[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-13778

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D.C. Docket No. 6:98-cr-00099-PCF-KRS-1

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee,

versus

SHOLAM WEISS, 

 Defendant - Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

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(September 24, 2013)

Before BARKETT, MARCUS, and HILL, Circuit Judges.

PER CURIAM: 

Sholam Weiss appeals his conviction following a jury trial for seventy-eight 

counts of racketeering, wire fraud, interstate transportation of stolen funds, money 

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laundering, and other offenses arising out of a scheme to defraud the National 

Heritage Life Insurance Company (“NHLIC”). Weiss argues (1) that the 

government violated his Sixth Amendment right to counsel when it improperly 

subpoenaed his attorney, thereby preventing the attorney from serving as trial 

counsel, and (2) that he was denied his Sixth Amendment right to a unanimous 

verdict because the trial court failed to instruct the jury that it had to unanimously 

agree on whether the wire fraud convictions were predicated on a scheme to obtain 

money or property or on a scheme to deprive another of the intangible right to 

honest services. After a review of the record and oral argument, we affirm.

I. Choice of Counsel

Weiss first argues that he was deprived of his Sixth Amendment right to 

counsel of his choice when the government improperly issued a trial subpoena to 

his long-time counsel, Robert Leventhal. Weiss contends that the subpoena, which 

was eventually quashed by the district court, was issued in bad faith and resulted in 

the de facto disqualification of Leventhal from serving as trial counsel. Weiss 

argues that the deprivation of chosen counsel is a structural error that does not 

require any showing of prejudice. Weiss further argues that dismissal of the 

indictment is warranted here because the government engaged in willful 

misconduct when it issued the subpoena and because Weiss would suffer actual 

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prejudice from a retrial. In the alternative, Weiss asks this Court to vacate his 

convictions and remand to the district court for further proceedings. 

a. Factual and Procedural Background

Weiss first retained Leventhal in 1995 in connection with the investigation 

of the failure of NHLIC. During that investigation, Leventhal provided certain 

documents and recordings to the government on Weiss’s behalf, which the 

government later discovered Weiss had fabricated. Both parties agree that 

Leventhal was not aware that the documents and recordings were false.

As a result of the NHLIC investigation, Weiss was indicted in 1997, and 

Leventhal entered his appearance in that case as sole counsel of record for Weiss. 

The government dismissed the 1997 indictment without prejudice and, in April 

1998, a grand jury returned a ninety-three count indictment against Weiss charging 

him with racketeering, wire fraud, money laundering, and other offenses relating to 

the collapse of NHLIC. 

Sometime before Weiss’s initial appearance on May 15, 1998,1 the 

government advised Leventhal that he would be subpoenaed by the government to 

testify at trial regarding the documents he had provided to the government on 

Weiss’s behalf in 1995 and to provide those documents he still had in his 

 

1 Weiss contends that the government did not inform Leventhal of the anticipated 

subpoena until shortly before his initial appearance in May 1998. The government, on the other 

hand, claims that prosecutors informed Leventhal of the subpoena at least by January 1998.

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possession to the prosecution. According to the government, the anticipated 

testimony concerned when and what Weiss told Leventhal about the fraudulent 

documents and recordings and their production to the government. The documents 

in question formed the basis of the two counts of false statement and one count of 

obstruction of justice against Weiss. Before the subpoena was served, Weiss and 

Leventhal offered to enter into certain stipulations to avoid the need for 

Leventhal’s testimony, but negotiations with the government failed. The 

government served the subpoena on Leventhal on July 7, 1998. Leventhal did not 

enter a general appearance on behalf of Weiss2 and Weiss retained Joel 

Hirschhorn, who had not previously been involved in the investigation or case, as 

replacement counsel. 

Both Weiss and Leventhal filed motions to quash the subpoena on the 

grounds of lack of necessity and the Sixth Amendment right to counsel.3

 The 

district court, believing that Leventhal’s testimony was not necessary to the case 

because of Weiss’s proposed stipulations, quashed the subpoena. 

 

2 The parties disagree as to why Leventhal did not enter a general appearance. While 

Weiss contends that the only reason Leventhal did not enter a general appearance was because of 

the pending subpoena, the government points to certain statements made during pre-trial and trial 

proceedings that Leventhal did not enter a general appearance because Weiss was unable to 

arrange payment for Leventhal’s services, Leventhal had other business obligations, and 

Leventhal did not want to work with Weiss’s current lawyer. The government also argues that 

Leventhal had an actual conflict of interest in the case because Weiss used his services to 

obstruct justice and, for this reason, could not represent Weiss at trial.

3 Leventhal argued in his motion to quash that the government issued the subpoena in bad 

faith. Weiss did not explicitly make any bad faith argument, but did incorporate by reference all 

arguments in Leventhal’s motion to quash.

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According to Weiss, there was not enough time for Leventhal to clear his 

schedule and prepare for the nine-month trial that was scheduled to begin ten days 

after the district court issued its ruling. Thus, Weiss argues, Leventhal was 

effectively disqualified from serving as Weiss’s trial counsel because of the 

government’s alleged bad faith issuance of the trial subpoena. 

During trial, Weiss testified regarding the fraudulent documents and 

recordings. The government objected that Weiss’s testimony contradicted the 

stipulation that the parties had entered as a result of the litigation surrounding 

Leventhal’s trial subpoena and re-subpoenaed Leventhal to rebut Weiss’s 

testimony. Weiss filed a motion to quash the subpoena, arguing that Leventhal had 

been assisting Hirschhorn with the trial and that the re-issued subpoena had a 

chilling effect on Hirschhorn’s ability to consult with Leventhal. After hearing 

Leventhal’s testimony outside of the presence of the jury, the district court denied 

the motion to quash and allowed Leventhal to testify, finding that the testimony 

concerned some disputed issued of material fact that were not covered by the 

stipulation and to which no other witness could testify. Leventhal eventually 

testified during trial.

b. Discussion

We review claims of prosecutorial misconduct, which involve questions of 

law and fact, de novo. United States v. Eckhardt, 466 F.3d 938, 947 (11th Cir. 

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2006).4 Here, there is no evidence that the government acted in bad faith when it 

subpoenaed Leventhal’s testimony. It was evident that Leventhal’s representation 

of Weiss was rife with conflict---conflict about the nature, timing, and 

circumstances of disgorging the documents at issue to federal law enforcement 

authority. 

Furthermore, Weiss has failed to show that it was the issuance of the 

subpoena that caused Leventhal’s failure to represent Weiss. Leventhal had an 

actual conflict of interest that arose when Weiss used his services to obstruct 

justice and could not represent Weiss for that reason. Certainly, Leventhal could 

not counsel Weiss as to whether he should or should not testify regarding, for 

example, the timing and circumstances of the conveyance of the documents when 

Leventhal’s knowledge of events differed from Weiss’s testimony. We find no 

violation of Weiss’s Sixth Amendment right to counsel. 

II. Unanimous Verdict

Weiss also argues that he was denied his Sixth Amendment right to a 

unanimous verdict. Weiss was charged with twenty-seven counts of wire fraud in 

violation of 18 U.S.C. §§ 1343 and 1346 for participating in a scheme to 

 

4 The government argues that this claim should be subject to plain error review because 

Weiss did not raise it front of the district court. However, the prolonged subpoena litigation, 

including Weiss’s motion to quash in which he adopted by reference Leventhal’s allegations of 

prosecutorial misconduct, are sufficient to preserve his prosecutorial misconduct for appellate 

review. 

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fraudulently obtain money or property or to fraudulently deprive another of the 

intangible right of honest services. At trial, although the district court gave the 

jury a general unanimity instruction, it did not specifically instruct the jury that 

they had to unanimously agree on whether Weiss was guilty of wire fraud because 

he engaged in a scheme to obtain money or property or because he engaged in a 

scheme to deprive of honest services. Weiss argues that the failure to give this 

additional unanimity instruction violated the Sixth Amendment. 

Because Weiss did not raise this issue in the district court, we review the 

district court’s instructions for plain error. United States v. Felts, 579 F.3d 1341, 

1343 (11th Cir. 2009). Under the plain error standard, a defendant must 

demonstrate that (1) an error occurred, (2) the error was plain, and (3) the error 

affected the defendant’s substantial rights. Id. at 1344. For an error to be plain, 

the error must be “clear from the plain meaning of a statute or constitutional 

provision, or from a holding of the Supreme Court of this Court” at the time of 

appellate review. United States v. Pantle, 637 F.3d 1172, 1174-75 (11th Cir. 

2011). Here, even assuming that the district court erred in failing to give a specific 

unanimity instruction as to the wire fraud charges, we cannot find such error was 

plain. Id. 

It is clear that, under the Sixth Amendment, “a jury in a federal criminal case 

cannot convict unless it unanimously finds that the Government has proved each 

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element [of the offense].” Richardson v. United States, 526 U.S. 813, 817 (1999). 

However, the Supreme Court has made clear that jurors need not unanimously 

agree on the underlying facts that make up a particular element of the offense, such 

as which of several possible means a defendant used to commit that element, so 

long as they unanimously agree that the government has proven the element 

beyond a reasonable doubt. Schad v. Arizona, 501 U.S. 624, 631-32 (1991); see 

also Richardson, 526 U.S. at 817 (“Where, for example, an element of robbery is 

force or the threat of force, some jurors might conclude that the defendant used a 

knife to create the threat; others might conclude he used a gun. But that 

disagreement—a disagreement about means—would not matter as long as all 12 

jurors unanimously concluded that the Government had proved the necessary 

related element, namely, that the defendant had threatened force.”).

In the case of wire fraud, neither the Supreme Court nor this Court has 

decided whether the nature of the wire fraud scheme is an element of the offense, 

requiring the jury’s unanimous agreement on whether the scheme was to 

fraudulently obtain money or property or whether it was to fraudulently deprive of 

honest services. Therefore, the district court’s failure to instruct the jury that they 

must unanimously agree on the nature of the wire fraud scheme was not plain 

error. 

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Weiss argues that this Court has previously approved of a similar unanimity 

instruction in a wire fraud prosecution. See United States v. Woodard, 459 F.3d 

1078, 1084 (11th Cir. 2006). However, the Court in Woodard held only that the 

district court did not err in giving the specific unanimity instruction; it did not 

consider whether failure to give such an instruction would violate the Sixth 

Amendment. Weiss’s reliance on the government’s own current practice of using 

special verdict forms or specific unanimity instructions in wire fraud prosecutions 

is similarly misplaced. See United States v. Cabrera, 804 F. Supp. 2d 1261, 1264-

68 (M.D. Fla. 2011) (noting that the district court instructed the jury that they must 

unanimously agree on the nature of the defendant’s wire fraud scheme and that the 

court used a special verdict form requested by the government which called for the 

jury to decide whether the defendant was guilty of a scheme to defraud of money 

or of a scheme to deprive of honest services). The mere fact that the government 

now has a practice of requesting specific unanimity instructions or special verdict 

forms does not plainly establish “from a holding of the Supreme Court of this 

Court” that such instructions are required by the Sixth Amendment. See Pantle, 

637 F.3d at 1174-75. 

Furthermore, Weiss cannot show that the failure to give a specific unanimity 

instruction, even if it were plainly erroneous, affected his substantial rights, as 

required for a reversal under the plain error standard of review. United States v. 

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Felts, 579 F.3d at 1344. In other words, Weiss has the burden of proving that there 

is a reasonable probability that, but for the alleged error, the outcome of the trial 

would have been different. United States v. Kennard, 472 F.3d 851, 858 (11th Cir. 

2006). Here, the district court instructed the jury that the verdict must be 

unanimous. Consequently, Weiss’s proposed specific unanimity instruction on the 

wire fraud counts was substantially covered by the district court’s other 

instructions. See United States v. Gonzales, 122 F.3d 1383, 1388 n.5 (11th Cir. 

1997) (holding that the failure to give a specific unanimity instruction was not 

reversible under plain error review because the district court gave a general 

unanimity instruction); see also United States v. Fredette, 315 F.3d 1235, 1242-43 

(10th Cir. 2003) (affirming, under plain error review, the district court’s failure to 

give a specific unanimity instruction on a wire fraud count because “it is assumed 

that a general instruction on the requirement of unanimity suffices to instruct the 

jury that they must be unanimous on whatever specifications they find to be the 

predicate of the guilty verdict” and because the evidence was sufficient to convict 

the defendant of both types of wire fraud). For these reasons, we affirm the district 

court’s jury instructions.

AFFIRMED.

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