UNITED STATES OF AMERICA v. ROY C. BRADLEY, SR.
No. 17-1727
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
March 1, 2019
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). File Name: 19a0032p.06. Appeal from the United States District Court for the Eastern District of Michigan at Bay City. No. 1:14-cr-20216-4—Thomas L. Ludington, District Judge. Argued: December 6, 2018. Before: MOORE, CLAY, and DONALD, Circuit Judges.
ARGUED: Mark A. Satawa, SATAWA LAW, PLLC, Southfield, Michigan, for Appellant. Sheldon N. Light, UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee. ON BRIEF: Mark A. Satawa, SATAWA LAW, PLLC, Southfield, Michigan, for Appellant. Janet Parker, UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee.
OPINION
KAREN NELSON MOORE, Circuit Judge. Roy C. Bradley, Sr. appeals his conviction for conspiring to defraud the United States, in violation of
I. BACKGROUND
Steven Ingersoll was an optometrist in Bay City, Michigan. (Bradley PSR at 5). He was also the sole owner of Smart Schools Management (SSM) and Smart Schools, Inc. (SSI), two entities created to operate public charter schools in Michigan. R. 393 (Tr. at 39, 50) (Page ID #8472, 8483); R. 394 (Tr. at 11) (Page ID #8579); R. 396 (Tr. at 164–65) (Page ID #8903–04). To run public charter schools, the State of Michigan first issues funding to authorizing agencies. Michigan gave funding to Lake Superior State University, an authorizing agency, which then deposited those funds into SSM’s account, managed by Ingersoll. R. 396 (Tr. at 165) (Page ID #8904). With these funds, Ingersoll founded GTA, a charter school in Traverse City, Michigan, in 1999. R. 393 (Tr. at 52) (Page ID #8485). Ingersoll proceeded to misappropriate funding designated for GTA, making millions of dollars in unauthorized withdrawals and doctoring the books to hide the evidence. R. 388 (Tr. at 124) (Page ID #7718); R. 389 (Tr. at 75) (Page ID #7839).
In April 2010, Ingersoll sought to expand his charter-school business by purchasing a building that had formerly been used as a church in Bay City, Michigan for $270,000. R. 396 (Tr. at 154) (Page ID #8895). Ingersoll planned to renovate the building to create BCA, a new charter school. R. 396 (Tr. at 157–58) (Page ID #8896–97). Ingersoll hired Bradley as the
Ingersoll then misappropriated funding from the construction loan. Ingersoll, his wife Deborah Ingersoll, his son Gayle Ingersoll, Bradley, and Bradley’s wife Tammy Bradley together completed a series of financial transactions transferring Chemical Bank loan money through their own accounts and eventually into Ingersoll’s personal account. From there, Ingersoll reimbursed some of the money he had earlier improperly withdrawn from GTA for personal use.
For example, on February 7, 2011, Ingersoll and Bradley obtained a $508,000 draw on the Chemical Bank loan. R. 397 (Tr. at 50–51, 57) (Page ID #896–61, 8967). Ingersoll then transferred $400,000 of that to Bradley’s account. R. 393 (Tr. at 89–90) (Page ID #8522–23). Three days later, Bradley wrote a check for $200,000 which was deposited into Gayle Ingersoll’s account on February 10, 2011. R. 393 (Tr. at 72–75) (Page ID #8505–08). That same day, Gayle Ingersoll wrote a check for the same amount which was deposited into Steven and Deborah Ingersoll’s personal account. R. 393 (Tr. at 76) (Page ID #8509); R. 392 (Tr. at 166) (Page ID #8426). In May 2011, the same actors completed a similar series of transactions routing $30,000 to Steven Ingersoll, who used the funds to purchase real estate. R. 392 (Tr. at 170–71) (Page ID #8430–31); R. 393 (Tr. at 104–06) (Page ID #8537–39).
In June 2011, over the course of two days, another similar series of transfers took place. Ingersoll and Bradley initiated a $704,000 draw on the Chemical Bank line of credit. R. 397 (Tr. 68–72) (Page ID #8978–82). Ingersoll then transferred that money to Bradley’s construction company account. R. 393 (Tr. at 106) (Page ID #8539); R. 397 (Tr. at 73–74) (Page ID #8983). Next, Tammy Bradley transferred that amount into an account associated with Gayle Ingersoll. R. 393 (Tr. at 77, 79, 106) (Page ID #8510, 8512, 8539). Gayle Ingersoll then transferred the same amount into Steven and Deborah Ingersoll’s personal account. R. 393 (Tr. at 86) (Page ID
Meanwhile, Bradley hired indigent employees to work at the BCA construction site and paid them around $250 to $350 in cash per week for five or six full days of work. R. 394 (Tr. at 78, 85) (Page ID #8646, 8653); R. 396 (Tr. at 119, 121) (Page ID #8858, 8860). He did not pay FICA or FUTA taxes on the wages and did not file W-2s or issue Form 1099s to the employees. R. 394 (Tr. at 79) (Page ID #8647); R. 396 (Tr. at 95) (Page ID #8834).
Bradley and his wife Tammy worked with an employee of H&R Block to file their 2011 taxes, but failed to provide documentation to support their income claims. R. 396 (Tr. at 22, 29) (Page ID #8761, 8768). They repeatedly changed the amounts of income they claimed by large margins, making one significant increase soon after Gayle Ingersoll was interviewed by federal agents as part of the investigation of the present case. R. 396 (Tr. at 31–32) (Page ID #8770–71); R. 396 (Tr. at 41–43) (Page ID #8780–82); R. 389 (Tr. at 86) (Page ID #7680). At trial, an IRS agent named Michael Wisniewski testified that even after Bradley and Tammy adjusted their reported income, they still underreported their actual income earned in 2011 and accordingly underpaid their tax obligation. R. 388 (Tr. at 32–34) (Page ID #7626–28).
Bradley was indicted in the United States District Court for the Eastern District of Michigan on April 9, 2014. R. 3 (Indictment at 14) (Page ID #33). He was charged with two counts: Count 1, Conspiracy to Commit Bank Fraud, in violation of
Prior to trial, Bradley submitted a motion in limine requesting that the jury be instructed on the proposed lesser-included offenses of conspiracy to fail to file W-2s or issue 1099s, in violation of
Bradley went to trial on February 10, 2015. R. 391 (Voir Dire Tr.). Bradley was tried jointly with his wife Tammy as well as Steven, Deborah, and Gayle Ingersoll. At trial, the government offered the testimony of Agent Michael Wisniewski of the IRS, who began to testify about the Bradleys’ underreporting and underpaying of their 2011 taxes on Friday, February 27, 2015. Bradley objected to this testimony, arguing that it was outside the scope of the indictment, which did not list Bradley’s underpayment of his taxes as an overt act in furtherance of the conspiracy to defraud the United States. R. 399 (Tr. at 98–104) (Page ID #9338–44). The district court stated that it needed more time to review the underlying law, and prevented Wisniewski from further testifying on the subject that day. Id. at 104 (Page ID #9344). The government provided Bradley with additional information about Wisniewski’s intended testimony in the days that followed. R. 186 (Tr. at 16) (Page ID #1574). When Wisniewski resumed this testimony on Tuesday, March 3, 2015, the court ruled that it reasonably fell within the scope of the conspiracy as charged in Count 2. Id. at 13–24 (Page ID #1571–82).
On February 23, 2015, Bradley filed “Proposed Jury Instructions for Lessor [sic] Included Offense as to Count Two.” R. 142 (Bradley’s Proposed Jury Instructions) (Page ID #1033). This filing failed to propose actual jury instructions, but rather merely reiterated arguments for the inclusion of instructions on the proposed lesser-included offenses discussed in his earlier motion in limine. On March 6, 2015, Bradley was acquitted of Count 1 in a Judgment of Acquittal. R. 152 (Order Granting in Part and Denying in Part Mots. for Acquittal) (Page ID #1247). The district court did not instruct on a lesser-included offense in its final jury instructions, but did not explain why in the written record. R. 176 (Jury Instructions at 7) (Page ID #1376). On March 10, 2015 the jury returned a verdict finding Bradley guilty of Count 2. R. 156 (Verdict Form) (Page ID #1253). On March 24, 2015, Bradley joined Steven Ingersoll’s
II. DISCUSSION
A. Constructive Amendment or Variance of Count 2
Bradley argues that his role in the conspiracy, as alleged in the overt-acts section of the indictment, “has solely and repeatedly been limited to that he paid his construction company’s workers in cash and did not report the wages that he paid to his company’s workers via Form 1099s or W-2s.” R. 150 (Def.’s Mem. of Law in Supp. of Arg. to Exclude the Government from Introducing Evid. Regarding the Filing of Inaccurate Tax Returns at 6) (Page ID #1233). Bradley claims that Wisniewski’s testimony about Bradley’s underreporting and underpayment of his 2011 taxes constituted a prejudicial constructive amendment or variance to the indictment.
If the defendant raises a specific objection to a constructive amendment or variance at trial, we review de novo. United States v. Prince, 214 F.3d 740, 756 (6th Cir. 2000). Where no such objection is made in the district court, we review for plain error. United States v. Kuehne, 547 F.3d 667, 682 (6th Cir. 2008). Bradley claims that he objected to the constructive amendment or variance at trial and renewed that objection in his Motion for New Trial. Appellant Br. at 19. The government argues that he did not properly object before the district court, essentially because he did not use the language of “constructive amendment” or “variance.” Rather, he objected to Wisniewski’s testimony as “not relevant because the allegation in the indictment was that he paid his employees in cash,” as “disjoinder,” and as a
We need not decide whether the objection was effectively lodged and thus which standard of review applies because the district court’s decision would survive either level of review.
“An indictment may be the subject of an actual amendment, a constructive amendment, or a variance.” United States v. Budd, 496 F.3d 517, 521 (6th Cir. 2007). To assess whether there has been a constructive amendment or variance to the indictment, we “review the language of the indictment, the evidence presented at trial, the jury instructions and the verdict forms utilized by the jury.” Kuehne, 547 F.3d at 683–84. The defendant bears the burden of proof in demonstrating that a variance or constructive amendment occurred. United States v. Hynes, 467 F.3d 951, 962 (6th Cir. 2006).
There is a constructive amendment “when the terms of an indictment are in effect altered by the presentation of evidence and jury instructions which so modify essential elements of the offense charged that there is a substantial likelihood that the defendant may have been convicted of an offense other than the one charged in the indictment.” United States v. Martinez, 430 F.3d 317, 338 (6th Cir. 2005) (quoting United States v. Smith, 320 F.3d 647, 656 (6th Cir. 2003)). A constructive amendment occurs “where both the jury instructions and the evidence at trial vary from the indictment to broaden the basis for conviction.” Kuehne, 547 F.3d at 685. Prejudice requiring reversal of the conviction always results when there is a constructive amendment “because [constructive amendments] infringe on the Fifth Amendment’s grand jury guarantee.” Hynes, 467 F.3d at 962 (internal citations and quotations omitted).
Variances differ from constructive amendments. They “occur[ ] when the charging terms [of the indictment] are unchanged, but the evidence at trial proves facts materially different from those alleged in the indictment.” Prince, 214 F.3d at 756–57 (internal quotation marks omitted). Unlike constructive amendments, they do not require a divergence between the indictment and the jury instructions. Martinez, 430 F.3d at 338. When a defendant demonstrates that a variance occurred, we reverse only if the “defendant shows prejudice to his ability to defend himself at trial, to the general fairness of the trial, or to the indictment’s sufficiency to bar subsequent
The presentation of evidence not explicitly mentioned in the indictment does not necessarily constitute a constructive amendment or material variance. In Kuehne, “the government offered evidence of more firearms than were listed in the indictment.” 547 F.3d at 686. Yet because “the jury was instructed regarding the specific weapons charged in the indictment and that it had to find those weapons were involved in the offenses beyond a reasonable doubt,” and there was no “discrepancy between the counts as listed in the indictment and the instructions regarding the necessary elements for conviction on those counts,” we held that there had been neither a constructive amendment nor a material variance. Id. We reasoned that “[t]he presentation of additional evidence to substantiate charged offenses [] does not constitute facts materially different from those charged in the indictment.” Id. In other cases, we have concluded that neither a constructive amendment nor a variance occurred when proof offered at trial went beyond conduct alleged in the indictment. See, e.g., United States v. Rashid, 274 F.3d 407, 413–15 (6th Cir. 2001) (no constructive amendment or variance when, at trial, the government presented evidence about conduct occurring in 1988, but the indictment referred only to conduct of that nature beginning in 1992); Hynes, 467 F.3d at 965 (no constructive amendment or variance when, at trial, the government argued that the defendant had made two false statements before the grand jury when the indictment alleged only that the defendant had made one).
Turning to Bradley’s case, we first note that Bradley incorrectly characterizes the indictment’s description of his participation in the conspiracy. The indictment does not limit his participation to paying his workers in cash and failing to report their pay to the relevant government agencies. Count 2 also alleges that “Steven Ingersoll, Roy Bradley and Gayle Ingersoll, and others, engaged in a series of transactions to conceal that part of the proceeds of a construction loan . . . were diverted away from the construction project and converted into personal income for Steven Ingersoll.” R. 24 (Superseding Indictment at 6–7) (Page ID #80–81). Bradley’s alleged participation in the conspiracy therefore went well beyond his failure to issue Form 1099s and W-2s. The overt-acts section of the indictment details his specific involvement
Here, the substantive jury instructions on Count 2 informed the jury that they must find “[f]irst, that two or more persons conspired, or agreed, to defraud the United States, or one of its agencies or departments, by dishonest means.” R. 176 (Jury Instructions at 7) (Page ID #1376). The jury then had to find that the “defendant knowingly and voluntarily joined the conspiracy” and that “a member of the conspiracy did one of the overt acts described in the indictment for the purpose of advancing or helping the conspiracy,” thereby specifically incorporating the overt acts listed in the indictment. Id. at 8 (Page ID #1377) (emphasis added).
There was not a constructive amendment because Count 2 as described in the jury instructions mirrors the charge in the indictment and directly incorporates the overt-acts section of the indictment by reference. Id. at 7–9 (Page ID #1376–78). Where the jury instructions do not differ from the crime charged in the indictment, there is no constructive amendment. Kuehne, 547 F.3d at 684.
Nor did the introduction of evidence about Bradley’s improper tax filings constitute a material variance. It is true that the superseding indictment lists several of Bradley’s transactions in the chain of fraudulent transfers and his failure to issue Form 1099s or W-2s to his employees as overt acts in furtherance of the conspiracy, but does not list Bradley’s failure adequately to report or pay his 2011 taxes as an overt act. R. 24 (Superseding Indictment at 7–10) (Page ID #81–84). Evidence of his improper 2011 tax filing was admitted at trial. However, as in Kuehne, this merely constituted a “presentation of additional evidence to substantiate charged offenses,” which did not include “facts materially different from those charged in the indictment.” 547 F.3d at 686. Bradley’s series of fraudulent transactions involving large sums, chronicled in the indictment, had tax consequences—income that should have been reported. R. 24 (Superseding Indictment at 7–10) (Page ID #81–84). Wisniewski testified about how proper reporting of that income would have impacted Bradley’s tax burden. The facts presented at trial were not “materially different” from those charged in the indictment.
Even if the inclusion of Wisniewski’s disputed testimony did constitute a variance, it would not entitle Bradley to a reversal of his conviction because Bradley has not “show[n] prejudice to his ability to defend himself at trial, to the general fairness of the trial, or to the indictment’s sufficiency to bar subsequent prosecutions.” Hynes, 467 F.3d at 962 (quoting Barrow, 118 F.3d 482). Bradley does not raise arguments about the sufficiency of the indictment to bar subsequent prosecutions. He argues that had he known that Wisniewski would testify about his improper tax filings, he would have hired a CPA to analyze his tax returns and counter Wisniewski’s testimony. R. 171 (Def.’s Joinder in Dr. Ingersoll’s Mot. for New Trial and for J. of Acquittal at 13) (Page ID #1319). Bradley’s argument fails for several reasons.
First, Bradley was not blind-sided by Wisniewski’s testimony. The indictment must inform the defendant of the charges against him, but it need not inform him point-by-point of the manner in which the government will prove its case. See United States v. Atisha, 804 F.2d 920, 927 (6th Cir. 1986) (commenting that “there is no requirement in conspiracy cases that the government disclose even all the overt acts in furtherance of the conspiracy”) (quotation omitted); see also Prince, 214 F.3d at 758 (“reject[ing] [the] argument that the due process right to clear notice of criminal charges includes notice of the exact method by which the criminal actions were alleged to have been committed”). It is true that the overt acts section of the indictment specifically mentions Gayle and Steven Ingersoll’s faulty 2011 tax filings, but does not mention Bradley’s, the subject of the challenged testimony. R. 24 (Superseding Indictment at 10) (Page ID #84). But, as the district court noted, there were “multiple assertions in the overt acts of transactions that he would have been involved in [that] would have been taxable to him.”2 R. 399 (Tr. at 102) (Page ID #9342).
Additional safeguards ensured the trial’s fairness and protected Bradley’s ability to defend himself. On Friday, February 27, 2015, when Agent Wisniewski began to testify about Bradley’s 2011 tax filing, Bradley objected to the testimony. Id. at 98 (Page ID #9338). The district court halted this line of testimony in an abundance of caution, stating that it desired more time to decide whether to allow the testimony. Id. at 105 (Page ID #9345). Wisniewski did not
Bradley also “had the opportunity to cross-examine Agent [Wisniewski] and to respond to the government’s evidence . . . during closing arguments.” Hynes, 467 F.3d at 964. The tax calculations that Wisniewski discussed on the stand were based on previously disclosed financial information in the possession of the defense. R. 388 (Tr. at 56) (Page ID #7650). Bradley’s counsel did indeed cross-examine Wisniewski. Id. at 58 (Page ID #7652).
Third, the theory of Bradley’s defense was that Bradley had been in over his head in dealing with the finances surrounding the construction project and therefore did not knowingly become a part of the conspiracy to defraud the United States. See R. 400 (Tr. at 162) (Page ID #9571; R. 151 (Mem. in Supp. of Admitting Def. Ex. 4 at 3–4) (Page ID #1243–44). If anything, Wisniewski’s testimony about Bradley’s failure to report certain sources of income from the project supports this defense; it certainly does not undermine it. See United States v. Robison, 904 F.2d 365, 369 (6th Cir. 1990) (finding no reversible error when a variance did not substantially affect the defendant’s chosen defense).
As part of his variance and constructive-amendment argument, Bradley also asserts that (1) if he himself was not proven to have committed an overt act in furtherance of the conspiracy, he could not be convicted, and (2) if the overt act he committed was not illegal, he could not be convicted of the conspiracy charge. See Appellant Br. at 46–49. Both legal assertions are incorrect. First, “[a]ll that must be proved for a conviction is that ‘one of the conspirators . . . knowingly committed at least one overt act charged in the indictment . . . [and] that such overt act was knowingly done in furtherance of some object or purpose of the conspiracy as charged.’” United States v. Younes, 194 F. App’x 302, 309 (6th Cir. 2006) (quoting United States v. Kraig, 99 F.3d 1361, 1368 (6th Cir. 1996)) (emphasis added). There is no requirement that the defendant himself commit the overt act. Second, the overt act in furtherance of the conspiracy
B. Prosecutorial Misconduct
Bradley challenges two specific metaphors used by the government at trial: one during its opening statement and one during its rebuttal. We normally review de novo “the question of whether prosecutorial misconduct requires reversal.” United States v. Stover, 474 F.3d 904, 914 (6th Cir. 2007). However, if the defendant did not preserve the specific objections at trial, we review for plain error. United States v. Henry, 545 F.3d 367, 376 (6th Cir. 2008). In order to preserve a claim of error, the objecting party must “inform[] the court . . . of the action the party wishes the court to take, or the party’s objection to the court’s action and the grounds for that objection.”
In evaluating alleged prosecutorial misconduct, we first determine whether the challenged statements made by the prosecutor were improper. United States v. Barnett, 398 F.3d 516, 522–23 (6th Cir. 2005). If the statements were improper, we then determine whether they constituted flagrant misconduct. Henry, 545 F.3d at 376. To determine whether a prosecutor’s remarks constituted flagrant misconduct, we assess “(1) whether the conduct and remarks of the prosecutor tended to mislead the jury or prejudice the defendant; (2) whether the conduct or remarks were isolated or extensive; (3) whether the remarks were deliberately or accidentally made; and (4) whether the evidence against the defendant was strong.” United States v. Modena, 302 F.3d 626, 635 (6th Cir. 2002) (quoting United States v. Carter, 236 F.3d 777, 783 (6th Cir.
“[E]xceptionally flagrant” prosecutorial misconduct is grounds for reversal, even under a plain-error standard. Carter, 236 F.3d at 783. If the prosecutor’s remarks are not flagrant, we reverse a conviction “only if proof of the defendant’s guilt was not overwhelming, the defendant objected to the improper remarks, and the court failed to cure the error with an admonishment to the jury.” Kuehne, 547 F.3d at 688 (quoting Stover, 474 F.3d at 915).
Bradley specifically challenges two metaphors that the government employed: (1) a scale metaphor used during its opening statement to explain the presumption of innocence and the burden of proof, and (2) a puzzle metaphor used during its rebuttal to explain proof beyond a reasonable doubt. The district court concluded that neither metaphor was improper. R. 205 (Order Denying Mots. for New Trial at 11) (Page ID #2525). We respectfully disagree with the district court. Although we conclude that both statements were improper, we find that they did not constitute flagrant prosecutorial misconduct and do not warrant reversal of Bradley’s conviction.
1. Scale Metaphor
In its opening statement, the government attempted to explain the presumption of innocence and the way in which the prosecution’s and defense’s presentations of evidence interacted with that presumption using a scale metaphor. The government argued that the presumption of innocence is
a blank sheet. It’s like the white on that easel over there. It’s blank. It means there is no evidence until it’s presented here in court.
That doesn’t have any weight. If you think of the scales of justice, presumption of innocence doesn’t mean we start with the scales tipped one way and the government has to tip it the other way. It means we start even, an empty or balanced situation, and the purpose of the trial is to present the evidence that
will tip that one way or the other and you, ladies and gentlemen, ultimately decide which way that evidence tips.
R. 392 (Tr. at 8–9) (Page ID #8268–69). Bradley argues that the use of such a metaphor incorrectly implies that if the scale tips ever so slightly in the direction of guilt, conviction is warranted. He argues that the scale metaphor reflects the preponderance-of-the-evidence standard, improper for criminal trials. See Hodge v. Hurley, 426 F.3d 368, 379 n.21 (6th Cir. 2005) (discussing prosecutor’s likely improper statements in the context of habeas review).
Improper burden shifting by the government violates due process and can be grounds for reversal. See United States v. Newton, 389 F.3d 631, 638 (6th Cir. 2004), vacated on other grounds, 546 U.S. 803 (2005). In Henry, we concluded that the prosecutor improperly “inverted the burden of proof” by stating during its closing argument that if the jurors would not encourage their children to work for the defendant, who was alleged to have led a drug-smuggling scheme, then the proof-beyond-a-reasonable-doubt standard had been satisfied and they should convict. 545 F.3d at 383. However, we did not find reversible plain error because the prosecutor’s misconduct was mitigated by the strength of the evidence against Henry, the district court thoroughly instructed the jury on the proper burden of proof, and Henry’s counsel had failed to lodge a contemporaneous objection. Id. at 384.
We conclude that the scale metaphor employed by the government in its opening statement was improper. It risked leading jurors to believe that if the evidence of guilt was slightly stronger than the evidence of innocence, they should convict. The scale metaphor also incorrectly implies that the defense must present evidence to counterbalance the government’s evidence. If one places a weight on the plate on one side of a scale but nothing on the plate on the other side, the scale will collapse to the weighted side. In a criminal trial, however, the government may put forth some evidence, the defense may put forth nothing, and acquittal may still be appropriate.
Although improper, the government’s use of the scale metaphor does not constitute flagrant misconduct requiring reversal under the plain-error standard. First, the comments in Henry not only more clearly misconstrued the burden of proof than the scale metaphor here, but they also paired that misinformation with the emotion-provoking content of a hypothetical
2. Puzzle Metaphor
In its rebuttal, the government employed another metaphor to explain the beyond-a-reasonable-doubt standard. The government remarked:
Now, one last thing I would like to leave you with, in order to sort of illustrate the concept of beyond a reasonable doubt. I think we all have had the experience in our lives of having a jigsaw puzzle where you have the picture on the box, and you go and put together the puzzle and you find that some of the pieces have been scattered over time and aren’t in the box and didn’t get put back into the puzzle and, you know, maybe the dog chewed up one or whatever, but you have a picture that you’ve assembled, and maybe it’s got some bits and pieces missing, but you know looking at that picture, that that picture is the same puzzle that was on the cover of the box.
That, ladies and gentlemen, I submit to you, is a good example of beyond a reasonable doubt, because there’s no case that’s beyond all possible doubt. There’s no case that’s perfect, but everyday [sic], day in and day out, and throughout the history of our country, jurors have been asked to apply that standard, and that says a doubt based on reason and common sense.
And if you can look at the parts of the puzzle that you have and say that the picture, right, using your reason and your common sense, the picture being the indictment, has been assembled before you, you can find the defendants guilty as charged.
However, the use of this metaphor was not flagrant misconduct requiring reversal under the plain-error standard. First, the metaphor is not so flagrantly erroneous as to cause the court to infer that the government intentionally sought to mislead jurors with it. Second, the government used the puzzle metaphor in one isolated instance. Third, significant evidence demonstrated Bradley’s guilt. Fourth, Bradley failed timely to object to the puzzle metaphor. Finally, the district court countered the flawed metaphor’s impact by thoroughly and repeatedly instructing the jurors on the burden of proof and the beyond-a-reasonable-doubt standard as well as explaining the role of the indictment in criminal proceedings. R. 176 (Jury Instructions at 1, 8) (Page ID #1370, 1377). “[J]urors are presumed to follow the trial court’s instructions.” Hynes, 467 F.3d at 957 (concluding that “any possible confusion . . . was alleviated by the two consistent and correct instructions subsequently given”).
Considering the context of the fairness of the trial as a whole, including Bradley’s counsel’s failure timely to object and the district court’s proper curative instructions on the relevant standards, we conclude that the two improper statements do not constitute grounds for reversal under the plain-error standard. See Boyd, 640 F.3d at 669.
C. Instructions on Lesser-Included Offenses
Bradley challenges the district court’s failure to instruct the jury on his proposed lesser-included offenses: conspiracy to fail to file W-2s, in violation of
The second criterion of the lesser-included offense analysis requires us to determine whether “the elements of the lesser offense are identical to part of the elements of the greater offense.” Id. (quoting Colon, 268 F.3d at 373). Bradley was charged and convicted for conspiring to defraud the United States—the proposed greater offense. The elements of conspiracy to defraud the United States that the district court charged to the jury are: (1) “that two or more persons conspired, or agreed, to defraud the United States, or one of its agencies or departments, by dishonest means,” (2) that the “defendant knowingly and voluntarily joined the conspiracy,” and (3) that “a member of the conspiracy did one of the overt acts described in the indictment for the purpose of advancing or helping the conspiracy.” R. 176 (Jury Instructions at 7–8) (Page ID #1376-77). The elements of the proposed lesser offense of conspiracy to fail to file W-2s would presumably be: “(1) an agreement to [fail to file W-2s]; (2) one or more overt acts in furtherance of th[at] illegal purpose; and (3) the intent to [fail to file W-2s].” United States v. Douglas, 398 F.3d 407, 413 (6th Cir. 2005). Similarly, the elements of the lesser offense of conspiracy to fail to issue Form 1099s would be “(1) an agreement to [fail to issue Form 1099s]; (2) one or more overt acts in furtherance of th[at] illegal purpose; and (3) the intent to [fail to issue Form 1099s].” Id.
In some instances, instructing on a lesser conspiracy within a greater conspiracy is appropriate. See United States v. LaPointe, 690 F.3d 434, 440 (6th Cir. 2012) (citing United States v. Boidi, 568 F.3d 24, 28 (1st Cir. 2009) (Boudin, J.)). In Boidi, for example, the First Circuit reasoned that “a vertical ‘conspiracy to possess drugs with intent to distribute’ can easily be said to be a ‘conspiracy to possess drugs’ with one added element, namely, that the parties also had a shared aim that the possessed drugs then be distributed.” Boidi, 568 F.3d at 28. The conspiracy statute contemplated here,
However, “[i]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.” McPherson v. Kelsey, 125 F.3d 989, 995 (6th Cir. 1997) (quoting Citizens Awareness Network, Inc. v. U.S. Nuclear Regulatory Comm’n, 59 F.3d 284, 293 (1st Cir. 1995)). After reviewing the record from both the district court and on appeal, we must conclude that Bradley failed sufficiently to develop his lesser-included offense argument and thus forfeited the argument.
In the district court, Bradley submitted a motion in limine requesting that the district court instruct the jury on the lesser-included offenses of conspiracy to violate
Bradley did not engage in the Sixth Circuit’s lesser-included offense analysis either before the district court7 or on appeal.8 See R. 142 (Bradley’s Proposed Jury Instructions for Lessor [sic] Included Offense at 1–3) (Page ID #1035); Appellant Br. at 45–52. Bradley failed to explain how “the elements of the lesser offense are identical to part of the elements of the greater offense.” Jones, 403 F.3d at 821–22 (quoting Colon, 268 F.3d at 373). He failed even to break
Bradley “leave[s] it to the court to seek out the relevant law, identify the relevant evidence, and develop [his] arguments for [him].” Brenay v. Schartow, 709 F. App’x 331, 336 (6th Cir. 2017). The issue of whether a jury should be instructed on conspiracies to fail to make specific tax filings as lesser-included offenses of conspiracy to defraud the United States under
III. CONCLUSION
For the reasons set forth above, we AFFIRM Bradley’s conviction.