United States v. Paradies

United States Court of Appeals,

Eleventh Circuit.

No. 94-8485.

UNITED STATES of America, Plaintiff-Appellee,

v.

Daniel M. PARADIES, The Paradies Shops, Inc., Paradies Midfield

Corporation, Ira Jackson, Defendants-Appellants.

Sept. 23, 1996.

Appeals from the United States District Court for the Northern

District of Georgia. (No. 1:93-cr-310), Anthony A. Alaimo, Judge.

Before TJOFLAT, Chief Judge, COX, Circuit Judge, and WELLFORD*,

Senior Circuit Judge.

WELLFORD, Senior Circuit Judge:

Defendants Ira Jackson,1 Daniel Paradies, The Paradies Shops,

2

Inc., and Paradies Midfield Corp., were convicted pursuant to a

133 count indictment charging them with various offenses arising

out of the operation of the concessions at the Atlanta Hartsfield

International Airport. The bulk of the charges involved mail fraud

*

Honorable Harry W. Wellford, Senior U.S. Circuit Judge for

the Sixth Circuit Court of Appeals, sitting by designation.

1

Ira Jackson was the first black person elected to the

Atlanta City Council and served from 1970 to 1990. In the

1960's, Jackson opened several retail stores, including grocery

stores, auto parts stores, and tire dealerships, but went

bankrupt in 1978 and 1979. As councilman, he developed close

ties with the Atlanta political power structure, especially with

airport operations and with the law firm utilized by the mayor.

2

Daniel Paradies, the individual, will be referred to herein

as "D. Paradies." The Paradies Shops will be referred to as

"Shops," and Paradies Midfield will be referred to as "Midfield."

D. Paradies, Shops, and Midfield, collectively, will generally be

referred to as "the Paradies defendants." The Paradies companies

and D. Paradies filed separate briefs, and each have adopted the

others' arguments by reference. Therefore, unless specifically

stated otherwise, we deem the arguments raised by one to be made

by and to inure to the benefit of the others.

(18 U.S.C. §§ 1341, 1346, and 2), conspiring to make corrupt

payments to public officials (18 U.S.C. §§ 371, 666), and tax fraud

(26 U.S.C. § 7206). The defendants challenge their convictions and

their sentences on several grounds which were imposed after a

lengthy jury trial.

Two fraudulent schemes were involved in the indictment. In

the first, the government alleged that Jackson and D. Paradies, the

largest subconcessionaire at the Atlanta airport, conspired to

profit from Jackson's influence as an Atlanta City Council member

and as the Commissioner of Aviation. According to the government's

theory, Jackson used his political position to reduce the rent of

the concessionaires, including the Paradies defendants, by very

substantial amounts. In return Jackson, who allegedly owned an

interest in the Paradies businesses, reaped benefits through

payments from D. Paradies, which purported to be fees and

dividends. In the second alleged scheme, which was much less

complicated, D. Paradies and another subconcessionaire, Harold

Echols, regularly gave cash to Jackson and other City Council

members for favorable votes in matters before the Council in which

the Paradies defendants (and other concession operators) had an

interest.

The particular circumstances surrounding the fraudulent

schemes were fervently disputed at trial. The facts set out below

are those which the jury might reasonably have found from the

evidence properly admitted at trial.

I. STATEMENT OF THE CASE

A. The Airport Concessions Program

The City of Atlanta owns and controls the Atlanta airport.

From its opening in 1980, Dobbs Paschal Midfield Corp. ("Dobbs")

was the principal concessionaire, managing all the airport

concessions under contract with the City. Dobbs contracted with

various subconcessionaires, including the Paradies defendants, to

provide food, merchandise, and services. The subconcessionaires

paid rent to Dobbs based on the greater of a percentage of sales or

a guaranteed minimum. In turn, Dobbs agreed to pay the city a

percentage of sales or a guaranteed minimum of $240 million over

the first 15 years of operation. Dobbs' agreement with the City

required that at least twenty percent of the total dollar volume of

the concessions program be produced or controlled by minority

controlled enterprises. That contractual provision provided the

defendants an incentive to work out their schemes.3

D. Paradies was president and principal shareholder of Shops,

a major gift shop chain at airports across the country. D.

Paradies was also president of Midfield, a company which contracted

to operate exclusively the gift shops in the airport in 1979.

Shops owned sixty-five percent of Midfield's stock, and the other

thirty-five percent was owned by minority controlled businesses in

4

accordance with the minority participation requirement. That

3

Wilbourn, a McDonalds franchisee, was greatly enriched by

these and other private affirmative action and set-aside programs

in becoming involved as an MBE participant in several Atlanta

operations and with D. Paradies in airport operations across the

country. Although intended to benefit a segment of Atlanta's

population the set-aside, unfortunately, resulted in pollution of

the political process insofar as the lucrative airport concession

business was concerned.

4

Dobbs required a thirty-five percent minority interest in

Midfield for reasons unexplained.

thirty-five percent was comprised of three corporations that were

wholly owned by black persons, Mack Wilbourn,5 Nathaniel Goldston,

and Joanne McClinton. Wilbourn's business, Kinley Enterprises,

Inc. ("Kinley"), held 18.3% of Midfield stock; Goldston's

business, Airport Enterprises, Inc. ("AEI"), held 13.7%; and

McClinton's business, Estate Management ("Estate"), held 3%. As

was provided for in the shareholder agreements, the minority

members supposedly received a management fee of 1.1% of Midfield's

gross receipts. Midfield also paid Shops a management fee of 9% by

mailing checks on a monthly basis.

B. Jackson's Loan/Purchase from Goldston and Wilbourn

By the spring of 1985, D. Paradies' relationship with the

first minority shareholders group soured. At that point, the

government contends, D. Paradies sought to include defendant

Jackson as a minority participant in Midfield. D. Paradies and

Jackson were close personal friends. In 1980, Paradies and Echols

hosted the wedding reception for Jackson and his bride, Maudestine

"Mimi" Simmons.6

In April of 1985, Paradies wrote a "personal and confidential"

letter to Jackson requesting Jackson's assistance in obtaining

space for additional shops in the airport. If the space was

obtained by October 1, 1985, Paradies stated, the minority

5

Wilbourn was a defendant in this case, but was acquitted at

trial. His role in the fraud will be set out below.

6

Additionally, Mimi and D. Paradies' wife, Billie Paradies,

were close friends. One of the alleged fraudulent "loans" was

put in Mimi's maiden name. When the fraud was uncovered, D.

Paradies claimed that he did not know that Maudestine Simmons and

Mimi Paradies were one and the same person.

shareholders would receive an increase in management fees to 2%.

If the space were not obtained, the fee would remain at 1.1% for

those shareholders. Under the government's theory, D. Paradies'

letter was an invitation to Jackson to capitalize on a near

doubling of the minority participants' management fee increase.

Soon thereafter, Jackson began to negotiate with Goldston to

purchase his interest in Midfield.

Goldston told Jackson that he was experiencing financial

difficulty, and purportedly offered to sell Jackson his stock in

Midfield for $50,000. Jackson made a "loan" to Goldston for

$50,000 through his wife Mimi, operating as Metro Consultants,

Inc.7 The government maintained that the purported loan was, in

fact, a purchase by Jackson of Goldston's interest. Indeed,

Jackson's check to Goldston on his personal checking account

specified: "For Metro Consultants—Purchase Stock." The government

also introduced agreements which purportedly transferred Goldston's

Midfield stock in the name of AEI to Metro Consultants. On October

1, 1985, moreover, Midfield terminated its management agreement

with Goldston and entered into a new comparable agreement with

Jackson's wife. Mrs. Jackson was to render administrative

assistance in return for her portion of the 1.1% management fee.

Also, in order to qualify as a minority business, Metro Consultants

had to be certified as a minority-owned company. Jackson asked the

Atlanta Office of Contract Compliance to expedite the certification

for Metro Consultants because his wife wanted to "buy out" Goldston

7

All the participants in the schemes formed separate

corporate entities to engage in airport operations.

and Wilbourn.

After Jackson had already distributed the "loan proceeds," he

appeared before the City's Board of Ethics for an opinion on the

propriety of his "loan." Jackson told the Board that he had loaned

$50,000 to Goldston, and that his wife wished to purchase

Goldston's and Wilbourn's interests in Midfield. He also stated

that Wilbourn's "asking price" was $275,000. Jackson also

testified that he had discussed the matter with D. Paradies.

Jackson assured the Board that if the transaction were approved, he

would not vote on any airport concessions matters, and that he

wanted to be "up front" with the Board. Noting, among other

things, that subconcessionaires issues came before the Council

frequently, and that Jackson's interest could have at least an

indirect influence on Council decisions, the Ethics Board

disapproved of the proposed purchase. Such an acquisition by

Jackson and his wife, the Board concluded unanimously, would

violate the Code of Ethics and would result in a breach of

Jackson's fiduciary duty to the City.8 According to the Ethics

8

The "Disclosure of Interest" section of the Atlanta Code of

Ethics provides in part:

[A]ny council member ... who has a private

interest, direct or indirect, in any proposed

legislation or any decision pending before such

person or the body of which the person is a member

or employee, shall not vote for or against,

discuss, decide or in any way participate in

considering the matter, but shall publicly

disclose, on the official records of the body, the

nature and extent of such interest, prior to any

determination of the matter.

Section 18-2008 of the Atlanta City Code, entitled

"Investments in Conflict with Official Duties," provides in

part:

director, Jackson told him that he disagreed with the Board's

decision, but that he would "not undertake to do indirectly what

[the] board had told him could not be done directly."

After the Ethics Board's decision, Jackson entered into

another disputed transaction with Wilbourn, who, according to

Jackson, was experiencing financial difficulty.9 Purportedly,

Jackson "loaned" Wilbourn $275,000 (the exact asking price

identified by Jackson in his Ethics Board testimony) from Options

International, Inc. ("Options"), a corporation created in the name

of his son, Ira Jackson, Jr., but controlled by Jackson himself.10

The transaction was to be effected in two installments: $150,000

immediately, and $125,000 payable on May 1, 1987. Wilbourn used

$50,000 of the proceeds to buy Goldston's stock, and transferred

all of his and Goldston's interest in Midfield to Hartsfield

Concessions, Inc. ("Hartsfield"), a company purportedly wholly

owned by Wilbourn. The loan from Options was secured by all the

revenue from Wilbourn's interest in Midfield. The stock in

Midfield, Jackson claims, was never transferred to him as security

[No] ... council member ... shall invest, or hold

any investment directly or indirectly, in any

financial, business, commercial or other private

transaction which creates a conflict with or

adversely affects his official duties to the

detriment of the city.

9

The Paradies Companies maintain that Wilbourn needed the

money to finance another minority enterprise opportunity in the

Atlanta underground.

10

The evidence was overwhelming that Options was a Jackson

alter ego.

for the loan.11

The government argued that this was a sham loan agreement so

that Wilbourn, doing business as Hartsfield, would be the minority

participant in Midfield "on paper" only and that Jackson was the de

facto owner, reaping the full benefits of Wilbourn's interest in

Midfield. There is evidence, together with reasonable inferences,

that supports the government's contention. Jackson admits in his

brief that, upon Wilbourn's counsel's recommendation, Jackson was

given some control over the funds of Hartsfield, and that Jackson

was authorized to accept payments directly from Midfield. Indeed,

evidence showed that Jackson initially went to the Paradies company

offices to pick up the dividend and management checks, which were

made payable to Hartsfield, then later these checks to Hartsfield

were mailed to Jackson directly. The evidence also showed that the

first twenty-three Hartsfield management fee checks were personally

endorsed by Jackson and ultimately deposited into his own personal

bank account.

Between December, 1985, and March of 1992, D. Paradies paid

Jackson, through Hartsfield, fees and dividends, more than

$1,049,000, nearly four times the amount of the original $275,000

"loan." After the minority interests were transferred to

Hartsfield, Wilbourn never received another payment from the

Paradies Companies, and he had no further substantial contact with

Midfield. The government showed that Jackson had complete control

11

D. Paradies states in his brief, however, that Hartsfield

pledged to Option its stock in Midfield, as well as the fees and

dividends. D. Paradies concludes in his brief that "Mr. Jackson

thus came to have a financial interest in Mr. Paradies'

corporation."

over the Hartsfield bank account (making deposits, writing and

signing checks, and making tax returns), despite Jackson's claims

that he never had "control of Hartsfield Concessions, Inc. or

use[d] funds from the corporation for personal loans or payments."

(Jackson's Brief at p. 10.) The proof indicated, however, that

after checks were deposited into the Hartsfield account, Jackson

would immediately transfer the money to his own corporation,

Options, which transacted no business except the receipt of funds

from Hartsfield. Through this "dummy" corporation, Jackson spent

hundreds of thousands on such items as a $350,000 condominium on

Peachtree Road in Atlanta, and another very expensive luxury home

on Hilton Head Island, furnishings for his Atlanta residence,

$100,000 in securities, and a $200,000 investment in a printing

company.

C. D. Paradies' Involvement in the Loan/Purchase Transactions

The Paradies defendants claim that they did not know of

Jackson's interest, and claimed that they were being prosecuted for

making routine business payments to Hartsfield Concessions.

(Paradies Co.'s Brief at pp. 6-7.) The government showed, however,

that when Jackson picked up his check, D. Paradies himself would

occasionally escort Jackson to the pertinent office. Additionally,

D. Paradies' secretary testified that D. Paradies, Jackson, and

others attended a meeting at D. Paradies' office. During the

meeting, she was asked to draw up an agreement wherein Jackson was

named as a minority participant. Later, she was asked to

substitute Wilbourn's name for Jackson's, and to perform the highly

unusual task of destroying the documents that named Ira Jackson.

Perhaps the most damning evidence of D. Paradies' involvement

in this scheme was that which showed that D. Paradies himself

actually helped Jackson fund the $275,000 loan/purchase made

to/from Wilbourn. In April of 1987, the second installment of

$125,000 was due from Jackson to Wilbourn. Around that time, D.

Paradies made a $50,000 loan to Jackson and declared and paid a

$50,000 dividend to Hartsfield Concessions on the same day.

Jackson deposited the $100,000 into the Hartsfield Concessions bank

account and paid off loans that were taken to fund the payment to

Wilbourn. While D. Paradies' brother, Jimmy Paradies, testified at

trial that the loan was made to help out Wilbourn because Wilbourn

was experiencing financial difficulty, Wilbourn testified that he

knew nothing about that loan. D. Paradies and Wilbourn were not

even on speaking terms at the time. Id. Additionally, Jackson

signed a personal guarantee for the repayment of the loan, which

was kept on file at the Paradies offices. Govt. Exhibit 33

(attached to Brief). In July of 1988, D. Paradies paid Hartsfield

Concessions a dividend of $72,000. Jackson deposited the check

and, the very next day, repaid the $50,000 loan to D. Paradies from

the Hartsfield Concessions account.

Evidence also showed that on at least two occasions when

Paradies needed the signatures of the minority participants, D.

Paradies' employee sent the documents to Jackson, instructing him

to obtain the signatures of Goldston or Wilbourn. See Govt.

Exhibits 41, 42. D. Paradies' employee testified that he sent them

to Jackson because at that point "everything was going through

Ira."

D. Jackson's Acquisition of McClinton's 3% Interest Through Help of

D. Paradies

In August, 1988, Hartsfield Concessions purchased McClinton's

interest in Paradies Midfield for $11,000. At trial, McClinton

testified that she was willing to sell because she had made almost

no money from her venture. In fact, D. Paradies had instructed his

employee to withhold McClinton's management fees or dividends

because he "didn't like" McClinton. At the time of the sale,

McClinton had accrued $11,455, of which she had no knowledge.

After Hartsfield Concessions, via Jackson, paid McClinton the

$11,000 purchase price, Midfield (via D. Paradies) paid Hartsfield

Concessions McClinton's $11,455 in back dividends. After the

transfer, the management fees paid to Hartsfield Concessions were

increased to 1.5%.

E. Jackson Uses Political Influence to Help the Paradies Companies

From the early 1980's on, the subconcessionaires were engaged

in efforts to reduce their rent at the airport. Many amendments to

Dobbs' contract with the City were made, reducing the rent that

Dobbs charged the subconcessionaires, and in turn, reducing the

revenues paid to the City from Dobbs. Jackson concealed his

interest in the Paradies Companies, and used his position on the

Council to advance the interests of the subconcessionaires.

In July of 1987, Jackson voted in favor of Amendment Number

Five, which substantially reduced the rent charged to the

subconcessionaires. The government claims that Amendment Five cost

the city about $1 million. D. Paradies received $1.5 million of

the total $2.3 million in rent reduction.

In 1989, Jackson supported another rent-reduction proposal

that came before the board, and it included contract extensions for

the subconcessionaires. Jackson was put on a negotiating team to

represent the City against Dobbs. Some of the members of the team

argued that only the smaller subconcessionaires should receive

further rent reductions. Jackson argued adamantly that the larger

subconcessionaires should also receive reductions. He was

successful, and Amendment Number Six cost the City $7.7 million.

D. Paradies saved over $2.5 million in rent. Interestingly, around

the time Amendment Six was being negotiated, Hartsfield

Concessions' management fees were raised to 2.0%. Richard Dickson,

Paradies' "right hand man," testified that the increase was

financially indefensible.

In October of 1990, the City's Commissioner of Aviation was to

retire. The evidence showed that Jackson approached Mayor Maynard

Jackson and asked to be appointed in the position. The mayor had

heard rumors that Jackson had some kind of interest in an airport

concession, but received assurances from Jackson he owned no such

interest. Jackson was eventually appointed Aviation Commissioner.

Soon after he took his position, Jackson proposed that the

City terminate Dobbs' position as Principal Concessionaire and

allow him, as Commissioner of Aviation, to take over the entire

concessions program. The government claims that the program would

have resulted in over $40 million reduction in revenue to the City.

The proposal encountered substantial opposition, and Jackson became

indignant toward opponents. The government claims that during the

controversy, Paradies and Echols visited the Mayor and the City's

Chief Administrative Officer to "lobby" them to stay close to

Jackson and consider his proposal. (Govt.'s Brief at p. 27.)

Jackson's proposal was put on the Council's agenda, but the CFO

blocked the vote.

F. Jackson's Interest is Discovered

Shortly after the vote was blocked, the City Attorney and

Mayor Jackson confronted Jackson about his interests. Jackson

denied any financial connection with D. Paradies. On March 8,

1992, Jackson resigned his position, stating that "I now find that

a loan which I extended to a sub-concessionaire at the airport some

time ago, and which has long been repaid, has become an issue of

concern."12

Soon thereafter, D. Paradies wrote a letter to Max Walker, the

acting Commissioner of Aviation, stating that he was

surprised and distressed to learn of Mr. Ira Jackson's alleged

interest in and receipt of funds from Hartsfield Concessions,

Inc.... At all times, Paradies Midfield has dealt with

Hartsfield Concessions, Inc. through Mr. Mack Wilbourn, who

represented himself to be the sole owner of Hartsfield

Concessions, Inc.... Paradies is unaware of any alleged

interest of Mr. Jackson in Hartsfield Concessions, Inc.

See Govt. Exhibit 106. The government claims that when the

newspapers learned of the Goldston/Maudestine Simmons transaction,

D. Paradies claimed that he did not know that Maudestine Simmons

was Jackson's wife, even though he had hosted their wedding

reception and "Mimi" was his own wife's close friend.

G. Direct Payoffs to City Council Members

The other scheme involved D. Paradies and his agreement to

make corrupt payments with Echols to Atlanta City Council Members,

12

In fact, Jackson caused papers to be backdated to make it

appear that the "loan" had been paid as the investigation

proceeded.

including Jackson. Echols testified at trial that he and D.

Paradies had been close for 22 years. He testified that he and D.

Paradies had a long-standing agreement that Echols would make

payments to certain council members, and that D. Paradies would

reimburse him.

Echols testified that he made routine payments to Jackson,

Buddy Fowlkes, and less frequent payments to Marvin Arrington,

President of the City Council. Echols explained that between mid-

1980 through 1992 he would meet Jackson for breakfast on Wednesday

mornings at the Castlegate Hotel. Echols always paid for

breakfast, and afterwards would pay Jackson several hundred dollars

folded in a handshake. He had a similar routine with Fowlkes on

Thursday mornings. Further, Echols paid for Fowlkes to fly back

from vacation to vote for Amendment Six. Additionally, Echols paid

for Fowlkes and his family to take a Florida vacation. As for

Arrington, Echols paid him once or twice every two months, usually

at breakfast, depending on what was before the Council. On two

occasions, Echols paid Arrington to appoint Buddy Fowlkes to

Chairman of the Transportation Committee. Echols paid $5,000 on

one occasion, and $6,000 on another.

In 1987 and in 1990, D. Paradies allegedly reimbursed Echols

for the payoffs. In 1987, D. Paradies paid Echols for "consulting

fees" in three payments of $10,000 each. Echols did not do any

counselling for this money. Although consulting agreements were

drawn up, Echols told Ron Wright that the money was not for

consulting, but was for political payoffs.

In 1990, soon after Echols had flown Fowlkes back to vote for

Amendment Six, D. Paradies reimbursed Echols in three payments for

$1,666, $333, and $2,000. That time, no consulting agreements were

drawn up; three "invoices" were sent to account for these

payments.

The evidence also showed that Jackson accepted a $5,000 payoff

from Echols and another subconcessionaire, Dave Gammill. In

December of 1988, Gammill allegedly brought $25,000 in cash to

Echols, who distributed the money to Jackson, Arrington, Fowlkes,

and others.

H. Proceedings Below

On July 9, 1993, a federal grand jury returned a 133-count

indictment charging the defendants with various offenses. Counts

1-83 charged all the defendants with mail fraud (one count for each

check) in violation of 18 U.S.C. §§ 1341, 1346, and 2 based upon

the scheme involving Jackson's interest in Paradies Midfield.

Count 84 charged defendant Wilbourn, who was acquitted, of witness

tampering in violation of 18 U.S.C. § 1512(b)(1). Count 85 charged

D. Paradies with conspiring with Echols to violate 18 U.S.C. § 666

by making corrupt payments to public officials in violation of 18

U.S.C. § 371. Counts 86-128 charged Jackson with the receipt of

corrupt payments from Echols in violation of 18 U.S.C. § 666.

Counts 129-133 charged Jackson with subscribing to false income tax

returns underreporting his income in violation of 26 U.S.C. §

7206(1).

At trial, Jackson denied the charges against him, maintaining

that his dealings with Wilbourn, D. Paradies, and others were

neither illegal nor fraudulent. He claimed he acted upon the

advice of his attorney and his accountant. D. Paradies and his

companies claimed that under their concession contracts at the

Atlanta airport under Atlanta ordinances they were required to

enter into minority participation agreements with persons such as

Wilbourn and others in their business enterprises. They denied

knowingly doing anything unethical, illegal, or fraudulent, or

having knowledge of Jackson's allegedly fraudulent activity and

conflicts of interest. D. Paradies and his companies particularly

contended that they only made contractually obligatory payments of

dividends and fees to Jackson and others.

The jury was sequestered, and the case was tried for three

straight weeks, including weekends. After six hours of

deliberations, the jury returned a verdict of guilty for all

defendants on all counts, except for Jackson's acquittal as to

Count 129, and Wilbourn's acquittal. Jackson received 42 months in

prison, a $7,500 fine and a special assessment of $6,500. Paradies

received 33 months in prison, a $7,500 fine and a special

assessment of $4,200. The Paradies Shops was fined $1,500,000 and

assessed $16,600. Paradies Midfield was assessed $16,600. Jackson

and D. Paradies remain free on appeal bonds. The fine imposed on

the Paradies Shops was stayed pending appeal.

II. ANALYSIS13

A. Jury Selection

13

In addition to the issues discussed in this opinion, the

defendants raised other less meritorious ones. We find that

those issues do not warrant discussion, and "summarily affirm the

district court as to all issues not herein discussed." See

United States v. Waymer, 55 F.3d 564, 568 (11th Cir.1995), cert.

denied, --- U.S. ----, 116 S.Ct. 1350, 134 L.Ed.2d 519 (1996).

According to the Jury Selection and Service Act ("the Jury

Selection Act"), 28 U.S.C. §§ 1861, et seq., the court may excuse

a potential juror (1) upon a showing of undue hardship or extreme

inconvenience, or (2) if the potential juror may be unable to

render impartial jury service or that his service as a juror would

be likely to disrupt the proceedings. 14 See 28 U.S.C. § 1866(c).

In this case, the district court sent a 25-page, 108-question jury

questionnaire to over 250 potential jurors. 15 The court reviewed

the returned questionnaires and excused over 70 potential jurors

pursuant to § 1866(c) and in accordance with the Local Plan for the

Northern District of Georgia ("Local Plan"). Jackson and the

Paradies defendants argue that the district court committed a

"substantial violation" of the Jury Selection Act by excusing those

jurors sua sponte prior to voir dire, because the questionnaires

14

Section 1866(c) provides in pertinent part:

[A]ny person summoned for jury service may be (1)

excused by the court ... upon a showing of undue

hardship or extreme inconvenience, ... or (2) excluded

by the court on the ground that such person may be

unable to render impartial jury service or that his

service as a juror would be likely to disrupt the

proceedings, or (3) excluded upon peremptory challenge

as provided by law, or (4) excluded pursuant to the

procedure specified by law upon a challenge by any

party for good cause shown, or (5) excluded upon

determination by the court that his service as a juror

would be likely to threaten the secrecy of the

proceedings, or otherwise adversely affect the

integrity of jury deliberations.

28 U.S.C. § 1866(c).

15

While the district court entered an Order on July 11,

1994, stating that there were "approximately 250" jurors in the

venire, this court found two groups of juror questionnaires, one

included approximately 150 jurors, and the other included an even

larger number. Whatever the actual number, it was an unusually

large venire.

provided insufficient evidence of actual bias and undue hardship.16

The district court's determinations regarding bias and undue

hardship are reviewed for an abuse of discretion. See United

States v. North, 910 F.2d 843, 909-10 (D.C.Cir.1990), modified on

other grounds, 920 F.2d 940 (D.C.Cir.1990), cert. denied, 500 U.S.

941, 111 S.Ct. 2235, 114 L.Ed.2d 477 (1991).

A party challenging the jury selection process under the Jury

Selection Act must make his challenge "before the voir dire

examination begins, or within seven days after the defendant

discovered or could have discovered, by the exercise of diligence,

the grounds therefor, whichever is earlier." 28 U.S.C. § 1867(a)

(emphasis added). The timeliness requirement "is to be strictly

construed, and failure to comply precisely with its terms

forecloses a challenge under the Act." United States v. Bearden,

659 F.2d 590, 595 (5th Cir. Unit B 1981), cert. denied, 456 U.S.

936, 102 S.Ct. 1993, 72 L.Ed.2d 456 (1982). Therefore, once voir

dire begins, Jury Selection Act challenges are barred, even where

the grounds for the challenge are discovered only later. See

United States v. Hawkins, 566 F.2d 1006, 1013 (5th Cir.), cert.

16

Jackson stated in his brief that the court's excusal of

certain jurors violated his "Sixth Amendment right to a fair

trial." The substance of his brief, however, refers only to the

Jury Selection Act, not to the Sixth Amendment. See Jackson's

Brief at pp. 16-21. His reference to the Sixth Amendment may be

a method by which Jackson seeks to avoid the strict timeliness

requirements of a statutory claim. United States v. Grisham, 63

F.3d 1074, 1077 (11th Cir.1995) (allowing constitutional claims

even though statutory claim is untimely), cert. denied, --- U.S.

----, 116 S.Ct. 798, 133 L.Ed.2d 746 (1996). In any event, we

will address only the merits of Jackson's statutory claim. Any

constitutional claim raised by Jackson would fail for the same

reasons as does the same claim made by the Paradies defendants.

See, infra, note 28 and accompanying text.

denied, 439 U.S. 848, 99 S.Ct. 150, 58 L.Ed.2d 151 (1978); United

States v. Kennedy, 548 F.2d 608, 613 (5th Cir.), cert. denied, 434

U.S. 865, 98 S.Ct. 199, 54 L.Ed.2d 140 (1977). Jackson admits in

his brief that his counsel learned of the juror excusals during the

weekend immediately before trial and that, therefore, he did not

make his challenge to the jury selection process until the first

day of trial. Jackson does not attempt to excuse his failure to

comply with the timeliness requirements of the statute. Under

these circumstances, Jackson's challenge is barred.17

The Paradies defendants, however, filed a timely motion under

the Jury Selection Act and submitted an affidavit in support

thereof. The Act requires that any motion filed pursuant thereto

be accompanied by "a sworn statement of facts which, if true, would

constitute a substantial failure to comply with the provisions of

[the Act]." 28 U.S.C. § 1867(d). When that requirement is not

satisfied, the challenge to the selection process must fail,

because "Congress left no room for ad hoc review of the usefulness

of compliance with [the sworn statement] requirement." Kennedy,

548 F.2d at 613; see also United States v. Maldonado, 849 F.2d

522, 523 (11th Cir.1988) (the Act's "sworn statement" requirement

is to be strictly construed); United States v. Green, 742 F.2d

609, 612 (11th Cir.1984) (compliance with the Act's procedural

requirements is necessary to challenge the validity of a jury

selection plan).

17

Even if we were to consider Jackson as having impliedly

joined with the Paradies defendants' timely motion, his challenge

under the Jury Selection Act would fail for the same reasons as

does the challenge of his codefendants.

The "sworn statement" submitted by the Paradies defendants

was the affidavit of a rejected juror, Dana Shepherd. Shepherd's

affidavit showed, by tracking the statutory language, that she was

excused from serving on the jury in this case despite the fact that

(1) she would have met the basic requirements to serve on the

"qualified wheel" of potential jurors, (2) she was not a member of

an occupational class or group of persons who are exempted from

jury service, and (3) she did not have a basis on which she could

have individually requested excusal from jury service.18 In other

words, she has met the minimum requirements to be placed on the

qualified wheel of potential jurors. The affidavit does not show,

however, that there could be no other reason upon which the court

could have based its decision to excuse her, e.g., undue hardship

or bias. Therefore, the affidavit does not state facts which, if

18

Shepherd showed that she met the minimum requirements

under the Local Plan by attesting that she (1) is over the age of

18, (2) is competent to fill out the affidavit, (3) received,

completed, and returned the jury questionnaire sent to her by the

court, (4) had been excused from serving on the Jackson case but

was to remain on call for a two-week term, (5) is a citizen of

the United States and has been a resident of Atlanta, Georgia,

for over one year, (6) is able to read, write, and understand the

English language with sufficient proficiency to fill out the

questionnaire, (7) is able to speak the English language, (8) has

not been convicted of a felony, (9) is not in active service in

the armed forces, (10) is not a member of the Fire or Police

Department, (11) is not a public officer, (12) has not served on

a grand or petit jury in the federal court in the past two years,

(13) does not have active care and custody of small children,

(14) is not essential to the care of aged or infirm persons, (15)

is not over 70 years of age, and (16) is not a part of volunteer

safety personnel. The language of her affidavit almost exactly

tracks the language in the Local Plan. See N.D.Ga.Local Rule

120-1, Appendix A, §§ VI, VII, & VIII (incorporating 28 U.S.C. §

1865).

19

true, would constitute any violation of the Jury Selection Act.

Consequently, the Paradies defendants failed to satisfy the "sworn

statement" prerequisite to a claim under the Act, and their

challenge thereunder is precluded.

Even if we were to assume that Shepherd's affidavit satisfied

the requirements of § 1867(d), we would find that the district

court did not "substantially fail" to comply with the Jury

Selection Act. See 28 U.S.C. § 1867(d) (allowing relief under the

Act "[i]f the court determines that there has been a substantial

failure to comply with the [Act]"). A Jury Selection Act violation

is substantial only if it frustrates the Act's two basic goals:

"(1) random selection of juror names; and (2) use of objective

criteria for determination of disqualifications, excuses,

exemptions, and exclusions."20 United States v. Gregory, 730 F.2d

692, 699 (11th Cir.1984), cert. denied, 469 U.S. 1208, 105 S.Ct.

1170, 1171, 84 L.Ed.2d 321 (1985).

The Paradies defendants claim that thirteen jurors,

individually, were improperly excused for bias, and eight jurors

19

The Paradies defendants do not even claim that the

district court's excusal of Dana Shepherd was improper. In fact,

she stated in her questionnaire that she "regularly" saw H. Lamar

Mixon (a named partner in the law firm representing Paradies

Midfield), with whom she had a "godmotherly" relationship.

Moreover, she virtually admitted her inability to render

impartial service when she stated that she had met D. Paradies

several times and "would feel funny" being in the courtroom with

him. Under these circumstances, it would have been difficult for

Ms. Shepherd to execute an affidavit that would have satisfied

the requirements of § 1867(d).

20

The relief to be afforded for a "substantial violation"

under the Act is not reversal, but it is a stay of the

proceedings for the court to make a determination regarding the

propriety of the jury selection process. See 18 U.S.C. §

1867(d).

were improperly excused for undue hardship.21 They argue that the

questionnaires of the jurors excluded for bias did not contain

sufficient evidence of actual bias, citing United States v.

Calabrese, 942 F.2d 218 (3d Cir.1991), and that the questionnaires

of the jurors excluded for hardship did not show that the potential

jurors would suffer hardship for the reasons listed in the Local

Plan. Additionally, they claim that seventeen questionnaires are

"missing" for unknown reasons, and that their lack of access to

those documents impedes their ability to assess whether the trial

court acted in an appropriate manner.

This court has carefully reviewed all of the questionnaires

challenged by the defendants, and we find that the district court

did not commit a substantial violation of the Act in excluding

those jurors. With respect to those who were excused for bias,

every potential juror either professed that they were badly

prejudiced against one side, or they described a relationship that

the court deemed inappropriate for a juror in this case.22 We find

21

The Paradies defendants did not claim that the basic

process for choosing jurors in the Local Plan was

unconstitutional. See United States v. Pepe, 747 F.2d 632, 648-

49 & n. 17 (11th Cir.1984) (citing Duren v. Missouri, 439 U.S.

357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979)). In order to

substantiate a claim that the process was defective, the

defendants would have had to show, among other things, that the

district court was excluding a distinctive group in the community

from the jury venire, and that the underrepresentation of that

group was due to the systematic exclusion of the group in the

selection process. Id. These defendants could not support such

a claim, because they do not even identify any specific group

that is excluded due to the process outlined in the Local Plan.

22

The jurors listed the following circumstances relating to

bias: (# 27) stepfather was married to Jackson's sister; (# 66)

husband is prosecuting attorney in Cobb County; (# 84) friend of

and worked for Jackson; (# 87) worked for Paradies; (# 113)

worked as consultant to the city and Mr. Cook (attorney for

that this action by the district court was not, nor was it alleged

to have been, directed to any ethnic, racial, or national origin,

nor did it constitute any arbitrary, unreasonable exclusion of

discrete segments of the venire. Nor did the court's action in

this respect cause the venire to consist of anything other than a

fair cross-section of the community. This court has rejected a

similar challenge to a district court's excusal of jurors "who

merely acknowledged their acquaintance" with the defendant. United

States v. Bailey, 468 F.2d 652, 658 (5th Cir.1972) (quoting Dennis

v. United States, 339 U.S. 162, 168, 70 S.Ct. 519, 521, 94 L.Ed.

734 (1950)). The Bailey court relied on the district court's

"serious duty to determine the question of actual bias and a broad

discretion in its rulings" in dismissing the defendant's challenge

to the jury composition.23 Id. (finding "nothing abusive or

prejudicial in the excusal of jurors admittedly acquainted,

regardless [of] how remotely, with one of the parties to the

proceedings"). The Paradies defendants rely on Calabrese wherein

the Third Circuit rejected the notion that the district court has

Paradies) is son-in-law's friend; (# 128) mother works for Judge

Shoob (niece of Paradies); (# 138) works for IRS; (# 153)

parents are friends of Paradies; (# 270) had clear perception

that dishonest business was involved at airport; (# 297) first

cousin of district attorney; (# 343) prejudiced, but requested

excusal for medical reasons; (# 376) prejudiced against the

defendants. Only one "bias" juror's questionnaire, (# 89), was

not found in the record. The district court, however, stated

that that juror suspected shenanigans at the airport, and this

court has been given no reason to discount that finding of the

court.

23

We recognize that Bailey dealt with challenges, rather

than sua sponte action, but the decision establishes that the

district court had broad discretion in dismissing jurors who have

friendships, acquaintances, and other connections with parties to

the lawsuit.

the broad discretion allowed by the Fifth Circuit in Bailey.

Calabrese is not binding on this court, however, and it is our view

that the reasoning in Bailey governs this case.24 See United States

v. Perkins, 748 F.2d 1519, 1532-33 (11th Cir.1984) ("A relationship

between a juror and defendant, albeit a remote one, can form the

basis of a challenge for cause."); see also North, 910 F.2d at

909-10 (upholding excusal of jurors before voir dire based on juror

questionnaires); United States v. Redmond, 546 F.2d 1386, 1389

(10th Cir.1977) (upholding excusal of jurors who were acquainted

with any attorneys in the case); cert. denied, 435 U.S. 995, 98

S.Ct. 1645, 56 L.Ed.2d 83 (1978).

Similarly, the court did not err in excluding the eight

jurors for undue hardship. The Paradies defendants argue that the

court allowed some jurors to use a hardship excuse for reasons

other than those named in the statute. For example, juror # 290

was excused for having two small children, but her two children

were sixteen years old. The Local Plan, however, allows a hardship

excuse to potential jurors with children under ten years of age.

The defendants also criticized the court for excusing some of these

24

In any event, Calabrese is clearly distinguishable on its

facts. In that case, the district court judge sent out a form

letter to approximately 300 jurors, and asked two main questions,

(1) Do you know the defendants, and (2) Will you be able to serve

on a four to six week trial. All of the potential jurors who

answered "yes" to the first question were excused. The Third

Circuit found that this "acquaintance-based excusal" was

inappropriate under the Act. Calabrese, 942 F.2d at 226. The

method of the district court in Calabrese was notably different

from the method of the district court in this case. Here, the

jurors' questionnaire was 25 pages long and consisted of over 100

questions, and explanations for each answer was requested

therein. Therefore, this case involved "far more compelling

connection than mere acquaintance." Id. (distinguishing cases

involving more than mere acquaintance).

jurors even though the jurors did not request excusal. Again, this

court has reviewed all of the available questionnaires, and we find

no substantial error in the court's actions.25 While the court may

have violated some of the technical provisions of the Local Plan in

dismissing some jurors and without one of the enumerated hardships,

none of the excusals frustrated the goals of the Act. See United

States v. Gregory, 730 F.2d 692, 700 (11th Cir.1984) (technical

violations alone do not give rise to a substantial violation of the

Act), cert. denied, 469 U.S. 1208, 105 S.Ct. 1170, 1171, 84 L.Ed.2d

321 (1985); see also United States v. Barnette, 800 F.2d 1558,

1568-69 & n. 14 (11th Cir.1986) (upholding district court's

granting of hardship excuse to 245 out of 249 jurors after a

personal, pre-voir dire review of juror questionnaires), cert.

denied, 480 U.S. 935, 107 S.Ct. 1578, 94 L.Ed.2d 769 (1987).

Additionally, under § 1869(j) of the Jury Selection Act, "undue

hardship and extreme circumstances" includes "any other factor

which the court determines to constitute an undue hardship or

extreme inconvenience to the juror." In the instant case, where

the jury would be sequestered for several weeks, the court has

broad discretion in determining whether a particular juror could be

excluded because of undue hardship. Finally, defense counsel's

25

The jurors listed the following circumstances relating to

undue hardship: (# 7) mother is 87 years old and in nursing

home; (# 60) has hearing problems, needs hearing aid; (# 195)

has three children seven years and younger; (# 254) has two

children, ages four and two; (# 276) no questionnaire, judge

released him on grounds of hardship; (# 290) two small children,

both sixteen years old; (# 294) sent note in lieu of

questionnaire, has two children, ages five and two; (# 340)

requested excusal for business hardship, but also professed that

he "assume[d] Jackson and other defendants are guilty."

failure to locate a small portion of the juror questionnaires (some

of which were never returned), from literally hundreds of

questionnaires comprising several boxes in the record of this case,

is no basis for a finding of failure on the part of the district

court to follow legal procedures in jury selection.26

We note that the district court in this case was faced with an

onerous burden in arriving at an impartial jury in this

high-profile case that was originally estimated to last four to six

weeks.27 With great care, the court reviewed all of the returned

jury questionnaires to rule out those jurors who would have been

unduly burdened by serving on a case of that duration who

admittedly would have been unable to render impartial jury service.

Under these circumstances, the district court in no way hindered

the random selection of juror names or the use of objective

criteria in excusing jurors. Nor did the process result in

impermissible discrimination or arbitrariness, and the defendants

do not make such an allegation. In sum, the court did not commit

a substantial violation of the Jury Selection Act, and the Paradies

defendants are not entitled to a reversal on that basis.28

The Paradies defendants also claim, as a separate basis for

26

The Paradies defendants did not object to the jury finally

impaneled. They did, however, make an unsuccessful challenge

based on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90

L.Ed.2d 69 (1986), but the district court's ruling on that issue

was not asserted as an error on appeal.

27

Indeed, the Paradies defendants moved for a change of

venue because of claimed widespread prejudicial publicity in

Atlanta.

28

For the same reasons, any argument based on the Sixth

Amendment right to a fairly selected and impartial jury would

also fail. See Green, 742 F.2d at 611.

reversal, that the district court violated their unqualified right

to inspect the jury records in order to substantiate their claim

under the Jury Selection Act. At about 8:00 on the morning of voir

dire, after approximately 115 potential jurors had been summoned to

appear in court at 11:00 a.m. for the proceedings, the Paradies

defendants moved the court to stay the proceedings on the ground

that the court possibly committed a substantial failure to comply

with the provisions of the Act. The district court denied the

motion for the stay, rejecting the defendants' argument that the

exclusion of Dana Shepherd from the jury venire may have been a

violation of the Jury Selection Act. Later that same day, the

court read into the record its reasons for excusing the jurors that

it dismissed sua sponte. The court thereafter, upon defendants'

request, made the jury questionnaires a part of the record.

Additionally, after trial, the court allowed the defendants to

supplement the record with additional jury selection materials. At

no time did the court preclude defense counsel from inspecting the

record and finding out which jurors the court had excused. On the

contrary, the record shows that the court entered an order on

November 8, 1993, directing all counsel not to disclose answers of

prospective jurors because that information was deemed to be

privileged. From that date on, counsel for both sides were

presumably aware that the questionnaires existed and that counsel

would be entitled to review them. At most, the court denied the

Paradies defendants additional time to formulate their argument.

Therefore, we find, after careful examination of this record, that

these defendants were not denied access to the jury selection

documents.

B. Propriety of the Convictions Pursuant to 18 U.S.C. § 1346

Jackson and the Paradies defendants challenge their

convictions pursuant to 18 U.S.C. § 1346 on several grounds.

First, the Paradies defendants claim that in order to be convicted

for aiding and abetting in the fraudulent scheme, an independent

duty to the victim must first exist and that duty must have been

breached. Second, they claim that § 1346 is unconstitutionally

vague, or, in the alternative, that the district judge should have

given the jury a "fair warning" instruction to allow the jury to

make the vagueness determination. Finally, Jackson claims that his

convictions under § 1346 violated the ex post facto clause of the

Constitution. We will discuss each issue in turn.

(1) Independent Duty

The Paradies defendants argue that because the Paradies

companies had no legal duty to anyone to prevent Jackson's scheme

from succeeding, then they cannot be held liable for aiding and

abetting him in that scheme. The defendants rely heavily on Dirks

v. S.E.C., 463 U.S. 646, 103 S.Ct. 3255, 77 L.Ed.2d 911 (1983), and

Chiarella v. United States, 445 U.S. 222, 100 S.Ct. 1108, 63

L.Ed.2d 348 (1980), wherein the Supreme Court found that a

defendant cannot be convicted for securities fraud (Dirks ), or for

aiding and abetting securities fraud (Chiarella ), unless he

breached a legal duty. Because the Paradies companies claim that

they merely made routine, lawful fee and dividend payments to

Hartsfield Concessions and had no independent duty to disclose

anything about their shareholder's fraudulent scheme, they cannot

be convicted for helping Jackson in that scheme. They contend that

"without access to the opinion of the Ethics Board, the Paradies

defendants were lulled into a false sense of security that there

was nothing inherently improper about the relationship between

Wilbourn and Jackson." The government readily admits that the

Paradies defendants were not fiduciaries to the City. They claim,

however, that this circuit does not require that an independent

duty exist in order to be convicted of aiding and abetting in a

mail fraud scheme.

This court has addressed this issue in a recent case, United

States v. Waymer, 55 F.3d 564, 568 (11th Cir.1995), cert. denied,

--- U.S. ----, 116 S.Ct. 1350, 134 L.Ed.2d 519 (1996). In Waymer,

the defendant was a member of the Atlanta Board of Education, and

he used his status to award service contracts to certain companies

in return for monetary benefits. Waymer was convicted of mail

fraud, because he mailed payments to the contractors for the

services they rendered. He contended that because the school

system had a legal obligation to make those payments, the mailing

of the checks to pay a legal debt could not provide a basis on

which to satisfy the mailing requirement of § 1341. In upholding

his conviction, this court relied on Schmuck v. United States, 489

U.S. 705, 710, 109 S.Ct. 1443, 1447, 103 L.Ed.2d 734 (1989),

wherein the Supreme Court found that mailings that furthered the

overall scheme to defraud would satisfy the mailing requirement of

§ 1341, even though the mailings may have been otherwise legal.

The Waymer court found that it was presented with an even stronger

case than in Schmuck, because the checks mailed to the contractor

were the very source of the illegal payments to Waymer; if the

contractors did not get paid, neither did Waymer.29 Waymer, 55 F.3d

at 570.

Although the Paradies companies routinely mailed out fee and

dividend checks, the government showed that those payments were

made in exchange for Jackson's political influence. Under the

reasoning in Waymer, those mailings can serve as the basis for a

conviction under § 1341. Additionally, the Paradies defendants do

not cite to one mail fraud case to support their theory that an

independent duty must exist between the defendant and the victim.

This court stated in Waymer that "[a] defendant's breach of a

fiduciary duty may be a predicate for a violation of the mail fraud

statute where the breach entails the violation of a duty to

disclose material information." Id. at 571 (emphasis added). That

predicate is inapplicable to the facts of this case, however,

because the Paradies defendants were not charged with a failure to

disclose a material fact; they were charged with aiding and

abetting by actively participating in the crime. Jackson certainly

had a fiduciary duty to the City. Using the mails to deliver

dividend checks and fees, if intentionally designed as a payoff to

Jackson, is clearly sufficient to convict the Paradies defendants

for aiding and abetting the fraud under § 1346.

(2) Vagueness

The Paradies defendants also argue that § 1346, which brings

29

Furthermore, the Waymer court also held specifically that

the required element of " "mailing' ... need not be an essential

element of the scheme." Waymer, 55 F.3d at 569 (citing Schmuck,

489 U.S. at 710, 109 S.Ct. at 1447).

schemes to defraud another of the intangible right of honest

services, is unconstitutionally vague. Whether a statute is vague

is a question of law to be reviewed de novo. Dodger's Bar & Grill,

Inc. v. Johnson County Bd. of County Comm'rs, 32 F.3d 1436, 1443

(10th Cir.1994).

This question was also addressed by the Waymer court, and it

rejected the same challenge on strikingly similar facts. First,

the court reasoned that "[a] statute is not unconstitutionally

vague if it "define[s] the criminal offense with sufficient

definiteness that ordinary people can understand what conduct is

prohibited and in a manner that does not encourage arbitrary and

discriminatory enforcement.' " Waymer, 55 F.3d at 568 (quoting

Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75

L.Ed.2d 903 (1983)). It should be plain to ordinary people that

offering and accepting large sums of money in return for a city

councilman's vote is the type of conduct prohibited by the language

of § 1346.30 This is a specific intent crime, and the jury was

30

The contentions of defendants who claim that it is unclear

whether their conduct is covered by § 1346 have a hollow ring,

because until the Supreme Court's decision in McNally v. United

States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987),

federal courts had uniformly construed the mail fraud statute to

cover the situation where public officials received bribes and

kickbacks thereby depriving the citizenry of their "intangible

rights" to good and honest government. See, e.g., United States

v. Holzer, 816 F.2d 304 (7th Cir.), rev'd, 828 F.2d 21 (7th

Cir.1987), cert. denied, 484 U.S. 1076, 108 S.Ct. 1054, 98

L.Ed.2d 1016 (1988); United States v. Silvano, 812 F.2d 754 (1st

Cir.1987); United States v. Clapps, 732 F.2d 1148 (3d Cir.),

cert. denied, 469 U.S. 1085, 105 S.Ct. 589, 83 L.Ed.2d 699

(1984); United States v. Barber, 668 F.2d 778 (4th Cir.), cert.

denied, 459 U.S. 829, 103 S.Ct. 66, 74 L.Ed.2d 67 (1982); United

States v. Margiotta, 688 F.2d 108 (2d Cir.1982), cert. denied,

461 U.S. 913, 103 S.Ct. 1891, 77 L.Ed.2d 282 (1983); United

States v. Diggs, 613 F.2d 988 (D.C.Cir.1979), cert. denied, 446

S.Ct. 982, 100 S.Ct. 2961, 64 L.Ed.2d 838 (1980); United States

properly instructed on that intent. See discussion, infra, at pp.

3672-74. Additionally, the evidence was overwhelming that these

defendants "intended to defraud the citizens of Atlanta of

[Jackson's] honest services." Id. at 569. Therefore, the

vagueness challenge must fail.

We acknowledge that a recent Fifth Circuit decision, United

States v. Brumley, 79 F.3d 1430 (5th Cir.1996), may indicate to the

contrary. We agree, however, with the views of the dissenting

opinion by Judge Harlington Wood, Jr.:

By enacting § 1346, Congress expressly extended the reach

of the wire fraud statute to "include[ ] a scheme or artifice

to deprive another of the intangible right of honest

services." I agree with the majority that the term "another"

should be given its ordinary meaning and that the most common

usage of "another" as a pronoun is "an additional one" or "one

more." Under my ordinary reading of § 1346, however,

"another" can easily be read to refer to a state citizen where

the perpetrator of the fraud is a governmental official acting

in his or her official capacity.

Brumley, 79 F.3d at 1452. This circuit in Waymer has so held and

the Fourth Circuit has agreed with that rationale in United States

v. Bryan, 58 F.3d 933 (4th Cir.1995). See also United States v.

Martinez, 905 F.2d 709, 715 (3d Cir.), cert. denied, 498 U.S. 1017,

v. States, 488 F.2d 761 (8th Cir.1973), cert. denied, 417 U.S.

909, 94 S.Ct. 2605, 41 L.Ed.2d 212 (1974); Shushan v. United

States, 117 F.2d 110 (5th Cir.1941), cert. denied, 313 U.S. 574,

61 S.Ct. 1085, 1086, 85 L.Ed. 1531, 1532 (1941); see also,

United States v. McNally, 790 F.2d 1290 (6th Cir.1986) (per

curiam). According to the dissent in McNally, the Supreme Court

decision reversed "the accumulated wisdom of many distinguished

federal judges who have thoughtfully considered and correctly

answered" the "intangible rights" questions as did the Sixth

Circuit, which was reversed. McNally, 483 U.S. at 376, 107 S.Ct.

at 2890. Government officials, including defendant Jackson, were

on notice, then, until June 24, 1987, the date of the McNally

decision—and after November 18, 1988—that such intentional

actions as are charged in the indictment now at issue were deemed

illegal under the mail fraud statute.

111 S.Ct. 591, 112 L.Ed.2d 595 (1990), for a further observation

that "Congress' purpose in enacting § 1346 was to restore the mail

fraud statute to its pre-McNally position by allowing mail fraud

convictions to be predicated on deprivations of honest services."31

The Paradies defendants claim that even if § 1346 is not

vague as a matter of law, they were entitled to a "fair warning"

instruction to allow the jury to make the determination regarding

vagueness. They requested that the court ask the jury whether the

terms of the statute were "so vague that men of common

intelligence" in the position of the Paradies defendants would have

had fair warning of a change in the law and that they were

prohibited from paying dividends or management fees to Hartsfield

Concessions after the effective date of the statute. The court

rejected that request, deciding the vagueness issue as a matter of

law. We agree that the issue of whether a statute is void for

vagueness is a question of law for the court to determine. See,

e.g., Dodger's Bar & Grill, Inc., 32 F.3d at 1443; United States

v. Nevers, 7 F.3d 59, 61 (5th Cir.1993), cert. denied, 510 U.S.

31

See also the legislative history comments of

Representative Conyers in 134 Cong.Rec. H11, 108-01 (daily ed.

Oct. 21, 1988), quoted in Brumley, 79 F.3d at 1436:

This amendment restores the mail fraud provision to

where that provision was before the McNally

decision....

The amendment adds a new section to 18 U.S.C. 63 that

defines the term "scheme or artifice to defraud to

include a scheme or artifice to defraud another of the

intangible right of honest services." Thus, it is no

longer necessary to determine whether or not the scheme

or artifice to defraud involved money or property.

This amendment is intended merely to overturn the

McNally decision.

1139, 114 S.Ct. 1124, 127 L.Ed.2d 432 (1994). Therefore, the

Paradies defendants were not entitled to a "fair warning"

instruction to the jury.

(3) The Ex Post Facto Clause

Jackson claims that his convictions pursuant to § 1346

violated his rights under the ex post facto clause of the

Constitution, because the crimes for which he was convicted were

committed prior to the effective date of § 1346 (November 18,

1988), a time when the mail fraud statute (§ 1341) applied only to

fraudulent schemes that deprived individuals of property rights,

not intangible rights.32 See McNally v. United States, 483 U.S.

350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), discussed supra at note

30. We find this argument to be meritless. There was sufficient

evidence upon which the jury could have found that Jackson's

fraudulent scheme began in 1985 but continued until the end of his

tenure as a councilman (1990). In the ex post facto analysis,

"[t]he critical question is whether the law changes the legal

consequences of acts completed before its effective date." Weaver

v. Graham, 450 U.S. 24, 31, 101 S.Ct. 960, 965, 67 L.Ed.2d 17

(1981) (emphasis added). Several circuits have upheld convictions

under similar circumstances. See United States v. Garfinkel, 29

F.3d 1253, 1259-60 (8th Cir.1994) (upholding conviction under §

1346 when scheme began in 1986 and continued through 1989); United

States v. Hammen, 977 F.2d 379, 385 (7th Cir.1992) (upholding

conviction under § 1346 when bank fraud scheme spanned effective

32

It is undisputed that each of the mailings that served as

a basis for Jackson's convictions were mailed after November 18,

1988, the effective date of the statute.

date of the statute); United States v. Alkins, 925 F.2d 541, 549

(2d Cir.1991) (convictions for mail fraud upheld because defendants

permitted the mailings to occur after the effective date of the

statute). Accordingly, Jackson's mail fraud convictions for

conduct that continued after the effective date of § 1346 do not

violate the ex post facto clause.

C. Jury Instructions

The Paradies defendants claim that the district court erred in

instructing the jury on "specific intent" and in failing to give

the "theory of the defense" instruction that it proposed at trial.

We will address those issues separately.

(1) Specific Intent

The Paradies defendants first argue that the district court

erred in charging the jury on specific intent, because it failed to

require the jury to find that the defendants knew that their

conduct was against the law, and that "ignorance of the law" is a

valid defense because mail fraud is a specific intent crime. The

court refused to instruct the jury in this fashion and, instead,

instructed the jury that the defendants must have had the specific

intent to defraud, rather than an intent to violate the law.

Again, the Paradies defendants do not cite one mail fraud case to

support their position. Instead, they cite to precedent that

supports the general proposition that ignorance of the law may be

a defense to a specific intent crime. See Ratzlaf v. United

States, 510 U.S. 135, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994)

(antistructuring law); United States v. Schilleci, 545 F.2d 519

(5th Cir.1977) (wire fraud conspiracy); United States v. Davis,

583 F.2d 190 (5th Cir.1978) (conspiracy to export).

While mail fraud can be classified as a "specific intent"

crime, it is clear from a review of the pertinent case law that the

defendants' contention is unfounded. In mail fraud cases, the

government need only prove that the defendant had the intent to

deceive, and ignorance of the law is no defense. See Waymer, 55

F.3d at 568 (defendant need only show the "specific intent to

defraud"); United States v. Hooshmand, 931 F.2d 725, 731 (11th

Cir.1991) (intentional participation in a scheme to defraud);

Pelletier v. Zweifel, 921 F.2d 1465, 1499 (11th Cir.) ("conscious

knowing intent to defraud"), cert. denied, 502 U.S. 855, 112 S.Ct.

167, 116 L.Ed.2d 131 (1991); United States v. Williams, 728 F.2d

1402, 1404 (11th Cir.1984) (specific intent to defraud); United

States v. O'Malley, 707 F.2d 1240, 1247 (11th Cir.1983) (same).

The Second Circuit stated specifically, "The specific intent

required under the mail fraud statute is the intent to defraud, ...

and not the intent to violate a statute." United States v.

Porcelli, 865 F.2d 1352, 1358 (2d Cir.), cert. denied, 493 U.S.

810, 110 S.Ct. 53, 107 L.Ed.2d 22 (1989). Also, the Tenth Circuit

has specifically held under similar circumstances that the district

court did not err in instructing the jury that "every person is

presumed to know what the law forbids." United States v. Hollis,

971 F.2d 1441, 1451-52 (10th Cir.1992), cert. denied, 507 U.S. 985,

113 S.Ct. 1580, 123 L.Ed.2d 148 (1993). In light of the foregoing,

we must reject the Paradies defendants' argument on this point.

Next, they argue that the court gave, in substance, a general

intent instruction rather than a specific intent instruction. The

district court instructed the jury as follows:

Now, fraudulent intent is necessary to sustain a charge

of a scheme to defraud.

Now, in that regard, intent and motive should not be

confused. Motive is what prompts a person to act while intent

refers to the state of mind with which the act is done.

So, if you find beyond a reasonable doubt that the acts

constituting the crime charged were committed by the defendant

under consideration voluntarily, with a specific intent to do

something the law forbids, then the element of "willfulness",

as defined in these instructions has been satisfied even

though the defendant may have believed his conduct was either

religiously, politically, morally or otherwise required, or

that ultimate good would result from such conduct.

On the other hand, if you have a reasonable doubt as to

whether the defendant acted in good faith, sincerely believing

himself to be exempt by the law, then he did not intentionally

violate a known legal duty; that is, he did not act

"willfully," and that essential part of the offense has not

been established.

The court reiterated the specific intent requirement in other

parts of the charge. See, e.g., these instructions: "What must be

proved and proved beyond a reasonable doubt is that the defendant

knowingly and willfully devised or intended to devise a scheme to

defraud substantially the same one that is alleged in the

indictment, and that the use of the United States mail was closely

related to the scheme." (R48-4252). "[T]he question is, did the

defendant intend to deceive and defraud?" (R48-4252-53); "Now,

the Government must prove beyond a reasonable doubt that these

[Paradies] defendants aided, abetted, counseled, or caused mail

fraud to be committed with the specific intent that each and every

element of the crime of mail fraud be committed by some person."

(R48-4261). "Now, in this case good faith is a complete defense

... because good faith on the part of the defendants is

inconsistent with the intent to defraud or willfulness, which is an

essential part of the charges." (R48-4268).

The government claims that the above-quoted portion of the

jury instructions was requested by the defendants. Having asked

for the charge, the government claims, they cannot now complain

about it. See United States v. Chandler, 996 F.2d 1073, 1084 (11th

Cir.1993) (appellant cannot complain of a jury instruction that he

submitted), cert. denied, --- U.S. ----, 114 S.Ct. 2724, 129

L.Ed.2d 848 (1994); Leverett v. Spears, 877 F.2d 921, 924 (11th

Cir.1989) (doctrine of invited error precludes appellate claim that

jury instruction requested by the appellant was erroneous). The

Paradies defendants claim that the charge was not accepted as they

requested it verbatim, but that they strenuously objected to the

amended version given by the district court.

Assuming that the defendants are not barred from complaining

about the instructions, the court must look at "the charges as a

whole" to determine whether the jury was "sufficiently instructed

... so that it understood the issues involved and were not misled."

See Hooshmand, 931 F.2d at 731. The portions of the instructions

about which the defendants complain might potentially be deemed

confusing.33 However, after reviewing the instructions are read in

their entirety, we find that they were legally sufficient,

particularly in light of the other instructions pointed out by the

government. The court explained many times that the defendants

must have acted with the specific "intent to defraud," which

33

For example, the last part instructs that if the jury

doubts the defendant's good faith, then it should find that the

defendant did not violate his duty. It would seem that the law

is the converse (i.e., if you doubt that the defendants acted in

good faith, then you should find that they violated the law.).

constituted a correct assessment of the law.34

(2) Theory of Defense

The refusal to give an instruction is reviewed for an abuse

of discretion. United States v. Turner, 871 F.2d 1574, 1578 (11th

Cir.), cert. denied, 493 U.S. 997, 110 S.Ct. 552, 107 L.Ed.2d 548

(1989), and is reversible error if (1) the requested instruction

was a correct statement of the law, (2) its subject matter was not

substantially covered by other instructions, and (3) its subject

matter dealt with an issue in the trial court that was so important

that failure to give it seriously impaired the defendant's ability

to defend himself. United States v. Sirang, 70 F.3d 588, 593 (11th

Cir.1995).

Almost three months before trial, D. Paradies submitted a

requested jury charge labeled "Theory of the Defense." The

submitted charge consisted only of two introductory paragraphs, and

then explained in brackets that "the remainder of this proposed

charge will be submitted to the Court after the defense rests." At

some point just before the court instructed the jury, D. Paradies

submitted the remainder of the proposed charge, which basically

summed up the his defense theory: that he had no duty to supervise

the financial arrangements between his co-defendants; that he had

34

The Paradies defendants claim that the evidence was

insufficient to convict them of mail fraud because there was no

evidence that the Paradies defendants knew of the illegal nature

of the relationship between Wilbourn, Hartsfield Concessions, and

Jackson. In light of the fact that ignorance of the law is an

invalid defense, and because of the overwhelming amount of

evidence that showed the defendants' knowledge of and involvement

in the fraudulent scheme, we reject that argument. We do not

construe United States v. Sanchez-Corcino, 85 F.3d 549 (11th

Cir.1996), as requiring a different result on the issue of

requisite intent.

no specific intent to defraud because his duty was to pay the

dividends and management fees as required by the City of Atlanta's

Ordinances on Minority Participation; and that there was no

illegal conspiracy because his agreement with Echols had a

legitimate purpose. Now D. Paradies claims that failure to give

that charge was reversible error.

The district court disallowed the "revised" version of the

proposed instruction because it was untimely and because "it wasn't

any good anyhow." D. Paradies argues that his proposed jury charge

was, in fact, timely because he filed the first proposed charge

long before trial, putting the court and the government on notice.

While the timeliness of this proposed jury instruction is highly

suspect because the substance of it was not submitted until just

before the court delivered the charges, we will assume that the

instruction was timely filed and is properly reviewable by this

court.35

Paradies argues that a defendant is entitled to a theory of

defense charge for which there is any evidentiary foundation, "even

35

Fed.R.Crim.P. 30 requires the filing of written responses

"[a]t the close of the evidence or at such earlier time during

the trial as the court reasonably directs." The Local Rules of

the court below directed the parties to file written jury

instruction requests "no later than 9:30 a.m. on the date on

which the case is calendared...." See N.D.Ga. Local Rules 255-2

and 525-6. Paradies did not file this instruction in accordance

with the local rule, but he claims that "[t]he Local Rules cannot

sensibly be read to require the pretrial submission of charges on

issues whose substance is unknown before trial." While the

defendants claim that they did not know whether their theory of

defense would be supported by the evidence, they make no

persuasive argument that they did not know of the substance of

their defense prior to trial. See United States v. Johnson, 713

F.2d 633, 652-53 (11th Cir.1983), cert. denied, 465 U.S. 1081,

104 S.Ct. 1447, 79 L.Ed.2d 766 (1984).

though the evidence may be weak, insufficient, inconsistent, or of

doubtful credibility." United States v. Opdahl, 930 F.2d 1530,

1535 (11th Cir.1991) (quoting United States v. Lively, 803 F.2d

1124, 1126 (11th Cir.1986)). See also United States v. Edwards,

968 F.2d 1148, 1153 (11th Cir.1992) ("[i]t has long been

established in this Circuit that it is reversible error to refuse

to charge on a defense theory for which there is an evidentiary

foundation and which, if believed by the jury, would be legally

sufficient to render the accused innocent"), cert. denied, 506 U.S.

1064, 113 S.Ct. 1006, 122 L.Ed.2d 155 (1993). In determining

whether the record contains any evidentiary foundation to support

the charge, the evidence must be viewed in the light most favorable

to the defendant. United States v. Hedges, 912 F.2d 1397, 1406

(11th Cir.1990); United States v. Lewis, 592 F.2d 1282, 1285 (5th

Cir.1979). We find that the district court was correct in finding

that the requested jury charge was partisan and that it aspired "to

place the Paradies defendants' desired factual findings into the

mouth of the court." See United States v. Barham, 595 F.2d 231,

245 (5th Cir.1979) (affirming district court's failure to give

"theory of defense" jury instruction when "the requested

instruction was more in the nature of a jury argument than a

charge"), cert. denied, 450 U.S. 1002, 101 S.Ct. 1711, 68 L.Ed.2d

205 (1981); see also United States v. Silverman, 745 F.2d 1386,

1399-1400 (11th Cir.1984) (affirming district court's refusal to

give "theory of defense" argument because the instruction merely

emphasized a certain phase of the evidence). Also, the proposed

instruction included legal theories which we have rejected supra

(e.g., the "duty" theory, the "ignorance of the law" defense).

Indeed, a charge must have "legal support" as well as foundation in

the evidence. United States v. Morris, 20 F.3d 1111, 1115 (11th

Cir.1994) (finding that a defendant is entitled to a theory of

defense instruction as long as it has legal support); Silverman,

745 F.2d at 1399 ("the requested instruction must be a legally

cognizable defense to the indictment"). The instructions given by

the district court fairly and adequately presented Paradies'

defense theories to the jury. See Barham, 595 F.2d at 245 (finding

that the instructions given adequately and fairly presented the

defendant's theory without the "theory of defense" instruction).

Therefore, we find that D. Paradies is not entitled to a reversal

based on the district court's failure to give the proposed

instruction.

D. Propriety of the Convictions Pursuant to § 666

D. Paradies and Jackson contest their convictions under 18

U.S.C. § 666, which criminalizes the following acts:

[C]orruptly giv[ing], offer[ing], or agree[ing] to give

anything of value to any person, with intent to influence or

reward an agent of an organization or of a State, local or

Indian tribal government, or any agency thereof, in connection

with any business, transaction, or series of transactions of

such organization, government, or agency involving anything of

a value of $5000 or more.

18 U.S.C. § 666(a)(2). The statute applies, however, only where:

the organization, government, or agency receives, in any one

year period, benefits in excess of $10,000 under a Federal

program involving a grant, contract, subsidy, loan, guarantee,

insurance, or other form of Federal assistance.

18 U.S.C. § 666(b). D. Paradies argues that the district court

misconstrued § 666 not to require two essential elements: (1) that

the corrupt payments be made in connection with the administration

of programs receiving federal funds, and (2) that the payments be

made as a "quid pro quo" for an official act. He argues that those

errors led the district court impermissibly to deny his motions to

dismiss, for judgment of acquittal, and for a new trial, and that

they also caused the court to reject the proposed jury charges

relating to those issues. Jackson relies only on the first

argument, and not the "quid pro quo" argument, in support of his

claim. The government, on the other hand, claims that "[t]he plain

language of § 666 does not impose these limitations, nor has any

court ever engrafted these limitations on the clear statutory

text." We will discuss each argument in turn.

(1) Does § 666 Require that the Corrupt Payment Be Directly

Connected to the Administration of Federal Funds?

The defendants argue that they cannot be convicted pursuant

to § 666 because the corrupt payments that were the subject of

those convictions were not shown to be connected to any federally

funded program. They argue, relying on legislative history, that

the purpose of the statute was to protect the integrity of monies

distributed through federal programs. Because the corrupt

transactions at issue affected only private or local monies, their

conduct was not intended to be covered under § 666. In addition to

legislative history, the defendants cite authority from other

jurisdictions that purport to apply this restriction to crimes

under § 666. See United States v. Wyncoop, 11 F.3d 119 (9th

Cir.1993); United States v. Coyne, 4 F.3d 100 (2d Cir.1993), cert.

denied, 510 U.S. 1095, 114 S.Ct. 949, 127 L.Ed.2d 221 (1994);

United States v. Cicco, 938 F.2d 441 (3d Cir.1991); and United

States v. Westmoreland, 841 F.2d 572 (5th Cir.), cert. denied, 488

U.S. 820, 109 S.Ct. 62, 102 L.Ed.2d 39 (1988). The government

claims, however, that "[e]very court to have considered this issue

has rejected defendant's argument attempting to limit the scope of

the statute." Further, it argues that Westmoreland actually

supports its position. We agree.

First, in construing § 666, we agree with the following

expression of the Fifth Circuit:

[W]e find the relevant statutory language plain and

unambiguous. By the terms of § 666, when a local government

agency receives an annual benefit of more than $10,000 under

a federal assistance program, its agents are governed by the

statute, and an agent violates subsection (b) when he engages

in the prohibited conduct "in any transaction or matter or

series of transactions or matters involving $5,000 or more

concerning the affairs of" the local government agency. 18

U.S.C. § 666(b) (Supp.1984) (emphasis added). Subsection (b)

contains nothing to indicate that "any transaction involving

$5,000" means "any federally funded transaction involving

$5,000" or "any transaction involving $5,000 of federal

funds," and other subsections of the statute contain no

inconsistent provisions that might suggest such a

qualification.

Westmoreland, 841 F.2d at 576 (emphasis added).

Other circuits have followed this approach and have

established that the government is not required under § 666 to

trace the flow of federal funds and assistance to any particular

project, such as the airport concession programs. See United

States v. Bonito, 57 F.3d 167, 172-73 (2d Cir.1995) (rejecting

argument that there must be a link between the corrupt transaction

and the protection of federal funds), cert. denied, --- U.S. ----,

116 S.Ct. 713, 133 L.Ed.2d 667 (1996); Coyne, 4 F.3d at 108-09

(stating that the plain language of § 666 "neither explicitly nor

implicitly requires that the $10,000 be directly linked to the

program that was the subject of the bribe"); United States v.

Simas, 937 F.2d 459 (9th Cir.1991) ("The broad language of [§ 666]

does not require a tracing of federal funds to the project affected

by the bribe."). Furthermore, the plain language of the statute

merely requires that the payments be made to an agent of the State

which "receives benefits in excess of $10,000 in any one year

period." Because the language in the statute is clear, it would be

improper to look to the legislative history for clarification.

Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 254, 112 S.Ct.

1146, 1149-50, 117 L.Ed.2d 391 (1992). We find the cases cited by

defendants to be distinguishable or inapplicable.36 Accordingly,

we decline the invitation to include the suggested "connection to

federal funds" element as a requirement to convictions under § 666.

(2) Does § 666 Require a Quid Pro Quo?

A quid pro quo is simply a specific official act in exchange

for a specific corrupt payment. D. Paradies claims that this

element is required in order to convict him under § 666, as is

evidenced by the amendment of § 666, and that the district court

erred in failing to give an appropriate jury charge to that effect.

Further, he argues that the government did not produce evidence

that the 1990 reimbursement to Echols was connected in any way to

an official act or benefit.

The government claims that, because this is the appeal from

the district court's failure to give a "quid pro quo" jury charge,

and the defendant neither requested nor objected to the absence

36

United States v. Cicco, 938 F.2d 441, 444 (3d Cir.1991)

(finding that the test of § 666 is ambiguous); United States v.

Wyncoop, 11 F.3d 119, 121-23 (9th Cir.1993) (discussing whether §

666 applies to employees of entities that receive only indirect

benefits from a federal program).

thereof, this court reviews this issue for plain error.

Fed.R.Crim.P. 52(b). Specifically, the government argues that,

even in jurisdictions that require a quid pro quo, jury

instructions that merely track the language of the statute is not

error. The court in United States v. Medley, 913 F.2d 1248, 1260

(7th Cir.1990), cert. denied, 510 U.S. 1013, 114 S.Ct. 604, 126

L.Ed.2d 569 (1993), stated that "[t]he essential element of a § 666

violation is a "quid pro quo[.]" The court opined, however, that

the defendant did not object to the jury instructions given in the

district court, which instructions "set forth the offense using the

language in the body of § 666." Id. at 1259. In light of that

fact, the instructions did not constitute error.

We have carefully reviewed the jury charges given in this

case, and we are persuaded that the district court did not commit

reversible error under the reasoning in Medley. The jury charges

tracked the statutory requirements, and the evidence at trial was

sufficient for a jury to find that Jackson accepted payments for

his votes and his influence upon the City Council and the

administration. Such a finding would satisfy any quid pro quo

requirement under the statute. Therefore, the court's instructions

were not plainly erroneous, and they would not serve as a basis for

reversal under these circumstances.

E. Evidentiary Issues

The Paradies defendants also raise numerous evidentiary

issues.37 Particularly, they claim that the district court abused

37

Generally, all of the defendants argue that the

government's trial evidence was insufficient to convict them on

various counts. In reviewing that claim, we have examined the

its discretion in excluding certain testimony of their legal

expert, in admitting a tape recording of a payoff to Echols, and in

admitting evidence against D. Paradies under Rule 404(b). We have

carefully considered those arguments and, as is explained below, we

find that the district court did not abuse its discretion in any

respect.

(1) Limitation of Testimony of Legal Expert

The district court's exclusion of expert testimony is subject

to an abuse of discretion standard, United States v. Lankford, 955

F.2d 1545, 1550 (11th Cir.1992), and constitutes reversible error

if the defendant establishes that the error had a "substantial

impact on the outcome." United States v. Sellers, 906 F.2d 597,

601 (11th Cir.1990).

The Paradies defendants called Thomas O. Marshall, a former

Chief Justice of the Georgia Supreme Court, to testify as a legal

expert. He testified about the City's MBE program and the

management and shareholder's agreements. The district court

refused to allow Judge Marshall to testify about the enactment of

§ 1346 and how it changed the law. The Paradies defendants

objected, claiming that this witness would support their defenses

evidence in the light most favorable to the government to

determine whether "any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt."

Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61

L.Ed.2d 560 (1979); see United States v. Dynalectric Co., 859

F.2d 1559, 1574 (11th Cir.1988). Using that standard, we have

evaluated this evidence de novo in order to determine whether the

district court erred in denying the defendants' motions for

acquittal. See United States v. Busacca, 936 F.2d 232, 239 (6th

Cir.), cert. denied, 502 U.S. 985, 112 S.Ct. 595, 116 L.Ed.2d 619

(1991). After a thorough review of the record in this case, we

reject all of the defendants' "sufficiency of the evidence"

contentions.

of ignorance of the law and lack of fair notice as an element of

the vagueness defense. He would have testified that a reasonable

man would not have been put on notice that § 1346 precluded the

Paradies defendants from making the payments to Jackson, even if

Paradies knew that the arrangement between Wilbourn and Jackson was

illegitimate. United States v. Garber, 607 F.2d 92 (5th Cir.1979)

(reversing conviction because trial court did not allow expert

legal testimony on tax laws).

While Garber may be the law for tax cases, ignorance of the

law is not a defense in this mail fraud case, as we have already

discussed supra. See Hollis, 971 F.2d at 1451-52. If the district

court had allowed testimony that ignorance of the law was a defense

would have mislead and confused the jury. "The law would be in a

curious state if jurors received their instructions on the law from

an expert witness as well from the trial judge." United States v.

Brodie, 858 F.2d 492, 497 (9th Cir.1988) (rejecting proffer of an

expert to testify on unsettled points of law). Additionally, as we

have concluded, § 1346 is not vague under these circumstances as a

matter of law, and testimony regarding that issue was properly

excluded. The district court, indeed, gave witness Marshall a

broad scope of opinion testimony over objections of the government.

Accordingly, it was not an abuse of discretion for the district

court to limit that testimony.

(2) Admission of Tape Recorded Payoffs

After he began to cooperate with the government, Echols agreed

to be videotaped and audiotaped at breakfast/bribery meetings held

between Echols and two other councilmembers, Arrington and Fowlkes.

The tapes show the councilmembers accepting bribes, and they also

contain statements by Mr. Echols about Paradies' decision not to

testify before the grand jury. Govt. Exhibit 473T ("They wanted to

talk to Paradies, and at that time Paradies' attorney wouldn't let

Paradies go down."). Paradies filed a motion in limine to exclude

the tapes because they constituted hearsay, and they were

irrelevant and prejudicial. The district court disallowed the

tapes in the governments case-in-chief because they were irrelevant

and unduly prejudicial. He reserved final determination on the

matter, however, because the only basis for admission of the tapes

would have been to rehabilitate Echols' credibility.

After Echols testified on direct at trial, the defense

conducted an aggressive cross-examination of Echols. On redirect,

to rehabilitate their witness, the government again sought to

introduce the tapes. The district court found that the tapes were

admissible under Fed.R.Evid. 801(d)(1)(B), which states that a

statement is not hearsay if it is a prior consistent statement of

a witness that is used to rebut an implied charge of recent

fabrication.38 On appeal, the parties agree that the admission of

the tapes under this rule was error, because the Supreme Court has

recently decided that the prior consistent statement under the rule

must have been made before the alleged influence or motivation to

fabricate arose. Tome v. United States, --- U.S. ----, 115 S.Ct.

696, 130 L.Ed.2d 574 (1995). In this case, the government made the

38

This rule is not a hearsay exception—it is a rule defining

a statement that is not hearsay.

tapes after Echols' agreement to cooperate with the government.39

Therefore, under Tome, the tapes would not constitute nonhearsay

under 801(d)(1)(B), and the district court erred in so finding.

The government correctly argues, however, that "[r]egardless

of the ground for admission of evidence cited by the district

court, this Court will uphold the admission even if the district

court's reasons were erroneous if the admission was proper on other

grounds." United States v. Cardenas, 895 F.2d 1338, 1345 (11th

Cir.1990). The government also correctly points out that the tapes

were not hearsay, because they were not statements offered for the

truth of the matter asserted. Rather, the breakfast conversations

were innocuous, and they were offered merely to rehabilitate

Echols' testimony that the people involved had a familiar

relationship and had regular breakfast meetings.40 See United

States v. Price, 792 F.2d 994, 996-97 (11th Cir.1986) (statements

admitted simply to put other statements into context are not

hearsay). Also, there are no nonverbal hearsay concerns with the

videotape of money being passed, because "[w]hen non-verbal

conduct, like the transfer of money, is ambiguous, contemporaneous

words which characterize the transactions are not hearsay." United

States v. Valentine, 644 F.Supp. 818, 821 (S.D.N.Y.1986).

39

His agreement with the government is presumably the basis

for his motivation to fabricate his testimony.

40

The innocuous nature of the conversations was one reason

the district court initially disallowed the evidence as

irrelevant. For example, although Echols made a statement about

the government wanting to talk to Paradies, the government was

not attempting to show that "the government wanted to talk to

Paradies." They wanted to show that Echols was not lying when he

testified to having a familiar relationship with the councilman

and had regular breakfast meetings with him.

Therefore, because the video and audio tapes became relevant to

rehabilitate Echols, and because the tapes did not constitute

hearsay, the admission of the evidence was proper despite the

court's erroneous ruling.

(3) Admission of Evidence Pursuant to 404(b)

"This court reviews the decision to admit extrinsic act

evidence under Fed.R.Evid. 404(b)41 for "clear abuse of discretion.'

" United States v. Hooshmand, 931 F.2d 725, 736 (11th Cir.1991).

The government must show that "(1) the evidence is relevant to an

issue other than the defendant's character and (2) the probative

value outweighs any prejudicial effect." Id. Also, the "evidence

is admissible only if the jury could reasonably find by a

preponderance of the evidence that the defendant committed the

extrinsic act." Id.

The district court admitted two days and seven witnesses

regarding evidence that the Paradies defendants violated the

Michigan Campaign Finance Act ("MCFA") from 1990 through 1993 by

illegally reimbursing employees for contributions to political

candidates and concealing those reimbursements through phony travel

vouchers. D. Paradies claims that the jury could not reasonably

find that he was involved in the extrinsic acts. He takes issue

with the illicit intent attached to the evidence, because he claims

that there was no evidence that the actions of his companies

41

Fed.R.Evid. 404(b) provides that "[e]vidence of other

crimes, wrongs, or acts is not admissible to prove the character

of a person in order to show action in conformity therewith. It

may, however, be admissible for other purposes such as proof of

motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident...."

violated any laws. He claims that there is no basis for 404(b)

evidence when the extrinsic act involved legal activity. Id. The

government contends that the evidence was sufficient to find that

Mr. Paradies was involved in his companies' illegal contributions

that violated the MCFA. We agree with the government on this

point, in light of the overwhelming evidence regarding the high

degree of control D. Paradies had over his companies and the

intricacy of the reimbursement plan. Specifically, the evidence

showed that on two travel vouchers, the annotation "Per Dan" was

included next to a dinner expense for which there was no dinner.

Also, the evidence showed that Mr. Paradies was active in

attempting to influence, or "lobby," decisionmakers for the benefit

of his companies. The jury could infer from this evidence that Mr.

Paradies was involved in the clandestine scheme to contribute to

political campaigns and influence those in political office who

could control his airport operations.

F. Jackson's Sentence Pursuant to the Sentencing Guidelines

Defendant Jackson raises several objections to the

applications of the sentencing guidelines to his sentence. Review

of the district court's determination that Jackson's sentence

should have been enhanced under U.S.S.G. §§ 2F1.1, 3C1.1, and 2T1.1

is subject to a clearly erroneous standard of review. See United

States v. Cannon, 41 F.3d 1462, 1467 (11th Cir.) (§ 2F1.1), cert.

denied, --- U.S. ----, 116 S.Ct. 86, 133 L.Ed.2d 44 (1995); United

States v. Jones, 32 F.3d 1512, 1519 (11th Cir.1994) (§ 3C1.1). The

district court's determination that the specific offense

characteristic in U.S.S.G. § 2C1.1(b)(2)(B) applies to the

recipient of a payment is a question of law subject to de novo

review.

Jackson first claims that the district court erroneously

calculated the amount of loss under the all-too-familiar U.S.S.G.

§ 2F1.1. The district court used $669,653.03 as the amount of

"loss" involved in the fraud. Jackson claims that this amount

should be reduced by $400,000, which constitutes the "loan

amounts." Curiously, Jackson does not provide any factual or legal

basis on which this reduction should be made. We do not think that

the loss amount, which consisted of the money that Jackson received

from the scheme after November 18, 1988, should be reduced by any

"loan amount," because the loans involved in this case were proven

to be illegitimate. Therefore, Jackson's argument is meritless.

Next, Jackson argues that the district court erred in

enhancing his sentence under § 3C1.1 for committing perjury at his

trial. That section provides that "[i]f the defendant willfully

obstructed or impeded, or attempted to obstruct or impede, the

administration of justice during the investigation, prosecution or

sentencing of the instant offense, increase the offense level by

two levels." U.S.S.G. § 3C1.1. The district court made a factual

finding that Jackson committed perjury during the trial in a number

of instances, particularly when he denied having breakfast meetings

with Harold Echols. On that basis, the district court enhanced his

sentence for obstruction of justice. Defendant Jackson has failed

to establish that the district court was clearly erroneous in its

determination that he testified untruthfully at trial. See Jones,

32 F.3d at 1519 (noting that the comments to § 3C1.1 allow the

enhancement if the defendant commits perjury or provides materially

false information to a judge). While Jackson claims that the

district court erred because it penalized him merely for his

failure to plead guilty, that was not the case. Therefore,

Jackson's "obstruction of justice" challenge must fail.

The district court further found that Jackson used

"sophisticated means" to impede discovery of the existence or

extent of the tax offense. See U.S.S.G. § 2T1.1(b)(2) (allowing

two-level increase if sophisticated means were used to impede

discovery of a tax offense). Jackson claims that the district

court erred in enhancing his sentence under this section because he

claims that the evidence presented in the case did not support a

finding that "sophisticated means" were used. The government

argues, however, that it presented ample evidence that Jackson

routinely transferred money through shell corporations, such as

Options International, Inc., in an attempt to conceal his

transactions. In light of the evidence presented at trial, we

agree with the government and find that the district court did not

clearly err in enhancing Jackson's level based on the use of

"sophisticated means."

Finally, Jackson's offense level was increased under U.S.S.G.

§ 2C1.1, which provides that "[i]f the offense level involved more

than one bribe or extortion, increase by two levels.... If the

offense involved a payment for the purpose of influencing an

elected official or any official holding a high level

decision-making or sensitive position, increase by eight levels."

U.S.S.G. § 2C1.1(b)(1) & (2)(B). Jackson claims that his sentence

should not have been enhanced under this section because he was the

payee, not the payor, of the bribes. The background to that

section of the guidelines directly refutes Jackson's contention,

because it states that "the guideline applies to a public official

who solicits or accepts such a bribe." In light of this background

statement and in the absence of any case law to the contrary,

Jackson's contention must be rejected.

III. CONCLUSION

In sum, we conclude that the district court did not commit

reversible error in connection with any of the convictions or

sentences of these defendants. We repeat the irony in this case

that the thirty-five percent minority participation requirement

imposed by Dobbs,42 which was designed to benefit minority-owned

businesses, served as the underlying vehicle by which Jackson

became involved with the Paradies defendants. In any event, these

parties received a fair trial, and the jury returned a reasonable

verdict. Accordingly, we hereby AFFIRM the district court in all

respects.

42

The City required only 20% minority participation.