United States v. Faulkner ( 1994 )


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  •               IN THE UNITED STATES COURT OF APPEALS
    
                          FOR THE FIFTH CIRCUIT
    
                          _____________________
    
                               No. 92-8037
                          _____________________
    
    
         UNITED STATES OF AMERICA,
    
                                        Plaintiff-Appellee,
    
                                   versus
    
         DAVID LAMAR FAULKNER, SPENCER H. BLAIN, JR.,
         JAMES L. TOLER and ARTHUR FORMANN,
    
                                        Defendants-Appellants.
    
         _______________________________________________________
    
            Appeals from the United States District Court for
                      the Western District of Texas
         _______________________________________________________
    
                              (March 18, 1994)
    
    Before REAVLEY and DAVIS, Circuit Judges and TRIMBLE*, District
    Judge.
    
    REAVLEY, Circuit Judge:
    
         Appellants David Faulkner, James Toler, Spencer Blain, Jr.,
    
    and Arthur Formann appeal their convictions on various counts
    
    arising out of the collapse of several savings and loan
    
    institutions, the funds of which were exhausted in the
    
    development of condominium projects along what is commonly known
    
    as the I-30 corridor in the Dallas area.     We reverse a few of the
    
    wire fraud convictions but otherwise affirm the district court.
    
         *
            District Judge of the Western District of Louisiana,
    sitting by designation.
                      FACTUAL AND PROCEDURAL BACKGROUND
    
    A.   Factual Background
    
         All of the appellants, directly or by adoption of each
    
    other's arguments, challenge the sufficiency of the evidence to
    
    support their convictions.   "In deciding the sufficiency of the
    
    evidence, we determine whether, viewing the evidence and the
    
    inferences that may be drawn from it in the light most favorable
    
    to the verdict, a rational jury could have found the essential
    
    elements of the offenses beyond a reasonable doubt."    United
    
    States v. Pruneda-Gonzalez, 
    953 F.2d 190
    , 193 (5th Cir.), cert.
    
    denied, 
    112 S. Ct. 2952
     (1992).   Viewing the evidence in a light
    
    most favorable to the government, appellants engaged in a scheme
    
    during 1982 and 1983 to enrich themselves and others by well over
    
    $100 million through the device of fraudulent real estate loans
    
    from savings and loan institutions.   The scheme involved and
    
    indeed required the efforts of numerous participants who served
    
    separate roles.   Real estate developers would purchase land for
    
    condominium development.   The properties would then undergo one
    
    or more "land flips" at inflated prices.   "Syndicators" would
    
    locate investors to purchase subdivided tracts at the end of the
    
    land flip transactions.    The initial and intermediate purchasers
    
    would receive huge sums of money in the form of profits from land
    
    sales, "commissions" or other fees.   Appraisers would submit
    
    false appraisals to support the prices and loans for the
    
    properties.   Lenders who controlled savings and loan institutions
    
    would provide loans for the sales and resales of the properties.
    
    
                                      2
    In the scheme Faulkner and Toler served as real estate
    
    developers, Blain as one of the inside loan officers, and Formann
    
    as one of the appraisers.
    
         In the late 1970's Faulkner, a real estate developer,
    
    purchased a tract of land off Interstate 30 near Dallas.       He
    
    built condominiums in several phases on the property, which he
    
    called Faulkner Point.   In the early 1980's Faulkner, Toler,
    
    Blain, Formann and others became involved in the purchase and
    
    sale of numerous other properties in this area, known as the I-30
    
    corridor.   Faulkner and Toler, another real estate developer,
    
    became partners on deals in the I-30 corridor.       They would buy
    
    large pieces of land outright or on option, which were ultimately
    
    sold to "investors," "builder-investors" or "builder-developers"
    
    at inflated prices in a series of land flips in which the
    
    property changed hands several times, often on the same day.
    
         Faulkner and Toler would subdivide the tracts they purchased
    
    and sell them at a large profit.       The properties were sometimes
    
    sold to intermediate buyers, who would in turn sell the
    
    properties to the investors at even higher prices.       Toler and
    
    Faulkner would sometimes locate buyers for their properties and
    
    arrange financing for the buyers with lenders.
    
         Clifton Sinclair, who was indicted in another proceeding and
    
    pleaded guilty to certain counts related to the I-30 debacle, was
    
    a key witness for the government.       He served a number of roles.
    
    He served as a "syndicator" of sorts, by locating investors and
    
    offering a package deal to them.       He would find a group of
    
    
                                       3
    investors, prepare loan packages for them which he would submit
    
    to lenders, and otherwise offer them an essentially passive
    
    investment, by offering to arrange or oversee the financing,
    
    construction and marketing of condominiums to be built on the
    
    various properties.   He or one of his companies was sometimes an
    
    intermediate seller in the land flips.   Other intermediate
    
    purchasers included appraiser Paul Tannehill, Blain, and the
    
    principal condominium builder in the area, Wailen York.   Sinclair
    
    earned millions of dollars from commissions he received at
    
    closings and profits as an intermediate seller of properties.
    
    Sinclair testified that Faulkner and Toler arranged for financing
    
    of the sale of the properties they owned, and had control over
    
    the price that they would receive and the commissions and other
    
    payments that would be distributed at closing.   Commissions
    
    regularly went to Brenda Kennedy, a close friend of Faulkner,
    
    despite a lack of any apparent effort on her part.   Faulkner
    
    similarly directed commissions to Kenneth Cansler.   Faulkner and
    
    Toler would dictate the price they were to receive, and
    
    appraisals, loan amounts, and closing costs such as commissions
    
    were adjusted or "worked in reverse" to support this price.
    
    Sinclair did business through a number of companies he
    
    controlled, including Kitco Management Company (Kitco).   Ernie
    
    Hughes played a syndicator role in the scheme similar to that of
    
    Sinclair's.   He would locate investors for properties owned by
    
    Faulkner or Toler earlier in the chain of title.   He too pleaded
    
    
    
    
                                     4
    guilty to certain offenses in an earlier proceeding and testified
    
    for the government.
    
         The money for all of these promotions and investments was
    
    always forthcoming from appellant Blain or some other lender
    
    designated by Faulkner.    Sinclair testified that he tried to do
    
    deals without Faulkner and Toler, but was unable to obtain
    
    financing.    Blain and other savings and loan officers financed
    
    both the land and construction loans required for these land
    
    flips.    Blain became chairman and chief executive officer of
    
    Empire Savings and Loan (Empire) in early 1982.    He individually
    
    approved all of Empire's loans for these transactions.    He
    
    purchased a majority of Empire's stock with the help of a loan
    
    from Faulkner and Toler.    Blain had a 25 percent profits interest
    
    in Statewide Service Corporation, a subsidiary of Empire.      On
    
    several occasions Statewide was an intermediate seller in a land
    
    flip.    Blain paid off his loan to Faulkner and Toler with the
    
    proceeds of a loan that was also used to purchase property from
    
    Toler known as Chalet Ridge.1   Toler assisted Blain in obtaining
    
    the loan to purchase Chalet Ridge.    Blain purchased Chalet Ridge
    
    in August and September of 1982 for $686,000.    In February of
    
    1983, Blain sold Chalet Ridge to Sinclair for $14.9 million.2
    
    
         1
              Blain purchased Chalet Ridge in separate sales of three
    tracts. One tract went from LATO (a Toler company) to Statewide
    to Blain; a second from KETO (another Toler company) to Kitco to
    Toler to a Faulkner/Toler joint venture to Blain; the third tract
    was transferred via a contract assignment from Toler to Blain.
         2
              The exact amount Blain received is unclear.    Sinclair
    testified that the figure was actually $16.1 million
    
                                      5
    Blain also received a house in Colorado as additional
    
    consideration for Chalet Ridge.   Blain had made no improvements
    
    on the Chalet Ridge property and had attempted unsuccessfully to
    
    rezone the property.   According to Sinclair, Toler and Faulkner
    
    were involved in deciding how much to pay Blain for the property.
    
    The government contends that Chalet Ridge was Blain's big payday
    
    for providing some of the loans that fueled the land flips.     The
    
    money to pay Blain came in part from an Empire loan to Sinclair
    
    to purchase another property from Faulkner and Toler known as
    
    Kirby Mills.   Sinclair testified that the "whole purpose of Kirby
    
    Mills" was "a vehicle to generate funds for Mr. Blain."    On
    
    another land transaction Blain received from Sinclair, at
    
    Faulkner's direction, a $1.4 million "consulting fee" for no
    
    apparent effort.   Blain received other questionable payments as
    
    well.   Empire funded over $100 million in I-30 corridor land and
    
    construction loans.
    
         Paul Jensen gained control or influence over two other
    
    savings and loans, Lancaster Federal Savings and Loan Association
    
    (Lancaster) and Bell Federal Savings and Loan Association (Bell).
    
    He personally received millions of dollars in commissions and
    
    other payments for arranging loans on the I-30 properties.
    
    Sinclair purchased a $4 million mansion for Jensen.    Lancaster
    
    and Bell funded over $100 million in I-30 corridor loans.
    
         The lending institutions were able to provide funding for
    
    the I-30 loans with the help of "brokered deposits."    By offering
    
    a competitive rate on certificates of deposit, brokers would wire
    
    
                                      6
    large deposits to the institutions from depositors nationwide.
    
    From the depositors' point of view, the deposits were safe
    
    regardless of the health of the institution, since they were
    
    insured by the government.
    
         The loans which fueled the land flips did not require
    
    investors to put any money down, but instead financed 100% of the
    
    purchase price, future interest payments for some period, a
    
    "development reserve" to the lender, and "up-front" money or
    
    "kickbacks" for the investors at closing.   On many occasions
    
    Sinclair and Hughes would assist the investors in preparing
    
    fraudulent financial statements, tax returns and employment
    
    verifications that were submitted to the lenders.   The promise of
    
    up-front money, usually in the thousands or tens of thousands of
    
    dollars, was a key incentive to the investors.   On the various
    
    loans Empire made it performed no analysis of the appraisals,
    
    financial statements, or other documents which lenders typically
    
    review.   Appraisals and other underwriting materials either were
    
    not provided or were simply filed away without any serious review
    
    or study.
    
         Formann and others provided inflated appraisals to support
    
    the larger and larger loans and the escalating land prices.
    
    Appraisals are needed to justify the price of the property to the
    
    lender, regulators and buyer.   Appraisals were also used to
    
    inflate the buyers' financial statements, which would sometimes
    
    list as an asset the difference between the price paid or to be
    
    paid for a piece of property and the appraised value of the
    
    
                                     7
    property.   Larry Hutson, another appraiser of the I-30 properties
    
    who sometimes served as a "review appraiser" for Formann,
    
    testified that he would receive a value per square foot for the
    
    properties from Faulkner, Toler, Empire, Kitco or Hughes and
    
    would fabricate an appraisal to reach these values.   One method
    
    used to fabricate the appraisals was to use inflated properties
    
    on other I-30 deals as comparable sales.
    
         Faulkner, Toler and others were able to perpetuate the
    
    scheme for approximately two years by fostering the impression
    
    that there was great demand for condominiums in the I-30
    
    corridor, and that every project built was successful.   When some
    
    of the builder-developers became concerned about the viability of
    
    the projects or the huge loans they were facing, Faulkner and
    
    others made arrangements to buy them out at a profit.    Faulkner
    
    and Toler also hosted regular breakfasts at a local restaurant to
    
    promote the scheme.   As many as 200 people would attend these
    
    meetings, which were described as pep rallies. Faulkner and his
    
    sales staff gave the impression that condominium sales were
    
    brisk.   Many of the condominiums were not sold to purchasers in
    
    arms-length transactions.   For example, Faulkner purchased
    
    numerous units himself.   Other units went to Jensen, Faulkner's
    
    son, the fiancee of Faulkner's son, Wailen York, York's son,
    
    Brenda Kennedy, Ernie Hughes, Faulkner's title company closer
    
    Jane Nix and others who were not arms-length purchasers.    In
    
    reality, demand from arms-length purchasers for the condominiums
    
    
    
    
                                     8
    was low and far from justifying the land prices, loans and
    
    construction seen in the area.
    
         Blain and other savings and loan officers, including Paul
    
    Jensen and Tommy Nelson, made the whole scheme possible by
    
    agreeing to make the necessary loans.    They financed new, larger
    
    loans on projects that had not sold and loans so seriously
    
    overvalued that no project could succeed.    They charged high
    
    points and development reserves on loans that then made their
    
    institutions appear healthy.3    They participated in land
    
    transactions designed to earn them personal profits.    Loans in
    
    default or otherwise unlikely to be repaid were renewed.     Land
    
    acquisition loans were simply "taken out" by even larger
    
    construction loans.    Borrowers never came out of pocket to make
    
    interest payments.    Interest payments, if made at all, came from
    
    loans provided by the lending institutions.
    
         Federal regulators eventually shut down the savings and loan
    
    institutions, which suffered loan losses in the hundreds of
    
    millions of dollars.   Most of the properties went into
    
    foreclosure.   Faulkner, Toler, Blain, Sinclair and Jensen made
    
    tens of millions of dollars from the scheme.    In 1984 Empire was
    
    shut down by the FSLIC.   Ultimately, five savings and loans with
    
    loans connected to the I-30 corridor failed and depositors were
    
    made whole by courtesy of the American taxpayer.    According to
    
    the government, Empire alone had over $300 million in bad loans.
    
         3
              For example, Empire would "charge" twelve points for a
    loan -- a twelve percent loan origination fee of sorts, include
    the points in the overall loan, and treat the points as income.
    
                                      9
         The scheme was simple in concept, though complex in its
    
    execution. It bore certain similarities to a classic Ponzi
    
    scheme.   The two initial participants at the top of the pyramid -
    
    - Faulkner and Toler -- would buy land and earn large profits by
    
    selling to intermediate purchasers. The intermediate purchasers -
    
    - Sinclair, Blain, Statewide and other individuals and companies
    
    -- likewise profited by selling to large numbers of "investors."
    
    The investors, too, profited in the short run, by walking out of
    
    closings with up-front money, although they signed large notes or
    
    guaranties they could not repay.     The lenders supplied the money
    
    for all these loans.   Ultimately the taxpayers were
    
    unceremoniously lodged at the bottom of this pyramid, and had to
    
    pay huge sums to insured depositors when the lending institutions
    
    failed.
    
    B.   Procedural History
    
         The original 88-count indictment was brought in 1987 against
    
    the four appellants as well as Paul Jensen, Kenneth Cansler and
    
    Paul Tannehill.   Count 1 of the indictment is a broad conspiracy
    
    count against all seven defendants under 18 U.S.C. § 371.    Count
    
    88 is a RICO conspiracy count against Faulkner, Toler, Blain,
    
    Jensen and Cansler, brought under 18 U.S.C. § 1962(d).    The
    
    remaining counts are substantive offense and aiding and abetting
    
    counts brought against one or more defendants under various
    
    criminal statutes.
    
         The indictment was brought in the Dallas division of the
    
    Northern District of Texas.   The case was tried to a jury in the
    
    
                                    10
    Lubbock division of this district, and a mistrial was declared
    
    due to a hung jury.   The case was transferred back to the Dallas
    
    division after the mistrial.    The case was called to trial in
    
    June of 1991 in Judge Buchmeyer's court, but after several days
    
    of voir dire, the court dismissed the panel due to concern about
    
    the effect of pretrial publicity.     Later that month, the court
    
    granted all of the pending motions to transfer venue, which had
    
    been filed by Faulkner, Toler, Blain and Formann.     The case was
    
    transferred to Judge Bunton in the El Paso division of the
    
    Western District of Texas.    After this transfer, Judge Bunton
    
    announced sua sponte that he was transferring the case to the
    
    Midland division of the Western District.     The case proceeded to
    
    trial in September of 1991, and all four defendants were
    
    convicted on some counts.    Faulkner, Toler and Blain received
    
    twenty-year sentences, and Formann received a ten-year sentence.
    
    The court also imposed fines against Faulkner and Toler, and
    
    pursuant to 18 U.S.C. § 1963(a)(1), entered RICO forfeiture
    
    judgments against Faulkner, Toler and Blain, for $40 million, $38
    
    million, and $22 million respectively.
    
                      DISCUSSION OF POINTS OF ERROR
    
    A.   Denial of Blain's Request to Withdraw Motion to Transfer
         Venue
    
         On June 26, 1991, Judge Buchmeyer in Dallas held a pretrial
    
    conference to consider pending motions.     At the time, the four
    
    appellants all had pending motions to transfer venue on grounds
    
    of pretrial publicity.   Based on its efforts to select a jury
    
    earlier in the month, the court initially indicated that Faulkner
    
                                     11
    would be unable to receive a fair trial in Dallas.4    During a
    
    brief recess that followed, Blain instructed his counsel to
    
    withdraw his motion to transfer venue.   When the recess ended and
    
    court reconvened, the court announced that it was granting all
    
    the venue motions, and transferring the case to El Paso.    Blain's
    
    counsel immediately informed the court that he wished to withdraw
    
    Blain's venue motion.   This request was denied, as was a later
    
    written motion to reconsider the denial of the request to
    
    withdraw the venue motion.   Blain complains that the district
    
    court erred in denying his request to withdraw the venue motion.
    
         In its order denying the motion to reconsider, the court
    
    noted that it could not transfer those defendants (Tannehill and
    
    Cansler) who had not moved for a change of venue.     The order then
    
    explains that granting the motion would have (1) further
    
    fragmented the government's case against the defendants, (2)
    
    permitted Blain to avoid trial for another long period of time,
    
    and (3) perhaps led to even further delays since "Blain would
    
    certainly file a motion to have the charges against him severed
    
    from those against defendant Jensen."    The order further states
    
    that the request to withdraw the venue motion that had been on
    
    file for months "is nothing but `posturing,' designed to obtain
    
    further delay and some perceived strategical advantages in
    
    avoiding a prompt trial in the Western District of Texas."
    
    
         4
              The court stated that "I feel very strongly that I
    could get a jury here in Dallas as to every Defendant except Mr.
    Faulkner. I think the recognition factor of Mr. Faulkner is what
    caused a problem with a jury panel."
    
                                    12
    Finally, the district court noted the defendants had not made any
    
    claim that publicity concerning the case would prevent a fair
    
    trial in El Paso.
    
         Whether to vacate an order transferring venue is left to the
    
    district court's sound discretion.     United States v. Marcello,
    
    
    423 F.2d 993
    , 1005 (5th Cir.), cert. denied, 
    398 U.S. 959
     (1970).
    
    We find no abuse of discretion.    The district court correctly
    
    noted that venue could not be transferred as to those defendants
    
    who had not requested a transfer, since those defendant's had a
    
    Sixth Amendment right to be tried in the Northern District of
    
    Texas.   United States v. Stratton, 
    649 F.2d 1066
    , 1076 (5th Cir.
    
    1981).   The district court was well aware that the case was over
    
    three years old at the time and that the first trial in Lubbock
    
    had lasted for months, and it was properly concerned about
    
    further delays in the proceedings and further unnecessary
    
    fragmenting of the government's case.    At the June 1991 hearing
    
    counsel for Blain had indicated that he did not want Blain tried
    
    with Jensen, and that he preferred a transfer of venue to a trial
    
    in Dallas with Jensen.5   The court further had reason to question
    
    whether the request to withdraw the venue motion was motivated
    
    out of a genuine concern for the fairness of the venue, or was
    
    
         5
              At one point in the hearing prior to the recess counsel
    for Blain had stated: "Do we have an option to stay here and get
    tried with the good Dr. Jensen or go to El Paso and get tried
    with Danny [Faulkner]? . . . . I don't want to be tried with
    [Jensen]. He's a banker. . . . [I]f we have a choice of staying
    here without [Jensen], as opposed to going to El Paso, I would
    have to think about that one. If I have to stay here with
    [Jensen] I don't have to think very long. That's our position."
    
                                      13
    instead a mere strategic ploy.   At the hearing counsel gave, as
    
    his reason for his request to withdraw the motion, his belief
    
    that staying in Dallas would facilitate a plea bargain.6    The
    
    court was entitled to ignore such tactical reasons for
    
    withdrawing the venue motion.7
    
    B.   The Intradistrict Transfer to Midland
    
         Faulkner and Toler complain of Judge Bunton's intradistrict
    
    transfer of the case from El Paso to Midland.   The court ordered
    
    the transfer sua sponte at a pretrial conference where no court
    
    reporter was present.8   While his lawyer was not present at the
    
    hearing, Faulkner contends that he was present and objected pro
    
    se to the transfer.
    
         Under FED. R. CRIM. P. 18, the district court "shall fix the
    
    place of trial within the district with due regard to the
    
    convenience of the defendant and the witnesses and the prompt
    
    administration of justice."   We have held that in considering an
    
    intradistrict transfer, "the trial court must balance the
    
    statutory factors of the convenience of the defendant and
    
    
         6
              Counsel stated: "My thought is if the case in El Paso
    is tried win or lose the Government -- this case will not get
    tried, that they will make -- the Government will make offers
    once they're stuck with all the folks here in Dallas, that
    probably everybody is going to accept."
         7
              Compare Marcello, 423 F.2d at 1004 ("The Judge was
    entitled, indeed required, to take [Defendant's] claim [for venue
    transfer] as presented and proved. His duty was to act and
    having acted it was not for the Defendant to reweigh the
    strategic or tactical disadvantages of the victory.").
         8
              The government contends that Judge Bunton transferred
    the case to Midland to be closer to his home in Odessa.
    
                                     14
    witnesses and the prompt administration of justice."    United
    
    States v. Dickie, 
    775 F.2d 607
    , 610 (5th Cir. 1985).    Faulkner
    
    and Toler complain that the trial court failed to perform this
    
    balancing test.    Faulkner emphasizes that venue is more than a
    
    mere procedural matter, and involves issues of constitutional
    
    dimension.    He argues that Judge Buchmeyer specifically
    
    transferred the case to El Paso and rejected the suggested venue
    
    of Midland because it was "within the zone of prejudicial
    
    publicity."    The "I-30 scandal" was unquestionably the subject of
    
    enormous publicity in Dallas.9
    
         We first determine the extent to which Faulkner and Toler
    
    preserved error on this point.    While Faulkner asserts that he
    
    personally objected to the intradistrict transfer, there is
    
    nothing in the record preserving an objection to the transfer by
    
    either Faulkner or Toler.    The government does not agree that
    
    such an objection was made, and contends that this issue is
    
    raised for the first time on appeal and was not properly
    
    preserved for review. Indeed, the only indication in the record
    
    of the defendants' view of the transfer we can find is a
    
         9
              According to Toler, the exhibits to his and Faulkner's
    joint motion to transfer venue filed in Dallas included an index
    to 1100 newspaper articles concerning I-30, a 1990 survey showing
    that over 90% of Dallas residents were aware of the case and 60%
    admitted to an opinion that the defendants were probably or
    definitely guilty, a videotape of the Phil Donahue show filmed in
    Dallas during which the mention of Faulkner's name brought a
    chorus of "boos," and an Ann Richards campaign advertisement from
    the 1990 gubernatorial race in which she sought votes by linking
    her opponent to Faulkner. Toler contends, perhaps without
    exaggeration, that the "I-30 scandal" received more media
    attention in Dallas than any event since the Kennedy
    assassination.
    
                                     15
    newspaper article attached to a filing by Toler requesting close
    
    questioning of jurors regarding pretrial publicity.    The article
    
    states that Faulkner's attorney "expressed satisfaction Monday
    
    over the trial's relocation" to Midland, and quotes him as
    
    stating that "[w]e have the potential for a fair trial in Midland
    
    that we would have been denied in Dallas."    Faulkner and Toler
    
    were represented by extremely able counsel with virtually
    
    unlimited opportunities to file motions or otherwise preserve
    
    their objections to action taken by the trial judge.    Under these
    
    circumstances we hold that they did not preserve error on this
    
    point.
    
         Asserted errors as to which a proper objection has not been
    
    raised in the district court can only be reviewed for plain error
    
    under FED. R. CRIM. P. 52(b).   United States v. Iwegbu, 
    6 F.3d 272
    , 274-75 (5th Cir. 1993).    As we recently held in Iwegbu, (1)
    
    plain error should be corrected if failing to do so would
    
    "seriously affect the fairness, integrity or public reputation of
    
    judicial proceedings," (2) a claim of plain error is reviewed
    
    against the entire record, and (3) the defendant bears the burden
    
    of establishing that the error "had an unfair prejudicial impact
    
    on the jury's deliberations."    Id.
    
         We conclude that the error, if any, in transferring the case
    
    from El Paso to Midland does not rise to the level of plain
    
    error.   While we agree that venue generally is a constitutional
    
    
    
    
                                      16
    concern,10 and that "errors of constitutional magnitude will be
    
    noticed more freely under the plain error rule than less serious
    
    errors,"11 we find it equally clear that the place assigned for
    
    trial within a judicial district is not a matter of
    
    constitutional dimension.12
    
         We further do not agree that Judge Buchmeyer found Midland
    
    to be an inappropriate venue because it was within the "zone of
    
    prejudicial publicity."   The record does not reflect such a
    
    finding.   At the June 26, 1991 pretrial hearing he indicated that
    
    he had checked with Judge Bunton and another judge, and had
    
    agreed with Judge Bunton "that El Paso would be the best place
    
    for the case to be tried."    This conclusion was based on a number
    
    of considerations, including courtroom availability, travel time
    
    and pretrial publicity.   Read in the context of the entirety of
    
    its comments, the court did not make a specific finding that
    
    
         10
              Article III of the Constitution provides that criminal
    trials "shall be held in the State where the said Crimes shall
    have been committed . . . ." U.S. CONST. art. III, § 3, cl. 2.
    The Sixth Amendment further provides that criminal defendants
    have the right to trial "by an impartial jury of the State and
    district wherein the crime shall have been committed . . . ."
         11
              United States v. Brown, 
    555 F.2d 407
    , 420 (5th Cir.
    1977), cert. denied, 
    435 U.S. 904
     (1978).
         12
              United States v. Alvarado, 
    647 F.2d 537
    , 539 (5th Cir.
    1981) ("In criminal actions, the constitutional unit of venue is
    the district, not the division."); United States v. James, 
    528 F.2d 999
    , 1021 (5th Cir.) ("The venue provision of the Sixth
    Amendment provides only for trial in the district where the crime
    shall have been committed. There is no reference to a division
    within a judicial district."), cert. denied, 
    429 U.S. 959
     (1976);
    Bostick v. United States, 
    400 F.2d 449
    , 452 (5th Cir. 1968)
    ("[T]he division has no constitutional significance; the vicinage
    is the district."), cert. denied, 
    393 U.S. 1068
     (1969).
    
                                     17
    Midland would be an inappropriate venue because it was too close
    
    to Dallas and "within the zone of prejudicial publicity."13
    
    Later in the hearing counsel for the government suggested that
    
    the trial be moved to Midland.   The court responded that "I've
    
    already made my ruling on El Paso.    If you want to make a motion
    
    for Judge Bunton then you can do so and let him decide that."     In
    
    
         13
              The court stated at the hearing: "Now, I have explored
    with the Chief Judge Clark of the 5th Circuit and with Lucius
    Bunton, Chief Judge of the Western District as to alternatives.
    There is no Judge available in New Orleans that could take the
    case. I mentioned to the attorneys that I have some personal
    commitments, and I've done further work on those and those
    personal commitments would simply preclude me from going to New
    Orleans for an extended period of time. If I went I would be
    subjecting the parties to a risk that I may have to pick up and
    not be able to stay and that would be another problem. So I
    couldn't take the risk. Chief Judge Clark did not even consider
    New Orleans as a possibility. He has contacted the Chief Judge
    of the -- one of the districts in Mississippi and there is an
    indication that they would have someone available, but it would
    be substantial period of time off. It would be like next year.
    I had much better luck with Judge Bunton. Judge Bunton is
    willing to try the case. He can clear his docket and he would be
    ready to go to trial on September 17th. Candidly, if we stayed
    here in Dallas, or we moved to New Orleans, I think we're all
    looking at a delay that would be one that approximates that.
    Again, even if we stayed here. So September 17 is a firm date
    insofar as Judge Bunton is concerned. We discussed different
    spots in the Western District. Judge Bunton sits in several
    different locations in addition to Midland. He sits on a regular
    basis in Austin. He goes to San Antonio, but he doesn't like it
    very much, and he goes to El Paso on a regular basis. I agree
    with Judge Bunton that El Paso would be the best place for the
    case to be tried. Now, the reason for that is that you're going
    to find that the publicity problem does not exist to the degree
    in El Paso that it does in Austin, or San Antonio, or Dallas or
    any other place in the state. He has a courtroom available.
    There's no courtroom problem. The travel time is not that much
    different from New Orleans insofar as flight time is concerned on
    Southwest Airlines. And there are other airlines that go to El
    Paso. If you're talking about Mississippi I think you're talking
    about a longer travel time, longer flight time than you are to El
    Paso. All things considered, I think the proper thing to do is
    to transfer the case to El Paso."
    
                                     18
    his later written order transferring venue, Judge Buchmeyer noted
    
    that "[t]he Government announced in open court that it does
    
    intend to file a motion asking that Judge Bunton transfer the
    
    September 16, 1991 trial from El Paso to Midland.    The Court
    
    responded that this motion should be presented to Judge Bunton
    
    for his consideration."    These statements further suggest that
    
    Judge Buchmeyer had not already ruled that Midland was an
    
    inappropriate venue.    We also note that Midland is approximately
    
    300 miles from Dallas, that Judge Bunton went to great lengths
    
    during jury selection to question the jury panel regarding
    
    adverse publicity,14 and that intradistrict transfers have always
    
    been considered matters within the broad discretion of the trial
    
    court.15    For all of these reasons we hold that the intradistrict
    
    transfer, if error at all, does not rise to the level of plain
    
    error.
    
    C.     Joinder and Severance Issues
    
           Faulkner complains that there was misjoinder of the
    
    defendants in the indictment and that the district court erred in
    
    not granting his requests for severance.    He had filed a motion
    
    to sever under FED. R. CRIM. P. 8(b), and had joined in Toler's
    
           14
              The prospective jurors were given a forty-question
    juror questionnaire to fill out prior to jury selection. The
    questions were designed, among other things, to elicit
    information from the prospective jurors regarding their
    familiarity with the case and the defendants. The court
    conducted a lengthy voir dire, asking many questions regarding
    pretrial publicity. Numerous jurors familiar with press stories
    were excused.
           15
                E.g. Dickie, 775 F.2d at 609; Alvarado, 647 F.2d at
    539.
    
                                      19
    motion to sever the trial of Blain.    He argues that joinder is
    
    improper if based simply on non-criminal relationships between
    
    the defendants, such as friendship, business relationships or
    
    ongoing contact.   He specifically complains that several counts
    
    were based on conduct occurring after he retired in October of
    
    1982, and that he was not even charged in seventeen of the counts
    
    that were submitted to the jury.
    
         FED. R. CRIM. P. 8(b) provides:
    
         Two or more defendants may be charged in the same
         indictment or information if they are alleged to have
         participated in the same act or transaction or in the
         same series of acts or transactions constituting an
         offense or offenses. Such defendants may be charged in
         one or more counts together or separately and all of
         the defendants need not be charged in each count.
    
    The propriety of joinder under Rule 8 is determined on the basis
    
    of the allegations in the indictment, which are accepted as true
    
    barring allegations of prosecutorial misconduct.    United States
    
    v. Kaufman, 
    858 F.2d 994
    , 1003 (5th Cir. 1988); United States v.
    
    Harrelson, 
    754 F.2d 1153
    , 1176 (5th Cir.), cert. denied, 
    474 U.S. 908
     (1985).   We have held that proper joinder requires that the
    
    offenses charged "must be shown to be part of a single plan or
    
    scheme," and that "[p]roof of such a common scheme is typically
    
    supplied by an overarching conspiracy from which stems each of
    
    the substantive counts."   United States v. Lane, 
    735 F.2d 799
    ,
    
    805 (5th Cir. 1984), rev'd in part on other grounds, 
    474 U.S. 438
    
    (1986).   Initial joinder was proper because Count 1 of the
    
    indictment alleges that all defendants were members of the same
    
    conspiracy to defraud savings and loan institutions through the
    
    
                                     20
    device of fraudulent land loans, and that each defendant played
    
    an important role in this conspiracy.   The substantive counts
    
    emanated from the same alleged conspiracy.   Hence, under the
    
    letter of Rule 8(b) all defendants were alleged to have
    
    participated in the same series of acts or transactions
    
    constituting the criminal offense in Count 1.   The Rule further
    
    makes clear that joinder is not improper because Faulkner and the
    
    other defendants were not all charged in each count.
    
         FED. R. CRIM. P. 14 provides that a court may order a
    
    severance "[i]f it appears that a defendant or the government is
    
    prejudiced by a joinder of offenses or of defendants in an
    
    indictment or information or by such joinder for trial together .
    
    . . ."   If joinder is proper in the first instance under Rule 8,
    
    the denial of a motion for severance in reviewable only for an
    
    abuse of discretion.   United States v. Holloway, 
    1 F.3d 307
    , 310
    
    (5th Cir. 1993). To demonstrate an abuse of discretion, the
    
    defendant "bears the burden of showing specific and compelling
    
    prejudice that resulted in an unfair trial," id. at 311, and such
    
    prejudice must be of a type "against which the trial court was
    
    unable to afford protection."   United States v. Pofahl, 
    990 F.2d 1456
    , 1483 (5th Cir.), cert. denied, 
    114 S. Ct. 266
     (1993).      We
    
    have further noted that "[t]he rule, rather that the exception,
    
    is that persons indicted together should be tried together,
    
    especially in conspiracy cases," and that "the mere presence of a
    
    spillover effect does not ordinarily warrant severance."     Id.
    
    
    
    
                                    21
         We conclude that Faulkner has not established an abuse of
    
    discretion.    While the trial was long, we believe that the jury
    
    was able to follow the evidence and the charge and reach a fair
    
    verdict.   We note that each appellant was acquitted on one or
    
    more counts, which supports the inference that the jury
    
    considered separately the evidence as to each defendant and each
    
    count.   United States v. Buckhalter, 
    986 F.2d 875
    , 877 (5th
    
    Cir.), cert. denied, 
    114 S. Ct. 203
     (1993); United States v.
    
    Arzola-Amaya, 
    867 F.2d 1504
    , 1516 (5th Cir.), cert. denied, 
    493 U.S. 933
     (1989).   As to Faulkner's contention that he was
    
    unfairly prejudiced by counts relating to events occurring after
    
    his "retirement" in 1982, evidence was presented that his and
    
    Toler's retirement luncheon was a sham.   Further, the court
    
    instructed the jury to "consider each offense and the evidence
    
    pertaining to it separately as to each Defendant.    The fact that
    
    you might find some or all of the Defendants guilty of one of the
    
    offenses charged should not control your verdict with respect to
    
    any other offense charged against him or any of the other
    
    Defendants."   Similar instructions have been held sufficient to
    
    cure any possibility of prejudice.    Zafiro v. United States, 
    113 S. Ct. 933
    , 939 (1993); Pofahl, 990 F.2d at 1483 & n. 36.
    
    D.   Alleged Variance Between Proof and Indictment
    
         Faulkner, Toler and Formann argue that there is a fatal
    
    variance between the single conspiracy alleged in Count 1 of the
    
    indictment and the evidence adduced at trial.    Toler further
    
    argues that the jury's verdict confirms such a variance.     They
    
    
                                     22
    argue that the government never proved a single overarching
    
    conspiracy, and that they were prejudiced by being tried on such
    
    a theory.   Count 1 of the indictment was brought under 18 U.S.C.
    
    § 371, and the indictment and jury charge alleged six categories
    
    of illegal acts of the conspiracy.16   All four appellants were
    
    convicted on Count 1, but the jury did not find the same
    
    underlying substantive offenses as to each.   The jury found that
    
    Faulkner and Toler conspired to misapply funds, that Blain
    
    conspired to obtain unlawful benefits, and that Formann conspired
    
    to inflate appraisals.   Appellants claim that there was never a
    
    single conspiracy, and that the evidence at most showed the
    
    existence of several separate conspiracies.   They argue that "the
    
    I-30 corridor cannot in this case legitimately serve to
    
    amalgamate the various and varying theories, objectives, acts,
    
    
         16
              The Count 1 conspiracy count was brought under 18
    U.S.C. § 371, which criminalizes conspiracies "to commit any
    offense against the United States, or to defraud the United
    States . . . ." The defendants were charged with conspiring:
    (1) to willfully misapply the monies and funds of the FSLIC
    insured institutions with intent to defraud the institutions, in
    violation of 18 U.S.C. § 657; (2) to have persons connected with
    the FSLIC insured institutions participate, share in and receive
    directly and indirectly monies, profit, and benefits through
    transactions and loans of the institutions with intent to defraud
    the Federal Home Loan Bank Board and the institutions, in
    violation of 18 U.S.C. § 1006; (3) to commit wire fraud in
    violation of 18 U.S.C. §1343; (4) to willfully overvalue land for
    the purpose of influencing the actions of the Bank Board and
    insured institutions upon loans, in violation of 18 U.S.C. §
    1014; (5) to knowingly transport in interstate commerce money in
    excess $5,000, knowing the same to have been taken by fraud, in
    violation of 18 U.S.C. § 2314; and (6) to defraud the United
    States by hampering, impeding, impairing and obstructing the
    functions of the Bank Board in regulating, examining and
    supervising the activities of insured institutions, in violation
    of 18 U.S.C. § 371.
    
                                    23
    and transactions shown by the evidence into one overall
    
    conspiracy," and that "the evidence does not show the required
    
    unity of purpose or common design and understanding necessary to
    
    establish a single conspiracy."    Appellants cite Kotteakos v.
    
    United States, 
    328 U.S. 750
     (1946) and other cases for the
    
    proposition that it is unfair to try a defendant under a theory
    
    of a single conspiracy where none in fact exists, since there is
    
    "the danger of transference of guilt, i.e., the danger that
    
    despite demonstrating his lack of involvement in the conspiracy
    
    described in the indictment, a defendant may be convicted because
    
    of his association with, or conspiracy for unrelated purposes
    
    with, codefendants who were members of the charged conspiracy."
    
    United States v. Hernandez, 
    962 F.2d 1152
    , 1159 (5th Cir. 1992).
    
         In reviewing a claim of fatal variance, the court should
    
    reverse only if the evidence at trial in fact varied from what
    
    the indictment alleged, and the variance prejudiced the
    
    defendant's substantial rights.    United States v. Bruno, 
    809 F.2d 1097
    , 1103 (5th Cir.), cert. denied, 
    481 U.S. 1057
     (1987).    The
    
    government contends that this case is an example of a conspiracy
    
    "[w]here the activities of one aspect of the scheme are necessary
    
    or advantageous to the success of another aspect of the scheme or
    
    to the overall success of the venture . . . or where . . . the
    
    nature of the activity is such that knowledge on the part of one
    
    member concerning the existence and function of other members of
    
    the same scheme is necessarily implied due to the overlapping
    
    nature of the various roles of the participants . . . ."      United
    
    
                                      24
    States v. Elam, 
    678 F.2d 1234
    , 1246 (5th Cir. 1982).   We agree.
    
    The nature of the dealings among the appellants, Sinclair and
    
    others was such that all were integral and important
    
    participants.   The scheme required real estate developers
    
    (Faulkner, Toler) to make initial land purchases and submit
    
    overvalued appraisals (Formann, Tannehill) to a savings and loan
    
    (Blain, Jensen) in order to obtain loans for intermediate buyers
    
    (Sinclair, Blain and others).   Syndicators (Sinclair and Hughes)
    
    would then sell the properties to other "investors" at a profit,
    
    and all participants in the scheme benefitted.   The evidence,
    
    summarized above in the factual background, supports the jury's
    
    finding of a single overarching agreement among appellants and
    
    others to enrich themselves though the device of fraudulent real
    
    estate loans.   The jury's finding that all four appellants did
    
    not conspire to commit the same federal offense does not compel a
    
    different conclusion.
    
         This court has found, in other contexts, that but a
         single conspiracy exists even though the agreement that
         constitutes it has several objectives and aims at the
         commission of several offenses. It is for this reason
         that the government need prove only that a conspirator
         agreed to one of the many objectives charged to hold
         him liable for the other objectives of the agreement. .
         . . Because one conspiracy may have many illegal
         objectives, it will necessarily involve a number of
         sub-agreements to commit each of these specified
         objectives. Some members may concur in only some of
         the many objectives, yet they are liable for all
         because there is but one scheme, one enterprise, one
         conspiratorial web.
    
    United States v. Rodriguez, 
    585 F.2d 1234
    , 1249 (5th Cir. 1978)
    
    (citations omitted), on rehearing en banc, 
    612 F.2d 906
     (5th Cir.
    
    1980), affirmed, 
    450 U.S. 333
     (1981).   We conclude that the jury
    
                                    25
    found a single conspiracy.    It was instructed that "proof of
    
    several separate conspiracies is not proof of the single
    
    conspiracy charged in the indictment unless one of the several
    
    conspiracies which is proved is the single conspiracy which the
    
    indictment charges" and that "if you should find that a
    
    particular Defendant was a member of some other conspiracy, not
    
    the one charged in the indictment, then you must acquit that
    
    Defendant.   In other words, to find a Defendant guilty you must
    
    unanimously find that he was a member of the conspiracy charged
    
    in the indictment and not a member of some other separate
    
    conspiracy."   We presume that the jury followed the court's
    
    instructions, Zafiro v. United States, 
    113 S. Ct. 933
    , 939
    
    (1993), and therefore do not agree with Toler that the verdict
    
    indicates that the jury found more than one conspiracy.
    
         In considering whether one or multiple conspiracies exist,
    
    "the principal factors are (1) the existence of a common goal,
    
    (2) the nature of the scheme and (3) overlapping of participants
    
    in the various dealings."     United States v. Richerson, 
    833 F.2d 1147
    , 1153 (5th Cir. 1987).    Here, appellants and others shared a
    
    common goal of enriching themselves by profiting from the
    
    leveraged selling and reselling of real estate along I-30.
    
    Compare id. ("the common goal driving all members of the single
    
    conspiracy in this case was their personal gain through the fraud
    
    of Pool Offshore.")   The nature of the scheme was such that
    
    different participants played different but important functions
    
    necessary to its success.     Compare id. at 1154 ("The nature of
    
    
                                      26
    this conspiracy was that each member had a different task and
    
    level of involvement . . . .   The success of this conspiracy
    
    depended on the continued willingness of each member to perform
    
    his function.").   Finally there was considerable overlapping of
    
    participants in the various dealings.   While no two transactions
    
    were identical, Faulkner and Toler would typically make the
    
    initial purchase of the real estate and then sell it with the
    
    help of appraisers, bankers and others they knew well or had
    
    personally selected.   The same small group of appraisers,
    
    bankers, closers, syndicators and brokers would share in the cash
    
    thrown off from the land flips that followed.
    
         Further, even if the evidence established and the jury found
    
    the existence of separate conspiracies, we find no reversible
    
    error in trying the appellants under an indictment alleging one
    
    conspiracy.   The jury plainly found in its verdict on Count 1
    
    that all four appellants participated in a conspiracy, and the
    
    evidence is sufficient to support that verdict.17   A variance
    
    between the offense charged in the indictment and the proof
    
    relied upon at trial constitutes reversible error only if it
    
    affects the substantial rights of the defendant.    Bruno, 
    809 F.2d 17
              Faulkner and Toler do not argue that the evidence
    failed to establish their participation in a conspiracy as
    alleged in Count I. Faulkner's brief claims that "several
    conspiracies [were] proved by the evidence," and that "the
    evidence in this case established multiple conspiracies."
    Similarly, Toler's brief states that "the jury made quite clear
    that what the government proved was not a single conspiracy as
    alleged, but multiple conspiracies with different objects." Only
    Formann claims insufficiency of evidence on Count 1 as a separate
    grounds for appeal. As explained below, we find the evidence
    sufficient as against him on this count.
    
                                    27
    at 1103; United States v. Hernandez, 
    962 F.2d 1152
    , 1159 (5th
    
    Cir. 1992), quoted with approval in United States v. Limones, 
    8 F.3d 1004
    , 1010 (5th Cir. 1993).        We do not find such a variance
    
    here.
    
         We turn to the font of jurisprudence on this subject,
    
    Kotteakos itself, and find it distinguishable.       At the outset, we
    
    note that the Supreme Court's decision turned on the particular
    
    circumstances presented to it.18    There, the variance was such
    
    that (1) "[t]he indictment charged a single conspiracy only," 328
    
    U.S. at 772, (2) "[t]he jury could not possibly have found, upon
    
    the evidence, that there was only one conspiracy," id. at 768,
    
    and (3) there was no cautionary instruction given to the jury
    
    regarding the transference of guilt.       "In Kotteakos, a single
    
    indictment charged thirty-two defendants with involvement in a
    
    single conspiracy.   Although the evidence established as many as
    
    eight separate conspiracies, the judge failed to give a
    
    precautionary jury instruction regarding transference of guilt."
    
    United States v. Guerra-Marez, 
    928 F.2d 665
    , 672 (5th Cir.),
    
    cert. denied, 
    112 S. Ct. 322
     (1991).        The circumstances here are
    
         18
              The Court did not purport to create a bright-line rule
    of general application. The Court noted: "There are times when
    of necessity, because of the nature and scope of the particular
    federation, large numbers of persons taking part must be tried
    together or perhaps not at all, at any rate as respects some.
    When many conspire, they invite mass trial by their conduct. . .
    . Leeway there must be for such cases as the [Berger v. United
    States, 
    295 U.S. 78
     (1935)] situation and for others where proof
    may not accord with exact specifications in indictments. . . .
    The line must be drawn somewhere. Whether or not Berger marks
    the limit, for this sort of error and case, we are clear that it
    must lie somewhere between that case and this one." Kotteakos,
    328 U.S. at 773-74.
    
                                       28
    different.   The indictment most assuredly charged a single
    
    conspiracy and makes reference to "the conspiracy."   However, as
    
    explained above, this is not a case where the jury could not
    
    possibly have found one conspiracy.   Further, in our case the
    
    court gave cautionary instructions on transference of guilt.19
    
         In addition, "[w]e have long held that when the indictment
    
    alleges the conspiracy count as a single conspiracy, but the
    
    `government proves multiple conspiracies and a defendant's
    
    involvement in at least one of them, then clearly there is no
    
    variance affecting that defendant's substantial rights.'" United
    
    States v. Jackson, 
    978 F.2d 903
    , 911 (5th Cir. 1992) (quoting
    
    United States v. Richerson, 
    833 F.2d 1147
    , 1155 (5th Cir. 1987)),
    
    cert. denied, 
    113 S. Ct. 2429
     (1993).   See also Limones, 8 F.3d
    
    at 1010 (quoting Jackson with approval); United States v.
    
    L'Hoste, 
    609 F.2d 796
    , 801 (5th Cir.) ("If the Government proves
    
    multiple conspiracies and defendant's involvement in at least one
    
    of them, then clearly there is no variance affecting that
    
         19
              The jury was instructed: "The indictment that you will
    consider as to these defendants, consists of 58 [sic] separate
    counts. Not every Defendant is charged in each count of the
    indictment so you must consider each offense and the evidence
    pertaining to it separately as to each Defendant. The fact that
    you might find some or all of the Defendants guilty or not guilty
    on one of the offenses charged should not control your verdict
    with respect to any other offense charged against him or any of
    the other Defendants."
         The jury was also instructed: "However, if you decide that
    such a conspiracy [as alleged in Count 1] did exist, you must
    then determine who the members were; and, if you should find that
    a particular Defendant was a member of some other conspiracy, not
    the one charged in the indictment, them you must acquit that
    Defendant." In Guerra-Marez, we found that a similar instruction
    was one reason for concluding that there was no fatal variance
    between indictment and proof. 928 F.2d at 672 & n.7.
    
                                    29
    defendant's substantial rights."), cert. denied, 
    449 U.S. 833
    
    (1980); Jolley v. United States, 
    232 F.2d 83
    , 88 (5th Cir. 1956)
    
    ("If more that one conspiracy was proved, of at least one of
    
    which the appellant was guilty, it is clear that there was no
    
    variance affecting his substantial rights."), quoted with
    
    approval in United States v. Wayman, 
    510 F.2d 1020
    , 1025 (5th
    
    Cir.), cert. denied, 
    423 U.S. 846
     (1975).   We do not believe that
    
    our circuit has held this rule to be absolute;20 nor do we
    
    believe that our circuit has delineated any clear-cut exceptions
    
    to this rule.   We do believe that doctrine regarding variance
    
    between an indictment alleging a single conspiracy and proof of
    
    separate conspiracies is but one subset of the general concerns
    
    of improper joinder and severance.21   We therefore conclude that
    
    where the indictment alleges a single conspiracy and the evidence
    
    establishes each defendant's participation in at least one
    
    conspiracy a defendant's substantial rights are affected only if
    
    the defendant can establish reversible error under general
    
    principles of joinder and severance.   For the reasons explained
    
    in the preceding section of this opinion, we do not conclude that
    
         20
              Indeed, such an absolute rule would be hard to
    reconcile with Kotteakos itself. There, the Supreme Court
    accepted that several separate conspiracies had been proven by
    the evidence, 328 U.S. at 752, 755, 758, but nevertheless found
    reversible error.
         21
              See United States v. Sutherland, 
    656 F.2d 1181
    , 1190
    n.6 (5th Cir. 1981) ("A strong argument can be made that a
    variance between a single conspiracy indictment and evidence of
    multiple conspiracies should be treated not as a `variance'
    problem at all, but rather as a `misjoinder' question under
    Federal Rule of Criminal Procedure 8(b)."), cert. denied, 
    455 U.S. 949
     (1982).
    
                                    30
    joinder was improper or that the district court abused its
    
    discretion in denying the motions for severance.   Hence, we would
    
    find no reversible error even if we agreed with appellants that
    
    the evidence and jury verdict established the existence of
    
    multiple conspiracies.
    
    E.   Denial of Request for Voir Dire Concerning
         Mid-Trial Publicity
    
         Toler complains that the district court erred in denying his
    
    request for a voir dire of the jury concerning mid-trial
    
    publicity.   On the first day of trial, the district court
    
    admonished the prospective jurors at length on the importance of
    
    avoiding press reports during the trial.22   At the beginning of
    
         22
              The court stated at the close of voir dire: "Now, most
    important. If you don't remember anything else I say today, do
    not discuss anything you have seen or heard in this courtroom
    with any member of your family, or with anyone else. In all
    likelihood there is going to be an account of it in the daily
    newspapers. Do not read that account. Read Hagar instead, it is
    a lot better, probably more accurate. Don't read an account of
    it. When that portion of the news comes on, turn over to channel
    36 if you are on cable, that gives the weather. You watch the
    weather instead of hearing a newspaper, I mean a reporter's
    account of this trial on the radio. When you go home if you are
    listening to the radio, as I normally do on my way back to
    Odessa, get a country and western song instead of listening to
    the news or if you want that sweet music you can get at 1510 or
    1410, depending on whether you are in Midland or Odessa, or on AM
    or FM. Don't, really, you are not supposed to read anything
    about this."
         Earlier in the voir dire the court had explained to the
    prospective jurors: "But what we must have in this country are
    people that can come from their homes and their businesses and
    their loved ones and sit in a jury box day after day and listen
    to the testimony and make a decision only on what they see and
    hear in this courtroom, not on anything in a newspaper, not on
    anything perhaps in a book, not on anything at all but what is
    contained within the walls of this courtroom. We need,
    everybody, the defendants and the Government, we need to start on
    a dry field. I think you can realize that if we don't start on a
    dry field, if you have got some pre-conceived idea or notion that
    
                                    31
    the second day of trail, after the jury was selected, the court
    
    again admonished the jury to avoid press reports of the trial.23
    
    Shortly thereafter, out of the jury's presence, counsel for
    
    Faulkner informed the court that he had been told that on the
    
    previous evening a local television newscast had reported that
    
    the first trial had ended in a mistrial caused by jury
    
    tampering.24   None of the attorneys indicated that they had seen
    
    the broadcast, and counsel for Faulkner did not identify who had
    
    informed him of the broadcast.   Counsel expressed his deep
    
    concern that such a story would be prejudicial to his client, and
    
    
    
    someone is already not guilty or that someone is already guilty,
    before this trial is concluded you are going to be called on to
    violate your oath under God. The first thing that you are going
    to do when you take your seat in this jury box is swear under
    your God that you will a true verdict render, according to the
    law and according to the evidence. Now, if we don't start on a
    dry field insofar as you are concerned, you are going to have to
    violate that oath. And I am sure I can speak for everyone that
    is involved in this case, from the prosecution through the
    defendants, we do not wish to be responsible for you having to
    violate your oath under God.
         23
              The court stated: "During the entire trial, however
    long it lasts, you are not to read any account of this in the
    newspaper. You are not to listen to anything on the radio about
    it. You are not to watch anything on television about it. I
    know sometimes they sneak up on you on the radio or on
    television, either. But just turn it off in your mind or turn it
    off at the set, or whatever it might be. I am sure that if you
    were a defendant in this case, you wouldn't want anybody deciding
    whether or not you were innocent or guilty based on something
    that somebody else had said or someone else had written. Just
    don't read it or listen to it or have anything to do with any
    news account of it."
         24
              Faulkner's daughter was indicted and acquitted for jury
    tampering after the first trial in Lubbock. The juror in
    question had been excused before jury deliberations. Hence, any
    report that the hung jury and the mistrial was the result of jury
    tampering would be false.
    
                                     32
    asked the court to voir dire the jury to determine whether any
    
    members had heard the broadcast.     The court denied this request,
    
    but offered "to tell them what happened at the last trial."
    
    Counsel for Blain suggested that the jury be advised "that there
    
    has been a prior trial and that the trial ended as a result of
    
    the jury's inability to reach a verdict, and specifically address
    
    that fact that you have been told there is news reports that the
    
    trial ended for some other reason and that is not true."     Counsel
    
    for Toler then joined in the suggestions of counsel for Faulkner
    
    and Blain.   The jury returned and the court advised it:
    
         [T]here was a previous trial. And the reason that we
         had to do it again is because the Judge did declare a
         mistrial in that case. I have been advised that there
         may have been a news account as to the reason for it,
         why they had a mistrial before, and the reason simply
         was that the Jury was unable to resolve the differences
         that they had in the case and could not render a
         verdict. That was the only reason.
    
    At the end of the second day of trial, the district court again
    
    admonished the jury not to read or listen to press reports.
    
         On a number of occasions this court has addressed whether
    
    the failure to conduct a jury voir dire concerning mid-trial
    
    publicity constitutes reversible error.    Recently, we found that
    
    the failure to conduct such an inquiry was reversible error in
    
    United State v. Aragon, 
    962 F.2d 439
     (5th Cir. 1992).      Aragon
    
    offers a thorough analysis of the subject of mid-trial publicity
    
    and our court's treatment of the subject in prior cases, and
    
    accordingly provides a framework for our own analysis.
    
         In Aragon, three defendants were convicted of drug offenses
    
    after a two-day trial in El Paso. On the first morning of the
    
                                    33
    trial, the city's largest newspaper published an article about
    
    one of the defendants on the first page of the metropolitan
    
    section.    Among other things the article recounted (1) the
    
    defendant's prior history of drug arrests and convictions, (2)
    
    his alleged boasting of the smuggling of tons of marijuana
    
    through a smuggling pipeline, and (3) his dealings with a
    
    notorious narcotics kingpin.    Id. at 441-42.   The district court
    
    refused a request by defense counsel to conduct additional voir
    
    dire to determine whether any juror had read or heard of the
    
    article.    On appeal this court explained that the denial of such
    
    a request is subject to review for abuse of discretion.     Id. at
    
    443.    It further explained that voir dire is required if there
    
    could arise "serious questions of possible prejudice."     Id.   This
    
    question is to be answered by following a two-step inquiry to
    
    determine whether such "serious questions" exist:
    
           First, the district court must look at the nature of
           the news material to determine whether the material is
           innately prejudicial. Factors such as the timing of
           the media coverage, its possible effects on legal
           defenses, and the character of the material
           disseminated merit consideration. Second, the court
           must then discern the probability that the publicity
           has in fact reached the jury. At this juncture, the
           prominence of the media coverage and the nature,
           number, and regularity of warnings against viewing the
           coverage become relevant.
    
    Id. at 444.    Finally, the court noted that "[e]very claim of
    
    potential jury prejudice must turn upon its own facts.     Id.   See
    
    also United States v. Herring, 
    568 F.2d 1099
    , 1105 (5th Cir.
    
    1978) (stating that "cases involving questions of prejudicial
    
    publicity necessarily tend to turn on their own facts").
    
    
                                     34
         In our case, we consider the issue a close one, and believe
    
    that the better practice would have been for the trial judge to
    
    conduct the requested voir dire.      Considering all of the
    
    circumstances, however, we cannot say that the court abused its
    
    discretion, and find Aragon and other cases finding reversible
    
    error distinguishable for a number of reasons.
    
         First, the instructions given by the court in our case on
    
    the first day of trial, regarding the need to avoid press
    
    reports, were unusually lengthy and emphatic.      These
    
    instructions, reprinted at the margin, cannot fairly be
    
    characterized as boilerplate or casual recitations of standard
    
    jury instructions.   For example, one admonishment began with the
    
    words "now, most important" and "if you don't remember anything
    
    else I say today . . . ."   Another warning ended with the words
    
    "we do not wish to be responsible for you having to violate your
    
    oath to God."   See United States v. Arzola-Amaya, 
    867 F.2d 1504
    ,
    
    1514 (5th Cir.) (finding no reversible error where trial judge
    
    "was very careful and very specific" in giving two cautionary
    
    instructions prior to the introduction of evidence), cert.
    
    denied, 
    493 U.S. 933
     (1989); Aragon, 962 F.2d at 445 (finding
    
    instructions inadequate where they were given "rather quickly and
    
    casually by the court").    Second, the court here gave a specific
    
    statement to the jury regarding the aspect of the broadcast
    
    alleged to be prejudicial, namely the statement in the broadcast
    
    that the earlier trial had ended in a mistrial due to jury
    
    tampering.   The court explained that the only reason for the
    
    
                                     35
    mistrial "simply was that the Jury was unable to resolve the
    
    differences that they had in the case and could not render a
    
    verdict."   Such an instruction was in fact suggested by one of
    
    the defense counsel.   Our prior cases have not involved a
    
    statement by the court to the jury attempting to rebut directly
    
    the alleged prejudicial statement in the press report.
    
         Third, the jury acquitted all of the defendants on at least
    
    one count, and we have held that such acquittals weigh in favor
    
    of finding no abuse of discretion.25   We do not believe that this
    
    fact standing alone is an important one, but we must agree with
    
    our prior panels that it should inform our analysis.   Fourth, the
    
    instructions described above were given four times during the
    
    first two days of trial, and the court on numerous occasions
    
    throughout the trial continued to direct the jury to avoid press
    
    reports.    The frequency of such warnings is a factor to consider
    
    in this context.    Aragon, 962 F.2d at 444 (noting that number and
    
    regularity of warnings against viewing press coverage is relevant
    
    to the second step of the two-step inquiry); United States v.
    
    Harrelson, 
    754 F.2d 1153
    , 1164 (5th Cir.) (finding no reversible
    
    
         25
              Arzola-Amaya, 867 F.2d at 1514 ("The jury's ability to
    discern a failure of proof of guilt on some of the alleged crimes
    indicates a fair minded consideration of the issues and
    reinforces our belief and conclusion that the media coverage did
    not lead to the deprivation of appellants['] right to a fair
    trial."); United States v. Manzella, 
    782 F.2d 533
    , 543 (5th Cir.)
    ("The jury's ability to discern [defendant's] innocence of some
    of the alleged crimes indicates a fair-minded consideration of
    the case against him. The not guilty verdicts reinforce our
    belief that the media coverage did not lead to the deprivation of
    [defendant's] right to an impartial jury."), cert. denied, 
    476 U.S. 1123
     (1986).
    
                                     36
    error where court repeated cautionary instruction regarding
    
    extraneous matter each day of the trial), cert. denied, 
    474 U.S. 908
     (1985).
    
         Fifth, the district court and this court were given very
    
    sketchy details about the content of the broadcast in question.
    
    It is therefore difficult to determine just how potentially
    
    prejudicial the broadcast was.   We have sufficient trust in our
    
    bar to presume that the broadcast occurred and that it did
    
    mention the mistrial and alleged jury tampering.     However, none
    
    of the trial counsel actually saw the broadcast.     Counsel for
    
    Faulkner stated that he had been told by others about the
    
    broadcast, but did not even identify those other persons.       A tape
    
    or transcript of the broadcast is not available.26    Defense
    
    counsel did not know for certain which network had broadcast the
    
    story, stating only that "I think it was an ABC affiliate."27      We
    
    cannot tell whether the broadcast stated as an unqualified fact
    
    that jury tampering occurred, or whether it stated that such
    
    tampering had merely been alleged.    We cannot know the length of
    
    the story, and whether the alleged jury tampering was the thrust
    
    
    
    
         26
              Compare United States V. Williams, 
    568 F.2d 464
    , 466
    n.2 (5th Cir. 1978) (giving verbatim transcript of mid-trial
    television news broadcast); United States v. Attell, 
    655 F.2d 703
    , 705 (5th Cir. 1981) (quoting from tape of television news
    broadcast included in the record).
         27
              Compare Aragon, 962 F.2d at 441 (noting that press
    report was published in the city's most widely circulated
    newspaper).
    
                                     37
    of the story or a minor aside.28     We do not mean to suggest that
    
    appellants waived their right to appeal this point by failing to
    
    provide a copy of the broadcast.29      However, the lack of details
    
    about the broadcast militates in favor of finding no abuse of
    
    discretion.   For example, we have no basis for concluding that
    
    the prejudicial impact of the broadcast approached the
    
    prejudicial impact of the newspaper story in Aragon, which
    
    described the defendant's prior drug history and convictions,
    
    detailed his boasts of having imported tons of marijuana, and
    
    linked him to a notorious drug kingpin.
    
         Finally, we believe that the length of the trial is relevant
    
    to determining the prejudicial impact of mid-trial publicity.
    
    Here, the broadcast occurred on the first day of a trial that
    
    lasted approximately seven weeks.       The press report in Aragon
    
    came in the middle of a two-day trial.      We believe that, given
    
    the length of the trial, the potential prejudicial impact of the
    
    press report in our case was far less that the impact in Aragon.
    
    F.   The Deliberate Ignorance Instruction
    
         Toler complains that the district court erred in including
    
    in the jury instructions a deliberate ignorance instruction.         The
    
    instruction, given over Toler's objection, stated:
    
    
         28
              Compare Manzella, 782 F.2d at 541 (noting that
    prejudicial reference in newspaper article to defendant's prior
    conviction "occupied but one short paragraph in a lengthy
    article.").
         29
              Cf. Attell, 655 F.2d at 705-06 (holding that defendant
    should be given the benefit of the doubt as to jury's exposure to
    news reports where court failed to conduct voir dire).
    
                                       38
         The element of knowledge may be satisfied by inferences
         drawn from proof that a defendant deliberately closed
         his eyes to what would otherwise have been obvious to
         him. A finding beyond reasonable doubt of a conscious
         purpose to avoid enlightenment would permit in [sic]
         inference of knowledge. Stated another way, a
         defendant's knowledge of a fact may be inferred from
         willful blindness to the existence of the fact.
    
         It is entirely up to you as to whether you find any
         deliberate closing of the eyes, and the inferences to
         be drawn from any such evidence. A showing of
         negligence or mistake is not sufficient to support a
         finding of willfulness or knowledge.
    
         "We review jury instructions to determine `whether the
    
    court's charge as a whole, is a correct statement of the law and
    
    whether it clearly instructs jurors as to the principles of law
    
    applicable to the factual issues confronting them.'"     United
    
    States v. Stouffer, 
    986 F.2d 916
    , 925 (5th Cir.), (quoting United
    
    States v. August, 
    835 F.2d 76
    , 77 (5th Cir. 1987)), cert. denied,
    
    
    114 S. Ct. 115
     (1993). Toler does not contend that the
    
    instruction was an incorrect statement of the law, but claims
    
    that it was not factually supported by the evidence presented.
    
    While we have stated that a deliberate ignorance instruction
    
    "should rarely be given," United States v. Ojebode, 
    957 F.2d 1218
    , 1229 (5th Cir. 1992), cert. denied, 
    113 S. Ct. 1291
     (1993),
    
    we have also "consistently upheld such an instruction as long as
    
    sufficient evidence supported its insertion into the charge."
    
    United States v. Daniel, 
    957 F.2d 162
    , 169 (5th Cir. 1992).
    
         This court employs a two-part test in determining whether a
    
    deliberate ignorance instruction can be given.   "The evidence
    
    must show that:   (1) the defendant was subjectively aware of a
    
    high probability of the existence of the illegal conduct; and (2)
    
                                    39
    the defendant purposely contrived to avoid learning of the
    
    illegal conduct."    Ojebode, 957 F.2d at 1229.    Toler focuses on
    
    the second element of this test.      He suggests that a deliberate
    
    ignorance instruction cannot be submitted absent evidence that
    
    the defendant engaged in affirmative acts to avoid knowledge of
    
    wrongdoing, and that no such evidence was presented here.     We do
    
    not agree that affirmative acts to avoid knowledge must always be
    
    shown.    We have held that in some cases the likelihood of
    
    criminal wrongdoing is so high, and the circumstance surrounding
    
    a defendant's activities and cohorts are so suspicious, that a
    
    failure to conduct further inquiry or inspection can justify the
    
    inclusion of the deliberate ignorance instruction.30
    
         Here, viewing the evidence in the light most favorable to
    
    the government,31 the circumstances of the real estate
    
         30
              Stouffer, 986 F.2d at 925 ("Despite knowing that he and
    his cohorts were using the DITA funds to pay for pleasure trips,
    exorbitant bonuses, and speculative real estate ventures,
    Stouffer blindly accepted without further investigation Atchley's
    representations that FUTCO's corporate charter authorized all of
    the `investments.' Therefore, Stouffer's conduct suggests a
    conscious effort to avoid incriminating knowledge."); Daniel, 957
    F.2d at 169-70 ("The circumstances in this case were so
    overwhelmingly suspicious that the defendants' failure to conduct
    further inspection or inquiry suggests a conscious effort to
    avoid incriminating knowledge."); United States v. Lara-
    Velasquez, 
    919 F.2d 946
    , 952 (5th Cir. 1990) ("Courts also have
    determined that the circumstances of the defendant's involvement
    in the criminal offense may have been so overwhelmingly
    suspicious that the defendant's failure to question the
    suspicious circumstances establishes the defendant's purposeful
    contrivance to avoid guilty knowledge.") (emphasis in original).
         31
              "In assessing [defendant's] challenge to the deliberate
    ignorance instruction, we must, of course, review the
    instructions in their totality and the jury's verdict; in so
    doing, we must view the evidence in the light most favorable to
    the government." United States v. Chen, 
    913 F.2d 183
    , 186 (5th
    
                                     40
    transactions were extraordinarily suspicious.   By way of example
    
    only, the jury was presented with a wealth of evidence, including
    
    the testimony of four alleged coconspirators (Sinclair, Hutson,
    
    Nelson and Hughes) from which it could conclude that Toler, an
    
    experienced real estate developer and close associate of
    
    Faulkner, was aware of most or all of the following: (1) Faulkner
    
    and Toler reaped enormous profits of tens of millions of dollars
    
    each by selling land along I-30 for a relatively brief two-year
    
    period, (2) the loans which made these profits possible were
    
    never denied and rapidly approved, (3) subsequent loans on the
    
    properties were likewise always or almost always approved, (4)
    
    Faulkner and Toler were always able to dictate the price they
    
    wanted for the properties they sold, and likewise could dictate
    
    who would receive commissions or other payments at closing and in
    
    what amounts, (5) Toler and Faulkner made a loan to Blain that
    
    enabled him to take over Empire, (6) with the help of Faulkner,
    
    Toler and Sinclair, Blain became an intermediate seller of one of
    
    the properties and a received profit of approximately $15
    
    million,   (7) Paul Jensen, a young newcomer to Dallas, gained
    
    influence or control over two savings and loans, made over $100
    
    million dollars in loans for Toler/Faulkner projects, and in
    
    short order was living in a multi-million dollar landmark Dallas
    
    mansion, (8) the closer, bankers and appraisers for the I-30 were
    
    lavished with gifts and bonuses, (9) Empire's board members
    
    included Jane Nix, the closer on all of Faulkner's deals, and
    
    
    Cir. 1990).
    
                                    41
    Brenda Kennedy, a close friend of Faulkner who received millions
    
    of dollars in commissions on the property sales despite a lack of
    
    any apparent effort on her part (10) direct evidence of ownership
    
    of properties by Toler and Faulkner was sometimes concealed in
    
    the chain of title, (11) even when properties were bought and
    
    sold in rapid succession, sometimes on the same day, the
    
    appraisals were always high enough to support the loans, (12)
    
    buyers would not put up any cash for a down payment, and
    
    typically walked away from the closing with cash in their pockets
    
    and a loan large enough to pay all closing costs and future
    
    interest payments for some period of time, (13) sales of
    
    properties by Faulkner and Toler never fell through due to lender
    
    concern about the creditworthiness of a borrower or the value of
    
    the property pledged as collateral, (14) separate accounts were
    
    created at the title company for the benefit of Faulkner and
    
    Toler, and Toler had suggested destroying what sparse records
    
    existed on the accounts, and (15) the area was being overbuilt
    
    and arms-length sales of the condominiums were far from
    
    justifying the level of loans and construction.
    
         This is not to say that Toler was not entitled to present
    
    evidence and receive a lengthy jury instruction32 on his theory
    
         32
              Toler and Faulkner requested and received lengthy jury
    instructions on their general theory of the case. Toler's
    instruction stated in part: "Mr. Toler contends that he made no
    misrepresentations to any lending institution or regulatory
    authorities; that he did not conspire or agree with anyone else
    to do so; and that he had no knowledge that any
    misrepresentations would be or were being made . . . . Mr. Toler
    submits that he was a businessman dealing at arm's length with
    the savings and loans or their representatives, and that . . . he
    
                                   42
    of the case -- that he was unaware of any wrongdoing and was
    
    simply a gifted or lucky businessman who legitimately prospered
    
    during a real estate boom that was not of his making.   However,
    
    under these circumstances we find no error in including the
    
    deliberate ignorance instruction.33   The instruction is
    
    appropriate where a defendant claims a lack of guilty knowledge
    
    and the evidence at trial supports an inference of deliberate
    
    
    
    
    was entitled to sell land to those institutions at any price they
    were willing to pay, and to benefit from any loans they were
    willing to make to borrowers who were buying land from him. Mr.
    Toler denies that he participated in or knew of any bribes or
    illegitimate payments by Mr. Sinclair or others to any bankers.
    He contends that he was unaware of transactions in which Tommy
    Nelson and Larry Powell received $2 million from Kitco, or in
    which Paul Jensen received a $4 million home or other monies from
    selling land to Kitco, or in which Spencer Blain received
    $1,400,000 from Mr. Sinclair. . . . Mr. Toler contends that he
    and Mr. Faulkner loaned funds to Spencer Blain for the purchase
    of Empire shock, in order to relieve Mr. Faulkner of liability on
    a $750,000 promissory note at First City Bank secured by the
    Empire stock. Mr. Toler also sold the property later known as
    Chalet Ridge to Mr. Blain, and assisted Mr. Blain in arranging a
    loan . . . for the purpose of buying this land and paying off the
    loans for Mr. Toler and Mr. Faulkner on the Empire stock. Mr.
    Toler contends that in each of these transactions he acted for
    the legitimate business interests of himself and Mr. Faulkner,
    and denies that he made any misrepresentations to anyone or
    provided any illegitimate benefits to Spencer Blain. Finally,
    Mr. Toler admits he was aware that Spencer Blain sold the Chalet
    Ridge property to Kitco, Sinclair and Cansler in February 1983
    for a large profit, but denies he either arranged that sale or
    had anything to do with determining the price paid."
    
         33
              Faulkner and Blain adopt all of the arguments raised by
    Toler, but make no attempt to brief this fact-specific issue as
    it relates to them. See Lara-Velasquez, 919 F.2d at 952
    ("Appellate review of a deliberate ignorance instruction is
    necessarily a fact-intensive endeavor."). However, we conclude
    that the instruction was appropriately given as to them as well,
    employing essentially the same analysis we employ above as to
    Toler.
    
                                    43
    indifference.     United States v. Cartwright, 
    6 F.3d 294
    , 301 (5th
    
    Cir. 1993).
    
    G.   Sufficiency of Evidence Points
    
         Appellants challenge the sufficiency of the evidence to
    
    support their convictions.    In assessing the sufficiency of the
    
    evidence, we determine whether, viewing the evidence and the
    
    inferences that may be drawn therefrom, a rational jury could
    
    have found the essential elements of the offense beyond a
    
    reasonable doubt.     United States v. Pruneda-Gonzalez, 
    953 F.2d 190
    , 193 (5th Cir.), cert. denied, 
    112 S. Ct. 2952
     (1992).     We
    
    review the evidence, whether direct or circumstantial, and all
    
    reasonable inferences drawn therefrom in the light most favorable
    
    to the verdict.     United States v. Salazar, 
    958 F.2d 1285
    , 1290-91
    
    (5th Cir.), cert. denied, 
    113 S. Ct. 185
     (1992).    "[I]t is not
    
    necessary that the evidence exclude every reasonable hypothesis
    
    of innocence or be wholly inconsistent with every conclusion
    
    except that of guilt, provided that a reasonable trier of fact
    
    could find that the evidence established guilt beyond a
    
    reasonable doubt."     United States v. Stephens, 
    964 F.2d 424
    , 427
    
    (5th Cir. 1992).
    
         1.   Formann
    
         Formann was convicted of conspiracy under Count 1, seventeen
    
    counts of submitting false appraisals under 18 U.S.C. § 1014, two
    
    counts of wire fraud under 18 U.S.C. § 1343, and one count of
    
    misapplying funds of a federally insured institution under 18
    
    
    
    
                                      44
    U.S.C. § 657.     He claims insufficient evidence as to all of these
    
    counts.
    
         To establish guilt for conspiracy, the government must prove
    
    beyond a reasonable doubt that two or more people agreed to
    
    pursue an unlawful objective together, that the defendant
    
    voluntarily agreed to join the conspiracy, and that one of the
    
    members of the conspiracy performed an overt act to further the
    
    conspiracy. United States v. Parekh, 
    926 F.2d 402
    , 406 (5th Cir.
    
    1991).    Each element may be inferred from circumstantial
    
    evidence.    United States v. Cardenas, 
    9 F.3d 1139
    , 1157 (5th Cir.
    
    1993); United States v. Shivley, 
    927 F.2d 804
    , 809 (5th Cir.),
    
    cert. denied, 
    111 S. Ct. 2806
     (1991).
    
         In rendering its verdict on Count 1, the jury found that of
    
    the four defendants only Formann conspired to overvalue land
    
    under § 1014.34     As explained above in the discussion of the
    
    variance issue, the jury's failure to find that the three other
    
    appellants had not conspired with Formann to overvalue land does
    
    not mean that Formann's conspiracy conviction cannot stand.35     We
    
         34
              This statute now provides that "[w]hoever knowingly
    makes any false statement or report, or willfully overvalues
    land, property or security, for the purpose of influencing in any
    way the action of . . . any institution the accounts of which are
    insured by the [FDIC] . . . shall be fined not more that
    $1,000,000 or imprisoned not more that 30 years, or both." 18
    U.S.C.A. § 1014 (West Supp. 1993). The version of the statute in
    effect at the time of the alleged conduct imposed different
    penalties and included reference to the FSLIC. The parties
    stipulated that Empire and Bell were insured by the FSLIC.
         35
              We also note that in United States v. Zuniga-Salinas,
    
    952 F.2d 876
    , 877 (5th Cir. 1992) (en banc), we held that a
    conspiracy conviction need not be set aside even when the sole
    alleged coconspirator is acquitted. Prior to that we had held on
    
                                      45
    find sufficient evidence that Formann was part of the overall
    
    conspiracy alleged in Count 1 and that he conspired with Paul
    
    Tannehill, Larry Hutson or others to inflate the appraisals.
    
    Formann was a former examiner for the Federal Home Loan Bank
    
    Board and had at one time served as the managing officer of a
    
    Texas savings and loan institution.    The jury could reasonably
    
    infer that he understood the role his appraisals played in the I-
    
    30 loans and land flips.    Evidence was presented that Formann had
    
    numerous dealings with Faulkner and Sinclair, and that appraisals
    
    were prepared on the I-30 properties at each stage of the land
    
    flips.    "Parties who knowingly participate with core conspirators
    
    to achieve a common goal may be members of an overall conspiracy.
    
    . . .    The members of a conspiracy which functions through a
    
    division of labor need not have an awareness of the existence of
    
    the other members, or be privy to the details of each aspect of
    
    the conspiracy."    United States v. Richerson, 
    833 F.2d 1147
    , 1154
    
    (5th Cir. 1987).    Tannehill was Formann's boss during part of
    
    1982 and 1983.    He signed appraisals prepared by Formann during
    
    this period.    Formann and Tannehill had a joint interest in one
    
    I-30 property and succeeded in reselling it at a profit.    The two
    
    
    
    numerous occasions that a defendant's conspiracy conviction can
    be upheld even if all other alleged coconspirators tried with him
    are acquitted, so long as the indictment alleges other named or
    unnamed coconspirators and there is sufficient evidence of a
    conspiracy involving these other individuals who were not tried
    with the defendant. E.g. United States v. Price, 
    869 F.2d 801
    ,
    804 (5th Cir. 1989); United States v. Sheikh, 
    654 F.2d 1057
    , 1062
    (5th Cir. 1981), cert. denied, 
    455 U.S. 991
     (1982). Here the
    indictment alleged known and unknown coconspirators including
    Paul Tannehill.
    
                                     46
    received a fixed percentage of each appraisal fee paid.    While
    
    working with Tannehill Formann could not sign appraisals since he
    
    was not an MAI appraiser.    At one point in 1983 one of
    
    Tannehill's employees suggested that the company cease preparing
    
    appraisals on the I-30 properties because the workload had become
    
    too great.   Tannehill's response was, "I know it, Dolly, but I am
    
    in too deep and I can't get out, I have to unload my condos
    
    first."   The jury could reasonably infer that they conspired to
    
    inflate appraisals.    Formann claims that there was no evidence
    
    that any alleged coconspirator ever asked him to inflate any
    
    requested appraisal.    However, "[a] conspiracy agreement may be
    
    tacit," and "[n]o evidence of overt conduct is required."     United
    
    States v. Hernandez-Palacios, 
    838 F.2d 1346
    , 1348 (5th Cir.
    
    1988).    Larry Hutson, another appraiser, testified that there was
    
    no need to tell Toler and Faulkner he was falsifying appraisals,
    
    because "[t]hey knew what the values were."    Likewise, he
    
    testified that when Ray Evans of Empire would request an
    
    appraisal, "he would ask me to appraise a particular tract and he
    
    would usually tell me what his loan amount was and I would do
    
    some calculations and come up with an appraisal price to cover
    
    the loan amount . . . .    He knew what the sales price was, he
    
    knew what the loan amount was.    I mean, I didn't say this is a
    
    false appraisal.   He was smart enough to know that."
    
         Formann further claims that the conspiracy count and the
    
    individual substantive counts on which he was convicted for
    
    overvaluing land under § 1014 were not supported by sufficient
    
    
                                     47
    evidence that land was overvalued and that he intentionally
    
    overvalued land.   To prove a violation of § 1014 the government
    
    must show that the defendant knowingly made a false statement as
    
    to a material fact to a financial institution for the purpose of
    
    influencing the financial institution's decision.    United States
    
    v. Trice, 
    823 F.2d 80
    , 85 (5th Cir. 1987).   Intent can be
    
    inferred from the fact that the defendant made statements with
    
    the capacity to influence the institution's decision.    United
    
    States v. Stephens, 
    779 F.2d 232
    , 237 (5th Cir. 1985).    We find
    
    sufficient evidence that Formann intentionally overvalued the
    
    properties in his appraisals.36   The evidence established that
    
    Faulkner and Toler would simply decide what they wanted for their
    
    property, and that appraisals on these initial sales and later
    
    sales were always supported by appraisals valuing the properties
    
    at or above the sales price.   When asked how the appraisals were
    
    obtained, Sinclair testified that Faulkner and Toler arranged for
    
    the appraisals, and that most came from Formann.    Sinclair
    
    testified that Faulkner originally introduced Sinclair to
    
    Formann, and that Faulkner described Formann as "his appraiser."
    
    Expert witnesses testified that the appraisals were seriously
    
    flawed, inconsistent, and otherwise highly overvalued.    Expert
    
    testimony was offered that the appraised land values were so high
    
    
         36
              Toler argues that his convictions for aiding and
    abetting Formann's violations of § 1014 should be reversed on
    grounds that if the court accepts Formann's insufficiency of
    evidence claims on these counts, it should likewise reverse
    Toler's aiding and abetting convictions. Since we affirm
    Formann's convictions under these counts we reject this argument.
    
                                      48
    that the market would not support condominiums built on them, and
    
    that mere incompetence could not explain the inconsistent
    
    adjustments in the appraisals and nonconformities with appraisal
    
    theory, since they always erred in the same direction -- above
    
    the actual selling price.   Other witnesses with knowledge of land
    
    values in the area testified that they did not believe the land
    
    could be worth the appraised values.    Sinclair testified that on
    
    one group of appraisals, Formann told him he had been given a
    
    value to reach by Faulkner and Toler.   Hughes testified that on
    
    one appraisal Faulkner and Toler were informed that Formann was
    
    not going to reach a value needed for a transaction, and that
    
    Faulkner "had a little talk with Mr. Formann and we received the
    
    appraisal."   Larry Hutson testified that although he sometimes
    
    served as a "review appraiser" for Formann, he in fact did no
    
    review at all and would simply sign his name to the appraisals.
    
    At one point Sinclair testified that he did not remember
    
    discussing a particular appraisal with Formann "other than the
    
    fact that we told [Formann] what we had to have per square foot,
    
    and the appraisals were always placed in there higher than the
    
    selling price."   On another occasion Sinclair, at Faulkner's
    
    suggestion, paid Formann an up-front bonus of $30,000 to prepare
    
    appraisals on two properties.   He received other smaller bonuses
    
    from Sinclair as well.   Formann complains that the experts did
    
    not personally prepare appraisals on the various properties.    On
    
    these facts, however, we do not agree that the preparation of
    
    such appraisals was essential to the government's proof.
    
    
                                    49
         Formann also asserts that appraisals on land that has not
    
    yet sold are necessarily mere opinions, cannot be characterized
    
    as "true" or "false," and do not fall within the purview of §
    
    1014.   He cites Williams v. United States, 
    458 U.S. 279
     (1982),
    
    which held that an alleged check-kiting scheme did not fall
    
    within §1014.    The Court reasoned:
    
         Although petitioner deposited several checks that were
         not supported by sufficient funds, that course of
         conduct did not involve the making of a "false
         statement," for a simple reason: technically speaking,
         a check is not a factual assertion at all, and
         therefore cannot be characterized as "true" or "false."
         . . . Each check did not, in terms, make any
         representation as to the state of petitioner's bank
         balance.
    
    Id. at 284-85.    We find Williams distinguishable.   An appraisal,
    
    unlike a check, contains statements as to the fair market value
    
    of property, and § 1014 expressly reaches one "who willfully
    
    overvalues land."     In Williams, the Court was faced with a
    
    situation where the statute "does not explicitly reach the
    
    conduct in question . . . ."    Id. at 286.
    
         Formann also complains that he was convicted on several
    
    counts relating to appraisals signed by Paul Tannehill.    These
    
    appraisals indicated that Formann assisted in their preparation.
    
    Evidence was presented that while Formann worked for Tannehill,
    
    Formann was assigned to do the I-30 appraisals.   Tannehill would
    
    sign all of the appraisals Formann worked up, because that was
    
    the practice at that office, and because industry practice was to
    
    have appraisals signed by an MIA appraiser, the MIA designation
    
    indicating membership in the American Institute of Real Estate
    
    
                                     50
    Appraisals.   At the time Formann was not an MIA appraiser.   On
    
    all of these counts we note that Formann was indicted under §
    
    1014, but was also indicted under 18 U.S.C. § 2 for aiding and
    
    abetting Tannehill.   A defendant may be convicted for aiding and
    
    abetting the commission of a crime if he was "`associated with a
    
    criminal venture, participated in the venture, and sought by his
    
    action to make the venture succeed.'"   United States v. Parekh,
    
    
    926 F.2d 402
    , 406 (5th Cir. 1991) (quoting United States v.
    
    Holcomb, 
    797 F.2d 1320
    , 1328 (5th Cir. 1986)).   As to the
    
    appraisals signed by Tannehill, we find sufficient evidence to
    
    support all of the convictions for overvaluing land under § 1014
    
    or for aiding and abetting Tannehill to commit these offenses.
    
    Tannehill's signature on these appraisals may go to the weight of
    
    the evidence, but does not in our view render the evidence
    
    insufficient on these counts.
    
         Count 13 involved an appraisal for a property known as "On
    
    The Point."   Neither Formann nor Tannehill signed this appraisal;
    
    however, Tannehill had an ownership interest in this property,
    
    and Formann had an undisclosed profits interest and received one-
    
    third of the profit made on the resale of the property.   Larry
    
    Hutson testified that he prepared an overvalued appraisal on this
    
    property at the request of Tannehill.   Tannehill explained to him
    
    that another appraiser must sign off on this appraisal since
    
    Tannehill could not appraise property that he owned.   Hutson met
    
    with Formann and Tannehill regarding the appraisal, and was told
    
    by Tannehill the dollar figure that was needed in the appraisal.
    
    
                                    51
    Formann had prepared a preliminary handwritten appraisal report.
    
    Tannehill and Formann supplied Hutson with backup documents as
    
    well to accompany the report.   Formann made a profit of
    
    approximately $226,000 when the property sold.   We find this
    
    evidence sufficient to uphold Formann's conviction on this count.
    
         Formann claims insufficient evidence to sustain his wire-
    
    fraud convictions under Counts 10 and 48.   He recognizes that
    
    under the Pinkerton rule "[a] party to a conspiracy may be held
    
    responsible for a substantive offense committed by a
    
    coconspirator in furtherance of the conspiracy, even if that
    
    party does not participate in or have any knowledge of the
    
    substantive offense," United States v. Garcia, 
    917 F.2d 1370
    ,
    
    1377 (5th Cir. 1990), but argues that these conviction should be
    
    overturned since his conspiracy conviction cannot stand.     We have
    
    concluded, however, that the conspiracy conviction should stand.
    
         Formann also claims insufficient evidence to support his
    
    conviction under Count 12, for aiding and abetting Blain's
    
    misapplication of funds under 18 U.S.C. § 657.   Establishing an
    
    offense under § 657 requires the government to prove that (1) the
    
    defendant was an officer, agent or employee of, or connected in
    
    some way with, a federally insured savings and loan association,
    
    (2) he willfully misapplied funds of the association, and (3) he
    
    acted with intent to injure or defraud the association.      United
    
    States v. Hopkins, 
    916 F.2d 207
    , 215 (5th Cir. 1990).      Under this
    
    statute, "one way that the Government may prove willful
    
    misapplication of funds is by showing that a person has
    
    
                                    52
    deliberately converted bank funds to his own use or to the use of
    
    a third person, or that the person has used funds in violation of
    
    the law."    Id.   This count concerns a loan made by Blain to
    
    finance the sale of On The Point.      We find evidence from which a
    
    rational jury could conclude that (1) Formann had an undisclosed
    
    profits interest in this property, (2) he assisted in the
    
    preparation of a false appraisal on it, (3) Tannehill was unable
    
    to sell condominiums on this project and wanted out of it (4)
    
    Faulkner and Tannehill agreed on a sales price that would assure
    
    Formann and Tannehill each received over $200,000 when the
    
    property sold, (5) Blain had Empire make the loan for the sale,
    
    (6) Faulkner prevailed upon Sinclair, Hughes and Cansler to
    
    purchase seven condominiums each (7) Empire relied on Formann and
    
    Tannehill to supply appraisals, and (8) the sale was just one
    
    more of a series of inflated land sales which furthered the
    
    conspiracy by enriching at least two of the conspirators and
    
    perpetuating the appearance of a land boom where properties were
    
    rapidly selling at ever-increasing prices.     We find this evidence
    
    sufficient to support Formann's conviction as a substantive
    
    offense committed in furtherance of the conspiracy, and under a
    
    theory of aiding and abetting.
    
         2.     Other Sufficiency Claims
    
         Faulkner claims insufficient evidence to support his
    
    conviction under Count 37, a wire fraud count based on a wire
    
    transfer.    The wire transfer for approximately $6.5 million was
    
    from Ozark Service Corporation (Ozark), a subsidiary of First
    
    
                                      53
    State Building & Loan Association of Mountain Home, Arkansas
    
    (First State), another lender on I-30 projects.     Ozark was
    
    similar to Empire's subsidiary, Statewide, in that both invested
    
    directly in the I-30 projects.   The offense of wire fraud
    
    requires proof of a scheme to defraud and the use of interstate
    
    wire communications in furtherance of the scheme.      United States
    
    v. Shivley, 
    927 F.2d 804
    , 813 (5th Cir.), cert. denied, 111 S.
    
    Ct. 2806 (1991).   The indictment alleged that the Count 1
    
    conspiracy was the scheme to defraud.     As explained above, we
    
    have concluded that the conviction of all appellants on Count 1
    
    should stand.   Hence, under general conspiracy law their
    
    "culpability extends to all substantive offenses committed in
    
    furtherance of that conspiracy."      United States v. Berkowitz, 
    662 F.2d 1127
    , 1140 (5th Cir. 1981).      Further, under the wire fraud
    
    statute in particular, "[o]nce membership in a scheme to defraud
    
    is established, a knowing participant is liable for any wire
    
    communication which subsequently takes place or which previously
    
    took place in connection with the scheme."      Shivley, 927 F.2d at
    
    813 (quoting United States v. Westbo, 
    746 F.2d 1022
    , 1025 (5th
    
    Cir. 1984).   We find sufficient evidence that the wire transfer
    
    was in furtherance of the overall conspiracy described in Count
    
    1.   Evidence was submitted to support the following scenario.
    
    The wire transfer was connected with two projects known as Bahama
    
    Glen and The Cabanas.   Ozark owned an interest in the Cabanas, a
    
    project built on property earlier sold by Faulkner and Toler.
    
    Empire had funded the Ozark purchase.     The Cabana units were not
    
    
                                     54
    selling and Ozark wanted to unload them.    Tommy Nelson of First
    
    State agreed to fund the purchase of Bahama Glen in exchange for
    
    Faulkner's and Toler's agreement to help Ozark out of The
    
    Cabanas.    Like Blain and Jensen, Nelson was richly rewarded for
    
    serving as a lender on the I-30 properties.    On one occasion
    
    Faulkner and Sinclair arranged a complicated land flip whereby
    
    one Sinclair company sold property to Nelson and repurchased it
    
    from him in the course of a single closing, netting Nelson $1
    
    million.    Toler found buyers for the Cabanas and arranged for
    
    Empire to finance the sale.    The buyers include Sinclair, Kenneth
    
    Cansler, Wailen York, and Ernie Hughes.    Ozark earned a
    
    substantial profit on the sale.    Ozark then funded the sale of
    
    Bahama Glen.    Faulkner and Toler each made $1.4 million on the
    
    sale.   Hughes found investors to purchase Bahama Glen.     The money
    
    to close the Bahama Glen sale was the subject of the wire
    
    transfer alleged in count 37.    We agree with the government that
    
    the jury could conclude that "[t]he entire transaction concocted
    
    by Faulkner, Toler, Blain, and Nelson was designed to enable the
    
    co-conspirators to purchase yet another piece of inflated
    
    property, thereby enriching themselves through the funding of
    
    another loan, and to prevent Nelson's defaulting on the Cabanas,
    
    which might have alerted the bank regulators to the scheme and
    
    frightened off potential future investors."
    
         A similar analysis applies to the remaining insufficiency
    
    claims.    Faulkner claims insufficient evidence with respect to
    
    Counts 38 and 43.    These counts assert violations of 18 U.S.C. §
    
    
                                      55
    1006 by Blain, and aiding and abetting by Faulkner and Toler.
    
    They concern payments Blain received in connection with Empire
    
    loans on projects known as Spring Garden and Cheshire Creek.       A
    
    violation of § 1006 may be established by proof that (1) the
    
    defendant was an officer, agent, or employee of a federally
    
    insured savings and loan association, (2) that he knowingly and
    
    willfully participated, shared, or received, directly or
    
    indirectly, benefits through any transaction or loan of the bank,
    
    and (3) that he acted unlawfully and intended to defraud or
    
    deceive the institution or United States.    Id.   It makes no
    
    difference whether the objective of the fraud was to obtain an
    
    advantage or to cause the principal to suffer a loss.     United
    
    States v. Munna, 
    871 F.2d 515
    , 517 (5th Cir. 1989), cert. denied,
    
    
    493 U.S. 1059
     (1991).   Again, the evidence is sufficient to
    
    establish that Blain violated the statute and that this offense
    
    was in furtherance of the conspiracy.    Faulkner discussed with
    
    Sinclair and Blain his interest in purchasing a larger Lear jet
    
    through a land transaction.   He indicated that if Blain would
    
    finance the transaction Blain would receive his other Lear jet
    
    and a condominium.   Blain loaned Sinclair $1.8 million to
    
    purchase Spring Glen.   When the land was resold, Blain received
    
    the condominium, the jet, and approximately $3 million, which was
    
    received through a trustee.   Such rich rewards for Blain were in
    
    furtherance of the conspiracy, since Blain controlled Empire and
    
    made all of Empire's loan decisions.    Similar evidence was
    
    presented regarding Cheshire Creek.    A Toler company contracted
    
    
                                    56
    to buy the property.    Empire loaned approximately $2 million for
    
    the initial purchase of this property.    It was subdivided and
    
    resold by Ernie Hughes through a second, much larger loan from
    
    First Savings and Loan Association of Burkburnett.    Hughes
    
    testified that the Cheshire Creek transaction was arranged by
    
    Faulkner and Toler as a means of benefitting Blain.    Faulkner and
    
    Toler each made over $3 million from the resale.    Blain's
    
    daughters received more that $400,000 from the sale.    Blain also
    
    directed payments to three other Empire directors intended to
    
    enable them to purchase Blain's stock in Empire and allow him to
    
    retire to Colorado.    By it terms § 1006 does not require direct
    
    payment to the defendant, and covers a defendant "who
    
    participates or shares in or receives directly or indirectly"
    
    profits or benefits through any transaction or loan by a savings
    
    and loan.   Again, this evidence is sufficient to establish that
    
    Blain violated § 1006, and that this violation was in furtherance
    
    on the conspiracy.
    
          Toler complains of the wire fraud convictions related to
    
    brokered deposits.    The indictment alleged 24 counts of wire
    
    fraud for 24 separate occasions where brokered deposits were
    
    wired to Lancaster, Empire and Bell.    Six of these counts were
    
    submitted to the jury, the others having been dismissed on the
    
    government's motion.    Blain, Toler and Faulkner were all
    
    convicted on all six counts.    Evidence was presented that
    
    Faulkner, Blain and Toler were all aware of the use of brokered
    
    deposits and that such deposits were essential to supplying the
    
    
                                     57
    huge growth in deposits needed by the institutions to fund the I-
    
    30 loans.   Evidence was also offered that Faulkner and Toler paid
    
    the broker's fee on some of these deposits, that on occasion
    
    Faulkner would talk to one of the brokers, and on one such
    
    occasion had thanked him "for the money we were sending and keep
    
    up the good job and etc., etc."    As to counts 65 and 66, evidence
    
    was offered that the Bell's brokered deposits were used on a
    
    specific Faulkner project known as Faulkner Meadows II, one of
    
    the projects on which inflated appraisals were prepared and which
    
    was otherwise a part of the alleged conspiracy.    In interpreting
    
    the similar mail fraud statute, we have held that "when an
    
    individual does an act with the knowledge that the use of the
    
    mails will follow in the ordinary course of business, or when
    
    such use can reasonably be foreseen, even though not actually
    
    intended, then he/she `causes' the mails to be used" under that
    
    statute.    United States v. Shaid, 
    730 F.2d 225
    , 229 (5th Cir.),
    
    cert. denied, 
    469 U.S. 844
     (1984).     See also United States v.
    
    Bruno, 
    809 F.2d 1097
    , 1104 (5th Cir.) (cases construing mail
    
    fraud statute apply to wire fraud statute as well), cert. denied,
    
    
    481 U.S. 1057
     (1987).   We find the evidence sufficient to affirm
    
    the convictions on these counts.
    
         As to the four other counts, however, no evidence was
    
    offered that the brokered deposits described were actually used
    
    on one of the I-30 projects or were directly linked in any way to
    
    the conspiracy.   An essential element of wire fraud is the use of
    
    interstate communications in furtherance of the scheme to
    
    
                                      58
    defraud.    Id.    We think the general use of brokered deposits by
    
    Empire and Lancaster to fund the I-30 loans and, for all we know,
    
    other totally unrelated loans, is simply too little evidence to
    
    sustain these convictions.     Accordingly, we vacate the
    
    convictions of Blain, Toler, and Faulkner or Counts 52, 53, 60,
    
    and 61.37
    
    H.   RICO Points
    
         Blain, Faulkner and Toler were convicted of conspiring to
    
    violate the RICO statute, 18 U.S.C. § 1962(d), as alleged in
    
    Count 88 of the indictment.     They raise several challenges to
    
    their RICO conviction and the forfeiture ordered under the
    
    statute.    The indictment charged conspiracy to violate § 1962(c).
    
         Faulkner and Toler argue that when a defendant is charged
    
    with conspiracy to violate RICO, the government must prove that
    
    the defendant agreed to personally commit or personally aid or
    
    abet at least two predicate offenses, or actually commit two
    
    predicate acts.      See, e.g., United States v. Phillips, 
    664 F.2d 971
    , 1039 (5th Cir. 1981) (finding that defendant could be
    
    convicted of conspiring to violate RICO "so long as he committed
    
    or agreed to commit and least two separate crimes in furtherance
    
    of the conspiracy's single objective"), cert. denied, 
    457 U.S. 1136
     (1982).      Appellants claim that under this standard there is
    
    insufficient evidence to sustain the RICO convictions, and that
    
         37
              We recognize that reversing these convictions are of
    very small consolation to these appellants, since the court
    imposed sentences under these counts concurrent to other
    sentences, and since it imposed fines against Faulkner and Toler
    of only $1,000 on these counts.
    
                                       59
    the jury was erroneously instructed that "the government may
    
    establish a defendant's membership in the conspiracy by proof
    
    that he agreed that another would violate § 1962(c) by committing
    
    two acts of racketeering."    The government argues that this
    
    circuit has not squarely addressed this issue, and that the
    
    majority of circuits require only that a defendant agree with
    
    other conspirators that two predicate acts will be committed
    
    pursuant to the conspiracy.    E.g. United States v. Neapolitan,
    
    
    791 F.2d 489
    , 494-500 & n.3 (7th Cir.) (rejecting requirement
    
    that defendant agrees personally to commit two predicate acts,
    
    and concluding that the Fifth Circuit has not "definitively
    
    resolved this issue."), cert. denied, 
    479 U.S. 939
     (1986).      We
    
    need not resolve this issue.    The jury verdict form asked whether
    
    Blain, Toler and Faulkner were guilty under Count 88, and then
    
    inquired as to which racketeering acts each defendant committed
    
    or agreed to commit.   The jury checked off numerous racketeering
    
    acts as to each defendant.    It specifically found that each of
    
    the three had committed or agreed to commit wire fraud under
    
    Counts 37, 65 and 66.38   As addressed above, we find sufficient
    
         38
              The jury was further instructed that "even though you
    may have already addressed two or more of the substantive counts
    of the indictment which are charged as separate racketeering acts
    in the RICO conspiracy, the proof must show that such
    racketeering acts, if committed, were committed pursuant to an
    agreement to willfully conduct or participate in the conduct of
    the affairs of the enterprise alleged in Count 88 through a
    pattern of racketeering activity, in accordance with the
    instructions pertaining to Count 88." It was also instructed
    that "it is not enough that the alleged conspirators agreed to
    commit the acts of racketeering alleged in the indictment,
    without more, or that they agreed merely to participate in the
    affairs of the same enterprise. Instead, the government must
    
                                     60
    evidence that each violated the wire fraud statute under these
    
    counts.
    
         Faulkner and Toler also claim insufficient evidence to
    
    support the RICO forfeiture verdict under 18 U.S.C. 1963(a)(1),
    
    which provides for forfeiture to the government of "any interest
    
    [defendant] has acquired or maintained in violation of Section
    
    1962."    Faulkner and Toler were assessed $40 million and $38
    
    million penalties, respectively.      These figures were based on
    
    amounts received by Faulkner and Toler, their companies and
    
    family members.    They do not demonstrate any computational errors
    
    in these figures,39 but they argue that they should not be forced
    
    to forfeit amounts that went to their families and companies.       We
    
    find sufficient evidence that they "acquired or maintained" the
    
    amount forfeited.    The evidence showed that they had control over
    
    the disbursement of the proceeds of the land transactions, and
    
    directed the disbursements from a land sale after it was
    
    deposited in an account of their choosing.      See Russello v.
    
    United States, 
    464 U.S. 16
    , 21 (1983) ("It undoubtedly was
    
    because Congress did not wish the forfeiture provision of §
    
    1963(a) to be limited by rigid and technical definitions drawn
    
    from other areas of the law that it selected the broad term
    
    
    prove beyond a reasonable doubt that the alleged conspirators
    agreed to conduct the affairs of the enterprise through a
    `pattern of racketeering activity' as that term has been defined
    elsewhere in these instructions."
         39
              Counsel for Toler stated at oral argument: "It was a
    hot, hot market. Jim toler took advantage of the situation. He
    made 38 million dollars in a year and a half. That was not even
    disputed. I think we put that evidence in in a chart."
    
                                     61
    `interest' to describe the things that are subject to forfeiture
    
    under the statute.   Congress selected this general term
    
    apparently because it was fully consistent with the pattern of
    
    the RICO statute in utilizing terms and concepts of breadth.");
    
    Neapolitan, 791 F.2d at 495 (noting that RICO must be liberally
    
    construed to effectuate its remedial purposes); United States v
    
    BCCI Holdings (Luxembourg), S.A., 
    795 F. Supp. 477
    , 480 (D.D.C.
    
    1992) ("In light of the deliberately broad language of § 1963 and
    
    the ambitious purpose of RICO, interpretation of the term
    
    `interest' to include the assets of a racketeering corporation's
    
    alter ego clearly is warranted.").
    
         Appellants also argue that the evidence is insufficient to
    
    show that the proceeds would not have been acquired but for the
    
    defendant's racketeering activity.     United States v. Ofchinick,
    
    
    883 F.2d 1172
    , 1183 (3d Cir. 1989), cert. denied, 
    493 U.S. 1034
    
    (1990) and other cases impose such a "but for" test.    However, we
    
    do not agree with appellants' suggestion that the amounts subject
    
    to forfeiture must be directly linked or traced to the specific
    
    racketeering acts proved.   For example, we do not agree with
    
    Faulkner that the brokered deposits made the basis of one
    
    racketeering act found by the jury must be tied to a particular
    
    loan.   We agree with the government that the forfeiture should
    
    reflect the scope of the offense.     The RICO offense here is not
    
    merely the commission of particular predicate acts, but a
    
    conspiracy to "conduct or participate, directly or indirectly, in
    
    the conduct of" an enterprise.   18 U.S.C. § 1962(c).    See United
    
    
                                     62
    States v. Elliot, 
    571 F.2d 880
    , 902 (5th Cir.) ("[T]he object of
    
    RICO conspiracy is to violate a substantive RICO conviction --
    
    here, to conduct or participate in the affairs of an enterprise
    
    through a pattern of racketeering activity -- and not merely to
    
    commit each of the predicate crimes necessary to demonstrate a
    
    pattern of racketeering activity."), cert. denied,    
    439 U.S. 953
    
    (1978).    We conclude that sufficient evidence was offered as to
    
    the profits earned by appellants from the overall RICO
    
    conspiracy.40
    
         Appellants also complain that the court improperly
    
    instructed the jury that a violator of RICO "shall, as part of
    
    the penalty, forfeit any interest he has acquired or maintained
    
    in violation of Section 1962."   They claim that the instruction
    
    should not have been written in mandatory language, and instead
    
    should have told the jury that it "may" direct a forfeiture.
    
    They cite United States v. Cauble, 
    706 F.2d 1322
    , 1348 (5th Cir.
    
    1983), cert. denied, 
    465 U.S. 1005
     (1984), where we stated that a
    
    proper jury instruction should "include language that suggests
    
    that a jury may find an interest or contractual right forfeitable
    
    . . . ."    There the court was addressing whether there must be a
    
         40
              Compare United States v. Madeoy, 
    912 F.2d 1486
    , 1495
    (D.C. Cir. 1990) ("The appellants claim that their forfeiture
    should be reduced to reflect only the proceeds from the 11
    properties that the jury identified on the verdict form.
    Contrary to the appellants' assertion, however, the scope of
    their RICO enterprise is not necessarily limited to the 11
    properties that the jury specifically indicated in its
    substantive RICO verdict. The district court correctly
    instructed the jury that it could convict the appellants under
    RICO without considering whether they committed every predicate
    act."), cert. denied, 
    498 U.S. 1105
     (1991).
    
                                     63
    nexus between the defendant's conduct and the property claimed.
    
    The case cannot be read to suggest that forfeiture is a matter
    
    left to the jury's discretion once the elements of forfeiture are
    
    established.   Here the instruction properly followed the statute,
    
    which provides that whoever violates "section 1962 . . . shall .
    
    . . forfeit . . . any interest he has acquired or maintained in
    
    violation of section 1962 . . . ."    18 U.S.C. § 1963(a) (emphasis
    
    added).
    
                                 CONCLUSION
    
         The convictions of Faulkner, Blain and Toler on Counts 52,
    
    53, 60 and 61 are vacated.   In all other respects the judgments
    
    of conviction and sentences are affirmed.
    
    
    
    
                                     64
    

Document Info

DocketNumber: 92-08037

Filed Date: 3/18/1994

Precedential Status: Precedential

Modified Date: 3/3/2016

Authorities (68)

United States v. Iwegbu , 6 F.3d 272 ( 1993 )

Berger v. United States , 295 U.S. 78 ( 1935 )

Kotteakos v. United States , 328 U.S. 750 ( 1946 )

Albernaz v. United States , 450 U.S. 333 ( 1981 )

Williams v. United States , 458 U.S. 279 ( 1982 )

Russello v. United States , 464 U.S. 16 ( 1983 )

United States v. Lane , 474 U.S. 438 ( 1986 )

Zafiro v. United States , 506 U.S. 534 ( 1993 )

Albert Hugh Jolley v. United States , 232 F.2d 83 ( 1956 )

United States v. Carlos Marcello , 423 F.2d 993 ( 1970 )

United States v. Paul L. Wayman, Paul Howard Noe Alias H. P.... , 510 F.2d 1020 ( 1975 )

united-states-v-wayne-maurice-james-aka-offaga-quaddus-ann-lockhart , 528 F.2d 999 ( 1976 )

United States v. Lonnie M. Brown, Robert L. Newsome, James ... , 555 F.2d 407 ( 1977 )

United States v. George Keith Williams , 568 F.2d 464 ( 1978 )

United States v. John C. Herring, A/K/A Scooter , 568 F.2d 1099 ( 1978 )

united-states-v-james-alford-elliott-jr-robert-ervin-delph-jr , 571 F.2d 880 ( 1978 )

United States v. Edward Rodriguez, A/K/A Rick, Thomas J. ... , 585 F.2d 1234 ( 1978 )

United States v. Robert J. L'hoste, R. J. L'Hoste & Company,... , 609 F.2d 796 ( 1980 )

United States v. Edward Rodriguez, A/K/A Rick, Thomas J. ... , 612 F.2d 906 ( 1980 )

united-states-v-joseph-gonzalez-alvarado-jr-rogelio-arenas-ernesto-j , 647 F.2d 537 ( 1981 )

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