05-5531

U.S. v. Kaplan UNITED STATES COURT OF APPEALS 1 2 FOR THE SECOND CIRCUIT 3 4

------------- 5 6 August Term 2006 7 8 Argued: November 7, 2006 Decided: April 11, 2007 9 Errata Filed: April 30, 2007) 10 11 Docket No. 05-5531-cr 12 13 --------------------------------------------------X 14 15 UNITED STATES OF AMERICA, 16 17 Appellee, 18 19 - against - 20 21 SOLOMON KAPLAN 22 Defendant-Appellant. 23 24 --------------------------------------------------X 25 26 Before: FEINBERG, LEVAL, and CABRANES, Circuit Judges. 27 28 Appeal froma judgm en t of conviction, entered following a 29 jurytrial in the United States District Court for the Southern 30 District o f Ne w York (Batts, J.), on all seven counts of an 31 indictment charging conspiracy, mail fraud, wire fraud , m aking 32 false statements in connection with health care matters, health 33 care fraud, witness tampering, and making false statements to the 34 FBI. 35 36 Affirmed in part, vacated in part, and remanded. 37 38 ZACHARY MARGULIS-OHNUMA, New York, New York, for 39 Defendant-Appellant 40 41 MIRI A ME. ROCAH, Assistant United States 42 Attorney, (Michael J. Garcia, United S t ates 43 Attorney, Timothy Treanor and Jonath a n S. 44 Kolodner, Assistant United States Attorneys, 45 on the brief), United States A ttorney’s 461 The indictment allegedthat 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- Office for the Southern District of New 1 York, for Appellee. 2 FEINBERG, Circuit Judge: 3 Solomon Kaplan appea ls fr om a judgment of conviction, 4 ent eredfollowing a jury trial in the United States Dist ric t 5 Court for the Southern District of New York (Batts, J.), on all 6

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

an insurance fraud scheme (Counts One through Five) and Kaplan’s 8 interference with an investigation into that scheme (Counts Six 9 andSeven). Specifically, the indictment charged Kaplan with one 10 count of conspiracy 1 in violation of 18 U.S.C. § 371 (Count One); 11 two counts of mail fraud in violation of 18 U.S.C. §§ 1341 and 2 12 (Counts Two andThree); one count of making false statements in 13 connection with health care matters in violation of 18 U.S.C. §§ 14 1035 and 2 (Count Four); one count of health care fraud in 15 violation of 18 U.S.C. §§ 1347 and 2 (Count Five); one count of 16 witness tamp ering in violation of 18 U.S.C. §§ 1512(b) and 2 17 (Count Six); and one count of making false statements to an agent 18 of the Federal Bureau of Investigation (“FBI”) in violation of 18 19 U.S.C. § 1001 (Count Seven). 20 On appeal, Kaplan’s principal contentions are that (I) his 21

co nv iction on the insurance fraud counts (Counts One through 22-3-

Five) must be vacated beca use th e district court erred in 1 admitting (A) lay opinion testimony regarding his knowledg e of 2 the fraud and (B) testimony concerning others’ knowledge of the 3 fraud and(II) his conviction on the interference counts (Counts 4 Six and Seven) must be vacated because (A) the district court’s 5 jury i nstruction on Count Six was erroneous in light of the 6 Supreme Court’s supervenin g decision in Arthur Andersen LLP v. 7 UnitedStates, 544 U.S. 696 (2005); (B) the district court 8 improperlygave a conscious avoidance jury instruction on Count 9 Six; and(C) variance between a bill of particulars and proof at 10 trial concerning Count Seven constituted a constructive amendment 11 of the indictment or a prejudicial variance. 12 For the reasons set fo rth below, we agree that Kaplan’s 13 conviction on Counts One through Five must be vacated because the 14 district court erred in admitting, without adequate foundation, 15 lay opinion testimonyregarding Kaplan’s knowledge of the fraud 16 andtestimony regarding others’ knowledge of the fraud, and that 17 at least the first of these errors was not harmless. However, we 18 affirmhi s c onviction on Counts Six and Seven because these 19 evidentiaryerrors were harmless as to those counts, which relied 20

on strong independent evidence of the crimes charged in those 21 counts, and because we find no merit in Kaplan’s other arguments 22

on appeal. The case is remanded for further proceedings 23 consistent with this opinion. 24-4- BACKGROUND 1 Viewedin th e l ight most favorable to the Government, see 2 Jackson v. Virginia, 443 U. S. 307, 318-19 (1979), the evidence 3 showed the following. 4 Josef Sherman, a medical do ct or, and his brother, Yevgeny 5 Sherman, operated a medical clinic in Brooklyn, New York (the 6 “Clinic”). The Clinic hired “runners” to recruit patients by 7 staging automobile accidents and identifying individuals who had 8 been in legitimate accidents but were willing to exaggerate their 9 injuries. At the Clinic, these ac ci dent participants received 10

un necessarytreatment for their feigned injuries and were 11 compensa tedwi th a kickback. The Clinic then submitted 12 fraudulent insurance claims for medical expenses to collect money 13 under New York State’s no-fault insurance law. 14 The accident participants were also referred to a 15 cooperating law office, which submitted on t he p articipants’ 16 behalf false or in fl ated insurance claims for bodily injury. 17 FromJanuary 2000 until July 30, 2001, most of the Clinic’s cases 18

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

name of Alexander Galkovich, a lawyer hiredby the Shermans and 20 their associate Gennady “Gene” Medvedovskyto serve as counsel of 21 record in the referred cases. The accident participants signed 22

a retainer agreement providing that the Law Office received one23 t hirdof any insurance settlement as well as expense s . 24-5-

Medvedovsky, although not an attorney, managed the Law Office on 1 behalf of the Shermans through a managemen t company called 2 Starlin Executive Management. Galkovich paid almost all of the 3 proceeds he received from the insurance company sett le ments to 4 Starlin Management , a nd received $1,000 per week as salary and 5 occasional bonuses. The Shermans and Medvedovsky extracted the 6 insurance proceeds from the law office principallyby submitting 7 to Starlin Management fraudulent bills from fictitious entities 8 or by paying themselves salaries from Starlin Management. 9 By2001, the L aw Off ice had more than 3,000 active cases, 10 andwas receiving approximately80 to 200 new cases per month, a 11 significant portion of which came fr omthe Sherman Clinic. 12 Approximately five to 10 percent of the cases at the Law Office 13 resultedfrom staged accidents, and 60 to 70 percent of the cases 14 involved clients who exaggerated or faked the injuries. 15 In July 2001, Galkovich was arrested by the FBI and charged 16 with filing false andfraudulent claims and coaching clients to 17 lie to the insurance companies. Because Galkovich thus stood to 18 lose his law license, the Shermans and Medvedovsky sou ght a 19 repl acement to serve as attorney-of-record in the fraudulent 20

cases. They settled on Kaplan, wi th who m they were familiar 21 because a few of the Clinic’s cases had previously been referred 22 to him. An employee of the Clinic, Alexander Burman, testified 23 t hat the cases referred to Kaplan were those that ha d bee n 24-6-

re je ctedby other lawyers because they were considered too 1 obviously fraudulent. 2 In September 2001, K aplan began representing 1,200 of 3 Galkovich’s 3,000 clients. The Shermans and Medvedovsky , worried 4 that th e tran sfer of all 3,000 cases from Galkovich to Kaplan 5 wouldlook suspicious, arranged for Kaplan to formally purchase 6 the law firm from Galkovich. To make the deal appear legitimate, 7 theyhired a lawyer to draft a contract and conduct a closing, 8 andKaplan wrote sev er al checks to Galkovich totaling $50,000, 9 including a $20,000 check at the closing. But at least some of 10 the money came from the Shermans and Medvedovsky and was later 11 returnedto them by Galkovich. Thus , the Shermans and 12 Medvedov sky essentially bought the Law Office from themselves, 13 but structured the transaction to look as if Kaplan had bought it 14 from Galkovich. 15 Galkovich testified that on the way to the closing in 16 October 2001, Kaplan and Galkovich discussed the sale of the Law 17 Office, and Kaplan state d that “he had handled cases like this 18 before,” which Galkovich understood to mean that Kaplan had 19 previously handled fake accident cases. 20 The Law Office continued to operate much as it had before, 21 with Kaplan now formally representing almost all of Galkovich’s 22 3000 clients. Medvedovsky andothers, including Emik Aguronov, 23 who was responsible for drafting false medical narratives to be 24-7-

submittedto insurance companies on behalf of client s seek ing 1 settlements, remained. Medvedovsky formed a new entity ca ll ed 2 P rostaff Support Services, Inc., which performed the sa m e 3 functions that Starlin Management had. From October 2001 through 4 March 2002 , the Law Office had revenues of approximately 5 $89 2,000. The proceeds of the fraud were transferred to 6 M edvedovskyand the Shermans through Prostaff, which wa s pai d 7

o ver $1 00,000 per month to “manage” the Law Office. Kaplan 8 received approximately $74,000 in payments from the Law Office. 9 Kaplan, the Shermans, and Medvedovsky all agreed that Kaplan 10 wouldstay away from the Law Office and appear only t o si gn 11 checks and for essential mee tings. A photograph of Kaplan’s 12 of fice a t the Law Office, Kaplan’s appointment book, and the 13 testimonyof FBI Special Agent Rothe revealed that Kaplan was 14 rarely present at the Law Office. 15 Following the sale of the Law Office to Kapl an, Galkovich 16 began cooperating with the FBI. Between approximately December 17 27, 2001 a ndFebruary 22, 2002, Galkovich recorded his 18 conversations with the Shermans, Medvedovsky, and Kapl a n on 19 ap proximately10 separate occasions. In addition to general 20 discussio ns abo ut the operations of the Law Office, the 21 conversations recorded by Galkovich detailed the efforts by the 22 Shermans, Medvedovsky, an dKaplan to prevent Galkovich from 23 cooperating with law enforcement authorities in its investigation 24-8-

of the Sherman Clinic and the Law Of fice. Specifically, after 1 Galkovich informed his co-conspirators that he hadbeen arrested 2 andthat the FBI had inquired about the Shermans, a meeting was 3 arrangedwith Galkovich on January 8, 2002. Medvedvosky told 4 Galkovich that the purpose of the meeting was to “sit down and 5 decide everything” about Galko vich’s case. Josef Sherman and 6 Gene Medvedovsky initially met with Ga lko vich alone and 7 questionedhim about the statement he hadgiven to the FBI at the 8 time of his arrest. Later, at Galkovich’s request, Kaplan joined 9 the meeting, and Galkovich told Kaplan that they needed to 10 discuss the “transition of my practice to yours” and“this thing 11 that I’m going to need for . . . possibly for court or possibly 12 for the Disciplinary Co m mittee.” Medvedovsky, Sherman, and 13 Kaplan suggested a variety of false storie s to explain the Law 14 Office transfer. 15 I n March 2002, Kaplan, the Shermans, and Medvedovsky were 16 arrestedby t he FBI . Immediately following his arrest, Kaplan 17 agreedto be interviewed by the FBI. During that interview, 18 Kaplan made a number of statements that the Government contends 19

were false, includ ing th at in August 2001 he was introduced to 20 Galkovich and Medvedovsky by a Vladimir Scheckman; that, as part 21 of his purchase of the Law Office, he was to receive only 1,000 22 files; that he did not recall who gave himthe $20,000 check used 23 to purchase the Law Office; that the Law Office was sold to him 24-9-

for $120,000; that he was assu redby Medvedovsky and Galkovich 1 that the cha rg es against Galkovich “meant nothing because 2 Galkovich had done nothing wrong”; that he “just stopped by” the 3 January8 meeting between Galkovich, Medvedovsky, and Sherman 4 without planning in advance to participate; andthat he did not 5 take the conversation on January8 “seriously” and they were just 6 “joking around.” 7 In August 200 2, Josef Sherman, Eugene Sherman, and 8 Medvedovskypled guilty to a three-count information charging 9 themwith conspiracy, mail fraud, and witness tampering. Kaplan 10

was tried on the seven-count indic tment against him described 11 above. After an approximately two-week trial, the jury found 12 Kaplan guilty on all counts. In August 2005, the district court 13 sentencedKaplan principallyto 27 months of imprisonment, three 14 years of supervised release, and $200,00 0 in r estitution, but 15 granted bail pending appeal pursuant to 18 U.S.C. § 3143(b). 16 This appeal followed. 17 18 DISCUSSION 19 I. Counts One through Five: The Insurance Fraud Scheme 20 Turning fi rs t to the insurance fraud counts (Counts One 21 through Five), Kaplan argues on appeal, among other things, that 22 his conviction must be vacated because the district court erred 23 in admitting (A) lay opinion testimony regarding his knowledge of 24-10-

the fraud and (B) testimony concerning others’ knowledge of the 1 fraud. We consider each of his arguments in turn. 2 A. Admission of Galkovich’s lay opinion testimony 3 The first issue b efore us concerns the district court’s 4 admission of layopinion testimony regarding Kaplan’s knowledge 5 of th e fraud. Kaplan principally objects to two colloquies i n 6 which Galkovich recounted a conversation he and Kaplan had as 7 theydrove together to the meeting in October 2001 to finali ze 8 the sale of the Law Office to Kaplan. After describ ing the 9 conversation, Galkovich was allowe d to offer his lay opinion 10 testimonyregarding Kaplan’s knowledge of the fraud. First, on 11 direct examination, Galkovich testified as follows: 12 [Prosecutor]: D idyou have any discussions in the car 13 ride on the way to Davis’ office? 14 15 [Galkovich]: Yes. It was actually the first time we 16 reallytalked, me and Solomon Kaplan. And I asked him, 17 What do you do? What kind of work do you do? Are you 18 fam il iar with car accident cases, with the process of 19 settlement an d what it takes to settle? And he 20 expla in ed, yes he has handled cases like this before. 21 Yes, he has settled cases before. 22 23

. . . . 24 25 He explained that he has experience with these kinds of 26 cases. 27 28 [Prosecutor]: What did you understandhim to mean when 29 he said “these kinds of cases”? 30 31 [Defense Counsel]: Objection. 32 33 The Court: I will allow it. 34 351 The two colloquies quotedabove are hereafter frequently

referred to as “Galkovich’s lay opinion testimony.” -11- [Galkovich]: That he understood that these were car 1 accident cases where people exaggerated their injuries, 2 where it was crucial to have a narrative report that 3 exaggeratedthe injuries, that these reports were bought 4 for the best of prices to get the best of reports and 5 that you could settle these cases for very good money in 6 a short period of time. 7 8 Joint Ap pendix (“JA”) 104-05. Then, on redirect, Galkovich 9 elaborated: 10 [Prosecutor]: What happened in this conversation? 11 12 [Galkovich]: I asked him what experience he hadwith the 13 car accident cases and generallywhat kind of experience 14 he had, and he told me that he knew about these ca r 15 accidents, he knew how to handle these cases, he knew 16 h ow to maximize potential recoveries, and what is 17 supposedto be in the files, how they are supposedto be 18 worked up. 19 20 [Prosecutor]: What was your purpose in asking Kaplan 21 this question? 22 23 [Galkovich]: I wanted to know how much he knew about the 24 fraudulent office that he is participating in. 25 26 [Prosecutor]: And after you g ot thi s answer from Mr. 27 Kaplan, what did you think? 28 29 [Galkovich]: I think he knew exactly what he was getting 30 into. 31 32 JA 138-39. 1 33 We review a district court’s decision to admi t evid ence, 34 including l ay opinion testimony, for abuse of discretion. See 35 UnitedStates v. Yuri Garcia, 413 F.3d 201, 210 (2d Cir. 2005) 36 (citing Old Chief v. Uni ted St ates, 519 U.S. 172, 174 n.1 37-12-

(1997)). “A district court ‘abuses’ or ‘exceeds’ the discretion 1 accordedto it when (1 ) its decision rests on an error of law 2 (such as application of the wrong legal principle) or a clearly 3

err oneous factual finding, or (2) its decision -- though no t 4 necessarilythe product of a legal error or a clearly erroneous 5 fac tual funding -- cannot be located within the range of 6 permissible decisions.” Zervos v. Verizon N.Y., Inc., 252 F.3d 7 163, 169 (2d Cir. 2001) (footnotes omitted). 8 The Federal Rules of Evidence, in a sharp departure from the 9

common law, see Asplundh M fg. Di v. v. Benton Harbor Eng'g, 57 10 F.3d1190, 1195 (3d Cir. 1995) (Becker, J.), permit lay witnesses 11 to testi fy in the form of opinions to address a problem 12 identified by Judge Learned Hand many years ago: 13 Everyjudge of experience in the trial of causes has 14 again and again seen the whole story garbled, because of 15 insistence upon a form with which the witness cannot 16 c omply, since, like most men, he is unaware of th e 17 extent to which inference enters into his perceptions. 18 He is telling the ‘facts’ in the only way that he knows 19 how, and the result of nagging and checking himis often 20 to choke him altogether, which is, indeed, usuallyits 21 purpose. 22 23 Central R.R. Co. of N.J. v. Monahan, 1 1 F.2d212, 214 (2d Cir. 24 1926); see also Yuri Garcia, 413 F. 3d at 211 (“eyewitnesses 25 sometimes find it difficult to descri be the appearance or 26 relationship of persons, the atmosphere of a place, or the value 27 of an object by re fe rence only to objective facts”). 28 Accordingly, Rule 701 of the Federal Rules of Evidence was 29-13-

adopted“to ac comm odate and ameliorate these difficulties by 1 permitting lay witnesses, in appropriate circumstances, to 2 testifyin language with which they are comfortable.” 4 Jack B. 3 Wein st ein & Margaret A. Berger, Weinstein’s Federal Evidence § 4 701.02 (Joseph M. McLaughlin ed., 2d ed. 2004). 5 But to ensure that lay opinion testimony is reliable and 6 does not usurp the jury’s role as fact-finder, Rule 701 imposes 7 certain foundation requirements that must be satisfiedi f such 8 testimony is to be admitted: 9 If the witness is not testifying a s a n expert, the 10 witness’ testimony in the form of opinions or inferences 11 is limited to those opinions or inferences which are (a) 12 rationallybasedon the perception of the witness, (b) 13 helpful to a clear understandi ng of the witness’ 14 testimony or the determination of a fact in issue, and 15 (c) no t based on scientific, technical, or other 16 specialized knowledge within the scope of Rule 702. 17 Fed. R. Evid. 701 (2001). In interpreting these requirements, we 18 have observed that (a) the rational-basis requirement “is th e 19 familiar requirement of first-hand knowledge or observation,” 20 UnitedStates v. Rea, 958 F.2d 1206, 1215 (2d Cir. 1992) (quoting 21 Fed. R. Evid. 701 advisory committee’s note on 1972 P ropose d 22 Rules); (b) the helpfulness requirement is principally “designed 23 t o provide assurance[] against the admission of opinions which 24 wouldmerely tell the jury wh at res ult to reach,” id. (quoting 25 Fed. R. E vid. 7 04 advisory committee’s note on 1972 Proposed 26 Rules); a nd (c) the “not based on specialized knowledge” 27 requirement requires that “a lay opinion must be the product of 282 In 2000, after Rea was decided, Rule 701 was amended to

include 701(c). -14- reasoning processes familiar t o the average person in everyday 1 life,” Yuri Garcia, 413 F.3d at 215. 2 See also Fed. R. Evid. 701 2 advisory committee’s note on 2000 amendments. 3 The government’s evidence failed to demonstrate that 4 Galkovich’s lay op in ion testimony was “rationally based on the 5 perception of the witness.” Fed R. Evid. 701(a). We note that 6 Rule 701(a) requires that lay opinion testimony be both (a) based 7

on the witness’s first-hand perceptions and(b) ra tiona lly 8 derived from those first-hand perceptions. 9 As to the first of these requirements, Rule 701(a) reflects, 10 in part, the Rules’ more general requirement that “[a] witness 11 maynot testify to a matter unless evidence is in troduced 12 sufficient to support a finding that the witness has personal 13 knowledge of the matter.” F ed. R . Evid. 602; see also United 14 State s v. Durham, 464 F.3d 976, 982 (9th Cir. 2006) (“opini o n 15 testimonyof laywitnesses must be predicated upon concrete facts 16 within their own observation and recollectio n - - that is facts 17 perceivedfrom their own senses, as distinguished fr omtheir 18 opinions or conclusions drawn from suc h fact s” (internal 19 quotation marks omitt ed)). When Galkovich was asked to 20 articulate the basis for his opinion, he answered, “I basedit on 21 the only thing I could base it on, which is my experience there, 22-15-

what people saidabout [Kaplan], my conversation with [Kaplan], 1 everything that I [had] been involved in. That’s what my opinion 2 couldbe based on.” JA 140. Although Galkovich asserts that his 3 t estimo nywas based in part on first-hand experience -- 4 principa lly his prior experiences at the Law Office and his 5 conversation with Kaplan -- hi s response was extremely vague. 6 Thus, Galkovich’s testimonyfailed to show that his opinion as to 7 Kaplan’s knowledge was rationallybased on facts he had observed. 8 We are therefore unable to conclude, as we must under Rule 9 701, that the opinion he offered was rationally basedon his own 10 perceptions. See Rea, 958 F.2d at 1216 (“When a witness has not 11 identifiedthe objective bases for his op inion, the proffered 12 opinion ob viously fails completely to meet the requirements of 13 Rule 701 . . . because there is no w ay for the court to assess 14 whether it is rationally basedon the witness's perceptions . . 15

. .”). We appliedthis requirement to similar facts in Rea , and 16 observedthat lay opinion testimony regarding a defen d ant’s 17 knowledge will, in most cases, only satisfythe rationally-based 18 requirement if the witness has personal knowledge of one or more 19 “objective factual bases from which it is possible to infer with 20

some confidence th at a pe rson knows a given fact . . . 21 includ[ing] what the person was told directly, what he was in a 22 position to see or hear, what statement s he h imself made to 23 others, conduct in which he engaged, and what his background and 24-16-

experience were.” 958 F.2d at 1216. Because the Government did 1 not lay an adequate foundation, Galkovich’s testimony expressing 2 his opinion as to Kaplan’s knowledge was not admissible. 3 Accordingly, having found that Galkovich’s lay opinion 4 testimonydoes not satisfy Rule 701, we conclude that the 5 district court erred in admitting it. 6 B. Admissionof Galkovich’s additional testimony regarding 7 his and others’ knowledge 8 9 Kaplan asserts that it was error for the district court to 10 admit Galkovich’s additional testimony regarding Galkovich and 11 others’ knowledge of the fraud as circumst an tial evidence of 12 Kaplan’s knowledge. Specifically, Galkovich was permitted to 13 testifythat (1) when he first saw the building in which the Law 14 Office was located, he thought, “[t]his is where I am going to 15 get arrested,” JA84; (2) everyone he spoke with told him not to 16 buy the Law Office, JA 87; (3) the fraudwas “done very subtly” 17 because “this whole industry was a very big sham and it was big 18 lies,” JA 90; (4) the fraud was not discussed explicitly because 19 it was “kindof like . . . hear no evil, see no evil,” and he was 20 warnedto “be very careful in what you say,” J A 94; (5) 21 “[e]veryone knew what was going on, but you don’t say it,” JA 94; 22 (6) at a Christmas party at the Law Office, Eugene Sherman read 23

a poem about clients getting paidfor sham injuries, JA 97; and 24 (7) Steven Rosenberg, a lawyer at the Law Office, quit because he 25-17-

saw a file with “blatant” fraud, JA 116-19, andMichael Brummer, 1 another lawyer at the Law Office, was “very sensitive and nervous 2 about w hat was going on in the office” and was “always very 3 nervous when we were skirting the issue of fraud,” JA 119-21. 4 As previously noted, we review a district court’s 5 evidentiary rul ings for abuse of discretion. See Yuri Garcia, 6 413 F.3d at 210 (citing Old Chief, 519 U.S. at 174 n.1). Kaplan 7 argues that the district court abused its discretion because the 8 evidence was irrelevant and should have been excluded under Fed. 9 R. Evid. 402 or, in the alternative, that its probative value was 10 substantiallyoutweighed by th e danger of unfair prejudice and 11 shouldhave been excluded under Fed. R. Ev id. 403. The 12 Government argues that the testimony was relevant to the question 13 of whether Kaplan was aware of the fraud because e videnc e that 14 the fraud was obvious and widely -known tended to make it more 15 probable that Kaplan also knew about it. As the prosecutor 16 arguedto the jury, “[Kaplan] had to know. Everybodyelse did. ” 17 T he parties vigorously dispute which of two precedents -- 18 UnitedStates v. Patrisso, 262 F.2d 194 ( 2d Cir . 1958) , and 19 UnitedStates v. Schultz, 333 F.3d393 (2d Cir. 2003) -- controls 20 this case. In Patrisso , a tru ckloadof television tubes was 21 hijacked; Patrisso, who knew they were stole n, sold them to 22 Ellis, who also knew; Ellis, in turn, sold them to Postrel; 23 finally, Postrel sold 1,000 of the m to defendant Mankes. 262 24-18-

F.2dat 196. We reversed Mankes’s conviction, finding that the 1 district court had erred by, inter alia, allowing the Government 2 to introduce Postrel’s knowledge of th e theft without evidence 3 that Postrel, or anyone else, had communicat ed that fact to 4 Mankes. Id. at 197. Over four decades later, in Schultz , we 5 di stinguished Patrisso in upholding the admission of testimo n y 6 regarding other individuals’ knowledge of a particular Egyptian 7 law to prove the defendant’s knowledge of the law, finding that 8 it was “relevant both to explain the practice of the industry in 9 which this prosecution arose andto establish what someone with 10 [defendant’s] extended background in the industry probablywould 11 know.” 333 F.3d at 416 (quoting United States v. Leo, 941 F.2d 12 181, 197 (3d Cir. 1991)). 13 We believe t hat Patrisso and Schultz , though they reach 14 di fferent outcomes, stand for the same principle: evid enc e 15 regarding the knowledge of individuals other than the defendant 16 shouldbe admitted only if there is some other evidence in the 17 record-- concerning, for example, the nature of the fraud or the 18 relationship of the parties -- from which to conclud e that the 19 defendant would have the same knowledge. Indeed, the Schultz 20 court notedthat the principal difference between the two cases 21 was the nature of the knowledge involved: Schultz was likely to 22 have the same knowledge, the defendant in Patrisso wasn’t. 333 23 F.3d at 416. What of Kaplan? 24-19- We turn first to relevance. Relevant evidence includes any 1 “evidence having any tendency to make the existence of any fact 2 that is of consequence t o the determination of the action more 3 probable or less probable than it wouldbe without the evidence.” 4 Fed. R. Evid. 401; see also Fed. R. Evid. 402. “Implicit in that 5 definition are two distinct requirements: (1) [t]he evidence must 6 be probative of the proposition it is offered to prove, and (2) 7 the proposition to be proved must be one that is of consequence 8 to the determination of the action.” United States v. Diaz, 878 9 F.2d608, 614 (2d Cir. 1989). As the Supreme Court has observed, 10 “[t]h e Rules’ basic standard of relevance . . . is a l ibera l 11 one.” Daubert v. Merrell Dow Pharms., 509 U.S. 579, 587 (1993). 12 Despite this liberal standard, we think this evidence had little 13 relevance in the circumstances of Kaplan’s case. Evidence of 14 others’ knowledge would have been highly relevant had it been 15 supplementedby evidence supporting the conc lusi on that such 16 knowledge was communicated to Kaplan, or that Kaplan had been 17 exposedto the same sources from which these others derived their 18 knowl edge of the fraud. In the absence of such evidence, the 19 relevance of others’ knowledge was at best minimal in proving 20 Kaplan’s knowledge. 21 Nor does our inquiryend there -- even as to evidence that 22 is plainly r el evant, the trial judge retains discretion to 23 exclude the evidence “if its prob ative value is substantially 24-20-

outweighedby the danger of unfair prejudice.” Fed. R. Ev id. 1 403. This evidence was of minimal probati ve val ue for two 2

reaso ns. First, as noted, the Government failed to off e r 3 evidence that wouldconnect the third parties’ knowledge of the 4 fraudto Kaplan. Under the Government’s own theory of the case, 5 Kaplan spent very little time at the law office and reviewed very 6 few claims directly. M oreove r, the Government proffered no 7 evidence that anyone who allegedly was a war e of the fraudulent 8 scheme actually had communicated his knowledge to Kaplan. In 9 fact, Galkovich testified that the participants in the fraudwere 10 carefu l not to speak openly about the fraudulent nature of the 11 injuryclaims: he testified that clients did not directly admit 12 to t he firm that their accidents were staged, but rather t ha t 13 “generallyit was done very subtl y,” and that he did not have 14 explicit c on versations about the fraud with clients or other 15 people in the office “because you don’t want to get in trouble . 16

. . It is kind of like, you know, hear no evil, see no evil. . . 17 . Everyone knew what was going on, but you don’t say it.” This 18

was not an office where the illegal nature of the business was 19 necessarilyvisible and audible to everyone who worked there. In 20 that sense, we think this case is more analogous to Patrisso than 21 to Schultz : as in Patrisso , the Government failed to offer 22

e vidence that would explain how defendant Kaplan woul d hav e 23 obtained the third parties’ knowledge of the criminal scheme. 24-21- Second, much of the testim on y concerning knowledge of the 1 fraudwas so speculative or flawed in other respects that it had 2 little or no probative v alue. For example, the Government did 3 not lay a proper foundation for Galkovich’s statement that it was 4 “[his] understandi ng that this whole business was very very -- 5 this whole industry was a very big sham and it was big lies”; 6 Galkovich wa s n ot qualified as one having special knowledge of 7 the personal injury “indu stry,” so it is difficult to see how 8 Ga lkovich had sufficient knowledge of the industry to te stif y 9 competentlyon its criminal nature. See Fed. R. Evid. 602 (“A 10 witness may not testify to a matter unless evidence is introduced 11 sufficient to support a finding that the witness has personal 12 knowledge of the matter.”); Woodman v. WWOR-TV, Inc., 41 1 F .3d 13 69, 86-87 (2d Cir. 2005) (affirming district court’s decision to 14 exclude plaintiff’s testimony that her a ge was “well known 15 throughout the industry” on g round that plaintiff was “hardly 16 competent to testify to how others in the broadcast community 17 perceivedher age ” (cit ing Fed. R. Evid. 602)). Galkovich’s 18 testimonyconcerning the allegedknowledge of Rosenberg, another 19 lawyer in the office, was hearsay upon hearsa y; Ros enberg 20 allegedly mad e statements to a secretary in the office, who 21 allegedlytold Galkovich, who of fered the jury the conclusion 22 that Rosenberg had quit his job because of fraud. Cf. Brown v. 23 Keane, 355 F.3d 82, 90 (2dCir. 2004) (“An assertion of fact 24-22-

basedon conjecture and surmise, to which the declarant would not 1 be allowed to testify if called to the witness b ox, does n ot 2 become admissible under an exception to the hearsay rule . . . 3 .”). 4 We conclude, furthermore, that this limited probative value 5 is s ub stantially outweighed by the risk of unfair prejudice. 6 Although relevant evidence is always prejudicial to one side, we 7 conclude that the risk of unfair prejudice here -- in particular , 8 the likelihood that jurors wouldrender a decision on an improper 9 basis bygiving this testimonyundue weight or improperly holding 10 Kaplan liable because they believedhe should have known of the 11 fraud-- was great. The jury was required to draw a series of 12 inferences, unsupported byother evidence, to connect Galkovich’s 13 testimonyabout his guilty knowledge (and that of others ) to 14 Ka plan’s own knowledge, the ultimate issue in the case. Under 15 the circumstances, the District Court should have concluded that 16 whatever slight probative value the testimony might have had was 17 outwei ghe dby the risk that the jury would draw improper 18 inferences from the testimony. Cf. United States v. Ravich, 421 19 F.2d 1196, 1204 n.10 (2dCir. 1970) (Friendly, J.) (“The length 20 of the chain of inferences necessary to connect the evidence with 21 the ultimate fact to be proved necessarily lessens the probative 22 value of the evidence, and may therefore render it more 23 susceptible to exclusion as unduly confusing, prejudicial, or 24-23-

time-consuming . . . .”). Moreover, Galkovich’s testimonythat 1 the entire industryin which Kaplan operatedwas “a very big sham 2 andit was big lies” was so inflammatory that it shouldhave been 3 excludedas prejudicial under the circumstances. Fu rth ermore, 4 the likelihood of prejudice was increased by the gover nment’ s 5 improper use of the evidence of others’ knowledge. In summation, 6 the prosecutor argued, “[Kaplan] had to know. Everybody else 7 did.” As noted, the evidence did not support any such inference. 8 Accordingly, with respect to Galkovich’s testimony regarding 9 his andothers’ knowledge of the fraud, we conclude that the risk 10 of unfair prejudice substantially outweighed the limited 11 probative value, and hold that the district court erred in 12 receiving this evidence. 13 C. Harmless error analysis 14 We will reverse on account of these evidentiary errors only 15 if they affect “substantial rights.” See Fed. R. Crim. P. 52(a); 16 Fed. R. Evid. 103(a); Yuri Garcia, 413 F.3d at 210. In Kotteakos 17

v . United States, the Supreme Court set forth the analys is fo r 18 determining whether a non-constitutional error is harmless: 19 If, when a ll is said and done, the conviction is sure 20 that the error did not influence the jur y, or had but 21 veryslight effect, the verdict and the judgment should 22 stand, except per ha ps where the departure is from a 23 constitutional norm or a specific command of Congress . 24

. . . But if one cannot say, with fair assurance, after 25 pondering all that happened without stripping the 26 erroneous action from the whole, that the judgment was 27 not substantially swayed by the error, it is impossible 28 to conclude that substantial rights were not affected. 29-24- The inquiry cannot be merely whether there was enough to 1 support the result, apart from the phase affectedby the 2 error. It is rather, even so, whether the error itself 3 hadsubstantial influence. If so, or if one is left in 4 grave doubt, the conviction cannot stand. 5 328 U.S. 750, 764-65 (1946) (footnote omitted); see also United 6 States v. Dukagjini, 326 F.3d 45, 62 (2d Cir. 2003) (holding that 7 non-constitutional error affects substantial rights if it had a 8 “substan tial a nd injurious effect or influence” on the jury’s 9 verdict). But “we are not requiredto conclude that it could not 10 have had any effect wha tever ; the error is harmless if we can 11 conclude that that testimony was ‘unimportant in r elation to 12 everything else the jury considered on the issue in question, as 13 revealed in the record.’” Rea, 958 F.2d at 1220 (quoting Yates 14

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

we p ri ncipally consider “(1) the overall strength of the 16 prosecution’s case; (2) the prosecutor’s conduct with respect to 17 the improperly admitted eviden ce; (3 ) the importance of the 18 wronglyadmitted testimony; and ( 4) whether such evidence was 19 cumulative of other properly admitted evidence.” Zappulla v. New 20 York, 391 F.3d 462, 468 (2d Cir. 2004). 21 Applyi ng these factors, it is clear that Galkovich’s lay 22 opinion testimony may have “substantially swayed,” Kotteakos, 328 23 U.S. a t 765, the jury’s verdict on Counts One through Five 24 because it was not “unimportant in relation to everyth ing else 253 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 The Government’s 1

case on those five counts rested principally on the following 2 evidence: the recorded conversations during which Kaplan, 3 Sherman, and Medvedovsk y toldGalkovich to lie, Kaplan’s sham 4 purchase of the Law Office, Kaplan’s disinterest in cases filed 5 byt he Law Off ice in his name, Kaplan’s absence from the Law 6 Office, the arrangement between the Law Office and Prostaff and 7 Medvedovsky, Kaplan’s rec eipt o f over $70,000 for his limited 8

se rvices at the Law Office, and his false statements upo n hi s 9 arrest. Although the Government may, of course, prove its case 10

exc lusivelywith such circumstantial evidence, their case with 11 respect to those counts was not strong. 12 As a result, and because Kaplan’s knowledge of the fraud was 13 the central disputed issue in the case, Galkovich’s lay opinion 14 testimonywas vitally important -- just the sort of evidence that 15 might well sway a jury confronted with a marginal circumstantial 16

case. Our concern is heightened by the Government’s trial 17 strategywith respect to the evidence; the Government repeatedly 18 calledthe jury’s attention to Galkovich’s layopinion testimony. 19 In its opening statement, the Government told the jury that 20 “Galkovich will recount for you conversations he had with Kaplan 21 during the sale in which they discussedthe fraudulent nature of 22-26-

the law practice.” In its closing, the Government reminded the 1 jurythat “Galkovich explained to you that that conversation, and 2 Kaplan’s comments, satisfiedGalkovich that Kaplan understood all 3 about the fraud,” and that “[w]e know . . . from the testimony of 4 the witnesses, that Solomon Kaplan knew, undeniablyknew, about 5 the fraud at the law firm.” In rebuttal, the Government stated 6 that “[K aplan] essentially admitted to Galkovich that he knew 7 what was going on at this law office. That w as how Galkovich 8 understoodwhat he said. It is not his opinion. He was there. 9 He had the conversation.” And, finally, we observ e that this 10 evidence was unique an d t hus was not cumulative of properly 11 admitted evidence. 12 Because we cannot, in light of the foregoing, say with fair 13

assu rance that Galkovich’s lay opinion testimony did not 14 “substantiallysway[]” the jury’s verdict as to Counts One, Two, 15 Three, Four, and Five, we conclude that this error was n ot 16 harmless and therefore vacate Ka plan’ s conviction on those 17 counts. 18 19 II. Counts Six and Seven: Interfering with the Investigation 20 We turn next to Kap lan’s arguments challenging his 21 conviction for interfering with the inve sti gation by tampering 22 with a witness (Count Six) and giving false statements to the FBI 23 (Count Seven). He argues on appeal, among other things, that his 244 We not e brie fly that to the extent Kaplan argues that

the evidentiary errors discussed in Se ct ion I compel us to vacate his conviction on Counts Six and Seven as well, we reject his argu ment. 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, andtestimony by the FBI age nt who took Kaplan’s post-arrest statement, to support his conviction. Moreover, the Government did not emphasize the testimonyin issue in urging the jury to convict Kaplan of these two counts. -27- conviction on those two co unts m ust be vacated due to the 1 district court’s witness tampering andconscious avoidance jury 2 instructions and a con stru ctive amendment of, or prejudicial 3 variance from, the i ndi ctment, as clarified by a bill of 4 particulars. 4 We address his arguments in turn. 5 A. Witness tampering jury instruction 6 Kaplan contends that the district court’s jury instruction 7 on Count Six, alleging witness tampering, is deficient in light 8 of the Supreme Court’s decision in Arthur Andersen LLP v. United 9 States, 544 U.S. 696 (2005), decided after his conviction. 10 Kaplan made no objection to this aspect of the jury 11 instruction. Therefore, we review his argument under the plain 12

error standard of Fed. R. Crim. P. 52(b). We have ruled that 13 when the claim of error derives from a supervening decision 14 altering a settledrule of law in the Circuit, as it does here, 15 the claimed error should be assessed und er a standard of 16 “modifiedplain-error.” See United States v. Viola, 35 F.3d 37, 175 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 modifiedplain error test, Kaplan is not entitled to have his witness tampering conviction overturned. -28- 41-44 (2d Cir. 1994). Ordinarily, the defendant asserting plain 1 error bears the burden of persuasion as to prejudice, but under 2

our “modified plain-error” review, t he G overnment bears that 3 burden. See id. at 41-42. In this case it makes no difference 4 whether the standard applied is the conventional or the modified 5 “plain error” standard because any error in the charge was 6 inconsequential and did not rise to the level of either 7 standard. 5 8 Count Six alleges violations of 18 U.S.C. §§ 1512(b)(1) and 9 (b)(3), which provide that: 10 (b) Whoever knowingly uses intimidation, threatens or 11 corruptlypersuades another perso n, or attempts to do 12 so, or engages in misleading cond uct toward another 13 person, with intent to-- 14 (1) influence, delay or prevent the test imo ny of 15 any person in an official proceeding; 16

. . . 17 (3) hinder, delay, or prevent the communication to 18 a law enforc em ent officer or judge of the United 19 States of information relating to the commission or 20 possible commission of a Federal offense or a 21 violation of conditions of probation, supervi s ed 22 release, parole, or r elease pending judicial 23 proceedings; 24 shall be fined under this title or imprisoned not more 25 than ten years, or both. 26 27 In Arthur Andersen , the Supreme Court found the distr ict 28 court’s instructions were deficient in two re spects -- they 29-29-

failedto convey the requireme nts of 18 U.S.C. § 1512(b)(2) of 1

mens rea and nexus to an official proceeding. As to the first of 2 t hese deficiencies, the district court in Arthur Anders e n 3 ins tructedthe jury that it could convict Arthur Anderse n o f 4 witness tampering in relation to an official proceeding if it 5 foundthat Arthur Andersen intended to “subver t, undermine, or 6 impede” governmental factfinding bysuggesting to its employees 7 that they enforce the document retention policy, and that “even 8 if [Arthur Andersen] honestly and sincerely believed tha t it s 9 conduct was lawful, you mayfind [Arthur Andersen] guilty.” 544 10 U.S. at 706. These instructions, the Supreme Court held, did not 11 properlyconvey the mens rea re quiredfor a violation of 18 12 U.S.C. § 1512(b) -- they “diluted the meaning of ‘corruptly’ so 13 that it covered innocent conduct,” id. -- because “[o]nly persons 14 conscious of wrongdoing can be saidto ‘knowingly . . . corruptly 15 persuad[e],’” id. (emphasis supplied). 16 As to the se cond d eficiency -- regarding the so-called 17 “nexus requirement” -- the Supreme Court in Arthur Andersen found 18 the instructions deficient because “[a ] ‘knowingly . . . 19 corrup[t] persuade[r]’ cannot be someone who persuades others to 20 shreddocuments under a document re tention policy when he does 21 not have in contemplation any particular official proceeding in 22 wh ich th ose documents might be material,” id. at 708, and the 23 district court’s instructions “led the jury to believe th at it 24-30-

didnot have t o find anynexus between the ‘persua[sion]’ to 1 destroydocuments and any pa rticular proceeding,” id. at 707. 2 Cf. United States v. Arthur Andersen, 374 F.3d281, 298 n.32 (5th 3 Cir. 2004) (reciting district court’s charge in Arthur Andersen 4 defining “official proceeding”). Instead, a “knowingly . . . 5

co rrupt persuader” must believe that his actions are likely t o 6 affect a particular, existing or foreseeable official proceeding. 7 See Arthur Andersen, 544 U.S. at 708; see also United States v. 8 Quattrone, 441 F.3d 153, 181 (2d Cir. 2006) (holding that Arthur 9 Andersen requires that there be “some nexus between the effort to 10 tamper . . . pertaining to the relevant proceeding and awareness 11 that such conduct was likely to affect the proceeding”). 12 Kaplan contends that the district court’s i nst ructions in 13 this case are similarly deficient . The district court instructed 14 the jury on Count Six as follows: 15 The first element the government must prove is that 16 the defendant corruptly persuaded a person, or attempted 17 to do so. 18

. . . . 19 The word “corruptly” simply means having an 20 improper purpose. An intent to subvert or undermine the 21 f actf inding ability of an official proceeding is an 22 improper purpose . . .” 23 The second element that the government must prove 24 is that the defendant acted kno wingly and with the 25 sp ecific intent to influence the testimony of anothe r 26 person in an official federal proceeding. 27 An act is done “knowin gl y” if it is done 28 voluntarilyand intentionallyand not because of mistake 29 or accident. 30 Byspecific intent, I meant that the defendant must 31 have acted knowingly and w ith th e unlawful intent to 32 influence the testimony of another person in an official 33-31- federal proceeding; or to hinder, delay or prevent the 1 co mmunication to a federal law enforcement officer o r 2 judge information relating to the commission or possible 3 commission of a federal offense. 4 5 JA 287-88. 6 Applying the lessons of Arthur Anderse n , we find that the 7 charge adequate ly conveyed the statute’s mens rea requirement. 8 Viewi ng the charge as whole, the district court conveyed the 9 substantial equivalent of Arthur Anders en ’s holding that the 10 defendant must be “conscious of wrong do ing” by instructing the 11 juryto convict only if it found that the defendant acted with an 12 “improper purpose” and “a cted k nowingly and with the unlawful 13 in tent to influence the testimony.” We note that the Su prem e 14 Court in Arthur Andersen expressly faultedthe jury instructions 15 in that case for (1) specifying that the jury couldconvict if it 16 foundthat Arthur A nd ersen intended to “subvert, undermine, or 17 impede ” (emphasis added) because “‘impede’ has broader 18 connotations than ‘subvert’ or even ‘undermin e, ’ and many of 19 these connotations do not incorporate any ‘corruptness’ at all,” 20 544 U.S . a t 706-07 (brackets omitted), and (2) instructing the 21 jury that “even if [Arthur Andersen] honestly and sincere l y 22 believedthat its conduct was lawful, you may find [Arthur 23 Andersen] guilty,” id. at 706. The district court here charged 24

no thing of the sort. To convict, the jury had to findtha t 25 Kaplan acted with an “improper pu rpose” and with “unlawful 26 intent.” 27-32- Second, with regardto Kaplan’s argument that the district 1 court’s instructions were erroneous in light of Arthur Andersen ’s 2 discussion of the statute’s nexus requirement, we note first that 3 the charges in Arthur Andersen were brought under two clauses of 4 § 1512(b)(2), both of which explicitly include as an element that 5 the obstruction or tampering relate to an “official proceeding,” 6

see id. at 702. Kaplan, however, was charged under §§ 1512(b)(1) 7 and(3). Wit h resp ect to § 1512(b)(3), it is unclear whether 8 Arthur Andersen ’s nexus requirement is applicable because § 9 1512(b)(3) does not explicitly refer to an “official proceeding.” 10 See United States v. Byrne, 435 F.3d 16, 23-25 (1st Cir. 2006). 11 We need not decide this issue, because even if the n exu s 12 requirement is applicable to prosecutions under § 1512(b)(3), and 13 the district co ur t’s instructions under § 1512(b)(3) were 14

erroneous for failure to discuss nexus, any such error was 15 harmless in the circumstances of this case for the reasons 16 discussed below. 17 Kaplan was, as noted, also charged under § 1512(b)(1), which 18 do es con tain an explicitly stated element of an “official 19 proc ee ding.” The jury instructions on this charge undoubtedly 20 neededto comply with the nexus requirement discussed in Arthur 21 Andersen . The district court instructed the jury that the 22 government “ mu st prove” that the defendant acted “with the 23 specific intent to influence the testimony of another person in 24-33-

an o fficial federal proceeding.” The instructions did not 1 identifythe official proceeding. In view of the Supreme Court’s 2 discussion in Arthur Andersen, 544 U.S. at 707 (find ing the 3 instructions infirm because they led the juryto believe that it 4 didnot have to find any nexus between the “pe rsuasi on” to 5 dest roy documents and any “particular proceeding”), it would 6 surelyhave been more p rud ent, even where the evidence only 7 p oin ts to one federal proceeding, for the district judge to 8 identifythe “particular” federal proceeding that the defendant 9 intendedto obstruct. We need not decide whether the failure to 10 d o so in this case was error, because as we note below, it was 11 harmless in any event. 12 Furthermore, in Quattrone, 441 F.3d at 153 , the district 13 court, following the Supreme Court ’s formulation of the nexus 14 requirement in United States v. Aguilar, 515 U.S. 593, 599 15 (1995), described nexus to the jury as “some relat ionship in 16 time, causation or logic, between the defendant’s actions and the 17 grand jury proceeding so that his action or actions may be said 18 to have the natural and probable effect of interfering with that 19 proceeding.” Quattrone, 441 F.3d at 177 n.24. We ruled that this 20 instruction accurately describedthe nexus requirement. Id. at 21 178. The instructions given below did not contain this language, 22

or its reasonable equivalent. In that regard, they we r e 23 deficient. 24-34- Nevertheless, Kapla n is not entitled to reversal of his 1 conviction on Count Six. Despite this error andother arguable 2 deficiencies in the char ge on nexus, any deficiencies were 3 harmless in the particular circumstances of the case and did not 4 amount to plain error. Unlike the defendants in Arthur Andersen 5 and Quattrone , who, in accordance with a routine file purging 6 policy, had urgeddestruction of documents that they maynot have 7 known were relevant to any “particular proceeding, ” Art hur 8 Andersen, 544 U.S. at 707, Kaplan, according to the government’s 9 evidence, dire ct ly participated in an effort to influence 10 Galkovich’s testimony. In his summation, Kaplan impl i citly 11 concededthat, if the jury foun d that he urged Galkovich to 12 testifyfalsely, it was with respect to ei the r the state 13 disciplinaryproceeding or the federal criminal proceeding. 14 Kaplan arg ued th at the jury should find that any such effort 15 relatedto the state disciplinaryproceeding, and was therefore 16 not covered by § 1512. His ar gument , however, implicitly 17 concededthat, if th e jury rejected his contention that his 18 efforts related to the disciplinary proceeding, the ef f orts 19 “relat[ed] in time, causation or logic,” Quattrone, 441 F.3d at 20 177 n.24, to Galkovich’s federal criminal proceeding. 21 Ac cordingly, the court’s failure to explain in full an eleme n t 22 that Kaplan had essentially conceded was harmless. 23-35- In sum, any error in the jury instructions was harmless and 1 does not meet the standard of plain error. We reject Kaplan’s 2 argument that we must vacate his conviction on Count Six. 3 B. Conscious avoidance jury instruction 4 Kaplan contends that it was error for the district court to 5 give a conscious avoidance charge on C ount Six. We agree but 6 conclude that the error was harmless. 7 A n instruction on conscious avoidance is proper only “(i ) 8 when a defendant asserts the lack of some specific aspect of 9 knowledge required for convi ction and (ii) the appropriate 10 factual predicate for the charge exists.” Quattrone, 441 F.3d at 11 181 (internal citations omitted). As for t he seco nd of thes e 12 requirem en ts, a factual predicate exists when “the evidence is 13 such that a rational juror may reach the conclusio n beyo nd a 14 reasonable doubt that the defendant was aware of a high 15 probabilityof the fact in dispute a ndconsciously avoided 16 confirming that fact.” Id. (internal quotation marks omitted). 17 Evidence su ffici ent to find actual knowledge does not 18 necessarilyconstitute evidence sufficient to find conscious 19 avoidance. See United States v. Ferrarini, 219 F.3d 145, 157 (2d 20 Cir. 2000) (“The evidence shows that [defendant] actually knew of 21 the frauds; it is not sufficient to permit a finding that he 22 consciouslyavoided confirming them. The fact that a jury can -- 23

on the evidence -- find actual knowledge does not mean that it 246 We reject Kaplan’s argument that it was error for the

district cou rt to give a conscious avoidance charge when the government argued actual knowledge in the alternative. Although we noted in Ferrar ini 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 knowi ng wha t was plain,” UnitedStates v. Hopkins, 53 F.3d 533, 542 (2d Cir. 1995) . So long as the Government can establish a factual pred icate for conscious avoidance, it is free to argue alternative theories of conscious avoidance and actual knowledge. -36- can also find conscious avoida nce .”). Because the only record 1 evidence indicates that Kaplan had actual kn owledge of the 2 witness tampering, there was no factual predicate for a conscious 3 avoidance charge on Count Six, and it was error for the district 4 court to give it. 6 5 Nevertheless, we find that th e error was harmless because 6 there was overwhelming evidence of Kaplan’s actual knowledge and 7 direct involvement in the witness tampering, see ante at 8. See 8 Quattrone, 441 F.3d at 181 (quoting Ferrarini, 219 F.3d at 154) 9 (“But an erroneously given conscious avoidance instruction 10 constitu tes ha rmless error if the jury was charged on actual 11 knowledge and there was ‘overwhelming evid en ce’ to support a 12 finding that the defendant instead possessed actual knowledge of 13 the fact at issue.”). 14 15 167 On appeal, Kaplan does not challenge the sufficiency of

this evidence to support his conviction on Count Seven. -37- C. Variance between bill of particulars and proof 1 Finally, Kaplan argues that the Government’s proof at trial 2 constructivelyamended, or prejudicially variedfrom, Count Seven 3 of the indictment, as clarified in a bill of particulars. We 4 disagree. 5 Count Seven, which arises f ro m the statements that Kaplan 6 made to the FBI after his arrest, all eges t hat Kaplan “made 7 materiallyfalse, fictitious, and fraudulent statements and 8 representations, to wit, KAPLAN falsely informed an agent of the 9 Federal Bureau of Investigation about the circumstances 10 surrounding his purchase of a law practice from [Galkovich].” JA 11 17-18. These false statements were disclosed to Kaplan in an FBI 12 report prio r to trial. In response to Kaplan’s request for a 13 bill of particulars, the Government stated that “the statements 14

co ntaine din paragraphs three and four on page one of Kaplan’s 15 post-arrest statement form the basis of Count Seven.” 16 At trial, the Go vernme nt offered ample proof of numerous 17 false statements. 7 In summation, the Government principally 18 contendedthat seven statements were false: Kaplan told the FBI 19 that (1) he wa s intr oduced to Galkovich and Medvedvosky by a 20 Vlad im ir Scheckman; (2) “he received a thousand cases from 21 Galkovich as a result of the sale;” (3) the Law Office was sold 22-38-

to him for $120,000; (4) he did not r ecall who gave him the 1 $20,000 check usedto purchase the Law Office; (5) he was assured 2 byMedvedovsky and Galkovich that the charges against Galkovich 3 “were nothing [because] Galkovich had done nothing wrong”; (6) he 4 “just stopped by” the January 8 meeting betwee n Galkovich, 5 Medvedovsky, and Sherman without planning in ad vance to 6 participate; and (7) he did not take the conversation on January 7 8 “very seriously” andthat they were just “joking around.” Only 8

one of these statements -- co ncerning how Kaplan had met 9 Galkovich and Medved ovsky -- was specified in the bill of 10 particulars. 11 Thi s does not constitute a constructive amendment of th e 12 indictment. “To prevail on a constructive amendment claim, a 13 defendant must demonstrate that either the proof at trial or the 14 trial court’s jury instructions so altered an essential element 15 of the charge that, upon review, it is uncer tain w hether the 16 defendant was convicted of conduct that was the su bject of the 17 grand jury’s indictment.” United States v. Salmonese, 352 F.3d 18 608, 620 (2d Cir. 2003). Here, because the Government provedthe 19 essential elements of the crime charged in Count Seven -- albeit 20 with different proof, as indicat ed above -- the indictment was 21 not constructively amended. See, e.g., UnitedStates v. Wallace, 22 59 F.3d 333, 337 (2dCir. 1995) (holding that no constructive 23-39-

amendment occurs “where a generally framed indictment encompasses 1 the specific legal theory or evidence used at trial”). 2 Avaria nce, o n the other hand, occurs when the charging 3 terms remain unaltered but the facts proven at trial differ from 4 those alleged in the indictmen t or b ill of particulars. See 5 UnitedStates v. Dupre, 462 F.3d 131, 140 (2d Cir. 2006); United 6 States v. Glaze, 313 F.2d 757, 759 (2d Cir. 1963) (holding that 7

once the Government has responded with a bill of particulars, it 8 is “strictly limited to proving what it has set forth in it.”). 9 However, we will rev erse on ac count of a variance only if it 10 pr ejudices the defendant by infringing on the “substan tia l 11 rights” that indictments exist to protect -- “to inform an 12

acc usedof the charges against him so that he may prepare hi s 13 defense and to avoid double jeopardy.” Dupre, 462 F.3d at 140; 14

see also Glaze, 313 F.2dat 75 9 (“it is well settled that a 15 variance between the proof an d the bill of particulars is not 16 grounds for reversal unless the [defendant] is prejudiced by the 17 variance.”). 18 Assum ing arguendo there was a variance, we detect n o 19 prejudice to Kaplan’s ability to prepare his defense or interpose 20

a defense of double jeopardy. Where the defendant has notice of 21 the “core of criminali ty” to be proven at trial, we have 22 permitted“significant flexibility” in proof without finding 23 prejudice. See United States v. LaSpina, 299 F.3d 165, 181-82 24-40-

(2dCir. 2002); see also Salmonese, 21 F.3d at 1236 (“A defendant 1 cannot demonstrate that he has been prejudiced b y a va riance 2 where the pleading and the proof substantially correspond . . . 3 .”). For example, in D upre , we concluded that the proof of a 4 wire transfer other than that specified in the indictment was a 5 variance but did not prejudice the defendant because she was not 6 surprisedby the proof, 462 F.3dat 141-42, and suffered no risk 7

o f doub le jeopardy, id. at 143 n.12. Additionally, we have 8 routinelyfoundthat no prejudice results from a variance between 9 overt acts charged in an indictmen t and those proved at trial. 10 See, e.g., Frank, 156 F.3d at 337; LaSpina, 299 F.3dat 182-83; 11 Salmonese, 352 F.3d at 622 (“In this case, because [ the ] 12 [i]ndictment . . . gave [defendant] fair and adequate notice that 13 the conspiratorial scheme achieved its ultimate economic purpose 14 through the conspirators’ multiple sales of stripped securities 15 andtheir receipt of proceeds through June 1 99 6, [defendant] 16 cannot show that he was prejudiced by proof of a few uncharged 17 proceed receipts after May 8, 1996.”). 18 T he alleged variance here in issue similarly does no t 19 justifyreversal. Before trial, the government gave Kaplan the 20 FBI report detailing all of his statements. Count Seven of the 21 indictment was broadly framed, giving Kaplan notice of the “core 22 of criminality” to be proven at trial. And Kaplan’s counsel did 23 not object to the admission of the false statements not specified 24-41-

in the bill of particulars, nor did he request a continuance when 1 they w ere introduced. There is therefore no indication in the 2 recordthat the evidence adduced at tr ial unfairly surprised 3 Kaplan, exposed him to a risk of doub le jeo pardy, or unfairly 4 prejudi cedh im in any other way. The variance did not create 5 error, much less the plain error that arguablywas required to be 6 shown as a result of Kaplan’s failure to object. 7 We therefore reject Kaplan’s argument that the Government’s 8 proof at trial const ruc tively amended, or prejudicially varied 9 from, Count Seven of the indictment. 10 11 CONCLUSION 12 We have considered all of Kaplan’s remainin g arguments on 13 appeal and find them to be without m erit. For the reasons set 14 forth above, the judgment of conviction is vacated as to Counts 15 One, Two, Three, Four, and Five, and affirmed as to Counts Six 16 andSeven. The cas e is remanded for further proceedings 17 consistent with this opinion. 18