United States v. Graves

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 92-9508

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ROBERT GRAVES,

Defendant-Appellant.

____________________________________________________

Appeals from the United States District Court

for the Middle District of Louisiana

_____________________________________________________

(October 20, 1993)

Before KING and BARKSDALE, Circuit Judges, and DUPLANTIER,1

District Judge.

BARKSDALE, Circuit Judge:

The critical issue before us turns on a party being required

to object, or make an offer of proof, when the subject covered by

a motion in limine arises at trial, in order to preserve the issue

for appeal. This and several other evidentiary questions being the

principal matters raised on appeal, Robert Graves challenges his

conviction and sentence for conspiracy to defraud the United States

and Internal Revenue Service, in violation of 18 U.S.C. § 371. We

AFFIRM.

1

District Judge of the Eastern District of Louisiana, sitting

by designation.

I.

Graves was the Secretary of the Louisiana Department of

Transportation and Development (DOTD) from 1984 to 1988. In late

1986, he contacted Joseph Palermo, a member of the State Mineral

Board and businessman in Louisiana. The two had known each other

since 1984; Palermo considered Graves a "very good friend".

Graves called on Palermo for help, telling him that he

(Graves) had received income from a source he did not wish to

reveal to the Internal Revenue Service. Graves stated that he

owned property in Mississippi, and suggested that it might be used

to help account for the income.

Joseph Palermo did not wish to become directly involved

because of his position on the Mineral Board; thus, he asked his

brother, Myron Palermo, to help Graves. Myron Palermo told Joseph

Palermo, and later told Graves, that he would be willing to provide

Graves an apparent source for the income.

The specific scheme to which the Palermos and Graves agreed

was executed as follows: Backdated documents were created to show

a sale of Graves' Mississippi property to Myron Palermo's company.

Graves created backdated receipts for some $40,000 in payments

towards the alleged purchase price. The receipts showed Myron

Palermo's company as the party making the payments.

Two years later, when Myron Palermo was arrested for attempted

distribution of marijuana, authorities recovered the false

documents during a search of his business premises. Within a few

days of the arrest, Joseph Palermo informed Graves about it and the

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document seizure. As agreed, they met to discuss how to "get[] the

property back" in Graves' name. Graves then met with Myron

Palermo, and instructed him to write a letter stating that he could

not make the payments on the property and would be willing to

return it to Graves. Graves also instructed him to execute a

quitclaim deed returning the property to Graves. Myron Palermo did

both, testifying that these documents were created so "it would

look like it was a real transaction, which it wasn't."

Graves was indicted for both conspiracy to defraud the United

States and IRS, in violation of 18 U.S.C. § 371, and making a false

statement to the IRS (concerning different funds), in violation of

26 U.S.C. § 7206(1). He was convicted by a jury of the former and

acquitted on the latter. His sentence included 21 months

incarceration.

II.

A.

Graves bases error on the denial of his motion to strike

language from the indictment, which suggested that he was selling

his influence as a governmental official. He asserts that, instead

of being tried as charged, he was tried for official corruption.

Specifically, he contends that the conspiracy count should not have

identified him as the Secretary of DOTD, and that the false

statement count should not have made reference to him selling his

influence.2 Similarly, he maintains that the district court should

2

Paragraph two of the conspiracy count stated:

From in or about April 1984 to in or about March

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not have admitted evidence that he was engaged in official

misconduct.

1.

The denial of a motion to strike is reviewed only for abuse of

discretion. United States v. Bullock, 451 F.2d 884, 888 (5th Cir.

1971). For language to be struck from an indictment, it must be

irrelevant, inflammatory, and prejudicial. Id.

Graves' contention that the reference to his official position

in the conspiracy count should have been struck is without merit.

First, the language is relevant to the identity of the defendant

charged in the indictment. See United States v. Reeves, 892 F.2d

1223, 1228 (5th Cir. 1990) (recognizing that the "identity of the

participants" in a conspiracy is relevant). Second, his occupation

was relevant to prove the motive of the conspirators.

Specifically, the Palermos knew of Graves' position, and Graves

advised Myron Palermo that he should call him (Graves) if "[Graves]

could ever help me in any way". Evidence suggesting a motive for

a crime is relevant. See, e.g., United States v. Mennuti, 679 F.2d

1988, the defendant, ROBERT G. GRAVES, was the

Secretary of the Department of Transportation and

Development (DOTD) of the State of Louisiana.

The false statement count also recited that Graves was the

Secretary of DOTD. In addition, it stated:

In or about August 1986, the defendant, ROBERT G.

GRAVES, accepted a substantial sum of money knowing

it was paid to him for Graves' past assistance, and

to influence Graves to continue to be of

assistance, in connection with the obtaining of

properties by the State of Louisiana through the

DOTD.

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1032, 1037 (2nd Cir. 1982). (Nor is the language inflammatory or

prejudicial.)

Likewise, we find no abuse of discretion concerning the

contested language in the false statement count. The government

was required to prove that Graves knew that his income exceeded

that which he reported. See 26 U.S.C. § 7206(1). The specific

allegation made in support of the false statement charge was that

Graves peddled influence for cash. Of course, such an allegation

may be somewhat sensational; but, that does not make it irrelevant.

2.

For the foregoing reasons, we also find no error in the

admission of evidence on whether Graves was receiving unreported

income through official misconduct.

B.

Graves next asserts that the district court improperly

excluded evidence he sought to introduce to rebut the false

statement charge. To prove this charge, the government alleged

that a payment of $10,000 by Joseph Palermo to Graves was

unreported income. Joseph Palermo testified that the money was

given to Graves for his help in the DOTD's purchase of land from

Joseph Palermo.3 And, a DOTD employee testified that Graves'

actions in that transaction were not routine.

Graves presented evidence that he had done nothing to

influence the acquisition; in fact, a defense witness testified

that Graves' actions regarding the transaction were not unusual.

3

The land was owned by Joseph Palermo and others.

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Apparently, the jury credited Graves' explanation; he was acquitted

on the false statement charge. Now, however, Graves contends that

the trial court erred in excluding evidence he sought to introduce

regarding the price paid by the State for other parcels of

property. Through such evidence, Graves hoped to show that the

price paid by the State to Joseph Palermo was not unusually high.

Insofar as Graves was acquitted on the false statement charge,

even assuming error, it must be deemed harmless. See Fed. R. Crim.

P. 52(a). In addition, we find no abuse of discretion in the

district court's determination under Fed. R. Evid. 403 to exclude

evidence on a plethora of land acquisitions by the State. See Fed.

R. Evid. 103 ("[e]rror may not be predicated upon a ruling which

admits or excludes evidence unless a substantial right of the party

is affected"); United States v. Ackal, 706 F.2d 523, 532 (5th Cir.

1983) (essaying abuse of discretion standard of review for

limitations on the introduction of evidence); see also United

States v. Quintero, 872 F.2d 107, 113 (5th Cir. 1989) (noting broad

discretion of trial court in determining admissibility of

evidence), cert. denied, 496 U.S. 905 (1990). Such evidence would

have unduly consumed time and risked jury confusion on an issue of

little, if any, relevance. It matters not whether Joseph Palermo

received special treatment. What is relevant is whether he paid

Graves in an effort to procure it.

C.

Graves next challenges the district court's allowing a portion

of the government's plea agreement with Myron Palermo to be

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withheld from the jury. Before trial, the government filed a

motion in limine to exclude the portion providing that Palermo

would be subject to a polygraph examination. Graves unsuccessfully

contested the motion, contending that such a limitation would be

"contrary to the established standards of cross-examination and

confrontation". At trial, a redacted version of the plea agreement

was introduced; the polygraph clause was excluded.

According to the government, "[n]o polygraph examination of

Myron Palermo was ever requested or conducted." Graves is not

attempting to introduce polygraph results into trial; rather, he

asserts that he should have been allowed to explore the

implications of the government's inclusion of the polygraph clause

in the agreement as an issue going to Myron Palermo's credibility.

In addition, Graves complains that the government and Myron Palermo

affirmatively misrepresented that the redacted agreement was the

entire agreement, when Palermo, at the conclusion of an extended

colloquy on the agreement, affirmed that it was the "entire" and

"only agreement" he had with the government.

1.

For purposes of this appeal, we will assume that the district

court erred in permitting the clause to be redacted. Also, we will

assume that the offer made by the district court to Graves -- that

the clause could be left in, but that Graves would not be permitted

to ask questions about whether a polygraph examination was given

and the court would issue a cautionary instruction -- would not

cure this error.

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At trial, Graves did not object (renew his objection) to the

introduction of the redacted agreement. Rule 103 requires that a

timely objection be made; otherwise, we review only for plain

error. See Fed. R. Evid. 103. Although it may seem redundant --

as well as contrary to the underlying reasons for motions in limine

-- to require Graves to object at trial after having unsuccessfully

opposed the motion in limine, we are bound by a recent decision by

this circuit that plainly requires Graves to lodge a

contemporaneous objection in order to preserve the issue for

appeal. See United States v. Estes, 994 F.2d 147, 149 (5th Cir.

1993) (per curiam).

In Estes, a defendant planned to impeach the testimony of a

prosecution witness by introducing a prior conviction. Id. at 148.

The government moved successfully in limine to exclude evidence of

the conviction, to which the defendant objected. Id. The Estes

court recognized the settled rule of this circuit that a motion in

limine does not preserve error for Rule 103 purposes; thus, "`[a]

party whose motion in limine is overruled must renew his objection

when the evidence is about to be introduced at trial.'" Id. at 149

(quoting Wilson v. Waggener, 837 F.2d 220, 222 (5th Cir. 1988)).

Though recognizing that Estes presented the "opposite situation" --

the appellant had contested a successful motion in limine -- the

Estes court saw "no reason why the same rule should not apply.

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[Appellant] should have attempted to offer evidence of the

conviction at trial to preserve this issue for appeal."4 Id.

One commentator advises that "where an objection [in the form

of a motion in limine] has been sustained an offer of proof should

4

There is some tension between Estes and a prior decision by

our court, Collins v. Wayne Corp., 621 F.2d 777 (5th Cir. 1980).

In Collins, a party moved in limine to prevent its opponent from

introducing a deposition of one of the movant's experts. Id. at

780. The district court received briefs on the issue;

subsequently, it took the motion under advisement "until plaintiffs

prepared to offer [the deposition] as part of their trial

evidence." Id. At some point (perhaps at trial), the district

court decided to admit the deposition, but it did impose restraints

on the ability of the offering party to adduce additional facts

about the deponent. See id. For that reason, the offering party

chose to not offer the deposition into evidence. Id. at 781. On

appeal, that party based error on the restraints imposed by the

district court.

The party that had moved in limine to exclude the deposition

asserted on appeal that the proponent of the deposition failed to

preserve error, by failing to make an offer of proof at trial. Id.

Our court, applying Rule 103, determined that the "function of an

offer of proof is to inform the court what counsel expects to show

by the excluded evidence." Id. (citation omitted). The court then

determined that error was preserved because the motion in limine

papers and briefs made "the substance of the deposition known" to

the district court. Id.

Although, likewise, the district court knew the substance of

the evidence excluded in the instant case, Collins is

distinguishable. The district court in Collins apparently ruled on

the admissibility of the deposition at the time the deposition

would have been offered at trial. The instant case more closely

resembles Estes, because the district judge was not given the

opportunity at trial to reconsider his ruling on the exclusion of

the polygraph clause. Indeed, Collins, in another section of the

opinion, notes that "overruling of a motion in limine is not

reversible error; only a proper objection at trial can preserve

error for appellate review"; therefore, "a party whose motion in

limine has been overruled must object when the error he sought to

prevent with his motion is about to occur at trial." Id. at 784.

The stated rationale is to "give the trial court an opportunity to

reconsider the grounds of the motion in light of the actual --

instead of hypothetical -- circumstances at trial." Id. This

rationale, discussed infra in the text, applies here.

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be made at trial to make sure that appeal rights are preserved".

See 1 John W. Strong et al., McCormick on Evidence § 52 at 203 (4th

ed. 1992) (footnote omitted). This advice is well taken in this

circuit. As discussed in note 4, supra, the rationale for

requiring either a renewed objection, or an offer of proof, is to

allow the trial judge to reconsider his in limine ruling with the

benefit of having been witness to the unfolding events at trial.5

See Luce v. United States, 469 U.S. 38, 41-42 (1984) ("The ruling

is subject to change when the case unfolds. ... Indeed even if

nothing unexpected happens at trial, the district judge is free ...

to alter a previous in limine ruling."); see also Collins, 621 F.2d

at 784 ("Motions in limine are frequently made in the abstract and

in anticipation of some hypothetical circumstance that may not

develop at trial.").6

5

In this case, the district court granted the government's

motion in limine at a status conference prior to trial.

6

Several circuits appear to follow our rule that, to preserve

error for appeal, an objection or offer of proof as to the subject

presented by a motion in limine must be made at trial. Those

decisions do so in the context of an overruling of a motion in

limine. See, e.g., McEwen v. City of Norman, 926 F.2d 1539, 1544

(10th Cir. 1991); United States v. Roenigk, 810 F.2d 809, 815 (8th

Cir. 1987); Hendrix v. Raybestos-Manhattan, Inc., 776 F.2d 1492,

1504 (11th Cir. 1985). Nevertheless, some circuits are acting to

soften the rule. See, e.g., United States v. Mejia-Alarcon, 995

F.2d 982, 986-88 (10th Cir. 1993) (adopting three-part exception to

rule), petition for cert. filed, (U.S. Sept. 3, 1993) (No. 93-

5876); Greger v. International Jensen, Inc., 820 F.2d 937, 941-42

(8th Cir. 1987) (recognizing exception to general rule if trial

court makes definitive ruling on motion before trial); Palmerin v.

City of Riverside, 794 F.2d 1409, 1413 (9th Cir. 1986) ("where the

substance of the objection has been thoroughly explored during the

hearing on the motion in limine, and the trial court's ruling

permitting introduction of the evidence was explicit and

definitive, no further action is required to preserve for appeal

the issue of admissibility of that evidence.")

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Because Graves failed at trial to renew his objection (or

offer the polygraph clause),7 we apply the plain error standard of

review. Fed. R. Evid. 103. Unless the error is "so obvious that

our failure to notice it would seriously affect the fairness,

integrity, or public reputation of judicial proceedings and result

in a miscarriage of justice", we will not reverse the conviction.

United States v. Fortenberry, 914 F.2d 671, 673 (5th Cir. 1990)

(quoting United States v. Graves, 669 F.2d 964, 971 (5th Cir.

1982)), cert. denied, 111 S. Ct. 1333 (1991).

This case does not present such error. First, we question the

utility of the polygraph clause for the defense. At oral argument,

Graves recognized that the inferences that may be drawn from the

clause could either credit or impeach Myron Palermo. Second, even

assuming that the jury would have determined that the presence of

the clause impeached Myron Palermo's credibility, the jury had

before it other impeachment evidence insofar as he was concerned.

Specifically, the jury had the following information about

Myron Palermo: (1) he pled guilty to a charge of conspiracy to

possess with intent to distribute 2,000 pounds of marijuana; (2) he

pled guilty to conspiracy to defraud the United States (money

7

We recognize that Graves would have had to do so through a

sidebar conference (on the record) or otherwise handle it outside

the hearing of the jury; failure to do so would defeat the purpose

of the in limine ruling. The flip side is, of course, that a trial

judge should not be surprised, perturbed or annoyed when counsel

makes an objection or offer of proof on an issue that the judge

believes was disposed of by the in limine ruling; counsel is, at

the very least, preserving the issue for appeal.

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laundering); (3) he pled guilty to obstructing the United States

Customs Service; (4) he had received substantially lighter

punishment for these offenses because of his testimony against

Graves; and, (5) he had lied originally to federal authorities

concerning the documents at issue in the Graves case. As if this

was not enough, the jury heard testimony that Myron Palermo was

regarded in the community as untruthful. Highlighting this

evidence of a reputation for untruthfulness, the district court

specifically reminded the jury of it during its charge. In light

of the abundant evidence Graves could have used to impeach Myron

Palermo, the absence of the more speculative inferences that may

have flowed from the polygraph clause falls far short of so

infecting the judicial process as to require reversal under the

plain error standard of review. (It appears that, even under the

normal standard of review, Graves could not show reversible error.

Accordingly, although we do not recommend en banc review in this

case of our circuit's rule on renewing objections to in limine

rulings, we urge that it do so in the appropriate case.)

2.

We can certainly understand Graves' concerns regarding the

representation by the government that the redacted plea agreement

was the "entire" or "only" agreement between it and Myron Palermo.

Obviously, government counsel should not represent that a document

is the "entire" agreement when, in fact, it is not (even when the

only portion of the agreement not disclosed to the jury was subject

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to court-ordered limitation).8 This notwithstanding, Graves'

failure to make a contemporaneous objection to the questions

concerning the entirety of the agreement dictates, again, review

only for plain error.9 See Fed. R. Evid. 103; Fortenberry, 914

F.2d at 673. And, the error was not "so obvious that our failure

to notice it would seriously affect the fairness, integrity, or

public reputation of judicial proceedings and result in a

miscarriage of justice". Id.

D.

Graves also contends that the district court erred in not

excusing a juror who, on the last day of trial, reported to the

district judge that her husband had been attacked while in a

vehicle registered in the juror's name. The district judge in turn

reported to trial counsel that "[s]he said I don't know what jury

tampering is, judge, but you told me to report any unusual

occurrence".10 The juror also advised the district judge that she

8

We do not suggest that government counsel acted deliberately

to distort the truth. Graves concedes that the prosecutor was not

acting out of an "evil" intent.

9

Graves asks "what the proper objection might be", stating that

he could not object simply because "the witness is lying".

Obviously, objection could have been lodged when the government

asked if the redacted agreement was the "only" agreement between

Myron Palermo and the United States. Counsel could have then noted

that this conflicted with the actual agreement, and that the in

limine ruling was preventing him from pointing it out on cross. Of

course, as discussed supra, the basis for the objection could have

been stated outside the hearing of the jury to prevent undermining

the purpose of the motion in limine.

10

During the trial, the judge had made the following statement

to the jury:

There's one more thing. If, during the course of

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was neither unduly upset by the event nor had her fairness and

objectivity been affected adversely. As the basis for contending

that the district judge should have utilized an alternate juror,

Graves asserts that the juror likely assumed Graves, and not the

United States, was "connected with the incident."

For obvious reasons, the district court is afforded broad

discretion in determining the impartiality of jurors; it is in the

best position to observe their demeanor and credibility. United

States v. Hinojosa, 958 F.2d 624, 631 (5th Cir. 1992).

Accordingly, a ruling respecting such impartiality will not be set

aside "absent a clear abuse of discretion." Id. (emphasis added).

In this case, the juror was questioned by the district court

concerning the implications of the attack on her ability to fairly

and thoroughly decide Graves' guilt or innocence. Apparently, the

district court credited her testimony that the event would not

diminish her impartiality. We will not second-guess the district

court's determination on this matter.11

the trial, anyone should come into the courtroom

that you know or recognize, please let me know

about that. Just call it to my attention and let

me know about that, okay?

11

The government notes that the juror in question voted for

acquittal on the false statement count. Obviously, this cannot be

part of our calculus. See United States v. Benavides, 596 F.2d

137, 140 (5th Cir. 1979) (noting that the validity of a district

court's exercise of discretion "does not turn on whether subsequent

events prove or disprove" the court's judgment).

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E.

Graves contends next that the district court erred by refusing

to instruct the jury that the testimony of "immunized" witnesses

(Joseph, Myron, and Anthony Palermo) should be "weighed by the jury

with greater care and caution than the testimony of ordinary

witnesses." (Emphasis added.)12 The similar given instruction

identified the three persons subject to immunity and plea

agreements, explained the nature of the latter, and cautioned the

jury that the testimony of witnesses who have entered plea or

immunity agreements "is always to be received with caution and

weighed or evaluated with great care." (Emphasis added.) In

comparing the proposed and given instructions, Graves contends that

the latter is "a mere truism", because "the testimony of every

witness is `weighed or evaluated with great care.'" Essentially,

Graves complains that it was reversible error for the trial court

to instruct the jury with the demonstrative "great", as opposed to

the comparative "greater."

We disagree. Initially, we note that the district court "has

broad discretion in formulating the charge so long as the charge

accurately reflects the law and the facts of the case." United

States v. Allred, 867 F.2d 856, 868 (5th Cir. 1989) (citation

omitted). We will reverse a district court's refusal to give a

12

Apparently, the three Palermo brothers entered into immunity

agreements with the United States Attorney for the Middle District

of Louisiana, where this case was tried. Only Joseph and Anthony

Palermo entered into such agreements with the United States

Attorney for the Western District of Louisiana; Myron Palermo

entered into a plea agreement with that office.

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proposed instruction only if "the instruction (1) is substantively

correct; (2) was not substantially covered in the charge actually

delivered to the jury; and, (3) concerns an important point in the

trial so that the failure to give it seriously impaired the

defendant's ability to effectively present a given defense."

United States v. Grissom, 645 F.2d 461, 464 (5th Cir. 1981); see

also Allred, 867 F.2d at 868.

We agree with the district court that Graves' proposed

instruction was substantially covered by those given. As noted,

they specifically identified the witnesses who were under immunity

or plea agreements, explained the implications of those agreements,

and admonished the jury to consider those witnesses' testimony with

"great care." The instructions, taken as a whole, see United

States v. Chavis, 772 F.2d 100, 108 (5th Cir. 1985) (requiring that

a jury charge "be considered as a whole"), implicitly compared

these witnesses to the other witnesses and counseled caution. The

court's decision to forego use of the comparative form of the

adjective "great" falls far short of reversible error.

F.

Finally, Graves maintains that the district court erred in

imposing a two point upward adjustment of his sentence for

obstruction of justice. This adjustment is authorized when a

defendant engages in conduct which "obstructed or impeded, or

attempted to obstruct or impede, the administration of justice

during the investigation, prosecution, or sentencing of the instant

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offense ...". U.S.S.G. § 3C1.1.13 "Where a district court enhances

a defendant's offense level on account of an obstruction of

justice, the district court's finding of obstructive conduct is

reviewed for clear error." United States v. Pofahl, 990 F.2d 1456,

1481 (5th Cir. 1993) (emphasis added), petitions for cert. filed,

(U.S. Aug. 2, 4, 1993) (Nos. 93-5894, 93-5526).

At trial, there was evidence that Graves knew that the

government had discovered false sale records. Also, he knew that

his accountant had testified before the grand jury regarding the

alleged sale. Graves met with his accountant following his

testifying before the grand jury and debriefed him on all the

questions he had been asked and answers he had given. Graves then

contacted Joseph Palermo and asked him to relay the testimony of

the accountant to Myron Palermo, so that Myron Palermo's testimony

would be consistent. As Joseph Palermo testified at trial, Graves

wanted to make sure "my brother would say the same thing the CPA

said."

13

Graves was sentenced in October 1992; thus, the guidelines in

effect at that time can be found in the 1991 edition of the Federal

Sentencing Guidelines Manual. Inexplicably, the probation officer

utilized the 1988 edition. On appeal, we usually apply the

guidelines in effect at the time of sentencing. See United States

v. Gonzales, 996 F.2d 88, 90 n.3 (5th Cir. 1993). At any rate,

Graves' contention fails under either edition. The only

significant difference insofar as our subsequent discussion is

concerned is that the 1988 edition's application notes do not

include the witness tampering statute, 18 U.S.C. § 1512(b), as an

example of conduct authorizing the adjustment. However, the 1988

application notes do recognize that the adjustment would be

authorized if the defendant unlawfully attempted "to influence" a

witness.

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The crux of Graves' assignment of error is that this evidence

would not support a finding that he suborned perjury, because the

truth of whatever Graves told Myron Palermo to say was not explored

at trial. This contention fails for three reasons.

First, the district court, with its superior knowledge of the

witnesses and proceedings, could well have inferred from these

facts that Graves was attempting to suborn perjury; it may have

reasonably surmised that the purpose of Graves' action was not to

remind Myron Palermo to be consistent with the accountant on

truthful matters. Admittedly, such an inference might not support

a conviction for perjury under a beyond a reasonable doubt

evidentiary standard; but, the standard of proof for sentencing

issues is a preponderance of the evidence. United States v.

Buckhalter, 986 F.2d 875, 879 (5th Cir. 1993), petitions for cert.

filed, (U.S. June 30, 1993; July 2, 1993) (Nos. 93-5048, 93-5097).

Second, Graves' conduct may have violated 18 U.S.C. § 1512(b),

a witness tampering statute, which in turn would trigger the upward

adjustment. See U.S.S.G. § 3C1.1, comment. (n.3(i)). Section

1512(b) prohibits one from using corrupt persuasion toward another

with the intent of influencing the testimony of another. See 18

U.S.C. § 1512(b), (b)(1). This section may not require coercive

conduct on the part of the violator. See United States v.

Masterpol, 940 F.2d 760, 763 (2d Cir. 1991); see also Pofahl, 990

F.2d at 1482 (citing Masterpol with approval for the proposition

that the mere "urging" of a witness to lie satisfies § 1512(d)).

Whether one believes Graves was urging Myron Palermo to lie or not,

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he was clearly attempting to "influence" the grand jury testimony

of Myron Palermo in arguable violation of § 1512(d).

Third, and most importantly, the district court need not have

been satisfied that Graves committed either perjury or witness

tampering in order to make the adjustment. Although the Guidelines

do list "examples of the types of conduct to which [§ 3C1.1]

applies", that list is "non-exhaustive". See U.S.S.G. § 3C1.1

comment. (n.3). Stated differently, although listed offenses such

as subornation of perjury or witness tampering are sufficient to

trigger an upward adjustment, they are not necessary; a district

court could properly determine that other conduct satisfies §

3C1.1.

Because we are not "left with the definite and firm conviction

that a mistake has been committed" by the district court in its

finding on the adjustment, we do not find clear error. See Pofahl,

990 F.2d at 1480 (citation omitted).

III.

For the foregoing reasons, the conviction and sentence are

AFFIRMED.

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