United States v. Tokars

United States Court of Appeals,

Eleventh Circuit.

No. 94-8733.

UNITED STATES of America, Plaintiff-Appellee,

v.

Fredric W. TOKARS, James H. Mason, Defendants-Appellants.

Sept. 6, 1996.

Appeal from the United States District Court for the Northern

District of Georgia. (No. 1:93-00357-CR-1), Orinda D. Evans, Judge.

Before DUBINA and BLACK, Circuit Judges, and MARCUS*, District

Judge.

DUBINA, Circuit Judge:

Appellants-defendants Fredric W. Tokars ("Tokars") and James

H. Mason ("Mason") (collectively, the "defendants") appeal their

convictions for various violations of federal law. In addition,

Mason challenges his sentence. For the reasons that follow, we

affirm.

I. STATEMENT OF THE CASE

A. Procedural Background

On August 25, 1993, a federal grand jury returned an

indictment charging Tokars and Mason with various racketeering,

drug, and money laundering violations. The grand jury later

returned a superseding indictment charging Tokars with racketeering

conspiracy, 18 U.S.C. § 1962(d) (Count I); racketeering, 18 U.S.C.

§ 1962(c) (Count II); violence in aid of racketeering, 18 U.S.C.

§§ 1959(a)(1) and 2 (Count III); murder-for-hire, 18 U.S.C. §§

*

Honorable Stanley Marcus, U.S. District Judge for the

Southern District of Florida, sitting by designation.

1958 and 2 (Count V); conspiracy to possess with intent to

distribute cocaine, 21 U.S.C. § 846 (Count VI); money laundering,

18 U.S.C. §§ 1956(a)(1)(B)(i) and 2 (Counts VII, VIII, IX, X and

XI); and conspiracy to launder money, 18 U.S.C. § 1956(g) (Count

XIII). Mason was charged in Counts I, II, IV (violence in aid of

racketeering, 18 U.S.C. §§ 1959(a)(3) and 2), VI, VII, VIII, IX, X,

XI, and XIII.

The defendants entered not guilty pleas and moved to change

venue based on pre-trial publicity. The district court granted the

defendants' change of venue motions, and the trial was moved to

Birmingham, Alabama. After the government's presentation of its

case-in-chief, the court dismissed Count VII against Mason and

Counts VIII and IX against Tokars. The jury returned guilty

verdicts against Tokars and Mason on all remaining counts. Tokars

was sentenced to concurrent life sentences on Counts I, II, III,

and V. As to Counts VI, X, XI, and XIII, Tokars was sentenced to

97 months' incarceration on each count to be served concurrently

with each other and concurrently with the life sentences, as well

as a $400 special assessment. Mason was sentenced to 200 months'

incarceration on each count to be served concurrently, as well as

a $450 special assessment. The defendants then perfected this

appeal.

B. Factual Background

This case involves drugs, money laundering, torture,

kidnaping, and murder-for-hire. The case is best explained when

divided into two sections: the narcotics money laundering

enterprise and the murder of Sara Tokars ("Sara").

1. Narcotics money laundering enterprise

At the trial, Jessie Ferguson ("Ferguson") testified that he

and Julius Cline ("Cline") were drug dealers in Detroit, Michigan.

In July of 1985, Ferguson moved to Atlanta, Georgia, where he met

Mason. Cline also moved to Atlanta, and he and Ferguson invested

$75,000 in drug proceeds in the VIP Club. Mason was the manager of

the club, and he was listed as an owner in order to obtain a liquor

license because Cline and Ferguson were "in trouble" with the

authorities in Detroit. Ferguson testified that Cline's principal

source of cocaine was "Andrew." Cline transported the cocaine from

Miami, Florida, to Atlanta. Andre Willis ("Willis") testified that

he obtained cocaine from Cline until Cline was murdered on July 25,

1992. Willis distributed the cocaine in Atlanta and Chattanooga,

Tennessee. According to Willis, Cline also obtained cocaine from

Al Brown ("Brown"), who was part owner of the Diamonds and Pearls

nightclub in Detroit. Willis testified that he and Cline received

and sold approximately twenty kilograms of cocaine per week.

According to Willis, Cline described his relationship with Mason as

follows: "[Mason] was just a front for the nightclubs because

[Ferguson] and himself had a criminal record, and they could not

get any liquor license in their name, so James Mason would be the

front for all the nightclubs." R62-2059. According to Willis,

Cline owned several clubs, including the VIP, Traxx, the Parrot,

and Zazu's, as well as the Park Place Beauty Salon.

Marvin Baynard ("Baynard") met with Tokars in late 1986 to

discuss providing a legal defense to drug runner Dexter Askew

("Askew"). Askew had been charged with possession of cocaine that

had been provided by Baynard. Baynard informed Tokars that he sold

one-fourth to one-half a kilo of cocaine per week amounting to

between $5,000 and $10,000. Tokars requested a $10,000 retainer

fee and said he would help Baynard "legitimize" himself by

incorporating Baynard's business. Tokars incorporated a business

which Baynard used with Alex Yancey ("Yancey"), Baynard's associate

in the cocaine business. Baynard sold drugs from 1986 to 1989 and

obtained cocaine from Cline and Greg Johnson ("Johnson") beginning

in 1987. Baynard recalled that Tokars often discussed offshore

banks and had a blue book that explained how to set up an offshore

bank for $15,000. Baynard did not invest his drug money but

instead kept it as cash in his bedroom and, on Tokars's advice,

kept the cocaine in another apartment under a different name.

Baynard testified that he introduced Johnson to Tokars so that

Tokars could launder some of Johnson's drug money.

Murray Silver ("Silver") first met Tokars when Tokars was an

assistant district attorney. After leaving the district attorney's

office, Tokars shared office space with Silver from approximately

July 1986 to October 1989. Silver recalled a conversation with

Tokars about a booklet Tokars authored entitled Tax Havens and

Offshore Investment Opportunities. The booklet details Tokars's

plan for laundering drug money. Tokars asked that Silver refer

some of his clients to Tokars. Tokars said that he was not worried

about the Internal Revenue Service ("IRS") because he intended to

leave no paper trail. Tokars told Silver that he had used this

process to help a client who was going through a divorce hide

$150,000 from his wife and the IRS by depositing it in his bank in

the Bahamas. Silver recalled that Tokars lectured to law

enforcement officials on the topic of money laundering. The

Director of the Georgia Police Academy testified that Tokars taught

courses in money laundering for the academy, as well as for the

Federal Law Enforcement Training Academy.

In late December of 1988, Mason, Cline, and Ferguson accused

Michael Jones ("Jones") of stealing money from Mason's home. Jones

testified that he went to Mason's house where Cline closed and

locked the door. Ferguson placed a 9-millimeter handgun on the

table and asked Jones whether he knew where the money was.

Ferguson then placed the handgun down Jones's throat and threatened

to kill him. When Mason returned home, Jones recounted the meeting

to him. About thirty days later, Mason asked Jones to meet him at

the Park Place Salon. Mason then asked Jones to accompany him

home. Ferguson arrived at Mason's home and instructed Mason to

leave. Mason left, and Ferguson proceeded to physically torture

Jones for two to three hours. Ferguson then put Jones in the

bathroom, but Jones escaped. Ferguson testified that he and Cline

would often keep large amounts of drug money at Mason's home.

Mason told Ferguson that he thought that Jones had stolen the

money. Mason hired a private investigator who observed Jones

attempting to purchase fur coats and a new car. Ferguson testified

that he instructed Mason to get Jones to the house.

Mason and Cline, together with Jim Killeen, Bill Fraser, and

William Kohler, formed Zebra, Inc., and Zebra Management, Inc., to

operate a club called Dominique's. Mason and Cline contributed

$20,000 to the operation but were later removed from Zebra's due to

Cline's reputation as a drug dealer. Mason and Cline then opened

Traxx. Ferguson testified that he invested $15,000 in Traxx and

that Cline invested $45,000.

Mark McDougall ("McDougall"), who had taken cocaine from

Mason, testified that he and Zane Carroll ("Carroll") discussed

with Tokars their proposed investment in the Parrot nightclub.

McDougall and Carroll would own 51% of the club. Billy Carter

("Carter") would obtain the liquor license due to McDougall's

felony conviction. Tokars and Carter discussed in McDougall's

presence that Cline was the silent partner and money man for Mason.

Tokars incorporated the Parrot Acquisition Corporation. The

shareholder and management agreement reflected Tokars as the club's

attorney and Carter and Mason as subscribing to 40,000 and 60,000

shares of stock, respectively. Ferguson testified that Cline

invested $40,000 to $60,000 in the Parrot. When McDougall and

Carroll were not pleased with the investment return, McDougall

threatened Cline with a gun.

Linda Campbell ("Campbell"), who was employed at the Park

Place Salon, was assaulted by Mason. She employed an attorney and

filed suit against Mason, and her case was settled for $17,500, for

which Mason's shares of stock in the Parrot were pledged as

collateral. Campbell's attorney testified that Tokars represented

Mason and that it was Tokars's idea to pledge the Parrot stock.

Campbell employed new counsel who demanded that the stock be

assigned to Campbell because Mason had defaulted on payment.

Tokars claimed that he was no longer the secretary of the

corporation, so a suit was filed against all of the officers and

shareholders, including Tokars, Mason, Cline, Carter, and Brown.

After Zebra, Inc., was evicted from Dominique's for

non-payment of rent, Mason approached Douglas McKendrick

("McKendrick") claiming that he had an endorsement contract with

Deion Sanders ("Sanders"). Sanders testified that he met Mason

through Willie Harris ("Harris"). Sanders signed an agreement with

Harris, who signed as President of Atlanta Entertainment

Management, Inc. In September of 1990, Tokars incorporated Atlanta

Entertainment Management, Inc., listing Mason, Cline, and Harris as

its directors. Tokars helped finalize the deal with Sanders and

the management agreement with McKendrick. Carl Tatum, an employee

of the club Deion's, testified that he discussed with Mason the

fact that Cline was a cocaine dealer and that Mason knew Cline

dealt cocaine.

In 1988, Harris began selling cocaine for Cline as a

middle-man brokering transactions with other customers. In one

day, Harris received between $250,000 and $500,000. Harris would

place the cash, minus his percentage, in a safe at Cline's

apartment. Harris once delivered cocaine to Mason at Cline's

request. Harris later heard from Mason that the cocaine was

intended for a woman in Mason's residential complex. In 1991,

Harris was arrested on cocaine charges. Mason paid Tokars $5,000

to help Harris. Tokars filed affidavits at Harris's bond hearing

stating that neither Mason nor Cline knew Harris to sell,

distribute, possess, or consume illegal drugs. However, this was

after Harris had delivered the cocaine to Mason and had conducted

a substantial cocaine business on behalf of Cline. After obtaining

bond, Harris met with Tokars, who advised him that he would be

found guilty and receive a substantial sentence unless he could

"set someone up." Tokars suggested setting up Cline, but Harris

refused. Harris testified that Tokars then said that Harris was

right that he could not set up Cline "because if you do Julius

[Cline], it will role [sic] down and get James [Mason] because

everybody knows James doesn't have any money, and he gets his money

from Julius." R62-1912.

Harris and Mason decided to open a new club, and Mason claimed

that he had secured $50,000 from Brown to open it. John Vara

("Vara") testified that through his corporation, JDV, he sold the

leasehold rights to Diamonds and Pearls to Mason for $25,000. The

closing was held at Tokars's office in November of 1991. Vara was

introduced to Brown by Mason, who said that Brown was part of

management. Mason and Tokars used Atlanta House Clubs, Inc., as

the purchaser of the lease.

In the spring of 1992, Tokars introduced Eddie Lawrence

("Lawrence") to Mason at Diamonds and Pearls. Tokars also

introduced Lawrence to Cline, Willis, and Harris. Tokars told

Lawrence that Cline was a drug dealer and that Mason was a client

for whom he laundered drug money. Lawrence testified that Tokars

and Mason said that $500,000 was used to renovate Diamonds and

Pearls.

In 1992, Cline began receiving cocaine from Brown. At the

time, Cline was renovating Traxx, which was to be renamed the

Phoenix. Willis testified that Cline was angry with Mason due to

the loss of the Parrot. Cline asked Willis to invest $150,000 in

the Phoenix. Willis was to obtain the money from cocaine sales.

Cline told Willis that he "had a white friend that was an attorney

and judge that was advising him on how to invest his money in the

right way" and was helping him with the clubs. R63-2080.

On August 5, 1992, a car carrying 115 kilograms of cocaine was

stopped in Amarillo, Texas. The Drug Enforcement Agency ("DEA")

airlifted the car to Atlanta, and the driver agreed to cooperate.

Following an intermediary's arrest, the cocaine was delivered to

Brown, who was then arrested. A search of Brown's car revealed a

business card identifying Brown and Mason's association with

Peachtree Entertainment, weekly reports of Diamonds and Pearls, two

digital beepers, and $49,700 in cash. DEA agents later executed

two search warrants for Brown's residence and found a money

counting machine, a bulletproof vest, digital beepers, and records.

Tokars represented Brown at an August 11, 1992, detention hearing.

Assistant United States Attorney Janis Gordon ("Gordon") expressed

to Tokars that the government was interested in Brown's

cooperation. Gordon noted that since Tokars had incorporated

Diamonds and Pearls,1 she mentioned to him that he might have a

potential conflict in representing Brown. Gordon said that if the

government attempted to seize the nightclub, Tokars might be called

as a witness.

Mason represented to the DEA and IRS agents that he was the

100% owner of Diamonds and Pearls and that Brown only served as the

1

Tokars had incorporated Diamonds, Inc., and Diamonds and

Pearls, Inc., identifying Mason as the sole director. Tokars

also incorporated Peachtree Entertainment Group, Inc., with Mason

and Brown as directors.

"doorman" and handy man for the club. Mason was then subpoenaed to

produce all records of the club. When Tokars learned about the

subpoena, he referred Mason to another attorney. Tokars later told

AUSA Gordon that Brown had fired him.

The records of Diamonds and Pearls and Atlanta House Clubs,

Inc., were also being sought in connection with separate civil

litigation. James McCreary ("McCreary"), an attorney for

Twilights, Inc., requested that Tokars provide Twilights with

information about Atlanta House Clubs, Inc., and its operation of

Diamonds and Pearls. Contrary to Mason's assertions to the DEA and

the IRS, Tokars claimed that Atlanta House Clubs, Inc., did not

exist, was defunct, and had no assets. Tokars said that although

the liquor license was obtained in the name Atlanta House Clubs,

Inc., the actual company was Diamonds, Inc., which Tokars claimed

was owned by Mason. Twilights sued Atlanta House Clubs, Inc., and

Mason and Cline for failing to pay the additional $50,000 required

for the purchase of Zazu's. At the time of the default, Jeff

Ganek, Twilights's attorney, advised his client to liquidate the

nightclub, but when he discovered a liquor license advertisement by

Atlanta House Clubs, Inc., for Diamonds and Pearls, he suggested

that the company attempt to collect the $50,000.

Tokars told McCreary that he thought Atlanta House Clubs,

Inc., had no assets but that he had just discovered some assets.

Tokars informed McCreary that Cline had used Atlanta House Clubs,

Inc., to operate another club, the Phoenix. Tokars suggested that

if Twilights would dismiss Mason from the lawsuit, Tokars and Mason

would help Twilights obtain a judgment against Atlanta House Clubs,

Inc. Tokars told McCreary that following Cline's murder, members

of his family were operating the Phoenix. As a result, Tokars

suggested that Twilights might be able to satisfy its claim through

Cline's estate. Tokars told McCreary that Cline's murder was

drug-related. Tokars represented that Zazu's was Cline's venture

and that Cline had been very upset with McCreary's clients, even to

the point of wanting to murder one of them.

2. The Murder of Sara Tokars

During a political fundraiser reception, Tokars stated that

his wife Sara had recently been in his office working on his

accounts receivable. Sarah Suttler ("Suttler"), the Tokars'

neighbor, testified that Sara often discussed divorcing Tokars but

was afraid she would not get custody of their two sons. In the

fall of 1992, Suttler said Sara was elated and said "I can divorce

Fred now because I have the goods on him, and he'll not get my boys

... I have found papers of income tax evasion." R69-3671.

According to Suttler, Sara gave the information to a private

detective and she felt protected by this.

In 1991, Lawrence employed Yancey in the construction

business. Lawrence knew Yancey to be a cocaine dealer. Yancey

asked Lawrence for $20,000, but Lawrence, who did not have $20,000,

gave Yancey only $10,000 to purchase cocaine. Lawrence said that

they could re-sell the cocaine and make the remainder of the

$20,000. Lawrence advanced the money, but the plan failed. Yancey

then decided to produce counterfeit money in order to repay

Lawrence. The United States Secret Service ("Secret Service")

began investigating their activities. Lawrence testified that he

and Yancey would pass counterfeit money by going to nightclubs,

buying drugs, and then reselling the drugs for legitimate money.

Yancey and Lawrence eventually became aware of the Secret Service

investigation.

Yancey introduced Lawrence to Tokars. Yancey and Lawrence

informed Tokars of their counterfeiting activities. Tokars

suggested that he could take the counterfeit money and distribute

it in the Bahamas, but the two declined. Lawrence hired Tokars,

but Yancey fled and was arrested in December of 1993. The Secret

Service confronted Lawrence, but he denied his involvement in the

scheme. Lawrence, accompanied by Tokars, agreed to go to the

Secret Service office where Lawrence took a polygraph test. Tokars

was told that Lawrence tested deceptive when asked about his

involvement in passing counterfeit money. Lawrence testified that

he and Tokars then began conducting a money laundering business.

The two used Lawrence's construction business as a front and also

incorporated several other businesses that were used to launder

money. Lawrence solicited drug dealers by going to nightclubs.

Tokars advanced approximately $70,000 to Lawrence for operating

expenses. Tokars discussed with Lawrence how he used offshore

banks to launder money.

In late July or early August of 1992, Tokars asked Lawrence if

he would kill somebody. In mid-September, Tokars asked Lawrence to

kill his wife Sara because she wanted to divorce him and take

everything. In another discussion, Tokars told Lawrence that Sara

wanted the house and his money. Lawrence advised Tokars, "Let her

have it," saying that "he could always get that back." R65-2700.

According to Lawrence, Tokars stated "that he worked too hard, he

went to school at night, and she never did anything. All she ever

did was spend his money, and that he wasn't going to give it to

her. He would kill her first." Id. During a later discussion,

Lawrence asked about Tokars's children. Lawrence recalled that

Tokars said, "They will be alright. They will get over it. They

are young. They will get over it." R65-2700-01. Lawrence

testified that Tokars "just wanted it done" and said that "she was

putting pressure on him and he wanted to kill her. That was what

he wanted to do, he wanted her dead." R65-2701.

Tokars first indicated that the murder should occur in his

office because he could cover it up due to his influence in

Atlanta. Lawrence would not agree. Tokars then decided it should

happen in their home so it would look like a burglary. Tokars

offered to pay Lawrence $25,000 plus a portion of the life

insurance proceeds. In August of 1989, Tokars had increased the

life insurance proceeds on Sara from $250,000 to $1,750,000.

Tokars continued to pressure Lawrence to kill Sara, going so far as

to threaten to destroy Lawrence's business if he would not comply.

Lawrence testified that Tokars said that he did not care who did

it. Lawrence contacted Curtis Rower ("Rower") and offered him

$5,000 to commit the murder. Rower agreed. On the Monday or

Tuesday prior to Thanksgiving of 1992, Tokars informed Lawrence

that Sara would be going to Florida and that he wanted her killed

when she came back. Tokars was scheduled to be in Alabama meeting

with a prisoner at that time, so he would have an alibi.

Sara's father testified that Sara and the two children drove

to Florida and arrived on the Tuesday before Thanksgiving and that

Tokars flew into Tampa the same day. Tokars returned home on

Saturday and requested that Lawrence meet him the next day.

Lawrence met Tokars at his law office, and Tokars informed Lawrence

that Sara had already left Florida and would arrive in Atlanta

around 8:00 or 9:00 p.m. Tokars checked into a Montgomery hotel

and called his answering service to leave the number where he could

be reached in case of an emergency. That same day, there were many

phone calls involving telephones associated with Tokars, Lawrence,

Sara's father, and the Montgomery hotel.

The record demonstrates that Lawrence picked up Rower around

7:00 p.m. Rower was equipped with a sawed-off shotgun. Lawrence

left Rower at the Tokars residence and instructed him to kill a

white female about age forty. Lawrence drove to a neighboring

subdivision to wait. About two hours later, Lawrence saw Sara's

white 4-Runner vehicle driving off the road. Rower got out of

Sara's vehicle and ran toward Lawrence. They then drove to Atlanta

because Rower wanted to buy some drugs.

Rower testified that when Sara arrived home, he made her get

back into her vehicle and leave to take him to Atlanta. Rower

claims that they pulled over, that Lawrence approached, and that

Lawrence grabbed the gun, which went off.

Stipulated testimony indicated that Sara died from a gunshot

wound to the head delivered from a distance of approximately one

foot or less. Sara's two small children were in the vehicle at the

time of the murder.

Wilbert Humphries ("Humphries"), a money launderer, was in

custody in Montgomery, Alabama, in November of 1992. He was

surprised to receive a visit from Tokars on the Sunday after

Thanksgiving. At the jail, Tokars asked Humphries to sign some

papers. Humphries attempted to talk with Tokars about the case,

but Tokars "talked to me very brief like he was in a hurry or

something." R66-3035. This meeting lasted only about ten minutes.

On the Monday following the murder, a cousin of Sara's, Mary

Rose Taylor ("Taylor"), contacted Sara's sister, Christine Ambrusko

("Ambrusko"), asking her to find the papers of Tokars that Taylor

had asked Sara to copy. Taylor went to Ambrusko's house, found the

documents, copied them, and delivered them to the police. These

records reflected off-shore bank accounts in the Bahamas and a

Class B licensed bank issued by Montserrat. Ambrusko testified

that Sara requested that she keep the documents in a safe place and

give them to the police if anything happened to Sara. According to

Ambrusko, Sara wanted to divorce Tokars but was concerned that he

would take the children. Ambrusko also said that Sara was "very

scared and intimidated." R68-3556.

According to Sara's sister, Gretchen Ambrusko Schaeffer

("Schaeffer"), after the murder Tokars appeared "very anxious, and

he was making loud noises, kind of moaning and saying, "I'm so

afraid' and "I'm scared,' in a loud tone of voice, very nervous

appearing." R67-3228. During a conversation with his mother and

Schaeffer, Tokars said that he did not want to help the police

because he did not want them to look into his business dealings.

On December 6, Tokars, in the presence of counsel, was

interviewed by the police. During the interview, Tokars admitted

that his clients were criminals, and he specifically mentioned

Mason because of Cline's murder, the arrest of Brown, and the

murder of Brown's brother. Tokars said that Mason and Cline were

partners in the Parrot Club and that Mason owned Diamonds and

Pearls. Tokars also admitted that he assisted Mason in

incorporating the Parrot Club and that he represented Mason in a

number of civil suits. Tokars further admitted that Sara had

previously hired an attorney to seek a divorce. Later that

evening, with Tokars's consent, police and federal agents searched

Tokars's residence and seized Tokars's calendars for 1988, 1989,

and 1990.

Lawrence was arrested on December 12 for writing bad checks.

He was questioned about Sara's murder but denied involvement.

Lawrence was released but then was charged for writing another bad

check. While Lawrence was again in custody, a private investigator

for Tokars questioned him about the murder. On December 20, the

police again interviewed Tokars regarding why he never previously

mentioned his connection with Lawrence. Tokars claimed that he had

discussed their corporations and that all of his dealings with

Lawrence were matters of public record. Tokars described Lawrence

as a business partner, and he acknowledged that he met Lawrence in

connection with the Secret Service's investigation of Yancey.

Tokars mentioned that "Mason was an ongoing, regular client of

mine." R69-3808.

The police arrested Lawrence and Rower on December 23, 1992.

A police officer called Tokars at Sara's father's home to inform

him of the arrest. Tokars simply said "okay." R67-3162. Sara's

father, Dr. Ambrusko, recalled that Tokars had no reaction to the

news. Following the call, Dr. Ambrusko asked Tokars to tell the

family about Lawrence. In response, Tokars stated that he did not

believe Lawrence was involved. Neal Wilcox, Sara's brother-in-law,

testified that during a conversation with Tokars later in the

evening, Tokars "kept repeating to me that he was worried about the

police making a deal." R67-3216. Tokars claimed that the police

"were using these guys to get to him, and he was worried about the

police making a deal for their testimony against [him]." Id.

On Christmas Eve, Tokars failed to go on a family outing to

Busch Gardens. As time passed without contact from Tokars, Dr.

Ambrusko became worried. He went to look for Tokars and found him

unconscious in his hotel room. The police found a suicide note.

Tokars survived this suicide attempt.

II. ISSUES

The defendants raise the following issues on appeal:

1. Whether the district court erred in denying the defendants'

challenges to the government's use of peremptory strikes.

2. Whether the district court erred in admitting the statement

Rower made at his bond hearing.

3. Whether the district court erred in admitting hearsay

statements made by Sara.

4. Whether Tokars was prejudiced by misrepresentations regarding

the polygraph exam and the failure to produce the exam.

5. Whether Tokars had the opportunity to cross-examine Lawrence.

6. Whether the district court erred in denying Tokars's motion to

suppress evidence seized from Tokars's residence.

7. Whether the district court abused its discretion in its

admission of various items of evidence.

8. Whether the jury charge on Count V was proper.

9. Whether sufficient evidence supports Mason and Tokars's

convictions.

10. Whether the district court erred in denying Mason's motion for

a new trial.

11. Whether the district court properly permitted the jury to find

that Tokars committed racketeering act nine.

12. Whether the district court abused its discretion in moving the

trial to Birmingham, Alabama.

13. Whether the district court erred in granting only one

continuance of the trial.

14. Whether the district court abused its discretion in denying

Mason's motion for severance from Tokars.

15. Whether cross-examination of Ambrusko was properly limited.

16. Whether the prosecutor engaged in misconduct.

17. Whether the district court properly refused Tokars's

theory-of-the-case charges.

18. Whether the district court violated Tokars's due process rights

by prohibiting comments by the attorneys on dismissed charges.

19. Whether the references to violence and fear and other

prejudicial evidence denied Tokars a fair trial.

20. Whether Mason was properly sentenced.

21. Whether this court's limitation of Tokars's brief denied him

the effective assistance of counsel or due process on appeal.

III. STANDARDS OF REVIEW

A district court's findings regarding whether a peremptory

strike was exercised for a discriminatory reason largely involves

credibility determinations and is therefore entitled to great

deference. See Batson v. Kentucky, 476 U.S. 79, 98 n. 21, 106

S.Ct. 1712, 1724 n. 21, 90 L.Ed.2d 69 (1986). Thus, we review a

district court's finding in this respect only for clear error. See

Hernandez v. New York, 500 U.S. 352, 364-65, 111 S.Ct. 1859, 1868-

69, 114 L.Ed.2d 395 (1991) (plurality); id. at 372, 111 S.Ct. at

1873 (O'Connor, J., concurring) (agreeing with the plurality that

district court's finding should be reviewed for clear error);

United States v. Alston, 895 F.2d 1362, 1366 (11th Cir.1990).

This court reviews a district court's evidentiary rulings for

abuse of discretion. United States v. Walker, 59 F.3d 1196, 1198

(11th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 547, 133

L.Ed.2d 450 (1995).

We review findings of fact on a motion to suppress evidence

for clear error; the district court's application of the law to

those facts is subject to de novo review. United States v. Diaz-

Lizaraza, 981 F.2d 1216, 1220 (11th Cir.1993).

A challenge to a jury instruction presents a question of law

subject to de novo review. United States v. Chandler, 996 F.2d

1073, 1085 (11th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct.

2724, 129 L.Ed.2d 848 (1994). We review a district court's refusal

to give a requested jury instruction for abuse of discretion.

United States v. Maduno, 40 F.3d 1212, 1215 (11th Cir.1994), cert.

denied, --- U.S. ----, 116 S.Ct. 123, 133 L.Ed.2d 72 (1995).

Whether there was sufficient evidence to support a conviction

is a question of law subject to de novo review. United States v.

Keller, 916 F.2d 628, 632 (11th Cir.1990), cert. denied, 499 U.S.

978, 111 S.Ct. 1628, 113 L.Ed.2d 724 (1991). We view the evidence

in the light most favorable to the government with all reasonable

inferences and credibility choices made in the government's favor.

Id.

A trial court's denial of a motion for new trial is reviewed

for an abuse of discretion. United States v. Martinez, 763 F.2d

1297, 1312 (11th Cir.1985).

The granting of a motion for a change of venue is reviewed

for abuse of discretion. United States v. Williams, 523 F.2d 1203,

1208 (5th Cir.1975).2

A denial of a motion for a continuance is reviewed for an

abuse of discretion and specific, substantial prejudice. United

States v. Bergouignan, 764 F.2d 1503, 1508 (11th Cir.1985), cert.

denied, 484 U.S. 1044, 108 S.Ct. 778, 98 L.Ed.2d 864 (1988).

Denial of a severance motion is reviewed for abuse of

discretion. United States v. Harper, 680 F.2d 731, 733 (11th

Cir.), cert. denied, 459 U.S. 916, 103 S.Ct. 229, 74 L.Ed.2d 182

(1982).

Whether the trial court erred in limiting cross-examination

is reviewed for a clear abuse of discretion. United States v.

Lankford, 955 F.2d 1545, 1548 (11th Cir.1992). However, the

district court's discretion in limiting the scope of

cross-examination is subject to the requirements of the Sixth

Amendment's guarantee of the right of confrontation. Id.

This court usually may only reverse a conviction based on a

prosecutor's remarks if those remarks are improper and prejudicial

to the defendant's substantive rights. United States v. Cannon, 41

F.3d 1462, 1469 (11th Cir.), cert. denied, --- U.S. ----, 116 S.Ct.

86, 133 L.Ed.2d 44 (1995).

The question whether a particular sentencing guideline

2

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th

Cir.1981) (en banc), this court adopted as binding precedent all

decisions of the former Fifth Circuit handed down prior to

October 1, 1981.

applies to a given set of facts is a question of law reviewed de

novo. United States v. Shriver,967 F.2d 572, 574 (11th Cir.1992).

This court reviews a trial court's determination of the quantity of

drugs used to establish a base offense level for sentencing

purposes under the clearly erroneous standard. United States v.

Taffe, 36 F.3d 1047, 1050 (11th Cir.1994).

IV. ANALYSIS

Initially we note that many of the issues in this case are

subject to review for an abuse of discretion. Our review of the

record persuades us that the district court did not abuse its

discretion in moving the trial to Birmingham, Alabama; in granting

only one continuance of the trial; and in denying Mason's motion

for severance from Tokars. Moreover, we conclude that Tokars's

arguments regarding issues nineteen and twenty-one are meritless.

Accordingly, we summarily affirm the district court's disposition

of these issues.3 The remaining issues meriting discussion are

addressed infra.

A. J.E.B. v. Alabama ex rel T.B.

The defendants argue that the government purposefully

discriminated on the basis of gender in violation of J.E.B. v.

Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89

(1994), by exercising its peremptory challenges to remove men from

the venire. The government exercised its first ten strikes to

remove men, and after an objection by Tokars, the government struck

three men and three women. After the jury was struck, the district

court heard the defense challenge. When confronted by the defense

3

See Eleventh Cir. Rule 36-1.

allegation that the government was impermissibly striking, the

government argued that there was a smaller number of women in the

venire and that the defense engaged in its own practice of striking

women.4 The government then conceded:

[W]e did not strike men just to strike men, nor did we strike

women just to strike women ... In fact, the defendants could

have wiped out the entire sex of women with their strikes and

still had five to go, and as a matter of principle, I think

every sex should be represented in a trial of this nature as

should every race be represented, and so we undertook a course

of action anticipating the defendants would do what they did,

which was strike almost in the exact opposite proportion of

women to men, because if you look at the balance, the greater

proportion of their strikes were women.

R56-532-33. The government also argued that men had not been

declared to be a cognizable group for purposes of a Batson

challenge.

Regarding the challenge the district court stated:

I don't think men do constitute a cognizable group for Batson.

There is a case in the Supreme Court presently regarding

whether women constitute a cognizable group. The holding of

the circuit[s] so far, the Fifth Circuit has held that women

do not constitute a cognizable group. So have the Fourth and

[the] Seventh. The Ninth Circuit has gone the other way. I

do not know of any circuit decision that has held that men are

a cognizable group ... I do not think the challenge is valid.

However, given the degree of novelty of the issue, Mr. Parker,

do you and Ms. Monahan want to place on the record what your

reasons were for striking the men that you struck?

R56-534-35. The government proceeded to state gender-neutral

reasons for each of its strikes. The district court overruled the

defendants' objections, and the case proceeded to trial with a jury

4

Although not relevant to our analysis, we find it

interesting that Tokars's counsel intimated his own

discriminatory views during the challenge conference: "[M]y

reading of the Government's strikes was that it was almost all

straight males, and then at the end out of the last four, I think

they struck three females, one black female and two regular

females." R56-531 (emphasis added).

composed of eight men and four women.

After the jury returned its verdict in this case, the Supreme

Court decided J.E.B., thereby extending Batson to gender.

Consequently, Mason moved for a new trial. The district court

conducted a hearing on the motion and determined that J.E.B. should

not be applied retroactively because it was not forecast by prior

decisions to the same degree as was Batson. The district court's

conclusion regarding the retroactivity of J.E.B. was incorrect in

light of the Supreme Court's decision in Griffith v. Kentucky, 479

U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987), which

mandates that "a new rule for the conduct of criminal prosecutions

is to be applied retroactively to all cases, state or federal,

pending on direct review or not yet final, with no exception for

cases in which the new rule constitutes a "clear break' with the

past."

However, the district court also found that the government's

proffered reasons were non-pretextual and explained:

Finally, I do recognize that an inference of

discrimination, whether it be race discrimination or gender

discrimination, can be inferred from a pattern of strikes.

Now, in this case it is true that the government utilized 13

of its 16 strikes to strike men. However, in determining

whether an inference of discrimination may properly be raised,

I think it is appropriate to consider the factual setting as

a whole, and in this case the factual setting reflects that

the panel that we began with, the panel of, I believe it is,

56 disproportionally represented men. Apparently 55 percent

of that panel consisted of men. In addition to that, the

record reflects that the defendants collectively struck a

disproportionate number of women. Therefore, the setting

within which the government exercised its strikes was a

setting within which women were under-represented both as a

product of the initial makeup of the panel, and as a product

of the pattern of strikes reflected by the defendant's [sic]

strikes.

R79-67-68.

The Supreme Court has established a three-step analysis to be

applied when addressing a claim that peremptory challenges were

used in a manner that violates the Equal Protection Clause. See

Hernandez v. New York, 500 U.S. 352, 358-59, 111 S.Ct. 1859, 1865-

66, 114 L.Ed.2d 395 (1991) (plurality opinion). First, the party

challenging the peremptory strike must establish a prima facie case

that the prosecutor exercised the peremptory strikes for a

discriminatory reason. See id. Second, if the prima facie case

has been established, the burden shifts to the proponent of the

peremptory challenge to articulate a gender-neutral explanation for

the strike. See id. The Supreme Court clarified that in order to

satisfy step two, "a "legitimate reason' is not a reason that makes

sense, but a reason that does not deny equal protection." Purkett

v. Elem, --- U.S. ----, ----, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834

(1995) (per curiam). Third, the trial court must ascertain whether

the opponent of the strike has carried his or her burden of proving

intentional discrimination. Hernandez, 500 U.S. at 359, 111 S.Ct.

at 1866. The district court's findings on the issue of

discriminatory intent are entitled to great deference and are

reviewed for clear error. Id., 500 U.S. at 364-65, 111 S.Ct. at

1868-69.

This case presents a situation of mixed motives. It is

apparent from the government's statements following Tokars's

challenge that gender was indeed a factor that was considered in

exercising its strikes. Tokars and Mason argue that this statement

constitutes a blatant admission of discriminatory intent that

negates the relevance of any other non-discriminatory reasons

offered. As such, Tokars and Mason contend that the government's

actions violated J.E.B. This circuit, however, has recently joined

three other circuits in adopting dual motivation analysis for

purposes of Batson. See Wallace v. Morrison, 87 F.3d 1271 (11th

Cir.1996) (applying dual motivation where prosecutor stated that

race was a factor considered in the exercise of peremptory strike);

United States v. Darden, 70 F.3d 1507, 1530-32 (8th Cir.1995)

(applying dual motivation where prosecutor struck on basis of

youth, inexperience, and alleged young black female tendency "to

testify on behalf and be more sympathetic toward individuals who

are involved in narcotics"), cert. denied, --- U.S. ----, 116 S.Ct.

1449, 134 L.Ed.2d 569, and cert. denied, --- U.S. ----, 116 S.Ct.

2567, 135 L.Ed.2d 1084 (1996); Jones v. Plaster, 57 F.3d 417, 421-

22 (4th Cir.1995) (applying dual motivation but remanding to

district court for clarification of findings regarding whether the

strike was exercised for a discriminatory purpose and whether it

would have been exercised in the absence of the discriminatory

purpose); Howard v. Senkowski, 986 F.2d 24, 27-31 (2d Cir.1993)

(applying dual motivation to prosecutor's pre-Batson statements).

Dual motivation analysis grants the proponent of a strike the

opportunity to raise an affirmative defense after the opponent of

the strike has established a prima facie case of discrimination.

Wallace, 87 F.3d at 1274-75; Howard, 986 F.2d at 30. In order to

prove this affirmative defense, the proponent of the strike bears

the burden of proving by a preponderance of the evidence that the

strike would have been exercised even in the absence of the

discriminatory motivation. Wallace, 87 F.3d at 1275.5

After a careful review of the record, we conclude that the

district court's findings that the government offered

gender-neutral reasons for the strikes is not clearly erroneous.

The district court conducted a hearing during which it reviewed

each of the government's reasons for striking the jurors and found

them to be gender-neutral. In making a finding of no pretext, the

district court in effect made the appropriate findings necessary

for dual motivation analysis. Applying dual motivation, we

conclude that the government would have exercised the strikes in

the absence of any discriminatory motivation.6

Finally, we note that resort to dual motivation analysis will

5

In Howard, the Second Circuit held that the dual motivation

analysis used by the Supreme Court in the constitutional context

should apply to Batson challenges. See, e.g., Village of

Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252,

270-71 n. 21, 97 S.Ct. 555, 566 n. 21, 50 L.Ed.2d 450 (1977);

Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274,

287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977).

6

We acknowledge that in Purkett, the Supreme Court stated

that "the ultimate burden of persuasion regarding racial

motivation rests with, and never shifts from, the opponent of the

strike." Purkett, --- U.S. at ----, 115 S.Ct. at 1771. However,

we do not perceive this language to prohibit the application of

dual motivation analysis. In Purkett, the Court faced the

question whether the proponent of the strike should be required

to present a plausible or persuasive reason for striking a juror

in order for the reason to be considered race-neutral. Id. The

Court found that such a requirement stopped the analysis too

early and, in effect, relieved the burden of persuasion regarding

discriminatory motivation from the opponent of the strike. Id.

As such, the Court found that the proponent of the strike may

offer an implausible reason as long as it is not race-based on

its face. Id. Whereas the opponent of the strike in Purkett

sought to avoid its burden of persuasion in the face of an

implausible explanation, the dual motivation analysis provides an

affirmative defense to the proponent of the strike but does not

take away the ultimate burden of persuasion from the opponent of

the strike.

rarely be necessary. By now, no competent prosecutor or defense

attorney is unaware of the fact that strikes on the basis of race

or gender are prohibited. The procedural posture of this case is

unusual in that the law at the time of trial was unclear as to

whether Batson would be extended to gender. Unlike the respondent

in J.E.B., the government in this case expressed that it was not

striking men on the basis of stereotyping. Furthermore, both the

prosecutor and defense counsel could have raised a J.E.B.

challenge. Moreover, the jury itself ultimately consisted of eight

men and four women. While the ultimate composition of the jury

does not nullify the possibility of gender discrimination, it is a

significant factor in the highly deferential review we afford the

district court's conclusions. See United States v. Jiminez, 983

F.2d 1020, 1023-24 (11th Cir.), cert. denied, 510 U.S. 925, 114

S.Ct. 330, 126 L.Ed.2d 276 (1993).

B. Rower's Bond Hearing Statements

Tokars argues that the district court erred in admitting the

out-of-court testimony offered by Rower during his Cobb County bond

hearing under Federal Rule of Evidence 804(b)(3).7 At least

7

Federal Rule of Evidence 804(b)(3) provides:

The following [is] not excluded by the hearsay

rule if the declarant is unavailable as a witness:

A statement which was at the time of its making so far

contrary to the declarant's pecuniary or proprietary

interest, or so far tended to subject the declarant to

civil or criminal liability, or to render invalid a

claim by the declarant against another, that a

reasonable person in the declarant's position would not

have made the statement unless believing it to be true.

A statement tending to expose the declarant to criminal

liability and offered to exculpate the accused is not

admissible unless corroborating circumstances clearly

portions of the Rower bond hearing testimony were, in fact,

relevant statements made by Rower against his penal interest within

the meaning of Rule 804(b)(3). Moreover, because Rower was

unavailable to testify at trial, and because his statement

regarding Lawrence's offer of $5,000 to commit murder and his

statements admitting the kidnapping were made against his penal

interest and were corroborated by other evidence in the case, we

conclude that the statements were properly admitted.

If there was any error in the admission of the Rower

testimony, however, such error was harmless. None of the testimony

directly inculpated Tokars. The testimony was only relevant as to

Tokars's involvement in the kidnapping insofar as it demonstrated

that Sara Tokars was, in fact, kidnapped. However, the testimony

of Lawrence and Detective McEntyre, considered independent of

Rower's testimony, was more than sufficient to prove the fact that

Sara Tokars was kidnapped. Furthermore, the evidence crucial to

Tokars's guilt regarding the murder-for-hire scheme was that which

related to his dealings with Lawrence, not that which related to

Lawrence's dealings with Rower, the main subject of Rower's

testimony. Finally, although Rower's testimony may have been

corroborative, in part, of Lawrence's testimony, Tokars impeached

Lawrence on cross-examination, and Rower's testimony contradicted

Lawrence's in some respects. Thus, any corroboration of Lawrence's

testimony by Rower had a minimal effect on the jury's perception of

indicate the trustworthiness of the statement.

Lawrence's credibility.8

C. Hearsay Statements of Sara

The government introduced through several witnesses statements

made by Sara regarding her state of mind and the course of conduct

with respect to certain documents. The government offered each of

the contested statements under one of two theories: "(1) to

demonstrate the state of mind of Sara Tokars, over the course of an

approximately three-year period, as to her intent to divorce Tokars

and to show how the evolution of her state of mind over that period

provided a motive for Tokars to scheme to murder her; and (2) to

demonstrate a course of conduct, most often that of various persons

relating to copies of certain documents found by Sara Tokars that

were incriminating as to Tokars and that eventually were turned

over to both state and federal law enforcement officials after the

death of Ms. Tokars." Government's Br. at 69. The government

argues that, with respect to the first theory, the statements fall

within Federal Rule of Evidence 803(3),9 and, pursuant to the

8

Tokars also argues that the district court erred in not

allowing him to introduce the entire statement under Federal Rule

of Evidence 106 (rule of completeness) and 806 (impeachment of

declarant). However, after the district court refused, Tokars's

counsel asked instead to introduce only certain portions of the

statement, which the court allowed. After reviewing the record,

we are persuaded that the district court did not abuse its

discretion in limiting the introduction of the remainder of the

statement. Moreover, assuming arguendo that the district court

erred, any error was harmless.

9

Federal Rule of Evidence 803(3) states as follows:

The following [is] not excluded by the hearsay rule,

even though the declarant is available as a witness:

A statement of the declarant's then existing state of

mind, emotion, sensation, or physical condition (such

as intent, plan, motive, design, mental feeling, pain,

second theory, the statements are not "hearsay" as defined in

Federal Rule of Evidence 801(c).10

Regarding the first theory, we conclude that, at least when

relevant to the motive to kill, evidence of the victim's state of

mind is admissible under Federal Rule of Evidence 803(3). See

United States v. DiNome, 954 F.2d 839, 846 (2d Cir.) (statements

about victims' existing and ongoing suspicions concerning

defendant's exportation business relevant to show motive to kill),

cert. denied, 506 U.S. 830, 113 S.Ct. 94, 121 L.Ed.2d 56 (1992);

United States v. Donley, 878 F.2d 735, 738 (3d Cir.1989)

(statements showing that victim intended to move out of military

apartment and separate from defendant), cert. denied, 494 U.S.

1058, 110 S.Ct. 1528, 108 L.Ed.2d 767 (1990). Tokars claims that

a homicide victim's state of mind is not sufficiently relevant to

admit out-of-court statements of fear unless the defense is

self-defense, suicide, or accidental death, citing for this

proposition; United States v. Kaplan, 510 F.2d 606 (2d Cir.1974).

However, Kaplan involved possession with intent to distribute and

distribution of heroin, not homicide, and the declarant's state of

mind was not an issue. Tokars knew of the change in Sara's state

of mind when he asked Lawrence to kill her. The fact that she

and bodily health), but not including a statement of

memory or belief to prove the fact remembered or

believed unless it relates to the execution,

revocation, identification, or terms of declarant's

will.

10

Federal Rule of Evidence 801(c) provides: " "Hearsay' is

a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove

the truth of the matter asserted."

wanted to divorce him and take all of his money is what apparently

prompted him to have her killed. Consequently, Sara's state of

mind was extremely relevant to Tokars's motive to kill.

With respect to the second theory, we agree with the

government that the challenged statements do not constitute hearsay

at all. They were offered to explain the course of conduct that

occurred when Sara informed Taylor of the existence of the

documents, delivered them to Ambrusko, and directed that they be

turned over to the police if anything happened to her. Because

they were not offered to prove the truth of the matter asserted,

these statements were not hearsay. Moreover, establishing the

course of conduct between the deposit of the documents with

Ambrusko and their eventual submission to the police was relevant

to this case. For the foregoing reasons, we see no abuse of

discretion in the district court's admission of Sara's statements.

D. Prejudice—Misrepresentations and Polygraph

Tokars argues that the government failed to produce the

results of two polygraph exams administered to Lawrence. The

government did release the Secret Service polygraph to the

defendants.11 At trial, the district court found that there was no

11

Tokars contends that the admission of the Secret Service

polygraph of Lawrence was error. Pursuant to United States v.

Piccinonna, 885 F.2d 1529, 1536 (11th Cir.1989) (en banc),

polygraph evidence may be admitted to impeach or corroborate

testimony of a witness at trial within the court's discretion, so

long as the opposing party has adequate notice of the evidence

and an opportunity to secure its own polygraph. During his

opening statement, Tokars claimed that his relationship with

Lawrence was that of a businessman investing in a rising

entrepreneur. Tokars acknowledged the existence of the polygraph

test and in fact consented to the test. The polygraph was not

introduced to prove that Lawrence told the Secret Service the

truth, but to prove that Lawrence had been deceptive and that

Brady12 or Giglio13 material in the results of the polygraph, which

was administered to Lawrence to enable him to enter the Witness

Protection Program. Counsel for Tokars then asked for the

questions that were asked of Lawrence, and the government disclosed

these two questions: "Do you have any specific plans to locate or

harm another witness in the program? Do you have any specific

plans to intimidate or threaten another witness in the program?"

R64-2561. In its brief, the government concedes that one could

reasonably infer from its disclosure of only two questions that in

fact only two questions were asked. On cross-examination, Lawrence

indicated that he was asked six or seven questions and in response

to questions gave the impression that he was polygraphed regarding

the truthfulness of his testimony about Tokars. Tokars charged

that Lawrence was lying about the number of questions but then

discovered that there were in fact more than two questions. The

district court ordered the government to produce the entire list of

questions. The court concluded that it had no opinion as to

whether Lawrence had intentionally lied; however, the court

expressed concern over the matter of giving the jury the impression

that Lawrence had been polygraphed regarding his testimony about

Tokars. The district court resolved the issue by allowing the

government, over objection, to read a statement to the jury

Tokars was so informed. Thus, we see no error in the admission

of the polygraph exam. However, even assuming that the admission

was erroneous, any error was harmless.

12

Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d

215 (1963).

13

Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31

L.Ed.2d 104 (1972).

confirming that Lawrence was given a polygraph exam before entering

the Witness Protection Program, but which stated that he was never

asked any questions regarding whether his testimony at trial was or

would be truthful.14 We are persuaded that the district court

corrected any possible error by allowing the government to inform

the jury that Lawrence was not questioned during the polygraph

examination about his testimony regarding Tokars.15

E. Opportunity to Cross-Examine Lawrence

Tokars claims that he was "deprived of a thorough

cross-examination of Lawrence due to the quashing of his

subpoenas." Tokars' Br. at 23-25. The State of Georgia provided

Lawrence with discovery, which included Tokars's statements,

witness statements, and various records. Tokars sought pre-trial

production of these documents pursuant to a Federal Rule of

Criminal Procedure 17(c) subpoena. The district court found that

the State of Georgia provided Tokars with all discovery materials

that were provided to counsel for Lawrence and quashed the

subpoena. The district court gave additional reasons for its

14

The government stated to the jury:

On October 27, 1993, in connection with Mr. Lawrence's

entry into the Bureau of Prisons Witness Protection

Program, he was given a polygraph examination. He was

never asked, nor did he ever answer any questions as to

whether his testimony in any trial was or would be

truthful. He was asked whether, in answering the

questions by the polygrapher, would he answer the

questions truthfully.

R71-4196.

15

We note that during closing argument, Tokars's counsel

argued that Lawrence lied about the questions he was asked in the

polygraph examination.

decision to quash the subpoena, but did so in a sealed order

because the discussion revealed Tokars's theory of defense. After

reviewing the district court's sealed order and the record

pertaining to this issue, we conclude that the district court's

factual findings were not clearly erroneous and that the district

court did not abuse its discretion. See United States v.

Silverman, 745 F.2d 1386, 1397 (11th Cir.1984).

F. Evidentiary Issues

1. Silver's testimony

Tokars claims that the district court erred in allowing Murray

Silver to testify about Tokars's request that Silver solicit drug

dealers for money laundering services and in admitting articles

about money laundering authored by Tokars as extrinsic act evidence

admissible under Federal Rule of Evidence 404(b). In denying the

defense motion in limine, the district court stated that the

articles would be relevant to show specific intent. After Silver's

direct examination, the district court gave a limiting instruction

at the request of defense counsel.

Extrinsic act evidence is admissible if the evidence is

relevant to an issue other than the defendant's character and if

the probative value of the evidence is not substantially outweighed

by its potential to prejudice the defendant. See United States v.

Costa, 947 F.2d 919, 925 (11th Cir.1991), cert. denied, 504 U.S.

946, 112 S.Ct. 2289, 119 L.Ed.2d 213, and cert. denied, 506 U.S.

929, 113 S.Ct. 360, 121 L.Ed.2d 272 (1992). In addition, the

district court must provide a limiting instruction, as was the case

here. See id. Although Tokars claims that he never denied "know

how," he never entered into any written stipulation removing intent

as an issue for the jury. See id. ("Because the defendants did

not affirmatively take the issue of intent out of contention by

stipulating that they possessed the requisite intent, the district

court did not abuse its discretion in admitting evidence of

unindicted extrinsic bad acts."). Based on our review of the

record, we conclude that the district court did not abuse its

discretion because the evidence regarding money laundering was

relevant to the issue of intent and its probative value was not

substantially outweighed by the risk of undue prejudice to the

defendant.

2. Tax evasion

Tokars argues that the district court erred in admitting

extrinsic evidence of his alleged tax evasion. Based on our review

of the record, however, we conclude that the district court did not

abuse its discretion in this matter. In addition, assuming

arguendo that the district court erred, any error would be

harmless.

3. Murder scene photograph

Tokars contends that the crime scene photograph of Sara's

murder should not have been admitted because its probative value

was outweighed by its prejudicial effect in violation of Federal

Rule of Evidence 403. We have reviewed the photograph and conclude

that the photograph of the murder victim was extremely relevant to

the crimes charged. Thus, this claim is meritless.

4. Homicides other than Sara

The defendants argue that evidence of the murders of Dante

Snowden ("Snowden") and Ronnie Smith should not have been admitted.

The district court provided a limiting instruction that the

evidence was admitted for the limited purpose of explaining the

Detroit Police's determination that Ferguson was a suspect in

Snowden's murder. These murders were relevant to explain why

Ferguson and Cline left Detroit. Tokars and Mason also object to

the admission of the murders of Cline and Brown's brother Darryl

Hill. The evidence concerning these murders was relevant to

present a complete account of the story of the enterprise. See

United States v. Fortenberry, 971 F.2d 717, 721 (11th Cir.1992),

cert. denied, 506 U.S. 1068, 113 S.Ct. 1020, 122 L.Ed.2d 166

(1993). Moreover, the testimony did not substantially prejudice

the defendants. Accordingly, we conclude that the district court

did not abuse its discretion.

5. Testimony of Agents Twibell and Davis

Tokars objects to the admission of testimony by agents

Twibell and Davis regarding out-of-court statements made by Billy

Carter and Greg Johnson. The government argues that Carter and

Johnson's statements were admissible as co-conspirator statements

under Federal Rule of Evidence 801(d)(2)(E). Tokars argues that

there was no existing conspiracy at the time of the statements.

Co-conspirator statements are admissible so long as the conspiracy

existed, the declarant and the defendant were involved in the

conspiracy, and the statement was made in the furtherance of the

conspiracy. United States v. Van Hemelryck, 945 F.2d 1493, 1497-98

(11th Cir.1991). We review the district court's factual

determinations that the conspiracy existed and that the statement

was made in furtherance of that conspiracy under the clearly

erroneous standard. See United States v. Allison, 908 F.2d 1531,

1533-34 (11th Cir.1990), cert. denied, 500 U.S. 904, 111 S.Ct.

1681, 114 L.Ed.2d 77 (1991). Based on our review of the record, we

see no error in the admission of this evidence. Moreover, even

assuming that the district court erred, any error was harmless.

6. Birth certificates

Tokars argues that the district court re-opened the record in

order to allow the government to admit birth certificates to

establish the birth dates of Lawrence and Rower. However, the

government argues that the district court sustained a defense

hearsay objection to admitting the birth dates through a witness

and that the government requested a one-day continuance to obtain

the birth certificates. Based on our review of the record,

Tokars's argument is meritless.

7. Cobb County police records

Tokars argues that the admission through a Cobb County police

officer of the contents of a sealed envelope—police reports,

handwritten notes, and a business card—was error. Our review of

the record leads us to conclude that the district court committed

no error. In addition, if any error was committed, such error was

harmless.16

G. Jury Charge to Count V

Tokars claims that the district court's jury charge regarding

16

We conclude that Tokars's argument regarding the district

court's denial of his motion to suppress evidence seized from his

residence is meritless in light of his voluntary consent to the

search.

Count V, the murder-for-hire count, was modified by the court

without notice, and thus created a variance from the evidence

presented at trial. Tokars contends that the parties and the court

agreed to a jury instruction that would require the jury to make a

unanimous finding as to each of two phone calls made in furtherance

of the murder-for-hire scheme. During the charge conference, the

government consented to Tokars's requested instruction, but the

court, refusing to get involved in a discussion of the evidence

with the jury, concerned itself with clarifying the interstate

element of the offense. As previously mentioned, we review a

district court's refusal to give a requested charge for abuse of

discretion. Maduno, 40 F.3d at 1215. Based on our review of the

record, we see no abuse of discretion concerning this issue.

H. Sufficiency of the Evidence

Tokars and Mason argue that there was insufficient evidence to

support their convictions and that the district court should thus

have granted their motions for acquittal. Whether there was

sufficient evidence to support a conviction is a question of law

subject to de novo review by this court. Keller, 916 F.2d at 632.

This court views the evidence in the light most favorable to the

government, with all reasonable inferences and credibility choices

made in the government's favor. Id. Our review of the record

persuades us that there was sufficient evidence to support the

convictions of Tokars and Mason. Thus, we will address only some

of the defendants' contentions.

Count I charged a racketeering conspiracy involving a

narcotics money laundering enterprise. Mason and Tokars claim that

the evidence did not prove that there was one RICO enterprise or

conspiracy, arguing that at best, the record shows the existence of

two conspiracies—one involving Cline and the other involving Brown.

Tokars's involvement consisted of his role in laundering cocaine

money and engaging in acts of violence. Mason participated in the

enterprise by laundering cocaine proceeds, distributing cocaine,

and aiding and abetting violence. "Whether the evidence supports

finding a single conspiracy is a question of fact for the jury."

United States v. Valera, 845 F.2d 923, 928 (11th Cir.1988), cert.

denied, 490 U.S. 1046, 109 S.Ct. 1953, 104 L.Ed.2d 422 (1989)

(citation omitted). Our review of the record persuades us that a

reasonable jury could conclude that one RICO conspiracy or

enterprise existed.

Count VI charged Tokars, Mason, Ferguson, Hudson, and

unindicted co-conspirators with a conspiracy to possess with intent

to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and

846. Tokars argues that the government's contention that his money

laundering connected him to the drug conspiracy is erroneous.

Money launderers, however, play an integral and important role in

a drug enterprise. See United States v. Perez, 922 F.2d 782, 785-

86 (11th Cir.), cert. denied, 501 U.S. 1223, 111 S.Ct. 2840, 115

L.Ed.2d 1009 (1991).17 Our thorough review of the record persuades

us that there was sufficient evidence of Tokars's and Mason's

involvement in the cocaine conspiracy to support their convictions.

17

In addition, by testifying, Tokars bolstered the

government's case because the jury was entitled to disbelieve his

testimony. See United States v. Brown, 53 F.3d 312, 314 (11th

Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 909, 133

L.Ed.2d 841 (1996).

Pursuant to 18 U.S.C. § 1956(a)(1)(B)(i), it is "illegal to

knowingly enter into a financial transaction involving the proceeds

of a "specified unlawful activity' with the intent to conceal or

disguise the nature, location, source, ownership, or control of

those proceeds." United States v. Miller, 22 F.3d 1075, 1079 (11th

Cir.1994). Mason was convicted of four substantive violations of

§§ 1956(a)(1)(B)(i) and 2 as charged in Counts VIII, IX, X, and XI.

Tokars was convicted of Counts X and XI. There was more than ample

testimony to prove that Mason knew that the money invested in the

nightclubs was drug proceeds. Thus, there was sufficient evidence

regarding Counts VIII, IX, and X. Likewise, we conclude there was

sufficient evidence of Tokars's knowledge of and involvement in the

money laundering activities. Count XI involved Brown's purchase of

a Lexus for his partner, Mason.18 Tokars's culpability was premised

on a Pinkerton19 theory. Mason's culpability was premised on his

aiding and abetting Brown in the laundering of cocaine proceeds.

We are persuaded that the evidence is sufficient to sustain the

money laundering convictions.

Count XIII charged the defendants with conspiracy to launder

money in violation of 18 U.S.C. § 1956(g). Mason argues that there

was no money laundering conspiracy. He also claims that even

assuming that there was a conspiracy, there were multiple

18

Mason contends that a prejudicial variance occurred

because the indictment indicated that the transaction transpired

in December of 1991 but testimony at trial indicated purchases

before and after December. However, Mason fails to explain how

this prejudices him. Accordingly, we see no error.

19

Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180,

90 L.Ed. 1489 (1946).

conspiracies, or if there was only one conspiracy, that he was not

a member. Tokars claims that the evidence must show that the

conspiracy commenced after October 28, 1992, in order to avoid an

ex post facto problem and that the pled overt acts are insufficient

to prove a conspiracy. Our review of the record persuades us that

there was sufficient evidence to support these convictions.

Tokars argues that the superseding indictment changed the

charged offenses of murder in Count III to those of kidnaping, but

that, despite this redaction, the government focused on the offense

of murder, disregarding that the offense to be proved was

kidnaping. Further, Tokars contends that the government failed to

prove that Tokars had any involvement in kidnaping Sara. Despite

Tokars's protestations, Sara's kidnaping was a reasonably

foreseeable consequence of placing a contract "hit" on Sara's life.

Tokars and Lawrence were co-conspirators in a cocaine conspiracy;

therefore, it was reasonably foreseeable that originally unintended

acts of violence might occur. See United States v. Broadwell, 870

F.2d 594, 603-04 (11th Cir.) (kidnaping reasonably foreseeable in

a drug conspiracy), cert. denied, 493 U.S. 840, 110 S.Ct. 125, 107

L.Ed.2d 85 (1989); United States v. Alvarez, 755 F.2d 830, 847-49

& n. 21 (11th Cir.) (murder reasonably foreseeable in a drug

conspiracy), cert. denied, 474 U.S. 905, 106 S.Ct. 274, 88 L.Ed.2d

235 (1985), and cert. denied, 482 U.S. 908, 107 S.Ct. 2489, 96

L.Ed.2d 380 (1987). Based on our review of the record, we conclude

that there was sufficient evidence to support the conviction on

this count.20

I. Jury Finding on Racketeering Act Nine

Tokars claims that the district court erred by allowing the

jury to find that he committed Racketeering Act Nine (Count XI),

under the vicarious co-conspirator liability theory of Pinkerton.

Tokars essentially argues that one must actually and not

derivatively possess the requisite specific intent to commit an

underlying predicate act in a RICO prosecution in order for that

predicate act to qualify as an "act of racketeering" for purposes

of 18 U.S.C. § 1961(5). However, we need not reach the merits of

this argument. Any error would be harmless, because the jury

specifically found that Tokars committed three other racketeering

acts that constituted a pattern of racketeering activity. Thus,

the two racketeering acts necessary to support the RICO conviction

still remained. See 18 U.S.C. § 1961(5).

J. Limitation of Cross-Examination of Ambrusko

During the cross-examination of Ambrusko, Tokars attempted to

show Ambrusko's bias on her part by questioning her about evidence

of her bad relationship with Tokars. The district court granted

the government's motion in limine precluding Tokars from examining

Ambrusko regarding certain evidence. The government contends that

the district court did not err in excluding the evidence because it

was impermissible bad character evidence which did not impeach the

credibility of the witness. Because Ambrusko's bias against Tokars

20

Mason also argues that the court erred in denying his

motion for a new trial based on insufficiency of the evidence.

However, based upon the above discussion, Mason's argument is

meritless.

was sufficiently established,21 we hold that the district court did

not abuse its discretion in limiting the scope of

cross-examination. In addition, assuming that the district court

erroneously excluded such evidence, any error was harmless.

K. Prosecutorial Misconduct

Mason alleges that the court erred in denying his motions for

a mistrial based on prosecutorial misconduct. During opening

statements the government suggested that the phrase "wolves in

sheep's clothing," R57-621-22, would play a role in the case

because the jury would be called upon to determine if the

defendants were wolves in sheep's clothing or merely sheep. In

addition, the government used very vivid language to describe the

torture of Michael Jones, relaying that Ferguson treated Jones

"like a piece of meat." R57-634. Tokars and Mason also allege

that prosecutorial misconduct occurred during closing argument when

the government appealed to the conscience of the community and made

religious references.22 Although the prosecutors may have gone a

21

Ambrusko admitted during cross-examination that she and

Tokars did not share a good relationship. She also revealed that

she did not implicate Tokars until five days after her initial

interview with the police, and she admitted that she had been

contacted by the media and had been approached about a book deal.

22

The objectionable portion of the closing argument reads as

follows:

He is a wolf in sheep's clothing, and you know it.

And so is James Mason. Wolves in sheep's clothing,

they were masquerading and parading in our society as

pillars of the community, and this is why we have so

many problems in dealing with drugs. This is why we

cannot educate our children to have respect when

members of the community who are pillars are aiding and

abetting the sales of this product that is destroying

our communities whether they are in public housing or

bit overboard by bringing in two of the Ten Commandments and the

public policy against drugs, in light of the monumental evidence

against Tokars and Mason, we conclude that the prosecutor's remarks

did not prejudice the substantial rights of the defendants. See

United States v. Blakey, 14 F.3d 1557, 1560 (11th Cir.1994).

L. Jury Charges—Tokars's Theory of the Case

Tokars contends that the district court erred in refusing to

give his "theory of the case" charges and in giving a willful

blindness instruction.23 The court originally rejected all of

Tokars's so-called theory-of-the-case charges because they were

argumentative of the evidence. Upon reconsideration, the court

decided to give its own version of the first charge regarding

foreign accounts information on an IRS 1040 tax return. Our review

of the record persuades us that the district court did not abuse

its discretion.

Tokars also argues that the district court erred in giving

the willful blindness charge. Even if there is no evidence of

whether they are in upscale neighborhoods.

He has violated laws of ages. Thou shalt not

covet. Thou shalt not kill.

He has violated the law of the United States.

James Mason has violated the law of the United States.

R76-5375.

23

Tokars's requested charges included: (1) a charge

regarding IRS form 8300, a statement of law regarding disclosure

of "Foreign Accounts" on a 1040 tax return, and a charge that

routine legal service does not constitute directing the affairs

of an enterprise; (2) a charge relating to the Canons of Ethics

requiring an attorney to represent his client zealously; and (3)

a charge regarding the disclosure obligation with respect to

foreign investments on a 1040 tax return.

deliberate ignorance, reversal is not required if there is

overwhelming evidence of actual knowledge. See United States v.

Stone, 9 F.3d 934, 937 (11th Cir.1993), cert. denied, --- U.S. ----

, 115 S.Ct. 111, 130 L.Ed.2d 58 (1994). Our review of the record

convinces us that there was overwhelming evidence that Tokars had

actual knowledge. Therefore, we see no abuse of discretion.

M. Due Process and Comments on Dismissed Charges

Tokars contends that the district court erred in refusing to

give his requested charge informing the jury that Counts VIII and

IX of the indictment had been dismissed and in refusing his request

that the court tell the jury what specific evidence pertaining to

these two counts should not be held against Tokars. The district

court refused to give the charges and instructed Tokars's counsel

not to mention the dismissed counts to the jury. However, the

district court provided the jury with a redacted indictment. The

district court correctly concluded that even if the counts were

dismissed, the jury could still consider evidence of those crimes

as evidence of the existence of the enterprise. See United States

v. Weiner, 3 F.3d 17, 22 (1st Cir.1993) (evidence of dismissed

charges relevant to remaining RICO charges against defendant);

United States v. Gonzalez, 921 F.2d 1530, 1546-47 (11th Cir.)

(testimony regarding uncharged acts permissible to establish

continuity of RICO entity), cert. denied, 502 U.S. 860, 112 S.Ct.

178, 116 L.Ed.2d 140, and cert. denied, 502 U.S. 827, 112 S.Ct. 96,

116 L.Ed.2d 68 (1991). Accordingly, there was no abuse of

discretion.

N. Mason's Sentence

Mason argues that the district court erred in calculating his

base offense level by converting the $160,000 laundered into a

quantity of cocaine. The government argues that note 12 to

U.S.S.G. § 2D1.1 allows a court making a drug approximation to

consider the price generally obtained for the drug.

Application note 12 to U.S.S.G. § 2D1.1 states: "Where there

is no drug seizure or the amount seized does not reflect the scale

of the offense, the court shall approximate the quantity of the

controlled substance. In making this determination, the court may

consider, for example, the price generally obtained for the

controlled substance...." Several other circuits have approved the

procedure of converting cash to the amount of cocaine necessary to

generate that amount of money. See United States v. Ferguson, 35

F.3d 327, 333 (7th Cir.1994) (no error in estimating the amount of

cocaine needed to generate the amount of cash laundered), cert.

denied, --- U.S. ----, 115 S.Ct. 1832, 131 L.Ed.2d 752 (1995);

United States v. Rios, 22 F.3d 1024, 1027-28 (10th Cir.1994) (when

cash seized and either no drug is seized or the amount seized does

not reflect the scale of the offense, conversion of cash to

quantity of drugs appropriate so long as cash is attributable to

drug sales that are a part of same course of conduct or common

scheme of conviction); United States v. Rivera, 6 F.3d 431, 446

(7th Cir.1993) (approving conversion of seized currency to cocaine

equivalent as long as there is proof of the connection between the

money seized and the drug-related activity), cert. denied, 510 U.S.

1130, 114 S.Ct. 1098, 127 L.Ed.2d 411 (1994); United States v.

Jackson, 3 F.3d 506, 511 (1st Cir.1993) (same); United States v.

Hicks, 948 F.2d 877, 882 (4th Cir.1991) (same); United States v.

Stephenson, 924 F.2d 753, 764-65 (8th Cir.) (converting seized cash

to equivalent drug amount), cert. denied, 502 U.S. 813, 112 S.Ct.

63, 116 L.Ed.2d 39, and cert. denied, 502 U.S. 916, 112 S.Ct. 321,

116 L.Ed.2d 262 (1991). But see United States v. Gonzalez-Sanchez,

953 F.2d 1184, 1187 (9th Cir.1992) (conversion improper where no

factual finding that money was connected to the drug business). We

are persuaded by our sister circuits that hold that money

attributable to the drug transactions may be converted to the

equivalent amount of drugs for purposes of determining the drug

quantity.

Mason expresses the concern that in most cases there is

corroborative evidence of the amount of drugs involved, which he

claims was not available in this case. Admittedly, only one of the

above cases addresses a money laundering situation. However, the

evidence here clearly showed that Mason was involved in laundering

drug money. Consequently, it was reasonable for the district court

to convert the laundered money to an equivalent amount of cocaine.

We review the district court's factual determination regarding the

quantity of drugs used to establish a base offense level for clear

error. United States v. Taffe, 36 F.3d at 1050. We conclude that

the district court did not clearly err. Furthermore, the district

court was extremely cautious and found a higher conversion figure

of $25,000 a fairer standard than the $20,000 conversion figure

suggested in the presentence report.

Mason also complains that the district court failed to make

the necessary factual findings to support the quantity of cocaine

attributed to him as required by United States v. Ismond, 993 F.2d

1498 (11th Cir.1993). However, Ismond is not applicable to this

case, because it dealt with the determination of a defendant's

liability for the acts of others. Mason was held accountable only

for cocaine money attributable to him. Nevertheless, even if

Ismond did control, we hold that the district court made sufficient

factual findings regarding the extent of Mason's involvement to

support its calculation of the quantity of drugs involved.

Finally, Mason argues that the district court should have

sentenced him for Count VI and Racketeering Act Two using U.S.S.G.

§ 2S1.1 (laundering of monetary instruments) instead of U.S.S.G. §

2D1.1 (drug offenses). Mason contends that since no guideline has

been expressly promulgated for defendants convicted of a drug

conspiracy based solely on money laundering activity, he should

have been sentenced under the most analogous offense guideline.

However, there is a guideline expressly promulgated on this issue.

Mason was convicted of conspiring to violate 21 U.S.C. § 841.

Section 1B1.2(a) directs a district court that is deciding the

applicable guideline to "[d]etermine the offense guideline section

in Chapter Two (Offense Conduct) most applicable to the offense of

conviction." Application Note 1 to § 1B1.2 refers to the Statutory

Index, and the Statutory Index for 21 U.S.C. § 846 refers to, among

other sections, U.S.S.G. § 2D1.1. Section 2D1.1 itself contains

the word "conspiracy" in its heading. The district court thus did

not err in applying § 2D1.1 when sentencing Mason.

V. CONCLUSION

All of the issues presented in this appeal are without merit.

The defendants received a fundamentally fair trial which is all the

Constitution requires. Accordingly, we affirm the defendants'

convictions and Mason's sentence in all respects.

AFFIRMED.