BAPERN case from approx 1993

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________ No. 90-1174
UNITED STATES OF AMERICA,
Appellee, v.
SHELDON ARTHUR YEFSKY,
Defendant, Appellant.
____________________ APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. David S. Nelson, Senior U.S.
District Judge]
__________________________
____________________ Before
Torruella, Circuit Judge,
_____________ Coffin,
Senior Circuit Judge,
____________________ and Cyr, Circuit
Judge. _____________
____________________ Theodore L.
Craft for appellant. _________________ Louis M.
Fischer, Attorney, Department of Justice, with whom A.
________________ __
John Pappalardo, United States Attorney, was on brief for appellee.
_______________
____________________ May 3, 1993
____________________
-1- COFFIN, Senior Circuit Judge.
Sheldon Yefsky was convicted
____________________ by a jury of a dual-object conspiracy,
in violation of 18 U.S.C. 371 and 1341, and of four
counts of mail fraud, unrelated to the conspiracy, in
violation of 18 U.S.C. 1341. On appeal, Yefsky raises a
number of challenges to his conviction. After an exhaustive
review of the record, we affirm.
I. We begin with a brief description of the
facts and proceedings. The Greater Boston
Police Council (GBPC) was formed in the early 1960s as a
mutual aid society for various metropolitan area law
enforcement agencies. The GBPC enabled its members to
purchase equipment at reduced prices pursuant to collective
purchase agreements. As an unincorporated association, the GBPC
relied on one of its members to act as its fiduciary agent.
At all times relevant to this case, the Town of
Newton, whose police chief William Quinn served as the chair
of the GBPC, fulfilled that role. Quinn, in turn, relied
heavily on Timothy Coogan, a civilian employee of the police
department, to conduct the daily operations of the GBPC.
Coogan became a full-time employee after graduating
from law school and ended his affiliation with Newton
in mid-1985, when the offenses underlying this case surfaced.
A primary concern of the GBPC was the inability of
the member police departments to communicate with each
other by radio. To solve this problem, the GBPC
undertook a project to develop an integrated radio system
for its members. This system became known as the Boston
Area Police Emergency Radio Network (BAPERN).
In 1975, the GBPC hired a Chicago-based firm, Computer and
Engineering Services (CES), of which Yefsky is president, to
assess the existing radio systems. One year later, CES was
awarded a bid contract of $31,000 to design and implement
BAPERN. The system used Motorola equipment, which was
available at a discount through a GBPC collective purchase
contract. By June 1978, BAPERN was fully
operational, connecting 23 cities and towns, and Coogan
had became the BAPERN project director and general
counsel and administrator for the GBPC. In these capacities,
Coogan exercised financial and administrative control of
GBPC affairs, including the BAPERN project. He
encouraged organizations to join BAPERN and recommended CES to
them for engineering and design work. Coogan alone received
shipping orders from BAPERN members to the GBPC,
prepared GBPC/Newton shipping orders to CES and
Motorola, approved invoices from these businesses to the
GBPC/Newton for payment, prepared bills from the
GBPC/Newton to the BAPERN members, and received the
members' payments. Newton officials, including Quinn,
merely rubber stamped his work. Coogan was, in many
respects, the person most identified with the GBPC. In
1985, the Internal Revenue Service (IRS) began an
investigation of Coogan, which revealed large amounts of income
that he had not reported to the IRS. The unreported income
-3- stemmed from two
sources. First, Coogan had become a paid consultant to
International Telecommunications Service, Inc. (ITS), a
subsidiary of CES, to perform engineering field work on the
BAPERN system. Second, Coogan had overcharged GBPC members
for radio equipment and had diverted the overcharge to a secret
bank account for his personal use. In 1989,
Coogan, Yefsky, his son Michael Yefsky, the president
of ITS, and Samuel Diamond, the financial officer and tax
preparer for CES and ITS, were charged with numerous criminal
violations stemming from their involvement in the BAPERN project.
The indictment charged the existence of two separate schemes to
defraud members of the GBPC and charged Coogan alone with
tax fraud for concealing his illicit profits from both
schemes (Counts 2-4). The first scheme
charged was a conspiracy involving all four defendants (Count
1). The goals of the conspiracy were to pay Coogan
kickbacks for sending engineering work to CES and to help him
hide that income from the IRS. The kickbacks were the
payments ITS made to Coogan, allegedly for his field services.
At trial, the government explained that the kickbacks were
financed by charging GBPC members for engineering services
that were unnecessary or never were performed or by
overcharging for work actually done. The second
intrigue implicated Coogan and Yefsky in a mail fraud
scheme based on the equipment overcharge and diversion of
funds for Coogan's personal use (Counts 5-14). The government
-4- consistently has
admitted that this was a scheme distinct from the
engineering conspiracy. The mailing of ten payments for
equipment, maintenance fees, and BAPERN expansion fees by member
organizations comprised the individual mail fraud counts.
A tedious and rambling trial stretching 86 days ensued.
Over 1000 exhibits were admitted, with more than half subjected
to limitations as to the various counts and defendants.
The government alone consumed 44 days and 878 exhibits to
present its case-in-chief. Yefsky used another 24 days and
376 exhibits to present his defense. The thrust of his
defense was that he did not join in either the conspiracy or
the equipment scheme but was a pawn of Coogan.
At the trial's conclusion, the jury convicted Coogan of all
14 counts against him. It convicted Yefsky of the conspiracy
count and 4 of the 10 mail fraud counts. It also convicted
Michael Yefsky and Diamond of the conspiracy count, the
only charge against them. During the
proceedings below, Yefsky made many motions, the decisions
of which form the bases of this appeal. These motions
include a motion for acquittal based on insufficiency of the
evidence; a motion to dismiss the indictment for insufficiency
and double jeopardy; a motion for severance; and an
omnibus motion for a new trial that reiterated many of
these issues as well as errors at trial.
Yefsky, his son, and Diamond appealed their convictions.
The government then conceded the insufficiency of the evidence
-5- supporting the
convictions of Michael Yefsky and Diamond, and the verdicts
against them were set aside and dismissed. United
______
States v. Yefsky, Memorandum and Order, Nos. 90-1222, -1240 (1st
______ ______ Cir. Jan. 29, 1993). Coogan did
not appeal his conviction. Yefsky's appeal remains, and we
turn now to the issues he raises.
II. Yefsky contends that the district court erred in
denying his motion, renewed at close of trial, for
acquittal based on insufficiency of evidence. When
reviewing a motion for acquittal, we consider the
evidence in the light most favorable to the prosecution.
United States v. Torres Lopez, 851 F.2d 520,
_____________ ____________ 527 (1st Cir. 1988).
We, therefore, "draw[] all legitimate inferences and
resolv[e] all credibility determinations in favor of the
verdict." United States v. Angiulo, 897 F.2d 1169, 1197
______________ _______ (1st Cir. 1990).
A. The Conspiracy Count ____________________
To support a verdict of guilt, the evidence must prove each
element of a conspiracy beyond a reasonable doubt.
These elements are the existence of a conspiracy, the
defendant's knowledge of it, and his voluntary participation
in it. United
______ States v. David, 940 F.2d 722, 735 (1st
Cir. 1991). To prove ______ _____ voluntary
participation, the government must show that the
defendant intended both to agree with his co-conspirators and to
commit the substantive offense. Id. Moreover, when the
___ commission
of mail fraud is a goal of the conspiracy, the
government must show either an intent to use the mails or the
-6- reasonable
foreseeability of such use. United States v. Dray,
_____________ ____ 901
F.2d 1132, 1137 (1st Cir. 1990). We turn now to the facts
that the jury reasonably could find in support of the verdict.
In 1979, the relationships among the GBPC, Coogan, and
Yefsky changed, allowing the conspiracy to germinate.
First, Coogan was forced to leave regular employment with
the Newton Police Department because he was maintaining
a private law practice. He became instead a consultant to
the Department and, in 1980, to the GBPC. His duties,
however, remained the same: assistant to Quinn (as
police chief and GBPC chair), administrator of and
general counsel to the GBPC, and project director of
BAPERN. In addition, his contracts permitted him to engage
in other telecommunications consulting work. Second,
government funding and oversight of the BAPERN project
ended. Coogan then prepared an open-ended consulting
contract for CES that defined its role during the expansion of
BAPERN. The new contract called for CES to provide engineering
services as requested by shipping orders issued through Newton
on behalf of the GBPC members. The CES
contract did not permit CES to use subcontractors without
written consent from Newton. Nonetheless, in December
1979, CES entered a contract with ITS by which ITS would perform
field implementation studies and services for various CES
projects, including BAPERN, and CES would pay ITS's salaries
and overhead expenses.
-7- At some point during this period, Coogan
approached Yefsky, proposing to become CES's local "clerk
of the works" for the BAPERN project. In December 1979,
Coogan entered a contract with ITS to provide field
engineering; site, installation and testing supervision; and
training for the BAPERN expansion. Unlike Yefsky's
other subcontractors, Coogan was paid a fixed price for each
project on which he worked and was not required to submit
time sheets to corroborate his fee. Neither Yefsky nor Coogan
ever revealed their subcontracting relationship to the GBPC.
Coogan, in fact, repeatedly denied to Chief Quinn engaging in
any outside telecommunications consulting work.
From 1980 to mid-1985, 25 to 30 organizations joined the
BAPERN system. Coogan recommended CES to many of them for
engineering work. As a result, CES's income skyrocketed; during
this period, the firm received approximately $964,000
for engineering services relating to BAPERN. More than half
of the payments were for field work billed by Coogan.
Coogan, in turn, received approximately $484,760 from ITS
for his services. CES reimbursed ITS for this and other
expenses, pursuant to their subcontract. Many
of the payments for engineering were inflated or
unnecessary. Yefsky himself testified that he had not performed
work for some of the police departments that had paid for
engineering services. Some departments also paid more to
the GBPC than CES had billed GBPC. Payments routinely were
sent to the GBPC by mail.
-8- Coogan did not report his ITS income to the
IRS. Nor did ITS file Forms 1099 with the IRS to reflect
payments to Coogan. ITS did, however, list the consulting
fees as business expenses on its corporate tax returns.
CES also listed its payments to ITS as business expenses.1
From these facts, the jury reasonably could draw a series
of inferences to connect Yefsky to the mail fraud prong
of the conspiracy. The jury could find that, once
government oversight ended, Coogan and Yefsky grasped an
opportunity to make money out of the BAPERN project. Thus,
it could find that Coogan drafted the open-ended CES
contract so that CES could pay him kickbacks to steer work
orders to CES. It also could find that CES and Coogan
financed the kickbacks by charging inflated fees for
engineering work actually performed or completely false fees for
work never performed. Accordingly, the jury could find that
Yefsky and Coogan agreed to enrich themselves by defrauding
the members of BAPERN. Because we find the
evidence sufficient to support Yefsky's conviction of
conspiring to commit mail fraud, we uphold his conviction
on Count 1 without considering the sufficiency of the
evidence supporting the tax fraud object. See Griffin v. United
___ _______ ______
States, 112 S. Ct. 466, 473-74 (1991) (evidence supporting
one ______
____________________ 1 CES and ITS had taken
deductions for their payments to Coogan. But they were
never indicted for tax fraud in connection with the kickback
scheme. Although the two companies were audited by
the IRS, they were not required to pay additional taxes
for the years in question. -9-
object of dual-object conspiracy held sufficient to
support conspiracy conviction). B. The Mail Fraud
Counts _____________________ The indictment
charged Yefsky and Coogan with ten counts of mail fraud in
connection with the equipment overcharge scheme. Each
mailing represented a payment from a BAPERN member that
Coogan diverted to his secret bank account. Yefsky was convicted
of four of the ten counts. A conviction for mail
fraud2 requires proof of two elements beyond a reasonable
doubt. They are the defendant's participation in a
scheme to defraud and the use of the mails, either by or
caused by the defendants, in furtherance of the scheme.
United States v. Serrano, 870 F.2d 1, 6 (1st Cir. 1989).
_____________ _______ The defendant need not
instigate the scheme so long as he willfully
participates in it, with the knowledge of its
fraudulent nature and with the intent to achieve its illicit
objectives. Id. (citing United States v. Price, 623 F.2d 587,
___ ______________ _____ 591
(9th Cir. 1980)).
____________________ 2 The mail fraud statute, 18
U.S.C. 1341, provides in relevant part:
Whoever, having devised or intending to devise any
scheme or artifice to defraud, or for obtaining money
or property by means of false or fraudulent pretenses,
representations, or promises, . . . for the purpose of
executing such scheme or artifice or attempting so to
do . . . takes or receives [from the Postal Service]
any such matter or thing, or knowingly causes to be
delivered by mail according to the direction thereon .
. . shall be fined not more than $1,000 or imprisoned
not more than five years, or both.
-10- A mailing falls within the scope of the
fraud if it is sufficiently connected to the scheme to
defraud and reasonably is foreseeable as a result of the
participants' actions. United
______ States v.
Pacheco-Ortiz, 889 F.2d 301, 305 (1st Cir. 1989); ______
_____________ United States v. Silvano, 812 F.2d 754, 760
(1st Cir. 1987). The _____________ _______
mailing of proceeds of a fraudulent scheme is sufficient to
uphold a conviction for mail fraud. Silvano, 812 F.2d at 760
_______
(citations omitted). Yefsky challenges the sufficiency
of evidence linking him to the scheme to defraud and to the
mailings. Because each count of which he was convicted
undisputedly represents a mailing of proceeds of the
scheme, Yefsky's convictions must be affirmed if the
evidence sufficiently supports his participation in the
scheme to overbill for equipment. We turn, therefore, to the
evidence of Yefsky's participation in the equipment scheme.
In 1982, the GBPC negotiated a new contract with Motorola
for the purchase of equipment. Yefsky assisted Coogan in
the negotiations, which resulted in deeper discounts for
BAPERN members. Coogan then began to bill BAPERN
members inflated prices for Motorola equipment. He also
provided false price lists, representing them as part of
the Motorola contract, to corroborate the prices he
charged. A Motorola employee testified at trial that a
comparison of Motorola bills with GBPC bills for equipment
revealed that Coogan had overcharged BAPERN members by at
least $888,000. -11-
Coogan deposited the overcharge into a bank account opened
under GBPC's name but without its knowledge or authorization. He
was the only person authorized to withdraw funds from
this account. By December 1984, over $1.5 million had been
deposited into the account. Coogan diverted this money for
personal use, such as purchasing certificates of deposit and
paying mortgages. The government conceded at oral
argument that Yefsky had no knowledge of this account and
did not share in the proceeds from the overcharge.
Yefsky, however, was present at meetings when inflated
prices were quoted and discussed. He also recommended the kinds
of equipment to be purchased to organizations joining BAPERN
and included inflated price lists, obtained from
Coogan, in feasibility studies he conducted for two
organizations. The facts connecting Yefsky to the
equipment scheme are not as numerous as those
connecting him to the engineering conspiracy.
Nonetheless, the jury could conclude that Yefsky knew that
the equipment prices were being inflated because he had
helped to negotiate the purchase agreement that established the
legitimate prices. It could conclude that Yefsky then joined the
equipment scheme by supporting and using Coogan's quotations
of inflated prices. It also could conclude that Yefsky
entered the scheme to ensure Coogan's ongoing
participation in the engineering conspiracy. These
inferences and the facts supporting them are sufficient
to sustain Yefsky's convictions of mail fraud.
-12-
III. Yefsky next challenges the adequacy of the
indictment, claiming that the engineering fraud prong of the
conspiracy count was defective because it did not specify
the false pretenses used.3 He contends that this defect
deprived him of the ability to present a meaningful defense.
The district court agreed that the count did not specify
the false pretenses alleged but determined that the
indictment as a whole sufficiently warned Yefsky of the
charges against him. Memorandum and Order, December 20,
1988, at 2. It therefore refused to dismiss the
engineering fraud count. We disagree with the district court's
decision but find its error harmless. Rule 7(c)(1)
of the Federal Rules of Criminal Procedure requires an
indictment to provide "a plain, concise and definite written
statement of the essential facts constituting the offense
charged." The Supreme Court has instructed that an indictment is
sufficient if it contains the elements of the offense charged,
fairly informs the defendant of the charges against which he
must defend, and enables him to enter a plea without fear
of double jeopardy. Hamling v. United States, 418 U.S.
87, 117 (1974); _______ ______________
accord, United States v. Serino, 835 F.2d 924, 929 (1st Cir.
______ _____________ ______
____________________ 3 The original indictment
charged the engineering fraud in Count 5 as a conspiracy
separate from the tax fraud conspiracy. When the district
court ordered that the two be consolidated, the allegations
of the engineering fraud were incorporated virtually
verbatim into Count 1. Thus, Yefsky's motion to dismiss Count 5
applies on appeal to Count 1 of the superseding indictment. We
refer to the original Count 5 as the "engineering conspiracy"
or the "engineering fraud" to avoid confusion with the tax
fraud prong of the conspiracy now charged.
-13- 1987). The indictment may
incorporate the words of the statute to set forth the
offense, but the statutory language "`must be accompanied
with such a statement of the facts and circumstances as
will inform the accused of the specific offense, coming under
the general description, with which he is charged.'" Hamling,
_______
418 U.S. at 117-18 (quoting United States v. Hess, 124 U.S.
483, _____________ ____
487 (1888)). An indictment for conspiracy, however, need not
allege the predicate offense with the same precision as
the substantive count. Wong Tai v. United States, 273 U.S.
77, 81 ________ _____________
(1927); United States v. Fusaro, 708 F.2d 17, 23 (1st Cir. 1983).
_____________ ______ Focusing on this
last principle, the government argues that the indictment
passes muster. It urges that the challenged count's
imprecision regarding the mail fraud objective is
irrelevant. Because the count clearly charged an agreement to
_________
defraud by use of the mails, the government argues that Yefsky
was able to prepare a defense to the conspiracy charge.
We disagree. "`Where guilt depends so crucially upon such a

_ specific identification of fact, our cases have
uniformly held ________________________________ that
an indictment must do more than simply repeat the language
of the criminal statute.'" Hamling, 418 U.S. at 118 (quoting
_______ Russell v. United
States, 369 U.S. 749, 764 (1962)) (emphasis in _______
_____________ Hamling). We think a mail fraud conspiracy
depends so crucially _______ on the underlying fraud
that the fraud also must be specified in the applicable
count. -14- We
reach this conclusion based on the unusual nature of mail
fraud. A multi-member mail fraud is itself treated like a
conspiracy. See Serrano, 870 F.2d at 6 (multi-member fraud
___ _______ requires each member to
participate in common scheme with intent to commit fraud);
see generally United States v. Wormick, 709
______________ ______________ _______ F.2d 454, 461
(7th Cir. 1983) (applying conspiracy principles to
multi-defendant mail fraud indictment). Thus, the engineering
conspiracy count essentially charged Yefsky with agreeing to
commit another conspiracy.4 Yefsky could not be expected
to defend himself from a charge of conspiring to join a
conspiracy to perpetrate a fraud if the indictment did
not identify the fraud that was the ultimate underlying
offense. It is undisputed that the engineering
conspiracy count did not identify the plan used to
defraud the GBPC. The count alleged only that Coogan had
used his control over the GBPC to arrange CES's
open-ended engineering contract in 1979, that Coogan had
signed a contract with ITS to provide field services, that
CES received approximately $964,000 under its new contract,
and that ITS paid Coogan $484,760. None of these allegations, on
their face, describe fraudulent conduct. The count then stated
in conclusory language drawn from the mail fraud statute
that Coogan had obtained this money from the GBPC
members through false pretenses. It did not divulge the
factual basis of this
____________________ 4 Yefsky, of course, could have
been charged with both conspiracy to commit the
engineering fraud and with the substantive mail fraud
without risking double jeopardy. See
___ infra Section
VI. _____ -15-
accusation. Accordingly, the count did not provide Yefsky with
adequate notice of the charge against him. Cf. United States
v. ___
_____________ Nance, 533 F.2d 699, 702 (D.C. Cir. 1976)
(noting with approval _____ mail fraud count
that specifies misrepresentations); United
______ States v.
Curtis, 506 F.2d 985, 990 (10th Cir. 1974) (citations
______ ______ omitted) (dismissing mail fraud indictment
that excludes false pretenses). The district
court, however, upheld the sufficiency of the indictment
because it held that "such specification can be
inferred from a reading of the entire indictment." Memorandum
and Order at 2.

The substantive mail fraud counts specified that Coogan and
Yefsky had charged inflated rates for equipment. The court
reasoned that the similarity of the engineering conspiracy
and the substantive equipment scheme enabled Yefsky to determine
that the false pretenses used for the conspiracy must have been
overcharges for engineering services. Contrary
to the district court's ruling, the deficiency in the count
was not curable by reading the indictment as a whole.
"`Each count in an indictment is regarded as if it was a separate
indictment.'" United States v. Winter, 663 F.2d 1120, 1138 (1st
_____________ ______ Cir. 1981)
(quoting Dunn v. United States, 284 U.S. 390, 393
____ _____________ (1932)); 1 Charles A.
Wright, Federal Practice and Procedure:
________________________________ Crim. 2d
(Federal Practice and Procedure) 123 at 349 (1982).
_________ _______________________________ Thus, each count
must be sufficient without reference to other counts
unless the allegations of those counts expressly are
incorporated. Winter, 663 F.2d at 1138 (quoting United States v.
______ _____________
-16- Fulcher, 626 F.2d
985, 988 (D.C. Cir. 1980)); 1 Federal Practice _______
________________ and
Procedure 123 at 349. The engineering conspiracy count did
_____________ not incorporate any of the allegations
underlying the equipment fraud counts. We therefore review
it standing alone, and, as it was written, the engineering
conspiracy count was defective. Indeed, there is no
reason for the conspiracy count to refer to the separate
equipment fraud counts. Although it makes sense to read a
conspiracy indictment as a whole when the substantive
offenses also are the objects of the conspiracy, see, e.g.,
___ ____
Fusaro, 708 F.2d at 23, the substantive mail fraud counts in
this ______ case did not flow from the conspiracy
count. The substantively charged scheme encompassed
overcharges for equipment, not engineering, and,
throughout trial, evidence of the two different overcharges
was limited to the appropriate counts. We consider it
disingenuous of the government to abandon this distinction,
which it repeatedly has emphasized, when the blurring of the
schemes conveniently serves a specific argument.
The finding of error does not, however, conclude our
inquiry. We still must determine whether the defect in the
indictment prejudiced Yefsky. Fusaro, 708 F.2d at 23 (citations
______ omitted).

Having reviewed the record and considered the impact of the
error on the jury, we conclude "`with fair assurance,
after pondering all that happened without stripping the erroneous
action from the whole, that the [jurors'] judgment was not
substantially swayed by the error.'" United States v. Burke,
948 _____________
_____ F.2d 23, 27 (1st Cir. 1991) (quoting United States v.
Mazza, 792
_____________ _____ -17-
F.2d 1210, 1216-17 (1st Cir. 1986) (quoting Kotteakos v.
United
_________ ______ States, 328 U.S. 750, 765 (1946))).
______ Although the indictment itself did not
warn Yefsky of the nature of the engineering conspiracy,
he received ample notice before trial of the facts
underlying it. Months before trial, the district court's
decision on his motion informed Yefsky that "it would have
been necessary for the defendant to charge inflated
rates in order to make the alleged kickbacks to
defendant Coogan." Memorandum and Order at 2. In addition,
documents provided by the government during discovery revealed
the overcharges that formed a basis for the
engineering conspiracy. Yefsky, moreover, took 24 days
to present his defense, which thoroughly explored his
involvement in the BAPERN project and laid the blame for the
engineering fraud at Coogan's feet. He thus had ample
opportunity to rebut the government's charges. The defect,
therefore, was harmless. IV.
Yefsky also contends that the conspiracy improperly
was joined with the substantive offenses and should
have been severed. Alternatively, Yefsky argues that,
because the joint trial prejudiced him, the district court
should have severed the counts and also should have
separated his trial from Coogan's. We deal first with the
question of joinder and second with the question of
severance. A. Joinder _______
-18- Rule 8 of the Federal Rules
of Criminal Procedure governs the joinder of offenses.
Offenses may be charged jointly if the acts or transactions
from which they stem are related. Fed. R. Crim. P. 8(a),
(b). Yefsky contends that joinder of the conspiracy,
tax fraud, and mail fraud counts was improper because each
set of offenses was comprised of a discrete series of acts.
The district court determined that despite the distinct nature of
the three offenses, the acts underlying them were sufficiently
connected for the offenses to be joined. Memorandum and Order
at 3-5. Our review of joinder is plenary. United
States v.
_____________ Natanel, 938 F.2d 302, 306-07 (1st Cir.
1991) (citing United _______
______ States v. MacDonald & Watson Waste
Oil Co., 933 F.2d 35, 59 (1st ______
_________________________________ Cir. 1991)).
Yefsky points out the following dissimilarities among the
counts. The engineering conspiracy involved one scheme to pay
kickbacks to Coogan and to help him evade tax liability; the tax
fraud encompassed Coogan alone; and the substantive fraud
scheme entailed a distinct plot to inflate equipment
prices, which overcharge Coogan alone pocketed. The
conspiracy also predated the equipment overcharge scheme by
three years. Yefsky argues that the only common thread in
these charges is Coogan and that this single strand is too
weak to bind the three offenses. There can be no
doubt that the tax fraud counts properly were joined with
either the conspiracy or the mail fraud counts. As the
district court noted, it is axiomatic that a defendant can be
charged with both the conspiracy and the substantive offenses
-19- arising from it. United
States v. Boylan, 898 F.2d 230, 245 (1st
_____________ ______ Cir. 1990); United States v. Arruda,
715 F.2d 671, 678 (1st Cir. _____________
______ 1983). In this case, the conspiracy embraced many
of the acts that constituted the tax fraud offenses and,
therefore, the two properly were joined under Rule 8(b).
Similarly, the tax fraud and mail fraud counts could be
joined because some of the unreported income was the
fruit of the mail fraud scheme. See
___ United States v.
Treadwell, 566 F. Supp. 80, 86-87 (D.D.C. 1983),
_____________ _________ aff'd, 760 F.2d 327 (D.C. Cir.
1985). _____ The harder question is whether
the conspiracy and the mail fraud counts properly were
joined. Although Count 1 accused defendants of
conspiring to commit mail fraud, this engineering conspiracy
differed from the equipment scheme charged
substantively in Counts 5-14. To determine if the two schemes
sufficiently were connected to the same series of acts to be
joined, we must consider whether there is "substantial
identity of facts or participants" underlying the
charged offenses. United States v. Levine, 546 F.2d 658, 662
(5th Cir. 1977). Mere _____________ ______
similarity of the acts would not suffice. Natanel, 938 F.2d at
_______ 307;
King v. United States, 355 F.2d 700, 703 (1st Cir. 1966).
____ _____________ We conclude that the
indictment properly consolidated these counts. Both schemes
used the same basic mechanism to overcharge for services and
equipment. As the district court found, the engineering
conspiracy and the equipment fraud shared the same
participants and victims and overlapped in time. Both offenses
depended on the interrelationships among the GBPC, Coogan, and
-20- Yefsky for their
operation. A joint trial of the offenses thus avoided
problems of inconsistent verdicts and repetition of
testimony. See United States v. Doherty, 867 F.2d 47, 63 (1st
___ ______________ _______ Cir. 1989).
Accordingly, the acts underlying the offenses were
sufficiently related to warrant joinder. A finding of
proper joinder does not, however, end our inquiry. If
a defendant is prejudiced from the joinder of counts,
severance may be appropriate, pursuant to Fed. R. Crim. P.
14.5 We, therefore, must consider whether the benefit of
joinder outweighed the risk of prejudice to the defendant. King,
____
355 F.2d at 704. B. Severance _________
Yefsky argues that the district court erred in refusing
to sever the engineering conspiracy from the equipment
fraud6 and his trial from Coogan's. The decision to
grant severance is committed to the district court's sound
discretion. Zafiro v.
______ United States, 61 U.S.L.W. 4147,
4148-49 (U.S. Jan. 26, 1993); ______________
Natanel, 938 F.2d at 308. Severance is appropriate "only if
_______
____________________ 5 Rule 14 provides in relevant
part: If it appears that a defendant or the
government is prejudiced by a joinder of offenses or of
defendants in an indictment or information or by such
joinder for trial together, the court may order an
election or separate trials of counts, grant a
severance of defendants or provide whatever other
relief justice requires. 6 We do not
address the question of severing Counts 2-4. Because Coogan
was the only defendant charged with tax fraud and he has not
appealed, these offenses will not be re-tried and cannot
affect Yefsky on a remand.
-21- there is a serious risk that a joint trial would
compromise a specific trial right of one of the defendants,
or prevent the jury from making a reliable judgment about
guilt or innocence." Zafiro, 61 U.S.L.W. at 4148.
Incidental spillover prejudice, ______ which is
almost inevitable in a multi-defendant trial, does not
suffice. United States v. Sabatino, 943 F.2d 94, 97 (1st Cir.
_____________ ________ 1991); United
States v. Martinez, 922 F.2d 914, 923 (1st Cir.
_____________ ________ 1991). We will not reverse a
denial of severance, therefore, unless the defendant makes
"`a strong showing of prejudice.'" United States v. Gray,
958 F.2d 9, 14 (1st Cir. 1992) (quoting _____________
____ United States v. Font-Ramirez, 944 F.2d 42, 45 (1st Cir.
1991)). _____________ ____________ We look
first at the severance of counts. In his pre-trial motion
to sever, Yefsky suggested only that evidence of the
amount of money garnered from the equipment fraud would overwhelm
the lack of evidence of his participation in the engineering
scheme. The district court refused to sever the counts,
finding the mere allegation of potential spillover
insufficient to warrant severance. Memorandum and Order at
6. We agree with the district court. It was Yefsky's
burden to articulate specific ways in which he was
prejudiced. Zafiro, 61
______ U.S.L.W. at 4149. To make the
requisite strong showing of prejudice, a defendant must
"present enough information . . . to satisfy the court
that the claim of prejudice is genuine." United States
v. Tracy, No. 92-1459, slip op. at 9 (1st Cir.
_____________ _____ March 29, 1993) (quoting Baker v.
United States, 401 F.2d 958, _____
_____________ 977 (D.C. Cir. 1968)). Speculative
allegations of prejudice fall
-22- far short of the prejudice required to prove an
abuse of discretion in denying a motion for severance.
United States v.
______________ Porter, 764 F.2d 1, 13 (1st Cir.
1985) (citations omitted). ______ Yefsky did not
provide the district court with a factual basis to determine
if his claim of prejudice was genuine. On this record, the
court did not err in denying the motion to sever counts.7
Yefsky also contends that he was prejudiced by being tried
with Coogan. Specifically, Yefsky argues that the weight of the
evidence against Coogan, coupled with the lack of specific
instructions at the close of trial limiting that evidence
to Coogan, prevented him from presenting adequately his
defense that he was merely a pawn in Coogan's scheme.
This argument first ignores the fact that Yefsky was charged
with Coogan in a conspiracy and in a separate mail fraud
scheme. Evidence against Coogan thus was admissible
against Yefsky.8
____________________ 7 On appeal, Yefsky suggests for
the first time that he was prejudiced by the jury's
inability to differentiate between the engineering
conspiracy and the equipment scheme. He bases his
argument on the fact that the four substantive counts of which he
was convicted involved projects for which he personally performed
engineering work. Because this argument was not presented to
the district court, even though Yefsky raised the issue of
severance again in his post-judgment motion for a new
trial, we do not consider it on appeal. Tracy, slip op.
at 9 n.2 (citing United _____
______ States v. Zannino, 895 F.2d 1, 17
(1st Cir. 1990)). ______ _______ 8 Toward
the close of trial, the district court determined that a
preponderance of the evidence demonstrated the existence of
a conspiracy, each defendant's membership in it at the time
that certain declarations were made, and that these declarations
were made in furtherance of the conspiracy. It therefore allowed
the issue of conspiracy to go to the jury. See United States
v. ___
_____________ Petrozziello, 548 F.2d 20, 23 (1st Cir. 1977).
The court later ____________ charged the jury
that it could consider each co-conspirator's acts and
statements in determining a defendant's participation in the
conspiracy. Yefsky did not challenge this instruction.
-23- Sabatino, 943 F.2d at 96; see
Wormick, 709 F.2d at 461 (applying ________
___ _______ conspiracy doctrines to multi-member mail
fraud schemes). A separate trial, therefore, would not
have availed Yefsky. Second, the argument overlooks the
fact that mere antagonism of defenses does not require
severance. Zafiro, 61 U.S.L.W. at
______ 4148; Arruda, 715 F.2d at 679
(citations omitted). Instead, the ______
tension between defenses must be so great that a jury would have
to believe one defendant at the expense of the other. Arruda,

______ 715 F.2d at 679. Yefsky has not met this standard.
Although Yefsky proclaimed his innocence by blaming
Coogan, Coogan merely denied the occurrence of any fraud.
Yefsky cannot credibly complain that a jury believing
Coogan's defense therefore would find Yefsky guilty.
The district court, in fact, took appropriate steps to
minimize any spillover prejudice Yefsky might suffer.
It routinely issued instructions limiting the evidence
to the appropriate counts and defendants. Juries are
presumed to follow such instructions. Richardson v.
Marsh, 481 U.S. 200, 211 __________
_____ (1987). It also instructed the jury to
give separate consideration to an individual defendant's
guilt on each count. These instructions were sufficient to
cure incidental prejudice from evidentiary spillover. See
Zafiro, 61 U.S.L.W. at 4149.
___ ______ Rule 14 leaves the determination of the
risk of prejudice and any necessary remedy to the court's
discretion. The district court weighed the risk to Yefsky
and acted suitably to protect him. Because Yefsky has not
shown any manifest prejudice, the
-24- district court did not abuse its discretion in
denying his motion to sever.
V. Yefsky next argues that the district
court erred in excluding defense evidence offered at trial
and that the errors prevented him from presenting his
defense. We review each piece of evidence in turn.
A. Maxine Yefsky _____________ Maxine
Yefsky acted as bookkeeper for her husband's and son's
firms. She testified that she had no accounting training
and had problems filing correct Forms 1099 with the IRS. The
district court barred her from testifying about a conversation
she had had with Coogan in January 1981 about these forms.
Ms. Yefsky would have testified that Coogan had told her not
to file the forms for him because his office would. The
court excluded Coogan's statement as hearsay.
Yefsky contends that the court erred in excluding Coogan's
statement as hearsay. Yefsky urges that the evidence was not
hearsay because he sought to introduce it only to demonstrate his
wife's reliance on the statement and his own lack of intent
to help Coogan evade taxes. See United States v. Hicks, 848
F.2d 1, ___ _____________ _____
3 (1st Cir. 1988) (evidence not offered for its truth is
not hearsay). The government agrees on appeal that the
testimony wrongly was excluded. We must
consider, however, whether the error harmed Yefsky. Lubanski
v. Coleco Indus., Inc., 929 F.2d 42, 47 (1st Cir. 1991).
________ ___________________
-25- Our inquiry depends on the centrality of the evidence
excluded and the prejudicial effect of the exclusion.
Id. at 46
___ (citations omitted). Yefsky argues that the
error was highly prejudicial because it effectively
prevented him from presenting a defense to the tax fraud
conspiracy. His defense was that he had no knowledge of
and no intent to assist Coogan's wrongdoing but was merely a
pawn. Our review of the record convinces us that
the error was harmless. This evidence was relevant only
to the tax fraud objective of the conspiracy count. As we
have found sufficient evidence of Yefsky's participation
in the engineering fraud objective, see Section II supra,
the erroneous exclusion of Ms. ___
_____ Yefsky's testimony did not affect Yefsky's conviction
on Count 1.9 B. Motorola ________
Two Motorola employees called by Coogan testified about
their involvement with the BAPERN project. Both testified
that they had made sales proposals to prospective customers
and had had conversations with their supervisors regarding
GBPC pricing procedures and policies. One employee also
testified that he knew of equipment prices quoted by
Coogan. The court prohibited as hearsay testimony about
the substance of the witnesses'
____________________ 9 Moreover, on
cross-examination, Yefsky testified that his wife had
informed him of her conversation with Coogan. He also
testified that, in not filing the tax forms, she had relied on
Coogan's assurance that he would. His trial counsel used this
testimony in closing argument to support Yefsky's
defense. Yefsky himself thus cured the error, and he cannot
complain now of prejudice.
-26- conversations with their supervisors and their
customers, which would have revealed Motorola's awareness
of Coogan's pricing practice. At trial,
Yefsky attempted to use this testimony to show that
Motorola had offered BAPERN prices to non-GBPC members. On
appeal, Yefsky argues instead that the testimony was admissible
to demonstrate his lack of knowledge that Coogan was inflating
prices. The government again concedes that the
disputed testimony would not be hearsay if offered for the
purpose Yefsky now advances. But because Yefsky raises this
issue for the first time on appeal, we review the exclusion
for plain error. United
______ States v. Young, 470 U.S. 1, 15
(1985). Yefsky can prevail only ______ _____ if
the error was so egregious that he suffered a miscarriage of
justice. Id. ___ Yefsky does not
meet this standard. Although the employees did not testify
about the actual price discrepancies, they did state that
they did not discuss the discrepancies with the GBPC
chairman. Yefsky thus was able to argue that Motorola tolerated
the inflated prices. Yefsky also called a third Motorola
employee who testified that Yefsky had consulted Motorola
before making three price proposals and that those
prices matched Motorola's. Yefsky thus could argue that
he did not assist Coogan to inflate equipment prices, or
at least acted in good faith when he quoted prices, and
that Motorola did not inform him of Coogan's overcharging.
Under these circumstances, Yefsky had
-27- adequate fuel for his defense and did not
suffer from the exclusion of the testimony in question.
Yefsky also claims that the district court erroneously
excluded the depositions of two police chiefs, which also
would have shown Motorola's knowledge of Coogan's pricing
practice. Deposition testimony is admissible, however,
only when the witness is unavailable. Fed. R. Evid.
804(b)(1). One of the witnesses actually testified at trial
for the government and, so, clearly was available. Yefsky
has offered no evidence that the other witness was
unavailable. No error, therefore, occurred. C. Harvard
Radio Tower Project ___________________________
A Harvard official testified about Harvard's entry to the
BAPERN system. Yefsky then tried to elicit evidence of work he
subsequently performed on the Harvard radio tower. The
district court excluded the evidence as irrelevant. Yefsky
argues that the testimony was admissible as evidence of his
good faith as a general business practice. A
district court enjoys broad discretion regarding the
admissibility of evidence on relevancy grounds. Conway v.
______
Electro Switch Corp., 825 F.2d 593, 597 (1st Cir. 1987). We will
____________________ reverse a court's decision only
upon a showing of manifest abuse of discretion. Id.
(citations omitted). ___ Yefsky
does not make such a showing. At trial and on appeal,
Yefsky concedes that his work on the Harvard radio tower
project was not connected to any GBPC or BAPERN contract. Nor
was it temporally related to BAPERN, for the project came two
-28- years after he
completed work on Harvard's entry to BAPERN. Accordingly,
the district court did not abuse its discretion in refusing
to admit testimony so tenuously connected to the issues at
hand.10 VI.
Finally, we turn briefly to the issues remaining in Yefsky's
appeal. A. Double Jeopardy _______________
Yefsky also raises the severance of counts issue as a
problem of double jeopardy. He claims that evidence of
the engineering conspiracy impermissibly was used to
convict him of the equipment mail fraud and therefore
caused him to be tried twice for the engineering
conspiracy. This claim is mistaken. Yefsky properly could
be charged with conspiracy to commit mail fraud and with
the underlying substantive mail fraud. Boylan,
______ 898
F.2d at 245. Such an indictment would not have exposed
Yefsky to double jeopardy because the government would have had
to prove different facts for each charge. See Serino, 835 F.2d
___ ______
at 930. In an indictment for both conspiracy and mail fraud, the
first requires proof of an agreement and an intent to involve the
mails, and the second requires proof that the mails were
used. Dray, 901 F.2d at 1137; United States v. Camiel, 689
F.2d 31, 36 ____ _____________ ______
(3d Cir. 1982). The problem Yefsky raises is that the jury
may ____________________
10 In any event, we note that the court allowed Yefsky
ample time to delve into his work on specific BAPERN
projects. He thus was able to use BAPERN work to prove his
defense of good faith.
-29- have been unable to compartmentalize the evidence
properly. See
___ Section IV supra.
_____ B. Jury Charge ___________
Yefsky also contends that the district court erred in not
charging the jury that specific intent to commit the object
offenses was an essential element of the conspiracy. The court
instructed the jury that "[w]hat is necessary is that
the defendant must have knowingly and willfully participated
in some way in the unlawful plan with the intent to further
the unlawful purpose of the conspiracy." Tr. Vol. 82 at
20. We review the jury charge as a whole to determine
whether this instruction was erroneous. Cupp v. Naughten,
414 U.S. 141, 146-47 (1973). ____ ________
Although the insertion of "specific" before "intent" may
be preferable, we find the jury charge sufficient. We
upheld a similar instruction in United States v. Porter, 764
F.2d 1, 16-17 _____________ ______
(1st Cir. 1985), which stated, "you would have to find that
the person knew that a conspiracy existed and voluntarily
entered into it with the intent of achieving the illegal
object of the agreement". Here, the court defined the
terms "knowingly" and "willfully" for the jury before
giving the disputed instruction. In particular, it defined
"willfully" to mean "voluntarily and purposefully with the
specific intent to do something the law forbids." Tr.
Vol. 82 at 15. The court thus clearly instructed the jury
that it had to find that Yefsky joined the conspiracy with
the specific intent to accomplish the unlawful purpose of
the conspiracy, namely tax and mail fraud. Because the
-30- instruction
adequately covered specific intent, Yefsky is not entitled
to any relief. United States v. McGill, 953 F.2d 10,
_____________ ______ 12-13 (1st
Cir. 1992); United States v. Nivica, 887 F.2d 1110,
______________ ______ 1124 (1st Cir.
1989). Affirmed. ________
-31-