1 UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 94-20400

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JOHN J. JOHNSON,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

October 31, 1995

Before WISDOM, HIGGINBOTHAM, and PARKER, Circuit Judges.

WISDOM, Circuit Judge.

The appellant, John J. Johnson, was indicted for agreeing to

rig bids on food service contracts, for making fraudulent

s tatements in a bid on a federal contract, and for conspiracy to

commit mail fraud. Johnson filed a motion to dismiss the

indictment, which the district court denied. At trial, Johnson was

convicted of bid rigging and mail fraud, but was acquitted of

making false statements on a federal contract. Johnson now alleges

error both in the conduct of the trial, and in the district court's

initial decision not to dismiss the indictment against him. For

the reasons that follow, we AFFIRM.2 BACKGROUND

During the 1980's, Glazier Foods Co. (“Glazier”), White Swan,

Inc., and Sysco, Inc., were the three major food service

distributors in the Houston, Texas area. John Johnson, the

appellant, was employed by Gla zier, and was responsible for

submitting that company's bids for school and hospital contracts.

Joseph Mobley performed this service for Sysco, and James Maurice

Johnson ("Maurice") did the same for White Swan.

In 1985, Mobley approached Johnson and asked him to rig

Glazier's bid for an upcoming contract. Johnson agreed, and the

two men subsequently rigged their bids for a number of other

contracts. In 1986, Maurice joined White Swan, and significantly

underbid both Sysco and Glazier on at least one contract during

that school term. As a result, Mobley and Johnson approached

Maurice about joining the bid rigging arrangement sometime in 1987.

Maurice agreed, and t he three men rigged bids until late 1989 or

1990, when the Department of Justice ("the government") began

investigating their activities.

Several month s into the investigation, Mobley agreed to

cooperate with the government. He met with government officials

ten to twelve times in 1990, and at their request, began to put

together a "bid book" of the bids he thought were rigged. Because

Mobley had no ind ependent memory of when the conspiracy started,

and had previously erased from Sysco's records all of the direct

information about the conspiracy, Mobley created his bid books

solely from examining Sysco's profit margins on various accounts.3

Based on this information, Mobley went before a grand jury and

testified that he and Johnson had conspired to rig bids from 1987

until the beginning of the government investigation.

Around the time Mobley began to work with the government, he

gave his personal attorney a box of materials that included a tape

recording of Johnson and himself agreeing to rig bids on several

school district contracts in the 198 5-86 school term. Mobley's

attorney did not turn this tape over to the government until

November 1991.

At that time, Mobley listened to the tape with the government,

and determined that the conversation with Johnson took place in

July 1985. Based on the tape, Johnson altered his "bid book" to

reflect the 1985 bids. Mobley then reappeared before the grand

jury, and revised his testimony to say that his conspiracy with

Johnson started in 1985.

In March 1991, Maurice also entered into a plea bargain with

the government. Afterwards, Johnson called Maurice several times

to talk about the investigation. Each time, the two men discussed

Mr. Johnson's dissatisfaction with his counsel, and Maurice

frequently urged Johnson to enter a plea. When the government

learned that Maurice and Johnson were still in contact, they asked

Mauri ce to allow them to tape two phone calls to Johnson in an

attempt to determine what involvement other Glazier officials may

have had in the con spiracy. Government officials specifically

warned Maurice not to discuss Johnson's relationship with his

attorney in the two taped conversations, but J ohnson raised the4

subject each time. Maurice ignored government signals to change

the subject and urged Johnson to plead guilty. The government

terminated the second conversation when Johnson tried to set up a

three-way conversation with his attorney.

Neither conversation produced any evidence about the

conspiracy, and the tapes were not used either to obtain the

indictment or at trial. Johnson did not enter a plea, and retained

his attorney through the trial and appeal process.

On July 7, 1992, a grand jury returned a three count

indictme nt against Johnson, alleging that he took part in one

continuous conspiracy to arrange bids from 1985 to 1990. The

indictment charged him with one count of arranging to rig bids, one

count of filing a false statement on a fe deral contract, and one

count of conspiring to commit mail fraud.

Johnson filed a motion to dismiss the indictment on the

grounds that the gove rnment's participation in the two telephone

calls between Maurice and Johnson interfered with Johnson's

relationship with his lawyer. The district court denied the

motion, and the case went to trial.

At trial, over Johnson's objection, the government introduced

the 1985 tape of Johnson and Mobley conspiring to rig bids. At the

end of evidence, Johnson moved for a judgment of acquittal, arguing

that the tape proved a separate conspiracy from the one proved by

the rest of the evidence, thus creating a fatal variance with the

single conspiracy charged in the indictment against him. Johnson

also asked the district court to instruct the jury on his theory of1 United States v. Graves, 556 F.2d 1319, 1322 (5th Cir.1977),

cert denied, 435 U.S. 923 (1978).

5 multiple conspiracies. The district court denied both motions, and

the jury convicted Johnson of arranging to rig bids and of mail

fraud, but acquitted him of making a false statement on a federal

contract.

Johnson now appeals his conviction on four grounds. First, he

maintains th at the district court should have dismissed the

indictment against him because the government's pre-indictment

conduct allegedly interfered with his attorney-client relationship.

Second, Johnson argues that the 1985 tape of himself and Mobley

should have been excluded from evidence because it was unreliable

and had a suspect chain of custody. Third, Johnson maintains that

the district court should have granted his motion for a judgment of

acquittal on the grounds of a fatal variance between the indictment

and the proof at trial. Finally, Johnson argues that the district

court erred by not instructing the jury on the possibility of

multiple conspiracies. We consider each of these arguments in

turn.

I.

Johnson maintains that th e government violated his Fifth

Amendment due process rights by initiating and taping the phone

calls in which Maurice disparaged Johnson's lawyer an d urged

Johnson to plead guilty. The decision to dismiss a case on this

basis is a question of law that is reviewed de novo by this court. 1

Government miscon duct does not mandate dismissal of an2 United States v. Russell , 411 U.S. 423, 431-32 (1973).

3 United States v. Yater

, 756 F.2d 1058, 1066 (5th Cir.), cert.

denied , 474 U.S. 901 (1985).

4 United States v. Heinz, 983 F.2d 609, 613 (5th Cir. 1993).

6 indictment unless it is "so outra geous" that it violates the

principle of "fundamental fairness" under the due process clause of

the Fifth Amendment. 2 Such a violation will only be found in the

rarest circumstances. 3 We find that the government conduct in this

case did not reach such an extreme level.

The evidence shows that the government did not intend to be a

part of conversations regarding J ohnson's attorney, and took

precautions against such discussions. Agents instructed Maurice

not to discuss Johnson's attorney, and signaled him to change the

subject when Johnson brought up the topic. An agent terminated the

second call when Johnson attempted to call his attorney and have

him speak to Maurice. Government conduct was not so outrageous

that this court must dismiss the indictment.

Johnson also suggests that the district court should have

dismissed the indict m ent against him because the government's

conduct violated the Texas State Bar Rule and the American Bar

Association Model Rule that prohibits a prosecutor from contacting

someone known to be represented by an attorney. Such professional

disciplinary rules do not apply to government conduct prior to

indictment, however, and certainly do not apply t o the

indiscreti ons of a non-attorney government informant. 4 Thus,

Johnson’s argument is unpersuasive.5 United States v. Weeks, 919 F.2d 248, 254 (5th Cir. 1990),

cert. denied, 499 U.S. 954 (1991).

6 Johnson also argues that this tape was inadmissible because

it referred to what he calls the "1985 conspiracy," and thus was

irrelevant to the "1987 to 1990 c onspiracy" proved at trial.

Johnson concedes that he did no t make this argument to the court

prior to the admission of the tape recording. Thus, he may not

appeal the admissibility of the tape on this ground. Johnson did

preserve for appeal the issue of a fatal variance in the trial as

a whole, however. This issue will be discussed in the next

section.

7 U nited States v. Bermea

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

denied, 115 S. Ct. 1113 and 1825 (1995).

7 Furthermore, there is no evidence that Johnson was

prejudiced by the government's actions. A defendant must show

prejudice to his ability to receive a fair trial before charges

will be dismissed. 5 In this case, the recorded conversations were

not introduced at the trial. Johnson was not induced to cooperate

with the government, and has retained his lawyer throughout his

trial and appeal. He has presented no specific allegation of

ineffective representation or a factual explanation of how the

convers ations with Maurice prejudiced his ability to present a

defense. Thus, the district court was correct to deny Johnson's

motion to dismiss his indictment.

II.

John son next appeals the district court's decision to admit

into evidence the tape of a 1985 conversation between Johnson and

Mobley, a co-conspirator. He argues that the tape was unreliable

and had an improper chain of custody. 6

A district court's decision to admit evidence is reviewed for

an abuse of discretion. 7 Any break in the chain of custody affects8 Id.

9 U nited Sta tes v. Sparks , 2 F.3d 574, 582 (5th Cir. 1993),

cert. denied , 114 S. Ct. 720, 899, 1548 (1994).

8 the weight, not the adm issibility of evidence. 8 Thus, if the

district court correctly finds that the government has made a prima

facie showing of authenticity, then the evidence is admissible, and

issues of authenticity are for the jury to decide. 9

The record in this case clearly shows that the government made

the necessary showing of authenticity. Mobley testified that he

made the tape in 1985, placed the tape in a desk drawer, and forgot

about it u ntil 1990, when he came under investigation. At that

time, Mobley gave the tape to his attorney, along with various

other materials. Mobley's attorney testified that he did not

discover the tape until he and Mobley were preparing for a

depos ition in 1991. At that time, he immediately gave it to his

secretary. The secretary testified that the tape stayed in her

desk until she turned it over to the government in November of

1991. In addition, the government submitted expert testimony that

no one had tampered with the tape. Johnson has not challenged any

of this evidence. Thus, it is clear the government made a prima

facie showing of admissibility. The district court did not abuse

its discretion in admitting the tape into evidence.

III

Johnson next argues that the district court shou ld have

granted his motion for a judgment of acquittal on the grounds of a

fatal variance between the inditcment and the proof at trial. He1 0 Unite d States v. Faulkner, 17 F.3d 1350, 1357 (5th Cir.),

cert denied , 114 S. Ct. 1861 and 2119 (1994).

9 maintains that Mobley’s tape proved one conspiracy in 1985 between

Sysco and Glazier Foods, and that the other evidence proved a later

conspiracy between all three companies beginning in 1987.

In reviewing a claim of fatal variance, this court will

reverse a conviction only if the evidence at trial varied from the

allegations of the indictment and the variance prejudiced the

defendant's substantial rights. 10 Johnson’s appeal fails on both

grounds.

The evidence at trial was consistent with the single

conspiracy charged in the indictment. Although Mobley included

only post-1987 contracts in his "bid book" that he relied on during

testimony, Mobley testifi ed that he had not prepared the same

documents for the contracts rigged prior to 1987, and that he had

destroyed other documentation regarding the c onspiracy. He

testified, however, that the conspiracy began in 1985 with the Deer

Park School district, and that he and Johnson rigged at least that

one district from 1985 until 1990.

Johnson's only evidence that there was no such conspiracy in

the 1986-1987 school year is Maurice's testimony that competition

was "fierce" in that year. Maurice was not a part of the

conspiracy at that time , however, and could only have been

discussing the situation with his company still making competitive

bids. In fact, Mobley testified that he suspected there was a

conspiracy between Sysco and Glazier in 1986-1987 because his own1 1 United States v. Atkins, 834 F.2d 426, 432 (5th Cir. 1987).

1 2 U nited States v. Robinson, 974 F.2d 575 , 578 (5th Cir.

1992).

1 3 See United States v. Winship, 724 F.2d 1116, 1123 (5th Cir.

1984).

1 4 United States v. Lokey, 945 F.2d 825, 835 (5th Cir. 1991).

10 bid on one contract came in "about 99 percent less" than those of

the other two companies, and because shortly therea fter Mobley

asked him to join the conspiracy.

Contr ary to the suggestion of the appellant, the fact that

Maurice later joined the existing conspiracy does not turn the

single conspiracy into two separate conspiracies. 1 1 Thus, the

evidence produced at trial sufficien tly proved the single

conspiracy charged in the indictment.

Moreover, even if the evidenc e had proved two separate

conspiracies, Johnson was not pre judiced by the variance. A

defendant's rights are affected i f the defendant is surprised at

trial or placed at risk of double jeopardy. 12 Johnson has not made

either argument. Furthermore, because Johnson was at the center of

both conspiracies, there can be no fear of transference of guilt

between the two crimes. 13 Thus, the district court properly denied

Johnson's request for a judgment of acquittal.

IV

Johnson's final argument is that the trial judge erred by not

instructing the jury on multiple conspiracies. This court reviews

the trial court's refusal to give a particular instruction for

abuse of discretion. 14 A party appealing the refusal must show that1 5 United States v. Broussard , 987 F.2d 215, 223 (5th Cir.

1993).

1 6 Unite d States v. Hernandez, 962 F.2d 1152, 1160 (5th Cir.

1992).

11 the requested instruction was substantially correct; that it was

not substantially covered by the trial court's instructions; and

that it concerned an issue so important that the omission seriously

imp aired the defendant's ability to present a given defense. 1 5

Johnson has not met this burden.

Johnson's proposed instruction would have incorrectly required

the jury to automatically acquit him if it found that multiple

conspiraci es existed, without further instructing that it could

still convict Johnson if it found that he was a party to one of the

conspiracies charged in the indictment. 16 The charge given by the

trial court a dequately instructed the jury that it could not

convi ct Johnson unless the government proved beyond a reasonable

doub t that the defendant knowingly joined in the c onspiracy

described in the indictment

. Finally, because Johnson has failed

to show how the alleged fatal variance prejudiced his substantive

rights, Johnson's defense could not have been seriously impaired by

the district court's refusal to give the proposed charge. The

district court therefore correctly refused to instruct the jury on

Johnson's multiple conspiracy theory.

CONCLUSION

For the foregoing reasons, we AFFIRM the conviction against

John Johnson.