United States v. Trainor

United States Court of Appeals
For the First Circuit

No. 05-1553

UNITED STATES,

Appellee,

v.

WILLIAM P. TRAINOR,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, U.S. District Judge]

Before

Lipez, Circuit Judge,
Stahl, Senior Circuit Judge,
and Barbadoro,* District Judge.

Robert D. Dimler for appellant.
Jack B. Patrick, Senior Litigation Counsel, Fraud Section,
Criminal Division, U.S. Department of Justice, with whom Thomas P.
Colantuono, United States Attorney, was on brief, for appellee.

February 16, 2007

______________________
*Of the District of New Hampshire, sitting by designation
 LIPEZ, Circuit Judge. The primary claim in this criminal

appeal is the familiar one that a conspiracy conviction was flawed

because the facts revealed multiple conspiracies rather than the

single overarching scheme that was charged. The indictment against

defendant-appellant William P. Trainor, charging both conspiracy to

commit wire fraud and multiple episodes of the substantive crime,

stemmed from his role in fraudulently securing mortgages on two

adjacent properties owned by his family in Maine. Asserting that

the conduct related to each property was separate, appellant argues

that the conspiracy count – which treated the two ventures as a

single scheme – should have been dismissed as duplicitous. He

alternatively argues prejudicial variance, contending that the

evidence presented at trial showed separate schemes and thus was

insufficient to prove the single charged conspiracy. He also

claims that spillover in evidence between the two schemes denied

him a fair trial on the wire fraud charges, requiring that those

convictions also be set aside.

We find no merit in these contentions or his related

evidentiary claim. The jury was properly instructed to consider

whether a single conspiracy had been proven, and the record amply

supports its verdict. We therefore affirm appellant’s conviction

on all counts.

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 I.

A. Factual Background

Appellant Trainor and his family owned two lakeside

properties – 12 Trainor Road and 16 Trainor Road – in Lebanon,

Maine. Appellant allegedly orchestrated a complex series of

financial transactions involving sham deposits, altered checks,

forged signatures and myriad other false representations to

fraudulently elicit mortgage funds from two different financial

institutions. We present the facts as the jury could have found

them, reserving additional detail for our discussion of defendant’s

claims of error. See United States v. Byrne, 435 F.3d 16, 18 (1st

Cir. 2006).

1. The Mortgage on 12 Trainor Road

In the summer of 2000, Trainor approached co-defendant

John DesMarais, a family friend and carpenter who had done work for

him,1 about buying the house and land at 12 Trainor Road, which was

held in the name of Trainor’s wife. DesMarais earned only $40,000

a year and had filed for bankruptcy in 1995, but Trainor offered to

1
DesMarais and a third alleged co-conspirator, Donald Smith,
each pled guilty to a single wire fraud count. As part of their
plea agreements, the government agreed to dismiss the other charges
pending against them at the time of their sentencing. Both men
testified that they hoped their cooperation would lead to more
lenient sentences. The evidence presented by the government
depicted Trainor as the more experienced and sophisticated
businessman who led the two younger men into the scheme and, at
times, deceived them as well as others about the nature of his
activities.

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help him secure financing. The original purchase and sale

agreement showed a sale price of $550,000 and an initial deposit of

$10,000. DesMarais had not, in fact, given such a deposit. He

previously had purchased a boat from Trainor for $6,000, and

Trainor told DesMarais he would credit the money from the boat

purchase toward the property deal.2

In helping DesMarais obtain a $400,000 mortgage from

Chase Manhattan Mortgage (“Chase”), appellant took various steps

aimed at creating the false impression that DesMarais had the

resources to buy the property. For example, at Trainor’s

suggestion, DesMarais borrowed $20,000 from an acquaintance, Don

Walden, which DesMarais used in part to purchase stock in a company

associated with Trainor.3 DesMarais understood that, like the boat

purchase, the money for the stock would be considered a deposit on

the property. Walden’s money also was used to fund a $5,240

personal check written to Trainor’s wife, Geraldine, as a deposit.

DesMarais subsequently told a Chase loan officer, David Barney,

that he planned to finance the property purchase by selling stock

2
DesMarais acknowledged at trial that he did not fully
understand why Trainor was re-allocating the money he paid for the
boat to the home purchase, but he assumed Trainor was doing it to
help DesMarais buy the house. The prosecutor suggested to the jury
that Trainor was willing to “invest” the $6,000 to facilitate the
mortgage – which would produce substantially more cash.
3
Following Trainor’s instructions, DesMarais wired $7,500 to
an individual in Chile to buy stock in Rapid Diagnostics, a
privately held company in which Trainor was involved.

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worth $157,500. DesMarais testified that the stock value was set

by Trainor, and he admitted at trial that he did not own stock of

that value. During the loan process, DesMarais did not disclose

that he had borrowed money to finance the down-payment, a fact that

would have disinclined the mortgage company to issue the loan

because an outlay of cash is considered some security against

default.

As part of the loan application process, Trainor

submitted appraisals for the property that the jury could have

found were inflated. See infra note 18. Also among the documents

provided to Chase was a memo stating that DesMarais had exchanged

his original stock for shares of another company, and that he had

a buyer ready to purchase that stock for $106,250. The memo bore

the heading “From the Office of John Desmarais” and was signed with

the initials “J.D.” DesMarais testified, however, that he had not

created the document, that it was not his handwriting on it, and

that he never spelled his last name with a lower-case “m.” Barney

also was sent a revised purchase and sale agreement, which showed

a new sale price of $500,000 and referenced $22,500 in deposits

that DesMarais was to have paid by September 30, 2000. DesMarais

testified that he did not see the revised purchase and sale

agreement until after his arrest, and also stated that the

signature that appears on it – his name – was not written by him.

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 On December 11, 2000, the mortgage company received

another memo purportedly from DesMarais, along with photocopies of

cancelled checks that were meant to be evidence of his down-

payments on the property. The evidence showed, however, that some

of the photocopied checks had been altered.4 On December 21, the

company received a faxed copy of DesMarais’s bank statement showing

deposits of $18,000 and $87,500 and an account balance of

$106,690.83 – “proof” that DesMarais had sufficient funds of his

own for the loan to close. The two deposited checks had been

written by Trainor, however, on an account of “Fradco Holdings,

Inc.” that at the time contained only $7.65. At the closing on

December 22, Trainor provided the $91,855.69 that was due from the

borrower by using another Fradco Holdings check, this time for

$75,000, and a cashier’s check for $16,855.69. Trainor had

purchased the cashier’s check with money he obtained from Walden;

he gave Walden in return a $17,000 Fradco Holdings check that

Walden was told he should hold off on cashing until he heard back

from Trainor.

Chase provided $390,083.90 for the closing, and that

money was disbursed based on directions from Trainor, who stated in

4
For example, the original version of Check No. 1860,
obtained from the bank and introduced by the government, was made
out to Bill Trainor Jr. and noted on the memo line that it was for
the purchase of Rapid Diagnostics stock; the memo line on the faxed
version stated that it was a deposit, and the “Jr.” no longer
appeared on the payee line.

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his letter to the mortgage company that he and his wife were

donating most of the sale proceeds. The specified disbursements

included a $120,000 payment wired to the Fradco Holdings account,

which covered the checks that Trainor recently had written on that

account: the $17,000 to Walden for the cashier’s check, the $75,000

paid at closing, and the $18,000 check deposited into DesMarais’s

account.5 Trainor put a stop payment order on the $87,500 Fradco

Holdings check that also had been deposited into DesMarais’s

account. Another $20,000 was used to repay Walden for his original

loan to DesMarais.

DesMarais moved into the house at 12 Trainor Road and

managed to make the loan payments for eighteen months before the

bank foreclosed on the property.

2. The Mortgage on 16 Trainor Road

Within weeks after the closing on 12 Trainor Road,

Trainor approached DesMarais with a new proposal. He suggested

that DesMarais become involved in a plan to purchase the adjoining

four-acre plot at 16 Trainor Road, which was held in the name of

Trainor’s son, and to build a custom home on the property; the sale

of the house would generate funds to help DesMarais afford his loan

payments on 12 Trainor Road. DesMarais introduced Trainor to his

5
Included in the requested disbursements was $20,000 to a
“Dr. Anderson” who “runs a clinic and a special education program
for problem children.” A business associate of Trainor’s, Robert
Jones, testified that Trainor paid that sum to his ex-wife, Diana
Anderson, as an “alimony or support payment[]” for Jones.

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friend, builder Donald Smith – the third co-conspirator in this

case – and the discussions eventually led to DesMarais bowing out

of the financing for 16 Trainor Road because of his inability to

borrow any more money. Trainor and Smith agreed that Smith would

serve as the buyer, and DesMarais would receive a $10,000 finder’s

fee from the loan proceeds.

Trainor again provided a purchase and sale agreement,

which listed the sale price as $250,000 and stated that the

purchase would be accomplished with a $50,000 deposit and a

$200,000 mortgage. Smith and Trainor had agreed, however, that the

“real” sale price for the land was $130,000 and that Smith did not

have to make the $50,000 deposit. Smith gave Trainor $20,000, but

understood that he would be reimbursed when the loan closed. On

April 20, 2001, a deed was executed showing transfer of the

property to Smith.

Meanwhile, Trainor had interested Walden – the individual

who had lent money to DesMarais for the earlier purchase – in

investing in Trainor’s businesses. When Walden became nervous

about his investments, Trainor offered him a security interest in

the 16 Trainor Road property as a “line of credit” up to a $200,000

investment. In essence, this arrangement meant that Walden would

become the mortgage-holder on 16 Trainor Road, with the security

interest in the land protecting him in case his investments with

Trainor turned out badly. The deal allowed Trainor to create the

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impression that Smith had purchased the property with a temporary

mortgage funded by Walden; Trainor prepared a mortgage and

promissory note in which Smith agreed to pay Walden $200,000.

Using the Walden “mortgage” as evidence that $200,000 had

changed hands in his purchase of the property, Smith submitted an

application to Citizens Mortgage Corporation (“Citizens”) for a

$419,000 construction loan – $200,000 intended to repay the

original mortgage and the remainder to finance construction of the

house. Smith told the loan officer that the house would be a

vacation home rather than a custom investment house – a deception

necessary to gain approval for the loan. The mortgage company also

was deceived about the $50,000 down payment, another prerequisite

to its loan. Trainor sent an email message to the loan officer

confirming the sale price of $250,000 and stating that he had

received $20,000 from Smith. He also reported that the remaining

$30,000 would come from DesMarais’s payment for an easement on the

property. Smith testified at trial that the representations about

the sales price and easement were false.

A construction loan in the amount of $400,000 closed on

October 19, 2001, but only the initial $200,000 was disbursed at

that time. Trainor provided instructions directing that $108,300

be paid to Walden and that the remainder be given to Trainor in

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five checks totaling $91,700.6 Two of those checks went to Smith;

he was given a check for $20,000 to repay him for his original

“deposit,” and he received another check for $33,870.71. DesMarais

received his $10,000 “finder’s fee.” About two weeks after the

closing, Walden was convinced to re-invest most of the proceeds he

had received from the loan in another Trainor deal,7 so Trainor

ended up benefitting from more than $130,000 of the Citizens

mortgage funds.

3. The Lee Transaction

During the same time period in which Trainor was

arranging the transaction with Smith, he also transferred 16

Trainor Road to an unrelated individual in a multi-party settlement

of debts. The recipient of the property, Nevada attorney James

Lee, had represented a client, Robert Jones,8 who was unable to pay

attorney’s fees totaling more than $200,000. Trainor owed Jones a

substantial amount of money, and he offered to pay off his debt by

transferring property in Maine to Lee – thereby taking care of

Jones’s attorney’s fee problem. Lee agreed to the deal, intending

to obtain a loan on the property and then sell it.

6
The amount paid to Walden was what he had invested with
Trainor, plus $500 that the two men treated as interest.
7
On November 5, 2001, Walden wired $100,000 to Rapid
Diagnostics, which he understood to be Trainor’s company.
8
Jones was the individual whose ex-wife received $20,000 of
the proceeds from the 12 Trainor Road mortgage proceeds. See supra
note 5.

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 Between February and April 2001, Trainor arranged for the

filing of several documents relating to Lee’s purchase of 16

Trainor Road: a deed showing sale of the property to the “Law

Offices of James J. Lee”; a “lien certificate” claiming a lien

against the property based on purported obligations to various

individuals and businesses, including Fradco Holdings; and a lien

release that purportedly transferred the property from Lee back to

Trainor’s son.9 Lee was unaware of the lien transactions – which

"returned" the property to Trainor so the sale to Smith could occur

– and he testified that when he discovered that activity,10 “I think

we contacted the authorities.” An investigation followed.

B. Procedural Background

Trainor, DesMarais, and Smith were charged in an

indictment with one count of conspiracy to commit wire fraud, in

violation of 18 U.S.C. § 371, and multiple counts of wire fraud, in

violation of 18 U.S.C. § 1343.11 As noted earlier, DesMarais and

9
Both the lien certificate and lien release stated that, in
filing the documents, Trainor was acting “in his capacity as Agent
for the parties.”
10
Lee previously had become aware of the building permit that
had been issued for the property and called Smith, whose name
appeared on the permit as the contractor. Smith testified that he
was “totally confused” by Lee’s claim that he owned the property,
and he tried multiple times, unsuccessfully, to reach Trainor.
11
DesMarais and Trainor were charged in all seven wire fraud
counts; Smith was charged with the four counts of wire fraud
relating to the 16 Trainor Road mortgage. Each count involves
either the transmission of allegedly fraudulent information about
one of the two properties or the wiring of funds (closing costs or

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Smith entered into plea agreements with the government, and each

pled guilty to a single count of wire fraud. Trainor filed a

motion to dismiss the conspiracy count and to sever Counts Two

through Four – relating to 12 Trainor Road – from Counts Five

through Eight – relating to 16 Trainor Road. The motion was

denied, and Trainor was convicted by a jury of conspiracy and five

counts of wire fraud.12

The district court sentenced Trainor to a 60-month term

of imprisonment, followed by three years of supervised release.

The court also imposed an assessment of $600 and restitution,

shared jointly and severally with DesMarais and Smith, in the

amount of $202,895.84.13 On appeal, Trainor sets out four

contentions: (1) the district court erred in refusing to dismiss

the conspiracy count for duplicity; (2) the court abused its

discretion in refusing to sever the wire fraud counts pertaining to

12 Trainor Road from the counts pertaining to 16 Trainor Road; (3)

because the evidence at trial showed multiple conspiracies rather

than one, variance occurred and his conviction on Count 1, which

charged a single conspiracy, lacked sufficient support in the

loan proceeds) into or out of an account Trainor controlled.
12
The district court dismissed Counts Seven and Eight at the
close of the government’s case.
13
The court ordered $106,895.84 restitution to Chase Manhattan
Mortgage Corp. and $96,000 restitution to Stewart Title Guaranty
Corp.

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record; and (4) the court abused its discretion in requiring

redaction of the listing price for 12 Trainor Road from a real

estate brochure admitted as an exhibit.

II.

Appellant’s counsel acknowledged at oral argument that

his client’s first three claims of error reduce to two primary

points: the record mandates a conclusion that two conspiracies

existed, rather than one, and the spillover in evidence concerning

those separate transactions injected unfair prejudice into his

trial. Our conclusion that appellant is wrong as to the first of

these contentions leads inevitably to the failure of the second.14

A. Conspiracy, Duplicity and Variance

A claim that the government improperly has characterized

a series of allegedly unlawful transactions as a single enterprise

can implicate both the doctrine of “duplicity” – the joining of two

or more distinct offenses in a single count of an indictment, see,

e.g., United States v. Verrecchia, 196 F.3d 294, 297 (1st Cir.

1999), and the doctrine of “variance” – the presentation at trial

of evidence that varies materially from the crime charged in the

indictment, see, e.g., United States v. Balthazard, 360 F.3d 309,

315 (1st Cir. 2004). Trainor asserts both here. He claims that

the indictment’s allegations reflect a “surgical division between

14
Counsel also acknowledged that his claim of prejudicial
spillover would fail if a single conspiracy were properly charged.

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the two sets of charges” and that Count One thus improperly joins

them in a single alleged conspiracy. In addition, he maintains

that the evidence produced at trial proved “two different and

disconnected conspiracies.”

Appellant argues, in other words, that the indictment

alone establishes reversible error on the conspiracy count because

the two conspiracies were improperly joined in a single count, but

that, even if we reject the duplicity claim, the conspiracy

conviction nonetheless is defective because the evidence as

presented at trial depicted two separate conspiracies. He further

argues that error of either type requires that we reverse the

jury’s verdicts on all counts because of the prejudice resulting

from trying the two transactions together.15

15
A subsidiary claim of error is that the district court
abused its discretion in refusing to sever the wire fraud counts
relating to 12 Trainor Road from those relating to 16 Trainor Road.
A defendant may be entitled to severance under Federal Rule of
Criminal Procedure 14(a) if joinder of offenses (or defendants)
would be prejudicial. United States v. Boulanger, 444 F.3d 76, 87
(1st Cir. 2006). Given our conclusion that the government properly
alleged and proved a single conspiracy, this claim is unavailing;
all of the alleged acts of wire fraud were within that conspiracy
and thus necessarily a part of the same case. Moreover, as
revealed by our discussion of harmless error in Section B, we would
reject the severance claim even if we accepted appellant’s multiple
conspiracy theory. See infra pp. 22-24; see also Boulanger, 444
F.3d at 88 (“[W]e see no prejudice beyond the type of ‘standard
fare [that exists] whenever counts involving discrete incidents are
linked in a single indictment. We have repeatedly held that such
a garden variety side effect, without more, is insufficient to
require severance.’”) (second alteration in original) (citation
omitted).

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 We find it unnecessary in this case to discuss duplicity

separately. Appellant does not argue that the facts presented at

trial differed from the factual allegations in the indictment –

only that these facts, as alleged and proven, established two

conspiracies rather than one. Our conclusion that the evidence

sufficiently supported the jury’s verdict on Count One as alleged

– i.e., that appellant participated in a single, overarching

conspiracy – necessarily dooms his contention that the indictment

was fatally flawed. This is so because, in rejecting his variance

claim, we also are implicitly concluding that the facts set out in

the indictment – which mirror the facts proven at trial – describe

a scenario that is permissibly viewed as a single conspiracy. See,

e.g., United States v. Mastelotto, 717 F.2d 1238, 1244 (9th Cir.

1983), overruled on other grounds by United States v. Miller, 471

U.S. 130, 134-36 (1985) (“[T]he question for review is simply

whether the indictment may be read to allege a single unified

scheme in each count.”). We therefore address the legality of the

conspiracy conviction solely as an issue of variance.16

16
Proceeding in this fashion here does not compromise the
concerns underlying the prohibition against duplicitous
indictments. The primary “vice of duplicity is that a jury may
find [a] defendant guilty on the count without having reached a
unanimous verdict on the commission of any particular offense,”
United States v. Huguenin, 950 F.2d 23, 26 (1st Cir. 1991) (per
curiam) (describing holding in United States v. Saleh, 875 F.2d
535, 537 (6th Cir. 1989)); see also Verrecchia, 196 F.3d at 297,
which in turn may prejudice a later double jeopardy defense, United
States v. Morse, 785 F.2d 771, 774 (9th Cir. 1986). Here, however,
the fact that the jury returned guilty verdicts on all wire fraud

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 In assessing whether the government’s case varied

materially from the crime charged in the indictment, "the initial

question – and the only one that we need to reach here – is one of

evidentiary sufficiency." United States v. Perez-Ruiz, 353 F.3d 1,

7 (1st Cir. 2003); see also United States v. Wihbey, 75 F.3d 761,

773 (1st Cir. 1996) (quoting United States v. Glenn, 828 F.2d 855,

858 (1st Cir. 1987)).17

[W]e employ the same framework that we employ
in connection with other sufficiency
challenges in criminal cases: we “canvass the
evidence (direct and circumstantial) in the
light most agreeable to the prosecution and
decide whether that evidence, including all
plausible inferences extractable therefrom,
enables a rational factfinder to conclude
beyond a reasonable doubt that the defendant
committed the charged crime.”

Perez-Ruiz, 353 F.3d at 7 (quoting United States v. Noah, 130 F.3d

490, 494 (1st Cir. 1997)); see also Balthazard, 360 F.3d at 315.

Specifically, when the question is “‘the singleness or

multiplicities of the conspiratorial relationships,’” United States

v. Morrow, 39 F.3d 1228, 1234 (1st Cir. 1994) (quoting American Law

counts assures that Trainor was deemed responsible for the conduct
surrounding both mortgages. Appellant also had ample “notice of
the nature and cause of the proceedings against him[] so that he
[could] effectively prepare a defense.” Huguenin, 950 F.2d at 26
(citing 8 Moore’s Federal Practice ¶ 8.03[1]). Similar concerns
underlie the variance doctrine, reinforcing the notion that we need
not separately discuss appellant's duplicity claim. See infra at
22-23 & note 21.
17
Additional questions must be addressed only if the evidence
is not sufficient "to permit a jury to find the . . . agreement
that the indictment charges." Glenn, 828 F.2d at 858.

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Institute, Model Penal Code and Commentaries 423 (1985)), we

consider all relevant circumstances and focus on such factors as

“whether the alleged conspirators shared a common purpose, whether

their actions demonstrated interdependency, and the extent to which

participants overlapped during the life of the alleged conspiracy.”

Balthazard, 360 F.3d at 315; see also, e.g., Perez-Ruiz, 353 F.3d

at 7. “At the end of the day, a defendant cannot succeed with a

sufficiency challenge ‘as long as a plausible reading of the record

supports the jury’s implied finding that he knowingly participated

in the charged conspiracy.’” Balthazard, 360 F.3d at 315 (quoting

Perez-Ruiz, 353 F.3d at 7).

Such is the case here. The government alleged a scheme

in which appellant and his co-defendants conspired to enrich

themselves and others by securing mortgages based on false

representations. From the evidence presented at trial, the jury

reasonably could conclude that, from the beginning, Trainor

anticipated using both of his family’s Trainor Road properties to

effectuate the scheme. He initiated the second deal on the heels

of the closing for the first property, proposing DesMarais’s

purchase of 16 Trainor Road as, in essence, a method of obtaining

additional financing for the purchase of 12 Trainor Road. Although

there was no evidence that DesMarais initially shared Trainor’s

long-range vision, the jury rationally could find that DesMarais

agreed to extend the original conspiracy to protect his interest in

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12 Trainor Road, and that he did so by recruiting partners to

purchase 16 Trainor Road. Similarly, while Smith was uninvolved in

the first phase of the alleged conspiracy, the evidence of his

friendship with DesMarais and his presumed awareness of DesMarais’s

need for cash permitted the jury to find that Smith knew from the

outset of his participation that the unorthodox financial

arrangements that Trainor proposed – e.g., selling the property for

$130,000 while seeking a $200,000 mortgage – were part of the

larger scheme involving both pieces of property. Smith’s

acquiescence in DesMarais’s role as a silent partner in the second

deal – as the recipient of a finder’s fee – reinforces the

inference that Smith knew the 16 Trainor Road transaction was

intended, at least in part, to prop up the original deception. The

circumstances were thus readily susceptible to a finding of shared

purpose among the three charged co-conspirators.

Moreover, the collaborators’ overlapping participation is

on its own a significant factor. DesMarais was a key player in

both deals, serving as the central co-conspirator in the first

enterprise and playing an important role in the second transaction

by bringing in Smith. For his efforts, he was rewarded with the

$10,000 fee in connection with 16 Trainor Road, and thus benefitted

from both transactions. The fact that Smith was not involved until

the second transaction did not inevitably signal that a new

enterprise was born: “[O]ne conspiracy [does not] necessarily end

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and a new one begin each time a new member joins the organization.”

Balthazard, 360 F.3d at 314.

Both episodes also used similar techniques, including

sham down-payments and falsely reported sales prices, and were in

various ways interdependent. For example, the jury could have

found that the appraisals appellant obtained for 12 Trainor Road

were inflated;18 those valuations later were used as comparable

sales to justify the also inflated $445,000 appraisal reported for

16 Trainor Road.19 By invoking DesMarais’ purported payment for an

easement, appellant took advantage of DesMarais’ ownership of 12

Trainor Road to generate – on paper – $30,000 of the $50,000 down-

payment that Smith needed to qualify for the mortgage on 16 Trainor

Road. Both mortgage deals also used Walden as a financial

18
The two appraisals that appellant submitted for 12 Trainor
Road listed its value as $500,000 and $510,000. Appraiser Dorothy
Harris had appraised the property at $450,000, and she testified
that she resisted appellant’s pressure to report a higher value.
A local real estate broker, Kathryn Harrison, testified that 12
Trainor Road had been sold more than once during the several years
preceding the 2004 trial and that it last sold for under $300,000.
She further acknowledged, in response to a question from the
prosecutor, that the real estate market in that area had
“continually gone up” between 2000 and 2004.
19
An appraisal of 16 Trainor Road completed in early 2001 by
an appraiser recommended by appellant – and relying on the 12
Trainor Road transaction as a comparable sale – estimated the value
of the 16 Trainor Road property at $445,000. Two other appraisals
performed in the spring of 2001 by appraisers who had no
relationship with appellant valued the property at $95,000 and
$100,000. The local broker, Harrison, testified that the $445,000
appraisal was “[w]ay out of line” and that the property was worth
between $100,000 and $150,000.

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resource. Indeed, the successful payoff to Walden from the

proceeds obtained from the 12 Trainor Road mortgage set the stage

for his willingness to go along with appellant’s odd proposal that

he accept a mortgage on 16 Trainor Road as security for his

investments – an arrangement that advanced Smith’s application for

a construction loan on the property.

We think this evidence sufficient to permit the jury to

find appellant guilty of the charged single conspiracy. It is of

significance, too, that the court gave the jury an extended

instruction on the government’s burden to prove the existence of

“one overall conspiracy . . . as opposed to separate and

independent conspiracies.”20 Determining whether one or more

20
We cannot imagine a more thorough instruction on this issue:

The government has the burden of proving that only
one overall conspiracy existed as opposed to separate and
independent conspiracies. In other words, the government
must prove that there was one conspiracy to commit wire
fraud against Chase Mortgage, Citizens Mortgage, and
others as alleged.
Whether there was one conspiracy or several
conspiracies or indeed, no conspiracy at all, is a
question of fact for you, the jury, to determine in
accordance with these instructions.
When two or more people join together to further one
common unlawful design, purpose or overall plan, a
single conspiracy exists. On the other hand, multiple
conspiracies exist when there are separate unlawful
agreements to achieve separate and distinct purposes.
You may find that there was a single conspiracy
despite the fact that there were changes in personnel by
termination, withdrawal, additions of new members, or in
activities, or both, so long as you find that some of the
co-conspirators continued to act for the entire duration
of the conspiracy for the purpose charged in the

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conspiracies existed is “ordinarily . . . a question of fact for

the jury to resolve,” Balthazard, 360 F.3d at 315; see also United

indictment. The fact that the members of the – of a
conspiracy are not always identical does not necessarily
[imply] that separate conspiracies exist. It is not
necessary that you find that the alleged co-conspirators
join the conspiracy at the same time or shared the same
knowledge beyond their understanding, tacit or otherwise,
that their illicit agreement existed. Nor do the
participants in the conspiracy need to have known all of
their co-conspirators or to have participated at the same
time in furtherance of their criminal venture. What is
essential is that the criminal goal or overall plan
persisted without fundamental alteration notwithstanding
variations in personnel and their roles.
In determining whether there was a single conspiracy
or multiple conspiracies you may consider a wide range of
factors such as: Whether there was a common goal; the
nature of the scheme; overlapping of participants in
various dealings; the nature, design, implementation and
logistics of the illegal activity; the participants’
method of operation; the relevant geography; and the
scope of co-conspirator involvement.
If you find that the conspiracy charged in Count 1
of the indictment did not exist, you cannot find the
defendant guilty of that conspiracy. This is so even if
you find that some conspiracy other than the one charged
in Count 1 existed, even though the purposes of both
conspiracies may have been the same and even though there
may have been some overlap in membership. If you find
that there was not one overall conspiracy as alleged by
the government but instead there were actually several
separate and independent conspiracies, then you must find
the defendant not guilty of the conspiracy charged in
Count 1.
Similarly, if you find that the defendant was a
member of another conspiracy, and not the one charged in
Count 1, then you must find the defendant not guilty of
the conspiracy charged in Count 1.
Therefore, what you must do is determine whether the
conspiracy charged in the indictment existed. If it did,
you then must determine who were its members.

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States v. Portela, 167 F.3d 687, 696 (1st Cir. 1999), and this

jury, properly instructed, knew how to make that judgment.

B. Harmless Error

Though we reject appellant's multiple conspiracy claim,

we acknowledge that the evidence was not so potent that it

compelled a finding of a single conspiracy. However, even if we

were wrong in our assessment, appellant could not prevail. “[A]

variance is fatal only if the defendant shows prejudice.” United

States v. Mueffelman, 470 F.3d 33, 39 (1st Cir. 2006); see also

Kotteakos v. United States, 328 U.S. 750, 756-57 (1946) (quoting

Berger v. United States, 295 U.S. 78, 82 (1935)); United States v.

Fornia-Castillo, 408 F.3d 52, 66 (1st Cir. 2005). Here, appellant

was found guilty on all of the wire fraud counts presented to the

jury, and he was the central actor in each of the two enterprises.

The jury thus found that he criminally participated in both loan

transactions, eliminating any risk that the conspiracy conviction

applied to only one of the “two” conspiracies.

The only possible ground for prejudice would be a type of

evidentiary spillover – i.e., if the guilty verdicts on the fraud

counts relating to one transaction were influenced by evidence

relating to the other transaction – but the interconnectedness of

the two deals compels a conclusion of harmlessness.21 Indeed, even

21
Most commonly, the spillover concern is addressed to whether
incriminating evidence against co-defendants who were involved in
separate conspiracies affected the jury’s consideration of the

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if the government had alleged two separate conspiracies, we think

there is little chance that a trial court would have agreed to try

them separately given their proximate timing and the substantial

overlap. See Fed. R. Crim. P. 8(a).22 While the evidence of the

later transaction arguably was unnecessary to prove a conspiracy

relating solely to 12 Trainor Road, a conspiracy relating solely to

16 Trainor Road surely would have required considerable focus on

the earlier deal to explain the roles played later by DesMarais and

Walden. Moreover, as appellant has asserted in arguing that two

conspiracies were proven, the evidence on each loan was presented

distinctly – undermining any claim that the jury’s verdicts were

evidence against the defendant. See, e.g., United States v.
Candelaria-Silva, 166 F.3d 19, 40 (1st Cir. 1999). A
“‘transference of guilt’” also can occur from one charge to
another. Portela, 167 F.3d at 700 (citation omitted). The other
concerns that commonly arise from a variance claim are whether the
defendant could be twice subject to prosecution for the same
offense and whether the defendant had sufficient notice “‘to
prepare an effective defense and avoid surprise at trial,’” Fornia-
Castillo, 408 F.3d at 67-68 (citation omitted); see also
Candelaria-Silva, 166 F.3d at 40; Wihbey, 75 F.3d at 774.
22
Rule 8(a) provides that separate offenses may be charged in
the same indictment if they are “of the same or similar character,
or are based on the same act or transaction, or are connected with
or constitute parts of a common scheme or plan.” See, e.g., United
States v. Chambers, 964 F.2d 1250, 1250-51 (1st Cir. 1992). The
trial court has the discretion both to sever counts to avoid
prejudice, see Fed. R. Crim. P. 14(a), and to “order that separate
cases be tried together as though brought in a single indictment .
. . if all offenses and all defendants could have been joined in a
single indictment,” Fed. R. Crim. P. 13.

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infected by “cross-information.”23 While appellant emphasizes the

“mountainous amount of otherwise inadmissible 404(b) spillover

evidence,”24 his view that the transactions are distinct leads him

to understate the quantity of fully relevant crossover evidence.

In any event, a claim of prejudicial spillover cannot succeed

unless “a defendant . . . prove[s] prejudice so pervasive that a

miscarriage of justice looms.” United States v. Levy-Cordero, 67

F.3d 1002, 1008 (1st Cir. 1995) (internal citation omitted). Given

the close relationship of the two transactions, appellant’s

acknowledgment that the evidence at trial differentiated between

23
Additionally, the court minimized the risk of improper
spillover by instructing the jury that each count charged a
separate offense and that the jury must individually consider each
one:

Each count charges the defendant with a separate
offense. You must consider each count separately and
return a verdict on each count.
It is your duty to give separate individual
consideration to each offense charged against the
defendant. When you do so, you should analyze what the
evidence in the case is, if any, with respect to each
count.

Later in the charge, the court reiterated that the jurors should
“[c]onsider each count separately,” instructing them to “determine
whether or not the government has proved each of the material
elements beyond a reasonable doubt with respect to each count.”
24
Federal Rule of Evidence 404(b) does not allow “[e]vidence
of other crimes, wrongs, or acts . . . to prove the character of a
person in order to show action in conformity therewith.” Such
evidence may be allowed, however, to prove, inter alia, “motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.” Fed. R. Evid. 404(b).

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them, and the court’s careful instructions, appellant has not come

close to such a showing.

C. Evidentiary Claim

Appellant’s final claim of error is that the district

court abused its discretion in ordering redaction of a portion of

a real estate brochure that was admitted as an exhibit. See United

States v. Maldonado-García, 446 F.3d 227, 231 (1st Cir. 2006)

(noting abuse of discretion standard for evidentiary issues). The

brochure contained pictures, written descriptions, and sales prices

for three properties, including 12 Trainor Road. The redacted

exhibit deletes the information about the two unrelated properties

and the $695,000 selling price for 12 Trainor Road.

The government sought exclusion of the selling price on

the ground that the information did not relate to the time period

of the charged offenses and therefore was both irrelevant and

confusing for the jury. The trial judge agreed, stating that he

did not think the defense “should be allowed to argue price on

something that hasn’t been testified to and is not in the right

time frame” because it would be “misleading and improper.”

On appeal, appellant contends that the brochure price was

“vital” to his attempt to show that the appraisals he had obtained

were reasonable, and he argues that there was, in fact, record

support for the price. He points to the following colloquy between

defense counsel and appraiser Hill:

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 Q: Do you see the real estate appraisal
value to the left-hand side of the
photo?
A: Yes, sir.
Q: Do you think that accurately describes
the property description as of October
25th, 2000?
A: Yes, sir.

The government asserts that appellant is off-the-mark in

suggesting that defense counsel’s use of the words “appraisal

value” in his question indicates that Hill’s response endorses the

$695,000 selling price; rather, the government contends, the

response more reasonably is understood to be Hill’s affirmation

that the property description is accurate. We think this is the

only sensible characterization of the evidence. Not only did the

questions immediately following the excerpted colloquy pertain to

the wording of the property description, but Hill had performed one

of the appraisals on the property admitted into evidence. Hill’s

appraisal set the property value in October 2000 at $510,000.

Given that context, the testimony cited above cannot be understood

to support the $695,000 price in the brochure, and the district

court cannot be faulted for excluding it.

III.

Appellant’s duplicity and variance claims both fail

because the facts as alleged and proven at trial permitted the

jury’s finding, guided by the district court’s exemplary

instruction, that a single conspiracy existed. As appellant

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acknowledges, the single conspiracy determination means that

evidence on both transactions was properly admitted and that his

severance claim must fail. Even if the single conspiracy finding

were erroneous, appellant’s assertion of prejudicial spillover

would be unavailing. Given the factual overlap between the two

transactions and the court’s careful instruction that the jury

consider each count separately, he could not show that “a

miscarriage of justice looms.” Finally, the court did not abuse

its discretion in ordering redaction of the real estate brochure.

For the foregoing reasons, the judgment of the district

court is affirmed. So ordered.

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