UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 95-50645

__________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CLINTON MANGES; DAVID WAYNE MYERS; and CARL HUBERT SHANKLIN,

Defendants-Appellants.

______________________________________________

Appeals from the United States District Court for the

Western District of Texas

______________________________________________

April 15, 1997

Before REAVLEY, GARWOOD, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

This appeal involves a plot to retain the oil and gas rights

to a parcel of submerged property in Corpus Christi Bay, Nueces

County, Texas, known as tract 350. The indictment alleged that

appellants prevented the leased mineral right s from reverting to

t he state by submitting false documents to state regulatory

agencies and making corrupt payments to a state official.

Appellants appeal their convictions and sentences on charges

of conspiracy and mail fraud; their briefs teem with an

overabundance of evidentiary, statutory, and constitutional1 See, e.g.

, David McLemore, Oilman Manges Sentenced

, D ALLAS

M ORNING N EWS , Aug. 26, 1995, at A1, available in 1995 WL 9055925.

2 challenges. Many of these claims do not merit full discussion. We

are persuaded by only one of appellants’ arguments: Shanklin’s

contention that the conspiracy charge against him was time-barred.

FACTUAL BACKGROUND

Clinton Manges has been describ ed as a legendary figure in

South Texas: an o ilman and rancher, wheeler-dealer and political

kingmaker. Born in poverty in Cement, Oklahoma, Manges amassed a

billion-dollar fo rtune, only to face bankruptcy in 1989 and

criminal charges in the instant case. 1 David Wayne Myers, the

ringleader of the scheme alleged in the indictment, was an oil

industry entrepreneur based in S an Antonio, Texas. Carl Hubert

Shankl in was an independent contractor who performed “workover”

operations on oil and gas wells. Also named in the indictment was

Benny Joe McLester, who as the “gauger” for tract 350 was

responsible for accurately measuring and reporting its output.

It is unnecessary to detail t he various corporate entities

through which Myers wielded c ontrol over the operations on tract

350. We note simply that Myers, through companies he controlled,

at relevant times subleased the oil and gas rights to tract 350 and

three adjacent tracts; that his close business associate Morris D.

Jaffe, Jr., acquired interests in the tracts through an assignment

from Myers; and that Myers was instrumental in efforts to convince

state regulators that the lease terms were being met.3

The mineral rights to tract 350 were controlled by the Texas

General Land Office (GLO), which grants subsurface oil and gas

rights throughout Texas in a competitive bid process. Successful

bidders are required to pay the state yearly rental fees, plus

royalties representing a portion of their reven ues. Under

applicable state regulations, the holder of an oil and gas lease

must act affirmatively to maintain the rights granted by the state.

The lessee must (1) continuously produce oil and gas; (2) undertake

timely and dilige nt workover efforts to restore or increase

productive capacity; or (3) pay a “shut-in royalty” to the state,

supported by an affidavit stating that there is no economic market

for the tract’s resources. To put it another way, if a market

exists for a tract’s oil and gas, and if the tract fails to produce

for 60 days and is not worked over during that time, the lease

reverts to the state. Once that happens, the GLO may re-lease the

tract to the highest bidder.

It is undisputed that tract 350 should have reverted to the

state for lack of production at the time of the events described in

the indictment, if not earlier. Myers, Jaffe, and their

colleagues, believing that the lease was worth millions, sought to

prevent its reversion. Rather than meet the requirements imposed

by state law, however, appellants submitted false documents to the

GLO and tried to buy the favor of its chief clerk, Jack Giberson.

Appellants and others tried to prevent the reversion of the

lease by a variety of methods. Specifically, viewing the evidence

in the light most favorable to the verdict, Myers had McLester2 The operator of record of an oil and gas lease must report

its monthly production to the Texas Railroad Commission in a “P-1"

report. The GLO relies on the accuracy of these reports, and was

misled when the company operating tract 350 filed reports

incorporating McLester’s false data.

4 prepare a series of false production reports claiming tha t tract

350 had produced various quantities of oil. The false production

figures provided by McLester were duly reported to state regulators

by the company nominally operating the tract. 2

Moreover, Myers orchestra t ed the filing of false shut-in

affidavits with the GLO. Three such affidavits were filed,

claiming variously that the shut-in was based on the well’s lack of

production, a lack of market for its oil, and a severed gas line.

Myers swore out an affidavit on July 31, 1989, stating that

tract 350 had been worked over at intervals of less than 60 days

between June 28, 1988, and July 27, 1989. This affidavit was

supported by daily time records and documents called morning field

reports, prepared and signed by Sha nklin. These documents

purported to be contemporaneous records of the work described by

Myers; according to the prosecution’s evidence at trial, however,

they were post hoc fabrications designed to convince the GLO that

the lease to tract 350 had been maintained.

If Shanklin covered Myers’ back in the oil fields of Corpus

Christi Bay, Manges fronted for him in the government halls of

Austin. Starting in the summer of 1988, Manges tried to convince

his contacts in the GLO that the lease to tract 350 h ad been

maintained. Some time that summer, Manges accompanied Jaffe to the

GLO to discuss tract 350 with Giberson. Starting soon thereafter,5

in August 1988, Manges made a series of five payments to Giberson

totaling $30,100. The indictment listed the final two payments--

$6,400 on July 11, 1989, and $3,700 on July 31, 1989--as overt acts

in furtherance of the alleged conspiracy.

GLO staff members testified that Giberson did n ot actually

influence their decisions regarding tract 350. Moreover, it is

undisputed that Giberson did not keep the money; all five payments

were deposited in the bank account of his son, Richard Giberson.

Richard Giberson had been employed by the San Antonio Gunslingers

professional football team; Manges, through a corporation, was the

team’s principal owner. The defense contends that the payments

were partial satisfaction of a $70,000 debt that the Gunslingers

corporation owed Richard.

Appellants’ efforts to retain the lease to tract 350 seemed to

bear fruit. On September 19, 1989, GLO staff geologist Tim Pittman

mailed a letter to Jaffe’s Redfish Bay Operating Co.--the tract’s

operator of record at the time--stating that the lease had been

maintained.

As an epilogue to the conspiracy, Manges discussed tract 350

in two conversations the following spring with a longtime friend,

Crandell Addington. The two friends discussed how Manges had done

his “little magic” to save the lease. They specifically mentioned

that document s were “fixed” and that Jack Giberson would not

approve the lease unless Manges pai d his son, Richard, $10,000.

Addington secretly recorded these conversations, which were

introduced at trial by the prosecution.6 PROCEDURAL BACKGROUND

Appellants and co-defendant McLester were charged in a threecount indictment filed on September 14, 1994, in United States

District Court.

The first count charged all four defendants with conspiracy to

commit mail fraud and conspiracy to commit bribery. The mail fraud

conspiracy had two alleged goals. Its first object was to deprive

Texas citizens of money or property, i.e. , the lease to tract 350

and the additional royalties that the state would earn if the lease

reverted and were rebid. The second object of the mail fraud

conspiracy was to deprive Texas citizens of their intangible right

to the honest services of a government official, later identified

as Jack Giberson. 18 U.S.C. §§ 371 (conspiracy), 1341 (mail

fraud), 1346 (mail fraud involving honest services), & 666

(bribery).

Count two charged McLest er, Myers, and Shanklin with mail

fraud. This substantive count incorporated the two theories

underlying the mail fraud conspi racy charged in count one--

deprivation of money or property and deprivation of the intangible

right to honest government services. The mailing alleged in count

two was the September 19, 1989 letter from the GLO to Redfish Bay

Operating Co. stating that the lease to tract 350 had been

maintained. 18 U.S.C. §§ 1341, 1346, & 2 (aiding and abetting).

Count three charged Manges alone with bribery. 18 U.S.C. §

666(a)(2).

Pursuant to a plea agreement, McLester pleaded guilty to count7

one and testified against appellants at trial. At the close of the

evidence, the district court entered a judgment of acquittal for

M anges on count three. The court held the proof insufficient to

establish that the GLO received more than $10,000 annually in

federal aid, as required to support a federal bribery prosecution.

See 18 U.S.C. § 666(b). In its jury charge, the district court

also deleted the conspiracy to commit bribery from count one.

On March 10, 1995, after a joint trial, Manges was convicted

of conspiracy, and Myers and Shanklin were convicted of both

conspiracy and mail f raud. As discussed below, appellants were

sentenced at a hearing in district court on August 25, 1995.

DISCUSSION

I. Appellant Shanklin’s Statute of Limitations Defense

Sha nklin claims that he was prosecuted in violation of the

applicable five-year statute of limitations. S ee 18 U.S.C. § 3282.

With respect to the conspiracy count only, we agree. Our review is

plenary. U

nited States v. Workinger

, 90 F.3d 1409, 1412 (9th Cir.

1996) (citation omitted).

To satisfy the statute of limitations for mail fraud, the

governmen t must prove that the predicate mailing occurred in the

five years before the indictment. U nited States v. Ashdown

, 509

F.2d 793, 798 (5th Cir.), cert. denied

, 423 U.S. 829, 96 S.Ct. 48,

46 L.Ed.2d 47 (1975). To satisfy the statute for conspiracy, the

government must prove that a conspirator committed an overt act in

f urtherance of the conspiracy in the five years before the8

indictment. S ee Grunewald v. United States

, 353 U.S. 391, 396-97,

77 S.Ct. 963, 969-70, 1 L.Ed.2d 931 (1957).

Shanklin was indicted on September 14, 1994. Accordingly, the

government was required to show that both the mailing element of

the mail fraud count and at least one overt act in furtherance of

the conspiracy occurred in a span of five years before that date.

The government claims to have met this burden with respect to both

offenses based on the September 19, 1989 letter from the GLO

stating that the lease to tract 350 had been maintained. Shanklin

argues that the GLO letter cannot serve as the predicate for either

crime, and that the government failed to prove any other mailing or

overt act within the limitations period.

A. Mail Fraud

Shanklin argues that the GLO letter cannot provide the basis

for the mail fraud prosecution because the letter was not an

“integral” part of the alleged scheme. S ee United States v.

Vontsteen

, 872 F.2d 626, 628 & n.2 (5th Cir. 1989) (reversing mail

fraud conviction because the mailed invoices were not “integral” to

the scheme) (c itation omitted). Shanklin contends that the

statutory period expired five years after the last relevant mailing

mentioned in the indictment: the submission of a false morning

field report to the GLO on July 27, 1989. In his view, the GLO

letter of September 19 merely confirmed that the alleged scheme had

been completed successfully.

We observe at the outset that the mailing in a federal mail

fraud prosecution need not be sen t by the defendant or his co-9

conspirator. It may be sent by a victim of the plot or an innocent

third party, so long as the m ailing is “incident to an essential

part of the scheme,

. . . or a step in [the] plot.” S chmuck v.

United States

, 489 U.S. 705, 710-11, 109 S.Ct. 1443, 1448, 103

L.Ed.2d 734 (1989) (mailing element suppl ied by duped used-car

retailers submitting title applications to state motor vehicles

bureau). See also United States v. Pepper , 51 F.3d 469 (5th Cir.

1995) (mailing element satisfied by defrauded investo rs’ mailing

money to defendant).

The success of the fraud alleged in this case depended upon an

affirmative response from the GLO. The scheme’s purpose was to

secure from the state of Texas the continued right to exploit the

mineral resources of tract 350. In our view, a written

confirmation from the GLO was “integral” to the success of the

scheme; it was a necessary step in the plot.

Vontsteen

, relied on by Shanklin, does not lead us to a

different conclusion. In V ontsteen we held that the mailing of

invoices by the victims of a completed fraud could not satisfy the

mailing element. However, we recognized that we might have reached

the opposite conclusion had the invoi ces been “legally operative

documents” that helped the defendant to complete the fraud. The

GLO letter was precisely the sort of “legally operative document”

that we had in mind; it represented title to the mineral resources

of tract 350. As such, it was part and parcel of the fraudulent

scheme. The GLO letter thus satisfied the mailing element. The

government had five years from the mailing to indict Shanklin, and10

it beat the deadline by less than a week.

B. Conspiracy

Shanklin claims that the September 19, 1989 mailing by the GLO

was n o t the overt act of a conspirator, and thus cannot be

considered the last overt act of the conspiracy for limitations

purposes. The previous overt acts alleged by the government were

Manges’ payment of $3,700 to Jack Giberson and Myers’ submission of

a false affidavit to the GLO. Both these events took place on July

31, 1989--more than five years before Shanklin was in dicted.

Consequently, he contends that the conspiracy charge was untimely.

The text of the federal conspiracy statute supports Shanklin’s

argument. It provides in part:

If two or more persons conspire . . . to commit any

offense against the United States,

. . . and one or more

of such persons do any act to e ffect the object of the

conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.

18 U.S.C. § 371. The statute thus explicitly provides that for the

crime of conspiracy to be complete, one or more of the conspirators

must have performed an overt act to bring about the object of the

conspiracy. This language cannot be stretched to include the

posting of a letter by a non-conspirator.

We have echoed the stat utory text: a conspiracy conviction

requires proof of “[t]he commission of at lea st one overt act by

one of the conspirators within [the five-year statutory] period in

furtherance of the conspiratorial a greement.” U nited States v.

Davis , 533 F.2d 921, 926 (5th Cir. 1976).

As the Supreme Court has explained:3 Although Manges and Myers each executed a written waiver of

his statute of limitations defense, Manges now seeks reversal of

his convictions due to prejudicial pre-indictment delay. However,

he does not contend that the government delayed in bad faith or to

secure a tactical advantage. We are therefore bound to reject his

claim by the rule established in United States v. Crouch , 84 F.3d

1497, 1500 (5th Cir. 1996) ( en banc ), cert. denied

, ---U.S.---, 117

S.Ct. 736, 136 L.Ed.2d 676 (1997).

11 The function of the overt act requirement in a conspiracy

prosecution is simply to manifest that the conspiracy is

at work, and is neither a project still resting solely in

the minds of the conspirators nor a fully completed

operation no longer in existence.

Yates v. United States , 354 U.S. 298, 334, 77 S.Ct. 1064, 1085, 1

L.Ed.2d 1356 (1957) (internal citation and quotation marks

omitted). In this case, the government failed to show that the

conspiracy was still a going concern in the five years prior to the

indictment. Accordingly, the indictment was untimely, and

Shanklin, having preserved his objection, is entitled to reversal

on Count One. 3

II. The Prosecution’s Honest Services Theory

The i ndictment alleged, and the jury was instructed to

consider, a conspiracy and a fraudulent scheme with two objectives.

The first goal was to obtain money or property through fraudulent

means, in violation of 18 U.S.C. § 1341. The second was to deprive

Texas citizens of their right to the honest services o f a state

official, in violation of 18 U.S.C. §§ 1341, 1346. Because the

jury convicted appellants by a general verdict, we cannot determine

whether the jury embraced the first theory, the second, or both.

Appellants contend that this ambiguity compels reversal of

their convictions for three reasons. First, they claim that the4 In Griffin the petitioner was convi cted of a dual-object

conspiracy. The Supreme Court held that the insufficiency of proof

with respect to one of the conspiracy’s objects did not render the

conviction invalid. However, the Court distinguished legal error

from factual insufficiency, explaining:

When

. . . jurors have be en left the option of relying

upon a legally inadequate theory, there is no reason to

think that their own intelligence and expertise will save

them from that error. Quite the opposite is true,

however, when they have been left the option of relying

upon a factually inadequate theory, since jurors are well

equipped to analyze the evidence.

Griffin , 502 U.S. at 59, 112 S.Ct. at 474 (citation omitted).

12 prosecution’s “honest services” theory is legally invalid. Second,

they claim that even if the theory is valid today, it did not

become good law until the conspiracy was well under way, raising

the possibility of an ex post facto violation. Finally, they

contend that the evidence was insufficient to support their

convictions based on the honest services theory.

A. The Validity of the Honest Services Theory

Appellants claim that the prosecution’s honest services theory

is invalid as a matter of law, and that the jury may have convicted

them on this unsound basis. They demand that their convictions be

vacated under the rationale of Griffin v. United States , 502 U.S.

46, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991). 4 Because appellants did

not raise this objection in the district court, the scope of our

review is limited. The issue is whether the district court

committed plain error by submitting the honest services theory to

the jury. S ee generally F ED

. R. C RIM

. P. 52(b); United States v.

Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United

States v. Calverley , 37 F.3d 160, 162-164 (5th Cir. 1994).

Appellants’ attack on the validity of t he honest services5 Geraldine Szott Moohr, Mail Fraud and the Intangible Rights

Doctrine: Someone to Watch Over Us , 31 H A RV

. J. ON L EGIS

. 153, 169

(1994) (footnote omitted).

13 theory rests entirely on the panel opinion in United States v.

Brumley (Brumley II)

, 79 F.3d 1430 (5th Cir. 1996), opinion vacated

and reh’g en banc granted

, 91 F.3d 676 (5th Cir. 1996). The panel

in Brumley II held that the federal mail fraud stat ute does not

proscribe conduct which deprives the citizens of a state of the

honest and impartial services of state officials. I d. at 1440.

This was the view of the Supreme Court prior to the passage, in

1988, of 18 U.S.C. § 1346. In McNally v. United States , 483 U.S.

350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), the Court held that the

mail fraud statute was limited in scope to the protection of

property rights, and did not reach the intangible right to honest

servi ces. I d. at 360, 107 S.Ct. at 2882 (construing 18 U.S.C. §

1341). The Court in McNally perceived no constitutional obstacle

to a broader statute, but stated: “If Congress desires to go

further, it must speak more clearly than it has.” 483 U.S. at 360,

107 S.Ct. at 2882.

Congress subsequently enacted Section 1346, which explicitly

brings within the ambit of mail fraud “ a scheme or artifice to

deprive another of the intangible right of honest services.” In a

legislative history that has been described as “clear but sparse,” 5

members of Congress explained that the purpose of Section 1346 was

to undo the Supreme Court’s statutory interpretation in McNally

.

In Brumley

, the en banc court is considering whether the amended

mail fraud statute reaches the deprivation of citizen s’ right to14

the honest services of public officials.

We ne ed not answer that question today. It is enough to

observe that numerous court s and commentators have interpreted

Section 1346 as validating the ho nest services theory in the

context of of ficial corruption. S ee, e.g., United States v.

Paradies

, 98 F.3d 1266, 1283 n.30 (11th Cir. 1996), pet. for cert.

filed

, 65 USLW 3599 (Feb. 21, 1997) (No. 96-1346); United States v.

Frega

, 933 F.Supp. 1536, 1546-47 (S.D. Cal. 1996) (collecting

cases).

Based on the overwhelming weight of authority recognizing the

validity of the honest government services theory, we hold that it

was not plain error to submit that theory to the jury in this case.

B. Ex Post Facto

Appellants correctly observe that even if the honest services

theory is valid today, it did not become good law until November

18, 1988, when Sectio n 1346 took effect. They complain that the

jury may have relied on events predating Section 1346 to convict

th em on the honest services theory, in violation of the ex post

facto clause. U.S. C ONST

. art. I, § 9, cl. 3.

Myers’ and Shanklin’s mail fraud convictions do not violate

the ex po st facto clause. Mail fraud is a discrete offense; the

crime is completed when the offending letter is mailed. S ee United

States v. Pazos , 24 F.3d 660, 665 (5th Cir. 1994) (“Each separate

use of the mails to further a scheme to defraud is a separate

offense.” (citation omitted)). In this case, the predicate mailing

occurred on S eptember 19, 1989--ten months and one day after15

Sec tion 1346 took effect. Reliance for this purpose on the GLO

letter is not inappropriate, given th e evidence that Myers

submitted a false affidavit to the GLO on July 31, 1989, and that

Shanklin falsified field reports as late as July 27 , 1989. The

Section 1341 scheme or artifice to defraud extended well beyond the

effective date of Section 1346.

Unlike mail fraud, conspiracy is a continuing offense. U nited

States v. Bermea

, 30 F.3d 1539, 1577 (5th Cir. 1994), cert. denied

,

---U.S.- --, 115 S.Ct. 1113, 130 L.Ed.2d 1077 (1995). The

conspiracy in this ca se straddled the effective date of Section

1346. Two of the alleged overt acts occurred before November 18,

1988; most of appellants’ criminal conduct, including the two

payments to Jack Giberson charged in the indictment as overt acts,

occurred after that date. Because there is “substantial” evidence

that appellants participated in the conspiracy after Section 1346

took effect, their prosecution under the honest services theory did

not violate the ex post facto clause. S ee Bermea

, 30 F.3d at 1577-

78 (5th Cir. 1994) (citation omitted) (affirming sentence imposed

under increased statutory maximum that took effect during

conspiracy). A ccord United States v. Garfinkel

, 29 F.3d 1253 (8th

Cir. 1994) (construing 18 U.S.C. § 1346).

C. Evidence Supporting the Honest Services Theory

Among numerous evidentiary challenges, appellants claim that

the facts adduced at trial were insufficient to support conviction

on the honest services theory. Because the jury may have relied on

that theory, appellants urge reversal of their convictions.6 In light of our resolution of Shanklin’s statute of

limitations a rgument, we need not address his claim that the

evidence was insufficient to support his conspiracy conviction.

16 There is no need for this court to decide whether the evidence

adequately supports the prosecution’s honest services theory. The

case was submitted to the jury on two alternative, legally valid

theories. If either theory was supported by sufficient evidence,

we are bound to affirm. Griffin , 502 U.S. at 56-60, 112 S.Ct. at

472-74, c ited in United States v. Fisher

, 22 F.3d 574, 576 (5t h

Cir. 1994). As we discuss in the next section, the evidence was

sufficient to support appellants’ convictions on the theory that

they schemed to obtain money or property through false means.

III. Sufficiency of the Evidence

All three appellants claim, on numero us grounds, that the

evidence was insufficient to sup port their convictions. Having

reviewed all of appellants’ insufficiency claims, we will discuss

only the least implausible; all are unpersuasive.

A. Count One: Conspiracy (Appellants Manges and Myers) 6

1. Common Scheme

Appellants claim that there w as no proof of the “essential

nature” of the alleged conspiracy. C f. United States v.

R osenblatt

, 554 F.2d 36, 42 (2d Cir. 1977) (dismissing the

indictment for lack of proof tha t the defendants conspired to

commit the same fraud). They assert that the evidence was

insufficient to show a coherent scheme to retain the lease to tract

350, particularly in light of the inconsistent stories they told

state officials to explain the tract’s failure to produce.17

The fact that the conspirators changed thei r account in the

face of official skepticism does not negate the existence of a

c onspiracy. The government’s explanation makes more sense. The

prosecution posited a conspiracy aime d at concealing appellants’

failure to fulfill the conditions of their lease:

Each co-conspirator had a role. McLester (who pleaded

guilty) furnished phony reports of production. Myers

encouraged McLester’s falsities, and was instrumental in

giving an aura of propriety to false documents that

helped convin ce GLO that the lease terms had been

satisfied. Shanklin contributed to Myers’ deceit by

preparing bogus reports and invoices reflecting work done

on State Tract 350 in intervals of less than 60 days.

. . . [A]nd Manges distributed the funds to help the coconspirators.

On the evidence, a rational jury could have found beyond a

reasonable doubt that the appellants were engaged in a scheme to

retain the lease by fraudulent means.

2. Intent: Foreseeability of the Use of the Mails

Conspiracy to commit mail fraud requires at least the level of

intent necessary for mail fraud itself. U nited States v. Sneed

, 63

F.3d 381, 385 (5th Cir. 1995) (internal citations omitted), cert.

denie d , ---U.S.---, 116 S.Ct. 712, 133 L.Ed.2d 667 (1996).

However, there is no specific intent requirement wi th respect to

the mailing element of mail fraud. United States v. Massey

, 827

F.2d 995, 1002 (5 th Cir. 1987). The test is one of reasonable

foreseeability: the prosecution need only prove that the

defendants “engaged in a scheme to defraud in which they

contemplated that the mails would likely be used.” Id.

The mailing at issue is the September 19, 1989, letter from

the GLO to Redfish Bay Operating Co., stating that the lease to7 In any event, the cases are easily distinguishable. B rumley

involved wire transfers of money from Lufkin, Texas, to Beaumont,

Texas. The panel found it unforeseeable to the defendant that

these transfers would be relayed through a Western Union computer

in Missouri. Absent a foreseeable interstate wire transmission,

the panel found that Brumley’s wire fraud conviction could not

stand. Here, in contrast, all that is required is a foreseeable

use of the mail. C ompare 18 U.S.C. § 1341 (ma il fraud) w ith 18

U.S.C. § 1343 (wire fraud).

18 tract 350 had been maintained. As the government points out, the

object of the conspiracy was to obtain a clean bill of health for

t ract 350. The GLO was in Austin; Myers and Jaffe were based in

San A ntonio, 75 miles away. The letter’s author, Pittman,

testified that the GLO routinely transacted business by mail.

Appellants contend that this ev idence is not enough. They

argue that since none of them was employed by the land office, they

could not have known that the GLO routinely transacted business

through the mail. They also claim that the distance between Austin

and San Antonio does not support the conclusion that the use of the

mails was foreseeable, especially in light of their own habits of

delivering documents by hand and traveling to Austin to do business

with the GLO.

Even if appellants’ argument were not implausible on its face,

the only precedent t hey cite in its behalf is the first panel

opinion in Brumley

. See United States v. Brumley (Brumley I) , 59

F.3d 517, 520-22 (5th Cir. 1995), opinion withdrawn and superseded

on reh’g , 79 F.3d 1430, 1432 (5th Cir. 1996) , opinion vacated and

reh’g en banc granted

, 91 F.3d 676 (5th Cir. 1996). Appellants

insist that the first Brumley opinion is still good law. They are

mistaken. 7 See 5 TH C IR

. R. 41.3; United States v. Pineda-Ortuno

, 95219

F.2d 98, 102 (5th Cir. 1992) (once rehearing e n banc is g ranted,

“panel decision is vacated and of no precedential value”).

We conclude that the jury could have found beyond a reasonable

doubt that use of the mail was reasonably foreseeable to

appellants.

B. Count Two: Mail Fraud (Myers and Shanklin)

1. False and Fraudulent Reports

Count Two is based in part on evidence that appellants

submitted false production reports, shut-in affidavits, and morning

field reports. Appellants contend that even if these documents

were false, they could not have been fraudulent because they were

not false with respect to “mater ial matters.” They rely on the

Supreme Court’s observation that to be “material,” a statement must

tend naturally “to influence, or [be] capable of influencing, the

decision of the decisionmaking body to which it is addressed.”

United States v. Gaudin

, 115 S.Ct. 2310, 2313, 132 L.Ed.2d 444

(1995) (internal citation and quotation marks omitted).

Assuming that materiality is an element of the mail fraud

c harged, it was satisfied in this case. It is self-evident that

documents fal sely informing the GLO that tract 350 had produced

oil, or had been reworked at timely intervals, would tend to

influence the GLO’s decision regarding the status of the lease.

Appellants insist that their statements were immaterial

because the amount of oil production falsely claimed was inadequate

to maintain the lease. In essence, they claim that their lies were

not big enough. They also claim that the lease had lapsed before20

the false documents were submitted. These arguments are belied by

the GLO letter itself; the jury could ha ve rationally concluded

that appellants’ false stat ements influenced, or had a natural

tendency to influence, the GLO’s determination that the lease had

been maintained.

2. Mailing in Furtherance

Myers and Shanklin claim that the evidence was insufficient to

prove that either of them cause d a mailing in furtherance of a

scheme to defraud. A defendant “causes” the mails to be used if he

“does an act with knowledge that the use of the mails will follow

in the ordinary course of business, or where such use can

reasonably be foreseen, even though not actually intended

. . . .”

Sneed

, 63 F.3d at 385 n.4 (quoting Pereir a v. United States , 347

U.S. 1, 8-9, 74 S.Ct. 358, 363, 98 L.Ed. 435 (1954)).

We find that the jury could rationally have concluded that

Myers was the driving force behind the effort to retain the lease

on tract 350; that he submitted a false affidavit to the GLO in a

plot to obtain written confirmation that the lease was still good;

a nd that Shanklin prepared false field reports to support Myers’

affidavits. It is reasonable to infer that the GLO would not have

mailed the confirmation letter of September 19, 1989, but for

appellants’ submission of these false documents. The GLO mailing

was reasonably foreseeable; indeed, it was a desired result of

appellants’ efforts.

IV. Motion to Sever

Each appellant claims that the district court committed21

reversible error by refusing to try him individually. S ee F ED

. R.

C RIM

. P. 14. We disagree.

As a rul e, defendants indicted together should be tried

together, particularly when they are charged in a common

conspiracy. Z afiro v. United States

, 506 U.S. 534, 537, 113 S.Ct.

933, 937, 122 L.Ed.2d 317 (1993); United States v. Stotts

, 792 F.2d

1318, 1321 (5th Cir. 1986); United States v. McCord

, 33 F.3d 1434,

1451-52 (5th Cir. 1994), cert. denied

, ---U.S.---, 115 S.Ct. 2558,

132 L.Ed.2d 812 (1995). Joint trials are not only more efficient

than separate trials but also more just, for they tend to avert

“the scandal and inequity of inconsistent verdicts.” Zafiro , 534

U.S. at 537, 113 S.Ct. at 937.

Where joi nder is initially proper, we review the district

court’s refusal to sever for abuse of discretion. S ee F ED

. R. C RIM

.

P. 8(b); McCord

, 33 F.3d at 1452 (quoting United States v.

Faulkner

, 17 F.3d 745, 758 (5th Cir.), cert. denied

, 115 S.Ct. 193,

130 L.Ed.2d 125 (1994)). To prevail, an appellant must show that:

(1) the joint trial prejudiced him to such an extent that

the district court could not provide adequate protection;

and (2) the prejudice outweighed the government’s

interest in economy of judicial administration.

McCord

, 33 F.3d at 1452 (quoting United States v. DeVarona

, 872

F.2d 114, 120-21 (5th Cir. 1989)).

Appellants’ claims of prejudice rest in part on the faulty

assumption that no conspiracy existed, or that n one was proven.

From that premise, each appellant complains that his trial was

polluted wi th evidence of his co-defendants’ misdeeds. Separate

trials would have obviated this taint. Of course, we already have8 The district court instructed the jury:

[T]he case of each defendant should be co nsidered

separately and individually. The fact that you may find

one or more of the accused guilty or not guilty of any of

the crimes charged should not control your verdict as to

any other crime or any other defendant. You must give

separate consideration to the evidence as to each

defendant.

22 det ermined that the evidence supported the jury’s determination

that a conspiracy existed. While the district court must guard

against undue prejudice, it need not protect conspirators from

evidence of their confederates’ acts in furtherance of their common

illegal aims.

Nevertheless, appellants raise several related contentions

which do not rest entirely on their refusal to believe that the

evidence of a conspiracy was sufficient. We address these claims

in turn.

A. Shanklin and Myers

Shanklin and Myers complain that they were prejudiced by the

evidence of Manges’ cash payments to Jack Giberson. They assert,

“No limiting instruction would suffice to cure such prejudice.” We

disagree. The district court specifically instructed the jury to

rea ch separate decisions on the guilt or innocence of each

defendant, based on the evidence with respect to that defendant

alone. 8 Cautionary instructions of precisely this sort have been

held “sufficient to cure any possibility of prejudice.” McCord

, 33

F.3d at 1452 (quoting Faulkner , 17 F.3d at 759).

Shanklin and Myers further claim that Manges was “very

unpopular” in San Antonio, where the trial was held. But there is9 See United States v. Harrelson

, 754 F.2d 1153, 1175 (5th Cir.

1985) (denying one defendant’s claim of prejudice based on her codefendant’s loathsome reputation as a hired killer), cert. denied

, 474 U.S. 908, 106 S.Ct. 277, 88 L.Ed.2d 241 (1985). Appellants’

claim is particularly unpersuasiv e because Myers chose to do

business wi th Manges, and Shanklin opted to falsify documents in

Myers’ behalf. As we observed in H arrelson

, “the circumstance that

one has chosen odious associates seems a dubious sword.” Id.

23 no hint in the record that Manges’ reputation in the community

resulted in any prejudice to his co-defendants. Shanklin and Myers

derive this argument from the transcript of voir dire

, in which

several potential jurors admitting having formed unfavorable

impressions of Manges. Having scoured the record, we are satisfied

that the district court removed any potential jurors whose negative

impressions of Manges might have colored their consideration of the

evidence. 9

Shanklin also claims that he was prejudic ed by being tried

jointly with Myers, whose role in the scheme was far greater than

his own. We have observed repeatedly that “a quantitative

disparity in the evidence is clearly insufficient in itself to

justify severance.” United States v. Pettigrew , 77 F.3d 1500 (5th

Cir. 1996) (internal quotation marks omitte d). S ee also United

States v. Rocha , 916 F.2d 219, 228 (5th Cir. 1990), cert. denied,

500 U.S. 934, 111 S.Ct. 2057, 114 L.Ed.2d 462 (1991).

The district court, through attentive management of voir dire

and appropriate cautionary instructions to the jury, minimized any

risk of undue prejudice to Shanklin and Myers. Shanklin and Myers

have failed to show that they were pr ejudiced “to such an extent

that the district court could not provide adequate protection.”1 0 Shanklin and Myers also claim that they suffered “prejudicial

spillover” from the use of the Addington tapes as evidence against

Manges on the dismissed bribery count. We reject this argument.

The jury was specifically instructed not to consider the tapes as

evidence against Shanklin and Myers. We have held that “the

pernicious effect [of spillover] . . . is best avoided by precise

instructions to the jury on the admissibility and proper uses of

the evidence introduced by the Government.” H arrelson

, 754 F.2d at

1175 (internal citation and quotation marks omitted).

1 1 On the last day of trial, outside the jury’s presence, Manges

proposed to call both Myers and Shanklin as witnesses. They

indicated that if called, they would invoke their right not

testify. The district court consequently refused to call them and

denied Manges’ renewed motion for severance. This was not an abuse

of discretion. “[T]he district court must balance any prejudice to

the defendant against the court’s inter est in judicial economy.”

United States v. Lopez

, 979 F.2d 1024, 1035 (5th Cir. 1992)

(citation omitted), cert. denied

, 508 U.S. 913, 113 S.Ct. 2349, 124

L.Ed.2d 258 (1993). Given the late hour, the inefficiency would

have been extreme; the testimony’s value was uncertain.

24 McCord , 33 F.3d at 1452 (citation omitted). 10

B. Manges

Manges claims that he was prejudiced in several ways by the

district court’s r efusal to grant a severance. First, Manges

claims that he was denied the exculpatory testimony of Shanklin and

Myers becaus e, as co-defendants, they exercised their Fifth

Amendment right not to testify. We do not agree.

Shanklin’s pre-trial offer to testi fy on Manges’ behalf was

conditioned upon a demand that he be tried first, and thus was not

unequivocal, as required by the fourth prong of the Broussard test.

See United States v. Broussard , 80 F.3d 1025, 1037 (5th Cir.) (to

establish prejudice from joint trial, defendant must show that codefendant would in fact testify if severance were granted), cert.

denied , ---U.S.---, 117 S.Ct. 264, 136 L.Ed.2d 189 (1996). 11

Second, Manges complains that the deni al of his severance25

motion exposed the jury to prejudicial testimony that McLester had

pleaded guilty in the alleged conspiracy. Counsel for Myers had

indicated that he would seek to impeach McLester’s credibility by

eliciting the fact that he had pleaded guilty and was awaiting

sentencing. The prosecution thus was allowed to elicit the

information first. Manges contends that at a separate trial, he

would not have proffered evidence of McLester’s plea, and that

consequently the prosecution would have been barred from doing so.

Although evidence of a co-conspirator’s conviction is

inadmissable as subst antive proof of a defendant’s guilt, it is

“admissible and commonly used for impeachment purposes.” U nited

States v. Leach

, 918 F.2d 464, 467 & n.4 (5th Cir. 1990) (citations

omitted), cert. denied

, 501 U.S. 1207, 111 S.Ct. 2802, 115 L.Ed.2d

976 (1991). L each recognized that the pro secution may elicit

evidence of a co-conspirator’s conviction to “blunt[] the sword of

anticipated impeachment by revealing the information first.” Id.

at 467 (internal citation and quotation marks omitted). See also

United States v. Valley

, 928 F.2d 130, 133 (5th Cir. 1991). In

this case, the district court cautioned the jury that the fact that

McLester had pleaded guilty related solely to his credibility, and

was not p roof of any other defendant’s guilt. The court did not

abuse its discretion by giving this instruction instead of granting

the more extreme remedy of severance.

We have reviewed Manges’ remaining contentions with respect to

his severance motion. We find them wholly meritless.

V. Jury Instructions26

Appell ants contend that reversal is warranted because the

district court erred in instructing the jury. W e review objectedto jury instructions for abuse of discretion, affording the

district court “substantial latit ude” to fashion its charge.

United States v. Gray

, 96 F.3d 769, 775 ( 5th Cir. 1996), c ert.

denied , ---U.S.---, ---S.Ct.----, 1997 WL 70921 (Mar. 17, 1997)

(No. 96-7763); United States v. Storm

, 36 F.3d 1289, 1294 (5th Cir.

1994), cert. denied

, ---U.S.---, 115 S.Ct. 1798, 131 L.Ed.2d 725

(1995). In the absence of a proper objection, we review for plain

error. See F ED

. R. C RIM

. P. 30, 52(b); Gray , 96 F.3d at 775.

A. Constructive Amendment of the Indictment

Appellants argue that b y mishandling the jury charge, the

district court constructively amended the indictment, in violation

of their rights under the Fifth and Sixth Amendments. S ee

generally United States v. Holley

, 23 F.3d 902, 912 (5th Cir.)

(defining constructive amendment) (citations omitted), cert.

denied , ---U.S.---, 115 S.Ct. 635, 130 L.Ed.2d 542 (1994); United

States v. Arlen

, 947 F.2d 139, 144 (5th Cir. 1991) (citation

omitted), cert. denied , 503 U.S. 939, 112 S.Ct. 1480, 117 L.Ed.2d

623 (1992).

This argument rests on the assertion that despite the

dismissal of the bribery count against Manges, the jury charge

contained “language tracking the elements” of bribery, as defined

in 18 U.S.C. § 666. This assertion is entirely unsupported by the

record. In reality, the district court omitted any reference to

the bribery statute. The court simply permitted the jury to27

consider two alleged cash payments to Jack Giberson as overt acts

in furtherance of the conspiracy. Contrary to appellants’

contentions, t he district court did not “broaden[] the possible

bases for conviction from [those] which appeared in the

indictment.” United States v. Miller , 471 U.S. 130, 138, 105 S.Ct.

1811, 1816, 85 L.Ed.2d 99 (1985) (emphasis omitted). Accordingly,

there was no constructive amendment.

B. Dismissal of the Bribery Count

Appellants also a rgue that the dismissal of the substantive

bribery count renders their conspiracy convictions infirm. They

reason that the jury may have convicted them of either conspiracy

to commit mail fraud or conspiracy to commit bribery. They assert

that a conspiracy conviction premised on the target offense of

bribery would be “improper” in light of Manges’ acquittal “on the

facts and law of the substantive offense of bribery under § 666.”

This argument is doubly flawed. First, the jury could not

possibly have convicted appellants of conspiracy to commit bribery.

The district court carefully instructed the jury to consider only

two offenses: mail fraud, and conspiracy to commit mail fraud. It

is immaterial that one object of the alleged scheme, to deprive

Texas citizens of their right to honest government services, bears

a passing resemblance to bribery. Second, appellants are

grievously misinformed if they believe that they cannot properly be

convicted of conspiracy once they or their co-defenda nt has been

acquitted of a related substantive offense. To be convicted of

conspiracy, defendants “need not

. . . have committed the crime1 2 Specifically, the court de fined “knowingly” to mean

“voluntarily and intentionally and not because of a mistake or

[accident].” The court defined “willfully” to mean “voluntarily

and purposely with the specific intent to do something the law

forbids. That is to say, with bad purpose either to disobey or

disregard the law.”

28 that was its object.” United States v. Duvall , 846 F.2d 966, 975

(5th Cir. 1988) (citing Braverman v. United States

, 317 U.S. 49,

53, 63 S.Ct. 99, 101, 87 L.Ed. 23 (1942)).

The district court held the evidence insufficien t to submit

the bribe ry count against Manges to the jury. This holding does

not provide Manges and his co-defendants an avenue of escape from

criminal liability for the distinct offense of conspiracy.

C. Good Faith Instruction

Shanklin claims that the district court erred by refusing to

instruct the jury tha t good faith is a defense. The government

argues--and Shanklin does not dispute--t hat the plain error

standard applies becau se of Shanklin’s failure to object as

required by F ED

. R. C RIM

. P. 30. S ee United States v. Adkins , 741

F.2d 744, 748 (5th Cir. 1984), cert. denied , 471 U.S. 1053, 105

S.Ct. 2113, 85 L.Ed.2d 478 (1985) (applying plain error standard to

jury instructions when requirements of Rule 30 are not met).

The district court admonished the jury that before convicting

any defendant, it must find that he acted “knowingly” and

“willfully.” The court defined both these concepts in terms of

intent. 12 The jury that convicted Shanklin of mail fraud thus could

not have believed that he participated in the scheme without the

requisite criminal intent, i.e.

, in good faith. There was no need29

for a good-faith instruction, and consequently no error, plain or

otherwise. Storm , 36 F.3d at 1294.

D. Supplemental Pinkerton Instruction

At th e conclusion of closing arguments, the district court

supplemented its jury charge with an instruction on co-conspirator

liability. S ee Pinkerton v. United States

, 328 U.S. 640, 66 S.Ct.

1180, 90 L.Ed. 1489 (1946). Myers and Shanklin appeal their mail

fraud convictions on the ground that this supplemental charge

departed from the procedures prescribed in F ED

. R. C RIM

. P. 30.

Specifically, they argue that the post-argument instruction allowed

the jury to consider a theory of criminal liability that defense

counsel had no opportunity to rebut. According to appellants, the

instruction thus d eprived counsel of the opportunity to

“intelligently argue the case to the jury.” Cf. United States v.

Mendoza , 473 F.2d 697 (5th Cir. 1973).

Appellants should have requested an opportunity to supplement

their closing arguments in the district court. They did not.

Appellants cannot claim that they were shortchanged an opportunity

to argue the Pinkerton issue when they never requested one.

The remaining challenges to appellants’ convictions do not

merit discussion. We next turn to their sentences.

VI. Sentencing

Appellants claim that the district court sentenced them under

the wrong section of the United States Sentencing Gui delines and

compounded its error by improperly enhancing their offense levels.

We reject these arguments for the reasons that follow.1 3 Each appellant was as signed the same offense level whether

he was convicted of one count or two. In sentencing Myers and

Shanklin, the district court grouped the conspiracy and mail fraud

counts as components of a common criminal scheme or plan. S ee

U.S.S.G. § 3D1.2(b). Consequently, neither Myers nor Shanklin

suffered an incremental increase in punishment as a result of his

second conviction. S ee U.S.S.G. § 3D1.3(a). Conversely, our

reversal of Shanklin’s conspiracy conv i ction does not require

resentencing on his mail fraud conviction; he would have received

the same offense level had he been convicted of mail fraud alone.

14 The pertinent subsection states:

If the offense involved an electe d official or any

official holding a high-level decision-making or sensitive position, increase by 8 levels.

U.S.S.G. § 2C1.7(b)(1)(B).

30 The applicable sentence range under the guidelines is based on

two variables: the offense level, which reflects the gravity of the

crime, and the defendant’s criminal history. S ee U.S

. S ENTENCING

G UIDELINES M ANUAL

, Ch. 5, Pt. A (Sentencing Table) (1994). The

guideline s provide that the base offense level for conspiracy in

violation of 18 U.S.C. § 371 is the same as the base offense level

for the substantive offense that was the conspiracy’s object.

U.S.S.G. § 2X1.1(a). Applying this section, the district court

assigned each appellant a base offense level of 10 pursuant to

U.S.S.G. § 2C1.7, which governs frauds that deprive the public of

its intangible right to the honest services of government

offic ials. 1 3 The district court then increased each appellant’s

offense level by 8, reflecting the court’s finding that the fraud

“involved[] giving a thing of value to a high level employee of the

General Land Office

. . . .” U.S.S.G. § 2C1.7(b)(1)(B). 1 4 Based

on appellants’ total offense level of 18 and their insignificant1 5 Myers and Shanklin had no prior convictions. Manges was

convicted of maki ng false statements to the Small Business

Administration with respect to an equipment purchase in 1959. The

d istrict court did not assign Manges any criminal history poi nts

based on this offense. See generally U.S.S.G., Ch. 4, Pt. A.

31 criminal records, 15 they were subject to a sentence range of 27 to

33 months. U.S.S.G., Ch. 5, Pt. A (Sentencing Table).

The court sentenced Manges to 27 month s in prison for

con spiracy. Myers was sentenced to concurrent 30-month prison

terms for conspiracy and mail fraud. Shanklin was sentenced to

concurrent 8 -month terms for conspiracy and mail fraud; the

district court held that his minor role in the offense justified a

downward departure from the applicable sentence range.

These sentences must be upheld unless the y were imposed in

violation of law, res ulted from an incorrect application of the

guidelines, or departed unreasonably from the applicable sentence

range. U

nited States v. Underwood

, 61 F.3d 306, 308 (5th C ir.

1995) (citing United States v. Matovsky

, 935 F.2d 719, 721 (5th

Cir. 1991) (citing 18 U.S.C. § 3742(e))). We review the district

court’s interpretation of the guidelines de novo and its underlying

factual findings for clear error. I d. (citing United States v.

Brown , 7 F.3d 1155, 1159 (5th Cir. 1993)).

Appellants claim that the district court erred by sentencing

them as if they had been convicted of conspiring to commit a fraud

involving public corruption. In their view, because no one can

tell whether the jury adopted the honest services theory, they

should have been sentenc ed under the less onerous guideline for

conspiring to defraud another of money or property. See U.S.S.G.32

§ 2F1.1 (base offense level of 6).

Appellants recognize that the guidelines empower the district

court to sentence them for the more serious of the two charged

conspiracies, provided that the distr ict court itself would have

convicted them on that basis. The guidelines provide that a

defendant convicted of a multiple-object conspiracy count should be

sentenced “as if the defendant had been convicted of a separate

count of conspiracy for each offense that the defendant conspired

to commit.” U.S.S.G. § 1B1.2(d). These hypothetical conspiracy

convictions should be grouped according to Chapter 3, Part D of the

guidelines, which gov erns multiple counts of conviction. I d.

,

commentary, note 4; see also United States v. Fisher

, 22 F.3d 574,

576 (5 th Cir. 1994). When multiple counts result from a common

scheme, they are deemed a single group and are assigned the offense

level for the most serious offense in the group. Fisher , 22 F.3d

at 576.

However, the operation of Section 1B1.2(d) is rest ricted by

its commentary, which cautions:

Particular care must be taken in applying subsection (d)

because there are cases in which the verdict or plea does

not establish which offense(s) wa s the subject of the

conspiracy. In such cases, subsection (d) should only be

applied with respect to an object offense alleged in the

conspiracy count if the court, were it sitting as a trier

of fact, would convic t the defendant of conspiring to

commit that object offense.

U.S.S.G. § 1B1.2(d), commentary, note 5. The district court’s

determination of the conspiracy’s object offense “should be

governed by a reasonable doubt standard.” Fisher , 22 F.3d at 577

(quoting U.S.S.G., app. C., amend. 75 (Nov. 1, 1989)).1 6 Appellan ts also claim that Section 1B1.2(d) and its

commentary are unconstitutional because they empower the district

court to usurp the jury’s fact-finding role. S ee U.S. C ONST

. amend.

VI. We disagree, essentially for the reasons stated in United

States v. Conley

, 92 F.3d 157 (3d Cir. 1996). “[T]here is no Sixth

Amendment right to jury sentencing, even where the sentence turns

on specific findings o f fact.” I d. at 166 (quoting McMillan v. Pennsylvania

, 477 U.S. 79, 92, 106 S.Ct. 2411, 2419, 91 L.Ed.2d 67

(1986) (internal citation omitted)). B ut see United States v.

Bush

, 70 F.3d 557 (10th Cir. 1995) (procedure authorized by Section

1B1.2(d) & note 5 violates Fifth and Sixth Amendments) ( dicta ).

33 The district court did not state whether it had concluded

beyond a reasonable doubt that appellants were guilty of conspiring

to commit mail fraud on the honest services theory. Nevertheless,

we believe that such a finding is imp licit in the district court

record. We have held that findings under Section 1B1.2(d) and note

5 may be either express or implied. S ee id. at 576 (5th Cir. 1994)

(citing United State v. McKinley , 995 F.2d 1020 (11th Cir. 1993),

cert. denied

, --- U.S. ---, 114 S.Ct. 1405, 128 L.Ed.2d 77 (1994)).

In the instant case, the district court held that the offense

“involved[] giving a thing of value to a high level employee of the

General Land Office . . . .” This finding is clear evidence that

in the view of the district court, the conspiracy at issue involved

a depr ivation of the public’s right to the honest services of a

state gover nment official. Frauds involving high-level public

officials are a subset of frauds involving public officials; the

district court’s finding in support of the 8-level enhancement thus

presupposes that appellants were guilty of conspiring to commit a

public corruption fraud. 16

Finally, appellants claim that even if Section 2C1.7 applies,

the district court erred by enhancing their offense level based on34

the involvement of a high-level p ublic official. U.S.S.G. §

2C1.7(b)(1)(B). This argument rests on appellants’ contentions

that the official, Jack Giberson, never retained any money in

connection with the oil lease and never exercised his authority to

benefit appellants’ inter ests. This argument is untenable; the

guidelines do not require proof that Giberson kept the money or

wielded his influence corruptly. Enhancement is appropriate if the

offense “involved

. . . any official holding a high-level decisionmaking or sensitive position . . . .” U.S.S.G. § 2C1.7(b)(1)(B).

It is undisputed that Giberson was a high-level decision-making

official, and the district court expressly found that the scheme

“involved” him. This finding is not clearly erroneous.

CONCLUSION

The judgment is REVERSED with respect to appellant Shanklin’s

conspiracy conviction, and count one against him is hereby

DISMISSED. The judgment of the district court as to appellants’

convictions and sentences is in all other respects AFFIRMED.