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

 ____________

Before MURPHY and HEANEY, Circuit Judges, and ROSENBAUM, District

*

Judge.

___________

ROSENBAUM, District Judge.
 The Honorable D. Brook Bartlett, United States District Judge 2

for the Western District of Missouri.

Stafford was acquitted at trial. 3

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Anthony Slaughter and Roy Leonard were tried before a jury and

convicted of conspiracy to commit wire fraud and wire fraud in August,

1996. They appeal their convictions. We affirm the judgment of the

district court.2

I.

On June 3, 1996, a federal grand jury returned an 11-count indictment

charging Slaughter, Leonard, and Willie Stafford with conspiracy to

commit wire fraud and wire fraud. See 18 U.S.C. §§ 371 and 1343. The

indictment charged Slaughter, Leonard, and Stafford with conspiring with 3

others to defraud their employer, Ford Motor Company, by submitting

fraudulent overtime claims. According to the indictment, Howard McDaniels,

a superintendent at the Ford plant in Claycomo, Missouri, submitted

fraudulent overtime claims on behalf of Slaughter, Leonard, and others.

 

Trial commenced August 12, 1996. McDaniels, who pleaded guilty to

an earlier indictment concerning the same fraudulent scheme, testified at

Slaughter's and Leonard's trial. According to McDaniels, 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 Ford

superintendent, McDaniels could enter the company’s computer system and

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 of

time, McDaniels asked Herman Moore, another Ford employee, to provide names

and social security numbers of other employees who would participate in the

scheme. Moore did so, collecting
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kickbacks from the employees he recruited and giving the money to

McDaniels.

McDaniels testified to entering fraudulent overtime for both

Slaughter and Leonard. McDaniels stated he dealt directly with Leonard,

while Moore recruited Slaughter. Evidence showed that Slaughter knew

McDaniels was inputting the false overtime claims. McDaniels testified

Slaughter told him he knew McDaniels was putting money on his check, but

"he wouldn't tell on the scheme."

During the trial, the government learned McDaniels had perjured

himself. McDaniels falsely denied entering fraudulent overtime for two

additional Ford employees. After discovering his false testimony, the

government recalled McDaniels, who admitted his perjury. Defense counsel

were then permitted to reopen McDaniels’ cross-examination. 

Moore also testified at trial. He related how he recruited Slaughter

to participate in the overtime scheme. Other witnesses corroborated

Slaughter's involvement. Ronald Sheppard, a Ford employee who participated

in the overtime scheme, testified that Slaughter asked him about getting

paid for overtime he had not worked. John Cartwright, another Ford

employee involved in the scheme, testified he asked Moore who else was

participating. Moore gave him a number of names, including Slaughter's.

In January, 1994, Ford began investigating the scheme. Investigator

Scott Laing interviewed Slaughter on February 9 or 10, 1994, and

interviewed Leonard on February 10, 1994. Slaughter told Laing he noticed

receiving too much money 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 denied having received overtime

pay for another weekend when Ford’s records showed he received extra

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 had

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 question

concerning the conspiracy 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 intentionally 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 information with the

intent that Ford pay for the false overtime; and

FOURTH, that while the agreement or understanding was in

effect, a person or persons may have joined the agreement and

knowingly caused the false payroll information to be

transmitted from the Ford plant at Claycomo to Ford

headquarters in Dearborn, Michigan.

The jury asked whether defendants, to be found guilty of conspiracy,

needed to know that the falsified data was transmitted to Michigan by wire.

The jury further asked whether defendants also needed to know that the

scheme violated federal law. 
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The court responded to the jury's questions by submitting a new

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 intentionally joined in

the agreement or understanding to submit false overtime

information to Ford with the intent that Ford pay for 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 information 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 the

agreement that the false payroll information would be

transmitted by electronic transmission from the Ford plant in

Claycomo to Ford headquarters in Dearborn, Michigan . . . ; and

FIFTH, that interstate wire communications were used in

transmitting the false overtime information to Ford Motor

Company to Dearborn, Michigan.

Defense counsel objected to the new instruction and suggested they would

need to reargue the case to address the instruction, but made no formal

motion for reargument.

On August 22, 1996, the jury returned its verdict, finding Slaughter

guilty of three of four wire fraud counts and conspiracy to commit wire

fraud. The jury found Leonard guilty of six of seven wire fraud counts and

conspiracy to commit wire fraud.

II.

A.

Slaughter appeals his conviction. He argues: (1) the evidence was

insufficient to support the jury's verdict; (2) the court erred in

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); United

States v. Marin-Cifuentes, 866 F.2d 988, 992 (8th Cir. 1989). It is

axiomatic that we do not “pass upon the credibility of witnesses or the

weight to be given their testimony.” United States 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 Ford

Motor Company, or that he violated any known legal duty. He points out

that, because of his variable work schedule, his paychecks varied from week

to week. Slaughter claims the only witnesses whose testimony tied him to

the scheme were participants themselves. He challenges the credibility of

these witnesses because they bargained with the government in exchange for

their testimony. This argument was initially directed to the jury, which

rejected it at trial. We decline to revisit the jury’s credibility

determination.

To prove a conspiracy, the government must show that two or more

people agreed to commit an offense, and that at least one conspirator acted

to achieve the agreement's illegal purpose. United States v. Hoelscher,

764 F.2d 491, 494 (8th Cir. 1985). The government must prove, beyond a

reasonable doubt, that the defendant knew the essential object of the

conspiracy. Henderson v. United States, 815 F.2d 1189, 191-92 (8th Cir.

1987). To prove wire fraud, the government must show the defendant

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 foreseeable interstate wire

communications would be used, and that interstate wire communications were

used. United States v. Proffit, 49 F.3d 404, 406 n.1 (8th Cir. 1995);

Atlas Pile Driving Co. v. DiCon Fin. Co., 886 F.2d 986, 991 (8th Cir.

1989).

Here, McDaniels testified that Slaughter told him he could be trusted

not to "tell on the scheme." Moore testified he recruited Slaughter into

the scheme. Other conspirators related conversations with Slaughter

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 committeeman, Tom Lawrenson. Lawrenson, however, denied having

any such conversation. This evidence, viewed in the light most favorable

to the government, shows Slaughter's knowledge of the scheme and its

purpose, and his agreement to participate.

In reaching its verdict, the jury clearly credited the testimony of

the government's witnesses. That some of these witnesses were members of

the scheme does not undermine the verdict. Witschner, 624 F.2d at 843; see

also United States v. Cunningham, 83 F.3d 218, 222 (8th Cir. 1996).

Certainly, whether a witness has a plea agreement with the government, and

whether a witness will receive a sentence reduction in exchange for his

testimony, is relevant in assessing the witness's credibility. United

States v. Roan Eagle, 867 F.2d 436, 443-44 (8th Cir. 1989). The jury,

however, is always the ultimate arbiter of a witness's credibility, and

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 insufficient

evidence.

2.

Both Slaughter and Leonard challenge the district court's amended

conspiracy instruction. They claim the instruction
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constructively amended the indictment. In particular, they claim the

instruction improperly converted the case into one of conspiracy to submit

false information, while the indictment charged conspiracy to commit wire

fraud. We disagree.

A jury instruction constructively amends the indictment if the

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 instruction did not modify the

essential elements of the crime charged in the indictment.

The district court’s revised instruction 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 information

necessitates a finding that two or more people agreed to defraud Ford. The

jury was told it must find defendants knowingly and intentionally joined

this agreement, knowing its purpose. This requires a finding that

defendants joined the agreement knowing its purpose was to defraud Ford.

Finally, the instruction told the jury it must find 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

instruction fairly tracks the elements of the indictment’s charges of

conspiracy to commit wire fraud.

Slaughter further argues the revised instruction misstates Eighth

Circuit law, because it required the jury to find it reasonably foreseeable

that interstate wire communications would be used to effectuate the

conspiracy. Slaughter asserts the conspiracy must have contemplated the

use of interstate wire. As we set out above, the government needed to show

only that the use
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of interstate wire was reasonably foreseeable. See Proffit, 49 F.3d at 406

n.1; Atlas Pile Driving Co., 886 F.2d at 991.

Slaughter also argues the district court 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 argument

necessarily fails; as we have determined above, the instruction neither

amended 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 discretion

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 broad

discretion. We find no error in the instruction or its timing.

3.

Finally, Slaughter argues that the district court erred in denying

his motion to dismiss the indictment for failure to plead materiality.

This argument is without merit. We join our sister court in the Tenth

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 [of

detrimental reliance] is not required to prove . . . wire fraud."). The

district court correctly denied Slaughter's motion to dismiss.

B.
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Leonard also appeals his conviction. He argues: (1) the indictment

alleged a single conspiracy, when the trial evidence proved multiple

conspiracies; (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 the 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 trial proved multiple conspiracies,

rather than the single conspiracy with which he was charged. He argues

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 has

shown a single conspiracy or multiple conspiracies. United States v.

Morales, 113 F.3d 116, 118-19 (8th Cir. 1997); see also 2 Devitt, Blackmar

and O'Malley, Federal Jury Practice and Instructions § 28.09, at 179-80

(4th ed. 1990) (instruction on single or multiple conspiracies). Notably,

neither defendant requested a multiple conspiracy instruction, nor did they

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 not

consider an issue raised 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 the

evidence revealed only a single conspiracy.

A single conspiracy involves individuals "sharing common purposes or

objectives under one general agreement." Morales, 113 F.3d at 118-19

(quotations omitted). Thus, if the evidence shows "one overall agreement

to commit an illegal act," the evidence
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reveals a single conspiracy. Id. at 119 (quoting United States v. Regan,

940 F.2d 1134, 1135 (8th Cir. 1991)). A jury may find an overall agreement

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

multiple conspiracies, a variance exists. Id. To determine whether a

variance exists, "we consider the totality of the circumstances, including

the nature of the activities, the location and time frame in which the

activities were performed, and the participants involved." Id.

Viewing the 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 ramifications, and all [are] held together by the rim, which

represents the agreement." Hayes v. United States, 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 with

McDaniels or his agent, Moore. 

Neither the law, nor logic, requires that all of the conspirators

know each other or the full extent of the conspiracy’s reach. See id. at

213 ("To unite [conspirators] in a single conspiracy it is only necessary

that the activities of each individual or group be directed toward

accomplishing a single criminal objective.") (quotations omitted). Indeed,

a single conspiracy exists even where the members of the conspiracy

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.

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Even adopting Leonard's view that the evidence revealed multiple

conspiracies, a view we decline to adopt, his argument fails. We need not

reverse a conviction merely because of a variance. "Rather, we must

reverse [for variance] only when a 'spillover' of evidence from one

conspiracy to another has prejudiced a defendant's substantial rights."

Morales, 113 F.3d at 119. Here, Leonard has not shown or argued any

“spillover” occurred, nor have we found any which could have acted to his

prejudice. 

The government did not allege or attempt to show Leonard was

connected to any other conspiracy. See id. No one suggested Leonard acted

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

conspiracies that a jury could not be expected to give separate and

individual consideration to the evidence against each defendant."). The

government presented sufficient evidence against Leonard to leave us no

concern that the jury's verdict was based on evidence of unrelated

conspiracies. See Morales, 113 F.3d at 120. Accordingly, we reject

4

Leonard's variance claim.

2.

Leonard'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 should

have known was perjured. United States v. Perkins, 94 F.3d 429, 432-33

(8th Cir. 1996), cert. denied, 117 S. Ct. 1004 (1997). Leonard must

further show a
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"reasonable likelihood" that the perjured testimony could have affected the

jury's judgment. Id.

Here, we need not even examine whether the government knew or should

have known the testimony at issue was perjured, as we find no likelihood

it could have affected the jury's judgment. McDaniels’ testimony that he

did not enter fraudulent overtime for two unindicted Ford employees had no

bearing on whether he entered fraudulent overtime for Leonard, among

others. On discovering the perjury, the government immediately and

properly advised the court and defense counsel. McDaniels was recalled,

admitted his falsehoods, and was subjected to cross-examination concerning

his willingness to give false testimony under oath. The jury knew full

well that McDaniels had lied. We cannot fathom how Leonard could have been

prejudiced by having the government's star witness shown as a selfconfessed perjurer. Accordingly, we reject this claim.

3.

Our discussion concerning the propriety of the revised conspiracy

instruction 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 concur in the result reached by the majority because neither

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 properly 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.