UNITED STATES of America, Plaintiff-Appellee, v. Paul Bruce CARPENTER, Defendant-Appellant

95 F.3d 773, 96 Daily Journal DAR 10808, 96 Cal. Daily Op. Serv. 6620, 1996 U.S. App. LEXIS 23236, 1996 WL 496987

Opinions

FERNANDEZ, Circuit Judge:

Paul Bruce Carpenter appeals his conviction and sentence for one count of conspiracy to commit mail fraud and money laundering and eight counts of mail fraud. Carpenter was found guilty following a 27-day jury trial, and he was sentenced to imprisonment for 87 months. On appeal he claims that there was insufficient evidence to convict him on any of the counts, that the district court erred when it instructed the jury, and that the introduction of a tape recording in the case against his codefendant, Jackson, was prejudicial to him.¹ We affirm.

BACKGROUND

The background of the agreement among Carpenter, Senator Alan Robbins, and Clayton Jackson is well stated in our decision in United States v. Jackson, 72 F.3d 1370 (9th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 1546, 134 L.Ed.2d 649 (1996), where we said:

Jackson and Robbins sought to avoid the reporting requirements attached to campaign funds. They enlisted the aid of former Senator Paul Carpenter, then serving on the Board of Equalization. Carpenter offered to let Jackson’s clients contribute to his campaign committee and then have his campaign committee make payments at Robbins’ direction.

Jackson, Robbins, and Carpenter worked out a scheme whereby Jackson had his clients contribute to Carpenter, who, as a member of the Board of Equalization, was relatively immune from criticism for accepting large donations from insurance companies. Carpenter, after taking his cut, would then write checks and mail them to the Goddard Company, ostensibly as compensation for public relations work performed by the Goddard Company. In fact, Jennifer Goddard of the Goddard Company was a friend of Robbins, did no work for Carpenter, and would merely issue a false invoice to Carpenter in return for the payments. Carpenter carried the lie to the California Secretary of State, mailing mandatory reports characterizing these expenditures of campaign funds as payments for professional services. After taking her cut, Jennifer Goddard would either pass the money on to Robbins directly or spend it on Robbins’ personal expenses as he directed.

In all, Carpenter received over $84,000 in contributions from Jackson’s clients, at Jackson’s request, and passed $78,500 on to Goddard, Robbins’ front.

Id. at 1374. We later added: “There can ... be little doubt on the record here that if the insurance executives understood that Carpenter was not in the state senate or that their money would be passed on to Robbins, they would not have made the donations Jackson requested.” Id. at 1383.

Carpenter and Jackson were both convicted for their participation in the scheme.

JURISDICTION AND STANDARDS OF REVIEW

The district court had jurisdiction pursuant to 18 U.S.C. §§ 1341, 3231; we have jurisdiction pursuant to 28 U.S.C. § 1291.

Usually, we review the sufficiency of the evidence by viewing the evidence in the light most favorable to the prosecution to determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Segura-Gallegos, 41 F.3d 1266, 1268 (9th Cir.1994) (citations omitted). However, when a defendant fails to renew his motion for judgment of acquittal at the close of all evidence, we will review a claim of insufficiency of the evidence only for plain error. United States v. Oliver, 60 F.3d 547, 551 (9th Cir.1995).

When a defendant fails to object to jury instructions at the time of trial, we will review a district court’s failure to properly instruct the jury for plain error. United States v. Chambers, 918 F.2d 1455, 1458 (9th Cir.1990). Plain error requires a reversal only to prevent a “miscarriage of justice” or where “ ‘the error seriously affectfs] the fairness, integrity or public reputation of judicial proceedings.’ ” United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1779, 123 L.Ed.2d 508 (1993).

We review evidentiary rulings for an abuse of discretion. United States v. Blaylock, 20 F.3d 1458, 1462 (9th Cir.1994).

A. Sufficiency of the Evidence.

Carpenter failed to renew his motion for judgment of acquittal at the close of all of the evidence. It makes little difference whether we review his claim of insufficiency of the evidence for plain error, Oliver, 60 F.3d at 551, or under the usual standard for properly preserved issues, Segura-Gallegos, 41 F.3d at 1268. Carpenter’s attack fails under either standard.

Of course, a conviction for conspiracy requires proof of an agreement to accomplish an illegal objective coupled with one or more overt acts in furtherance of the illegal purpose and the requisite intent necessary to commit the underlying substantive offense. See United States v. Nelson, 66 F.3d 1036, 1044 (9th Cir.1995); see also United States v. Pinkney, 15 F.3d 825, 827 (9th Cir.1994). A conviction for mail fraud in violation of 18 U.S.C. § 1341 requires “proof that the accused (1) participated in a scheme or artifice to defraud, and (2) caused a use of the mails, (3) for the purpose of executing the scheme.” United States v. Manarite, 44 F.3d 1407, 1411 (9th Cir.), cert. denied, — U.S. -, 115 S.Ct. 2610, 132 L.Ed.2d 854 (1995); see also United States v. Green, 745 F.2d 1205, 1207 (9th Cir.1984), cert. denied, 474 U.S. 925, 106 S.Ct. 259, 88 L.Ed.2d 266 (1985); United States v. Bohonus, 628 F.2d 1167, (9th Cir.), cert. denied, 447 U.S. 928, 100 S.Ct. 3026, 65 L.Ed.2d 1122 (1980). Mail fraud also requires the intent to defraud someone of money or property. See United States v. Thomas, 32 F.3d 418, 419 (9th Cir.1994); see also McNally v. United States, 483 U.S. 350, 356, 107 S.Ct. 2875, 2879-80, 97 L.Ed.2d 292 (1987); United States v. Lewis, 67 F.3d 225, 233 (9th Cir.1995); United States v. Bruchhausen, 977 F.2d 464, 467-68, 469 (9th Cir.1992). Finally, a conviction for money laundering requires proof that a defendant (1) “conducted a financial transaction which involved the proceeds of unlawful activity,” (2) “knew that the property involved was the proceeds of some form of specified unlawful activity,” and (3) either (a) “intend[ed] to promote the carrying on of specified illegal activity,” or (b) knew that a transaction he engaged in was for the purpose of concealing or disguising ownership or control of ill-gotten proceeds. United States v. Montoya, 945 F.2d 1068, 1076 (9th Cir.1991) (internal quotation omitted).

We have reviewed the evidence in this case, and it is pellucid that a rational juror could find Carpenter guilty of all of the crimes charged. In brief, he did engage in a conspiracy to defraud political contributors of their funds by helping to divert those funds from proper purposes to the personal uses of Robbins. Carpenter got a fee for his trouble. He also helped to hide those activities by filing false reports with the California Secretary of State. Had Carpenter filed truthful reports, the scheme would have been easily uncovered. Of course, we do not mention all of the evidence here; nor need we do so. We have already set forth much of the salient information, and some additional detail appears in United States v. Jackson, 72 F.3d 1370 (9th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 1546, 134 L.Ed.2d 649 (1996).

B. Instructions.

At trial Carpenter failed to object to the jury instruction on materiality of the evidence, which he now attacks. We, therefore, review that instruction for plain error only.

Carpenter asserts that the jury was not told that it was to determine whether the misrepresentations or contributions from the contributors were material. That simply is not accurate. The trial court clearly explained that the government must prove beyond a reasonable doubt that there was a scheme to defraud in which Carpenter knowingly participated. It also told the jury that the scheme required “false or fraudulent representations or promises reasonably calculated to deceive persons of average prudence.” It then said that the fraudulent representation (or concealment) “must relate to a material fact or matter.” It finally went on to explain that “a material fact is one which would reasonably be expected to be of concern to a reasonable and prudent person in relying upon the representation or statement in making a decision.” Taken together, these instructions told the jury that it was to decide the question of materiality. Thus, this case is in no way similar to one where the question of materiality is taken from the jury in whole or in part. Cf. United States v. Gaudin, — U.S. -, -, 115 S.Ct. 2310, 2313, 132 L.Ed.2d 444 (1995).

Carpenter goes on to complain of the use of the word “concern” in the instruction. He suggests that “concern” is not a strong enough statement of the standard because it differs from the Supreme Court’s indication that a misrepresentation is material if it “ ‘has a natural tendency to influence, or was capable of influencing, the decision of the decision-making body to which it was addressed.” Kungys v. United States, 485 U.S. 759, 770, 108 S.Ct. 1537, 1546, 99 L.Ed.2d 839 (1988) (citation omitted). In context, we disagree. The district court did not say concern and stop at that; it added that the statement would be one that would be relied upon in decision making. We think that is the functional equivalent of the “tendency” to influence or “capable of influencing” language used by the Supreme Court. If a representation or statement is of concern to a person relying upon it, it certainly has a tendency to influence the decision-making process. This discussion, of course, underscores one of the reasons for a plain error standard. What seemed perfectly proper to the trial court and to the parties at trial is now seized upon in hindsight as a reason to overturn the jury’s verdict. But even if upon deep reflection the instruction is not perfect, we cannot say that its deficiency was “ ‘clear’ or, equivalently, ‘obvious.’” Olano, 507 U.S. at 734, 113 S.Ct. at 1777. Similarly, we cannot say that any error would result in a miscarriage of justice or that it “ ‘seriously a£fect[s] the fairness, integrity or public reputation of judicial proceedings.’ ” Id. at 736, 113 S.Ct. at 1779. In short, there was no error; if there was, it was not plain; and if it was plain, it still does not require reversal.

C. Admission of Evidence.

Carpenter also complains that a tape recording between his codefendant, Jackson, and Robbins referred to him in a manner which suggested that he had conspired with them. The district court admitted that evidence, but instructed the jury that it was only to be considered against Jackson himself. The district court, of course, recognized that, absent precautions, the recording could have some effect upon Carpenter’s case. Therefore, the court carefully instructed both before the tape was heard and again at the end of the trial that the jury must not consider that evidence when it deliberated upon the charges against Carpenter. That was an appropriate method of dealing with the issue. We find no abuse of discretion. See Blaylock, 20 F.3d at 1462. That is particularly true in light of the other evidence in the case — both Robbins and Jackson testified. When Carpenter’s trial counsel was informed by the district court of the nature of the instruction it would give, he said “I like it.” We do too.

CONCLUSION

What we said in Jackson applies here also. Carpenter “engaged in behavior so antithetical to and destructive of our political traditions that there can be no serious argument that [he] is an innocent man convicted by a jury whose real problem was prejudice against the democratic process.” 72 F.3d at 1386. There was no plain error; there was no miscarriage of justice; there was no error that seriously affected the proceeding. The evidence was ample and properly admitted. The jury was properly instructed. Carpenter must simply face the penalty for his worse than picaresque behavior.

AFFIRMED.

Footnotes

1

. Carpenter also asked that his case be remanded for resentencing in the event that a proposed amendment to the United States Sentencing Guidelines went into effect. However, the amendment did not go into effect. Thus, we do not address this request.

In addition, Carpenter attempts to join in some of the arguments raised by Jackson in his separate appeal. See Fed.R.App. P. 28(i). However, Rule 28(i) does not apply to cases which are not consolidated. Even if it did, the issues raised in Jackson’s appeal have already been decided. Those determinations are the law of the case, and the issues cannot be relitigated by Carpenter. See United States v. Schaff, 948 F.2d 501, 506 (9th Cir.1991).