U.S. v. Green ( 1992 )


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  •              IN THE UNITED STATES COURT OF APPEALS
    
                         FOR THE FIFTH CIRCUIT
    
                 ____________________________________
    
                              No. 91-3573
    
                 ------------------------------------
    
                       United States of America,
    
                          Plaintiff-Appellee,
    
                                versus
    
                           Douglas D. Green,
    
                          a/k/a/ Doug Green,
    
                         Defendant-Appellant.
    
         --------------------------------------------------
    
             Appeal from the United States District Court
    
                for the Eastern District of Louisiana
         --------------------------------------------------
    
                           (June 15, 1992 )
    
    Before   WISDOM, REYNALDO G. GARZA and JONES, Circuit Judges
    
    GARZA, REYNALDO G., Circuit Judge:
    
         Appellant Douglas D. Green (Green) challenges his
    
    convictions for mail fraud, conspiracy to commit mail fraud
    
    and money laundering and the sentences imposed.      For the
    
    following reasons, we AFFIRM Green's convictions and
    
    sentences.
    
                               The Facts
    
         "They say the gods themselves/ Are moved by gifts, and
    gold does more with men than words."1
    
         Appellant Green was elected to the position of
    
    Commissioner of Insurance for the State of Louisiana in
    
    October of 1987.   He took office in March of 1988.   The
    
    facts of his election campaign and his conduct while in
    
    office bear witness to the unfortunately continuing truth of
    
    the words spoken by Euripides almost 2,500 years ago.
    
         In the fall of 1986, John and Naaman Eicher (the
    
    Eichers), principals of Champion Insurance Company
    
    (Champion), became dissatisfied with the performance of the
    
    then Commissioner of Insurance of the State of Louisiana,
    
    Sherman Bernard (Bernard).   In an effort to unseat Bernard
    
    and find favor in the office of the Commissioner, the
    
    Eichers handpicked Green, a former employee of John Eicher
    
    at Key Underwriters, to run for the post.2   The Eichers
    
    offered to match Green's then current income and to provide
    
    substantial funding for Green's campaign.3
    
    
             1
                Euripides, Medea (431 B.C.) (Tr. Rex Warner), as
    appearing in The International Thesaurus of Quotations at 63
    (compiled by Rhoda Thomas Tripp) (Softcover ed. 1987).
    
         2
               Green had previously worked for the Eichers' at
    Key Underwriters, an insurance agency. Testimony at trial
    revealed Green regularly falsified state driving records for
    the Eichers' clients in order to get reduced rates for
    clients with bad driving records.
    
         3
               Much of the incriminating evidence adduced at
    trial came in the form of testimony provided by Naaman
    Eicher, Patricia Eicher and Gary O'Neill (the Eichers'
    attorney) pursuant to plea agreements with the government.
    
    
                                  2
         Funding for Green's campaign arrived in the form of
    
    "loans" from William Hall (Hall) ($100,000), Harry Mey (Mey)
    
    ($25,000) and M.L.C. Services Inc. (MLC) ($25,000), a
    
    company owned by Carey Guidry.4    Testimony revealed each of
    
    the "loans" corresponded exactly to amounts "loaned" to
    
    Hall, Mey and M.L.C. (collectively the "intermediaries") by
    
    United Financial Services (United), a company owned by the
    
    Eichers.   Notes for the "loans" were simultaneously created
    
    between the intermediaries and the Green campaign and the
    
    intermediaries and United.    United informed the
    
    intermediaries that it would not seek repayment of the notes
    
    unless the Green campaign repaid the intermediaries.
    
    Although fundraisers were held on behalf of Green following
    
    his election, no payments of principal or interest were ever
    
    made to the intermediaries.    At the same time, however, some
    
    of the money raised was used to hire private investigators
    
    utilized in an attempt to gather information for the purpose
    
    of firing Max Mosley, the Chief Insurance Examiner and a
    
    target of the Eichers.   Green was entirely aware of these
    
    financing arrangements; he had been present at meetings
    
    during which these financing arrangements were planned.
    
         In addition to the financing provided by the Eichers,
    
    Green was paid $2,000 per month to "run for office" and was
    
    
    
         4
               Although charged with money laundering the three
    "loans", which totalled $150,000, testimony revealed that
    the Eichers channelled $2.1 million into Green's campaign.
    
    
                                   3
    provided with a fashion consultant.    The Eichers also
    
    arranged for Green's brother to be his driver, the Eichers
    
    paying the salary, and arranged for Green's brother to live
    
    in an apartment paid for by the Eichers.
    
         Upon Green's assumption of duties as Commissioner of
    
    Insurance, a backlog of unpaid claims began to build up at
    
    Champion and complaints at the Insurance Commission mounted.
    
    James Fernandez (Fernandez), a supervisor in the Department
    
    of Insurance, repeatedly raised the issue of Champion's
    
    problems with Green, asking Green to take action against
    
    Champion.   Green's response to Fernandez' overtures was to
    
    remove Fernandez from the investigation of the claims
    
    involving Champion.    Green personally assumed control and
    
    responsibility for the investigation together with his close
    
    friend Tom Bentley.5   Although intense pleas from Fernandez
    
    continued,6 Green did nothing about Champion's mounting
    
    problems.   In spite of Green's nonaction, official inquiry
    
    forms ("lulling letters") were sent by the Department of
    
    Insurance to each of Champion's complainants indicating that
    
    the Department of Insurance was investigating their
    
    complaints.   Champion claimants testified the lulling
    
    
         5
               Bently is currently appealing his conviction for
    making false statements to a federal grand jury during the
    investigation of Champion and Green. United States v.
    Bently, appeal docketed, No. 91-3768.
    
         6
               Fernandez' testimony was corroborated by at least
    two other witnesses from the Department of Insurance.
    
    
                                   4
    letters contributed to their decisions not to seek legal
    
    action against Champion.
    
         In addition to the lulling letters, Green assisted the
    
    Eichers and Champion by interfering with an audit of
    
    Champion designed to remove the watchlisting of Champion by
    
    A.M. Best (Best), a national insurance rating company.
    
    Green appointed Malcolm Ward (Ward) to conduct the
    
    examination of Champion.   When Ward attempted to expand the
    
    audit of Champion, Green intervened and limited it.    Green
    
    guided the Department of Insurance in its urging of Best to
    
    withdraw the watchlisting of Champion.   This action occurred
    
    via correspondence from the Department of Insurance drafted
    
    by Patti Eicher, John Eicher's wife.
    
         Green's actions on behalf of the Eichers extended into
    
    other areas as well.   He misled the Insurance Commissioner
    
    of Alabama, at the time conducting its own investigation of
    
    Champion, by indicating that Champion was in good condition
    
    despite knowledge of innumerable complaints against it.
    
    When Alabama insurance auditors sought to audit other
    
    companies controlled by the Eichers, Green, upon being
    
    informed by Naaman Eicher that one particular Eicher
    
    company, United Southern Underwriters, could not withstand
    
    auditing, prevented the auditing of that company.7    When
    
    
         7
               Green, overcoming the resistance of the Alabama
    auditors, succeeded in appointing Owen Guidry to control the
    Alabama audit of the Eicher companies. In regards to the
    audit of United Southern Underwriters, testimony revealed
    Green allayed Naaman Eicher's fears by stating "Don't worry,
    
                                  5
    Alabama eventually announced it would issue its own report
    
    of the examination as opposed to a joint report with
    
    Louisiana.   The differences between the two reports was
    
    staggering, Louisiana reporting Champion to be solvent by
    
    $15 million and Alabama reporting it insolvent by $25
    
    million.
    
         Green personally licensed the Capital Insurance Company
    
    (Capital), a Communion company owned by the Eichers.    The
    
    licensing permitted Capital to write multiple lines of
    
    insurance in Louisiana despite the fact that Capital could
    
    not sell insurance where it was originally licensed and thus
    
    failed to fulfill the requirements of Louisiana law.    The
    
    $15 million solvency of Champion shown by the Louisiana
    
    report was due in part to a reinsurance contract Champion
    
    had with Capital.   Under this contract, Capital supposedly
    
    accepted retroactive responsibility for certain claims
    
    against Champion.   Testimony revealed, however, that if
    
    actually effectuated, this contract would require Capital to
    
    pay out $1.21 for every dollar of premium it received.
    
    Appellant was aware of the Eichers' plan to permit Champion
    
    to fail and to begin to write insurance in Louisiana through
    
    Capital.
    
                               The Law
    
         In his first point of error, Green contends the
    
    
    
    I'll talk to Guidry. Quit getting so upset, so worked up."
    As indicated, United Southern Underwriters was not audited.
    
    
                                  6
    evidence was insufficient to permit the jury to convict him.
    
    In a challenge to the sufficiency of the evidence, this
    
    court must view the evidence, and all reasonable inferences
    
    to be drawn therefrom, in the light most favorable to the
    
    verdict.   United States v. Triplet, 922 F.d 1174, 1177 (5th
    
    Cir.), cert. denied, 
    111 S. Ct. 2245
     (1991).   The question on
    
    appeal is whether a rational jury could have found the
    
    defendant guilty beyond a reasonable doubt and not every
    
    reasonable hypothesis of innocence need be excluded. Id.
    
    All credibility choices should be made in favor of the
    
    verdict. United States v. Montemayor, 
    703 F.2d 109
    , 115 (5th
    
    Cir.), cert. denied, 
    464 U.S. 822
     (1983).
    
    1.   Mail Fraud
    
          Green's argument regarding his conviction on the mail
    
    fraud counts is two-fold.   First, he contends that because
    
    the lulling letters, sent to induce complaining Champion
    
    claimants into inaction, were sent by staff at the
    
    Department of Insurance and not by Green himself, there can
    
    be no reasonable conclusion other than Green did not have
    
    the specific intent to defraud required for conviction.
    
    Related to this, he points to evidence that the letters were
    
    sent as a matter of course and had similarly been sent by
    
    the previous Insurance Commissioner's administration.
    
    Secondly, Green contends the letters tended to expose the
    
    fraudulent scheme to keep Champion in business despite its
    
    troubled times and that thus the letters cannot, as a matter
    
    of law, constitute mail fraud.
    
                                  7
          To prove a case of mail fraud, the government must show
    
    that Green engaged in a scheme to defraud and used the mails
    
    to further this scheme. United States v. Church, 
    888 F.2d 20
    , 23 (5th Cir. 1989).   A defendant need not actually be
    
    involved in the mailings directly; it is sufficient to show
    
    that "an individual does an act with the knowledge that the
    
    use of the mails will follow in the ordinary course of
    
    business. United States v. Shaid, 
    730 F.2d 225
    , 229 (5th
    
    Cir.), cert. denied, 
    469 U.S. 844
     (1984).    Nothing more is
    
    needed to show the defendant "caused" the mails to be used.
    
    Id.   The evidence clearly established that Green knew the
    
    lulling letters would be sent out by his office.    Thus,
    
    Green's argument that others did the actual mailing of the
    
    lulling letters and that he therefore does not have the
    
    requisite intent is without merit.
    
          As to the evidence that the same types of letters had
    
    been sent by the previous administration, the Supreme Court
    
    has held that even routine letters, innocent in themselves,
    
    may form the basis of a mail fraud conviction. Schmuck v.
    
    United States, 
    109 S. Ct. 1443
    , 1448-49 (1989).     The Court in
    
    Schmuck specifically rejected an argument virtually
    
    identical to the one put forth by Green.    We need look no
    
    further in rejecting this aspect of Green's appeal.
    
          As to the argument that the letters tended to expose
    
    Green's wrongdoing and thus cannot form the basis of mail
    
    fraud, Schmuck is again directly on point.    As the Court
    
    observed:
    
                                  8
          We also reject Schmuck's contention that mailings that
          someday may contribute to the uncovering of a
          fraudulent scheme cannot supply the mailing element of
          the mail fraud offense. The relevant question at all
          times is whether the mailing is part of the execution
          of the scheme as conceived by the perpetrator at the
          time, regardless of whether the mailing later, through
          hindsight, may prove to have been counterproductive and
          return to haunt the perpetrator of the fraud.
    
    Schmuck, 109 S.Ct. at 1449-50.
    
          There was testimony at trial that Green   1)participated
    
    in the scheme, 2) knew of its existence, 3) knew of the
    
    troubles Champion was experiencing and, 4) knew that his
    
    actions would lead to the mailing of the "routine" lulling
    
    letters.   Viewing the evidence in the light most favorable
    
    to the prosecution, a rational jury could have found Green
    
    engaged in an illegal scheme and used the mails to further
    
    that scheme.
    
    2.   Money Laundering
    
          The indictment upon which Green went to trial charged
    
    him with violation of 18 U.S.C. §1956(a)(1)(B)(i).    This
    
    section reads in relevant part:
    
    
          (a)(1) Whoever, knowing that the property involved in
          a financial transaction represents the proceeds of some
          form of unlawful activity, conducts or attempts to
          conduct such a financial transaction which in fact
          involves the proceeds of specified unlawful activity-
    
               (B) knowing that the transaction is involved in
          whole or in part-
    
                    (i) to conceal or disguise the nature, the
          location, the source, the ownership, or the control of
          the proceeds of specified unlawful activity...
          The proceeds involved in Green's case are allegedly
    
    
                                  9
    proceeds of an illegal campaign bribery scheme.    Louisiana
    
    law provides:
    
    
              Bribery of a candidate is the giving, promising or
         offering to give, directly or indirectly, a campaign
         contribution to a candidate, political committee, or
         other person, or the accepting, soliciting, offering to
         accept, directly or indirectly, a campaign
         contribution, by a candidate, political committee or
         other person with the intention that the candidate will
         provide or influence another to provide the contributor
         or another person...anything of apparent present or
         prospective value.
    
    La.Rev.Stat.Ann. §1469(A) (West Supp. 1992).    Loans are
    
    specifically excluded from the definition of "contribution"
    
    in the Louisiana Election Code. Id. at §1483(6)(c)(iv).
    
         Green contends the fact that the $150,000 "loaned" by
    
    Hall, Mey and MLC came in the form of a loan excludes the
    
    transactions involved from the Louisiana campaign bribery
    
    statute.   Because no bribery occurred as a matter of law,
    
    there could have been no unlawful proceeds necessary for the
    
    money laundering counts.
    
         In State v. Brand, 
    520 So. 2d 114
     (La. 1988), the
    
    defendant turned over confidential public records in a sting
    
    operation and she was charged with violating Louisiana's
    
    public bribery statute. 520 So.2d at 114-15.    The defendant
    
    alleged that the $100 she received for the records was a
    
    loan.   Id. at 116.   In rejecting the defendant's defense of
    
    a "loan", the Louisiana Supreme Court noted that the jury
    
    was free to disregard the defendant's version of the events
    
    based upon evidence of, inter alia, a damning recording of
    
    the defendant at the time of the delivery of the money and
    
                                   10
    the fact that no indication of repayment existed between the
    
    time of the loan and the defendant's arrest. Id.
    
         If Brand reasonably stands for any proposition, it is
    
    that when the making of a loan is asserted as a defense to
    
    bribery, the defense can be shown to be false.   There is
    
    ample evidence upon which the jury could have concluded, as
    
    it apparently did, that the "loans" involved in this case
    
    were sham loans intended to be bribes.
    
         The testimony of Naaman Eicher revealed that, long
    
    before any loans were contemplated, Eicher had indicated he
    
    would do "whatever it took to fund [Green's] campaign."     The
    
    Eichers were the principals of United, the financial
    
    institution making the loans to the intermediaries.
    
    Moreover, there was testimony that the loans from United
    
    would not have to be paid back unless the campaign paid back
    
    the contributors first.   Indeed, Green himself testified
    
    that despite the fact that money had been gained by the
    
    campaign subsequent to the loans, no attempt was ever made
    
    to repay the loans.   Plainly, the jury could reasonably have
    
    determined that the loans were sham loans and thus that the
    
    campaign bribery statute had been violated.   Thus violated,
    
    the jury could have determined the proceeds were illegal and
    
    that the making of the loans through the intermediaries,
    
    third parties, was done knowing that the transaction was
    
    designed in whole or in part to conceal the source,
    
    ownership, or control of the proceeds.   Green's argument
    
    regarding his conviction for money laundering is without
    
                                  11
    merit.
    
         Green's contention that the transfer of the proceeds by
    
    the Eichers through United to the intermediaries somehow
    
    caused the proceeds to loose their illegal character.     He
    
    cites to the case of United States v. Dove, 
    629 F.2d 325
    
    (4th Cir. 1980) for the proposition that the transfer of
    
    illegal money to an innocent person renders the funds legal.
    
    Dove involved the transfer of a stolen automobile to
    
    undercover police agents. Id. at 326.    The defendants took
    
    possession from the agents and were charged with
    
    transportation of stolen goods in interstate commerce. Id.
    
    The court reversed on the ground that the agents held the
    
    automobile for the true owner. Id. at 329.    The principle in
    
    Dove, that stolen goods recaptured by the police loose their
    
    status as stolen, is inapplicable to the present facts.
    
    There simply are no law enforcement agents involved in the
    
    transactions through which the Eichers channelled money to
    
    Green in order to buy his influence.    Moreover, our
    
    reasoning regarding the ability of the jury to consider the
    
    entire transactions as sham loans casts doubt on whether the
    
    proceeds were, in fact, ever validly "transferred" into the
    
    possession of the intermediaries.   The more applicable
    
    principle of law is that cited by the government, namely
    
    that one who has the requisite mental state to defraud but
    
    who uses another to commit his acts is nevertheless guilty
    
    of the offense. See 18 U.S.C.A. §2 (West 1969) (statutory
    
    basis of law of principals).   Green's contentions as to this
    
                                   12
    point must be rejected.
    
          Green finally contends there is insufficient evidence
    
    he "conducted" the transactions as alleged in the
    
    indictment.   As the government points out, Green was tried
    
    as a direct principal and also under a theory that he aided
    
    and abetted the money laundering scheme.    Green participated
    
    in negotiations of the financing of the his campaign.
    
    Moreover, there was testimony from one of the
    
    intermediaries, Hall, that Green personally dealt with him
    
    when Hall made the transactions involved.    A reasonable jury
    
    could have found beyond a reasonable doubt that Green
    
    conducted the transactions involved.
    
    3.   Conspiracy to Commit Mail Fraud
    
          Count 40 of the indictment charged Green with
    
    conspiracy to commit mail fraud.   Green, in his brief on
    
    appeal, refers to his conspiracy conviction in one sentence
    
    and fails to provide any analysis whatsoever on the issue.
    
    Failure to prosecute an issue on appeal constitutes waiver
    
    of the issue. United States v. Fagan, 
    821 F.2d 1002
    , 1015
    
    n.9 (5th Cir. 1987), cert. denied, 
    484 U.S. 1005
     (1988);
    
    United States v. Johnson, 
    718 F.2d 1317
    , 1325 n.23 (5th Cir.
    
    1983) (en banc).   Green has waived any error as to his
    
    conviction for conspiracy.   Even were we to conclude Green
    
    had properly raised the issue, our analysis of the
    
    sufficiency of the evidence as to Green's participation in
    
    the object offense requires affirmance.    As indicated,
    
    evidence demonstrated Green's agreement with the Eichers to
    
                                  13
    assist them with their efforts to gain control of the
    
    Louisiana insurance industry.    Moreover, even were Green not
    
    a direct participant in the object offense, we would affirm
    
    because there is sufficient evidence to find him a
    
    coconspirator. See Pinkerton v. United States, 
    328 U.S. 640
    ,
    
    647-48 (1946).   Greens contention, if it can be deemed such,
    
    that the evidence is insufficient to find him guilty of
    
    conspiracy, is totally unavailing.
    
    4.   Denial of Motions for Acquittal and New Trial
    
          As with Green's conviction for conspiracy, he has
    
    failed to brief the issue of the district court's refusal to
    
    grant his motions to acquit and for new trial.    He has thus
    
    waived these matters for appellate review. See Fagan, supra;
    
    Johnson, supra; see also, United States v. Lindell, 
    881 F.2d 1313
    , 1325 (5th Cir. 1989), cert. denied, 
    110 S. Ct. 2621
    
    (1990) (citing F.R.App.P. 28(a)(4)).    Even assuming,
    
    arguendo, he had briefed these issues, our analysis of the
    
    sufficiency of the evidence sustaining the jury's verdict as
    
    to his convictions would preclude us from ruling in his
    
    favor on these matters. See United States v. Gorel, 
    622 F.2d 100
    , 106 (5th Cir. 1979), cert. denied, 
    445 U.S. 943
     (1980)
    
    (court reviewing denial of motion for new trial views
    
    evidence in light most favorable to verdict and verdict
    
    entitled to all reasonable inferences drawn therefrom);
    
    United States v. Varkonyi, 
    611 F.2d 84
    , 85 (5th Cir.), cert.
    
    denied, 
    446 U.S. 945
     (1980) (district court must determine,
    
    in ruling on motion for judgment of acquittal, whether
    
                                    14
    evidence is sufficient to find defendant guilty beyond
    
    reasonable doubt).
    
    5.   Sufficiency of Indictment
    
          Green alleges the district court erred by admitting
    
    evidence that certain financial institutions were involved
    
    in interstate commerce.   His argument is essentially that
    
    the indictment was jurisdictionally deficient because it
    
    failed to allege that the financial transactions upon which
    
    the money laundering counts were based affected interstate
    
    commerce.   18 U.S.C. §1956(c)(4) requires that the
    
    government show that the financial transaction upon which
    
    the money laundering count is based involved a financial
    
    institution engaged in interstate commerce.      Green objected
    
    to the admission of testimony by two government witnesses to
    
    the effect that the two banks named in the indictment were
    
    involved in interstate commerce.      He now contends the
    
    testimony constituted a material variance from the
    
    allegations contained in the indictment.
    
          In a superseding indictment, the grand jury charged:
    
    
    
               C. On or about the dates listed below, in the
          Eastern District of Louisiana, DOUG GREEN, with the
          intent to promote the carrying on of the bribery of a
          candidate in violation of LSA-RS 18:1469, did conduct
          and attempt to conduct financial transactions, that is
          the receipt of funds from checks of intermediaries
          drawn on accounts at banks located in the Eastern
          District of Louisiana, knowing the funds he was to
          receive were the proceeds of an act of bribery of a
          candidate and that the transactions were designed to
          conceal that the source of the proceeds of these
          bribery funds were the Eichers and their companies:
    
    
                                     15
         COUNT    DATE     AMOUNT         CHECK #
    
         37      8/24/87   $100,000       No. 346
                                          Hibernia National Bank
                                          Jefferson Parish
    
         38      10/6/87   $25,000        No. 1425
                                          South Louisiana Bank
    
         39      10/7/87   $25,000        No. 1730
                                          South Louisiana Bank
                                          Houma, La.
    
         All in violation of Title 18, United States Code,
         Sections 1956 and 2.
    
         "An indictment must allege every element of the crime
    
    charged." United States v. Merritt, 
    882 F.2d 916
    , 918 (5th
    
    Cir. 1989), cert. denied, 
    110 S. Ct. 2592
     (1990).    "An
    
    indictment is sufficient if (1) it contains the elements of
    
    the offense charged, (2) it `fairly informs' the defendant
    
    of the charge he must meet, and (3) there is no risk of
    
    future prosecutions for the same offense." United States v.
    
    Arlen, 
    947 F.2d 139
    , 144 (5th Cir. 1991) (citing United
    
    States v. Gordon, 
    780 F.2d 1165
    , 1169 (5th Cir. 1986)).8     A
    
    conviction "will not be reversed for minor deficiencies that
    
    do not prejudice the accused." Merritt, 882 F.2d at 918.
    
    Thus, the validity of an indictment will be determined by
    
    reference to practical, not technical, considerations.
    
    United States v. Mouton, 
    657 F.2d 736
    , 739 (5th Cir. Unit A
    
    Sept. 1981) (citing Varkonyi, 645 F.2d at 456).    This
    
    
    
         8
               Here, as in Arlen, the appellant does not claim
    he is subject to double jeopardy and thus only the first two
    prongs are relevant. See Arlen, 947 F.2d at 144.
    
    
                                     16
    court's standard of review as to the sufficiency of the
    
    indictment is de novo. United States v. Shelton, 
    937 F.2d 140
    , 142 (5th Cir.), cert. denied, 
    112 S. Ct. 607
     (1991).
    
         Green relies on Stirone v. United States, 
    361 U.S. 212
    
    (1960).   Stirone involved an indictment alleging
    
    interference with interstate commerce by obstruction of
    
    transportation of sand to a steel mill. 361 U.S. at 213-14.
    
    At trial, the prosecutor sought to prove the defendant had
    
    also attempted to obstruct the exportation of steel from the
    
    mill. Id. at 214.   Justice Black, writing for a unanimous
    
    court, reasoned:
    
    
    
              Ever since Ex parte Bain, 
    121 U.S. 1
    , was decided
         in 1887 it has been the rule that after an indictment
         has been returned, its charges may not be broadened
         through amendment except by the grand jury itself....
                                 ...
         The Bain case, which has never been disproved, stands
         for the rule that a court cannot permit a defendant to
         be tried on charges that are not made in the indictment
         against him. [citations omitted]. Yet the court did
         that in this case....
                                 ...
         Here, as in the Bain case, we cannot know whether the
         grand jury would have included in its indictment a
         charge that commerce in steel from a nonexistent steel
         mill had been interfered with. Yet because of the
         court's admission of evidence and under its charge this
         might have been the basis upon which the trial jury
         convicted petitioner. If so, he was convicted on a
         charge the grand jury never made against him.
    
    
    Stirone, 361 U.S. at 215-19.
    
         Stirone is inapplicable to the facts of Green's case.
    
    As we explained in United States v. Young, 
    730 F.2d 221
    , 223
    
    (5th Cir. 1984),
    
    
                                   17
              Stirone requires that courts distinguish between
         constructive amendments of the indictment, which are
         reversible per se, and variances between indictment and
         proof, which are evaluated under the harmless error
         doctrine. The accepted test is that a constructive
         amendment of the indictment occurs when the jury is
         permitted to convict the defendant upon a factual basis
         that effectively modifies an essential element of the
         offense charged. [citations omitted]. In such cases
         reversal is automatic, because the defendant may have
         been convicted on a ground not charged in the
         indictment. See Stirone, 361 U.S. at 217, 219, 80 S.Ct.
         at 273, 274; [remaining citations omitted]. If, on the
         other hand, the variation between proof and indictment
         does not effectively modify an essential element of the
         offense charged, "the trial court's refusal to restrict
         the jury charge to the words of the indictment is
         merely another of the flaws in trial that mar its
         perfection but do not prejudice the defendant." [United
         States v.] Ylda, 653 F.2d [912,][]914 [(5th Cir.
         1981)](footnote omitted).
                                .....
              Unlike [Stirone and other cases omitted herein],
         the case before us involves a single set of facts. Mr.
         Young was not indicted for receiving one particular
         firearm and then convicted for receiving another. The
         factual basis for the indictment is identical to that
         for the conviction. Hence it is not possible that the
         defendant has been convicted for an offense not charged
         in the indictment. Stirone and Salinas II9 are not
         applicable.
    
    
    
    Young, 730 F.2d at 223-24.   Here, as in Young, Green's
    
    conviction is based upon the same set of money laundering
    
    facts as those alleged in the indictment; he has not been
    
    convicted of a different offense nor could the introduction
    
    of the testimony regarding interstate commerce have created
    
    
    
         9
               United States v. Salinas, 
    654 F.2d 319
     (5th Cir.
    Unit A Aug. 1981), affirmed in part, reversed in part sub
    nom, United States v. Adamson, 
    700 F.2d 953
     (Former 5th Cir.
    Unit B), cert. denied, 
    464 U.S. 833
     (1983).
    
    
                                  18
    a new offense.   Thus, Stirone is inapplicable.
    
         Green's challenge is more akin to an allegation that
    
    the indictment fails to state an offense because an
    
    essential element thereof has not been alleged. See Mouton,
    
    657 F.2d at 739 (indictment sufficient if it contains
    
    essential elements of offense).      His position is that an
    
    allegation of an affect upon interstate commerce is
    
    jurisdictional and, as such, is an essential element of the
    
    offense of money laundering.    If an allegation of interstate
    
    commerce is jurisdictional, then it is essential. See Young,
    
    730 F.2d at 224 ("The particular predicate for jurisdiction
    
    is an essential element of any offense.") (citing McRary,
    
    665 F.2d at 678-79).
    
         18 U.S.C.A. § 1956(a)(1) requires that a defendant
    
    participate or attempt to participate in a financial
    
    transaction; this is clearly an essential element of the
    
    offense.   Subsection (c)(4) provides the definition of the
    
    term "financial transaction":
    
    
              (4) the term "financial transaction" means (A) a
         transaction (i) involving the movement of funds by wire
         or other means or (ii) involving one or more monetary
         instruments, which in any way or degree affects
         interstate or foreign commerce, or (B) a transaction
         involving the use of a financial institution which is
         engaged in, or the activities of which affect,
         interstate or foreign commerce in any way or degree;
    
    
         The Eighth Circuit has addressed a situation similar to
    
    that we face here.   In United States v. Lucas, 
    932 F.2d 1210
    
    (8th Cir.), cert. denied, 
    112 S. Ct. 199
    , 349, 399, 609
    
    
                                    19
    (1991) the defendants were charged with, inter alia,
    
    violating the federal money laundering statute. 932 F.2d at
    
    1213.   Following conviction, the defendants appealed,
    
    arguing the money laundering counts failed to state an
    
    offense because they failed to allege any nexus between the
    
    defendants' conduct and interstate commerce. Id. at 1218.
    
    The panel observed the defendants had not made their
    
    challenge to the indictment until after the close of the
    
    government's case-in-chief.   Although it noted that
    
    defendants are permitted to raise arguments as to the
    
    validity of an indictment at any time, Id. (citing United
    
    States v. Clark, 
    646 F.2d 1259
    , 1262 (8th Cir. 1981)), the
    
    court quoted Ninth Circuit precedent for the proposition
    
    that indictments are liberally construed in favor of
    
    validity where they are tardily challenged. Id. (quoting
    
    United States v. Pheaster, 
    544 F.2d 353
    , 361 (9th Cir.
    
    1976), cert. denied, 
    429 U.S. 1099
     (1977)).
    
         Applying its standards of review, the Eighth Circuit
    
    observed:
    
    
    
              We find that counts XVII, XIX, and XXI, reasonably
         construed, do allege a nexus with interstate commerce.
         We therefore do not reach the question of whether an
         allegation of a "nexus with interstate commerce" is an
         essential element in a charge under 18 U.S.C. § 1956
         for laundering money. All three counts refer to
         specific acts of money laundering that gave rise to the
         charges in each of those counts. Counts XIX and XXI
         refer to conduct that is related expressly to the
         construction of a shopping mall....Likewise, count XVII
         refers to the purchase of real estate...and although it
         does not expressly state that it is to be used in the
         construction of the mall, the inference that it is to
    
                                  20
          be put to such a use is, in the circumstances of this
          case, quite reasonable.
    
               Furthermore, although counts XVII, XIX, and XXI do
          not expressly mention the words "interstate commerce,"
          it seems apparent that an effect upon interstate
          commence is an inevitable incident of the construction
          of a shopping mall. Consequently, we believe that
          allegations that reasonably implicate the construction
          of such an establishment are sufficient to constitute
          allegations of an effect upon interstate commerce.
    
    
    Lucas, 932 F.2d at 1219.
    
          Based upon the standards of review of the sufficiency
    
    of an indictment discussed above, see supra at p.16-17, we
    
    find Greens' case indistinguishable from that in Lucas.     We
    
    therefore conclude that we need not reach the question of
    
    whether an allegation of an affect upon interstate commerce
    
    is jurisdictional and, thus, an essential element of the
    
    offense.   Green's indictment plainly alleges that banks were
    
    involved in the transactions at issue.    It further
    
    delineates the specific banks involved.    At oral argument,
    
    Green's counsel admitted he had never heard of a bank that
    
    did not affect interstate commerce in some way; nor have we.
    
    We hold, as in Lucas, that the allegations of the
    
    involvement of banks contained in this indictment are
    
    sufficient to reasonably appraise Green of an affect upon
    
    interstate commerce.   Green's contentions are meritless.
    
    6.   Obstruction of Justice
    
          At sentencing, the district court imposed a two point
    
    enhancement for obstruction of justice as to the conspiracy
    
    to commit mail fraud and mail fraud convictions.    The court
    
    
                                  21
    stated its actions were premised on the evidence of Green's
    
    interference with the Alabama investigation of the Eicher
    
    companies.   The court included a well written statement of
    
    reasons and supplemental statement of reasons for its
    
    actions.   It reasoned Green's crimes had done significant
    
    damage to the electoral process and irreparably damaged many
    
    families and individuals who would never be able to be
    
    compensated for personal and property losses.
    
         Green alleges the court erred by accepting paragraph 53
    
    of the presentence report, obstruction of justice, and
    
    paragraph 54 of the presentence report, failure to produce
    
    documents.   As to paragraph 54, the district court agreed
    
    with Green's objections thereto and plainly stated it would
    
    not consider the allegations contained therein.    Thus,
    
    Green's complaint to this paragraph has no merit.      As to
    
    paragraph 53, Green argues the conduct alleged to have been
    
    the basis for the obstruction of justice is part of the
    
    object offense.    He suggests an enhancement for obstruction
    
    of justice may be based only upon acts obstructing the
    
    investigation of the object offense, not upon acts forming
    
    the basis of the object offense itself.    He points to the
    
    fact that the behavior alleged to form the basis of the
    
    enhancement was behavior disputed at trial and upon which he
    
    was convicted.    The district court, in its supplemental
    
    statement, concluded that Green had indeed obstructed
    
    justice and referred to the proof of this obstruction
    
    adduced at trial.    The district court did not err.
    
                                   22
          Section 3C1.1 of the Sentencing Guidelines provides
    
    that "[i]f the defendant willfully impeded or obstructed, or
    
    attempted to impede or obstruct the administration of
    
    justice during the investigation or prosecution of the
    
    instant offense, increase the offense level...." (emphasis
    
    added).    In United States v. Cain, 
    881 F.2d 980
    , 982 (11th
    
    Cir. 1989), the appellant argued obstruction of justice
    
    applied only to post-offense conduct.    The Eleventh Circuit
    
    rejected the contention, citing Fifth Circuit precedent. 881
    
    F.2d at 982 (citing United States v. Galvan-Garcia, 
    872 F.2d 638
    , 641 (5th Cir.), cert. denied, 
    493 U.S. 857
     (1989).      In
    
    Galvan-Garcia, this court upheld an enhancement for
    
    obstruction of justice based of the defendant's attempted
    
    concealment of marijuana by throwing bags of the contraband
    
    out of his automobile while being chased by the police.
    
    Here, Green does not challenge the district court's factual
    
    finding that the obstruction occurred.    Because this was
    
    obstruction of an investigation which would have led to the
    
    prosecution of Green for the offense of mail fraud, the
    
    district court did not err.
    
    7.   Reasonableness of Sentence
    
          There has never been any dispute that the offense of
    
    money laundering as charged in Green's indictment occurred
    
    pre-guidelines.10   Green argues the district court's
    
    
          10
               The effective date of the Sentencing Guidelines
    was November 1, 1987. United States v. Garcia, 
    903 F.2d 1022
    , 1025 (5th Cir.), cert. denied, 
    111 S. Ct. 364
     (1990).
    
                                   23
    sentence of twenty years on each of three counts is "plainly
    
    unreasonable".    He cites to no authority whatsoever to
    
    support his assertion that a sentence of twenty years for
    
    the offenses charged is "plainly unreasonable".
    
         A district court has great discretion in imposing a
    
    sentence for pre-guideline offenses. United States v. Helms,
    
    
    897 F.2d 1293
    , 1299 (5th Cir.), cert. denied, 
    111 S. Ct. 257
    
    (1990) (citing United States v. Nichols, 
    695 F.2d 86
     (5th
    
    Cir. 1982)).    There is simply no basis for us to conclude
    
    the sentence imposed here constitutes an abuse of that
    
    discretion.    We note the sentences were ordered to run
    
    concurrently, not consecutively, and thus the district court
    
    actually gave Green only one third of the time he could have
    
    received. See United States v. Garcia, 
    903 F.2d 1022
    , 1025
    
    (5th Cir.), cert. denied, 
    111 S. Ct. 364
     (1990) ("[T]he
    
    sentencing court has unfettered discretion to impose
    
    sentences on pre-guideline counts consecutively or
    
    concurrently.") (quoting United States v. Watford, 
    894 F.2d 665
    , 669 (4th Cir. 1990) (opinion by Judge Wilkins,
    
    Chairman, United States Sentencing Commission)).    Moreover,
    
    we reiterate the findings of the district court that Green's
    
    crimes were particularly egregious, injuring countless
    
    persons by depriving them of their rightful compensation for
    
    personal injury and property loss.    Finally, we note that
    
    the sentence of twenty years is not greater than the
    
    
    
    
                                   24
    statutory maximum for the offense of money laundering.    18
    
    U.S.C.A. §1956(a)(1).   The sentence imposed is not "plainly
    
    unreasonable" and we reject any suggestions to the contrary.
    
    
    
                              CONCLUSION
    
         We have examined all of Green's remaining issues and
    
    conclude they are so lacking in merit as to not warrant
    
    discussion.   Because we find no error in the trial below,
    
    Green's convictions and sentences are in all respects
    
    AFFIRMED.
    
    
    
    
                                  25