United States Court of Appeals,
Eleventh Circuit.
No. 94-2300.
UNITED STATES of America, Plaintiff-Appellee,
v.
Charles S. CANCELLIERE, Defendant-Appellant.
Nov. 29, 1995.
Appeal from the United States District Court for the Middle
District of Florida. (No. 93-213-CR-T-21C), Ralph W. Nimmons, Jr.,
Judge.
Before BLACK, Circuit Judge, HILL, Senior Circuit Judge, and
ALAIMO*, Senior District Judge.
HILL, Senior Circuit Judge:
Charles S. Cancelliere appeals his conviction and sentence on
each of three counts of bank fraud in violation of 18 U.S.C. §
1344, two counts of false statements to insured depository
institutions in violation of 18 U.S.C. § 1014, and two counts of
money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i).
Cancelliere was convicted on all counts after a jury trial and
sentenced to fifty-seven months imprisonment as to each count, with
all counts running concurrently, followed by thirty-six months of
supervised release. For the following reasons, we affirm his
convictions and sentences on Counts 1-5, and reverse his
convictions and sentences on Counts 6 and 7.
I. BACKGROUND
During the relevant time period, Cancelliere was a bank
officer at several banks in Florida. Between December of 1984 and
*
Honorable Anthony A. Alaimo, Senior U.S. District Judge for
the Southern District of Georgia, sitting by designation.
December of 1988, Cancelliere secured numerous unsecured loans from
three different banks. Counts 1, 2 and 3 of the Indictment allege
that Cancelliere committed bank fraud in violation of 18 U.S.C. §
1344 by misrepresenting to three different banks his assets and
liabilities. Counts 4 and 5 allege that Cancelliere made false
statements to a financial institution in violation of 18 U.S.C. §
1014 by representing to a bank that he owned stock in the Daily
News Publishing Company (Count 4) and by representing to a
different bank that he was the beneficiary of a trust account in
Pittsburgh, Pennsylvania (Count 5). Counts 6 and 7 allege that
Cancelliere committed money laundering in violation of 18 U.S.C. §
1956 by writing two checks from his personal checking account
knowing that the checks represented the proceeds of illegal
activity.
Over objection, the government was allowed to introduce into
evidence three letters written to Cancelliere by his deceased
father. The first letter discusses the father's purchase of his
son's stock in the Daily News Publishing Company. The second
letter states that Cancelliere's mother's estate no longer existed.
Cancelliere's father also wrote that he would no longer help his
son financially and suggested that Cancelliere sell his jewelry to
ease his financial situation. In the last letter, Cancelliere's
father offered financial advice on how to deal with his creditors,
but criticized Cancelliere for his self-indulgence and profligacy.
Also over objection, the government introduced evidence of
other allegedly fraudulent transactions which are not charged or
mentioned in the Indictment. Under Fed.R.Evid.Rule 404(b), the
district court permitted the government to introduce evidence that
Cancelliere (1) obtained a fraudulent loan from an individual named
David Diaz; (2) made false statements to two banks other than
those named in the Indictment; and (3) bounced checks from his
personal checking account.
At trial, the government sought to prove the money laundering
counts by establishing (1) that Cancelliere deposited the proceeds
of the fraudulently-obtained loans into his personal checking
account; and (2) that some of the checks he wrote against this
account were to pay interest on the fraudulently-obtained loans.
After the close of the evidence, the government moved to
strike the word "willfully" from Counts 6 and 7 of the Indictment
which charged Cancelliere with "knowingly and willfully" committing
the offense of money laundering. Over objection, the district
court permitted this redaction.
II. ISSUES
A. Was the evidence on Counts 6 and 7 (money laundering) sufficient
to prove that the financial transaction in each count
"involved" proceeds of a specified unlawful activity as
required by 18 U.S.C. § 1956?
B. Did the district court err in striking the word "willfully" from
Counts 6 and 7 of the Indictment after the close of evidence?
C. Did the district court abuse its discretion in admitting letters
written by Cancelliere's deceased father in violation of the
hearsay rule.
D. Did the district court abuse its discretion in admitting
evidence of several other fraudulent transactions as extrinsic
evidence under Rule 404(b)?
III. DISCUSSION
A. Money Laundering
In order to establish the crime of money laundering, the
government must prove that Cancelliere "conduct[ed] ... a financial
transaction which in fact involve[d] the proceeds of specified
unlawful activity...." 18 U.S.C. § 1956. The government
introduced evidence that Cancelliere wrote two checks on his
personal bank account into which he had deposited the proceeds of
the fraudulently-obtained loans. The district court instructed the
jury that "the Government need not prove that all of the money
involved in the transaction was the proceeds of bank fraud. It is
sufficient if the Government proves that at least part of the money
represents such proceeds."
Cancelliere does not contest on appeal that there was evidence
that he deposited fraudulent loan proceeds into his checking
account or that he wrote two checks from this account to pay
interest on his loans. He contends, however, that the government
failed to prove that the money paid by these checks came from
previously deposited fraudulent loan proceeds, either in whole or
in part.
Cancelliere argues that it is not enough for the government
simply to show that fraudulent loan proceeds went into his checking
account at some indefinite point, and that subsequently two checks
were written from this account to pay interest on the loans if the
account at issue has other sources of deposit. He contends that
because the checking account contained many legitimate deposits,
including his salary deposits, the government failed to prove that
the money paid by these checks came from previously deposited
fraudulent loan proceeds, either in whole or in part. According to
Cancelliere, salary or other legitimate deposits paid these two
checks.
To convict under § 1956(a)(1)(A)(i), the government bears the
burden of proving beyond a reasonable doubt that the party engaged
in the transaction knew that the funds used represented, in whole
or in part, proceeds of a specified unlawful activity.1
Cancelliere argues that unless the government proved that the
checks written to pay the interest on his loans were actually paid
at least in part with fraudulently-obtained funds, the government
did not carry its burden.
The issue is whether the government should be required to
trace the origin of all funds deposited into a bank account to
determine exactly which funds were used for what transaction.
Although Cancelliere characterizes this issue as one of the
sufficiency of the evidence, we believe that initially it is one of
statutory construction. The statute requires that a transaction
"involve" the proceeds of an activity which the participant knows
is unlawful. The question is what Congress intended by the word
"involve."
Although this question has not yet been answered in this
circuit, we find persuasive the reasoning of the Seventh Circuit in
United States v. Jackson, 935 F.2d 832 (7th Cir.1991). In Jackson,
the defendant deposited proceeds from his drug-dealing activities
1
At the time of the offenses charged in Counts 6 and 7, the
definition of "specified unlawful activity" at 18 U.S.C. §
1956(c)(7) included bank fraud offenses under 18 U.S.C. § 1344.
The current amended version of the Money Laundering Control Act
of 1986 does not include § 1344 bank fraud offenses under the
"specified unlawful activity" definition, although it does
include offenses involving false statements to banks under 18
U.S.C. § 1014.
into the checking account of the 15th Street Baptist Church, where
he was the preacher. The defendant then wrote checks from this
account to pay for beepers which were used for drug dealing. After
his conviction for money laundering, the defendant argued that no
rational juror could decide that the checks alleged in the
indictment involved money derived from drug proceeds.
The Seventh Circuit affirmed the conviction, reasoning that:
We do not read Congress' use of the word "involve" as imposing
the requirement that the government trace the origin of all
funds deposited into a bank account to determine exactly which
funds were used for what transaction. Moreover, we cannot
believe that Congress intended that participants in unlawful
activities could prevent their own convictions under the money
laundering statute simply by commingling funds derived from
both "specified unlawful activities" and other activities.
Indeed, the commingling in this case is itself suggestive of
a design to hide the source of ill-gotten gains.... (citation
omitted)
Id. at 840. We agree and hold that Section 1956(a)(1)(A)(i) allows
for convictions where the funds involved in the transaction are
derived from a commingled account of which only a part comes from
"specified unlawful activities."
The evidence in this case was that Cancelliere fraudulently
obtained over $80,000 in loans from banks and systematically
deposited the loan proceeds into his personal checking account.
Thereafter, Cancelliere wrote two checks on this account to pay the
interest on these loans. A rational juror could find that the
government sustained its burden of proving beyond a reasonable
doubt that Cancelliere's payment of the checks alleged in Counts 6
and 7 "involved" the proceeds of his fraudulently-obtained loans
and we find no error regarding this issue.
B. The Redaction of "Willfully"
Cancelliere asserts that reversal is required on the
convictions for Counts 6 and 7 because the district court
impermissibly amended the Indictment by redacting the willfulness
allegation from those counts and by so instructing the jury. The
government counters that the willfulness allegation was surplusage
which the district court may redact without error.
Counts 6 and 7 of the Indictment charged Cancelliere with
"knowingly and willfully" committing the offense of money
laundering.2 Cancelliere testified at trial. His defense from the
stand, and throughout trial, was that his personal finances were
indeed in disastrous condition, but that the statements he made to
procure loans were made with a good faith belief in their truth,
without fraudulent scienter, but without meticulous accuracy.
After the close of the evidence, the government moved to
strike the word "willfully" from Counts 6 and 7. Over objection,
the district court permitted the redaction. The jury instructions
did not contain "willfulness" as an element of money laundering,
but did mention willfulness in defining the term "intentionally."
We have held that "a fundamental principle stemming from the
[fifth] amendment is that a defendant can only be convicted for a
crime charged in the indictment." United States v. Keller, 916
F.2d 628, 633 (11th Cir.1990), cert. denied, 499 U.S. 978, 111
S.Ct. 1628, 113 L.Ed.2d 724 (1991). Per se reversible error occurs
"when the essential elements of the offense are altered to broaden
the possible bases for conviction beyond what is contained in the
2
This language came from a model indictment issued by the
United States Department of Justice.
indictment." Id. at 634. An amendment to an indictment occurs
when the charging terms of the indictment are altered. United
States v. Weissman, 899 F.2d 1111, 1114 (11th Cir.1990). A jury
instruction that constructively amends a grand jury indictment
constitutes per se reversible error because such an instruction
violates a defendant's constitutional right to be tried on only
those charges presented in a grand jury indictment and creates the
possibility that the defendant may have been convicted on grounds
not alleged in the indictment. Stirone v. United States, 361 U.S.
212, 217-18, 80 S.Ct. 270, 273-74, 4 L.Ed.2d 252 (1960); Weissman,
899 F.2d at 1114.
On the other hand, mere surplusage may be deleted from an
indictment without error. United States v. Miller, 471 U.S. 130,
105 S.Ct. 1811, 85 L.Ed.2d 99 (1985). Willfulness is not a
statutory element of money laundering, and "[a] part of an
indictment unnecessary to and independent from the allegations of
the offense proved may normally be treated as a useless averment
that may be ignored." Id. at 136, 105 S.Ct. at 1815. It is not an
unconstitutional amendment to "drop from an indictment those
allegations that are unnecessary to an offense that is clearly
contained within it...." Id. at 144, 105 S.Ct. at 1819.
We believe the redaction in this case more closely resembles
the impermissible broadening of the indictment condemned by Keller
than the simple elimination of unnecessary averments approved by
Miller. In this case, the government moved the district court to
delete the requirement that they prove willfulness after
Cancelliere prepared and put on a defense based upon good faith.
Although the inclusion of the term "willful" was a mistake by the
government,3 the charge was read to the jury at the beginning of
the trial, the jury listened to Cancelliere attempt to prove he had
not acted willfully, and then the court instructed them that they
could convict without mentioning any requirement that they find he
acted willfully.
This impermissible broadening of the bases upon which the jury
could convict is similar to that in United States v. Leichtnam, 948
F.2d 370 (7th Cir.1991). In Leichtnam, the indictment charged that
Leichtnam "knowingly used and carried a firearm, to wit a Mossberg
rifle." At trial, the government showed the jury three guns,
including the Mossberg rifle. The judge then instructed the jury
that it could convict if Leichtnam had used "a firearm." On
appeal, the Seventh Circuit reversed Leichtnam's conviction,
holding that "the introduction of the handguns, together with the
jury instructions, inpermissibly amended the indictment by
broadening the possible bases for conviction to include knowingly
using or carrying any firearm. That was clear error, and
Leichtnam's firearm conviction on count two must be reversed." Id.
at 380-81.
3
The parties do not contest that the statute does not
require the government to prove willfulness. The statute
provides:
Whoever, knowing that the property involved in a
financial transaction represents the proceeds of some
form of unlawful activity, conducts or attempts to
conduct such a financial transaction which in fact
involves the proceeds of specified unlawful activity
... with the intent to promote the carrying out of
specified unlawful activity ... [shall be sentenced
according to law].
In Leichtnam, changing the term "Mossberg rifle" to "a
firearm" impermissibly broadened the bases for conviction, even
though proving the use of a particular firearm is not required
under the firearm statute. Similarly, in this case, changing the
requirement from proof of "knowingly and willfully" to "knowingly"
impermissibly broadened the bases for Cancelliere's conviction,
even though willfulness is not required under the money laundering
statute. We agree with the Seventh Circuit that:
New [bases for conviction] may not be added without
resubmitting the indictment to the grand jury, whether they
are added literally, by a formal amendment to the indictment
... or by instructions to the trial jury which would allow a
conviction on grounds not charged by the grand jury.
Leichtnam, 948 F.2d at 379 (internal citations omitted).
We do not agree with the government that the district court's
use of the word willful in defining the term "intentional" renders
the error harmless. Cancelliere prepared his defense to a charge
of "knowing and willful" money laundering. Indeed his whole
defense to this charge rested on his lack of willfulness. The
government alleged it even though it need not have, and it must be
charged with proving it. The government may not decide after the
close of evidence that it would prefer not to have the jury hear
that term again. The redaction was error, and it was not harmless.
Conviction on these two counts must be reversed.
C. Admission of the Letters
The letters from Cancelliere's father were hearsay if they
were admitted to prove the truth of the matter asserted in them,
i.e., that Cancelliere's trust fund was depleted and that his
father would not help him financially. Cancelliere argues that
they were so offered, because if the statements in the letters are
not true they would be irrelevant to the government's case, and
therefore, inadmissible.
The government counters that the letters were not offered to
prove the truth of the matters asserted therein, but rather to
establish Cancelliere's state of mind, knowledge, beliefs or intent
as a consequence of reading them. Cancelliere's knowledge and
intent were in issue both with regard to the allegations of the
Indictment and his good-faith defense. The letters, the government
concludes, were relevant, non-hearsay evidence.
The government points to United States v. Harris, 942 F.2d
1125 (7th Cir.1991) as support for their theory that letters
offered to prove a defendant's state of mind are not inadmissible
hearsay. In Harris, several letters from a man to his mistress, in
which he wrote that the things he was giving her were gifts, were
excluded as hearsay from her tax fraud trial. In reversing their
exclusion, the Seventh Circuit wrote that the letters were not
hearsay because they were offered to prove the mistress's lack of
wilfulness in not reporting the gifts as income, not for the truth
of the matters asserted. Id. at 1130. In reversing, the court
noted:
But the letters were not hearsay for the purpose of showing
what [the mistress] believed, because her belief does not
depend on the actual truth of the matters asserted in the
letters. Even if [the declarant] were lying, the letters
could have caused [the mistress] to believe in good faith that
the things he gave her were intended as gifts. This good
faith belief, in turn, would preclude any finding of
willfulness on her part.
Id. at 1131 (emphasis added).
In this case, however, unless the statements in the letters
are true, Cancelliere is guilty of no crime. There is no law
against knowingly making true statements to a financial institution
(if the statements in the letters were false and Cancelliere in
fact had a trust fund as he represented to the banks). Unlike
Harris, the truth of the statements in the letters is relevant to
the element to be proved by its admission—that Cancelliere
knowingly made false statements.
Hearsay issues like this one where evidence is admissible for
one purpose but not for another present difficult problems. As the
Seventh Circuit noted in Harris, jurors are not robots, and can
rarely consider evidence strictly for the sole purpose admitted to
the exclusion of the other, often more obvious, purpose. Id. at
1130. In Harris, the letters were admitted because they were of
crucial importance to the defense of good faith even though the
court noted that the jury would be hard pressed not to consider
them on the impermissible issue of what the declarant actually
intended.
For Cancelliere, the letters were of crucial importance as
well. Cancelliere is correct that his father—through the
letters—turned out to be one of the most damaging witnesses against
him at trial. Therefore, the evidence, if it was hearsay, was
highly prejudicial.
Furthermore, this issue is not readily resolved. The
government is correct that proof of Cancelliere's state of mind was
an element of its case, and that the letters are probative of that
state. Cancelliere is also correct, however, that unless the
statements in the letters were true, i.e., that the trust fund was
exhausted and the father would no longer assist him financially,
the letters were irrelevant. If in fact Cancelliere did have a
trust fund he could not have been guilty of the underlying crime of
making false statements. So the truth of the statements contained
in the letters is not unrelated to their relevance in proving
Cancelliere's state of mind, as in Harris.
Nevertheless, we are persuaded that the letters were not
inadmissible hearsay. The government was required to prove two
things. It had to prove (1) that Cancelliere made false statements
to the banks (e.g., that he was beneficiary of a trust fund; that
he could count on financial help from his father, etc.); and (2)
that Cancelliere knew that the statements were, in fact, false.
The statements, under the circumstances here, bore at least
a patina of truth. Cancelliere had, at one time, an interest in a
trust fund; he had received substantial funds from a well-to-do
father. He mounted a persuasive defense that he believed he still
had access to these resources. There was ample proof that the
trust fund was long-since depleted and the family assets were no
longer available to him.4 The letters went to show that he knew
these facts at the time he misrepresented them because he had been
advised, specifically, that these sources of funds were gone.
The letters could not be considered as evidence that the funds
4
Our result might be different if the government had not
introduced independent evidence going to the truth of the matters
asserted in the letters. The record contains, however, ample
evidence, including admissions made by the defendant both before
trial and during cross-examination, that his mother's trust fund
was, in fact, depleted at the times he was representing that he
was still its beneficiary, and that in fact he would receive no
further financial help from his father.
were non-existent or unavailable. However, if the jury was
persuaded by other evidence of the truth of the matters asserted in
the letters, it was proper for the jurors to conclude, from the
letters, that Cancelliere knew when he made the statements to the
banks, that the statements were false.
The judge dissected the situation with the scalpel of
instruction to the jury to consider the letters for the proper
purpose and not to consider them for any other—improper—purpose.
As we noted above, there is a danger that jurors will consider such
letters for the improper purpose—their truth. Nevertheless, we
expect jurors to follow instructions.
Furthermore, if there be such danger, it is assumed by the
defendant who puts the government to its proof of his knowledge and
then protests that its ready-at-hand proof of that knowledge might
harm him.
We conclude, therefore, that the letters were not hearsay when
admitted to prove Cancelliere's state of mind.
D. The Admission of the Extrinsic Evidence
The district court permitted extrinsic evidence in the
following categories: (1) the testimony of Dennis Diaz regarding
an uncharged loan; (2) evidence involving uncharged false
statements; and (3) evidence that Cancelliere bounced checks from
his personal checking account.
Diaz testified that Cancelliere obtained fraudulent loans from
an institution not charged in this case. The government maintains,
however, that this testimony is not extrinsic because it is
inextricably intertwined with evidence of the charged crimes.
The evidence involving uncharged false statements came in
through a witness named Passer, who testified that Cancelliere
filed Chapter Seven bankruptcy after accumulating substantial
unsecured debts from many banks, including two uncharged banks.
Cancelliere contends that Passer's testimony went beyond the
purpose of Rule 404(b) because through this testimony the
government established that Cancelliere's debt to the three charged
banks was discharged in bankruptcy. The two uncharged banks filed
adversary complaints alleging fraud in the non-dischargeability
bankruptcy proceeding. The district court admitted into evidence
the entire bankruptcy court files. The government contends that
this evidence is proper Rule 404(b) evidence going to show
knowledge, intent, or absence of mistake or accident because
Cancelliere made certain admissions in the bankruptcy case
concerning his representations to the charged banks.
Finally, the government introduced evidence that Cancelliere
bounced checks from his personal checking account. Cancelliere
contends that this evidence did not involve any scheme to defraud.
Rather, it served only to establish bad character. The government
responds that this evidence is linked in time and circumstances
with the charged crimes and provides a context for the charged
crimes for the jury.
Cancelliere asserts that all the extrinsic evidence allowed by
the district court was highly prejudicial, unnecessary to the
government's case, and served only to establish propensity, rather
than some permissible purpose under Rule 404(b) such as absence of
mistake or accident.
Rule 404(b) provides that "[e]vidence of other crimes,
wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident...." The rule permits the
introduction of evidence of a prior or uncharged act if the
government can demonstrate: (1) a proper purpose for introducing
the evidence; (2) that the prior act occurred and that the
defendant was the actor; and (3) that the probative value of
introducing the evidence outweighs any prejudicial effect the
evidence might have. United States v. Perez-Garcia, 904 F.2d 1534,
1544 (11th Cir.1990).
Evidence of criminal activity other than the offense charged,
however, is not extrinsic evidence if it is inextricably
intertwined with the evidence of the charged offense. United
States v. Collins, 779 F.2d 1520, 1531-1532 (11th Cir.1986).
Furthermore, Rule 404(b) does not apply where the evidence concerns
the "context, motive, and set-up of the crime" and is "linked in
time and circumstances with the charged crime, or forms an integral
and natural part of an account of the crime, or is necessary to
complete the story of the crime for the jury." United States v.
Williford, 764 F.2d 1493, 1499 (11th Cir.1985).
(1) The testimony of Diaz regarding bank fraud was not
extrinsic. Although not charged, these loans were alleged in the
bank fraud counts as part of the manner and means by which
Cancelliere carried out his scheme to defraud. Cancelliere
understated his liabilities to the uncharged institution in order
to obtain loans from the charged banks. In view of these
allegations, the evidence was not extrinsic and Rule 404(b) is
inapplicable.
(2) The evidence in the bankruptcy files established that
Cancelliere testified at a creditors' meeting that he did not own
any shares of the Daily News stock on the date that he had told one
of the banks that he did in order to secure a charged loan. The
files also demonstrated that he signed a financial statement
claiming ownership of a trust fund valued at $195,000. Finally,
the bankruptcy files revealed that Cancelliere agreed to exempt
from bankruptcy a portion of two loans he obtained from uncharged
institutions because he had obtained them through fraudulent
representations. This evidence, although extrinsic, was properly
admitted under Rule 404(b) as going to knowledge, intent or plan.
At the relevant time, Cancelliere was making the same
misrepresentations to uncharged banks as he was making to the
charged banks. The prejudice of having the jury hear of two more
victims was minimal in light of the evidence of his repeated
fraudulent representations over the course of the four years
alleged in the Indictment. The probative value of this evidence
outweighed its prejudicial effect. The district court give an
appropriate limiting instruction which was agreed upon by the
parties at the time of admission and in final instructions. There
was no abuse of discretion in the admission of this evidence.
(3) Cancelliere contends that the evidence concerning his
issuance of insufficient funds checks was improperly admitted to
establish bad character in violation of Rule 404(b). The
government's position is that the evidence was linked in time and
circumstances with the charged crimes and formed an integral and
natural part of the account of the crimes, and was admissible to
complete the story of the crimes for the jury. See Williford, 764
F.2d at 1499.
The testimony concerning the bad checks came in through the
president of the bank where Cancelliere was employed. After
Cancelliere wrote the bad checks, the president met with him on
several different occasions to counsel him regarding his financial
situation. During one of these sessions, Cancelliere admitted that
he had understated his debt to one of the charged banks. The
admission came in, therefore, through the context of the bad check
discussions between Cancelliere and his bank president. Such
evidence is not extrinsic under Williford, and Rule 404(b) is
inapplicable.
IV. CONCLUSION
The convictions on Counts 6 and 7 were based upon an
unconstitutional redaction of the Indictment and are REVERSED.
Having found no error in the admission of the letters or the
extrinsic evidence, the convictions and sentences on Counts 1-5 are
AFFIRMED.
BLACK, Circuit Judge, specially concurring:
I concur. I write separately as to the redaction of the term
"willfully" from counts 6 and 7 of the indictment.
I view the redaction as more closely resembling a variance
than an amendment 1 and must, therefore, consider the question of
whether or not the redaction was prejudicial. Keller, 916 F.2d at
633 (citing United States v. Figueroa, 666 F.2d 1375, 1379 (11th
Cir.1982)). In this case, the defense attorney built his entire
defense around the inclusion of the term "willfully" in the
indictment. At the end of trial, after the close of evidence, the
term was deleted from the indictment and was not included in the
instructions to the jury. Although I believe the evidence might
well have supported a verdict of guilty with the term "willfully"
remaining, that is not the issue. Deleting "willfully" at the last
minute undermined the credibility of the defense attorney to the
extent that it was impossible for him to make a credible argument
to the jury. The redaction was prejudicial, and I therefore concur
in the result reached by the majority.
1
The majority holds that the redaction in this case more
closely resembles an impermissible broadening of the indictment
as discussed in United States v. Keller, 916 F.2d 628 (11th
Cir.1990), cert. denied, 499 U.S. 978, 111 S.Ct. 1628, 113
L.Ed.2d 724 (1991), and United States v. Leichtnam, 948 F.2d 370
(7th Cir.1991), than the elimination of unnecessary averments as
discussed in United States v. Miller, 471 U.S. 130, 105 S.Ct.
1811, 85 L.Ed.2d 99 (1985). Keller and Leichtnam are amendment
cases and if the redaction of "willfully" were an amendment, the
conviction on counts 6 and 7 would be per se reversible. Keller,
916 F.2d at 633. This would also mean that the term could not
have been redacted before trial without the grand jury returning
an amended indictment. See Miller 471 U.S. at 135, 105 S.Ct. at
1815.