### The HONORABLE JAMES M. ROSENBAUM, United States District * 

### Judge for the District of Minnesota, sitting by designation. ___________ No. 97-1005

___________ United States of America * * Appellee, * * Appeal from the United States v. * District Court for the * Western District of Missouri Anthony Slaughter * *

Appellant. *

_____________ No. 97-1048

____________ United States of America * * Appellee, * * Appeal from the United States v. * District Court for the * Western District of Missouri Roy E. Leonard, * * Appellant. *

_____________ Submitted: May 20, 1997 Filed: October 16, 1997

____________ Bef ore MURPHY and HEANEY, Circuit Judges, and ROSENBAUM, Distric t * Judge.

___________ ROSENBAUM, District Judge.

### The Honorable D. Brook Bartlett, United S tates District Judge 2 

### for the Western District of Missouri. Stafford was acquitted at trial. 3


### -2- Anthon y Slaughter and Roy Leonard were tried before a jury an d convi cted of conspiracy to commit wire fraud and wire fraud in August , 1996. They appeal their convictions. We affirm the judgment of th e district court. 2

I. On June 3, 1996, a federal grand jury returned an 11-count indi ctment chargi ng Slaughter, Leonard, and Willie Stafford with conspiracy t o commit wire fraud and wire fraud. See 18 U.S.C. §§ 371 and 1343. Th e indictment charged Slaughter, Leonard, and Stafford with conspiring with 3 others to defraud their employer, Ford Motor Company, by submittin g fraudulent overtime claims. According to the indictment, Howard McDaniels , a supe rintendent at the Ford plant in Claycomo, Missouri, submitte d fraudulent overtime claims on behalf of Slaughter, Leonard, and others.

Trial co mmenced August 12, 1996. McDaniels, who pleaded guilty t o an earlier indictment concerning the same fraudu lent scheme, testified at Slaughter's and Leonard's trial. According to M cDaniels, he initiated the scheme in early 1993. He approached Ford employees and offered to adjust their overtime hours in return for cash kickbacks. As a For d superintendent, McDaniels could enter the company’s computer system an d adjust employee hours throughout the Ford plant. Using this scheme, false payroll information was transmitted by interstate wire from the Claycomo plant to Ford's headquarters in Dearborn, Michigan. After a period o f time, McDaniels asked Herman Moore, another Ford employee, to provide name s and social security numbers of other employees who would participate in th e scheme. Moore did so, collecting

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kickb acks from the employees he recruited and giving the money t o McDaniels.

McDan iels testified to entering fraudulent overtime for bot h Slaughter and Leonard. McDaniels stated he dealt directly with Leonard, while Moore recruited Slaughter. Evidence showed that Slaughter kne w McDani els was inputting the false overtime claims. McDaniels testifie d Slaughter told him he knew McDaniels was putting money on his check, but "he wouldn't tell on the scheme."

Dur ing the trial, the government learned McDaniels had perjure d himsel f. McDaniels falsely denied entering fraudulent overtime for tw o additi onal Ford employees. After discovering his false testimony, th e government recalled M cDaniels, who admitted his perjury. Defense counsel were then permitted to reopen McDaniels’ cross-examination.

Moore also testified at trial. He related how he recruited Sla ughter to par ticipate in the overtime scheme. Other witnesses corroborate d Slaughter's involvement. Ronald Sheppard, a Ford employee who participate d in the overtime scheme, testified that Slaughter asked him about getting paid for overtime he had not worked. John Cartwright, another For d emplo yee involved in the scheme, testified he asked Moore who else wa s participating. Moore gave him a number of names, including Slaughter's.
In January, 1994, Ford began investi gating the scheme. Investigator Sc ott Laing interviewed Slaughter on February 9 or 10, 1994, an d interviewed Leonard on February 10, 1994. Slaug hter told Laing he noticed receiving too much mo ney on one check, but stated he reported this to his union committeeman. Slaughter also told Laing he had worked one weekend for which he received overtime pay, but he denie d having received overtime pay for another weekend when Ford’s records showed he received extr a compensation. Leonard told

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Laing he had worked the weekends for which he received overtime pay.
Slaughter and Leonard both testified at trial. Slaughter said he did not notice having been paid overtime for any week but one, and stated he reported that overpayment to his union committeeman. Leonard stated he ha d also noticed receiving overtime pay for one weekend, but did not realize he received overtime pay for any other period.
During jury deliberations, the jury sent the court a questio n concerning the conspi racy instruction. The jury had been instructed that to find defendants guilty of conspiracy, it needed to find:
FIRST, that . . . two or more persons reached an agreement or came to an understanding to commit wire fraud . . . ; SECOND, that [defendants] knowingly and intentional ly joined in the agreement or understanding to commit wire fraud . . . ; THIRD, that at the time [defendants] joined in the agreement or understanding, [they] knew that the purpose of the agreement or understanding was to submit false overtime informat ion with the intent that Ford pay for the false overtime; and
FO URTH, that while the agreement or understanding was i n effect, a person or persons may have joined the agreement and knowingly caused the false payroll information to b e transmitted from the Ford plant at Claycomo to For d headquarters in Dearborn, Michigan. The jury asked whether defendants, t o be found guilty of conspiracy, needed to know that the falsified data was transmitted to Michigan by wire

. The j ury further asked whether defendants also needed to know that th e scheme violated federal law.

### -5- The court responded to the jury's questions by submitting a ne w instruction, which stated:
FIRST, that . . . two or more persons reached an agreement or came to an understanding to submit false overtime information to Ford with the intent that Ford pay for the false overtime . . . ; SECOND, that [defendants] knowingly and intentional ly joined in the agreement or understanding to submit false overtim e information to Ford with the intent that Ford pay f or the false overtime information . . . ; THIRD, that at the time [defendants] joined in the agreement or understanding, [they] knew that the purpose of the agreement or understanding was to submit false overtime informat ion with the intent that Ford pay for the false overtime; FOURTH, in order to carry out the agreement or understanding, it is reasonably foreseeable by someone participating in th e ag reement that the false payroll information would b e transmitted by electronic transmission from the Ford plant in Claycomo to Ford headquarters in Dearborn, Michigan . . . ; and
FIFT H, that interstate wire communications were used i n transm itting the false overtime information to Ford Moto r Company to Dearborn, Michigan.
Defense counsel objected to the new instruction and suggested they would need to r eargue the case to address the instruction, but made no forma l motion for reargument.
On August 22, 1996, the jury returne d its verdict, finding Slaughter guilty of three of four wire fraud counts and conspiracy to commit wir e fraud. The jury found Leonard guilty of six of seven wire fraud counts an d conspiracy to commit wire fraud.

II. A. Slaughte r appeals his conviction. He argues: (1) the evidence wa s insuffic ient to support the jury's verdict; (2) the court erred i n submitting the amended conspiracy instruction; and (3) the

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indictment should have been dismissed for failure to plead materiality.

1. Evidence is sufficient to sustain a conviction if, when viewed in the light most favorable to the government, it offers substantial support for the verdict. Glasser v. United States , 315 U.S. 60, 80 (1942); Unite d States v. Marin-Cifuentes , 866 F.2d 988, 992 (8th Cir. 1989). It i s axiomatic that we do not “pass upon the credibility of witnesses or th e weight to be given their testimony.” United Sta tes v. Witschner , 624 F.2d 840, 843 (8th Cir. 1980) (citing Stanley v. Henderson , 597 F.2d 651, 653 (8th Cir. 1979)).

Slaughter argues there was insufficient evidence from which to find he knowingly and intentionally participated in a scheme to defraud For d Motor C ompany, or that he violated any known legal duty. He points ou t that, because of his variable work schedule, his paychecks varied from wee k to week. Slaughter c laims the only witnesses whose testimony tied him to the scheme were participants themselves. He cha llenges the credibility of these witnesses because they bargained with the government in exchange for their testimony. This argument was initially d irected to the jury, which rejected it at trial. We decline to revisit the jury’s credibilit y determination.

To pro ve a conspiracy, the government must show that two or mor e people agreed to commit an offense, and that at least one conspirator acte d to achieve the agreement's illegal purpose. United States v. Hoelscher , 764 F.2 d 491, 494 (8th Cir. 1985). The government must prove, beyond a
reasona ble doubt, that the defendant knew the essential object of th e conspiracy. Henderson v. United States , 815 F.2d 1189, 191-92 (8th Cir. 1987). T o prove wire fraud, the government must show the defendan t voluntarily joined a scheme to defraud another out of money, that he did
so

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with intent to defraud, that it was reasonably f oreseeable interstate wire communications would be used, and that interstat e wire communications were used. U nited States v. Proffit , 49 F.3d 404, 406 n.1 (8th Cir. 1995) ; Atlas Pil e Driving Co. v. DiCon Fin. Co. , 886 F.2d 986, 991 (8th Cir

. 1989).
Here, McDaniels testified that Slaughter told him he could be t rusted not to "tell on the s cheme." Moore testified he recruited Slaughter into th e scheme. Other conspirators related conversations with Slaughte r showing Slaughter’s knowledge of, and participation in, the scheme. Ford’ s investigator told of Slaughter’s claim that he reported an overpayment to his union committeema n, Tom Lawrenson. Lawrenson, however, denied having any such conversation . This evidence, viewed in the light most favorable to t he government, shows Slaughter's knowledge of the scheme and it s purpose, and his agreement to participate.

In reachi ng its verdict, the jury clearly credited the testimony of the government's witn esses. That some of these witnesses were members of the scheme does not undermine the verdict. Witschner , 624 F.2d at 843; se e also Unit ed States v. Cunningham , 83 F.3d 218, 222 (8th Cir. 1996)

. Certainly, whether a witness has a plea agreemen t with the government, and whether a witness will receive a sentence reduction in exchange for hi s testim ony, is relevant in assessing the witness's credibility. Unite d States v . Roan Eagle , 867 F.2d 436, 443-44 (8th Cir. 1989). The jury , how ever, is always the ultimate arbiter of a witness's credibility, an d this Court will not disturb the jury's findings in this regard. Witschner , 624 F.2d at 843. As such, we reject Slaughter's claim of insufficien t evidence.

2. Both Slaughter and Leonard challenge the district court's amende d conspiracy instruction. They claim the instruction

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constr uctively amended the indictment. In particular, they claim th e instruction improperly converted the case into o ne of conspiracy to submit false information, wh ile the indictment charged conspiracy to commit wire fraud. We disagree.

A jury instruction constructively amends the indictment if th e instruction "modif[ies] the essential elements of the offense charged so that a substantial likelihood exists that the defendant was convicted of
an offense other than that charged in the indictment." United States v. Johnson , 934 F.2d 936 , 941 (8th Cir. 1991). We find no such constructive amendment in this case, because the revised inst ruction did not modify the essential elements of the crime charged in the indictment.

The district court’s revised instruc tion required a finding that two
or more people agreed to submit false overtime information to Ford , intending that Ford pay money based on the false information. A finding that two or more people agreed to submit false overtime informatio n necessitates a finding that two or more people agreed to defraud Ford. Th e jury was told it must find defendants knowingly and intentionally joined this agr eement, knowing its purpose. This requires a finding tha t defendants joined the agreement knowing its purpose was to defraud Ford. Finally, the instruction told the jury it must f ind this false information was transferred by interstate wire, and that the use of this communication method was reasonably foreseeable. We find the district court’ s instru ction fairly tracks the elements of the indictment’s charges o f conspiracy to commit wire fraud.

Sla ughter further argues the revised instruction misstates Eight h Circuit law, because it required the jury to find it reasonably foreseeabl e that i nterstate wire communications would be used to effectuate th e conspiracy. Slaughter asserts the conspiracy must have contemplated the
use of interstate wire. As we set out above, the government needed to sho w only that the use

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of interstate wire was reasonably foreseeable. See Proffit , 49 F.3d at 40 6 n.1; Atlas Pile Driving Co. , 886 F.2d at 991.
Slaughter also argues the district c ourt denied reargument following the court’s reply to the jury, thus prejudicing his defense and violating Rule 30 of the Federal Rules of Criminal Procedure. His argumen t
necess arily fails; as we have determined above, the instruction neithe r
ame nded nor added a new element to the indictment’s charge. As such , reargument was not required. See United States v. Fontenot , 14 F.3d 1364 , 1368 (9th Cir. 1994) ("A supplemental instruction which merely clarifies an existing theory does not mandate additional arguments.").
Finally, Slaughter argues the district court's response to the jury
was premature. We disagree. A district court is afforded broad discretio n in responding to a jury’s requests for supplemental instruction. United States v. Felici , 54 F.3d 504, 507 (8th Cir. 1995), cert. denied , 116 S. Ct. 251 (1995). The district court’s reply fell well within its broa d discretion. We find no error in the instruction or its timing.

3. Finally, Slaughter argues that the district court erred in denyin g his motion to dismiss the indictment for failure to plead materiality

. This arg ument is without merit. We join our sister court in the Tent h Circuit in finding that "materiality is not a separate essential element of wire fraud." United States v. Daily , 921 F.2d 994, 1006 (10th Cir

. 1990); cf. United Healthcare Corp. v. American Trade Ins. Co. , 88 F.3d 563 , 571 n.5 (8th Cir. 1996) ("[I]t is well settled that . . . a showing [o f detriment al reliance] is not required to prove . . . wire fraud."). Th e district court correctly denied Slaughter's motion to dismiss.

B.

### -10- Leonard a lso appeals his conviction. He argues: (1) the indictment allege d a single conspiracy, when the trial evidence proved multipl e conspi racies; (2) the government knew, or should have known, McDaniels ' testimony was perjured; (3) the court erred in its reply to the jury’ s question concerning t he conspiracy instruction; and (4) cumulative errors at trial denied him his right to a fair trial and due process.

1. Leonard contends the evidence at tri al proved multiple conspiracies, rather th an the single conspiracy with which he was charged. He argue s this caused a variance and urges that the variance is fatal to the verdict

. Leonard’s argument, however, is unavailing.

It is a question of fact for the jury whether the government ha s shown a single conspiracy or multiple conspiracies. United States v

. Morales , 113 F.3d 116, 118-19 (8th Cir. 1997); s ee also 2 Devitt, Blackmar and O'Malley, Federal Jury Practice and Instructions § 28.09, at 179-8 0 (4th ed. 1990) (instruction on single or multipl e conspiracies). Notably, neither defendant requested a multiple conspiracy instruction, nor did the y object to the initial conspiracy instruction. Under these circumstances, it is problematic whether this issue is properly before us. United States

v. Merritt , 982 F.2d 305, 306-07 (8th Cir. 1992) ("This court will no t consider an issue rai sed for the first time on appeal absent a showing of plain error resulting in a miscarriage of justice."); see also Fed. R

. Crim. P. 52 (b). Here, we find there was no plain error because th e evidence revealed only a single conspiracy.
A single conspiracy involves individ uals "sharing common purposes or objecti ves under one general agreement." Morales , 113 F.3d at 118-1 9 (quotations omitted). Thus, if the evidence shows "one overall agreement to commit an illegal act," the evidence

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reveals a single cons piracy. Id. at 119 (quoting United States v. Regan , 940 F.2d 1134, 1135 (8th Cir. 1991)). A jury may find an overall agreemen t when the participants in the conspiracy share a common aim or purpose, and enjoy mutual dependence and assistance. Id.
If the indictment charges a single conspiracy, but the evidence shows multi ple conspiracies, a variance exists. Id. To determine whether a variance exists, "we consider the totality of th e circumstances, including the nature of the activities, the location and time frame in which th e activities were performed, and the participants involved." Id.
Viewing t he evidence in the light most favorable to the verdict, we find this was a single, “hub and spokes” conspiracy. In such a conspiracy , "the hub constitut[es] the central figure, the spokes form[] its various branches and ramifica tions, and all [are] held together by the rim, which represents the agreement." Hayes v. United Stat es , 329 F.2d 209, 214 (8th Cir. 1964) (quotations omitted). Here, McDaniels was the conspiracy's hub , and its spokes were the employees who benefitted from the false overtime submissions, and thereafter divided their ill-gotten overtime payments wit h McDaniels or his agent, Moore.

Neith er the law, nor logic, requires that all of the conspirator s know each other or th e full extent of the conspiracy’s reach. See id. at 213 ("To unite [consp irators] in a single conspiracy it is only necessary that the activities of each individual or group be directed towar d accomplishing a single criminal objective.") (quotations omitted). Indeed , a single conspiracy exists even where the members of the conspirac y undertake to commit several crimes, so long as there is a single agreement

. See id. ("If there is but one agreement, there is but one conspiracy.").

### This determination is bolstered by the jury's acquittal of 4 

### Leonard's co-defendant, Willie Stafford, and by its acquittal of Leonard on Count 2 and Slaughter on Count 7.
-12- Even adopting Leonard's view that the evidence revealed multipl e conspiracies, a view we decline to adopt, his ar gument fails. We need not
reve rse a conviction merely because of a variance. "Rather, we mus t
reverse [for variance] only when a 'spillover' of evidence from on e conspiracy to another has prejudiced a defendant's substantial rights. " Morales , 1 13 F.3d at 119. Here, Leonard has not shown or argued an y “spillover” occurred, nor have we found any which could have acted to his prejudice.

The government did not allege or attempt to show Leonard wa s connected to any other conspiracy. See id. No one suggested Leonard acte d to further anyone's interests beyond his own. The conspiratorial events
were straightforward: McDaniels entered fraudulent overtime hours for a limited number of Ford employees. See United States v. Jones , 880 F.2d 55 , 66 (8th Cir. 1989) (" [T]his case did not involve so many conspirators and conspirac ies that a jury could not be expected to give separate an d individual consideration to the evidence against each defendant."). The govern ment presented sufficient evidence against Leonard to leave us n o
concern that the jury's verdict was based on evidence of unrelate d conspiraci es. See Morales , 113 F.3d at 120. Accordingly, we rejec t 4 Leonard's variance claim.

2. Leo nard's second argument, that he was prejudiced by McDaniels ’ perjured testimony, is without merit. To prevail on this claim, Leonard must show the government used perjured testimony that it knew or shoul d have know n was perjured. United States v. Perkins , 94 F.3d 429, 432-3 3 (8th C ir. 1996), cert. denied , 117 S. Ct. 1004 (1997). Leonard mus t further show a

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"reasonable likelihood" that the perjured testimony could have affected th e jury's judgment. Id.

Here, we need not even examine wheth er the government knew or should have known the testimony at issue was perjured, as we find no likelihood it could have affecte d the jury's judgment. McDaniels’ testimony that he did not enter fraudulent overtime for two unindi cted Ford employees had no bearin g on whether he entered fraudulent overtime for Leonard, amon g others

. On discovering the perjury, the government immediately an d properly advised the court and defense counsel. McDaniels was recalled, admitted his falsehoods, and was subjected to cr oss-examination concerning his willi ngness to give false testimony under oath. The jury knew ful l well that McDaniels had lied. We cannot fathom how Leonard could have bee n prejudiced by having the government's star witness shown as a self

confessed perjurer. Accordingly, we reject this claim.

3. Our d iscussion concerning the propriety of the revised conspirac y instructio n disposes of Leonard's claims in this regard. See supra § II(A)(2).

4. Finally, based on our prior determinations, we reject Leonard's claim that cumulative errors denied him a fair trial or due process.

III. The judgment of the district court is affirmed.
HEANEY, Circuit Judge, concurring.

I conc ur in the result reached by the majority because neithe r defendant requested a multiple-conspiracy instruction nor did they object to the initial conspiracy instruction. Thus, in my view,

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the issue is not prop erly before us, and there has been no showing that a miscarriage of justice results from an affirmance.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.