United States v. Ashley Andrews

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______

No. 11-1239

______

UNITED STATES OF AMERICA

v.

ASHLEY ANDREWS,

Appellant

______

On Appeal from the District Court

of the Virgin Islands – Appellate Division

Division of St. Thomas

(D.C. No. 3-04-cr-00038-002)

District Judge: Honorable Juan R. Sánchez

______

Argued December 5, 2011

Before: FISHER, GREENAWAY, JR.

and ROTH, Circuit Judges.

(Filed: June 4, 2012)

Denise M. Francois (Argued)

Hodge & Francois

1340 Taarneberg

St. Thomas, VI 00802

Counsel for Appellant

Kim L. Chisholm

Office of United States Attorney

5500 Veterans Building, Suite 260

United States Courthouse

Charlotte Amalie, St. Thomas, VI 00802-6924

Paul A. Murphy (Argued)

Office of United States Attorney

1108 King Street, Suite 201

Christiansted, VI 00820

______

OPINION OF THE COURT

______

FISHER, Circuit Judge.

Ashley Andrews (“Andrews”) was convicted of one

count of conspiracy, in violation of 18 U.S.C. § 371, four

counts of wire fraud, in violation of 18 U.S.C. §§ 1343, 1346,

and 2, one count of program fraud, in violation of 18 U.S.C.

§§ 666(a)(1)(B) and 2, one count of making a false claim

2

upon the Government of the Virgin Islands, in violation of 14

V.I.C. § 843(4), and one count of inducing a conflict of

interest, in violation of 3 V.I.C. §§ 1102, 1103, and 1107.

Andrews appeals his judgment of conviction and sentence.

For the reasons set forth below, we will affirm the judgment

of conviction, vacate the judgment of sentence on Counts One

through Six, and remand to the District Court for

resentencing.

I.

In 1985, the Government of the Virgin Islands (“GVI”)

and the United States entered into a consent decree in the

District Court of the Virgin Islands, pursuant to which the

GVI was to make improvements to its sewage system. For

over fifteen years, the GVI failed to make the necessary

repairs. In October 2001, the District Court held a hearing,

requiring the GVI to show cause why it should not be held in

contempt for failure to comply with the consent decree.

Around this time, Ohanio Harris (“Harris”), who, in his

capacity as Special Assistant to the Governor of the Virgin

Islands, was responsible for handling issues regarding the

sewage system, began to promote Andrews as a contractor

who could repair the sewage system. Andrews had created a

construction company called Global Resources Management

(“GRM”) in 2001. GRM, however, could not obtain the

sewer repair contract without a Virgin Islands business

license. Because a “tax clearance” letter was required before

such a license could be issued, and Andrews could not obtain

a “tax clearance” letter on his own, when GRM applied for

the license in late February 2002, Harris was listed as the

president of GRM on the application. Prior to February 2002,

3

Andrews had served as president of GRM, and on or about

March 8, 2002, Andrews again replaced Harris as president of

GRM.

On March 1, 2002, Harris and Andrews traveled to

Tortola, British Virgin Islands to meet with representatives of

the Berger Group, an American engineering firm. At this

meeting, Harris, who was introduced as the Special Assistant

to the Governor, vouched for Andrews, stating that Andrews

had organized local contractors to work as subcontractors for

large firms. Harris also indicated that he could arrange a

meeting with the Governor to discuss awarding the sewage

system contract to the Berger Group. Harris testified that

after this meeting, he and Andrews went to a hotel, and

Andrews paid him $2,500 in cash. The payment, Harris

explained, was “for what [he] ha[d] done for [Andrews].”

Harris deposited the check into his bank account and then

used the money to make a mortgage payment on his home.

Around this time, Harris began to hold himself out as a

liaison between GRM and Andrews, and the Virgin Islands

Department of Public Works (“DPW”). Harris arranged a

meeting between the Governor and Andrews to discuss the

sewer repair work. After this meeting, Andrews asked Harris

to help him get the contract, and Harris replied that he would

“see what [he] c[ould] do.” Harris testified that in exchange

for his assistance in obtaining the contract, Andrews agreed

that he would hire Harris to work at GRM after Harris retired

from government service. On March 24, 2002, Harris again

traveled to Tortola to meet with Andrews and representatives

from the Berger Group. Harris testified that he told Andrews

that he expected to be compensated for whatever assistance

4

he provided, and Andrews assured him that he would be paid.

Harris subsequently set up additional meetings between

Andrews, the Governor, and other GVI officials. At some

point, GRM submitted a $3.6 million bid for the sewer repair

work. The Governor testified that Harris told him “that

[GRM] was a company that we should look at and see if they

can do the job.” The sewage system repair contract was not

advertised, and there were no other contractors bidding for

the project, despite the fact that, even in emergency

situations, there were generally three bidders. Wayne

Callwood (“Callwood”), the Commissioner of DPW, testified

that “[b]asically, this project was sole-sourced to GRM.”

The GVI tentatively accepted GRM’s bid in October

2002, on the condition that GRM procured a performance

bond and a payment bond, each for 100 percent of the

contract price ($3.6 million). On October 7, Campbell

Malone (“Malone”), a Certified Public Accountant acting on

behalf of GRM, contacted Alan Feuerstein (“Feuerstein”), a

New York attorney, for assistance in obtaining the bonds.

Feuerstein put Malone in touch with Wayne Price (“Price”), a

surety bond manager at Melwain Enterprises, in Long Island,

New York. On October 10, Price faxed Malone, who was in

the Virgin Islands, a collection of bond application

paperwork. Price sent additional bond-related paperwork to

Malone on October 11 (fax) and October 17 (email).

On October 18, Malone emailed Price a completed

bond application package, which was signed by Andrews.

This application contained numerous false representations,

including statements that: (1) Andrews was divorced;

(2) Andrews owned a home valued at $720,000, when, in

5

fact, his daughters owned the home; (3) Andrews had a one-

third interest in a $150,000 property located at 113 Estate

Grove Place, St. Croix; (4) Andrews had $7,000 in cash on

deposit at the Banco Popular as of September 30, 2002; and

(5) Andrews had stock in GRM worth $600,000. In the

“work on hand” section of the application, which asked for a

list of all of the contracts that GRM had secured but not yet

completed, Malone and Andrews listed the following five

“contracts” worth a total of $26 million: (1) a professional

services contract worth $1.5 million; (2) a contract with the

GVI for sewage system repair in the amount of $7.5 million,

twice the price of the actual contract; (3) a construction

management services contract for Peebles Hospital in the

British Virgin Islands valued at $1 million; (4) a development

contract worth $12 million; and (5) “work on hand” for

processing municipal garbage. At trial, the Government

proved that none of these contracts had been obtained.

Additionally, the bond application falsely stated that:

(1) GRM and its owners were not involved in any litigation,

whereas Andrews was in the midst of a lawsuit related to

another company that he owned; (2) GRM had a $350,000

“investment” in an affiliate, which in reality was worthless;

and (3) that Robert Jarnis was a director of GRM, when he

actually worked for the Berger Group in Massachusetts.

GRM had difficulty obtaining the bonds without a

construction contract signed by the Governor. Accordingly,

the Virgin Islands Attorney General advised the Governor to

sign the contract, on the condition that no Notice to Proceed

would be issued by the Department of Property and

Procurement (“P&P”) until GRM successfully obtained the

6

bonds. The Governor signed the sewer system repair contract

on December 20, 2002.

On January 23, 2003, the United States filed a motion

to enjoin the enforcement of the contract. On January 28,

before GRM was able to obtain the required bonds and before

any Notice to Proceed was issued, the Governor terminated

the contract. The GVI subsequently asked the District Court

to remove the injunction, but the District Court refused, and

enjoined the GVI from re-contracting with GRM. United

States v. Gov’t of Virgin Islands, 248 F. Supp. 2d 420 (D.V.I.

2003), affirmed in part and vacated in part by United States

v. Gov’t of Virgin Islands, 363 F.3d 276 (3d Cir. 2004).

On June 12, 2003, Andrews submitted to the GVI a

$748,304.92 post-termination claim, seeking payment for the

time and resources GRM had expended preparing its bid.

This claim included numerous false statements and duplicate

charges. Moreover, as evidence adduced at trial established,

Andrews’s entire scheme was fraudulent. Callwood testified

that “to the best of [his] knowledge, [GRM was not] capable

of doing construction work.”

Andrews, Harris, and Malone were indicted on

February 20, 2004. The grand jury returned a Second

Superseding Indictment (“Second Superseding Indictment” or

“Indictment”) on June 10, 2004, which charged Andrews with

one count of conspiracy, in violation of 18 U.S.C. § 371

(Count One), four counts of wire fraud, in violation of 18

U.S.C. §§ 1343, 1346, and 2 (Counts Two through Five), one

count of program fraud, in violation of 18 U.S.C.

§§ 666(a)(1)(B) and 2 (Count Six), one count of fraudulent

7

claims upon the Government of the Virgin Islands, in

violation of 14 V.I.C. § 843(4) (Count Seven), and one count

of inducing a conflict of interest, in violation of 3 V.I.C.

§§ 1102, 1103, and 1107 (Count Eight). Harris pled guilty,

and Malone and Andrews went to trial. They were initially

tried on the charges in the Second Superseding Indictment in

May 2006, but the jury was unable to reach a verdict. They

were re-tried beginning in August 2006, and on September

20, 2006, the jury convicted Andrews on all charges. On

January 19, 2011, the District Court sentenced Andrews to

151 months’ imprisonment on Counts One through Six, to be

followed by three years of supervised release. 1 The District

Court also imposed a $17,500 fine. The District Court

sentenced Andrews to two years’ imprisonment on Counts

Seven and Eight, to be served concurrently with the sentence

on Counts One through Six. Andrews filed a timely notice of

appeal. 2

1

It is not clear from the record why nearly five years

passed between Andrews’s conviction and the imposition of

his sentence.

2

Andrews first filed his notice of appeal on January

26, 2011, but the District Court did not enter a written

judgment until March 3, 2011. Pursuant to Federal Rule of

Appellate Procedure 4(b)(2), we treat the notice of appeal as

filed on the date that the District Court entered its judgment.

8

On appeal, Andrews raises three arguments. First, he

argues that after the Supreme Court’s decision in Skilling v.

United States, 130 S. Ct. 2896 (2010), the District Court’s

instruction to the jury on honest services fraud under 18

U.S.C. § 1346 was erroneous, and prejudice from the error

spilled over to the other charges against him. Second, he

contends that the evidence was insufficient to sustain his

convictions for wire fraud (Counts Two through Five),

program fraud (Count Six), and inducing a conflict of interest

(Count Eight). Finally, Andrews maintains that the District

Court improperly instructed the jury on Count Seven. 3

In April 2011, Andrews filed a motion for release

pending appeal, in which he argued that his appeal raised

several substantial questions of law, likely to result in reversal

of his conviction, a new trial, a noncustodial sentence, or a

shorter term of imprisonment. On September 6, 2011, the

District Court denied his motion. United States v. Andrews,

No. 04-38-2, 2011 WL 3903229, at *5 (D.V.I. Sept. 6, 2011).

3

The Government noted in its brief that the District

Court erred in imposing a “general sentence” of 151 months’

imprisonment on Counts One through Six. Andrews did not

properly raise this issue in his opening brief, and ordinarily

we would consider it waived. United States v. Albertson, 645

F.3d 191, 195 (3d Cir. 2005); see Fed. R. App. P. 28(a)(5);

Third Circuit L.A.P. 28.1(a)(1). However, because we

believe that this case presents “extraordinary circumstances,”

we will consider the legality of the sentence imposed by the

District Court. See Albertson, 645 F.3d at 195.

9

II.

The District Court had jurisdiction under 48 U.S.C.

§ 1612 and 18 U.S.C. § 3231, and we have appellate

jurisdiction pursuant to 28 U.S.C. § 1291. Where there were

no legal grounds for challenging an instruction at the time it

was given, but such grounds have arisen, due to the

articulation of a new rule of law between the time of

conviction and the time of appeal, we review for plain error.

Johnson v. United States, 520 U.S. 461, 464-68 (1997);

United States v. West Indies Transp., Inc., 127 F.3d 299, 305

(3d Cir. 1997). Accordingly, we review Andrews’s challenge

to the honest services fraud portion of the jury instructions for

plain error. United States v. Riley, 621 F.3d 312, 321-22 (3d

10

Cir. 2010). 4 We also review his challenge to the jury

instruction on Count Seven for plain error. Under plain error

review, we may correct an error not raised at trial only if the

appellant demonstrates that: (1) there was an error; (2) the

error is clear or obvious; and (3) “the error ‘affected the

appellant’s substantial rights, which in the ordinary case

means’ it ‘affected the outcome of the district court

proceedings.’” Id. at 322 (quoting United States v. Marcus,

130 S. Ct. 2159, 2164 (2010)). “If all three conditions are

met, an appellate court may then exercise its discretion to

4

The Government argues that Andrews waived his

right to challenge the jury instructions on appeal because his

attorney objected to the initial instruction and persuaded the

District Court to provide a clarifying instruction. Under the

“invited error” doctrine, where a defendant makes a request in

favor of certain instructions, he waives the right to complain

of error in such instructions on appeal. United States v.

Ozcelik, 527 F.3d 88, 97 n.6 (3d Cir. 2008); United States v.

Console, 13 F.3d 641, 660 (3d Cir. 1993). However, we have

previously held that “[w]here a defendant submits proposed

jury instructions in reliance on current law” and while his

case is on direct appeal, the law is found to be constitutionally

problematic, we will not apply the “invited error” doctrine.

United States v. West Indies Transp., Inc., 127 F.3d 299, 305

(3d Cir. 1997). Instead, we review for plain error. Id. This is

consistent with the Supreme Court’s definition of waiver as

the “intentional relinquishment or abandonment of a known

right.” United States v. Olano, 507 U.S. 725, 733 (1993)

(emphasis added) (citations omitted).

11

notice a forfeited error, but only if . . . the error seriously

affect[s] the fairness, integrity, or public reputation of the

judicial proceedings.” Johnson, 520 U.S. at 467 (internal

marks and citations omitted). Andrews bears the burden of

showing that the error affected his substantial rights. United

States v. Olano, 507 U.S. 725, 734 (1993).

“In reviewing a challenge to the sufficiency of the

evidence, we apply a particularly deferential standard of

review.” United States v. Reyeros, 537 F.3d 270, 277 (3d Cir.

2008) (internal marks and citations omitted). We must “view

the evidence in the light most favorable to the Government

and sustain the verdict if any rational juror could have found

the elements of the crime beyond a reasonable doubt.” Id.

(internal marks and citation omitted).

III.

A.

Andrews first contends that references to honest

services fraud in the Second Superseding Indictment and in

the District Court’s instructions to the jury constituted

reversible error. We disagree. As we explain below,

although Skilling rendered the jury instructions improper, the

error did not affect Andrews’s substantial rights, and thus

does not require reversal.

To prove wire fraud, the Government must establish

“(1) the defendant’s knowing and willful participation in a

scheme or artifice to defraud, (2) with the specific intent to

defraud, and (3) the use of . . . interstate wire communications

12

in furtherance of the scheme.” United States v. Antico, 275

F.3d 245, 261 (3d Cir. 2001) (citation omitted), abrogated on

other grounds by Skilling v. United States, 130 S. Ct. 2896

(2010). Under 18 U.S.C. § 1346, “the term ‘scheme or

artifice to defraud’ includes a scheme or artifice to deprive

another of the intangible right of honest services.” In

Skilling, the Supreme Court considered the scope and

constitutionality of § 1346, and held that the statute

criminalizes only “fraudulent schemes to deprive another of

honest services through bribes or kickbacks.” 130 S. Ct. at

2928, 2931. The Court rejected an argument by the

government that § 1346 also covers “undisclosed self-dealing

by a public official . . . [such as] the taking of official action

by the [official] that furthers his own undisclosed financial

interests while purporting to act in the interests of those to

whom he owes a fiduciary duty.” Id. at 2932. Such an

interpretation, the Court explained, would render the statute

unconstitutionally vague. Id. at 2931. Accordingly, a district

court’s failure to limit honest services fraud to schemes

involving bribes or kickbacks now constitutes legal error.

Riley, 621 F.3d at 323. 5

5

Although Skilling v. United States, 130 S. Ct. 2896

(2010), was decided after Andrews’s trial and thus was

unavailable to the District Court, we apply it retroactively.

United States v. Riley, 621 F.3d 312, 320 n.9 (3d Cir. 2010);

see Griffith v. Kentucky, 479 U.S. 314, 328 (1987) (“[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

13

1.

The first step in our plain error analysis requires us to

determine whether references to honest services fraud in the

Indictment and in the District Court’s instructions constituted

Skilling error. 6 The Government concedes that the original

version of the Indictment explicitly charged Andrews with

honest services fraud. The conspiracy count (Count One)

alleged that Andrews “knowingly devise[d] a scheme and

artifice to defraud and for obtaining money and property and

to deprive another of the intangible right of honest services.”

The wire fraud counts (Counts Two through Five) alleged that

Andrews “deprive[d] another of the intangible right of honest

services” and “defraud[ed] the Virgin Islands government and

its residents of honest services.” The Government pursued

both theories at trial, and in his closing argument, the

prosecutor explained that the Government’s “alternative

theory [was that] the scheme and artifice to defraud included

the deprival of the Government and the people of the Virgin

Islands of the honest services of Ohanio Harris.”

However, the Government emphasizes that the

Indictment was redacted before the jury was charged, and all

references to “honest services” in the wire fraud counts were

the new rule constitutes a ‘clear break’ with the past.”).

6

Because Andrews was tried and convicted before

Skilling, there is no dispute that no instruction was given

limiting 18 U.S.C. § 1346 to bribes and kickbacks.

14

removed. 7 The Government further notes that the District

Court charged the jury consistent with the redacted version of

the Indictment; in explaining the elements of wire fraud to the

jury, the District Court did not mention “honest services,” and

stated that the first element of the wire fraud counts required

proof “[t]hat the defendant knowingly devised or participated

in a scheme to defraud, or to obtain money or property by

materially false or fraudulent pretenses, representations,

promises or omissions.” (emphasis added). Accordingly, the

Government argues that Andrews was charged only with

tangible rights wire fraud, that is, a scheme or artifice to

fraudulently obtain money or property from the GVI, and

thus, there was no Skilling error. We disagree.

Although the District Court may have intended to

narrow the Indictment to remove the honest services fraud

theory, there were sufficient references to “honest services” in

the redacted version of the Indictment and in the District

Court’s jury instructions to lead a jury to believe that

Andrews was charged with honest services fraud. First, the

“Introduction” section of the redacted Indictment stated that

“Ohanio Harris had a duty to uphold the laws of the United

States and the Virgin Islands; and to provide honest services

7

On September 15, 2006, the District Court asked the

Government to provide a redacted copy of the Indictment, but

it is unclear from the record why the honest services theory

was removed. The District Court told the jury simply that

“[the Indictment] says ‘redacted’ on it. That just means it’s

something that I have done in order to make this read

consistent with the evidence that’s in the box.”

15

to the people of the Virgin Islands.” (emphasis added).

Although the Government removed references to “honest

services” in the substantive portions of the conspiracy and

wire fraud counts, after describing the basis for the wire fraud

charges, the Indictment charged Andrews with the violation

of § 1346, the honest services fraud statute, when it stated,

“[a]ll in violation of Title 18, United States Code, Sections

1343, 1346 and 2.” (emphasis added). Second, in its verbal

charge to the jury, the District Court referred several times to

“honest services” and “honest services fraud.” During the

introductory portion of the instruction, the District Court

stated, “[t]he federal claims in this case . . . all relate to claims

of fraudulent intent or attempts to corruptly deprive the

Government of the Virgin Islands of the honest services of an

officer or employee of the Government of the Virgin Islands.”

When discussing the conspiracy charge, the District Court

explained that “[t]he claim is that Ohanio Harris and Ashley

Andrews conspired to commit honest services fraud or wire

fraud and to corruptly solicit, give and accept a thing of value

from an agent of the Virgin Islands Government.” Several

sentences later, the District Court reiterated that

“the government has to prove beyond a

reasonable doubt that the conspiracy or the

agreement or understanding described in the

indictment, to commit honest services fraud or

wire fraud, or to corruptly influence an agent of

the Virgin Islands Government, was formed by

two or more persons, and was existing at or

about the time of the charge in the indictment.”

16

Although the District Court made the last two statements

when discussing the conspiracy charge, a jury could certainly

have understood them as references to Counts Two through

Five, because the conspiracy count essentially charged the

defendants with conspiracy to commit Counts Two through

Five. 8 As such, we cannot agree with the Government that

there was no Skilling error in this case.

The Government points out that after Andrews’s

attorney objected to language in the initial instruction, the

District Court provided a clarifying instruction, explaining

that the jury was obligated to consider the charges as they

were presented in the Indictment. Because the substantive

allegations in the Indictment contained no references to

honest services fraud, the Government contends, this

additional instruction was sufficient to cure any error in the

District Court’s previous instructions. We disagree.

Although a narrowing instruction may be sufficient to

withdraw a previously-given instruction, see Whitney v. Horn,

280 F.3d 240, 255-56 (3d Cir. 2002), the additional

instruction provided here was not. The District Court did not

specifically address the honest services language that it had

used, nor did it mention anything about removing 18 U.S.C. §

1346, which was mentioned in the Indictment, from the jury’s

8

It is important to note that despite these references to

honest services fraud in the conspiracy instructions, Andrews

does not argue that Skilling invalidated his conspiracy

conviction, at least not directly. He does, however, raise a

prejudicial spillover challenge to the conspiracy count, which

we will address later.

17

consideration. Rather, the District Court issued the clarifying

instruction in response to an objection to its earlier instruction

that “[w]hat must be proved beyond a reasonable doubt is that

the defendant knowingly participated in the scheme to

defraud, a scheme that is substantially the same as the one

alleged in the indictment.” Andrews’s counsel argued that

the jury was required to find a scheme that was “exactly the

same” as the scheme charged in the Indictment, not one that

was “substantially the same.” The District Court agreed that

its language was potentially misleading, and re-instructed the

jury as follows:

“With respect to the wire fraud counts, I think I

charged you that the government had the burden

of proving beyond a reasonable doubt that the

scheme existed as it was charged in the

indictment, or a scheme that was substantially

the same as that charged in the indictment. And

I think you’ll see the words ‘substantially the

same,’ . . . in your instructions. . . . You are

instructed to disregard ‘substantially the same.’

What has to be proven is the scheme alleged in

the indictment. . . . It is, as I told you, the

government’s obligation to prove what is

charged in the indictment in Counts 2 through

5. It is that simple. The scheme there is to, as

alleged, to defraud the Government of the

Virgin Islands; not just a scheme, but a scheme

to defraud the Government of the Virgin

Islands, as charged in the indictment.”

18

Although this instruction clarified that the jury must

consider only the scheme charged in the Indictment, the

Indictment itself charged Andrews with violating 18 U.S.C. §

1346, the honest services fraud statute. Moreover, in the

absence of an instruction specifically telling the jury to

disregard all previous references to honest services fraud, we

do not believe that the narrowing instruction provided by the

District Court was sufficient to remove the taint of the

previous instructions. 9

2.

Having concluded that the first prong of the plain error

test is met, we likewise conclude that the second prong is met.

Although there was no plain error in the District Court’s

instructions at the time of trial, the error became apparent

when the Supreme Court in Skilling limited honest services

fraud to bribes and kickbacks. See United States v. Retos, 25

F.3d 1220, 1230 (3d Cir. 1994) (explaining that an error is

plain “where the error was unclear at the time of trial but

9

We also note that the Presentence Investigation

Report listed the statutes violated as 18 U.S.C. §§ 1343, 1346,

and 2 and stated that Andrews was charged with “knowingly

devis[ing] a scheme and artifice to defraud and for obtaining

money and property and to deprive another of the intangible

right of honest services.” Although this is not dispositive,

and the Probation Officer certainly could have been mistaken

as to what was ultimately charged in the redacted Indictment,

it suggests that, at the very least, there was confusion as to

whether Andrews was charged with honest services fraud.

19

becomes clear on appeal because the applicable law has been

clarified” (quoting Olano, 507 U.S. at 734)).

3.

We turn now to the third step of our inquiry, which

requires us to determine whether the error affected Andrews’s

substantial rights, “which in the ordinary case means

[whether] it affected the outcome of the district court

proceedings.” Marcus, 130 S. Ct. at 2164 (internal marks and

citations omitted). In other words, we must determine

whether the error was harmless. Id. (citing Olano, 507 U.S.

at 734-35). Under plain error review, a defendant bears the

burden of demonstrating that the error was not harmless, i.e.,

that there is “a reasonable probability that the error affected

the outcome of the trial.” Olano, 507 U.S. at 734. 10 We

10

There is a narrow category of cases involving

“structural errors,” which affect the “framework within which

the trial proceeds.” United States v. Marcus, 130 S. Ct. 2159,

2164 (2010) (citing Johnson v. United States, 520 U.S. 461,

468 (1997)). The Supreme Court has left open the possibility

that in cases involving “structural errors,” the defendant need

not demonstrate that the error impacted the outcome of the

trial. Id. at 2164-65. However, Skilling error is not

“structural” and thus, Andrews bears the burden of

demonstrating that the error was not harmless. See Hedgpeth

v. Pulido, 555 U.S. 57, 58 (2008) (per curiam) (holding that

no “structural error” occurs where a jury is instructed on

alternative theories of guilt, and the defendant alleges that the

jury relied on an invalid theory); United States v. Skilling

(Skilling II), 638 F.3d 480, 483 (5th Cir. 2011).

20

conclude that Andrews has not met that burden because:

(1) he has not established a reasonable probability that he

would have been acquitted of tangible wire fraud absent the

Skilling error, and alternatively (2) he cannot demonstrate that

the jury would not have convicted him of honest services

fraud had it been instructed that the fraudulent scheme must

involve bribery or kickbacks.

First, we find that, irrespective of the error, Andrews

still would have been convicted of wire fraud (Counts Two

through Five) on the valid theory of tangible rights fraud

under 18 U.S.C. § 1343. 11 Where there is a clear alternative

theory of guilt, supported by overwhelming evidence, a

defendant likely cannot show that an instruction permitting

the jury to convict on an improper basis was not harmless

error. See United States v. Skilling (Skilling II), 638 F.3d

480, 482 (5th Cir. 2011); United States v. Black (Black II),

625 F.3d 386, 388, 392-94 (7th Cir. 2010); see also Hedgpeth

v. Pulido, 555 U.S. 57, 61 (2008) (per curiam) (explaining

that an instructional error may be harmless “so long as the

error at issue does not categorically vitiate all the jury’s

findings” and that “[a]n instructional error arising in the

context of multiple theories of guilt no more vitiates all the

jury’s findings than does omission or misstatement of an

element of the offense when only one theory is submitted”)

(internal marks and citations omitted). In contrast, where

11

Because the jury returned a general verdict, we

cannot say definitively which of the Government’s theories

the jury actually relied on to convict Andrews on Counts Two

through Five.

21

evidence on the valid alternative theory is relatively weak, the

government relies heavily on the improper theory, and the

district court’s instructions on the improper theory are

“interwoven” throughout the jury charge, the instructional

error will not be harmless. See United States v. Wright, 665

F.3d 560, 572 (3d Cir. 2012); Riley, 621 F.3d at 324; United

States v. Hornsby, 666 F.3d 296, 305-07 (4th Cir. 2012). In

this case, the Government presented overwhelming evidence

that Andrews committed tangible wire fraud and although the

District Court referred to “honest services” on several

occasions in its final instructions, the District Court did not

define honest services fraud, nor were the references to

“honest services” interwoven throughout the jury charge.

Because the determination as to whether an

instructional error was harmless depends significantly on the

context in which the instruction was provided and the other

evidence presented at trial, we will review in some detail the

other cases that have addressed whether a Skilling error was

harmless. We first examine the cases in which courts have

found Skilling instructional error to be harmless. In Skilling,

Skilling was charged with, among other things, conspiracy.

130 S. Ct. at 2908. The indictment alleged several possible

objects of the conspiracy, including securities fraud and

honest services fraud. Id. Although it held that the honest

services theory was improper, the Court remanded to the U.S.

Court of Appeals for the Sixth Circuit to determine whether

the error was harmless. Id. at 2934. In Skilling II, on remand,

the Sixth Circuit held that the district court’s instruction that

the jury could convict on either theory was harmless, even

though the jury returned a general verdict on the conspiracy

22

charge without identifying the specific object of the

conspiracy. 638 F.3d at 481, 483-84. The Sixth Circuit

concluded that because the evidence at trial overwhelmingly

proved conspiracy to commit securities fraud, the verdict on

the conspiracy charge would have been the same absent the

erroneous instruction on honest services fraud. Id. at 483-84,

488. The court also noted that the indictment “focused

primarily” on securities fraud, and the government only

mentioned the honest services theory in relation to Skilling

once during its closing argument. Id. at 483 & n.3. 12

Similarly, in United States v. Black (Black II), 625

F.3d at 392-93, on remand from the Supreme Court in Black

v. United States, 130 S. Ct. 2963 (2010), the U.S. Court of

Appeals for the Seventh Circuit held that the district court’s

Skilling error was partially harmless. In that case, the

defendants were charged with two counts of fraud. Black II,

625 F.3d at 388. For both counts, the jury was instructed on

two alternative theories: (1) a scheme to fraudulently

appropriate money from the company of which the

defendants were executives (pecuniary fraud), and (2) a

scheme to deprive the company of their “intangible right of

honest services.” Id. The Seventh Circuit explained that

although the honest services instruction was improper after

Skilling, “if it [was] not open to reasonable doubt that a

reasonable jury would have convicted [the defendants] of

pecuniary fraud, the convictions on the fraud counts [would]

12

The government did, however, rely heavily on the

honest services theory in relation to Skilling’s co-defendant,

Kenneth Lay. Skilling II, 638 F.3d at 483.

23

stand.” Id. (citations omitted). The court explained that the

evidence was sufficient to prove pecuniary fraud on both

counts and the jury was correctly instructed on the elements

of pecuniary fraud. Id. at 391. However, in light of the

Skilling error, “the question [was] . . . whether a reasonable

jury might have convicted the defendants of [honest services

fraud] but not have convicted them of pecuniary fraud.” Id. at

392. The Seventh Circuit reached a different answer to this

question for each of the two counts based on the factual

distinctions between the respective schemes to defraud. As to

the first count, the court found that the government made out

“a solid honest-services case . . . but not a solid pecuniary-

fraud case,” and thus, it was impossible to say with certainty

that the jury did not convict solely on the basis of the honest

services theory. Id. However, the court upheld the

defendants’ conviction on the second count, reasoning that

“the evidence of pecuniary fraud [was] so compelling that no

reasonable jury could have refused to convict [them] of it.”

Id. at 393. In reaching this conclusion, the court noted that

the basis for the honest services fraud conviction was

“mentioned in passing in the information, but the evidence at

trial, and the closing arguments, focused on whether [certain

acts were] merely an oversight or instead proof of pecuniary

fraud.” Id.

In contrast, in United States v. Riley, 621 F.3d at 324,

United States v. Wright, 665 F.3d at 571, and United States v.

Hornsby, 666 F.3d at 307, the improper honest services

instructions were found to be reversible error. In Riley, the

defendants were charged with three counts of mail fraud

under 18 U.S.C. §§ 1341 and 2, based on a scheme to

24

fraudulently convey city-owned property, one count of

program fraud under 18 U.S.C. § 666(a)(1)(A), stemming

from the fraudulent sales of the property, and one count of

conspiracy to defraud the public of a codefendant’s honest

services, in violation of 18 U.S.C. §§ 1341, 1346, and 371.

621 F.3d at 317. As an introduction to the conspiracy charge,

the district court told the jury that “honest services . . . fraud

does not require a scheme to defraud another to obtain money

or property” and could instead be based on the violation of “a

duty of honest, faithful and disinterested service to the public

and that official’s public employer.” Id. at 323 n.15. The

district court then explained that the jury could convict on the

conspiracy charge if it found that the public official

codefendant, Sharpe James, breached one or more of the

following duties of honest services that he owed to the State

of New Jersey and the City of Newark: 13 (1) “knowingly

committing acts related to his official positions that were

unauthorized exercises of his official functions for the

purpose of obtaining and receiving money and benefits for

himself and others from the governments that he

represented”; (2) “as part of his fiduciary duty and his

obligation pursuant to the circumstances set forth in [18

U.S.C.] § 666(a)(1)(A), to refrain from stealing, taking by

fraud, misapplying and misappropriating the assets of his

public employers”; or (3) “as part of his fiduciary duty, to

disclose conflicts of interest to his public employers in

13

James served as both the Mayor of Newark, New

Jersey, and as a New Jersey State Senator. Riley, 621 F.3d at

318.

25

official matters over which [he] exercised, and attempted to

exercise, official authority and discretion, and to recuse

himself where he had such conflicts of interest.” Id. at 322.

The government argued that because the first two

alternative theories of duty were valid bases for finding a

conspiracy, the district court’s improper instruction on the

third basis did not affect the defendants’ substantial rights.

Id. at 323-24. We disagreed, reasoning that although the jury

convicted James of a substantive violation referred to in one

of the alternative descriptions of duty, program fraud under

§ 666(a)(1)(A), the erroneous description of honest services

fraud was at the “heart” of the conspiracy charge and

“interwoven throughout the . . . charge.” Id. at 324. We

further observed that “[t]he very title of [the conspiracy

count], ‘Conspiracy to Use the U.S. Mail to Defraud the

Public of Defendant James’s Honest Services,’ invite[d] the

application of the [d]istrict [c]ourt’s charge to the jury

regarding honest services fraud to the entire count.” Id.

Moreover, the conspiracy instructions “began with an over-

arching umbrella description of James’s fiduciary duty as a

public official, which included the now-erroneous honest

services definition.” Id. We also noted that the government

focused on the non-disclosure of a conflict of interest and that

the conflict-of-interest theory was “pervasive . . . throughout

th[e] case.” Id. at 324, 325. Thus, we rejected the

government’s argument that a jury would have viewed the

three theories in the conspiracy instruction as alternative

forms of conspiracy liability, separate and distinct from

James’s violation of his honest services obligations, because

the district court did not make such a distinction clear. Id. at

26

324. We concluded that the “defendants ha[d] met their

burden of showing a reasonable probability that the jury

utilized the broad definition of an honest services violation

given in connection with the entire conspiracy charge.” Id.

We reached a similar conclusion in Wright. In that

case, the defendants were charged with honest services fraud,

“traditional” mail fraud, and conspiracy. 665 F.3d at 564-65.

The district court instructed the jury that it could convict for

honest services fraud under either a “conflict of interest”

theory or a “bribery” theory. Id. at 567. We held that the

improper conflict-of-interest instruction was not harmless

because there was “ample evidence on which the jury could

have convicted [the defendants] under [the conflict of

interest] theory” and “the evidence supporting the bribery

theory, while sufficient, [was] less than . . . ‘overwhelming.’”

Id. at 571 (citation omitted). We explained that, based on the

evidence, the jury may have drawn inferences about the

defendants’ intent that would not support a bribery theory.

Id. We also noted that the “trial environment . . . emphasized

the conflict-of-interest theory” and the jury instructions

devoted “about eight times more words to the conflict-of-

interest theory than they did to the bribery theory.” Id. at 572.

Likewise, in Hornsby, the U.S. Court of Appeals for

the Fourth Circuit held that a district court’s instruction that a

jury could convict the defendant of honest services fraud on a

conflict-of-interest theory was not harmless. 666 F.3d at 307.

In instructing the jury on the honest services fraud counts, the

district court explained that the jury need not consider

whether the defendant received a financial benefit from a

third party as part of the scheme to defraud; rather, the court

27

told the jury that it could convict if it found that the defendant

“fail[ed] to disclose a personal interest in a matter over which

[he had] decision-making power.” Id. at 306. The district

court further stated that a “public official’s duty and honesty

includes the duty to disclose . . . a personal conflict of

interest” and that the “failure to disclose . . . may . . .

constitute a fraudulent representation.” Id. In finding that the

improper instruction was not harmless, the Fourth Circuit

observed that the conflict-of-interest language was

“interwoven” through the honest-services instruction. Id.

(citing Riley, 621 F.3d at 324). Moreover, the court noted,

the government presented strong evidence to support the

conflict-of-interest theory and emphasized in its closing

argument that “the defendant’s crime in this case is

fraudulently participating in decisions where his business

partner and his girlfriend had a stake and concealing it from

the board.” Id. at 306-07. Thus, although the facts arguably

showed that the defendant also received a kickback, based on

the nature of the jury instructions and the emphasis placed on

the conflict-of-interest theory, the Fourth Circuit held that it

could not be certain whether the jury relied on a conflict-of-

interest theory or a kickbacks theory. Id. at 307.

Our case is distinguishable from those in which courts

have determined that Skilling instructional error was not

harmless. First, as in Skilling II, 638 F.3d at 483-84, and

Black II, 625 F.3d at 393, the Government presented

overwhelming evidence of tangible rights (pecuniary) fraud.

The testimony conclusively established that the object of

Andrews’s fraudulent scheme was a tangible asset, that is, a

multi-million dollar sewer repair contract from the GVI.

28

Although the evidence also showed a scheme to defraud the

GVI of Harris’s honest services, the evidence of pecuniary

fraud was so compelling that no reasonable jury could have

refused to convict Andrews on that theory.

Second, not only were the references to honest services

fraud not “interwoven” throughout the jury charge, the

District Court never explicitly instructed the jury on the

elements of honest services fraud at all. Cf. Hornsby, 666

F.3d at 306; Riley, 621 F.3d at 324. In contrast, the District

Court did properly instruct the jury on the elements of

tangible rights fraud. In reference to Counts Two through

Five, the District Court stated:

“So the government has to prove beyond a

reasonable doubt three essential elements. That

the defendant knowingly devised or participated

in a scheme to defraud, or to obtain money or

property by materially false or fraudulent

pretenses, representations, promises or

omissions. . . . So the first element the

government has to prove . . . is that there was a

scheme to defraud. So the scheme to defraud is

any deliberate plan of action or course of action

by which someone intends to deceive or to

cheat another, or by which someone intends to

deprive another of something of value. . . .

Federal law protects money and property

interests. Money or property interests are

commonly referred to as tangible rights,

because those are things that you can touch and

feel. They include, money, real property and

29

specific goods and property, goods or

possessions.”

The District Court further charged the jury that it was to

consider only the scheme to defraud that was charged in the

Indictment. The description in Counts Two through Five of

the Indictment of the “scheme to defraud” never mentions

“honest services” or “honest services fraud.” It does,

however, set forth in detail Andrews’s scheme to fraudulently

obtain the sewer repair contract, a tangible asset.

Specifically, the Indictment alleges:

“Beginning in or about December, 2000, and

continuing up to at least the Fall of 2003, in St.

Thomas and St. Croix, within the District of the

Virgin Islands and elsewhere, the defendants

Ashley Andrews, Campbell Malone, and others

. . . devised a scheme and artifice to obtain

money by means of material false and

fraudulent pretenses and representations,

omissions and concealment of material facts,

which involved securing a no-bid contract for

sewer repair work and generating a fraudulent

claim for expenses incurred as a result of

preparing a proposal for a contract to repair the

St. Croix sewer system. . . . It was a part of the

scheme and artifice to obtain money and

property and to defraud the Virgin Islands

government.”

Moreover, in contrast to Riley, 621 F.3d at 324, the

title of the challenged counts (Counts Two through Five) does

30

not mention “honest services.” In fact, the title does not even

cite § 1346, but refers only to § 1343; the title reads: “Counts

2 Through 5, 18 U.S.C. § 1343 (Wire Fraud).” Thus,

although the District Court referred to “honest services” three

times in its final charge, the Indictment, which the jurors were

explicitly instructed to follow, did not “invite[] the

application” of the honest services language to Counts Two

through Five. Compare Riley, 621 F.3d at 324, with Skilling

II, 638 F.3d at 483 n.3 (noting that the indictment “focused

primarily” on securities fraud), and Black II, 625 F.3d at 393

(stating that the basis for the honest services theory was

mentioned in the information only “in passing”). 14

Furthermore, unlike in Riley, 621 F.3d at 324, where the

improper conflict-of-interest theory went to the “heart” of the

instructions, and Wright, 665 F.3d at 572, where the jury

instructions devoted eight times more words to the improper

theory, the District Court in this case made only a few passing

references to “honest services” while discussing the

conspiracy count. Given that the District Court explicitly

instructed the jury that it had to find the elements of tangible

rights fraud beyond a reasonable doubt, and we presume that

juries follow their instructions regarding a count in returning

a verdict on that count, Bronshtein v. Horn, 404 F.3d 700,

14

The only language in the Indictment that could be

interpreted as referring to honest services fraud was located in

the “Introduction” section and stated: “Ohanio Harris had a

duty to uphold the laws of the United States and the Virgin

Islands; and to provide honest services to the people of the

Virgin Islands.”

31

713-14 (3d Cir. 2005), Andrews cannot establish a

“reasonable probability,” Marcus, 130 S. Ct. at 2164, that the

passing references to “honest services” affected the jury’s

verdict on Counts Two through Five. Admittedly, the District

Court’s statement that “[t]he federal claims in this case . . . all

relate to claims of fraudulent intent or attempts to corruptly

deprive the Government of the Virgin Islands of the honest

services of an officer or employee of the Government of the

Virgin Islands” is somewhat troubling. However, in contrast

to the “umbrella” statement in Riley, the District Court’s

broad statement in this case was not followed by a further

explanation of “honest services.” Cf. Riley, 621 F.3d at

324. 15

15

It is worth noting that there is another difference

between our case and United States v. Wright, 665 F.3d 560

(3d Cir. 2012). In Wright, the defendants objected to the

honest services charge at trial and thus preserved the issue for

review. Id. at 570-71. In such a situation, harmless error

review requires the government to “prove[] beyond a

reasonable doubt that the error complained of did not

contribute to the verdict obtained.” Id. at 570 (quoting United

States v. Waller, 654 F.3d 430, 434 (3d Cir. 2011)). In

contrast, when we review for plain error, the defendant bears

the burden of establishing that the error affected his

substantial rights, which requires him to show that there is “a

reasonable probability that the error affected the outcome of

the trial.” Olano, 507 U.S. at 734. Thus, Andrews faces a

more difficult challenge in demonstrating reversible error

than did the defendants in Wright.

32

Alternatively, even if Andrews could show that a

reasonable jury might not have convicted him of tangible wire

fraud absent the Skilling error, he still cannot demonstrate that

the error affected his substantial rights because any

reasonable jury would have found all of the elements of post-

Skilling honest services fraud beyond a reasonable doubt had

it been instructed that the fraudulent scheme must involve

bribery or kickbacks. A district court’s failure to instruct the

jury on an element of the offense will be harmless error if,

based on the evidence, no reasonable jury could find that the

element was not present. Neder v. United States, 527 U.S. 1,

18-19 (1999). However, if the record contains “evidence that

could rationally lead to a contrary finding with respect to the

omitted element,” the error is not harmless. Id. at 19. Here,

although the jury was not instructed that § 1346 was limited

to bribes and kickbacks, the Government proved beyond a

reasonable doubt that the fraudulent scheme involved bribery.

A bribery theory under § 1346 “requires a quid pro

quo,” Wright, 665 F.3d at 567 (quoting United States v.

Kemp, 500 F.3d 257, 281 (3d Cir. 2007)), that is, “a specific

intent to give or receive something of value in exchange for

an official act,” id. at 567-68 (quoting United States v. Sun-

Diamond Growers of Cal., 526 U.S. 398, 404-05 (1999)).

“[A] bribery theory does not require that each quid, or item of

value, be linked to a specific quo, or official act. Rather, a

bribe may come in the form of a ‘stream of benefits.’” Id. at

568 (quoting United States v. Bryant, 655 F.3d 232, 240-41

(3d Cir. 2011)). An honest services fraud prosecution for

bribery after Skilling thus requires the Government to prove:

(1) that “the payor provided a benefit to a public official

33

intending that he w[ould] thereby take favorable official acts

that he would not otherwise take,” and (2) that “the official

accepted those benefits intending, in exchange for the

benefits, to take official acts to benefit the payor.” Id.

(citations omitted). “The quid pro quo can be implicit, that is,

a conviction can occur if the Government shows that [the

official] accepted payments or other consideration with the

implied understanding that he would perform or not perform

an act in his official capacity.” Id. (quoting Antico, 275 F.3d

at 257).

Here, not only did the Government allege that

Andrews committed bribery; the jury actually convicted him

of bribery, albeit under a different statute, 18 U.S.C.

§ 666(a)(2). Cf. Skilling, 130 S. Ct. at 2934 (stating that

Skilling’s conduct did not violate the narrowed version of the

statute because the government “did not, at any time, allege

that Skilling solicited or accepted side payments from a third

party in exchange for making . . . misrepresentations”). We

have never decided whether § 666(a)(2) requires proof of a

quid pro quo, and therefore whether § 666 bribery is the same

as § 1346 bribery. See Bryant, 655 F.3d at 246 n.16.

However, we need not decide that question today because the

District Court’s jury instruction required the jury to find a

quid pro quo exchange in this case. At the close of trial, the

District Court instructed the jury that as to Count Six:

[t]he government has to prove beyond a

reasonable doubt that there was action by

Ashley Andrews to corruptly attempt to

influence Ohanio Harris, knowing that he was

an agent of the Government of the Virgin

34

Islands, for the purpose of causing him to use

his position or abuse his position for the benefit

of Ashley Andrews or GRM relative to

obtaining the sewer contract.

Thus, to convict Andrews on Count Six, the jury was required

to find, as it would be under § 1346, that Andrews gave

Harris a thing of value (the quid) in exchange for Harris

performing acts in his official capacity favorable to Andrews

and GRM related to the sewer repair contract (the quo).

Given that the jury convicted Andrews on Count Six, no

rational jury could have then failed to find that the fraudulent

scheme alleged in Counts Two through Five involved bribery.

In sum, because Andrews has not shown a “reasonable

probability that the [Skilling] error affected the outcome of

the trial,” Olano, 507 U.S. at 734, we hold that there was no

plain error as to Counts Two through Five. 16 We necessarily

also conclude that there was no prejudicial spillover into the

remaining counts. “When two charges are closely linked and

we vacate [or reverse] a conviction on one of them, we must

ensure that the error on the vacated [or reversed] charge has

not affected the remaining charge.” Wright, 665 F.3d at 575.

Here, because we have determined that the District Court’s

16

Because we find that Andrews has failed to satisfy

the third prong of the plain error test, we need not consider

the fourth prong, whether “the error seriously affect[ed] the

fairness, integrity, or public reputation of judicial

proceedings.” Riley, 621 F.3d at 322 (quoting Johnson, 520

U.S. at 467).

35

Skilling error was harmless (i.e., not prejudicial), see Marcus,

130 S. Ct. at 2164, and thus did not require vacatur or reversal

of Andrews’s convictions on Counts Two through Five, there

was no prejudicial spillover to the remaining counts. 17

B.

Andrews next argues that the evidence was insufficient

to support his convictions for wire fraud, program fraud, and

inducing a conflict of interest. We will address his arguments

as to each offense in turn.

17

Given that our conclusion that the Skilling error was

harmless was based, in part, on the fact that the jury convicted

Andrews of bribery under 18 U.S.C. § 666(a)(2), we

acknowledge the potential for a circularity problem. In some

instances, it may be problematic to look to a defendant’s

conviction on one count and conclude that an error as to

another count was harmless, because there is the possibility

that prejudice from the error spilled over and led to the

conviction on the other count. However, in this case, the

Government presented such strong evidence that Andrews

committed bribery under § 666(a)(2) that we do not hesitate

to find that Andrews’s conviction on Count Six was wholly

unaffected by the Skilling error. See Black II, 625 F.3d at 390

(rejecting the defendant’s argument that prejudice from the

erroneous honest services instruction spilled over to an

obstruction of justice count because the evidence of

obstruction was “very strong” and “[n]o reasonable jury could

have acquitted [the defendant] of obstruction if only it had not

been instructed on honest-services fraud”).

36

1.

To obtain a conviction for wire fraud under 18 U.S.C.

§ 1343, the Government must prove “(1) the defendant’s

knowing and willful participation in a scheme or artifice to

defraud, (2) with the specific intent to defraud, and (3) the use

of . . . interstate wire communications in furtherance of the

scheme.” Antico, 275 F.3d at 261 (citation omitted). Here,

the Government presented sufficient evidence to allow a

rational jury to find these elements beyond a reasonable

doubt. See Reyeros, 537 F.3d at 277. Andrews’s contentions

to the contrary are unavailing.

Andrews first alleges that the evidence on the wire

fraud counts was insufficient because, although he asked

Price to send bond documentation to Malone, he never asked

Price to use interstate wire communications (i.e., fax or

email). However, the statute does not require that the

defendant himself sent the communication or that he intended

that interstate wire communications would be used. Rather, §

1343 requires that the defendant “knowingly caused” the use

of interstate wire communications. United States v. Bentz, 21

F.3d 37, 40 (3d Cir. 1994). “Where one does an act with

knowledge that the use of the mails will follow in the

ordinary course of business, or where such use can reasonably

be foreseen, even though not actually intended, then he

‘causes’ the mails to be used.” Id. (quoting Pereira v. United

States, 347 U.S. 1, 8-9 (1954)); see United States v.

Giovengo, 637 F.2d 941, 944 (3d Cir. 1980) (explaining that

“cases construing the mail fraud statute are applicable to the

wire fraud statute as well”).

37

In this case, the use of interstate wire communications

was reasonably foreseeable. When Andrews asked Price,

who was in New York, to send bond application documents to

Malone, who was in the Virgin Islands, it was reasonably

foreseeable that Price would send the documents via email or

fax. Moreover, given the complexity of the bond application

process, it was reasonably foreseeable that Price and Malone

would exchange multiple emails or faxes.

Andrews also contends that the evidence was

insufficient to support his conviction on Count Two

specifically because the email transmission alleged in the

Indictment never occurred. Count Two of the indictment

states that on October 10, 2002, Price sent an email to

Malone. The Government acknowledges that no email

transmission occurred on this date; rather, as Price testified,

the documents sent on October 10 were transmitted via fax.

Andrews notes that fax and email are distinct means of

communication, and argues that by allowing the Government

to proceed on Count Two on the basis that Price sent a fax to

Malone, the District Court “constructively amended” the

Indictment. We disagree.

“An indictment is constructively amended when

evidence, arguments, or the district court’s jury instructions,

effectively amends the indictment by broadening the possible

bases for conviction from that which appeared in the

indictment.” United States v. McKee, 506 F.3d 225, 229 (3d

Cir. 2007) (internal marks and citation omitted). A

constructive amendment constitutes a “per se” violation of a

defendant’s Fifth Amendment right to a jury trial. Id.

(citation omitted). In contrast, a variance occurs “when the

38

charging terms are unchanged, but the evidence at trial proves

facts materially different from those alleged in the

indictment.” Id. at 231 n.7 (internal marks and citation

omitted). “If a variance between the indictment and the

evidence does not alter the elements of the offense charged,

we will focus upon whether or not there has been prejudice to

the defendant.” Id. (internal marks and citations omitted).

Here, the discrepancy between the Indictment and the

evidence presented at trial clearly constituted a variance. See

id. The elements of wire fraud were unaffected; the

Indictment simply misstated that the October 10, 2002

transmission was made via email. Andrews suffered no

prejudice as a result of this minor variance.

2.

Andrews also argues that there was insufficient

evidence to sustain his conviction on Count Six for program

fraud. Under 18 U.S.C. § 666(a)(2), the Government must

prove that the defendant (1) corruptly gave, offered, or agreed

to give anything of value to any person, (2) “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 value of $5,000 or more.” Andrews

challenges his conviction under § 666(a)(2) on the basis that

the Government failed to demonstrate that Harris had the

39

authority to influence the award of the sewer contract. This

argument is meritless. 18

Harris, who qualified as an “agent” under § 666, 19 did

not have to possess actual authority over the business,

transaction, or series of transactions, that Andrews sought to

influence. See United States v. Vitillo, 490 F.3d 314, 323 (3d

Cir. 2007). Rather, the Government had to prove only that

Andrews intended, by offering a bribe to Harris, to influence

the sewer contract. The Government presented sufficient

evidence that Andrews possessed such an intent. Moreover,

even if actual ability to influence was required under § 666,

Harris had the ability to influence the awarding of the sewer

contract, as evidenced by the fact that he did exercise his

influence and steer the sewer system repair contract to

Andrews and GRM.

18

Andrews raises a similar challenge to his conviction

for inducing a conflict of interest under 3 V.I.C. §§ 1102,

1103, and 1107 (Count Eight). We reject this challenge for

similar reasons.

19

Section 666 defines “agent” as “a person authorized

to act on behalf of another person or a government and, in the

case of an organization or government, includes a servant or

employee, and a partner, director, officer, manager, and

representative.” 18 U.S.C. § 666(d)(1).

40

3.

Andrews also contends that the Government failed to

present sufficient evidence to prove Count Eight, inducing a

conflict of interest. Again, we disagree. Section 1107 of

Title 3 of the Virgin Islands Code provides that “[n]o person

shall induce or seek to induce any territorial officer or

employee to violate [3 V.I.C. § 1102(3)].” Under 3 V.I.C.

§ 1102(3):

“[n]o territorial officer or employee shall . . .

have any interest, financial or otherwise, direct

or indirect, or engaged in any business or

transaction or professional activity, or incur any

obligation of any nature, which is in substantial

conflict with the proper discharge of his duties

in the public interest and of his responsibilities

as prescribed in the laws of the Virgin Islands.”

An officer or employee is deemed to have an interest “in

substantial conflict with the proper discharge of his duties”

under Virgin Islands law “if he will derive a direct monetary

gain or suffer a direct monetary loss . . . by reason of his

official activity.” 3 V.I.C. § 1103.

The Indictment alleged that Andrews “caused Ohanio

Harris to serve as president of GRM and act on behalf of

GRM at a time when GRM sought contracts from Ohanio

Harris’ employer, the [GVI].” Andrews argues that because

the Government did not show that GRM would make a profit,

it did not prove that Harris “[would] derive monetary gain”

from his activities, and therefore did not prove that he had an

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interest “in substantial conflict” with his professional duties.

To the extent that Andrews asks us to read a certainty-of-

monetary-gain requirement into the statute, we decline to do

so. In enacting Chapter 37, Conflicts of Interest, the Virgin

Islands Legislature explained that the purpose of the statute

was “to assure the impartiality, and ethical conduct of all

involved in governmental transactions and decisions.” 3

V.I.C. § 1100. Accordingly, we hold that in a prosecution

under 3 V.I.C. §§ 1102(3), 1103, and 1107, the Government

need only prove that the “territorial officer or employee”

expected to profit from the relationship such that his

impartiality as a public official was likely to be affected.

Here, Andrews and Harris entered into an arrangement,

pursuant to which Harris would, in the future, derive

economic benefit from GRM. This expectation was sufficient

to establish a conflict of interest under Virgin Islands law.

The Government was not required to prove that GRM would

be profitable in the future; in fact, we have difficulty

envisioning how the Government would even go about doing

so.

C.

We turn now to Andrews’s final argument, that the

jury was improperly instructed on Count Seven, which

alleged fraudulent claims upon the GVI, in violation of 14

V.I.C. § 843(4). Section 843(4) makes it a crime for any

individual to “make[] or use[] any false bill, receipt, voucher,

roll, account, claim, certificate, affidavit or deposition

knowing the same to contain any fraudulent or fictitious

statement or entry- in any matter within the jurisdiction of

any officer, department, board, commission, or other agency

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of the government of the Virgin Islands.” Andrews argues

that the District Court’s final charge to the jury was improper

because it did not include a specific instruction that the jury

must find the content of the claim false, and that the jury

could not convict solely on the basis that Andrews had no

contract with the GVI and thus no right to file a claim.

However, on the first day of trial, the District Court gave

precisely the instruction that Andrews argues was required.

The District Court explained to the jury:

“The Court has ruled that whether there was, in

fact, legal authority to file the claim is

irrelevant. If one files a claim believing that

there – even believing that there is a basis for

filing a claim, one has the obligation not to file

a false claim. So the issue for the jury to

determine, and as charged in the indictment, is

whether or not the claim filed was false, and

made with fraudulent intent.”

Thus, the jury was clearly instructed that regardless of

whether Andrews had entered into a valid contract with the

GVI and had a right to file a claim for payment, an issue

which was subject to dispute, the jury could only convict if it

found that Andrews submitted a claim to the GVI, knowing

that the claim contained false statements.

Andrews did not request that the District Court repeat

this instruction during the final charge. In its final

instruction, the District Court stated:

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“the government has to prove that there was a

fraudulent claim submitted, that is, it was done

for the purpose of trying to cheat the

Government of the Virgin Islands, and that it

was done not because of mistake or accident,

not in good faith, but it was done with

fraudulent intent.”

Nothing in this instruction suggested to the jury that it could

convict Andrews under 14 V.I.C. § 843(4) if it found that

Andrews had no contract with the GVI and thus no right to

file a claim. Because we presume that the jury followed the

initial instruction, United States v. Walker, 657 F.3d 160, 171

(3d Cir. 2011), we conclude that the District Court committed

no error in instructing the jury on Count Seven.

IV.

Finally, we address the legality of the sentence

imposed by the District Court. The Government noted in its

brief that the District Court erred in imposing a “general

sentence” on Counts One through Six, instead of specifying

an individual sentence for each offense. Andrews did not

properly raise this issue in his opening brief, and ordinarily

“an appellant’s failure to identify or argue an issue in his

opening brief constitutes waiver of that issue on appeal.”

United States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005)

(citations omitted). However, the waiver rule yields in

“extraordinary circumstances.” United States v. Albertson,

645 F.3d 191, 195 (3d Cir. 2011). In determining whether a

case presents “extraordinary circumstances,” we consider

three factors: (1) “whether there is some excuse for the

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[appellant’s] failure to raise the issue in the opening brief”;

(2) the extent to which the opposing party would be

prejudiced by our considering the issue; and (3) “whether

failure to consider the argument would lead to a miscarriage

of justice or undermine confidence in the judicial system.”

Id. (quoting In re Kane, 254 F.3d 325, 331 (1st Cir. 2001)).

The miscarriage of justice factor is “somewhat similar to the

‘plain error’ rule,” which allows appellate courts to correct an

error not raised before the district court if the error affected

the defendant’s substantial rights and “seriously affect[ed] the

fairness, integrity or public reputation of judicial

proceedings.” Id. at 196 (quoting Gambino v. Morris, 134

F.3d 156, 169 n.12 (3d Cir. 1998) (Roth, J., concurring), and

United States v. Knight, 266 F.3d 203, 207 (3d Cir. 2001)).

Applying these factors to Andrews’s case, we believe

“the balance weighs in favor of reviewing the merits” of the

general sentence issue. Id. at 195. With respect to the first

factor, Andrews has provided no compelling reason for his

failure to raise the issue in his opening brief. Thus, the first

factor weighs in favor of waiver. However, the second and

third factors weigh heavily against waiver. As to the second

factor, it is clear that the Government would suffer no

prejudice as a result of our considering the issue because the

Government expressly concedes in its brief that remand for

“clarification of the sentence” on Counts One through Six is

appropriate. Finally, as to the miscarriage of justice factor,

we have held, in the context of plain error review, that a

general sentence error under the Sentencing Guidelines

affects a defendant’s “substantial rights and result[s] in

manifest injustice because, as a result of the general nature of

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the sentence, neither we nor [the defendant] can determine

whether it was legal as to particular counts.” United States v.

Ward, 626 F.3d 179, 184 (3d Cir. 2010) (citation omitted).

Turning to the merits, we hold that the District Court

erred in imposing a general sentence of 151 months’

imprisonment on Counts One through Six. Under the

Sentencing Guidelines, a district court must impose a

sentence on each count. Ward, 626 F.3d at 184 (citing

U.S.S.G. 5G1.2(b)). Here, although the 151-month term of

imprisonment was within the statutory maximum for Counts

Two through Five, it exceeded the statutory maximum for

Counts One and Six, and due to the general nature of the

sentence, we cannot determine whether the sentence was legal

as to each count. See id. Therefore, we will vacate

Andrews’s sentence on Counts One through Six, and remand

for the limited purpose of allowing the District Court to

clarify the sentence imposed on each count of conviction.

V.

For the foregoing reasons, we will affirm the District

Court’s judgment of conviction, vacate the judgment of

sentence on Counts One through Six, and remand to the

District Court for resentencing.

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