### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 14

- 20727

UNITED STATES OF AMERICA,

Plaintiff

- Appellee

v. MARK ALLAN JAMES,

Defendant

- Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:11

- CR

- 869

Before JONES, SMITH, and SOUTHWICK, Circuit Judges

. EDITH H. JONES, Circuit Judge : * Appellant Mark James was convicted of both a wire fraud conspiracy to defraud He wlett Packard and a money laundering conspiracy, in violation of
18 U.S.C. §§ 1349 and 1956(h), respectively. He was sentenced to concurrent terms of 60 months ’ imprisonment, supervised release, and res titution exceeding $13 million. His audaciou s scam e nabled him to bypass HP’ s controls on a special deep discount program and pocket the savings for himself in subsequent computer equipment sales.

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opini on should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED September 29, 2015 Lyle W. Cayce Clerk Case: 14-20727 Document: 00513211684 Page: 1 Date Filed: 09/29/2015No. 14

- 20727

2 On appeal , James raises only two issues: whether the indictment was constructivel y amended during the governm ent’s closing argument; and whether the district court abused its discretion by refusing to hold a post

verdict hearing concerning a hearing

- impaired j uror. Finding no reversible error of fact or law, we affirm.
1. James objected contemporaneously t o one comment in the government’ s closing argument. The indictme nt stated that James conspired

“ with others, know n and unknown to the grand jury” i n committing wire fraud. James’ s theory of defense was that HP knew he and his confederates were reselling computer equipment they obtained through the Big Deal program on the open market contrary to HP ’ s rules for the discount program. James argued tha t because HP “condoned” his activities, he had no intent to defraud. In closing, the government responded t hat even if a salesman or a person working in an HP warehouse knew what James was up to, this did not mean that HP condoned James’ s fraudulent purc hases and reselling. Instead, it made those employees co

- conspirators. James contends that this response

co nstructively amended the indi ctment by turning the indicted “outside conspiracy,” organized without HP’ s know ledge or acquiescence, into an “inside conspiracy” against the company. Like the district court, we fi nd no merit in this contention. The indict ment is broad enough to cover unnamed conspirators. Moreover, the government was entitled to inform the jury of a basic feature of corporate law: knowledge of low level employees cannot necessarily be imputed to the victim corporation itself. An indictm ent is impermissi bly amended only where a court

“ allows proof of an essential element of the crime on an alternative basis permitt ed by the statute but not charged in the indictment.” United States v. Slovacek , 867 F.2d 842, 847 (5th Cir. 1989) . That the indictment named co

conspirators who were outside HP did not, under its specific “ known and Case: 14-20727 Document: 00513211684 Page: 2 Date Filed: 09/29/2015No. 14

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3 unknown ” terms foreclose the government from proving the involvement, had it chosen to do so, of an employee inside HP. We emphasiz e, however, that the government ’ s argument here is best read only as a hypothetical response to the

“ condonation ” argument.
2. The ability of a juror to hear the trial proceedings is “ an internal matter, ” Tanner v. United States , 483 U.S. 107, 118 (1987). This court has held that “ in order to initiate any post

- verdict inquiry into an internal matter regarding a juror, an extremely strong showing of juror incompetence must be adduced, and substantial evidence of incompetence must ori ginate from a non

juror source.” United States v. Web ster , 960 F.2d 1301, 1306 (5th Cir. 1992) (citation omitted) . James denies the applicability of this stringent stand ard on the basis that the juror’ s hearing deficit was considered before tr ial and re

raised post

- verdict. But t he only case to which he r efers is distinguishable because it concerned allegations about juror conduct that were raised and delved into before the verdict was rendered. United States v. Sotelo , 97 F.3d 782, 797 ( 5th Cir. 1996). An extraordinary showing is reasonably required, however, when the losing party waits to impugn a juror until after rendition of the verdict. Weaver v. Puckett , 896 F.2d 126, 128 (5th Cir. 1990). No extraordinary showing w as made of this juror’ s hear ing difficulty

. The district court c arefully accommodated the juror’ s self

- described deficits by placing her nearest the witness box and instructing her to raise her hand if she could not hear at any point. J ames’ s only sp ecific objections are that (a) t he court had to repeat two questions to the juror during voir dire, and (b) the juror hesitated before being the first one polled on the verdict of conviction. Notably, defense counsel informed the court before it dismissed alternate jurors at the close o f trial that he was comfortable with “the usual procedure.” In other words, defense counsel withdrew his previously exp ressed concern about this juror’ s hearing difficulty. The trial court witnessed these events and later Case: 14-20727 Document: 00513211684 Page: 3 Date Filed: 09/29/2015No. 14

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4 wrote that the juror never indic ated she was having any t rouble hearing the proceedings. As to the polling, the court concluded that the juror was more likely hesitant because of the nature of an unfamiliar request rather than because she was hard of hearing. We find no error or a buse of discretion in the court’ s refusal to hold a post

- verdict hearing or declare a new trial because of the juror’ s hearing impairment. The judgment of conviction is AFFIRMED

. Case: 14-20727 Document: 00513211684 Page: 4 Date Filed: 09/29/2015