617 F. App'x 537
6th Cir.2015Background
- Suarez, CEO of SCI, orchestrated reimbursed political contributions by SCI employees to federal candidates and attempted to conceal reimbursements as salary/profit-sharing; FBI investigation and grand jury followed.
- Suarez sent a handwritten note and a five-page account to SCI controller Barbara Housos urging her to confirm a prepared statement and advising secrecy; later circulated a letter impugning Housos’s mental fitness and privacy concerns arose.
- A superseding indictment charged Suarez with multiple counts including attempted witness tampering under 18 U.S.C. § 1512(b)(1) (Count 8) listing three alternative acts (a, b, c) aimed at influencing Housos’s testimony.
- At trial Suarez was acquitted on most counts but convicted on Count 8; during deliberations the jury asked whether conviction required proof of (a), (b), and (c) or any one — court answered “any one beyond a reasonable doubt.”
- Suarez moved post-trial arguing the instruction eliminated the required specific intent for attempt and rendered Count 8 duplicitous (exposing him to double jeopardy); the district court reviewed for plain error and denied relief.
Issues
| Issue | Suarez’s Argument | Government’s Argument | Held |
|---|---|---|---|
| Whether jury instruction eliminated intent element for attempt under §1512(b)(1) | Instruction allowed conviction based solely on conduct without proving specific intent to influence testimony | Instructions, read as whole, required knowing act and intent to influence, delay, or prevent testimony | No error — instructions, taken together, sufficiently required intent |
| Whether ‘‘substantial step’’ language removed mens rea by importing an objective test | Substantial-step phrase permits conviction without proof of purpose to affect testimony | Substantial-step requirement was tied to corroborating defendant’s criminal purpose and did not negate intent instruction | No error — substantial-step requirement linked to criminal purpose and intent instruction remains intact |
| Whether Count 8 was duplicitous by alleging three alternative acts in one count | General verdict on any one act leaves Suarez vulnerable to reprosecution and denies unanimity/double jeopardy protections | Indictment alleged alternative means of committing the single offense; permissive under Rule 7(c); double jeopardy claim speculative absent a second prosecution | Not duplicitous; permissible to allege alternative means in one count; no double jeopardy problem now (speculative) |
| Whether failure to poll jurors to specify which act(s) they unanimously relied on required reversal | Court should have preserved for appeal which act jurors unanimously found to avoid duplicitous verdict | Court polled jurors asking if they unanimously found at least one of the acts; further specification unnecessary and not required | No reversible error — jurors affirmed unanimous finding of at least one act; no prejudice shown |
Key Cases Cited
- Jones v. United States, 527 U.S. 373 (1999) (jury instructions must be read as a whole)
- United States v. Williams, 704 F.2d 315 (6th Cir. 1983) (elements of attempt require specific intent and a substantial step)
- United States v. Calloway, 116 F.3d 1129 (6th Cir. 1997) (attempt crimes require intent to complete substantive offense)
- Schad v. Arizona, 501 U.S. 624 (1991) (no requirement that jurors agree on a single means when statute lists alternative means)
- Griffin v. United States, 502 U.S. 46 (1991) (indictment may allege alternative means; jury need not specify which means supports a general verdict)
- United States v. Alsobrook, 620 F.2d 139 (6th Cir. 1980) (single-count indictment may allege a continuing scheme; duplicity dangers inform prosecutorial discretion)
- Abney v. United States, 431 U.S. 651 (1977) (double jeopardy protects against second prosecution for the same offense)