UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-50645
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLINTON MANGES; DAVID WAYNE MYERS; and CARL HUBERT SHANKLIN,
Defendants-Appellants.
______________________________________________
Appeals from the United States District Court for the
Western District of Texas
______________________________________________
April 15, 1997
Before REAVLEY, GARWOOD, and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
This appeal involves a plot to retain the oil and gas rights
to a parcel of submerged property in Corpus Christi Bay, Nueces
County, Texas, known as tract 350. The indictment alleged that
appellants prevented the leased mineral rights from reverting to
the state by submitting false documents to state regulatory
agencies and making corrupt payments to a state official.
Appellants appeal their convictions and sentences on charges
of conspiracy and mail fraud; their briefs teem with an
overabundance of evidentiary, statutory, and constitutional
challenges. Many of these claims do not merit full discussion. We
are persuaded by only one of appellants’ arguments: Shanklin’s
contention that the conspiracy charge against him was time-barred.
FACTUAL BACKGROUND
Clinton Manges has been described as a legendary figure in
South Texas: an oilman and rancher, wheeler-dealer and political
kingmaker. Born in poverty in Cement, Oklahoma, Manges amassed a
billion-dollar fortune, only to face bankruptcy in 1989 and
criminal charges in the instant case.1 David Wayne Myers, the
ringleader of the scheme alleged in the indictment, was an oil
industry entrepreneur based in San Antonio, Texas. Carl Hubert
Shanklin was an independent contractor who performed “workover”
operations on oil and gas wells. Also named in the indictment was
Benny Joe McLester, who as the “gauger” for tract 350 was
responsible for accurately measuring and reporting its output.
It is unnecessary to detail the various corporate entities
through which Myers wielded control over the operations on tract
350. We note simply that Myers, through companies he controlled,
at relevant times subleased the oil and gas rights to tract 350 and
three adjacent tracts; that his close business associate Morris D.
Jaffe, Jr., acquired interests in the tracts through an assignment
from Myers; and that Myers was instrumental in efforts to convince
state regulators that the lease terms were being met.
1
See, e.g., David McLemore, Oilman Manges Sentenced, DALLAS
MORNING NEWS, Aug. 26, 1995, at A1, available in 1995 WL 9055925.
2
The mineral rights to tract 350 were controlled by the Texas
General Land Office (GLO), which grants subsurface oil and gas
rights throughout Texas in a competitive bid process. Successful
bidders are required to pay the state yearly rental fees, plus
royalties representing a portion of their revenues. Under
applicable state regulations, the holder of an oil and gas lease
must act affirmatively to maintain the rights granted by the state.
The lessee must (1) continuously produce oil and gas; (2) undertake
timely and diligent workover efforts to restore or increase
productive capacity; or (3) pay a “shut-in royalty” to the state,
supported by an affidavit stating that there is no economic market
for the tract’s resources. To put it another way, if a market
exists for a tract’s oil and gas, and if the tract fails to produce
for 60 days and is not worked over during that time, the lease
reverts to the state. Once that happens, the GLO may re-lease the
tract to the highest bidder.
It is undisputed that tract 350 should have reverted to the
state for lack of production at the time of the events described in
the indictment, if not earlier. Myers, Jaffe, and their
colleagues, believing that the lease was worth millions, sought to
prevent its reversion. Rather than meet the requirements imposed
by state law, however, appellants submitted false documents to the
GLO and tried to buy the favor of its chief clerk, Jack Giberson.
Appellants and others tried to prevent the reversion of the
lease by a variety of methods. Specifically, viewing the evidence
in the light most favorable to the verdict, Myers had McLester
3
prepare a series of false production reports claiming that tract
350 had produced various quantities of oil. The false production
figures provided by McLester were duly reported to state regulators
by the company nominally operating the tract.2
Moreover, Myers orchestrated the filing of false shut-in
affidavits with the GLO. Three such affidavits were filed,
claiming variously that the shut-in was based on the well’s lack of
production, a lack of market for its oil, and a severed gas line.
Myers swore out an affidavit on July 31, 1989, stating that
tract 350 had been worked over at intervals of less than 60 days
between June 28, 1988, and July 27, 1989. This affidavit was
supported by daily time records and documents called morning field
reports, prepared and signed by Shanklin. These documents
purported to be contemporaneous records of the work described by
Myers; according to the prosecution’s evidence at trial, however,
they were post hoc fabrications designed to convince the GLO that
the lease to tract 350 had been maintained.
If Shanklin covered Myers’ back in the oil fields of Corpus
Christi Bay, Manges fronted for him in the government halls of
Austin. Starting in the summer of 1988, Manges tried to convince
his contacts in the GLO that the lease to tract 350 had been
maintained. Some time that summer, Manges accompanied Jaffe to the
GLO to discuss tract 350 with Giberson. Starting soon thereafter,
2
The operator of record of an oil and gas lease must report
its monthly production to the Texas Railroad Commission in a “P-1"
report. The GLO relies on the accuracy of these reports, and was
misled when the company operating tract 350 filed reports
incorporating McLester’s false data.
4
in August 1988, Manges made a series of five payments to Giberson
totaling $30,100. The indictment listed the final two payments--
$6,400 on July 11, 1989, and $3,700 on July 31, 1989--as overt acts
in furtherance of the alleged conspiracy.
GLO staff members testified that Giberson did not actually
influence their decisions regarding tract 350. Moreover, it is
undisputed that Giberson did not keep the money; all five payments
were deposited in the bank account of his son, Richard Giberson.
Richard Giberson had been employed by the San Antonio Gunslingers
professional football team; Manges, through a corporation, was the
team’s principal owner. The defense contends that the payments
were partial satisfaction of a $70,000 debt that the Gunslingers
corporation owed Richard.
Appellants’ efforts to retain the lease to tract 350 seemed to
bear fruit. On September 19, 1989, GLO staff geologist Tim Pittman
mailed a letter to Jaffe’s Redfish Bay Operating Co.--the tract’s
operator of record at the time--stating that the lease had been
maintained.
As an epilogue to the conspiracy, Manges discussed tract 350
in two conversations the following spring with a longtime friend,
Crandell Addington. The two friends discussed how Manges had done
his “little magic” to save the lease. They specifically mentioned
that documents were “fixed” and that Jack Giberson would not
approve the lease unless Manges paid his son, Richard, $10,000.
Addington secretly recorded these conversations, which were
introduced at trial by the prosecution.
5
PROCEDURAL BACKGROUND
Appellants and co-defendant McLester were charged in a three-
count indictment filed on September 14, 1994, in United States
District Court.
The first count charged all four defendants with conspiracy to
commit mail fraud and conspiracy to commit bribery. The mail fraud
conspiracy had two alleged goals. Its first object was to deprive
Texas citizens of money or property, i.e., the lease to tract 350
and the additional royalties that the state would earn if the lease
reverted and were rebid. The second object of the mail fraud
conspiracy was to deprive Texas citizens of their intangible right
to the honest services of a government official, later identified
as Jack Giberson. 18 U.S.C. §§ 371 (conspiracy), 1341 (mail
fraud), 1346 (mail fraud involving honest services), & 666
(bribery).
Count two charged McLester, Myers, and Shanklin with mail
fraud. This substantive count incorporated the two theories
underlying the mail fraud conspiracy charged in count one--
deprivation of money or property and deprivation of the intangible
right to honest government services. The mailing alleged in count
two was the September 19, 1989 letter from the GLO to Redfish Bay
Operating Co. stating that the lease to tract 350 had been
maintained. 18 U.S.C. §§ 1341, 1346, & 2 (aiding and abetting).
Count three charged Manges alone with bribery. 18 U.S.C. §
666(a)(2).
Pursuant to a plea agreement, McLester pleaded guilty to count
6
one and testified against appellants at trial. At the close of the
evidence, the district court entered a judgment of acquittal for
Manges on count three. The court held the proof insufficient to
establish that the GLO received more than $10,000 annually in
federal aid, as required to support a federal bribery prosecution.
See 18 U.S.C. § 666(b). In its jury charge, the district court
also deleted the conspiracy to commit bribery from count one.
On March 10, 1995, after a joint trial, Manges was convicted
of conspiracy, and Myers and Shanklin were convicted of both
conspiracy and mail fraud. As discussed below, appellants were
sentenced at a hearing in district court on August 25, 1995.
DISCUSSION
I. Appellant Shanklin’s Statute of Limitations Defense
Shanklin claims that he was prosecuted in violation of the
applicable five-year statute of limitations. See 18 U.S.C. § 3282.
With respect to the conspiracy count only, we agree. Our review is
plenary. United States v. Workinger, 90 F.3d 1409, 1412 (9th Cir.
1996) (citation omitted).
To satisfy the statute of limitations for mail fraud, the
government must prove that the predicate mailing occurred in the
five years before the indictment. United States v. Ashdown, 509
F.2d 793, 798 (5th Cir.), cert. denied, 423 U.S. 829, 96 S.Ct. 48,
46 L.Ed.2d 47 (1975). To satisfy the statute for conspiracy, the
government must prove that a conspirator committed an overt act in
furtherance of the conspiracy in the five years before the
7
indictment. See Grunewald v. United States, 353 U.S. 391, 396-97,
77 S.Ct. 963, 969-70, 1 L.Ed.2d 931 (1957).
Shanklin was indicted on September 14, 1994. Accordingly, the
government was required to show that both the mailing element of
the mail fraud count and at least one overt act in furtherance of
the conspiracy occurred in a span of five years before that date.
The government claims to have met this burden with respect to both
offenses based on the September 19, 1989 letter from the GLO
stating that the lease to tract 350 had been maintained. Shanklin
argues that the GLO letter cannot serve as the predicate for either
crime, and that the government failed to prove any other mailing or
overt act within the limitations period.
A. Mail Fraud
Shanklin argues that the GLO letter cannot provide the basis
for the mail fraud prosecution because the letter was not an
“integral” part of the alleged scheme. See United States v.
Vontsteen, 872 F.2d 626, 628 & n.2 (5th Cir. 1989) (reversing mail
fraud conviction because the mailed invoices were not “integral” to
the scheme) (citation omitted). Shanklin contends that the
statutory period expired five years after the last relevant mailing
mentioned in the indictment: the submission of a false morning
field report to the GLO on July 27, 1989. In his view, the GLO
letter of September 19 merely confirmed that the alleged scheme had
been completed successfully.
We observe at the outset that the mailing in a federal mail
fraud prosecution need not be sent by the defendant or his co-
8
conspirator. It may be sent by a victim of the plot or an innocent
third party, so long as the mailing is “incident to an essential
part of the scheme, . . . or a step in [the] plot.” Schmuck v.
United States, 489 U.S. 705, 710-11, 109 S.Ct. 1443, 1448, 103
L.Ed.2d 734 (1989) (mailing element supplied by duped used-car
retailers submitting title applications to state motor vehicles
bureau). See also United States v. Pepper, 51 F.3d 469 (5th Cir.
1995) (mailing element satisfied by defrauded investors’ mailing
money to defendant).
The success of the fraud alleged in this case depended upon an
affirmative response from the GLO. The scheme’s purpose was to
secure from the state of Texas the continued right to exploit the
mineral resources of tract 350. In our view, a written
confirmation from the GLO was “integral” to the success of the
scheme; it was a necessary step in the plot.
Vontsteen, relied on by Shanklin, does not lead us to a
different conclusion. In Vontsteen we held that the mailing of
invoices by the victims of a completed fraud could not satisfy the
mailing element. However, we recognized that we might have reached
the opposite conclusion had the invoices been “legally operative
documents” that helped the defendant to complete the fraud. The
GLO letter was precisely the sort of “legally operative document”
that we had in mind; it represented title to the mineral resources
of tract 350. As such, it was part and parcel of the fraudulent
scheme. The GLO letter thus satisfied the mailing element. The
government had five years from the mailing to indict Shanklin, and
9
it beat the deadline by less than a week.
B. Conspiracy
Shanklin claims that the September 19, 1989 mailing by the GLO
was not the overt act of a conspirator, and thus cannot be
considered the last overt act of the conspiracy for limitations
purposes. The previous overt acts alleged by the government were
Manges’ payment of $3,700 to Jack Giberson and Myers’ submission of
a false affidavit to the GLO. Both these events took place on July
31, 1989--more than five years before Shanklin was indicted.
Consequently, he contends that the conspiracy charge was untimely.
The text of the federal conspiracy statute supports Shanklin’s
argument. It provides in part:
If two or more persons conspire . . . to commit any
offense against the United States, . . . and one or more
of such persons do any act to effect the object of the
conspiracy, each shall be fined under this title or
imprisoned not more than five years, or both.
18 U.S.C. § 371. The statute thus explicitly provides that for the
crime of conspiracy to be complete, one or more of the conspirators
must have performed an overt act to bring about the object of the
conspiracy. This language cannot be stretched to include the
posting of a letter by a non-conspirator.
We have echoed the statutory text: a conspiracy conviction
requires proof of “[t]he commission of at least one overt act by
one of the conspirators within [the five-year statutory] period in
furtherance of the conspiratorial agreement.” United States v.
Davis, 533 F.2d 921, 926 (5th Cir. 1976).
As the Supreme Court has explained:
10
The function of the overt act requirement in a conspiracy
prosecution is simply to manifest that the conspiracy is
at work, and is neither a project still resting solely in
the minds of the conspirators nor a fully completed
operation no longer in existence.
Yates v. United States, 354 U.S. 298, 334, 77 S.Ct. 1064, 1085, 1
L.Ed.2d 1356 (1957) (internal citation and quotation marks
omitted). In this case, the government failed to show that the
conspiracy was still a going concern in the five years prior to the
indictment. Accordingly, the indictment was untimely, and
Shanklin, having preserved his objection, is entitled to reversal
on Count One.3
II. The Prosecution’s Honest Services Theory
The indictment alleged, and the jury was instructed to
consider, a conspiracy and a fraudulent scheme with two objectives.
The first goal was to obtain money or property through fraudulent
means, in violation of 18 U.S.C. § 1341. The second was to deprive
Texas citizens of their right to the honest services of a state
official, in violation of 18 U.S.C. §§ 1341, 1346. Because the
jury convicted appellants by a general verdict, we cannot determine
whether the jury embraced the first theory, the second, or both.
Appellants contend that this ambiguity compels reversal of
their convictions for three reasons. First, they claim that the
3
Although Manges and Myers each executed a written waiver of
his statute of limitations defense, Manges now seeks reversal of
his convictions due to prejudicial pre-indictment delay. However,
he does not contend that the government delayed in bad faith or to
secure a tactical advantage. We are therefore bound to reject his
claim by the rule established in United States v. Crouch, 84 F.3d
1497, 1500 (5th Cir. 1996) (en banc), cert. denied, ---U.S.---, 117
S.Ct. 736, 136 L.Ed.2d 676 (1997).
11
prosecution’s “honest services” theory is legally invalid. Second,
they claim that even if the theory is valid today, it did not
become good law until the conspiracy was well under way, raising
the possibility of an ex post facto violation. Finally, they
contend that the evidence was insufficient to support their
convictions based on the honest services theory.
A. The Validity of the Honest Services Theory
Appellants claim that the prosecution’s honest services theory
is invalid as a matter of law, and that the jury may have convicted
them on this unsound basis. They demand that their convictions be
vacated under the rationale of Griffin v. United States, 502 U.S.
46, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991).4 Because appellants did
not raise this objection in the district court, the scope of our
review is limited. The issue is whether the district court
committed plain error by submitting the honest services theory to
the jury. See generally FED. R. CRIM. P. 52(b); United States v.
Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United
States v. Calverley, 37 F.3d 160, 162-164 (5th Cir. 1994).
Appellants’ attack on the validity of the honest services
4
In Griffin the petitioner was convicted of a dual-object
conspiracy. The Supreme Court held that the insufficiency of proof
with respect to one of the conspiracy’s objects did not render the
conviction invalid. However, the Court distinguished legal error
from factual insufficiency, explaining:
When . . . jurors have been left the option of relying
upon a legally inadequate theory, there is no reason to
think that their own intelligence and expertise will save
them from that error. Quite the opposite is true,
however, when they have been left the option of relying
upon a factually inadequate theory, since jurors are well
equipped to analyze the evidence.
Griffin, 502 U.S. at 59, 112 S.Ct. at 474 (citation omitted).
12
theory rests entirely on the panel opinion in United States v.
Brumley (Brumley II), 79 F.3d 1430 (5th Cir. 1996), opinion vacated
and reh’g en banc granted, 91 F.3d 676 (5th Cir. 1996). The panel
in Brumley II held that the federal mail fraud statute does not
proscribe conduct which deprives the citizens of a state of the
honest and impartial services of state officials. Id. at 1440.
This was the view of the Supreme Court prior to the passage, in
1988, of 18 U.S.C. § 1346. In McNally v. United States, 483 U.S.
350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), the Court held that the
mail fraud statute was limited in scope to the protection of
property rights, and did not reach the intangible right to honest
services. Id. at 360, 107 S.Ct. at 2882 (construing 18 U.S.C. §
1341). The Court in McNally perceived no constitutional obstacle
to a broader statute, but stated: “If Congress desires to go
further, it must speak more clearly than it has.” 483 U.S. at 360,
107 S.Ct. at 2882.
Congress subsequently enacted Section 1346, which explicitly
brings within the ambit of mail fraud “a scheme or artifice to
deprive another of the intangible right of honest services.” In a
legislative history that has been described as “clear but sparse,”5
members of Congress explained that the purpose of Section 1346 was
to undo the Supreme Court’s statutory interpretation in McNally.
In Brumley, the en banc court is considering whether the amended
mail fraud statute reaches the deprivation of citizens’ right to
5
Geraldine Szott Moohr, Mail Fraud and the Intangible Rights
Doctrine: Someone to Watch Over Us, 31 HARV. J. ON LEGIS. 153, 169
(1994) (footnote omitted).
13
the honest services of public officials.
We need not answer that question today. It is enough to
observe that numerous courts and commentators have interpreted
Section 1346 as validating the honest services theory in the
context of official corruption. See, e.g., United States v.
Paradies, 98 F.3d 1266, 1283 n.30 (11th Cir. 1996), pet. for cert.
filed, 65 USLW 3599 (Feb. 21, 1997) (No. 96-1346); United States v.
Frega, 933 F.Supp. 1536, 1546-47 (S.D. Cal. 1996) (collecting
cases).
Based on the overwhelming weight of authority recognizing the
validity of the honest government services theory, we hold that it
was not plain error to submit that theory to the jury in this case.
B. Ex Post Facto
Appellants correctly observe that even if the honest services
theory is valid today, it did not become good law until November
18, 1988, when Section 1346 took effect. They complain that the
jury may have relied on events predating Section 1346 to convict
them on the honest services theory, in violation of the ex post
facto clause. U.S. CONST. art. I, § 9, cl. 3.
Myers’ and Shanklin’s mail fraud convictions do not violate
the ex post facto clause. Mail fraud is a discrete offense; the
crime is completed when the offending letter is mailed. See United
States v. Pazos, 24 F.3d 660, 665 (5th Cir. 1994) (“Each separate
use of the mails to further a scheme to defraud is a separate
offense.” (citation omitted)). In this case, the predicate mailing
occurred on September 19, 1989--ten months and one day after
14
Section 1346 took effect. Reliance for this purpose on the GLO
letter is not inappropriate, given the evidence that Myers
submitted a false affidavit to the GLO on July 31, 1989, and that
Shanklin falsified field reports as late as July 27, 1989. The
Section 1341 scheme or artifice to defraud extended well beyond the
effective date of Section 1346.
Unlike mail fraud, conspiracy is a continuing offense. United
States v. Bermea, 30 F.3d 1539, 1577 (5th Cir. 1994), cert. denied,
---U.S.---, 115 S.Ct. 1113, 130 L.Ed.2d 1077 (1995). The
conspiracy in this case straddled the effective date of Section
1346. Two of the alleged overt acts occurred before November 18,
1988; most of appellants’ criminal conduct, including the two
payments to Jack Giberson charged in the indictment as overt acts,
occurred after that date. Because there is “substantial” evidence
that appellants participated in the conspiracy after Section 1346
took effect, their prosecution under the honest services theory did
not violate the ex post facto clause. See Bermea, 30 F.3d at 1577-
78 (5th Cir. 1994) (citation omitted) (affirming sentence imposed
under increased statutory maximum that took effect during
conspiracy). Accord United States v. Garfinkel, 29 F.3d 1253 (8th
Cir. 1994) (construing 18 U.S.C. § 1346).
C. Evidence Supporting the Honest Services Theory
Among numerous evidentiary challenges, appellants claim that
the facts adduced at trial were insufficient to support conviction
on the honest services theory. Because the jury may have relied on
that theory, appellants urge reversal of their convictions.
15
There is no need for this court to decide whether the evidence
adequately supports the prosecution’s honest services theory. The
case was submitted to the jury on two alternative, legally valid
theories. If either theory was supported by sufficient evidence,
we are bound to affirm. Griffin, 502 U.S. at 56-60, 112 S.Ct. at
472-74, cited in United States v. Fisher, 22 F.3d 574, 576 (5th
Cir. 1994). As we discuss in the next section, the evidence was
sufficient to support appellants’ convictions on the theory that
they schemed to obtain money or property through false means.
III. Sufficiency of the Evidence
All three appellants claim, on numerous grounds, that the
evidence was insufficient to support their convictions. Having
reviewed all of appellants’ insufficiency claims, we will discuss
only the least implausible; all are unpersuasive.
A. Count One: Conspiracy (Appellants Manges and Myers)6
1. Common Scheme
Appellants claim that there was no proof of the “essential
nature” of the alleged conspiracy. Cf. United States v.
Rosenblatt, 554 F.2d 36, 42 (2d Cir. 1977) (dismissing the
indictment for lack of proof that the defendants conspired to
commit the same fraud). They assert that the evidence was
insufficient to show a coherent scheme to retain the lease to tract
350, particularly in light of the inconsistent stories they told
state officials to explain the tract’s failure to produce.
6
In light of our resolution of Shanklin’s statute of
limitations argument, we need not address his claim that the
evidence was insufficient to support his conspiracy conviction.
16
The fact that the conspirators changed their account in the
face of official skepticism does not negate the existence of a
conspiracy. The government’s explanation makes more sense. The
prosecution posited a conspiracy aimed at concealing appellants’
failure to fulfill the conditions of their lease:
Each co-conspirator had a role. McLester (who pleaded
guilty) furnished phony reports of production. Myers
encouraged McLester’s falsities, and was instrumental in
giving an aura of propriety to false documents that
helped convince GLO that the lease terms had been
satisfied. Shanklin contributed to Myers’ deceit by
preparing bogus reports and invoices reflecting work done
on State Tract 350 in intervals of less than 60 days.
. . . [A]nd Manges distributed the funds to help the co-
conspirators.
On the evidence, a rational jury could have found beyond a
reasonable doubt that the appellants were engaged in a scheme to
retain the lease by fraudulent means.
2. Intent: Foreseeability of the Use of the Mails
Conspiracy to commit mail fraud requires at least the level of
intent necessary for mail fraud itself. United States v. Sneed, 63
F.3d 381, 385 (5th Cir. 1995) (internal citations omitted), cert.
denied, ---U.S.---, 116 S.Ct. 712, 133 L.Ed.2d 667 (1996).
However, there is no specific intent requirement with respect to
the mailing element of mail fraud. United States v. Massey, 827
F.2d 995, 1002 (5th Cir. 1987). The test is one of reasonable
foreseeability: the prosecution need only prove that the
defendants “engaged in a scheme to defraud in which they
contemplated that the mails would likely be used.” Id.
The mailing at issue is the September 19, 1989, letter from
the GLO to Redfish Bay Operating Co., stating that the lease to
17
tract 350 had been maintained. As the government points out, the
object of the conspiracy was to obtain a clean bill of health for
tract 350. The GLO was in Austin; Myers and Jaffe were based in
San Antonio, 75 miles away. The letter’s author, Pittman,
testified that the GLO routinely transacted business by mail.
Appellants contend that this evidence is not enough. They
argue that since none of them was employed by the land office, they
could not have known that the GLO routinely transacted business
through the mail. They also claim that the distance between Austin
and San Antonio does not support the conclusion that the use of the
mails was foreseeable, especially in light of their own habits of
delivering documents by hand and traveling to Austin to do business
with the GLO.
Even if appellants’ argument were not implausible on its face,
the only precedent they cite in its behalf is the first panel
opinion in Brumley. See United States v. Brumley (Brumley I), 59
F.3d 517, 520-22 (5th Cir. 1995), opinion withdrawn and superseded
on reh’g, 79 F.3d 1430, 1432 (5th Cir. 1996), opinion vacated and
reh’g en banc granted, 91 F.3d 676 (5th Cir. 1996). Appellants
insist that the first Brumley opinion is still good law. They are
mistaken.7 See 5TH CIR. R. 41.3; United States v. Pineda-Ortuno, 952
7
In any event, the cases are easily distinguishable. Brumley
involved wire transfers of money from Lufkin, Texas, to Beaumont,
Texas. The panel found it unforeseeable to the defendant that
these transfers would be relayed through a Western Union computer
in Missouri. Absent a foreseeable interstate wire transmission,
the panel found that Brumley’s wire fraud conviction could not
stand. Here, in contrast, all that is required is a foreseeable
use of the mail. Compare 18 U.S.C. § 1341 (mail fraud) with 18
U.S.C. § 1343 (wire fraud).
18
F.2d 98, 102 (5th Cir. 1992) (once rehearing en banc is granted,
“panel decision is vacated and of no precedential value”).
We conclude that the jury could have found beyond a reasonable
doubt that use of the mail was reasonably foreseeable to
appellants.
B. Count Two: Mail Fraud (Myers and Shanklin)
1. False and Fraudulent Reports
Count Two is based in part on evidence that appellants
submitted false production reports, shut-in affidavits, and morning
field reports. Appellants contend that even if these documents
were false, they could not have been fraudulent because they were
not false with respect to “material matters.” They rely on the
Supreme Court’s observation that to be “material,” a statement must
tend naturally “to influence, or [be] capable of influencing, the
decision of the decisionmaking body to which it is addressed.”
United States v. Gaudin, 115 S.Ct. 2310, 2313, 132 L.Ed.2d 444
(1995) (internal citation and quotation marks omitted).
Assuming that materiality is an element of the mail fraud
charged, it was satisfied in this case. It is self-evident that
documents falsely informing the GLO that tract 350 had produced
oil, or had been reworked at timely intervals, would tend to
influence the GLO’s decision regarding the status of the lease.
Appellants insist that their statements were immaterial
because the amount of oil production falsely claimed was inadequate
to maintain the lease. In essence, they claim that their lies were
not big enough. They also claim that the lease had lapsed before
19
the false documents were submitted. These arguments are belied by
the GLO letter itself; the jury could have rationally concluded
that appellants’ false statements influenced, or had a natural
tendency to influence, the GLO’s determination that the lease had
been maintained.
2. Mailing in Furtherance
Myers and Shanklin claim that the evidence was insufficient to
prove that either of them caused a mailing in furtherance of a
scheme to defraud. A defendant “causes” the mails to be used if he
“does an act with knowledge that the use of the mails will follow
in the ordinary course of business, or where such use can
reasonably be foreseen, even though not actually intended . . . .”
Sneed, 63 F.3d at 385 n.4 (quoting Pereira v. United States, 347
U.S. 1, 8-9, 74 S.Ct. 358, 363, 98 L.Ed. 435 (1954)).
We find that the jury could rationally have concluded that
Myers was the driving force behind the effort to retain the lease
on tract 350; that he submitted a false affidavit to the GLO in a
plot to obtain written confirmation that the lease was still good;
and that Shanklin prepared false field reports to support Myers’
affidavits. It is reasonable to infer that the GLO would not have
mailed the confirmation letter of September 19, 1989, but for
appellants’ submission of these false documents. The GLO mailing
was reasonably foreseeable; indeed, it was a desired result of
appellants’ efforts.
IV. Motion to Sever
Each appellant claims that the district court committed
20
reversible error by refusing to try him individually. See FED. R.
CRIM. P. 14. We disagree.
As a rule, defendants indicted together should be tried
together, particularly when they are charged in a common
conspiracy. Zafiro v. United States, 506 U.S. 534, 537, 113 S.Ct.
933, 937, 122 L.Ed.2d 317 (1993); United States v. Stotts, 792 F.2d
1318, 1321 (5th Cir. 1986); United States v. McCord, 33 F.3d 1434,
1451-52 (5th Cir. 1994), cert. denied, ---U.S.---, 115 S.Ct. 2558,
132 L.Ed.2d 812 (1995). Joint trials are not only more efficient
than separate trials but also more just, for they tend to avert
“the scandal and inequity of inconsistent verdicts.” Zafiro, 534
U.S. at 537, 113 S.Ct. at 937.
Where joinder is initially proper, we review the district
court’s refusal to sever for abuse of discretion. See FED. R. CRIM.
P. 8(b); McCord, 33 F.3d at 1452 (quoting United States v.
Faulkner, 17 F.3d 745, 758 (5th Cir.), cert. denied, 115 S.Ct. 193,
130 L.Ed.2d 125 (1994)). To prevail, an appellant must show that:
(1) the joint trial prejudiced him to such an extent that
the district court could not provide adequate protection;
and (2) the prejudice outweighed the government’s
interest in economy of judicial administration.
McCord, 33 F.3d at 1452 (quoting United States v. DeVarona, 872
F.2d 114, 120-21 (5th Cir. 1989)).
Appellants’ claims of prejudice rest in part on the faulty
assumption that no conspiracy existed, or that none was proven.
From that premise, each appellant complains that his trial was
polluted with evidence of his co-defendants’ misdeeds. Separate
trials would have obviated this taint. Of course, we already have
21
determined that the evidence supported the jury’s determination
that a conspiracy existed. While the district court must guard
against undue prejudice, it need not protect conspirators from
evidence of their confederates’ acts in furtherance of their common
illegal aims.
Nevertheless, appellants raise several related contentions
which do not rest entirely on their refusal to believe that the
evidence of a conspiracy was sufficient. We address these claims
in turn.
A. Shanklin and Myers
Shanklin and Myers complain that they were prejudiced by the
evidence of Manges’ cash payments to Jack Giberson. They assert,
“No limiting instruction would suffice to cure such prejudice.” We
disagree. The district court specifically instructed the jury to
reach separate decisions on the guilt or innocence of each
defendant, based on the evidence with respect to that defendant
alone.8 Cautionary instructions of precisely this sort have been
held “sufficient to cure any possibility of prejudice.” McCord, 33
F.3d at 1452 (quoting Faulkner, 17 F.3d at 759).
Shanklin and Myers further claim that Manges was “very
unpopular” in San Antonio, where the trial was held. But there is
8
The district court instructed the jury:
[T]he case of each defendant should be considered
separately and individually. The fact that you may find
one or more of the accused guilty or not guilty of any of
the crimes charged should not control your verdict as to
any other crime or any other defendant. You must give
separate consideration to the evidence as to each
defendant.
22
no hint in the record that Manges’ reputation in the community
resulted in any prejudice to his co-defendants. Shanklin and Myers
derive this argument from the transcript of voir dire, in which
several potential jurors admitting having formed unfavorable
impressions of Manges. Having scoured the record, we are satisfied
that the district court removed any potential jurors whose negative
impressions of Manges might have colored their consideration of the
evidence.9
Shanklin also claims that he was prejudiced by being tried
jointly with Myers, whose role in the scheme was far greater than
his own. We have observed repeatedly that “a quantitative
disparity in the evidence is clearly insufficient in itself to
justify severance.” United States v. Pettigrew, 77 F.3d 1500 (5th
Cir. 1996) (internal quotation marks omitted). See also United
States v. Rocha, 916 F.2d 219, 228 (5th Cir. 1990), cert. denied,
500 U.S. 934, 111 S.Ct. 2057, 114 L.Ed.2d 462 (1991).
The district court, through attentive management of voir dire
and appropriate cautionary instructions to the jury, minimized any
risk of undue prejudice to Shanklin and Myers. Shanklin and Myers
have failed to show that they were prejudiced “to such an extent
that the district court could not provide adequate protection.”
9
See United States v. Harrelson, 754 F.2d 1153, 1175 (5th Cir.
1985) (denying one defendant’s claim of prejudice based on her co-
defendant’s loathsome reputation as a hired killer), cert. denied,
474 U.S. 908, 106 S.Ct. 277, 88 L.Ed.2d 241 (1985). Appellants’
claim is particularly unpersuasive because Myers chose to do
business with Manges, and Shanklin opted to falsify documents in
Myers’ behalf. As we observed in Harrelson, “the circumstance that
one has chosen odious associates seems a dubious sword.” Id.
23
McCord, 33 F.3d at 1452 (citation omitted).10
B. Manges
Manges claims that he was prejudiced in several ways by the
district court’s refusal to grant a severance. First, Manges
claims that he was denied the exculpatory testimony of Shanklin and
Myers because, as co-defendants, they exercised their Fifth
Amendment right not to testify. We do not agree.
Shanklin’s pre-trial offer to testify on Manges’ behalf was
conditioned upon a demand that he be tried first, and thus was not
unequivocal, as required by the fourth prong of the Broussard test.
See United States v. Broussard, 80 F.3d 1025, 1037 (5th Cir.) (to
establish prejudice from joint trial, defendant must show that co-
defendant would in fact testify if severance were granted), cert.
denied, ---U.S.---, 117 S.Ct. 264, 136 L.Ed.2d 189 (1996).11
Second, Manges complains that the denial of his severance
10
Shanklin and Myers also claim that they suffered “prejudicial
spillover” from the use of the Addington tapes as evidence against
Manges on the dismissed bribery count. We reject this argument.
The jury was specifically instructed not to consider the tapes as
evidence against Shanklin and Myers. We have held that “the
pernicious effect [of spillover] . . . is best avoided by precise
instructions to the jury on the admissibility and proper uses of
the evidence introduced by the Government.” Harrelson, 754 F.2d at
1175 (internal citation and quotation marks omitted).
11
On the last day of trial, outside the jury’s presence, Manges
proposed to call both Myers and Shanklin as witnesses. They
indicated that if called, they would invoke their right not
testify. The district court consequently refused to call them and
denied Manges’ renewed motion for severance. This was not an abuse
of discretion. “[T]he district court must balance any prejudice to
the defendant against the court’s interest in judicial economy.”
United States v. Lopez, 979 F.2d 1024, 1035 (5th Cir. 1992)
(citation omitted), cert. denied, 508 U.S. 913, 113 S.Ct. 2349, 124
L.Ed.2d 258 (1993). Given the late hour, the inefficiency would
have been extreme; the testimony’s value was uncertain.
24
motion exposed the jury to prejudicial testimony that McLester had
pleaded guilty in the alleged conspiracy. Counsel for Myers had
indicated that he would seek to impeach McLester’s credibility by
eliciting the fact that he had pleaded guilty and was awaiting
sentencing. The prosecution thus was allowed to elicit the
information first. Manges contends that at a separate trial, he
would not have proffered evidence of McLester’s plea, and that
consequently the prosecution would have been barred from doing so.
Although evidence of a co-conspirator’s conviction is
inadmissable as substantive proof of a defendant’s guilt, it is
“admissible and commonly used for impeachment purposes.” United
States v. Leach, 918 F.2d 464, 467 & n.4 (5th Cir. 1990) (citations
omitted), cert. denied, 501 U.S. 1207, 111 S.Ct. 2802, 115 L.Ed.2d
976 (1991). Leach recognized that the prosecution may elicit
evidence of a co-conspirator’s conviction to “blunt[] the sword of
anticipated impeachment by revealing the information first.” Id.
at 467 (internal citation and quotation marks omitted). See also
United States v. Valley, 928 F.2d 130, 133 (5th Cir. 1991). In
this case, the district court cautioned the jury that the fact that
McLester had pleaded guilty related solely to his credibility, and
was not proof of any other defendant’s guilt. The court did not
abuse its discretion by giving this instruction instead of granting
the more extreme remedy of severance.
We have reviewed Manges’ remaining contentions with respect to
his severance motion. We find them wholly meritless.
V. Jury Instructions
25
Appellants contend that reversal is warranted because the
district court erred in instructing the jury. We review objected-
to jury instructions for abuse of discretion, affording the
district court “substantial latitude” to fashion its charge.
United States v. Gray, 96 F.3d 769, 775 (5th Cir. 1996), cert.
denied, ---U.S.---, ---S.Ct.----, 1997 WL 70921 (Mar. 17, 1997)
(No. 96-7763); United States v. Storm, 36 F.3d 1289, 1294 (5th Cir.
1994), cert. denied, ---U.S.---, 115 S.Ct. 1798, 131 L.Ed.2d 725
(1995). In the absence of a proper objection, we review for plain
error. See FED. R. CRIM. P. 30, 52(b); Gray, 96 F.3d at 775.
A. Constructive Amendment of the Indictment
Appellants argue that by mishandling the jury charge, the
district court constructively amended the indictment, in violation
of their rights under the Fifth and Sixth Amendments. See
generally United States v. Holley, 23 F.3d 902, 912 (5th Cir.)
(defining constructive amendment) (citations omitted), cert.
denied, ---U.S.---, 115 S.Ct. 635, 130 L.Ed.2d 542 (1994); United
States v. Arlen, 947 F.2d 139, 144 (5th Cir. 1991) (citation
omitted), cert. denied, 503 U.S. 939, 112 S.Ct. 1480, 117 L.Ed.2d
623 (1992).
This argument rests on the assertion that despite the
dismissal of the bribery count against Manges, the jury charge
contained “language tracking the elements” of bribery, as defined
in 18 U.S.C. § 666. This assertion is entirely unsupported by the
record. In reality, the district court omitted any reference to
the bribery statute. The court simply permitted the jury to
26
consider two alleged cash payments to Jack Giberson as overt acts
in furtherance of the conspiracy. Contrary to appellants’
contentions, the district court did not “broaden[] the possible
bases for conviction from [those] which appeared in the
indictment.” United States v. Miller, 471 U.S. 130, 138, 105 S.Ct.
1811, 1816, 85 L.Ed.2d 99 (1985) (emphasis omitted). Accordingly,
there was no constructive amendment.
B. Dismissal of the Bribery Count
Appellants also argue that the dismissal of the substantive
bribery count renders their conspiracy convictions infirm. They
reason that the jury may have convicted them of either conspiracy
to commit mail fraud or conspiracy to commit bribery. They assert
that a conspiracy conviction premised on the target offense of
bribery would be “improper” in light of Manges’ acquittal “on the
facts and law of the substantive offense of bribery under § 666.”
This argument is doubly flawed. First, the jury could not
possibly have convicted appellants of conspiracy to commit bribery.
The district court carefully instructed the jury to consider only
two offenses: mail fraud, and conspiracy to commit mail fraud. It
is immaterial that one object of the alleged scheme, to deprive
Texas citizens of their right to honest government services, bears
a passing resemblance to bribery. Second, appellants are
grievously misinformed if they believe that they cannot properly be
convicted of conspiracy once they or their co-defendant has been
acquitted of a related substantive offense. To be convicted of
conspiracy, defendants “need not . . . have committed the crime
27
that was its object.” United States v. Duvall, 846 F.2d 966, 975
(5th Cir. 1988) (citing Braverman v. United States, 317 U.S. 49,
53, 63 S.Ct. 99, 101, 87 L.Ed. 23 (1942)).
The district court held the evidence insufficient to submit
the bribery count against Manges to the jury. This holding does
not provide Manges and his co-defendants an avenue of escape from
criminal liability for the distinct offense of conspiracy.
C. Good Faith Instruction
Shanklin claims that the district court erred by refusing to
instruct the jury that good faith is a defense. The government
argues--and Shanklin does not dispute--that the plain error
standard applies because of Shanklin’s failure to object as
required by FED. R. CRIM. P. 30. See United States v. Adkins, 741
F.2d 744, 748 (5th Cir. 1984), cert. denied, 471 U.S. 1053, 105
S.Ct. 2113, 85 L.Ed.2d 478 (1985) (applying plain error standard to
jury instructions when requirements of Rule 30 are not met).
The district court admonished the jury that before convicting
any defendant, it must find that he acted “knowingly” and
“willfully.” The court defined both these concepts in terms of
intent.12 The jury that convicted Shanklin of mail fraud thus could
not have believed that he participated in the scheme without the
requisite criminal intent, i.e., in good faith. There was no need
12
Specifically, the court defined “knowingly” to mean
“voluntarily and intentionally and not because of a mistake or
[accident].” The court defined “willfully” to mean “voluntarily
and purposely with the specific intent to do something the law
forbids. That is to say, with bad purpose either to disobey or
disregard the law.”
28
for a good-faith instruction, and consequently no error, plain or
otherwise. Storm, 36 F.3d at 1294.
D. Supplemental Pinkerton Instruction
At the conclusion of closing arguments, the district court
supplemented its jury charge with an instruction on co-conspirator
liability. See Pinkerton v. United States, 328 U.S. 640, 66 S.Ct.
1180, 90 L.Ed. 1489 (1946). Myers and Shanklin appeal their mail
fraud convictions on the ground that this supplemental charge
departed from the procedures prescribed in FED. R. CRIM. P. 30.
Specifically, they argue that the post-argument instruction allowed
the jury to consider a theory of criminal liability that defense
counsel had no opportunity to rebut. According to appellants, the
instruction thus deprived counsel of the opportunity to
“intelligently argue the case to the jury.” Cf. United States v.
Mendoza, 473 F.2d 697 (5th Cir. 1973).
Appellants should have requested an opportunity to supplement
their closing arguments in the district court. They did not.
Appellants cannot claim that they were shortchanged an opportunity
to argue the Pinkerton issue when they never requested one.
The remaining challenges to appellants’ convictions do not
merit discussion. We next turn to their sentences.
VI. Sentencing
Appellants claim that the district court sentenced them under
the wrong section of the United States Sentencing Guidelines and
compounded its error by improperly enhancing their offense levels.
We reject these arguments for the reasons that follow.
29
The applicable sentence range under the guidelines is based on
two variables: the offense level, which reflects the gravity of the
crime, and the defendant’s criminal history. See U.S. SENTENCING
GUIDELINES MANUAL, Ch. 5, Pt. A (Sentencing Table) (1994). The
guidelines provide that the base offense level for conspiracy in
violation of 18 U.S.C. § 371 is the same as the base offense level
for the substantive offense that was the conspiracy’s object.
U.S.S.G. § 2X1.1(a). Applying this section, the district court
assigned each appellant a base offense level of 10 pursuant to
U.S.S.G. § 2C1.7, which governs frauds that deprive the public of
its intangible right to the honest services of government
officials.13 The district court then increased each appellant’s
offense level by 8, reflecting the court’s finding that the fraud
“involved[] giving a thing of value to a high level employee of the
General Land Office . . . .” U.S.S.G. § 2C1.7(b)(1)(B).14 Based
on appellants’ total offense level of 18 and their insignificant
13
Each appellant was assigned the same offense level whether
he was convicted of one count or two. In sentencing Myers and
Shanklin, the district court grouped the conspiracy and mail fraud
counts as components of a common criminal scheme or plan. See
U.S.S.G. § 3D1.2(b). Consequently, neither Myers nor Shanklin
suffered an incremental increase in punishment as a result of his
second conviction. See U.S.S.G. § 3D1.3(a). Conversely, our
reversal of Shanklin’s conspiracy conviction does not require
resentencing on his mail fraud conviction; he would have received
the same offense level had he been convicted of mail fraud alone.
14
The pertinent subsection states:
If the offense involved an elected official or any
official holding a high-level decision-making or
sensitive position, increase by 8 levels.
U.S.S.G. § 2C1.7(b)(1)(B).
30
criminal records,15 they were subject to a sentence range of 27 to
33 months. U.S.S.G., Ch. 5, Pt. A (Sentencing Table).
The court sentenced Manges to 27 months in prison for
conspiracy. Myers was sentenced to concurrent 30-month prison
terms for conspiracy and mail fraud. Shanklin was sentenced to
concurrent 8-month terms for conspiracy and mail fraud; the
district court held that his minor role in the offense justified a
downward departure from the applicable sentence range.
These sentences must be upheld unless they were imposed in
violation of law, resulted from an incorrect application of the
guidelines, or departed unreasonably from the applicable sentence
range. United States v. Underwood, 61 F.3d 306, 308 (5th Cir.
1995) (citing United States v. Matovsky, 935 F.2d 719, 721 (5th
Cir. 1991) (citing 18 U.S.C. § 3742(e))). We review the district
court’s interpretation of the guidelines de novo and its underlying
factual findings for clear error. Id. (citing United States v.
Brown, 7 F.3d 1155, 1159 (5th Cir. 1993)).
Appellants claim that the district court erred by sentencing
them as if they had been convicted of conspiring to commit a fraud
involving public corruption. In their view, because no one can
tell whether the jury adopted the honest services theory, they
should have been sentenced under the less onerous guideline for
conspiring to defraud another of money or property. See U.S.S.G.
15
Myers and Shanklin had no prior convictions. Manges was
convicted of making false statements to the Small Business
Administration with respect to an equipment purchase in 1959. The
district court did not assign Manges any criminal history points
based on this offense. See generally U.S.S.G., Ch. 4, Pt. A.
31
§ 2F1.1 (base offense level of 6).
Appellants recognize that the guidelines empower the district
court to sentence them for the more serious of the two charged
conspiracies, provided that the district court itself would have
convicted them on that basis. The guidelines provide that a
defendant convicted of a multiple-object conspiracy count should be
sentenced “as if the defendant had been convicted of a separate
count of conspiracy for each offense that the defendant conspired
to commit.” U.S.S.G. § 1B1.2(d). These hypothetical conspiracy
convictions should be grouped according to Chapter 3, Part D of the
guidelines, which governs multiple counts of conviction. Id.,
commentary, note 4; see also United States v. Fisher, 22 F.3d 574,
576 (5th Cir. 1994). When multiple counts result from a common
scheme, they are deemed a single group and are assigned the offense
level for the most serious offense in the group. Fisher, 22 F.3d
at 576.
However, the operation of Section 1B1.2(d) is restricted by
its commentary, which cautions:
Particular care must be taken in applying subsection (d)
because there are cases in which the verdict or plea does
not establish which offense(s) was the subject of the
conspiracy. In such cases, subsection (d) should only be
applied with respect to an object offense alleged in the
conspiracy count if the court, were it sitting as a trier
of fact, would convict the defendant of conspiring to
commit that object offense.
U.S.S.G. § 1B1.2(d), commentary, note 5. The district court’s
determination of the conspiracy’s object offense “should be
governed by a reasonable doubt standard.” Fisher, 22 F.3d at 577
(quoting U.S.S.G., app. C., amend. 75 (Nov. 1, 1989)).
32
The district court did not state whether it had concluded
beyond a reasonable doubt that appellants were guilty of conspiring
to commit mail fraud on the honest services theory. Nevertheless,
we believe that such a finding is implicit in the district court
record. We have held that findings under Section 1B1.2(d) and note
5 may be either express or implied. See id. at 576 (5th Cir. 1994)
(citing United State v. McKinley, 995 F.2d 1020 (11th Cir. 1993),
cert. denied, --- U.S. ---, 114 S.Ct. 1405, 128 L.Ed.2d 77 (1994)).
In the instant case, the district court held that the offense
“involved[] giving a thing of value to a high level employee of the
General Land Office . . . .” This finding is clear evidence that
in the view of the district court, the conspiracy at issue involved
a deprivation of the public’s right to the honest services of a
state government official. Frauds involving high-level public
officials are a subset of frauds involving public officials; the
district court’s finding in support of the 8-level enhancement thus
presupposes that appellants were guilty of conspiring to commit a
public corruption fraud.16
Finally, appellants claim that even if Section 2C1.7 applies,
the district court erred by enhancing their offense level based on
16
Appellants also claim that Section 1B1.2(d) and its
commentary are unconstitutional because they empower the district
court to usurp the jury’s fact-finding role. See U.S. CONST. amend.
VI. We disagree, essentially for the reasons stated in United
States v. Conley, 92 F.3d 157 (3d Cir. 1996). “[T]here is no Sixth
Amendment right to jury sentencing, even where the sentence turns
on specific findings of fact.” Id. at 166 (quoting McMillan v.
Pennsylvania, 477 U.S. 79, 92, 106 S.Ct. 2411, 2419, 91 L.Ed.2d 67
(1986) (internal citation omitted)). But see United States v.
Bush, 70 F.3d 557 (10th Cir. 1995) (procedure authorized by Section
1B1.2(d) & note 5 violates Fifth and Sixth Amendments) (dicta).
33
the involvement of a high-level public official. U.S.S.G. §
2C1.7(b)(1)(B). This argument rests on appellants’ contentions
that the official, Jack Giberson, never retained any money in
connection with the oil lease and never exercised his authority to
benefit appellants’ interests. This argument is untenable; the
guidelines do not require proof that Giberson kept the money or
wielded his influence corruptly. Enhancement is appropriate if the
offense “involved . . . any official holding a high-level decision-
making or sensitive position . . . .” U.S.S.G. § 2C1.7(b)(1)(B).
It is undisputed that Giberson was a high-level decision-making
official, and the district court expressly found that the scheme
“involved” him. This finding is not clearly erroneous.
CONCLUSION
The judgment is REVERSED with respect to appellant Shanklin’s
conspiracy conviction, and count one against him is hereby
DISMISSED. The judgment of the district court as to appellants’
convictions and sentences is in all other respects AFFIRMED.
34