05-5531

U.S. v. Kaplan

1 UNITED STATES COURT OF APPEALS

2

3 FOR THE SECOND CIRCUIT 

4 

5 -------------

6

7 August Term 2006

8

9 Argued: November 7, 2006 Decided: April 11, 2007

10 Errata Filed: April 30, 2007)

11

12 Docket No. 05-5531-cr

13

14 --------------------------------------------------X

15

16 UNITED STATES OF AMERICA, 

17

18 Appellee,

19

20 - against -

21

22 SOLOMON KAPLAN

23 Defendant-Appellant.

24

25 --------------------------------------------------X

26

27 Before: FEINBERG, LEVAL, and CABRANES, Circuit Judges.

28

29 Appeal from a judgment of conviction, entered following a

30 jury trial in the United States District Court for the Southern

31 District of New York (Batts, J.), on all seven counts of an

32 indictment charging conspiracy, mail fraud, wire fraud, making

33 false statements in connection with health care matters, health

34 care fraud, witness tampering, and making false statements to the

35 FBI. 

36

37 Affirmed in part, vacated in part, and remanded. 

38

39 ZACHARY MARGULIS-OHNUMA, New York, New York, for

40 Defendant-Appellant

41

42 MIRIAM E. ROCAH, Assistant United States

43 Attorney, (Michael J. Garcia, United States

44 Attorney, Timothy Treanor and Jonathan S.

45 Kolodner, Assistant United States Attorneys,

46 on the brief), United States Attorney’s
1 The indictment alleged that the objects of the conspiracy

were mail fraud, wire fraud, making false statements relating to

health care matters, health care fraud, and witness tampering.

-2-

1 Office for the Southern District of New

2 York, for Appellee.

3 FEINBERG, Circuit Judge:

4 Solomon Kaplan appeals from a judgment of conviction,

5 entered following a jury trial in the United States District

6 Court for the Southern District of New York (Batts, J.), on all

7 seven counts of an indictment charging Kaplan’s participation in

8 an insurance fraud scheme (Counts One through Five) and Kaplan’s

9 interference with an investigation into that scheme (Counts Six

10 and Seven). Specifically, the indictment charged Kaplan with one

count of conspiracy1 11 in violation of 18 U.S.C. § 371 (Count One);

12 two counts of mail fraud in violation of 18 U.S.C. §§ 1341 and 2

13 (Counts Two and Three); one count of making false statements in

14 connection with health care matters in violation of 18 U.S.C. §§

15 1035 and 2 (Count Four); one count of health care fraud in

16 violation of 18 U.S.C. §§ 1347 and 2 (Count Five); one count of

17 witness tampering in violation of 18 U.S.C. §§ 1512(b) and 2

18 (Count Six); and one count of making false statements to an agent

19 of the Federal Bureau of Investigation (“FBI”) in violation of 18

20 U.S.C. § 1001 (Count Seven). 

21 On appeal, Kaplan’s principal contentions are that (I) his

22 conviction on the insurance fraud counts (Counts One through
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1 Five) must be vacated because the district court erred in

2 admitting (A) lay opinion testimony regarding his knowledge of

3 the fraud and (B) testimony concerning others’ knowledge of the

4 fraud and (II) his conviction on the interference counts (Counts

5 Six and Seven) must be vacated because (A) the district court’s

6 jury instruction on Count Six was erroneous in light of the

7 Supreme Court’s supervening decision in Arthur Andersen LLP v.

8 United States, 544 U.S. 696 (2005); (B) the district court

9 improperly gave a conscious avoidance jury instruction on Count

10 Six; and (C) variance between a bill of particulars and proof at

11 trial concerning Count Seven constituted a constructive amendment

12 of the indictment or a prejudicial variance.

13 For the reasons set forth below, we agree that Kaplan’s

14 conviction on Counts One through Five must be vacated because the

15 district court erred in admitting, without adequate foundation,

16 lay opinion testimony regarding Kaplan’s knowledge of the fraud

17 and testimony regarding others’ knowledge of the fraud, and that

18 at least the first of these errors was not harmless. However, we

19 affirm his conviction on Counts Six and Seven because these

20 evidentiary errors were harmless as to those counts, which relied

21 on strong independent evidence of the crimes charged in those

22 counts, and because we find no merit in Kaplan’s other arguments

23 on appeal. The case is remanded for further proceedings

24 consistent with this opinion.
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1 BACKGROUND

2 Viewed in the light most favorable to the Government, see

3 Jackson v. Virginia, 443 U.S. 307, 318-19 (1979), the evidence

4 showed the following. 

5 Josef Sherman, a medical doctor, and his brother, Yevgeny

6 Sherman, operated a medical clinic in Brooklyn, New York (the

7 “Clinic”). The Clinic hired “runners” to recruit patients by

8 staging automobile accidents and identifying individuals who had

9 been in legitimate accidents but were willing to exaggerate their

10 injuries. At the Clinic, these accident participants received

11 unnecessary treatment for their feigned injuries and were

12 compensated with a kickback. The Clinic then submitted

13 fraudulent insurance claims for medical expenses to collect money

14 under New York State’s no-fault insurance law.

15 The accident participants were also referred to a

16 cooperating law office, which submitted on the participants’

17 behalf false or inflated insurance claims for bodily injury.

18 From January 2000 until July 30, 2001, most of the Clinic’s cases

19 were referred to a law office (the “Law Office”) operated in the

20 name of Alexander Galkovich, a lawyer hired by the Shermans and

21 their associate Gennady “Gene” Medvedovsky to serve as counsel of

22 record in the referred cases. The accident participants signed

23 a retainer agreement providing that the Law Office received one24 third of any insurance settlement as well as expenses.
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1 Medvedovsky, although not an attorney, managed the Law Office on

2 behalf of the Shermans through a management company called

3 Starlin Executive Management. Galkovich paid almost all of the

4 proceeds he received from the insurance company settlements to

5 Starlin Management, and received $1,000 per week as salary and

6 occasional bonuses. The Shermans and Medvedovsky extracted the

7 insurance proceeds from the law office principally by submitting

8 to Starlin Management fraudulent bills from fictitious entities

9 or by paying themselves salaries from Starlin Management. 

10 By 2001, the Law Office had more than 3,000 active cases,

11 and was receiving approximately 80 to 200 new cases per month, a

12 significant portion of which came from the Sherman Clinic.

13 Approximately five to 10 percent of the cases at the Law Office

14 resulted from staged accidents, and 60 to 70 percent of the cases

15 involved clients who exaggerated or faked the injuries.

16 In July 2001, Galkovich was arrested by the FBI and charged

17 with filing false and fraudulent claims and coaching clients to

18 lie to the insurance companies. Because Galkovich thus stood to

19 lose his law license, the Shermans and Medvedovsky sought a

20 replacement to serve as attorney-of-record in the fraudulent

21 cases. They settled on Kaplan, with whom they were familiar

22 because a few of the Clinic’s cases had previously been referred

23 to him. An employee of the Clinic, Alexander Burman, testified

24 that the cases referred to Kaplan were those that had been
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1 rejected by other lawyers because they were considered too

2 obviously fraudulent. 

3 In September 2001, Kaplan began representing 1,200 of

4 Galkovich’s 3,000 clients. The Shermans and Medvedovsky, worried

5 that the transfer of all 3,000 cases from Galkovich to Kaplan

6 would look suspicious, arranged for Kaplan to formally purchase

7 the law firm from Galkovich. To make the deal appear legitimate,

8 they hired a lawyer to draft a contract and conduct a closing,

9 and Kaplan wrote several checks to Galkovich totaling $50,000,

10 including a $20,000 check at the closing. But at least some of

11 the money came from the Shermans and Medvedovsky and was later

12 returned to them by Galkovich. Thus, the Shermans and

13 Medvedovsky essentially bought the Law Office from themselves,

14 but structured the transaction to look as if Kaplan had bought it

15 from Galkovich. 

16 Galkovich testified that on the way to the closing in

17 October 2001, Kaplan and Galkovich discussed the sale of the Law

18 Office, and Kaplan stated that “he had handled cases like this

19 before,” which Galkovich understood to mean that Kaplan had

20 previously handled fake accident cases.

21 The Law Office continued to operate much as it had before,

22 with Kaplan now formally representing almost all of Galkovich’s

23 3000 clients. Medvedovsky and others, including Emik Aguronov,

24 who was responsible for drafting false medical narratives to be
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1 submitted to insurance companies on behalf of clients seeking

2 settlements, remained. Medvedovsky formed a new entity called

3 Prostaff Support Services, Inc., which performed the same

4 functions that Starlin Management had. From October 2001 through

5 March 2002, the Law Office had revenues of approximately

6 $892,000. The proceeds of the fraud were transferred to

7 Medvedovsky and the Shermans through Prostaff, which was paid

8 over $100,000 per month to “manage” the Law Office. Kaplan

9 received approximately $74,000 in payments from the Law Office.

10 Kaplan, the Shermans, and Medvedovsky all agreed that Kaplan

11 would stay away from the Law Office and appear only to sign

12 checks and for essential meetings. A photograph of Kaplan’s

13 office at the Law Office, Kaplan’s appointment book, and the

14 testimony of FBI Special Agent Rothe revealed that Kaplan was

15 rarely present at the Law Office. 

16 Following the sale of the Law Office to Kaplan, Galkovich

17 began cooperating with the FBI. Between approximately December

18 27, 2001 and February 22, 2002, Galkovich recorded his

19 conversations with the Shermans, Medvedovsky, and Kaplan on

20 approximately 10 separate occasions. In addition to general

21 discussions about the operations of the Law Office, the

22 conversations recorded by Galkovich detailed the efforts by the

23 Shermans, Medvedovsky, and Kaplan to prevent Galkovich from

24 cooperating with law enforcement authorities in its investigation
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1 of the Sherman Clinic and the Law Office. Specifically, after

2 Galkovich informed his co-conspirators that he had been arrested

3 and that the FBI had inquired about the Shermans, a meeting was

4 arranged with Galkovich on January 8, 2002. Medvedvosky told

5 Galkovich that the purpose of the meeting was to “sit down and

6 decide everything” about Galkovich’s case. Josef Sherman and

7 Gene Medvedovsky initially met with Galkovich alone and

8 questioned him about the statement he had given to the FBI at the

9 time of his arrest. Later, at Galkovich’s request, Kaplan joined

10 the meeting, and Galkovich told Kaplan that they needed to

11 discuss the “transition of my practice to yours” and “this thing

12 that I’m going to need for . . . possibly for court or possibly

13 for the Disciplinary Committee.” Medvedovsky, Sherman, and

14 Kaplan suggested a variety of false stories to explain the Law

15 Office transfer. 

16 In March 2002, Kaplan, the Shermans, and Medvedovsky were

17 arrested by the FBI. Immediately following his arrest, Kaplan

18 agreed to be interviewed by the FBI. During that interview,

19 Kaplan made a number of statements that the Government contends

20 were false, including that in August 2001 he was introduced to

21 Galkovich and Medvedovsky by a Vladimir Scheckman; that, as part

22 of his purchase of the Law Office, he was to receive only 1,000

23 files; that he did not recall who gave him the $20,000 check used

24 to purchase the Law Office; that the Law Office was sold to him
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1 for $120,000; that he was assured by Medvedovsky and Galkovich

2 that the charges against Galkovich “meant nothing because

3 Galkovich had done nothing wrong”; that he “just stopped by” the

4 January 8 meeting between Galkovich, Medvedovsky, and Sherman

5 without planning in advance to participate; and that he did not

6 take the conversation on January 8 “seriously” and they were just

7 “joking around.” 

8 In August 2002, Josef Sherman, Eugene Sherman, and

9 Medvedovsky pled guilty to a three-count information charging

10 them with conspiracy, mail fraud, and witness tampering. Kaplan

11 was tried on the seven-count indictment against him described

12 above. After an approximately two-week trial, the jury found

13 Kaplan guilty on all counts. In August 2005, the district court

14 sentenced Kaplan principally to 27 months of imprisonment, three

15 years of supervised release, and $200,000 in restitution, but

16 granted bail pending appeal pursuant to 18 U.S.C. § 3143(b). 

17 This appeal followed.

18

19 DISCUSSION

20 I. Counts One through Five: The Insurance Fraud Scheme

21 Turning first to the insurance fraud counts (Counts One

22 through Five), Kaplan argues on appeal, among other things, that

23 his conviction must be vacated because the district court erred

24 in admitting (A) lay opinion testimony regarding his knowledge of
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1 the fraud and (B) testimony concerning others’ knowledge of the

2 fraud. We consider each of his arguments in turn.

3 A. Admission of Galkovich’s lay opinion testimony

4 The first issue before us concerns the district court’s

5 admission of lay opinion testimony regarding Kaplan’s knowledge

6 of the fraud. Kaplan principally objects to two colloquies in

7 which Galkovich recounted a conversation he and Kaplan had as

8 they drove together to the meeting in October 2001 to finalize

9 the sale of the Law Office to Kaplan. After describing the

10 conversation, Galkovich was allowed to offer his lay opinion

11 testimony regarding Kaplan’s knowledge of the fraud. First, on

12 direct examination, Galkovich testified as follows:

13 [Prosecutor]: Did you have any discussions in the car

14 ride on the way to Davis’ office?

15

16 [Galkovich]: Yes. It was actually the first time we

17 really talked, me and Solomon Kaplan. And I asked him,

18 What do you do? What kind of work do you do? Are you

19 familiar with car accident cases, with the process of

20 settlement and what it takes to settle? And he

21 explained, yes he has handled cases like this before.

22 Yes, he has settled cases before.

23

24 . . . .

25

26 He explained that he has experience with these kinds of

27 cases.

28

29 [Prosecutor]: What did you understand him to mean when

30 he said “these kinds of cases”?

31

32 [Defense Counsel]: Objection.

33

34 The Court: I will allow it.

35
1 The two colloquies quoted above are hereafter frequently

referred to as “Galkovich’s lay opinion testimony.”

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1 [Galkovich]: That he understood that these were car

2 accident cases where people exaggerated their injuries,

3 where it was crucial to have a narrative report that

4 exaggerated the injuries, that these reports were bought

5 for the best of prices to get the best of reports and

6 that you could settle these cases for very good money in

7 a short period of time.

8

9 Joint Appendix (“JA”) 104-05. Then, on redirect, Galkovich

10 elaborated: 

11 [Prosecutor]: What happened in this conversation?

12

13 [Galkovich]: I asked him what experience he had with the

14 car accident cases and generally what kind of experience

15 he had, and he told me that he knew about these car

16 accidents, he knew how to handle these cases, he knew

17 how to maximize potential recoveries, and what is

18 supposed to be in the files, how they are supposed to be

19 worked up.

20

21 [Prosecutor]: What was your purpose in asking Kaplan

22 this question?

23

24 [Galkovich]: I wanted to know how much he knew about the

25 fraudulent office that he is participating in.

26

27 [Prosecutor]: And after you got this answer from Mr.

28 Kaplan, what did you think?

29

30 [Galkovich]: I think he knew exactly what he was getting

31 into.

32

JA 138-39.1 33

34 We review a district court’s decision to admit evidence,

35 including lay opinion testimony, for abuse of discretion. See

36 United States v. Yuri Garcia, 413 F.3d 201, 210 (2d Cir. 2005)

37 (citing Old Chief v. United States, 519 U.S. 172, 174 n.1
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1 (1997)). “A district court ‘abuses’ or ‘exceeds’ the discretion

2 accorded to it when (1) its decision rests on an error of law

3 (such as application of the wrong legal principle) or a clearly

4 erroneous factual finding, or (2) its decision -- though not

5 necessarily the product of a legal error or a clearly erroneous

6 factual funding -- cannot be located within the range of

7 permissible decisions.” Zervos v. Verizon N.Y., Inc., 252 F.3d

8 163, 169 (2d Cir. 2001) (footnotes omitted).

9 The Federal Rules of Evidence, in a sharp departure from the

10 common law, see Asplundh Mfg. Div. v. Benton Harbor Eng'g, 57

11 F.3d 1190, 1195 (3d Cir. 1995) (Becker, J.), permit lay witnesses

12 to testify in the form of opinions to address a problem

13 identified by Judge Learned Hand many years ago: 

14 Every judge of experience in the trial of causes has

15 again and again seen the whole story garbled, because of

16 insistence upon a form with which the witness cannot

17 comply, since, like most men, he is unaware of the

18 extent to which inference enters into his perceptions.

19 He is telling the ‘facts’ in the only way that he knows

20 how, and the result of nagging and checking him is often

21 to choke him altogether, which is, indeed, usually its

22 purpose. 

23

24 Central R.R. Co. of N.J. v. Monahan, 11 F.2d 212, 214 (2d Cir.

25 1926); see also Yuri Garcia, 413 F.3d at 211 (“eyewitnesses

26 sometimes find it difficult to describe the appearance or

27 relationship of persons, the atmosphere of a place, or the value

28 of an object by reference only to objective facts”).

29 Accordingly, Rule 701 of the Federal Rules of Evidence was
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1 adopted “to accommodate and ameliorate these difficulties by

2 permitting lay witnesses, in appropriate circumstances, to

3 testify in language with which they are comfortable.” 4 Jack B.

4 Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence §

5 701.02 (Joseph M. McLaughlin ed., 2d ed. 2004).

6 But to ensure that lay opinion testimony is reliable and

7 does not usurp the jury’s role as fact-finder, Rule 701 imposes

8 certain foundation requirements that must be satisfied if such

9 testimony is to be admitted:

10 If the witness is not testifying as an expert, the

11 witness’ testimony in the form of opinions or inferences

12 is limited to those opinions or inferences which are (a)

13 rationally based on the perception of the witness, (b)

14 helpful to a clear understanding of the witness’

15 testimony or the determination of a fact in issue, and

16 (c) not based on scientific, technical, or other

17 specialized knowledge within the scope of Rule 702.

18 Fed. R. Evid. 701 (2001). In interpreting these requirements, we

19 have observed that (a) the rational-basis requirement “is the

20 familiar requirement of first-hand knowledge or observation,”

21 United States v. Rea, 958 F.2d 1206, 1215 (2d Cir. 1992) (quoting

22 Fed. R. Evid. 701 advisory committee’s note on 1972 Proposed

23 Rules); (b) the helpfulness requirement is principally “designed

24 to provide assurance[] against the admission of opinions which

25 would merely tell the jury what result to reach,” id. (quoting

26 Fed. R. Evid. 704 advisory committee’s note on 1972 Proposed

27 Rules); and (c) the “not based on specialized knowledge”

28 requirement requires that “a lay opinion must be the product of
2 In 2000, after Rea was decided, Rule 701 was amended to

include 701(c). 

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1 reasoning processes familiar to the average person in everyday

life,” Yuri Garcia, 413 F.3d at 215.2 2 See also Fed. R. Evid. 701

3 advisory committee’s note on 2000 amendments.

4 The government’s evidence failed to demonstrate that

5 Galkovich’s lay opinion testimony was “rationally based on the

6 perception of the witness.” Fed R. Evid. 701(a). We note that

7 Rule 701(a) requires that lay opinion testimony be both (a) based

8 on the witness’s first-hand perceptions and (b) rationally

9 derived from those first-hand perceptions. 

10 As to the first of these requirements, Rule 701(a) reflects,

11 in part, the Rules’ more general requirement that “[a] witness

12 may not testify to a matter unless evidence is introduced

13 sufficient to support a finding that the witness has personal

14 knowledge of the matter.” Fed. R. Evid. 602; see also United

15 States v. Durham, 464 F.3d 976, 982 (9th Cir. 2006) (“opinion

16 testimony of lay witnesses must be predicated upon concrete facts

17 within their own observation and recollection -- that is facts

18 perceived from their own senses, as distinguished from their

19 opinions or conclusions drawn from such facts” (internal

20 quotation marks omitted)). When Galkovich was asked to

21 articulate the basis for his opinion, he answered, “I based it on

22 the only thing I could base it on, which is my experience there,
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1 what people said about [Kaplan], my conversation with [Kaplan],

2 everything that I [had] been involved in. That’s what my opinion

3 could be based on.” JA 140. Although Galkovich asserts that his

4 testimony was based in part on first-hand experience --

5 principally his prior experiences at the Law Office and his

6 conversation with Kaplan -- his response was extremely vague.

7 Thus, Galkovich’s testimony failed to show that his opinion as to

8 Kaplan’s knowledge was rationally based on facts he had observed.

9 We are therefore unable to conclude, as we must under Rule

10 701, that the opinion he offered was rationally based on his own

11 perceptions. See Rea, 958 F.2d at 1216 (“When a witness has not

12 identified the objective bases for his opinion, the proffered

13 opinion obviously fails completely to meet the requirements of

14 Rule 701 . . . because there is no way for the court to assess

15 whether it is rationally based on the witness's perceptions . .

16 . .”). We applied this requirement to similar facts in Rea, and

17 observed that lay opinion testimony regarding a defendant’s

18 knowledge will, in most cases, only satisfy the rationally-based

19 requirement if the witness has personal knowledge of one or more

20 “objective factual bases from which it is possible to infer with

21 some confidence that a person knows a given fact . . .

22 includ[ing] what the person was told directly, what he was in a

23 position to see or hear, what statements he himself made to

24 others, conduct in which he engaged, and what his background and
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1 experience were.” 958 F.2d at 1216. Because the Government did

2 not lay an adequate foundation, Galkovich’s testimony expressing

3 his opinion as to Kaplan’s knowledge was not admissible. 

4 Accordingly, having found that Galkovich’s lay opinion

5 testimony does not satisfy Rule 701, we conclude that the

6 district court erred in admitting it. 

7 B. Admission of Galkovich’s additional testimony regarding

8 his and others’ knowledge

9

10 Kaplan asserts that it was error for the district court to

11 admit Galkovich’s additional testimony regarding Galkovich and

12 others’ knowledge of the fraud as circumstantial evidence of

13 Kaplan’s knowledge. Specifically, Galkovich was permitted to

14 testify that (1) when he first saw the building in which the Law

15 Office was located, he thought, “[t]his is where I am going to

16 get arrested,” JA 84; (2) everyone he spoke with told him not to

17 buy the Law Office, JA 87; (3) the fraud was “done very subtly”

18 because “this whole industry was a very big sham and it was big

19 lies,” JA 90; (4) the fraud was not discussed explicitly because

20 it was “kind of like . . . hear no evil, see no evil,” and he was

21 warned to “be very careful in what you say,” JA 94; (5)

22 “[e]veryone knew what was going on, but you don’t say it,” JA 94;

23 (6) at a Christmas party at the Law Office, Eugene Sherman read

24 a poem about clients getting paid for sham injuries, JA 97; and

25 (7) Steven Rosenberg, a lawyer at the Law Office, quit because he
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1 saw a file with “blatant” fraud, JA 116-19, and Michael Brummer,

2 another lawyer at the Law Office, was “very sensitive and nervous

3 about what was going on in the office” and was “always very

4 nervous when we were skirting the issue of fraud,” JA 119-21. 

5 As previously noted, we review a district court’s

6 evidentiary rulings for abuse of discretion. See Yuri Garcia,

7 413 F.3d at 210 (citing Old Chief, 519 U.S. at 174 n.1). Kaplan

8 argues that the district court abused its discretion because the

9 evidence was irrelevant and should have been excluded under Fed.

10 R. Evid. 402 or, in the alternative, that its probative value was

11 substantially outweighed by the danger of unfair prejudice and

12 should have been excluded under Fed. R. Evid. 403. The

13 Government argues that the testimony was relevant to the question

14 of whether Kaplan was aware of the fraud because evidence that

15 the fraud was obvious and widely-known tended to make it more

16 probable that Kaplan also knew about it. As the prosecutor

17 argued to the jury, “[Kaplan] had to know. Everybody else did.”

18 The parties vigorously dispute which of two precedents --

19 United States v. Patrisso, 262 F.2d 194 (2d Cir. 1958), and

20 United States v. Schultz, 333 F.3d 393 (2d Cir. 2003) -- controls

21 this case. In Patrisso, a truckload of television tubes was

22 hijacked; Patrisso, who knew they were stolen, sold them to

23 Ellis, who also knew; Ellis, in turn, sold them to Postrel;

24 finally, Postrel sold 1,000 of them to defendant Mankes. 262
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1 F.2d at 196. We reversed Mankes’s conviction, finding that the

2 district court had erred by, inter alia, allowing the Government

3 to introduce Postrel’s knowledge of the theft without evidence

4 that Postrel, or anyone else, had communicated that fact to

5 Mankes. Id. at 197. Over four decades later, in Schultz, we

6 distinguished Patrisso in upholding the admission of testimony

7 regarding other individuals’ knowledge of a particular Egyptian

8 law to prove the defendant’s knowledge of the law, finding that

9 it was “relevant both to explain the practice of the industry in

10 which this prosecution arose and to establish what someone with

11 [defendant’s] extended background in the industry probably would

12 know.” 333 F.3d at 416 (quoting United States v. Leo, 941 F.2d

13 181, 197 (3d Cir. 1991)). 

14 We believe that Patrisso and Schultz, though they reach

15 different outcomes, stand for the same principle: evidence

16 regarding the knowledge of individuals other than the defendant

17 should be admitted only if there is some other evidence in the

18 record -- concerning, for example, the nature of the fraud or the

19 relationship of the parties -- from which to conclude that the

20 defendant would have the same knowledge. Indeed, the Schultz

21 court noted that the principal difference between the two cases

22 was the nature of the knowledge involved: Schultz was likely to

23 have the same knowledge, the defendant in Patrisso wasn’t. 333

24 F.3d at 416. What of Kaplan? 
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1 We turn first to relevance. Relevant evidence includes any

2 “evidence having any tendency to make the existence of any fact

3 that is of consequence to the determination of the action more

4 probable or less probable than it would be without the evidence.”

5 Fed. R. Evid. 401; see also Fed. R. Evid. 402. “Implicit in that

6 definition are two distinct requirements: (1) [t]he evidence must

7 be probative of the proposition it is offered to prove, and (2)

8 the proposition to be proved must be one that is of consequence

9 to the determination of the action.” United States v. Diaz, 878

10 F.2d 608, 614 (2d Cir. 1989). As the Supreme Court has observed,

11 “[t]he Rules’ basic standard of relevance . . . is a liberal

12 one.” Daubert v. Merrell Dow Pharms., 509 U.S. 579, 587 (1993).

13 Despite this liberal standard, we think this evidence had little

14 relevance in the circumstances of Kaplan’s case. Evidence of

15 others’ knowledge would have been highly relevant had it been

16 supplemented by evidence supporting the conclusion that such

17 knowledge was communicated to Kaplan, or that Kaplan had been

18 exposed to the same sources from which these others derived their

19 knowledge of the fraud. In the absence of such evidence, the

20 relevance of others’ knowledge was at best minimal in proving

21 Kaplan’s knowledge.

22 Nor does our inquiry end there -- even as to evidence that

23 is plainly relevant, the trial judge retains discretion to

24 exclude the evidence “if its probative value is substantially
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1 outweighed by the danger of unfair prejudice.” Fed. R. Evid.

2 403. This evidence was of minimal probative value for two

3 reasons. First, as noted, the Government failed to offer

4 evidence that would connect the third parties’ knowledge of the

5 fraud to Kaplan. Under the Government’s own theory of the case,

6 Kaplan spent very little time at the law office and reviewed very

7 few claims directly. Moreover, the Government proffered no

8 evidence that anyone who allegedly was aware of the fraudulent

9 scheme actually had communicated his knowledge to Kaplan. In

10 fact, Galkovich testified that the participants in the fraud were

11 careful not to speak openly about the fraudulent nature of the

12 injury claims: he testified that clients did not directly admit

13 to the firm that their accidents were staged, but rather that

14 “generally it was done very subtly,” and that he did not have

15 explicit conversations about the fraud with clients or other

16 people in the office “because you don’t want to get in trouble .

17 . . It is kind of like, you know, hear no evil, see no evil. . .

18 . Everyone knew what was going on, but you don’t say it.” This

19 was not an office where the illegal nature of the business was

20 necessarily visible and audible to everyone who worked there. In

21 that sense, we think this case is more analogous to Patrisso than

22 to Schultz: as in Patrisso, the Government failed to offer

23 evidence that would explain how defendant Kaplan would have

24 obtained the third parties’ knowledge of the criminal scheme.
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1 Second, much of the testimony concerning knowledge of the

2 fraud was so speculative or flawed in other respects that it had

3 little or no probative value. For example, the Government did

4 not lay a proper foundation for Galkovich’s statement that it was

5 “[his] understanding that this whole business was very very --

6 this whole industry was a very big sham and it was big lies”;

7 Galkovich was not qualified as one having special knowledge of

8 the personal injury “industry,” so it is difficult to see how

9 Galkovich had sufficient knowledge of the industry to testify

10 competently on its criminal nature. See Fed. R. Evid. 602 (“A

11 witness may not testify to a matter unless evidence is introduced

12 sufficient to support a finding that the witness has personal

13 knowledge of the matter.”); Woodman v. WWOR-TV, Inc., 411 F.3d

14 69, 86-87 (2d Cir. 2005) (affirming district court’s decision to

15 exclude plaintiff’s testimony that her age was “well known

16 throughout the industry” on ground that plaintiff was “hardly

17 competent to testify to how others in the broadcast community

18 perceived her age” (citing Fed. R. Evid. 602)). Galkovich’s

19 testimony concerning the alleged knowledge of Rosenberg, another

20 lawyer in the office, was hearsay upon hearsay; Rosenberg

21 allegedly made statements to a secretary in the office, who

22 allegedly told Galkovich, who offered the jury the conclusion

23 that Rosenberg had quit his job because of fraud. Cf. Brown v.

24 Keane, 355 F.3d 82, 90 (2d Cir. 2004) (“An assertion of fact
-22-

1 based on conjecture and surmise, to which the declarant would not

2 be allowed to testify if called to the witness box, does not

3 become admissible under an exception to the hearsay rule . . .

4 .”). 

5 We conclude, furthermore, that this limited probative value

6 is substantially outweighed by the risk of unfair prejudice.

7 Although relevant evidence is always prejudicial to one side, we

8 conclude that the risk of unfair prejudice here -- in particular,

9 the likelihood that jurors would render a decision on an improper

10 basis by giving this testimony undue weight or improperly holding

11 Kaplan liable because they believed he should have known of the

12 fraud -- was great. The jury was required to draw a series of

13 inferences, unsupported by other evidence, to connect Galkovich’s

14 testimony about his guilty knowledge (and that of others) to

15 Kaplan’s own knowledge, the ultimate issue in the case. Under

16 the circumstances, the District Court should have concluded that

17 whatever slight probative value the testimony might have had was

18 outweighed by the risk that the jury would draw improper

19 inferences from the testimony. Cf. United States v. Ravich, 421

20 F.2d 1196, 1204 n.10 (2d Cir. 1970) (Friendly, J.) (“The length

21 of the chain of inferences necessary to connect the evidence with

22 the ultimate fact to be proved necessarily lessens the probative

23 value of the evidence, and may therefore render it more

24 susceptible to exclusion as unduly confusing, prejudicial, or
-23-

1 time-consuming . . . .”). Moreover, Galkovich’s testimony that

2 the entire industry in which Kaplan operated was “a very big sham

3 and it was big lies” was so inflammatory that it should have been

4 excluded as prejudicial under the circumstances. Furthermore,

5 the likelihood of prejudice was increased by the government’s

6 improper use of the evidence of others’ knowledge. In summation,

7 the prosecutor argued, “[Kaplan] had to know. Everybody else

8 did.” As noted, the evidence did not support any such inference.

9 Accordingly, with respect to Galkovich’s testimony regarding

10 his and others’ knowledge of the fraud, we conclude that the risk

11 of unfair prejudice substantially outweighed the limited

12 probative value, and hold that the district court erred in

13 receiving this evidence. 

14 C. Harmless error analysis

15 We will reverse on account of these evidentiary errors only

16 if they affect “substantial rights.” See Fed. R. Crim. P. 52(a);

17 Fed. R. Evid. 103(a); Yuri Garcia, 413 F.3d at 210. In Kotteakos

18 v. United States, the Supreme Court set forth the analysis for

19 determining whether a non-constitutional error is harmless:

20 If, when all is said and done, the conviction is sure

21 that the error did not influence the jury, or had but

22 very slight effect, the verdict and the judgment should

23 stand, except perhaps where the departure is from a

24 constitutional norm or a specific command of Congress .

25 . . . But if one cannot say, with fair assurance, after

26 pondering all that happened without stripping the

27 erroneous action from the whole, that the judgment was

28 not substantially swayed by the error, it is impossible

29 to conclude that substantial rights were not affected.
-24-

1 The inquiry cannot be merely whether there was enough to

2 support the result, apart from the phase affected by the

3 error. It is rather, even so, whether the error itself

4 had substantial influence. If so, or if one is left in

5 grave doubt, the conviction cannot stand.

6 328 U.S. 750, 764-65 (1946) (footnote omitted); see also United

7 States v. Dukagjini, 326 F.3d 45, 62 (2d Cir. 2003) (holding that

8 non-constitutional error affects substantial rights if it had a

9 “substantial and injurious effect or influence” on the jury’s

10 verdict). But “we are not required to conclude that it could not

11 have had any effect whatever; the error is harmless if we can

12 conclude that that testimony was ‘unimportant in relation to

13 everything else the jury considered on the issue in question, as

14 revealed in the record.’” Rea, 958 F.2d at 1220 (quoting Yates

15 v. Evatt, 500 U.S. 391, 403 (1991)). In conducting this inquiry,

16 we principally consider “(1) the overall strength of the

17 prosecution’s case; (2) the prosecutor’s conduct with respect to

18 the improperly admitted evidence; (3) the importance of the

19 wrongly admitted testimony; and (4) whether such evidence was

20 cumulative of other properly admitted evidence.” Zappulla v. New

21 York, 391 F.3d 462, 468 (2d Cir. 2004). 

22 Applying these factors, it is clear that Galkovich’s lay

23 opinion testimony may have “substantially swayed,” Kotteakos, 328

24 U.S. at 765, the jury’s verdict on Counts One through Five

25 because it was not “unimportant in relation to everything else
3 As a result of this conclusion, we need not evaluate

whether the error in admitting Galkovich’s testimony regarding

others’ knowledge was harmless.

-25-

the jury considered on the issue in question.”3 1 The Government’s

2 case on those five counts rested principally on the following

3 evidence: the recorded conversations during which Kaplan,

4 Sherman, and Medvedovsky told Galkovich to lie, Kaplan’s sham

5 purchase of the Law Office, Kaplan’s disinterest in cases filed

6 by the Law Office in his name, Kaplan’s absence from the Law

7 Office, the arrangement between the Law Office and Prostaff and

8 Medvedovsky, Kaplan’s receipt of over $70,000 for his limited

9 services at the Law Office, and his false statements upon his

10 arrest. Although the Government may, of course, prove its case

11 exclusively with such circumstantial evidence, their case with

12 respect to those counts was not strong.

13 As a result, and because Kaplan’s knowledge of the fraud was

14 the central disputed issue in the case, Galkovich’s lay opinion

15 testimony was vitally important -- just the sort of evidence that

16 might well sway a jury confronted with a marginal circumstantial

17 case. Our concern is heightened by the Government’s trial

18 strategy with respect to the evidence; the Government repeatedly

19 called the jury’s attention to Galkovich’s lay opinion testimony.

20 In its opening statement, the Government told the jury that

21 “Galkovich will recount for you conversations he had with Kaplan

22 during the sale in which they discussed the fraudulent nature of
-26-

1 the law practice.” In its closing, the Government reminded the

2 jury that “Galkovich explained to you that that conversation, and

3 Kaplan’s comments, satisfied Galkovich that Kaplan understood all

4 about the fraud,” and that “[w]e know . . . from the testimony of

5 the witnesses, that Solomon Kaplan knew, undeniably knew, about

6 the fraud at the law firm.” In rebuttal, the Government stated

7 that “[Kaplan] essentially admitted to Galkovich that he knew

8 what was going on at this law office. That was how Galkovich

9 understood what he said. It is not his opinion. He was there.

10 He had the conversation.” And, finally, we observe that this

11 evidence was unique and thus was not cumulative of properly

12 admitted evidence. 

13 Because we cannot, in light of the foregoing, say with fair

14 assurance that Galkovich’s lay opinion testimony did not

15 “substantially sway[]” the jury’s verdict as to Counts One, Two,

16 Three, Four, and Five, we conclude that this error was not

17 harmless and therefore vacate Kaplan’s conviction on those

18 counts. 

19

20 II. Counts Six and Seven: Interfering with the Investigation

21 We turn next to Kaplan’s arguments challenging his

22 conviction for interfering with the investigation by tampering

23 with a witness (Count Six) and giving false statements to the FBI

24 (Count Seven). He argues on appeal, among other things, that his
4 We note briefly that to the extent Kaplan argues that

the evidentiary errors discussed in Section I compel us to

vacate his conviction on Counts Six and Seven as well, we reject

his argument. As to Counts Six and Seven, the evidentiary

errors were harmless because the improper evidence was at most

tangential to the theory of Counts Six and Seven. The

Government’s case rested on substantial independent evidence,

including tape recordings of Kaplan’s participation in witness

tampering, Kaplan’s post-arrest statement, and testimony by the

FBI agent who took Kaplan’s post-arrest statement, to support

his conviction. Moreover, the Government did not emphasize the

testimony in issue in urging the jury to convict Kaplan of these

two counts.

-27-

1 conviction on those two counts must be vacated due to the

2 district court’s witness tampering and conscious avoidance jury

3 instructions and a constructive amendment of, or prejudicial

4 variance from, the indictment, as clarified by a bill of

particulars.4 5 We address his arguments in turn.

6 A. Witness tampering jury instruction

7 Kaplan contends that the district court’s jury instruction

8 on Count Six, alleging witness tampering, is deficient in light

9 of the Supreme Court’s decision in Arthur Andersen LLP v. United

10 States, 544 U.S. 696 (2005), decided after his conviction. 

11 Kaplan made no objection to this aspect of the jury

12 instruction. Therefore, we review his argument under the plain

13 error standard of Fed. R. Crim. P. 52(b). We have ruled that

14 when the claim of error derives from a supervening decision

15 altering a settled rule of law in the Circuit, as it does here,

16 the claimed error should be assessed under a standard of

17 “modified plain-error.” See United States v. Viola, 35 F.3d 37,
5 The Government argues that the Supreme Court’s decision

in Johnson v. United States, 520 U.S. 461 (1997), requires that

this Court abandon its “modified plain-error” test. We need not

address the merits of this argument because we find that, even

under the modified plain error test, Kaplan is not entitled to

have his witness tampering conviction overturned. 

-28-

1 41-44 (2d Cir. 1994). Ordinarily, the defendant asserting plain

2 error bears the burden of persuasion as to prejudice, but under

3 our “modified plain-error” review, the Government bears that

4 burden. See id. at 41-42. In this case it makes no difference

5 whether the standard applied is the conventional or the modified

6 “plain error” standard because any error in the charge was

7 inconsequential and did not rise to the level of either

standard.5 8

9 Count Six alleges violations of 18 U.S.C. §§ 1512(b)(1) and

10 (b)(3), which provide that:

11 (b) Whoever knowingly uses intimidation, threatens or

12 corruptly persuades another person, or attempts to do

13 so, or engages in misleading conduct toward another

14 person, with intent to--

15 (1) influence, delay or prevent the testimony of

16 any person in an official proceeding;

17 . . .

18 (3) hinder, delay, or prevent the communication to

19 a law enforcement officer or judge of the United

20 States of information relating to the commission or

21 possible commission of a Federal offense or a

22 violation of conditions of probation, supervised

23 release, parole, or release pending judicial

24 proceedings;

25 shall be fined under this title or imprisoned not more

26 than ten years, or both.

27

28 In Arthur Andersen, the Supreme Court found the district

29 court’s instructions were deficient in two respects -- they
-29-

1 failed to convey the requirements of 18 U.S.C. § 1512(b)(2) of

2 mens rea and nexus to an official proceeding. As to the first of

3 these deficiencies, the district court in Arthur Andersen

4 instructed the jury that it could convict Arthur Andersen of

5 witness tampering in relation to an official proceeding if it

6 found that Arthur Andersen intended to “subvert, undermine, or

7 impede” governmental factfinding by suggesting to its employees

8 that they enforce the document retention policy, and that “even

9 if [Arthur Andersen] honestly and sincerely believed that its

10 conduct was lawful, you may find [Arthur Andersen] guilty.” 544

11 U.S. at 706. These instructions, the Supreme Court held, did not

12 properly convey the mens rea required for a violation of 18

13 U.S.C. § 1512(b) -- they “diluted the meaning of ‘corruptly’ so

14 that it covered innocent conduct,” id. -- because “[o]nly persons

15 conscious of wrongdoing can be said to ‘knowingly . . . corruptly

16 persuad[e],’” id. (emphasis supplied). 

17 As to the second deficiency -- regarding the so-called

18 “nexus requirement” -- the Supreme Court in Arthur Andersen found

19 the instructions deficient because “[a] ‘knowingly . . .

20 corrup[t] persuade[r]’ cannot be someone who persuades others to

21 shred documents under a document retention policy when he does

22 not have in contemplation any particular official proceeding in

23 which those documents might be material,” id. at 708, and the

24 district court’s instructions “led the jury to believe that it
-30-

1 did not have to find any nexus between the ‘persua[sion]’ to

2 destroy documents and any particular proceeding,” id. at 707.

3 Cf. United States v. Arthur Andersen, 374 F.3d 281, 298 n.32 (5th

4 Cir. 2004) (reciting district court’s charge in Arthur Andersen

5 defining “official proceeding”). Instead, a “knowingly . . .

6 corrupt persuader” must believe that his actions are likely to

7 affect a particular, existing or foreseeable official proceeding.

8 See Arthur Andersen, 544 U.S. at 708; see also United States v.

9 Quattrone, 441 F.3d 153, 181 (2d Cir. 2006) (holding that Arthur

10 Andersen requires that there be “some nexus between the effort to

11 tamper . . . pertaining to the relevant proceeding and awareness

12 that such conduct was likely to affect the proceeding”).

13 Kaplan contends that the district court’s instructions in

14 this case are similarly deficient. The district court instructed

15 the jury on Count Six as follows: 

16 The first element the government must prove is that

17 the defendant corruptly persuaded a person, or attempted

18 to do so.

19 . . . .

20 The word “corruptly” simply means having an

21 improper purpose. An intent to subvert or undermine the

22 factfinding ability of an official proceeding is an

23 improper purpose . . .”

24 The second element that the government must prove

25 is that the defendant acted knowingly and with the

26 specific intent to influence the testimony of another

27 person in an official federal proceeding.

28 An act is done “knowingly” if it is done

29 voluntarily and intentionally and not because of mistake

30 or accident.

31 By specific intent, I meant that the defendant must

32 have acted knowingly and with the unlawful intent to

33 influence the testimony of another person in an official
-31-

1 federal proceeding; or to hinder, delay or prevent the

2 communication to a federal law enforcement officer or

3 judge information relating to the commission or possible

4 commission of a federal offense.

5

6 JA 287-88. 

7 Applying the lessons of Arthur Andersen, we find that the

8 charge adequately conveyed the statute’s mens rea requirement.

9 Viewing the charge as whole, the district court conveyed the

10 substantial equivalent of Arthur Andersen’s holding that the

11 defendant must be “conscious of wrongdoing” by instructing the

12 jury to convict only if it found that the defendant acted with an

13 “improper purpose” and “acted knowingly and with the unlawful

14 intent to influence the testimony.” We note that the Supreme

15 Court in Arthur Andersen expressly faulted the jury instructions

16 in that case for (1) specifying that the jury could convict if it

17 found that Arthur Andersen intended to “subvert, undermine, or

18 impede” (emphasis added) because “‘impede’ has broader

19 connotations than ‘subvert’ or even ‘undermine,’ and many of

20 these connotations do not incorporate any ‘corruptness’ at all,”

21 544 U.S. at 706-07 (brackets omitted), and (2) instructing the

22 jury that “even if [Arthur Andersen] honestly and sincerely

23 believed that its conduct was lawful, you may find [Arthur

24 Andersen] guilty,” id. at 706. The district court here charged

25 nothing of the sort. To convict, the jury had to find that

26 Kaplan acted with an “improper purpose” and with “unlawful

27 intent.” 
-32-

1 Second, with regard to Kaplan’s argument that the district

2 court’s instructions were erroneous in light of Arthur Andersen’s

3 discussion of the statute’s nexus requirement, we note first that

4 the charges in Arthur Andersen were brought under two clauses of

5 § 1512(b)(2), both of which explicitly include as an element that

6 the obstruction or tampering relate to an “official proceeding,”

7 see id. at 702. Kaplan, however, was charged under §§ 1512(b)(1)

8 and (3). With respect to § 1512(b)(3), it is unclear whether

9 Arthur Andersen’s nexus requirement is applicable because §

10 1512(b)(3) does not explicitly refer to an “official proceeding.”

11 See United States v. Byrne, 435 F.3d 16, 23-25 (1st Cir. 2006).

12 We need not decide this issue, because even if the nexus

13 requirement is applicable to prosecutions under § 1512(b)(3), and

14 the district court’s instructions under § 1512(b)(3) were

15 erroneous for failure to discuss nexus, any such error was

16 harmless in the circumstances of this case for the reasons

17 discussed below.

18 Kaplan was, as noted, also charged under § 1512(b)(1), which

19 does contain an explicitly stated element of an “official

20 proceeding.” The jury instructions on this charge undoubtedly

21 needed to comply with the nexus requirement discussed in Arthur

22 Andersen. The district court instructed the jury that the

23 government “must prove” that the defendant acted “with the

24 specific intent to influence the testimony of another person in
-33-

1 an official federal proceeding.” The instructions did not

2 identify the official proceeding. In view of the Supreme Court’s

3 discussion in Arthur Andersen, 544 U.S. at 707 (finding the

4 instructions infirm because they led the jury to believe that it

5 did not have to find any nexus between the “persuasion” to

6 destroy documents and any “particular proceeding”), it would

7 surely have been more prudent, even where the evidence only

8 points to one federal proceeding, for the district judge to

9 identify the “particular” federal proceeding that the defendant

10 intended to obstruct. We need not decide whether the failure to

11 do so in this case was error, because as we note below, it was

12 harmless in any event.

13 Furthermore, in Quattrone, 441 F.3d at 153, the district

14 court, following the Supreme Court’s formulation of the nexus

15 requirement in United States v. Aguilar, 515 U.S. 593, 599

16 (1995), described nexus to the jury as “some relationship in

17 time, causation or logic, between the defendant’s actions and the

18 grand jury proceeding so that his action or actions may be said

19 to have the natural and probable effect of interfering with that

20 proceeding.” Quattrone, 441 F.3d at 177 n.24. We ruled that this

21 instruction accurately described the nexus requirement. Id. at

22 178. The instructions given below did not contain this language,

23 or its reasonable equivalent. In that regard, they were

24 deficient.
-34-

1 Nevertheless, Kaplan is not entitled to reversal of his

2 conviction on Count Six. Despite this error and other arguable

3 deficiencies in the charge on nexus, any deficiencies were

4 harmless in the particular circumstances of the case and did not

5 amount to plain error. Unlike the defendants in Arthur Andersen

6 and Quattrone, who, in accordance with a routine file purging

7 policy, had urged destruction of documents that they may not have

8 known were relevant to any “particular proceeding,” Arthur

9 Andersen, 544 U.S. at 707, Kaplan, according to the government’s

10 evidence, directly participated in an effort to influence

11 Galkovich’s testimony. In his summation, Kaplan implicitly

12 conceded that, if the jury found that he urged Galkovich to

13 testify falsely, it was with respect to either the state

14 disciplinary proceeding or the federal criminal proceeding.

15 Kaplan argued that the jury should find that any such effort

16 related to the state disciplinary proceeding, and was therefore

17 not covered by § 1512. His argument, however, implicitly

18 conceded that, if the jury rejected his contention that his

19 efforts related to the disciplinary proceeding, the efforts

20 “relat[ed] in time, causation or logic,” Quattrone, 441 F.3d at

21 177 n.24, to Galkovich’s federal criminal proceeding.

22 Accordingly, the court’s failure to explain in full an element

23 that Kaplan had essentially conceded was harmless.
-35-

1 In sum, any error in the jury instructions was harmless and

2 does not meet the standard of plain error. We reject Kaplan’s

3 argument that we must vacate his conviction on Count Six.

4 B. Conscious avoidance jury instruction

5 Kaplan contends that it was error for the district court to

6 give a conscious avoidance charge on Count Six. We agree but

7 conclude that the error was harmless.

8 An instruction on conscious avoidance is proper only “(i)

9 when a defendant asserts the lack of some specific aspect of

10 knowledge required for conviction and (ii) the appropriate

11 factual predicate for the charge exists.” Quattrone, 441 F.3d at

12 181 (internal citations omitted). As for the second of these

13 requirements, a factual predicate exists when “the evidence is

14 such that a rational juror may reach the conclusion beyond a

15 reasonable doubt that the defendant was aware of a high

16 probability of the fact in dispute and consciously avoided

17 confirming that fact.” Id. (internal quotation marks omitted).

18 Evidence sufficient to find actual knowledge does not

19 necessarily constitute evidence sufficient to find conscious

20 avoidance. See United States v. Ferrarini, 219 F.3d 145, 157 (2d

21 Cir. 2000) (“The evidence shows that [defendant] actually knew of

22 the frauds; it is not sufficient to permit a finding that he

23 consciously avoided confirming them. The fact that a jury can --

24 on the evidence -- find actual knowledge does not mean that it
6 We reject Kaplan’s argument that it was error for the

district court to give a conscious avoidance charge when the

government argued actual knowledge in the alternative. Although

we noted in Ferrarini that evidence sufficient to find actual

knowledge does not necessarily establish a factual predicate for

conscious avoidance, 219 F.3d at 157, we have held that a

conscious avoidance charge is “not inappropriate merely because

the Government has primarily attempted to prove that the

defendant had actual knowledge, while urging in the alternative

that if the defendant lacked such knowledge it was only because

he had studiously sought to avoid knowing what was plain,”

United States v. Hopkins, 53 F.3d 533, 542 (2d Cir. 1995). So

long as the Government can establish a factual predicate for

conscious avoidance, it is free to argue alternative theories of

conscious avoidance and actual knowledge.

-36-

1 can also find conscious avoidance.”). Because the only record

2 evidence indicates that Kaplan had actual knowledge of the

3 witness tampering, there was no factual predicate for a conscious

4 avoidance charge on Count Six, and it was error for the district

court to give it.6 5 

6 Nevertheless, we find that the error was harmless because

7 there was overwhelming evidence of Kaplan’s actual knowledge and

8 direct involvement in the witness tampering, see ante at 8. See

9 Quattrone, 441 F.3d at 181 (quoting Ferrarini, 219 F.3d at 154)

10 (“But an erroneously given conscious avoidance instruction

11 constitutes harmless error if the jury was charged on actual

12 knowledge and there was ‘overwhelming evidence’ to support a

13 finding that the defendant instead possessed actual knowledge of

14 the fact at issue.”).

15

16
7 On appeal, Kaplan does not challenge the sufficiency of

this evidence to support his conviction on Count Seven.

-37-

1 C. Variance between bill of particulars and proof

2 Finally, Kaplan argues that the Government’s proof at trial

3 constructively amended, or prejudicially varied from, Count Seven

4 of the indictment, as clarified in a bill of particulars. We

5 disagree. 

6 Count Seven, which arises from the statements that Kaplan

7 made to the FBI after his arrest, alleges that Kaplan “made

8 materially false, fictitious, and fraudulent statements and

9 representations, to wit, KAPLAN falsely informed an agent of the

10 Federal Bureau of Investigation about the circumstances

11 surrounding his purchase of a law practice from [Galkovich].” JA

12 17-18. These false statements were disclosed to Kaplan in an FBI

13 report prior to trial. In response to Kaplan’s request for a

14 bill of particulars, the Government stated that “the statements

15 contained in paragraphs three and four on page one of Kaplan’s

16 post-arrest statement form the basis of Count Seven.” 

17 At trial, the Government offered ample proof of numerous

false statements.7 18 In summation, the Government principally

19 contended that seven statements were false: Kaplan told the FBI

20 that (1) he was introduced to Galkovich and Medvedvosky by a

21 Vladimir Scheckman; (2) “he received a thousand cases from

22 Galkovich as a result of the sale;” (3) the Law Office was sold
-38-

1 to him for $120,000; (4) he did not recall who gave him the

2 $20,000 check used to purchase the Law Office; (5) he was assured

3 by Medvedovsky and Galkovich that the charges against Galkovich

4 “were nothing [because] Galkovich had done nothing wrong”; (6) he

5 “just stopped by” the January 8 meeting between Galkovich,

6 Medvedovsky, and Sherman without planning in advance to

7 participate; and (7) he did not take the conversation on January

8 8 “very seriously” and that they were just “joking around.” Only

9 one of these statements -- concerning how Kaplan had met

10 Galkovich and Medvedovsky -- was specified in the bill of

11 particulars.

12 This does not constitute a constructive amendment of the

13 indictment. “To prevail on a constructive amendment claim, a

14 defendant must demonstrate that either the proof at trial or the

15 trial court’s jury instructions so altered an essential element

16 of the charge that, upon review, it is uncertain whether the

17 defendant was convicted of conduct that was the subject of the

18 grand jury’s indictment.” United States v. Salmonese, 352 F.3d

19 608, 620 (2d Cir. 2003). Here, because the Government proved the

20 essential elements of the crime charged in Count Seven -- albeit

21 with different proof, as indicated above -- the indictment was

22 not constructively amended. See, e.g., United States v. Wallace,

23 59 F.3d 333, 337 (2d Cir. 1995) (holding that no constructive
-39-

1 amendment occurs “where a generally framed indictment encompasses

2 the specific legal theory or evidence used at trial”). 

3 A variance, on the other hand, occurs when the charging

4 terms remain unaltered but the facts proven at trial differ from

5 those alleged in the indictment or bill of particulars. See

6 United States v. Dupre, 462 F.3d 131, 140 (2d Cir. 2006); United

7 States v. Glaze, 313 F.2d 757, 759 (2d Cir. 1963) (holding that

8 once the Government has responded with a bill of particulars, it

9 is “strictly limited to proving what it has set forth in it.”).

10 However, we will reverse on account of a variance only if it

11 prejudices the defendant by infringing on the “substantial

12 rights” that indictments exist to protect -- “to inform an

13 accused of the charges against him so that he may prepare his

14 defense and to avoid double jeopardy.” Dupre, 462 F.3d at 140;

15 see also Glaze, 313 F.2d at 759 (“it is well settled that a

16 variance between the proof and the bill of particulars is not

17 grounds for reversal unless the [defendant] is prejudiced by the

18 variance.”). 

19 Assuming arguendo there was a variance, we detect no

20 prejudice to Kaplan’s ability to prepare his defense or interpose

21 a defense of double jeopardy. Where the defendant has notice of

22 the “core of criminality” to be proven at trial, we have

23 permitted “significant flexibility” in proof without finding

24 prejudice. See United States v. LaSpina, 299 F.3d 165, 181-82
-40-

1 (2d Cir. 2002); see also Salmonese, 21 F.3d at 1236 (“A defendant

2 cannot demonstrate that he has been prejudiced by a variance

3 where the pleading and the proof substantially correspond . . .

4 .”). For example, in Dupre, we concluded that the proof of a

5 wire transfer other than that specified in the indictment was a

6 variance but did not prejudice the defendant because she was not

7 surprised by the proof, 462 F.3d at 141-42, and suffered no risk

8 of double jeopardy, id. at 143 n.12. Additionally, we have

9 routinely found that no prejudice results from a variance between

10 overt acts charged in an indictment and those proved at trial.

11 See, e.g., Frank, 156 F.3d at 337; LaSpina, 299 F.3d at 182-83;

12 Salmonese, 352 F.3d at 622 (“In this case, because [the]

13 [i]ndictment . . . gave [defendant] fair and adequate notice that

14 the conspiratorial scheme achieved its ultimate economic purpose

15 through the conspirators’ multiple sales of stripped securities

16 and their receipt of proceeds through June 1996, [defendant]

17 cannot show that he was prejudiced by proof of a few uncharged

18 proceed receipts after May 8, 1996.”).

19 The alleged variance here in issue similarly does not

20 justify reversal. Before trial, the government gave Kaplan the

21 FBI report detailing all of his statements. Count Seven of the

22 indictment was broadly framed, giving Kaplan notice of the “core

23 of criminality” to be proven at trial. And Kaplan’s counsel did

24 not object to the admission of the false statements not specified
-41-

1 in the bill of particulars, nor did he request a continuance when

2 they were introduced. There is therefore no indication in the

3 record that the evidence adduced at trial unfairly surprised

4 Kaplan, exposed him to a risk of double jeopardy, or unfairly

5 prejudiced him in any other way. The variance did not create

6 error, much less the plain error that arguably was required to be

7 shown as a result of Kaplan’s failure to object.

8 We therefore reject Kaplan’s argument that the Government’s

9 proof at trial constructively amended, or prejudicially varied

10 from, Count Seven of the indictment. 

11

12 CONCLUSION

13 We have considered all of Kaplan’s remaining arguments on

14 appeal and find them to be without merit. For the reasons set

15 forth above, the judgment of conviction is vacated as to Counts

16 One, Two, Three, Four, and Five, and affirmed as to Counts Six

17 and Seven. The case is remanded for further proceedings

18 consistent with this opinion.