UNITED STATES OF AMERICA v. CASTRO et al.
United States Court of Appeals, Eleventh Circuit
BARKETT, Circuit Judge
I concur fully with the majority’s opinion affirming the appellants’ convictions for mail fraud and bribery and Castro’s conspiracy conviction under RICO, and concur in affirming Boehme’s, Lechtner’s, and Luongo’s conspiracy convictions but for different reasons. With respect to Boehme’s, Lechtner’s, and Luongo’s conspiracy convictions, I do not think the government proffered sufficient evidence to prove the existence of the agreement necessary to prove the single overarching conspiracy charged in the indictment. Instead, the government only proved the existence of multiple independent conspiracies each of which involved one of the defendants. However, because the variance between the allegations contained in the indictment and the proof adduced at trial did not affect defendants’ substantial rights, I would affirm their convictions on the RICO conspiracy charge.
To convict a defendant for conspiracy in violation of RICO, the defendant must (1) have been associated with (2) an enterprise engaged in interstate commerce, and (3) must have conducted or participated in the conduct of the enterprise’s affairs (4) through a pattern of racketeering. See
To show that a defendant agreed with others to participate in the affairs of the enterprise through a pattern of racketeering, the government must prove either (1) an explicit agreement, or (2) in the absence of direct evidence, that the nature of the conspiracy is such that the defendant must necessarily have known that others also were conspiring to participate in the same enterprise through a pattern of racketeering activity. Valera, 845 F.2d at 929 (11th Cir. 1988); Sutherland, 656 F.2d at 1194. Under (2), an agreement to participate in a single conspiracy can be inferred because the participation of others is necessary for the defendant to benefit from his own criminal activity. Thus, for example, an agreement can be proved circumstantially when the defendant is a member of an enterprise specifically formed for illegal purposes (“association in fact“), see, e.g., U.S. v. Church, 955 F.2d 688 (11th Cir. 1992); U.S. v. Elliott, 571 F.2d 880 (5th Cir. 1978), or is a link in a chain of criminal activity, see, e.g., Valera, 845 F.2d 923, because the inherent nature of those conspiracies necessarily involve other participants.
The indictment in this case charged Boehme, Lechtner, and Luongo, attorneys practicing in and associated with the Eleventh Judicial Circuit, with agreeing to participate in the affairs of the Circuit Court of the Eleventh Judicial Circuit, through a pattern of racketeering, to wit, Extortion, Conspiracy to Commit Extortion and Attempt to Commit Extortion, Bribery,
Because the nature of the kickback activities did not necessarily involve anyone other than the attorney and judge to which the kickbacks were paid, the government was required to prove that each of the defendants explicitly agreed to participate in a larger conspiracy--one that involved people outside of the individual kickback deals--to conduct the affairs of the Circuit Court through a pattern of racketeering. At trial the government proffered sufficient evidence to show that each of the charged attorneys was a participant in a conspiracy involving his/herself, Judge Gelber, Judge Davis, and Margaret Ferguson. However, the evidence was insufficient to show that Luongo, Boehme, or Lechtner explicitly agreed to participate in a conspiracy in which others also were corruptly utilizing the Circuit Court through a pattern of racketeering.3 With respect to Luongo, the government did not present any evidence to suggest he was even aware that there was any other criminal activity afoot in the Circuit Court. Lechtner was advised that the payment of kickbacks on court appointments was “something that’s being done.” Similarly, Boehme was informed that he would be placed on the “preferred list” for court appointments. These statements alone, while possibly establishing knowledge of other criminal activity within the Circuit Court, are insufficient to establish beyond a reasonable doubt that Boehme and Lechtner explicitly agreed to accomplish anything more than the receipt of court appointments for their own monetary gain.4 Nothing suggests that they were aware of the contours or scope of
Luongo, Boehme, and Lechtner are entitled to a new trial, however, only if they can show that the variance affected their substantial rights. Sutherland, 656 F.2d at 1190 n.6., 1195. In Berger v. United States, 295 U.S. 78, 55 S.Ct. 629 (1935), the Supreme Court held that a variance between a single conspiracy charged in an indictment and multiple conspiracies proved at trial is fatal to a conviction only if it “affects the substantial rights” of the accused. Id. at 81-81, 55 S.Ct. at 630-31. In general, a defendant’s substantial rights are not affected merely because other people are not guilty of the same conspiracy in which the defendant was involved. Instead, the primary dangers resulting from a variance between the indictment and proof at trial are (1) the accused will not be able to present an adequate defense because of inadequate notification as to the charges, (2) the jury will transfer guilt among the defendants in a joint trial, and (3) the accused may be prosecuted for the same offense later. Id.
In Sutherland, the Fifth Circuit focused on three factors to determine whether a variance has affected an accused’s substantial rights. First, the court should look to the number of
In this case, there were four defendants and the government proved the existence of four similar conspiracies. This case was not so complex as to render it likely that the jury transferred guilt among the defendants. Compare Berger, 295 U.S. at 82-83, 55 S.Ct. at 631 (no substantial rights affected where there were four defendants and two distinct conspiracies) with Kotteakos v. U.S., 328 U.S. 750, 766-69, 66 S.Ct. 1239, 1249-50 (1946) (substantial rights affected where there were thirty-two defendants and eight distinct conspiracies). Second, evidence as to each defendant’s role in the kickback schemes was distinct enough so that the jury was unlikely to use evidence of one defendant’s guilt against another defendant. Although the similarities between each of the defendant’s activities may have made an assertion of innocence more difficult for the jury to believe, we find that the evidence as to the underlying crimes was sufficiently distinct and separate for the jury to consider each defendant’s guilt independently. Similarly, the evidence as to each defendant’s involvement in the kickback activities was more than sufficient to find them guilty of the individual conspiracies.
In sum, although I believe that a variance existed between the single conspiracy charged in the indictment and the multiple conspiracies proved at trial, the appellants’ substantial rights were not affected, and thus reversal is not required. Therefore, I would affirm their convictions on all counts.