United States v. Josleyn

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 95-2146

UNITED STATES OF AMERICA,

Appellee,

v.

DENNIS JOSLEYN,

Defendant, Appellant.

No. 95-2147

UNITED STATES OF AMERICA,

Appellee,

v.

JOHN W. BILLMYER,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]

Before

Selya, Cyr and Boudin,

Circuit Judges.

David W. Long, with whom Joseph E. Zeszotarski, and Poyner &

Spruill, LLP were on brief for appellant Billmyer.

Paul Twomey, with whom Twomey & Sisti Law Offices was on brief

for appellant Josleyn.
Michael J. Connolly and Donald A. Feith, Assistant United States

Attorneys, with whom Paul M. Gagnon, United States Attorney, was on

brief for appellee.

October 15, 1996

2

CYR, Circuit Judge. A federal jury sitting in New
CYR, Circuit Judge.

Hampshire returned guilty verdicts against appellants John W.

Billmyer and Dennis R. Josleyn for conspiring to defraud their

former employer, American Honda Motor Company ("Honda"), by

accepting money and other valuable consideration from prospective

Honda dealers in exchange for lucrative dealership rights and

sundry advantage. See 18 U.S.C. 371 (conspiracy) & 1341 (mail

fraud) (1994). Verdicts were returned also against Josleyn for

racketeering, conspiracy, and mail fraud, see id. 1962(c), 371

& 1341, relating, inter alia, to kickbacks received in connection

with national sales training seminars and dealer advertising

programs for Honda dealers. On appeal, Billmyer and Josleyn

principally contend that New Hampshire was an improper venue for

the franchise conspiracy charge in Count II and that there was

insufficient evidence to support the guilty verdicts. We affirm

the district court judgments in all respects.

I
I

BACKGROUND1
BACKGROUND

Following the second OPEC oil embargo in 1979, American

consumer demand for the energy-efficient automobiles manufactured

by Honda skyrocketed, and remained strong for a decade thereaf-

ter. Just as demand in the United States surged, the Japanese

government imposed export restraints on its carmakers, and Honda

1We recite the background facts the jury reasonably could
have found, viewing the evidence in the light most favorable to
the verdicts. See United States v. Bello-Perez, 977 F.2d 664,

666 (1st Cir. 1992).

3

was unable to meet the demand for its automobiles in the United

States. These uncommonly favorable market conditions endured

throughout much of the 1980s, causing enterprising car dealers in

the United States to compete fiercely (and sometimes unfairly)

for exclusive Honda franchises in anticipation of the extraordi-

narily large profit margins available on such popular Honda

models as the Civic, Prelude, and Accord.

Appellant John Billmyer joined Honda as a district

sales representative in 1970, and rose rapidly through all four

management levels in its field sales division.2 By 1977,

Billmyer had been appointed regional sales manager for the

eastern United States. By 1980, he held the top field sales

position at Honda national sales manager and soon moved

from its New Jersey office to headquarters in California. When

Honda launched a line of luxury automobiles in 1985, Billmyer

became national sales manager for the new Acura Division as well.

He remained the top Honda field sales manager in the United

States until he retired on March 31, 1988.

After Billmyer retired, he was succeeded as national

sales manager by S. James Cardiges, his closest associate at Hon-

da. Billmyer had hired Cardiges as the Honda sales manager for

the Baltimore/Washington D.C. district in 1977, and rapidly

2At Honda, district sales managers in the field maintained
day-to-day contact with their dealers and reported to their
respective zone sales managers. Each zone manager was responsi-
ble for Honda sales in several states. Zone managers in turn
reported to their respective regional sales managers. The two
regional managers each supervised Honda sales in the field for
roughly one-half the country.

4

promoted him through the ranks: from zone manager for the mid-

Atlantic states in 1979, to zone manager for the west coast (the

largest and most prestigious zone) in 1981, to regional sales

manager for the western United States in late 1982. While

western regional sales manager, Cardiges worked closely with

Billmyer. The two often traveled to work together and took

business trips within the United States and overseas. Finally,

Cardiges succeeded Billmyer as national sales manager in 1988.

He resigned in April 1992 by "mutual agreement" with Honda, to

forfend termination.

Appellant Dennis R. Josleyn joined Honda in January

1983, and followed a similar path: assistant sales manager for

the mid-Atlantic zone in 1985; mid-Atlantic zone manager in March

1987; and zone manager for the west coast, resident in Califor-

nia, in early 1991, a position he held until he resigned from

Honda in April 1992.

Throughout appellants' tenure with Honda, corporate

policy and procedures for awarding new Honda dealerships were set

forth in the "Honda Automobile Dealer Appointment Procedures

Manual." The first step was to identify a geographic area ripe

for a new dealership in Honda terminology an "open point"

through reference to marketing and demographic studies, data

relating to competition, and an assortment of other information.

Next, the district and zone sales managers for the area under

consideration were to "prospect" for a qualified dealer to fill

the "open point," then compose a slate of three or more suitable

5

candidates. Honda policy directed that sales managers evaluate

candidates according to their experience in automobile retailing,

available capital, personal reputation, and the quality of their

location and facilities, all with the ultimate aim that Honda

dealerships be awarded to the best candidates.

Honda sales managers at each level, see supra note 2,

were required to participate in recommending and approving candi-

dates for any "open point." With the possible exception of

Billmyer and Cardiges, in their respective capacities as national

sales manager, no sales manager at any level possessed unilateral

authority to award a new dealership. Furthermore, approval was

required from managers representing the parts, service, and

market-representation departments as well.

Once selected for an "open point" dealership, with the

approval of sales managers at the district, zone, regional, and

national levels, a successful candidate received a "Letter of In-

tent" ("LOI") from Honda via United States mail, authorizing the

prospective dealer to open the new, exclusive dealership upon

certain conditions, such as constructing a facility within a

specified time. Until the franchise itself was issued to the

prospective dealer, however, these LOI rights remained the

property of Honda. Like its competitors, Honda exacted no fee

for its dealership franchises. Nor were Honda personnel allowed

to accept money or other consideration of significant value for

assistance in obtaining a Honda franchise.

In addition to Honda policy and procedures governing

6

new dealerships, its "conflict of interest" policy prohibited

employees from accepting anything of significant value from a

Honda dealer and from acquiring or holding any interest in a

Honda or Acura dealership. The "conflict of interest" policy was

disseminated among all Honda sales managers, who were required to

sign disclosure forms indicating ongoing compliance. Sales

managers at every level were duty-bound to ensure that their

respective subordinates honored the policy prohibiting conflicts

of interest, and report all violations to their senior manager or

the Human Resources Department.

Notwithstanding these rigorous internal procedures,

however, there were numerous violations of the "conflict of

interest" policy. From the late 1970s through the early 1990s,

sales managers at every level commonly accepted money and valu-

able gifts, including Rolex watches, furniture, and business

suits, from prospective dealers vying for "open points" or from

dealers seeking increased Honda automobile allocations. Yet

their illicit activities apparently escaped notice by nonpartici-

pating sales managers and dealers for years.

Finally, in 1991 an internal investigation was trig-

gered by an uninvolved district sales representative in Arkansas

who provided a Honda executive vice-president with evidence of

payoffs involving Cardiges, then the national sales manager, and

a zone manager. By early 1992, Honda had begun "cleaning house"

and Cardiges had resigned. An extensive federal criminal inves-

tigation ensued.

7

On March 11, 1994, a federal grand jury in New Hamp-

shire returned an indictment against Billmyer, Josleyn, Cardiges

and two lower-level Honda sales managers responsible for the New

England region, David L. Pedersen and Damien C. Budnick.3

Superseding indictments were returned against Billmyer, Josleyn,

and Cardiges in October 1994 and January 1995. Ultimately,

Budnick, Cardiges, and Pedersen entered into plea agreements and

cooperated with the government. Cardiges and Pedersen were key

government witnesses at trial.

The second superseding indictment charged Josleyn and

Cardiges, in Count I, with a pattern of racketeering in violation

of the Racketeer Influenced and Corrupt Organizations Act ("RI-

CO"), 18 U.S.C. 1962(c) (1994). As Racketeering Act 1, it

alleged that Josleyn and Cardiges had persuaded Honda to select a

particular outside vendor (from which the defendants had received

kickbacks) to conduct sales training seminars for Honda salespeo-

ple employed in New Hampshire and elsewhere in the United States.

Racketeering Acts 2 through 8 related to regional advertising

associations which pooled monies advanced by individual Honda

dealers to defray their local Honda advertising costs. Josleyn

and Cardiges were charged with causing Honda to match the contri-

3Pedersen had joined Honda in July 1979 as a district sales
manager for Maine, New Hampshire, Vermont, and upstate New York.
Within a year he was transferred to Minnesota. Around June 1982,
he became a district sales manager in northern Ohio; in 1985, a
district sales manager in the new Acura Division, responsible for
a territory extending from Maine to Minnesota; and, in March
1987, an assistant zone manager, responsible for the area which
included New Hampshire. Budnick, a district sales manager also
responsible for New Hampshire, reported directly to Pedersen.

8

butions made by the Honda dealers to these regional advertising

associations, on the condition that the advertising associations

hire a particular vendor (controlled by Josleyn's brother) to

provide the advertising services. After receiving payments from

the regional advertising associations, the vendor allegedly made

kickbacks to Josleyn and Cardiges. Other Racketeering Acts

described in Count I alleged, inter alia, that Josleyn and

Cardiges received kickbacks for awarding numerous LOIs to various

dealership candidates in California, Maryland, New York, and

other states.

Count II charged Billmyer, Cardiges, and Josleyn with

conspiring to defraud Honda by accepting payments and other

valuable consideration from dealers and prospective dealers in

exchange for LOIs or other preferred treatment. Count III

(conspiracy) and Count IV (mail fraud) charged Josleyn and

Cardiges with accepting kickbacks from 1989 through 1992, in

relation to the sales training seminars. Overall, Josleyn was

charged in all four counts, whereas Billmyer was charged with the

Count II "dealer franchise" conspiracy only.

Trial began on February 7, 1995, before Chief Judge

Joseph A. DiClerico, Jr.4 After presenting thirty-five witness-

es, including Cardiges and Pedersen and many Honda dealers from

around the country, the government rested its case on May 10,

1995. Billmyer opted to present no witnesses, while Josleyn

4Three weeks into the trial, we were called upon to resolve
a discovery dispute. See United States v. Billmyer, 57 F.3d 31

(1st Cir. 1995).

9

mounted a defense based on the theory that top Japanese execu-

tives in Honda had condoned the activities alleged in the indict-

ment. At the close of the evidence, the district court denied

appellants' renewed Rule 29 motions for judgments of acquittal.

See Fed. R. Crim. P. 29(a).

The case went to the jury on May 19. Seven days into

the deliberations, guilty verdicts were returned against both

Billmyer and Josleyn. After denying their motions for judgments

of acquittal, the district court sentenced Billmyer to a five-

year prison term and a $125,000 fine; and Josleyn to six and one-

half years in prison on Count I and a five-year prison term on

each of the three remaining counts, all to be served concurrent-

ly.

II
II

DISCUSSION
DISCUSSION

A. Joinder of Defendants
A. Joinder of Defendants

As in the district court, Josleyn and Billmyer contend

on appeal that their joint indictment and trial violated Fed. R.

Crim. P. 8.5

5Rule 8 provides:

(a) Joinder of Offenses. Two or more offenses may
(a) Joinder of Offenses.
be charged in the same indictment or information in a
separate count for each offense if the offenses
charged, whether felonies or misdemeanors or both, are
of the same or similar character or are based on the

same act or transaction or on two or more acts or

transactions connected together or constituting parts

of a common scheme or plan.

(b) Joinder of Defendants. Two or more defendants
(b) Joinder of Defendants.
may be charged in the same indictment or information if
they are alleged to have participated in the same act

10

The federal courts have long recognized that consoli-

dated trials tend to promote judicial economy, conserve prosecu-

torial resources, and foster the consistent resolution of factual

disputes common to properly joined defendants. See, e.g., United

States v. MacDonald & Watson Waste Oil Co., 933 F.2d 35, 60 (1st

Cir. 1991). In resolving a Rule 8(b) misjoinder claim, the trial

court must examine the indictment to determine whether there is a

factual basis for joining the defendants. United States v.

Boylan, 898 F.2d 230, 245 (1st Cir.), cert. denied, 498 U.S. 849

(1990). While Rule 8 harbors the potential for unfair prejudice

in consolidated trials, see King v. United States, 355 F.2d 700,

703-04 (1st Cir. 1966) (Aldrich, C.J.) (noting risk that jury may

infer guilt by association), the rule nonetheless may be gener-

ously construed in favor of joinder, given the protective discre-

tion vested in the trial court under Fed. R. Crim. P. 14.

The district court apparently concluded that the Count

II dealer franchise conspiracy charge against Billmyer and

Josleyn warranted their joinder under Rule 8(b). Its conclusion

plainly would have been unexceptionable had the indictment

contained only Count II, see United States v. Morrow, 39 F.3d

1228, 1237-38 (1st Cir. 1994), cert. denied, 115 S. Ct. 1421

(1995), or had the conspiracy alleged in Count II clearly encom-

or transaction or in the same series of acts or trans-

actions constituting an offense or offenses. Such

defendants may be charged in one or more counts togeth-
er or separately and all of the defendants need not be
charged in each count.

Fed. R. Crim. P. 8 (emphasis added).

11

passed all substantive offenses alleged in the indictment. See

United States v. Arruda, 715 F.2d 671, 678 (1st Cir. 1983).

Otherwise, joinder under Rule 8(b) was problematic unless the

criminal acts alleged in all counts were part of the same series

of acts or transactions. See United States v. Yefsky, 994 F.2d

885, 895 (1st Cir. 1993).

A misjoinder of defendants requires a reversal only if

the resulting prejudice "`had substantial and injurious effect or

influence in determining the jury's verdict.'" United States v.

Lane, 474 U.S. 438, 449 (1986) (mandating "harmless error" review

of Rule 8(b) misjoinder) (quoting Kotteakos v. United States, 328

U.S. 750, 776 (1946)). As it would be incumbent upon this court

in all events to conduct the "harmless error" analysis mandated

in Lane were we to conclude that a misjoinder occurred, see id.,

and since the misjoinder question itself is far from clear, we

will assume, without deciding, that the misjoinder occurred as

claimed by Billmyer, and proceed directly to the "harmless error"

inquiry. See United States v. Edgar, 82 F.3d 499, 504 (1st Cir.)

(bypassing misjoinder question where any error ultimately would

prove harmless), petition for cert. filed, 65 U.S.L.W. 3110 (U.S.

July 16, 1996) (No. 96-178). We conclude that any misjoinder was

harmless.

Not only did the parties marshal their evidentiary

presentations to minimize prejudicial spillover, but throughout

the trial the district court prudently and carefully cautioned

the jury to consider the evidence against each individual defen-

12

dant. No less importantly, Billmyer's retirement from Honda,

prior to the time Josleyn launched the dealer advertising associ-

ation and sales training schemes, unquestionably facilitated the

individualized factfinding focus to which each defendant was

entitled from the jury. Cf. Morrow, 39 F.3d at 1235-36 (errone-

ous admission of hearsay under coconspirator exception held to be

"harmless" given distinctiveness of two fraudulent schemes).

Finally, at the close of all the evidence, the trial judge gave a

careful cautionary instruction, once again reminding the jury to

consider the evidence against each defendant individually. See

Lane, 474 U.S. at 450 (limiting instructions mitigate prejudice

from misjoinder).

Although these safeguards may not have sufficed in

another case, the evidence against both Billmyer and Josleyn can

only be described as overwhelming. See Randazzo, 80 F.3d at 628.

An army of former Honda executives, including Cardiges,

Billmyer's proteg and eventual successor, as well as numerous

Honda dealers, presented a wealth of telling evidence against

appellants. See Lane, 474 U.S. at 450 (noting overwhelming

evidence of guilt); see infra Section II.B.3. Consequently, we

are persuaded that no aspect of the jury's decision was substan-

tially influenced by any misjoinder. See O'Neal v. McAninch, 115

S. Ct. 992, 995 (1995).

B. Sufficiency of the Evidence and
B. Sufficiency of the Evidence and

Venue (Franchise Conspiracy Count)
Venue (Franchise Conspiracy Count)

The jury found that both appellants participated in the

13

dealership franchise conspiracy alleged in Count II.6 Neither

appellant seriously disputes that he conspired with Cardiges.

Rather, their principal contention is that there was insufficient

evidence to prove, beyond a reasonable doubt, that they both

participated in the same conspiracy with Pedersen, which, they

maintain, was essential to establish both the substantive con-

spiracy charge in Count II and proper venue in New Hampshire. As

their contention confuses the standards of proof applicable to

these two distinct issues, and the record demonstrates that the

government readily met both, appellants' convictions under Count

II must be affirmed.

1. Standard of Proof
1. Standard of Proof

The unchallenged instructions apprised the jury that

the government was required to prove four elements, beyond a

reasonable doubt, in order to prevail on Count II: (i) two or

more persons entered into the unlawful agreement charged in the

indictment; (ii) the particular defendant, knowing the purpose of

the agreement, knowingly and willfully became a member of the

conspiracy; (iii) some member of the conspiracy knowingly commit-

ted at least one alleged overt act; and (iv) at least one overt

6Count II alleged that Billmyer, Josleyn, Cardiges, and
others known and unknown, conspired to defraud Honda by accepting
money and other valuable consideration in exchange for LOI rights
and other preferential treatment to various Honda dealers and
prospective dealers. Only one overt act in furtherance of the
franchise conspiracy alleged in Count II took place in the
District of New Hampshire. It alleged that David Pedersen, then
an assistant zone sales manager responsible for New Hampshire,
had recommended one Thomas Bohlander for an Acura dealership in
Nashua, New Hampshire, in return for approximately $18,000 in
college tuition payments for Pedersen's son.

14

act was committed in furtherance of the conspiracy. See, e.g.,

United States v. Sawyer, 85 F.3d 713, 714 (1st Cir. 1996) (citing

United States v. Frankhauser, 80 F.3d 641, 653 (1st Cir. 1996));

United States v. Brandon, 17 F.3d 409, 428 (1st Cir.), cert.

denied, 115 S. Ct. 80 (1994). Thus, the jury need only have

found beyond a reasonable doubt that each appellant conspired

with at least one other person (e.g., Cardiges), and not neces-

sarily with Pedersen as well.

Putting aside for the moment the question of guilt, see

infra Section II.B.3, it is clear that adequate evidence of

Pedersen's role in the dealer franchise conspiracy was essential

to establish New Hampshire as a proper venue for Count II.7

Without objection, the district court instructed the jury that

the government must establish, by a preponderance of the evidence

(rather than beyond a reasonable doubt), that Pedersen, Billmyer

and Josleyn joined the Count II conspiracy and that Pedersen

committed the alleged overt act involving the Acura dealership in

Nashua, New Hampshire. See United States v. Cordero, 668 F.2d

32, 45 n.18 (1st Cir. 1981) (applying preponderance standard, as

venue is not an element of conspiracy offense); supra note 6.

7Venue rights are guaranteed by the Constitution, see U.S.

Const. art. III, 2, cl. 3; United States v. Georgacarakos, 988

F.2d 1289, 1293 (1st Cir. 1993), and prescribed by the Federal
Rules of Criminal Procedure, see Fed. R. Crim. P. 18 ("Except as

otherwise permitted by statute or by these rules, the prosecution
shall be had in a district in which the offense was committed.").
Venue "concerns only the place where the case may be tried[,]"
whereas jurisdiction "has to do with the authority or power of a
court to try a case." Wayne R. LaFave & Jerold H. Israel,
Criminal Procedure 16.1, at 334 (1984 & Supp. 1991) (footnotes

omitted).

15

Thus, consistent with the unchallenged jury instructions on

conspiracy and venue, as well as applicable law, the government

could establish venue in New Hampshire by only a preponderance of

the evidence, but it was required to prove each appellant's

participation in the conspiracy beyond a reasonable doubt.8

2. Standard of Review
2. Standard of Review

We will uphold the verdicts under Count II if a ratio-

nal juror could have found each substantive element of the

alleged conspiracy beyond a reasonable doubt, United States v.

DiMarzo, 80 F.3d 656, 660 (1st Cir.), petition for cert. filed,

No. 96-5578 (U.S. Aug. 13, 1996), and proper venue by a prepon-

derance of the evidence, Cordero, 668 F.2d at 45 n.18. All

credibility issues are to be resolved, and every reasonable

inference drawn, in the light most favorable to the verdict.

DiMarzo, 80 F.3d at 660; United States v. Lam Kwong-Wah, 924 F.2d

298, 301 (D.C. Cir. 1991) (venue). A thorough review of the

entire record discloses ample evidentiary support for the ver-

8The following explanation exposes the fallacy in the
unitary standard of proof urged by appellants.

[T]he evidence may well be sufficient to
permit reasonable inferences that a given
individual was more likely than not a member
of the alleged conspiracy and performed a
given act in furtherance of the conspiracy
within the district of prosecution, thereby
satisfying the venue requirement, even if the
jury finds the same evidence not sufficiently
persuasive to cause it, for purposes of as-
sessing guilt, to draw those inferences be-
yond a reasonable doubt.

United States v. Rosa, 17 F.3d 1531, 45 n.18 (2d Cir.) (citation

omitted), cert. denied, 115 S. Ct. 211 (1994).

16

dicts against each appellant.

3. Guilt
3. Guilt

The Count II conspiracy charge required proof that the

particular defendant and at least one other person expressly or

tacitly agreed to commit a federal offense. DiMarzo, 80 F.3d at

660. The government must have shown that the defendant volun-

tarily participated to promote a criminal objective. Brandon, 17

F.3d at 428. When, as in this case, mail fraud is an alleged

goal of the conspiracy, the government must prove either the

intent to use the mails or that such use was reasonably foresee-

able. Yefsky, 994 F.2d at 890; see also United States v. Dray,

901 F.2d 1132, 1137 (1st Cir.) (noting that intent element in

conspiracy differs from substantive mail fraud), cert. denied,

498 U.S. 895 (1990). A particular defendant need not have been

familiar with all the details of the conspiracy or with the

identities of all other conspirators. United States v.

Innamorati, 996 F.2d 456, 470 (1st Cir. 1993), cert. denied, 510

U.S. 1120 (1994); United States v. Bello-Perez, 977 F.2d 664, 668

(1st Cir. 1992).

A brief overview leaves no reasonable doubt that

Billmyer, Cardiges, and other Honda sales executives, respec-

tively, conspired to defraud Honda by accepting valuable consid-

eration for awarding dealership franchises and other preferential

treatment to Honda dealers and prospective dealers.

a. Billmyer
a. Billmyer

As early as 1979, while Billmyer was the eastern

17

regional sales manager, Cardiges, as zone manager for the mid-

Atlantic states, accepted a $10,000 payment from a Honda dealer

in Philadelphia, and split it with Billmyer. In late 1979 or

early 1980, Cardiges presented Billmyer with a gold Rolex watch

worth as much as $15,000 from a large Honda dealer in the Wash-

ington, D.C. area. Beginning with the 1984 holiday season and

continuing through 1992, Cardiges received $20,000 to $25,000

each year from John Rosatti, a Honda dealer in New York City.

Rosatti told Cardiges that he was paying Billmyer also, because,

as Cardiges testified at trial, like other dealers Rosatti wanted

"favorable treatment, wanted more automobiles, more franchises,

and wanted the ability to have the ear of the people who were in

power at Honda."

Cardiges and Billmyer both helped a dealer named Rick

Hendrick acquire approximately thirty Honda and Acura franchises

in various states, including Texas, Georgia, and the Carolinas.

In return, Hendrick helped Cardiges buy a California residence

from which Cardiges later realized a $250,000 gain. Thereafter,

Hendrick defrayed approximately $150,000 in interest payments on

a loan Cardiges had obtained to buy a $700,000 home in Laguna

Hills, California. During this same 1989-92 time frame, Hendrick

intimated to Cardiges that he was involved in financing

Billmyer's home in Palm Springs as well. Cardiges also learned

from Billmyer that Hendrick had provided Billmyer with a top-of-

the-line BMW.

Cardiges described periodic payoffs from one Marty

18

Luftgarten, who owned dealerships in New Jersey, Philadelphia,

and southern California. For example, at the grand opening of a

Luftgarten dealership during the mid-1980s, Billmyer, Cardiges,

and two other Honda sales managers, Bill Kutchera and Jeff

Conway, gathered in a conference room where Luftgarten handed

each an envelope containing $5,000 in cash. Around the holiday

season, another dealer customarily sent Cardiges $5,000 gift

certificates from Neiman-Marcus for both Cardiges and Billmyer.

See Boylan, 898 F.2d at 242 (noting that defendants often cooper-

ated with one another by collecting payments). The record is

replete with other evidence of cash payments from dealers and

lavish shopping trips to Hong Kong.

b. Josleyn
b. Josleyn

Similarly, there was ample evidence to enable a ratio-

nal jury to find beyond a reasonable doubt that Josleyn conspired

with Cardiges and others to defraud Honda in connection with the

Honda dealership franchises. In early 1991, while zone manager

for the west coast, Josleyn arranged for a "friend" back east,

Joe Pope, to pay $150,000 for the "open point" in Elk Grove,

California. Josleyn approached Cardiges, national sales manager,

and Robert Rivers, regional manager for the western United

States, and advised that there would be money in it for all of

them if Pope were to receive the Elk Grove dealership. Thereaf-

ter, Cardiges, Rivers, and Josleyn, in direct violation of Honda

procedure, decided not to prospect for suitable dealership

candidates, and awarded the Elk Grove franchise outright to Pope.

19

As promised, Pope issued a $150,000 check payable to Gary &

Associates, a company controlled by Josleyn and his brother Gary.

Josleyn in turn gave Cardiges and Rivers each $50,000 in cash.

Cardiges testified that Ed Temple, a former Honda zone

manager, approached him in the summer of 1991 in behalf of Bob

Frink, a dealer interested in the Folsom, California point.

Temple had accepted payoffs from dealers while employed by Honda,

and after leaving the company in 1989 established a firm

Blakely Consultants to facilitate payments to Honda executives

from dealers seeking new Honda franchises. Simply put, Temple

told Cardiges that Frink was willing to pay Cardiges and Josleyn

for the Folsom dealership. On August 5, 1991, Cardiges signed

the Folsom LOI, and on the same day Frink paid Blakely Consul-

tants $500,000 for services rendered. Three days later, Temple

wrote a $166,666 check to Magnum Marketing, a company owned by

Josleyn. Cardiges reported $166,666 from Blakely Consultants on

his own 1991 income tax return, although Temple had agreed to

hold Cardiges' one-third share until Cardiges left Honda.

We need belabor the point no further, as there was

ample evidence to enable the jury reasonably to conclude, beyond

a reasonable doubt, that Josleyn was a member of the Count II

dealership franchise conspiracy. See Boylan, 898 F.2d at 242.

4. Venue
4. Venue

As a general rule, venue in a conspiracy case depends

upon whether an overt act in furtherance of the alleged conspira-

cy occurred in the trial district. United States v. Uribe, 890

20

F.2d 554, 558 (1st Cir. 1989); see 18 U.S.C. 3237(a) (1994).

The defendant need not have been physically present in the trial

district during the conspiracy. United States v. Santiago, 83

F.3d 20, 24-25 (1st Cir. 1996); see, e.g., Cordero, 668 F.2d at

43-44 (furthering drug importation conspiracy with phone calls to

undercover DEA agent in Puerto Rico); cf. United States v.

Georgacarakos, 988 F.2d 1289, 1294 (1st Cir. 1993) (contrasting

venue for "group" and "individual" crimes). The government

acknowledges that venue was proper in the District of New Hamp-

shire only if there was enough evidence for a rational jury to

find it more likely than not that Pedersen, Josleyn and Billmyer

belonged to the Count II conspiracy.

Upon joining Honda as a district sales manager in July

1979, see supra notes 2 & 3, Pedersen learned that Honda policy

prohibited sales executives from awarding LOIs for personal gain

and from accepting gifts valued at more than $25 from dealers.

In keeping with Honda policy, Pedersen objected in December 1979

when Bill Lia, a dealer in upstate New York, stuffed an envelope

containing cash into Pedersen's pocket. Although Pedersen

threatened to report the incident, he relented when Lia told him

not to worry because Lia had "already handled the zone." More-

over, Pedersen knew at the time that both his immediate supervi-

sor, Northeast Zone Manager Bill Kutchera, and Billmyer, regional

manager for the eastern United States, as well as Cardiges,

worked at Honda headquarters in New Jersey. In fact, when

Pedersen told Kutchera about the cash bribe tendered by Lia,

21

Kutchera advised Pedersen to ask for a gift certificate in place

of the cash. Accordingly, Pedersen ultimately accepted a $300

gift certificate from Lia with Kutchera's explicit approval.

Around this same time, Kutchera also told Pedersen that during

the course of the previous year he had received two Rolex watch-

es, a cruise, furniture, and other gifts, valued at $13,000, from

various dealers.

Pedersen testified that he frequently discussed dealer

payoffs with Roger Novelly and Larry Finley, his Honda supervi-

sors in Ohio. Novelly, the assistant zone manager, specifically

told Pedersen that Billmyer and Cardiges were being "taken care

of" by dealers, and Finley, the zone manager, admitted that Tom

Bohlander had paid him for the Honda "open point" dealership

franchise in West Cleveland.9 See, e.g., Boylan, 898 F.2d at 243

(noting that tacit accord among alleged conspirators is permissi-

bly inferred from evidence that defendants "often spoke to their

victims about other victims or other defendants in words which

plainly revealed that the crimes were interdependent"). Based on

this evidence, and there was more, the jury would have been

permitted to draw the reasonable inference that Pedersen and his

various supervisors over the years had developed a shared under-

standing of an "unwritten policy" at Honda: dealers had to pay

Billmyer and Cardiges, as well as other sales executives in the

9Significantly, Cardiges identified Finley, Novelly, and
Kutchera as fellow conspirators. In addition, Pedersen testified
that he subsequently received $5,000 from John Rosatti, a New
York Honda dealer who admittedly paid both Cardiges and Billmyer.
See supra Section II.B.3(a).

22

chain of command, in order to receive a Honda or Acura franchise

or other favorable treatment. Id.

John Orsini, a Honda and Acura dealer in Connecticut,

provided corroborative testimony at trial, characterizing the

kickbacks he had made to Billmyer, Pedersen, and Damien Budnick,

Pedersen's subordinate, as a "way of doing business" with Honda.

At Budnick's suggestion, Orsini met with Billmyer in September

1987 to discuss obtaining another Acura dealership. A few weeks

later, Billmyer offered Orsini a franchise in Nanuet, New York,

if Orsini created a "no-show" job for Billmyer's friend, Douglas

T. Richert, at $1,000 per week. After Orsini accepted the

Billmyer proposal, he received the Nanuet LOI.

Around the same time, Orsini discussed with Budnick and

Pedersen the possibility that Orsini might obtain a new dealer-

ship franchise in Salem, New Hampshire. According to Pedersen,

Orsini and other dealers routinely and unilaterally mentioned

Billmyer's name in conversation, as a means of "impress[ing]" on

Pedersen the dealers' established connections with higher-level

Honda sales managers. Orsini told Pedersen that he would be

willing to pay for the Salem franchise, but not the $50,000

demanded by Budnick. After agreeing to help secure the Salem

dealership for Orsini in February 1988, Pedersen received between

$2,000 and $4,000 in cash from Orsini. Thus, given the circum-

stantial evidence that both Billmyer and Pedersen shared a common

goal or plan to defraud Honda by accepting illicit consideration

for awarding new dealership franchises, the jury reasonably could

23

infer, by a preponderance of the evidence, that Billmyer and

Pedersen defrauded Honda in connection with the Salem, New

Hampshire LOI by accepting payoffs from a common source, Orsini.

See, e.g., Brandon, 17 F.3d at 450 (finding single conspiracy,

despite variations in details and tactics, where main objective,

structure, intended victim, and modus operandi remained con-

stant); supra Section I.

In addition to accepting illicit payments from Lia and

Orsini, the record demonstrates, by a preponderance of the

evidence, that Pedersen committed an overt act in New Hampshire

in furtherance of the Count II conspiracy, by accepting a free

Acura Integra from Bohlander's West Cleveland, Ohio, dealership

in 1986. After Bohlander and Pedersen became friends, Pedersen

agreed to help Bohlander acquire more Acura dealerships in

exchange for a silent ownership interest in a Nashua, New Hamp-

shire, dealership. Pedersen recommended Bohlander for the new

Nashua franchise, and in due course Bohlander received it.

Although Pedersen later declined an ownership interest in the

Nashua dealership, he nonetheless let Bohlander pay roughly

$18,000 in college tuition fees for Pedersen's son. Thus, the

evidence sufficed to demonstrate, by a preponderance, that venue

was proper in the District of New Hampshire. See Uribe, 890 F.2d

at 558.

Finally, there was evidence from which a rational jury

reasonably could have inferred, by a preponderance of the evi-

dence, that Bohlander routinely paid Billmyer and Cardiges as

24

well. Pedersen described a card game at Bohlander's Florida

condominium in February 1991, during which Bohlander and Lou

Tecco, a dealer associated with Marty Luftgarten, talked about

paying bribes as a "way of doing business" with Honda, and noted

that Billmyer and Cardiges had to be paid in order to get dealer-

ships and other favorable treatment. Along with the evidence

that Bohlander had paid Finley for the West Cleveland dealership

and that dealers commonly bribed sales executives at each succes-

sive level, see supra p. 22, Pedersen's testimony permitted the

jury reasonably to conclude that it was more likely than not that

Bohlander had paid Billmyer, the Acura Division head, as well as

Pedersen, in return for the Nashua dealership in 1987. Thus, the

similarity in the pattern of fraudulent transactions relating to

new dealership franchises, the common core of "insider" partici-

pants, and the temporal overlap would enable a rational jury

reasonably to infer, under the applicable preponderance standard,

that Pedersen, Billmyer, Josleyn, and Cardiges agreed, at least

tacitly, to defraud Honda by accepting illicit consideration from

candidates for new Honda dealership franchises in direct viola-

tion of established Honda policy and procedures. See Morrow, 39

F.3d at 1233-34; Bello-Perez, 977 F.2d at 668 (noting that

conspirators need not know all coconspirators); see also United

States v. Richerson, 833 F.2d 1147, 1152-54 (5th Cir. 1987).

C. Other Claims By Josleyn
C. Other Claims By Josleyn

1. Sufficiency of the Evidence
1. Sufficiency of the Evidence

(Counts I, III & IV)
(Counts I, III & IV)

After the government rested its case, Josleyn moved for

25

acquittal under Counts I, III, and IV, claiming that the evidence

was insufficient to establish, beyond a reasonable doubt, that

the Honda dealers and their dealer advertising associations had

been victimized by the alleged mail fraud since the dealers and

advertising associations had received the sales training and

advertising services for which they paid. This claim fails as

well.

In United States v. Allard, 926 F.2d 1237 (1st Cir.

1991), we explained that it is no "defense that the victim

received something in exchange even if it was equivalent in value

to what the victim was deceived into relinquishing." Id. at 1242

(citing United States v. King, 860 F.2d 54, 55 (2d Cir. 1988),

cert. denied, 490 U.S. 1065 (1989)). Given that the proper

inquiry under Allard is whether Josleyn intended to defraud the

dealers and advertising associations into parting with their

money, there was ample evidence, particularly the testimony of

Cardiges, to support the jury verdicts against Josleyn under

Counts I, III, and IV. 2. Jury Instructions on
2. Jury Instructions on

Condonation
Condonation

The district court rejected Josleyn's proposed jury

instruction that the government must prove, beyond a reasonable

doubt, that Honda had not condoned Josleyn's fraudulent activi-

ties. Ordinarily, a defendant is entitled to an instruction on

his theory of the case as long as it is legally valid and there

is sufficient evidence, viewed in the light most favorable to the

defendant, to permit a reasonable juror to credit the defendant's

26

theory. United States v. Flores, 968 F.2d 1366, 1368-69 (1st

Cir. 1992); United States v. Shenker, 933 F.2d 61, 65 (1st Cir.

1991). The government does not dispute that the evidence adduced

at trial would have permitted the jury to find that native

Japanese executives at the highest levels of Honda implicitly

condoned the acceptance of bribes and kickbacks. Nevertheless,

the trial court need not adopt the precise instructional language

proposed by the defendant. United States v. DeStefano, 59 F.3d

1, 3 (1st Cir. 1995).

Viewed as a whole, we think the instruction given by

the district court fairly summarized Josleyn's defense theory:

Since the essential element of the crime
charged is intent to defraud, it follows that
good faith on the part of the defendant is a
complete defense to a charge of mail fraud.
A defendant, however has no burden to estab-
lish a defense of good faith. The burden is
on the government to prove fraudulent intent
and the consequent lack of good faith beyond
a reasonable doubt.
. . . .

It is the defendant Josleyn's theory of
the case that American Honda knew of and con-
doned; that is, gave tacit approval to the
activities of its employees alleged in the
indictment that were in violation of its
policies. American Honda's knowledge or con-
donation of the commission of an offense does
not by itself constitute a defense or an

excuse. However, any evidence of American

Honda's actions or omissions, or evidence of

deficiencies in the manner in which it imple-

mented and enforced its policies and proce-

dures, may be considered by you to the extent

that such evidence bears on the issue of

whether or not Mr. Josleyn formed the re-

quired intent to commit the crimes with which

he is charged. Mr. Josleyn contends that

because he believed American Honda knew of
and condoned the activities in question, he

27

did not possess the required intent to commit
the offenses with which he is charged.
The defendant has no obligation what-
soever to prove to you that his theory is
correct, but rather the burden is always on
the government to prove all of the material
elements of each offense charged beyond a
reasonable doubt[,] including the element of
intent with respect to each offense[,] as I
have already explained to you. (Emphasis
added.)

The charge given by the trial judge unmistakably

permitted the jury to consider all the condonation evidence in

determining whether Josleyn had formed the requisite intent to

defraud Honda. No more was required. See generally New England

Enters., Inc. v. United States, 400 F.2d 58, 71-72 (1st Cir.

1968) (discussing "good faith" defense to mail fraud), cert.

denied, 393 U.S. 1036 (1969). Since Josleyn neither cites

authority, nor demonstrates, that any condonation by Honda was

relevant to an element of the charged offenses other than intent,

see Yefsky, 994 F.2d at 890-91 (listing elements of mail fraud

conspiracy and substantive mail fraud); see also Aetna Cas. Sur.

Co. v. P & B Autobody, 43 F.3d 1546, 1558-60 (1st Cir. 1994)

(RICO), we conclude that the jury instruction given by the

district court was adequate. See DeStefano, 59 F.3d at 3;

Shenker, 933 F.2d at 65-66 (rejecting proposed instruction

predicated on impermissibly broad defense); cf. United States v.

Wallach, 935 F.2d 445, 464 (2d Cir. 1991) (mail fraud statute

protects property interests of shareholders and corporation

against officers' schemes).

3. Impeachment of Cardiges
3. Impeachment of Cardiges

28

Josleyn contends that though the prosecutor was respon-

sible for deliberately suborning false testimony from Cardiges,

the district court unduly impeded Josleyn's efforts to impeach

Cardiges on cross-examination. These claims are meritless. See

generally United States v. Osorio, 929 F.2d 753, 759-60 (1st Cir.

1991) (approving reasonable restrictions by trial court on

repetitive, harassing, unduly prejudicial, irrelevant, or other-

wise improper cross-examination); cf. United States v. Tavares,

93 F.3d 10, 14-15 (1st Cir. 1996) (rejecting baseless perjury

allegation).

On cross-examination, defense counsel asked Cardiges to

explain two newspaper articles in which his lawyer reportedly

stated that the government had evidence that the top Japanese

managers at Honda knew about the alleged criminal activities in

its sales division. Cardiges testified that he neither autho-

rized the press statements, nor knew their basis. On redirect,

the prosecutor elicited testimony that though Cardiges and his

attorney had been afforded "open access" to the government's

file, Cardiges had seen "no documents that either indicated or

show[ed] that the Japanese knew anything about kickbacks or gifts

or anything like that." In response, Josleyn's counsel sought to

confront Cardiges with several FBI interview reports obtained

from the government's file which contained statements by Honda

employees to the effect that the Japanese knew about the bribes

and kickbacks.

The district court permitted defense counsel to use the

29

FBI reports for impeachment purposes, i.e., to show that Cardiges

either did not tell the truth, or had not reviewed the entire

contents of the government file. But the court ruled that the

FBI interview reports were inadmissible hearsay if offered for

their truth. See Innamorati, 996 F.2d at 480-81; Fed. R. Evid.

801(c) (defining hearsay). On appeal, Josleyn argues that the

district court impermissibly restricted recross-examination by

refusing to allow the jury to consider all hearsay statements in

the FBI interview reports.

Our review of the trial transcripts satisfies us that

the district court accorded Josleyn ample leeway to explore the

FBI interview reports in sufficient detail to enable the jury

fairly to weigh Cardiges' testimony relating to the government's

file. For example, Cardiges admitted on recross that he had

never seen the FBI interview reports, and was "quite sure" that

he was not able to get through the "thousands and thousands of

documents" during the four-hour period he spent reviewing the

government file. The district court did sustain several hearsay

objections when defense counsel attempted to delve more deeply

into the contents of the FBI interview reports. It did so

properly, however, since Josleyn proffered no relevant non-

hearsay purpose for probing further. Cf. United States v.

Hudson, 970 F.2d 948, 956-57 (1st Cir. 1992) (defense counsel

responded to hearsay objection with impeachment proffer). Nor

does Josleyn now challenge these hearsay rulings. Accordingly,

we find no error. See Fed. R. Evid. 103(a)(2).

30

4. Delayed Disclosure of Condonation Evidence
4. Delayed Disclosure of Condonation Evidence

Josleyn claims that he was deprived of a meaningful

opportunity to cross-examine Cardiges and other prosecution

witnesses due to the government's delayed disclosure of certain

letters written to the government by Cecil Proulx, a former Honda

executive, outlining his efforts in the late 1980s to bring the

pervasive bribes and kickbacks to the attention of Honda's top

Japanese executives. The government produced some of the Proulx

materials before trial, including a summary of his FBI interview,

but found and unseasonably produced additional material months

later upon learning that Josleyn intended to call Proulx as a

witness tending to show that Honda's Japanese managers had

condoned the illegal activities in its sales division. Josleyn

unsuccessfully moved to dismiss the indictment on due process

grounds.

Given the specific discovery request for condonation

evidence, the government plainly had an obligation to furnish

Josleyn with the Proulx materials in a more timely fashion. See

United States v. Sepulveda, 15 F.3d 1161, 1178 (1st Cir. 1993),

cert. denied, 114 S. Ct. 2714 (1994); see also Fed. R. Crim. P.

16(a)(1)(C) (discovery relating to documents material to de-

fense); 16(c) (continuing duty to disclose). Since the govern-

ment failed seasonably to disclose evidence "material to guilt or

punishment," United States v. Devin, 918 F.2d 280, 289 (1st Cir.

1990) (citing Brady v. Maryland, 373 U.S. 83, 87 (1963)), which

includes both exculpatory and impeachment evidence, we inquire

31

whether as a consequence of the delayed disclosure defense

counsel was unable to use the material "effectively in preparing

and presenting the defendant's case." Id. (quoting United States

v. Ingraldi, 793 F.2d 408, 411-12 (1st Cir. 1986)). Due to its

greater familiarity with the dynamics of the case, we will not

reverse a district court's ruling on delayed disclosure unless it

amounts to a demonstrable abuse of discretion. Id. We discern

no abuse of discretion.

First, a principal concern in delayed disclosure cases

whether the failure to supply the information in a seasonable

fashion caused the defense to change its trial strategy, see id.

at 290 is not significantly implicated in this case. Josleyn

consistently pursued the same defense theory both before and

after the Proulx materials were provided, by arguing that the

Japanese managers at Honda had condoned the charged conduct.

Secondly, even though the Proulx materials unquestionably provid-

ed additional support for the condonation "defense," we are not

persuaded that the delay in disclosure adversely affected the

defense in any important respect. In fact, while Cardiges was on

the witness stand, Josleyn's counsel observed that "the

government's file is like 100,000 pages or so." See also infra

note 10. The defense took full advantage of the condonation

evidence by using it in its own case, even before the tardily

produced Proulx materials were made available, then featured the

32

government's delayed disclosure in its closing argument.10

On this record, we think the district court soundly

concluded that the Proulx materials added little to the evidence

previously produced by the government, and therefore its late

disclosure had not impeded Josleyn's defense to a significant

degree. See United States v. Catano, 65 F.3d 219, 227 (1st Cir.

1995) (noting cumulativeness of impeachment materials);

Sepulveda, 15 F.3d at 1179 (holding that failure to produce

"incremental information" caused no prejudice). We note as well

that Josleyn makes no claim that the prosecutor intentionally de-

layed disclosure.

Furthermore, and by no means least importantly, the

only relief Josleyn requested was the outright dismissal of the

indictment. The district court has broad discretion to redress

discovery violations in light of their seriousness and any

prejudice occasioned the defendant. Osorio, 929 F.2d at 762-63;

see also Fed. R. Crim. P. 16(d)(2) (authorizing district court to

"permit the discovery or inspection, grant a continuance, or

prohibit the party from introducing the evidence not disclosed,

10Defense counsel argued in closing:

When you ask [a witness] a question, when the
question is asked [whether] you've gone through our
files and there's nothing there to indicate that Ameri-
can Honda executives knew about these activities, or a
question of that type, and there's tons of things,
reams of things in that file, that's wrong. When the
file isn't even complete because you have a memorandum
from Mr. Proulx that you haven't turned over to the
defense at all and don't get turned over till weeks
later, well, isn't that question kind of a little bit
false?

33

or . . . enter such other order as it deems just under the

circumstances"). On the other hand, the draconian relief demand-

ed by Josleyn was grossly disproportionate both to the

prosecution's nonfeasance and any prejudice to the defense. See

Bello-Perez, 977 F.2d at 670 (favoring continuance over dismiss-

al); accord Devin, 918 F.2d at 290-91. As Josleyn eschewed

various alternative remedies more consonant with the government's

culpability and any prejudice to the defense, see, e.g., Osorio,

929 F.2d at 762-63 (noting, as alternative remedies, recalling

witness for additional cross-examination, affording defense

greater leeway with witnesses, and instructing jury that govern-

ment failed to meet discovery obligations), we find no abuse of

discretion in refusing to dismiss the indictment.

5. Closing Argument
5. Closing Argument

Josleyn claims that the lead prosecutor improperly

vouched for the credibility of government witnesses, and Cardiges

in particular, during rebuttal. Absent contemporaneous objec-

tion, we may notice only "plain error." United States v. Tuesta-

Toro, 29 F.3d 771, 776-77 (1st Cir. 1994), cert. denied, 115 S.

Ct. 947 (1995); Fed. R. Crim. P. 52(b). Viewed in the context of

the entire trial, United States v. Smith, 982 F.2d 681, 682 (1st

Cir. 1993), the prosecutor's remarks, though plainly inappropri-

ate, did not undermine the fundamental fairness of Josleyn's

trial. See United States v. Young, 470 U.S. 1, 16 (1985).

Although at times it may be difficult to distinguish

improper vouching from zealous advocacy, there can be no doubt

34

that the statements at issue here constituted improper rebuttal:

Now there was a lot of suggestion of false
play in this case. I want to say this. I'm
a married person with a family, and I go home
at night with a sound conscience. I have
worked very hard on this case. Mr. Feith has
worked very hard on this case. Mr. Mulvaney
and Miss Roux have worked very hard on this
case. And we are very proud of what we have
done. We have done nothing to be ashamed
of.11

Injecting the prosecutor's personal life and individual efforts

into the decisional mix not only invited the jury to consider

irrelevant matters beyond the record, but unfairly evoked jury

sympathy and diverted attention from the relevant evidence. See

United States v. Rosales, 19 F.3d 763, 767 (1st Cir. 1994)

(prosecutor denied fabricating evidence against defendant).

There should be no need to remind federal prosecutors

that they are not free to disregard the bounds of proper argument

even in response to perceived provocation. See Young, 470 U.S.

at 18-19. The important precept that the prosecutor may not

vouch for the credibility of a government witness is deeply

rooted in American law. See Rosales, 19 F.3d at 767 ("When the

11Nor have we any doubt that defense counsel provoked the
prosecution to these excesses. See United States v. Grabiec,

F.3d , (1st Cir. 1996) [No. 96-1131, slip op. at 4 (1st Cir.
Sept. 25, 1996)]. Referring to Cardiges' testimony, Josleyn's
counsel argued: "It's wrong to lie, and it's also wrong to help
you lie; to ask them questions [when you know] that the answers
are going to be untrue. . . . I call it disgusting." Later, he
added: "You want to see mail fraud? Stick this indictment in
the mail and you'll see a mail fraud." Josleyn's counsel made an
improper appeal for jury nullification as well: "People aren't
born and the Almighty says you may be a prosecutor. That's a
right that's given by the people. It's a trust. And when it's
abused, somebody's got to do something about it."

35

prosecutor places the credibility of counsel at issue, the

advantage lies with the government . . . .") (citations omitted).

Thus, a prosecutor may not lend the prestige of the government to

buttress a witness, nor indicate to the jury that information

known to the prosecutor, but not admitted in evidence, supports

the government's theory of the case. Young, 470 U.S. at 18-19.

The appropriate response for the prosecutor in these

circumstances is to lodge a contemporaneous objection and request

an appropriate curative instruction. See id. at 13. Failing

that, the prosecutor is constrained to a fair discussion of the

evidence. But for the brief passage challenged on appeal, see

supra p. 34, the prosecution adhered to the appropriate standard.

Under the "plain error" standard, appellants bear the

burden of showing that the prosecutor's remarks resulted in

prejudice, i.e., affected their substantial rights. See United

States v. Olano, 507 U.S. 725, 732-34 (1993). Even then, howev-

er, we will not notice error unless it caused "a miscarriage of

justice" or seriously undermined "the integrity or public reputa-

tion of judicial proceedings." Id. We must consider the likely

impact the prosecutor's remarks had on the jury in light of the

entire record, including the closing argument presented by the

defense. Young, 470 U.S. at 16-17.

Compared with defense counsel's attack against the

integrity of the prosecuting attorneys throughout closing argu-

ment, see supra note 11, their rebuttal was moderate. See United

States v. Oreto, 37 F.3d 739, 746 (1st Cir. 1994) (tolerating

36

measured response to repeated attempts to magnify government mis-

conduct), cert. denied, 115 S. Ct. 1161 (1995). In all events,

the district court prudently countered the risk of serious

residual prejudice by promptly cautioning the jury that counsel's

arguments are not evidence, and directing the jury to base its

verdicts solely on the evidence. See United States v. Mejia-

Lozano, 829 F.2d 268, 274 (1st Cir. 1987). Given the over-

whelming evidence against Josleyn, see supra Section II.B.3(b),

the provocative excesses in the closing argument presented by his

own counsel, and the timely jury instructions by the district

court, the improper remarks by the prosecutor in rebuttal did not

rise to the level of plain error. See Rosales, 19 F.3d at 767-68

(finding similar vouching harmless error).12

D. The Billmyer Sentencing Claim
D. The Billmyer Sentencing Claim

Billmyer challenges a two-level enhancement of his base

offense level ("BOL") for abusing a position of private trust.

See U.S.S.G. 3B1.3 (1995). We review the 3B1.3 ruling de

novo. United States v. Tardiff, 969 F.2d 1283, 1289 (1st Cir.

12Citing United States v. DiLoreto, 888 F.2d 996, 999 (3d

Cir. 1989), Josleyn suggests that prosecutorial vouching requires
reversal per se. DiLoreto was not only inconsistent with First

Circuit case law, it has been overruled. See United States v.

Zehrbach, 47 F.3d 1252, 1264-65 (3d Cir.) (en banc), cert.

denied, 115 S. Ct. 1699 (1995). Furthermore, Josleyn's strongest

authority, see United States v. Smith, 962 F.2d 923, 933-36 (9th

Cir. 1992) (finding plain error), is readily distinguishable.
There, defense counsel did not allege that the prosecutor either
withheld evidence or suborned perjury, id. at 934; moreover, the

prosecutor had invoked both the prestige of the government and

the authority of the court in rebuttal, id. at 936; cf. United

States v. Perez, 67 F.3d 1371, 1379 (9th Cir. 1995) (distinguish-

ing Smith on latter ground).

37

1992). As Billmyer acknowledges a sound factual basis for the

3B1.3 enhancement, we need only apply the pertinent guideline

language.

If the defendant abused a position of public
or private trust, or used a special skill, in
a manner that significantly facilitated the
commission or concealment of the offense,
increase by 2 levels. This adjustment may
2
not be employed if an abuse of trust or skill

is included in the base offense level or

specific offense characteristic.

U.S.S.G. 3B1.3 (Nov. 1995) (emphasis added).

The district court applied U.S.S.G. 2B4.1 (commercial

bribery) to determine Billmyer's BOL. As the specific offense

characteristics listed in 2B4.1(b) are not germane,13 we must

consider whether the BOL prescribed in 2B4.1 "included" an

13Section 2B4.1(b) provides:

Specific Offense Characteristics

(1) If the greater of the value of the bribe or the
improper benefit conferred exceeded $2,000, in-
crease the offense level by the corresponding
number of levels from the table in 2F1.1 [of-
fense-conduct guideline for fraud and de-
ceit/forgery].

(2) If the offense --

(A) substantially jeopardizes the safety and
soundness of a financial institution; or

(B) affected a financial institution and the
defendant derived more than $1,000,000 in
gross receipts from the offense,

increase by 4 levels. If the resulting offense
4
level is less than 24, increase to level 24.
24 24

U.S.S.G. 2B4.1(b).

38

abuse-of-trust component which would render the offense level

enhancement invalid under the second sentence in 3B1.3.

The Guidelines prohibit the sentencing court from

imposing an abuse-of-trust enhancement in a public bribery case,

see U.S.S.G. 2C1.1, comment. (n.3), unless special circumstanc-

es require reference to other offense guidelines, see id.

2C1.1(c). Thus, in its main thrust the present challenge at-

tempts to equate Billmyer's commercial bribery offense with

bribery of a public official. According to Billmyer, the same

general rule must apply because public bribery and private

bribery are "virtually identical" offenses. We are not persuad-

ed.

The absence of an explicit provision restricting the

application of the abuse-of-trust enhancement in commercial

bribery cases severely undercuts the analogy urged by Billmyer.

See United States v. Newman, 982 F.2d 665, 673-74 (1st Cir. 1992)

(applying expressio unius est exclusio alterius principle in this

sentencing context), cert. denied, 510 U.S. 812 (1993). Further-

more, the Sentencing Commission took pains throughout the Guide-

lines to specify the circumstances in which courts should not

impose enhancements for abuse of trust.14 In sum, the overall

structure of the Guidelines simply does not warrant the categori-

14See, e.g., U.S.S.G. 2A3.1(b)(3), comment. (n.4) (sexual

abuse); id. 2H1.1(b)(1), comment. (n.5) (violating civil

rights); id. 2P1.1(b)(1), comment. (n.3) (prison escape); id.

2T1.4(b)(1), comment. (n.2) (aiding tax fraud); see also Newman,

982 F.2d at 673-74; cf. United States v. Wong, 3 F.3d 667, 670

(3d Cir. 1993) (noting Commission's awareness of potential for
"double counting").

39

cal ban advocated by Billmyer.

Moreover, not only does Billmyer cite no supporting

case law, but our research discloses ample authority for imposing

an abuse-of-trust enhancement in such a case. For example, in

United States v. Butt, 955 F.2d 77 (1st Cir. 1992), the court

provided clear explication of its rationale for upholding an

abuse-of-trust enhancement in the case of a police officer

convicted on a RICO charge, even though the underlying racketeer-

ing activity included extortion under color of right.

The base offense level prescribed by the
guidelines for a particular crime presumably
reflects, or "includes," those characteris-
tics considered by Congress to inhere in the
crime at issue. In the case of extortion
under color of right, abuse of trust would be
one such characteristic, since Congress could
reasonably have determined that every act of
extortion under color of right involves an
abuse of public trust. Because the RICO
statute, by contrast, can be violated in
innumerable ways, there are, arguably, no of-
fense characteristics common to all RICO
offenses.

Id. at 89. The same holds true here.

Billmyer was convicted of mail fraud conspiracy in

violation of 18 U.S.C. 371. As not every mail fraud conspiracy

involves an abuse of trust, we cannot conclude that the BOL for

commercial bribery necessarily includes an abuse-of-trust element

so as to preclude an enhancement pursuant to 3B1.3. See United

States v. Kummer, 89 F.3d 1536, 1546-47 (11th Cir. 1996) (reject-

ing similar argument under U.S.S.G. 2E5.1 (bribe affecting

employee benefit plan)); cf. United States v. Connell, 960 F.2d

191, 199 (1st Cir. 1992) (finding that BOL applicable to currency

40

reporting violations did not encompass stockbroker's special

skill).15 United States v. Sinclair, 74 F.3d 753, 762-

63 (7th Cir. 1996), likewise demonstrates that the commercial

bribery guideline does not take into account an abuse of trust.16

Sinclair, a bank officer, was convicted of accepting a bribe in

violation of 18 U.S.C. 215(a)(2), a crime that would seem

almost invariably to entail an abuse of trust. Yet the court

noted that the statute did not define a single crime, see id.

215(a)(1) (prohibiting person from offering bribe to bank offi-

cer), and reasoned that it would be wrong to require that the

briber, who did not necessarily breach a position of trust,

receive the same sentence as the bank-officer recipient.

Sinclair, 74 F.3d at 763. Similarly, we think Billmyer's greater

culpability, relative to other defendants who need not necessari-

ly have abused a position of trust in the course of a mail fraud

conspiracy, entitled the district court to impose the 3B1.3

adjustment in this case. Accordingly, we affirm the enhancement.

15One reasonable explanation for the two-level difference
between the BOL for private bribery, see U.S.S.G. 2B4.1 (level

8), and public bribery, see U.S.S.G. 2C1.1 (level 10), may lie

in the fact that the Sentencing Commission factored the abuse-of-
trust element into the BOL for public bribery only.

16Sinclair is the only case involving an abuse-of-trust

enhancement under U.S.S.G. 2B4.1. We note, however, that other
courts commonly allow an abuse-of-trust enhancement in embezzle-
ment cases under U.S.S.G. 2B1.1. See, e.g., United States v.

Broumas, 69 F.3d 1178, 1182 (D.C. Cir. 1995), cert. denied, 116

S. Ct. 1447 (1996).

41

III
III

CONCLUSION
CONCLUSION

Finding no reversible error, the district court judg-

ments are affirmed.

AFFIRMED.
AFFIRMED.

42