United States v. Hoffecker

Opinions of the United

2008 Decisions States Court of Appeals

for the Third Circuit

6-16-2008

USA v. Hoffecker

Precedential or Non-Precedential: Precedential

Docket No. 06-3190

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 06-3190

UNITED STATES OF AMERICA

v.

CHARLES PAUL HOFFECKER

also known as

CHIP HOFFECKER

Charles Paul Hoffecker,

Appellant

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Crim. No. 03-cr-00120-1)

Honorable Katharine S. Hayden, District Judge

Argued March 6, 2008

BEFORE: FISHER, GREENBERG, and ROTH, Circuit Judges

(Filed: June 16, 2008)

Christopher J. Christie

United States Attorney

Sabrina G. Comizzoli (argued)

Assistant U.S. Attorney

George S. Leone

Chief Appeals Division

1

Office of the United States Attorney

970 Broad Street

Room 700

Newark, NJ 07102-0000

Attorneys for Appellee

Susan Dmitrovsky (argued)

Sale & Kuhne

Law Office of Benedict P. Kuehne

100 Southeast 2nd Street

Bank of America Tower, Suite 3550

Miami, FL 33131-0000

Attorneys for Appellant

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

Following his indictment on the charges a jury convicted

Charles Paul Hoffecker of one count of conspiracy to commit mail

and wire fraud in violation of 18 U.S.C. § 371 and three counts of

mail fraud in violation of 18 U.S.C. § 1341. Based on these

convictions, the District Court sentenced Hoffecker to a total

custodial term of 210 months to be followed by three years of

supervised release. Hoffecker appeals making the following

claims: (1) the District Court erred in admitting the testimony of his

former attorney; (2) the prosecution was time-barred; (3) the

prosecutor engaged in prejudicial misconduct; (4) the District

Court erred in its instructions to the jury; (5) a Government witness

committed perjury; (6) the District Court erred in excluding expert

witnesses; (7) the District Court erred in admitting evidence of a

civil injunction entered against him; (8) the District Court erred in

excluding his out-of-court statements; (9) the prosecutor made

improper comments during closing argument; and (10) the District

Court erred in calculating his sentencing guideline range and his

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sentence is unreasonable. After our examination of all of these

issues we have concluded that those concerning the testimony of

his former attorney and the statute of limitations are the most

significant and potentially of the greatest precedential importance.

In the end, however, we reject all of Hoffecker’s contentions and

will affirm the amended judgment of conviction and sentence in

this case entered July 24, 2006.

II. FACTS AND PROCEDURAL HISTORY

After a conviction predicated on a jury verdict, we set forth

the evidence in the light most favorable to the Government.1

United States v. Wood, 486 F.3d 781, 783 (3d Cir. 2007). In

November 1995, Hoffecker and his co-defendant Charles Edward

Myers formed Amitex Investment Services Limited, Inc.

(“Amitex”), a Bahamian corporation headquartered in Nassau,

purportedly to sell physical commodities on a financed basis. It

appears that Hoffecker contemplated that Amitex’s customers who

were actually its victims would be United States residents and, in

fact, they were. Hoffecker owned 65% of Amitex, Myers owned

30%, and a third party, Walid El-Houri, owned the remaining 5%.

Myers oversaw Amitex’s daily operations while Hoffecker

operated Amitex through daily phone contact and routine visits.

Hoffecker then incorporated Global Investment Corporation

(“Global”) in Florida in December 1995 but relocated Global to

1

We are struck by the circumstance that Hoffecker’s brief is

detached from the realities of the case as it hardly makes reference

to the facts that constitute the offenses involved and does not come

close to setting them forth in a light favorable to the Government.

This is unfortunate because the trial took more than two months

and produced 61 volumes of appendices and supplemental

appendices. In fact, after reading Hoffecker’s brief one might

wonder what had been going on here and what Hoffecker did to

warrant his conviction. Fortunately, the Government’s brief makes

up for this shortcoming and neither the Government nor Hoffecker

has been prejudiced by Hoffecker’s brief’s lack of factual detail.

3

Georgia in November 1996. Global was one of approximately ten

“boiler-rooms” in which telemarketers sold the Amitex Leveraged

Physical Commodity Investment Program (“LPCIP”) to individual

customers. Hoffecker owned and controlled Global, referred to

himself as its “administrator,” and took substantial amounts of

money from Global in cash. His activities with respect to Global

were extensive as he visited its offices, created promotional

documents for its customers, hired its employees, presided over

office-wide meetings and conference calls, brokered deals on its

behalf, authorized its materials to be provided to third parties, and

conducted sales presentations to the telemarketers.

Hoffecker instructed Global’s telemarketers to represent to

customers that the LPCIP would purchase actual tangible

commodities on a customer’s behalf, such as precious metals,

gasoline, and heating oil, and store them outside the United States.

The telemarketers also represented that the customers would pay

for their purchases in part by using “loans” and “loan financing”

that Amitex provided. Nevertheless, the LPCIP solicited a 20%

down payment from its customers with the agreement that Amitex

would advance the remaining 80% of the purchase price as a loan

at 12% annual interest. Of course, inasmuch as Amitex did not

purchase the commodities it hardly assumed a burden when it

engaged itself to make these “loans.”

The LPCIP was an elaborate and highly successful scam.

Customers made down payments and were charged interest for the

nonexistent fictional “loans” to purchase commodities that neither

Amitex nor anyone else acting on its behalf bought or stored.

Hoffecker enriched himself from the scam by siphoning off

millions of dollars from Bahamian bank accounts that he had set up

to conceal the fraud from United States law enforcement

authorities.

Amitex’s brochures and promotional materials falsely

represented that Amitex was a legitimate operation, touting

promises regarding its acquisition and storage of physical

commodities, company history, account executives, office

locations, and departments. A Global brochure extolled the

investment’s “tangibility,” and represented that “the commodity

[purchased would be] physically delivered to a lender for

4

safekeeping.” App. vol. 25 at 35, 159. The brochure listed, with

photographs, the types of commodities offered, including gold,

silver, platinum, heating oil, unleaded gasoline, and foreign

currencies.

Hoffecker instructed his telemarketers to emphasize to

potential clients that the investment in physical commodities was

safe and secure because it had “tangibility and liquidity,” app. vol.

14 at 18, 31; vol. 25 at 159, and the commodities were “actually

something you can hold and touch,” app. vol. 17 at 86. Global’s

telemarketers and Global’s account agreement represented that the

commodities themselves secured the Amitex loans and were being

held by Amitex as collateral in insured storage facilities outside the

United States.

In addition, Amitex sent investors a brochure touting its

“third party storage” facility. App. vol. 14 at 31; vol. 17 at 67. It

also advised customers that there was a storage fee, but that this fee

currently was not being charged. This aspect of the fraud was

significant as one customer thought of the fee waiver as a “great

perk.” App. vol. 26 at 44.

In reality, neither Amitex nor Global purchased or stored

physical commodities. In fact, Amitex did not have the physical

capability to store the physical commodities, and a Government

expert testified that the promise to “hold” and “store” several of

these commodities physically could not be fulfilled. In this regard,

as an example of Amitex’s inability to store the commodities,

heating oil and unleaded gasoline degrade and/or become

contaminated over a period of months, becoming unsalable.

Hoffecker falsely created the image that Global and Amitex

were thriving worldwide entities. Amitex’s brochures touted Walid

El-Houri as the original founder of Amitex and claimed that

Amitex had a 25-year history and had generated “several billion

dollars” from its global ventures, including worldwide oil and other

commodity transactions. App. vol. 25 at 164; vol. 17 at 60-69.

Hoffecker instructed his telemarketers to emphasize Amitex’s

“billions” of dollars of business to demonstrate that Amitex was a

large company which its clients could trust. App. vol. 17 at 62-63.

5

These representations were false. El-Houri was not an

original founder of Amitex; rather, he was briefly a 5% owner who

ceased his involvement with Hoffecker and Amitex only a few

months after its inception. El-Houri’s attempt to extract himself

from Amitex culminated in Amitex’s agreement on March 5, 1996,

at El-Houri’s insistence to destroy all marketing brochures and

public relations documents portraying him as a major principal in

Amitex. This agreement was, however, as worthless as all of

Amitex’s other undertakings as it continued to send its customers

brochures throughout 1996 and 1997 touting El-Houri as the

original founder of Amitex.

Of course, Amitex did not generate “several billion dollars”

over its supposed 25-year history. Amitex opened for business in

November 1995 and did no significant business prior to issuing the

brochure touting its 25-year history. Contrary to representations

contained in its brochures, Amitex was not engaged in any global

business ventures involving worldwide oil transactions,

international business transactions, or financing of major global

projects. Moreover, though Amitex brochures and envelopes

represented that it had offices in the Bahamas, London, Munich,

and Monaco,2 its only office was in the Bahamas.

Amitex’s and Global’s written materials and telemarketers

referenced various departments within the companies, such as

Amitex’s “New Accounts Department,” “Customer Service

Department,” “Traders,” and “Compliance Department.” App. vol.

14 at 72, 160; vol. 21 at 34-36, 93-94. These departments,

however, did not exist. Amitex’s staff consisted of approximately

five Bahamian office workers, whom Hoffecker described as “back

office” types who performed clerical and administrative tasks.

Supp. app. at 22. Thus, contrary to the brochures’ representations,

Hoffecker’s staff did not have “extensive international business

expertise,” “worldwide contacts,” or “a network of professional

men and women who have the uncompromising commitment,

integrity and motivation to achieve success.” App. vol. 21 at 73-

74.

2

The term Monte Carlo actually was used.

6

Global similarly represented that it had a “Trading

Department,” “Compliance Department,” and “Compliance

Director.” App. vol. 24 at 109, 111, 122. In reality, Global did not

have a Trading Department and its so-called Compliance

Department consisted of one person, the Compliance Director,

Francine Leone, who was a secretary who performed clerical and

administrative tasks. Leone testified that she had no training or

expertise in compliance-related matters, and did not interact with

any in-house or outside legal counsel. Her alleged

compliance-related duties were nothing of the kind as they

consisted of reading a short script to prospective investors. If

Leone was unavailable to read the script, other Amitex

telemarketers would read it for her. Leone spoke to virtually every

Global customer on the telephone throughout 1996. Her script

advised the customer: “I will go ahead and execute your trade . . .

.” Supp. app. at 42. But in reality neither Global nor anyone else

made the claimed trades or purchases. As Leone testified at trial,

Global’s Compliance Department was nothing more than an

“illusion.” App. vol. 24 at 124.

Global also sent the customers a brochure representing that

Global’s “account executives” had the requisite “expertise and

resources to guide and assist you in your journey through the

financial arena.” Id. at 91-92. In reality, however, Global hired

telemarketers without requiring any professional credentials or

expertise other than that they had to be “good talkers.” Id. at 101.

Global’s on-site manager, Jayson Kline, had followed Hoffecker

from his previous business ventures. Kline and other Global

telemarketers previously had lost their licenses to sell commodities

futures and options (though no license was required to sell

“physical” commodities).

Hoffecker’s scheme further involved duping customers with

written statements “confirming” trades and monthly account

statements. Thus, after each supposed purchase of a physical

commodity, Global sent the customer a written “Confirmation

Statement,” confirming that the customer “bought” a specified

quantity of a specific physical commodity at a specific price. App.

vol. 14 at 67. The written confirmation contained a “Trade Date”

and a “Loan Amount” and reflected the customer’s 20% down

payment. App. vol. 26 at 21-22. Amitex subsequently sent the

7

customers monthly account statements confirming the alleged

loans, the purchase of products, and the monthly interest charged.

Hoffecker fraudulently represented to customers that

Amitex and Global were “separate,” “independent,” and “not-

related” to each other. In furtherance of this false representation

Hoffecker created a Global brochure representing that Global and

Amitex were “independent” of each other. App. vol. 14 at 81. An

Amitex promotional brochure referred to itself as the “independent

lender” and to Global as the “independent broker dealer.” Id.

Global’s written Risk Disclosure Statement represented that

Amitex and Global were “separate” and “nonrelated,” that the

investor was “independent of your broker, Global Investment

Corp., entering into a collateral loan transaction with a separate

non-related financial institution [Amitex].” Id. at 50-53, 82.

Amitex’s Terms and Conditions booklet, which Hoffecker

approved, made approximately a dozen representations that Global

was “independent” and “not agents, employees, or affiliates of

Amitex Investment Services, Ltd.” Id. at 80. Amitex and Global

were, of course, not “separate,” “independent,” or “nonrelated.”

Rather, Hoffecker co-owned and controlled Amitex while

simultaneously co-owning and controlling Global, although he

attempted to conceal his ownership of both companies.

Hoffecker attempted to achieve plausible deniability by

placing a fraction of the customers’ funds in a supposed hedge fund

account called “Phoenix,” located in the Turks and Caicos Islands,

so that when customers eventually realized they were losing all, or

almost all, of their money, he could point a finger at the separate

hedge fund for the loss. Hoffecker at no time after Amitex and

Global ceased operations attempted to use the money he had sent

to Phoenix to compensate any customers for their losses.

Moreover, neither Hoffecker nor anyone else ever apprised any

customer of the so-called hedging.

Hoffecker and his entities routinely “reloaded” customers,

meaning that they subjected them to multiple solicitations for

additional investments after the initial solicitation on the logical

theory that a customer swindled in the first place was a likely mark

for a repeat performance. As examples of reloading, all of the four

victims who testified at trial made a series of purchases. There

8

were taped conversations in evidence at trial revealing Hoffecker

discussing the “loading” of customers, which further depleted their

“equity.” In recorded conversations, Hoffecker’s co-conspirator,

Myers, referred to the Amitex-Global victims as “bullion heads –

I call them bullion heads – I don’t know what the fuck else you’d

call ’em. . . . They just like to buy this shit.” Supp. app. at 21.

Global employees testified that, to their knowledge, none of

the Global customers made a profit. As former Global employee

Gregory Swarn testified, consistently with the testimony of the four

victims, no Global client ever made a profit, most lost everything,

and some were returned remittances of a small fraction of their

investment in order to lull them into believing that their losses were

attributable to the marketplace and not to fraud. Moreover, Myers

admitted in recorded conversations, “I’ll make the, the price up, so

at least he’s [the victim] got enough to take his wife out to dinner.

. . . I mean that’s just the cost of doing business.” Id. at 13. Myers

explained that he preferred to remit a small fraction to the customer

as soon as possible, preferably within 24 hours:

The reason for it is we want them to die as quick a

death as if they’re dying get them out of the way.

We do not want them calling you up saying how

come that son of bitch doesn’t send me my money.

. . . You’re a thief and a crook cause you don’t send

me my money. We don’t want that [to] occur. We

want to get that money to him immediately so he can

take his wife out to dinner and it’s all over with.

Id. at 29.

Global, reflecting Hoffecker’s indifference to the interests

of its victims, cynically targeted senior citizens and other persons

unsophisticated in investments. Clearly, of course, Global had to

target such vulnerable persons to be its victims as any reasonably

sophisticated investor who checked up on Amitex and Global with

financial services reporting agencies quickly would have

discovered that the scheme was a fraud. As an example of the type

of victim the scheme targeted, a boiler room employee solicited

Geraldine Conover, an 82-year-old mid-western great-great

grandmother in mid- to late-1995. Ms. Conover ultimately

9

invested approximately $125,000 in the scheme and lost it all.

After a telemarketer solicited her more than 20 times in one day,

Ms. Conover contacted law enforcement authorities who requested

that she record her telephone conversations with both the

boiler-room solicitors and Amitex. In a recorded conversation on

April 25, 1996, Ms. Conover expressed to the telemarketer her

concern about Amitex because she was “naive” and had invested

a lot of money, and the paperwork “didn’t really say who owned

[Amitex].” Id. at 115. The telemarketer repeatedly assured her

that Amitex had been in business for “many, many years,” id. at

114, and that Ms. Conover could confirm this with Amitex’s

written information packet that described “their history,” id. at 116.

Ms. Conover also recorded a conversation she had with Myers in

which Myers made a series of incriminating admissions regarding

the promised purchase of physical commodities, the purported

loans and interest charged for them, and the supposed storage of

the commodities.

Harriet Davis, another victim, was a 75-year-old widow on

a fixed income who invested with Global and Amitex. She told a

Global telemarketer that she was comfortable investing $5,000.

Over a span of a few months, however, and after calling her every

day or every other day, Global and Amitex swindled her out of

approximately $43,000. She eventually received a remittance of

$4,039. Stephen Miller invested $77,152 and received a remittance

of $7,488. Marie Walsh invested approximately $70,000 and lost

the entire amount.

Between 1996 and 1997, Amitex/Global defrauded more

than 600 victims of at least $14,151,596 by pocketing their

investments and interest payments and charging a 15% sales

commission, $100 new account fee, $100 annual fee, and a “spread

fee” of approximately 3% of the total value of the investment (the

20% down payment plus the 80% financing). Because

Amitex/Global did not purchase or store anything, and there were

no actual loans, all of these fees and commissions were merely

additional means to bilk the victims. Even as experienced federal

judges who naturally are not easily surprised by the evil that people

will do, we are stunned by the scope of the fraud here.

Hoffecker siphoned off much of the scam’s proceeds.

10

Indeed, early on in the scheme, Hoffecker told Jack Field, the

Government’s confidential informant who, as we will explain, is a

central figure in this case, that Hoffecker was “on target” to receive

“at least” $40,000 to $60,000 per month from the hoax. Supp. app.

at 27b. Throughout the life of the ruse, Global employees regularly

handed Hoffecker thousands of dollars in cash, sometimes as often

as three times a week. To conceal his money, Hoffecker kept one

million dollars in cash in the name of an alias in a Fort Lauderdale

bank vault. In addition, Hoffecker transferred more than two

million dollars from Amitex’s bank account in the Bahamas to his

personal off-shore bank account. Hoffecker siphoned off this

money, taking hundreds of thousands of dollars in cash outright,

and funneled the remainder to other off-shore accounts for other

businesses he operated.

Hoffecker’s telemarketers solicited customers from 1996

through 1997 until, with no advance notice, in an unsigned letter

dated December 24, 1997, Global advised its customers that it was

going out of business effective December 31, 1997, and that

Amitex would handle its accounts. Customers were informed that

they could register any complaints regarding Global’s closure to

Amitex’s non-existent “Compliance Department.” App. vol. 14 at

160.

Amitex abruptly closed down a few months later, effective

March 31, 1998, and, like Global, did so without advance notice.

A Bahamian company called “International Bullion Services”

(“IBS”) advised Amitex customers in an unsigned letter which did

not reference Amitex that it purchased their assets and loans. In

fact, Hoffecker paid IBS $400,000 to take Amitex off his hands.

Overall, after our intense study of this case and taking into account

our extensive experience in dealing with thieves, swindlers,

confidence men, charlatans, and the like, we conclude that

Hoffecker ranks high in the pantheon of thieves. He is utterly

devoid of principles.

On February 14, 2003, a grand jury indicted Hoffecker and

Myers on charges of mail fraud and conspiracy to commit mail and

wire fraud. Their first trial commenced on June 3, 2004, and

concluded with a hung jury on August 13, 2004. Their retrial

began on January 3, 2006, and resulted in the jury returning guilty

11

verdicts on March 17, 2006, convicting Hoffecker and Myers of

one count of conspiracy to commit mail or wire fraud and three

counts of mail fraud. Following the jury verdict, Hoffecker

unsuccessfully moved for a judgment of acquittal or a new trial.

The District Court ultimately sentenced Hoffecker to 210 months

of imprisonment to be followed by a three-year term of supervised

release and sentenced Myers to 108 months of imprisonment to be

followed by a term of supervised release. Hoffecker but not Myers

appeals.

The district court had jurisdiction under 18 U.S.C. § 3231

and we have jurisdiction over this appeal pursuant to 28 U.S.C. §

1291.

III. DISCUSSION

As we set forth above, Hoffecker has raised a variety of

challenges to his conviction and sentence. We shall consider each

argument in turn. Significantly, however, Hoffecker does not

contend that the evidence did not justify the verdict.

1. Use of Hoffecker’s Former Lawyer as a Government

Witness

Hoffecker argues that the Government’s conduct in using

Jack Field, his one-time attorney, as an informant was so

outrageous that it violated the Due Process Clause of the Fifth

Amendment to the Constitution and that the District Court erred

when it rejected his requested jury instruction on the defense of

reliance on advice of counsel.

Field was Hoffecker’s long-time friend and former business

associate. Indeed, in July 1990, Field was his substitute counsel of

record in a Federal Trade Commission (“FTC”) action, FTC v.

Uni-Vest Financial Services & Charles P. Hoffecker, et al., No. 89-

6382 (S.D. Fla.), which was filed in 1989 and was settled on July

15, 1991. But Field was only one of Hoffecker’s attorneys as he

was sued in over 100 other actions brought by the National Futures

Association (“NFA”) and the Commodity Futures Trading

12

Commission (“CFTC”), and he hired attorneys other than Field to

represent him in those cases.

In June 1996, Field reestablished contact with Hoffecker so

that he could serve as a confidential informant for the Government.

This initiation of contact from the outside of the current

relationship between the confidential informant, Field, and the

defendant, Hoffecker, gave the Government and the informant the

opportunity to ensure that the informant kept his legal activities out

of his dealings with Hoffecker, and Field and the Government took

full advantage of this opportunity. Moreover, before this reunion,

Field and Hoffecker essentially had been out of contact for

approximately three years, a lapse of time that assisted Field in

renewing their relationship on a basis other than that of an attorney

and client. During their first renewed encounter, the two discussed

a potential business arrangement involving the Amitex scheme:

Hoffecker: Jack, I would like to do some business

with you.

Field: I’d like to do that, too.

Supp. app. at 2. Later that same day, Field rejected any suggestion

that he would be serving as an attorney to Hoffecker, Myers,

Global, or Amitex:

Field: . . . I’m sure I don’t want to be a

lawyer on this.

....

Hoffecker: Okay. Okay.

Field: I can find you. I know a good law

firm over there.

Hoffecker: . . . You don’t have to be a lawyer on

this, you could be a contributor,

partner, a uh you know.

Field: Consultant.

13

Hoffecker: Yeah.

Field: Business consultant.

Hoffecker: Oh, yeah.

Field: Business advisor.

Id. at 5. Excerpts from subsequent taped conversations

demonstrate that Hoffecker and Field both understood that Field

was not serving as a lawyer for Hoffecker or his entities. In fact,

on each occasion that Field made this clear, Hoffecker responded

by indicating that he understood. See, e.g., id. at 26 (Field: “I just

want to try and put a deal together so I don’t practice law

anymore.” Hoffecker: “Right, I understand.”); id. at 27d

(Hoffecker: “[Y]ou are a business man . . . . You’re not a lawyer

any more.”); id. at 33b (“Field: “I don’t want to get involved in

giving legal advice.” Hoffecker: “I understand.”). Hoffecker

indicated that he was obtaining legal advice elsewhere.

Instead of doing legal work, Hoffecker wanted Field to be

a recruiter, setting up telemarketing boiler-rooms in the United

States to solicit potential customers and generate income for

Amitex and Global, for which Field would be paid a commission:

Hoffecker: . . . [Y]ou, at this stage of the game

can get involved in us, it’s two ways,

one at the legal side, and the other . . .

.

Field: [Unintelligible.]

Hoffecker: Getting involved in dealer networking

with us. That’s where the money is.

Field: Okay. Okay. I don’t want to do any,

any legal work.

Id. at 23-24.

Hoffecker: My thought was that basically what I

14

would do, is I would put together a

retail sales organization and that I

would get someone like Jack [Field]

or get Jack to be involved from a, uh,

you know a business side. Where

Jack could go out and hustle dealers,

and sellers, basically.

Id. at 33.

Hoffecker arranged to compensate Field based on the

interest charges generated from the purported loans Amitex

extended to its customers, as well as the fees for the purported

purchase and sale of physical commodities in the boiler-rooms

Field set up. In short, Hoffecker and Field understood that Field

would derive his compensation exclusively from the business he

generated, apparently on the theory that you eat what you kill.

Thus, Field did not receive a legal retainer or have a fee

arrangement with Hoffecker or Amitex, and Hoffecker never paid

Field for any legal services in the Amitex-Global scheme.

During the course of the investigation, the Government,

which was aware of the potential attorney-client relationship

problem, instructed Field to state to Hoffecker clearly and

repeatedly that he was not serving as legal counsel to Hoffecker or

others. Hoffecker inadvertently accommodated the Government by

repeatedly affirming his understanding that Field was serving as a

business associate and not as legal counsel. Government

investigators ensured that Field’s prior legal work would not

become implicated in the case by not inquiring about any previous

privileged communications between Field and Hoffecker and by

instructing Field not to divulge any potentially protected previous

communications. To further ensure that such communications

were not divulged, the Government employed a “taint team” to

review all of the recorded conversations between Field and

Hoffecker.

Before the first trial, Hoffecker moved to dismiss the

indictment based on his claim that the Government had engaged in

15

outrageous conduct. In the alternative, Hoffecker moved to

suppress evidence of his conversations with Field. After several

days of hearings, the District Court issued oral and written findings

that there had not been an attorney-client relationship between

Field and Hoffecker and denied Hoffecker’s motions.

We review the District Court’s rulings on the outrageous

conduct claim recognizing that “[b]ecause outrageous government

conduct, a constitutional claim, is a mixed question of law and fact,

‘[w]e exercise plenary review over the district court’s legal

conclusions, and review any challenges to the court’s factual

findings for clear error.’” United States v. Lakhani, 480 F.3d 171,

181 (3d Cir. 2007) (second alteration in original) (quoting United

States v. Nolan-Cooper, 155 F.3d 221, 229 (3d Cir. 1998)). We

also are aware that we repeatedly have noted that we are

“extremely hesitant to find law enforcement conduct so offensive

that it violates the Due Process Clause.” United States v. Voigt, 89

F.3d 1050, 1065 (3d Cir. 1996). The Government’s conduct can be

regarded as so offensive that it requires the dismissal of an

indictment only if it is “most intolerable.” United States v.

Jannotti, 673 F.2d 578, 608 (3d Cir. 1982). Thus, a court should

not dismiss an indictment “‘each time the government acts

deceptively or participates in a crime that it is investigating.’”

Nolan-Cooper, 155 F.3d at 231 (quoting United States v. Mosley,

965 F.2d 906, 910 (10th Cir. 1992)).

To elevate a violation of the attorney-client privilege to a

constitutional claim of outrageous misconduct, a defendant must

demonstrate “(1) the government’s objective awareness of an

ongoing, personal attorney-client relationship between its

informant and the defendant; (2) deliberate intrusion into that

relationship; and (3) actual and substantial prejudice.” Voigt, 89

F.3d at 1067 (footnote omitted).

The District Court found that the Government did not

engage in outrageous conduct because there was not an attorney-

client relationship between Field and Hoffecker at the time of the

investigation when Field was pursuing his confidential activities.

Accordingly, the relationship between Hoffecker and any person

or entity involved in this case and Field could not satisfy the first

Voigt requirement for a finding of outrageous misconduct. Indeed,

16

the court stated that “there barely was a former relationship in the

traditional and understood sense of attorney-client . . . .” App. vol.

8 at 35. The court found that “the government was well aware of

a potential attorney-client relationship problem, took steps to avoid

it, or screen for it.” Id. at 37-38. Accordingly, the court found that

“notwithstanding a prior attorney-client relationship, Field could

nonetheless be a government informant without running afoul of

attorney-client law.” Id. at 34. The court found that the recorded

conversations among Hoffecker, Field, and others occurred in the

context of “build[ing] Field into the existing business entity,” id. at

12, and establishing Field as a business associate who would help

Amitex establish sales rooms, from which Field would earn a

commission. The court further found that Hoffecker could not

have had any objectively reasonable understanding that Field was

functioning as his attorney. The court found that, instead,

Hoffecker’s “objectively reasonable understanding” was that Field

was his “business partner,” who would be compensated as a

“business co-venturer, and that Field would not be taking the legal

end, but rather the networking room related end . . . .” Id. at 34.

The court noted that “[i]t would be clearly unreasonable for

Hoffecker to believe, based upon what was said, that Field was his

lawyer. Hoffecker made it clear he had lawyers.” Id. at 34.

Accordingly, the court found that Hoffecker had not shown that the

Government’s conduct was outrageous.

Notwithstanding the voluminous evidence showing that

Field repeatedly told Hoffecker that he did not want to act as his

lawyer, Hoffecker contends that there was an attorney-client

relationship between him and Field during the Government’s

investigation and points to a number of snippets of conversation

between the two men that he contends support his claim. For

example, Hoffecker claims that “Field acknowledged Field’s role

as a ‘legal counsel or legal consultant . . . .’” Appellant’s Br. at 21.

In context, however, Field actually was making clear that he was

not serving as Hoffecker’s legal counsel:

Hoffecker: So, basically, if we, if you could get us

some rooms and we could use, you

know, have you as a, as a, a legal

counsel or, or legal consultant, let’s

say . . . .

17

Field: As a business consultant. I don’t want

to, I don’t want to do law practice. I

don’t want to do legal shit.

Hoffecker: A business consultant from a, from a

legal standpoint.

Field: I can business consult on what I think

is the way to set it up and ways to set

it up. That’s just from strictly

business side. Once it’s set up, you

probably need somebody to look at it

and give you an opinion letter.

Hoffecker: Right.

....

Hoffecker: . . . [W]ell you can call it business

consulting, you can call it legal

consulting, I don’t care what you call

it, you know I mean we know that you

have a legal mind that’s, that’s one of

the better ones so we understand that

that’s, that, that any kind of business

consulting see would be from a legal

twist, I’m sure.

Field: It would be from my background

experience but it wouldn’t be real

legal advice, I just, I just don’t want to

get in that box, frankly. I don’t like

doing that, I’ve done it too damn long,

and I don’t want to be limited in

making money to what lawyers’ fees

are.

Hoffecker: I see.

18

Supp. App. at 17-18. The other pieces of conversation that

Hoffecker cites as support for his claim of outrageous Government

conduct similarly do not support his claim and, when viewed in

context, instead refute it and we see no reason to recount them

here.

Hoffecker also claims that the declaration of Christopher

Holly “confirms” Field’s status as a lawyer for Hoffecker. In fact,

Holly merely stated that he was present on five or six occasions

between June 1993 and May 1995 when Field and Hoffecker

purportedly had phone conferences involving a CFTC case against

Hoffecker. Holly’s declaration does not mention specific subjects

discussed, but generally states that Field offered legal advice to

Hoffecker in these 1993-1995 conversations. The District Court

found that Holly, like other persons surrounding Hoffecker, used

Field as a “strategist,” but that use did not create an attorney-client

relationship between Field and Hoffecker during the 1993-1995

period, let alone when Field cooperated with the Government in

1996-1998. The District Court’s finding surely is unassailable

under any standard of review.

Hoffecker next claims that the testimony of John Leubsdorf,

who was qualified as a professional responsibility expert,

demonstrates that Field’s and Hoffecker’s interactions “impacted”

on an existing legal representation. Appellant’s Br. at 24. In

analyzing Leubsdorf’s testimony, however, the District Court noted

that even Leubsdorf would agree that the professional

responsibility rules do not apply in the absence of an attorney-

client relationship. Because a past attorney-client relationship does

not establish that an attorney-client relationship continues until a

later time, United States v. Evans, 113 F.3d 1457, 1463 (7th Cir.

1997), Hoffecker’s claim only can succeed if he shows that he and

Field had an attorney-client relationship between 1996 and 1998.

Even if we exercised plenary review of all aspects of

Hoffecker’s outrageous conduct claim, we would conclude that the

District Court correctly determined that Hoffecker and Field had a

business relationship, not an attorney-client relationship, during the

Government’s investigation when Field was acting as its informant.

Indeed, we cannot help but wonder why Field’s extraordinary

efforts to keep an attorney-client relationship out of his dealings

19

with Hoffecker did not cause such an experienced confidence man

to be suspicious of Field but apparently they did not.

Surely there is a delicious irony in the circumstance that

Field and the Government conned the con man. Overall, to call the

evidence supporting Hoffecker’s claim “thin” would be generous

as “microscopic” would be the more appropriate word. There was

no evidence showing that Field acted as Hoffecker’s attorney; in

fact, at every opportunity Field reminded Hoffecker that he was not

his attorney and did not want to be his attorney. Their relationship

during the Amitex investigation was not that of an attorney and a

client, and did not come close to being one. Hoffecker has not

shown that Field acted as a legal advisor to him, Amitex, or Global,

or that it was reasonable for Hoffecker to believe that Field was

acting as his attorney. Accordingly, we conclude that that the

Government’s investigation did not interfere with an attorney-client

relationship between Hoffecker and Field as there was no

relationship with which to interfere and therefore the District Court

properly denied Hoffecker’s motion to dismiss the indictment or

suppress evidence.

We next consider whether the District Court erred in

refusing to give a jury instruction on the defense of reliance on

advice of counsel that Hoffecker requested. We consider this point

on an abuse of discretion basis. See United States v. Leahy, 445

F.3d 634, 642 (3d Cir. 2006). Certainly a district court is “bound

to give the substance of a requested instruction relating to any

defense theory for which there was any foundation in the

evidence.” United States v. Blair, 456 F.2d 514, 520 (3d Cir.

1972). But a court

also ha[s] to avoid diverting the jury by idle

speculation and frivolous considerations. A

confused jury can give as improper a verdict as one

which has failed to receive some significant

instruction. Therefore, the charge should direct and

focus the jury’s attention on the evidence given at

trial, not on far fetched and irrelated ideas that do not

sustain a defense to the charges involved.

Id. (citation omitted).

20

There was no evidence that Hoffecker and Field had an

attorney-client relationship between 1996 and 1998, or that Field

gave him legal advice, on which Hoffecker relied. As the District

Court found, Hoffecker’s argument that Field “performed a legal

function” was “specious.” App. vol. 53 at 84. Inasmuch as there

was no evidentiary support for the instruction, the court correctly

did not give the instruction which would have been unjustified and

confusing to the jury. Accordingly, the District Court did not

abuse its discretion when it rejected Hoffecker’s requested advice

of counsel instruction. Indeed, it would have been legal error for

the court to have given the charge and thus, even on a plenary

review basis, we would reach the same result that we reach on this

point.

2. Statute of Limitations Issues

Hoffecker next raises statute of limitations issues, primarily

with respect to the mail fraud charges in Counts Two and Three of

the indictment and the conspiracy to commit mail and wire fraud

charge in Count One, though he does contend that the statute of

limitations should have barred this entire case. These issues, as

will be seen, potentially raise the most far-reaching precedentially

significant legal matters on this appeal, but in the end the

application of conventional principles controls them.

The statute of limitations requires that indictments for mail

fraud and for conspiracy to commit mail and wire fraud must be

“found” within five years of the commission of the offenses. See

18 U.S.C. § 3282(a). “An indictment is found when it is returned

by a grand jury and filed.” United States v. Oliva, 46 F.3d 320,

324 (3d Cir. 1995). The statute begins to run for mail fraud when

a defendant “places, deposits, causes to be deposited, takes, or

receives mail, or knowingly causes mail to be delivered, as part of

the execution of a scheme to defraud,” United States v. Pharis, 298

F.3d 228, 234 n.3 (3d Cir. 2002) (citation and quotation marks

omitted), and for conspiracy when the conspirators commit the last

overt act in furtherance of the conspiracy, United States v. Jake,

281 F.3d 123, 129 n.6 (3d Cir. 2002).

There is, however, a critical variation in the calculation of

the limitations period when the Government requests assistance

21

from a foreign country to gather evidence of offenses for in such

situations it can apply to a district court to enter an order

suspending the running of the statute of limitations pursuant to 18

U.S.C. § 3292 which provides:

(a)(1) Upon application of the United States, filed

before return of an indictment, indicating that

evidence of an offense is in a foreign country, the

district court before which a grand jury is impaneled

to investigate the offense shall suspend the running

of the statute of limitations for the offense if the

court finds by a preponderance of the evidence that

an official request has been made for such evidence

and that it reasonably appears, or reasonably

appeared at the time the request was made, that such

evidence is, or was, in such foreign country. (2) The

court shall rule upon such application not later than

thirty days after the filing of the application.

(b) Except as provided in subsection (c) of this

section, a period of suspension under this section

shall begin on the date on which the official request

is made and end on the date on which the foreign

court or authority takes final action on the request.

(c) The total of all periods of suspension under this

section with respect to an offense – (1) shall not

exceed three years; and (2) shall not extend a period

within which a criminal case must be initiated for

more than six months if all foreign authorities take

final action before such period would expire without

regard to this section.

(d) As used in this section, the term ‘official request’

means a letter rogatory, a request under a treaty or

convention, or any other request for evidence made

by a court of the United States or an authority of the

United States having criminal law enforcement

responsibility, to a court or other authority of a

foreign country.

22

Congress enacted section 3292 in response to “[t]he use of offshore

banks to launder the proceeds of criminal activities and to evade

taxes,” which “ha[d] become an increasing problem for federal

prosecutors.” H.R. Rep. No. 98-907, at 2 (1984), reprinted in 1984

U.S.C.C.A.N. 3578, 3578. Congress explained that:

Once funds are traced to offshore banks, federal

prosecutors face serious difficulties in obtaining

records from those banks in both the investigative

and trial stages of a prosecution. . . . The

procedures that must be undertaken in other

countries in order to obtain the records generally

take a considerable period of time to complete. . . .

If the records are essential to the bringing of charges,

the delay in getting the records might prevent filing

an information or returning an indictment within the

time period specified by the relevant statute of

limitation.

Id. at 2-3, reprinted in 1984 U.S.C.C.A.N. 3578, 3578-79.

The indictment charged Hoffecker with three counts of mail

fraud and one count of conspiracy to commit mail and wire fraud.

The mail fraud charged in Count Two was based on a mailing sent

on June 23, 1997, the mail fraud charged in Count Three was based

on a mailing sent on August 31, 1997, and the mail fraud charged

in Count Four was based on a mailing sent on March 4, 1998. The

last overt act in furtherance of the conspiracy charged in Count

One was the March 4, 1998 mailing. Thus, absent a suspension of

the statute of limitations, the Government was required to obtain

indictments against Hoffecker no later than June 23, 2002, on

Count Two, August 31, 2002, on Count Three, and March 4, 2003,

on Counts One and Four.

On March 13, 2002, before the statute of limitations had

expired on any of these offenses, the Government sought assistance

from the government of the Bahamas to obtain Amitex’s banking

records invoking a Mutual Legal Assistance Treaty. Nearly eight

months later, on November 5, 2002, the Bahamas sent the

Government a portion of the requested documents.

23

On December 23, 2002, after the statute of limitations

absent suspension would have expired on Counts Two and Three

but before it would have expired on Counts One and Four, the

Government applied ex parte to the grand jury supervising judge to

suspend the statute of limitations pursuant to section 3292 for the

238-day period between March 13, 2002 and November 5, 2002.

The court granted the application and ordered a 238-day

suspension. The grand jury then indicted Hoffecker on Counts One

through Four on February 14, 2003. Clearly if the 238-day period

is excluded the entire indictment on its face was timely.

Hoffecker nevertheless contends that the conspiracy charge

in Count One was untimely because the March 4, 1998 mailing was

not in furtherance of the conspiracy and thus the last overt act of

the conspiracy occurred more than five years before the indictment

was found. Accordingly, he argues that we should dismiss Count

One because the District Court did not instruct the jury on the

limitations defense. Of course, this argument applies to Count

Four as well.

Hoffecker also argues that we should dismiss the mail fraud

charges in Counts Two and Three on the basis of the Government’s

application to suspend the running of the statute of limitations

having been improper (1) because the proceeding before the grand

jury judge was ex parte; (2) the Government filed the application

after it had received all of the evidence from the Bahamas; and (3)

the Government filed the application after the statute of limitations

already had expired on the mail frauds charged in Counts Two and

Three.

Before we can consider these claims on their merits,

however, we must address the procedural question of whether

Hoffecker has waived any of the issues he now advances for

purposes of this appeal. There are two ways by which Hoffecker

could have waived his claims: failing to raise an issue in the

District Court before or at trial, see United States v. Karlin, 785

F.2d 90, 92-93 (3d Cir. 1986), or failing to identify or argue an

issue in his opening brief on appeal, see United States v. Pelullo,

399 F.3d 197, 222 (3d Cir. 2005).

To consider the waiver issue, we have delved intensely into

24

the procedural history of the case by studying its massive record.

Before Hoffecker’s first trial, he moved to dismiss the indictment

as untimely. See Supp. app. vol. 61 at 1-15. In that motion, he

argued that the conspiracy charged in Count One was untimely

because the indictment was found more than five years after the

final overt act of the conspiracy. Hoffecker also argued that the

Government’s ex parte section 3292 suspension application was

improper and the District Court should have required the

Government to reveal to him the documents relevant to its

application. Finally, Hoffecker stated:

The court suspended the statute of limitations from

March 13, 2002 to November 5, 2002, a period of

some seven months. The order did so after the stated

period had already elapsed, in contravention with the

statutory language that permits suspending ‘the

running of the statute of limitations . . . .’ Once the

specific period has already run, an extension order

that attempts to reach back into time is inconsistent

with the statutory authorization.

Id. at 12-13. Clearly Hoffecker intends this paragraph to

correspond with his argument that the Government’s section 3292

suspension application was improper because the Government filed

it after the statute of limitations had expired on Counts Two and

Three. Significantly, however, in his motion Hoffecker did not

contend that the Government did not move properly to suspend the

statute of limitations pursuant to section 3292 because it filed the

suspension application after receiving all of the evidence from the

Bahamas. After oral argument, the District Court denied the

motion. App. vol. 2 at 1-26. The case then proceeded to trial and,

as we stated above, ended in a mistrial.

After the mistrial but before the retrial, we filed our opinion

in United States v. Atiyeh in which we held that a district court

may not suspend a statute of limitations pursuant to section 3292

when the Government applies for suspension after it already had

received all requested foreign evidence. 402 F.3d 354, 362-67 (3d

Cir. 2005). Hoffecker, however, did not renew his motion to

dismiss the indictment on statute of limitations grounds after the

mistrial and he did not bring Atiyeh to the District Court’s

25

attention. Hoffecker, however, did request a jury instruction on the

statute of limitations defense at the second trial. The District Court

rejected this request.

We find that because Hoffecker did not at any time in the

District Court contend that the Government’s suspension

application was improper because the Government filed the

application after it had received all of the evidence from the

Bahamas, he has waived the issue. See Karlin, 785 F.2d at 92-93.

In this regard we point out that in Brenner v. Local 514, United

Bhd. of Carpenters and Joiners of Am. we indicated that “[i]t is

well established that failure to raise an issue in the district court

constitutes a waiver of the argument.” 927 F.3d 1283, 1298 (3d

Cir. 1991); Jake, 281 F.3d at 129 (“the statute of limitations is an

affirmative defense that is waived unless properly preserved”).

In any event, even if we held that Hoffecker had not waived

this issue, we would not dismiss Counts Two and Three on

Hoffecker’s theory that the Government filed its suspension

application after it received all the requested evidence from the

Bahamas. In Atiyeh we determined that under section 3292 the

Government must indicate in its application that the evidence is in

a foreign country at the time of the application, and thus the

Government must file its application with the grand jury judge

before the Government “has received all requested foreign

evidence from foreign authorities . . . .” 402 F.3d at 362. In that

case, the Government’s section 3292 application represented that

it had received “all” of the requested foreign evidence at least two

months before it applied to the grand jury judge to suspend the

statute of limitations, and the application “did not precisely state

that evidence of offenses ‘is in a foreign country.’” Id. at 362-63.

Because in Atiyeh the Government in its application failed to make

the required assertion and filed its application after it had received

all of the requested documents, we dismissed as time-barred

several counts on which the statute of limitations had run.

In this case, by contrast, the Government filed its suspension

application after receiving some, but not all, of the requested

foreign evidence from the Bahamas. As the testimony of both

Government and defense expert witnesses confirmed, the

Bahamian bank documents sent to the Government were

substantially incomplete. Moreover, the Government never

26

represented in its suspension application that it had received “all”

of the evidence or that evidence was no longer in the Bahamas.

According to the Government, the application stated that “[t]he

undersigned [AUSA] believes that evidence of the indictable

offenses presently being investigated is located in a foreign

jurisdiction.” Appellee’s Br. at 53 (alterations in original). Thus,

the Government’s application here is unlike the application that fell

short in Atiyeh. Because the Government applied to suspend the

statute of limitations before it received all of the evidence from the

Bahamas and stated in its application that it believed that evidence

of the offenses “is” located in the Bahamas, we would not dismiss

Counts Two and Three on the basis of Atiyeh even if Hoffecker

had preserved the issue for appeal. Finally on this point we

mention the obvious: it does not matter whether the Government

receives any additional materials after it makes its request to the

foreign country. The question is whether at the time of its

application to suspend the running of the statute of limitations the

Government had received all the requested documents that were in

the foreign country.3

3

Although our opinion in Atiyeh primarily involved the

proper interpretation of section 3292(a)(1), which is concerned

with when a request for suspension of the running of the statute of

limitations must be made, we also indicated that when the

Government “has received all requested foreign evidence from

foreign authorities” there has been final action within section

3292(b) dealing with the period of the suspension. 402 F.3d at

362-63. It is appropriate for us to comment further on the meaning

of final action within section 3292.

We reiterate that unlike section 3292(a)(1), which sets out

the timing requirements for the Government to make its application

to suspend the statute of limitations and the findings that the district

court must make before it grants the application and does not use

the term “final action,” section 3292(b) is concerned with the start

and end dates for the period of suspension after the court grants the

Government’s application. It states in pertinent part that the period

of suspension “shall begin on the date on which the official request

is made and end on the date on which the foreign court or authority

takes final action on the request.” 18 U.S.C. § 3292(b). Of course,

27

section 3292(c) places a further limit on the length of the period of

suspension: “[t]he total of all periods of suspension under this

section with respect to an offense . . . shall not exceed three years

. . . .”

Other courts of appeals have concluded that the “final

action” for purposes of section 3292(b) occurs when the foreign

authority makes a dispositive response to each of the items listed

in the government’s official request. See United States v. Hagege,

437 F.3d 943, 955 (9th Cir. 2006) (“‘[F]inal action’ for purposes of

§ 3292 means a dispositive response by the foreign sovereign to

both the request for records and for a certificate of authenticity of

those records, [when] both [a]re identified in the ‘official request.’”

(second and third alterations in original) (quoting United States v.

Bischel, 61 F.3d 1429, 1434 (9th Cir. 1995)); United States v.

Torres, 318 F.3d 1058, 1065 (11th Cir. 2003) (“‘[F]inal action’ for

the purposes of § 3292(b) occurs when a foreign court or authority

provides a dispositive response to each of the items listed in the

government’s official request for information.”); but see United

States v. Meador, 138 F.3d 986, 992 (5th Cir. 1998) (concluding

more narrowly that “final action” occurs “when the foreign

government believes that it has completed its engagement and

communicates that belief to our government”). Under these cases,

a refusal to supply any evidence would be the foreign

government’s final action. We note that these cases apparently

adopt a meaning of final action that differs from Atiyeh’s definition

of “final action.” On the other hand, however, Atiyeh merely may

have set forth nonexclusively one basis for concluding that there

has been a “final action.”

In this case the Government in its brief stated that

November 5, 2002 – the date on which the government of the

Bahamas provided some of the requested evidence – was the date

of “final action,” even though the response was incomplete, and the

Government filed its application to suspend the statute after that

date. Appellee’s Br. at 46, 53. Thus, the Government’s

understanding of the meaning of final action might differ from that

in Atiyeh. If under Atiyeh the “final action” occurs only when the

Government receives all of the requested evidence, then the

28

Government’s statement that it filed its application after the “final

action” was incorrect because it had not received all of the

requested evidence when it filed its application. In these

circumstances, we would find that the Government’s application

was not improper because it was filed before it had received all of

the evidence, as required by section 3292(a)(1), and the period of

suspension would run from the date of the Government’s official

request for evidence until the date that the Government received all

of the requested evidence. Inasmuch as it never has received all of

the requested evidence, the period of suspension would have ended

three years after the Government made its request for evidence

pursuant to section 3292(c).

If, on the other hand, Atiyeh sets forth an exclusive basis for

a finding that there has been final action on its request and that

interpretation is incorrect, and the “final action” does not occur

when the Government has received all requested evidence, but,

instead, occurs when the foreign government makes a dispositive

response to the Government’s request, then the Government’s

statement that it filed its application after the “final action” was

correct because it filed the application after the foreign government

made its dispositive response. In these circumstances, we still

would find that the Government’s application was not improper

because the Government filed it before it had received all of the

evidence, as required by section 3292(a)(1), even though the period

of suspension would run from the date of the Government’s official

request for evidence until the date that the foreign government took

its “final action” by responding to the Government’s request on

November 5, 2002.

Inasmuch as under either definition the Government’s

application was not improper because regardless of when, if ever,

the foreign government took final action on its request, the

Government filed its suspension application when evidence sought

was within the foreign country, we conclude that it is not necessary

to decide when there has been a final action within section 3292(b).

Moreover, we point out that the parties in this case have not

litigated the issue of the proper definition of final action under

section 3292(b). Accordingly, we will refrain from discussing the

29

Next we will consider whether Hoffecker has waived his

contention that the Government’s section 3292 suspension

application was improper because the Government filed it after the

statute of limitations already had expired for Counts Two and

Three. Although Hoffecker may have raised this issue before the

District Court in his motion to dismiss the indictment, he did not

raise the issue in his opening brief before this Court. Instead, after

briefing by both parties had been concluded, he filed a letter in

which he appeared to raise the issue. See Appellant’s Letter (filed

Nov. 9, 2007). Hoffecker attempted to file this letter pursuant to

Federal Rule of Appellate Procedure 28(j), which provides in

pertinent part that:

[i]f pertinent and significant authorities come to a

party’s attention after the party’s brief has been filed

– or after oral argument but before decision a party

may promptly advise the circuit clerk by letter, with

a copy to all other parties, setting forth the citations.

The letter must state the reasons for the supplemental

citations, referring either to the page of the brief or

to a point argued orally.

In his letter, Hoffecker wrote that he wanted to bring to our

attention the decision in United States v. Kozeny, 493 F. Supp. 2d

693 (S.D.N.Y. 2007), in which the district court dismissed several

counts of an indictment because the Government filed its section

3292 suspension application after the statute of limitations already

had expired on those counts. In citing Kozeny it appears that

Hoffecker suggested – although he does not explicitly state as

much in his letter – that in this case Counts Two and Three were

time-barred because the Government filed the section 3292

suspension application after the statute of limitations period had

expired on these counts.

In yet another filing submitted to this Court after the briefs

were filed, Hoffecker claims that he did raise this issue in his

opening brief on appeal. Appellant’s Mot. to Strike Government’s

Unauthorized and Inaccurate Post-Argument Letter Submission to

matter further.

30

Appellate Panel at 3-4 (filed March 18, 2008). Hoffecker points to

a footnote in his opening brief that states: “The statute of

limitations expired for Counts 2 (mailing dated June 23, 1997) and

3 (mailing sent August 31, 1997).” Appellant’s Br. at 31 n.9. This

statement is the only one in the opening brief that Hoffecker

contends raised this issue.

This one-sentence footnote falls far short of meeting the

requirement that an appellant raise an issue in his opening brief or

else waive the issue on appeal. See Pelullo, 399 F.3d at 222 (“It is

well settled that an appellant’s failure to identify or argue an issue

in his opening brief constitutes waiver of that issue on appeal.”).

An appellant’s brief must contain his or her argument, which must

incorporate “appellant’s contentions and the reasons for them, with

citations to the authorities and parts of the record on which the

appellant relies . . . .” Fed. R. App. P. 28(a)(9)(A). See United

States v. DeMichael, 461 F.3d 414, 417 (3d Cir. 2006) (“An issue

is waived unless a party raises it in its opening brief, and for those

purposes a passing reference to an issue will not suffice to bring

that issue before this court.” (citation omitted)); United States v.

Irizarry, 341 F.3d 273, 305 (3d Cir. 2003) (“An appellant who falls

to comply with this requirement fails to preserve the arguments that

could otherwise have been raised.”); United States v. Dunkel, 927

F.2d 955, 956 (7th Cir. 1991) (per curiam) (“A skeletal ‘argument’,

really nothing more than an assertion, does not preserve a claim.

Especially not when the brief presents a passel of other arguments,

as [defendant]’s did. Judges are not like pigs, hunting for truffles

buried in briefs.” (internal citation omitted)). In his footnote,

Hoffecker does not explain his contention or the reason for it, and

does not include citations to authority or the parts of the record on

which he relies. Hoffecker makes no reference to section 3292 or

the issue of whether the Government’s suspension application was

improper because it was filed after the statute of limitations already

had expired on Counts Two and Three. Indeed, the footnote is

appended to text in which Hoffecker argues that the conspiracy

charged in Count One was time-barred because the final overt act

of the conspiracy occurred more than five years before the

indictment was found, an argument independent from the issue that

Hoffecker now seeks to raise.

For the same reasons, we cannot construe Hoffecker’s

31

opening brief’s statement that “[t]he procedure used by the

government to suspend the statute of limitations pursuant to 18

U.S.C. § 3292 to permit it to obtain evidence in a foreign country

did not satisfy the statute[,]” Appellant’s Br. at 27, as raising the

issue of whether the Government’s application was improper on the

basis that the Government filed it after the statute of limitations

already had expired for Counts Two and Three. Although this

sentence mentions section 3292, it does not construct any argument

about the limitation period already having expired.

Inasmuch as Hoffecker did not raise in his opening brief the

issue of whether the section 3292 suspension application was

improper because the Government filed it after the statute of

limitations had expired on Counts Two and Three, he has waived

the issue. Moreover, he cannot seek to raise the argument in a Rule

28(j) letter when he has not raised it in his opening brief.

Inasmuch as Hoffecker waived the issue, we need not consider

whether the Government’s section 3292 suspension application was

improper on the ground that the Government filed it after the

statute of limitations had expired on Counts Two and Three.4

4

Though we do not decide the case on this basis, Judge

Greenberg and Judge Roth point out that under section 3292 there

is no express requirement that the application to suspend the statute

of limitations must be made before the statute has run. In this

regard they point out that under section 3292(b) the period of

suspension begins to run when the official request for evidence is

made to a foreign country and not when the suspension application

is made. Accordingly, the order suspending the statute of

limitations necessarily must be retroactive as it cannot be entered

until after the request has been made to the foreign country and the

order when entered is effective as of the day the request was made.

Thus, as a matter of statutory construction there is no reason why

a case seemingly barred by the statute of limitations cannot be

revived by a section 3292 application made before the Government

has received all of the requested foreign evidence. In Judge

Greenberg’s and Judge Roth’s view, the plain language of section

3292 makes the indictment timely as to all counts here. In making

this observation Judge Greenberg and Judge Roth further point out

that what they regard as this clear application of the statute does

32

The Government contends that Hoffecker also has waived

the issues of whether Count One’s conspiracy charge was untimely

on Hoffecker’s theory that the indictment was found more than five

years after the final overt act of the conspiracy and the ex parte

nature of the Government’s § 3292 tolling application was

improper.

According to the Government, although Hoffecker raised

these issues before the District Court in his motion filed before the

first trial and also raised them in his opening brief on appeal,

Hoffecker needed to renew his motion in the District Court after

the mistrial before the second trial to preserve these claims for

appeal. The Government relies for this argument on United States

v. Akers, 702 F.2d 1145 (D.C. Cir. 1983), where the Court of

Appeals for the District of Columbia Circuit stated that a trial

court’s admission of evidence in a trial that ends in a mistrial does

not justify a defendant’s reliance that the judge would admit the

evidence in the retrial. In Akers the court stated:

No doctrine of the law of the case operates under

these circumstances. The evidentiary ruling at issue

was rendered in a new trial which was ordered

pursuant to a mistrial. When, as here, ‘the previous

trial [is] a nullity,’ the court in the new trial tries ‘the

case as if it were being tried for the first time . . . , as

if there had been no prior trial.’

Id. at 1148 (footnotes omitted) (emphasis and alterations in

original) (quoting Hobbs v. Maryland, 191 A.2d 238, 239 (Md.

1963)). The court concluded:

not mean that section 3292 effectively eliminates the statute of

limitations for cases it governs for the period of the suspension

begins to run when the request for the evidence is made. Thus, the

statute of limitations cannot be revived by an official request to a

foreign government made after the limitations period has run. In

any event, there is a three-year statutory limitation in section

3292(c) on the suspension period so there is a limit in all cases of

the possible length of an extension.

33

The mere fact that the same judge happened to be

sitting did not entitle counsel to assume that the

judge would rule the same way especially since the

judge’s exercise of his broad discretion on an

evidentiary ruling (which ultimately pertains to

relevancy) must turn upon the evidence as developed

in the particular trial.

Id. (footnote omitted); see also United States v. Gomez, 67 F.3d

1515, 1526 n.13 (10th Cir. 1995) (defendant’s objection to

admission of evidence made during first trial does not preserve

issue for appeal after retrial).

In this case, however, we are dealing with the District

Court’s ruling on Hoffecker’s motion to dismiss the indictment on

limitations grounds, not an evidentiary ruling. The District Court

made this ruling before the first trial started, and the ruling did not

“turn upon the evidence as developed in the particular trial.”

Akers, 702 F.2d at 1148.

Other courts have distinguished Akers on this basis. The

Court of Appeals for the District of Columbia Circuit itself later

rejected the argument that Akers stands for the proposition that

after a mistrial a defendant must re-raise every issue to preserve

those issues for appeal. See United States v. Sanders, 485 F.3d

654, 657 (D.C. Cir. 2007). In Sanders, prior to the trial the district

court declined to dismiss the case for violations of the Speedy Trial

Act. Id. at 656. After the jury was unable to reach a verdict, the

district court declared a mistrial. Id. at 655-56. The defendants did

not advance the Speedy Trial Act contention before the second

trial, and the jury found them guilty. Id. at 656-57. On appeal, the

Government contended that the defendants waived their rights

under the Speedy Trial Act by failing to renew the Speedy Trial

Act objection at the second trial. Id. at 657. The court found that

the defendants had not waived the issue:

Akers does not support a requirement to relitigate all

pretrial issues before a second trial. Although the

partial mistrial and partial grant of a new trial

nullified the original trial, those rulings did not

nullify all proceedings. For example, the indictment

34

underlying the speedy trial issue was not

compromised by the first jury’s failure to reach a

unanimous verdict on all counts. . . . In any event,

the law-of-the-case doctrine underlying Akers does

not support the government’s position. In

Christianson v. Colt Industries Operating Corp., 486

U.S. 800, 816, 108 S. Ct. 2166, 100 L. Ed. 2d 811

(1988), the Supreme Court summarized the doctrine

as providing that ‘when a court decides upon a rule

of law, that decision should continue to govern the

same issues in subsequent stages [in] the same case.’

For mid-trial evidentiary rulings, a new trial will

result in different factual and evidentiary

circumstances occasioning a new exercise of the

district court’s discretion. However, an alleged

violation of the Speedy Trial Act will not change

between trials and is constrained by the principle that

‘the same issue presented a second time in the same

case in the same court should lead to the same

result.’ LaShawn A. v. Barry, 87 F.3d 1389, 1393

(D.C. Cir. 1996) (en banc). Thus, requiring a

defendant to re-raise the issue upon a retrial would

be an exercise in wasteful formality.

Id.

We agree with the reasoning in Sanders and find that it

applies to this case. As with the alleged violation of the Speedy

Trial Act in Sanders, the statute of limitations issues that Hoffecker

raised in his motion before the District Court in this case did not

change between the two trials. Thus, requiring Hoffecker to re-

raise those issues before the retrial would have been “an exercise

in wasteful formality.” Id.

The Government also contends that United States v. Palmer,

122 F.3d 215 (5th Cir. 1997), supports its argument. In Palmer, the

district court originally denied a defendant’s motion for severance

before the first of his two trials. Id. at 220. After that trial ended

in a mistrial, the defendant did not raise the severance issue again

until after her retrial began, which was too late under Federal Rule

of Criminal Procedure 12(b)(5). Id. On appeal, the Government

35

argued that the defendant had waived her severance claim because

“the mistrial invalidated all motions made by [the defendant] at her

first trial, requiring her to reassert them at the second in a timely

manner.” Id. The Government also argued that the defendant was

“on notice that her earlier-filed motions would not be carried to the

second trial” because of a colloquy before the retrial between her

counsel and the trial court. Id. The defendant argued that she had

not waived her claim because under the law-of-the-case doctrine,

“‘when a court decides upon a rule of law, that decision should

continue to govern the same issues in subsequent stages in the same

case.’” Id. (quoting Arizona v. California, 460 U.S. 605, 618, 103

S.Ct. 1382, 1391 (1983)).

The Court of Appeals for the Fifth Circuit agreed with the

Government, reasoning:

The law-of-the-case doctrine does not . . . set a trial

court’s prior rulings in stone, especially if revisiting

those rulings will prevent error. For example, we

have held that in civil cases a district court is not

precluded by the law-of-the-case doctrine from

reconsidering previous rulings on interlocutory

orders such as summary judgment motions, as those

rulings are not immutable and lack res judicata

effect. Moreover, we have noted that district courts

hearing criminal cases may revisit pretrial issues,

such as suppression motions, upon which they have

previously ruled. Even considering the

law-of-the-case doctrine, we agree with the

government and find waiver under these

circumstances. A retrial following a mistrial is both

in purpose and effect a new trial. Accordingly,

objections made at the aborted trial have no bearing

on the retrial, as the two are entirely separate affairs.

Although formal, written motions such as severance

motions may have more of a lasting effect than

simple objections, our previous analysis of the

law-of-the-case doctrine indicates that district courts

are not always bound by their prior rulings on

pretrial motions. Here, the trial court expressed in

unambiguous terms that it would not automatically

36

revive any of [the defendant’s] pretrial motions.

Given that the trial court had the authority to

reconsider these motions, the court’s statement

placed [the defendant] under the duty to reurge them.

Id. at 220-21 (citations omitted). The court concluded by stating:

the trial judge told [the defendant] it was not safe to

assume that the court would recognize all of its

previous rulings. Thus, [the defendant] was on

notice that the trial court was not going to apply the

law-of-the-case doctrine to preserve her previous

objections. Accordingly, [the defendant] had an

obligation to reassert her severance motion in a

timely fashion if she wished to preserve error.

Failing to do so, [the defendant] waived her

severance claim.

Id. at 221. The reasoning of the court in Palmer does not apply to

this case, however, because the Government does not point to any

colloquy before the retrial between Hoffecker and the District

Court that put Hoffecker “on notice” that he must renew all

motions that he had made before the first trial. Thus, to the best of

our knowledge, unlike the court in Palmer, the District Court here

never “expressed in unambiguous terms that it would not

automatically revive any of [the defendant’s] pretrial motions.” Id.

Thus, we conclude Hoffecker did not waive his claim that

we should dismiss the conspiracy charged in Count One on his

theory that it was untimely and his further contention that the

District Court should have instructed the jury on the limitations

defense or his claim that we should dismiss the mail frauds charged

in Counts Two and Three on the theory that the Government’s

suspension application was improper because the proceeding

before the grand jury judge was ex parte. Accordingly, we will

consider these claims on their merits.

First, we will consider the issue of whether we should

dismiss the conspiracy charge in Count One because it was

untimely and the District Court did not instruct the jury on the

limitations defense. Hoffecker claims that if the jury had been so

37

instructed, it would have found that the last overt act charged in the

conspiracy – a March 4, 1998 mailing by Amitex – was not “in

furtherance” of the conspiracy, and thus the conspiracy offense was

not committed within the five-year statute of limitations.

As we stated above, an indictment for conspiracy to commit

mail and wire fraud must be found within five years of the last

overt act of the conspiracy. Jake, 281 F.3d at 129 n.6. Here, the

Government alleged that the last overt act was a mailing by Amitex

on March 4, 1998, to one of its victims, and the indictment was

found on February 14, 2003, 18 days before the statute of

limitations would have expired if its running was measured from

March 4, 1998, without taking into account the 238-day suspension

of the running of the statute of limitations. The mailing, which also

formed the basis for the mail fraud charged in Count Four, was a

letter and a check for $4,039 to Harriet Davis, who had invested

$42,903 in the scheme, purporting to send her the balance left in

her account. The Government alleged that this mailing was the

final overt act of the conspiracy charged in Count One because the

mailing was a “lulling communication,” i.e., it was intended to lull

Davis into believing she merely was an unlucky investor so that she

would not complain to regulatory authorities or report a crime.

Before the first trial, Hoffecker filed a motion to dismiss the

indictment. During oral argument, he argued that the District

Court, not the jury, should determine whether the March 4, 1998

mailing was a lulling communication. Although “[t]he

determination of when the crime has been committed for statute of

limitation purposes . . . is ordinarily a question of fact for the jury,”

Oliva, 46 F.3d at 324-25, Hoffecker explicitly asked the District

Court to decide the issue because, according to him, “under no

interpretation of the facts could this be a lulling letter,” app. vol. 2

at 13. The District Court found that the mailing was a lulling

communication in furtherance of the conspiracy and that therefore

the conspiracy count was timely.

At the charge conference during the second trial, Hoffecker

reversed his position and contended that the nature of the letter was

a factual matter for the jury to decide. The District Court found

that it had ruled definitively on the issue prior to the first trial and

stood by its initial ruling. Accordingly, it denied Hoffecker’s

38

request for a jury instruction on the limitations defense for Count

One.

We review a district court’s decisions regarding jury

instructions for abuse of discretion. Leahy, 445 F.3d at 642. We

will order a new trial on account of a district court’s refusal to give

a proposed jury instruction “only when the requested instruction

was correct, not substantially covered by the instructions given,

and was so consequential that the refusal to give the instruction

was prejudicial to the defendant.” Id. at 651 (quoting United States

v. Phillips, 959 F.2d 1187, 1191 (3d Cir. 1992)). Although it is

“well settled that a criminal defendant is entitled to an instruction

on the applicable statute of limitations,” Jake, 281 F.3d at 129, we

conclude that the District Court’s refusal to give the proposed jury

instruction was not reversible error because it was not “so

consequential that the refusal to give the instruction was prejudicial

to the defense,” Leahy, 445 F.3d at 651.

The court did not prejudice Hoffecker by its refusal to give

the instruction because it properly instructed the jury on the

elements of the mail fraud charged in Count Four, which was based

on the same mailing alleged to be the last overt act of the

conspiracy charged in Count One. The court instructed the jury

that it could return a verdict of guilty on Count Four only if it

found beyond a reasonable doubt that the March 4, 1998 mailing

was “intended to further or assist in carrying out or continuing the

scheme to defraud.” App. vol. 49 at 10; see United States v.

Copple, 24 F.3d 535, 544 (3d Cir. 1994) (“The essential elements

of the crime of mail fraud are 1) a scheme or artifice to defraud; 2)

participation by the defendant with specific intent to defraud; and

3) use of the mail in furtherance of the scheme.”).

Thus, in convicting Hoffecker of the mail fraud charged in

Count Four, the jury necessarily found beyond a reasonable doubt

that the mailing was “in furtherance” of the conspiracy charged in

Count One. Inasmuch as the jury found the mailing was in

furtherance of the conspiracy and the indictment was found within

five years of that mailing, the jury necessarily effectively found

beyond a reasonable doubt that Count Four and thus, by extension,

Count One were both timely. In these circumstances, the District

Court’s refusal to give the limitations instruction with regard to

39

Count One did not prejudice Hoffecker.

Next, we consider the issue of whether we should dismiss

Counts Two and Three on the basis of Hoffecker’s contention that

the Government’s section 3292 suspension application was

improper because the proceeding before the grand jury judge who

granted the suspension order was ex parte. The Government urges

us to apply Federal Rule of Criminal Procedure 52(b)’s “plain

error” standard of review to this issue because “[e]ven if

Hoffecker’s failure to raise his limitations defense before his

second trial did not waive the claim, it forfeited it.” Appellee’s Br.

at 51; see United States v. Olano, 507 U.S. 725, 733, 113 S.Ct.

1770, 1777 (1993) (“Waiver is different from forfeiture. Whereas

forfeiture is the failure to make the timely assertion of a right,

waiver is the intentional relinquishment or abandonment of a

known right. . . . Mere forfeiture, as opposed to waiver, does not

extinguish an ‘error’ under Rule 52(b).”) (citations and quotation

marks omitted).

As we found above, Hoffecker has preserved this issue for

this appeal. Accordingly, in considering the issue we will apply a

de novo standard of review to the District Court’s denial of the

motion to dismiss on statute of limitations grounds and we will

review the court’s factual findings underlying the legal ruling for

clear error. See United States v. Grenier, 513 F.3d 632, 636 (6th

Cir. 2008); United States v. Hagege, 437 F.3d 943, 953-54 (9th Cir.

2006); Laurino v. Tate, 220 F.3d 1213, 1216 (10th Cir. 2000).

We find that there was nothing improper about the ex parte

nature of the proceeding before the grand jury judge. As the Court

of Appeals for the Ninth Circuit explained, “[n]owhere in [section

3292] does it state that the party whose statute of limitation is being

suspended is entitled to notice or a hearing.” DeGeorge v. United

States Dist. Court for Cent. Dist. of Cal., 219 F.3d 930, 937 (9th

Cir. 2000). Significantly, to interpret section 3292 to require notice

or a hearing for a defendant “would be to ignore the traditionally

non-adversarial and secret nature of grand jury investigations.” Id.;

see also United States v. Wilson, 249 F.3d 366, 371 (5th Cir. 2001)

(“An application to toll the statute of limitations under § 3292 is a

preindictment, ex parte proceeding.”). We also point out that it

might be critical that the existence of an ongoing grand jury

40

investigation be confidential so that a potential target of an

indictment will not be aware of it. A requirement that a section

3292 application be made on notice would undermine the

confidentiality of a grand jury’s inquiry and give a potential

defendant the opportunity to flee or destroy evidence.

Accordingly, we will not reverse the convictions on Counts Two

and Three on this basis.

3. Alleged Prosecutorial Misconduct

Hoffecker claims that cumulative prosecutorial misconduct

deprived him of a fair trial. “A new trial is required on this basis

only when ‘the [ ] errors, when combined, so infected the jury’s

deliberations that they had a substantial influence on the outcome

of the trial.’” Copple, 24 F.3d at 547 n.17 (alteration in original)

(quoting United States v. Thornton, 1 F.3d 149, 156 (3d Cir.

1993)). Hoffecker points to three separate acts of alleged

misconduct.

Hoffecker first claims that the Government “hand-picked the

transcripts it believed were most helpful to its case, and provided

only those transcripts to the jury, notwithstanding that numerous

transcripts supporting the defense position had been introduced into

evidence.” Appellant’s Br. at 38. Hoffecker contends that after the

jury had deliberated for two days, defense counsel discovered that

numerous admitted transcripts and tape recordings had not been

included among the exhibits taken to the jury.

This assertion is incorrect. On the first day of jury

deliberations, defense counsel asked the court to provide full tape

recordings and transcripts that had been admitted into evidence for

the jury, not merely excerpts. The District Court granted the

request and asked the Government to remove the excerpts from the

jury room, which the Government did in the presence of defense

counsel. At that point, the Government attorney began to remove

three tapes, in the presence of defense counsel, explaining that the

tapes contained recordings of conversations involving people who

were not witnesses in the case. Defense counsel objected and the

Government did not remove the tapes.

On the second day of deliberations, defense counsel filed a

41

brief contending that an additional 47 tapes and transcripts never

had been sent to the jury room. The items involved conversations

to which neither the Government nor the defense had referred

during trial. Many were inconsequential such as Field’s telephone

calls to Hoffecker in which Field simply left a message that he had

called. According to the Government, these tapes and transcripts

had not been sent to the jury room due to a misunderstanding of the

parties’ stipulation to enter certain tapes and transcripts into

evidence.

As the District Court made clear, the Government never

“unilaterally removed” any tapes or transcripts from the jury room.

App. vol. 53 at 93-94. The court stated that it had “a problem”

with defense counsel accusing “the government of some kind of

selective removal that was secretive, sly and otherwise

inappropriate,” given the “care and open process that’s been

utilized in identifying” the items to be sent to the jury room. Id. at

10. The court explained that “[t]he attorneys at all times were free

to work with my staff, work with each other and . . . satisfy

themselves that what was in evidence was going to [the jury

room.]” Id. at 9. The court pointed out that defense counsel was

not aware of the content of the tapes that it complained the jury did

not have. Instead, it appeared to the court that defense counsel was

attempting to “dump,” id. at 26, “relatively meaningless” material

on the jury, id. at 98.

During counsel’s argument on the issue, late in the

afternoon of the second day of deliberations, the jury sent the court

a note requesting to hear Tape 38 in its entirety. Because this tape

already was in the jury room, the court and the courtroom deputy

interpreted the note to mean that the jury was not aware that the

tapes and transcripts were already in the jury room.

On the morning of the third day of deliberations, the District

Court ruled in favor of the defense and instructed defense counsel

and the Government to bring the 47 additional tapes and transcripts

to the jury room. The court explained:

The jury clearly has not begun even approaching the

transcripts and the tapes . . . . So we have right now

an opportunity to simply put all of the tapes and

42

transcripts [in the jury room] while the jury is sitting

[in the courtroom] for 90 minutes and listening to

[Tape 38] and reading the transcripts that they

requested.

App. vol. 54 at 9. After depositing the tapes and transcripts in the

jury room, Hoffecker’s attorney reported to the court:

The government and defense counsel resolved the

matter of all the tapes and transcripts being presented

to the jury . . . . [I]ssues raised by the Defendants’

Trial Briefs . . . have been fully resolved with the

delivery of the tapes and transcripts discussed

therein, which would be the complete tapes and

transcripts to the jury for use and deliberation.

Id. at 12, 15.

Accordingly, we see no basis for Hoffecker’s claim that

there was prosecutorial misconduct. Moreover, given the full

context and resolution of this issue by the District Court, which

ensured that the jury had access to all the tapes and transcripts,

there could not have been an error, particularly an error that would

have affected the outcome of the proceedings. Hoffecker

complains that the jury was “hours away from the verdict,”

Appellant’s Br. at 39, but the jury was not required to revisit these

unimportant tapes. Indeed, it does not appear that the jury revisited

any of the tapes and transcripts sent to the jury room other than

Tape 38. Significantly, Hoffecker never has explained what

evidence the tapes and transcripts that were provided to the jury on

the third day of deliberations contained, much less explain why this

evidence “support[ed] the defense position . . . .” Id. at 38. In

these circumstances, we conclude that there was no error.

Hoffecker next contends that Field gave impermissible

opinion evidence. On direct examination, Field testified that in his

and Hoffecker’s meeting on June 12, 1996, Hoffecker admitted to

Field that Amitex was promoting an investment in “physical” metal

but did not actually purchase metal. App. vol. 28 at 102. Field

testified that as a result he concluded Amitex was a “scam.” Id. at

102. Hoffecker objected to this testimony but the District Court

43

ruled that it was admissible lay opinion testimony.

We review a district court’s decision to admit lay opinion

testimony for abuse of discretion. United States v. Leo, 941 F.2d

181, 192-93 (3d Cir. 1991). Under the Federal Rules of Evidence:

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 [which governs expert testimony].

Fed. R. Evid. 701.

Two of our cases shed light on whether the District Court

abused its discretion when it permitted Field’s lay opinion

testimony. First, in United States v. De Peri we ruled that the trial

court did not abuse its discretion when it permitted the

Government’s witness to provide his lay opinion regarding his

understanding of the meaning of tape recorded conversations

between himself and one of the defendants. 778 F.2d 963, 977-78

(3d Cir. 1985). We found that the witness’s opinions were helpful

to the jury because the “language on the tapes is sharp and

abbreviated, composed with unfinished sentences and punctuated

with ambiguous references to events that are clear only to [the

defendant] and his audience. To the uninitiated listener, [the

defendant] speaks as if he were using code.” Id. at 977. We

further noted that “the trial court vigorously policed the

government’s examination of [the witness] to ensure that he was

not asked to interpret relatively clear statements.” Id. at 978.

Second, in United States v. Dicker we found that the district

court abused its discretion by permitting a Government agent to

testify regarding his understanding of his recorded conversations

with the defendant. 853 F.2d 1103, 1110 (3d Cir. 1988). In Dicker

we stated that “interpretation of clear conversations is not helpful

to the jury, and thus is not admissible under either [Rule 701 or

44

702].” Id. at 1108. We found that the Government witness

“simply ascribed his own, illicit meaning to straightforward,

potentially legitimate statements. This admission was surely

prejudicial, and was not helpful to a clear understanding of the

testimony. The recorded conversations, unlike those at issue in De

Peri, were perfectly clear without [the witness’s] ‘interpretations.’”

Id. at 1110.

Here the District Court found that the Government properly

laid a foundation under Rule 701 for Field’s statement that Amitex

was a “scam.” First, Field based the statement on his “rational

perceptions,” Hoffecker’s statements, and his previous interactions

with Hoffecker. Supp. app. at 52. The court found that Field’s

opinion was not based on specialized knowledge because he had

“first-hand knowledge and observation.” App. vol. 30 at 21.

Second, the statement was helpful to the jury because Field’s

perception that the Amitex program was a “scam” explained why

he was a Government cooperator. The court rejected defense

counsel’s suggestion that Field and Hoffecker’s recorded

conversations were “clear” and were “matters that this jury can

understand.” Id. at 19. The court found instead that it was “fair to

view the jury as uninitiated listeners,” id., and that Field’s

testimony was helpful to the jurors because Field interpreted his

conversations with Hoffecker, and the jury otherwise could not

have understood those conversations without Field’s testimony.

The court found that because the “deliberately” “guarded

responses” in the conversations which were “not clear to the

uninitiated observer” were akin to “coded words,” Field’s

explanation of the language used in the conversations was helpful

to the jury. Id. at 25. The court also noted that in Dicker the

Government agent improperly was mischaracterizing the

conversation while in this case Field was not mischaracterizing his

conversations with Hoffecker. Field also stated his belief that

Amitex was a “scam” only one time, as opposed to the agent in

Dicker who testified repeatedly in an objectional manner.

The District Court also found that the situation here was

unlike that in United States v. Scop, 846 F.2d 135 (2d Cir.), on

rehearing, 856 F.2d 5 (2d Cir. 1988), a case Hoffecker cited to

support his argument. In Scop, the court of appeals found that

Federal Rule of Evidence 704 was violated by the admission of

45

testimony of a Government expert witness who was an SEC

investigator and expert in securities trading practices to the extent

that his legal conclusion was that the defendants were “active” and

“material participants” in a “fraudulent scheme in furtherance of

[the] manipulation [of stock].” Id. at 138. The expert “drew

directly upon the language of the statute” and acknowledged that

his positive assessment of the testimony of other Government

witnesses was a basis for his opinion. Id. at 140-42.

This case, however, differs from Scop because the District

Court found that Field was not an expert witness, did not couch his

view that Amitex was a “scam” on the language of the mail fraud

statute, and did not base his opinion on the credibility or testimony

of others. The court found that calling Amitex a “scam” was

different from offering a legal opinion and, in any event, under

Rule 704(a) a lay opinion is not “objectionable because it embraces

an ultimate issue to be decided by the trier of facts.” Supp. app. at

53 (quoting Fed. R. Evid. 704(a)). Moreover, the court found that

Field was “a witness to the scam at the time of the scam, not

someone performing 20-20 hindsight analysis.” App. vol. 30 at 22.

Field’s testimony involved what he thought about Amitex in 1996,

not at the time of trial. Field “did not . . . attempt to be a thirteenth

juror,” because his testimony was not based upon what he had

heard at the trial. Id. at 22. In these circumstances, the District

Court did not abuse its discretion under Rule 701 in admitting

Field’s lay opinion testimony.

Furthermore, even if the court erred in allowing this

testimony, its error would not have “so infected the jury’s

deliberations” that it, combined with other alleged errors, “had a

substantial influence on the outcome of the trial.” Copple, 24 F.3d

at 547 n.17. Field’s one-time reference to Amitex as a “scam” on

direct examination was brief, and the Government did not refer to

Field’s testimony on this point again during the trial. In addition,

his brief comment that he believed Amitex was a “scam” was

hardly likely to shock the jury given Hoffecker’s own tape-

recorded admission that “[i]n America, Amitex cannot operate. It

would be a scam.” Supp. app. at 40. Indeed, it is surreal that

Hoffecker complains about a witness using Hoffecker’s own term

to describe his scheme.

46

Finally, Hoffecker argues that the Government improperly

bolstered Field’s credibility by asking him on redirect how many

convictions resulted from his cooperation. Hoffecker’s cross-

examination of Field elicited the following:

Defense Counsel: . . . [Y]ou were an informant in

a number of cases, were you

not?

Field: I think there were several, yes

sir.

Defense Counsel: Well, let’s quantify that. How

many other cases were you

involved in where you were . .

. acting in a capacity as an

informant for the government?

Field: Two directly.

Defense Counsel: Okay. And can you tell the

jury how many people, either

indicted or unindicted, that you

spoke to in your capacity as an

undercover informant?

Field: Probably two dozen maybe.

App. vol. 32 at 85. Defense counsel also attacked Field’s motive

to testify by questioning the benefits that resulted from Field’s

cooperation and suggesting that his conviction and 24-month

sentence were far less severe than what he should have faced given

the potential charges and his 35-year maximum statutory

sentencing exposure.

On redirect, the Government sought to clarify the

misleading inference that Field received a substantial reduction at

sentencing based only on his work in this case, when Field, in fact,

cooperated on many unrelated investigations:

Government: Both defense lawyers asked

47

you questions about your

cooperation with law

enforcement; do you recall

those questions, sir?

Field: Yes, sir.

Government: As part of your cooperation

with law enforcement, did you

provide information on a

number of people separate and

apart from Mr. Hoffecker and

Mr. Myers and [the] Amitex

program?

....

Field: Yes, sir.

Government: To your knowledge, Mr. Field,

how many individuals were

convicted or investigated as a

result of your cooperation?

Field: There were over [a] dozen

convicted. I don’t know how

many more were investigated,

sir.

App. vol. 34 at 67.

Hoffecker then objected and moved for a mistrial, citing

United States v. Sorondo, 845 F.2d 945 (11th Cir. 1988), as support

for his claim that the prosecutor improperly bolstered Field’s

credibility. In Sorondo the defendant, who was arrested after

supplying drugs to a Drug Enforcement Administration (“DEA”)

informant, claimed that the informant entrapped him. Id. at 947.

The Government called as a rebuttal witness a DEA agent who

testified regarding the number of cases in which the informant had

participated and the amount of money and property that had been

forfeited to the Government due to his assistance. Id. at 948. The

48

Government also elicited testimony that all of the 40 prosecutions

in which the informant had participated had resulted in convictions.

Id. On appeal, the court of appeals found that the admission of this

testimony was plain error because it “created a great danger that the

jury would simply credit [the informant’s] testimony and find in

favor of the government because many other juries had done so in

the past.” Id. at 949.

In this case, the District Court considered Sorondo and

found that it arose in a different context. There, a Government

agent was called on rebuttal to bolster the credibility of a

Government witness. Here, by contrast, the testimony of the

cooperator on re-direct “went to the usefulness of the cooperation,

the substantial assistance . . . as a basis for . . . sentencing

decisions. . . .” App. vol. 37 at 20. Defense counsel’s cross-

examination of Field risked leaving the jury with the misimpression

that Field received an extraordinary reduction in his sentence as a

result of his help only in one case, and Field’s re-direct simply

corrected that misimpression. The District Court found that the

“context dilutes the harmfulness of the testimony.” Id.

Nevertheless, the Government requested the District Court

to instruct the jury to disregard any testimony by Field involving

convictions of other individuals which were not related to this case.

The court noted that because the matter was brought to its attention

in a timely fashion – unlike in Sorondo, where no timely objection

was made – it could fashion a curative instruction. The court

invited counsel to draft an instruction and carefully “tracked the

concerns of the defense that the jury instruction not appear to

highlight the testimony that was objected to.” Id. at 24. The court

then instructed the jury in pertinent part:

During its redirect examination of Mr. Field the

government asked Mr. Field how many people were

convicted as a result of his cooperation. At the time,

this was objected to. I am now sustaining the

defense objection. Whether or not Mr. Field’s

cooperation led to any prosecutions or convictions is

irrelevant to your consideration of the charges in this

case. I instruct you that you must disregard this

testimony. And it must not be considered by you in

49

any way in your deliberations.

Id. at 30.

We doubt that this curative instruction was needed because

Hoffecker opened up this whole line of inquiry himself but,

assuming that it was required, the instruction certainly was

sufficient to cure any error in the Government’s eliciting the

disputed testimony from Field. In light of this instruction,

combined with the ample evidence demonstrating Hoffecker’s

guilt, we find that the testimony did not have “a substantial

influence on the outcome of the trial.” Copple, 24 F.3d at 547

n.17. Accordingly, the three alleged errors Hoffecker raises do not

alone or in combination require reversal of his convictions.

4. Jury Instructions

Hoffecker next argues that he was denied a fair trial because

the District Court rejected several of his requested jury instructions

and overruled his objections to two other instructions. “We

exercise plenary review to determine whether jury instructions

misstated the applicable law, but in the absence of a misstatement

we review for abuse of discretion.” Cooper Distributing Co. v.

Amana Refrigeration, Inc., 180 F.3d 542, 549 (3d Cir. 1999).

First, the District Court rejected Hoffecker’s requested

instruction on “single or multiple conspiracies” which stated in

pertinent part that “[p]roof of separate or independent conspiracies

is not sufficient” for the Government to sustain its burden of proof

for the conspiracy charge in Count One. App. vol. 59 at 148. The

District Court rejected this instruction because it concluded it was

inapplicable to the evidence presented in the case and would

mislead and confuse the jurors. Hoffecker contends this decision

was incorrect because the Government’s proof of “multiple

business operations, the divisions between Global and Amitex, the

investments in other companies, and the distinctions between the

operations of the various sales rooms, among others, all combine

to provide factual support for a finding of multiple conspiracies.”

Appellant’s Rep. Br. at 38.

We recognize that “[i]f a defendant asks for a charge on

50

multiple conspiracies and there is sufficient evidence to support

such an instruction, the failure to grant the request can be reversible

error,” United States v. Curran, 20 F.3d 560, 572 (3d Cir. 1994),

but that principle is inapplicable here because the evidence did not

support the instruction. Despite the complexity of the scheme in

this case, the evidence could not support a conclusion that there

had been a conspiracy other than the one charged. All of the

business entities and divisions in labor existed to advance the

single conspiracy to dupe victims into investing in Amitex’s

LPCIP. In these circumstances, inasmuch as there was not an

evidentiary basis for Hoffecker’s requested instruction if it had

been given it only would have confused the jury. Moreover, the

District Court gave a clear instruction that the jury only could

convict Hoffecker if it found that he knowingly and willingly

joined the single charged conspiracy. We conclude that the District

Court did not abuse its discretion when it rejected Hoffecker’s

requested jury instruction on “single or multiple conspiracies.”

The District Court also rejected Hoffecker’s requested

instruction on “conjecture and speculation,” which stated:

Of course, a defendant is never to be convicted on

suspicion or conjecture. If, for example, you view

the evidence in the case as reasonably permitting

either of two conclusions – one that a defendant is

guilty as charged, the other that the defendant is not

guilty – you will find the defendant not guilty. It is

not sufficient for the Government to establish a

probability, though a strong one, that a fact charged

is more likely to be true than not true. That is not

enough to meet the burden of proof beyond

reasonable doubt. On the other hand, there are very

few things in this world that we know with absolute

certainty, and in criminal cases the law does not

require proof that overcomes every possible doubt.

App. vol. 59 at 150. The court rejected the instruction because it

duplicated the reasonable doubt instruction that it already had

given to the jury explaining:

The reasonable doubt instruction that I read to the

51

jury is an instruction that has been discussed and

approved of in Third Circuit cases . . . and I believe

that it is a fair depiction and expression of the law of

reasonable doubt. And the language [in Hoffecker’s

requested instruction] does not advance the ball . . .

. [and] might becloud what I have told the jurors.

App. vol. 48 at 102. The District Court was correct: we had

approved the District Court’s reasonable doubt instruction. See

United States v. Hernandez, 176 F.3d 719, 728-35 (3d Cir. 1999)

(mirroring our model instruction, Third Circuit Model Criminal

Jury Instructions § 3.06). Thus, there was no need for the court to

give Hoffecker’s requested instruction. Accordingly, the court in

rejecting the “conjecture and speculation” instruction did not abuse

its discretion.

The District Court also rejected Hoffecker’s requested

“theory of defense” instructions. The first of these stated:

It is the defense in this case that the Defendants

through its [sic] company Amitex employed the

services of Peter Hug and Associates, Phoenix, and

Perrigrine to hedge its customers’ positions in the

forward and futures markets. It is further the defense

that Amitex maintained as much as $2 million in its

bank accounts to cover the liquidation value of its

customers’ investment. I instruct you that if you find

that the Defendants in fact did protect their

customers[’] investments through hedging, you may

consider this as evidence of the Defendants[’] lack of

criminal intent.

App. vol. 59 at 155. The second instruction stated:

It is the defense in this case that the Defendants are

not responsible for any misrepresentations made by

brokers working at sales offices marketing

Amitex’[s] program. I hereby instruct you that if

you find that material misrepresentations were made

by brokers, you cannot consider there [sic]

misrepresentations as evidence of the Defendants[’]

52

criminal intent, unless you find that the

misrepresentations were made with the knowledge

and consent of the individual Defendant.

Id. at 156. The third instruction stated:

It is the defense in this case that the Defendants were

not required to take physical possession of any

commodity offered through the Amitex program

until such time as the customer paid for the

commodity in full. I hereby instruct you that if you

find that the Amitex documents provided to the

customers were consistent with this belief, you may

consider this as evidence of the Defendants[’] lack of

criminal intent.

Id. at 157. The fourth instruction stated:

It is the defense in this case that the Amitex Program

provided for physical delivery of a commodity upon

the payment for the commodity in full or upon the

repaying of the 80% loan value extended by Amitex.

It is further the defense that the loan Amitex made to

its customers was a genuine obligation Amitex

entered into binding Amitex to hedge either in cash

or in the future or forward markets the value of the

commodity equal to the customers 80%. I hereby

instruct you that if you find that Amitex had the

ability to deliver commodities to its customers and

hedged its obligations so as to guarantee delivery,

you may consider this evidence of the Defendants[’]

lack of criminal intent.

Id. at 158. The fifth instruction stated:

It is the defense in this case that the Defendants

disclosed all commissions, fees, and charges to its

customers and that the Defendants through Amitex

informed its customers that speculating in

commodities had a high degree of risk and that the

customer could lose their [sic] entire investment. I

53

hereby instruct you that if you find that these

expenses were disclosed and that the customers were

informed of the risks of speculating in commodities,

you may consider this in determining the

reasonableness of any customers[’] testimony that

they were misled. You may further consider this in

determining the materiality of any statements by the

Defendants alleged to have been false or misleading.

Id. at 159. The sixth instruction stated:

It is the defense in this case that the Defendants

reasonably believed that their program was not an

off exchange future subject to regulation by the

CFTC. As such, the defendants contend that they

did not intentionally mislead their customers by

claiming that Amitex was not a futures product. I

hereby instruct you that in determining the

reasonableness of this claim you may consider the

differences between the program marketed by

Amitex and that offered on the futures exchanges.

To that end you may consider evidence presented at

trial that the size of the contract offered on a futures

exchange was larger than that offered by Amitex

making delivery easier; that futures contracts are of

a limited duration, usually a matter of months,

requiring the customer to sell out of their position or

take delivery by a date certain; and that in a futures

contract, a customer could be forced out of the

market owing additional money to the exchange. I

further instruct you that if you find that these

differences are present you may consider this

evidence in determining whether the Defendants

acted with criminal intent.

Id. at 160. The seventh instruction stated:

An honest mistake of fact is a complete defense to

all charges in the indictment, because it is

inconsistent with the existence of wrongful intent,

which is an essential element of the charges. Such

54

an honest mistake negates the criminal intent of a

defendant when the defendant’s acts would be lawful

if the facts were as the defendant supposed them to

be. A defendant whose actions are based on an

honest belief that the defendant was acting lawfully

is not chargeable with intentional criminal conduct

– even if this belief was erroneous or mistaken. The

burden of proof is not on the defendant to prove the

defendant’s honest belief of a mistaken fact, since no

defendant has any burden to prove anything.

Id. at 161. The eighth instruction stated:

It is the position of the defendants that they never

entered or intended to enter into any conspiracy to

commit mail and wire fraud and that they never

engaged in, or agreed to engage in, fraudulent

activities. Further, the defendants maintain they

were honest businessmen whose interest was in

providing legitimate speculative investment

opportunities to customers.

Id. at 162.

“A defendant is entitled to a theory of defense instruction if

(1) he proposes a correct statement of the law; (2) his theory is

supported by the evidence; (3) the theory of defense is not part of

the charge; and (4) the failure to include an instruction of the

defendant’s theory would deny him a fair trial.” United States v.

Wren, 363 F.3d 654, 664 (7th Cir. 2004), vacated on other grounds,

Yarbor v. United States, 543 U.S. 1101, 125 S.Ct. 1021 (2005). As

the Court of Appeals for the Fifth Circuit has pointed out, however,

a defendant is not “entitled to a judicial narrative of his version of

the facts, even though such a narrative is, in one sense of the

phrase, a ‘theory of the defense.’” United States v. Barham, 595

F.2d 231, 244 (5th Cir. 1979). In Barham the court found that the

district court properly rejected the defendant’s proposed “theory of

the defense” instruction because it was

essentially a recounting of the facts as seen through

the rose-colored glasses of the defense – glasses that

55

[the defendant] hoped the jurors would wear when

they retired to the jury room. . . . As the Trial Judge

commented, the requested instruction was more in

the nature of a jury argument than a charge.

Id. at 244-45 (footnote omitted); see also United States v. Paradies,

98 F.3d 1266, 1287 (11th Cir. 1996) (“We find that the district

court was correct in finding that the requested jury charge was

partisan and that it aspired ‘to place the . . . defendants’ desired

factual findings into the mouth of the court.’”).

The District Court correctly refused to give Hoffecker’s

requested “theory of defense” instructions because they were

argument. When considering these proposed instructions, the court

stated:

I think that they stray . . . into a commentary on the

evidence and make[] the Court, as it were, stand

alongside arguments to come regarding how the

jurors view the evidence. And to insert myself in

that way, I think, would in somewise change my role

as the neutral giver of the law and turn me into some

what of . . . a commentator on argument and I’m not

only reluctant but it’s not my role to do that . . . .

App. vol. 48 at 105. The court was correct. Moreover, many of

Hoffecker’s “theory of the defense” instructions, such as the

“mistake of fact” instruction and the “lack of intent to enter a

conspiracy” instruction, duplicated other instructions that the

District Court gave on the subject of criminal intent, such as the

charges on “knowingly and willfully” and the “good faith defense”

to fraud. In these circumstances, Hoffecker was not entitled to

have the court charge the jury on his requested “theory of defense”

instructions and the court did not abuse its discretion when it

rejected the instructions.

Hoffecker also contends that the District Court erred by

giving two other instructions to the jury. First, the court gave an

instruction that the negligence of a victim was not a defense to the

charged crimes. The language of this instruction paraphrased our

statement of the law: in United States v. Rennert, we stated that a

56

“fraud victim’s negligence or lack of diligence in uncovering the

fraud is not a defense.” 374 F.3d 206, 213 (3d Cir. 2004) (citing

United States v. Coyle, 63 F.3d 1239, 1244 (3d Cir. 1995)),

vacated on other grounds, Miller v. United States, 544 U.S. 958,

125 S.Ct. 1744 (2005). Accordingly, the court did not abuse its

discretion when it chose to give this instruction to the jury.

The court also gave the following “absence of an attorney-

client relationship” instruction, to which Hoffecker objects:

You have heard testimony that Jack Field was a

practicing attorney. In addition, you heard that Jack

Field represented Charles “Chip” Hoffecker in the

FTC v. Uni-Vest, Hoffecker, et al. matter that

concluded in July 1991. As [a] matter of law, I am

instructing you that during the period charged in the

Indictment, Jack Field was not Mr. Hoffecker’s

lawyer. Furthermore, Jack Field was not Mr.

Myers’s lawyer, Global Investment’s lawyer or

Amitex’s lawyer at any time. As a result, for

purposes of your deliberation, I am instructing you

that Mr. Field did not have an attorney-client

relationship with Mr. Hoffecker, Mr. Myers, Global

or Amitex.

App. vol. 49 at 22-23.

Hoffecker argues this instruction prejudiced him because

Field was an attorney who “provided advice and counsel” to him,

and Field was a principal component of the Amitex operation.

Appellant’s Br. at 45. Accordingly, he contends that “the jury

should have been allowed to consider the impact of Field’s role as

a lawyer on his actions and intent.” Id. Hoffecker therefore

contends that this instruction “was reversible error based on the

evidence.” Appellant’s Rep. Br. at 44.

The Government responds that the instruction “was proper

given the facts of this case and defense counsel’s attempts to

mislead the jury.” Appellee’s Br. at 87. The Government notes

that “there was no evidence to support the theory that Field served

as Hoffecker’s counsel during the fraud, no legal advice was given

57

by Field, and none was relied upon by Hoffecker.” Id. The

Government further contends that throughout the trial “defense

counsel attempted to mislead and confuse the jury by suggesting

that Hoffecker lacked the criminal intent to commit fraud because

he relied on Field’s legal advice to purportedly run a legitimate

operation.” Id. at 88. The Government points out that even after

the District Court gave the “absence of an attorney-client

relationship” instruction to the jury, defense counsel argued at

closing that Hoffecker lacked the criminal intent to commit fraud

because he was following Field’s legal advice, an argument

prompting the court to repeat its instruction.

We conclude that the Government’s view of the evidence is

correct and that Hoffecker has no evidentiary support for his

argument that the instruction was improper on the theory that Field

acted as his attorney during the Amitex investigation or gave

Hoffecker legal advice, or that he relied on Field’s legal advice.

Therefore, we will not reverse his convictions on that basis.

Finally, in a letter submitted after oral argument, Hoffecker

raises the issue of whether the District Court’s “absence of an

attorney-client relationship” instruction infringed his Sixth

Amendment right to a jury trial by deciding an element of each the

charged offenses. Appellant’s Letter (dated April 1, 2008). In his

letter, Hoffecker contends:

[i]t is the jury’s responsibility to assess Mr.

Hoffecker’s belief and the reasonableness thereof in

evaluating whether he acted with the specific intent

to defraud. . . . The defense was unconstitutionally

deprived of the right to have the jury decide whether

Mr. Hoffecker reasonably relied on the advice of

counsel. The district court’s determination that no

attorney-client relationship existed cannot supplant

the constitutional mandate that the jury is to decide

fact issues, especially questions of intent.

Id. at 4-5.

After reviewing the record, however, we find that Hoffecker

did not raise this issue before the District Court or in his opening

58

brief on appeal. Indeed, there is very little discussion of this

instruction in the record. According to Hoffecker’s letter:

The complete discussion and argument on the jury

instructions took place during the charge conference,

a proceeding the district court conducted off the

record in the absence of the court reporter beginning

on March 6, 2006. . . . Following that conference,

the government submitted to the court and defense

counsel its proposed written Charge No. 54

[regarding the absence of an attorney-client

relationship] by email on March 7, 2006, the day

before the court instructed the jury.

Id. at 1-2. On March 8, 2006, the day after the Government

submitted its proposed charge, the District Court gave instructions

one through twenty-five to the jury before excusing the jury for the

day. The following exchange then occurred:

THE COURT: Counsel, initially I have

read jury instructions 1

through 25 to the jury.

Is there any objection to

the charge as it was read

thus far?

PROSECUTOR: No, your Honor.

THE COURT: Defense.

DEFENSE COUNSEL: Your Honor, we agree

that the charge as read

reflects the charge that

the Court advised you

would read during the

robing room

conference. Having

said that, there were a

number of items that we

requested or objected to

that the Court ruled on,

59

and the appropriate time

I can make a record of

that.

THE COURT: Well my suggestion is

that we attend to those

issues now less [sic] we

lose track of them. I

have no problems

dealing with motions

such as we’re going to

be addressing later on.

But this is right on point

so let’s get it done. And

I think, [defense

counsel], you indicated

that there were

additional charges, so

we’re not talking just

about language changes

but whole additional

charges you were going

to proffer to the Court,

and I would like to hear

from you on those as

well.

....

DEFENSE COUNSEL: Your Honor, there are

no further objections to

the instructions as read

for instructions 1

through and including

25. The remainder

would be items the

Court has not yet read

or are items dealing

with the requested

supplemental jury

instruction.

60

THE COURT: Let’s jump into that

number.

App. vol. 48 at 95-96, 98. The court and counsel then discussed

various proposed instructions.

Eventually, counsel for Hoffecker addressed the instruction

with which we are concerned, stating, “And we object to Charge

Number 54: Absen[ce] of [an] Attorney-Client Relationship. The

Court did make a change to the proposed language based on the

defense position. But in other respects [it] is including the

instruction and we object to it its institution [sic].” Id. at 117.

At no point in the record does Hoffecker explain the basis

for this objection, and the District Court’s ruling on the objection

is not in the record, although we believe that the court overruled

the objection because the court gave the instruction (renumbered

as Charge Number 44a) the next day to the jury. App. vol. 49 at

22-23.

After the court finished instructing the jury, it held the

following sidebar:

THE COURT: Counsel, was the

reading of the jury

instruction satisfactory?

PROSECUTOR: Yes, ma’am.

DEFENSE COUNSEL: It was, Judge. And we

reserve the objections

previously made, but

we have no additional

objection. . . . . I do

have a note, Judge, to

make. Since prior to

the start today, we had a

brief additional charge

conference that was not

reported. We did raise

a number of issues and

61

in some respects

objections and

alterations, as given to

the Court. I think the

procedure is, you will

allow us to put it on the

record at the appropriate

time, but the position

we took during the pre-

part two of the charge to

the charge will

otherwise be preserved?

THE COURT: We’ll take our time to

go through the charge

and you will have a

chance to put on the

record the alterations.

You asked for them and

I didn’t include them

and we’ll do that.

DEFENSE COUNSEL: Thank you.

Id. at 32-33. The Government and the defendants then made their

closing arguments to the jury.

At one point during Hoffecker’s closing argument, the

Government objected because “there were several attempts by

[defense counsel] to do an end run around your earlier ruling and

your instruction that Jack Field was not an attorney for purposes of

Amitex and Global.” App. vol. 50 at 117. The District Court then

instructed the jury: “I am reminding you that Mr. Field is not Mr.

Myers[’s] lawyer, Global Investment’s lawyer or Amitex’s lawyer

at any time, and for purposes of your deliberations, I instruct you

that Mr. Field did not have an attorney-client relationship with Mr.

Hoffecker or Mr. Myers or Global or Amitex . . . .” Id. at 121.

Later, during Myers’s closing argument, the Government again

objected for the same reason and the court told the jury:

Ladies and gentlemen, I remind you again of the

62

instruction concerning Jack Field. You heard that he

was a practicing attorney, but you also heard me tell

you, and I remind you again, that as a matter of law,

I instruct you that during the period charged in the

indictment Jack Field was not Mr. Hoffecker’s

lawyer, Mr. Myers’s lawyer, Global Investment’s

lawyer or Amitex’s lawyer at any time. And for

purposes of your deliberation, I instruct you that

Jack Field did not have an attorney-client

relationship with Mr. Hoffecker, Mr. Myers, Global

or Amitex.

App. vol. 51 at 29.

After closing arguments, but before the jury left to begin

deliberating, Hoffecker’s counsel stated: “I want to, we renew all

prior comments and objections in connection with the jury

instruction. . . . . I do want the record to reflect that the Court is

allowing us to preserve all the previous objections that we have

made and requests that we have made.” App. vol. 52 at 55. That

is the last statement in the record that we have located relating to

Hoffecker’s objections to the jury instructions.

As we noted, Hoffecker never stated the basis for his

objection to the “absence of an attorney-client relationship”

instruction on the record. Moreover, in his opening brief on this

appeal, Hoffecker’s entire discussion regarding the instruction was

the following:

The defendant was prejudiced by Charge 44a – Absence of

Attorney-Client Relationship (A59:172). At all times, Field

was a lawyer, Field provided advice and counsel to

Hoffecker, and Field was a principal component of the

Amitex operation. The jury should have been allowed to

consider the impact of Field’s role as a lawyer on the

defendant’s actions and intent.

Appellant’s Br. at 45. As we noted above, in his Reply Brief,

Hoffecker makes clear that his argument is that “based on the

evidence” the instruction was incorrect. Appellant’s Rep. Br. at 44.

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Because Hoffecker did not raise before the District Court or

in his opening brief on appeal the issue of whether the District

Court’s “absence of an attorney-client relationship” instruction

infringed his Sixth Amendment right to a jury trial by deciding an

element of each of the charged offenses, he has waived it. See Fed.

R. Crim. P. 51(b) (“A party may preserve a claim of error by

informing the court – when the court ruling or order is made or

sought – of the action the party wishes the court to take, or the

party’s objection to the court’s action and the grounds for that

objection.”); Pelullo, 399 F.3d at 222 (“It is well settled that an

appellant’s failure to identify or argue an issue in his opening brief

constitutes waiver of that issue on appeal.”).

But even if we were to consider this issue, we would find

that Hoffecker has not shown plain error or, indeed, error at all in

its disposition. See Fed. R. Crim. P. 52(b) (“A plain error that

affects substantial rights may be considered even though it was not

brought to the court’s attention.”); United States v. Wise, 515 F.3d

207, 214 (3d Cir. 2008) (reviewing jury instructions for plain error

after defendant failed to raise an argument before the district court).

“Under the plain error standard, ‘before an appellate court can

correct an error not raised at trial, there must be (1) error, (2) that

is plain, and (3) that affect[s] substantial rights. If all three

conditions are met, an appellate court may then exercise its

discretion to notice a forfeited error, but only if (4) the error

seriously affect[s] the fairness, integrity, or public reputation of

judicial proceedings.’” United States v. Williams, 464 F.3d 443,

445 (3d Cir. 2006) (alterations in original) (quoting United States

v. Vazquez, 271 F.3d 93, 99 (3d Cir. 2001)). To affect substantial

rights, an error must be “prejudicial, i.e., it ‘must have affected the

outcome of the district court proceedings.’” United States v.

Nappi, 243 F.3d 758, 762 (3d Cir. 2001) (quoting Olano, 507 U.S.

at 734, 113 S.Ct. at 1778).

Here, the District Court clearly left to the jury the

determination of whether the Government established beyond a

reasonable doubt each of the elements of conspiracy and mail

fraud. For example, the court instructed the jury that to convict

Hoffecker of conspiracy it must find beyond a reasonable doubt

that he willfully participated in the unlawful plan charged with

intent to commit mail fraud and wire fraud:

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So, if a defendant[], with understanding of [the]

unlawful character of a plan knowingly encouraged,

advise[d] or assist[ed] for the purpose of furthering

the undertaking or scheme, [he] thereby bec[a]me [a]

willful participant[], that is, [a] conspirator[]. . . .

[W]hether or not the defendants were members of

the conspiracy may be determined upon all of the

evidence in this case, including the reasonable

inferences that you draw from that evidence.

App. vol. 48 at 87-88.

The court also instructed the jury that to convict Hoffecker

of mail fraud it must find beyond a reasonable doubt that he

participated in the scheme knowingly, willfully and

with intent to defraud. Intent to defraud means to act

knowingly and with a specific intent to deceive, for

the purpose of causing some deprivation or loss to

another of money or property. The question of

whether a person acted knowingly, willfully and

with intent to defraud is a question of fact for you to

determine, like any other fact question. This

question involves a person’s state of mind.

App. vol. 49 at 8-9 (emphasis added). The court then elaborated on

the definition of “knowingly” and “willfully”:

A person acts knowingly if that person acts

consciously and voluntarily with an awareness and

realization of what was happening and not because

of mistake or accident or other innocent reason. The

purpose of adding the word ‘knowingly’ is to ensure

no one will be convicted for an act done because of

mistake or accident or other reason. A person acts

‘willfully’ if that person knowingly acts voluntarily,

deliberately and intentionally as contrasted with

acting accidently, carelessly or unintentionally. So,

if you find beyond a reasonable doubt that the acts

constituting the crime charged were committed by a

defendant voluntarily as an intentional violation of a

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known legal duty, that is, with the specific intent to

do something that the law forbids, then the element

of willfulness [a]s defined in these instructions has

been satisfied. In determining whether a defendant

has acted knowingly and willfully, it is not necessary

for the government to establish that the defendant

knew that he was breaking a particular law.

Id. at 13-14. The court also instructed the jury:

Good faith is a complete defense to the charges in

the Indictment, since good faith on the part of a

defendant is inconsistent with intent to defraud or

with willfulness, which are essential parts of the

charges. The burden of proof is not on the

defendants to prove good faith, of course, since the

defendants have no burden to prove anything. The

government must establish beyond a reasonable

doubt that the defendants acted with the specific

intent to defraud as charged in the Indictment. One

who expresses an honestly held opinion or an

honestly formed belief, is not chargeable with

fraudulent intent even though the opinion is

erroneous or belief is mistaken; and similarly,

evidence which establishes only that a person made

a mistake in judgment or error in management or

was careless, does not establish fraudulent intent.

Id. at 16.

In light of the District Court’s instructions and the fact that

the Government produced overwhelming evidence to establish

Hoffecker’s intent to commit the charged crimes, we find that the

District Court’s “absence of an attorney-client relationship” charge

did not affect the outcome of the proceeding. Accordingly, we find

no plain error, or, as we have indicated, any error at all, in this

aspect of the District Court’s instruction.

5. Alleged Perjury by a Government Witness

Hoffecker next argues that his right to due process was

66

violated when a former Global employee, Gregory Swarn,

allegedly perjured himself during his trial testimony. In particular,

Hoffecker claims that Swarn testified falsely with respect to his

education on direct examination when he stated that he had

received a college degree. Hoffecker points out that on cross-

examination, when his attorney questioned Swarn about a transcript

that showed that he was five hours short of completing the degree,

Swarn explained that he had graduated from college and had

completed his requirements because course work from another

institution should have been credited to him.

Hoffecker also claims that Swarn testified falsely as to his

employment with Global. On cross-examination, defense counsel

produced broker/trader licensing applications in which Swarn did

not list Global as a prior place of employment. On re-direct, Swarn

explained that he had not admitted to having worked at Global and

several other companies because those companies had been scams,

not legitimate businesses. Also during cross-examination, defense

counsel noted that Swarn had not told the Federal Bureau of

Investigation (“FBI”) or the United States Probation Office in

Florida that he had worked at Global. Swarn explained that he had

not wanted to volunteer the information because he had not paid

taxes on income from Global and that the FBI did not ask him

specifically about Global. Finally, in response to defense counsel’s

questions about why there was no documentation showing that

Swarn had been on the Global payroll, Swarn testified that he had

been paid in cash.

Approximately three weeks after Swarn’s testimony had

concluded, Hoffecker filed a motion to dismiss the indictment or,

in the alternative, to strike Swarn’s testimony and a motion for the

appointment of a special prosecutor to investigate Swarn’s alleged

perjury. The District Court denied the motion.

A witness commits perjury if he or she “gives false

testimony concerning a material matter with the willful intent to

provide false testimony, rather than as a result of confusion,

mistake, or faulty memory.” United States v. Dunnigan, 507 U.S.

87, 94, 113 S.Ct. 1111, 1116 (1993). To establish a due process

violation, Hoffecker must show that: (1) Swarn committed perjury;

(2) the Government knew or should have known of Swarn’s

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perjury; (3) Swarn’s testimony went uncorrected; and (4) there is

a reasonable likelihood that the false testimony could have affected

the verdict. See Lambert v. Blackwell, 387 F.3d 210, 242 (3d Cir.

2004). We review for clear error a trial court’s factual finding that

a witness’s testimony was not false and we will not disturb that

finding unless it is wholly unsupported by the evidence. United

States v. Johnson, 327 U.S. 106, 111-12, 66 S.Ct. 464, 466 (1946);

Gov’t of V.I. v. Lima, 774 F.2d 1245, 1251 (3d Cir. 1985).

The District Court found that Hoffecker failed to show that

Swarn had given false testimony or that the Government knowingly

had offered perjured testimony. The court found that Swarn’s

testimony that he had received a college degree was not

intentionally false because Swarn had offered an explanation for

his belief that he had graduated. The court also found that

Hoffecker could not show that Swarn was testifying falsely when

he stated that he had worked for Global, despite the lack of

documentation. The court found that Swarn’s admission that he

did not tell the Florida Probation Office about his employment at

Global did not demonstrate that he committed perjury and

appropriately could be addressed by defense counsel in his closing

argument when discussing Swarn’s credibility. Finally, the court

found that evidence that Swarn might have lied in filling out

regulatory or tax forms did not demonstrate that he had committed

perjury when he testified in this case.

We find that the District Court did not err when it found that

Hoffecker had not shown that Swarn committed perjury. Swarn

gave reasonable explanations for his alleged false testimony,

leading us to conclude that he testified truthfully. Although

defense counsel showed that Swarn previously had concealed his

employment with Global, this circumstance does not mean that he

lied about his employment on the witness stand and counsel was

free to comment on Swarn’s credibility during closing argument.

It must be remembered that we are concerned here with whether

Swarn’s testimony was false in this case, not whether he had been

forthright in other situations. Moreover, Hoffecker did not show

that the Government knew or should have known of Swarn’s

alleged perjury. In fact, we are surprised that Hoffecker has raised

these rather inconsequential matters as a basis for a reversal here

inasmuch as when Swarn’s allegedly false testimony is considered

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within the context of the entire case we see no chance at all that,

even if false, it could have affected the verdict. In these

circumstances, the Government’s use of Swarn’s testimony did not

violate Hoffecker’s due process rights.

6. Exclusion of Expert Testimony

Hoffecker next contends that the District Court improperly

excluded three defense expert witnesses in violation of his

constitutional right to present relevant evidence. On December 13,

2005, three business days before jury selection in the second trial,

and 34 months after the indictment had been returned on February

14, 2003, Hoffecker notified the Government of his intent to call

three experts: Ian MacDonald, Rodney Stavert, and Sterling Quant.

App. vol. 59 at 72-90. According to the notices, MacDonald “may

provide testimony with respect the metals markets” and “about his

analysis of the program offered by Amitex . . . .” Id. at 73-74.

Quant “may provide general testimony with respect to the legal

framework that governs domestic and international businesses [sic]

entities in the Bahamas” and “about the framework of Amitex’s

business transactions under Bahamian law.” App. vol. 59 at 80.

Stavert “may provide testimony with respect to the metals market”

and “may analyze the program offered by Amitex . . . .” App. vol.

59 at 86. The District Court found that Hoffecker had failed to

comply with Federal Rule of Criminal Procedure 16(b)(1)(C)

because the notice was late and deficient. As a sanction for this

noncompliance, the court precluded the three experts from

testifying at trial.

The Sixth Amendment guarantees a defendant the right “to

have compulsory process for obtaining witnesses in his favor . . .

.” U.S. Const. amend. VI. But the right to present relevant

evidence is “subject to reasonable restrictions.” United States v.

Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 1264 (1998). The

Supreme Court explained in Scheffer that:

A defendant’s interest in presenting such evidence

may thus bow to accommodate other legitimate

interests in the criminal trial process. As a result,

state and federal rulemakers have broad latitude

under the Constitution to establish rules excluding

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evidence from criminal trials. Such rules do not

abridge an accused’s right to present a defense so

long as they are not arbitrary or disproportionate to

the purposes they are designed to serve. Moreover,

we have found the exclusion of evidence to be

unconstitutionally arbitrary or disproportionate only

where it has infringed upon a weighty interest of the

accused.

Id. (citations and internal quotation marks omitted). In harmony

with the Supreme Court’s later decision in Scheffer, we earlier had

indicated that “[t]his court has upheld the exclusion of expert

witnesses as an appropriate sanction for a party’s violation of a

discovery order or some other pre-trial order.” United States v.

68.94 Acres of Land, 918 F.2d 389, 396 (3d Cir. 1990).

Federal Rule of Criminal Procedure 16(b)(1)(C) which

concerns reciprocal discovery of expert witnesses provides in

pertinent part:

The defendant must, at the government’s request,

give to the government a written summary of any

testimony that the defendant intends to use under

Rules 702, 703, or 705 of the Federal Rules of

Evidence as evidence at trial, if – (i) the defendant

requests disclosure under subdivision (a)(1)(G)

[providing for government disclosure of its expert

witnesses] and the government complies . . . . This

summary must describe the witness’s opinions, the

bases and reasons for those opinions, and the

witness’s qualifications.

Fed. R. Crim. P. 16(b)(1)(C). The rule is meant

to prevent the defendant from obtaining an unfair

advantage. For example, in cases where both

prosecution and defense have employed experts to

make psychiatric examinations, it seems as important

for the government to study the opinions of the

experts to be called by the defendant in order to

prepare for trial as it does for the defendant to study

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those of the government’s witnesses.

Id., Advisory Committee Notes (1966 Amendment). Moreover, the

rule is “intended to minimize surprise that often results from

unexpected expert testimony, reduce the need for continuances, and

to provide the opponent with a fair opportunity to test the merit of

the expert’s testimony through focused cross-examination.” Id.,

Advisory Committee Notes (1993 Amendment). Significantly,

“[a]lthough no specific timing requirements are included, it is

expected that the parties will make their requests and disclosures

in a timely fashion.” Id. If a party fails to comply with Rule

16(b)(1)(C), the court may:

(A) order that party to permit the discovery or

inspection; specify its time, place, and manner; and

prescribe other just terms and conditions; (B) grant

a continuance; (C) prohibit that party from

introducing the undisclosed evidence; or (D) enter

any other order that is just under the circumstances.

Fed. R. Crim. P. 16(d)(2).

Courts of appeals have upheld the exclusion of experts when

defendants fail to serve timely notice of their intent to call them as

witnesses. In United States v. Petrie, for example, the defendant,

who had been indicted for conspiracy to launder money after he

participated in a scheme to dupe persons interested in obtaining

venture capital funding, waited until the Friday afternoon prior to

the commencement of trial on the following Monday to disclose his

expert to the Government. 302 F.3d 1280, 1283, 1288 (11th Cir.

2002). The district court precluded the defendant’s expert from

testifying at trial as a sanction for the untimely disclosure. Id. at

1288-89. On appeal following his conviction, the defendant

claimed that his proposed expert witness’s testimony “would have

been highly relevant and extremely probative,” and that the witness

“would have explained the whole syndication world, and would

have talked about what a letter of credit is and why letters of credit

need to be confirmed from a top 50 or a top 100 bank.” Id. at 1288

(quotation marks omitted). The Court of Appeals for the Eleventh

Circuit affirmed the conviction, noting that almost a year and a half

had passed between the return of the superseding indictment and

71

the defendant’s trial and that the expert’s testimony “would have

simply provided the jury with background information regarding

financial matters.” Id. at 1288-89.

The District Court here found that Hoffecker had violated

Rule 16(b)(1)(C) by filing a late and deficient notice. The court

first explained the context of its decision:

[T]he proceeding at hand is a retrial. The attorneys

for Mr. Hoffecker and Mr. Myers are the same

attorneys that . . . represented them at the first full

jury trial, and for all of the pretrial proceedings in

both trials. Second, there have been numerous

requests for adjournments, all made by the defense

over the vigorous objection of the government. . . .

[E]ighteen months have gone by since the retrial. At

no time was the issue of experts raised in the context

of the need for additional time. . . . [P]rotective

notice to rely on expert testimony, . . . was filed by

both [defense attorneys]. . . . [T]hat notice evidences

the defendants’ awareness of their Rule 16

obligations.

App. vol. 14 at 133-35. The court further noted that the record in

the case “shows a continuing series of requests by the United States

for material that these defendants were unequivocally required to

provide under Rule 16(b)(1)(C).” Id. at 135. The District Court

then stated that an expert witness may testify only if his testimony

is relevant and helpful to the jury, and asked, “How can a Court

make that determination? How can an adversary effectively cross-

examine absent that information? All of this takes predicate time

and exploration and investigation, and all of that would preclude a

late notice such as this.” Id. at 138. The court further found that

Hoffecker’s notices were facially deficient, stating that

“[c]onspicuously omitted from their notices . . . are the opinions

and basis and reasons for the opinions of [the] three proposed

experts. Merely the subjects of what they may discuss is offered.”

Id. at 139. Finally, the court found that there were “no factual

circumstances that [have] been presented by the defendants to

excuse the problems [with the notices],” and ordered that “[t]he

only and proper response of the Court is to exclude the proposed

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testimony . . . .” Id. at 144.

Hoffecker makes several arguments to support his claim that

the District Court abused its discretion by excluding the three

expert witnesses. He cites United States v. Davis for the

proposition that “the compulsory process clause of the sixth

amendment forbids the exclusion of otherwise admissible evidence

solely as a sanction to enforce discovery rules or orders against

criminal defendants.” 639 F.2d 239, 243 (5th Cir. 1981). But the

Supreme Court effectively rejected the Davis holding in Taylor v.

Illinois, as it concluded that a preclusion sanction can be an

appropriate response to a criminal defendant’s discovery violation.

484 U.S. 400, 416, 108 S.Ct. 646, 656 (19

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