PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

 

No. 94-4338 

D. C. Docket No. 91-708-CR-JAG

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

WILLIAM CASTRO,

ARTHUR LUONGO,

NANCY LECHTNER,

HARRY BOEHME,

Defendants-Appellants.

 

Appeals from the United States District Court

for the Southern District of Florida

(July 12, 1996)

Before HATCHETT and BARKETT Circuit Judges, and GODBOLD, Senior

Circuit Judge.

HATCHETT, Circuit Judge:

In this "Operation Court Broom" appeal, we affirm the

appellants' convictions and sentences.

FACTS

In the late l980s, federal and state law enforcement

officials conducted "Operation Court Broom," an investigation
2

into alleged corrupt activities occurring among judges and

lawyers in the Dade County Florida Circuit Court. One of the

targets of the investigation, Roy T. Gelber, took the office of

circuit court judge for the Eleventh Judicial Circuit in Dade

County in January l989. Prior to becoming a circuit court judge

in l989, Gelber served as an elected county court judge for Dade

County since l987 and previously had practiced as a criminal

defense attorney. 

In Metropolitan Dade County, circuit court judges have the

authority to appoint special assistant public defenders (SAPDs)

and approve their compensation terms for which Metropolitan Dade

County issues payment upon receipt of a court approved bill. 

Shortly after assuming the position of circuit court judge,

Gelber had discussions with another circuit court judge, Alfonso

C. Sepe, regarding making SAPD appointments for kickbacks. Sepe

arranged to have Gelber appoint Arthur Massey, a lawyer, as an

SAPD in return for kickbacks. Gelber appointed Massey to some

cases and received kickbacks for those appointments. Likewise,

Judge Harvey N. Shenberg arranged for Gelber to appoint Manny

Casabielle and Miguel DeGrandy, lawyers, as SAPDs in return for

kickback payments. 

In August of l989, state and federal law enforcement

officials procured the services of Raymond Takiff, a lawyer, to

act in an undercover capacity as a corrupt lawyer in the

Operation Court Broom investigation. From August l989 to June

l99l, Takiff engaged in a number of corrupt activities with
3

Gelber and other judges in the Eleventh Judicial Circuit. Most

of Gelber's conversations with Takiff regarding illegal conduct

were tape-recorded. Takiff enlisted Gelber and other judges in

activities ranging from paying kickbacks and fixing cases to

releasing the name of a confidential informant believing that the

informant would be killed. Sepe, Shenberg, and Judge Philip S.

Davis participated in many of the schemes.

During the relevant period, Gelber recruited his secretary 

to assist him in the kickback scheme. Gelber asked the secretary

if she knew any lawyers who would be willing to accept

appointments as SAPDs in return for paying him kickbacks. Upon

her agreement, Gelber used the secretary as a conduit to lawyers

agreeing to join the kickback scheme. The secretary approached

Arthur Luongo, Harry Boehme, and Nancy Lechtner, all lawyers,

asking them to join in the kickback scheme. All of the lawyers

agreed to accept SAPD appointments in exchange for paying

kickbacks.

Gelber approached William Castro, a lawyer, in the fall of

l989 about the possibility of Castro investing in Gelber's

corporation. Castro did not want to invest in the corporation,

but he agreed to assist Gelber financially through paying

kickbacks for receiving SAPD appointments. Gelber and Castro

agreed that Castro would pay Gelber twenty percent of his

anticipated fees within a few days of receiving appointments. 

Gelber began appointing Castro to cases, and Castro paid

kickbacks for those appointments. Gelber received an average
 1

 Gelber, an unindicted coconspirator, pleaded guilty to

RICO conspiracy and testified for the government.

4

kickback payment of $1,000 from Castro. A few months after

Castro began paying kickbacks to Gelber, Castro convinced Gelber

to bring Kent Wheeler, a lawyer, into the kickback scheme. 

Castro served as an intermediary between Gelber and Wheeler

because Gelber did not know Wheeler well. 

From October l989 to June 8, l99l, Gelber appointed Castro

to sixty-four cases and received $77,000 in kickbacks. From

January l990 to June 8, l99l, Gelber appointed Wheeler to thirtyseven cases and received $34,000 in kickbacks. Similarly, Gelber

appointed Boehme to twelve cases for $l3,000 in kickbacks;

Lechtner to four cases for $7,000 in kickbacks; and Luongo to

thirty-one cases for over $20,000 in kickbacks.

PROCEDURAL HISTORY

On May 27, l992, a federal grand jury in the Southern

District of Florida returned a superseding l06-count indictment

against William Castro, Arthur Luongo, Harry Boehme, Nancy

Lechtner, (appellants) and codefendants Harvey N. Shenberg,

Alfonso Sepe, Phillip Davis, David Goodhart, and Arthur Massey. 

The indictment charged appellants with conspiracy to violate RICO

in violation of l8 U.S.C. §§ l962(d) and l963(a), mail fraud in

violation of l8 U.S.C. §§ l34l, l346, and bribery in violation of

l8 U.S.C. § 666(a)(2).1

Appellants moved to dismiss the RICO conspiracy count, mail

fraud, and bribery counts for failure to state an offense. The
5

district court denied these motions. In July l992, appellants

filed their first round of severance motions based on prejudicial

misjoinder seeking separate trials from each other, codefendant

Massey, and the indicted judges. The district court severed the

trial of Judges Goodhart, Sepe, Shenberg, and Davis from

appellants' trial, and severed Massey's trial from the

appellants. The district court denied appellants' subsequent

motions to sever their trials from each other. The trial began

on October 25, l993. At the close of the government's case-inchief, appellants moved for judgment of acquittal on all counts

under Rule 29 of the Federal Rules of Criminal Procedure. The

district court denied the motions. Appellants renewed the

motions at the conclusion of their case, and the district court

again denied the motions. The jury returned guilty verdicts as

to all appellants on all counts. 

The district court sentenced Castro to concurrent terms of

thirty-seven months imprisonment, three years supervised release, 

and ordered him to pay a $l,400 special assessment. The district

court sentenced Luongo to thirty-seven months imprisonment, three

years supervised release, and ordered him to pay $850 in fines. 

The district court sentenced Lechtner to concurrent terms of

thirty months imprisonment, three years supervised release, and

ordered her to pay a $300 special assessment. The district court

sentenced Boehme to concurrent terms of twenty-four months

imprisonment, two years supervised release, and ordered him to

pay a $500 special assessment. This appeal followed.
6

 CONTENTIONS

First, appellants contend that the government failed to

prove the existence of a single RICO conspiracy. Appellants

assert that the government offered proof of multiple

conspiracies, and that this constitutes an impermissible variance

from the charge of a single conspiracy. Appellants also claim

that the district court's failure to sever their trial amounted

to a misjoinder. Second, appellants contend that the government

failed to present evidence sufficient to establish that they

agreed to affect the "operation or management" of the RICO

enterprise as required under Reves v. Ernst & Young, ll3 S. Ct.

ll63 (l993).

Third, appellants contend that the district court's jury 

instructions and the prosecutor's summation constructively

amended the RICO conspiracy count of the indictment by referring 

to the Eleventh Judicial Circuit as the RICO enterprise, rather

than the Circuit Court of the Eleventh Judicial Circuit. 

Appellants insists that the district court's instructions and the

prosecutor's summation resulted in an expansion of the indictment

because the government failed to introduce evidence demonstrating

that the Circuit Court of the Eleventh Judicial Circuit affected

interstate commerce. 

Fourth, appellants contend that their bribery convictions

cannot stand because the evidence failed to prove that they

intended to influence an agent of Metropolitan Dade County. 

Specifically, appellants argue that since the government charged
7

Metropolitan Dade County as the agency receiving federal grant

money, under l8 U.S.C. § 666 the government had to prove that

appellants' bribes were intended to influence or reward an agent

of Metropolitan Dade County. 

Fifth, appellants contend that the mail fraud counts fail to

state an offense. Appellants assert that l8 U.S.C. § l346 does

not protect a sovereign state from the fraudulent deprivation of

intangible rights. Also, appellants maintain that the term

"honest services" in section l346 is unconstitutionally vague. 

Sixth, appellants contend that the prosecutor impermissibly

vouched for the credibility of a government witness and made

improper and prejudicial remarks during closing arguments. 

Seventh, appellants contend that the district court erred in

preventing them from offering evidence to prove a government

witness's self-interest, bias, and motive.

First, the government contends that a RICO conspiracy charge

brings a defendant within the conspiracy regardless of the

unrelatedness of the acts of the other members of the conspiracy

as long as the government can show an agreement on an overall

objective or that the defendant agreed to the commission of two

or more predicate acts, individually or through others. The

government contends that no material variance occurred because a

reasonable trier of fact could have found beyond a reasonable

doubt the existence of a single conspiracy. Also, for this

reason, the government contends that the appellants were properly

joined. 
8

Second, the government contends that the appellants were

convicted of a RICO conspiracy, and not a substantive RICO

offense. Therefore, the government only had to allege and prove

that the appellants "agreed" to affect the operation or

management of the RICO enterprise, and not that the appellants

actually exerted any control or direction over the RICO

enterprise. Third, the government contends that when the

prosecutor's summation and the district court's instructions are

viewed in context, it is clear that no constructive amendment

occurred. Fourth, the government contends that the evidence

presented at trial was sufficient to establish that appellants

intended to influence an agent of Metropolitan Dade County. 

Fifth, the government contends that the plain language of l8

U.S.C. §§ l34l and l346 does not exclude governmental entities

such as a state from coverage under the mail fraud statute. The

government also asserts that this circuit has already rejected a

void-for-vagueness challenge to section l346. Sixth, the

government contends that it properly argued the credibility of

the witness based on the evidence in the record and did not make

prejudicial remarks during closing arguments. Seventh, the

government contends that the district court did not abuse its

discretion in preventing appellants' proffer of extrinsic

evidence to show specific prior conduct to impeach a government

witness. 
9

ISSUES

The issues we address in this appeal are: (l) whether a

material variance or misjoinder occurred; (2) whether sufficient

evidence existed to establish that appellants conspired to

participate in the RICO enterprise; (3) whether the district

court's instructions and the prosecutor's summations

constructively amended the RICO conspiracy count of the

indictment; (4) whether appellants were properly convicted for

bribery under 18 U.S.C. § 666(a)(2); (5) whether appellants were

properly convicted for mail fraud under 18 U.S.C. §§ 1341, 1346;

(6) whether prosecutorial misconduct occurred through

impermissible vouching for witness's credibility and through

improper remarks; and (7) whether the district court abused its

discretion in excluding appellants' proffered evidence.

STANDARDS OF REVIEW

This appeal involves multiple issues requiring differing

standards of review. We review the claim of a material variance

through viewing the evidence in the light most favorable to the

government to determine whether a reasonable trier of fact could

have found that a single conspiracy existed beyond a reasonable

doubt. United States v. Reed, 980 F.2d l568, l58l (llth Cir.),

cert. denied, ll3 S. Ct. 3063 (l993). We will uphold the

conviction unless the variance (l) was material and (2)

substantially prejudiced the defendant. Reed, 980 F.2d at l58l. 

Our review of the claim of a misjoinder is plenary. United

States v. Morales, 868 F.2d 1562, 1567 (11th Cir. 1989).
10

We review the sufficiency of the evidence de novo, viewing

the evidence in the light most favorable to the government and

drawing all reasonable inferences in favor of the jury's verdict. 

United States v. Church, 955 F.2d 688, 693 (llth Cir.), cert.

denied, 506 U.S. 88l (l992). In evaluating whether the

indictment was constructively amended, we review the district

court's jury instructions and the prosecutor's summation "in

context" to determine whether an expansion of the indictment

occurred either literally or in effect. United States v. Behety,

32 F.3d 503, 509 (llth Cir. l994), cert. denied, ll5 S. Ct. 2568

(l995). 

In reviewing the claim of prosecutorial misconduct, we

assess (l) whether the challenged comments were improper and (2)

if so, whether they prejudicially affected the substantial rights

of the defendant. United States v. Obregon, 893 F.2d l307, l3l0

(llth Cir.), cert. denied, 494 U.S. l090 (l990). We review a

district court's evidentiary rulings for abuse of discretion. 

United States v. Calle, 822 F.2d l0l6, l020 (llth Cir. l987). 

Finally, our review of a district court's legal conclusion is de

novo. United States v. Waymer, 55 F.3d 564, 568 (llth Cir.

l995). 

DISCUSSION

I. Material Variance and Joinder

Appellants contend that at best the government's proof at

trial revealed the existence of multiple conspiracies even though

the indictment only charged a single conspiracy. For this
 2

 In Bonner v. City of Prichard, 66l F.2d l206 (llth Cir.

l98l) (en banc), the Eleventh Circuit adopted as binding

precedent all decisions of the former Fifth Circuit Court of

Appeals rendered prior to October l, l98l.

11

reason, appellants claim that a material variance occurred that

constitutes reversible error under United States v. Sutherland,

656 F.2d ll8l, ll89 (5th Cir. Unit A l98l), cert. denied, 455

U.S. 949 (l982).2

 Appellants also contend that they were

improperly joined because the government failed to prove that any

of them knew about other lawyers participating in the kickback

scheme or whether any of them knew of the existence of a single

conspiracy.

A material variance between an indictment and the

government's proof at trial occurs if the government proves

multiple conspiracies under an indictment alleging only a single

conspiracy. Kotteakos v. United States, 328 U.S. 750 (l946). 

In order to prove a RICO conspiracy, the government must show an

agreement to violate a substantive RICO provision. United States

v. Gonzalez, 92l F.2d l530, l539 (llth Cir.), cert. denied, 502

U.S. 860 (l99l). Specifically, the government must prove that

the conspirators agreed to participate directly or indirectly in

the affairs of an enterprise through a pattern of racketeering

activity. 18 U.S.C.A. § 1962(d) (West l984); United States v.

Sutherland, 656 F.2d 1181, 1191-1192 (5th Cir. Unit A 1981),

cert. denied, 455 U.S. 949 (1982). 

The government may prove the existence of a an "agreement"

to participate in a RICO conspiracy through showing (l) the
12

existence of an agreement on an overall objective, or (2) in the

absence of an agreement, on an overall objective that the

defendant agreed personally to commit two or more predicate acts. 

United States v. Church, 955 F.2d 688, 694 (llth Cir. l993),

cert. denied, 506 U.S. 88l (l992). In meeting its burden of

proof on showing an agreement on an overall objective, the

government must offer direct evidence of an explicit agreement on

an overall objective or, in the absence of direct evidence, the

government must offer circumstantial evidence demonstrating "that

each defendant must necessarily have known that others were also

conspiring to participate in the same enterprise through a

pattern of racketeering activity." Sutherland, 656 F.2d at 1193-

1194; see also, United States v. Valera, 845 F.2d 923, 929-30

(llth Cir. l988), cert. denied, 490 U.S. l046 (l989). 

In this case, the indictment charged a single RICO

conspiracy, and the government presented evidence that adequately

proved the existence of a single conspiracy. At trial, Gelber

testified that he informed the appellants that they would not

only receive appointments from him but also from another judge in

the circuit court. In light of this testimony, each appellant

knew that at least two circuit judges agreed to use the Circuit

Court of the Eleventh Judicial Circuit to engage in a kickback

scheme. In addition to Gelber's testimony, other evidence 

adduced at trial indicates appellants' agreement to participate

in and awareness that others also participated in a single

conspiracy. For example, when Gelber's secretary asked appellant
 3

 We note that when a defendant "embarks upon a criminal

venture of indefinite outline, he takes his chances as to its

content and membership, so be it that they fall within the common

purposes as he understands them." United States v. Elliot, 57l

F.2d 880, 905 (5th Cir. l978) (quoting United States v.

Andolschek, l42 F.2d 503, 507 (2d Cir. l944). 

13

Boehme to enroll in the kickback scheme, she asked him whether he

wished to join the "preferred list" for court appointments. 

Similarly, appellant Lechtner was informed that a kickback scheme

was "something that's being done" in the Circuit Court of the

Eleventh Judicial Circuit. Appellant Castro actually recruited

another lawyer to join the kickback scheme. In light of this

evidence, we find that each appellant agreed on an overall

objective and agreed personally to commit two or more predicate

acts by paying kickbacks for SAPD appointments. 

Additionally we note that, contrary to appellants'

assertions, in proving the existence of a single RICO conspiracy,

the government does not need to prove that each conspirator

agreed with every other conspirator, knew of his fellow

conspirators, was aware of all of the details of the conspiracy, 

or contemplated participating in the same related crime. United

States v. Pepe, 747 F.2d 632, 659-60 (llth Cir. l984).3 In

viewing the evidence in the light most favorable to the

government, a jury could have reasonably concluded that one

common agreement on a single overall objective existed. 

Consequently, we find that no material variance occurred. 

In considering appellants' misjoinder claim, we recognize

that the Federal Rules of Criminal Procedure prohibit joinder of
 4

 Even where the evidence does not support proof of a single

conspiracy, we will not overturn a conviction unless either (l)

the proof adduced at trial was so different from the indictment

so as to unfairly surprise defendants in the preparation of their

defense, or (2) so many defendants exist that the jury was likely

to confuse the evidence at trial among the defendants. United

States v. LeQuire, 943 F.2d l554, l56l (llth Cir.) (citing United

States v. Caporale, 806 F.2d l487, l500 (llth Cir. l986), cert.

denied, 483 U.S. 1021 (l987)), cert. denied, 505 U.S. l223

(l992). 

14

defendants unless the indictment covered the same act or

transaction or the same series of acts or transactions. Fed. R.

Crim. P. 8(b). In this circuit we have observed that "[w]hether

or not separate offenses are part of a 'series of acts or

transactions' under 8(b) depends . . . on the relatedness of the

facts underlying each offense. . . . [W]hen the facts underlying

each offense are so closely connected that proof of such facts is

necessary to establish each offense, joinder of defendants and

offenses is proper." United States v. Welch, 656 F.2d l039, l049

(5th Cir. Unit A l98l) (quoting United States v. Gentile, 495

F.2d 626, 630 (5th Cir. 1974)), cert. denied, 456 U.S. 9l5

(l982). 

Since more than sufficient evidence existed in this trial to

support the indictment and conviction of a single conspiracy, we

conclude that no misjoinder occurred. United States v.

Weinstein, 762 F.2d l522, l54l, modified on other grounds, 778

F.2d 673 (llth Cir. l985), cert. denied, 475 U.S. lll0 (l986).4 

II. Sufficiency of the Evidence

Appellants contend that the government's evidence was

insufficient to establish that they conspired to participate in
 5

 In fact, the Court expressly disagreed with the District

of Columbia Circuit's suggestion that section l962(c) requires

significant control over or within an enterprise. Reves, ll3 S.

Ct. ll69, ll70 n.4 (l993). Outsiders may exert control over an

enterprise's affairs through illegal means sufficient to satisfy

Reves's requirements. See, e.g., Aetna Cas. Sur. Co. v. P & B

Autobody, 43 F.3d l546, l559-60 (lst Cir. l994) (auto repair

shops, their employees, and insurance claimants who submitted

fraudulent claims to insurance company caused the insurance

company to pay out large sums of money and thus exerted

sufficient control over affairs of the insurance company to

satisfy the dictates of Reves).

15

the "operation or management" of the RICO enterprise. Appellants

argue that under Reves v. Ernst & Young, ll3 S. Ct. ll63 (l993), 

the government was required to produce evidence showing that

appellants agreed to exercise control or direction in the

management of the Circuit Court of the Eleventh Judicial Circuit.

Appellants suggest that as outsiders they could not have exerted

the requisite degree of control over the "operation or

management" of the Circuit Court of the Eleventh Judicial Circuit

to meet the requirements of Reves. 

As a preliminary matter, we reject appellants' limited

reading of Reves. Under Reves, section l962(c) liability is not

limited to insiders or upper management as appellants suggests. 

Reves, ll3 S. Ct. at ll73. In Reves, the Supreme Court

emphasized that because the statute includes the phrase "to

participate directly or indirectly," RICO liability is not

confined to those with a formal position in the enterprise. 

Reves, ll3 S. Ct. at ll70.5 The language in Reves indicates that

persons in appellants' position fall within the scope of section

l962(c)'s coverage because "an enterprise might be operated or
16

managed by others associated with the enterprise who exert

control over it as for example by bribery." Reves, ll3 S. Ct. at

ll73 (emphasis added). 

We reject the appellants' narrow reading of Reves and their

attempt to infuse the Reves analysis into this case. In this

case, the indictment charged the appellants with RICO conspiracy

under section l962(d), and not a substantive RICO offense under

section l962(c). This court recently decided that the Reves

"operation or management" test does not apply to section l962(d)

convictions. United States v. Starrett, 55 F.3d l525, 1547 (llth

Cir. l995); see also Napoli v. United States, 45 F.3d 680, 683,

684 (2d Cir.), cert. denied, 115 S. Ct. 1796 (1995). Our view

of the evidence in the light most favorable to the government

indicates that more than sufficient evidence existed to

demonstrate that appellants "agreed" to affect the operation or

management of the Circuit Court of the Eleventh Judicial Circuit

through paying kickbacks. 

III. Constructive Amendment of Indictment

A constructive "amendment occurs when the essential elements

of the offense contained in the indictment are altered to broaden

the possible bases for conviction beyond what is contained in the

indictment." United States v. Behety, 32 F.3d 503, 508 (llth

Cir. l994) (quoting United States v. Keller, 9l6 F.2d 628, 634

(llth Cir. l990), cert. denied, 499 U.S. 978 (l99l)), cert.

denied 115 S. Ct. 2568 (1995). The indictment may be amended as

a result of erroneous jury instructions or a prosecutor's
17

statements. Behety, 32 F.3d at 508. When a constructive

amendment occurs it violates "a fundamental principle" stemming

from the Fifth Amendment: specifically, "that a defendant can

only be convicted for a crime charged in the indictment." United

States v. Keller, 9l6 F.2d 628, 633 (llth Cir. l990), cert.

denied, 499 U.S. 978 (l99l). 

In this case, appellants contend that a constructive

amendment of the indictment occurred on the RICO conspiracy count

because both the prosecutor's summation and the district court's

jury instructions substituted the "Eleventh Judicial Circuit" for

the "Circuit Court of the Eleventh Judicial Circuit" as the RICO

enterprise affecting interstate commerce. Appellants argue that

the jury relied on proof of the Eleventh Judicial Circuit's

effect on interstate commerce. Appellants claim that the

government failed to prove that the Circuit Court of the Eleventh

Judicial Circuit affected interstate commerce. 

In determining whether an indictment was constructively

amended, we must assess the prosecutor's comments and the court's

instructions "in context" to see whether the indictment was

expanded either literally or in effect. United States v.

Andrews, 850 F.2d l557, l559 (llth Cir. l988) (en banc), cert.

denied, 488 U.S. l032 (l989). Admittedly, at trial, the

prosecutor referred to the Eleventh Judicial Circuit, rather than

the Circuit Court of the Eleventh Judicial Circuit, as the RICO

enterprise in his closing argument. The prosecutor immediately

informed the jury, however, to rely on Judge Smith's testimony
18

which only defined the Circuit Court of the Eleventh Judicial

Circuit. Similarly, the district court instructed the jury that

the Eleventh Judicial Circuit was the RICO enterprise that must

have affected interstate commerce to satisfy the requirements of

section l962(d). 

Even though the jury heard the term Eleventh Judicial

Circuit during the trial, the government's evidence focused on

the circuit court's effect on interstate commerce. For example,

the government presented testimony from the court administrator

for the Eleventh Judicial Circuit of Dade County who testified

that the circuit court judges traveled out of state on business. 

Moreover, he testified that the circuit court purchased and used

computers, books, and supplies from vendors outside of Florida. 

Neither the court administrator nor Judge Smith explained to the

jury that the Circuit Court of the Eleventh Judicial Circuit was

a division of the Eleventh Judicial Circuit. 

When we view the prosecutor's single remark, the district

court's instructions, and the evidence proffered at trial in

context, we do not believe the jury could have convicted

appellants based upon a charge not contained in the indictment. 

IV. Bribery Convictions

Appellants contend that their bribery convictions must be

reversed. Appellants assert that since the government charged

them under l8 U.S.C. § 666(a)(2), the government was required to

show that they intended to enter into a direct exchange with an
 6

 The statute provides in relevant part:

(a) Whoever, if the circumstance described in

subsection (b) of this section exists--(2) corruptly

gives, offers, or agrees to give anything of value to

any person with intent to influence or reward an agent

of an organization or of a State, local or Indian

tribal government, or any agency thereof, in connection

with any business, transaction, or series of

transactions of such organization, government, or

agency involving anything of value of $5,000 or more .

. . . 

l8 U.S.C.A. § 666(a)(2) (West l976 & Supp. l995). 

19

agent of the organization receiving federal funds.6 Appellants

argue that the government produced no evidence showing that they

intended to influence or reward anyone in the Dade County Finance

Department. Moreover, appellants challenge the sufficiency of

the evidence presented at trial to establish that Metropolitan

Dade County received federal grants in excess of $l0,000.

At trial, the appropriate inquiry was: did the government

prove beyond a reasonable doubt that the appellants (l) gave or

offered to give a thing of value to any person (2) with the

corrupt intent to influence or reward an agent of an organization

that in a one-year period received benefits in excess of $l0,000

under a federal program (3) in connection with any business

transaction or series of transactions of such organization,

government, or agency involving anything of the value of $5,000

or more. l8 U.S.C.A. § 666(a)(2) (West l976 & Supp. l995). The

government presented evidence at trial establishing that the

appellants (l) paid kickbacks to Judge Gelber (2) with the intent

to have Judge Gelber appoint them as SAPDs and authorize an agent
20

of the Dade County Finance Department to issue them compensation

checks (3) in connection with their rendering of legal services

of a value exceeding $5,000.

We reject appellants' suggestion that the government had to

show a direct quid pro quo relationship between them and an agent

of the agency receiving federal funds. We believe that the

appellants' narrow reading of the bribery statute would belie the

statute's purpose "to protect the integrity of the vast sums of

money distributed through federal programs from theft, fraud, and

undue influence by bribery." S. Rep. No. 225, 98th Cong., 2d

Sess. 369-370 (l984), reprinted in l984 U.S.C.C.A.N. 3l82, 35l0-

ll. It is clear from the record that the appellants knew that

payments for SAPD services came from Metropolitan Dade County and

not the circuit court. Moreover, appellants also knew that they

could not receive payments from Metropolitan Dade County unless a

circuit court judge authorized Metropolitan Dade County to pay

the bill or influenced an agent in the Dade County Finance

Department to issue the checks. We believe that the government

proved that appellants not only intended to influence Gelber, but

they also intended to influence an agent in the Dade County

Finance department by having Gelber authorize the agent to issue

payments for their SAPD services. Accordingly, we hold that

appellants were properly convicted of bribery under l8 U.S.C. §

666(a)(2). 

Appellants also contend that the district court erred in

admitting the testimony, over objections, establishing that
 7

 Rule 602 provides: 

A witness may not testify to a matter unless

evidence is introduced sufficient to introduce a

finding that the witness has personal knowledge of the

matter. Evidence to prove personal knowledge may, but

need not, consist of the witness' own testimony. This

rule is subject to the provisions of rule 703, relating

to opinion testimony by expert witnesses. 

Fed. R. Evid. 602. 

 8

 Although Patterson could not recall the specific number of

grants Dade County received from l988 to l99l, he testified that

the grants exceeded $90 million in each year during that time

period which is substantially more than the $l0,000 statutory

requirement under l8 U.S.C. § 666.

21

Metropolitan Dade County received federal grants in excess of

$l0,000. Appellants argue that the district court should have

excluded the testimony of Willis Patterson, an assistant

controller in the Dade County Finance Department, as a violation

of Federal Rules of Evidence 602 and l002. 

We cannot agree with appellants' suggestion that the

district court abused its discretion in admitting Patterson's

testimony. According to Rule 602 of the Federal Rules of

Evidence, a witness may not testify to a matter unless evidence

is introduced to establish that the witness possesses personal

knowledge of the matter.7

 In this case, the record shows that

Patterson had personal knowledge about the federal grants that

Metropolitan Dade County received. Patterson testified that he

was the assistant controller of the Dade County Finance

Department for the past seven years, and his department was

responsible for receiving federal grant monies on behalf of the

county.8 The defense had an opportunity to cross-examine
22

Patterson about his personal knowledge but did not examine him. 

Accordingly, we find that the district court did not abuse its

discretion in admitting this testimony.

Similarly, we reject appellants' contention that under Rule

1002 of the Federal Rules of Evidence or "the best evidence rule"

the district court should have precluded Patterson's testimony

because the government should have entered composite exhibit 406

that detailed federal funds Metropolitan Dade County received. 

We do not believe that Rule 1002 of the Federal Rules of Evidence

was implicated in this case because the questions posed to

Patterson did not seek to elicit the "contents" of composite

exhibit 406. See, e.g., Allstate Ins. Co. v. Swann, 27 F.3d

l539, l542-43 (llth Cir. l994)(recognizing that Fed. R. Evid.

1002 does not always require the introduction of a writing merely

because the writing contains facts similar to the testimony). 

Rather, the questions were aimed at showing that Dade County

received substantially more than $l0,000 in federal grants, and

not necessarily the exact amount or details surrounding the

county's receipt of millions of dollars in federal grants. See

Swann, 27 F.3d at 1542-43 (finding that the best evidence rule

was not implicated where an insurance underwriting manager's

answers to questions based on his familiarity with underwriting

guidelines and did not necessarily require him to state the

contents of the underwriting guidelines). 

V. Mail Fraud
23

Appellants seek to invalidate their mail fraud conviction

because they claim (l) that the term "honest services" in the

mail fraud statute is unconstitutionally vague, and (2) that the

mail fraud statute does not extend to cover schemes whose

ultimate intent is to deprive a sovereign state of intangible

rights.

Since the appellants' void-for-vagueness challenge to

section l346 does not raise a First Amendment issue, we will

consider section l346 as applied to the facts of this case. 

United States v. Waymer, 55 F.3d 564, 568 (llth Cir. l995);

United States v. Awan, 966 F.2d l4l5, l424 (llth Cir. l992). In

assessing a statute under a void-for-vagueness challenge, we may

find a statute unconstitutionally vague when it fails to "define

the criminal offense with sufficient definiteness that ordinary

people can understand what conduct is prohibited and in a manner

that does not encourage arbitrary and discriminatory

enforcement." Kolendar v. Lawson, 46l U.S. 352, 357 (l983). 

Moreover, this court has observed that "[t]he

constitutionality of a vague statutory standard is closely

related to whether the standard incorporates a requirement of

mens rea." Waymer, 55 F.3d at 568 (citing Colautti v. Franklin,

439 U.S. 379 (l979)). In United States v. Conner, this court

also mentioned that "the statutory requirement that an act must

be willful or purposeful may not render certain, for all

purposes, a statutory definition of the crime which is in some

respects uncertain. But it does relieve the statute of the
 9

 Appellants did not challenge the sufficiency of the

evidence regarding the jury's findings of specific intent to

defraud. Also, appellants do not challenge the jury instructions

on specific intent. 

24

objection that it punishes without warning an offense which the

accused was unaware." United States v. Conner, 752 F.2d 566, 574

(llth Cir.) (quoting Screws v. United States, 325 U.S. 9l, l02 

(l945) (Douglas, J., concurring)), cert. denied sub nom., Taylor

v. United States, 474 U.S. 82l (l985). When the Second Circuit

addressed a challenge to section 1341 of the mail fraud statute

in United States v. Margiotta, that circuit found that section

l34l was not unconstitutionally vague because it "contains the

requirement that the defendant must have acted willfully and with

the specific intent to defraud." United States v. Margiotta, 688

F.2d l08, l29 (2d Cir. l982), cert. denied, 46l U.S. 9l3 (l983). 

We believe that the reasoning from the foregoing cases is

instructive here. In this case, the government had to prove that

the appellants had the "specific intent" to defraud. l8 U.S.C.A

§§ l34l, l346 (West l984 & Supp. l995). The jury found that

appellants had the specific intent to defraud the state of

Florida of its honest services. In light of the foregoing

reasoning, we hold that the term "honest services" in section

l346 was not unconstitutionally vague as applied to the

appellants.9

In considering appellants' argument regarding the scope of

the mail fraud statute's protection, we decline to adopt

appellants' construction of l8 U.S.C. §§ l34l and l346. Under
25

appellants' interpretation of sections 1341 and 1346, the mail

fraud statute would not protect states. First, appellants

contend that it is inconsistent with federalism principles to

apply this statute to a sovereign state. The Supreme Court has

made it clear, however, that Congress may forbid putting letters

into the post office when "such acts are done in furtherance of a

scheme that it regards contrary to public policy, whether it can

forbid the scheme or not." Badders v. United States, 240 U.S.

39l, 393 (l9l6). Therefore, appellants' federalism argument is

without merit.

Appellants also suggest that Congress's enactment of section

l346 restricts section l34l's protection to nongovernmental

victims. In l988, Congress enacted section l346 of the mail

fraud statute to state an offense for the deprivation of

intangible rights such as "honest services," thus overruling the

Supreme Court's decision in McNally v. United States, 483 U.S.

350 (l987). Pub. L. No. 100-690, § 7603, 102 Stat. 4508

(codified as amended at 18 U.S.C. § 1346 (1988)); see also 134

Cong. Rec. H11,251 (daily ed. Oct. 21, 1988). Appellants assert

that sections l34l and l346 read together seek to punish "whoever

having devised or intended to devise any scheme or artifice to

deprive 'another' of the intangible right of honest services

. . . places in any post office or authorized depository for mail

matter . . . ." Appellants argue that the term "another" cannot

encompass a state. We disagree. 
26

Neither the plain language of section 1346 nor its

legislative history supports the limitation appellants urge. We

find it instructive to note that prior to section 1346's

enactment, similar questions arose regarding the reach of section

1341's protection. In United States v. Martinez, the Third

Circuit found that the mail fraud statute protected the

Commonwealth of Pennsylvania from deprivation of its property

interests. United States v. Martinez, 905 F.2d 709, 715 (3d

Cir.), cert. denied, 498 U.S. 1017 (1990). 

Indeed, other cases decided based upon section l34l

violations, prior to the clarifying amendment of section l346,

support our finding that the mail fraud statute does protect

governmental entities such as a state. See, e.g., United States

v. Coyne, 4 F.3d l00, ll0-ll (2d Cir. l993) (upholding mail fraud

convictions where a county was victim of mail fraud); United

States v. Paccione, 949 F.2d ll83 (2d Cir. l99l) (affirming mail

fraud conviction where city of New York defrauded), cert. denied,

505 U.S. l220 (l992); United States v. Wilson, 904 F.2d 656,

660-6l (llth Cir. l990) (upholding mail fraud conviction where

indictment alleged defendants intended to defraud the Internal

Revenue Service), cert. denied, 502 U.S. 889 (l99l). We can

discern no reason to read sections l34l and l346 as appellants

suggest to exclude states, and presumably, all governmental

entities from the mail fraud statute's protection. We believe

that such a result would belie a clear congressional intent to
27

construe the mail fraud statute broadly. See generally United

States v. Martinez, 905 F.2d 709 (3d Cir. 1990).

VI. Prosecutorial Misconduct

Appellants contend that prosecutorial misconduct occurred in

two respects. First, appellants allege that the prosecutor

impermissibly vouched for the credibility of Gelber, the

government's main witness. Primarily, appellants' challenge the

prosecutor's attempts to elicit testimony from Gelber regarding

the truth telling provisions in his plea agreement. Second,

appellants contend that the prosecutor made disparaging remarks

about the defense attorneys and other improper remarks. 

Appellants state that the prosecutor suggested that prosecutors

are sworn to pursue justice while criminal defense attorneys are

beholden to the manipulation of the justice system.

When faced with a question of whether improper vouching

occurred we ask: "whether the jury could reasonably believe that

the prosecutor was indicating a personal belief in the witness's

credibility." United States v. Sims, 7l9 F.2d 375, 377 (l983),

cert. denied, 465 U.S. l034 (l984). In applying this test, we

look for whether (l) the prosecutor placed the prestige of the

government behind the witness by making explicit assurances of

the witness's credibility, or (2) the prosecutor implicitly

vouched for the witness's credibility by implying that evidence

not formally presented to the jury supports the witness's

testimony. Sims, 7l9 F.2d at 377.
28

Since appellants' initial concern is about Gelber's

testimony surrounding his plea agreement, we note that

prosecutors are not generally prohibited from entering a plea

agreement into evidence for the jury's consideration. United

States v. Dennis, 786 F.2d 1029, l047 n.l8 (11th Cir. 1986),

cert. denied, 48l U.S. 1037 (1987). Moreover, our careful review

of the circumstances under which this testimony was elicited

compels us to find that a jury could not have reasonably believed

that the prosecutor was personally vouching for Gelber's

credibility, or that the prosecutor was indicating that evidence

beyond what was presented to the jury supported Gelber's

testimony. In this case, the prosecutor merely questioned Gelber

about the requirements of the plea agreement to testify fully and

truthfully. Furthermore, in his questioning of Gelber, the

prosecutor merely pointed out that Gelber risked prosecution if

he perjured himself. We have found similar questioning proper. 

See United States v. Sims, 7l9 F.2d 375, 377 (llth Cir. l983),

cert. denied, 465 U.S. l034 (l984). Consequently, we find that

no prosecutorial misconduct occurred with respect to

impermissible vouching. 

A similar result obtains in our consideration of the

prosecutor's alleged disparaging remarks and other improper

statements. We may find prosecutorial misconduct where (1) a

prosecutor makes improper remarks (2) that prejudicially affect

the substantial rights of the defendant. United States v.

Eyster, 948 F.2d 1196, 1206 (11th Cir. 1991). 
29

Both the prosecution and defense came close to making

improper comments as they exchanged vitriol during closing

arguments. Appellants challenge the prosecutors following

remark: "And these fellows here, these guys are prosecutors,

they're sworn to be prosecutors, to pursue justice. These

defense counsel, they represent their clients, they come in here

and say what they want to help their clients." While we do not

condone the prosecutor's remarks, we cannot find that they

constitute grounds for reversal. The prosecutor made the

statement on rebuttal in response to the defense counsel's

comments that the prosecutors were liars and suborners of

perjury. The defense counsel invited the prosecutor's

concomitant attack. In light of the circumstances surrounding

the exchange and the substantial evidence against the appellants,

we cannot agree that appellants suffered any prejudice. See

United States v. Cotton, 631 F.2d 63, 66 (5th Cir. 1980) (where

defense counsel referred to government agents as liars, and

persons engaged in coverups, government entitled to respond to

assertions), cert. denied, 450 U.S. l032 (l98l). 

Appellants also contend that the prosecutor made improper

statements by trying to prove guilt by association. We find this

contention meritless as the prosecutor properly commented on the

evidence presented to the jury when he described the close

association that appellants shared with others involved in the

kickback scheme prior to and during their criminal activities. 

United States v. Tisdale, 817 F.2d 1552, 1555 (11th Cir.)
30

(stating that when the evidence supports a prosecutor's comments,

no error occurs), cert. denied, 484 U.S. 868 (1987).

VII. Exclusion of Witness Testimony

Appellants contend that reversible error occurred when the

district court precluded them from introducing a witness to

expose Gelber's self-interest, bias, or motive to testify

falsely. It is clear from the record, however, that appellants

sought to impeach Gelber's credibility through introducing

testimony of a convicted drug dealer regarding Gelber's alleged

prior bad act of soliciting help to smuggle marijuana. 

The district court did not abuse its discretion in excluding

this proposed testimony. Specific instances of prior bad acts

may not be admitted through extrinsic evidence to attack a

witness's credibility. Fed. R. Evid. 608(b); see also United

States v. Darwin, 757 F.2d 1193, 1204 (11th Cir. 1985), cert.

denied, 474 U.S. 1110 (1986). Consequently, we find that the

district court did not abuse its discretion in excluding this

testimony.

CONCLUSION

For the foregoing reasons, we affirm appellants' convictions

and sentences.

AFFIRMED