United States v. Hemphill

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 15, 2007 Decided February 8, 2008

No. 06-3088

UNITED STATES OF AMERICA,
APPELLEE

v.

GWENDOLYN M. HEMPHILL AND
JAMES ODELL BAXTER,
APPELLANTS

Consolidated with
06-3089, 07-3016

Appeals from the United States District Court
for the District of Columbia
(No. 03cr00516-01)
(No. 03cr00516-03)
 2

Nancy Luque argued the cause for appellant Gwendolyn
M. Hemphill. With her on the briefs was Arthur F.
Fergenson.

Lisa Alexis Jones argued the cause and filed the briefs for
appellant James Odell Baxter II.

Suzanne G. Curt, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Jeffrey A.
Taylor, U.S. Attorney, and Roy W. McLeese, III and Anthony
Alexis, Assistant U.S. Attorneys.

Before: GARLAND and BROWN, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge BROWN.

BROWN, Circuit Judge: Defendants Gwendolyn Hemphill
and James Baxter appeal their convictions on multiple counts
including embezzlement, money laundering, false pretenses,
and conspiring to commit such crimes. We affirm the district
court’s judgments as to both defendants.

I

A

The charges arose from a seven-year orgy of greed
during which Hemphill, Baxter, and several others stole
millions of dollars from the Washington Teachers Union
(WTU). Barbara Bullock, WTU’s president during this
period, and her chauffeur, Leroy Holmes, both pled guilty
before trial.
 3

For approximately seven years, Bullock, Hemphill,
Baxter, and friends appropriated for their own benefit much
of the money union members paid as dues. They embezzled
these funds through several channels, including American
Express (Amex) cards issued on WTU’s account, checks
written for fraudulent purposes and for excessive amounts,
and payments to a front company, Expressions Unlimited.
All union checks required two signatures, those of Bullock
and Baxter, the union’s president and treasurer respectively.
These two, therefore, had the key to the union treasury.

Initially, Bullock and Baxter simply used their WTU
Amex cards for personal expenses, and they spent quite a lot.
But the thefts became more audacious when Hemphill was
hired as Bullock’s secretary and then also became the union’s
bookkeeper. Spending increased so dramatically that Baxter
placed a $5,000 per month limit on Bullock’s Amex
spending. In response, the two opened a separate Amex
account with WTU’s credit, billed to Hemphill’s home
address. To pay the rapidly escalating bills on this account,
they wrote checks to Expressions Unlimited, and they also
passed money through Bullock’s chauffeur, Holmes.
Hemphill wrote him checks for about double his salary, and
he returned the excess directly to her bank account.

The conspirators’ thefts increased so significantly that in
2001, WTU paid $925,000 in credit card bills; by 2002, the
union was broke and could not pay its membership fees for
the American Federation of Teachers. Bullock and Baxter,
WTU’s officers, were forced to file fraudulent accounting and
tax forms with the Department of Labor and the IRS. To
cover the shortfall, they and Hemphill agreed to change a
pending dues assessment of $16.09 per teacher to $160.09,
reasoning that should questions arise, they could explain the
discrepancy as a clerical error.
 4

Between 1995 and 2002, the conspirators stole millions
of dollars from WTU and spent it on such things as a $50,000
silver set for Bullock’s house, a wedding reception for
Hemphill’s son, $29,000 in dental work for her and her
husband, $19,000 in Washington Wizards tickets for Baxter
and Bullock, car insurance for him, and art for his house.
Sometimes they simply wrote themselves checks from the
union treasury. After WTU received an infusion of cash from
the inflated assessment in 2002, Hemphill and Baxter wrote
themselves more checks totaling $18,805 and $31,000,
respectively. In the end, the dues overcharge attracted so
much attention the American Federation of Teachers alerted
the federal government to WTU’s suspicious finances.

B

Bullock pled guilty in 2003, and a grand jury indicted
Hemphill and Baxter in November. The government filed a
motion to exclude time to stay the seventy-day deadline
imposed by the Speedy Trial Act, and the district court
granted the motion on February 20, 2004. Trial began on
May 31, 2005, and ended August 31. The jury convicted
Hemphill and Baxter on all counts, while acquitting WTU’s
accountant. At the sentencing hearing, Hemphill’s counsel
first learned Holmes had a “history of minor thefts.” The
government knew Holmes had been arrested twice in
Maryland for theft, but not whether indictments or
convictions resulted from those arrests. Hemphill moved for
a new trial, arguing Holmes’s arrests were material
information withheld by the government in violation of Brady
v. Maryland, 373 U.S. 83 (1963). The district court denied
her motion on October 18, 2005.
 5

On May 22, 2006, the court sentenced Hemphill to 132
months in prison; she appealed on May 30. On June 5, 2006,
the court sentenced Baxter to 120 months in prison; he
appealed on June 14. Hemphill also appeals the district
court’s denial of her January 4, 2007, motion for a new trial.
We consolidated the three appeals.

II

We address Hemphill’s issues first, some of which
Baxter joins. Second, we discuss the questions appealed
solely by Baxter.

A

At the outset of the investigation, Hemphill agreed to be
interviewed by FBI agents. The information she provided
appears to have been quite useful to the government, which
then obtained financial records detailing bank transactions by
her, Bullock, and Expressions Unlimited; credit card activity;
and payments to Baxter. Presumably her statements also
helped the government negotiate pleas with Bullock and
Holmes.

Therefore, Hemphill argues the district court abused its
discretion by refusing to hold a Kastigar hearing. “Kastigar”
is a misnomer for the hearing she demanded, because that
case applies when the government compels a witness to
provide incriminating information. Kastigar v. United States,
406 U.S. 441, 453 (1972). If the government later prosecutes
that witness, it cannot use her information at all, directly or
indirectly. United States v. North, 910 F.2d 843, 854 (D.C.
Cir. 1990), reh’g granted in part, 920 F.2d 940 (D.C. Cir.
1990). In a Kastigar hearing, the government has the
significant burden to show its evidence was “derived from a
 6

source wholly independent of the compelled testimony.”
United States v. Rinaldi, 808 F.2d 1579, 1582 (D.C. Cir.
1987). By contrast, when, like Hemphill, a witness provides
information voluntarily, the government is not obligated to
agree to any particular scope of immunity. See United States
v. Smith, 452 F.3d 323, 337 (4th Cir. 2006). The agreement
between the government and the witness determines the scope
of immunity. In a subsequent prosecution, the defendant has
the burden to prove any government breach of the agreement.
United States v. Kilroy, 27 F.3d 679, 684 (D.C. Cir. 1994)
(citing Santobello v. New York, 404 U.S. 257 (1971)).

The terms of Hemphill’s voluntary debriefing agreement
determine what she had to prove or at least to allege to earn a
hearing. We have not had occasion to interpret an agreement
like Hemphill’s, which permitted the government to “make
derivative use of any statements or information provided by
Ms. Hemphill during the voluntary, ‘off-the-record’
debriefing(s) . . . to pursue its investigation” and barred her
from challenging any government evidence obtained through
derivative use of her statements. In Kilroy, the government
had offered the defendant “use immunity.” Kilroy, 27 F.3d at
685. We interpreted that language to incorporate Kastigar,
concluding the government had, in effect, promised to assume
the burden of proving its evidence was not tainted by
immunized testimony. Id. “Use immunity” covered both
direct and indirect utilization. In Hylton, the defendant spoke
to investigators under an agreement that expressly allowed
derivative use, but the interpretation of that clause was not
before us because at trial the government had assumed the
burden of proving the evidence was untainted. United States
v. Hylton, 294 F.3d 130, 132, 135 (D.C. Cir. 2002).

Clearly the immunity Hemphill accepted was narrow.
“The Government agree[d] only that no statements . . .
 7

provided by Ms. Hemphill . . . will be used directly against
her” except in a prosecution for perjury or obstruction of
justice, and the government preserved “[t]he admissibility of
any evidence obtained through . . . derivative use of Ms.
Hemphill’s statements.” Such language prohibits the
government only from attributing to her the statements a
defendant made or the information she provided as evidence
against her. See United States v. Pielago, 135 F.3d 703, 711
(11th Cir. 1998). Hemphill contends the government used her
information “directly” twice: first, Special Agent Andrews
testified before the grand jury after interviewing her; second,
a government auditor, Nicholas Novak, read reports about
those interviews before he prepared charts summarizing the
fraudulent transactions, about which he testified at trial.
However, neither witness attributed any statement to
Hemphill, so their testimony was not direct use within the
meaning of Hemphill’s agreement.

B

Next, Hemphill argues the district court should have
granted her motion for dismissal based on the Speedy Trial
Act, 18 U.S.C. § 3161. We review a district court’s legal
determinations under the Speedy Trial Act de novo. United
States v. Fonseca, 435 F.3d 369, 371 (D.C. Cir. 2006).

Under the Speedy Trial Act, the government must bring a
defendant to trial within seventy days of an indictment. 18
U.S.C. § 3161(c)(1). The seventy-day period excludes “[a]ny
period of delay resulting from . . . any pretrial motion, from
the filing of the motion through the conclusion of the hearing
on, or other prompt disposition of, such motion.” 18 U.S.C. §
3161(h)(1)(F). The “period of delay” includes the time
during which parties prepare and file their briefs. Henderson
v. United States, 476 U.S. 321, 331 (1986). If there is no
 8

hearing or anticipated hearing, the excluded time continues
from the point when the court takes a motion under
advisement after all parties have filed their briefs until the
court decides on the motion, as long as the court’s
consideration lasts no more than 30 days. § 3161(h)(1)(J);
Henderson, 476 U.S. at 329; United States v. Holmes, 508
F.3d 1091, 1096 (D.C. Cir. 2007). In addition, a trial court
may exclude time “resulting from a continuance granted . . .
[for] the ends of justice.” § 3161(h)(8)(A).

Here, the government’s evidence involved thousands of
financial documents. Because of the large volume of
material, the government moved on January 9, 2004, for a
continuance that would stay the seventy-day trial deadline
imposed by the Speedy Trial Act. Defendants responded to
that motion on January 27, 2004, three days before the
deadline was originally set to expire, and the government
filed its reply brief seven days later. Finally, on February 20,
2004, the district court granted the government’s motion and
extended the speedy trial deadline indefinitely.

Since the seventieth day after Hemphill’s indictment was
January 30, 2004, Hemphill contends this continuance was
nunc pro tunc, in violation of the Act. If, in fact, the seventy-
day Speedy Trial period ended on January 30, then the district
court had no power to grant a continuance. The government
violates the statute, when, without a trial, “dawn breaks on the
[next] day” after the Speedy Trial period ends. United States
v. Taylor, 497 F.3d 673, 677 n.4 (D.C. Cir. 2007). If, on the
other hand, the government’s motion tolled the clock, 43 days
were excluded from the Speedy Trial period, and the district
court had the power to grant the continuance.1
1
Trial did not begin until May 31, 2005, over fifteen months after
the district court granted the continuance. Hemphill does not
challenge the length of this delay.
 9

Although Hemphill urges us to create an exception from
the Speedy Trial Act for motions to exclude time, we decline
to do so. The statute itself excludes the time resulting from
“any pretrial motion.” § 3161(h)(1)(F). We have interpreted
this phrase to mean what it says: any motion will toll the
clock. See United States v. Wilson, 835 F.2d 1440, 1443
(D.C. Cir. 1987) (refusing to consider whether a motion
actually caused delay or whether the motion was necessary to
file before trial). Indeed, a defendant’s motion to dismiss for
a speedy trial violation will itself stop the clock. Id. at 1444.
We agree with the First Circuit that a government motion to
exclude time and obtain a continuance gives rise to an
excludable period of delay. United States v. Richardson, 421
F.3d 17, 29 (1st Cir. 2005). Any motion may take time to
resolve, and the Speedy Trial Act excludes that time from the
seventy-day limit.

Hemphill argues that permitting government continuance
motions to toll the Speedy Trial clock would allow
prosecutors to exclude time unilaterally and arbitrarily. To
the contrary, § 3161(h)(1)(F) gives the government the power
to exclude only the day on which it files its motion. See
Fonseca, 435 F.3d at 372 (holding that excluded time
includes the day on which a motion is filed). After the
government files a motion, the defense prepares its
opposition, and that is the time excluded from the seventy-day
period. How long this portion of the “period of delay” lasts is
therefore in the defense’s hands. The period of delay while
the court considers the motion is, obviously, in the court’s
control. If the government had filed a frivolous, obstructive
motion, the court could have denied it immediately. The
government’s motion here was sound enough that the court
ultimately granted it.
 10

C

Hemphill also appeals the district court’s refusal to give a
limiting jury instruction about the government’s extensive
embezzlement evidence. We think the district court erred, but
its failure to give the limiting instruction was harmless.

The indictment charged Hemphill with six specific acts
of embezzlement, as well as the general conspiracy to
embezzle and commit fraud. The government introduced
evidence of thousands of transactions in which Hemphill took
money from the union. She argues this evidence was
inadmissible on the embezzlement counts because it showed
crimes other than the embezzlements charged. See FED. R.
EVID. 404(b).

As the government notes, these transactions were all
relevant to prove the conspiracy charged as Count One. The
conspiracy comprised all the thefts and concealments; and
“where the incident offered is a part of the conspiracy alleged
. . . the evidence is admissible under Rule 404(b) because it is
not an ‘other’ crime.” United States v. Mejia, 448 F.3d 436,
447 (D.C. Cir. 2006). But unlike the defendant in Mejia,
Hemphill faced charges in addition to conspiracy. With
respect to the other charges, particularly the six specific
embezzlements, the additional transactions were indeed other
bad acts. Under Rule 404(b), these other transactions were
not admissible to prove Hemphill’s character in order to show
she committed the specific embezzlements “in conformity
therewith.” See FED. R. EVID. 404(b).

When the prosecution introduces evidence of prior bad
acts and the defendant requests a limiting instruction, a trial
court “must immediately provide one.” United States v.
Brawner, 32 F.3d 602, 606 (D.C. Cir. 1994) (discussing
 11

United States v. Copelin, 996 F.2d 379 (D.C. Cir. 1993)); cf.
United States v. Rhodes, 62 F.3d 1449, 1453–54 (D.C. Cir.
1995) (trial court need not provide a limiting instruction sua
sponte when prosecution introduces evidence suitable only
for impeachment). Hemphill did not initially request a
limiting instruction, but on June 21, 2005, she asked the court
to tell the jury “that while it may consider the evidence to
decide whether Mrs. Hemphill joined a conspiracy, it may not
consider it as proof of the charged embezzlements.” In
addition, she suggested language for the instruction.
Nevertheless, the district court refused to provide such an
instruction during trial or when charging the jury.

Although the court erred, we will not reverse a
conviction for a failure to issue a limiting instruction if the
error was harmless. See United States v. Thomas, 114 F.3d
228, 266–67 (D.C. Cir. 1997). To uphold the conviction, we
must analyze the trial record, United States v. Olano, 507
U.S. 725, 734 (1993), and find “fair assurance . . . that the
judgment was not substantially swayed by the error.” United
States v. Bailey, 319 F.3d 514, 519 (D.C. Cir. 2003) (quoting
Kotteakos v. United States, 328 U.S. 750, 765 (1946)).

Hemphill’s conviction on the embezzlement charges
could hardly have been affected by the additional evidence,
because the government produced so much competent
evidence to prove those specific charges, including cancelled
checks recovered from banks and copies of them from the
union offices after cancellation, as well as false memos
written on the checks to conceal their true purposes. Trial
Transcript at 4203–10. To prove illicit purchases, the
prosecution introduced testimony from vendors who sold the
items to Hemphill and Baxter. Trial Transcript at 2077–80,
2168–73, 2240–66. In addition, Bullock testified to
Hemphill’s involvement in the specific charged
 12

embezzlements; and Novak summarized the charged
transactions, Gov. Exh. C28.

Given the volume of evidence on these six counts, the
district court’s failure to give a limiting instruction about the
other transactions was harmless error.

D

Next, Hemphill’s challenge to the government’s
summary evidence is groundless. We review a trial court’s
decision to admit summary charts for abuse of discretion.
United States v. Lemire, 720 F.2d 1327, 1350 (D.C. Cir.
1983).

Rule 1006 of the Federal Rules of Evidence allows a
party to introduce a chart summarizing “[t]he contents of
voluminous writings . . . which cannot conveniently be
examined in court.” To be admissible, a chart must
summarize documents so voluminous “as to make
comprehension ‘difficult and . . . inconvenient,’” although not
necessarily “literally impossible”; the documents themselves
must be admissible, although the offering party need not
actually enter them; the party introducing the chart must make
the underlying documents reasonably available for inspection
and copying; and the chart must be “accurate and
nonprejudicial.” United States v. Bray, 139 F.3d 1104, 1109–
10 (6th Cir. 1998). In addition, as part of the foundation for a
chart, the witness who prepared the chart should introduce it.
Id. at 1110.

Hemphill contests the admissibility of the government’s
charts on all four of these conditions, but we address only one
of her arguments in detail. The rest turn on her
misapprehension that the government must actually introduce
 13

the documents on which it bases a summary chart.2 To the
contrary, the point of Rule 1006 is to avoid introducing all the
documents. As long as a party has laid a foundation for the
underlying documents, a chart summarizing them can itself be
evidence under Rule 1006. Here, the government proffered
certifications for the documents under Rule 902(11), and
Hemphill’s counsel does not appear to have objected.3

2
In the district court, citing United States v. Wittig, No. 03-40142-
JAR, 67 Fed. R. Evid. Serv. (Callaghan) 364, (D. Kan. May 23,
2005), Hemphill also argued the documents’ certifications as
business records, pursuant to Rule 902(11), violated the
Confrontation Clause because she could not confront the
documents’ custodians. It is unclear whether certifications are
testimonial evidence, since they are, after all, affidavits prepared
purposefully for use in prosecution; this court has not decided the
question. Compare United States v. Ellis, 460 F.3d 920, 927 (7th
Cir. 2006) with United States v. Adefehinti, No. 04-3080, ___ F.3d
___, 2007 WL 4386110, at *8–9 (D.C. Cir. Dec. 18, 2007). We do
not address it here, because Hemphill has not presented the issue.
Instead, she suggests the chart evidence itself violated the
Confrontation Clause. Needless to say, bank records and credit
card statements are not testimonial evidence, and that is what the
Confrontation Clause regulates. Crawford v. Washington, 541 U.S.
36, 68 (2004).
3
We cannot tell for sure whether the government entered the
certifications into evidence, as it was required to do, United States
v. Johnson, 594 F.2d 1253, 1256 (9th Cir. 1979) (citing 5 Weinstein
on Evidence ¶ 1006-5) (1975) (noting that proponent of a chart
must lay a foundation for the underlying documents). Nor is it
clear whether Hemphill’s counsel objected. Although Hemphill
attacks the charts for lack of foundation in her opening brief, her
actual argument is that Novak could not present the charts because
he lacked personal knowledge of the transactions. Of course, for
charts entered under Rule 1006, he need only have knowledge of
the documents he reviewed to prepare the charts. Meanwhile,
Hemphill does not raise the proper foundation issue until her reply
brief, and she does not support her tardy argument with any record
 14

In her most serious contention, Hemphill claims the
charts were argumentative, prejudicial, and selective. In
particular, she says Novak, the government auditor, used his
accounting skills to prepare charts purposefully to show that
Hemphill had a source of funds outside her regular income.
But the fact that a non-expert witness, like Novak, prepared a
chart or testified about it does not make the chart
inadmissible. See United States v. Scales, 594 F.2d 558, 563
(6th Cir. 1979) (necessary only that the investigator “had
properly catalogued the exhibits . . . and had knowledge of the
analysis”). Nor is it problematic for a witness to perform
some calculations in preparing a chart. United States v.
Evans, 910 F.2d 790, 799–800 (11th Cir. 1990) (government
witness added $100 per month to the defendant’s accounts);
United States v. Jennings, 724 F.2d 436, 442 (5th Cir. 1984)
(government exhibit extrapolated defendant’s reimbursement
by assuming a value for average daily expenditure). Even if
the calculations are mistaken, the chart is itself admissible,
since admissible evidence may be unpersuasive and a
defendant has the opportunity to rebut it. Evans, 910 F.2d at
800. Therefore, it was not error for the district court to allow
Novak to testify about charts he prepared based on documents
he reviewed.

E

In addition, Hemphill protests she was unable adequately
to confront Holmes, a key government witness. First, she
says the district court improperly limited her cross-
examination of Holmes by barring questions about his
proclivity for gambling, thus infringing her Sixth Amendment

evidence. In the absence of any information to show whether the
government entered a foundation for the underlying documents, we
cannot consider this issue.
 15

right to confront him. Second, she accuses the government of
withholding Brady information about Holmes.

Although the right to cross-examine and impeach a
witness is an important component of the right of
confrontation, Davis v. Alaska, 415 U.S. 308, 315–16 (1974),
a trial court retains broad discretion to control cross-
examination, id. at 316. In particular, the court may prevent
questioning that does not meet “[t]he basic requirement of
relevancy, as well as other factors affecting admissibility.”
United States v. Anderson, 881 F.2d 1128, 1138–39 (D.C. Cir.
1989). Among those factors, “counsel must have a
reasonable basis for asking questions . . . which tend to
incriminate or degrade the witness.” United States v. Lin, 101
F.3d 760, 768 (D.C. Cir. 1996). Thus, a trial court commits
no error by rejecting an unfounded line of questioning,
especially if the court leaves open the possibility of resuming
the inquiry if the defense proffers a reasonable basis.

Defense counsel’s illogical and attenuated inferences
were not a substitute for relevance. Counsel wanted to show
Holmes was a gambler in order to argue Holmes had a motive
to steal the money on his own. But the evidence showed
Hemphill continued to write checks to Holmes in excess of
his salary, and the excess ended up in Hemphill’s or
Bullock’s accounts. Trial Transcript at 3596. If Holmes
thwarted the conspirators by retaining the excess, why would
Hemphill have continued to use him? The trial court pressed
Hemphill’s counsel to offer any basis for thinking Holmes
kept the excess money, but she provided no explanation.
Trial Transcript at 3595–96. Since Holmes’s gambling was
not relevant for any purpose other than to suggest a
motivation to steal the excess money, the trial court
committed no error when it prevented counsel’s inquiry.
 16

Second, the government denies a defendant due process
when it suppresses information requested by a defendant that
is material to the defendant’s guilt or punishment. Brady v.
Maryland, 373 U.S. 83, 87 (1963). Information is material “if
there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would
have been different.” Kyles v. Whitley, 514 U.S. 419, 433
(1995) (citation omitted). Whether information was material
is a question for de novo review. United States v. Cuffie, 80
F.3d 514, 517 (D.C. Cir. 1996).

Here, there is no dispute that the government knew
Holmes had been arrested twice in Maryland for theft and did
not disclose these facts. Impeachment evidence, such as a
witness’s prior crimes, is material if “the undisclosed
information could have substantially affected the efforts of
defense counsel to impeach the witness.” Id. “[A]n
incremental amount of impeachment evidence on an already
compromised witness” is not material. United States v. Derr,
990 F.2d 1330, 1336 (D.C. Cir. 1993). Impeachment
evidence is incremental “only if the witness was already
impeached . . . by the same kind of evidence.” Cuffie, 80
F.3d at 518.

Assuming Holmes’s arrests led to convictions, the
information would still be immaterial because the defense had
impeached Holmes with the “same kind of evidence” as the
supposed Maryland thefts, including the substantial thefts he
committed during the WTU conspiracy. He had pled guilty to
stealing much more substantial sums than those involved in
the two undisclosed arrests. Moreover, the defense also
impeached him with more damaging evidence, such as his
perjury and other lies. For example, Holmes concealed his
profits from the conspiracy by falsifying his tax returns, Trial
Transcript at 3322–30, and he lied during the FBI’s
 17

investigation, Trial Transcript at 3374. The additional minor
thefts could have done no further damage to Holmes’s
severely compromised credibility.

Our conclusion that Hemphill had the proper opportunity
to confront Holmes,4 together with our decision that the
summary charts were properly in evidence, also disposes of
the attack on her sentence. Since Hemphill’s claim is simply
that her sentence was based on improper evidence, namely the
charts and Holmes’s testimony, our decision that this
evidence was proper means the appeal of her sentence must
fail.

F

Finally, Hemphill appeals her convictions for money
laundering, Counts Nineteen through Twenty-Three. First,
she complains there was insufficient evidence to prove these
charges. She apparently concedes the government introduced
relevant evidence; she simply contends it was inadmissible.
To the extent the government relied on the summary charts
discussed by Novak, we have already concluded they were
admissible. As for the other evidence necessary to support
the money-laundering convictions, the government entered
most of it without objection. For the few pieces to which
Hemphill’s counsel did object, she has provided no reason to
question the district court’s decision, in its discretion, to
admit the evidence.

4
Hemphill also suggests she could have used the supposed thefts to
support her theory that Holmes stole the excess cash instead of
returning it to her. This use would have failed, because Holmes’s
supposed prior thefts would not have been admissible to show he
stole from Hemphill. FED. R. EVID. 404(b).
 18

More seriously, Hemphill argues the prosecutor’s closing
argument confused the jury into convicting her for unindicted
crimes. Hemphill and the government agree money
laundering requires two transactions: the illegal generation of
money and the concealment of that act. In this case, there
was some confusion because the transactions were closely
connected. The indictment characterized bank deposits or
credit card payments as acts of concealment; the source of the
funds was the checks. In closing, the prosecutor said the
conspirators allowed checks to be written in their names in
order to steal money and called that activity “money
laundering.” Hemphill criticizes this discrepancy from the
indictment.

The confusion and argument over the money-laundering
charges continued through the trial, but it is not clear whether
Hemphill’s counsel properly objected to the closing argument
itself. In any case, we cannot see that the prosecution’s
misstatement was prejudicial.

In reviewing closing arguments, we ask whether any
potential error was prejudicial to a defendant. United States
v. Gartmon, 146 F.3d 1015, 1026 (D.C. Cir. 1998). Whether
it was sufficiently prejudicial depends on its “severity,
centrality, mitigation, and closeness of the case.” Id. A
single misstatement in a lengthy argument, like this one, is
rarely a severe error, id. As for centrality, we look to the
importance of the error itself, not of the issue it concerned.
Id. Here, the prosecutor followed the misstatement in
question by immediately saying “money came right on back
. . . into Gwendolyn Hemphill’s bank account. It is just
another form of stealing and covering it up to get away with
it.” Thus, the prosecutor’s statement, in context, differed only
slightly from the indictment. There was mitigation, in that the
court used the money-laundering charge Hemphill suggested.
 19

Trial Transcript at 6957–61. Finally, there was abundant
proof of the acts of concealment; the prosecution entered
specific evidence for each count. In this context, the
prosecutor’s misstatement at closing was inconsequential.

III

Appellant Baxter appeals his convictions for conspiracy
(Counts One and Sixteen) and various substantive offenses
for lack of sufficient evidence; he challenges the jury
instructions with respect to the conspiracy charge; and he
appeals his sentence for lack of sufficient findings as to the
scope of the conspiracy or the amount of the thefts. In
addition, he challenges his indictment for conspiracy as
“legally flawed.”

A

In a sufficiency of the evidence review, we look at the
evidence “in the light most favorable to the prosecution,” and
we ask whether “any rational trier of fact could have found
the essential elements of the crime beyond reasonable doubt.”
United States v. Gatling, 96 F.3d 1511, 1518 (D.C. Cir. 1996)
(emphasis in original). To prove a conspiracy charge, the
government must show that the defendant agreed to engage in
criminal activity and “knowingly participated in the
conspiracy” with the intent to commit the offense, as well as
that at least one overt act took place in furtherance of the
conspiracy. Id. The conspirators must have agreed at least on
“the essential nature of the plan,” not necessarily on “the
details of their criminal scheme.” Id.

There was abundant evidence of criminal actions by the
conspirators, so Baxter disputes his agreement on the
essential nature of the plan. Even on this point, the
 20

government introduced sufficient evidence. To start, Bullock
testified that she stole WTU’s money together with Hemphill
and Baxter. Trial Transcript at 1261. Baxter made personal
purchases, including $19,660 of Washington Wizards tickets
and at least $5,000 of art for his home, using WTU’s Amex
card—a form of larcency Hemphill and Bullock had
perfected. As the union’s treasurer, Baxter signed blank
checks written to Holmes. Baxter also wrote himself several
“pension” checks drawn on the union’s general fund rather
than its pension fund, which was empty.

To show Baxter’s involvement in concealing the thefts,
the government introduced sequential drafts of fraudulent
financial reports faxed to Baxter and recovered from his files.
At least one of the drafts had handwritten notes showing how
to report the conspirators’ improper Amex expenditures
falsely by distributing debits into other budget categories. In
addition, Baxter signed a fraudulent form LM-2 that did not
report payments to Hemphill or Holmes, even though
handwritten notes recovered from Baxter’s house recorded
the total of those payments. Finally, when the conspirators
decided to overcharge WTU’s members, Bullock testified that
Baxter came up with the idea of setting dues at $160.09
instead of $16.09 so the figure could plausibly be explained
as a clerical error. In the two weeks after the proceeds of the
overcharge arrived at the union, Baxter wrote himself WTU
checks worth $31,000.

Thus, Baxter, Bullock, and Hemphill engaged in
strikingly similar behavior. Some of Baxter’s fraudulent
transactions involved Bullock or Hemphill; for example,
WTU checks required Bullock’s signature or her signature
stamp (which Hemphill possessed). And, of course, Baxter
signed numerous fraudulent checks to Bullock, Hemphill,
Holmes, and Expressions Unlimited (in addition to the checks
 21

he wrote to himself)—without his signature on these checks,
the embezzlement would not have been possible. Baxter was
actively engaged in the concealment of the conspiracy.
Moreover, he conceived the plan for the final concealment by
overcharging the union’s members. This evidence, relating to
multiple aspects of the conspiracy, shows Baxter’s consent to
the “essential nature of the plan.”

Baxter claims the jury should have discounted the
dubious testimony of government witnesses and interpreted
the evidence differently. For example, he asserts some of the
checks he received were merely pension payments. However,
since the government showed WTU was not contributing to
other employees’ pensions because of its financial straits, the
jury was free to conclude Baxter’s nominal pension payments
were illegitimate. As another example, Baxter claims there
was no evidence he received any personal benefit from the
conspiracy, ignoring the fact that the Washington Wizards
tickets and the art were delivered to his house. The jury was
free to think these purchases were for his personal use.
Baxter also says it was illogical to find he conspired in the
improper credit card purchases, because he put $5,000 limits
on Bullock’s and Hemphill’s corporate Amex accounts.
Viewing this fact in light of all the other evidence, the jury
could reasonably have noted Baxter did not close their
accounts. In short, the government’s evidence was sufficient,
and Baxter asks us to second-guess the jury’s interpretation of
it. That, of course, we may not do.

Baxter also challenges the sufficiency of the evidence on
the substantive offenses. First, he argues there were multiple
conspiracies, rather than a single conspiracy, and
consequently the substantive offenses were not foreseeable
under Pinkerton v. United States, 328 U.S. 640 (1946).
Second, he argues the government did not prove his
 22

intentional or knowing involvement in the substantive
offenses. We conclude the evidence showed a single
conspiracy. Baxter does not suggest any further reason to
think the substantive offenses were not foreseeable, so it
follows his convictions were proper. Therefore we need not
examine the evidence of his direct personal culpability for
each substantive offense.

B

Baxter wanted the trial court to instruct the jury to
consider whether the evidence proved multiple conspiracies.
If “record evidence supports the existence of multiple
conspiracies,” then a district court must instruct the jury to
consider them. United States v. Graham, 83 F.3d 1466, 1472
(D.C. Cir. 1996) (citing United States v. Tarantino, 846 F.2d
1384, 1400 (D.C. Cir. 1988)). On the other hand, when the
evidence shows a single conspiracy, the court need not
instruct on multiple conspiracies. Id.

Whether activities constitute a single or multiple
conspiracies depends on several factors, including “whether
participants shared a common goal . . .; interdependence
between the alleged participants . . . and, though less
significant, overlap among alleged participants.” Id. at 1471.
Overlap requires only that the main conspirators work with all
the participants. United States v. Mathis, 216 F.3d 18, 23–24
(D.C. Cir. 2000). In addition, the general characteristics of
similar conspiracies are also relevant. Tarantino, 846 F.2d at
1393. In particular, laundering of funds to hide their source
can be part of a broader illegal profit-seeking conspiracy. See
id. at 1393–94. A conspiracy may pursue multiple schemes
with different modi operandi without dividing into multiple
conspiracies, as long as there is a single objective. See
Gatling, 96 F.3d at 1520 (single conspiracy involving the
 23

same central figure comprised two schemes in different cities,
operating in a different manner). Moreover, “a conspiracy’s
purpose should not be defined in [terms] too narrow or
specific . . . .” Id.

Each of the specific acts Baxter cites as proof of multiple
conspiracies can be more sensibly interpreted as the pursuit of
a single objective: to steal money from the union. All the
participants worked together to achieve that end. As we have
explained, each participant was engaged in each form of
criminal activity, and Baxter cooperated with Bullock,
Hemphill, and Holmes on various occasions to commit or
conceal the thefts. Concealment, of course, is a natural part
of a conspiracy to steal money, as Baxter acknowledges. The
mere fact that the conspirators found different ways to
transfer money to themselves (by improper credit card
charges, payments to Expressions Unlimited, “pension”
checks to Baxter, and overpayments to Holmes) does not
break the conspiracy into parts.

Since the evidence showed a single conspiracy, the trial
court properly refused to instruct the jury on multiple
conspiracies, and the government’s case did not vary from the
indictment.

C

Baxter also protests the district court’s failure at
sentencing to enter specific findings about the scope of
activity to which he agreed. However, the court made all the
findings required. To be sure, a district court must describe
explicitly “the scope of a defendant’s conspiratorial
agreement” before imposing a sentence that holds him
responsible for his co-conspirators’ “reasonably foreseeable
conduct in furtherance of the joint undertaking.” United
 24

States v. Tabron, 437 F.3d 63, 66 (D.C. Cir. 2006). We
demand such findings because “[a] jury verdict convicting the
defendants of participation in a single conspiracy . . . speaks
to the scope of the defendant’s agreement only in very general
terms [but does not say] which specific actions were in
furtherance of that single conspiracy or were foreseeable to
the conspirators.” United States v. Childress, 58 F.3d 693,
722 (D.C. Cir. 1995). Here, however, the government
charged Baxter with the relevant conduct and obtained
convictions on those charges under a Pinkerton instruction.
Thus, Baxter’s sentence held him responsible for acts found
by the jury to be reasonably foreseeable crimes in furtherance
of the conspiracy.

It was still necessary for the trial court to find Baxter’s
crimes resulted in losses of more than $2.5 million. Since the
losses all arose from crimes of which the jury convicted
Baxter, these findings did not need to revisit the scope of the
agreement or the foreseeability of the crimes. Rather, the
court was obligated to connect the actual quantities of loss
caused by those crimes to evidence before the jury. It did,
Sentencing Transcript at 16–18, so we will not vacate
Baxter’s sentence.

Finally, Baxter says the district court ignored its duty
under 18 U.S.C. § 3553(a) to consider whether his sentence
was greater than necessary to accomplish its purposes. In
particular, he complains of the disparity between his sentence
of ten years and Bullock’s sentence of five years. However,
the district court discussed the § 3553(a) factors thoroughly,
explaining the disparity was reasonable because Bullock pled
guilty and testified against her co-conspirators. Baxter makes
no effort to explain why the district court should not have
considered these factors. Cf. U.S. Sentencing Guidelines §
3E1.1 (decreasing offense level by 2-3 levels for a timely
 25

guilty plea); United States v. Bras, 483 F.3d 103, 114 (D.C.
Cir. 2007) (disparity partly justified by the fact that co-
conspirators “provided substantial assistance in the
investigation of the scheme”).

D

Finally, Baxter challenges his conspiracy indictment,
Count One, as depending on multiple, alternative object
offenses. He argues an indictment on alternative grounds is
valid only if all the grounds are legally permissible, and he
contends one of his object offenses, deprivation of honest
services, was legally flawed. However, he did not raise this
claim before trial, as required by Rule 12(b)(3) of the Federal
Rules of Criminal Procedure, and we decline to consider it
without a showing of cause for relief from his waiver. See
United States v. Weathers, 186 F.3d 948, 952–53 (D.C. Cir.
1999).

IV

For the foregoing reasons, the judgments of the district
court are
Affirmed.