United States v. Justus

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GROUP ONE

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 97-4414

BENNY JUSTUS,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 97-4415

LAWRENCE EDWARD JUSTUS,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 97-4416

JIMMY LEE MCCOY,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 97-4436

MELISSA MCCOY,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 97-4513

PHYLLIS MCCOY,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 97-4534

KIRBY COLEMAN,
Defendant-Appellant.

_________________________________________________________________

COUNSEL

ARGUED: Birg Eugene Sergeant, Pennington Gap, Virginia; James
Douglas Fleenor, Bristol, Virginia, for Appellants. Steven Randall
Ramseyer, Assistant United States Attorney, Abingdon, Virginia, for
Appellee. ON BRIEF: Herbert H. Clay, Marion, Virginia, for Appel-
lant Benny Justus; John P. Bradwell, SHORTRIDGE &
SHORTRIDGE, Norton, Virginia, for Appellant Melissa McCoy;
Charles L. Bledsoe, BLEDSOE & MCAFEE, Big Stone Gap, Vir-
ginia, for Appellant Coleman; Robert A. Vinyard, Abingdon, Vir-
ginia, for Appellant Phyllis McCoy. Robert P. Crouch, Jr., United
States Attorney, Abingdon, Virginia, for Appellee.

2
GROUP TWO

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 97-4489

TONY MATNEY,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 97-4494

TERRY EDWARD MCCOY,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 97-4495

J. B. SLONE,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 97-4514

DANIEL THOMAS MCCOY,
Defendant-Appellant.

3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 97-4515

HAROLD MCCOY,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 97-4531

ROGER MCCOY,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 97-4532

WILBERT MCCOY,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 97-4631

LEANDER SLONE,
Defendant-Appellant.

_________________________________________________________________
COUNSEL

ARGUED: Dennis Eugene Jones, Lebanon, Virginia, for Appellants.
Steven Randall Ramseyer, Assistant United States Attorney, Abing-

4
don, Virginia, for Appellee. ON BRIEF: Robert P. Crouch, Jr.,
United States Attorney, Abingdon, Virginia, for Appellee.

GROUP THREE

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 97-4609

JIMMY STEWART JUSTICE,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 97-4627

ARNOLD LESTER,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 97-4628

JOSEPHINE LESTER,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 97-4629

SANFORD STEVEN LESTER,
Defendant-Appellant.

5
UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
No. 97-4630
CARL HAROLD SLONE, a/k/a Carol
Harold Slone,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 97-4657

CARLIE SLONE,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 97-4723

STEVE ALLEN LESTER,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 97-4724

HERMAN MCCOY,
Defendant-Appellant.

6
UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 97-4725

RANDY RAY MCCOY,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 97-4726

WILLIAM ADDISON MCCOY,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 97-4727

SHERRY VANCE,
Defendant-Appellant.

_________________________________________________________________

COUNSEL

ARGUED: Daniel Knowlton Read, Jr., JESSEE & READ, P.C.,
Abingdon, Virginia; Charles Randall Lowe, Abingdon, Virginia; Dan-
iel Wayne Fast, Wise, Virginia, for Appellants. Steven Randall Ram-
seyer, Assistant United States Attorney, Abingdon, Virginia, for
Appellee. ON BRIEF: Susan D. Oglebay, Pound, Virginia, for
Appellant Justice; Mark Fenyk, Marion, Virginia, for Appellant
Arnold Lester; William Bradshaw, BRADSHAW & BRADSHAW,
Big Stone Gap, Virginia, for Appellant Josephine Lester; Richard
Frye, Abingdon, Virginia, for Appellant Sanford Lester; Amelia

7
Bland, BLAND & ASSOCIATES, Marion, Virginia, for Appellant
Carlie Stone; Jeff Hamilton, HAMILTON & JORGENSEN, Gate
City, Virginia, for Appellant Steven Lester; Steve Kalista, Big Stone
Gap, Virginia, for Appellant Herman McCoy; Barry Proctor, Abing-
don, Virginia, for Appellant William McCoy. Robert P. Crouch, Jr.,
United States Attorney, Abingdon, Virginia, for Appellee.

_________________________________________________________________

Appeals from the United States District Court
for the Western District of Virginia, at Abingdon.
James P. Jones, District Judge.
(CR-96-29-A)

Argued: June 3, 1998

Decided: August 20, 1998

Before WILKINSON, Chief Judge, MOTZ, Circuit Judge, and
BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

OPINION

PER CURIAM:

Appellants are among 25 defendants who were convicted on the
basis of a 34-count indictment which charged them with conspiracy,
mail fraud and making false statements to federal agents and to a
grand jury. The government alleged that the defendants had been
involved in a long-running conspiracy to commit insurance fraud by
staging automobile accidents. The district court divided the defen-
dants into three separate groups for trial. Each trial group, and some
defendants singly, make various claims on appeal. While the appeals
have not been consolidated we address them in one opinion. For pur-

8
poses of clarity and simplicity we review the claims of the defendants
of each group seriatim. Where the situation of any appellant is unique
specific reference is made to him or her. Finding no error, we affirm
the appellants' convictions and sentences.

GROUP ONE

Group One consists of Benny Justus, Lawrence Edward Justus,
Jimmy Lee McCoy, Melissa McCoy, Phyllis McCoy, and Kirby Cole-
man.

Issue 1

The defendants in Group One first challenge the admission of
exhibits 9 and 10 and of testimony related to them. Exhibit 9 was a
document prepared by an FBI agent that set out the dates of accidents
and the names of the people involved in them. The agent drew lines
from each defendant's name so that a juror could trace his or her
involvement in various accidents and with various other defendants.
Exhibit 10 was a document that organized, according to the counts of
the indictment, information about each accident: date of loss, partici-
pants, vehicle description, accident description, injury description,
treating doctor, insurance payouts, and insurance company. The FBI
agent who prepared the documents testified about their preparation
and was cross-examined about the documents. The district judge
instructed the jury when the documents were admitted that the docu-
ments were summaries of the evidence, that the jurors were to regard
them as such, and that it was the jurors' understanding of the evidence
that would govern any discrepancies.

A district court's decision to admit a summary chart and accompa-
nying foundational testimony is reviewed for an abuse of discretion.
See United States v. Johnson, 54 F.3d 1150, 1158 (4th Cir. 1995). The
decision to admit these documents is best analyzed under Rule 611(a)
of the Federal Rules of Evidence which governs the mode and order
of interrogating witnesses and presenting evidence. See id.

First, we consider whether the summary chart aids the jury
in ascertaining the truth. In making this determination, we

9
 look to the length of the trial, the complexity of the case,
and the accompanying confusion that a large number of wit-
nesses and exhibits may generate for the jury. Second,
applying what is essentially an analysis under Rule 403 of
the Federal Rules of Evidence, we consider the possible
prejudice that would result to the defendant by allowing the
summary chart into evidence. In practice, a number of
courts considering the issue have developed safeguards to
minimize possible prejudice to a defendant by (1) ensuring
that the individual who prepared the chart--as well as the
evidence upon which the preparer relied--was available for
cross-examination by the defendant to test the competence
of the evidence as presented in the summary chart and, (2)
ensuring that the district court properly instructed the jury
concerning the manner in which they were to consider the
charts.

Id. at 1159 (citations and footnote omitted).

In this case the sheer number of defendants (between nine and
eleven in each group) and accidents (thirty-one summarized in exhibit
10) evidences substantial complexity. The government presented
voluminous documentary and testimonial evidence regarding each
defendant, each accident, and the connections among the defendants
and accidents. Extensive insurance and medical records were also
introduced. It is likely that the summary charts aided the jury. Further,
while summaries present the risk of prejudice to a defendant, the dis-
trict judge instituted the necessary safeguards--allowing cross-
examination of the FBI agent and instructing the jury about the proper
use of the summaries. The district court did not abuse its discretion
in admitting these exhibits.

Issue 2

The Group-One defendants argue that the government referred to
the failure of the defendants to call witnesses or put on evidence in
their defense and thereby infringed the defendants' Fifth Amendment
right not to testify. The defendants point first to the government's
statement that the defendants had the power to subpoena witnesses
and an unfinished statement: "And they didn't call . . . ." They also

10
point to the prosecution's repetition of some of the defendants' state-
ments: "If we don't tell them nothing, they can't prove nothing." The
defendants suggest that the government repeated these statements to
contrast the defendants' choice of silence with the choice of testifying
witnesses.

To determine whether the prosecution's statements have infringed
the defendants' right not to testify we ask: "Was the language used
manifestly intended to be, or was it of such character that the jury
would naturally and necessarily take it to be a comment on the failure
of the accused to testify?" United States v. Francis, 82 F.3d 77, 78
(4th Cir. 1996) (internal quotation marks and citations omitted).

Taken in their full context, it is apparent that the first group of
statements was intended to rebut statements by the defense suggesting
that the government controlled the evidence, presented evidence only
favorable to its case, and avoided evidence that would have favored
the defense. An examination of the context in which the second group
of statements was made reveals that the comments were intended to
illustrate that the government believed the evidence showed that the
defendants planned to and did give false testimony to the grand jury.
We agree with the district court that neither of these groups of state-
ments was intended as a comment on the failure of the defendants to
testify; nor would a jury naturally and necessarily take them to be
such. See id. at 78-79.

Issue 3

The defendants in Group One also challenge the admission of
Jamie Lester's testimony. They contend that Jamie Lester's conces-
sion that he would not tell the truth about his brother, his father, and
his mother revealed that he was an incompetent witness, precluded
effective cross-examination and thereby deprived the defendants of
their rights to due process and to confront witnesses. They assert that
Lester's statements undercut his oath to testify truthfully and suggest
that he was not made aware of the necessity of so doing.

Jamie Lester swore to tell the truth and was aware of the penalties
of perjury. The government, on direct examination, explored Lester's
false testimony before the grand jury, the breach of his plea agree-

11
ment by his persistent refusal to tell investigators the truth, and his
continuing inclination not to provide information about his immediate
family. See Fed. R. Evid. 607. Lester's credibility was a subject of
cross-examination. The government did not preclude effective cross-
examination by the defense. The district court's decision to admit the
testimony over the defendants' motions to strike and for a mistrial
was not erroneous.

Issue 4

A

The defendants also contend that the evidence does not support
their conspiracy convictions. They argue that the government's evi-
dence showed multiple, separate conspiracies rather than the single
conspiracy charged in Count One. They further contend that they
were prejudiced by the introduction of evidence related to the acci-
dents of alleged coconspirators in which they did not participate. The
defendants assert that the evidence presented varied impermissibly
from the allegations of their indictment.

"In a conspiracy prosecution, a defendant may establish the exis-
tence of a material variance by showing that the indictment alleged
a single conspiracy but that the government's proof at trial established
the existence of multiple, separate conspiracies." United States v.
Kennedy, 32 F.3d 876, 883 (4th Cir. 1994). It is for the jury to decide
whether the evidence showed a single or multiple conspiracies. See
United States v. Urbanik, 801 F.2d 692, 695 (4th Cir. 1986). There-
fore, "a conspiracy variance claim amounts to a challenge to the suffi-
ciency of the evidence supporting the jury's finding that each
defendant was a member of the same conspiracy." United States v.
Townsend, 924 F.2d 1385, 1389 (7th Cir. 1991). The jury's finding
must stand (1) if the jury was properly instructed with respect to the
distinction between single and multiple conspiracies and (2) if a rea-
sonable jury could have found the existence of the single conspiracy
charged in the indictment. See Urbanik, 801 F.2d at 695. The Group-
One defendants do not challenge the instructions.

If the jury reasonably finds a single conspiracy as alleged in the
indictment, there is no variance between the facts alleged and the

12
facts proved. Our review is therefore limited to a determination of
whether the evidence, taken in the light most favorable to the govern-
ment, would allow a reasonable jury to find that the defendants were
part of a single conspiracy. See id. "A single conspiracy exists where
there is one overall agreement, or one general business venture.
Whether there is a single conspiracy or multiple conspiracies depends
on the overlap of key actors, methods and goals." United States v.
Leavis, 853 F.2d 215, 218 (4th Cir. 1988) (internal quotation marks
and citations omitted). The government may prove the agreement
entirely by circumstantial evidence. See United States v. Burgos, 94
F.3d 849, 858 (4th Cir. 1996).

The government's proof established a significant overlap of key
actors: the majority of the defendants were directly involved in an
accident with either Jimmy or Daniel McCoy; the few remaining were
involved in accidents with people who had been involved in accidents
with either Jimmy or Daniel McCoy. The defendants' methods to
assure successful claims and conceal their fraudulent nature were
strikingly similar: in each accident, the owner of the wrecked car was
paid half of each participant's insurance recovery; the accidents were
set up as phantom or friendly collisions (in the former the participants
would assert that they were run off the road by a long-gone and inde-
scribable vehicle; in the latter the participants would run two cars into
each other); many accidents were attributed to brake failure; the par-
ticipants visited a small group of doctors for pain killers and com-
plained of soft-tissue injuries; and often the vehicles were titled very
close in time to the date of the accident in which they were involved.
The participants achieved their goal: recompense from insurance
companies for faked accidents and injuries.

The evidence is sufficient to support the jury's conclusion that a
single conspiracy existed and that the defendants were part of it.

B

The Group-One defendants make passing reference to an argument
based on an allegedly impermissible expansion of the length of the
conspiracy and resulting prejudice from the introduction of grand-jury
testimony of coconspirators. The argument is made more fully by the
defendants in Group Two, Issue 4, and is discussed and dispensed

13
with later in this opinion, on a basis equally applicable to these defen-
dants.

Issue 5

The defendants challenge their sentences and contend that the dis-
trict court erred in (1) the calculation of total monetary loss attribut-
able to each defendant, (2) the enhancement for more than minimal
planning, and (3) the enhancement for obstruction of justice.

We review the district court's application of the Sentencing Guide-
lines for clear error when the issue is one of fact and de novo when
the issue is one of law. See United States v. Daughtrey, 874 F.2d 213,
217 (4th Cir. 1989).

A

The district court attributed to each defendant the amount of insur-
ance proceeds obtained in all accidents that followed the date on
which the particular defendant joined the conspiracy. See U.S. Sen-
tencing Guidelines Manual § 2F1.1, comment. (n.8) (1995) (hereafter
USSG). The court considered actual losses when claims were paid
and intended losses when claims were denied as contemplated by
USSG § 2F1.1, comment. (n.7). The district court found with respect
to each defendant that "[a]ll of such losses were incurred through sim-
ilar methods of fraud in the furtherance of the jointly undertaken
criminal activity and the individual amounts obtained from insurance
companies were all reasonably foreseeable to the defendant, based
upon the defendant's knowledge of and participation in the conspir-
acy." The defendants contend only that there was no grand fraud con-
spiracy. The jury reasonably found otherwise. The court's averaging
comports with the Guidelines and its findings of fact are not clearly
erroneous.

B

The district court further found, as a matter of fact, that the
offenses of which the defendants were convicted involved more than
minimal planning or a scheme to defraud more than one victim. See

14
USSG § 2F1.1(b)(2). The defendants contend that there was no evi-
dence that they participated in planning or recruiting and that, rather,
the evidence showed that the defendants did not understand the scope
and structure of the enterprise.

It is apparent from the evidence that success of the conspiracy
depended on more than minimal planning and, in fact, on some coor-
dination of stories for presentation to doctors, insurance companies,
FBI agents and the grand jury. Further, more than one victim was
defrauded--many insurance companies were defrauded. The district
court's decision to enhance the defendants' sentences for more than
minimal planning comports with the facts of this case and the Guide-
lines.

C

The district court also enhanced the defendants' sentences pursuant
to USSG § 3C1.1. The defendants contend that they were convicted
of perjury, punished for it, and that application of an enhancement for
the same conduct violates the Double Jeopardy Clause.

The Guidelines explain:

Where the defendant is convicted both of the obstruction
offense and the underlying offense, the count for the
obstruction offense will be grouped with the count for the
underlying offense under subsection (c) of § 3D1.2 (Groups
of Closely Related Counts). The offense level for that group
of closely related counts will be the offense level for the
underlying offense increased by the 2-level adjustment spec-
ified by this section, or the offense level for the obstruction
offense, whichever is greater.

USSG § 3C1.1, comment. (n.6).

In the defendants' case the offense level was greater for the fraud
offenses, therefore that offense level was increased by two levels for
the perjury offenses. The defendants were not twice punished for the
perjury offenses.

15
Conclusion

The convictions and sentences of the defendants in Group One are
affirmed.

GROUP TWO

Group Two consists of Tony Matney, Terry Edward McCoy, J. B.
Slone, Daniel Thomas McCoy, Harold McCoy, Roger McCoy, Wil-
bert McCoy, and Leander Slone.

Issue 1

The defendants in Group Two contend that it was error for the dis-
trict court to deny their motion to dismiss Count One and their later
motion to grant judgment of acquittal or a new trial. For this proposi-
tion, they relied then and rely now on the argument that the evidence
did not prove a single conspiracy but, at best, proved multiple con-
spiracies.

We dispensed with this contention in our discussion of the fourth
issue raised by Group One. The evidence in the two trials was sub-
stantially similar and established the same connection between the
defendants and the same patterns of fraud. Our analysis of the facts
and law, as applied to this group of defendants leads us to the same
conclusions as did our analysis of the Group-One defendants' similar
argument. For these reasons, the district court did not err when it
denied the defendants' motions to dismiss, for acquittal, and for a new
trial.

Issue 2

The Group-Two defendants argue that it was error for the district
court to reject their jury instructions regarding the multiple-, single-
conspiracy issue.

"The decision of whether to give a jury instruction and the content
of an instruction are reviewed for abuse of discretion." United States
v. Abbas, 74 F.3d 506, 513 (4th Cir. 1996).

16
The district court instructed the jury to decide"whether there were
really multiple, separate conspiracies to commit these crimes." And,
it instructed the jurors that the government bore the burden of proving
beyond a reasonable doubt that the defendants were members of the
single conspiracy charged in the indictment. It instructed the jurors
that if the government failed in this proof they were required to find
the defendants not guilty of the conspiracy charged in Count One.

The jury was properly instructed to determine whether the govern-
ment had proved the existence of a single conspiracy. Cf. Urbanik,
801 F.2d at 696.

Issue 3

The Group-Two defendants challenge the admission of two gov-
ernment exhibits--one a summary of accident information and the
other a web-like diagram linking defendants involved in particular
accidents to other defendants. We affirmed the propriety of admitting
these two documents in our discussion of the Group-One defendants'
first issue after considering virtually the same argument. In accor-
dance with that discussion, we hold that the district court did not err
in admitting this evidence in this trial.

Issue 4

A

The defendants contend that the government did not prove the con-
spiracy charged in Count One but rather proved, at best, separate
conspiracies--one to commit fraud and a second to commit perjury.
They rely primarily on Grunewald v. United States, 353 U.S. 391
(1957); Lutwak v. United States, 344 U.S. 604 (1953), and Krulewitch
v. United States, 336 U.S. 440 (1949). These cases make "a vital dis-
tinction . . . between acts of concealment done in furtherance of the
main criminal objectives of the conspiracy, and acts of concealment
done after these central objectives have been attained, for the purpose
only of covering up after the crime." Grunewald, 353 U.S. at 405.

We will not presume that a conspiracy includes an implied subsid-
iary conspiracy to conceal; we require that the government prove that

17
an agreement to conceal was part of the initial conspiracy. See
Krulewitch, 336 U.S. at 442-44.

Whether there was a variance between the conspiracy charged and
the proof at trial turns on the sufficiency of the evidence to support
the jury's verdict. See discussion infra Group One, Issue 4A; see also
United States v. Potamitis, 739 F.2d 784, 787-88 (2d Cir. 1984). Here,
the evidence, taken in the light most favorable to the government,
clearly would allow a reasonable jury to find that the defendants were
part of a conspiracy that encompassed various acts of concealment.

The government introduced two surreptitiously recorded conversa-
tions of coconspirators. In the first, Daniel McCoy says: "That's what
I say. As long as we don't say nothin', they can't prove nothin'." In
the second, Herman McCoy says: "Everybody in here. . . If anybody
tells, everybody up and down this creek will be in jail." Jamie Lester
also testified that when he was subpoenaed to come before the grand
jury he rode down with his father--Arnold Lester, his brother--
Timothy Lester, and Jimmy McCoy. Jamie Lester testified that Jimmy
McCoy said: "Make sure you tell what you told before to the insur-
ance."

These statements establish the intent of the conspirators to conceal
their fraud. Participants were coached from the beginning on what to
say to insurance companies and not to deviate from those stories.
These continuing acts of concealment were "done in furtherance of
the main criminal objectives of the conspiracy." Grunewald, 353 U.S.
at 405.

Concealment was also essential to the continuing vitality of the
conspiracy. On April 27, 1994, Herman McCoy, discussing the police
investigation, warned against "anybody tell[ing]." On August 4, 1994,
Daniel McCoy, also discussing the investigation, extolled the benefits
of "say[ing] nothing." On April 11, 1995, and August 7, 1995, accord-
ing to the government's evidence, two more accidents were staged.

The similarity of the defendants' approach to their appearances
before the grand jury also illustrates the joint pursuit of one of the
main criminal objectives of the conspiracy--concealment. Many of
the defendants said that they were not sure how many accidents they

18
had been in. They complained of bad memories. They told the grand
jury that they could not recall details of accidents--who was
involved, how they happened . . . even, whether they happened. When
pressed to tell the grand jury whether they were in a particular acci-
dent that they could not recall, defendants resorted to some version
of: "Well, if the [accident] report says I was I guess I was in it."

From this and the other evidence, a jury could reasonably infer a
concerted and continuing effort to conceal. Consequently, we find
that the evidence was sufficient to support the jury's finding that the
defendants' fraud, obstruction of the investigation, and perjury were
part of a single conspiracy.

B

The defendants also contend that the district court erred when it
admitted the statements of coconspirators against them. Again, they
argue that the government did not prove that concealment was part of
the initial conspiracy.

Federal Rule of Evidence 801(d)(2)(E) permits the admission of
coconspirator statements if the government can prove, by a prepon-
derance of the evidence, that the statements were made in furtherance
of and during the course of the conspiracy. See United States v. Neal,
78 F.3d 901, 904-05 (4th Cir. 1996); United States v. Blevins, 960
F.2d 1252, 1255 (4th Cir. 1992). The district court's decision to admit
evidence under Rule 801(d)(2)(E) is reviewed for an abuse of discre-
tion, and its findings of fact regarding the scope of the conspiracy are
reviewed for clear error. See Blevins, 960 F.2d at 1255. The court may
examine all evidence before it, including the coconspirator state-
ments, to determine admissibility. See id.

A district court may admit conditionally the statements of cocon-
spirators subject to proof of the facts necessary for admission. See id.
at 1256. Here, the district court chose this course. The defendants
again moved, at the conclusion of the government's case in chief, for
exclusion of the testimony of coconspirators. The district court found,
based on the evidence presented, that the grand-jury testimony consti-
tuted statements by coconspirators made during the course of and in

19
furtherance of the conspiracy. The district court affirmed this finding
in its ruling on the defendants' motions for a new trial.

The record discloses that the statements were made during the
course of and in furtherance of the conspiracy and were plainly
admissible. The summary and analysis of the evidence in our discus-
sion of the previous issue provides a solid basis for admission. In the
defendants' statements, they recognize that everyone will go to jail if
anyone tells, contend that if they keep quiet the government will not
be able to prove anything, and encourage false testimony. The fact
that some of these statements were made before the conspiracy com-
mitted its final acts of fraud illustrates that they were made during the
course of the conspiracy. The statements were made to escape detec-
tion, assured the continued viability of the conspiracy, and were thus
made in furtherance of that conspiracy. See Neal , 78 F.3d at 905. The
defendants' perjury naturally followed in the concealment plan.

The government must also provide evidence of the existence of the
conspiracy independent of the statements themselves. See Fed. R.
Evid. 801(d)(2). In this case the most persuasive independent evi-
dence of a conspiracy to conceal is the perjury itself. The fact that the
defendants committed perjury, and did so in a similar fashion, is cor-
roborative independent evidence of the conspiracy to conceal. The
defendants told the same stories and invoked the same forgetfulness.
Reviewing its evidentiary ruling, the district court cited this similarity
of method, writing: "[T]he statements, which illustrated that each
defendant gave similar and allegedly fabricated details of the staged
automobile accidents in which they were involved, were relevant to
and probative of the crimes charged in the indictment." The defen-
dants' perjury was not offered to prove the truth of matters asserted
therein but as circumstantial evidence of the conspiracy.

The defendants' perjury was a legally operative act for which they
were being prosecuted. The grand-jury testimony of each defendant
was admissible against other defendants because the government
alleged and introduced sufficient evidence to prove that the defen-
dants were part of a single conspiracy to commit fraud and perjury--
as the district court found, as the jury reasonably found, and as we
find.

20
Accordingly, there was no clear error in the district court's findings
of fact and no abuse of discretion in its admission of the statements
of coconspirators.

Issue 5

The Group-Two defendants challenge the district court's denial of
their motion to dismiss Count 14 of the indictment which charged a
violation of 18 U.S.C. § 1001 (false statements generally). They base
their argument on the exculpatory-no doctrine which was rejected by
the Supreme Court in United States v. Brogan, 118 S.Ct. 805 (1998).
The district court did not err in this respect.

Issue 6

These defendants also challenge the admission of the full tran-
scripts and tapes of the defendants' testimony before the grand jury.
They allege that the tapes included comments and conduct by the
Assistant U.S. Attorney which constituted prosecutorial misconduct.
They point to statements that the prosector made when questioning
the defendants before the grand jury: "You want to tell the truth
now?" and "Lying's hard to do, isn't it?"

"We have stated that the test for reversible prosecutorial miscon-
duct generally has two components: that (1) the prosecutor's remarks
or conduct must in fact have been improper, and (2) such remarks or
conduct must have prejudicially affected the defendant's substantial
rights so as to deprive the defendant of a fair trial." United States v.
Chorman, 910 F.2d 102, 113 (4th Cir. 1990) (internal quotation marks
and citation omitted).

Although the statements and others of like import were improper,
we cannot conclude that the defendants were prejudiced by their
introduction. The district court instructed the jury that the questions
and comments by the Assistant U.S. Attorney were not evidence and
were not to be considered as such. We presume that the jury followed
this instruction. See United States v. Jones, 907 F.2d 456, 460 (4th
Cir. 1990).

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Issue 7

Harold McCoy challenges the district court's exclusion of his
social security disability records and school records which, he argues,
would have shown that he was mentally impaired and would have
explained his inability to remember accidents he was involved in. He
asserts that his "confused contradictory and clearly erroneous grand
jury testimony . . . could only be properly understood and interpreted
if the petit jury was informed that it was the product of a mentally and
emotionally severely impaired individual."

The district court declined to admit the documents, finding that
they were irrelevant and that they were within the ambit of Fed. R.
Crim. P. 12.2(b).

A defendant is required to give the government notice of his intent
to introduce expert testimony relating to a mental disease or defect
bearing on the issue of guilt. Fed. R. Crim. P. 12.2(b). If notice is not
given, as it was not here, the district court may exclude the evidence.
Fed. R. Crim. P. 12.2(d).

The district court correctly found that the documents were irrele-
vant if not introduced to illuminate Harold McCoy's capacity for
perjury--an issue of guilt. As such, admission of the documents was
governed by Rule 12.2. Notice was not given; the district court ruled
within its discretion.

Issue 8

A

The defendants challenge their sentences on several grounds, con-
tending that the court erred in its calculation of total monetary loss
attributable to each defendant and that the court erred in applying an
enhancement for more than minimal planning. In our discussion of
the fifth issue raised by Group One, we dispensed with these argu-
ments on a legal basis that is equally applicable here. The district
court found, as a matter of fact, that fraud committed after the defen-
dants knowingly joined the conspiracy was foreseeable to them. The

22
court also found, as a matter of fact, that the offense involved more
than minimal planning or a scheme to defraud more than one victim.
We see no error in these findings.

B

Harold McCoy challenges the district court's decision not to depart
downward from his sentence on the basis of diminished capacity pur-
suant to USSG § 5K2.13. The district judge recognized his authority
to depart and declined to do so, finding that the facts did not warrant
departure. This decision is not reviewable. See United States v.
Weddle, 30 F.3d 532, 541 (4th Cir. 1994).

C

Wilbert McCoy also challenges the district court's decision not to
depart downward from his sentence on the basis of his I.Q. pursuant
to USSG § 5K2.13. Again, the district judge recognized his authority
to depart and declined to do so. This decision is not reviewable. Id.

Wilbert McCoy additionally contends that the court erred in its
decision not to reduce his sentence based on his allegedly minor role
in the conspiracy pursuant to USSG § 3B1.2(b). He alleges that "there
is no evidence of any . . . connections with the three alleged leaders
of the conspiracy."

We review the district court's decision for clear error. See United
States v. Reavis, 48 F.3d 763, 768-99 (4th Cir. 1995). "A defendant
is not entitled to `minimal' participant status unless [ ]he has had an
extremely limited role in a criminal enterprise." Id. at 769. We mea-
sure both the defendant's culpability as related to other defendants
and his "individual acts and relative culpability against the elements
of the offense of conviction." Id.

Wilbert McCoy was involved in two accidents. Jimmy McCoy, one
of the government's posited central figures, was a participant in one
of them. Therefore, not only is Wilbert McCoy's allegation doubtful,
but it fails to establish by a preponderance of the evidence that he was
less culpable than other defendants and less culpable of the offense.

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See id. The district court did not err in declining to adjust his offense
level.

Conclusion

The convictions and sentences of the defendants in Group Two are
affirmed.

GROUP THREE

Group Three consists of Jimmy Stewart Justice, Arnold Lester,
Josephine Lester, Sanford Steven Lester, Carl Harold Slone, Carlie
Slone, Steve Allen Lester, Herman McCoy, Randy Ray McCoy, Wil-
liam Addison McCoy, and Sherry Vance.

The defendants in Group Three preliminarily ask to join in a num-
ber of arguments made by Group One and Group Two. We have
reviewed those arguments as they pertain to this group of defendants
and find, in accordance with our previous discussion, no error.

Issue 1

The Group-Three defendants assign error to the district court's
denial of their motions to dismiss Count One and for judgment of
acquittal or a new trial. They contend that the government did not
produce substantial evidence of a single conspiracy. This argument
was also made by Groups One and Two. The Group-Three defendants
are bound by the same legal analysis. The facts adduced at all three
trials were substantially similar. We have undertaken an independent
review of the evidence presented in this trial and find that the jury
could have reasonably found the existence of a single conspiracy.
Thus, the district court did not err in denying these motions.

Issue 2

Jimmy Justice argues that the evidence was insufficient to convict
him, even if it was sufficient to support the convictions of the remain-
der of the defendants. Jimmy Justice concedes that he was involved
in two accidents. He contends, however, that even if the evidence sup-

24
ports the conclusion that the July 25, 1992, accident was staged, he
didn't know anything about it.

The jury's verdict must stand if the evidence, taken in the light
most favorable to the government, would allow a reasonable jury to
find that Jimmy Justice was part of the conspiracy. See Urbanik, 801
F.2d at 695.

Jimmy Justice's testimony reveals questions of credibility. He
denied and later admitted that he had lived in Guesses Fork. He gave
inconsistent reasons for seeing the same doctor that the coconspirators
regularly saw instead of his regular doctor. He was not forthcoming
about prior injuries in a discussion with the insurance adjustor. Nor
was he forthcoming about his relationship with Wilbert Lee McCoy.
He testified that he made a claim against Wilbert Lee McCoy's insur-
ance company for the July 25th accident--when faulty brakes caused
the vehicle in which Jimmy Justice was riding to run into a vehicle
in which other convicted coconspirators were riding. He could not
explain why the driver in that accident did not avoid the second car.
He testified that although he was involved in a second accident with
Wilbert Lee McCoy, he did not file a claim; but he conceded that Wil-
bert McCoy might have. It was for the jury to weigh the evidence and
determine the nature of Jimmy Justice's involvement. The evidence
would permit a reasonable jury to find Jimmy Justice guilty of Count
One.

Issue 3

These defendants contend that it was error for the trial court to
admit the full tapes and transcripts of the defendants' appearance
before the grand jury. They assert three different rationales for their
objection.

A

The defendants first assert that the transcripts should have been
excluded because they contained statements of the prosecutor which
evidenced his personal belief. We addressed the propriety of admit-
ting the tapes, with a cautionary instruction, in light of this argument

25
in our discussion of Group Two's Issue 6. We similarly find no error
in the admission of the full tapes and transcripts in this trial.

B

The defendants also contend that the tapes and transcripts should
not have been admitted because the statements therein were not made
during the course of and in furtherance of the conspiracy and were
thus not within Rule 801(d)(2)(E). We have addressed this argument
in our discussion of Group Two, Issue 4. The same legal analysis
when applied to a substantially similar set of facts yields the same
result. The district court did not err in admitting the full tapes and
transcripts.

C

The defendants further argue that the tapes and transcripts should
have been excluded under Fed. R. Evid. 403, because their probative
value was substantially outweighed by their prejudicial effect. They
contend that the tapes introduced only the mockery of the grand jury
and the derision of the prosecutor and that the transcripts could have
been redacted to prevent this.

We will only disturb the district court's decision under Rule 403
in extraordinary circumstances. See United States v. Love, 134 F.3d
595, 603 (4th Cir. 1998). These are not such circumstances. Only by
admitting the entire tapes and transcripts of the defendants' grand-
jury testimony could the jurors properly evaluate the perjury charges.
The tapes and transcripts allowed the jury to judge tone, pauses, eva-
sions, and inconsistencies which would not have been apparent in
redacted transcripts. Furthermore, the district judge instructed the
jurors that the questions and comments of the prosecutor were not
evidence. We presume they followed this instruction. See id. We find
no error in the district court's evidentiary rulings.

Issue 4

The Group-Three defendants argue that the district court erred in
refusing its proffered instructions on the single-, multiple-conspiracy

26
issue. We have discussed the propriety of the district court's instruc-
tions (see Group Two, Issue 2). The instructions given here were sub-
stantially the same, and we again affirm their propriety.

CONCLUSION

The convictions and sentences of all of the defendants in the three
separate trial groups are affirmed.

AFFIRMED

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