NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 17a0328n.06 

Nos. 15-2222/2227 

UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT 

UNITED STATES OF AMERICA, ) 

 ) 

Plaintiff-Appellee, ) 

 ) ON APPEAL FROM THE 

v. ) UNITED STATES DISTRICT 

 ) COURT FOR THE EASTERN 

JEFFREY BEASLEY (15-2227); ) DISTRICT OF MICHIGAN 

PAUL STEWART (15-2222), ) 

 ) 

Defendants-Appellants. ) OPINION 

 )

 ) 

BEFORE: NORRIS, GIBBONS, and ROGERS, Circuit Judges. 

 ALAN E. NORRIS, Circuit Judge. This joint appeal involves another chapter in the 

tale of political corruption that plagued the city of Detroit under the administration of former 

mayor Kwame Kilpatrick. The mayor appointed defendant Jeffrey Beasley city treasurer of 

Detroit in 2005. In that capacity, Beasley served as an ex officio trustee for the city’s two public 

pension systems: the General Retirement System (“GRS”) and the Police and Fire Retirement 

System (“PFRS”). For his part, defendant Paul Stewart, a long-time Detroit police officer, served 

as an elected trustee of the PFRS during the same period. Both men allegedly used their trustee 

positions to defraud the pension systems. 

 After a lengthy trial, both defendants were convicted. Stewart was found guilty of 

Conspiracy to Commit Honest Services Mail and Wire Fraud, 18 U.S.C. §§ 1341 & 1346. He 

was sentenced to fifty-seven months of imprisonment and three years of supervised release. He 

does not appeal his sentence. Beasley was convicted on four counts: one count of Conspiracy to 
Nos. 15-2222/2227, United States v. Beasley, et al. 

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Commit Honest Services Mail and Wire Fraud; two counts of Interference with Commerce by 

Extortion, 18 U.S.C. § 1951 (Hobbs Act); and one count of Acceptance of Bribes, 18 U.S.C. 

§ 666(a)(1)(B). He received a sentence of 132 months of incarceration and three years of 

supervised release. Like his co-defendant, Beasley does not challenge his sentence. 

 The trial in this case began on October 7, 2014, and ended on December 8, 2014. 

The record is voluminous and includes several opinions and orders of the district court that 

address the majority of issues raised on appeal. After careful consideration of the arguments of 

the parties, we conclude that the district court thoroughly explained and properly resolved them. 

A reasoned opinion by this court is therefore not necessary. Instead, we will summarize the 

assignments of error raised by each defendant and point to the opinion and order of the district 

court that we rely upon in affirming. Where necessary, of course, we will offer our own analysis. 

 We begin with the assignments of error designated by defendant Stewart. The first of 

these alleges that he was deprived of his right to “conflict-free” counsel prior to and during his 

grand jury testimony. This contention was analyzed at length by the district court and rejected. 

United States v. Beasley, 27 F. Supp. 3d 793, 811-16 (E.D. Mich. 2014). We adopt the reasoning 

of the district court with respect to all aspects of his claim related to conflict-free representation. 

 Stewart next contends that the evidence presented during the trial, coupled with faulty 

jury instructions, constructively amended the indictment (or, in the alternative, constituted a 

variance). The constitutionally guaranteed right to an indictment by a grand jury “protects two 

other constitutional rights—the Sixth Amendment right to fair notice of the criminal charges 

against a defendant and the Fifth Amendment’s ‘protection[] against twice placing a defendant in 

jeopardy for the same offense.’” United States v. Hynes, 467 F.3d 951, 961 (6th Cir. 2006) 
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(quoting United States v. Combs, 369 F.3d 925, 935 (6th Cir. 2004)). Our review of a claim of 

constructive amendment is de novo. Id. at 961. 

 Stewart raised this argument to the district court, which rejected it in an Opinion and 

Order Denying Defendants’ Rule 29 Motion for Acquittal. United States v. Beasley, No. 12-

20030, 2015 WL 1737478, *12-19 (E.D. Mich. April 16, 2015). Specifically, the court noted that 

the presentation of additional evidence to substantiate charged offenses does not constitute a 

variance unless the facts differ materially from those charged in the indictment and, even if the 

government’s evidence did constitute a variance, defendant did not demonstrate that such a 

variance affected his substantial rights. Id. at *18-19. In short, defendant failed to show that his 

substantial rights were affected. Id. at *19. After our own independent review, we agree with this 

assessment and adopt the reasoning of the district court. 

 Finally, Stewart alleges a statute-of-limitations error. He was originally indicted in the 

Fifth Superseding Indictment. Although the case was tried pursuant to the Seventh Superseding 

Indictment, for limitations purposes, the district court instructed the jury based upon the filing of 

the Fifth Superseding Indictment: 

One of the questions in this case is whether the conspiracy charged in the 

indictment was in existence within five years from the date that the indictment 

was returned. The indictment was filed against Defendants Stewart and Zajac on 

March 21, 2013. Therefore, as to Defendant Stewart and Zajac, you must 

determine whether the conspiracy was in existence at some time on or after March 

21st, 2008. 

(Jury Instructions, Trial Tr. Vol 2, 28 Dec. 1, 2014, ECF No. 427.) This difference is significant 

because, if the date were to track the filing of the Seventh Superseding Indictment, then the 

charged conspiracy would have to have been still on-going as of April 16, 2009. 

 Stewart and his co-defendants moved to have the Fifth Superseding Indictment dismissed 

because the grand jury that issued it served eleven days over its term. The district court denied 
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their motion. It noted that the Fifth and Seventh Superseding Indictments are identical except for 

the correction of a typographical error, a change in font size, and other minor changes not 

relevant to the conspiracy count. And a “superseding indictment relate[s] back to the filing date 

of the original indictment for statute of limitations purposes.” United States v. Smith, 197 F.3d 

225, 228 (6th Cir. 1999). Therefore, “[s]ince the statute stops running with the bringing of the 

first indictment, a superseding indictment brought at any time while the first indictment is still 

pending, if and only if it does not broaden the charges made in the first indictment, cannot be 

barred by the statute of limitations.” Id. (quoting United States v. Grady, 544 F.2d 598, 601 (2d 

Cir. 1976)). The district court relied upon Smith when ruling on this issue. We agree that Smith 

controls and affirm based upon the reasoning of the district court. See United States v. Beasley, 

No. 12-20030, 2014 WL 1870796 (E.D. Mich. May 9, 2014). 

 We now turn to the assignments of error raised by defendant Beasley. The first of these 

alleges that the government produced insufficient evidence to support Beasley’s convictions in 

Counts 2 and 4 for Extortion, 18 U.S.C. § 1951. To prevail on a sufficiency of the evidence 

claim after a jury verdict, a defendant faces an onerous burden. This court must affirm the 

conviction if a review of the record leads us to conclude that any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable doubt. United States v. Calvetti, 

836 F.3d 654, 667 (6th Cir. 2016) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). 

 The district court rejected Beasley’s contentions in its Opinion and Order Denying 

Defendants’ Motions for Acquittal. See Beasley, 2015 WL 1737478, at *9-12. Our review of the 

record comports with the conclusion of the district court: the government introduced 

constitutionally sufficient evidence to support defendant’s convictions on Counts 2 and 4. We 

affirm on the reasoning of the district court. See id.
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 Beasley next challenges his conviction for bribery, found in Count 7 of the Seventh 

Superseding Indictment: 

 In or about August 2007, in the Eastern District of Michigan, Southern 

Division, and elsewhere, the defendant, JEFFREY BEASLEY, did knowingly 

and corruptly agree to accept and accept a vacation to the Turks and Caicos 

Islands for himself, his wife, and their children from ROY DIXON, intending to 

be influenced and rewarded in connection with his official duties regarding a 

business, transaction, or series of transaction of the City of Detroit, involving 

$5,000 or more, that is, investments and proposed investments with Onyx Capital 

Advisors and PR Investment Group. 

 All in violation of Title 18, United States Code, Section 666(a)(1)(B). 

(Count 7, Seventh Superseding Indictment 44, Apr. 16, 2014, ECF No. 190.) 

 Beasley terms his argument with respect to this count as jurisdictional in nature. The 

statute of conviction contains the following provision: 

The circumstances referred to in subsection (a) of this section [setting out 

elements of the bribery offense] is that the organization, government, or agency 

receives, in any one year period, benefits in excess of $10,000 under a Federal 

program involving a grant, contract, subsidy, loan, guarantee, insurance, or other 

form of Federal assistance. 

18 U.S.C. § 666(b). 

 Beasley contends that Count 7 of the indictment failed to mention this requirement. 

While ¶1 of the indictment’s introduction mentioned that Beasley was an official with the City of 

Detroit and ¶ 13 alleged that the city received more than $10,000 in federal funding during all of 

the relevant years, those allegations were not specifically incorporated into Count 7. Beasley 

takes the position that each count of an indictment must be viewed separately and the sufficiency 

of Count 7 must be determined without reference to any other count. 

 The district court rejected this argument, relying upon the allegations in the indictment’s 

introduction. (Mot. J. Acquittal Hr’g, Trial Tr. Vol 26, 39 Nov. 17, 2014, ECF No. 422.) This 

court has upheld the sufficiency of an indictment that failed to explicitly incorporate allegations 
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about defendant’s agency status. See United States v. Hudson, 491 F.3d 590, 593 (6th Cir. 2007). 

In Hudson, we held that while the requisite allegation regarding the agency element in count one 

may not have been incorporated into counts two and three, defendant was sufficiently on notice. 

Id. 

 Consistent with Hudson, we agree with the district court that Count 7 was sufficiently 

pleaded. 

 Finally, Beasley contends that the prosecution engaged in “forensic misconduct” by 

referring to pensioners and the losses of the retirement systems in the closing argument in an 

inappropriate attempt to play upon the sympathy of the jury. 

 Beasley correctly notes that numerous cases hold that prosecutorial statements solely 

designed to inflame the jurors’ passions are not appropriate. See, e.g., Johnson v. Bell, 525 F.3d 

466, 484 (6th Cir. 2008) (closing argument that encourage juror identification with crime victims 

are improper). Likewise, appeals to the jury to do its “civic duty” to convict are improper. See 

Littlejohn v. Trammell, 704 F.3d 817, 841 (10th Cir. 2013); Cox v. Curtin, 698 F. Supp. 2d 918, 

944 (W.D. Mich. 2010) (noting that a prosecutor may not argue that jurors should convict a 

defendant as part of their civic duty). 

 On review of the closing argument, although we may agree that it would have been 

preferable had the prosecution not advanced these arguments, the closing argument was lengthy, 

and the challenged portions represented a small strand of the overall position taken by the 

government. In addition, the district court properly instructed the jury that arguments are not 

evidence and a jury is, of course, presumed to follow the instructions they are given. United 

States v. Taylor, 814 F.3d 340, 365 (6th Cir. 2016) (citing Perry v. Johnson, 532 U.S. 782, 799 

(2001)). Looked at in the entire context of the trial, there was no abuse of discretion in the 
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district court’s decision to overrule counsel’s objection to the introduction of the challenged 

statements. 

 The judgments of the district court as to each defendant are affirmed.