Case: 08-11090 Document: 00511289199 Page: 1 Date Filed: 11/09/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 9, 2010
No. 08-11090 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
RUBEN B. BOHUCHOT AND FRANKIE LOGYANG WONG,
Defendants–Appellants.
Appeals from the United States District Court
for the Northern District of Texas
Before SMITH, CLEMENT, and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
Ruben B. Bohuchot and Frankie Logyang Wong were convicted of bribery,
conspiracy to commit bribery, and conspiracy to launder monetary instruments
in connection with computer and technology contracts awarded by the Dallas
Independent School District and programs that received federal funds.
Bohuchot and Wong challenge these convictions and their respective sentences.
We affirm the convictions and sentences.
I
Ruben Bohuchot and Frankie Wong were charged in a multi-count
indictment for offenses relating to the award of computer technology contracts
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by the Dallas Independent School District (DISD). At the time of the indictment,
Bohuchot was DISD’s chief technology officer. Wong was the president and co-
owner of Micro Systems Engineering, Inc. (MSE), a computer reseller that
contracted with larger companies to resell and maintain computer hardware.
Two contracts were at the center of the government’s bribery and
conspiracy allegations. The first was for a technology program called Seats
Management, which provided computers, related services, and support for
schools within the district. DISD awarded this contract, calling for payments
totaling approximately $18 million, to a partnership between Hewlett-Packard
(HP) and MSE in September 2002. MSE received at least $4,674,303 for its
participation in the partnership. The second contract involved E-Rate, a federal
program that provides money and technology to school districts that subsidize
student lunches. DISD awarded this contract, contemplating payments of over
$115 million, in December 2003 to a group of 13 companies called the
Consortium, which included HP, Novell, and MSE. More than $35 million was
paid to MSE on behalf of the Consortium between May 2003 and July 2005 for
MSE’s participation.
DISD used Requests for Proposals (RFP) to inform potential bidders of the
scope, location, and requirements for its major technology projects. To insure
fairness in the bidding process, information regarding forthcoming RFPs and
their requirements was released to all competitors at the same time. The
propriety of the relationship between Bohuchot and Wong came into question
when a vendor who bid unsuccessfully for one of the DISD technology contracts
lodged a complaint. Subsequent investigation by the government revealed
substantial evidence that Wong and Bohuchot had engaged in an ongoing
scheme in which Bohuchot provided valuable inside information regarding the
RFP process to Wong in return for cash, vacation trips for Bohuchot and his
family members, employment for Bohuchot’s son-in-law, sporting event tickets,
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and extensive use of two yachts owned by an MSE affiliate. There was evidence
that Bohuchot provided insider information for approximately one year before
the initial Seats Management RFP was released and that Bohuchot had met
with Wong in Key West, Florida days before the release of that RFP. Witnesses
for the government who were present at this latter meeting testified that
Bohuchot shared a draft copy of the Seats Management RFP with Wong and
associates at that time.
Wong and Bohuchot were convicted of violating and conspiring 1 to violate
18 U.S.C. §§ 666(a)(1)(B) and (2) (bribery concerning programs receiving federal
funds), and of conspiracy to commit money laundering.2 Bohuchot was also
convicted of obstruction of the grand jury proceeding 3 and of making a false
statement on a tax return,4 but he has not appealed his convictions for these
latter offenses. The district court sentenced Bohuchot to a 132-month term of
imprisonment and Wong to a 120-month term of imprisonment. Wong brings
forward six issues on appeal, arguing that (1) the government’s proof and the
charge to the jury constructively amended the indictment, (2) there was
insufficient evidence to support the bribery theory on which Wong was indicted,
(3) the prosecutor impermissibly commented on Wong’s failure to testify, (4) the
jury instructions were erroneous regarding money laundering because the mens
rea element was “knowing” rather than “intentional,” (5) the district court erred
in using the total cost of ownership of two yachts in sentencing, and (6) the
district court erroneously found multiple bribes rather than a single bribe.
Bohuchot adopts Wong’s argument and briefing regarding five of these issues.
1
18 U.S.C. § 371.
2
18 U.S.C. § 1956(h).
3
18 U.S.C. § 1512(c).
4
26 U.S.C. § 7206(1).
3
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II
We first consider the argument that the proof offered at trial by the
government and the jury charge submitted by the district court permitted the
jury to convict Wong and Bohuchot on theories that were not alleged in the
indictment, thereby impermissibly constructively amending the indictment. The
defendants rely on the Supreme Court’s seminal decision in Stirone v. United
States, in which the indictment alleged that Stirone had unlawfully interfered
with interstate commerce in sand.5 At trial the prosecution presented not only
evidence of interference with interstate commerce in sand but as to steel as well,
and over the defendant’s objection, the trial court’s charge permitted the jury to
convict based on a finding regarding either sand or steel.6 The Supreme Court
held that this violated “the basic protection the grand jury was designed to
afford” because it “subject[ed] the defendant to prosecution for interference with
interstate commerce which the grand jury did not charge.” 7
The indictment presently at issue alleged that Bohuchot provided and
Wong received non-public information relating to the Seats Management
contract before the information was provided to other vendors who were
competing with MSE, which assisted MSE in submitting the winning bid, and
that Bohuchot signed documents authorizing DISD to enter into contracts
benefitting MSE. The indictment also alleged that approximately six months
before the Seats Management RFP was published for bidding, Bohuchot
5
361 U.S. 212, 213-14 (1960).
6
Id. at 214.
7
Id. at 218; see also id. (“The charge that interstate commerce is affected is critical
since the Federal Government’s jurisdiction of this crime rests only on that interference. It
follows that when only one particular kind of commerce is charged to have been burdened a
conviction must rest on that charge and not another, even though it be assumed that under
an indictment drawn in general terms a conviction might rest upon a showing that commerce
of one kind or another had been burdened.”).
4
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represented that a former employee of DISD, William Coleman, was then an
employee of DISD when in fact he was a consultant for MSE.
Wong and Bohuchot contend that the government’s theory of the case
shifted during trial and that it urged the jury to convict the defendants on
grounds that differed from those set forth in the indictment. The allegedly new
grounds include theories that Wong bribed Bohuchot to (1) manipulate the flow
of information to the DISD board of trustees, (2) select individuals who would be
favorable to MSE to serve on committees that would evaluate the competing bids
on the two contracts, (3) influence or pressure those committees, (4) create
favorable scoring matrixes or tamper with the scores for evaluating the
competing bids, (5) improperly influence contract negotiations, and (6) rush the
RFP process.
The defendants failed to object to any of the evidence or arguments by the
prosecution that they now urge constructively amended the indictment. They
contend, however, that they preserved their contentions by objecting to the
district court’s proposed instructions to the jury. The defendants point to the
objections they lodged to the definition of “corruptly.” The defendants argued to
the district court that “[i]n light of the evidence that has developed,” the jury
instruction should have defined “corruptly” as “intent to receive a specific benefit
in return for a payment. And incorporated in that is the intent of the specific
quid pro quo required for bribery and under 201 Section 18, 201 concerning
bribery under 18 U.S. Code Section 666.” The defendants were referring to 18
U.S.C. § 201, regarding bribery of public officials, and were arguing that the
same intent requirement for that offense is required under 18 U.S.C. § 666, the
statute the defendants were charged with violating. During this colloquy with
the court, Wong and Bohuchot also cited the Fourth Circuit’s decision in United
States v. Jennings for the proposition that “corrupt intent” is “the intent to
5
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engage in ‘some more or less specific quid pro quo.’”8 Wong and Bohuchot
reiterated similar objections to the definition of “corruptly” during subsequent
discussions with the district court.9 However, there was no discussion of the
evidence during the course of these objections. There was no hint or suggestion
to the district court that the government had changed its theory of how the
defendants had violated 18 U.S.C. § 666 or that this had resulted in a
constructive amendment of the indictment. Nor did either of the defendants
apprise the district court that the jury instructions would permit a conviction
based on a theory that was not contained in the indictment. It was only to this
court, on appeal, that Wong and Bohuchot for the first time argued that the
indictment was constructively amended.
Prior to the Supreme Court’s decision in United States v. Olano,10 this
court had held that “[c]onstructive amendments are reversible per se.” 11 Our
post-Olano decisions, however, have concluded that plain error review applies
even if there has been a constructive amendment. Although there is “tension
between plain error review and the ‘automatic reversal’ rule of Mize,” it is clear
8
160 F.3d 1006, 1021 n.6 (4th Cir. 1998) (quoting United States v. Arthur, 544 F.2d 730,
734 (4th Cir. 1976)).
9
Counsel for Bohuchot argued:
Your Honor, it [“corruptly”] does not have its ordinary and common meaning in
this specific statute because this specific statute relates back to the 18 U.S.
Code [201] a bribery statute for its language when it was adopted, and bribery
requires the intent to effect and [sic] exchange of money for a specific official
action and that is – for a short term quid pro quo requirement and 666, while
it doesn’t define it and that is the issue other circuits have held that a specific
quid pro quo is required and the instructions relating back to – 18 U.S. Code
[201] are required. That is why just the common usage definition won’t apply
here or wouldn’t adequately instruct the jury, Your Honor, or at least that is my
position.
10
507 U.S. 725 (1993).
11
United States v. Chandler, 858 F.2d 254, 256 (5th Cir. 1988).
6
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in this Circuit that we have “reconciled [that tension] in favor of plain error
review.”12 Our inquiry is therefore whether there was plain error in the district
court proceedings.13
As the Supreme Court has often noted, there are four prongs to a plain
error analysis.14 These are “(1) there was an error or defect, a ‘deviation from a
legal rule—that has not been intentionally relinquished or abandoned’; (2) ‘the
legal error must be clear or obvious, rather than subject to reasonable dispute’;
(3) the error affected the defendant’s substantial rights, ‘which in the ordinary
case means he must demonstrate that it affected the outcome of the district
court proceedings’; and (4) when these three elements are present, a court may
exercise its discretion to correct the error, although this discretion ‘ought to be
exercised only if the error seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.’”15 We conclude that it is at least debatable
whether there was clearly or obviously a constructive amendment of the
indictment, but that in any event, neither the third nor fourth prongs of plain
error review is satisfied in this case.
The defendants acknowledge that the government’s presentation of its case
during opening statements remained within the confines of the indictment. It
12
United States v. Dixon, 273 F.3d 636, 639 n.1 (5th Cir. 2001) (quoting United States
v. Daniels, 252 F.3d 411, 414 n.8 (5th Cir. 2001)); see also United States v. Scher, 601 F.3d 408,
411 (5th Cir. 2010); United States v. Broadnax, 601 F.3d 336, 340 (5th Cir. 2010); United
States v. Phillips, 477 F.3d 215, 221 (5th Cir. 2007); United States v. Reyes, 102 F.3d 1361,
1365 (5th Cir. 1996).
13
See Dixon, 273 F.3d at 639 (holding that the contention that the indictment had been
constructively amended would be reviewed for plain error when there was no objection in the
district court).
14
See, e.g., Puckett v. United States, 129 S. Ct. 1423, 1429 (2009); Olano, 507 U.S. at
732-36.
15
United States v. John, 597 F.3d 263, 283 n.91 (5th Cir. 2010) (quoting Puckett, 129
S. Ct. at 1429) (internal quotation marks omitted).
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was during the presentation of government witnesses, the defendants claim, that
the government began to assert other theories upon which the jury could find
Wong and Bohuchot guilty. The record, however, reflects that it was the
defendants who first broached many of the facts that they now say should not
have been before the jury.
In opening statements, the defendants argued that Bohuchot did not have
the authority to bind DISD to any contracts and was not a member of either the
DISD board or the committees selected to evaluate the bids on the two contracts.
The defendants also asserted in opening statements that Bohuchot did not
attempt to influence the evaluation committees. The defendants continued to
develop this strategy in cross-examining government witnesses. For example,
the government did not go beyond the facts set forth in the indictment in the
direct examination of Larry Groppel, who was the deputy superintendent for
business services at DISD when the contracts were awarded. It was on cross-
examination that the defendants elicited that the bids were opened by the
purchasing department, that that department chose who would be on the
committees scoring the bids, and that Bohuchot’s department “left the
evaluation committees alone” to do their work.
Similarly, on cross-examination of another witness, Roland Taylor, the
defendants emphasized that Bohuchot was not a member of the bid evaluation
committees, and that there were no records that he was present when these
committees were doing their work. On redirect of this witness, the government
elicited that it was probably Bohuchot who determined how many points would
be awarded in each category of scoring that was to be used in evaluating the bids
and that Bohuchot chose the evaluation committee members.
In its direct examination of other witnesses, the government hewed to the
indictment, developing in some detail how Wong and those with whom he
associated were able to use nonpublic information to structure a winning bid.
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For example, through Blair Thomas, the director of sales and operations for
MSE, the government offered evidence that, long before the RFP for the Seats
Management contract was made public, Bohuchot gave Thomas information that
“value adds,” meaning things of value to DISD outside the specifications of the
RFP, would be important and how the “value adds” would be weighted in the
evaluation process. Bohuchot also discussed financing with Thomas, and
Thomas knew well in advance of the RFP’s dissemination that bidding firms
would be required to have a net worth of at least $1 billion. MSE did not meet
that requirement, and receipt of this early information gave MSE time to
associate with another company that had the requisite financial strength. In a
meeting that occurred in Key West, days before the RFP was publicly released,
Thomas was given a copy of the RFP by Bohuchot. Thomas handed it to Wong.
Wong then told Thomas that Wong and Bohuchot needed to meet and that
Thomas did not need to be present.
The government did not go beyond the facts set forth in the indictment
during its initial closing argument to the jury. Counsel for Bohuchot made
numerous points in response and briefly argued to the jury that his client did not
receive the bids for the two contracts and that Taylor chaired the bid selection
committee, of which Bohuchot was not a member. He noted that Bohuchot did
not participate in the scoring of the bids and did not try to influence that process.
Wong’s counsel similarly argued in closing that Bohuchot did not have the power
or the authority to award contracts to Wong and that the bids for both contracts
went through evaluation committees. In response, in its closing argument, the
government asserted that Bohuchot had discussions with MSE representatives
over the course of the year before the RFP for the Seats Management contract
was publicly available. The government did, however, make other points that
were not part of the indictment, including that Bohuchot was involved in the
evaluation process, had contact with the DISD board, and that the board would
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naturally rely on him. The government argued that the members of the
evaluation team reported to Bohuchot and “when you know your boss wants
something, what are you going to do? You are going to try to make your boss
happy.” The government then emphasized that the DISD board would have
relied on the head of the technology department, Bohuchot, in signing the Seats
Management contract, and that Bohuchot’s signature appeared on a document
recommending to the board that it accept the contract that would handsomely
compensate MSE. Later in the argument, the government asserted, “[t]hen you
have DISD. What did he [Bohuchot] control here? . . . He controlled the board
of trustees. He controlled his department employees. And he controlled most
importantly the information flow. That is a lot of control.” With regard to the
E-rate contract, the government argued that Bohuchot set the scoring matrix
that was used by the evaluation committee to score each bid. These were not
facts alleged in the indictment.
We will assume, without deciding, that there was a constructive
amendment of the indictment. We cannot conclude, however, that any such
error affected the defendants’ substantial rights, that is, that it affected the
outcome of the district court proceedings.16 The evidence that Wong bribed
Bohuchot was strong, notwithstanding the defendants’ point that the
government’s own witnesses testified that it was common practice for school
districts to share information with vendors regarding forthcoming RFPs, and the
defendants’ argument that the government failed to call any of MSE’s business
competitors to establish the allegation that Wong received “inside” information
unavailable to other companies. Two separate witnesses for the government,
Thomas and Coleman, testified that Bohuchot brought a draft of the Seats
Management RFP with him to a secret meeting with Wong that took place in
16
See Olano, 507 U.S. at 734.
10
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Key West, Florida days before the official release of the RFP. More importantly,
Garrett Goeters, an HP account executive, testified to having multiple and
specific early conversations with Bohuchot, and admitted that the information
provided by Bohuchot helped HP/MSE prepare their bid for the Seats
Management contract because they had more time and were thus better
prepared than competitors. The jury heard not only the facts recounted earlier
in this opinion that were included within the indictment, it also heard detailed
testimony that supported extensive allegations in the indictment that after the
Seats Management contract was signed by DISD, Wong provided to Bohuchot
the expansive use of and control over two yachts in Florida. Wong not only paid,
through a shell entity, for the purchase of the yachts, but he paid more than
$300,000 for yacht-related expenses. Wong provided frequent-flyer miles to
Bohuchot and his family to travel to the yachts. The yachts’ captain, Dan
Tingley, testified that Bohuchot controlled and used these high-dollar vessels as
his personal possessions and that Wong told Tingley on one occasion when he
complained about Bohuchot’s operating the boat unsafely, that without
Bohuchot, “there would be no boat.” The evidence also established that Wong
funneled substantial sums of money to Bohuchot’s son-in-law and attempted to
conceal these payments through a series of holding companies. Other things of
value, such as expensive tickets to sporting events and expensive golf outings,
were bestowed upon Bohuchot by Wong. It is improbable that the jury would
have concluded that Wong and Bohuchot were innocent if only the evidence of
which the defendants now complain had been excluded.
In any event, we decline to exercise our discretion to correct any error that
may exist regarding a constructive amendment of the indictment. Any such
error did not seriously affect the fairness, integrity, or public reputation of the
11
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judicial proceedings.17 Wong and Bohuchot were not surprised by the evidence
they now challenge. The defendants, in large measure, raised these areas of
inquiry defensively, and the government responded. There is no contention that
the defendants were unable to meet the government’s evidence. And, as noted,
the evidence of guilt was very substantial. Accordingly, we will not reverse the
convictions on the basis of a constructive amendment of the indictment.
III
Wong and Bohuchot argue that they are entitled to rendition of judgment
in their favor, contending that the evidence was insufficient to prove the charges
for which they were indicted. Our review is to determine if “any rational trier
of fact could have found the essential elements of the crime beyond a reasonable
doubt.” 18
With regard to the Seats Management contract, we have set forth above
the considerable evidence that supports the jury’s findings of guilt. The evidence
was sufficient to support the convictions that pertain to the Seats Management
contract.
With regard to the E-rate contract, the government concedes that it
presented no direct evidence that Bohuchot assisted Wong in submitting the
successful bid or otherwise influencing the contracting process. However, as set
forth above, there was considerable evidence that Wong provided money and
other things of considerable value to Bohuchot after the E-rate contract was
awarded. A rational juror could infer from this circumstantial evidence and the
evidence regarding the Seats Management contract that Bohuchot accepted or
solicited the remuneration from Wong as part of an ongoing scheme as alleged
17
See id. at 736.
18
United States v. Ekanem, 555 F.3d 172, 174 (5th Cir. 2009) (citation omitted).
12
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in the indictment.
IV
Wong asserts that the prosecutor impermissibly commented on Wong’s
decision to invoke his Fifth Amendment right not to testify at trial. Generally,
we review such a contention de novo.19 Because Wong failed to object to these
comments at trial, however, this claim is reviewed for plain error.20
A prosecutor is prohibited from commenting directly or indirectly on a
defendant’s failure to testify.21 Ordinarily, “[t]he test for determining whether
the prosecutor’s remarks were constitutionally impermissible is: ‘(1) whether the
prosecutor’s manifest intent was to comment on the defendant’s silence or (2)
whether the character of the remark was such that the jury would naturally and
necessarily construe it as a comment on the defendant’s silence.’” 22 The
prosecutor’s intent is not manifest if there is some other, equally plausible
explanation for the remark.23 Both inquiries are properly conducted by
reviewing the challenged remarks in context.24
During closing arguments, the prosecutor remarked:
19
United States v. Martinez, 151 F.3d 384, 392 (5th Cir. 1998).
20
United States v. Zanabria, 74 F.3d 590, 593 (5th Cir. 1996) (“[Where] [t]here was no
timely objection . . . our review must be for plain error, i.e., an error which is clear and which
affects substantial rights.”) (citing Olano, 507 U.S. 725).
21
Griffin v. California, 380 U.S. 609, 615 (1965); United States v. Montoya-Ortiz, 7
F.3d 1171, 1178 (5th Cir. 1993) (“The Fifth Amendment prohibits a prosecutor from
commenting directly or indirectly on a defendant’s failure to testify.”).
22
United States v. Grosz, 76 F.3d 1318, 1326 (5th Cir. 1996) (quoting United States v.
Collins, 972 F.2d 1385, 1406 (5th Cir.1992)).
23
Id.; see also United States v. Green, 324 F.3d 375, 382 (5th Cir. 2003) (“If there is an
equally plausible explanation for the remark, the prosecutor’s intent is not manifest.”)
(internal quotations omitted) (citing Grosz, 76 F.3d at 1326).
24
United States v. Jones, 648 F.2d 215, 218 (5th Cir. Unit B June 1981) (per curiam).
13
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What else is happening during this time period? May, 2002,
this trip to Key West we know Mr. Bohuchot was on it. Mr.
Coleman was on it. Mr. Wong was on it, and Blair Thomas
was on it. The four men two of which talked to you about
the RFP being there and the other two sitting here.
Wong contends that there is no reasonable way to interpret the prosecution’s
argument other than: “Our witnesses testified; Mr. Wong did not.” The
government responds that the prosecutor could not possibly have been referring
to Wong’s failure to testify because the reference to “the other two sitting here”
was to Wong and Bohuchot, and Bohuchot testified. The prosecutor was
arguing, the government contends, that two of the four men in the van in Florida
testified that the RFP for the Seats Management contract was displayed in the
van and the other two deny this occurred (in the case of Wong, through
arguments of his counsel, and in Bohuchot’s case, through his own testimony as
well as arguments of counsel). We agree with the government that, in context,
this is a plausible explanation of the prosecutor’s statement.
Even if the prosecutor’s comments were improper, they were not
sufficiently prejudicial to “cast serious doubt on the correctness of the jury’s
verdict.”25 Nor did they affect Wong’s substantial rights. The district court
cautioned the jury through instructions that “no inference or conclusion may be
drawn from a defendant’s decision not to testify.” As already noted, the evidence
of Wong’s guilt was substantial.
V
Reversal and remand is required, Wong and Bohuchot assert, because the
district court’s jury instructions lowered the mens rea for conspiracy to commit
money laundering. The indictment charged the defendants with violating 18
25
See United States v. Virgen-Moreno, 265 F.3d 276, 290 (5th Cir. 2001) (citation
omitted).
14
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U.S.C. § 1956(h). Section 1956(h) prohibits conspiracies to launder money, as
defined by § 1956(a).26 The district court’s charge to the jury stated, in pertinent
part:
Title 18 U.S.C. § 1956(h) makes it a crime for anyone to conspire or
agree with someone else to do something that, if actually carried
out, would be a violation of 18 U.S.C. § 1956(a), which prohibits
knowingly using the proceeds of certain illegal activity to promote
the carrying on of certain illegal activity or conceal or disguise the
nature, location, source, ownership, or control of the proceeds.
Count 10 of the Indictment charges Defendants with conspiracy to
launder monetary instruments. You are directed to read this count
as set forth in the Indictment.
***
For you to find Defendants Bohuchot and Wong guilty of the
crime of conspiracy to launder monetary instruments as charged in
count 10, you must be convinced that the Government has proved
each of the following beyond a reasonable doubt:
26
18 U.S.C. § 1956(a) 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–
(A)(i) with the intent to promote the carrying on of specified unlawful
activity; or
...
(B) knowing that the transaction is designed in whole or in part–
(i) to conceal or disguise the nature, the location, the source, the
ownership, or the control of the proceeds of specified unlawful
activity;
...
shall be sentenced to a fine of not more than $500,000 or twice the value of the
property involved in the transaction, whichever is greater, or imprisonment for
not more than twenty years, or both. For purposes of this paragraph, a financial
transaction shall be considered to be one involving the proceeds of specified
unlawful activity if it is part of a set of parallel or dependent transactions, any
one of which involves the proceeds of specified unlawful activity, and all of
which are part of a single plan or arrangement.
15
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First: That two or more persons, in some way or
manner, came to a mutual understanding to try
to accomplish a common and unlawful plan to
violate Title 18 U.S.C. § 1956(a) as charged in the
Indictment; and
Second: That the defendant, knowing the unlawful
purpose of the plan, willfully joined in it, that is,
with the intent to further the unlawful purpose.
Wong and Bohuchot assert that although the indictment correctly alleged
the required mens rea, the jury instructions can be read in two erroneous ways.
They argue that the instruction required that the defendants knowingly used
funds but that it had no mens rea requirement at all regarding promoting or
concealing. Alternatively, they argue that the instruction required that the
defendants knowingly used funds and knowingly promoted or concealed. This,
they say, lowered the mens rea from “intentional” to “knowing.”
The defendants did not object in the district court on either of these
grounds. Our review, therefore, is for plain error.27 We will assume, without
deciding, that the jury instructions did not require the jury to find all the
necessary elements to convict the defendants of conspiracy to commit money
laundering. Even were we reviewing for error, rather than plain error, the
harmless error rule of the Supreme Court’s decision in Chapman v. California 28
would apply when, as here, an element of an offense is omitted or misdescribed
in a jury charge.29 The question we would ask, had error been preserved, is
“whether it appears ‘beyond a reasonable doubt that the error complained of did
27
FED . R. CIV . P. 51(d)(2); United States v. Clayton, 172 F.3d 347, 351 (5th Cir. 1999).
28
386 U.S. 18, 23-24 (1967).
29
See Neder v. United States, 527 U.S. 1, 4 (1999).
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not contribute to the verdict obtained.’”30 Error would be harmless if no jury
could reasonably find that Wong and Bohuchot did not agree to transfer funds
with the intent to promote the carrying on of specified unlawful activity and did
not agree to transfer funds knowing that the transfer was designed to conceal
the nature, location, source, ownership or control of proceeds of specified
unlawful activity.
The jury found that there was an agreement regarding unlawful proceeds.
In light of that finding and the considerable and strong evidence of the
intentional and knowing nature of Wong and Bohuchot’s agreement and conduct,
no jury could reasonably fail to make the requisite findings regarding the
applicable mens rea. There was evidence that Wong funneled proceeds from
MSE’s participation in the DISD contracts to a company, Statewide Marketing,
owned by the same three individuals who owned MSE. Statewide Marketing
owned the yachts and paid for all the bills associated with them. There was also
evidence that Wong hired Bohuchot’s son-in-law, who received two paychecks.
Bohuchot told his son-in-law that he would continue to receive checks even if his
employment with MSE ended, and Bohuchot instructed his son-in-law to pay
part of the proceeds from his second check each month to Bohuchot. These
payments to Bohuchot amounted to $50,000 per year. We will not lengthen this
opinion by detailing all of the additional evidence of money laundering. Suffice
it to say that the jury believed that there was an agreement to launder money
and there was overwhelming evidence to support that finding. It follows that
there was no plain error.
VI
Bohuchot and Wong further contend that the district court committed
30
Id. at 15 (quoting Chapman, 386 U.S. at 24).
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error in calculating the “value” of the bribe for sentencing purposes under
U.S.S.G. § 2C1.1(b)(2), which provides for increasing the offense level according
to the value of the bribe.31 Specifically, the Defendants argue that the district
court overestimated the benefit of the two yachts provided by MSE for
Bohuchot’s personal use. Defendants allege that the court committed error by
equating the cost of actual ownership of the vessels with Bohuchot’s frequent
use. This resulted in the court attributing to Bohuchot 80% and 90%,
respectively, of MSE’s total cost of ownership for the two yachts—$667,669 in
total. Defendants contend this calculation vastly overestimated the “value” of
the bribe, which the court found totaled $946,942. Defendants argue that
because Bohuchot did not own the yachts, but merely used them (approximately
40 times over a two-and-a-half-year period on trips that lasted anywhere from
a day to several weeks at a time), the proper methodology would have been to
calculate the cost of renting the boats for this period. Basing the calculations on
the market value of yachts that Bohuchot did not actually own, defendants
insist, resulted in a gross inflation of the actual “value” Bohuchot enjoyed. The
defendants raised these arguments in the district court.
“The amount of benefit to be received is a fact finding issue that is
reviewed for clear error.”32 The district court need not determine the value of the
benefit with precision.33 Moreover, when “determining the amount of benefit to
31
See U.S.S.G. § 2C1.1(b)(2) (“If the value of the payment, the benefit received or to be
received in return for the payment, the value of anything obtained or to be obtained by a public
official or others acting with a public official, or the loss to the government from the offense,
whichever is greatest, exceeded $5,000, increase by the number of levels from the table in
§ 2B1.1 (Theft, Property Destruction, and Fraud) corresponding to that amount.”)
32
United States v. Griffin, 324 F.3d 330, 365 (5th Cir. 2003); see also United States v.
Valladares, 544 F.3d 1257, 1266 (11th Cir. 2008) (per curiam) (same).
33
Griffin, 324 F.3d at 366 (citing United States v. Landers, 68 F.3d 882, 884 n.2 (5th
Cir. 1995)).
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be received, courts may consider the expected benefits, not only the actual
benefits received.” 34
Nevertheless, we conclude that because Bohuchot did not have the legal
right to sell or otherwise transfer any interest in the boats in question, Bohuchot
could not be found to enjoy an “ownership” interest for the purposes of
calculating the amount of a benefit received under U.S.S.G. § 2C1.1(b)(2).
Bohuchot did not receive the market value of the yachts, only the value
attributable to his use of the yachts. However, the district court’s use of the
yachts’ market value in calculating Bohuchot’s sentence was harmless.
The district court applied a 14-level increase under section 2B1.1(b)(1) of
the Sentencing Guidelines. That increase applies when the value of the bribe is
greater than $400,000 but less than $1,000,000. The district court estimated
that the value of payments and benefits to Bohochut unrelated to the yachts was
$278,243. Accordingly, if the value of the use of the boats was more than
$121,757, the 14-level enhancement would still have applied. The defendants
contend that the value of the use of the yachts was from $1500 to $2500 per day
for the first yacht and $2500 to $3500 per day for the second. If Bohuchot used
the less expensive yacht for approximately 49 days at a value of $2500 per day,
the value to him would have exceeded $121,757, and there was evidence that he
used the yachts for more than 49 days. The defendants have failed to establish
harmful error in the district court’s application of the 14-level increase.
VII
With regard to sentencing, the defendants also assert that the district
court erred in finding more than one bribe and adding two levels under
U.S.S.G. § 2C1.1(b)(1). The district court reasoned that the counts of conviction
34
Id.
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support finding more than one bribe. There was evidence that proceeds MSE
received from both the Seats Management contract and the E-Rate contract were
shared with Bohuchot. The district court’s application of the two-level increase
was not clearly erroneous.
***
The convictions and sentences are AFFIRMED.
20