracy.

In addition to being untimely, the argument fails because

defendants have not explained how this seriously impaired their

ability to present a defense. There is no indication that the

government relied on acts by anyone other than the defendants or

acts that were outside the time frame of the co-conspirators’

agreement.

The defendants’ second argument is that the court’s instruc-

tions on the overt act requirement amounted to an abuse of

discretion because the court essentially instructed the jury to

find the defendants guilty. The court’s instructions substantially

conform to the instructions the defendants contend would be

correct.

The court provided the jury with a special verdict form,8 a

8
Following the guilty/not guilty question, the special verdict contained
the following questions:

If you find the defendant guilty, answer the following
questions:
1. What statutes do you find the defendant was guilty
of conspiring to violate?

A. Knowingly engaging in misleading
conduct toward another person with the
intent to cause and induce another person
to withhold testimony, records, documents,
or other objects from a federal grand jury

B. Corruptly influencing, obstructing,
or impeding, or endeavoring to influence,
obstruct, or impede the due administration
of justice

C. Knowingly making a false material
declaration under oath before a grand jury.

(continued...)

21
copy of the indictment with the alleged overt acts redacted, and

the following verbal instruction:

The form verdict starts out with the name of the defen-
dant and determination of whether that defendant is
guilty or not guilty. Obviously, if a defendant is not
guilty, you don’t need to proceed with answering or
filling in the balance of this. You simply need to turn
it over and have the foreperson sign and date the
document.

If you find any defendant guilty, that is, if you
find that this conspiracy existed as the government has
alleged existed, then you must proceed to the A, B, C
sections and each of you, or all of you, must unanimously
agree. If you find any one of these existed, you must
all agree not only that the section is the one that you
agree was violated unanimously, but you must also agree
on the act that you believe constitutes the violation of
that particular section. And that’s why you have the
section two over here where it says “did you agree
unanimously on a specific overt act which was committed
in furtherance of the conspiracy to commit each of the
offenses you checked on question one above?” And you
will answer that “yes.” That has to be answered “yes,”
and the reason it has to be answered “yes” is because you
should not fill in the space if you don’t have a unani-
mous agreement as to the violation.

Now, if you have a violation, if you believe that
there is a conspiracy as toSSand cannot agreeSSwell, let
me justSSwell, let’s start that over.

You must unanimously agree upon the statute that you
believeSSor statutesSSit could be A, B, C or it could be
A or B or C. There is a combination of ways this could
occur.

If you agree unanimously upon the statute, let’s go
ahead and check that bloc, as agreeing if you reach
agreement on that, assuming that you believe and find the

8
(...continued)
2. Did you agree unanimously on at least one specific
overt act which was committed in furtherance of the
conspiracy to commit each of the offenses you checked in
question 1 above?

22
 defendants guilty, and then proceed to the second
question which tells you then, do you agree upon a
specific act, the overt act, that constitutes the
violation of the statute. And if I’ve confused you
totally, then you can go back and read the instructions.

Taken as a whole, the court’s instructions provided the jury with

sufficient guidance. The contention that the verbal instruction

amounted to an instruction that the jury find the defendants guilty

is based on creative underlining.

VIII.

We reject the argument that § 15039 is void for vagueness.

The defendants cannot raise a facial challenge to the constitution-

ality of § 1503.10 Thus, all we must consider is an as-applied

9
Section 1503 is reprinted below, with the omnibus clause italicized.

Whoever corruptly, or by threats or force, or by any threatening
letter or communication, endeavors to influence, intimidate, or
impede any witness, in any court of the United States or before any
United States magistrate . . . or any . . . juror, or officer in or
of any court of the Untied States, . . . in the discharge of his
duty, or injures any party or witness in his person or property on
account of his attending or having attended such court or
examination before such officer, commissioner, . . . or on account
of his testifying or having testified to any matter pending therein,
or injures any such . . . juror in his person or property on account
of any verdict or indictment assented to by him, or on account of
his being or having been such juror, or injures any such officer
[or] magistrate . . . in his person or property on account of the
performance of his official duties, or corruptly or by threats or
force, or by any threatening letter of communication, influences,
obstructs, or impedes, or endeavors to influence, obstruct, or
impede, the due administration of justice [violates this statute].

10
United States v. Howard, 569 F.2d 1331, 1336 n.9 (5th Cir.) (limiting
challenges to § 1503 for vagueness to as-applied challenges), cert. denied, 439 U.S.
834 (1978). See also United States v. McElroy, 910 F.2d 1016, 1021 (2d Cir. 1990)
(“Vagueness challenges outside the context of the First Amendment are to be examined
(continued...)

23
challenge.

A penal statute is not unconstitutionally vague if it

“define[s] the criminal offense with sufficient definiteness that

ordinary people can understand what conduct is prohibited and in a

manner that does not encourage arbitrary and discriminatory

enforcement.” Kolender v. Lawson, 461 U.S. 352, 357 (1983). “Void

for vagueness simply means that criminal responsibility should not

attach where one could not reasonably understand that his contem-

plated conduct is proscribed. In determining the sufficiency of

the notice a statute must of necessity be examined in the light of

the conduct which a defendant is charged.” United States v.

National Dairy Corp., 372 U.S. 29, 32-33 (1962) (citations

omitted).

The term “corruptly” is used in § 1503 in its ordinary sense,

describing “[a]n act done with an intent to give some advantage

inconsistent with the official duty and rights of others. . . .”

United States v. Reeves, 752 F.2d 995, 998 (5th Cir. 1985) (citing

United States v. Ogle, 613 F.2d 233, 238 (10th Cir. 1979)), cert.

denied, 479 U.S. 837 (1986). The defendants’ conduct sought to

give their clients an advantage inconsistent with the duty to fully

inform the grand jury. Thus, the conduct falls squarely within the

ordinary meaning of § 1503, giving them notice that their acts were

10
(...continued)
in light of the facts of the case, on an as-applied basis.”).

24
criminalized. United States v. Harriss, 347 U.S. 612, 618 (1954)

(stating that “if the general class of offenses to which the

statute is directed is plainly within its terms, the statute will

not be struck down as vague, even though marginal cases could be

put where doubts might arise”).

The defendants’ reliance on United States v. Poindexter,

951 F.2d 369 (D.C. Cir. 1991), cert. denied, 506 U.S. 1021 (1992),

is misplaced. The statute at issue in Poindexter was 18 U.S.C.

§ 1505.11 Poindexter is distinguishable because the alleged

conductSSlying to Congress without the motive of gaining an

advantage for oneself or anotherSSdid not fall within the core

meaning of “corruptly.” For this reason, and because judicial

interpretation of the statute did not provide guidance to the

word’s meaning, the court concluded that the defendant was not on

sufficient notice that his conduct was prohibited by the statute.

See id. at 379-86. In fact, the Poindexter court specifically

recognized that the conduct in the case sub judice falls within the

core meaning of “corruptly” and would not give rise to a void-for-

vagueness challenge. 951 F.2d at 385-86.

11
18 U.S.C. § 1505 states in pertinent part:

Whoever corruptly . . . influences, obstructs, or impedes or
endeavors to influence, obstruct, or impede . . . the due and proper
exercise of the power of inquiry under which any inquiry or
investigation is being had by either House, or any committee of
either House [violates the statute].

This provision of the statute is referred to as the omnibus clause.

25
 IX.

We affirm a jury verdict if a reasonable trier of fact could

conclude that the elements of the offense were established beyond

a reasonable doubt, viewing all evidence in the light most

favorable to the jury’s verdict and drawing all reasonable

inferences to support the verdict. The evidence need not exclude

every reasonable possibility of innocence. United States v.

Faulkner, 17 F.3d 745, 768 (5th Cir.), cert. denied, 115 S. Ct. 193

(1994).

The crux of Boyle’s challenge is that the conduct that he

allegedly conspired to engage in would not violate § 1503 or

§ 1512. With regard to § 1512, Boyle contends that his interaction

with potential grand jury witnesses would not violate the statute

because he did not engage in misleading conduct toward a witness.

Boyle also contends that his conduct could not violate § 1503

because his behavior was not corrupt.

There was sufficient evidence to support the jury’s determina-

tion that Boyle misled Cescon. Before responding to the subpoena,

Cescon conferred with Ivey and Smith. As a result of those

conversations, he later spoke with Boyle and asked him for the

account numbers. Boyle told Cescon that the foreign accounts may

not be bank accounts. When Cescon asked Boyle for the account

numbers, Boyle lied and told him that he did not know them.

Those two statements alone were sufficient to support the

26
verdict. In addition, the evidence of a pre-existing conspiracy,

and Cescon’s attempts at trial to claim that the accounts may not

have been bank accounts, further supported a conclusion that Boyle

mislead Cescon about the nature of the accounts, and the purpose of

doing so was to convince Cescon to omit the account numbers.

Boyle’s claim that his behavior was not “corrupt” under § 1503

is also without merit. There was sufficient evidence that Boyle,

as Ivey’s lawyer, engaged in an attempt to impede the due adminis-

tration of justice12 for the purpose of gaining an advantage for his

clients. See Reeves, 752 F.2d at 998.13

X.

The defendants challenge the three-level enhancement under

U.S.S.G. § 2J1.2(b)(2) (1992), which applies where “the offense

resulted in substantial interference with the administration of

justice.” The commentary defines “substantial interference” to

include “the unnecessary expenditures of substantial governmental

or court resources.” U.S.S.G. § 2J1.2, comment, note 1.

We review the district court’s application of the sentencing

12
Boyle does not challenge the sufficiency of the evidence that he impeded
the due administration of justice. His only claim is that he did not do so
corruptly.
13
The decision in United States v. Aguilar, 21 F.3d 1475, 1484 (9th Cir.
1994), aff’d on other grounds, 115 S. Ct. 2357 (1995), is inapplicable, as the Ninth
Circuit accepts the ejusdem generis interpretation of § 1503, which limits its reach
to conduct influencing another person. This circuit has rejected that
interpretation. See United States v. Howard, 569 F.2d 1331, 1333 (5th Cir.), cert.
denied, 439 U.S. 834 (1978).

27
guidelines de novo and findings of fact for clear error. United

States v. Harrington, 82 F.3d 83, 86 (5th Cir. 1996). Due

deference is given to the district court’s application of the

guidelines to the facts. Id.

Boyle’s specific complaint is that the court did not make a

specific finding that his conversation with Cescon caused an

“unnecessary expenditure of substantial governmental or court

resources.” Boyle is incorrect. The court specifically relied on

a presentence report (“PSR”) that made such a finding. A PSR

“generally bears sufficient indicia of reliability to be construed

as evidence by the trial judge in making the factual determinations

required by the sentencing guidelines.” United States v. Alfaro,

919 F.2d 962, 966 (5th Cir. 1990). In addition, the court

expressly found that Cescon’s conduct led to a delay in both the

investigation and the criminal trial.

Smith also has failed to demonstrate that the findings were

clearly erroneous. Smith argues that his enhancement was based on

the incorrect finding that Smith had spoken with Grod and Cescon

and had testified to the Houston grand jury.

Smith has failed to demonstrate that the court’s conclusion

that his conduct led to substantial interference is materially

false. There was sufficient evidence to support a finding that

Smith and Ivey coordinated the entire conspiracy, including Boyle’s

discussion with Cescon. In fact, Boyle’s testimony that he

28
appeared at the grand jury at Smith’s request was sufficient to

support an inference that Smith and Boyle worked closely together.

Thus, a conclusion that Smith, through Boyle, attempted to

influence Cescon was not clear error. Moreover, the court properly

relied on the PSR, and the fact that the conspiracy as a whole

resulted in a substantial interference with the administration of

justice, to justify Smith’s enhancement.

AFFIRMED.

29