USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 95-2146

UNITED STATES OF AMERICA,

Appellee,

v.

DENNIS JOSLEYN,

Defendant, Appellant.

____________________

No. 95-2147

UNITED STATES OF AMERICA,

Appellee,

v.

JOHN W. BILLMYER,

Defendant, Appellant.

____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]

___________________

____________________

Before

Selya, Cyr and Boudin,

Circuit Judges.
______________

____________________

David W. Long, with whom Joseph E. Zeszotarski, and Poyner &

_____________
_____________________
________
Spruill, LLP were on brief for appellant Billmyer.
____________

Paul Twomey, with whom Twomey & Sisti Law Offices was on brief
___________
__________________________
for appellant Josleyn.

Michael J. Connolly and Donald A. Feith, Assistant United Stat

___________________
_______________

Attorneys, with whom Paul M. Gagnon, United States Attorney, was on

______________
brief for appellee.

____________________

October 15, 1996

____________________

CYR, Circuit Judge.

CYR, Circuit Judge.
______________

Hampshire

returned guilty

Billmyer and

former

American

federal jury

verdicts against

Dennis R. Josleyn

employer,

appellants John

for conspiring to

Honda

Motor

sitting in

New

W.

defraud their

Company ("Honda"),

by

accepting money and other valuable consideration from prospective

Honda

dealers in

exchange for

lucrative dealership

rights and

sundry advantage.

fraud) (1994).

See 18 U.S.C.
___

371 (conspiracy) & 1341 (mail

Verdicts were returned also against

racketeering, conspiracy, and mail fraud, see id.

___ ___

Josleyn for

1962(c), 371

& 1341, relating, inter alia, to kickbacks received in connection

_____ ____

with national

programs

sales

for Honda

training seminars

dealers.

principally contend that

the

On

dealer

advertising

appeal, Billmyer

and Josleyn

New Hampshire was an improper venue for

franchise conspiracy charge in

insufficient evidence

and

Count II and

that there was

to support the guilty verdicts.

the district court judgments in all respects.

I
I

BACKGROUND1
BACKGROUND
__________

We affirm

Following the second OPEC oil embargo in 1979, American

consumer demand for the energy-efficient automobiles manufactured

by

ter.

Honda skyrocketed, and remained strong

Just

as demand in the

for a decade thereaf-

United States surged, the

government imposed export restraints

Japanese

on its carmakers, and Honda

____________________

1We recite

the background

have found, viewing the

the

verdicts.

facts the jury

reasonably could

evidence in the light most

See United States v. Bello-Perez,

___ ______________
___________

666 (1st Cir. 1992).

favorable to

977 F.2d 664,

was unable to

States.

These

meet the demand for its

uncommonly favorable

automobiles in the United

market conditions

endured

throughout much of the 1980s, causing enterprising car dealers in

the United

States to

compete fiercely (and

for exclusive Honda franchises

narily

large

profit margins

sometimes unfairly)

in anticipation of the extraordi-

available

on

such popular

Honda

models as the Civic, Prelude, and Accord.

Appellant

John Billmyer

sales representative in

management

Billmyer

levels

had

been

in

joined

Honda

1970, and rose rapidly

its

field

appointed

sales

as a

through all four

division.2

regional sales

district

manager

By 1977,

for

the

eastern United

States.

position at Honda

top field

sales

and soon

moved

office to headquarters in California.

When

national

from its New Jersey

Honda

By 1980, he

launched a

line of

held the

sales manager

luxury automobiles in

1985, Billmyer

became national sales manager for the new Acura Division as well.

He

remained

the top

Honda field

sales

manager in

the United

States until he retired on March 31, 1988.

After Billmyer

retired, he was

succeeded as

national

sales manager by S. James Cardiges, his closest associate at Hon-

da.

Billmyer had hired Cardiges

the

Baltimore/Washington

D.C.

as the Honda sales manager

district in

1977,

and

for

rapidly

____________________

2At Honda,
day-to-day

district sales managers in

contact

with their

respective zone sales managers.

ble

for Honda sales

dealers

the field maintained

and

reported to

their

Each zone manager was responsi-

in several states.

Zone

managers in turn

reported to
regional

their respective regional

managers each supervised

sales managers.

Honda sales in

The two

the field for

roughly one-half the country.

promoted him through

the ranks:

Atlantic states in 1979,

largest and

from zone

to zone manager for the west coast (the

most prestigious zone)

manager

for the

western

western

regional sales

manager for the mid-

in 1981,

United States

manager,

in

to regional

late 1982.

Cardiges worked

closely

sales

While

with

Billmyer.

The two

often traveled

business trips within the

Cardiges succeeded

He

work together

United States and overseas.

Billmyer as

resigned in April 1992

to

Finally,

national sales manager

by "mutual agreement"

and took

in 1988.

with Honda, to

forfend termination.

Appellant Dennis

1983, and followed a

R.

Josleyn joined

similar path:

Honda in

assistant sales

January

manager for

the mid-Atlantic zone in 1985; mid-Atlantic zone manager in March

1987; and zone manager

for the west coast, resident

nia, in

position he held

early 1991, a

in Califor-

until he resigned

from

Honda in April 1992.

Throughout

appellants'

tenure

with Honda,

corporate

policy and procedures for awarding new Honda dealerships were set

forth

in the

Manual."

"Honda

The first step was to

for a new dealership

through

Automobile Dealer

in

reference to

Appointment

Procedures

identify a geographic area ripe

Honda terminology an "open point"

marketing

and

demographic studies,

data

relating to competition, and

an assortment of other information.

Next, the district

sales managers for

and zone

consideration were to "prospect"

the

the area

for a qualified dealer

under

to fill

"open point," then compose a slate of three or more suitable

candidates.

Honda policy directed that

sales managers evaluate

candidates according to their experience in automobile retailing,

available capital, personal reputation,

and the quality of their

location and

ultimate aim that

facilities, all

with the

Honda

dealerships be awarded to the best candidates.

Honda sales managers at

_____ _____ ________ __

each level, see supra note

____ _____ ___ _____

2,

were required to participate in recommending and approving candi____ ________ __ ___________ __ ____________ ___ _________ ______

dates
_____

for
___

any "open
___ ____

point."
_____

With

the possible

exception of

Billmyer and Cardiges, in their respective capacities as national

sales manager, no sales manager at any level possessed unilateral

__ _____ _______ __ ___ _____ _________ __________

authority to award

a new dealership.

Furthermore, approval was

_________ __ _____

required

from

_ ___ __________

managers

representing

the

parts,

service, and

market-representation departments as well.

Once selected for an

approval of sales managers

"open point" dealership, with the

at the district, zone, regional,

and

national levels, a successful candidate received a "Letter of In-

tent"

("LOI") from Honda via United States mail, authorizing the

prospective

certain

dealer to

conditions, such

specified time.

prospective

property

open the

Until the

dealer,

of Honda.

as

constructing a

LOI

rights

its competitors, Honda

for its dealership franchises.

to accept money or

these

Nor were

dealership upon

facility within

franchise itself was

however,

Like

new, exclusive

issued to

the

remained

the

exacted no fee

Honda personnel allowed

other consideration of significant value

for

assistance in obtaining a Honda franchise.

In addition

to Honda policy

and procedures

governing

new

dealerships, its

employees

Honda

"conflict of

from accepting

dealer and

anything of

from acquiring

Honda or Acura dealership.

interest" policy

prohibited

significant value

or holding

any interest

from a

in a

The "conflict of interest" policy was

disseminated among all Honda sales managers, who were required to

sign disclosure

managers

at

forms

indicating

every level

ongoing

were duty-bound

respective subordinates honored the policy

compliance.

to ensure

Sales

that their

prohibiting conflicts

of interest, and report all violations to their senior manager or

the Human Resources Department.

Notwithstanding

however,

there

interest" policy.

these

were numerous

From

rigorous

violations

internal

of

procedures,

the "conflict

the late 1970s through the

early 1990s,

sales managers at every level

commonly accepted money and

able

watches,

gifts, including

Rolex

suits, from prospective dealers

dealers

seeking

increased Honda

furniture, and

vying for "open points"

automobile

of

valu-

business

or from

allocations.

Yet

their illicit activities apparently escaped notice by nonpartici-

pating sales managers and dealers for years.

Finally,

in 1991

gered by an uninvolved

who provided

a Honda

an internal investigation

district sales representative in Arkansas

executive vice-president with

payoffs involving Cardiges, then

a zone manager.

was trig-

evidence of

the national sales manager, and

By early 1992, Honda had begun "cleaning house"

and Cardiges had resigned.

An

extensive federal criminal inves-

tigation ensued.

On

March 11, 1994, a

shire returned an indictment

federal grand jury

in New Hamp-

against Billmyer, Josleyn, Cardiges

and two lower-level Honda sales managers responsible for

England

region,

David

L.

Pedersen

and

Damien

Superseding indictments were returned against

and

Cardiges in

October

1994 and

Budnick, Cardiges, and Pedersen

cooperated with the

government.

January

C.

the New

Budnick.3

Billmyer, Josleyn,

1995.

Ultimately,

entered into plea agreements and

Cardiges and Pedersen

were key

government witnesses at trial.

The second superseding

indictment charged Josleyn

and

Cardiges, in Count I, with a pattern of racketeering in violation

of the

CO"), 18

Racketeer Influenced and Corrupt

U.S.C.

1962(c) (1994).

As

Organizations Act ("RI-

Racketeering Act 1,

it

alleged that Josleyn and Cardiges had persuaded Honda to select a

particular outside vendor (from which the defendants had received

kickbacks) to conduct sales training seminars for Honda salespeo-

ple employed in New Hampshire and elsewhere in the United States.

Racketeering

Acts 2

associations

which pooled

dealers to defray

through 8

related to

monies

regional advertising

advanced by

their local Honda advertising

individual Honda

costs.

Josleyn

and Cardiges were charged with causing Honda to match the contri____________________

3Pedersen

had joined Honda in July 1979 as a district sales

manager for Maine, New Hampshire, Vermont, and

upstate New York.

Within a year he was transferred to Minnesota.

Around June 1982,

he

became a district sales manager in

northern Ohio; in 1985, a

district sales manager in the new Acura Division, responsible for

territory

1987,

extending from

Maine to

Minnesota; and,

an assistant zone manager, responsible

included New Hampshire.

in March

for the area which

Budnick, a district sales

manager also

responsible for New Hampshire, reported directly to Pedersen.

butions made

by the Honda dealers to

associations, on the condition

hire

a particular

these regional advertising

that the advertising associations

vendor (controlled

provide the advertising services.

by Josleyn's

brother) to

After receiving payments from

the regional advertising associations, the vendor allegedly

made

kickbacks

to

Josleyn and

Acts

described

in

Count

Cardiges.

I alleged,

Other Racketeering

inter
_____

alia,
____

that Josleyn

and

Cardiges received kickbacks for awarding numerous LOIs to various

dealership

candidates in

California,

Maryland,

New York,

and

other states.

Count

conspiring

to

II charged Billmyer,

defraud Honda

valuable

consideration from

exchange

for

(conspiracy)

LOIs

and

or

Count

Cardiges

with accepting

relation

to the sales

by

Cardiges, and Josleyn with

accepting

dealers and prospective

other preferred

IV

payments and

(mail fraud)

kickbacks

treatment.

charged

from 1989

training seminars.

other

dealers in

Count III

Josleyn

through 1992,

and

in

Overall, Josleyn was

charged in all four counts, whereas Billmyer was charged with the

Count II "dealer franchise" conspiracy only.

Trial

began on

Joseph A. DiClerico, Jr.4

es,

February 7,

1995.

the government

Billmyer opted

Chief Judge

After presenting thirty-five witness-

including Cardiges and Pedersen

around the country,

1995, before

to present

and many Honda dealers from

rested its case

no

on May

witnesses, while

10,

Josleyn

____________________

4Three
a

weeks into the trial, we were called upon to resolve

discovery dispute. See United States v. Billmyer,

___ ______________
________

(1st Cir. 1995).

57 F.3d 31

mounted

a defense based on

the theory that

top Japanese execu-

tives in Honda had condoned the activities alleged in the indict-

ment.

At the

close of the evidence,

appellants' renewed

the district court denied

Rule 29 motions for

judgments of acquittal.

See Fed. R. Crim. P. 29(a).

___

The case went

the

to the jury on May 19.

deliberations, guilty

Billmyer

and Josleyn.

of acquittal,

verdicts were

Seven days into

returned

against both

After denying their motions for judgments

the district court

sentenced Billmyer to

a five-

year prison term and a $125,000 fine; and Josleyn to six and one-

half years

each

in prison on Count

I and a five-year

prison term on

of the three remaining counts, all to be served concurrent-

ly.

II
II

DISCUSSION
DISCUSSION
__________

A. Joinder of Defendants
A. Joinder of Defendants
_____________________

As in the district

on

court, Josleyn and Billmyer contend

appeal that their joint indictment and trial violated Fed. R.

Crim. P. 8.5
____________________

5Rule 8 provides:

(a) Joinder of Offenses.

(a) Joinder of Offenses.
be

charged in the same

Two or more offenses may

indictment or information in a

separate

count

for

each

offense

charged, whether felonies or

of
same
____

the same or similar

____ __ _______
act
___

if

the

misdemeanors or both, are

character or are
_________

or transaction
__ ___________

offenses

or on
__

transactions connected together

____________

two

based on the

or more

or constituting

acts or
____ __
parts

of a common scheme or plan.

______ ______ __ ____
(b) Joinder of Defendants.
(b) Joinder of Defendants.

Two or more defendants

may be charged in the same indictment or information if

they

are alleged to have

_______

participated in the same act

____________
____ ___

10

The federal

dated trials tend to

courts have long recognized

that consoli-

promote judicial economy, conserve prosecu-

torial resources, and foster the consistent resolution of factual

disputes common to properly joined defendants.

States v.
______

See, e.g., United

___ ____ ______

MacDonald & Watson Waste Oil Co., 933 F.2d 35, 60 (1st
________________________________

Cir. 1991).

In resolving a Rule 8(b) misjoinder claim, the trial

court must examine the indictment to determine whether there is a

factual basis

for

joining the

defendants.

United States
______________

Boylan, 898 F.2d 230, 245 (1st Cir.), cert. denied, 498
______
_____ ______

(1990).

in

v.

U.S. 849

While Rule 8 harbors the potential for unfair prejudice

consolidated trials, see King v. United States, 355 F.2d 700,

___ ____
_____________

703-04 (1st Cir. 1966) (Aldrich, C.J.) (noting risk that jury may

infer

guilt by association), the

rule nonetheless may be gener-

ously construed in favor of joinder, given the protective discre-

tion vested in the trial court under Fed. R. Crim. P. 14.

The district court apparently

II

dealer

franchise

conspiracy

charge

Josleyn warranted their joinder under

plainly

would

have

contained only Count

1228,

1237-38 (1st

(1995),

been

concluded that the Count

Rule 8(b).

unexceptionable

II, see
___

against

had

United States v.
_____________

Cir. 1994),

cert. denied,
_____ ______

Billmyer

Its conclusion

the

indictment

Morrow, 39
______

115 S.

or had the conspiracy alleged in Count II clearly encom-

transaction or in the same series of acts or trans____ ______ __ ____

actions

constituting
____________

an offense
__ _______

or

offenses.

Such

defendants may be charged in one or more counts together

F.3d

Ct. 1421

____________________

or

and

or separately and all of the defendants need not be

charged in each count.

Fed. R. Crim. P. 8 (emphasis added).

11

passed all

substantive offenses alleged in the

United States
______________

Otherwise,

criminal

v. Arruda,
______

joinder under

715 F.2d

Rule 8(b)

671,

indictment.

678 (1st

was problematic

See
___

Cir. 1983).

unless the

acts alleged in all counts were part of the same series

__ ___ ______
____ ______

of acts or

transactions.

See United States v.

___ _____________

Yefsky, 994 F.2d

______

885, 895 (1st Cir. 1993).

A misjoinder of defendants

requires a reversal only if

the resulting prejudice "`had substantial and injurious effect or

influence in determining the jury's

verdict.'"

United States v.
_____________

Lane, 474 U.S. 438, 449 (1986) (mandating "harmless error" review
____

of Rule 8(b) misjoinder) (quoting Kotteakos v. United States, 328

_________
_____________

U.S. 750, 776 (1946)).

in

As

all events to conduct

it would be incumbent upon this court

the "harmless error" analysis mandated

in Lane were we to conclude that a

____

misjoinder occurred, see id.,

___ __

and

itself is far

since the misjoinder question

will assume,

without deciding,

from clear, we

that the misjoinder

occurred as

claimed by Billmyer, and proceed directly to the "harmless error"

inquiry.

See United States v. Edgar, 82 F.3d 499, 504 (1st Cir.)

___ _____________
_____

(bypassing misjoinder

question where any

error ultimately would

prove harmless), petition for cert. filed, 65 U.S.L.W. 3110 (U.S.

________ ___ _____ _____

July 16, 1996) (No. 96-178).

We conclude that any misjoinder was

harmless.

Not

only did

presentations to

the trial

the

the

parties

marshal their

minimize prejudicial spillover,

the district

court prudently and

evidentiary

but throughout

carefully cautioned

jury to consider the evidence against each individual defen-

12

dant.

No

less importantly,

Billmyer's retirement

from Honda,

prior to the time Josleyn launched the dealer advertising associ-

ation and sales training schemes,

unquestionably facilitated the

individualized factfinding

to which

entitled from the jury.

Cf.
___

focus

each

defendant

was

Morrow, 39 F.3d at 1235-36 (errone______

ous admission of hearsay under coconspirator exception held to be

"harmless"

given distinctiveness

of two

fraudulent

schemes).

Finally, at the close of all the evidence, the trial judge gave a

careful cautionary instruction, once

again reminding the jury to

consider the

Lane, 474
____

evidence against each defendant

U.S. at 450 (limiting

individually.

See
___

instructions mitigate prejudice

from misjoinder).

Although

these

another case, the evidence

safeguards may

army

of

former

Billmyer's proteg

Honda

appellants.

in

See Randazzo, 80 F.3d at 628.

___ ________

executives,

and eventual

See Lane,
___ ____

evidence of guilt);

are

Honda

dealers, presented

have sufficed

against both Billmyer and Josleyn can

only be described as overwhelming.

An

not

successor, as well

a wealth

474

including

of telling

U.S. at

450

Cardiges,

as numerous

evidence against

(noting overwhelming

see infra Section II.B.3.

___ _____

Consequently, we

persuaded that no aspect of the jury's decision was substan-

tially influenced by any misjoinder.

See O'Neal v. McAninch, 115

___ ______
________

S. Ct. 992, 995 (1995).

B.
B.

Sufficiency of the Evidence and

Sufficiency of the Evidence and
_______________________________
Venue (Franchise Conspiracy Count)
Venue (Franchise Conspiracy Count)
_________________________________

The jury found that both appellants participated in the

13

dealership franchise

appellant

conspiracy alleged

seriously disputes

that he

in Count II.6

conspired with

Neither

Cardiges.

Rather, their principal contention is that there was insufficient

evidence

to prove,

participated in

maintain, was

beyond a
______ _

the same

essential to

reasonable doubt,
__________ _____

that

conspiracy with Pedersen,

establish both the

they both

which, they

substantive con-

spiracy charge in Count II and proper venue in New Hampshire.

___

their contention

confuses the

these two distinct

standards of proof

issues, and the record

government readily met both, appellants'

As

applicable to

demonstrates that the

convictions under Count

II must be affirmed.

1.
1.

The

Standard of Proof
Standard of Proof
_________________

unchallenged instructions

apprised the

jury that

the government

was

reasonable doubt,

required to

prove four

in order to prevail

more persons entered into

elements, beyond

on Count II:

(i) two or

the unlawful agreement charged

in the

indictment; (ii) the particular defendant, knowing the purpose of

the agreement,

knowingly and

willfully became

a member

of the

conspiracy; (iii) some member of the conspiracy knowingly commit-

ted at least one alleged

overt act; and (iv) at least

one overt

____________________

6Count II

alleged

that Billmyer,

Josleyn,

Cardiges,

and

others known and unknown, conspired to defraud Honda by accepting

money and other valuable consideration in exchange for LOI rights

and

other preferential

prospective
franchise
District

dealers.
conspiracy

Only one
alleged

of New Hampshire.

an assistant
had

treatment to

zone sales

various Honda

overt act in
in Count

New Hampshire,

furtherance of the
took

place

in the

It alleged that David Pedersen, then

manager responsible for

recommended one Thomas Bohlander for

Nashua,

II

dealers and

in return

New Hampshire,

an Acura dealership in

for approximately

$18,000 in

college tuition payments for Pedersen's son.

14

act was committed in

furtherance of the conspiracy.

See, e.g.,
___ ____

United States v. Sawyer, 85 F.3d 713, 714 (1st Cir. 1996) (citing
_____________
______

United States v. Frankhauser, 80 F.3d 641, 653 (1st Cir. 1996));

______________
___________

United States v.
______________

denied, 115
______

Brandon, 17
_______

S. Ct. 80

(1994).

F.3d 409,

428 (1st

Thus, the jury

Cir.), cert.
_____

need only

have

found

beyond a

reasonable doubt

with at least one

that each

appellant conspired

other person (e.g., Cardiges), and

not neces-

sarily with Pedersen as well.

Putting aside for the moment the question of guilt, see

___

infra
_____

Section

II.B.3, it

Pedersen's role in the

to

establish

is

adequate

evidence of

dealer franchise conspiracy was essential

New Hampshire

Without objection,

clear that

as a

the district

proper

venue for

court instructed the

Count II.7

jury that

the government must establish, by a preponderance of the evidence

_____________

(rather than beyond a

and

Josleyn

reasonable doubt), that Pedersen, Billmyer

joined the

Count II

conspiracy and

that Pedersen

committed the alleged overt act involving the Acura dealership in

Nashua,

New Hampshire.

See
___

United States v.
_____________

Cordero, 668 F.2d

_______

32, 45 n.18 (1st Cir. 1981) (applying preponderance standard,

as

venue is not

6.

an element

of conspiracy offense);

supra note
_____

____________________

7Venue rights
Const. art. III,
F.2d

are guaranteed by the

2, cl. 3;

1289, 1293 (1st Cir.

Constitution, see U.S.

___

United States v. Georgacarakos, 988

_____________
_____________
1993), and prescribed

by the Federal

Rules of Criminal Procedure, see Fed. R. Crim. P. 18 ("Except

___

as

otherwise permitted by statute or by these rules, the prosecution

shall be had in a district in which the offense was committed.").

Venue

"concerns only the place

where the case

may be tried[,]"

whereas jurisdiction "has to do with the authority

court

to try

a case."

Criminal Procedure
___________________

Wayne R.

LaFave &

or power of a

Jerold H.

Israel,

16.1, at 334 (1984 & Supp. 1991) (footnotes

omitted).

15

Thus,

consistent

with

conspiracy and venue,

the unchallenged

jury

as well as applicable

instructions

on

law, the government

could establish venue in New Hampshire by only a preponderance of

the

evidence,

but it

was

required to

prove

each appellant's

participation in the conspiracy beyond a reasonable doubt.8

nal

juror

2.
2.

Standard of Review
Standard of Review
__________________

We

will uphold the verdicts under Count II if a ratio-

could have

alleged conspiracy

found

beyond a

each

substantive

element of

reasonable doubt, United

the

States v.

______________

DiMarzo, 80 F.3d 656,

_______

660 (1st Cir.), petition for

________ ___

No. 96-5578 (U.S. Aug.

derance

of the

credibility

13, 1996), and proper venue by

evidence, Cordero,
_______

issues

inference drawn,

in

cert. filed,
_____ _____

are to

be

668

resolved,

the light

F.2d at

45 n.18.

and every

most favorable

a prepon-

All

reasonable

to the

verdict.

DiMarzo, 80 F.3d at 660; United States v. Lam Kwong-Wah, 924 F.2d

_______
_____________
_____________

298, 301

(D.C. Cir.

entire record

1991) (venue).

discloses ample

thorough review

evidentiary support for

of the

the ver-

____________________

8The

following

explanation

exposes

the

fallacy

unitary standard of proof urged by appellants.

[T]he
permit

evidence

may

reasonable

individual was

well

be

inferences

sufficient to
that a

given

more likely than not a member

in

the

of the
given

alleged
act in

conspiracy and
furtherance of

within the district

performed

the conspiracy

of prosecution,

thereby

satisfying the venue requirement, even if the

jury finds the same evidence not sufficiently
persuasive to cause
sessing

it, for purposes of

guilt, to draw

as-

those inferences be-

yond a reasonable doubt.

United States v. Rosa, 17 F.3d 1531, 45 n.18 (2d Cir.) (citation

______________
____
omitted), cert. denied, 115 S. Ct. 211 (1994).
_____ ______

16

dicts against each appellant.

3.
3.

Guilt
Guilt
_____

The Count II conspiracy

particular

defendant and at least

tacitly agreed to commit a federal

660.

The government must

charge required proof that the

one other person expressly or

offense.

have shown that

DiMarzo, 80 F.3d at
_______

the defendant volun-

tarily participated to promote a criminal objective.

F.3d

at 428.

When, as in

goal

of the

conspiracy, the

intent to use

able.

conspiracy

government must

is an alleged

prove either

the

the mails or that such use was reasonably foresee-

Yefsky, 994 F.2d

______

901 F.2d 1132,

this case, mail fraud

Brandon, 17
_______

1137 (1st

differs from

at 890; see also United States

___ ____ _____________

Cir.) (noting that

v. Dray,
____

intent element

substantive mail fraud),

in

cert. denied,

_____ ______

498 U.S. 895 (1990).

familiar

with

identities

all the

of

Innamorati,
__________

A particular defendant need not have

all

details of

other

the

conspiracy or

conspirators.

been

with the

United States
______________

v.

996 F.2d 456, 470 (1st Cir. 1993), cert. denied, 510
_____ ______

U.S. 1120 (1994); United States v. Bello-Perez, 977 F.2d 664, 668
_____________
___________

(1st Cir. 1992).

Billmyer,

brief

overview

Cardiges, and

leaves

other Honda

tively, conspired to defraud

no

reasonable

sales

doubt

that

executives, respec-

Honda by accepting valuable consid-

eration for awarding dealership franchises and other preferential

treatment to Honda dealers and prospective dealers.

a.
a.

Billmyer
Billmyer
________

As

early

as

1979,

while Billmyer

was

the

eastern

17

regional sales manager,

Cardiges, as zone

Atlantic states, accepted

in

a $10,000 payment from

Philadelphia, and split

early

it with Billmyer.

1980, Cardiges presented Billmyer

worth as much as $15,000

manager for the

mid-

a Honda dealer

In

late 1979 or

with a gold Rolex watch

from a large Honda dealer in

the Wash-

ington,

D.C. area.

continuing

each year

Beginning

through 1992,

with the 1984

holiday season and

Cardiges received

from John Rosatti,

Rosatti told Cardiges that he

a Honda

$20,000

to $25,000

dealer in New

York City.

was paying Billmyer also, because,

as Cardiges testified at trial, like other dealers Rosatti wanted

"favorable

treatment, wanted more

automobiles, more franchises,

and wanted the ability to have the ear of the

people who were in

power at Honda."

Cardiges and

Billmyer both helped a

Hendrick acquire approximately thirty

Honda and Acura franchises

in various

states, including Texas, Georgia,

In return,

Hendrick helped

Cardiges buy a

from which Cardiges later realized

dealer named Rick

and the Carolinas.

California residence

a $250,000 gain.

Thereafter,

Hendrick defrayed approximately $150,000 in interest payments

a loan Cardiges

had obtained to

Hills, California.

intimated

to

home in

Laguna

During this same 1989-92 time frame, Hendrick

Cardiges

Billmyer's home in Palm

from Billmyer

buy a $700,000

on

that

he

was

Springs as well.

involved

in

Cardiges

financing

also learned

that Hendrick had provided Billmyer with a top-of-

the-line BMW.

Cardiges

described

periodic

18

payoffs

from

one Marty

Luftgarten, who

owned dealerships

and southern California.

in New

Jersey, Philadelphia,

For example, at the grand opening of a

Luftgarten dealership

during the mid-1980s,

Billmyer, Cardiges,

and two

other

sales managers,

Kutchera

Conway,

gathered in

Honda

a conference

each an envelope containing

season,

another

certificates from

dealer

Bill

room where

$5,000 in cash.

customarily sent

and

Jeff

Luftgarten handed

Around

the holiday

Cardiges

$5,000 gift

Neiman-Marcus for both Cardiges

and Billmyer.

See Boylan, 898 F.2d at 242 (noting that defendants often cooper___ ______

ated with one

replete with

another by

collecting payments).

other evidence

of cash

The record

payments from

is

dealers and

lavish shopping trips to Hong Kong.

b.
b.

Josleyn
Josleyn
_______

Similarly, there was ample

evidence to enable a ratio-

nal jury to find beyond a reasonable doubt that Josleyn conspired

with

Cardiges and others to defraud Honda in connection with the

Honda dealership franchises.

for

the west coast, Josleyn

Joe Pope,

to pay

In early 1991, while

arranged for a

$150,000 for

the "open

zone manager

"friend" back east,

point" in

Elk Grove,

California.

Josleyn approached Cardiges, national sales manager,

and

Rivers,

Robert

States, and

regional

manager for

advised that there would

the

western

be money in it

them if Pope were to receive the Elk Grove dealership.

ter, Cardiges,

United

for all of

Thereaf-

Rivers, and Josleyn, in direct violation of Honda

procedure,

decided

not

to

prospect

for

suitable

dealership

candidates, and awarded the Elk Grove franchise outright to Pope.

19

As

promised,

Pope issued

a $150,000

check

payable to

Gary &

Associates, a company controlled by Josleyn and his brother Gary.

Josleyn in turn gave Cardiges and Rivers each $50,000 in cash.

Cardiges testified that Ed

Temple, a former Honda zone

manager, approached

Frink,

him in the summer

dealer interested

in

the

of 1991 in behalf

of Bob

Folsom, California

point.

Temple had accepted payoffs from dealers while employed by Honda,

and

after

leaving the

Blakely Consultants

from dealers seeking

told

for

company in

established a

firm

to facilitate payments to Honda executives

new Honda franchises.

Simply put,

Temple

Cardiges that Frink was willing to pay Cardiges and Josleyn

the Folsom dealership.

the Folsom LOI, and

On August 5,

on the same day

tants $500,000 for services rendered.

wrote

1989

a $166,666 check to

Josleyn.

income tax

Frink paid Blakely

Three days later,

Magnum Marketing, a

Cardiges reported

his own 1991

1991, Cardiges signed

Consul-

Temple

company owned by

$166,666 from Blakely Consultants on

return, although Temple

had agreed

hold Cardiges' one-third share until Cardiges left Honda.

to

We need

belabor the

ample evidence to enable the

a reasonable

doubt, that

point

as there

was

jury reasonably to conclude, beyond

Josleyn was a

dealership franchise conspiracy.

4.
4.

no further,

member of the

Count II

See Boylan, 898 F.2d at 242.

___ ______

Venue
Venue
_____

As a general rule,

venue in a conspiracy case

depends

upon whether an overt act in furtherance of the alleged conspira-

cy occurred in the

trial district.

20

United States
_____________

v. Uribe, 890
_____

F.2d 554, 558 (1st

The

Cir. 1989); see

___

18 U.S.C.

3237(a)

(1994).

defendant need not have been physically present in the trial

district during

the conspiracy.

F.3d 20, 24-25 (1st

United States v.
_____________

Santiago, 83
________

Cir. 1996); see, e.g., Cordero,

___ ____ _______

668 F.2d at

43-44 (furthering drug importation conspiracy with phone calls to

undercover

DEA

agent

Georgacarakos, 988
_____________

venue

for

in Puerto

Rico);

F.2d 1289, 1294 (1st

"group" and

"individual"

acknowledges that venue was

cf.
___

United States v.
______________

Cir. 1993) (contrasting

crimes).

The

proper in the District of

government

New Hamp-

shire only if

find

there was enough evidence

for a rational

jury to

it more likely than not that Pedersen, Josleyn and Billmyer

belonged to the Count II conspiracy.

Upon joining Honda

1979, see supra notes 2

___ _____

as a district sales manager in July

& 3, Pedersen learned that Honda

policy

prohibited sales executives from

awarding LOIs for personal gain

and

at more than

In

from accepting gifts valued

$25 from dealers.

keeping with Honda policy, Pedersen objected in December 1979

when Bill

Lia, a dealer in upstate New York, stuffed an envelope

containing

cash

into

Pedersen's

threatened

to report the incident, he relented when Lia told him

not to worry because Lia had

over,

pocket.

Although

"already handled the zone."

Pedersen

More-

Pedersen knew at the time that both his immediate supervi-

sor, Northeast Zone Manager Bill Kutchera, and Billmyer, regional

manager

for the

worked

at Honda

Pedersen

eastern

United States,

headquarters

told Kutchera

in New

about the

cash

as

well as

Jersey.

In

Cardiges,

fact,

bribe tendered

when

by Lia,

21

Kutchera

of the

advised Pedersen to ask for a gift certificate in place

cash.

Accordingly,

Pedersen ultimately accepted

a $300

gift

certificate

Around this same

from Lia

with

Kutchera's

time, Kutchera also

the course of the previous year

explicit approval.

told Pedersen that

during

he had received two Rolex watch-

es, a cruise, furniture, and other gifts, valued at $13,000, from

various dealers.

Pedersen testified that he frequently

payoffs with Roger

sors in Ohio.

Novelly and Larry Finley,

discussed dealer

his Honda supervi-

Novelly, the assistant zone manager,

told Pedersen that

Billmyer and Cardiges were

specifically

being "taken care

of" by dealers, and

Finley, the zone manager, admitted

Bohlander

him for

had paid

franchise in West Cleveland.9

the Honda

"open

that Tom

point" dealership

See, e.g., Boylan, 898 F.2d at 243

___ ____ ______

(noting that tacit accord among alleged conspirators is permissi-

bly inferred from evidence that defendants

"often spoke to their

victims

about other victims

or other defendants

in words which

plainly revealed that the crimes were interdependent").

this

evidence,

and there

was more,

permitted to draw the reasonable

the

jury would

Based on

have been

inference that Pedersen and his

various supervisors over the years had developed a

shared under______

standing of an "unwritten

policy" at Honda:

dealers had

to pay

Billmyer and Cardiges, as

well as other sales executives

in the

____________________

9Significantly,

Cardiges

identified

Kutchera as fellow conspirators.

that he

Finley, Novelly,

and

In addition, Pedersen testified

subsequently received $5,000

from John

Rosatti, a

New

York Honda dealer who admittedly paid both Cardiges and Billmyer.
See supra Section II.B.3(a).
___ _____

22

chain of command, in order to receive a Honda or Acura

or other favorable treatment.

John Orsini,

provided

corroborative

Id.
__

a Honda and Acura

testimony at

dealer in Connecticut,

trial,

kickbacks he had made to Billmyer, Pedersen,

Pedersen's subordinate,

At Budnick's

1987

franchise

characterizing the

and Damien Budnick,

as a "way of doing business" with Honda.

suggestion, Orsini

met with Billmyer

to discuss obtaining another Acura dealership.

in September

A few weeks

later, Billmyer offered

Orsini a franchise in

Nanuet, New York,

if Orsini created a "no-show" job for Billmyer's friend,

T.

Richert, at

$1,000

per week.

After Orsini

Douglas

accepted

the

Billmyer proposal, he received the Nanuet LOI.

Around the same time, Orsini discussed with Budnick and

Pedersen the possibility that Orsini

ship franchise in Salem,

Orsini

and other

Billmyer's

Pedersen the

Honda

willing

New Hampshire.

dealers routinely

dealer-

According to

Pedersen,

and unilaterally

mentioned

name in conversation, as a means of "impress[ing]" on

dealers' established connections

sales managers.

to

might obtain a new

pay for

demanded by Budnick.

Orsini

the Salem

After

told Pedersen

franchise,

with higher-level

that he

but not

agreeing to help

would be

the $50,000

secure the

Salem

dealership for Orsini in February 1988, Pedersen received between

$2,000 and $4,000

in cash from Orsini.

Thus, given the circum-

stantial evidence that both Billmyer and Pedersen shared a common

goal or plan to defraud Honda

by accepting illicit consideration

for awarding new dealership franchises, the jury reasonably could

23

infer, by

Pedersen

a preponderance

defrauded

Honda

of

the evidence,

in

connection with

that Billmyer

the

Salem,

and

New

Hampshire LOI by accepting payoffs from a common

See, e.g., Brandon,

___ ____ _______

17 F.3d at

despite variations in details

structure,

intended

source, Orsini.

450 (finding single

conspiracy,

and tactics, where main objective,

victim, and

modus

operandi remained

con-

stant); supra Section I.

_____

In addition to accepting

Orsini,

the

record

evidence, that

in

1986.

agreed

to

by a

preponderance

Pedersen committed an overt act

furtherance of the Count

Acura Integra

in

demonstrates,

illicit payments from Lia and

II conspiracy, by

from Bohlander's West

After Bohlander

help

Bohlander

exchange for a silent

of

the

in New Hampshire

accepting a free

Cleveland, Ohio, dealership

and Pedersen became friends, Pedersen

acquire more

Acura

dealerships

ownership interest in a Nashua,

in

New Hamp-

shire, dealership.

Nashua

Although

Nashua

$18,000

franchise,

Pedersen

and

in

Pedersen later

dealership,

he

recommended Bohlander for

due course

declined an

nonetheless

in college tuition fees

Bohlander

received

ownership interest

let

Bohlander

for Pedersen's son.

evidence sufficed to demonstrate,

the new

it.

in the

pay roughly

Thus, the

by a preponderance, that venue

was proper in the District of New Hampshire.

See Uribe, 890 F.2d

___ _____

at 558.

Finally, there was evidence

reasonably could have

dence,

that Bohlander

inferred, by a

routinely paid

24

from which a rational jury

preponderance of the

Billmyer and

evi-

Cardiges as

well.

Pedersen described

condominium

Tecco, a

paying

in February

card game

1991,

dealer associated

at Bohlander's

during which

Florida

Bohlander and

with Marty Luftgarten,

Lou

talked about

bribes as a "way of doing business" with Honda, and noted

that Billmyer and Cardiges had to be paid in order to get dealer-

ships

and other

favorable treatment.

that Bohlander had paid Finley for

Along with

the evidence

the West Cleveland dealership

and that dealers commonly bribed sales executives at each succes-

sive level, see

___

supra p. 22, Pedersen's

_____

testimony permitted the

jury reasonably to conclude that it was more likely than not that

Bohlander

had paid Billmyer, the Acura Division head, as well as

Pedersen, in return for the Nashua dealership in 1987.

similarity in the pattern

of fraudulent transactions relating to

new dealership franchises, the

pants, and

the temporal

Thus, the

common core of "insider" partici-

overlap would

enable

a rational

jury

reasonably to infer, under the applicable preponderance standard,

that Pedersen,

Billmyer, Josleyn, and Cardiges

agreed, at least

tacitly, to defraud Honda by accepting illicit consideration from

candidates for

tion

new Honda dealership franchises

in direct viola-

of established Honda policy and procedures.

F.3d at

1233-34;

Bello-Perez,
___________

977

F.2d at

668

See Morrow, 39
___ ______

(noting

that

conspirators need

not know all coconspirators);

see also United

___ ____ ______

States v. Richerson, 833 F.2d 1147, 1152-54 (5th Cir. 1987).

______
_________

C.
C.

Other Claims By Josleyn

Other Claims By Josleyn
_______________________

1.
1.

Sufficiency of the Evidence

Sufficiency of the Evidence
___________________________
(Counts I, III & IV)
(Counts I, III & IV)
__________________

After the government rested its case, Josleyn moved for

25

acquittal under Counts I, III, and IV, claiming that the evidence

was insufficient

the Honda

to establish,

beyond a reasonable

dealers and their dealer

been victimized by the

doubt, that

advertising associations had

alleged mail fraud since the

advertising

associations had

received

advertising

services for which they

the sales

paid.

This

dealers and

training

and

claim fails as

well.

In United States v.
______________

1991),

we explained

that

Allard, 926 F.2d

______

it is

no

1237 (1st

"defense that

the

Cir.

victim

received something in exchange even if it was equivalent in value

_________

to what the victim was deceived into relinquishing."

Id. at 1242
___

(citing United States v.

_____________

King, 860 F.2d

____

cert.
_____

1065 (1989)).

denied,
______

490 U.S.

inquiry under Allard is whether

______

dealers

and advertising

money, there

Cardiges,

was ample

to support

54, 55 (2d Cir.

Given that

the proper

Josleyn intended to defraud

associations

into

parting with

evidence, particularly the

the

1988),

jury verdicts

Counts I, III, and IV.

2.
2.

the

their

testimony of

against Josleyn

under

Jury
Instructions on
Jury
Instructions on
_______________________

Condonation
Condonation
___________

The district

instruction that

doubt, that

ties.

court

rejected Josleyn's

the government must prove,

Honda had not condoned

Ordinarily, a

proposed

jury

beyond a reasonable

Josleyn's fraudulent activi-

defendant is entitled to an

instruction on

his theory of

the case as long as it is

legally valid and there

is sufficient evidence, viewed in the light most favorable to the

defendant, to permit a reasonable juror to credit the defendant's

26

theory.

Cir.

1991).

United States v.
______________

Flores, 968 F.2d

______

1992); United States v. Shenker, 933

_____________
_______

1366, 1368-69

(1st

F.2d 61, 65 (1st Cir.

The government does not dispute that the evidence adduced

at

trial would

Japanese

have

permitted the

executives at

condoned the

the highest

jury

to find

levels of

acceptance of bribes and

that

native

Honda implicitly

kickbacks.

Nevertheless,

the trial court need not adopt the precise instructional language

proposed by the defendant.

United States v. DeStefano,

_____________
_________

59 F.3d

1, 3 (1st Cir. 1995).

Viewed as a

whole, we think

the instruction given

the district court fairly summarized Josleyn's defense theory:

Since

the

essential

element of

the

crime

charged is intent to defraud, it follows that

good faith on

the part of the defendant is a

complete defense to
A defendant,

a charge of mail

fraud.

however has no burden to estab-

lish a defense of good faith.

on the government

The burden

to prove fraudulent intent

and the consequent lack of good faith

a reasonable doubt.

is

beyond

by

. . . .

It

is the defendant Josleyn's theory of

the case that American Honda knew of and condoned; that

is, gave

activities

of its

indictment

that

policies.

tacit approval

to the

employees alleged

in the

were

in violation

of

its

American Honda's knowledge or con-

donation of the commission of an offense does

not

by
__

itself
______

excuse.
Honda's
_______

constitute a

However,

defense

any evidence
___ ________

or an

of American
__ ________

actions or omissions, or evidence of

_______ __ _________ __ ________ __

deficiencies in the manner in which it imple____________ __ ___ ______ __ _____ __ ______

mented
______

and enforced its

___ ________ ___

policies and proce________ ___ ______

dures, may be considered by you to the extent

_____ ___ __ __________ __ ___ __ ___ ______
that
____

such
____

whether
_______

evidence bears
________ _____

or not
__ ___

Mr. Josleyn
___ _______

on
__

the
___

issue of
_____ __

formed
______

the re___ ___

quired intent to commit the crimes with which

______ ______ __ ______ ___ ______ ____ _____
he
__

is charged.
__ _______

because

Mr.

he believed

and condoned the

Josleyn contends
American Honda

that

knew of

activities in question,

he

27

did not possess the required intent to commit

the offenses with which he is charged.
The
soever

defendant
to prove

has no

to you

correct, but rather

of

that his

all of the

each offense

charged

reasonable doubt[,] including the

intent with
have

already

theory is

the burden is always

the government to prove

elements

obligation what-

respect to each
explained to

on

material
beyond a
element of

offense[,] as I
you.

(Emphasis

trial

judge

added.)

The

charge

given

by

the

unmistakably

permitted

the jury to

determining whether

defraud Honda.

Josleyn had

United States,
_____________

(discussing "good

denied, 393
______

U.S.

authority, nor

1036

condonation evidence in

formed the requisite

No more was required.

Enters., Inc. v.
______________

1968)

consider all the

See generally New England

___ _________ ___________

400 F.2d

faith"

defense to

(1969).

Since

demonstrates, that

intent to

58, 71-72

(1st Cir.

mail fraud),

Josleyn

cert.
_____

neither

any condonation by

cites

Honda was

relevant to an element of the charged offenses other than intent,

see
___

Yefsky, 994 F.2d at

______

conspiracy

Co. v.
___

(RICO),

890-91 (listing elements

of mail fraud

and substantive mail fraud); see also Aetna Cas. Sur.

___ ____ _______________

P & B Autobody,
_______________

we conclude

that

43 F.3d 1546,

the

jury

1558-60 (1st

Cir. 1994)

instruction given

by

the

district

court was

adequate.

Shenker,
_______

933

at

F.2d

65-66

See
___

(rejecting

predicated on impermissibly broad

Wallach, 935 F.2d

_______

protects

property

445, 464

interests

(2d Cir. 1991)

of

proposed

at

3;

instruction

(mail fraud

shareholders

Impeachment of Cardiges
Impeachment of Cardiges
_______________________

28

59 F.3d

defense); cf. United States v.

___ _____________

against officers' schemes).

3.
3.

DeStefano,
_________

and

statute

corporation

Josleyn contends that though the prosecutor was respon-

sible for

deliberately suborning false testimony

the district

court unduly

from Cardiges,

impeded Josleyn's efforts

Cardiges on cross-examination.

to impeach

These claims are meritless.

See
___

generally United States v. Osorio, 929 F.2d 753, 759-60 (1st Cir.
_________ _____________
______

1991)

(approving

repetitive,

wise improper

93 F.3d

restrictions

by

trial

court

on

harassing, unduly prejudicial, irrelevant, or other-

cross-examination); cf. United States

___ _____________

10, 14-15

allegation).

reasonable

(1st Cir.

1996) (rejecting

v. Tavares,
_______

baseless perjury

On cross-examination, defense counsel asked Cardiges to

explain

two newspaper

stated that

articles in

the government

had evidence

managers at Honda knew about

its sales

division.

the prosecutor

attorney

file, Cardiges had

that the top

testified that he

Japanese

afforded

On redirect,

that though Cardiges

"open access"

seen "no documents

in

neither autho-

nor knew their basis.

elicited testimony

had been

lawyer reportedly

the alleged criminal activities

Cardiges

rized the press statements,

which his

to the

and his

government's

that either indicated

or

show[ed] that the Japanese knew anything about kickbacks or gifts

or anything like that."

In response, Josleyn's counsel sought to

confront Cardiges with several

from the government's file

FBI interview reports

obtained

which contained statements by Honda

employees to the effect

that the Japanese knew about

the bribes

and kickbacks.

The district court permitted defense counsel to use the

29

FBI reports for impeachment purposes, i.e., to show that Cardiges

____

either did not

contents

tell the

truth, or had

of the government

file.

not reviewed the

But the

entire
______

court ruled that the

FBI interview

reports were

their truth.

See Innamorati, 996 F.2d at 480-81;

___ __________

801(c) (defining

hearsay).

inadmissible hearsay if

On

offered for

Fed. R. Evid.

appeal, Josleyn argues

impermissibly restricted

that the

district

court

recross-examination by

refusing

to allow the jury to consider all hearsay statements in

___

the FBI interview reports.

Our review

the district court

FBI interview

of the trial transcripts

accorded Josleyn ample leeway

reports in sufficient

fairly to weigh Cardiges'

file.

For

he was

detail to

to explore the

enable the

admitted on

recross that

interview reports, and was "quite

not able to get

jury

testimony relating to the government's

example, Cardiges

never seen the FBI

satisfies us that

through the "thousands and

he had

sure" that

thousands of

documents"

during the

four-hour period

government file.

The district

objections when

defense counsel

into

the

properly,

contents of

however, since

hearsay purpose

Hudson,
______

the

for

970 F.2d 948,

attempted to delve

Josleyn

further.

956-57 (1st

reports.

proffered

Cf.
___

Cir. 1992)

responded to

hearsay objection

does Josleyn

now challenge these hearsay

we find no error.

reviewing the

court did sustain several hearsay

FBI interview

probing

he spent

no

more deeply

It

relevant

United States
______________

30

non-

v.

(defense counsel

with impeachment proffer).

rulings.

See Fed. R. Evid. 103(a)(2).

___

did so

Nor

Accordingly,

4.
4.

Delayed Disclosure of Condonation Evidence

Delayed Disclosure of Condonation Evidence
__________________________________________

Josleyn

opportunity

witnesses due

to

claims that

cross-examine

he was

deprived of

Cardiges

and

to the government's delayed

a meaningful

other

prosecution

disclosure of certain

letters written to the government by Cecil Proulx, a former Honda

executive, outlining his efforts

pervasive bribes and

Japanese

executives.

in the late 1980s to

kickbacks to the

bring the

attention of Honda's

top

The government produced some of the Proulx

materials before trial, including a summary of his FBI interview,

but found and

later

additional material

upon learning that Josleyn intended

witness

condoned

unseasonably produced

tending to show

that Honda's

the illegal activities in

unsuccessfully

moved to

to call Proulx as a

Japanese managers

its sales division.

dismiss the

months

indictment on

had

Josleyn

due process

grounds.

Given

evidence,

the specific

the government

Josleyn with

plainly had

for condonation

an obligation

to furnish

the Proulx materials in a more timely fashion.

United States v. Sepulveda,

_____________
_________

cert. denied, 114 S. Ct.

_____ ______

16(a)(1)(C)

discovery request

(discovery

15 F.3d 1161, 1178 (1st

Cir. 1993),

2714 (1994); see also Fed. R.

___ ____

relating

to documents

See
___

material

Crim. P.

to de-

fense);

16(c) (continuing duty to

disclose).

Since the govern-

ment failed seasonably to disclose evidence "material to guilt or

punishment,"

United States v. Devin, 918 F.2d 280, 289 (1st Cir.

_____________
_____

1990) (citing Brady v.

_____

includes both

Maryland, 373 U.S. 83, 87

________

exculpatory and impeachment

31

(1963)), which

evidence, we

inquire

whether

as

consequence

counsel was unable to use

of the

delayed

Id. (quoting United States

__
_____________

Ingraldi, 793 F.2d 408, 411-12 (1st

________

greater

defense

the material "effectively in preparing

and presenting the defendant's case."

v.

disclosure

familiarity with the dynamics

Cir. 1986)).

of the case,

Due to its

we will not

reverse a district court's ruling on delayed disclosure unless it

amounts to a demonstrable abuse

of discretion.

Id.
___

We discern

no abuse of discretion.

First, a principal concern

in delayed disclosure cases

whether the failure to supply the information in a seasonable

fashion

at 290

caused the defense to change its trial strategy, see id.

___ ___

is not significantly implicated in this case.

consistently

pursued the

same

defense theory

Josleyn

both before

and

after

the Proulx materials

Japanese

managers at

were provided,

by arguing

that the

had condoned

the charged

conduct.

Honda

Secondly, even though the Proulx materials unquestionably provid-

ed additional support

persuaded

that the

for the condonation "defense," we

delay in

disclosure adversely

are not

affected the

defense in any important respect.

In fact, while Cardiges was on

the

counsel

witness

stand,

Josleyn's

government's file is like 100,000 pages

note

10.

evidence

The defense

by using it

took full

in its own

produced Proulx materials were

observed

or so."

advantage of

that

See also
___ ____

"the

infra
_____

the condonation

case, even before

the tardily

made available, then featured the

32

government's delayed disclosure in its closing argument.10

On

this record,

we think

the district

concluded that the Proulx materials added little to

previously

produced by

disclosure

had not

degree.

the government,

impeded Josleyn's

See United States v.

___ _____________

court soundly

the evidence

and therefore

defense to

its late

a significant

Catano, 65 F.3d 219, 227 (1st Cir.

______

1995)

(noting

Sepulveda, 15
_________

cumulativeness

F.3d

at 1179

of

(holding

impeachment

materials);

that failure

to

"incremental information" caused no prejudice).

produce

We note as well

that Josleyn makes no claim that the prosecutor intentionally de-

layed disclosure.

Furthermore,

only

and by

no

means least

relief Josleyn requested was

indictment.

discovery

The district court

violations

in

light

importantly, the

the outright dismissal of the

has broad discretion to

of their

prejudice occasioned the defendant.

seriousness

Osorio,
______

redress

and

any

929 F.2d at 762-63;

see also Fed. R. Crim. P. 16(d)(2) (authorizing district court to

___ ____

"permit

the discovery

prohibit the

or

inspection, grant

party from introducing the

a continuance,

or

evidence not disclosed,

____________________

10Defense counsel argued in closing:

When
question

you ask
is asked

[a

witness] a

question, when

the

gone through

our

[whether] you've

files and there's nothing there to indicate that American Honda executives knew
question

of that

type,

reams of things in

defense at

that you

all and don't

later, well, isn't

and there's

tons of

that file, that's wrong.

file isn't even complete

from Mr. Proulx

about these activities, or a

things,
When the

because you have a memorandum

haven't turned
get turned

over till

that question kind of a

false?

33

over to

the
weeks

little bit

or .

. .

enter such

other order

as it

deems

just under

the

circumstances").

On the other hand, the draconian relief demand-

ed

was

by

Josleyn

grossly

prosecution's nonfeasance and

disproportionate

both

to

the

any prejudice to the defense.

See
___

Bello-Perez, 977 F.2d at

___________

670 (favoring continuance over dismiss-

al);

F.2d at

accord
______

Devin, 918
_____

290-91.

As

Josleyn eschewed

various alternative remedies more consonant with the government's

culpability

929 F.2d

witness

and any prejudice to the defense, see, e.g., Osorio,

___ ____ ______

at 762-63

for

(noting, as alternative

additional

cross-examination,

greater leeway with witnesses,

remedies, recalling

affording

defense

and instructing jury that govern-

ment failed to meet

discovery obligations), we find no

abuse of

discretion in refusing to dismiss the indictment.

5.
5.

Closing Argument
Closing Argument
________________

Josleyn

claims

that

the lead

prosecutor

improperly

vouched for the credibility of government witnesses, and Cardiges

in particular, during

rebuttal.

Absent contemporaneous

tion, we may notice only "plain error."

Toro, 29 F.3d
____

the entire trial,

did not

denied, 115 S.
______

Viewed in the context of

United States v. Smith, 982 F.2d 681, 682 (1st

_____________
_____

Cir. 1993), the prosecutor's

ate,

United States v. Tuesta_____________

_______

771, 776-77 (1st Cir. 1994), cert.

_____

Ct. 947 (1995); Fed. R. Crim. P. 52(b).

objec-

undermine

remarks, though plainly inappropri-

the fundamental

fairness of

Josleyn's

trial.

See United States v. Young, 470 U.S. 1, 16 (1985).

___ _____________
_____

Although at

improper

times it

vouching from zealous

may be difficult

to distinguish

advocacy, there can

be no doubt

34

that the statements at issue here constituted improper rebuttal:

Now there

was a

play in this case.

lot of suggestion
I

of false

want to say this.

I'm

a married person with a family, and I go home

at

night with

a sound

conscience.

worked very hard on this case.

worked very hard on
and Miss

I have

Mr. Feith has

this case.

Mr. Mulvaney

Roux have worked very

hard on this

case.

And we are very proud of what we have

done.

We

have done

nothing to

be ashamed

of.11

Injecting

the prosecutor's personal

into the decisional

mix not

irrelevant matters

beyond the

sympathy and

life and individual efforts

only invited the

jury to

record, but unfairly

consider

evoked jury

diverted attention from the relevant evidence.

United States v.
______________

Rosales,
_______

19 F.3d

763,

767 (1st

Cir.

See
___

1994)

(prosecutor denied fabricating evidence against defendant).

There should

be no need to

remind federal prosecutors

that they are not free to disregard the bounds of proper argument

even in response to

perceived provocation.

See Young,
___ _____

470 U.S.

at

18-19.

vouch

The important

for

precept that

the credibility

rooted in American law.

of

the prosecutor

a government

witness

See Rosales, 19 F.3d at 767

___ _______

may not

is deeply

("When the

____________________

11Nor have we
prosecution

any doubt that

to these excesses.

defense counsel provoked

the

See United States v. Grabiec, __

___ _____________
_______

F.3d __, __ (1st Cir. 1996) [No. 96-1131, slip op. at 4 (1st Cir.
Sept. 25,

1996)].

counsel argued:
you lie; to

Referring to Cardiges'

"It's wrong to

added:

lie, and it's also wrong to help

ask them questions [when you

are going to be untrue. . . .

"You want to see

born and

mail fraud?

Stick

you may be

the people.

Josleyn's counsel made an

"People aren't

a prosecutor.

It's a trust.

abused, somebody's got to do something about it."

35

Later, he

this indictment in

nullification as well:

the Almighty says

right that's given by

know] that the answers

I call it disgusting."

the mail and you'll see a mail fraud."

improper appeal for jury

testimony, Josleyn's

That's a

And when it's

prosecutor

places

the

credibility

of counsel

at

issue,

the

advantage lies with the government . . . .") (citations omitted).

Thus, a prosecutor may not lend the prestige of the government to

buttress a

witness, nor

indicate to

known to the prosecutor, but

information

not admitted in evidence,

the government's theory of the case.

The appropriate

the jury that

supports

Young, 470 U.S. at 18-19.

_____

response for

the prosecutor in

these

circumstances is to lodge a contemporaneous objection and request

an appropriate curative

instruction.

that, the prosecutor is

constrained to a fair discussion

evidence.

brief passage challenged

But for the

See id. at
___ ___

13.

Failing

of the

on appeal, see
___

supra p. 34, the prosecution adhered to the appropriate standard.

_____

Under the "plain

burden

of

showing that

prejudice, i.e.,

error" standard, appellants

the

remarks resulted

affected their substantial rights.

States v. Olano, 507 U.S. 725,

______
_____

er,

prosecutor's

we will not notice error

bear the

732-34 (1993).

in

See United
___ ______

Even then, howev-

unless it caused "a miscarriage of

justice" or seriously undermined "the integrity or public reputa-

tion of judicial proceedings."

impact the

Id.
___

We must consider the likely

prosecutor's remarks had on the

jury in light of the

entire record,

defense.

including the

closing argument presented

by the

Young, 470 U.S. at 16-17.

_____

Compared

integrity of the

with

defense

counsel's

attack

prosecuting attorneys throughout closing

ment, see supra note 11, their rebuttal was moderate.

___ _____

States v. Oreto,
______
_____

against the

37 F.3d

739, 746 (1st

36

Cir. 1994)

argu-

See United
___ ______

(tolerating

measured response to repeated attempts to magnify government mis-

conduct),

the

cert. denied, 115 S. Ct. 1161

_____ ______

district

court

prudently

(1995).

countered the

In all events,

risk

of

serious

residual prejudice by promptly cautioning the jury that counsel's

arguments

are not evidence, and

verdicts solely on

Lozano,
______

829 F.2d

whelming evidence

the evidence.

268, 274

directing the jury

to base its

See United States v.

___ ______________

(1st Cir.

1987).

against Josleyn, see supra

___ _____

Given

Mejia______

the over-

Section II.B.3(b),

the provocative excesses in the closing argument presented by his

own

counsel, and

the timely jury

instructions by

the district

court, the improper remarks by the prosecutor in rebuttal did not

rise to the level of plain error.

See Rosales, 19 F.3d at 767-68

___ _______

(finding similar vouching harmless error).12

________

D.
D.

The Billmyer Sentencing Claim

The Billmyer Sentencing Claim
_____________________________

Billmyer challenges a two-level enhancement of his base

offense level ("BOL")

for abusing a

See
___

(1995).

novo.
____

U.S.S.G.

3B1.3

We

United States v. Tardiff,

_____________
_______

position of private

review the

trust.

3B1.3 ruling de
__

969 F.2d 1283,

1289 (1st Cir.

____________________

12Citing United States v. DiLoreto,

______________
________

888 F.2d 996,

999 (3d

Cir. 1989), Josleyn suggests that prosecutorial vouching requires

reversal per se.
___ __

DiLoreto was not only inconsistent

________

Circuit case

law, it has been

Zehrbach, 47
________

F.3d

1252,

overruled.

1264-65 (3d

denied, 115 S. Ct. 1699 (1995).

______

with First

See United States v.

___ ______________

Cir.)

(en

banc),

cert.
_____

Furthermore, Josleyn's strongest

authority,

see United States v. Smith, 962 F.2d 923, 933-36 (9th

___ _____________
_____

Cir. 1992)

(finding plain

There, defense

error),

is readily

counsel did not allege that the prosecutor either

withheld evidence or suborned perjury,

prosecutor had invoked
the authority of

distinguishable.

id. at 934; moreover, the

___

both the prestige

the court in

of the government

rebuttal, id. at 936;

___

and
___

cf. United
__ ______

States v. Perez, 67 F.3d 1371, 1379 (9th Cir. 1995) (distinguish______

_____
ing Smith on latter ground).
_____

37

1992).

As Billmyer acknowledges a sound factual basis for the

3B1.3

enhancement, we

need only

apply the

pertinent guideline

language.

If the defendant abused a position

of public

or private trust, or used a special skill, in

a manner that
commission
increase

significantly facilitated

or

concealment

by 2
2

levels.

of the

This
____

the

offense,

adjustment may
__________ ___

not be employed if an abuse of trust or skill

___ __ ________ __ __ _____ __ _____ __ _____
is
__

included
________

in
__

the base
___ ____

offense
_______

level or
_____ __

specific offense characteristic.

________ _______ ______________

U.S.S.G.

3B1.3 (Nov. 1995) (emphasis added).

The district court applied U.S.S.G.

bribery) to

determine Billmyer's BOL.

characteristics

consider

listed in

whether the

As the

2B4.1(b) are

BOL prescribed

2B4.1 (commercial

in

specific offense

not germane,13 we must

2B4.1

"included" an

____________________

13Section 2B4.1(b) provides:

Specific Offense Characteristics

(1)

If

the greater of the

improper

benefit

crease

the

number

of levels

bribe or the

conferred exceeded

offense

fense-conduct

value of the

level by

from the

guideline

the

$2,000, incorresponding

table in
for

2F1.1 [of-

fraud

and

de-

safety

and

ceit/forgery].

(2)

If the offense --

(A)

substantially

jeopardizes

the

soundness of a financial institution; or

(B)

affected

defendant

financial
derived

institution

more

and

than $1,000,000

the
in

gross receipts from the offense,

increase by

4 levels.
4

If the

resulting offense

level is less than 24, increase to level 24.

24
24

U.S.S.G.

2B4.1(b).

38

abuse-of-trust

component which

would render

the offense

enhancement invalid under the second sentence in

The

Guidelines

prohibit

the

imposing an abuse-of-trust enhancement

see U.S.S.G.
___

es

level

3B1.3.

sentencing

court

from

in a public bribery case,

______

2C1.1, comment. (n.3), unless special circumstanc-

require reference

to

other offense

guidelines,

see id.

___ ___

2C1.1(c).

tempts

Thus,

to

in its

equate

main thrust the

Billmyer's commercial

bribery

of a public official.

general

rule

must

apply

present challenge

bribery

According to

because public

offense

with

Billmyer, the same

bribery

bribery are "virtually identical" offenses.

at-

and

private

We are not persuad-

ed.

The

application

bribery cases

absence of

of

the

an explicit provision
________

abuse-of-trust

enhancement

severely undercuts the analogy

restricting the

in

commercial

urged by Billmyer.

See United States v. Newman, 982 F.2d 665, 673-74 (1st Cir. 1992)
___ _____________
______

(applying expressio unius est exclusio alterius principle in this

_________ _____ ___ ________ ________

sentencing context), cert. denied, 510 U.S. 812 (1993).

_____ ______

Further-

more, the Sentencing Commission

lines to

impose

specify the

took pains throughout the Guide-

circumstances in

enhancements for abuse of

which courts

trust.14

In

should not

sum, the overall

structure of the Guidelines simply does not warrant the categori____________________

14See,
___
abuse);

id.
___

rights); id.
___

e.g., U.S.S.G.
____
2H1.1(b)(1),

2A3.1(b)(3), comment. (n.4) (sexual

comment.

(n.5)

(violating

civil

2P1.1(b)(1), comment. (n.3) (prison escape); id.

___

2T1.4(b)(1), comment. (n.2) (aiding

tax fraud); see also Newman,

___ ____ ______

982 F.2d

at 673-74; cf. United States v. Wong, 3

___ ______________
____

F.3d 667, 670

(3d Cir.

1993) (noting

potential for

Commission's awareness of

"double counting").

39

cal ban advocated by Billmyer.

Moreover,

not only

does Billmyer

cite no

supporting

case law, but our research discloses ample authority for imposing

an

abuse-of-trust enhancement in such

United States
_____________

provided

v. Butt, 955
____

clear explication

abuse-of-trust

enhancement

F.2d 77

a case.

For example, in

(1st Cir. 1992),

of

its rationale

in

the

case of

the court

for upholding

police

an

officer

convicted on a RICO charge, even though the underlying racketeer-

ing activity included extortion under color of right.

The

base offense

level

prescribed

by

the

guidelines for a particular

reflects,

or "includes,"

those characteris-

tics considered by Congress

crime

at issue.

In

crime presumably

to inhere in the

the case

of extortion

under color of right, abuse of trust would be

one such characteristic, since Congress could
reasonably have determined
extortion

under color

abuse of

public

statute,

by

of right

trust.

contrast,

that every act of

involves an

Because
can be

the

RICO

violated

in

innumerable ways, there are, arguably, no offense

characteristics

common

to

all

RICO

offenses.

Id. at 89.
___

The same holds true here.

Billmyer

was convicted

violation of 18 U.S.C.

involves an abuse of

371.

of

mail

fraud conspiracy

in

As not every mail fraud conspiracy

trust, we cannot conclude that

the BOL for

commercial bribery necessarily includes an abuse-of-trust element

so as to preclude an enhancement pursuant to

3B1.3.

See United
___ ______

States v. Kummer, 89 F.3d 1536, 1546-47 (11th Cir. 1996) (reject______

______

ing

similar argument

employee

under

U.S.S.G.

2E5.1 (bribe

benefit plan)); cf. United States

___ _____________

affecting

v. Connell, 960 F.2d

_______

191, 199 (1st Cir. 1992) (finding that BOL applicable to currency

40

reporting

skill).15

violations did

not

encompass

stockbroker's

United States v. Sinclair,

_____________
________

special

74 F.3d 753, 762-

63

(7th Cir.

1996), likewise

demonstrates that

the commercial

bribery guideline does not take into account an abuse of trust.16

Sinclair, a bank officer,

violation

almost

of

18 U.S.C.

invariably to

215(a)(2),

entail an abuse

noted that the statute did

215(a)(1) (prohibiting

cer), and

who did

receive

the

not

same

crime that

of trust.

it would be

would seem

Yet the court

sentence

as

the

id.
___

to bank offi-

wrong to require
_______

necessarily breach

Sinclair, 74 F.3d at 763.

________

bribe in

not define a single crime, see

___

person from offering bribe

________

reasoned that

briber,

was convicted of accepting a

that the

position of

bank-officer

trust,

recipient.

Similarly, we think Billmyer's greater

culpability, relative to other defendants who need not necessari-

ly

have abused a position of trust in the course of a mail fraud

conspiracy, entitled the

district court

to impose

the

3B1.3

adjustment in this case.

Accordingly, we affirm the enhancement.

____________________

15One
between

reasonable explanation

for the

two-level difference

the BOL for private bribery, see U.S.S.G.

___

8), and public bribery, see U.S.S.G.

___

2B4.1 (level

2C1.1 (level 10), may lie

in the fact that the Sentencing Commission factored the abuse-oftrust element into the BOL for public bribery only.

16Sinclair
________

is

the only

enhancement under U.S.S.G.

case
2B4.1.

involving

an abuse-of-trust

We note, however, that other

courts commonly allow an abuse-of-trust enhancement

ment cases

under U.S.S.G.

Broumas, 69 F.3d 1178,

_______
S. Ct. 1447 (1996).

2B1.1.

in embezzle-

See, e.g., United States v.

___ ____ _____________

1182 (D.C. Cir. 1995), cert.

_____

denied, 116
______

41

III
III

CONCLUSION
CONCLUSION
__________

Finding no reversible

ments are affirmed.

AFFIRMED.
AFFIRMED.
________

error, the district court

judg-

42