UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GROUP ONE

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4414

BENNY JUSTUS,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4415

LAWRENCE EDWARD JUSTUS,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4416

JIMMY LEE MCCOY,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4436

MELISSA MCCOY,

Defendant-Appellant.
UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4513

PHYLLIS MCCOY,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4534

KIRBY COLEMAN,

Defendant-Appellant.

_________________________________________________________________

COUNSEL

ARGUED: Birg Eugene Sergeant, Pennington Gap, Virginia; James

Douglas Fleenor, Bristol, Virginia, for Appellants. Steven Randall

Ramseyer, Assistant United States Attorney, Abingdon, Virginia, for

Appellee. ON BRIEF: Herbert H. Clay, Marion, Virginia, for Appellant Benny Justus; John P. Bradwell, SHORTRIDGE &

SHORTRIDGE, Norton, Virginia, for Appellant Melissa McCoy;

Charles L. Bledsoe, BLEDSOE & MCAFEE, Big Stone Gap, Virginia, for Appellant Coleman; Robert A. Vinyard, Abingdon, Virginia, for Appellant Phyllis McCoy. Robert P. Crouch, Jr., United

States Attorney, Abingdon, Virginia, for Appellee.

 2
GROUP TWO

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4489

TONY MATNEY,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4494

TERRY EDWARD MCCOY,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4495

J. B. SLONE,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4514

DANIEL THOMAS MCCOY,

Defendant-Appellant.

 3
UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4515

HAROLD MCCOY,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4531

ROGER MCCOY,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4532

WILBERT MCCOY,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4631

LEANDER SLONE,

Defendant-Appellant.

_________________________________________________________________

COUNSEL

ARGUED: Dennis Eugene Jones, Lebanon, Virginia, for Appellants.

Steven Randall Ramseyer, Assistant United States Attorney, Abing-

 4
don, Virginia, for Appellee. ON BRIEF: Robert P. Crouch, Jr.,

United States Attorney, Abingdon, Virginia, for Appellee.

GROUP THREE

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4609

JIMMY STEWART JUSTICE,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4627

ARNOLD LESTER,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4628

JOSEPHINE LESTER,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4629

SANFORD STEVEN LESTER,

Defendant-Appellant.

 5
UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 97-4630

CARL HAROLD SLONE, a/k/a Carol

Harold Slone,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4657

CARLIE SLONE,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4723

STEVE ALLEN LESTER,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4724

HERMAN MCCOY,

Defendant-Appellant.

 6
UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4725

RANDY RAY MCCOY,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4726

WILLIAM ADDISON MCCOY,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4727

SHERRY VANCE,

Defendant-Appellant.

_________________________________________________________________

COUNSEL

ARGUED: Daniel Knowlton Read, Jr., JESSEE & READ, P.C.,

Abingdon, Virginia; Charles Randall Lowe, Abingdon, Virginia; Daniel Wayne Fast, Wise, Virginia, for Appellants. Steven Randall Ramseyer, Assistant United States Attorney, Abingdon, Virginia, for

Appellee. ON BRIEF: Susan D. Oglebay, Pound, Virginia, for

Appellant Justice; Mark Fenyk, Marion, Virginia, for Appellant

Arnold Lester; William Bradshaw, BRADSHAW & BRADSHAW,

Big Stone Gap, Virginia, for Appellant Josephine Lester; Richard

Frye, Abingdon, Virginia, for Appellant Sanford Lester; Amelia

 7
Bland, BLAND & ASSOCIATES, Marion, Virginia, for Appellant

Carlie Stone; Jeff Hamilton, HAMILTON & JORGENSEN, Gate

City, Virginia, for Appellant Steven Lester; Steve Kalista, Big Stone

Gap, Virginia, for Appellant Herman McCoy; Barry Proctor, Abingdon, Virginia, for Appellant William McCoy. Robert P. Crouch, Jr.,

United States Attorney, Abingdon, Virginia, for Appellee.

_________________________________________________________________

Appeals from the United States District Court

for the Western District of Virginia, at Abingdon.

James P. Jones, District Judge.

(CR-96-29-A)

Argued: June 3, 1998

Decided: August 20, 1998

Before WILKINSON, Chief Judge, MOTZ, Circuit Judge, and

BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

OPINION

PER CURIAM:

Appellants are among 25 defendants who were convicted on the

basis of a 34-count indictment which charged them with conspiracy,

mail fraud and making false statements to federal agents and to a

grand jury. The government alleged that the defendants had been

involved in a long-running conspiracy to commit insurance fraud by

staging automobile accidents. The district court divided the defendants into three separate groups for trial. Each trial group, and some

defendants singly, make various claims on appeal. While the appeals

have not been consolidated we address them in one opinion. For pur-

 8
poses of clarity and simplicity we review the claims of the defendants

of each group seriatim. Where the situation of any appellant is unique

specific reference is made to him or her. Finding no error, we affirm

the appellants' convictions and sentences.

GROUP ONE

Group One consists of Benny Justus, Lawrence Edward Justus,

Jimmy Lee McCoy, Melissa McCoy, Phyllis McCoy, and Kirby Coleman.

Issue 1

The defendants in Group One first challenge the admission of

exhibits 9 and 10 and of testimony related to them. Exhibit 9 was a

document prepared by an FBI agent that set out the dates of accidents

and the names of the people involved in them. The agent drew lines

from each defendant's name so that a juror could trace his or her

involvement in various accidents and with various other defendants.

Exhibit 10 was a document that organized, according to the counts of

the indictment, information about each accident: date of loss, participants, vehicle description, accident description, injury description,

treating doctor, insurance payouts, and insurance company. The FBI

agent who prepared the documents testified about their preparation

and was cross-examined about the documents. The district judge

instructed the jury when the documents were admitted that the documents were summaries of the evidence, that the jurors were to regard

them as such, and that it was the jurors' understanding of the evidence

that would govern any discrepancies.

A district court's decision to admit a summary chart and accompanying foundational testimony is reviewed for an abuse of discretion.

See United States v. Johnson, 54 F.3d 1150, 1158 (4th Cir. 1995). The

decision to admit these documents is best analyzed under Rule 611(a)

of the Federal Rules of Evidence which governs the mode and order

of interrogating witnesses and presenting evidence. See id.

First, we consider whether the summary chart aids the jury

in ascertaining the truth. In making this determination, we

 9
look to the length of the trial, the complexity of the case,

and the accompanying confusion that a large number of witnesses and exhibits may generate for the jury. Second,

applying what is essentially an analysis under Rule 403 of

the Federal Rules of Evidence, we consider the possible

prejudice that would result to the defendant by allowing the

summary chart into evidence. In practice, a number of

courts considering the issue have developed safeguards to

minimize possible prejudice to a defendant by (1) ensuring

that the individual who prepared the chart--as well as the

evidence upon which the preparer relied--was available for

cross-examination by the defendant to test the competence

of the evidence as presented in the summary chart and, (2)

ensuring that the district court properly instructed the jury

concerning the manner in which they were to consider the

charts.

Id. at 1159 (citations and footnote omitted).

In this case the sheer number of defendants (between nine and

eleven in each group) and accidents (thirty-one summarized in exhibit

10) evidences substantial complexity. The government presented

voluminous documentary and testimonial evidence regarding each

defendant, each accident, and the connections among the defendants

and accidents. Extensive insurance and medical records were also

introduced. It is likely that the summary charts aided the jury. Further,

while summaries present the risk of prejudice to a defendant, the district judge instituted the necessary safeguards--allowing crossexamination of the FBI agent and instructing the jury about the proper

use of the summaries. The district court did not abuse its discretion

in admitting these exhibits.

Issue 2

The Group-One defendants argue that the government referred to

the failure of the defendants to call witnesses or put on evidence in

their defense and thereby infringed the defendants' Fifth Amendment

right not to testify. The defendants point first to the government's

statement that the defendants had the power to subpoena witnesses

and an unfinished statement: "And they didn't call . . . ." They also

 10
point to the prosecution's repetition of some of the defendants' statements: "If we don't tell them nothing, they can't prove nothing." The

defendants suggest that the government repeated these statements to

contrast the defendants' choice of silence with the choice of testifying

witnesses.

To determine whether the prosecution's statements have infringed

the defendants' right not to testify we ask: "Was the language used

manifestly intended to be, or was it of such character that the jury

would naturally and necessarily take it to be a comment on the failure

of the accused to testify?" United States v. Francis, 82 F.3d 77, 78

(4th Cir. 1996) (internal quotation marks and citations omitted).

Taken in their full context, it is apparent that the first group of

statements was intended to rebut statements by the defense suggesting

that the government controlled the evidence, presented evidence only

favorable to its case, and avoided evidence that would have favored

the defense. An examination of the context in which the second group

of statements was made reveals that the comments were intended to

illustrate that the government believed the evidence showed that the

defendants planned to and did give false testimony to the grand jury.

We agree with the district court that neither of these groups of statements was intended as a comment on the failure of the defendants to

testify; nor would a jury naturally and necessarily take them to be

such. See id. at 78-79.

Issue 3

The defendants in Group One also challenge the admission of

Jamie Lester's testimony. They contend that Jamie Lester's concession that he would not tell the truth about his brother, his father, and

his mother revealed that he was an incompetent witness, precluded

effective cross-examination and thereby deprived the defendants of

their rights to due process and to confront witnesses. They assert that

Lester's statements undercut his oath to testify truthfully and suggest

that he was not made aware of the necessity of so doing.

Jamie Lester swore to tell the truth and was aware of the penalties

of perjury. The government, on direct examination, explored Lester's

false testimony before the grand jury, the breach of his plea agree-

 11
ment by his persistent refusal to tell investigators the truth, and his

continuing inclination not to provide information about his immediate

family. See Fed. R. Evid. 607. Lester's credibility was a subject of

cross-examination. The government did not preclude effective crossexamination by the defense. The district court's decision to admit the

testimony over the defendants' motions to strike and for a mistrial

was not erroneous.

Issue 4

A

The defendants also contend that the evidence does not support

their conspiracy convictions. They argue that the government's evidence showed multiple, separate conspiracies rather than the single

conspiracy charged in Count One. They further contend that they

were prejudiced by the introduction of evidence related to the accidents of alleged coconspirators in which they did not participate. The

defendants assert that the evidence presented varied impermissibly

from the allegations of their indictment.

"In a conspiracy prosecution, a defendant may establish the existence of a material variance by showing that the indictment alleged

a single conspiracy but that the government's proof at trial established

the existence of multiple, separate conspiracies." United States v.

Kennedy, 32 F.3d 876, 883 (4th Cir. 1994). It is for the jury to decide

whether the evidence showed a single or multiple conspiracies. See

United States v. Urbanik, 801 F.2d 692, 695 (4th Cir. 1986). Therefore, "a conspiracy variance claim amounts to a challenge to the sufficiency of the evidence supporting the jury's finding that each

defendant was a member of the same conspiracy." United States v.

Townsend, 924 F.2d 1385, 1389 (7th Cir. 1991). The jury's finding

must stand (1) if the jury was properly instructed with respect to the

distinction between single and multiple conspiracies and (2) if a reasonable jury could have found the existence of the single conspiracy

charged in the indictment. See Urbanik, 801 F.2d at 695. The GroupOne defendants do not challenge the instructions.

If the jury reasonably finds a single conspiracy as alleged in the

indictment, there is no variance between the facts alleged and the

 12
facts proved. Our review is therefore limited to a determination of

whether the evidence, taken in the light most favorable to the government, would allow a reasonable jury to find that the defendants were

part of a single conspiracy. See id. "A single conspiracy exists where

there is one overall agreement, or one general business venture.

Whether there is a single conspiracy or multiple conspiracies depends

on the overlap of key actors, methods and goals." United States v.

Leavis, 853 F.2d 215, 218 (4th Cir. 1988) (internal quotation marks

and citations omitted). The government may prove the agreement

entirely by circumstantial evidence. See United States v. Burgos, 94

F.3d 849, 858 (4th Cir. 1996).

The government's proof established a significant overlap of key

actors: the majority of the defendants were directly involved in an

accident with either Jimmy or Daniel McCoy; the few remaining were

involved in accidents with people who had been involved in accidents

with either Jimmy or Daniel McCoy. The defendants' methods to

assure successful claims and conceal their fraudulent nature were

strikingly similar: in each accident, the owner of the wrecked car was

paid half of each participant's insurance recovery; the accidents were

set up as phantom or friendly collisions (in the former the participants

would assert that they were run off the road by a long-gone and indescribable vehicle; in the latter the participants would run two cars into

each other); many accidents were attributed to brake failure; the participants visited a small group of doctors for pain killers and complained of soft-tissue injuries; and often the vehicles were titled very

close in time to the date of the accident in which they were involved.

The participants achieved their goal: recompense from insurance

companies for faked accidents and injuries.

The evidence is sufficient to support the jury's conclusion that a

single conspiracy existed and that the defendants were part of it.

B

The Group-One defendants make passing reference to an argument

based on an allegedly impermissible expansion of the length of the

conspiracy and resulting prejudice from the introduction of grand-jury

testimony of coconspirators. The argument is made more fully by the

defendants in Group Two, Issue 4, and is discussed and dispensed

 13
with later in this opinion, on a basis equally applicable to these defendants.

Issue 5

The defendants challenge their sentences and contend that the district court erred in (1) the calculation of total monetary loss attributable to each defendant, (2) the enhancement for more than minimal

planning, and (3) the enhancement for obstruction of justice.

We review the district court's application of the Sentencing Guidelines for clear error when the issue is one of fact and de novo when

the issue is one of law. See United States v. Daughtrey, 874 F.2d 213,

217 (4th Cir. 1989).

A

The district court attributed to each defendant the amount of insurance proceeds obtained in all accidents that followed the date on

which the particular defendant joined the conspiracy. See U.S. Sentencing Guidelines Manual § 2F1.1, comment. (n.8) (1995) (hereafter

USSG). The court considered actual losses when claims were paid

and intended losses when claims were denied as contemplated by

USSG § 2F1.1, comment. (n.7). The district court found with respect

to each defendant that "[a]ll of such losses were incurred through similar methods of fraud in the furtherance of the jointly undertaken

criminal activity and the individual amounts obtained from insurance

companies were all reasonably foreseeable to the defendant, based

upon the defendant's knowledge of and participation in the conspiracy." The defendants contend only that there was no grand fraud conspiracy. The jury reasonably found otherwise. The court's averaging

comports with the Guidelines and its findings of fact are not clearly

erroneous.

B

The district court further found, as a matter of fact, that the

offenses of which the defendants were convicted involved more than

minimal planning or a scheme to defraud more than one victim. See

 14
USSG § 2F1.1(b)(2). The defendants contend that there was no evidence that they participated in planning or recruiting and that, rather,

the evidence showed that the defendants did not understand the scope

and structure of the enterprise.

It is apparent from the evidence that success of the conspiracy

depended on more than minimal planning and, in fact, on some coordination of stories for presentation to doctors, insurance companies,

FBI agents and the grand jury. Further, more than one victim was

defrauded--many insurance companies were defrauded. The district

court's decision to enhance the defendants' sentences for more than

minimal planning comports with the facts of this case and the Guidelines.

C

The district court also enhanced the defendants' sentences pursuant

to USSG § 3C1.1. The defendants contend that they were convicted

of perjury, punished for it, and that application of an enhancement for

the same conduct violates the Double Jeopardy Clause.

The Guidelines explain:

Where the defendant is convicted both of the obstruction

offense and the underlying offense, the count for the

obstruction offense will be grouped with the count for the

underlying offense under subsection (c) of § 3D1.2 (Groups

of Closely Related Counts). The offense level for that group

of closely related counts will be the offense level for the

underlying offense increased by the 2-level adjustment specified by this section, or the offense level for the obstruction

offense, whichever is greater.

USSG § 3C1.1, comment. (n.6).

In the defendants' case the offense level was greater for the fraud

offenses, therefore that offense level was increased by two levels for

the perjury offenses. The defendants were not twice punished for the

perjury offenses.

 15
Conclusion

The convictions and sentences of the defendants in Group One are

affirmed.

GROUP TWO

Group Two consists of Tony Matney, Terry Edward McCoy, J. B.

Slone, Daniel Thomas McCoy, Harold McCoy, Roger McCoy, Wilbert McCoy, and Leander Slone.

Issue 1

The defendants in Group Two contend that it was error for the district court to deny their motion to dismiss Count One and their later

motion to grant judgment of acquittal or a new trial. For this proposition, they relied then and rely now on the argument that the evidence

did not prove a single conspiracy but, at best, proved multiple conspiracies.

We dispensed with this contention in our discussion of the fourth

issue raised by Group One. The evidence in the two trials was substantially similar and established the same connection between the

defendants and the same patterns of fraud. Our analysis of the facts

and law, as applied to this group of defendants leads us to the same

conclusions as did our analysis of the Group-One defendants' similar

argument. For these reasons, the district court did not err when it

denied the defendants' motions to dismiss, for acquittal, and for a new

trial.

Issue 2

The Group-Two defendants argue that it was error for the district

court to reject their jury instructions regarding the multiple-, singleconspiracy issue.

"The decision of whether to give a jury instruction and the content

of an instruction are reviewed for abuse of discretion." United States

v. Abbas, 74 F.3d 506, 513 (4th Cir. 1996).

 16
The district court instructed the jury to decide"whether there were

really multiple, separate conspiracies to commit these crimes." And,

it instructed the jurors that the government bore the burden of proving

beyond a reasonable doubt that the defendants were members of the

single conspiracy charged in the indictment. It instructed the jurors

that if the government failed in this proof they were required to find

the defendants not guilty of the conspiracy charged in Count One.

The jury was properly instructed to determine whether the government had proved the existence of a single conspiracy. Cf. Urbanik,

801 F.2d at 696.

Issue 3

The Group-Two defendants challenge the admission of two government exhibits--one a summary of accident information and the

other a web-like diagram linking defendants involved in particular

accidents to other defendants. We affirmed the propriety of admitting

these two documents in our discussion of the Group-One defendants'

first issue after considering virtually the same argument. In accordance with that discussion, we hold that the district court did not err

in admitting this evidence in this trial.

Issue 4

A

The defendants contend that the government did not prove the conspiracy charged in Count One but rather proved, at best, separate

conspiracies--one to commit fraud and a second to commit perjury.

They rely primarily on Grunewald v. United States, 353 U.S. 391

(1957); Lutwak v. United States, 344 U.S. 604 (1953), and Krulewitch

v. United States, 336 U.S. 440 (1949). These cases make "a vital distinction . . . between acts of concealment done in furtherance of the

main criminal objectives of the conspiracy, and acts of concealment

done after these central objectives have been attained, for the purpose

only of covering up after the crime." Grunewald, 353 U.S. at 405.

We will not presume that a conspiracy includes an implied subsidiary conspiracy to conceal; we require that the government prove that

 17
an agreement to conceal was part of the initial conspiracy. See

Krulewitch, 336 U.S. at 442-44.

Whether there was a variance between the conspiracy charged and

the proof at trial turns on the sufficiency of the evidence to support

the jury's verdict. See discussion infra Group One, Issue 4A; see also

United States v. Potamitis, 739 F.2d 784, 787-88 (2d Cir. 1984). Here,

the evidence, taken in the light most favorable to the government,

clearly would allow a reasonable jury to find that the defendants were

part of a conspiracy that encompassed various acts of concealment.

The government introduced two surreptitiously recorded conversations of coconspirators. In the first, Daniel McCoy says: "That's what

I say. As long as we don't say nothin', they can't prove nothin'." In

the second, Herman McCoy says: "Everybody in here. . . If anybody

tells, everybody up and down this creek will be in jail." Jamie Lester

also testified that when he was subpoenaed to come before the grand

jury he rode down with his father--Arnold Lester, his brother--

Timothy Lester, and Jimmy McCoy. Jamie Lester testified that Jimmy

McCoy said: "Make sure you tell what you told before to the insurance."

These statements establish the intent of the conspirators to conceal

their fraud. Participants were coached from the beginning on what to

say to insurance companies and not to deviate from those stories.

These continuing acts of concealment were "done in furtherance of

the main criminal objectives of the conspiracy." Grunewald, 353 U.S.

at 405.

Concealment was also essential to the continuing vitality of the

conspiracy. On April 27, 1994, Herman McCoy, discussing the police

investigation, warned against "anybody tell[ing]." On August 4, 1994,

Daniel McCoy, also discussing the investigation, extolled the benefits

of "say[ing] nothing." On April 11, 1995, and August 7, 1995, according to the government's evidence, two more accidents were staged.

The similarity of the defendants' approach to their appearances

before the grand jury also illustrates the joint pursuit of one of the

main criminal objectives of the conspiracy--concealment. Many of

the defendants said that they were not sure how many accidents they

 18
had been in. They complained of bad memories. They told the grand

jury that they could not recall details of accidents--who was

involved, how they happened . . . even, whether they happened. When

pressed to tell the grand jury whether they were in a particular accident that they could not recall, defendants resorted to some version

of: "Well, if the [accident] report says I was I guess I was in it."

From this and the other evidence, a jury could reasonably infer a

concerted and continuing effort to conceal. Consequently, we find

that the evidence was sufficient to support the jury's finding that the

defendants' fraud, obstruction of the investigation, and perjury were

part of a single conspiracy.

B

The defendants also contend that the district court erred when it

admitted the statements of coconspirators against them. Again, they

argue that the government did not prove that concealment was part of

the initial conspiracy.

Federal Rule of Evidence 801(d)(2)(E) permits the admission of

coconspirator statements if the government can prove, by a preponderance of the evidence, that the statements were made in furtherance

of and during the course of the conspiracy. See United States v. Neal,

78 F.3d 901, 904-05 (4th Cir. 1996); United States v. Blevins, 960

F.2d 1252, 1255 (4th Cir. 1992). The district court's decision to admit

evidence under Rule 801(d)(2)(E) is reviewed for an abuse of discretion, and its findings of fact regarding the scope of the conspiracy are

reviewed for clear error. See Blevins, 960 F.2d at 1255. The court may

examine all evidence before it, including the coconspirator statements, to determine admissibility. See id.

A district court may admit conditionally the statements of coconspirators subject to proof of the facts necessary for admission. See id.

at 1256. Here, the district court chose this course. The defendants

again moved, at the conclusion of the government's case in chief, for

exclusion of the testimony of coconspirators. The district court found,

based on the evidence presented, that the grand-jury testimony constituted statements by coconspirators made during the course of and in

 19
furtherance of the conspiracy. The district court affirmed this finding

in its ruling on the defendants' motions for a new trial.

The record discloses that the statements were made during the

course of and in furtherance of the conspiracy and were plainly

admissible. The summary and analysis of the evidence in our discussion of the previous issue provides a solid basis for admission. In the

defendants' statements, they recognize that everyone will go to jail if

anyone tells, contend that if they keep quiet the government will not

be able to prove anything, and encourage false testimony. The fact

that some of these statements were made before the conspiracy committed its final acts of fraud illustrates that they were made during the

course of the conspiracy. The statements were made to escape detection, assured the continued viability of the conspiracy, and were thus

made in furtherance of that conspiracy. See Neal , 78 F.3d at 905. The

defendants' perjury naturally followed in the concealment plan.

The government must also provide evidence of the existence of the

conspiracy independent of the statements themselves. See Fed. R.

Evid. 801(d)(2). In this case the most persuasive independent evidence of a conspiracy to conceal is the perjury itself. The fact that the

defendants committed perjury, and did so in a similar fashion, is corroborative independent evidence of the conspiracy to conceal. The

defendants told the same stories and invoked the same forgetfulness.

Reviewing its evidentiary ruling, the district court cited this similarity

of method, writing: "[T]he statements, which illustrated that each

defendant gave similar and allegedly fabricated details of the staged

automobile accidents in which they were involved, were relevant to

and probative of the crimes charged in the indictment." The defendants' perjury was not offered to prove the truth of matters asserted

therein but as circumstantial evidence of the conspiracy.

The defendants' perjury was a legally operative act for which they

were being prosecuted. The grand-jury testimony of each defendant

was admissible against other defendants because the government

alleged and introduced sufficient evidence to prove that the defendants were part of a single conspiracy to commit fraud and perjury--

as the district court found, as the jury reasonably found, and as we

find.

 20
Accordingly, there was no clear error in the district court's findings

of fact and no abuse of discretion in its admission of the statements

of coconspirators.

Issue 5

The Group-Two defendants challenge the district court's denial of

their motion to dismiss Count 14 of the indictment which charged a

violation of 18 U.S.C. § 1001 (false statements generally). They base

their argument on the exculpatory-no doctrine which was rejected by

the Supreme Court in United States v. Brogan, 118 S.Ct. 805 (1998).

The district court did not err in this respect.

Issue 6

These defendants also challenge the admission of the full transcripts and tapes of the defendants' testimony before the grand jury.

They allege that the tapes included comments and conduct by the

Assistant U.S. Attorney which constituted prosecutorial misconduct.

They point to statements that the prosector made when questioning

the defendants before the grand jury: "You want to tell the truth

now?" and "Lying's hard to do, isn't it?"

"We have stated that the test for reversible prosecutorial misconduct generally has two components: that (1) the prosecutor's remarks

or conduct must in fact have been improper, and (2) such remarks or

conduct must have prejudicially affected the defendant's substantial

rights so as to deprive the defendant of a fair trial." United States v.

Chorman, 910 F.2d 102, 113 (4th Cir. 1990) (internal quotation marks

and citation omitted).

Although the statements and others of like import were improper,

we cannot conclude that the defendants were prejudiced by their

introduction. The district court instructed the jury that the questions

and comments by the Assistant U.S. Attorney were not evidence and

were not to be considered as such. We presume that the jury followed

this instruction. See United States v. Jones, 907 F.2d 456, 460 (4th

Cir. 1990).

 21
Issue 7

Harold McCoy challenges the district court's exclusion of his

social security disability records and school records which, he argues,

would have shown that he was mentally impaired and would have

explained his inability to remember accidents he was involved in. He

asserts that his "confused contradictory and clearly erroneous grand

jury testimony . . . could only be properly understood and interpreted

if the petit jury was informed that it was the product of a mentally and

emotionally severely impaired individual."

The district court declined to admit the documents, finding that

they were irrelevant and that they were within the ambit of Fed. R.

Crim. P. 12.2(b).

A defendant is required to give the government notice of his intent

to introduce expert testimony relating to a mental disease or defect

bearing on the issue of guilt. Fed. R. Crim. P. 12.2(b). If notice is not

given, as it was not here, the district court may exclude the evidence.

Fed. R. Crim. P. 12.2(d).

The district court correctly found that the documents were irrelevant if not introduced to illuminate Harold McCoy's capacity for

perjury--an issue of guilt. As such, admission of the documents was

governed by Rule 12.2. Notice was not given; the district court ruled

within its discretion.

Issue 8

A

The defendants challenge their sentences on several grounds, contending that the court erred in its calculation of total monetary loss

attributable to each defendant and that the court erred in applying an

enhancement for more than minimal planning. In our discussion of

the fifth issue raised by Group One, we dispensed with these arguments on a legal basis that is equally applicable here. The district

court found, as a matter of fact, that fraud committed after the defendants knowingly joined the conspiracy was foreseeable to them. The

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court also found, as a matter of fact, that the offense involved more

than minimal planning or a scheme to defraud more than one victim.

We see no error in these findings.

B

Harold McCoy challenges the district court's decision not to depart

downward from his sentence on the basis of diminished capacity pursuant to USSG § 5K2.13. The district judge recognized his authority

to depart and declined to do so, finding that the facts did not warrant

departure. This decision is not reviewable. See United States v.

Weddle, 30 F.3d 532, 541 (4th Cir. 1994).

C

Wilbert McCoy also challenges the district court's decision not to

depart downward from his sentence on the basis of his I.Q. pursuant

to USSG § 5K2.13. Again, the district judge recognized his authority

to depart and declined to do so. This decision is not reviewable. Id.

Wilbert McCoy additionally contends that the court erred in its

decision not to reduce his sentence based on his allegedly minor role

in the conspiracy pursuant to USSG § 3B1.2(b). He alleges that "there

is no evidence of any . . . connections with the three alleged leaders

of the conspiracy."

We review the district court's decision for clear error. See United

States v. Reavis, 48 F.3d 763, 768-99 (4th Cir. 1995). "A defendant

is not entitled to `minimal' participant status unless [ ]he has had an

extremely limited role in a criminal enterprise." Id. at 769. We measure both the defendant's culpability as related to other defendants

and his "individual acts and relative culpability against the elements

of the offense of conviction." Id.

Wilbert McCoy was involved in two accidents. Jimmy McCoy, one

of the government's posited central figures, was a participant in one

of them. Therefore, not only is Wilbert McCoy's allegation doubtful,

but it fails to establish by a preponderance of the evidence that he was

less culpable than other defendants and less culpable of the offense.

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See id. The district court did not err in declining to adjust his offense

level.

Conclusion

The convictions and sentences of the defendants in Group Two are

affirmed.

GROUP THREE

Group Three consists of Jimmy Stewart Justice, Arnold Lester,

Josephine Lester, Sanford Steven Lester, Carl Harold Slone, Carlie

Slone, Steve Allen Lester, Herman McCoy, Randy Ray McCoy, William Addison McCoy, and Sherry Vance.

The defendants in Group Three preliminarily ask to join in a number of arguments made by Group One and Group Two. We have

reviewed those arguments as they pertain to this group of defendants

and find, in accordance with our previous discussion, no error.

Issue 1

The Group-Three defendants assign error to the district court's

denial of their motions to dismiss Count One and for judgment of

acquittal or a new trial. They contend that the government did not

produce substantial evidence of a single conspiracy. This argument

was also made by Groups One and Two. The Group-Three defendants

are bound by the same legal analysis. The facts adduced at all three

trials were substantially similar. We have undertaken an independent

review of the evidence presented in this trial and find that the jury

could have reasonably found the existence of a single conspiracy.

Thus, the district court did not err in denying these motions.

Issue 2

Jimmy Justice argues that the evidence was insufficient to convict

him, even if it was sufficient to support the convictions of the remainder of the defendants. Jimmy Justice concedes that he was involved

in two accidents. He contends, however, that even if the evidence sup-

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ports the conclusion that the July 25, 1992, accident was staged, he

didn't know anything about it.

The jury's verdict must stand if the evidence, taken in the light

most favorable to the government, would allow a reasonable jury to

find that Jimmy Justice was part of the conspiracy. See Urbanik, 801

F.2d at 695.

Jimmy Justice's testimony reveals questions of credibility. He

denied and later admitted that he had lived in Guesses Fork. He gave

inconsistent reasons for seeing the same doctor that the coconspirators

regularly saw instead of his regular doctor. He was not forthcoming

about prior injuries in a discussion with the insurance adjustor. Nor

was he forthcoming about his relationship with Wilbert Lee McCoy.

He testified that he made a claim against Wilbert Lee McCoy's insurance company for the July 25th accident--when faulty brakes caused

the vehicle in which Jimmy Justice was riding to run into a vehicle

in which other convicted coconspirators were riding. He could not

explain why the driver in that accident did not avoid the second car.

He testified that although he was involved in a second accident with

Wilbert Lee McCoy, he did not file a claim; but he conceded that Wilbert McCoy might have. It was for the jury to weigh the evidence and

determine the nature of Jimmy Justice's involvement. The evidence

would permit a reasonable jury to find Jimmy Justice guilty of Count

One.

Issue 3

These defendants contend that it was error for the trial court to

admit the full tapes and transcripts of the defendants' appearance

before the grand jury. They assert three different rationales for their

objection.

A

The defendants first assert that the transcripts should have been

excluded because they contained statements of the prosecutor which

evidenced his personal belief. We addressed the propriety of admitting the tapes, with a cautionary instruction, in light of this argument

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in our discussion of Group Two's Issue 6. We similarly find no error

in the admission of the full tapes and transcripts in this trial.

B

The defendants also contend that the tapes and transcripts should

not have been admitted because the statements therein were not made

during the course of and in furtherance of the conspiracy and were

thus not within Rule 801(d)(2)(E). We have addressed this argument

in our discussion of Group Two, Issue 4. The same legal analysis

when applied to a substantially similar set of facts yields the same

result. The district court did not err in admitting the full tapes and

transcripts.

C

The defendants further argue that the tapes and transcripts should

have been excluded under Fed. R. Evid. 403, because their probative

value was substantially outweighed by their prejudicial effect. They

contend that the tapes introduced only the mockery of the grand jury

and the derision of the prosecutor and that the transcripts could have

been redacted to prevent this.

We will only disturb the district court's decision under Rule 403

in extraordinary circumstances. See United States v. Love, 134 F.3d

595, 603 (4th Cir. 1998). These are not such circumstances. Only by

admitting the entire tapes and transcripts of the defendants' grandjury testimony could the jurors properly evaluate the perjury charges.

The tapes and transcripts allowed the jury to judge tone, pauses, evasions, and inconsistencies which would not have been apparent in

redacted transcripts. Furthermore, the district judge instructed the

jurors that the questions and comments of the prosecutor were not

evidence. We presume they followed this instruction. See id. We find

no error in the district court's evidentiary rulings.

Issue 4

The Group-Three defendants argue that the district court erred in

refusing its proffered instructions on the single-, multiple-conspiracy

 26
issue. We have discussed the propriety of the district court's instructions (see Group Two, Issue 2). The instructions given here were substantially the same, and we again affirm their propriety.

CONCLUSION

The convictions and sentences of all of the defendants in the three

separate trial groups are affirmed.

AFFIRMED

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