Opposition Brief — Frost v. United States

* FILED

JUN 22 1998

CLERK

Nos. 97-1549, 97-8295, 97-8305, 97-8328, and j “Sole

In the Supreme Court of the Giuted States

OCTOBER TERM, 1997

WALTER FROST, ROBERT EUGENE TURNER,

PEGGY YOUNG PoTTerR, RICHARD THOMAS CONGO,

AND DENNIS ALLEN FAULKNER, PETITIONERS

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

SETH P. WAXMAN

Solicitor General

Counsel of Record

JOHN C. KEENE

Acting Assistant Attorney

General

NINA GOODMAN

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

1. Whether the court of appeals’ decision reversing

petitioners’ convictions on certain counts of the in-

dictment based on insufficiency of the evidence, while

upholding their convictions on other counts, resulted

in a constructive amendment of the indictment or an

impermissible variance between the charges in the

indictment and the basis on which certain convictions

were upheld on appeal.

2. Whether petitioners were properly convicted

under the mail fraud statute for a scheme to defraud

an employer of the honest services of its employees.

3. Whether the government’s failure to disclose

exculpatory information concerning allegations in

certain counts of the indictment entitled petitioners

to a new trial on other counts that were unrelated to

the potentially exculpatory testimony.

4. Whether, on the facts of this case, a supplemen-

tal jury charge similar to the one approved by this

Court in Allen v. United States, 164 U.S. 492 (1896),

was impermissibly coercive.

5. Whether the district court erred in denying pe-

titioners’ request for a post-trial hearing to deter-

mine whether a juror had been exposed to any im-

proper extrinsic influence when she left the jury

room for a brief period.

6. Whether the district court abused its discretion

by not declaring a mistrial or excusing a juror after

the juror reported to the court that she had heard, and

had repeated to other jurors, a comment made by peti-

tioner Turner.

7. Whether the district court abused its discretion

by denying petitioner Potter’s motion for a severance.

(I)

I]

8. Whether the district court’s failure to submit

the issue of materiality to the jury constituted plain

error warranting reversal of petitioner Congo’s con-

viction for making a false declaration before the grand

jury.

9. Whether the evidence was sufficient to support

petitioners’ convictions.

Bie,

TABLE OF CONTENTS

Page

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eo SE eT PLE PO a ea Nl ee 2

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III sa Aisa sundaes bicsind dohanbabhdiataeiaisisubisadsnensuiainickiecune 17

SRE REE SOS Sees MBA BO eR SE SS Oe Ee 30

TABLE OF AUTHORITIES

Cases:

Allen v. United States, 164 U.S. 492 (1896) ........... 7, 24

Arizona v. Washington, 434 U.S. 497 (1978) ......... 27

Brady v. Maryland, 373 U.S. 88 (1968) ............ 10, 22, 23

Buckley v. Valeo, 424 U.S. 1 (1976) ............ccceseeeees 22

Chapman v. United States, 500 U.S. 453 (1991) ... 21

Griffin v. United States, 502 U.S. 46 (1991) .......... 18

Jenkins v. United States, 380 U.S. 445 (1965) ....... 24

Johnson v. United Sates, 117 S. Ct. 1544 (1997).... 16, 29

Kyles v. Whitley, 514 U.S. 419 (1996) ................... 23

Leary v. United States, 395 U.S. 6 (1969) ............. 18

Lowenfield v. Phelps, 484 U.S. 231 (1988) ............. 24

McNally v. United States, 483 U.S. 350 (1987) ..... 4

Parker v. Levy, 417 U.S. 788 (1974) ..........sccscccseess 22

Remmer v. United States, 347-G:S-227 (1954) ...... 25, 26

United States v. Bagley, 473 U.S. 667 (1985) ........ 23

United States v. Barshov, 733 F.2d 842 (11th

Cir. 1984), cert. denied, 469 U.S. 1158 (1985) ........ 26-27

United States v. Davis, 15 F.3d 1393 (7th Cir.),

z cert. denied, 513 U.S. 896 (1994) ...................00.c000 26

United States v. Easter, 981 F.2d 1549 (10th Cir.

1992), cert. denied, 508 U.S. 953 (1993) ................. 27

United States v. Fioravanti, 412 F.2d 407 (3rd

Cir.), cert. denied, 396 U.S. 837 (1969) ..............0... 24

United States v. Flannery, 451 F.2d 880 (1st

EN 6B REEE ARON RSIERCRG A Fe Oia Osa RO 24

United States v. Glenn, 828 F.2d 855 (1st Cir.

NENT dai is lnludiec Suiielsla da Aehhniesshddian Gaevaddan tutes ecchaiaconieencineds 19

(IIT )

IV

Cases—Continued: Page

United States v. Gray, 790 F.2d 1290 (6th Cir.

1986), rev'd sub nom. McNally v. United States,

S00 ah SOO LIONE ii 21

United States v. Jain, 93 F.3d 436 (8th Cir. 1996),

cert. denied, 117-S. Ct. 2452 (1997) .........ccccc.000.... 20

United States v. Mazurie, 419 U.S. 544 (1975) ...... 22

United States v. Miller, 471 U.S. 130 CEMA coevadins 18

United States v. Newman, 982 F.2d 665 (1st

Cir. 1992), cert. denied, 510 U.S. 812 (1998) .......... 27

United States v. Olano, 507 U.S. 725 CREE Liicoveccs 26, 29

United States v. Runnels, 877 F.2d 481 (6th Cir.

es fn RET EERIE STIRS EC Lee Pt OE SI Ba Ne 21

United States v. Sawyers, 423 F.2d 1335 (4th

CAPs Se cris reiicuoreao ee 24

United States v. Thomas, 449 F.2d 1177 (D.C.

CA APTA D inistehbwincepancepibibies ces ae 24

United States v. Williams, 77 F.3d 1098 (8th Cir.),

cert. denied, 117 S. Ct. 892 (1996) ......................... 27

Zafiro v. United States, 506 U.S. 534 (1998) ........ 28

Statutes and rule:

Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690,

"ey I RR, UII ose ease 4

MD Reine: SAA ntpeade as cde ee Sea ee 3, 4, 17

BS Lids GE cuiacisucstieinse eee 4, 11, 18, 20, 21, 22

Ey REN eas SM Ses culanindyecsstwebomnaonici ic ee ee 5

BO MNase OME Wiis hp bssmideusls- rhea emacs Pee 5

POG. i. COUP. OU oi a ia 16, 29

Sixth Circuit Pattern Criminal Jury Instructions ... 8

Jn the Supreme Court of the United States

OCTOBER TERM, 1997

No. 97-1549

WALTER FROST, PETITIONER

v.

UNITED STATES OF AMERICA

No. 97-8295

ROBERT EUGENE TURNER, PETITIONER

v.

UNITED STATES OF AMERICA

No. 97-8305

PEGGY YOUNG POTTER, PETITIONER

v.

UNITED STATES OF AMERICA

No. 97-8328

RICHARD THOMAS CONGO, PETITIONER

v.

UNITED STATES OF AMERICA

(1)

No. 97-8374

DENNIS ALLEN FAULKNER, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A at 1-

65)' is reported at 125 F.3d 346, The opinion of the

district court (Pet. App. B at 1-11) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

September 12, 1997. A petition for rehearing was de-

nied on December 16, 1997. Faulkner Pet. App. B.

The petition for a writ of certiorari in No. 97-8328 was

filed on March 14, 1998. The petitions in Nos. 97-1549,

97-8295, 97-8305, and 97-8374 were filed on March 16,

1998. The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

STATEMENT

1. In the late 1980s and early 1990s, petitioner

Frost was a professor at the University of Tennessee

Space Institute (UTSI) in Tullahoma, Tennessee.

_—_—_

' “Pet. App.” refers to the appendix to the petition filed in

No. 97-1549.

3

Frost was also the owner and president of FWG Asso-

ciates, Inc. (F WG), a research firm that relied primar-

ily upon contracts with government agencies such as

the National Aeronautics and Space Administration

(NASA) and the Department of Defense. Petitioner

Turner was a part-time professor at UTSI and a vice-

president of FWG. Between 1987 and 1990, petitioners

Potter, Congo, and Faulkner were federal employees

pursuing either a master’s or a doctoral degree at

UTSI with tuition payments from the government.

Each of the three was an employee of NASA or the

Department of the Army who could benefit FWG

through his or her government position. Frost and

Turner provided written materials and assistance

from F WG employees to Potter, Congo, and Faulkner,

thereby enabling each of the students to receive a

graduate degree without completing a legitimate the-

sis or dissertation. In addition, Frost and Turner,

who served on the committees before which each stu-

dent orally defended his or her thesis or dissertation,

concealed from the other members of the committees

that the thesis or dissertation under review was not

the student’s own work. Pet. App. A at 2-3, 18, 29, 63.

2. A 3l-count superseding indictment returned in

the United States District Court for the Eastern

District of Tennessee charged each petitioner with

multiple counts of mail fraud, in violation of 18 U.S.C.

1341. See C.A. App. 89-112. Counts 1 through 16

alleged a scheme to defraud the United States of

money and property. The mailings charged in Counts

1, 8, and 15 were invoices submitted by UTSI to fed-

eral agencies for tuition for each student petitioner.

The indictment charged Frost and Turner with all

three of those counts, and each student with the count

relating to his or her own tuition payments. Id. at

98-103. The mailings charged in Counts 2 through 7,

4

9 through 14, and 16 were vouchers and claims relat-

ing to various contracts or modifications of contracts

between FWG and federal agencies, which Potter,

Congo, and Faulkner allegedly secured for FWG

through their government positions. Frost and

Turner were charged with all of those counts, and

each student petitioner was charged with the counts

relating to contracts with which he or she was

involved. /bid.

Counts 17 through 20 alleged a scheme to defraud

the University of Tennessee of the honest services of

its employees, Frost and Turner.” The mailings upon

which those counts were based were memoranda of

certification, mailed from UTSI to the University of

Tennessee at Knoxville, that the student petitioners

had passed their oral examinations and were eligible

to receive their degrees.* Frost and Turner were

charged as principals in all four counts, and each

student petitioner was charged as an aider and

abettor in the count relating to the memorandum of

certification pertaining to him or her. Pet. App. A at

3, 20; Gov’t C.A. Br. 6-7.

* The mail fraud statute, 18 U.S.C. 1841, proscribes mailings

in furtherance of “any scheme or artifice to defraud.” In

McNally v. United States, 483 U.S. 350 (1987), this Court held

that Section 1341 was “limited in scope to the protection of

property rights” and did not criminalize schemes “designed to

deprive individuals, the people, or the government of intangi-

ble rights.” Jd. at 358, 360. The following year, Congress en-

acted 18 U.S.C. 1346, which provides that, for purposes of the

mail fraud statute, “the term ‘scheme or artifice to defraud’

includes a scheme or artifice to deprive another of the intangi-

ble right of honest services.” Anti-Drug Abuse Act of 1988,

Pub. L. No. 100-690, § 7603(a), 102 Stat. 4508.

’ The mailing charged in Count 18 was the memorandum of

certification relating to a fourth UTSI student, Charles Hill.

Pet. App. A at 3, 20. Hill died before trial. Jd. at 3.

5

Counts 21 through 29 alleged a scheme to defraud

the federal government through the submission of

false billing claims. Counts 21 and 22 charged Frost

and Turner with billing the work of FWG employee

Robert Smith not according to which contract he

actually worked on, but according to which contract

would enable Frost and Turner to request the most

money. The mailings charged in those counts were

vouchers submitted by FWG to the government based

upon Smith’s time sheets, which had been altered at

Frost’s direction and with the assistance of Turner.

Counts 23 and 24 charged Frost with submitting

fraudulent vouchers to the government in connection

with trips to Las Vegas and Reno, Nevada. Counts 25

through 29 charged Frost with fraudulently billing

the government for bonuses paid to himself and other

F'WG employees under various FWG contracts, while

falsely labeling the vouchers as claims for direct la-

bor—i.e., work performed to fulfill the requirements

of the contracts—thereby enabling him to receive ad-

ditional payments for fringe and overhead costs. Pet.

App. A at 3-4, 47-48, 53; C.A. App. 106-10% Gov’t C.A.

Br. 20-23.

In addition to the mail fraud counts, Count 30

charged Frost with attempted obstruction of justice,

in violation of 18 U.S.C. 1508. See C.A. App. 108-109.

Count 31 charged Congo with making a false material

declaration before the grand jury, in violation of 18

U.S.C. 1628. See C.A. App. 110-112. Congo had testi-

fied that FWG employees offered to work on his dis-

sertation as colleagues and friends; the indictment

alleged that the testimony was false because Congo

knew that “FWG employees did not offer to aid him in

the preparation of his dissertation out of friendship,

but were directed to do so and did work on his

on ke

6

dissertation because of his position with NASA.” 7d.

at 112.

3. a. Petitioners’ trial before a jury began on

March 28, 1995. Pet. App. A at 4. Turner testified in

his own defense, completing his testimony on April

20, 1995. Jd. at 44. After Turner’s testimony, one of

the jurors, Golson, reported to the district court that

Turner had stated to the jury as he left the witness

stand, “You all take care of me.” Jbid. When defense

counsel questioned Turner about the remark, Turner

insisted that he had actually stated, “I hope I don’t

trip again.” Jbid. The district court_interviewed Gol-

son alone in chambers the next day. /bid. The eourt

asked the juror whether Turner “could * * * have

said something like I hope I don’t trip again,” to which

she responded, “No.” Jbid.

Golson told the court that four other jurors had

heard her report what she thought Turner had said.

The court then interviewed the four jurors identified

by Golson. None had heard what Turner had said, al-

though they did hear him mumble something, but

three had heard Golson say what she thought Turner

had said. Golson and the other jurors assured the

court that Turner’s comment would not influence

their verdict, that they would consider only the evi-

dence at trial, and that they could give Turner a fair

trial notwithstanding the remark. Pet. App. A at 44-

45; C.A. App. 647-648.

The district court denied Turner’s subsequent mo-

tion for a new trial based on that incident. C.A. App.

647-651. Turner argued that he was deprived of an

impartial jury because he and Golson had disagreed

about what he had said and Golson had in effect be-

come a witness against him. The district court, how-

ever, found “nothing in the record” to show that Gol-

son in fact knew that Turner had denied making the

7

comment she reported. /d. at 648-649. The court con-

cluded that Turner’s right to an impartial jury was

not violated, noting that “[a]fter interviewing and ob-

serving the demeanor of Golson and the other three

jurors,” it was “satisfied that the jurors including

Golson could be fair and impartial to Turner and all of

the defendants.” Jd. at 648, 650.

b. The jury began its deliberations on April 24,

1995, and continued deliberating on April 26 and April

27. Pet. App. A at 35-36. On April 27, the jurors sent

a note to the district court indicating that they had

reached verdicts on some counts with respect to two

defendants, but that they were “{dJeadlockf[ed] on

other counts concerning” those defendants. Jd. at 36.

The district court responded with a note asking the

jurors to “consider the cases against the other defen-

dants.” Jbid.

When the jurors resumed their deliberations the

following day, they informed the court that one juror,

Shelby, had brought a newspaper article and personal

notes into the jury room. During an in camera in-

terview with the district court, Shelby stated that

she had prepared the notes, which indicated that she

was generally favorable to the defense, because she

“felt a little maybe outnumbered.” The court allowed

Shelby to return to the jury room without the article

and notes. Pet. App. A at 36; C.A. App. 633-634.

Later that afternoon, at around 2:15, the jury sent

the court a message stating that “we have reached a

verdict on some counts but cannot seem to on the oth-

ers. Please advise.” Pet. App. A at 36. The district

court then delivered a supplemental jury instruction,

patterned after language approved by this Court in

Allen v. United States, 164 U.S. 492 (1896), request-

ing each juror to reconsider his or her position dur-

8

ing continued deliberations. The jury returned a

unanimous verdict at 4:15 p.m., finding each petitioner

* The court gave Sixth Circuit Pattern Criminal Jury In-

struction 9.04, stating as follows:

All right. Members of the jury, we got your message

here, and so I want to give you a further instruction in this

case. We're going to ask that you return to the jury room

and deliberate further. And I'm talking about the message

that indicated that you were unable to agree on certain

counts and certain matters. And I realize that you are

having some difficulty in reaching unanimous agreement,

but that is not unusual. And sometimes after further dis-

cussion, jurors are able to work out their differences and to

agree.

Please keep in mind how very important it is for you to

reach unanimous agreement. If you cannot agree, and this

case is tried again, there is no reason to believe that any

new evidence will be presented, or that the next 12 jurors

will be any more conscientious and impartial than you are.

Now, let me remind you that it is your duty as jurors to

talk with each other about the case, to listen carefully and

respectfully to each other’s views, and to keep an open

mind as you listen to what your fellow jurors have to say.

And let me remind you that it is your duty to make every

reasonable effort you can to reach unanimous agreement.

Each of you, whether you are in the majority or the minor-

ity, ought to seriously reconsider your position in light of

the fact that other jurors, who are just as conscientious and

impartial as you are, have come to a different conclusion.

Those of you who believe that the government has

proved the defendant guilty beyond a reasonable doubt

should stop and ask yourselves if the evidence is really

convincing enough, given that other members of the jury

are not convinced. And those of you who believe that the

government has not proven the defendant guilty beyond a

reasonable doubt should stop and ask yourselves if the

doubt you have is a reasonable one, given that other mem-

bers of the jury do not share your doubt. None of you

9

guilty on all counts with which he or she was

charged, except that Frost and Turner were acquit-

ted on Count 18 and Frost was acquitted on Count 30.

Pet. App. A at 38.

ce. After the jury returned its verdict, petitioners

learned that juror Shelby had left the jury room for

approximately twenty minutes during the afternoon

of April 28 to lie down in the clerk’s office because she

was experiencing chest pains. Pet. App. A at 41. Pe-

titioners moved for an evidentiary hearing to explore

whether Shelby had been exposed to any prejudicial

external influence during her absence from the jury

room. /bid. The district court denied the request for

a hearing, explaining that petitioners had “not alleged

or shown that any outside, extraneous influence was

brought to bear on Shelby which was likely to inter-

fere with the impartiality of the jury deliberations or

likely to be prejudicial to the defendants.” C.A. App.

629.

should hesitate to change your mind if, after reconsidering

things, you are convinced that the other jurors are right

and that your original position was wrong.

But remember this. Do not ever change your mind just

because other jurors see things differently, or just to get

the case over with. As I told you before, in the end, your

vote must be exactly that—your own vote. As important

as it is for you to reach unanimous agreement, it is just as

important that you do so honestly and in good conscience.

What I have just said is not meant to rush or pressure

you into agreeing on a verdict. Take as much time as you

need to discuss things. There is no hurry.

I would ask that you now return to the jury room to re-

sume your deliberations.

Pet. App. A at 36-37 & n.11.

10

d. Before trial, the government had sent a letter to

defense counsel stating that it intended to call as an

expert witness Chester Dailey, a government official

who oversaw one of the FWG contracts under which

Frost was alleged to have billed the government im-

properly for bonuses. The letter stated that Dailey

would testify that neither the contract nor govern-

ment regulations allowed Frost to bill the bonuses as

direct labor and that “[iJt is [Dailey’s] opinion that

this practice was deceptive.” Pet. App. A at 48. The

government did not call Dailey as a witness at trial.

Ibid.

After the trial, Frost filed a motion for a new trial

on Counts 25 through 29 or for an evidentiary hear-

ing, arguing that the government had violated its

obligation under Brady v. Maryland, 373 U.S. 83

(1963), by failing to disclose exculpatory evidence

provided by Dailey. In an affidavit attached to the mo-

tion, Dailey stated that, contrary to the government’s

representations in its letter, he had told the prosecu-

tor that he saw no evidence that Frost had billed the

bonuses in a deceptive manner. The district court

denied the motion for a new trial or for a hearing.

Pet. App. A at 48-49; C.A. App. 153-165.

e. The district court sentenced Frost to 24

months’ imprisonment and ordered him to pay

$126,625 in restitution to the government. The court

sentenced Turner to 12 months’ imprisonment and

ordered him to pay $841 in restitution. Potter was

sentenced to four months’ imprisonment; Congo was

sentenced to five months’ imprisonment; and Faulk-

ner was sentenced to three months’ imprisonment and

ordered to pay $1,560 in restitution. C.A. App. 113-

140.

1]

4. The court of appeals affirmed in part, reversed

in part, and remanded for further proceedings and for

resentencing. Pet. App. A at 1-65.

a. The court vacated petitioners’ convictions on

Counts 2 through 7, 9 through 14, and 16, see Pet.

App. A at 65, finding “insufficient evidence to uphold

the counts that rest upon an alleged scheme to

defraud the federal government of property in the

form of contract awards,” id. at 6-7. The court af-

firmed petitioners’ convictions on Counts 1, 8, and 15,

which charged petitioners with defrauding the gov-

ernment of tuition money for the three students. /d.

at 18-19, 65.

The court also upheld petitioners’ convictions on

Counts 17, 19, and 20, which alleged a scheme to

defraud the University of Tennessee of the honest

services of Frost and Turner. Pet. App. A at 20-33, 65.

Frost and Turner argued that 18 U.S.C. 1346, which

provides that for purposes of the mail fraud statute, a

“scheme or artifice to defraud” includes a scheme “to

deprive another of the intangible right of honest

services” (see note 2, supra), did not apply to them

because they were not public officials. The court

rejected that claim, holding that “private individuals,

such as Frost and Turner, may commit mail fraud by

breaching a fiduciary duty and thereby depriving the

person or entity to which the duty is owed of the

intangible right to the honest services of that

individual.” Pet. App. A at 25. The court further con-

cluded that the University of Tennessee had “a

property right in its unissued degrees, and Frost and

Turner had a fiduciary duty to the University when

exerting their considerable influence over whether

the school would give a degree to a student.” Jd. at

12

26.2 The court concluded that the evidence was

sufficient to sustain petitioners’ convictions on the

honest services counts, observing that “the record

contains considerable evidence that Frost and Turner

entered into an intentional scheme with each student

defendant ia which the professors enabled the student

to submit a thesis or dissertation secretly based on

plagiarism,” and that “the evidence indicates that all

defendants intended * * * that the University would

suffer a concrete business harm by unwittingly

conferring an undeserved advanced degree on each

student defendant.” Jd. at 29.°

° The court of appeals explained that “a university is a busi-

ness: in return for tuition money and scholarly effort, it agrees

to provide an education and a degree,” and that “{a]warding

degrees to * * * students who have not earned them” could

damage the reputation of the university “and thereby impair

its ability to attract other students willing to pay tuition, as

well as its ability to raise money.” Pet. App. A at 26. The dis-

trict court in this case instructed the jury that Frost and

Turner could be found to have deprived the University of its

right to their honest services only if the professors had failed

“to disclose something which in their knowledge or contempla-

tion posed a business risk of harm or loss to their employer, the

University of Tennessee.” Jbid. The court of appeals held

that the instruction “captured the proper standard for deter-

mining whether an employee has committed mail fraud by de-

priving his employer of honest services,” explaining that “(t]he

prosecution must prove that the employee intended to breach a

fiduciary duty, and that the employee foresaw or reasonably

should have foreseen that his employer might suffer an eco-

nomic harm as a result of the breach,” and that “[p]roof that

the employer simply suffered only the loss of the loyalty and

fidelity of the defendant is insufficient to convict.” Jd. at 27.

® Petitioners also challenged the district court’s jury in-

struction on the meaning of “scheme or artifice to defraud.”

Pointing to the court’s statement that “[a] scheme to defraud

may describe a departure from fundamental honesty, moral

13

The court also rejected Congo’s argument that

Section 1346 is unconstitutionally vague. Reiterat-

ing its holding that “private fiduciaries deprive an-

other of honest services when they, during a scheme

of intentional deception, breach their fiduciary duties

and reasonably do or should foresee that this breach

will inflict an identifiable economic harm upon the

person or entity to whom they owe their duty,” the

court concluded that “[t]he contours of § 1346 there-

fore are sufficiently clear for us to conclude that the

statute is not unconstitutionally vague on its face.”

Pet. App. A at 31.

b. With respect to Counts 25 through 29, the court

of appeals remanded for an evidentiary hearing on

Frost’s Brady claim. Pet. App. A at 65. The court

explained that “Frost may be able to show a reason-

able probability that the verdicts would have been

different with [Chester] Dailey’s testimony, and

therefore show entitlement to a new trial on Counts

Twenty-Five through Twenty-Nine.” Jd. at 52. It

rejected the contention of Frost and Turner that the

evidence provided by Dailey required a new trial on

the other counts that alleged a scheme to defraud

the government through improper billing (Counts

21 through 24), explaining that Dailey’s testimony

uprightness, or fair play and candid business dealings in the

general life of the community,” petitioners claimed that the

instructions permitted the jury to convict them simply for hav-

ing violated such vague standards as “fundamental honesty” or

“moral uprightness.” The court of appeals rejected that claim,

explaining that the “disputed language * * * occurred in the

context” of the district court’s “detailed instructions” on the

mail fraud counts, “which, as a whole, provided that the jury

could not convict defendants merely for not having acted ac-

cording to fundamental honesty or moral uprightness.” Pet.

App. A at 32-33.

14

“related only * * * to the counts based upon the

billing of bonuses as direct costs,” and was

“unrelated” to petitioners’ convictions on the other

counts. /d. at 52-53.

c. The court of appeals rejected several challenges

based on the circumstances of the jury’s delibera-

tions. Pet. App. A at 35-47. First, the court held-that

the district court had not abused its discretion by giv-

ing an Allen charge after the jury indicated that it

was having difficulty reaching a verdict on some of

the counts. Jd. at 38. The court of appeals noted that

the pattern instruction delivered by the district court

“directed both majority and minority jurors to recon-

sider their positions” and “cautioned all jurors not to

surrender their personal convictions merely in order

to achieve consensus by acquiescing in the majority

opinion.” bid. The court rejected petitioners’ sug-

gestion that the Allen charge was nevertheless coer-

cive because the district court knew when it delivered

the instruction that juror Shelby favored the defense

and was in the minority. The court of appeals ob-

served that the district court “did not know whether

Shelby was the lone dissenter” or “whether Shelby

was leaning towards the defense or was in the minor-

ity with regards to each defendant and each count.”

Id. at 38-39. Moreover, the jury’s messages to the dis-

trict court indicated that it had already reached

unanimous verdicts with respect to some charges.

Accordingly, the court of appeals concluded that “the

circumstances of this case do not compel the conclu-

sion that a tired minority finally acceded to the ma-

jority opinion-in the face of an Allen charge.” Id. at

40.

The court of appeals also held that the district

court had not abused its discretion by denying peti-

tioners’ request for a post-verdict hearing to deter-

15

mine whether Shelby had been exposed to prejudicial

external influences when she left the jury room to lie

down in the clerk’s office. The court explained that

petitioners had “presented no basis upon which to be-

lieve that Shelby even had experienced an external

contact or communication regarding matters pending

before the jury during her absence from the delibera-

tions.” Pet. App. A at 41-42. The court also noted

that petitioners could have investigated what had oc-

curred during Shelby’s absence simply by talking to

employees in the clerk’s office. Jd. at 42.

The court of appeals also rejected Turner’s conten-

tion that the district court had erred by not declaring

a mistrial or excusing juror Golson. Pet. App. A at

44-47. The court found no abuse of discretion in the

district court’s determination that Golson remained

impartial, noting that the court had “interviewed Gol-

son and believed her assertions of continued imparti-

ality to be credible.” Jd. at 47.

d. Congo challenged the sufficiency of the evidence

to support his conviction for making a false material

declaration before the grand jury (Count 31), claiming

that his statement to the grand jury that FWG em-

ployees offered to work on his dissertation as col-

leagues and friends was “literally true.” The court of

appeals rejected that contention. Pet. App. A at 55-56.

The court explained that the testimony of FWG

employee Karen Seiser, along with other “circum-

stantial evidence that Congo knew that his statement

that Seiser had offered to work on his dissertation as

a colleague and a friend was false,” supported the

jury’s finding that “Congo lied about his beliefs con-

cerning the motives of Seiser.” Jd. at 56.

Congo also argued that his conviction on Count 31

should be reversed because the district court, rather

than the jury, had decided the issue of whether his

16

false statements to the grand jury were material.

Because Congo had not raised that claim in the

district court, the court of appeals applied the plain-

error standard set forth in Federal Rule of Criminal]

Procedure 52(b). Pet. App. A at 56-57. Relying on

this Court’s decision in Johnson v. United States, 117

S. Ct. 1544 (1997), the court of appeals held that the

district court’s failure to submit the issue of

materiality to the jury was “error” and that the error

was “plain.” Pet. App. A at 57. It held, however, that

Congo could not show that the error had “seriously

affected the fairness, integrity, or public reputation of

judicial proceedings,” because “the evidence of mate-

riality in this case was overwhelming.” Jd. at 57-58.

The court explained that “the grand jury was investi-

gating whether Frost and Turner were helping stu-

dents to attain their degrees without completing le-

gitimate dissertations in exchange for agreements by

the students to use their government positions to se-

cure contracts or contract modifications for FWG,”

and that testimony bearing on the question whether

F'WG employees who worked on Congo’s dissertation

“did so voluntarily and on the basis of friendship, or

instead acted out of compulsion and at the direction of

Frost * * * was clearly capable of influencing the

grand jury in its determination of whether defendants

were participating in a fraudulent degrees-for-con-

tracts scheme.” Jd. at 58.

e. Frost and Potter contended that the district

court had erred by denying their motions to sever.

Frost argued that not every count of the indictment

should have been joined against him; Potter claimed

that her case should not have been joined with those

of her co-defendants and that the counts against her

were joined improperly. The court of appeals rejected

those claims, holding that “[tJhe joining of Counts

17

One through Twenty, as well as Counts Thirty and

Thirty-One, was proper,” and that even if the counts

alleging fraudulent billing under FWG contracts

(Counts 21 through 29) were not properly joined with

the remaining counts, “any possible error was harm-

less.” Pet. App. A at 61-62. The court also rejected

Potter’s assertion that she was prejudiced by the

introduction of evidence relating to misconduct by

Frost and Turner, noting that the district court had

instructed the jury to consider the charges and

evidence against each defendant separately and that

Potter’s convictions which had been upheld were

supported by “overwhelming evidence.” Jd. at 62-63.

ARGUMENT

1. Petitioners contend (Frost Pet. 13-19; Turner

Pet. 19-25; Potter Pet. 6-15; Congo Pet. 6-9) that the

superseding indictment did not allege a separate

scheme to defraud the government of tuition money,

and that the court of appeals’ disposition of the case

resulted in a constructive amendment of the indict-

ment. That claim is without merit.

The court of appeals reversed, as unsupported by

the evidence, the counts of conviction in this case that

were based on a scheme to defraud the federal gov-

ernment of contracts. See Pet. App. A at 4-18. The

court nevertheless affirmed petitioners’ convictions

on Counts 1, 8, and 15 of the superseding indictment.

Id. at 65. It construed those counts as “charging

[petitioners] with violating § 1341 by defrauding the

government of tuition money,” id. at 18, and found

those charges to be supported by the evidence, id. at

19.

Contrary to petitioners’ suggestion, Count 1 of the

indictment did not charge merely a “degrees-for-

contracts” scheme. Rather, the indictment broadly

18

charged petitioners with scheming “to defraud and to

obtain money and property * * * from the United

States and various federal agencies.” C.A. App. 92;

see Pet. App. A at 3. The indictment further charged

that as part of the scheme to defraud, petitioners

“cause[d] the government to pay for their classes in

graduate programs at UTSI.” C.A. App. 94. The

court of appeals concluded that the evidence at peti-

tioners’ trial “easily yields the conclusion that each

defendant participated in a secret scheme in which

the student defendants received their graduate de-

grees without having completed a legitimate thesis or

dissertation, thereby defrauding * * * the govern-

ment of tuition money.” Pet. App. A at 63. Because

petitioners were properly convicted based upon proof

that “correspond{ed] to an offense that was clearly set

out in the indictment,” there was no impermissible

amendment of the indictment. United States v.

Miller, 471 U.S. 130, 136 (1985); ef. id. at 187 (where

indictment alleges a single scheme to defraud that

encompasses “several relatively distinct plans,” no

prejudicial variance occurs if only one of the plans is

proved by sufficient evidence and the jury convicts for

that plan). See also Griffin v. United States, 502 U.S.

46, 56-57 (1991) (“[WJhen a jury returns a guilty ver-

dict on an indictment charging several acts in the

conjunctive, * * * the verdict stands if the evidence

is sufficient with respect to any one of the acts

charged.”),’

? Petitioners rely (Frost Pet. 18; Turner Pet. 24; Potter Pet.

13; Congo Pet. 8) on Leary v. United States, 395 U.S. 6 (1969).

That decision is inapposite. As the Court noted in Griffin,

Leary held that reversal is required when a conviction “may

have rested on an unconstitutional ground.” 502 U.S. at 55.

The Court in Griffin specifically declined, however, to extend

19

Potter and Faulkner also contend (Potter Pet. 15-

19; Faulkner Pet. 3-5) that there was a constructive

amendment of the indictment or a variance with re-

spect to their convictions on the counts that alleged a

scheme to defraud the University of Tennessee of the

honest services of Frost and Turner. The court of

appeals concluded that the proof at trial was sufficient

to sustain petitioners’ convictions on those counts,

pointing to evidence that “Frost and Turner entered

into an intentional scheme with each student defen-

dant in which the professors enabled the student to

submit a thesis or dissertation secretly based on pla-

giarism,” and that “all defendants intended * * *

that the University would suffer a concrete business

harm by unwittingly conferring an undeserved ad-

vanced degree on each student.” Pet. App. A at 29.

Potter and Faulkner contend, however, that the in-

dictment charged merely that they abetted Frost and

Turner “in misusing their positions at [the Univer-

sity of Tennessee] so that they could defraud the gov-

ernment and obtain contracts illegally,” and that if

that rule to situations in which one possible basis for conviction

is unsupported by sufficient evidence. See id. at 55-60.

Petitioners’ reliance (Frost Pet. 18; Turner Pet. 25; Potter

Pet. 13-14; Congo Pet. 9) on United States v. Glenn, 828 F.2d

855 (1st Cir. 1987), is also misplaced. The court in Glenn did

not announce a per se rule that the insufficiency of the evi-

dence regarding a defendant’s participation in a broad conspir-

acy requires reversal of counts that charge a narrower plan

and that are supported by the evidence. Rather, the court

engaged in a case-specific analysis of the relevant evidence be-

fore concluding that the defendant had been prejudiced by

submission of the broader theory to the jury. See id. at 859-860.

The court noted in particular that “[uJnder a proper indict-

ment, the government could not have established venue in

Rhode Island,” the district where the defendant’s trial oc-

curred. /d. at 860. The instant case raises no similar concern.

20

the actions of Potter and Faulkner “defrauded the

university then that is what should have been, but

was not, charged.” Faulkner Pet. 4, 5; see also Potter

Pet. 17, 18. In fact, however, the indictment charged

just that, alleging that the students aided and abetted

Frost and Turner in scheming “to defraud the Uni-

versity of Tennessee of its right to the honest serv-

ices” of the professors. C.A. App. 104. There is con-

sequently no basis for petitioners’ constructive

amendment or variance claim.

2. Petitioners contend (Frost Pet. 19-21; Turner

Pet. 25-27; Potter Pet. 24-26; Congo Pet. 12-14) that 18

U.S.C. 1346, which defines a scheme to defraud for

purposes of the mail fraud statute to include a depri-

vation of the right to “honest services,” applies only

to the “services” of public officials or persons with

fiduciary duties to the public, and does not apply to

deprivations of honest services by private persons.

The court of appeals correctly rejected that claim.

Section 1346 broadly defines a “scheme or artifice

to defraud,” for purposes of the mail fraud statute, to

include a “scheme or artifice to deprive another of the

intangible right of honest services.” Nothing in the

language or the history of Section 1346 supports the

limitation that petitioners propose. Although some

courts have expressed concern about “definfing] the

outer limits of the private sector rights to ‘honest

services’ that are * * * protected by § 1346,” United

States v. Jain, 93 F.3d 436, 442 (8th Cir. 1996), cert.

denied, 117 S. Ct. 2452 (1997), petitioners cite no deci-

sion holding that Section 1346 is limited to schemes

involving the services of public officials. Thus, con-

21

trary to petitioners’ assertion, there is no conflict in

the circuits on the question presented.’

Petitioners also argue (Frost Pet. 21-22; Turner

Pet. 27-28; Potter Pet. 20-24; Congo Pet. 13-14;

Faulkner Pet. 5-6) that the court of appeals’ ruling

that Section 1346 applies to schemes to deprive an

employer of the right to the honest services of its em-

ployees “creates potential criminal liability so broad

that it renders the statute void for vagueness.” That

claim is likewise without merit. Under this Court’s

precedents, petitioners may not successfully attack

Section 1346 as unconstitutionally vague by showing

that hypothetical situations may exist in which appli-

cation of the statute would be ambiguous. Rather,

petitioners can prevail only hy demonstrating that

the statute failed to provide clear warning that their

own conduct was proscribed. See Chapman v. United

States, 500 U.S. 453, 467 (1991) (“First Amendment

freedoms are not infringed * * * , so the vagueness

8 Petitioners contend (Frost Pet. 19-20; Turner Pet. 26-27;

Potter Pet. 25-26; Congo Pet. 13) that the Sixth Circuit’s deci-

sion in this case conflicts with that court’s earlier view of the

intangible-rights theory expressed in United States v. Gray,

790 F.2d 1290 (6th Cir. 1986), rev’d swb nom. McNally v.

United States, 483 U.S. 350 (1987). A claimed intra-circuit

conflict does not warrant this Court’s review, but in any event,

there is no conflict. As the court of appeals explained (Pet.

App. A at 24-25), the Sixth Circuit, sitting en banc, subse-

quently rejected the suggestion in Gray that the mail fraud ~

statute, as lower courts had construed it before McNally, did

not apply to schemes by private fiduciaries to defraud private

parties of their right to honest services. See United States v.

Runnels, 877 F.2d 481, 483-484 (6th Cir. 1989) (en banc) (“The

trial judge, correctly in our opinion, read Gray to have no ef-

fect on the doctrine that the [pre-McNally] intangible rights

theory was ‘applicable to non-public officials where a fiduciary

duty is involved.’”).

22

claim must be evaluated as the statute is applied to

the facts of this case.”); United States v. Mazurie,

419 U.S. 544, 550 (1975) (“[VJagueness challenges to

statutes which do not involve First Amendment free-

doms must be examined in the light of the facts of the

case at hand.”); Parker v. Levy, 417 U.S. 733, 756

(1974) (“One to whose conduct a statute clearly ap-

plies may not successfully challenge it for vague-

ness.”).

In this case, as the court of appeals observed (Pet.

App. A at 29), petitioners engaged in an “intentional

scheme” in which Frost and Turner “enabled [each]

student to submit a thesis or dissertation secretly

based on plagiarism.” Thus, the court found (ibid.),

“(t]he inescapable conclusion is that defendants in-

tended for Frost and Turner to breach the trust

which the University had placed in them.” Because a

“person of ordinary intelligence,” Buckley v. Valeo,

424 US. 1, 77 (1976) (per curiam), would know that pe-

titioners’ conduct defrauded the University of its

right to the honest services-of its professors, the ap-

plication of Section 1346 did not violate due process.’

3. The court of appeals concluded (Pet. App. A at

47-53) that the district court should have conducted

an evidentiary hearing on Frost’s claim that the gov-

ernment violated its obligation under Brady v. Mary-

land, 373 U.S. 83 (1963), by failing to disclose exculpa-

tory evidence provided by Chester Dailey. The court

accordingly remanded the case for a hearing to de-

* Turner argues (Pet. 10-11) that he was not on the

“payroll” of the University of Tennessee and therefore owed

no fiduciary duty to the University. Even assuming the cor-

rectness of tiat claim, the indictment also charged Turner

with aiding and abetting Frost in defrauding the University of

its right to Frost’s honest services. C.A. App. 104.

23

termine whether Frost should receive a new trial on

Counts 25 through 29. Pet. App. A at 65. Frost and

Turner contend (Frost Pet. 22-25; Turner Pet. 29-31)

that the court of appeals should have remanded for a

hearing to determine whether they should receive a

new trial on Counts 21 through 24 as well, which also

alleged a scheme to defraud the government through

improper billing. The court of appeals correctly re-

jected that claim.

In Brady, this Court held that “the suppression by

the prosecution of evidence favorable to an accused

upon request violates due process where the evidence

is material either to guilt or to punishment.” 373

U.S. at 87. The Court has subsequently explained

that “favorable evidence is material, and constitu-

tional error results from its suppression by the gov-

ernment, ‘if there is a reasonable probability that, had

the evidence been disclosed to the defense, the result

of the proceeding would have been different.’” Kyles

v. Whitley, 514 U.S. 419, 433-434 (1995) (quoting

United States v. Bagley, 473 U.S. 667, 682 (1985)

(opinion of Blackmun, J.)). In this case, as the court of

appeals explained (Pet. App. A at 52-53), Dailey’s tes-

timony related only to the counts based upon the

billing of bonuses as direct costs (Counts 25 through

29). Because the testimony was unrelated to the

other billing counts (Counts 21 through 24), which

were based upon improper billing for travel and for

work performed by an FWG employee, there was no

“reasonable probability” that disclosure of the excul-

patory evidence would have altered the outcome of the

trial with respect to those counts.

4. Turner raises three claims concerning the

jury’s deliberations. All were correctly rejected by

the court of appeals and none warrants further review

by this Court.

24

a. Turner first argues (Pet. 6-8) that, on the par-

ticular facts of this case, the district court’s use of

the Allen charge was impermissibly coercive. In Al-

len v. United States, 164 U.S. 492, 501-502 (1896), this

Court held that it was proper for a district court to

give a supplemental instruction to a deadlocked jury

encouraging the jurors to be open-minded and to re-

consider their views if possible so that a verdict

might be reached. The Court again upheld the propri-

ety of such a charge in Lowenfield v. Phelps, 484 U.S.

231, 237-241 (1988). The Court observed that every

circuit has approved the use of some form of supple-

mental instruction advising jurors of their duty to

deliberate and to attempt to reach a verdict. Jd. at 238

n.l.

Whether an Allen charge is impermissibly coercive

depends on the terms of the charge, its context, and

“all the circumstances.” Jenkins v. United States,

380 U.S. 445, 446 (1965); Lowenfield, 484 U.S. at 237.

As the court of appeals correctly observed (Pet. App.

A at 38), the Allen charge given here was “properly

worded.” Indeed, petitioner does not object to the

language of the charge; rather, his sole objection

0 The court of appeals noted (Pet. App. A at 38) that the

instruction given by the district court “directed both majority

and minority jurors to reconsider their positions” and

“cautioned all jurors not to surrender their personal convic-

tions merely in order to achieve consensus by acquiescing in

the majority opinion.” Thus, the instruction did not run afoul

of the primary criticism of the Allen charge—-namely, that it

directs only jurors in the minority to reexamine their views.

See, e.g., United States v. Flannery, 451 F.2d 880, 883 (1st Cir.

1971); United States v. Thomas, 449 F.2d 1177, 1183 (D.C. Cir.

1971); United States v. Sawyers, 423 F.2d 1335, 1342 (4th Cir.

1970); United States v. Fioravanti, 412 F.2d 407, 417 (3d Cir.),

cert. denied, 396 U.S. 837 (1969).

25

(Pet. 6) is that the instruction was given “after tak-

ing a break to allow one of the jurors who was crying

to compose him or herself, and with the understand-

ing that [jjuror Shelby, perhaps the same juror that

was crying, felt outnumbered.” In denying petition-

ers’ motion for a new trial, however, the district court

specifically noted that it had informed counsel before

giving the Allen charge that the crying juror was not

Shelby “and that the tears were caused by a problem

unrelated to jury deliberations.” C.A. App. 626.

Moreover, as the court of appeals explained (Pet. App.

A at 38-39), although the district court knew that

Shelby was in the minority and favored the defense,

the court did not know whether Shelby was the “lone

dissenter” or was “leaning towards the defense or

was in the minority with regards to each defendant

and each count.” Indeed, the district court was aware

that the jury had reached unanimous verdicts with

respect to some counts of the indictment. Jd. at 40.

Petitioner suggests no reason to conclude that an

evenhanded reminder of the jurors’ duty to consult

with each other and to reach a consensus if they could

do so without violence to their individual judgments

was impermissibly coercive in those circumstances.

b. Turner contends (Pet. 8-10) that the district

court should have conducted a post-verdict hearing to

determine whether juror Shelby had been exposed to

any improper extrinsic influence when she left the

jury room for a brief period to lie down in the clerk’s

office. Turner relies on Remmer v. United States,

347 U.S. 227 (1954). In that case, a juror reported to

the judge during a criminal trial that he had been con-

tacted by a stranger who had told the juror that he

could profit by returning a verdict favorable to the de-

fendant; the FBI then investigated the matter and

submitted a report to the judge and prosecutors. Id.

26

at 228. This Court remanded for a hearing to deter-

mine whether the incident was harmful to the defen-

dant and, if so, to grant a new trial /d. at 229-230.

Turner contends (Pet. 9) that under Remmer, the

district court was required to conduct a hearing to

“explore[]” the “circumstances surrounding Shelby’s

absence from the jury room.”

As this Court has observed, however, “it is virtu-

ally impossible to shield jurors from every contact or

influence that might theoretically affect their vote.”

United States v. Olano, 507 U.S. 725, 738 (1993).

Thus, courts have held that a post-verdict hearing is

required only when the defendant makes a “colorable

showing” that a juror was exposed to an improper ex-

ternal influence United States v. Davis, 15 F.3d 1393,

1412-1413 (7th Cir.), cert. denied, 513 U.S. 896 (1994).

In this case, unlike Remmer, petitioner has “pre-

sented no basis upon which to believe that Shelby

even had experienced an external contact or commu-

nication regarding matters pending before the jury

during her absence from the deliberations.” Pet. App.

A at 42. Rather, as the court of appeals found, “the

record here suggests only that Shelby retired to a

couch in the [e]lerk’s office to lie down for about

twenty minutes, not that she ever encountered any

external influence pertaining to this case during that

period.” Jbid. Under those circumstances, the court

of appeals correctly held that the district court did

not abuse its discretion by declining to conduct a

hearing on petitioner’s wholly speculative claim. See

United States v. Barshov, 733 F.2d 842, 851 (11th Cir.

1984) (“mere speculation” is not sufficient to require

district court to investigate allegation that jury was

27

subjected to improper extrinsic influence), cert. de-

nied, 469 U.S. 1158 (1985)."

ce. Turner argues (Pet. 11-17) that the district

court erred by not declaring a mistrial or excusing

juror Golson after Golson informed the court that

Turner had asked the jury to “take care of me,” and

that she had repeated the remark to other jurors.

Turner contends (Pet. 14-15) that Golson thereby be-

came a witness as to Turner’s credibility, depriving

Turner of his right to an impartial jury.

District courts have wide latitude in responding to

allegations of juror misconduct or bias, and their de-

cisions may be overturned only for abuse of discre-

tion. See, eg., United States v. Williams, 77 F.3d

1098, 1100 (8th Cir.), cert. denied, 117 S. Ct. 392 (1996);

United States v. Newman, 982 F.2d 665, 670 (1st Cir.

1992), cert. denied, 510 U.S. 812 (1993); United States

v. Haster, 981 F.2d 1549, 1553 (10th Cir. 1992), cert.

denied, 508 U.S. 953 (1993). In this case, the district

court questioned Golson and each of the other jurors

to whom she had repeated Turner’s remark. The

court concluded that “the jurors including Golson

could be fair and impartial to Turner and all of the de-

fendants.” C.A. App. 648-650; see Pet. App. A at 47.

Petitioner’s challenge to the district court’s findings

does not warrant this Court’s review. See Arizona v.

Washington, 434 U.S. 497, 513 (1978) (“compelling in-

There is also no basis for Turner’s contention (Pet. 8)

that applicable restrictions on defense counsel’s contacts with

former jurors effectively precluded counsel from investigating

the possibility that Shelby had been exposed to improper influ-

ences. As the court of appeals observed (Pet. App. A at 42),

petitioner “could have tried to discover what happened to

Shelby during her absence simply by talking to staff members

of the Clerk’s office.”

28

stitutional considerations” justify appellate deference

to trial judge’s evaluation of allegation of juror bias).

5. Potter argues (Pet. 30-33) that the district

court abused its discretion by denying her motion for

severance. She claims (Pet. 33) that the joint trial

subjected her to “prejudicial spillover” of evidence.

Much of the evidence to which Potter objects, how-

ever, was relevant to her convictions for defrauding

the government of tuition money and for aiding and

abetting Frost and Turner in defrauding the Univer-

sity of the professors’ honest services, which were

upheld by the court of appeals. See Pet. App. A at 63

(noting that “the convictions of Frost and Potter

which have withstood our review all rest upon over-

whelming evidence” that “each defendant participated

in a secret scheme in which the student defendants

received their graduate degrees without having com-

pleted a legitimate thesis or dissertation”).

As the court of appeals explained, moreover (Pet.

App. A at 63), the trial court “minimized any preju-

dice” that might otherwise have resulted by “in-

structing the jury to consider only the evidence

against each defendant on each charge, and to return

separate verdicts, without regard to the other

charges or defendants.” The district court did not

abuse its discretion in dealing with any possible

prejudice in that manner rather than by granting a

severance. See Zafiro v. United States, 506 U.S. 534,

538-539 (1993) (determination of risk of prejudice and

any necessary remedy is left to sound discretion of

district courts; limiting instructions “often will suf-

fice to cure any risk of prejudice”). In any event, peti-

tioner’s severance claim presents no legal question of

general importance and therefore warrants no fur-

ther review by this Court.

29

6. Congo contends (Pet. 14-20) that the court of ap-

peals was required to reverse his conviction for mak-

ing a false material declaration before the grand jury

(Count 31) because the district court decided the is-

sue of materiality rather than submitting that ques-

tion to the jury. As the court of appeals correctly

held, that claim is foreclosed by this Court’s decision

in Johnson v. United States, 117 S. Ct. 1544 (1997).

In Johnson, as in this case, the defendant did not ob-

ject at trial to the district court’s failure to submit

the element of materiality to the jury. 117 S. Ct. at

1547; see Pet. App. A at 57. The Court held that, in

the absence of a timely objection, a district court’s

failure to submit an element of an offense to the jury

is subject to plain-error review under Rule 52(b) of

the Federal Rules of Criminal Procedure. 117 8. Ct.

at 1548. Such an error does not warrant reversal of

the underlying conviction unless, inter alia, it

“seriously affect{s] the fairness, integrity, or public

reputation of judicial proceedings.” Jd. at 1549

(quoting United States v. Olano, 507 U.S. 725, 732

(1993)). The Court determined that the defendant in

Johnson had failed to establish her entitlement to re-

lief under that standard because she had presented

“no plausible argument” that her false statement was

immaterial to the pertinent grand jury investigation.

Id. at 1550.

As the court of appeals explained (Pet. App. A at 58),

the false declaration for which Congo was convicted—

i.e., his testimony before the grand jury that FWG

employees who worked on his dissertation “did so vol-

untarily and on the basis of friendship,” rather than

“out of compulsion and at the direction of Frost’—

was clearly material to the grand jury’s investigation

30

of the fraudulent degrees-for-contracts scheme.”

Congo offers no reason to question the court of ap-

peals’ conclusion concerning the materiality of his

false statements, instead arguing only that the

statements were “literally true.”” In the absence of

any “plausible argument” that the statements were

immaterial to the grand jury’s investigation, the dis-

trict court’s failure to submit the element of materi-

ality to the jury provides no basis for disturbing peti-

tioner’s conviction.

7. Finally, petitioners challenge the sufficiency of

the evidence to support their convictions on various

counts of the indictment. See Turner Pet. 18-19; Pot-

ter Pet. 26-30; Congo Pet. 9-11; Faulkner Pet. 6-10.

Each of those claims is limited to the particular facts

of this case and was properly considered and rejected

by the court of appeals. Further review is not war-

ranted.

CONCLUSION

The petitions for a writ of certiorari should be

denied.

2 As the court of appeals recognized (Pet. App. A at 59), a

defendant may be prosecuted for a false declaration whether or

not the grand jury investigation in which the declaration is

made ultimately leads to an indictment or conviction. The in-

sufficiency of the evidence regarding the charged degrees-for-

contracts scheme therefore does not affect the validity of

Congo’s conviction on Count 31. Jbid.

3 The court of appeals rejected that claim, finding ample

evidence to support the jury’s finding that Congo lied about his

belief that FWG employees offered to work on his dissertation

as colleagues and friends. Pet. App. A at 55-56. Petitioner’s

disagreement with the court’s assessment of the strength of the

evidence against him has no importance beyond the specific

circumstances of this case and therefore does not warrant re-

view by this Court.

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31

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

: JOHN C. KEENEY

: Acting Assistant Attorney

General

NINA GOODMAN

Attorney

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