United States v. Anderson , 218 F. App'x 208 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
2-22-2007
USA v. Anderson
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-2346
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 05-2346
____________
UNITED STATES OF AMERICA
v.
ALAN ANDERSON,
Appellant
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 03-cr-00602-1)
District Judge: Honorable Jan E. DuBois
____________
Argued January 8, 2007
Before: McKEE, AMBRO and FISHER, Circuit Judges.
(Filed: February 22, 2007)
Lynanne B. Wescott (Argued)
239 South Camac Street
Philadelphia, PA 19107
Gail Z. Weilheimer
Frank, Rosen, Snyder & Moss
8380 Old York Road, Suite 410
Elkins Park, PA 19027
Attorneys for Appellant
Maureen Barden
Robert A. Zauzmer (Argued)
Jack Stollsteimer
Office of United States Attorney
615 Chestnut Street
Philadelphia, PA 19106
Attorneys for Appellee
____________
OPINION OF THE COURT
____________
FISHER, Circuit Judge.
Appellant Alan Anderson argues that legally correct jury instructions given by the
District Court at his trial for mail fraud and tax evasion changed the theory of the
Government’s case from the one set forth in the indictment to one that had no basis in the
evidence. Although trial counsel for Anderson never objected to these legally correct
charges, Anderson asks this Court to reverse and remand the judgment below as an
exercise of our discretion to correct plain errors that are prejudicial. We find that no error
at all occurred in this case, and, for the reasons that follow, will affirm the judgment of
the District Court.
I.
As we write only for the parties, we forgo a lengthy recitation of the facts.
Anderson worked as a sales representative for R.J. Reynolds Tobacco (RJR) from
November 4, 1998 to May 8, 2000. During that time, Anderson carried out a scheme to
defraud his employer centering on promotional and marketing discounts given by RJR to
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high-volume retailers in the form of payback checks and vouchers. As a sales rep,
Anderson was responsible for determining who would qualify for the promotional checks
and vouchers. In return for a kickback of about half the face value of the checks,
Anderson would have checks and vouchers sent through the mail to low-volume retailers
who in fact did not qualify. The checks ranged in value from $600 to $8,000 and
Anderson gained a total of about $160,000 from the scheme. Anderson did not report this
illicit income on his tax returns for the years 1999 or 2000, and consequently deprived the
United States of about $40,000 in revenue. On September 18, 2003, Anderson was
indicted and charged with sixteen counts of mail fraud in violation of 18 U.S.C. § 1341
and two counts of tax evasion in violation of 26 U.S.C. § 7201.
At the charging conference, jury instructions on the elements of a “scheme to
defraud” under 18 U.S.C. § 1341 were discussed. Specifically, the conversation focused
on two paragraphs ! one that stated “it is not necessary for the Government to prove that
the defendant was actually successful” and one that referred to “an unsuccessful scheme.”
The attending Government attorney observed “I think these two paragraphs just aren’t
relevant.” Defense counsel responded “I have no objection to deleting the last paragraph,
beginning with “an unsuccessful scheme.” The trial judge agreed, stating “I think it’s a
good idea and my view is, the shorter the charge, the better a jury grasps the issues.”
With all in agreement, the paragraphs were deleted.
During its deliberations, the jury sent a note to the trial judge asking the following
question: “To be mail fraud, does the defendant have to receive money or property, or
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does the act of trying to obtain money or property constitute mail fraud?” Obviously, the
deleted paragraphs addressed that question directly insofar as they made clear that an
unsuccessful attempt was still mail fraud under the statute. Consequently, the
Government offered its original, annotated copy of the jury instructions, suggesting that
the omitted paragraphs be read to the jury. Counsel for Anderson did not object to the
supplemented jury instructions and instead affirmatively agreed to the reading of those
paragraphs. With all in agreement again, the trial judge re-read the legally correct jury
instructions supplemented by the omitted paragraphs, which are as follows:
It is not necessary for the Government to prove that the defendant was
actually successful in defrauding anyone or successful in obtaining money
or property by means of false or fraudulent pretenses, representations or
promises. It is not necessary for the Government to prove that anyone lost
any money or property as a result of the scheme or plan to defraud.
An unsuccessful scheme to defraud is as illegal as a scheme or plan that is
actually successful.
The jury then returned a verdict finding Anderson guilty on thirteen counts of mail
fraud and two counts of tax evasion. Anderson filed a timely appeal, alleging for the first
time that the reading of the jury instructions as supplemented was improper.
II.
The District Court had jurisdiction over these criminal proceedings pursuant to 18
U.S.C. § 3231. Anderson filed a timely appeal, and we have jurisdiction over the final
judgment of the District Court under 28 U.S.C. § 1291. Because trial counsel for
Anderson failed to object to the jury instruction at trial, we review the proceedings for
plain error, that is, one that is “clear” and “affects the defendant’s substantial rights.”
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United States v. Nappi, 243 F.3d 758, 762 (3d Cir. 2001). Reversal is permissive, not
mandatory, under Federal Rule of Criminal Procedure 52(b) and in this case we “exercise
our discretion to order such a correction only if the error ‘seriously affects the fairness,
integrity, or public reputation of judicial proceedings.’” United States v. Stevens, 223
F.3d 239, 242 (3d Cir. 2000) (quoting United States v. Olano, 507 U.S. 725, 734 (1993))
(internal citations omitted). The burden is on Anderson to demonstrate that plain error
occurred. Id.
III.
It is undisputed that the challenged jury instruction in its entirety was a correct
statement of the law. In addition, throughout the proceedings the Government asserted
that Anderson had committed mail fraud under 18 U.S.C. § 1341, the same crime for
which he was indicted and eventually convicted. In alleging that the supplemented jury
instructions “changed the government’s theory of the case,” it is unclear whether
Anderson believes the jury instructions created a “variance” or rather a “constructive
amendment” of the indictment.1 However, we need not resolve this ambiguity as it is
1
Anderson’s opening brief does not explicitly mention “variance” or “constructive
amendment” or cite any cases specifically addressing these claims, but his reply brief
does argue a constructive amendment occurred. Were it not so clear that this argument
has no merit, we might otherwise conclude that Anderson waived it by failing to meet the
specificity requirements of Federal Rule of Appellate Procedure 28. See Fed. R. App. P.
28(a)(9)(A)(“[A]rgument . . . must contain . . . appellant’s contentions and the reasons for
them, with citations to the authorities and parts of the record on which the appellant relies
. . . .”); Laborers’ Int’l Union v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994)
(“An issue is waived unless a party raises it in its opening brief . . . .”).
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clear that neither occurred. As we explained in United States v. Somers, 496 F.2d 723 (3d
Cir. 1974), there are two types of variations between the indictment and evidence that
may form the basis for reversal of a conviction: (1) amendments, which occur “when the
charging terms of the indictment are altered, either literally or [constructively], by
prosecutor or court after the grand jury has last passed upon them,” and (2) variances,
“where the charging terms are unchanged, but the evidence at trial proves facts materially
different from those alleged in the indictment.” Id. at 743 (citation omitted).
In this case, the grand jury’s indictment specifically charged Anderson with mail
fraud in violation of 18 U.S.C. § 13412 and tax evasion in violation of 26 U.S.C. § 7201.
The Government’s “theory of the case” throughout the proceedings was that Anderson
violated 18 U.S.C. § 1341 through a scheme to defraud involving the U.S. Postal Service,
and then failed to report the illegal proceeds of that fraudulent activity as taxable income.
A constructive amendment occurs only when jury instructions broaden the scope of the
indictment by permitting conviction for an uncharged offense. See, e.g., Government of
the V.I. v. Joseph, 765 F.2d 394, 397-99 (3d Cir. 1985) (finding constructive amendment
occurred where indictment charged first-degree rape and court’s instruction to jury
2
§ 1341 states, in relevant part:
Whoever, having devised or intending to devise any scheme or artifice to
defraud, or for obtaining money or property by means of false or fraudulent
pretenses . . . places in any post office or authorized depository for mail
matter, any matter or thing whatever to be sent or delivered by the Postal
Service . . . or knowingly causes to be delivered by mail or such carrier
according to the direction thereon . . . shall be fined under this title or
imprisoned not more than 20 years, or both . . . .
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allowed conviction of entirely separate charge of third-degree rape). Here the jury
convicted Anderson of the precise crimes with which he was charged in the indictment, a
scheme to defraud under 18 U.S.C. § 1341 and tax evasion under 26 U.S.C. § 7201. The
jury instruction charge, which simply states the correct legal standard for finding an
individual liable under § 1341, therefore did not constructively amend Anderson’s
indictment. Rather, it merely identified the alternative grounds for finding him liable for
the same charge. See United States v. Navarro, 145 F.3d 580, 584 (3d Cir. 1998) (finding
no constructive amendment where jury instructions included three possible mental states
although prosecution focused on only one state).
Furthermore, there was no variance between the facts alleged and the evidence
proved at trial. Anderson argues that the Government conceded during the charging
hearing that there was no evidentiary support for the jury instruction that Anderson could
be liable under § 1341 for an unsuccessful attempt to defraud. This argument is
unpersuasive. It is illogical in that the Government clearly believed and asserted
throughout the trial that there was a sufficient foundation in the evidence to support a
charge of successful mail fraud. Implicit in the assertion that there is sufficient
evidentiary support for a successful effort to defraud is the proposition that there is
sufficient evidence for an unsuccessful effort to defraud. Furthermore, we do not believe
Anderson is correct in his assertion that the Government “acknowledged” and “frankly
admitted” that there was no support for the jury instruction charge on an unsuccessful
attempt. The Government stated that it believed the additional paragraphs on an
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unsuccessful scheme “just aren’t relevant.” It is not the Government’s position that
evidence did not support such a charge. Rather, it maintains that the paragraphs were
“superfluous” and that it believed originally that they would needlessly complicate and
confuse the issues. See Appellee’s Br. 12.
Finally, the jury found Anderson guilty of tax evasion for failing to report the
proceeds of his fraudulent mail scheme. Clearly, both the grand jury and trial jury
concluded Anderson’s mail fraud was “successful,” otherwise there would have been no
illegal income to fail to report. Anderson argues it is impermissible to consider the tax
evasion charges as proof that the jury found his mail fraud scheme successful. To do so,
he asserts, would require us to rely on a “pattern of convictions,” a rationale which
Anderson argues we disavowed in United States v. Syme, 276 F.3d 131, 155 (3d Cir.
2002) (“We do not believe that the ‘pattern of convictions’ is sufficient to support the
conclusion that the government urges us to draw about the jury’s motivations, i.e., that it
relied on the chart and ignored the Court’s instructions.”).
This is not a case, however, where we are speculating as to a jury’s motivations, as
in Syme. Rather, we are drawing a necessary inference from the jury’s conclusion that
Anderson was guilty of tax evasion for failing to report the proceeds of his fraudulent
scheme. We know that the jury concluded that Anderson was successful in his fraudulent
scheme because, as a matter of simple logic, such a conclusion was a necessary
precondition to a finding that Anderson was guilty of tax evasion. Had Anderson not
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been successful at his fraudulent scheme, there would have been no fraudulent proceeds
to fail to report in violation of 26 U.S.C. § 7201.
IV.
Anderson was charged with and convicted of the offenses of mail fraud and tax
evasion. The challenged jury instructions were legally correct and in no way amended or
varied from the charges against him. Therefore, no error at all occurred in this case, let
alone plain error, and we will affirm the judgment of the District Court.
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