UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 92-9508
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ROBERT GRAVES,
Defendant-Appellant.
____________________________________________________
Appeals from the United States District Court
for the Middle District of Louisiana
_____________________________________________________
(October 20, 1993)
Before KING and BARKSDALE, Circuit Judges, and DUPLANTIER,1
District Judge.
BARKSDALE, Circuit Judge:
The critical issue before us turns on a party being required
to object, or make an offer of proof, when the subject covered by
a motion in limine arises at trial, in order to preserve the issue
for appeal. This and several other evidentiary questions being the
principal matters raised on appeal, Robert Graves challenges his
conviction and sentence for conspiracy to defraud the United States
and Internal Revenue Service, in violation of 18 U.S.C. § 371. We
AFFIRM.
1
District Judge of the Eastern District of Louisiana, sitting
by designation.
I.
Graves was the Secretary of the Louisiana Department of
Transportation and Development (DOTD) from 1984 to 1988. In late
1986, he contacted Joseph Palermo, a member of the State Mineral
Board and businessman in Louisiana. The two had known each other
since 1984; Palermo considered Graves a "very good friend".
Graves called on Palermo for help, telling him that he
(Graves) had received income from a source he did not wish to
reveal to the Internal Revenue Service. Graves stated that he
owned property in Mississippi, and suggested that it might be used
to help account for the income.
Joseph Palermo did not wish to become directly involved
because of his position on the Mineral Board; thus, he asked his
brother, Myron Palermo, to help Graves. Myron Palermo told Joseph
Palermo, and later told Graves, that he would be willing to provide
Graves an apparent source for the income.
The specific scheme to which the Palermos and Graves agreed
was executed as follows: Backdated documents were created to show
a sale of Graves' Mississippi property to Myron Palermo's company.
Graves created backdated receipts for some $40,000 in payments
towards the alleged purchase price. The receipts showed Myron
Palermo's company as the party making the payments.
Two years later, when Myron Palermo was arrested for attempted
distribution of marijuana, authorities recovered the false
documents during a search of his business premises. Within a few
days of the arrest, Joseph Palermo informed Graves about it and the
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document seizure. As agreed, they met to discuss how to "get[] the
property back" in Graves' name. Graves then met with Myron
Palermo, and instructed him to write a letter stating that he could
not make the payments on the property and would be willing to
return it to Graves. Graves also instructed him to execute a
quitclaim deed returning the property to Graves. Myron Palermo did
both, testifying that these documents were created so "it would
look like it was a real transaction, which it wasn't."
Graves was indicted for both conspiracy to defraud the United
States and IRS, in violation of 18 U.S.C. § 371, and making a false
statement to the IRS (concerning different funds), in violation of
26 U.S.C. § 7206(1). He was convicted by a jury of the former and
acquitted on the latter. His sentence included 21 months
incarceration.
II.
A.
Graves bases error on the denial of his motion to strike
language from the indictment, which suggested that he was selling
his influence as a governmental official. He asserts that, instead
of being tried as charged, he was tried for official corruption.
Specifically, he contends that the conspiracy count should not have
identified him as the Secretary of DOTD, and that the false
statement count should not have made reference to him selling his
influence.2 Similarly, he maintains that the district court should
2
Paragraph two of the conspiracy count stated:
From in or about April 1984 to in or about March
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not have admitted evidence that he was engaged in official
misconduct.
1.
The denial of a motion to strike is reviewed only for abuse of
discretion. United States v. Bullock, 451 F.2d 884, 888 (5th Cir.
1971). For language to be struck from an indictment, it must be
irrelevant, inflammatory, and prejudicial. Id.
Graves' contention that the reference to his official position
in the conspiracy count should have been struck is without merit.
First, the language is relevant to the identity of the defendant
charged in the indictment. See United States v. Reeves, 892 F.2d
1223, 1228 (5th Cir. 1990) (recognizing that the "identity of the
participants" in a conspiracy is relevant). Second, his occupation
was relevant to prove the motive of the conspirators.
Specifically, the Palermos knew of Graves' position, and Graves
advised Myron Palermo that he should call him (Graves) if "[Graves]
could ever help me in any way". Evidence suggesting a motive for
a crime is relevant. See, e.g., United States v. Mennuti, 679 F.2d
1988, the defendant, ROBERT G. GRAVES, was the
Secretary of the Department of Transportation and
Development (DOTD) of the State of Louisiana.
The false statement count also recited that Graves was the
Secretary of DOTD. In addition, it stated:
In or about August 1986, the defendant, ROBERT G.
GRAVES, accepted a substantial sum of money knowing
it was paid to him for Graves' past assistance, and
to influence Graves to continue to be of
assistance, in connection with the obtaining of
properties by the State of Louisiana through the
DOTD.
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1032, 1037 (2nd Cir. 1982). (Nor is the language inflammatory or
prejudicial.)
Likewise, we find no abuse of discretion concerning the
contested language in the false statement count. The government
was required to prove that Graves knew that his income exceeded
that which he reported. See 26 U.S.C. § 7206(1). The specific
allegation made in support of the false statement charge was that
Graves peddled influence for cash. Of course, such an allegation
may be somewhat sensational; but, that does not make it irrelevant.
2.
For the foregoing reasons, we also find no error in the
admission of evidence on whether Graves was receiving unreported
income through official misconduct.
B.
Graves next asserts that the district court improperly
excluded evidence he sought to introduce to rebut the false
statement charge. To prove this charge, the government alleged
that a payment of $10,000 by Joseph Palermo to Graves was
unreported income. Joseph Palermo testified that the money was
given to Graves for his help in the DOTD's purchase of land from
Joseph Palermo.3 And, a DOTD employee testified that Graves'
actions in that transaction were not routine.
Graves presented evidence that he had done nothing to
influence the acquisition; in fact, a defense witness testified
that Graves' actions regarding the transaction were not unusual.
3
The land was owned by Joseph Palermo and others.
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Apparently, the jury credited Graves' explanation; he was acquitted
on the false statement charge. Now, however, Graves contends that
the trial court erred in excluding evidence he sought to introduce
regarding the price paid by the State for other parcels of
property. Through such evidence, Graves hoped to show that the
price paid by the State to Joseph Palermo was not unusually high.
Insofar as Graves was acquitted on the false statement charge,
even assuming error, it must be deemed harmless. See Fed. R. Crim.
P. 52(a). In addition, we find no abuse of discretion in the
district court's determination under Fed. R. Evid. 403 to exclude
evidence on a plethora of land acquisitions by the State. See Fed.
R. Evid. 103 ("[e]rror may not be predicated upon a ruling which
admits or excludes evidence unless a substantial right of the party
is affected"); United States v. Ackal, 706 F.2d 523, 532 (5th Cir.
1983) (essaying abuse of discretion standard of review for
limitations on the introduction of evidence); see also United
States v. Quintero, 872 F.2d 107, 113 (5th Cir. 1989) (noting broad
discretion of trial court in determining admissibility of
evidence), cert. denied, 496 U.S. 905 (1990). Such evidence would
have unduly consumed time and risked jury confusion on an issue of
little, if any, relevance. It matters not whether Joseph Palermo
received special treatment. What is relevant is whether he paid
Graves in an effort to procure it.
C.
Graves next challenges the district court's allowing a portion
of the government's plea agreement with Myron Palermo to be
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withheld from the jury. Before trial, the government filed a
motion in limine to exclude the portion providing that Palermo
would be subject to a polygraph examination. Graves unsuccessfully
contested the motion, contending that such a limitation would be
"contrary to the established standards of cross-examination and
confrontation". At trial, a redacted version of the plea agreement
was introduced; the polygraph clause was excluded.
According to the government, "[n]o polygraph examination of
Myron Palermo was ever requested or conducted." Graves is not
attempting to introduce polygraph results into trial; rather, he
asserts that he should have been allowed to explore the
implications of the government's inclusion of the polygraph clause
in the agreement as an issue going to Myron Palermo's credibility.
In addition, Graves complains that the government and Myron Palermo
affirmatively misrepresented that the redacted agreement was the
entire agreement, when Palermo, at the conclusion of an extended
colloquy on the agreement, affirmed that it was the "entire" and
"only agreement" he had with the government.
1.
For purposes of this appeal, we will assume that the district
court erred in permitting the clause to be redacted. Also, we will
assume that the offer made by the district court to Graves -- that
the clause could be left in, but that Graves would not be permitted
to ask questions about whether a polygraph examination was given
and the court would issue a cautionary instruction -- would not
cure this error.
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At trial, Graves did not object (renew his objection) to the
introduction of the redacted agreement. Rule 103 requires that a
timely objection be made; otherwise, we review only for plain
error. See Fed. R. Evid. 103. Although it may seem redundant --
as well as contrary to the underlying reasons for motions in limine
-- to require Graves to object at trial after having unsuccessfully
opposed the motion in limine, we are bound by a recent decision by
this circuit that plainly requires Graves to lodge a
contemporaneous objection in order to preserve the issue for
appeal. See United States v. Estes, 994 F.2d 147, 149 (5th Cir.
1993) (per curiam).
In Estes, a defendant planned to impeach the testimony of a
prosecution witness by introducing a prior conviction. Id. at 148.
The government moved successfully in limine to exclude evidence of
the conviction, to which the defendant objected. Id. The Estes
court recognized the settled rule of this circuit that a motion in
limine does not preserve error for Rule 103 purposes; thus, "`[a]
party whose motion in limine is overruled must renew his objection
when the evidence is about to be introduced at trial.'" Id. at 149
(quoting Wilson v. Waggener, 837 F.2d 220, 222 (5th Cir. 1988)).
Though recognizing that Estes presented the "opposite situation" --
the appellant had contested a successful motion in limine -- the
Estes court saw "no reason why the same rule should not apply.
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[Appellant] should have attempted to offer evidence of the
conviction at trial to preserve this issue for appeal."4 Id.
One commentator advises that "where an objection [in the form
of a motion in limine] has been sustained an offer of proof should
4
There is some tension between Estes and a prior decision by
our court, Collins v. Wayne Corp., 621 F.2d 777 (5th Cir. 1980).
In Collins, a party moved in limine to prevent its opponent from
introducing a deposition of one of the movant's experts. Id. at
780. The district court received briefs on the issue;
subsequently, it took the motion under advisement "until plaintiffs
prepared to offer [the deposition] as part of their trial
evidence." Id. At some point (perhaps at trial), the district
court decided to admit the deposition, but it did impose restraints
on the ability of the offering party to adduce additional facts
about the deponent. See id. For that reason, the offering party
chose to not offer the deposition into evidence. Id. at 781. On
appeal, that party based error on the restraints imposed by the
district court.
The party that had moved in limine to exclude the deposition
asserted on appeal that the proponent of the deposition failed to
preserve error, by failing to make an offer of proof at trial. Id.
Our court, applying Rule 103, determined that the "function of an
offer of proof is to inform the court what counsel expects to show
by the excluded evidence." Id. (citation omitted). The court then
determined that error was preserved because the motion in limine
papers and briefs made "the substance of the deposition known" to
the district court. Id.
Although, likewise, the district court knew the substance of
the evidence excluded in the instant case, Collins is
distinguishable. The district court in Collins apparently ruled on
the admissibility of the deposition at the time the deposition
would have been offered at trial. The instant case more closely
resembles Estes, because the district judge was not given the
opportunity at trial to reconsider his ruling on the exclusion of
the polygraph clause. Indeed, Collins, in another section of the
opinion, notes that "overruling of a motion in limine is not
reversible error; only a proper objection at trial can preserve
error for appellate review"; therefore, "a party whose motion in
limine has been overruled must object when the error he sought to
prevent with his motion is about to occur at trial." Id. at 784.
The stated rationale is to "give the trial court an opportunity to
reconsider the grounds of the motion in light of the actual --
instead of hypothetical -- circumstances at trial." Id. This
rationale, discussed infra in the text, applies here.
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be made at trial to make sure that appeal rights are preserved".
See 1 John W. Strong et al., McCormick on Evidence § 52 at 203 (4th
ed. 1992) (footnote omitted). This advice is well taken in this
circuit. As discussed in note 4, supra, the rationale for
requiring either a renewed objection, or an offer of proof, is to
allow the trial judge to reconsider his in limine ruling with the
benefit of having been witness to the unfolding events at trial.5
See Luce v. United States, 469 U.S. 38, 41-42 (1984) ("The ruling
is subject to change when the case unfolds. ... Indeed even if
nothing unexpected happens at trial, the district judge is free ...
to alter a previous in limine ruling."); see also Collins, 621 F.2d
at 784 ("Motions in limine are frequently made in the abstract and
in anticipation of some hypothetical circumstance that may not
develop at trial.").6
5
In this case, the district court granted the government's
motion in limine at a status conference prior to trial.
6
Several circuits appear to follow our rule that, to preserve
error for appeal, an objection or offer of proof as to the subject
presented by a motion in limine must be made at trial. Those
decisions do so in the context of an overruling of a motion in
limine. See, e.g., McEwen v. City of Norman, 926 F.2d 1539, 1544
(10th Cir. 1991); United States v. Roenigk, 810 F.2d 809, 815 (8th
Cir. 1987); Hendrix v. Raybestos-Manhattan, Inc., 776 F.2d 1492,
1504 (11th Cir. 1985). Nevertheless, some circuits are acting to
soften the rule. See, e.g., United States v. Mejia-Alarcon, 995
F.2d 982, 986-88 (10th Cir. 1993) (adopting three-part exception to
rule), petition for cert. filed, (U.S. Sept. 3, 1993) (No. 93-
5876); Greger v. International Jensen, Inc., 820 F.2d 937, 941-42
(8th Cir. 1987) (recognizing exception to general rule if trial
court makes definitive ruling on motion before trial); Palmerin v.
City of Riverside, 794 F.2d 1409, 1413 (9th Cir. 1986) ("where the
substance of the objection has been thoroughly explored during the
hearing on the motion in limine, and the trial court's ruling
permitting introduction of the evidence was explicit and
definitive, no further action is required to preserve for appeal
the issue of admissibility of that evidence.")
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Because Graves failed at trial to renew his objection (or
offer the polygraph clause),7 we apply the plain error standard of
review. Fed. R. Evid. 103. Unless the error is "so obvious that
our failure to notice it would seriously affect the fairness,
integrity, or public reputation of judicial proceedings and result
in a miscarriage of justice", we will not reverse the conviction.
United States v. Fortenberry, 914 F.2d 671, 673 (5th Cir. 1990)
(quoting United States v. Graves, 669 F.2d 964, 971 (5th Cir.
1982)), cert. denied, 111 S. Ct. 1333 (1991).
This case does not present such error. First, we question the
utility of the polygraph clause for the defense. At oral argument,
Graves recognized that the inferences that may be drawn from the
clause could either credit or impeach Myron Palermo. Second, even
assuming that the jury would have determined that the presence of
the clause impeached Myron Palermo's credibility, the jury had
before it other impeachment evidence insofar as he was concerned.
Specifically, the jury had the following information about
Myron Palermo: (1) he pled guilty to a charge of conspiracy to
possess with intent to distribute 2,000 pounds of marijuana; (2) he
pled guilty to conspiracy to defraud the United States (money
7
We recognize that Graves would have had to do so through a
sidebar conference (on the record) or otherwise handle it outside
the hearing of the jury; failure to do so would defeat the purpose
of the in limine ruling. The flip side is, of course, that a trial
judge should not be surprised, perturbed or annoyed when counsel
makes an objection or offer of proof on an issue that the judge
believes was disposed of by the in limine ruling; counsel is, at
the very least, preserving the issue for appeal.
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laundering); (3) he pled guilty to obstructing the United States
Customs Service; (4) he had received substantially lighter
punishment for these offenses because of his testimony against
Graves; and, (5) he had lied originally to federal authorities
concerning the documents at issue in the Graves case. As if this
was not enough, the jury heard testimony that Myron Palermo was
regarded in the community as untruthful. Highlighting this
evidence of a reputation for untruthfulness, the district court
specifically reminded the jury of it during its charge. In light
of the abundant evidence Graves could have used to impeach Myron
Palermo, the absence of the more speculative inferences that may
have flowed from the polygraph clause falls far short of so
infecting the judicial process as to require reversal under the
plain error standard of review. (It appears that, even under the
normal standard of review, Graves could not show reversible error.
Accordingly, although we do not recommend en banc review in this
case of our circuit's rule on renewing objections to in limine
rulings, we urge that it do so in the appropriate case.)
2.
We can certainly understand Graves' concerns regarding the
representation by the government that the redacted plea agreement
was the "entire" or "only" agreement between it and Myron Palermo.
Obviously, government counsel should not represent that a document
is the "entire" agreement when, in fact, it is not (even when the
only portion of the agreement not disclosed to the jury was subject
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to court-ordered limitation).8 This notwithstanding, Graves'
failure to make a contemporaneous objection to the questions
concerning the entirety of the agreement dictates, again, review
only for plain error.9 See Fed. R. Evid. 103; Fortenberry, 914
F.2d at 673. And, the error was not "so obvious that our failure
to notice it would seriously affect the fairness, integrity, or
public reputation of judicial proceedings and result in a
miscarriage of justice". Id.
D.
Graves also contends that the district court erred in not
excusing a juror who, on the last day of trial, reported to the
district judge that her husband had been attacked while in a
vehicle registered in the juror's name. The district judge in turn
reported to trial counsel that "[s]he said I don't know what jury
tampering is, judge, but you told me to report any unusual
occurrence".10 The juror also advised the district judge that she
8
We do not suggest that government counsel acted deliberately
to distort the truth. Graves concedes that the prosecutor was not
acting out of an "evil" intent.
9
Graves asks "what the proper objection might be", stating that
he could not object simply because "the witness is lying".
Obviously, objection could have been lodged when the government
asked if the redacted agreement was the "only" agreement between
Myron Palermo and the United States. Counsel could have then noted
that this conflicted with the actual agreement, and that the in
limine ruling was preventing him from pointing it out on cross. Of
course, as discussed supra, the basis for the objection could have
been stated outside the hearing of the jury to prevent undermining
the purpose of the motion in limine.
10
During the trial, the judge had made the following statement
to the jury:
There's one more thing. If, during the course of
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was neither unduly upset by the event nor had her fairness and
objectivity been affected adversely. As the basis for contending
that the district judge should have utilized an alternate juror,
Graves asserts that the juror likely assumed Graves, and not the
United States, was "connected with the incident."
For obvious reasons, the district court is afforded broad
discretion in determining the impartiality of jurors; it is in the
best position to observe their demeanor and credibility. United
States v. Hinojosa, 958 F.2d 624, 631 (5th Cir. 1992).
Accordingly, a ruling respecting such impartiality will not be set
aside "absent a clear abuse of discretion." Id. (emphasis added).
In this case, the juror was questioned by the district court
concerning the implications of the attack on her ability to fairly
and thoroughly decide Graves' guilt or innocence. Apparently, the
district court credited her testimony that the event would not
diminish her impartiality. We will not second-guess the district
court's determination on this matter.11
the trial, anyone should come into the courtroom
that you know or recognize, please let me know
about that. Just call it to my attention and let
me know about that, okay?
11
The government notes that the juror in question voted for
acquittal on the false statement count. Obviously, this cannot be
part of our calculus. See United States v. Benavides, 596 F.2d
137, 140 (5th Cir. 1979) (noting that the validity of a district
court's exercise of discretion "does not turn on whether subsequent
events prove or disprove" the court's judgment).
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E.
Graves contends next that the district court erred by refusing
to instruct the jury that the testimony of "immunized" witnesses
(Joseph, Myron, and Anthony Palermo) should be "weighed by the jury
with greater care and caution than the testimony of ordinary
witnesses." (Emphasis added.)12 The similar given instruction
identified the three persons subject to immunity and plea
agreements, explained the nature of the latter, and cautioned the
jury that the testimony of witnesses who have entered plea or
immunity agreements "is always to be received with caution and
weighed or evaluated with great care." (Emphasis added.) In
comparing the proposed and given instructions, Graves contends that
the latter is "a mere truism", because "the testimony of every
witness is `weighed or evaluated with great care.'" Essentially,
Graves complains that it was reversible error for the trial court
to instruct the jury with the demonstrative "great", as opposed to
the comparative "greater."
We disagree. Initially, we note that the district court "has
broad discretion in formulating the charge so long as the charge
accurately reflects the law and the facts of the case." United
States v. Allred, 867 F.2d 856, 868 (5th Cir. 1989) (citation
omitted). We will reverse a district court's refusal to give a
12
Apparently, the three Palermo brothers entered into immunity
agreements with the United States Attorney for the Middle District
of Louisiana, where this case was tried. Only Joseph and Anthony
Palermo entered into such agreements with the United States
Attorney for the Western District of Louisiana; Myron Palermo
entered into a plea agreement with that office.
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proposed instruction only if "the instruction (1) is substantively
correct; (2) was not substantially covered in the charge actually
delivered to the jury; and, (3) concerns an important point in the
trial so that the failure to give it seriously impaired the
defendant's ability to effectively present a given defense."
United States v. Grissom, 645 F.2d 461, 464 (5th Cir. 1981); see
also Allred, 867 F.2d at 868.
We agree with the district court that Graves' proposed
instruction was substantially covered by those given. As noted,
they specifically identified the witnesses who were under immunity
or plea agreements, explained the implications of those agreements,
and admonished the jury to consider those witnesses' testimony with
"great care." The instructions, taken as a whole, see United
States v. Chavis, 772 F.2d 100, 108 (5th Cir. 1985) (requiring that
a jury charge "be considered as a whole"), implicitly compared
these witnesses to the other witnesses and counseled caution. The
court's decision to forego use of the comparative form of the
adjective "great" falls far short of reversible error.
F.
Finally, Graves maintains that the district court erred in
imposing a two point upward adjustment of his sentence for
obstruction of justice. This adjustment is authorized when a
defendant engages in conduct which "obstructed or impeded, or
attempted to obstruct or impede, the administration of justice
during the investigation, prosecution, or sentencing of the instant
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offense ...". U.S.S.G. § 3C1.1.13 "Where a district court enhances
a defendant's offense level on account of an obstruction of
justice, the district court's finding of obstructive conduct is
reviewed for clear error." United States v. Pofahl, 990 F.2d 1456,
1481 (5th Cir. 1993) (emphasis added), petitions for cert. filed,
(U.S. Aug. 2, 4, 1993) (Nos. 93-5894, 93-5526).
At trial, there was evidence that Graves knew that the
government had discovered false sale records. Also, he knew that
his accountant had testified before the grand jury regarding the
alleged sale. Graves met with his accountant following his
testifying before the grand jury and debriefed him on all the
questions he had been asked and answers he had given. Graves then
contacted Joseph Palermo and asked him to relay the testimony of
the accountant to Myron Palermo, so that Myron Palermo's testimony
would be consistent. As Joseph Palermo testified at trial, Graves
wanted to make sure "my brother would say the same thing the CPA
said."
13
Graves was sentenced in October 1992; thus, the guidelines in
effect at that time can be found in the 1991 edition of the Federal
Sentencing Guidelines Manual. Inexplicably, the probation officer
utilized the 1988 edition. On appeal, we usually apply the
guidelines in effect at the time of sentencing. See United States
v. Gonzales, 996 F.2d 88, 90 n.3 (5th Cir. 1993). At any rate,
Graves' contention fails under either edition. The only
significant difference insofar as our subsequent discussion is
concerned is that the 1988 edition's application notes do not
include the witness tampering statute, 18 U.S.C. § 1512(b), as an
example of conduct authorizing the adjustment. However, the 1988
application notes do recognize that the adjustment would be
authorized if the defendant unlawfully attempted "to influence" a
witness.
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The crux of Graves' assignment of error is that this evidence
would not support a finding that he suborned perjury, because the
truth of whatever Graves told Myron Palermo to say was not explored
at trial. This contention fails for three reasons.
First, the district court, with its superior knowledge of the
witnesses and proceedings, could well have inferred from these
facts that Graves was attempting to suborn perjury; it may have
reasonably surmised that the purpose of Graves' action was not to
remind Myron Palermo to be consistent with the accountant on
truthful matters. Admittedly, such an inference might not support
a conviction for perjury under a beyond a reasonable doubt
evidentiary standard; but, the standard of proof for sentencing
issues is a preponderance of the evidence. United States v.
Buckhalter, 986 F.2d 875, 879 (5th Cir. 1993), petitions for cert.
filed, (U.S. June 30, 1993; July 2, 1993) (Nos. 93-5048, 93-5097).
Second, Graves' conduct may have violated 18 U.S.C. § 1512(b),
a witness tampering statute, which in turn would trigger the upward
adjustment. See U.S.S.G. § 3C1.1, comment. (n.3(i)). Section
1512(b) prohibits one from using corrupt persuasion toward another
with the intent of influencing the testimony of another. See 18
U.S.C. § 1512(b), (b)(1). This section may not require coercive
conduct on the part of the violator. See United States v.
Masterpol, 940 F.2d 760, 763 (2d Cir. 1991); see also Pofahl, 990
F.2d at 1482 (citing Masterpol with approval for the proposition
that the mere "urging" of a witness to lie satisfies § 1512(d)).
Whether one believes Graves was urging Myron Palermo to lie or not,
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he was clearly attempting to "influence" the grand jury testimony
of Myron Palermo in arguable violation of § 1512(d).
Third, and most importantly, the district court need not have
been satisfied that Graves committed either perjury or witness
tampering in order to make the adjustment. Although the Guidelines
do list "examples of the types of conduct to which [§ 3C1.1]
applies", that list is "non-exhaustive". See U.S.S.G. § 3C1.1
comment. (n.3). Stated differently, although listed offenses such
as subornation of perjury or witness tampering are sufficient to
trigger an upward adjustment, they are not necessary; a district
court could properly determine that other conduct satisfies §
3C1.1.
Because we are not "left with the definite and firm conviction
that a mistake has been committed" by the district court in its
finding on the adjustment, we do not find clear error. See Pofahl,
990 F.2d at 1480 (citation omitted).
III.
For the foregoing reasons, the conviction and sentence are
AFFIRMED.
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