### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-50123

UNITED STATES OF AMERICA, Plaintiff-Appellee
v. JERROD GARDENHIRE; GARY GARDENHIRE, Defendants-Appellants

Appeals from the United States District Court for the Western District of Texas USDC No. 7:10-CR-1722

Before SMITH, GARZA, and SOUTHWICK, Circuit Judges. PER CURIAM: * A jury convicted Gary Gardenhire and Jerrod Gardenhire of six counts of mail fraud and one count of conspiracy to commit mail fraud. On appeal, they

assert that the district court’s jury instruction constructively amended the indictment in violation of the Grand Jury Clause and Due Process Clause of the Fifth Amendment. We AFFIRM. U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D July 3, 20 12 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-50123 Document: 00511909649 Page: 1 Date Filed: 07/03/2012No. 11-50123 I Gary Gardenhire, Jerrod Gardenhire, Cody Eckel, and Fred Foster were indicted on six counts of mail fraud, 18 U.S.C. § 1341, and one count of conspi r a c y to commit mail fraud, 18 U.S.C. § 1349. Eckel and Foster entered guilty pleas, and the Gardenhires proceeded to trial. The facts surrounding the mail fraud scheme, viewed in the light most favorable to the v e r dict, were as follows. See United States v. Rains, 615 F.3d 589, 592 (5th Cir. 2010). Gary Gardenhire and Larry Wayne Webb became friends while working for Austin Distributing, a hydr aulic ho s e b u s in e s s . Webb and Gary subsequently sta rt e d a new hydraulic hose business together called The Hose Connection (THC). Webb owned 60% of THC and Gary owned 40%. In addition to being a co-owner, Gary was a sal ari e d e m p loye e , re s ponsible for managing THC’s day-today operations. Gary and Webb also hired Gary’s brother Jerrod as a salesman. After customers purchased equipment from THC, the Gardenhires, without Webb’s knowle d ge, sent invoices for the equipment from a separate company, owned by the Gardenhires, called Louder Than Hell Speakers (LTH). Then, with the encouragement of Eckel and Foster, who received commissions for their aid in the fraud, THC’s customers sent payments to LTH. Through this scheme, the Gardenhires pilfered at least $1.75 million worth of payments from THC. At the close of trial, p u r s u ant to Gary’s request, the district court instructed the jury using Fifth Circuit Pattern Jury Instruction 2 .59. The instruction stated in part that a “‘sche m e to defraud’ includes any scheme to deprive another of money, property, or of the intangible right to honest services by means of false or fraudulent pretenses, representations, or promises.” None of th e p a rties objected to the instruction, and the jury found the Gardenhires guilty on all counts alleged in the indictme n t

. T h e district court sentenced Jerrod to 46 months imprisonment and thr e e y e a r s of supervised release; it

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sentenced Gary to 57 months’ imprisonment and three years of supervised release. Jerrod and Gary filed a timely notice of appeal. II On appeal, the Gardenhires con t e n d that the district court erred by including th e “intangible right to honest services” language in the jury instruction. The Gardenhires assert that by doing so the dis t ri c t c ourt

con s tructively amended the indictment, which did not include a charge regarding the right to honest services, in violation of the Grand Jury Clause and Due Process Clause of the Fifth Amendment. 1 A defendant who h a s been indicted by a grand jury has a Fifth Amendment right to be tried solely on the allegations made by that grand jury. Stirone v. United State s , 361 U.S. 212, 215-18 (1960). “The indictment cannot be ‘broadened or altered’ except by the grand jury.” United States v. Arlen , 947 F.2d 139, 144 (5th Cir. 1991) (quoting United States v. Chandler , 858 F.2d 254, 256 (5th Cir. 1988)). A constructive amendment of the indictment “occurs when the trial court ‘through its instructions and facts it permits in evidence, allows proof of an essential element of a crime on an alternative basis permitted by the statute but not charged in the indictment.’” I d

. (quoting United States v. Slovacek , 867 F.2d 842, 847 (5th Cir. 198 9)). Because neither of the Gardenhires objected to the instruction, our review is for plain error. In order to s h o w p l a i n e rror, an appellant must show a 2

The Ga rd enhir es ass ert that the ins tru cti on allow ed the jury to convic t unde r 18 1 U. S. C. § 1346 for “hon es t se rvice s fr aud, ” an off ens e not allege d in the indi ctm ent. See § 1346 (“ For the purpo se s of this chap ter , the term ‘s chem e or artifi ce to def raud ’ inclu des a sc hem e or artifi ce to dep rive another of the intan gible rightof ho nes t se rvice s. ”)

. The Go vernm ent cont ends that Ga ry Ga rd enhir e invite d the dis tri ct cour t’s err or by 2 requ es ting the jury ins tru cti on in ques tio n and that the err or is ther efo re either unrevi ew able or revie wable only for man ife st injus tic e. See Uni ted States v. Puig- Infa nte , 19 F.3d 929, 941 (5t h C i r . 1 9 94). Becaus e we conc lude that the Ga rd enhir es have not sho wn plai n err or, we needno t add res s wh ethe r the err or wa s invite d. 3 Case: 11-50123 Document: 00511909649 Page: 3 Date Filed: 07/03/2012No. 11-50123

forfeited error that is clear o r obvious and that affects his substantial rights, “which in the ordin a ry c a s e means he must demonstrate that it ‘affected the outcome of the district court proc e e di n gs.’” Puckett v. United States , 556 U.S. 129, 135 (2009) (quoting United States v. Olano , 507 U.S. 725, 734 (1993)). Even if the Gardenhires make such a showing, this court will only correct the error if i t s e ri o usly affects the fairness, integrity, or public reputation of the judicial proceedings. Id. Th e G ar denhires contend primarily that the district court c o m mitt e d p l ain

error under United States v. Griffin , 324 F.3d 330 (5th Cir. 2003). In Griffin , the defendants were indicted for cons p i racy, bribery, money laundering, and mail f r a ud arising from a real estate scheme involving tax credits for low incom e housing. Id. at 337. The indictment alleged that Griffin and her co-conspirators committed mail fraud by mailing a pre-application notification for tax credits for

a housing project in ord e r t o d e f raud various governmental entities “and to obtain money and property by false pretenses.” Id. at 352. However, the court charged the jury that a “‘scheme to d e f r aud’ included any scheme to deprive another of money, property, or of the intangible right to honest services by

means of false or fraudulent pretenses, representations, or promises.” Id. at 353. On plain error review, this court held that (1) the unissued tax credits were not “property” within the meaning of the mail fraud statute until they were issued, and (2) the court’s charge constructively amend e d th e i ndictment to include a b a s i s f o r the fraud that was not charged in the indictment by including the intangible right to honest services language. Id. at 353-56. Finding plain error, this court reversed the defendants’ mail fraud convictions. Id. at 356. The Gard e nhires’ reliance on Griffin is misplaced. Because the court in Griffin concluded that the unissued tax credits were not property under the mail fraud statute, the defendants could not have been convicted without the “honest services” language, which did not appear in the indictm e n t

. I n this case,
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however, both the “money and property” basis and the “honest services” basis for conviction were not only available to the jury, they were inextricably intertwined. Based on the evidenc e in this case, the jury could not have convicted the Gardenhires of de p rivi ng Webb of honest services without also finding that they had deprived Webb of money and property. See United States

v. Ja c k s o n , 220 F. App’x 317, 329 (5th Cir. 2007). Because the jury could not 3 have concluded that the Gardenhires deprived Webb of honest services without also finding that they deprived him of money and property, we conclude that the district court’s error did not affect the Gardenhires’ substantial rights. III F or the foregoing reasons, we conclude that the Gardenhires have not shown that the outcome of the trial would have been different if the district court had not included the “honest services” language. See Puckett , 556 U.S. at 135. There was no plain error. We AFFIRM.

The Ga rd enh i r e s als o cont end that they we re pr ejudi ced by the Go vernm ent’ s 3
r e f e r e n c e in clos ing argum ent to Ga rd enhir e’s and Webb’ s friend shi p. This cont enti on fai ls for the sam e reas on that Gr if fi n is inap pos ite. There wa s no bas is in evide nce for find ing that Ga ry Ga rd enhir e betr ayed Webb’ s friend shi p wi thou t als o f indi ng t hat he dep rived Webb of mo ney a nd pr ope rty. 5 Case: 11-50123 Document: 00511909649 Page: 5 Date Filed: 07/03/2012