United States v. Sharpe

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 97-60263

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

SHERI LARA SHARPE,

Defendant-Appellant.

No. 97-60704

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

SHERI LARA SHARPE; THOMAS LESLIE HOLCOMB;
PETER HALAT, JR.; AND KIRKSEY MCCORD NIX, JR.
also known as J R, also known as Junior, also known as Kirk,

Defendants-Appellants.

Appeals from the United States District Court
For the Southern District of Mississippi

October 20, 1999

Before POLITZ, JOLLY and DUHÉ, Circuit Judges.

DUHÉ, Circuit Judge:
 In this criminal appeal, we examine once again the sordid tale

of Kirksey McCord Nix’s (“Nix”) prison-based criminal empire and

the related murders of Vincent and Margaret Sherry. We first

examined these events in United States v. Sharpe, 995 F.2d 49 (5th

Cir. 1993) (“Sharpe I”). Since Sharpe I new facts have come to

light implicating Thomas Leslie Holcomb (“Holcomb”) and Peter

Halat, Jr. (“Halat”) in the Sherrys’ murder. As a result of this

new information a grand jury issued a fifty-two count indictment

against Nix, Holcomb, Halat, and Sheri LaRa Sharpe (“Sharpe”).

Following a new trial (“Sharpe II”), Nix and Sharpe were again

convicted. Additionally, the jury convicted both Holcomb and Halat

for their respective roles in this affair.

I. BACKGROUND

SHARPE I

While serving a life sentence for murder at Angola State

Penitentiary, Nix built a criminal empire from which he hoped to

earn enough money to buy his way out of prison. Although he

dabbled in insurance fraud and drug dealing, Nix’s primary money-

making scheme was a “lonely hearts” scam designed to defraud

homosexual men. Nix and his prison syndicate would place personal

advertisements in national homosexual magazines. When men would

respond to these ads, Nix or one of his associates would indicate

that he was having financial difficulties and needed the

respondent to wire money to a Nix associate outside prison. Nix

acquired hundreds of thousands of dollars from this scam.

Mike Gillich (“Gillich”), the alleged “underworld boss” of

2
Biloxi, Mississippi, aided Nix in his various schemes. Peter

Halat, a Biloxi attorney, maintained a trust account for Nix.

Nix’s girlfriend, LaRa Sharpe also assisted in the schemes. She

worked out of Halat’s office and along with Halat rented a safety

deposit box in which they kept cash generated by Nix’s operations.

In December 1986, Halat told Nix and Gillich that

approximately $100,000 of Nix’s money was missing from the office

trust account. Halat indicated that he suspected Vincent Sherry,

Halat’s former law partner and a Mississippi Circuit Judge, of

stealing the money. Coincidentally, Judge Sherry’s wife Margaret

was a Biloxi mayoral candidate critical of Gillich’s operations.

The prosecution produced evidence that the three men arranged to

have the Sherrys killed. In September 1987 Halat discovered the

Sherrys dead in their home.

At the first trial for fraud and the attendant murders in

1991, the government argued that Nix, with the assistance of

Sharpe, Sharpe’s mother, and Gillich, hired ex-convict John Ransom

(“Ransom”) to kill the Sherrys. Bill Rhodes (“Rhodes”), an

associate of Ransom’s, testified that Gillich had discussed with

him and Rhodes a possible contract murder. Rhodes testified

further that he was out of town during the murders and that later

Ransom told him that he had murdered the Sherrys. At the first

trial, Gillich insisted that Halat had nothing to do with the

homosexual scam or the murders. As a result, the government did

not prosecute Halat. The jury convicted Nix, Gillich, Sharpe, and

Ransom of wire fraud and conspiracy to commit wire fraud. The jury

3
also found Nix and Gillich guilty of travel in aid of murder-for-

hire. We affirmed these convictions in Sharpe I, 995 F.2d 49 (5th

Cir. 1993).

SHARPE II

Nix continued his schemes from jail after the 1991 trial. The

government also continued its investigation into the scam and

murders. This time, the government concentrated its efforts on

determining what role Halat, by then the Mayor of Biloxi, played in

the crimes. In 1994 Mike Gillich turned state’s evidence in

exchange for a reduction of his Sharpe I sentence. Gillich

admitted that Halat was involved in the scams and the murders.

Moreover, Gillich indicated that it was not Ransom who had murdered

the Sherrys1; but, rather, Thomas Holcomb, a contract killer hired

by Gillich. While the government was procuring Gillich’s

testimony, it was negotiating with Robert Wright (“Wright”) for his

testimony concerning a number of drug deals that he had engaged in

with Nix and his associates. In the end, the government granted

Wright full immunity for his testimony.

As a result of its further investigations and Gillich’s

testimony, the government brought a new indictment against Nix,

Sharpe, Halat, and Holcomb in 1996. The indictment charged Nix

with racketeering, conspiracy to violate the racketeering statute,

fraud, conspiracy to commit wire fraud, money laundering, and

conspiracy to obstruct justice. It charged Sharpe with

1
Gillich insisted that Ransom was involved in the planning of
the murders, but did not actually kill the Sherrys.

4
obstruction of justice and conspiracy to obstruct justice for false

testimony she gave in the 1991 trial. It charged Halat with

obstruction of justice, conspiracy to obstruct justice based on

false statements made during the 1991 investigation and trial

testimony, conspiracy to violate the racketeering statute,

racketeering, and conspiracy to commit wire fraud. Finally, the

indictment charged Holcomb with conspiracy to violate the

racketeering statute and conspiracy to obstruct justice.

After a lengthy trial, the jury began deliberations on July

11, 1997. During deliberations some of the jurors complained that

one of the jurors was making inappropriate sexual remarks and was

refusing to participate in the deliberative process. The judge

overruled a defense motion for a mistrial and investigated the

alleged juror misconduct. Satisfied with his investigation of the

matter, the trial judge sent the jurors back for further

deliberations. On July 16, 1997 the jury rendered a partial guilty

verdict on all of the charges against Nix, Sharpe, and Holcomb and

Halat’s obstruction of justice and conspiracy to obstruct justice

charges. The judge gave the jury an Allen charge and instructed

them to continue deliberating on the charges remaining against

Halat. On July 17, 1997 the jury found Halat guilty of conspiracy

to commit wire fraud and conspiracy to violate the racketeering

statute. Each defendant now challenges his or her convictions on

multiple grounds.

II. ISSUES RAISED BY MULTIPLE DEFENDANTS

5
A. Motion for Mistrial Based on Jury Misconduct

After three days of jury deliberation, the court advised the

parties that it had received several complaints concerning conduct

of juror number six. When a juror complained to the marshal, the

marshal instructed the juror to put his complaints in writing for

the court. The complaints alleged that juror number six used lewd

and sexually explicit language towards other jurors, made sexually

explicit comments about trial participants, behaved rudely, and

made his decision based on factors outside of the evidence. The

court, in the presence of the lawyers and defendants, questioned

each juror individually, asking each to specify any incidents of

sexual misconduct, intimidation, or the interjection of extrinsic

factors into the deliberative process by juror number six. After

the individual inquiries, the judge recalled all the jurors to the

courtroom, and urged them to consider the evidence, to deliberate,

and to act civilly. Finally, the judge polled the jurors, asking

each if they could be impartial, fair, follow the court’s

instructions, and base their verdict only on the evidence and the

law. Each juror responded affirmatively.

The defendants several times objected unsuccessfully to the

judge questioning the jurors, recommending instead that the judge

respond in writing instructing the jury to follow the court’s

instructions. The government several times moved unsuccessfully to

remove juror number six.

The defendants contend that juror misconduct directly

6
impacting the deliberative process warranted a mistrial.2 We

review a district court’s decision to hold a hearing to determine

whether juror misconduct has occurred for abuse of discretion. See

United States v. Chiantese, 582 F.2d 974, 978 (5th Cir. 1978). The

district court did not abuse its discretion in investigating

complaints of sexual harassment, intimidation, and reliance on

extrinsic evidence. In addition, the record does not show that

questioning the jurors in any way impacted the deliberative

process. On the contrary, Judge Pickering proceeded in a very

careful and conscientious manner. He prefaced each inquiry by

reminding the jurors that they were the ultimate judges of fact and

that they should not be influenced by anything he said or did. He

also warned the jurors not to reveal the details of the

deliberative process in their responses. Finally, he consulted

with the lawyers throughout, giving thoughtful consideration to

their suggestions.

B. Sharpe’s and Holcomb’s Motion for Severance

The district court denied Sharpe’s and Holcomb’s motion to

sever. Sharpe asserts that she suffered specific and compelling

prejudice from being tried jointly with Nix and Holcomb. Sharpe

contends that: she was the only defendant not indicted on the drug

conspiracy charge which was the primary focus at trial; she was not

2
The defendants jointly moved for a mistrial prior to the
district court individually questioning the jurors, and Sharpe
again moved for mistrial when, at the end of the district court’s
questioning, the district court did not remove any jurors.

7
charged with murder or conspiracy to murder the Sherrys; and

evidence with no relevance to charges against Sharpe predominated

at trial.

Holcomb contends that the government did not have adequate

evidence to convict him as the trigger man, so it used the RICO

conspiracy charges and voluminous evidence unrelated to him to hold

him guilty by association. Holcomb also contends that his right to

a fair trial was similarly prejudiced because he was tried with Nix

and Sharpe, both of whom previously had been tried and convicted.

He also complains he was denied the use of exculpatory evidence by

his co-conspirators, and his motions for a separate trial were

denied without a limiting instruction to the jury to consider only

the evidence against him.

We review a district court’s denial of severance for abuse of

discretion. See United States v. Hare, 150 F.3d 419, 426 (5th Cir.

1998). A defendant must show “specific and compelling prejudice

against which the district court could not provide adequate

protection, and that this prejudice resulted in an unfair trial.”

See United States v. Mitchell, 31 F.3d 271, 276 (5th Cir. 1994)

(citations omitted).

Sharpe’s list of witnesses who made no reference to Sharpe and

her assertion that charges against her were peripheral to the

primary focus of the trial do not amount to specific and compelling

proof of prejudice. Furthermore, neither do Holcomb’s allegations

of prejudice regarding guilt by association, the denial of

exculpatory evidence and the lack of limiting instructions to the

8
jury.

C. Government Testimony Violating 18 U.S.C. § 201(c)(2)

All four defendants assert that Gillich’s and Wright’s

testimony should have been suppressed, because the government

criminally bribed them to testify as government witnesses. The

government agreed to reduce Gillich’s twenty-year prison sentence

for a prior conviction to time served, to dismiss bribery charges

against Gillich and others, and to refrain from indicting Gillich’s

daughter and son-in-law. The government granted Wright complete

immunity. 18 U.S.C. § 201(c)(2) creates criminal penalties for

bribing witnesses, and defines bribery as “[d]irectly or

indirectly, giv[ing], offer[ing], or promis[ing] anything of value

to any person, for or because of the testimony under oath . . .

given or to be given . . . as a witness upon a trial . . . .” The

defendants note that the government has given Gillich and Wright

something of value, namely freedom, because of their testimony

against the defendants in this trial.

We review the bribery issue for plain error, since the

defendants failed to object at trial. See United States v. Haese,

162 F.3d 359, 366 (1998). This argument is foreclosed by our

authority that Section 201(c)(2) does not apply to government plea

bargains in exchange for testimony. See id. at 367-68.

III. SHERI LARA SHARPE

A. Motion to Dismiss the Indictment

9
 In 1991, the government indicted Sharpe for and a jury

convicted her of conspiracy to commit wire fraud and conspiracy to

commit murder-for-hire. In 1996, the government indicted Sharpe

for and a jury convicted her of seven counts of obstruction of

justice3 and one count of conspiracy to obstruct justice. Sharpe

moved to dismiss the indictment, asserting that: (1) Double

Jeopardy barred her prosecution; (2) the substantive obstruction of

justice charges failed to state a claim under 18 U.S.C. § 1503; and

(3) were multiplicious.

1. Double Jeopardy

Sharpe argues that Count I4 of the 1991 indictment covered

both the 1996 substantive obstruction of justice charges and the

conspiracy to obstruct justice charge.

A subsequent prosecution avoids the Double Jeopardy bar by

3
The substantive obstruction counts arise from separate
portions of Sharpe’s testimony at the 1991 trial. Count 3 involves
Sharpe’s testimony that she never made a three-way call to any
victim of the homosexual scam. Count 4 involves Sharpe’s testimony
that she did not participate in the homosexual scam after Easter of
1986. Count 5 involves Sharpe’s testimony that she never delivered
money to Gillich. Count 7 involves Sharpe’s testimony that she
did not use legal materials in Halat’s and Sherry’s office to
enhance participation in the homosexual scheme. Count 8 involves
Sharpe’s testimony that she had never possessed a silencer. Count
10 involves Sharpe’s testimony that she never discussed the scam
with Gillich. Count 11 involves Sharpe’s testimony that Halat
had no knowledge of the homosexual scam.
4
Count I charged Sharpe with conspiracy to commit wire fraud
and conspiracy to commit murder-for-hire, and stated that “[i]t was
. . . part of the conspiracy that the co-defendants, co-
conspirators and confederates cover up and conceal the objectives
of the conspiracy and their involvement therein.” Count I cited
Sharpe’s receipt of scam money from a Nix confederate in January
and February 1986 as an overt act.

10
satisfying the Blockburger same-elements test.5 Blockburger v.

United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

See also United States v. Dixon, 509 U.S. 688, 697, 113 S.Ct. 2849,

125 L.Ed.2d 556 (1993). Under the Blockburger test, each offense

must contain an element not contained in the other; if not, they

are the same offense within the Clauses’ meaning and double

jeopardy bars subsequent punishment or prosecution. Id. at 688.

The elements of a Section 371 conspiracy are: (1) an agreement

between the defendant and one or more other persons to violate a

law of the United States; (2) an overt act by one of the

conspirators in furtherance of the conspiracy; and (3) the

defendant’s intent to further an unlawful objective of the

conspiracy. See 18 U.S.C.A. § 371 (West 1984); United States v.

Razo-Leora, 961 F.2d 1140, 1144 (5th Cir. 1992). The relevant

“laws of the United States” for the purpose of the 1991 indictment

were murder-for-hire6 and wire fraud.7 The elements of obstruction

5
The Supreme Court developed the Blockburger test, a rule of
statutory construction triggered when the same conduct violates
more than one statutory provision. See Garrett v. United States,
471 U.S. 773, 778-79, 105 S.Ct. 2407, 85 L.Ed.2d (1985). The Court
noted that “[i]nsofar as the question is one of legislative intent,
the Blockburger presumption must of course yield to a plainly
expressed contrary view on the part of Congress.” Id. at 779.
6
The elements of murder to hire are: (1) traveling or
causing another to travel in interstate or foreign commerce, or
using or causing another to use the mail or other facility of
interstate or foreign commerce; (2) with intent that a murder be
committed in violation of the laws of any State or the United
States; and (3) as consideration for the receipt of pecuniary value.
See 18 U.S.C.A. § 1958 (West Supp. 1998).
7
The elements of wire fraud are: (1) the defendant knowingly
participated in a scheme to defraud; (2) use of interstate wire
communications to further the scheme; and (3) the defendant

11
of justice are: (1) a judicial proceeding was pending; (2) the

defendant knew of the judicial proceeding; and (3) the defendant

acted corruptly with the specific intent to influence, obstruct, or

impede that proceeding in its due administration of justice. See

18 U.S.C.A. § 1503 (West 1984).

Double Jeopardy does not bar the 1996 substantive obstruction

counts, because they survive the Blockburger test. Regarding the

Blockburger test, obstruction of justice requires specific intent

to obstruct justice and conspiracy does not, while conspiracy

requires an agreement between two or more people and obstruction of

justice does not.

The 1996 conspiracy to obstruct justice count also survives

the Blockburger test. Regarding the Blockburger test, the 1991

conspiracy count required an agreement to further the wire fraud

and murder-for-hire schemes, while the 1996 conspiracy count did

not; the 1996 conspiracy count required an agreement to further the

obstruction of justice scheme, while the 1991 conspiracy count did

not.

The parties vigorously disputed in brief and at oral argument

whether one or two conspiracies existed for Double Jeopardy

purposes. We need not resolve this issue, since even if only one

conspiracy existed, “a person’s participation in a conspiracy ends

when that person is arrested for his role in the conspiracy. . . .

‘[F]urther [participation in an] old conspiracy after being charged

intended some harm to result from the scheme. See 18 U.S.C.A. §
1343 (West 1984); United States v. Powers, 168 F.3d 741, 746 (5th
Cir. 1999).

12
with that crime becomes a new offense for purposes of a Double

Jeopardy claim.’” United States v. Dunn, 775 F.2d 604, 607 (5th

Cir. 1985) (internal citations and quotes omitted). Sharpe’s false

testimony occurred during the wire fraud and murder-for-hire trial,

after she was arrested for conspiracy to commit wire fraud and

murder-for-hire. Thus, even assuming one conspiracy, further

participating in that conspiracy by falsely testifying constituted

a new offense for Double Jeopardy purposes. Although the

conversation with her confederate occurred before the 1991

indictment, the government did not prosecute Sharpe for that

conversation. See United States v. Felix, 503 U.S. at 387.

2. Failure to State a Claim Under 18 U.S.C. § 1503

Sharpe argues that, as a matter of law, perjury at trial alone

does not obstruct the clear administration of justice. Therefore,

the indictment failed to state a violation of 18 U.S.C. § 1503 and

should be dismissed. We disagree. “[W]e defined the statutory

term ‘administration of justice’ as ‘the performance of acts

required by law in the discharge of duties such as appearing as a

witness and giving truthful testimony when subpoenaed.’ . . . The

perjurious witness can bring about a miscarriage of justice by

imperiling the innocent or delaying the punishment of the guilty.”

United State v. Griffin, 589 F.2d 200, 203 n.4, 204 (5th Cir.

1979). Sharpe’s efforts to distinguish false testimony at trial

from the false testimony at a grand jury proceeding in Griffin are

not persuasive, since false testimony in either venue may

13
“imperil[] the innocent or delay[] the punishment of the guilty.”

Id. at 204.

Alternatively, Sharpe challenges the sufficiency of the

evidence of her specific intent to impede the administration of

justice. We review a challenge to the sufficiency of the evidence

by viewing the evidence in the light most favorable to the verdict.

We affirm if a rational trier of fact could have found all

essential elements of the crime beyond a reasonable doubt. United

States v. Sultan, 115 F.3d 321, 324 (1997). Under Section 1503, an

act with the “natural and probable effect” of interfering with the

due administration of justice satisfies the intent requirement for

obstruction of justice. United States v. Aguilar, 515 U.S. 592,

599, 115 S.Ct. 2357, 132 L.Ed.2d 2357 (1995). This record makes

clear that a reasonable jury could have found that Sharpe’s false

testimony concerning Gillich’s, Halat’s, and her own involvement in

the wire fraud and murder-for-hire scheme had the natural and

probable effect of interfering with the due administration of

justice.

3. Multiplicious Substantive Obstruction of Justice Charges

Sharpe asserts that the seven false responses cited in the

indictment were not separate, distinct acts. They were part of a

continuous scheme or transaction, evidenced by the responses all

being given during the same trial, on the same day, and, according

to the government, all for the purpose of covering up the wire

fraud and murder conspiracies. Therefore, they could support only

14
one charge.

Charging a single offense under more than one count of an

indictment is multiplicious and raises the Double Jeopardy specter

of multiple punishments. See United States v. Soape, 169 F.3d 257,

266 (5th Cir. 1999). But an obstruction of justice indictment is

not multiplicious when it contains charges for separate and

distinct acts of perjury, even if the acts are all related and

arise out of the same transaction or subject matter, if they

require different factual proof of falsity. See United States v.

Harrelson, 754 F.2d 1182, 1184 (5th Cir. 1985) (noting separate

perjury charges for separate false declarations are not

multiplicious); United States v. DeLaTorre, 634 F.2d 792, 795 (5th

Cir. 1981) (same); United States v. Nixon, 634 F.2d 306, 313 (5th

Cir. 1981) (same). However, separate counts based on multiple

answers to a rephrased question would be multiplicious. See Id. at

313. In this record each of the substantive obstruction counts

cites a separate instance of false testimony, requiring different

factual proof of falsity. See fn. 3 supra. Therefore, the

obstruction counts are not multiplicious.

IV. NIX AND HALAT

A. Count 1 - RICO

Count 1 alleges the following: Nix, Cook, Halat, Holcomb,

Sharpe (unindicted), and others known and unknown constituted an

enterprise, a group of individuals associated in fact which engaged

in various criminal activities affecting interstate and foreign

15
commerce, including 18 U.S.C. § 1343 (wire fraud), 18 U.S.C. § 1503

(obstruction of justice), 18 U.S.C. § 1512 (obstruction of

justice), 18 U.S.C. § 1952(a) (interstate travel in aid of

racketeering), 18 U.S.C. § 1956(a)(1)(A)(i) (money laundering), 21

U.S.C. § 841(a) (drug trafficking), 21 U.S.C. § 846 (conspiracy to

traffic drugs), Miss. Code Ann. § 97-3-19 (1972), and Miss. Code

Ann. § 97-1-1 (1972). The purposes of the enterprise included

enriching the members and associates of the enterprise and

generating funds for procuring Nix’s release from prison. These

defendants conspired to violate 18 U.S.C. § 1962(c) by conducting

and participating, directly and indirectly, in the conduct of the

affairs of the enterprise, through a pattern of racketeering

activities. The pattern of racketeering activity includes the

following acts: the Sherry murder conspiracy and murders; the pre-

Sharpe I homosexual scam; the drug conspiracy; obstruction of

justice; and the post-Sharpe I homosexual scam.

Nix and Halat moved to dismiss Count 1 as duplicitous,

asserting that it alleged multiple conspiracies rather than one

RICO conspiracy. An indictment is duplicitous if “it joins in a

single count two or more distinct offenses.” United States v.

Baytank, 934 F.2d 599, 608 (5th Cir. 1991). We review such claims

de novo. See United States v. Trammell, 133 F.3d 1343, 1354 (10th

Cir. 1998). We assess the indictment to determine whether it can be

read to charge only one violation in each count. See United States

v. Mastelotto, 717 F.2d 1238, 1244 (9th Cir. 1983). The government

can not “combine totally unrelated agreements and overt acts in a

16
single RICO conspiracy.” See United States v. Sutherland, 656 F.2d

1181, 1194 (5th Cir. 1981). However, if there is a single

“agreement on an overall objective,” multiple conspiracies may be

tried as a single enterprise conspiracy under RICO. Id. at 1192-

93. This indictment alleges enriching the members and associates of

the enterprise and generating funds for procuring Nix’s release

from prison as overall objectives of the conspiracy. It also

alleges that conspiring to kill and killing the Sherrys, the pre-

Sharpe I homosexual scam, the drug conspiracy, obstruction of

justice, and the post-Sharpe I homosexual scam promoted these

overall objectives. Therefore, Count One can be read to allege

only one violation.

Alternatively, Nix and Halat assert that even if the

indictment can be read to allege only one violation, the government

proved multiple conspiracies at trial, creating a fatal variance

from the one conspiracy alleged in the indictment. “A variance

results when the charging terms of the indictment remain unaltered,

but the evidence at trial proves facts other than those alleged in

the indictment.” United States v. Ramirez, 145 F.3d 345, 351 (5th

Cir. 1998). A reversal based on variance between the indictment

and proof requires two findings: (1) that the trial evidence

actually proved multiple conspiracies, and (2) that the variance

affected a substantial right of the appellant. See United States

v. Franklin, 148 F.3d 451, 459 (5th Cir. 1998). Assuming without

deciding that the trial evidence proved multiple conspiracies,

neither defendant proved in this record that any such variance

17
affected a substantial right.

B. Count 51

Count 51 alleges the following: Beginning in 1985 and

continuing until October 26, 1996, the date of the indictment, Nix

and Halat conspired to devise a scheme to defraud by means of wire

(telephone and telegraph) in violation of 18 U.S.C. § 1343. Nix

and his confederates advertised in periodicals soliciting help,

fraudulently claiming they needed financial help to relocate,

travel, and for other expenses. Then they called the respondents

and had them wire funds, either through Western Union or by wire

transfer. The indictment specifically references 66 wire transfers

covering the periods from January 1, 1986 to April 30, 1986 and

from September 15, 1988 to September 22, 1988. The funds were

delivered to Halat and others, for the use and benefit of Nix and

the enterprise. Halat and others maintained and disbursed the

funds as Nix directed. Overt acts included homosexual scam

activity in 1986 and 1988, money laundering activities,8 homosexual

scam activity in 1986 and 1992, homosexual scam activity in 1985

and 1989.

Nix and Halat unsuccessfully moved to dismiss Count 51 as

duplicitous, asserting that the count alleged two separate

conspiracies rather than one conspiracy. We affirm because the

evidence clearly shows that wire fraud conspiracy charged in count

8
The district court dismissed the money laundering charges as
not supported by any evidence.

18
51 did not end with Nix’s conviction; rather, the evidence supports

a single, on-going conspiracy.

V. NIX, HOLCOMB, AND HALAT

Nix, Holcomb, and Halat argue that the statute of limitations

expired before return of the indictment on October 22, 1996 on

Count 1 RICO conspiracy and/or Count 50 and 51 wire fraud

conspiracy. The limitations period for RICO offenses is five years

which begins running upon the accomplishment or abandonment of the

objectives of the conspiracy. United States v. Coia, 719 F.2d

1120, 1124 (11th Cir. 1983). Nix and Halat argue that the

government declared the conspiracy over in Sharpe I in May 1996.

Nix contends that the only acts after Sharpe I were concealment,

which are not part of the conspiracy. Holcomb suggests that the

only acts occurring within the prescription period were the acts of

concealment and an allegedly threatening letter written by Cook

(another co-conspirator) to Swetman (a witness). However, he

contends, none of these acts were done in furtherance of the

conspiracy and thus the statute of limitations was not tolled.

We review limitations challenges for the sufficiency of the

evidence to support them because the scope of the conspiracy and

membership in it are questions of fact for the jury. We review a

challenge to the sufficiency of the evidence by viewing the

evidence in the light most favorable to the verdict. We affirm if

a rational trier of fact could have found all essential elements

beyond a reasonable doubt. Sultan, 115 F.3d at 324. However, the

plain error standard applies to Nix’s and Halat’s limitations

19
claims because they were not raised before trial. United States v.

Mulderig, 120 F.3d 534,540 (5th Cir. 1997).

On this record we find that there was sufficient evidence to

find that the defendants were involved in ongoing crimes that

tolled the limitations period. The conspiracy was still in

existence in 1992 when Nix and another prisoner received money from

the new and already existing homosexual scam victims. Holcomb

offered to assist Gillich during his Sharpe I difficulties, showing

that he was still willing to assist in the larger RICO and

obstruction of justice conspiracies. The acts done to conceal the

completed crimes were part of the conspiracy and thus tolled the

limitations period. Halat’s acts of concealment, such as

committing perjury, clearly were acts done in furtherance of the

main criminal objectives of the conspiracies.

VI. THOMAS LESLIE HOLCOMB

A. Evidentiary Errors

We review admission and exclusion of evidence for abuse of

discretion. See United States v. Skipper, 74 F.3d 608, 612 (5th

Cir. 1996). “[E]ven if we find an abuse of discretion in the

admission or exclusion of evidence, we review the error under the

harmless error doctrine.” Id. Evidentiary rulings must be

affirmed unless they affect the complaining party’s substantial

rights. See id. Holcomb argues that, considered as a whole, the

district court’s evidentiary errors warrant a new trial. See

United States v. Riddle, 103 F.3d 423, 434-35 (5th Cir. 1997)

20
(cumulative effect of evidentiary errors warranted a new trial).

First, Holcomb maintains that the trial court erred by

excluding the testimony of Bobby Joe Faubion (“Faubion”). Holcomb

argues that Faubion’s testimony would have supported his claim that

John Ransom committed the murders. The proffered testimony was:

(1) Faubion had a phone conversation with Ransom; (2) Ransom told

Faubion that Halat and Nix approached him about killing a judge;

(3) Ransom did not mention Holcomb’s name; and (4) Faubion did not

hear Holcomb’s name in conversations with Nix and others.

Fed R. Evid. 403 provides that “[r]elevant evidence may be

excluded if its probative value is substantially outweighed by the

danger of unfair prejudice . . . or needless presentation of

cumulative evidence.” Holcomb offers nothing to rebut the district

court’s finding that the proffered testimony’s prejudice to the

other defendants substantially outweighed its probative value.

Holcomb was able to use other evidence to advance his “other

gunman” defense. Accordingly, we conclude that the district court

did not abuse its discretion by excluding Faubion’s testimony. We

thus need not address the court’s other reasons for excluding the

testimony.

Second, Holcomb contends that the district court erred by

refusing to admit letters of recommendation written by the

Government on behalf of Bill Rhodes (“Rhodes”). The district court

did not refuse to admit the letters but, rather, reserved its

ruling on their admissibility. Assuming the letters were

admissible, Holcomb invited error by failing to renew his offer of

21
proof at trial.

Third, Holcomb argues the district court erred by refusing to

admit exculpatory FBI lab reports relating to hair, fiber, blood,

and print analysis done by FBI lab examiners. Arguing that the

reports were admissible under Fed. R. Evid. 803(8), the public

records exception to the hearsay rule, Holcomb contends that the

reports showed that he was not a match with the samples taken from

the crime scene.9 Holcomb’s reliance on the public records

exception is misplaced. Rule 803(8)(B) excludes “matters observed

by police officers and other law enforcement personnel” in criminal

cases. Further, the district court permitted Holcomb to publish

the contents of the reports to the jury. Thus, Holcomb has not

shown that he was prejudiced by the exclusion of the reports

themselves.

Fourth, Holcomb argues Brett Robertson’s (“Robertson”) in-

court identification was too suggestive because of a newspaper

article and photo Robertson got from his mother. After seeing the

newspaper photo, Robertson advised the government that the photo of

Holcomb in the newspaper was the same person he saw driving a Ford

on September 14, 1987, the night of the Sherry murder. Holcomb

argues that a conviction based in part upon an eyewitness’

photographic identification may be set aside if the procedure was

so impermissibly suggestive as to give rise to a substantial

likelihood of irreparable misidentification. United States v.

9
At trial, Holcomb relied on the Fed. R. Evid. 803(6), the
business records exception.

22
Fletcher, 121 F.3d 187, 194 (5th Cir. 1997). However, Fletcher is

inapplicable because it involved the issue of a photographic line

up prepared by police. In contrast, Robertson’s encounter with

Holcomb’s photograph was unplanned and unexpected, and thus did not

give rise to a due process challenge. United States v. Seader, 440

F.2d 547, 550 (5th Cir. 1971). Holcomb also contends that the

district court should have permitted him to employ an expert

witness to challenge Robertson’s testimony. However, Holcomb has

not shown that the court was obligated to grant the defendant

assistance of an expert under these circumstances. United States

v. Williams, 998 F.2d 258, 263 (5th Cir. 1993)

Fifth, Holcomb argues that the trial court erred by permitting

Baylis, Putnam, Denike, and Osborne to testify about Holcomb’s

other crimes and bad acts. See Fed. R. Evid. 404(b). We review

alleged Rule 404(b) violations under the two-pronged test of United

States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978). To be

admissible, (1) the extrinsic evidence must be relevant to an issue

other than the defendant’s character and (2) the probative value of

the evidence may not be substantially outweighed by undue

prejudice. See id.; Fed. R. Evid. 403 (stating that relevant

evidence may be excluded if “its probative value is substantially

outweighed by the danger of unfair prejudice”). Regarding the

second prong, the district court made the requisite Rule 403

determination. We consider the first prong in greater detail.

Baylis and Putnam were inmates who testified that Holcomb

admitted to them that he killed the Sherrys. The district court

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allowed Baylis and Putnam to testify that Holcomb also admitted to

being arrested in Florida and shooting a “snitch” in Texas. Baylis

also testified that he knew Holcomb in the 1970's when Holcomb was

allegedly involved in stealing weapons. The district court

permitted Officer Denike to confirm the details of Holcomb’s

Florida arrest. Holcomb argues that allowing Baylis, Putnam, and

Officer Denike to testify about crimes and bad acts that were not

related to the Sherry murders was error because “[e]vidence of

other crimes, wrong, or acts is not admissible to prove the

character of a person in order to show action in conformity

therewith.” Id. The problem with Holcomb’s argument is that the

testimony about his other crimes and bad acts was not offered to

prove that Holcomb acted in conformity with his bad character. See

id. (stating that “[e]vidence of other crimes, wrongs, or acts . .

. may . . . be admissible for other purposes, such as proof of

motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident.”). Instead, the

evidence was offered to show that Baylis and Putnam had information

that they could only have learned from Holcomb, corroborating their

claim that Holcomb confessed to killing the Sherrys. See United

States v. McCarty, 36 F.3d 1349, 1353-55 (5th Cir. 1994) (holding

that admitting extrinsic evidence to corroborate the defendant’s

confession to a cellmate was not reversible error). The district

court did not abuse its discretion by admitting this evidence.

Similarly, Holcomb contends that Officer Osborne’s testimony

constituted impermissible extrinsic character evidence. Officer

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Osborne, a Texas law enforcement official, testified that he found

a .22 caliber pistol and a drawing of a silencer during a search of

Holcomb’s home in 1988. The pistol was not the same one used in

the Sherry murders. The district court did not abuse its

discretion by admitting this evidence because it was admitted to

show intent, motive, knowledge, opportunity, and method of

operation. See Fed. R. Evid 404(b).

Finally, Holcomb asserts that the district court erred by

admitting double hearsay. Gillich testified about the conspiracy

in which he, Cook, Holcomb, and others participated. He testified

that, the day after the murders, Cook called Holcomb to ask about

the hit. Gillich testified that Holcomb confirmed murdering the

Sherrys. The district court correctly admitted the testimony

because both Holcomb’s statements to Cook and Cook’s statements to

Gillich were admissible as statements of co-conspirators made in

furtherance of the conspiracy. See Fed. R. Evid. 801(d)(2)(E); see

United States v. Gironda, 758 F.2d 1201, 1216-19 (5th Cir. 1985)

(concluding that the district did not err by permitting a co-

conspirator to testify that another conspirator had told him about

a threatening phone call he received from the defendant).

B. Sufficiency of the Evidence to Convict Holcomb

Holcomb contends that the evidence was insufficient to convict

him on Count 1 and Count 50 because the government did not prove

that he had knowledge of the objectives of the overall conspiracy.

He says the government’s theory assumes he committed the murders

25
but has nothing to do with the homosexual scams, wire fraud, mail

fraud, money laundering, and other activities. We review the

evidence in the light most favorable to the verdict. We affirm if

a rational trier of fact could have found all essential elements of

the crime beyond a reasonable doubt. Sultan, 115 F.3d at 324.

To prove a RICO conspiracy the government must establish (1)

that two or more people agreed to commit a substantive RICO offense

and (2) that the defendant knew of and agreed to the overall

objective of the RICO offense. United States v. Posada-Rios, 158

F.3d 832, 857 (5th Cir. 1998). The evidence was sufficient to

convict Holcomb of the RICO conspiracy. First, Holcomb agreed with

the objective by killing Vincent Sherry. Second, Holcomb agreed to

commit violence and threats of violence to protect the enterprise.

To prove obstruction of justice the government must show an intent

to endeavor to impede the due administration of justice. United

States v. Williams, 874 F.2d 968, 976-82 (5th Cir 1989). Here

again the evidence was sufficient to convict Holcomb of this crime.

Holcomb threatened Swetman to keep him from cooperating with the

government.

VII. HALAT

A. Duplicity

Halat contends that Count 16 of the indictment is duplicitous

and that the district court erred in failing to give a unanimity

instruction to the jury regarding this Count. Count 16 alleged

that Halat violated 18 U.S.C. § 1503 by obstructing justice when he

26
testified falsely in Sharpe I. The indictment included the

following excerpt of the testimony involved:

Question: At some point in time, did you come to learn
whether or not there was a scam, homosexual
scam operating out of Angola in which Kirksey
Nix was involved?

Halat: I came to find out that there was activity
going on at Angola prison that Kirksey Nix was
alleged to be involved in.

Question: When did that happen?

Halat: May of 1988

* * *

Question: As of that date or as of the time you received
the information from the F.B.I., whatever date
that was prior to May 13th, 1988, what
knowledge did you have of your office being
used, as a depositor of scam funds?

Halat: I don’t believe my office was being used as a
depository of scam funds.

Halat argues that Count 16 is duplicitous because it alleged two

separate and distinct answers to two different questions each of

which could support a separate conviction for obstruction of

justice. Halat also contends that the district court erred in

failing to instruct the jury that it must unanimously find that

Halat lied regarding a particular answer.

Halat moved to dismiss the indictment before trial on the

grounds that it was duplicitous, but did not request a unanimity

instruction or object when the district court did not give one.

“An indictment may be duplicitous if it joins in a single Count two

or more distinct offenses.” United States v. Baytank (Houston),

Inc., 934 F.2d 599, 608 (5th Cir. 1991). We have previously held

27
that the government may include several acts within a single Count

where those actions represent a single, continuing scheme provided:

the indictment (1) notifies the defendant adequately of
the charges against him; (2) does not subject to the
defendant to double jeopardy; (3) does not permit
prejudicial evidentiary rulings at trial; and (4) does
not allow the defendants to be convicted by a
nonunanimous verdict.

United States v. Fisher, 106 F.3d 622, 632 (5th Cir. 1997)

(internal quotations omitted). However, if an indictment is

duplicitous and the defendant is prejudiced, then the conviction

may be subject to reversal. See id.

Halat does not argue that he was prejudiced in any way by the

inclusion of the two acts in Count 16. Additionally, the

circumstances involved in Count 16 satisfy many of the criteria

specified above. The government proved and the district court

actually instructed the jury that the issue was not whether the

particular responses, considered individually and out of context,

were made intentionally with knowledge of falsity, but rather,

whether Halat’s responses were made as part of an endeavor to

impede and block the flow of truthful information, in other words,

a single continuous scheme. The indictment also adequately

notified Halat of the charges against him and does not create a

danger of double jeopardy because it specifically includes the

statements on which the government relied in prosecuting Halat for

obstruction of justice. Regarding the risk of a non-unanimous jury

verdict, the district court did not give the jury an unanimity

instruction concerning Count 16 specifically, and Halat did not

object or request that such an instruction be given; therefore, we

28
review the district court’s decision for plain error. See United

States v. Yamin, 868 F.2d 130, 132 (5th Cir. 1989). Again, Halat

does not argue that he was prejudiced by the district court’s

failure to give a unanimity instruction. For these reasons,

Halat’s arguments fail.

B. Ex Post Facto and Sentencing

Halat also argues that his ten year sentence for obstruction

of justice violates the Ex Post Facto Clause of the Constitution

because at the time he engaged in the prohibited conduct, the

sentence for obstruction of justice was only five years, rather

than ten. We need not address this argument because Halat waived

his right to appeal his sentence in exchange for the government’s

agreement not to appeal a sentence imposed below the guideline

range. See United States v. Dees, 125 F.3d 261, 269 (5th Cir.

1997); United States v. Melancon, 972 F.2d 566, 567 (5th Cir. 1992)

(“We hold that a defendant may . . . waive his statutory right to

appeal his sentence.”). Halat does not contend that his waiver was

not informed and voluntary. See id.

C. Deliberate Ignorance Instruction

Nix and Halat complain that the district court mistakenly

instructed the jury that the defendants acted “knowingly” if they

“deliberately closed [their] eyes to what otherwise would have been

obvious.” First, they contend that there was no evidence to

support the instruction. This Circuit has established a two-part

29
test to determine when a deliberate ignorance instruction is

warranted. “The evidence must show that: (1) the defendant was

subjectively aware of a high probability of the existence of the

illegal conduct; and (2) the defendant purposely contrived to avoid

learning of the illegal conduct.” United States v. Faulkner, 17

F.3d 745, 766 (5th Cir. 1994). Halat argues that the government

did not show that he knew of the conspiracies, that he was

subjectively aware of a high probability of illegal conduct, or

that he sought to avoid learning of the illegal conduct. Second,

both defendants contend that the court erred in not limiting the

deliberate ignorance instruction because the instruction was

inconsistent with the essential elements of the conspiracy. They

urge us to adopt Second Circuit authority holding that it is an

error to give a deliberate ignorance instruction in relation to the

issue of knowing participation in a conspiracy. United States v.

Fletcher, 928 F.2d 495, 502-503 (2nd Cir. 1991).

The standard of review applied to a defendant’s claim that a

jury instruction was inappropriate is “whether the court’s charge,

as a whole, is a correct statement of the law and whether it

clearly instructs jurors as to the principles of the law applicable

to the factual issues confronting them.” United States v. August,

835 F.2d 76, 77 (5th Cir. 1987). The district court “may not

instruct the jury on a charge that is not supported by the

evidence.” United States v. Ortega, 859 F.2d 327, 330 (5th Cir.

1988). Further, in determining whether the evidence reasonably

supports the charge, the evidence and all reasonable inferences

30
that may be drawn from it are viewed in the light most favorable to

the government. United States v. Lara-Velasquez, 919 F.2d 946, 950

(5th Cir. 1990).

We find that there was sufficient evidence to support a

deliberate ignorance instruction. Halat knew the high probability

of illegal conduct, and he purposely contrived to avoid learning

it. Halat managed the thousands of dollars that Nix’s operation

generated, and he gave Sharpe, Nix’s girlfriend, free run of his

office. Halat also met and spoke with those planning the Sherrys’

murders. Regarding the claim that the instruction was not proper

in a conspiracy we note that this Circuit has consistently approved

a deliberate ignorance instruction in such cases. See, e.g.,

United States v. Scott, 159 F.3d. 916, 924 n.6 (5th Cir. 1998)

(citing six different conspiracy cases in which the court has used

a deliberate ignorance instruction and noting that the court has

consistently held the deliberate ignorance instruction proper when

supported by sufficient evidence).

D. Presentation of False Testimony

Halat and Nix contend that the government knowingly presented

perjured testimony. Specifically, at the 1996 trial, witness

Rhodes repeated his Sharpe I testimony that he was contacted by

Ransom to kill the Sherrys and that Ransom told him he had carried

out the contract killing. Gillich, on the other hand, testified

that he contracted with Holcomb to kill the Sherrys, and that he

did not know Rhodes or Ransom.

31
 They also contend that the government violated their due

process rights by changing its theory of the crime after the 1991

trial. In Sharpe I, the government maintained that Rhodes’

testimony alone was sufficient direct evidence of the involvement

of Ransom, Gillich and Halat in the murders. This theory is

inconsistent with the government’s present reliance on Gillich’s

testimony that Holcomb, and not Ransom, was the trigger man. Nix

and Halat argue that this “flip-flopping” of theories violates the

bedrock principles of due process.

As to the government knowingly presenting false testimony,

reversal is required if it is shown that: (1) the testimony was

false; (2) the testimony was material to the verdict; and (3) the

prosecutor knew or believed the testimony to be false. United

States v. Blackburn, 9 F.3d 353, 357 (5th Cir. 1993). They contend

that, because the testimony of Ransom and Gillich was false,

material and the government knew it, their due process rights were

violated. As to the change in government theories, the defendants

contend that due process rights are violated when a prosecutor

presents two different and inconsistent theories of the same crime

in two different trials. Thompson v. Calderon, 120 F.3d 1045, 1058

(9th Cir. 1997) (en banc), rev’d on other grounds, 523 U.S. 538,

118 S.Ct. 1489, 140 L.Ed.2d 728 (1998); Drake v. Kemp, 762 F.2d

1449, 1479 (11th Cir. 1985).

Review of an allegation of the use of false evidence requires

“an independent analysis to determine whether the facts found by

the trial court rise to the level of the applicable legal

32
standard.” United States v. O’Keefe, 128 F.3d 885, 893 (5th Cir.

1998). We find the defendants’ due process claims to be without

merit. First the defendants were well aware of the contradictory

testimony during the trial. United States v. Blackburn, 9 F.3d

893, 894 (5th Cir. 1993) (noting that courts have been reluctant to

find a deprivation of due process when the prosecution has provided

the defense with the necessary information and it can utilize the

information). Furthermore, the trial court on several occasions

instructed the jurors that it was their job to weigh the

credibility of witnesses, and that they could accept or reject

witness’s testimony.

Regarding the defendants’ contention that the government

changed its theory, we view the government’s presentation of the

evidence not as a due process violation but merely as the

presentation of new and significant evidence that justified the

prosecution in question. The very case the defendants cite

recognizes that there is no due process violation when “new

significant evidence comes to light that justifies a subsequent

prosecution. Thompson, 120 F.3d at 1058.

E. Whether Nix was properly sentenced to life imprisonment

Nix contends that he was sentenced to life imprisonment based

on the district court’s finding of facts concerning the Counts 1

and 2 Racketeering Acts. Nix argues that the jury did not make

specific unanimous findings regarding underlying racketeering

activities in convicting him, and that the district court usurped

33
the role of the jury in making these specific findings. Thus, his

right to be found guilty beyond a reasonable doubt by a jury for

the underlying activities was negated. He requests that the court

remand for consideration of his sentence based on the base level

offense for racketeering, which is United States Sentencing

Guideline (“U.S.S.G.”) 2E1.1(a)(2).

This Court reviews a district court’s application of the

Sentencing Guidelines de novo and the district court’s factual

findings for clear error. United States v. Dixon, 132 F.3d 192,

201 (5th Cir. 1997). We find that the district court properly

sentenced Nix. Nix was found guilty of RICO conspiracy Counts 1

and 2 in violation of 18 U.S.C. § 1962. Both RICO Counts included

Racketeering Acts A (conspiracy to commit murder and murder) and B

(murder) in violation of the laws of Mississippi. The applicable

sentencing guideline, U.S.S.G. 2D1.1 provides that the base level

is the greater of 19 or the “offense level applicable to the

underlying racketeering activity.” Here, the underlying activity

involved violations of Mississippi murder statutes, and the

district court properly analogized this offense to the federal

first degree murder offense during sentencing.

CONCLUSION

For the foregoing reasons, we affirm the convictions and

sentences of all appellants.

AFFIRMED.

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