FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-15530
Plaintiff-Appellee, D.C. No.
v. 1:10-cv-00406-
GARY WAYNE RODRIGUES, DAE-KSC
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the District of Hawaii
David A. Ezra, District Judge, Presiding
Argued and Submitted
February 15, 2012—Honolulu, Hawaii
Filed March 27, 2012
Before: Alfred T. Goodwin, Stephen S. Trott, and
Mary H. Murguia, Circuit Judges.
Opinion by Judge Trott
3461
UNITED STATES v. RODRIGUES 3463
COUNSEL
Eric A. Seitz, Honolulu, Hawaii, for the defendant-appellant.
Lawrence L. Tong, Assistant United States Attorney, Hono-
lulu, Hawaii, for the plaintiff-appellee.
3464 UNITED STATES v. RODRIGUES
OPINION
TROTT, Circuit Judge:
“Oh what a tangled web we weave
when first we practice to deceive!”
Sir Walter Scott, Marmion, Canto VI, Stanza 17.
In his capacity as the State Director of the United Public
Workers, AFSCME, Local 646, AFL-CIO (“UPW”) Peti-
tioner Gary Wayne Rodrigues negotiated contracts with den-
tal and health insurance providers, ostensibly on behalf of
UPW members and their families. The providers were Hawaii
Dental Services (“HDS”) and Pacific Group Medical Associa-
tion (“PGMA”). At Rodrigues’s request, the providers
included in these contracts what purported to be “consultant’s
fees.” These fees were effectively to be paid by UPW mem-
bers as part of their insurance premiums to the insurance pro-
viders, but the fees eventually ended up in the pockets of
persons Rodrigues designated as the “consultants.” As it
turned out, the purported consultants were (1) the stepfather
of Rodrigues’s girlfriend and secretary, Al Loughrin, and (2)
shell companies of which Rodrigues’s daughter, Robin Hau-
nani Rodrigues Sabatini (“Sabatini”), was the sole share-
holder, only Director, and simultaneously the President, Vice
President, Secretary, and Treasurer. During the investigation
of these relationships and transactions, it was discovered that
neither designated consultant did any real consulting work on
these contracts, and that part of the “consultant’s fees” were
diverted to Rodrigues’s personal use — circumstances
unknown to the UPW.
A jury convicted Rodrigues of fifty counts of “theft of hon-
est services” from the UPW and its members. The jury also
convicted him of conspiracy, embezzlement, money launder-
ing, and health care fraud.
UNITED STATES v. RODRIGUES 3465
After we affirmed his conviction on appeal, United States
v. Rodrigues, 237 Fed. Appx. 178 (9th Cir. June 11, 2007)
(unpublished), the Supreme Court decided in Skilling v.
United States, ___ U.S. ___, 130 S. Ct. 2896 (2010), that the
crime of theft of the intangible right of honest services, as
described in 18 U.S.C. § 1346 and alleged in Counts 1-50, is
limited to conduct that encompasses “bribes and kickbacks,”
id. at 2932, because any broader construction would be
unconstitutionally vague, id. at 2929. The jury in Rodrigues’s
case had not been so instructed, leaving us here with an
instructional omission of constitutional proportions regarding
an element of the crime of which he was convicted. We must
now decide, as commissioned by the Court in Skilling,
whether that trial error was harmless, or not.
Following a searching examination of the record, we con-
clude beyond a reasonable doubt that this error had no “sub-
stantial and injurious effect or influence in determining the
jury’s verdict,” Brecht v. Abrahamson, 507 U.S. 619, 623
(1993) (internal quotation marks omitted); see also Hedgpeth
v. Pulido, 555 U.S. 57, 61-62 (2008) (per curiam) (whether a
defendant suffered prejudice from an instructional error is
governed by the Brecht standard); Neder v. United States, 527
U.S. 1, 15 (1999) (harmlessness with respect to the omission
of an element of the offense from the instructions must be
demonstrated beyond a reasonable doubt). Accordingly, we
affirm the theft of honest services, money laundering, and
health care fraud judgments of conviction against Rodrigues
and the denial of his petition by the district court.
BACKGROUND
The serial consultants Rodrigues designated in this scheme
were Al Loughrin (“Loughrin”), and later, effectively Rodri-
gues’s daughter Robin Haunani Rodrigues Sabatini
(“Sabatini”), whose companies at different times received the
disputed consultant’s fees from UPW. Loughrin was the
“UPW Consultant” from October 2, 1992 until March 16,
3466 UNITED STATES v. RODRIGUES
1994. Loughrin, to whom Petitioner owed $10,000, was also
the stepfather of Petitioner’s one-time girlfriend and secretary,
Georgietta Carol. Between 1992 and 1994, HDS paid
Loughrin $14,430.21 in “consultant’s fees.” This money went
to extinguish a personal debt Rodrigues owed to Loughrin, a
debt that had no connection to UPW business. Loughrin’s
widow and Carol both testified that Loughrin did not perform
any consulting work for UPW in exchange for the fees.
On March 16, 1994, after the personal debt to Loughrin had
been satisfied, Petitioner informed HDS that Loughrin was no
longer a UPW consultant. Rodrigues then directed that all
consultant’s fees should be held until a new consultant was
designated. Thereafter, Petitioner designated his daughter’s
company, Four Winds RSK, Inc. (“Four Winds”) of Kapaa,
Kauai as the “consultant.” Four Winds was not incorporated
until February 13, 1996. At that point, HDS “cleared its
books” with respect to the accrued consultant’s fees by writ-
ing a check in the amount of $25,381.19 to Four Winds on
March 25, 1996, covering premiums paid by UPW for the
period from January 1994 through December 1995—before
Four Winds was incorporated. Beginning on March 26, 1996
and through 1997, HDS continued to make quarterly pay-
ments to Four Winds. At trial, various UPW witnesses testi-
fied that they had no contact with Four Winds other than to
send it checks, and that they had never seen any work pro-
duced by Sabatini.
In late 1997, adverse attention was drawn by the media to
Four Winds, so Sabatini transferred Four Winds’ assets to a
new company called Auli’i, Inc., which was incorporated
using only her middle and maiden names. At Rodrigues’s
direction, HDS then began indirectly to make payments to
Auli’i, Inc. in 1998 by paying the consultant’s fees to Volun-
tary Employees Benefit Association of Hawaii (“VEBAH”).
VEBAH then paid the fees to Management Applied Program-
ming (“MAP”), which in turn paid Auli’i, Inc. Sabatini at this
time tried to make it seem as though she had performed con-
UNITED STATES v. RODRIGUES 3467
sulting work, but in actuality all the documentation and work
she submitted to MAP had been done by UPW employees.
JURY INSTRUCTION
The jury was instructed with respect to mail fraud as
charged in Counts 1-50 as follows:
First, the defendant knowingly devised a scheme or
artifice to deprive UPW and its members of their
right to Defendant Gary Rodrigues’ honest services
as the state director of UPW; Second, the defendant
acted with the intent to deprive UPW and its mem-
bers of their right to the honest services of Gary
Rodrigues; Third, the defendant knew or reasonably
should have foreseen that the scheme could cause
some economic or pecuniary harm to the UPW and
its members. Pecuniary harm may include, but is not
limited to, loss of services that were due; and Fourth,
in advancing, or furthering, or carrying out, or
attempting to carry out an essential part of the
scheme, the defendant caused the use of the United
States mails.
Pursuant to Skilling, the appropriate instruction for this
charge is now found in our 2010 Ninth Circuit Model Crimi-
nal Jury Instructions for “Mail Fraud — Scheme to Defraud
— Deprivation of Right to Honest Services.” This new Skil-
ling instruction requires a jury to find that:
First, the defendant devised or knowingly partici-
pated in a scheme or plan to deprive [victim] of [his]
[her] right of honest services; Second, the scheme or
plan consists of a [bribe] [kickback] in exchange for
the defendant’s services. The “exchange” may be
express or may be implied from all the surrounding
circumstances; Third, the defendant acted with the
intent to defraud by depriving [victim] of [his] [her]
3468 UNITED STATES v. RODRIGUES
right of honest services; Fourth, the defendant’s act
was material; that is, it had a natural tendency to
influence, or was capable of influencing, [a person’s]
[an entity’s] acts; and Fifth, the defendant used, or
caused someone to use the mails to carry out or to
attempt to carry out the scheme or plan.
Ninth Circuit Model Criminal Jury Instructions 8.123 (2010).
Using this new instruction as a guide, our task thus is to
ascertain whether it is “clear beyond a reasonable doubt that
a rational jury would have found [Rodrigues] guilty [of theft
of honest services] absent the error.” Neder, 527 U.S. at 18.
Accordingly, we ask “in typical appellate-court fashion, . . .
whether the record contains evidence that could rationally
lead to a contrary finding with respect to the omitted ele-
ment.” Id. at 19. Our review of the district court’s harmless
error determination is de novo, its finding of facts is for clear
error. Padilla v. Terhune, 309 F.3d 614, 617, 621 (9th Cir.
2002).
KICKBACKS
The Supreme Court in Skilling gave us a classic example of
a kickback, the elements and DNA of which we have in mind
as we begin our analysis. The factual example chosen by the
Court comes from McNally v. United States, 483 U.S. 350
(1987), which the Skilling Court portrayed as follows:
A public official, in exchange for routing Kentucky’s
insurance business through a middleman company,
arranged for that company to share its commissions
with entities in which the official held an interest.
This was no mere failure to disclose a conflict of
interest; rather, the official conspired with a third
party so that both would profit from wealth gener-
ated by public contracts.
UNITED STATES v. RODRIGUES 3469
Skilling, 130 S. Ct. at 2932 (citations omitted).
The Court also defined a kickback as “any money, fee,
commission, credit, gift, gratuity, thing of value, or compen-
sation of any kind which is provided, directly or indirectly, to
[enumerated persons] for the purpose of improperly obtaining
or rewarding favorable treatment in connection with [enumer-
ated circumstances].” Id. at 2933-34 (brackets in original)
(quoting 41 U.S.C. § 52(2)).
THE INDICTMENT
[1] First, we turn to the Indictment to ascertain whether
Rodrigues was on notice he was facing charges that included
allegations of conduct that qualified as kickbacks. He was.
The Second Superseding Indictment charges Rodrigues in
Counts 1-50 with an honest services “scheme to defraud”
UPW and its members. The “manner and means of the
scheme to defraud” alleges that Rodrigues caused “money [to
be] paid out of UPW accounts to HDS ostensibly as premiums
for dental benefits which was in excess of the premiums
required by HDS to provide the dental benefits to UPW mem-
bers.” The Indictment then alleges as “acts by the defendants
in furtherance of the scheme” as follows:
1. It was a part of the scheme and artifice to
defraud that on or about June 9, 1992, and thereafter
renewed annually, defendant GARY WAYNE
RODRIGUES, on behalf of UPW, negotiated a con-
tract with HDS to provide dental benefits for mem-
bers of UPW. Defendant GARY WAYNE
RODRIGUES also negotiated an “Addendum” to the
contract for a consulting fee to be paid to UPW’s
designated consultant. The cost of the consulting fee
was added to the premium that HDS charged UPW
for the dental coverage for its members.
2. It was further a part of the scheme and artifice
to defraud that defendant GARY WAYNE RODRI-
3470 UNITED STATES v. RODRIGUES
GUES informed the Executive Board that HDS
would be providing dental benefits to UPW mem-
bers for a specified premium amount but did not dis-
close the fact that the premiums charged by HDS
were inflated to include the consulting fee negotiated
by defendant GARY WAYNE RODRIGUES.
3. It was further a part of the scheme and artifice
to defraud that from approximately October 2, 1992
to approximately March 16, 1994, defendant GARY
WAYNE RODRIGUES directed HDS to pay the
consulting fees to an individual, now deceased, [Al
Loughrin] to pay off a personal loan from that indi-
vidual to defendant GARY WAYNE RODRIGUES.
4. It was further a part of the scheme and artifice
to defraud that defendant GARY WAYNE RODRI-
GUES did not disclose or account to the Executive
Board of UPW or to the membership of UPW that he
had directed the payment of consulting fees payable
under the UPW-HDS contract to an individual as
payment for a personal debt of defendant GARY
WAYNE RODRIGUES.
5. It was further a part of the scheme and artifice
to defraud that defendant GARY WAYNE RODRI-
GUES, in a letter dated March 16, 1994 to HDS,
requested that all consultant fees be held by HDS
until further notification.
6. It was further a part of the scheme and artifice
to defraud that sometime prior to March 25, 1996,
defendant GARY WAYNE RODRIGUES,
instructed HDS to pay the consultant fees held by
HDS under the UPW contract, to Four Winds RSK,
Inc., which was incorporated by defendant GARY
WAYNE RODRIGUES’S daughter, defendant
UNITED STATES v. RODRIGUES 3471
ROBIN HAUNANI RODRIGUES SABATINI on
February 13, 1996.
7. It was further a part of the scheme and artifice
to defraud that defendant GARY WAYNE RODRI-
GUES did not disclose to the Executive Board of
UPW or to the membership of UPW that he had
directed the payment of consulting fees payable
under the UPW-HDS contract to his daughter’s com-
pany.
8. It was further a part of the scheme and artifice
to defraud that defendants GARY WAYNE RODRI-
GUES and ROBIN HAUNANI RODRIGUES
SABATINI caused HDS to mail on approximately
March 28, 1996, a check payable to Four Winds
RSK for consultant fees in one lump sum of
$25,381.19 for the period January 1994 to December
1995, when, in fact, Four Winds RSK, Inc., was not
in existence until February, 1996 and could not have
and did not perform any consulting work for UPW.
9. It was further a part of the scheme and artifice
to defraud that defendants GARY WAYNE RODRI-
GUES and ROBIN HAUNANI RODRIGUES SUB-
ATINI caused HDS to mail three additional checks
in 1996 to Four Winds RSK, Inc., for consultant fees
totalling [sic] $20,945.26 when, in fact, Four Winds
RSK, Inc., performed no consulting work for UPW.
10. It was further a part of the scheme and artifice
to defraud that defendants GARY WAYNE RODRI-
GUES and ROBIN HAUNANI RODRIGUES
SABATINI caused HDS to mail a total of 4 checks
in 1997 to Four Winds RSK, Inc., for consulting fees
totalling [sic] $45,358.40, when in fact, Four Winds
RSK, Inc. performed no consulting work for UPW.
3472 UNITED STATES v. RODRIGUES
11. It was further a part of the scheme to defraud
that GARY WAYNE RODRIGUES failed to dis-
close to the Executive Board of UPW and to the
UPW members that Four Winds RSK, Inc., or
ROBIN HAUNANI RODRIGUES SABATINI, his
daughter, received consulting fees, based on the den-
tal benefits contract between HDS and UPW and that
no work was performed by Four Winds RSK, Inc.,
or ROBIN HAUNANI RODRIGUES SABATINI
for the consulting fees.
[2] The Indictment also included (1) similar specific fac-
tual allegations regarding Rodrigues’s use of VEBAH and
MAP as intermediaries to funnel these fees from HDS to
Auli’i, Inc., his daughter’s shell company; and (2) allegations
against Rodrigues concerning the same scheme involving
consultant’s fees directed from PGMA to his daughter’s cor-
poration.
[3] In summary, there can be no doubt whatsoever that the
Indictment charges Rodrigues with a textbook example of
kickbacks.
THE EVIDENCE
[4] Close scrutiny of the Government’s case offered to
prove the kickback allegations in the Indictment assures us
that the Government’s convincing evidence overwhelmingly
proved its charges. Rodrigues — not HDS — proposed the
idea of consultant’s fees before he closed the deal with HDS.
Then, he steered those fees, which were not earned, to his
daughter’s and to his own use. Not only did he use this pro-
cess to discharge a personal $10,000 loan to a sham consul-
tant, Al Loughrin, but he used part of the money he channeled
to his daughter to purchase a Ford Ranger pickup truck for
$14,213.64. He purchased this truck from Honolulu Ford on
December 3, 1996, with a cashier’s check in that amount
issued by First Hawaiian Bank. His daughter Sabatini pur-
UNITED STATES v. RODRIGUES 3473
chased that check from the bank payable to Honolulu Ford on
December 2, 1996. A Special Agent for the Internal Revenue
Service testified that he tracked to Four Winds the money
Sabatini used to purchase the check. Rodrigues then person-
ally used this cashier’s check to close the deal. He titled the
truck in his own name. The agent also traced money paid by
HDS as consultant’s fees through Four Winds and Auli’i, Inc.
to another daughter, Shelly Rodrigues, and from Four Winds
to Rodrigues’s mother, Gertrude. In turn, bank records
showed subsequent money transfers from Gertrude back to
Rodrigues.
[5] The quality of the Government’s evidence was virtu-
ally unassailable. Every material point to which a Govern-
ment witness testified was corroborated by undisputed
documentary evidence, such as the First Hawaiian Bank cash-
ier’s check, business records from Honolulu Ford, a letter
dated October 2, 1992, from UPW signed by Rodrigues desig-
nating Loughrin as its consultant, and a subsequent check
from HDS to Loughrin to pay for a sprinkler system installed
on Rodrigues’s property in Oregon.
THE DEFENSE
Against this wall of evidence, Rodrigues raises three
claims, asserting that the Government proved nothing more
than an undisclosed conflict of interest.
[6] First, Rodrigues asserts “there was no showing that the
[consultant’s] fees were payments in exchange for UPW
renewing its contracts with HDS and PGMA.” This allegation
grossly mischaracterizes the deal Rodrigues brokered. Prior to
its contractual arrangement with HDS, UPW already had a
dental plan with another company, the Hawaiian Medical Ser-
vices Association. At a meeting between Rodrigues and HDS
President Dr. Wallace Loo, held after HDS solicited the same
business for itself, Rodrigues raised the issue of consultant
fees, not Dr. Loo. When Loo then offered such an arrange-
3474 UNITED STATES v. RODRIGUES
ment, Rodrigues accepted on behalf of UPW in a letter dated
January 30, 1992:
Dear Dr. Loo:
We have reviewed your proposal for the group
dental plan for our members. We agree to:
...
2. The one percent (1%) Administrative
fee and the one percent (1%) Consul-
tant fee.
An addendum to the contract memorialized the agreement
as follows:
HDS agrees to pay to UPW AFSCME Local 646,
AFL-CIO Hawaii, 1% of Employer’s Payments as
consultant’s fee. Upon notification, HDS agrees to
pay 1% to UPW’s designated consultant.
Clearly, HDS’s acceptance of Rodrigues’s consultant’s fees
proposal sealed the deal, and the die was cast. When addi-
tional contracts were signed between UPW and HDS, the con-
sultant’s fees increased to 2.2%.
[7] Next, Rodrigues argues that the “consultant’s fees”
paid to Al Loughrin and to his daughter’s shell companies
cannot qualify as kickbacks because the fees were not paid
directly to him. This argument is spurious. To begin with,
Rodrigues and his daughter/co-defendant Sabatini were co-
conspirators in this crime, as established by her conspiracy
conviction with respect to this fee arrangement. As the Gov-
ernment correctly asserts, to honor Rodrigues’s argument
would allow a person committing honest services fraud to
avoid legal responsibility simply by directing illegal payments
to a co-conspirator. Such a rule foolishly would create a loop-
UNITED STATES v. RODRIGUES 3475
hole through which all kickbacks could then slither
unchecked, thereby eviscerating § 1346. Moreover, Rodrigues
did personally receive direct benefits from this scheme —
albeit laundered — as demonstrated first by his use of the fees
to satisfy his outstanding $10,000 debt to Loughrin, and then
by his use of HDS consultant’s fees to purchase a truck. In the
words of Skilling, Rodrigues did illegally “profit from wealth
generated by public contracts.” Skilling, 130 S. Ct. at 2932.
[8] Finally, Rodrigues protests that this fee arrangement
cannot be a kickback because it was not a result of “coercion
or a secret agreement.” It is certainly true that the contractual
consultant’s fees arrangement between UPW and HDS was
out in the open, but the arrangement kept secret the salient
facts that (1) the consultants did no consulting work, (2)
Rodrigues was funneling money to his daughter’s and to his
own use, and (3) this deal increased premiums paid by UPW
members and their families without any corresponding bene-
fit. As we said on direct appeal, Rodrigues “us[ed] his ability
to enter contracts on the unions [sic] behalf in order to
secretly obtain money for himself or the person of his choos-
ing in connection with those contracts.” Rodrigues, 237 Fed.
Appx. at 184. There can be no doubt from this record that
Rodrigues’s concealment of the true nature of his chicanery
was actionable fraud by material omission committed against
UPW and its members. What the union saw was not what it
got: higher unearned premiums for its members that went into
the waiting pockets of Rodrigues, his daughter, his mother,
and Al Loughrin.
Furthermore, when UPW was served with a subpoena for
documents reflecting payments to Four Winds, Rodrigues per-
sonally shredded some of them. His actions impeach his claim
that there was nothing secret or clandestine about what he had
done. The following is an excerpt from the testimony of a
UPW employee on this subject:
On August 26, 1999, at about 11 o’clock, I was in
Gary Rodrigues’ office by entering his doorway and
3476 UNITED STATES v. RODRIGUES
I had a question for him. So he said: Sure, what —
you know, what — you know, what can I do for
you? And I said: Well, remember the file, the infor-
mation I gave to you in January of this year? And he
says — you know, referencing the HDS form 5500s
and the correspondence? And he says: Yeah, what
about it? And I said: Don’t you think that we should
be submitting those documents as part of the sub-
poena? And he says — he looks at me and he said:
It’s shredded. It’s destroyed. It’s gone.
And I kind of looked at him and he says: Well,
soon after you told me that we were not — we were
not required to file a Form 5500 for the HDS dental
plan, I got rid of it. I shredded it. And so I looked at
him and I said: Oh, okay. And I left his office.
FINDINGS OF FACTS AND CONCLUSIONS OF LAW
[9] The district court’s factual summary of this contractual
arrangement accurately captures its essence:
Here, Petitioner used his position within UPW to
solicit and negotiate contracts with HDS and PGMA.
HDS and PGMA received the benefit of those con-
tracts provided they agreed to submit consulting fees
to a consultant designated by Petitioner. As a result
of these contracts, benefit was conferred upon the
insurance companies in the form of business
received, and payments were made to Petitioner’s
designated recipients for his personal benefit.
This iteration of the facts is fully supported by substantial evi-
dence in the record.
Although we review de novo the instructional issue, we do
not ignore the district court’s analysis. Judge Ezra, an experi-
enced jurist, said the following in his Order Denying Petition-
UNITED STATES v. RODRIGUES 3477
er’s § 2255 Motion dated January 31, 2011, observations with
which we agree:
In the instant case, the Government’s evidence
against Petitioner was overwhelming. The Govern-
ment presented letters, insurance contracts, and other
hard evidence showing that Petitioner established
“consulting fees” with the insurance companies, as
well as evidence showing Loughrin and Sabatini as
the “consultants” or beneficiaries of the consulting
fees. Based on the wealth of evidence against Peti-
tioner, the jury found Petitioner guilty of 102 out of
102 Counts. The facts relied upon by the jury in
finding Petitioner guilty of all 102 counts including
the counts for honest services fraud, money launder-
ing, and embezzlement, are identical to the facts out-
lined above which illustrate that Petitioner received
kickbacks. Because the facts necessary to establish
that Petitioner received kickbacks were presented at
trial and affirmed via guilty verdict by the jury, the
omission of the kickback element at trial did not
have a “substantial and injurious effect or influence
in determining the jury’s verdict.”
Furthermore, the Court determines that in light of
the jury’s verdict, as affirmed by the Ninth Circuit,
it is clear that the jury had to have found that Peti-
tioner engaged in a kickback scheme. The undis-
puted facts in evidence, relied upon in the Court’s
analysis of the kickback scheme, are not newly dis-
covered or established. Thus, under the same set of
facts, the jury would have found Petitioner guilty of
receiving kickbacks in an honest services fraud
scheme. Accordingly, the now-necessary element of
a kickback, had it been included in the jury instruc-
tions at trial, would have resulted in the same ver-
dict. Additionally, the Court concludes that the
omission of the kickback element did not in any way
3478 UNITED STATES v. RODRIGUES
impair the fundamental fairness of the proceeding.
Therefore, the Court determines that Petitioner
received kickbacks as a result of his mail fraud and
health care fraud schemes, and that the failure to
include a kickbacks element in the jury instructions
was harmless error.
(citations omitted).
We note also that the jury convicted Rodrigues of embez-
zling $208,280 from UPW. This sum represented the consul-
tant’s fees percentage of the monies paid to HDS between
April 1996 and December 2000. On direct appeal, we
affirmed his convictions of five counts of embezzlement of
union funds, and those counts are not before us as part of this
appeal. We reiterate what we said on direct appeal about the
essence of Rodrigues’s strategy to steal money from his own
union and its members:
The indictment said that Rodrigues committed
embezzlement by causing the union to pay Hawaii
Dental Service. And the specific amounts of money
in the indictment represented the consultant fee per-
centage of the monies paid to HDS. It was clear to
everyone (the grand jury, the parties, the judge, etc.)
what the embezzlement charge was about. The pre-
trial correspondence functioned as a bill of particu-
lars, informing the defense that “the specific
amounts of money . . . were calculated based on the
premiums HDS received from [the union] multiplied
by the negotiated consultant fee amount.” That is
how the case was presented to the jury.
Rodrigues, 237 Fed. Appx. at 181 (alteration in original).
MONEY LAUNDERING
[10] Rodrigues’s appeal of his money laundering and
health care fraud convictions depends entirely on his claim
UNITED STATES v. RODRIGUES 3479
that the money involved was not derived from a crime.
Because we conclude that it did, we also affirm these convic-
tions.
AFFIRMED.