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 Hewlett 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 restitution 

exceeding $13 million. His audacious scam enabled 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 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

September 29, 2015

Lyle W. Cayce

Clerk

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On appeal, James raises only two issues: whether the indictment was 

constructively amended during the government’s closing argument; and 

whether the district court abused its discretion by refusing to hold a postverdict hearing concerning a hearing-impaired juror. Finding no reversible 

error of fact or law, we affirm.

1. James objected contemporaneously to one comment in the 

government’s closing argument. The indictment stated that James conspired 

“with others, known and unknown to the grand jury” in 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 that because HP “condoned” his activities, he had no intent to defraud. 

In closing, the government responded that 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 purchases and reselling. Instead, it 

made those employees co-conspirators. James contends that this response 

constructively amended the indictment by turning the indicted “outside 

conspiracy,” organized without HP’s knowledge or acquiescence, into an “inside 

conspiracy” against the company. 

Like the district court, we find no merit in this contention. The 

indictment 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 indictment is impermissibly amended only where a court 

“allows proof of an essential element of the crime on an alternative basis 

permitted 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 coconspirators who were outside HP did not, under its specific “known and 

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unknown” terms foreclose the government from proving the involvement, had 

it chosen to do so, of an employee inside HP. We emphasize, 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 originate from a nonjuror source.” United States v. Webster, 960 F.2d 1301, 1306 (5th Cir. 1992)

(citation omitted). James denies the applicability of this stringent standard 

on the basis that the juror’s hearing deficit was considered before trial and reraised post-verdict. But the only case to which he refers 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 was made of this juror’s hearing difficulty. 

The district court carefully 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. James’s only specific objections are that (a) the 

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 of trial that he was comfortable with “the usual procedure.” In other 

words, defense counsel withdrew his previously expressed concern about this 

juror’s hearing difficulty. The trial court witnessed these events and later 

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wrote that the juror never indicated she was having any trouble 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 abuse 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. 

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