U.S. v. Kaplan, No. 05-5531 (2d Cir. 2007)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on April 11, 2007.
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05-5531 U.S. v. Kaplan 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ------------August Term 2006 Argued: November 7, 2006 Decided: April 11, 2007 Errata Filed: April 30, 2007) Docket No. 05-5531-cr --------------------------------------------------X UNITED STATES OF AMERICA, Appellee, - against SOLOMON KAPLAN Defendant-Appellant. --------------------------------------------------X Before: FEINBERG, LEVAL, and CABRANES, Circuit Judges. Appeal from a judgment of conviction, entered following a jury trial in the United States District Court for the Southern District of New York (Batts, J.), on all seven counts of an indictment charging conspiracy, mail fraud, wire fraud, making false statements in connection with health care matters, health care fraud, witness tampering, and making false statements to the FBI. Affirmed in part, vacated in part, and remanded. ZACHARY MARGULIS-OHNUMA, New York, New York, for Defendant-Appellant MIRIAM E. ROCAH, Assistant United States Attorney, (Michael J. Garcia, United States Attorney, Timothy Treanor and Jonathan S. Kolodner, Assistant United States Attorneys, on the brief), United States Attorney s 1 2 3 4 Office for the Southern York, for Appellee. FEINBERG, Circuit Judge: Solomon Kaplan appeals from a judgment District of of New conviction, 5 entered following a jury trial in the United States District 6 Court for the Southern District of New York (Batts, J.), on all 7 seven counts of an indictment charging Kaplan s participation in 8 an insurance fraud scheme (Counts One through Five) and Kaplan s 9 interference with an investigation into that scheme (Counts Six 10 and Seven). Specifically, the indictment charged Kaplan with one 11 count of conspiracy1 in violation of 18 U.S.C. § 371 (Count One); 12 two counts of mail fraud in violation of 18 U.S.C. §§ 1341 and 2 13 (Counts Two and Three); one count of making false statements in 14 connection with health care matters in violation of 18 U.S.C. §§ 15 1035 and 2 (Count Four); one count of health care fraud in 16 violation of 18 U.S.C. §§ 1347 and 2 (Count Five); one count of 17 witness tampering in violation of 18 U.S.C. §§ 1512(b) and 2 18 (Count Six); and one count of making false statements to an agent 19 of the Federal Bureau of Investigation ( FBI ) in violation of 18 20 U.S.C. § 1001 (Count Seven). 21 On appeal, Kaplan s principal contentions are that (I) his 22 conviction on the insurance fraud counts (Counts One through 1 The indictment alleged that the objects of the conspiracy were mail fraud, wire fraud, making false statements relating to health care matters, health care fraud, and witness tampering. -2- 1 Five) must be vacated because the district court erred in 2 admitting (A) lay opinion testimony regarding his knowledge of 3 the fraud and (B) testimony concerning others knowledge of the 4 fraud and (II) his conviction on the interference counts (Counts 5 Six and Seven) must be vacated because (A) the district court s 6 jury instruction on Count Six was erroneous in light of the 7 Supreme Court s supervening decision in Arthur Andersen LLP v. 8 United States, 544 U.S. 696 (2005); (B) the district court 9 improperly gave a conscious avoidance jury instruction on Count 10 Six; and (C) variance between a bill of particulars and proof at 11 trial concerning Count Seven constituted a constructive amendment 12 of the indictment or a prejudicial variance. 13 For the reasons set forth below, we agree that Kaplan s 14 conviction on Counts One through Five must be vacated because the 15 district court erred in admitting, without adequate foundation, 16 lay opinion testimony regarding Kaplan s knowledge of the fraud 17 and testimony regarding others knowledge of the fraud, and that 18 at least the first of these errors was not harmless. 19 affirm his conviction on Counts Six and Seven because these 20 evidentiary errors were harmless as to those counts, which relied 21 on strong independent evidence of the crimes charged in those 22 counts, and because we find no merit in Kaplan s other arguments 23 on 24 consistent with this opinion. appeal. The case is remanded -3- for further However, we proceedings 1 BACKGROUND 2 Viewed in the light most favorable to the Government, see 3 Jackson v. Virginia, 443 U.S. 307, 318-19 (1979), the evidence 4 showed the following. 5 Josef Sherman, a medical doctor, and his brother, Yevgeny 6 Sherman, operated a medical clinic in Brooklyn, New York (the 7 Clinic ). 8 staging automobile accidents and identifying individuals who had 9 been in legitimate accidents but were willing to exaggerate their The Clinic hired runners to recruit patients by 10 injuries. 11 unnecessary treatment 12 compensated with 13 fraudulent insurance claims for medical expenses to collect money 14 under New York State s no-fault insurance law. 15 The At the Clinic, these accident participants received accident a for their kickback. participants feigned The were injuries Clinic also then and were submitted referred to a 16 cooperating law office, which submitted on the participants 17 behalf false or inflated insurance claims for bodily injury. 18 From January 2000 until July 30, 2001, most of the Clinic s cases 19 were referred to a law office (the Law Office ) operated in the 20 name of Alexander Galkovich, a lawyer hired by the Shermans and 21 their associate Gennady Gene Medvedovsky to serve as counsel of 22 record in the referred cases. 23 a retainer agreement providing that the Law Office received one- 24 third of any insurance The accident participants signed settlement -4- as well as expenses. 1 Medvedovsky, although not an attorney, managed the Law Office on 2 behalf of the Shermans through a management 3 Starlin Executive Management. 4 proceeds he received from the insurance company settlements to 5 Starlin Management, and received $1,000 per week as salary and 6 occasional bonuses. 7 insurance proceeds from the law office principally by submitting 8 to Starlin Management fraudulent bills from fictitious entities 9 or by paying themselves salaries from Starlin Management. company called Galkovich paid almost all of the The Shermans and Medvedovsky extracted the 10 By 2001, the Law Office had more than 3,000 active cases, 11 and was receiving approximately 80 to 200 new cases per month, a 12 significant portion of which came from the Sherman Clinic. 13 Approximately five to 10 percent of the cases at the Law Office 14 resulted from staged accidents, and 60 to 70 percent of the cases 15 involved clients who exaggerated or faked the injuries. 16 In July 2001, Galkovich was arrested by the FBI and charged 17 with filing false and fraudulent claims and coaching clients to 18 lie to the insurance companies. 19 lose his law license, the Shermans and Medvedovsky sought a 20 replacement to serve as attorney-of-record in the fraudulent 21 cases. 22 because a few of the Clinic s cases had previously been referred 23 to him. 24 that the cases referred to Kaplan were those that had been Because Galkovich thus stood to They settled on Kaplan, with whom they were familiar An employee of the Clinic, Alexander Burman, testified -5- 1 rejected by other lawyers because they were considered too 2 obviously fraudulent. 3 In September 2001, Kaplan began representing 1,200 of 4 Galkovich s 3,000 clients. The Shermans and Medvedovsky, worried 5 that the transfer of all 3,000 cases from Galkovich to Kaplan 6 would look suspicious, arranged for Kaplan to formally purchase 7 the law firm from Galkovich. 8 they hired a lawyer to draft a contract and conduct a closing, 9 and Kaplan wrote several checks to Galkovich totaling $50,000, To make the deal appear legitimate, 10 including a $20,000 check at the closing. 11 the money came from the Shermans and Medvedovsky and was later 12 returned 13 Medvedovsky essentially bought the Law Office from themselves, 14 but structured the transaction to look as if Kaplan had bought it 15 from Galkovich. to them by Galkovich. Thus, But at least some of the Shermans and 16 Galkovich testified that on the way to the closing in 17 October 2001, Kaplan and Galkovich discussed the sale of the Law 18 Office, and Kaplan stated that he had handled cases like this 19 before, which Galkovich understood to mean that Kaplan had 20 previously handled fake accident cases. 21 The Law Office continued to operate much as it had before, 22 with Kaplan now formally representing almost all of Galkovich s 23 3000 clients. 24 who was responsible for drafting false medical narratives to be Medvedovsky and others, including Emik Aguronov, -6- 1 submitted to insurance companies on behalf of clients seeking 2 settlements, remained. 3 Prostaff 4 functions that Starlin Management had. From October 2001 through 5 March 6 $892,000. 7 Medvedovsky and the Shermans through Prostaff, which was paid 8 over $100,000 per month to manage the Law Office. 9 received approximately $74,000 in payments from the Law Office. 10 Kaplan, the Shermans, and Medvedovsky all agreed that Kaplan 11 would stay away from the Law Office and appear only to sign 12 checks and for essential meetings. 13 office at the Law Office, Kaplan s appointment book, and the 14 testimony of FBI Special Agent Rothe revealed that Kaplan was 15 rarely present at the Law Office. 16 Support 2002, Services, the The Medvedovsky formed a new entity called Law Inc., Office proceeds of had the which performed revenues fraud of were the same approximately transferred to Kaplan A photograph of Kaplan s Following the sale of the Law Office to Kaplan, Galkovich 17 began cooperating with the FBI. 18 27, 19 conversations with the Shermans, Medvedovsky, and Kaplan on 20 approximately 10 separate occasions. 21 discussions 22 conversations recorded by Galkovich detailed the efforts by the 23 Shermans, Medvedovsky, and Kaplan to prevent Galkovich from 24 cooperating with law enforcement authorities in its investigation 2001 and February about the 22, Between approximately December 2002, operations -7- Galkovich of recorded his In addition to general the Law Office, the 1 of the Sherman Clinic and the Law Office. 2 Galkovich informed his co-conspirators that he had been arrested 3 and that the FBI had inquired about the Shermans, a meeting was 4 arranged with Galkovich on January 8, 2002. 5 Galkovich that the purpose of the meeting was to sit down and 6 decide everything about Galkovich s case. 7 Gene 8 questioned him about the statement he had given to the FBI at the 9 time of his arrest. Later, at Galkovich s request, Kaplan joined 10 the meeting, and Galkovich told Kaplan that they needed to 11 discuss the transition of my practice to yours and this thing 12 that I m going to need for . . . possibly for court or possibly 13 for the Disciplinary Committee. 14 Kaplan suggested a variety of false stories to explain the Law 15 Office transfer. Medvedovsky initially met with Specifically, after Medvedvosky told Josef Sherman and Galkovich alone and Medvedovsky, Sherman, and 16 In March 2002, Kaplan, the Shermans, and Medvedovsky were 17 arrested by the FBI. Immediately following his arrest, Kaplan 18 agreed to be interviewed by the FBI. 19 Kaplan made a number of statements that the Government contends 20 were false, including that in August 2001 he was introduced to 21 Galkovich and Medvedovsky by a Vladimir Scheckman; that, as part 22 of his purchase of the Law Office, he was to receive only 1,000 23 files; that he did not recall who gave him the $20,000 check used 24 to purchase the Law Office; that the Law Office was sold to him -8- During that interview, 1 for $120,000; that he was assured by Medvedovsky and Galkovich 2 that 3 Galkovich had done nothing wrong ; that he just stopped by the 4 January 8 meeting between Galkovich, Medvedovsky, and Sherman 5 without planning in advance to participate; and that he did not 6 take the conversation on January 8 seriously and they were just 7 joking around. 8 9 the In charges August against 2002, Galkovich Josef meant Sherman, nothing Eugene because Sherman, and Medvedovsky pled guilty to a three-count information charging 10 them with conspiracy, mail fraud, and witness tampering. 11 was tried on the seven-count indictment against him described 12 above. 13 Kaplan guilty on all counts. 14 sentenced Kaplan principally to 27 months of imprisonment, three 15 years of supervised release, and $200,000 in restitution, but 16 granted bail pending appeal pursuant to 18 U.S.C. § 3143(b). 17 Kaplan After an approximately two-week trial, the jury found In August 2005, the district court This appeal followed. 18 19 20 DISCUSSION I. Counts One through Five: The Insurance Fraud Scheme 21 Turning first to the insurance fraud counts (Counts One 22 through Five), Kaplan argues on appeal, among other things, that 23 his conviction must be vacated because the district court erred 24 in admitting (A) lay opinion testimony regarding his knowledge of -9- 1 the fraud and (B) testimony concerning others knowledge of the 2 fraud. We consider each of his arguments in turn. 3 A. Admission of Galkovich s lay opinion testimony 4 The first issue before us concerns the district court s 5 admission of lay opinion testimony regarding Kaplan s knowledge 6 of the fraud. 7 which Galkovich recounted a conversation he and Kaplan had as 8 they drove together to the meeting in October 2001 to finalize 9 the sale of the Law Office to Kaplan. Kaplan principally objects to two colloquies in After describing the 10 conversation, Galkovich was allowed to offer his lay opinion 11 testimony regarding Kaplan s knowledge of the fraud. 12 direct examination, Galkovich testified as follows: 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 First, on [Prosecutor]: Did you have any discussions in the car ride on the way to Davis office? [Galkovich]: Yes. It was actually the first time we really talked, me and Solomon Kaplan. And I asked him, What do you do? What kind of work do you do? Are you familiar with car accident cases, with the process of settlement and what it takes to settle? And he explained, yes he has handled cases like this before. Yes, he has settled cases before. . . . . He explained that he has experience with these kinds of cases. [Prosecutor]: What did you understand him to mean when he said these kinds of cases ? [Defense Counsel]: Objection. The Court: I will allow it. -10- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 [Galkovich]: That he understood that these were car accident cases where people exaggerated their injuries, where it was crucial to have a narrative report that exaggerated the injuries, that these reports were bought for the best of prices to get the best of reports and that you could settle these cases for very good money in a short period of time. Joint Appendix ( JA ) 104-05. Then, on redirect, Galkovich elaborated: [Prosecutor]: What happened in this conversation? [Galkovich]: I asked him what experience he had with the car accident cases and generally what kind of experience he had, and he told me that he knew about these car accidents, he knew how to handle these cases, he knew how to maximize potential recoveries, and what is supposed to be in the files, how they are supposed to be worked up. [Prosecutor]: What was your purpose in asking Kaplan this question? [Galkovich]: I wanted to know how much he knew about the fraudulent office that he is participating in. [Prosecutor]: And after you got this answer from Mr. Kaplan, what did you think? [Galkovich]: I think he knew exactly what he was getting into. JA 138-39.1 We review a district court s decision to admit evidence, 35 including lay opinion testimony, for abuse of discretion. 36 United States v. Yuri Garcia, 413 F.3d 201, 210 (2d Cir. 2005) 37 (citing Old Chief v. United States, 519 U.S. 172, 174 n.1 1 See The two colloquies quoted above are hereafter frequently referred to as Galkovich s lay opinion testimony. -11- 1 (1997)). A district court abuses or exceeds the discretion 2 accorded to it when (1) its decision rests on an error of law 3 (such as application of the wrong legal principle) or a clearly 4 erroneous factual finding, or (2) its decision -- though not 5 necessarily the product of a legal error or a clearly erroneous 6 factual 7 permissible decisions. 8 163, 169 (2d Cir. 2001) (footnotes omitted). funding -- cannot be located within the range of Zervos v. Verizon N.Y., Inc., 252 F.3d 9 The Federal Rules of Evidence, in a sharp departure from the 10 common law, see Asplundh Mfg. Div. v. Benton Harbor Eng'g, 57 11 F.3d 1190, 1195 (3d Cir. 1995) (Becker, J.), permit lay witnesses 12 to 13 identified by Judge Learned Hand many years ago: testify in the form of opinions to address a problem 14 15 16 17 18 19 20 21 22 23 24 Every judge of experience in the trial of causes has again and again seen the whole story garbled, because of insistence upon a form with which the witness cannot comply, since, like most men, he is unaware of the extent to which inference enters into his perceptions. He is telling the facts in the only way that he knows how, and the result of nagging and checking him is often to choke him altogether, which is, indeed, usually its purpose. Central R.R. Co. of N.J. v. Monahan, 11 F.2d 212, 214 (2d Cir. 25 1926); see also Yuri Garcia, 413 F.3d at 211 ( eyewitnesses 26 sometimes 27 relationship of persons, the atmosphere of a place, or the value 28 of 29 Accordingly, Rule 701 of the Federal Rules of Evidence was an find object it by difficult to reference describe only -12- to the appearance objective or facts ). 1 adopted to accommodate and ameliorate these difficulties by 2 permitting 3 testify in language with which they are comfortable. 4 Weinstein & Margaret A. Berger, Weinstein s Federal Evidence § 5 701.02 (Joseph M. McLaughlin ed., 2d ed. 2004). lay witnesses, in appropriate circumstances, to 4 Jack B. 6 But to ensure that lay opinion testimony is reliable and 7 does not usurp the jury s role as fact-finder, Rule 701 imposes 8 certain foundation requirements that must be satisfied if such 9 testimony is to be admitted: 10 11 12 13 14 15 16 17 If the witness is not testifying as an expert, the witness testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. 18 Fed. R. Evid. 701 (2001). In interpreting these requirements, we 19 have observed that (a) the rational-basis requirement is the 20 familiar requirement of first-hand knowledge or observation, 21 United States v. Rea, 958 F.2d 1206, 1215 (2d Cir. 1992) (quoting 22 Fed. R. Evid. 701 advisory committee s note on 1972 Proposed 23 Rules); (b) the helpfulness requirement is principally designed 24 to provide assurance[] against the admission of opinions which 25 would merely tell the jury what result to reach, id. (quoting 26 Fed. R. Evid. 704 advisory committee s note on 1972 Proposed 27 Rules); 28 requirement requires that a lay opinion must be the product of and (c) the not based -13- on specialized knowledge 1 reasoning processes familiar to the average person in everyday 2 life, Yuri Garcia, 413 F.3d at 215.2 3 advisory committee s note on 2000 amendments. 4 The government s evidence See also Fed. R. Evid. 701 failed to demonstrate that 5 Galkovich s lay opinion testimony was rationally based on the 6 perception of the witness. 7 Rule 701(a) requires that lay opinion testimony be both (a) based 8 on 9 derived from those first-hand perceptions. the witness s Fed R. Evid. 701(a). first-hand perceptions and We note that (b) rationally 10 As to the first of these requirements, Rule 701(a) reflects, 11 in part, the Rules more general requirement that [a] witness 12 may 13 sufficient to support a finding that the witness has personal 14 knowledge of the matter. 15 States v. Durham, 464 F.3d 976, 982 (9th Cir. 2006) ( opinion 16 testimony of lay witnesses must be predicated upon concrete facts 17 within their own observation and recollection -- that is facts 18 perceived from their own senses, as distinguished from their 19 opinions 20 quotation 21 articulate the basis for his opinion, he answered, I based it on 22 the only thing I could base it on, which is my experience there, not testify or to a matter conclusions marks unless evidence is introduced Fed. R. Evid. 602; see also United drawn omitted)). from When 2 such facts Galkovich was (internal asked to In 2000, after Rea was decided, Rule 701 was amended to include 701(c). -14- 1 what people said about [Kaplan], my conversation with [Kaplan], 2 everything that I [had] been involved in. 3 could be based on. 4 testimony 5 principally his prior experiences at the Law Office and his 6 conversation with Kaplan -- his response was extremely vague. 7 Thus, Galkovich s testimony failed to show that his opinion as to 8 Kaplan s knowledge was rationally based on facts he had observed. 9 We are therefore unable to conclude, as we must under Rule 10 701, that the opinion he offered was rationally based on his own 11 perceptions. 12 identified the objective bases for his opinion, the proffered 13 opinion obviously fails completely to meet the requirements of 14 Rule 701 . . . because there is no way for the court to assess 15 whether it is rationally based on the witness's perceptions . . 16 . . ). 17 observed that lay opinion testimony regarding a defendant s 18 knowledge will, in most cases, only satisfy the rationally-based 19 requirement if the witness has personal knowledge of one or more 20 objective factual bases from which it is possible to infer with 21 some 22 includ[ing] what the person was told directly, what he was in a 23 position to see or hear, what statements he himself made to 24 others, conduct in which he engaged, and what his background and was JA 140. based in That s what my opinion Although Galkovich asserts that his part on first-hand experience -- See Rea, 958 F.2d at 1216 ( When a witness has not We applied this requirement to similar facts in Rea, and confidence that a person -15- knows a given fact . . . 1 experience were. 2 not lay an adequate foundation, Galkovich s testimony expressing 3 his opinion as to Kaplan s knowledge was not admissible. 4 Accordingly, having satisfy Because the Government did that testimony 6 Rule Galkovich s 701, we lay conclude opinion district court erred in admitting it. B. not found 5 7 8 9 10 does 958 F.2d at 1216. that the Admission of Galkovich s additional testimony regarding his and others knowledge Kaplan asserts that it was error for the district court to 11 admit Galkovich s additional testimony regarding Galkovich and 12 others knowledge of the fraud as circumstantial evidence of 13 Kaplan s knowledge. 14 testify that (1) when he first saw the building in which the Law 15 Office was located, he thought, [t]his is where I am going to 16 get arrested, JA 84; (2) everyone he spoke with told him not to 17 buy the Law Office, JA 87; (3) the fraud was done very subtly 18 because this whole industry was a very big sham and it was big 19 lies, JA 90; (4) the fraud was not discussed explicitly because 20 it was kind of like . . . hear no evil, see no evil, and he was 21 warned 22 [e]veryone knew what was going on, but you don t say it, JA 94; 23 (6) at a Christmas party at the Law Office, Eugene Sherman read 24 a poem about clients getting paid for sham injuries, JA 97; and 25 (7) Steven Rosenberg, a lawyer at the Law Office, quit because he to be very Specifically, Galkovich was permitted to careful in -16- what you say, JA 94; (5) 1 saw a file with blatant fraud, JA 116-19, and Michael Brummer, 2 another lawyer at the Law Office, was very sensitive and nervous 3 about what was going on in the office and was always very 4 nervous when we were skirting the issue of fraud, JA 119-21. 5 As previously noted, we review a district court s 6 evidentiary rulings for abuse of discretion. 7 413 F.3d at 210 (citing Old Chief, 519 U.S. at 174 n.1). 8 argues that the district court abused its discretion because the 9 evidence was irrelevant and should have been excluded under Fed. 10 R. Evid. 402 or, in the alternative, that its probative value was 11 substantially outweighed by the danger of unfair prejudice and 12 should 13 Government argues that the testimony was relevant to the question 14 of whether Kaplan was aware of the fraud because evidence that 15 the fraud was obvious and widely-known tended to make it more 16 probable that Kaplan also knew about it. 17 argued to the jury, [Kaplan] had to know. have been excluded under Fed. R. See Yuri Garcia, Evid. Kaplan 403. The As the prosecutor Everybody else did. 18 The parties vigorously dispute which of two precedents -- 19 United States v. Patrisso, 262 F.2d 194 (2d Cir. 1958), and 20 United States v. Schultz, 333 F.3d 393 (2d Cir. 2003) -- controls 21 this case. 22 hijacked; Patrisso, who knew they were stolen, sold them to 23 Ellis, who also knew; Ellis, in turn, sold them to Postrel; 24 finally, Postrel sold 1,000 of them to defendant Mankes. In Patrisso, a truckload of television tubes was -17- 262 1 F.2d at 196. 2 district court had erred by, inter alia, allowing the Government 3 to introduce Postrel s knowledge of the theft without evidence 4 that Postrel, or anyone else, had communicated that fact to 5 Mankes. 6 distinguished Patrisso in upholding the admission of testimony 7 regarding other individuals knowledge of a particular Egyptian 8 law to prove the defendant s knowledge of the law, finding that 9 it was relevant both to explain the practice of the industry in 10 which this prosecution arose and to establish what someone with 11 [defendant s] extended background in the industry probably would 12 know. 13 181, 197 (3d Cir. 1991)). 14 We reversed Mankes s conviction, finding that the Id. at 197. Over four decades later, in Schultz, we 333 F.3d at 416 (quoting United States v. Leo, 941 F.2d We believe that Patrisso and Schultz, though they reach 15 different outcomes, stand for the 16 regarding the knowledge of individuals other than the defendant 17 should be admitted only if there is some other evidence in the 18 record -- concerning, for example, the nature of the fraud or the 19 relationship of the parties -- from which to conclude that the 20 defendant would have the same knowledge. 21 court noted that the principal difference between the two cases 22 was the nature of the knowledge involved: Schultz was likely to 23 have the same knowledge, the defendant in Patrisso wasn t. 24 F.3d at 416. What of Kaplan? -18- same principle: evidence Indeed, the Schultz 333 1 We turn first to relevance. Relevant evidence includes any 2 evidence having any tendency to make the existence of any fact 3 that is of consequence to the determination of the action more 4 probable or less probable than it would be without the evidence. 5 Fed. R. Evid. 401; see also Fed. R. Evid. 402. 6 definition are two distinct requirements: (1) [t]he evidence must 7 be probative of the proposition it is offered to prove, and (2) 8 the proposition to be proved must be one that is of consequence 9 to the determination of the action. Implicit in that United States v. Diaz, 878 10 F.2d 608, 614 (2d Cir. 1989). As the Supreme Court has observed, 11 [t]he Rules basic standard of relevance . . . is a liberal 12 one. 13 Despite this liberal standard, we think this evidence had little 14 relevance in the circumstances of Kaplan s case. 15 others knowledge would have been highly relevant had it been 16 supplemented by evidence supporting the conclusion that such 17 knowledge was communicated to Kaplan, or that Kaplan had been 18 exposed to the same sources from which these others derived their 19 knowledge of the fraud. 20 relevance of others knowledge was at best minimal in proving 21 Kaplan s knowledge. Daubert v. Merrell Dow Pharms., 509 U.S. 579, 587 (1993). Evidence of In the absence of such evidence, the 22 Nor does our inquiry end there -- even as to evidence that 23 is plainly relevant, the trial judge retains discretion to 24 exclude the evidence if its probative value is substantially -19- 1 outweighed by the danger of unfair prejudice. Fed. R. Evid. 2 403. 3 reasons. 4 evidence that would connect the third parties knowledge of the 5 fraud to Kaplan. 6 Kaplan spent very little time at the law office and reviewed very 7 few claims directly. 8 evidence that anyone who allegedly was aware of the fraudulent 9 scheme actually had communicated his knowledge to Kaplan. This evidence was of minimal probative value for two First, as noted, the Government failed to offer Under the Government s own theory of the case, Moreover, the Government proffered no In 10 fact, Galkovich testified that the participants in the fraud were 11 careful not to speak openly about the fraudulent nature of the 12 injury claims: he testified that clients did not directly admit 13 to the firm that their accidents were staged, but rather that 14 generally it was done very subtly, and that he did not have 15 explicit conversations about the fraud with clients or other 16 people in the office because you don t want to get in trouble . 17 . . It is kind of like, you know, hear no evil, see no evil. . . 18 . Everyone knew what was going on, but you don t say it. 19 was not an office where the illegal nature of the business was 20 necessarily visible and audible to everyone who worked there. In 21 that sense, we think this case is more analogous to Patrisso than 22 to Schultz: as in Patrisso, the Government failed to offer 23 evidence that would explain how defendant Kaplan would have 24 obtained the third parties knowledge of the criminal scheme. -20- This 1 Second, much of the testimony concerning knowledge of the 2 fraud was so speculative or flawed in other respects that it had 3 little or no probative value. 4 not lay a proper foundation for Galkovich s statement that it was 5 [his] understanding that this whole business was very very -- 6 this whole industry was a very big sham and it was big lies ; 7 Galkovich was not qualified as one having special knowledge of 8 the personal injury industry, so it is difficult to see how 9 Galkovich had sufficient knowledge of the industry to testify For example, the Government did 10 competently on its criminal nature. 11 witness may not testify to a matter unless evidence is introduced 12 sufficient to support a finding that the witness has personal 13 knowledge of the matter. ); Woodman v. WWOR-TV, Inc., 411 F.3d 14 69, 86-87 (2d Cir. 2005) (affirming district court s decision to 15 exclude plaintiff s testimony that her age was well known 16 throughout the industry on ground that plaintiff was hardly 17 competent to testify to how others in the broadcast community 18 perceived her age (citing Fed. R. Evid. 602)). Galkovich s 19 testimony concerning the alleged knowledge of Rosenberg, another 20 lawyer 21 allegedly made statements to a secretary in the office, who 22 allegedly told Galkovich, who offered the jury the conclusion 23 that Rosenberg had quit his job because of fraud. 24 Keane, 355 F.3d 82, 90 (2d Cir. 2004) ( An assertion of fact in the office, was hearsay -21- See Fed. R. Evid. 602 ( A upon hearsay; Rosenberg Cf. Brown v. 1 based on conjecture and surmise, to which the declarant would not 2 be allowed to testify if called to the witness box, does not 3 become admissible under an exception to the hearsay rule . . . 4 . ). 5 We conclude, furthermore, that this limited probative value 6 is substantially outweighed by the risk of unfair prejudice. 7 Although relevant evidence is always prejudicial to one side, we 8 conclude that the risk of unfair prejudice here -- in particular, 9 the likelihood that jurors would render a decision on an improper 10 basis by giving this testimony undue weight or improperly holding 11 Kaplan liable because they believed he should have known of the 12 fraud -- was great. 13 inferences, unsupported by other evidence, to connect Galkovich s 14 testimony about his guilty knowledge (and that of others) to 15 Kaplan s own knowledge, the ultimate issue in the case. 16 the circumstances, the District Court should have concluded that 17 whatever slight probative value the testimony might have had was 18 outweighed 19 inferences from the testimony. 20 F.2d 1196, 1204 n.10 (2d Cir. 1970) (Friendly, J.) ( The length 21 of the chain of inferences necessary to connect the evidence with 22 the ultimate fact to be proved necessarily lessens the probative 23 value 24 susceptible to exclusion as unduly confusing, prejudicial, or of by the the The jury was required to draw a series of risk evidence, that and the jury would draw Under improper Cf. United States v. Ravich, 421 may -22- therefore render it more 1 time-consuming . . . . ). Moreover, Galkovich s testimony that 2 the entire industry in which Kaplan operated was a very big sham 3 and it was big lies was so inflammatory that it should have been 4 excluded as prejudicial under the circumstances. 5 the likelihood of prejudice was increased by the government s 6 improper use of the evidence of others knowledge. In summation, 7 the prosecutor argued, [Kaplan] had to know. 8 did. Furthermore, Everybody else As noted, the evidence did not support any such inference. 9 Accordingly, with respect to Galkovich s testimony regarding 10 his and others knowledge of the fraud, we conclude that the risk 11 of 12 probative value, and hold that the district court erred in 13 receiving this evidence. unfair prejudice substantially outweighed the limited 14 C. Harmless error analysis 15 We will reverse on account of these evidentiary errors only 16 if they affect substantial rights. See Fed. R. Crim. P. 52(a); 17 Fed. R. Evid. 103(a); Yuri Garcia, 413 F.3d at 210. 18 v. United States, the Supreme Court set forth the analysis for 19 determining whether a non-constitutional error is harmless: 20 21 22 23 24 25 26 27 28 29 If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand, except perhaps where the departure is from a constitutional norm or a specific command of Congress . . . . But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. -23- In Kotteakos 1 2 3 4 5 The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand. 6 328 U.S. 750, 764-65 (1946) (footnote omitted); see also United 7 States v. Dukagjini, 326 F.3d 45, 62 (2d Cir. 2003) (holding that 8 non-constitutional error affects substantial rights if it had a 9 substantial and injurious effect or influence on the jury s 10 verdict). But we are not required to conclude that it could not 11 have had any effect whatever; the error is harmless if we can 12 conclude that that testimony was unimportant in relation to 13 everything else the jury considered on the issue in question, as 14 revealed in the record. 15 v. Evatt, 500 U.S. 391, 403 (1991)). 16 we 17 prosecution s case; (2) the prosecutor s conduct with respect to 18 the improperly admitted evidence; (3) the importance of the 19 wrongly admitted testimony; and (4) whether such evidence was 20 cumulative of other properly admitted evidence. Zappulla v. New 21 York, 391 F.3d 462, 468 (2d Cir. 2004). principally consider Rea, 958 F.2d at 1220 (quoting Yates (1) the In conducting this inquiry, overall strength of the 22 Applying these factors, it is clear that Galkovich s lay 23 opinion testimony may have substantially swayed, Kotteakos, 328 24 U.S. at 765, the jury s verdict on Counts One through Five 25 because it was not unimportant in relation to everything else -24- 1 the jury considered on the issue in question. 3 2 case on those five counts rested principally on the following 3 evidence: 4 Sherman, and Medvedovsky told Galkovich to lie, Kaplan s sham 5 purchase of the Law Office, Kaplan s disinterest in cases filed 6 by the Law Office in his name, Kaplan s absence from the Law 7 Office, the arrangement between the Law Office and Prostaff and 8 Medvedovsky, Kaplan s receipt of over $70,000 for his limited 9 services at the Law Office, and his false statements upon his the recorded conversations during The Government s which Kaplan, 10 arrest. Although the Government may, of course, prove its case 11 exclusively with such circumstantial evidence, their case with 12 respect to those counts was not strong. 13 As a result, and because Kaplan s knowledge of the fraud was 14 the central disputed issue in the case, Galkovich s lay opinion 15 testimony was vitally important -- just the sort of evidence that 16 might well sway a jury confronted with a marginal circumstantial 17 case. 18 strategy with respect to the evidence; the Government repeatedly 19 called the jury s attention to Galkovich s lay opinion testimony. 20 In its opening statement, the Government told the jury that 21 Galkovich will recount for you conversations he had with Kaplan 22 during the sale in which they discussed the fraudulent nature of Our concern is heightened by the Government s trial 3 As a result of this conclusion, we need not evaluate whether the error in admitting Galkovich s testimony regarding others knowledge was harmless. -25- 1 the law practice. In its closing, the Government reminded the 2 jury that Galkovich explained to you that that conversation, and 3 Kaplan s comments, satisfied Galkovich that Kaplan understood all 4 about the fraud, and that [w]e know . . . from the testimony of 5 the witnesses, that Solomon Kaplan knew, undeniably knew, about 6 the fraud at the law firm. 7 that [Kaplan] essentially admitted to Galkovich that he knew 8 what was going on at this law office. 9 understood what he said. In rebuttal, the Government stated That was how Galkovich It is not his opinion. He was there. 10 He had the conversation. 11 evidence was unique and thus was not cumulative of properly 12 admitted evidence. 13 And, finally, we observe that this Because we cannot, in light of the foregoing, say with fair 14 assurance that 15 substantially sway[] the jury s verdict as to Counts One, Two, 16 Three, Four, and Five, we conclude that this error was not 17 harmless 18 counts. and Galkovich s therefore lay vacate opinion Kaplan s testimony conviction did on not those 19 20 21 II. Counts Six and Seven: Interfering with the Investigation We turn next to Kaplan s arguments challenging his 22 conviction for interfering with the investigation by tampering 23 with a witness (Count Six) and giving false statements to the FBI 24 (Count Seven). He argues on appeal, among other things, that his -26- 1 conviction on those two counts must be vacated due to the 2 district court s witness tampering and conscious avoidance jury 3 instructions and a constructive amendment of, or prejudicial 4 variance 5 particulars.4 6 A. 7 Kaplan contends that the district court s jury instruction 8 on Count Six, alleging witness tampering, is deficient in light 9 of the Supreme Court s decision in Arthur Andersen LLP v. United 10 from, the indictment, as clarified by a bill of We address his arguments in turn. Witness tampering jury instruction States, 544 U.S. 696 (2005), decided after his conviction. 11 Kaplan made no objection to this aspect of the jury 12 instruction. 13 error standard of Fed. R. Crim. P. 52(b). 14 when the claim of error derives from a supervening decision 15 altering a settled rule of law in the Circuit, as it does here, 16 the 17 modified plain-error. claimed Therefore, we review his argument under the plain error should be assessed We have ruled that under a standard of See United States v. Viola, 35 F.3d 37, 4 We note briefly that to the extent Kaplan argues that the evidentiary errors discussed in Section I compel us to vacate his conviction on Counts Six and Seven as well, we reject his argument. As to Counts Six and Seven, the evidentiary errors were harmless because the improper evidence was at most tangential to the theory of Counts Six and Seven. The Government s case rested on substantial independent evidence, including tape recordings of Kaplan s participation in witness tampering, Kaplan s post-arrest statement, and testimony by the FBI agent who took Kaplan s post-arrest statement, to support his conviction. Moreover, the Government did not emphasize the testimony in issue in urging the jury to convict Kaplan of these two counts. -27- 1 41-44 (2d Cir. 1994). 2 error bears the burden of persuasion as to prejudice, but under 3 our modified plain-error review, the Government bears that 4 burden. 5 whether the standard applied is the conventional or the modified 6 plain error standard because any error in the charge was 7 inconsequential 8 standard.5 9 10 Ordinarily, the defendant asserting plain See id. at 41-42. and did In this case it makes no difference not rise to the level of either Count Six alleges violations of 18 U.S.C. §§ 1512(b)(1) and (b)(3), which provide that: 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (b) Whoever knowingly uses intimidation, threatens or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to-(1) influence, delay or prevent the testimony of any person in an official proceeding; . . . (3) hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation, supervised release, parole, or release pending judicial proceedings; shall be fined under this title or imprisoned not more than ten years, or both. 29 court s instructions were deficient in two respects -- they In Arthur Andersen, the Supreme Court found the district 5 The Government argues that the Supreme Court s decision in Johnson v. United States, 520 U.S. 461 (1997), requires that this Court abandon its modified plain-error test. We need not address the merits of this argument because we find that, even under the modified plain error test, Kaplan is not entitled to have his witness tampering conviction overturned. -28- 1 failed to convey the requirements of 18 U.S.C. § 1512(b)(2) of 2 mens rea and nexus to an official proceeding. 3 these 4 instructed the jury that it could convict Arthur Andersen of 5 witness tampering in relation to an official proceeding if it 6 found that Arthur Andersen intended to subvert, undermine, or 7 impede governmental factfinding by suggesting to its employees 8 that they enforce the document retention policy, and that even 9 if [Arthur Andersen] honestly and sincerely believed that its deficiencies, the district court As to the first of in Arthur Andersen 10 conduct was lawful, you may find [Arthur Andersen] guilty. 544 11 U.S. at 706. These instructions, the Supreme Court held, did not 12 properly convey the mens rea required for a violation of 18 13 U.S.C. § 1512(b) -- 14 that it covered innocent conduct, id. -- because [o]nly persons 15 conscious of wrongdoing can be said to knowingly . . . corruptly 16 persuad[e], id. (emphasis supplied). they diluted the meaning of corruptly so 17 As to the second deficiency -- regarding the so-called 18 nexus requirement -- the Supreme Court in Arthur Andersen found 19 the 20 corrup[t] persuade[r] cannot be someone who persuades others to 21 shred documents under a document retention policy when he does 22 not have in contemplation any particular official proceeding in 23 which those documents might be material, id. at 708, and the 24 district court s instructions led the jury to believe that it instructions deficient because -29- [a] knowingly . . . 1 did not have to find any nexus between the persua[sion] to 2 destroy documents and any particular proceeding, id. at 707. 3 Cf. United States v. Arthur Andersen, 374 F.3d 281, 298 n.32 (5th 4 Cir. 2004) (reciting district court s charge in Arthur Andersen 5 defining official proceeding ). 6 corrupt persuader must believe that his actions are likely to 7 affect a particular, existing or foreseeable official proceeding. 8 See Arthur Andersen, 544 U.S. at 708; see also United States v. 9 Quattrone, 441 F.3d 153, 181 (2d Cir. 2006) (holding that Arthur 10 Andersen requires that there be some nexus between the effort to 11 tamper . . . pertaining to the relevant proceeding and awareness 12 that such conduct was likely to affect the proceeding ). Instead, a knowingly . . . 13 Kaplan contends that the district court s instructions in 14 this case are similarly deficient. The district court instructed 15 the jury on Count Six as follows: 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 The first element the government must prove is that the defendant corruptly persuaded a person, or attempted to do so. . . . . The word corruptly simply means having an improper purpose. An intent to subvert or undermine the factfinding ability of an official proceeding is an improper purpose . . . The second element that the government must prove is that the defendant acted knowingly and with the specific intent to influence the testimony of another person in an official federal proceeding. An act is done knowingly if it is done voluntarily and intentionally and not because of mistake or accident. By specific intent, I meant that the defendant must have acted knowingly and with the unlawful intent to influence the testimony of another person in an official -30- 1 2 3 4 5 6 federal proceeding; or to hinder, delay or prevent the communication to a federal law enforcement officer or judge information relating to the commission or possible commission of a federal offense. JA 287-88. 7 Applying the lessons of Arthur Andersen, we find that the 8 charge adequately conveyed the statute s mens rea requirement. 9 Viewing the charge as whole, the district court conveyed the 10 substantial equivalent of Arthur Andersen s holding that the 11 defendant must be conscious of wrongdoing by instructing the 12 jury to convict only if it found that the defendant acted with an 13 improper purpose and acted knowingly and with the unlawful 14 intent to influence the testimony. 15 Court in Arthur Andersen expressly faulted the jury instructions 16 in that case for (1) specifying that the jury could convict if it 17 found that Arthur Andersen intended to subvert, undermine, or 18 impede 19 connotations than subvert or even undermine, and many of 20 these connotations do not incorporate any corruptness at all, 21 544 U.S. at 706-07 (brackets omitted), and (2) instructing the 22 jury that even if [Arthur Andersen] honestly and sincerely 23 believed that its conduct was lawful, you may find [Arthur 24 Andersen] guilty, id. at 706. 25 nothing of the sort. 26 Kaplan acted with an improper purpose and with unlawful 27 intent. (emphasis added) because We note that the Supreme impede has broader The district court here charged To convict, the jury had to find that -31- 1 Second, with regard to Kaplan s argument that the district 2 court s instructions were erroneous in light of Arthur Andersen s 3 discussion of the statute s nexus requirement, we note first that 4 the charges in Arthur Andersen were brought under two clauses of 5 § 1512(b)(2), both of which explicitly include as an element that 6 the obstruction or tampering relate to an official proceeding, 7 see id. at 702. 8 and (3). With respect to § 1512(b)(3), it is unclear whether 9 Arthur Andersen s nexus requirement is applicable because § 10 1512(b)(3) does not explicitly refer to an official proceeding. 11 See United States v. Byrne, 435 F.3d 16, 23-25 (1st Cir. 2006). 12 We 13 requirement is applicable to prosecutions under § 1512(b)(3), and 14 the 15 erroneous for failure to discuss nexus, any such error was 16 harmless in the circumstances of this case for the reasons 17 discussed below. need 18 not district Kaplan, however, was charged under §§ 1512(b)(1) decide court s this issue, because instructions under even § if the 1512(b)(3) nexus were Kaplan was, as noted, also charged under § 1512(b)(1), which 19 does contain an explicitly stated element of an official 20 proceeding. 21 needed to comply with the nexus requirement discussed in Arthur 22 Andersen. 23 government must prove that the defendant acted with the 24 specific intent to influence the testimony of another person in The jury instructions on this charge undoubtedly The district court instructed the jury that the -32- 1 an official federal proceeding. The instructions did not 2 identify the official proceeding. In view of the Supreme Court s 3 discussion in Arthur Andersen, 544 U.S. at 707 (finding the 4 instructions infirm because they led the jury to believe that it 5 did not have to find any nexus between the persuasion to 6 destroy documents and any particular proceeding ), it would 7 surely have been more prudent, even where the evidence only 8 points to one federal proceeding, for the district judge to 9 identify the particular federal proceeding that the defendant 10 intended to obstruct. We need not decide whether the failure to 11 do so in this case was error, because as we note below, it was 12 harmless in any event. 13 Furthermore, in Quattrone, 441 F.3d at 153, the district 14 court, following the Supreme Court s formulation of the nexus 15 requirement in United States v. Aguilar, 515 U.S. 593, 599 16 (1995), described nexus to the jury as some relationship in 17 time, causation or logic, between the defendant s actions and the 18 grand jury proceeding so that his action or actions may be said 19 to have the natural and probable effect of interfering with that 20 proceeding. Quattrone, 441 F.3d at 177 n.24. We ruled that this 21 instruction accurately described the nexus requirement. 22 178. The instructions given below did not contain this language, 23 or 24 deficient. its reasonable equivalent. -33- In that regard, Id. at they were 1 Nevertheless, Kaplan is not entitled to reversal of his 2 conviction on Count Six. 3 deficiencies in the charge on nexus, any deficiencies were 4 harmless in the particular circumstances of the case and did not 5 amount to plain error. 6 and Quattrone, who, in accordance with a routine file purging 7 policy, had urged destruction of documents that they may not have 8 known 9 Andersen, 544 U.S. at 707, Kaplan, according to the government s were relevant directly Despite this error and other arguable Unlike the defendants in Arthur Andersen to any particular evidence, 11 Galkovich s testimony. 12 conceded that, if the jury found that he urged Galkovich to 13 testify 14 disciplinary 15 Kaplan argued that the jury should find that any such effort 16 related to the state disciplinary proceeding, and was therefore 17 not 18 conceded that, if the jury rejected his contention that his 19 efforts related to the disciplinary proceeding, the efforts 20 relat[ed] in time, causation or logic, Quattrone, 441 F.3d at 21 177 22 Accordingly, the court s failure to explain in full an element 23 that Kaplan had essentially conceded was harmless. covered n.24, it was proceeding by to § 1512. in an effort to Arthur 10 falsely, participated proceeding, influence In his summation, Kaplan implicitly with or respect the His Galkovich s to federal criminal argument, federal -34- either however, criminal the state proceeding. implicitly proceeding. 1 In sum, any error in the jury instructions was harmless and 2 does not meet the standard of plain error. We reject Kaplan s 3 argument that we must vacate his conviction on Count Six. 4 B. Conscious avoidance jury instruction 5 Kaplan contends that it was error for the district court to 6 give a conscious avoidance charge on Count Six. 7 We agree but conclude that the error was harmless. 8 An instruction on conscious avoidance is proper only (i) 9 when a defendant asserts the lack of some specific aspect of 10 knowledge 11 factual predicate for the charge exists. Quattrone, 441 F.3d at 12 181 (internal citations omitted). 13 requirements, a factual predicate exists when the evidence is 14 such that a rational juror may reach the conclusion beyond a 15 reasonable 16 probability of the fact in dispute and consciously avoided 17 confirming that fact. 18 required doubt Evidence for that conviction the and (ii) the appropriate As for the second of these defendant was aware of a high Id. (internal quotation marks omitted). sufficient to find actual knowledge does not 19 necessarily constitute evidence sufficient to find conscious 20 avoidance. 21 Cir. 2000) ( The evidence shows that [defendant] actually knew of 22 the frauds; it is not sufficient to permit a finding that he 23 consciously avoided confirming them. The fact that a jury can -- 24 on the evidence -- find actual knowledge does not mean that it See United States v. Ferrarini, 219 F.3d 145, 157 (2d -35- 1 can also find conscious avoidance. ). Because the only record 2 evidence indicates that Kaplan had actual knowledge of the 3 witness tampering, there was no factual predicate for a conscious 4 avoidance charge on Count Six, and it was error for the district 5 court to give it.6 6 Nevertheless, we find that the error was harmless because 7 there was overwhelming evidence of Kaplan s actual knowledge and 8 direct involvement in the witness tampering, see ante at 8. 9 Quattrone, 441 F.3d at 181 (quoting Ferrarini, 219 F.3d at 154) an erroneously given conscious avoidance See 10 ( But instruction 11 constitutes harmless error if the jury was charged on actual 12 knowledge and there was overwhelming evidence to support a 13 finding that the defendant instead possessed actual knowledge of 14 the fact at issue. ). 15 16 6 We reject Kaplan s argument that it was error for the district court to give a conscious avoidance charge when the government argued actual knowledge in the alternative. Although we noted in Ferrarini that evidence sufficient to find actual knowledge does not necessarily establish a factual predicate for conscious avoidance, 219 F.3d at 157, we have held that a conscious avoidance charge is not inappropriate merely because the Government has primarily attempted to prove that the defendant had actual knowledge, while urging in the alternative that if the defendant lacked such knowledge it was only because he had studiously sought to avoid knowing what was plain, United States v. Hopkins, 53 F.3d 533, 542 (2d Cir. 1995). So long as the Government can establish a factual predicate for conscious avoidance, it is free to argue alternative theories of conscious avoidance and actual knowledge. -36- 1 C. Variance between bill of particulars and proof 2 Finally, Kaplan argues that the Government s proof at trial 3 constructively amended, or prejudicially varied from, Count Seven 4 of the indictment, as clarified in a bill of particulars. 5 disagree. We 6 Count Seven, which arises from the statements that Kaplan 7 made to the FBI after his arrest, alleges that Kaplan made 8 materially 9 representations, to wit, KAPLAN falsely informed an agent of the false, of and Investigation fraudulent about the statements and 10 Federal 11 surrounding his purchase of a law practice from [Galkovich]. JA 12 17-18. These false statements were disclosed to Kaplan in an FBI 13 report prior to trial. 14 bill of particulars, the Government stated that the statements 15 contained in paragraphs three and four on page one of Kaplan s 16 post-arrest statement form the basis of Count Seven. 17 Bureau fictitious, circumstances In response to Kaplan s request for a At trial, the Government offered ample proof of numerous 18 false statements.7 19 contended that seven statements were false: Kaplan told the FBI 20 that (1) he was introduced to Galkovich and Medvedvosky by a 21 Vladimir Scheckman; (2) he received a thousand cases from 22 Galkovich as a result of the sale; (3) the Law Office was sold In summation, the Government principally 7 On appeal, Kaplan does not challenge the sufficiency of this evidence to support his conviction on Count Seven. -37- 1 to him for $120,000; (4) he did not recall who gave him the 2 $20,000 check used to purchase the Law Office; (5) he was assured 3 by Medvedovsky and Galkovich that the charges against Galkovich 4 were nothing [because] Galkovich had done nothing wrong ; (6) he 5 just stopped by the January 8 meeting between 6 Medvedovsky, 7 participate; and (7) he did not take the conversation on January 8 8 very seriously and that they were just joking around. Only 9 one of and these 10 Galkovich 11 statements Medvedovsky without -- planning concerning -- was how specified in advance Kaplan had in bill the to met particulars. 12 and Sherman Galkovich, of This does not constitute a constructive amendment of the 13 indictment. To prevail on a constructive amendment claim, a 14 defendant must demonstrate that either the proof at trial or the 15 trial court s jury instructions so altered an essential element 16 of the charge that, upon review, it is uncertain whether the 17 defendant was convicted of conduct that was the subject of the 18 grand jury s indictment. 19 608, 620 (2d Cir. 2003). 20 essential elements of the crime charged in Count Seven -- albeit 21 with different proof, as indicated above -- the indictment was 22 not constructively amended. See, e.g., United States v. Wallace, 23 59 F.3d 333, 337 (2d Cir. 1995) (holding that no constructive United States v. Salmonese, 352 F.3d Here, because the Government proved the -38- 1 amendment occurs where a generally framed indictment encompasses 2 the specific legal theory or evidence used at trial ). 3 A variance, on the other hand, occurs when the charging 4 terms remain unaltered but the facts proven at trial differ from 5 those alleged in the indictment or bill of particulars. 6 United States v. Dupre, 462 F.3d 131, 140 (2d Cir. 2006); United 7 States v. Glaze, 313 F.2d 757, 759 (2d Cir. 1963) (holding that 8 once the Government has responded with a bill of particulars, it 9 is strictly limited to proving what it has set forth in it. ). 10 However, we will reverse on account of a variance only if it 11 prejudices 12 rights that indictments exist to protect -- to inform an 13 accused of the charges against him so that he may prepare his 14 defense and to avoid double jeopardy. 15 see also Glaze, 313 F.2d at 759 ( it is well settled that a 16 variance between the proof and the bill of particulars is not 17 grounds for reversal unless the [defendant] is prejudiced by the 18 variance. ). 19 the Assuming defendant arguendo by infringing there was a on the See substantial Dupre, 462 F.3d at 140; variance, we detect no 20 prejudice to Kaplan s ability to prepare his defense or interpose 21 a defense of double jeopardy. 22 the 23 permitted significant flexibility in proof without finding 24 prejudice. core of criminality Where the defendant has notice of to be proven at trial, we have See United States v. LaSpina, 299 F.3d 165, 181-82 -39- 1 (2d Cir. 2002); see also Salmonese, 21 F.3d at 1236 ( A defendant 2 cannot demonstrate that he has been prejudiced by a variance 3 where the pleading and the proof substantially correspond . . . 4 . ). 5 wire transfer other than that specified in the indictment was a 6 variance but did not prejudice the defendant because she was not 7 surprised by the proof, 462 F.3d at 141-42, and suffered no risk 8 of double jeopardy, id. at 143 n.12. 9 routinely found that no prejudice results from a variance between 10 overt acts charged in an indictment and those proved at trial. 11 See, e.g., Frank, 156 F.3d at 337; LaSpina, 299 F.3d at 182-83; 12 Salmonese, 13 [i]ndictment . . . gave [defendant] fair and adequate notice that 14 the conspiratorial scheme achieved its ultimate economic purpose 15 through the conspirators multiple sales of stripped securities 16 and their receipt of proceeds through June 1996, [defendant] 17 cannot show that he was prejudiced by proof of a few uncharged 18 proceed receipts after May 8, 1996. ). 19 For example, in Dupre, we concluded that the proof of a 352 F.3d at 622 ( In Additionally, we have this case, because [the] The alleged variance here in issue similarly does not 20 justify reversal. Before trial, the government gave Kaplan the 21 FBI report detailing all of his statements. 22 indictment was broadly framed, giving Kaplan notice of the core 23 of criminality to be proven at trial. 24 not object to the admission of the false statements not specified -40- Count Seven of the And Kaplan s counsel did 1 in the bill of particulars, nor did he request a continuance when 2 they were introduced. 3 record that the evidence adduced at trial unfairly surprised 4 Kaplan, exposed him to a risk of double jeopardy, or unfairly 5 prejudiced him in any other way. 6 error, much less the plain error that arguably was required to be 7 shown as a result of Kaplan s failure to object. There is therefore no indication in the The variance did not create 8 We therefore reject Kaplan s argument that the Government s 9 proof at trial constructively amended, or prejudicially varied 10 from, Count Seven of the indictment. 11 12 CONCLUSION 13 We have considered all of Kaplan s remaining arguments on 14 appeal and find them to be without merit. 15 forth above, the judgment of conviction is vacated as to Counts 16 One, Two, Three, Four, and Five, and affirmed as to Counts Six 17 and 18 consistent with this opinion. Seven. The case is remanded -41- for For the reasons set further proceedings
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