United States v. Griffin

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 25, 2003
• Docket: 01-20368
• Status: Published

Opinion

REVISED MARCH 25, 2003 UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 01-20368

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

FLORITA BELL GRIFFIN, TERRENCE BERNARD ROBERTS, JOE LEE WALKER,

Defendants-Appellants.

Appeals from the United States District Court For the Southern District of Texas March 10, 2003

Before JOLLY, SMITH, and DeMOSS, Circuit Judges.

DeMoss, Circuit Judge:

Appellants Florita Bell Griffin (Griffin), Terrence Bernard

Roberts (Roberts), and Joe Lee Walker (Walker) were tried before a

jury and found guilty of conspiracy, bribery, money laundering, and

mail fraud. On appeal, Griffin, Roberts, and Walker (referred to

jointly as "Appellants") challenge the sufficiency of the evidence,

a number of the district court's evidentiary rulings, and the

calculation of their sentences. In addition, Roberts and Walker

contend that they were constructively denied counsel. We AFFIRM in part, REVERSE in part, and REMAND to the district court for

proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

The Texas Department of Housing and Community Affairs (TDHCA)

is the state agency that administers federal and state funds

allocated for use in providing affordable housing and community

services to low-income households. During 1997 and 1998, TDHCA

received $184,767,578.00 and $196,350,078.00, respectively in

federal funds. With these funds, the agency administers 25

different federal programs, one of which is the allocation of

federal income tax credit incentives (tax credits) that serve as

incentives for developers to build housing projects in which

certain rental units are set aside for occupancy by low-income

persons at reduced rent. TDHCA receives approximately 150 to 200

applications for allocation of tax credits annually, and

approximately $24 to $25 million in tax credits are available for

allocation annually in Texas.

The affairs of the TDHCA are conducted by a nine-member board

of directors, all of whom are state officials. Board members are

not paid for their services. When applications for tax credit

allocations are submitted, the TDHCA staff scores each application

based on subjective and objective factors, and submits a list of

recommended applications to a committee made up of three members

from the board of directors for review. If the recommended

2 applications are approved by the three-member committee, the board

of directors then votes on whether to grant final approval for the

allocation of the tax credits on these same applications.

Griffin was appointed to the TDHCA board of directors in 1995.

Prior to her appointment, Griffin worked as a planner for the city

of Bryan, Texas. In 1997, Griffin chaired the three-member

committee that made recommendations to the full board on tax credit

applications. In addition, Griffin did consulting work for persons

or companies that did business with TDHCA.

Mitchell, a Texas certified public accountant, had prepared

housing tax credit applications to the TDHCA for developers on over

160 projects, and 130 of them had been approved. Roberts was a

real estate agent who worked for the Brazos Valley Community Action

Agency (BVCAA) in 1995, where he was the director of housing

projects. BVCAA is a private nonprofit organization that receives

funds from the TDHCA and provides affordable housing to low-income

households. After meeting at a housing seminar in Austin, Texas,

Mitchell and Roberts decided to submit an application for tax

credits to build a low-income housing project.

Mitchell and Roberts formed a partnership named “One Golden

Oaks, Ltd.,” with Roberts having a 51 percent ownership in the

partnership. The record indicates that Mitchell was aware that by

doing so, One Golden Oaks, Ltd. would be classified as a

historically underutilized business (HUB) because Roberts is

African-American, which would result in additional points being

3 awarded to their tax credit application with the TDHCA. Mitchell

was to serve as the financial partner, and Roberts was to serve as

the managing partner. Mitchell agreed to pay Roberts a weekly

salary of $1,250.00 from Mitchell's personal funds for Roberts’

services to their partnership.

Roberts recommended that Barry Hammond (Hammond) be used as

the general contractor to build the project. Roberts had met

Hammond in December 1996. At that time, Hammond was working with

his wife Michelle as a self-employed home builder of single family

residences. Roberts told Hammond that he could offer Hammond's

customers down payment assistance. Roberts and Hammond entered an

agreement in which Roberts would provide down payment assistance

and both of them would share the profits on the sale of each home.

A few homes were built as a result of this agreement.

After doing business together, Roberts decided he wanted

Hammond to meet Griffin. Roberts and Griffin were friends, and

Griffin had served as a consultant to the BVCAA. Roberts

introduced Hammond to Griffin in January 1997. The record

indicates that Roberts told Hammond that Griffin was on the TDHCA

and was responsible for approving millions of dollars each year for

developers and builders.

After Griffin met Hammond, she told him that she wanted to see

one of the homes he had built. Subsequently, Roberts told Hammond

that Griffin was impressed with the home he built and that she

wanted to participate in their home building agreement. Griffin

4 told Hammond and Roberts that she could bring to their arrangement

interim construction, down payment, and land acquisition assistance

from TDHCA. Shortly thereafter, Griffin suggested to Roberts and

Hammond that Walker be brought into the project to help buy

property and to get it zoned. Roberts and Hammond consented, and

all four agreed to split the profits evenly among themselves.

Previously, Hammond had built five to ten houses a year.

Under the new arrangement, however, it was anticipated that over

100 houses would be built annually. Griffin suggested that a

corporation be formed to ensure that each received his share of the

profits. On March 20, 1997, Barry Hammond Homes Incorporated

(BHHI) was created. Hammond, Roberts, Griffin, and Walker agreed

that the ownership of BHHI and its profits would be split evenly

among themselves. In addition, it was agreed that Walker would be

paid a salary of $2,500.00 a month after Griffin suggested that

Walker be required to work in BHHI's office space rather than at a

bail bond company. The record indicates that at this time, the

only money BHHI was making was from the sale of previously

contracted single family homes.

As indicated in a copy of BHHI's bylaws recovered during a

search of Griffin's residence, stock certificates were issued.

Some of the stock certificates were filled out by Michelle Hammond

and kept at BHHI's place of business in a corporate book.

Hammond's and Walker's stock certificates reflected that each

received 25,000 shares, which were issued in their names. Roberts'

5 stock certificates were issued in his mother's name, Johnnie

Roberts. Griffin's stock certificates were first placed in the

name of J & G Construction. Later, Griffin had the stock

certificates placed in the name of Arkofa Consulting Corporation

(Arkofa), which is owned by Griffin's brother-in-law, Arlee Griffin

Jr.

Subsequent to the incorporation of BHHI, Griffin, Walker, and

Roberts held meetings to discuss building Mitchell's and Roberts’

housing project, Golden Oaks On Sandy Point Apartments (hereinafter

referred to as "the Golden Oaks project"). Those meetings took

place on a weekly basis through October 1997. At one of the

meetings, Griffin made a list of everyone's duties in the

corporation. Hammond's duties were to act as a project supervisor,

keep up with material costs, check off on every completed house,

schedule tasks, and perform long range planning. Michelle

Hammond's duties were administrative support. Roberts was

responsible for marketing and sales. Walker's duties were to

manage funds, do the bidding on jobs, handle legal work,

participate in marketing, handle change orders, and policies and

procedures. Griffin's duties were described as to "create

opportunity." Significantly, there was never any written

consulting agreement between Griffin and BHHI.

Mitchell and Roberts, acting as partners of One Golden Oaks,

Ltd., submitted an application for a tax credit allocation for the

6 Golden Oaks project in June 1997.1 The application was filled out

in the name of One Golden Oaks, Ltd. as owner/developer. Roberts

signed the application as the managing general partner and Mitchell

signed as the financial general partner. BHHI was listed as the

general contractor with Hammond's signature as president. The plan

was to build forty two-story fourplexes consisting of 160

apartments.

The record indicates that Walker presented Mitchell with a

contract to have BHHI be the builder on the Golden Oaks project.

Mitchell believed that only Hammond and Walker were partners in

BHHI. Mitchell was unaware that Griffin had an ownership interest

in the corporation.

On September 13, 1997, the TDHCA tax credit allocation

committee met to consider the staff report on tax credit

applications for 1997. Walker and Roberts attended this meeting,

which was chaired by Griffin. A staff member read aloud the names

of 66 proposed projects, which represented requests for a total of

$27,110,996 in tax credits. One Golden Oaks was one of the 66

projects on the list.2 In one unanimous vote in which Griffin

participated, the allocation committee agreed that tax credits

1 The best evidence of what the parties in this case contemplated as the terms and conditions of the proposed Golden Oaks project can be found in the application that One Golden Oaks, Ltd. submitted to the TDHCA. Government's Exhibit 3. 2 The Golden Oaks project is noted on the list as "Golden Oaks on Sandy."

7 should be allocated to all of the projects on the list.

On September 15, 1997, the TDHCA board of directors met to

consider a number of housing matters, including the list of 66

projects vying for the allocation of tax credits for 1997. The

entire list of 66 projects was approved for the allocation of tax

credits by a vote of seven ayes and one abstention. As a result of

the vote, in which Griffin participated, the Golden Oaks project

was allocated $10 million in tax credits over a 10 year period with

an estimated ultimate cash value of $7.329 million. Walker and

Roberts were present at this meeting. Griffin did not disclose her

indirect connection (as a shareholder of BHHI) with the Golden Oaks

project before participating in this vote or the previous committee

vote two days earlier.

After being approved for the allocation of tax credits, One

Golden Oaks, Ltd. was required to pay a $40,000.00 commitment fee.

Mitchell, as the financial partner of One Golden Oaks, Ltd., put up

the commitment fee. At that time, One Golden Oaks, Ltd. also

obtained a loan of $450,000.00 from John Hoover (Hoover), using

part of the loan proceeds to purchase from BHHI the tract of land

described in its application and giving a deed of trust on such

land as security for this loan.

Meanwhile, BHHI began having financial trouble. As indicated

by the record, BHHI's financial trouble was partly due to the

salary being paid to Walker. Another reason was that BHHI paid

$5,000.00 in earnest money to purchase 30 lots in a subdivision

8 called Shadow Wood for the purpose of building homes. BHHI

intended to build homes at that location by obtaining land

acquisition and down payment assistance through TDHCA. Hammond,

Walker, Roberts, and Griffin participated in completing the

application for assistance, which was submitted to TDHCA in 1997.

However, TDHCA's underwriting department determined that the

application was insufficient for evaluation and notified BHHI.

Leslie Donaldson, the manager of TDHCA's credit underwriting

department who was responsible for evaluating the Shadow Wood

project, testified that she was contacted by Griffin at a time when

it was unheard of for board members to contact the staff. Griffin

inquired about the status of the Shadow Wood application and what

was needed to correct any deficiencies. Griffin also asked

Donaldson to send her a copy of the deficiency notice and to keep

her advised of the status of the application. According to

Donaldson, no other board member had ever contacted her with

respect to any project during her time with TDHCA.

As a result of BHHI’s paying the $5,000.00 for the Shadow Wood

project, Hammond told Walker that they were not going to be able to

make payroll that week. A few days later, however, Griffin

presented BHHI a check for $19,167.00, which was dated June 19,

1997. The check was from KRR Construction and was made payable to

BHHI. Griffin told Hammond that she was loaning the money to BHHI.

KRR Construction was named as the managing general partner on a

TDHCA tax credit application for a project called Prairie Estates.

9 Griffin later voted to approve the Prairie Estates application on

September 15, 1997, during the same board meeting at which she

voted to approve the Golden Oaks project's tax credit application.

Hammond testified that BHHI had not performed any work for KRR

Construction, and that KRR Construction did not owe BHHI any money.

However, Joseph Kemp (Kemp), who was a former member of the TDHCA

board and the owner of KRR Construction, testified that he paid

Walker $19,167.00 to assist him in preparing a study for an

application to TDHCA for tax credits after he left the board. Kemp

paid Walker for the study even though it was not of any help to

him. Walker then did a second study, which also was of no help to

Kemp. Kemp later hired a third party for $4,500.00 to do a study

that was eventually submitted with his TDHCA tax credit

application.

Hammond testified that he used the $19,167.00 that Griffin

gave BHHI to make the corporation's payroll. On the same day that

Griffin gave BHHI the check, Griffin had Michelle Hammond create an

invoice dated May 23, 1997, from BHHI to KRR Construction charging

$19,167.00 for consulting and site planning. In addition, Hammond

and Walker signed a promissory note in the amount of $19,167.00

from BHHI to J & G Construction dated June 23, 1997, which was

created by Walker pursuant to Griffin's instructions. According to

Hammond, BHHI had not done any business with J & G Construction and

had not done anything to owe it money. Significantly, Manson B.

Johenson, who is the sole owner and employee of J & G Construction,

10 testified that he never authorized anyone to enter into a

promissory note on behalf of J & G Construction and that BHHI never

owed J & G Construction $19,167.00.

BHHI paid back portions of the $19,167.00 to Griffin beginning

on September 5, 1997, when it issued a check to Griffin's husband,

Richard W. Griffin, from money it received from a construction

draw. Griffin's signature was on the back of the check and the

memorandum on the check read "soil investigation." An invoice

dated August 1997, which was written on "Richard W. Griffin, Ph.D."

letterhead, billed BHHI for $5,000.00 for soil investigation on a

108 acre tract in Bryan, Texas. The top of the document had the

name of "Genesis Planning, Inc." written on it, which was Griffin's

consulting company. Both Hammond and his wife Michelle testified

that Richard Griffin never did any work for BHHI.

In order to build the Golden Oaks project, One Golden Oaks

Ltd. needed to obtain land. Mitchell relied on Roberts to select

the land. The record indicates that Roberts told Mitchell that

Richard Smith (Smith) owned land that would be appropriate for the

project, but that Smith would not return his calls. Roberts also

told Mitchell that Walker knew Smith, and Smith owed Walker a

favor. Roberts believed that Walker could successfully negotiate

the purchase of the land. Mitchell agreed to pay Walker $5,000.00

to negotiate the purchase price of the land and to apply for zoning

with the city of Bryan, Texas. Smith, however, testified that

Roberts had not tried to contact him about buying the land before

11 Walker made inquiries. In fact, Walker first contacted Smith in

1995 about buying the land, telling Smith that he had an investment

group interested in the land.

Smith owned approximately 130 acres and did not want to

subdivide the land. As a result, Walker was able to negotiate the

purchase of all 130 acres at $2,000.00 per acre on behalf of BHHI.

BHHI in turn sold 23.208 acres to One Golden Oaks, Ltd. for

$15,000.00 an acre. Twelve acres were intended for the Golden Oaks

project. The remaining 11.208 acres were purchased for a possible

second phase project at the recommendation of Roberts. Mitchell

was never told how much BHHI paid for the land.

Before these land transactions occurred, Hammond, Roberts,

Walker, and Griffin discussed the fact that there was going to be

money and land left over. They agreed to split the remaining land,

which was approximately 108 acres, evenly among themselves. About

40 acres of the remaining acres were in the flood plain, so Griffin

suggested the land be divided into eight parcels, four parcels

inside and four parcels outside the flood plain. Each member of

BHHI would receive one parcel from the flood plain and one parcel

from outside the flood plain.

Griffin had Don Garrett Engineering subdivide the property.

Kenneth Ray Havel (Havel), who assisted in dividing the remainder

property, asked Griffin for instructions on how she wanted the land

to be divided. Havel noted that equal parts would not be of equal

value because of the location of roads through the property.

12 Griffin told Havel that she still wanted equal parts. Hammond,

Roberts, Walker, and Griffin drew straws to see who would receive

which parcels of land. Hammond drew the piece that had the best

location. Roberts, however, told Hammond that Griffin should

receive that parcel because she approved the projects and had

loaned BHHI $19,167.00 without being fully repaid. As a result,

Hammond drew again and Griffin received the parcel of land that was

considered the best.

After the survey of the land was completed, Roberts requested

additional copies. Quitclaim deeds were prepared by Roberts at

Walker's house. Hammond's parcels were titled in his own name.

Walker's were put in the name of his son, Bryce Walker. Roberts'

were put in the name of his mother, Johnnie Roberts. Griffin had

her portion of the land put in the name of Arkofa.

Arlee Griffin testified that he never gave Griffin permission

to use Arkofa's name in connection with any enterprise. Arlee

Griffin further testified that Griffin first told him on

Thanksgiving 1997 about putting property in Arkofa's name, noting

that she would give him details later. Approximately a week later,

Griffin sent Arlee Griffin documents to sign, which assigned the

land to Griffin. Arlee Griffin testified that he never discussed

the details of the transaction with Griffin. In addition, Arlee

Griffin testified that in April 1998, Griffin asked him to sign a

second quitclaim deed in relation to the same property, which

assigned the rights of the property from Arkofa to Walker.

13 According to Arlee Griffin, he had no idea why Griffin asked him to

sign the property rights over a second time.

On October 17, 1997, three checks in the amount of $3,347.66

were issued to Hammond, Johnnie Roberts, and Walker from BHHI. The

check issued to Johnnie Roberts was endorsed by both Johnnie

Roberts and Roberts. A fourth check was issued on October 31,

1997, to Walker from BHHI in the amount of $2,370.71. Both Hammond

and his wife Michelle testified that that money was Griffin's, but

that she requested the money be issued to her through Walker. The

record also reflects that an undated invoice for $479.00 and an

invoice for $497.95 dated October 20, 1997, for concrete work on

Griffin's garage were billed to BHHI. The fourth check, combined

with the two invoices, totaled $3,347.66, which is the same amount

as the three checks issued to Hammond, Johnnie Roberts, and

Walker.

On October 26, 1997, BHHI received a check for $28,890.65 from

a title company, which was the amount of money left over from the

land BHHI sold to One Golden Oaks, Ltd. From that money, $9,500.00

was paid to Loan Consultants, Inc. on October 16, 1997, for a

seminar on how to start a mortgage company. Griffin, Walker, and

Roberts attended the seminar. Another $6,000.00 was used to pay

contractors and payroll that week. The remaining $13,000.00 was

split four ways among the partners of BHHI.

In November 1997, Hammond, Michelle Hammond, Roberts, Walker,

and Griffin met at a restaurant where Walker and Roberts told

14 Hammond that Griffin wanted another construction company for the

Golden Oaks project. Roberts said that Griffin was willing to pay

Hammond $20,000.00 for his 28 acres and to give him $77,000.00 for

his interest in the Golden Oaks project. Hammond refused the offer

because he did not want to miss out on his share of the money

expected from the tax credits allocated to the Golden Oaks project.

In early December 1997, Michelle Hammond overheard Roberts,

Walker, and Griffin discuss the creation of Lee Commercial

Construction Management (LCCM) for the purpose of replacing BHHI as

general contractor. After learning of this, Hammond became afraid

that he was going to be cut out of the Golden Oaks project. As a

result, Hammond decided to tape record the next conversation he had

with Roberts and Walker. Hammond first called Roberts and asked if

LCCM had been created yet, and Roberts told him no. Hammond also

asked if he and Michelle were going to be cut out of the Golden

Oaks project or the Shadow Wood project. Roberts told him that

they were not being cut out of the projects even though LCCM was

being incorporated. Hammond reiterated that he was afraid that he

was being cut out of the Golden Oaks project. Roberts responded

that he should not be worried because Griffin had no control over

who received profits. Roberts also stated that "all [Griffin] got

control over is to [sic] keeping us from getting more projects."

During the conversation, Roberts told Hammond that Griffin

suggested that no stock be issued in LCCM. Hammond voiced his

concern about that fact, and Hammond suggested that Walker join

15 them in the conversation so Hammond could express his concern.

After Walker joined them for a three-way conversation, Hammond

repeated his concern about LCCM’s not issuing stock and asked if

they were still going to split the profits four ways. Walker

responded by saying he did not have any answers. However, Walker

said that Griffin had acknowledged that Hammond would be out of the

deal only if he agreed to sell his stock.

Walker also said that he had asked Griffin if she wanted to

cut Hammond out of the Shadow Wood project and that she told him

no. Walker then stated that Hammond could not expect Griffin to

come to the office and explain what the group was doing, but that

he did not expect Griffin to keep either Roberts or himself from

informing Hammond about the progress they were making. Walker also

noted that Griffin was still talking about splitting the profits

four ways.

Walker incorporated LCCM on December 8, 1997. Both Roberts

and Walker suggested to Mitchell that One Golden Oaks Ltd. use LCCM

in place of BHHI because Hammond had a drug problem and had left

Bryan, Texas. The record indicates that One Golden Oaks, Ltd.

agreed to replace BHHI with LCCM as the general contractor on the

Golden Oaks project.3 However, when Mitchell and Roberts, on

behalf of One Golden Oaks, Ltd., attempted to get interim financing

3 Although the record indicates that LCCM replaced BHHI as the contractor for the Golden Oaks project, the record does not contain an amended TDHCA application evidencing this change.

16 for the Golden Oaks project, they were unsuccessful because LCCM

could not get a performance bond because Walker had no previous

construction experience as a building contractor.

One Golden Oaks, Ltd. had until April 22, 1998, to get an

interim construction loan or it would lose the allocation of tax

credits. Mitchell and Roberts agreed that they needed a new

contractor. Nevertheless, Mitchell agreed to pay LCCM for its

continued involvement in the project. On January 30, 1998, One

Golden Oaks Ltd. contracted to pay LCCM $92,000.00 for construction

services, with $20,000.00 paid up front. In a second contract, One

Golden Oaks Ltd. agreed to pay LCCM $35,000.00, with $15,000.00 up

front for its continued help in obtaining zoning for the project.

In a third contract, One Golden Oaks Ltd. agreed to pay LCCM

$38,000.00, with $15,000.00 up front, to obtain financing for the

project. LCCM received and cashed two $15,000.00 checks and one

$20,000.00 check as a result of those contracts.

Walker withdrew $23,333.00 in cash from LCCM's account on

January 30, 1998, which was the same day that three checks from One

Golden Oaks Ltd. were deposited. On February 5, 1998, a cashier's

check for $23,333.00, dated January 30, 1998, was deposited into

Griffin's bank account. The cashier's check showed LCCM as the

remitter and Arkofa as payee. Arlee Griffin testified that he

never knew about the check. In addition, although Arlee Griffin's

name appears on the back of the check, he never endorsed it.

Notably, at trial, Griffin admitted that LCCM did not owe Arkofa

17 $23,333.00.

Of the remaining $26,667.00 deposited into LCCM's account,

$13,333.00 was issued in the form of a check to Ozell Roberts. Of

that amount, $8,333.00 was deposited into Roberts' savings account

and $5,000.00 was then withdrawn in cash. Another check for

$5,300.00 was drawn on the LCCM account, payable to cash and signed

by Walker.

In 1998, Stephen Weiss (Weiss), a real estate developer who

owned construction and property management companies in

Connecticut, New York, and Texas, was looking for land for a tax

credit project. Arlee Griffin, who had introduced Weiss to Griffin

in the spring of 1996, suggested that he consider a piece of

property consisting of 21 acres in Bryan, Texas, adjacent to the

Golden Oaks project. Weiss learned that Walker owned the property

that Arlee Griffin recommended. Walker informed Weiss that he

wanted $500,000.00 for the 21 acres. Although Weiss thought the

price was high, he was willing to proceed with the purchase if a

tax credit allocation supported the price. Weiss later learned

from the title report, because of the quitclaim deeds referencing

Arkofa that Arlee Griffin might have an interest in the land.

Nevertheless, Weiss entered into a contract with Walker to buy

the 21 acres contingent upon his obtaining all municipal approvals

and approval by TDHCA for tax credit allocation for the intended

project called Glen Oaks Village. On April 24, 1998, a promissory

note in the amount of $425,000.00 was executed from Walker to

18 Arkofa in exchange for the same property described in the quitclaim

deed from Arkofa to Walker. The record indicates that Walker did

nothing to owe Arkofa $425,000.00. Ultimately, the Glen Oaks

Village project's zoning application was turned down by the city of

Bryan, and the project's tax credit application was withdrawn.

Eventually, Hammond brought Mitchell a copy of the tape

recording from the three-way telephone conversation he had with

Roberts and Walker. Mitchell learned from Hammond that his partner

Roberts also was a partner in BHHI and had profited from the land

sale between One Golden Oaks Ltd. and BHHI. Moreover, Mitchell

learned that Griffin was a 25 percent owner of BHHI and that she

also had profited from the land sale.

As a result, Mitchell decided to record a conversation with

Roberts on May 4, 1998. Mitchell wanted an explanation concerning

money that he had paid to Walker for services not performed.

Roberts said that Walker's response concerning that information was

that Walker did not owe Mitchell an explanation. Mitchell also

wanted to know who owned BHHI and LCCM. When Mitchell asked

Roberts about the ownership of those companies, Roberts told him

that Walker had said he was a partner with Hammond in BHHI and that

Walker owned LCCM. When asked if BHHI was owned by just Hammond

and Walker, Roberts said yes. Roberts never told Mitchell that he

and Griffin were also part owners of BHHI.

Furthermore, Mitchell told Roberts that his attorney found out

that the land BHHI purchased from Smith was no longer owned by the

19 corporation, but that it had been deeded to four people. Mitchell

noted that one of the deeds was in the name of Bryce Walker and the

other was in the name of Johnnie Roberts. When Mitchell asked

Roberts how his mother ended up with the land, Roberts said that

Hammond owed him $96,000.00. Mitchell also noted that he was aware

that Hammond and Arkofa had 21 acres of land. When asked, Roberts

denied knowing who owned Arkofa. In response, Mitchell stated that

if Arkofa was owned by Griffin or one of her family members, "it's

not going to be good, let me tell ya." When Mitchell asked Roberts

about the $28,890.65 left over from BHHI's land purchase from

Smith, Roberts told Mitchell that he did not receive any of that

money and he did not know who got the money.

Based on what Mitchell learned from Hammond and his telephone

call with Roberts, he decided to seek the advice of his attorney

concerning the legality of the activities that had transpired.

Mitchell's attorney contacted the U.S. Attorney's Office, which in

turn contacted the F.B.I. The F.B.I.'s investigation into the

matter ultimately resulted in a grand jury’s issuing a seven count

indictment on April 23, 1999.

Count 1 charged Griffin, Roberts, and Walker with conspiracy

to: (1) violate 18 U.S.C. § 666(a)(1)(A) relative to theft by fraud

of property valued at $5,000.00 or more, which was in the custody

and control of the TDHCA; (2) violate 18 U.S.C. § 666(a)(1)(B)

relative to accepting something valued at $5,000.00 or more, with

the intent to corruptly influence business transactions of the

20 TDHCA; (3) violate 18 U.S.C. § 666(a)(2) relative to corruptly

giving something valued at $5,000.00 or more, with the intent to

influence business transactions of the TDHCA; and, (4) violate

18 U.S.C. § 1956(a)(1)(B)(i) relative to money laundering; all in

violation of 18 U.S.C. § 371 for conspiracy to defraud the United

States.4 Count 2 charged Griffin, Roberts and Walker for theft or

aiding and abetting a theft from an organization that receives

benefits under a federal assistance program in violation of 18

U.S.C. §§ 666(a)(1)(A) and 2. Count 3 charged Griffin with

soliciting and accepting a bribe in connection with the business of

an organization that receives benefits under a federal assistance

program in violation of 18 U.S.C. § 666(a)(1)(B). Count 4 charged

Roberts and Walker with bribery of an agent of an organization that

receives benefits under a federal assistance program in violation

of 18 U.S.C. § 666(a)(2). Count 5 charged Griffin and Walker with

money laundering proceeds that were obtained as part of the illegal

transactions in Counts 1, 2, and 3, all in violation of 18 U.S.C.

§ 1956(a)(1)(B)(i). Count 6 charged Griffin, Roberts, and Walker

with mail fraud in violation of 18 U.S.C. § 1341 for using the mail

to deliver a pre-application for One Golden Oaks to the Honorable

Lonnie Stabler, the Mayor of the City of Bryan, Texas. Count 7

charged Griffin and Walker with mail fraud in violation of 18

4 It should be noted that the conspiracy count (Count 1) does not contain any allegations about conspiracy to violate the Mail Fraud Statute as described in Counts 6 and 7 of the Indictment.

21 U.S.C. § 1341 for using the mail to deliver a pre-application for

Glen Oaks Village to the Honorable Lonnie Stabler, the Mayor of the

City of Bryan, Texas.

The case was tried to a jury from October 16, 2000 to November

2, 2000. All three defendants were found guilty on all of the

counts with which they were charged. On March 28, 2001, the

district court sentenced Griffin to 87 months in the Bureau of

Prisons as to Counts Two, Three, and Five; and she received 60

months in the Bureau of Prisons as to Counts One, Six, and Seven.

All of Griffin's sentences were to run concurrently. Both Roberts

and Walker were sentenced to a total of 57 months. In addition,

the court imposed a three year term of supervised release on all

three Appellants and assessed a $100.00 special assessment for each

count of conviction. Furthermore, the court held the Appellants

jointly responsible for $783,455.00 in restitution to Mitchell.

Griffin filed her notice of appeal on April 4, 2001. Roberts and

Walker filed their notices of appeal on April 6, 2001, and April

16, 2001, respectively.

II. DISCUSSION

Roberts and Walker appeal their convictions arguing that the

government failed to present sufficient evidence that they were

aware Griffin was using her state position to fraudulently obtain

tax credits. As a result, they assert that the government failed

as a matter of law to present sufficient evidence to convict them

22 of the specific intent crimes for which they were convicted.

Roberts and Walker also contend that their respective attorneys

were not serving their best interests, but rather those of Griffin.

Therefore, they both argue that their representations were

constitutionally deficient because they were constructively denied

counsel. Moreover, Roberts and Walker contend that the district

court erred by applying sentencing guidelines based on gains

unrelated to the alleged crimes for which they were convicted as

well as on the unrealistic expectations of profits instead of any

proven reasonable revenues.

Griffin appeals her convictions arguing that the district

court erred in allowing Ms. Daisy Stiner (Stiner), former executive

director of the TDHCA, to read and explain various provisions of

the Texas Penal Code concerning Griffin's ethical requirements and

violations of the law. Griffin also asserts that the district

court erred by allowing the government to put on F.B.I. Agent

Robert Martin (Martin) as one of its earliest witnesses to present

the testimony of a traditional witness. In addition, Griffin

asserts the district court erred when it refused to allow Griffin

to testify to conversations that she had with other persons on the

ground that the conversations constituted hearsay, and for refusing

to allow Griffin's counsel to argue Texas state law on ethics to

the jury during closing arguments. Furthermore, Griffin contends

that the district court erred in failing to dismiss Count Five of

the indictment for insufficiency of the evidence to convict for

23 money laundering, and Counts Six and Seven of the indictment for

insufficiency of the evidence to convict for mail fraud. Finally,

Griffin argues that the district court erred in calculating her

sentence.

A. Whether the district court abused its discretion by allowing Daisy Stiner, director of the TDHCA, to testify on state law provisions; and, if so, whether it was harmless.

Griffin argues that the district court abused its discretion

by allowing Stiner to testify regarding applicable state law. This

Court reviews a district court's evidentiary rulings for abuse of

discretion. United States v. Miranda, 248 F.3d 434, 440 (5th

Cir.), cert. denied, 122 S. Ct. 410 (2001). We also review the

district court's admission or exclusion of expert testimony for

abuse of discretion. United States v. Wise, 221 F.3d 140, 157 (5th

Cir. 2000), cert. denied, 121 S. Ct. 1488 (2001). Expert testimony

that has been admitted erroneously is subject to harmless error

analysis. Id.

Stiner testified on behalf of the government as its first

witness. Notably, she was never qualified as an expert witness.

Stiner was asked to read from a number of state statutes. Although

Griffin's counsel did not object to the reading of the statutes

because they were relevant, her counsel did object when the

government's lawyer asked Stiner hypothetical questions on the

applicability of those statutes. The district court overruled the

objection. Griffin asserts that Stiner's answers to the

24 hypothetical questions amounted to giving expert testimony on the

law without being qualified as an expert. Although Stiner was not

qualified as an expert in the law, she was permitted to give

opinion testimony as a lay witness under Rule 701 of the Federal

Rules of Evidence, which allows a lay witness to give opinion or

inference testimony that is: “(a) rationally based on the

perception of the witness, (b) helpful to a clear understanding of

the witness' testimony or the determination of a fact in issue, and

(c) not based on scientific, technical, or other specialized

knowledge within the scope of Rule 702." FED. R. EVID. 701.

The record reflects that Stiner testified as to her

understanding of the state ethics rules and what TDHCA employees

were instructed about those rules. In addition, the record

reflects that Stiner's testimony was based on her own perceptions,

was testimony that could be helpful to the jury in understanding

the issues in the case, and certainly did not require specialized

knowledge. However, the record also reflects that Stiner testified

to her own interpretation of the law, which is error. See Huff v.

United States, 273 F.2d 56, 61 (5th Cir. 1959). Where objected to

testimony is cumulative of other testimony that has not been

objected to, the error that occurred is harmless. United States v.

Sotelo, 97 F.3d 782, 798 (5th Cir. 1996).

We find any error that occurred from the district court

allowing Stiner to testify as to the meaning of the law was

25 harmless because her testimony was cumulative of other witnesses'

testimony. For example, Karen Lundquist, general counsel for the

Texas Ethics Commission, testified to the meaning of "personal or

private interest" in a decision before the board under Tex. Govt.

Code § 572.058, as did David Mattax, chief of the Financial

Litigation Division of the Attorney General's Office. Lundquist

also testified on the Ethics Commission's issuance of advisory

opinions under the Texas Government Code. In addition, Griffin

called Larry Paul Manley, an attorney and CEO of TDHCA, to testify

on his opinion of state ethics law as to a board member’s having an

interest in the proposal before the board. Therefore, viewing the

record in its entirety and the cumulative nature of Stiner's

testimony, the error that occurred was harmless.

B. Whether the district court abused its discretion in allowing F.B.I. Agent Martin to testify and use a chart to give an overview of the case; and, if so, whether it was harmless.

Griffin also contends that the district court abused its

discretion in allowing Martin to give "conclusionary hearsay

testimony on ultimate jury issues that were crucial to the case."

As noted above, we review a district court's evidentiary rulings

for abuse of discretion. Miranda, 248 F.3d at 440. We consider

any errors under the harmless error doctrine. United States v.

Taylor, 210 F.3d 311, 314 (5th Cir. 2000). We affirm evidentiary

rulings "unless they affect a substantial right of the complaining

party." Id.

26 As the government's second witness, Martin testified to the

F.B.I.'s investigation in this case. In so doing, he used a chart

containing pictures of persons and symbols for the entities

involved in the alleged conspiracy. While Martin was testifying,

the prosecutor referred to a picture of Roberts on the chart and

asked Martin to explain Roberts' role in the alleged conspiracy.

Martin's testimony also included the statement: “Dr. Griffin is on

the TDHCA board, has voting authority over tax credit projects.

She also is a 25-percent owner in B. Hammond Homes." On cross-

examination, Martin admitted that his statement that Griffin owned

25 percent of BHHI was not based on personal knowledge but on what

someone told him.

Griffin's attorney objected on the basis of hearsay on more

than one occasion during Martin's testimony. The prosecutor

responded that Martin's impression of Roberts' role was not being

offered for the truth of the matter asserted, but to give a broad

version as to what the agents did during their investigation and

why they did it. The prosecutor stated that evidence in support of

Martin's impressions would be presented later during the trial.

The prosecutor also stated that the government had documents to

back up Martin's testimony. The district court overruled the

objection and allowed the testimony to continue in an overview

manner in order to orient the jury because of the complexity of the

case. However, the district court made it clear at various points

during Martin's testimony that he was presenting his own or the

27 F.B.I.'s point of view and that he did not have personal knowledge

of all the facts or statements about which he testified.

Griffin argues that Martin's testimony was improper because he

was never qualified as an expert witness under Rule 702 of the

Federal Rules of Evidence, and because the government did not

establish a factual foundation for lay witness opinion under Rule

701 of the Federal Rules of Evidence. Furthermore, Griffin asserts

that there was nothing for Martin to summarize because Stiner was

the first witness and did not testify to most of the facts of the

case. Moreover, she insists that it was improper for the district

court to characterize Martin's testimony as the F.B.I.'s point of

view.

"There is an established tradition, both within this circuit

and in other circuits, that permits a summary of evidence to be put

before the jury with proper limiting instructions." United States

v. Scales, 594 F.2d 558, 563 (5th Cir. 1979) (citations omitted).

However, "[t]he purpose of the summaries in these cases is simply

to aid the jury in its examination of the evidence already

admitted." Id. (citing United States v. Downen, 496 F.2d 314 (10th

Cir. 1974)). Here, of course, the evidence had not yet been

presented. Martin, therefore, was testifying more as an "overview

witness" than a summary witness. See United States v. Cline, 188

F. Supp. 2d 1287, 1299 (D. Kan. 2002) (labeling the government's

witness who defendant asserted was being called to “testify before

28 there is any evidence admitted to summarize and who will give

essentially a second opening statement" as an "overview witness").

This Court has never had the opportunity to address the use of

an overview witness where the witness is put on the stand to

testify before there has been any evidence admitted for the witness

to summarize. We unequivocally condemn this practice as a tool

employed by the government to paint a picture of guilt before the

evidence has been introduced. Permitting a witness to describe a

complicated government program in terms that do not address witness

credibility is acceptable. However, allowing that witness to give

tendentious testimony is unacceptable. Allowing that kind of

testimony would greatly increase the danger that a jury "might rely

upon the alleged facts in the [overview] as if [those] facts had

already been proved," or might use the overview "as a substitute

for assessing the credibility of witnesses" that have not yet

testified. Scales, 594 F.2d at 564. We hold, therefore, that the

district court abused its discretion in allowing the government to

utilize Martin as an overview witness to testify to issues in

dispute.

We now must determine if the district court's abuse of

discretion was harmless error. We have chosen to use our precedent

on summary witness testimony to help guide our analysis in this

case because that body of law is the most analogous issue to the

one before this Court on which we have previously ruled.

29 In Scales, we permitted the use of a summary chart in a

complex case, noting that "[t]he facts summarized were entirely

objective, and . . . uncontested," there was no credibility issue,

the summary was neutral, and the trial judge gave a limiting

instruction. Id. at 564.

In United States v. Meshack, the government made use of a

chart that presented the defendant's financial transactions and was

used as an aid during a witness's testimony. 225 F.3d 556, 581

(5th Cir. 2000) Although the district court did not give a proper

limiting instruction, we found that there was no plain error

because: (1) the chart was not admitted into evidence; (2) the

chart did not go to the jury room; (3) the defense had an

opportunity to cross-examine the witness about the chart; and, (4)

the defense did not show on appeal that the chart contained

misleading or erroneous information. Id. at 582.

In Taylor, the government made use of an organizational chart

similar to the one here that showed pictures of the people involved

in a drug conspiracy and their relationships. 210 F.3d at 314.

The government placed the chart before the jury during opening

statements and when the witnesses were questioned about it. Id.

at 314-315. However, at other times the chart was turned away from

the jury. Id. at 315. At the close of the government's case, the

chart was admitted into evidence as a summary of testimony. Id.

Defense counsel objected to the chart both before opening

30 statements and when the prosecutor moved its admission into

evidence. Id. The district court gave two instructions on the

chart's use. Id. The court instructed the jury after the

government's opening statement that "the chart reflected what the

government believed the facts to be, but that it would be up to

them to evaluate whether it was an accurate depiction of the

events." Id. The second instruction, which was given after the

chart was admitted into evidence, instructed the jury that "the

chart should be evaluated just like any other evidence and should

be given whatever weight the jury deemed appropriate." Id.

We noted in Taylor:

[T]he use of charts as "pedagogical" devices intended to present the government's version of the case is within the bounds of the trial court's discretion to control the presentation of evidence under Rule 611(a) [of the Federal Rules of Evidence]. Such demonstrative aids typically are permissible to assist the jury in evaluating the evidence, provided the jury is forewarned that the charts are not independent evidence.

Id. (internal quotations and citations omitted). We held that it

was error to admit the chart because we found that it did not

accurately reflect the underlying record or testimony. Id. at 316.

We held that this was not harmless error because the chart gave the

defendant a more central role in the conspiracy than the evidence

supported, and the chart was before the jury throughout the trial.

Id.

The record in this case indicates that the district court did

31 not give a limiting instruction to the jury aside from stating that

Martin's testimony consisted of impressions. Significantly,

defense counsel did not ask for limiting instructions. The record,

however, also indicates that Martin's testimony and use of the

chart were meant to clarify the roles of the various participants

in the alleged fraudulent tax credit scheme, which was arguably

complicated and difficult to understand.

Furthermore, as in Meshack, the record reflects the district

court clearly noted that defense counsel would have an opportunity

to cross-examine Martin and expose any of his testimony that was

not supported by admissible evidence. Also, the chart used by

Martin was not admitted into evidence or sent into the jury room.

Moreover, Griffin has not shown this Court that the information

provided by Martin's testimony or the chart was misleading or

erroneous. Rather, the record indicates that Martin's overview

testimony and the chart were supported by other witnesses'

testimony and exhibits admitted into evidence. Martin's testimony,

viewed in light of the record as a whole, had little, if any,

affect on the jury's verdict. We conclude, therefore, that

Martin's testimony and the use of the chart were harmless.

C. Whether the evidence is sufficient to support Griffin's money laundering conviction.

"In evaluating a challenge to the sufficiency of the evidence,

we view the evidence in the light most favorable to the verdict and

uphold the verdict if, but only if, a rational juror could have

32 found each element of the offense beyond a reasonable doubt."

United States v. Brown, 186 F.3d 661, 664 (5th Cir. 1999). In

order to find that the defendant committed the offense of money

laundering under 18 U.S.C. § 1956(a)(1)(B)(i), "the government must

prove that the defendant: (1)conducted or attempted to conduct a

financial transaction, (2) which the defendant knew involved the

proceeds of unlawful activity, and (3) which the defendant knew was

designed to conceal or disguise the nature, location, source,

ownership, or control of the proceeds of the unlawful activity."

United States v. Burns, 162 F.3d 840, 847 (5th Cir. 1998).

Griffin asserts there is insufficient evidence to support her

conviction for money laundering. She moved for a judgment of

acquittal at the close of the government's evidence, which was

denied by the district court. The government argues that Griffin

committed money laundering by concealing her ownership of the land

she received from BHHI and placing it in the name of Arkofa, her

brother-in-law Arlee Griffin's company. Although Griffin

acknowledges that she put the land in Arkofa's name, she argues

that she did not have the requisite "intent to conceal" because she

had her brother-in-law deed the property back to her nine days

later and because both Walker and Roberts were aware of this

transaction. Notably, there is no evidence in the record that the

property was ever deeded back to Griffin. Rather, the record

indicates that she had her brother-in-law deed the property to

33 Walker.

There is no doubt that Griffin engaged in a financial

transaction, satisfying the first prong of the test. We also find

that a jury could reasonably infer that she had knowledge that what

she was doing was unlawful, which satisfies the second prong of the

test. Under Texas law, as an officer of the state, Griffin had a

duty to not “accept other employment or compensation that could

reasonably be expected to impair [her] independence of judgment in

the performance of [her] official duties. . . ." TEX. GOVT. CODE ANN.

§ 572.051(3) (Vernon 2001). In addition, Griffin could not

"intentionally or knowingly . . . accept[] . . . any benefit as

consideration for [her] decision, opinion, recommendation, vote, or

other exercise of [her] discretion as a public servant. . . ."

TEX. PENAL CODE ANN. § 36.02 (Vernon 2001). Even if Griffin was only

a consultant to BHHI as she claims, she accepted money from BHHI to

work on the Golden Oaks project and then voted in favor of the

project as a TDHCA board member without disclosing her indirect

connection with it. We conclude, therefore, that a jury could

reasonably infer that she accepted a benefit--ownership in BHHI

and/or profits from BHHI's transactions–-in exchange for her vote.

Lastly, Griffin did deed property she received from BHHI to her

brother-in-law. However, there is no public record of the property

ever being transferred back to Griffin. Rather, even if Griffin

had considered having the property deeded back to her, the record

34 indicates that she had her brother-in-law deed the property to

Walker so he could sell it. Thus, a jury could have reasonably

interpreted Griffin's transfer of the property to her brother-in-

law and then to Walker as an act of concealment, satisfying the

third prong of the test.

Griffin argues that her co-conspirators' knowledge of this

transaction shows she was not concealing anything. This Court,

however, has held that "concealment can be established by showing

that 'the transaction is part of the larger scheme designed to

conceal illegal proceeds.'" United States v. Pipkin, 114 F.3d 528,

534 (5th Cir. 1997) (citation omitted). As we have already

discussed above, the record indicates that all of the co-

conspirators, including Griffin, participated in the larger scheme

to obtain tax credits by bribing Griffin for her vote as a member

of TDHCA's board of directors. Walker's and Roberts' knowledge of

Griffin's transfer of property to her brother-in-law does not

necessarily mean that she did not attempt to conceal the bribery

scheme. Rather, the jury could have reasonably found that all of

the Appellants participated in this concealment, as evidenced by

the fact that they placed money and property they received from the

Golden Oaks project in the names of people other than themselves.

We conclude, therefore, that the evidence was sufficient to support

Griffin's money laundering conviction.

D. Whether the evidence is sufficient to support the Appellants' mail fraud convictions.

35 Appellants moved for a directed verdict of acquittal on the

charges of mail fraud at the close of the government's evidence,

claiming that there was insufficient evidence to convict under

Counts 6 and 7 of the indictment. Count 6 of the indictment

charged that Griffin, Walker, and Roberts committed mail fraud by

mailing a pre-application notification for tax credits for the

Golden Oaks project to the City of Bryan, Texas, for the purpose of

defrauding the TDHCA, State of Texas, United States, and to obtain

money and property by false pretenses. Count 7 of the indictment

charged that Griffin and Walker committed mail fraud by mailing a

pre-application notification for tax credits for the Glen Oak

Village project to the City of Bryan, Texas, for the purpose of

defrauding the TDHCA, State of Texas, United States, and to obtain

money and property by false pretenses. On appeal, the Appellants

renew their argument that there was insufficient evidence of mail

fraud to support a violation of 18 U.S.C. § 1341. Section 1341 of

Title 18 of the United States Code prohibits the use of the mails

in furtherance of "any scheme or artifice to defraud, or for

obtaining money or property by means of false or fraudulent

pretenses, representations, or promises. . . ."

Walker and Roberts contend, as they do for all of the counts

for which they were convicted, that there is no support for their

mail fraud convictions because they were not aware of Griffin's

intent to vote for their project. Griffin, however, relies on

36 Cleveland v. United States in which the Supreme Court held that,

for the purposes of 18 U.S.C. § 1341, state and municipal licenses

are not property in the hands of the official licensor. 531 U.S.

12, 15 (2000).5 Griffin contends that tax credits are like

licenses in that they do not exist until they are issued and,

therefore, the district court should have dismissed Counts 6 and 7.

The government, however, argues that tax credits are a valuable

commodity and an economic incentive, unlike the licenses at issue

in Cleveland, which mainly implicated a regulatory concern of the

state.

Furthermore, the government contends on appeal that the

district court instructed the jury that "[a] 'scheme to defraud'

included any scheme to deprive another of money, property, or of

the intangible right to honest services by means of false or

fraudulent pretenses, representations, or promises." The

government, citing United States v. Powers, 168 F.3d 741 (5th Cir.

1999), argues that because the jury was instructed on both the

defrauding of property and honest services theories, and the

evidence supports either, this Court should affirm because the jury

had a right to consider both theories. Griffin, however, replies

that the district court's instruction amounts to a constructive

amendment of Counts 6 and 7. Section 1346, which provides that

5 Cleveland was decided five days after the end of appellants’ trial, which explains why appellants did not mention it in their objections at trial.

37 "the term 'scheme or artifice to defraud' includes a scheme or

artifice to deprive another of the intangible right of honest

services," is not referred to in either Count 6 or 7 of the

indictment; and the words "intangible right to honest services" do

not appear anywhere in the indictment. Likewise, in its jury

argument, the government did not refer in any manner to the

provisions of section 1346 nor to the specific language of the

district court's instructions. We first address whether tax

credits can be property in the hands of the TDHCA and then whether

the jury instructions amounted to a constructive amendment.

1. Tax credits as property.

We conclude that, in accordance with the Supreme Court's

decision in Cleveland, there was insufficient evidence to support

a conviction of mail fraud under 18 U.S.C. § 1341 because the low-

income housing tax credits were not property until they had been

issued. Cleveland involved a Louisiana law that authorizes the

State to award nontransferable, annually renewable licenses to

operate video poker machines. 531 U.S. at 15. Under the law,

applicants for the licenses must meet certain requirements designed

to ensure that they have good character and fiscal integrity. Id.

The defendants were indicted on RICO charges in connection with a

scheme to bribe state legislators to vote in a manner favorable to

the video poker industry. Id. at 16. Included in the indictment

was the predicate act of mail fraud in violation of 18 U.S.C. §

38 1341. Id. at 16-17. The indictment alleged the defendants

fraudulently concealed in their applications that they were the

true owners of a certain business establishment because they had

financial and tax problems that could have undermined their chances

to receive the video poker licenses. Id. at 17.

The defendants moved to dismiss the indictment claiming that

the alleged fraud did not deprive the State of property under

section 1341. Id. The government, however, argued that the State

had a property right in the licenses before they were issued

because the State received a substantial amount of money in

exchange for each license and continued to receive payments from

licensees as long as the licenses were in effect. Id. at 21. The

government also argued that the State had significant control over

the licenses’ issuance, renewal, suspension, and revocation, which

indicated the licenses were property. Id. at 21-22.

The Supreme Court in Cleveland agreed with the defendants and

reversed their mail fraud convictions, holding that section 1341

does not reach fraud in obtaining a state or municipal license.

The Court found that the gaming licenses were not property in the

government regulator's hands and section 1341 speaks only to the

protection of money and property. Id. at 20. Any benefit that the

government derives from Section 1341 must be limited to the

government's interests as a property holder. Id. at 19-20. In

reaching this conclusion, the Court noted that it did not doubt

39 that Louisiana had a substantial economic stake in the video poker

industry. Id. at 22. Although the State collected up front

processing fees for each license, the Court noted that the State

received "the lion's share of its expected revenue not while the

licenses remain in its own hands, but only after they have been

issued to licensees.” Id. (emphasis in original) The licenses,

noted the Court, do not generate an ongoing stream of revenue

before they are issued. Id. According to the Court, finding that

the processing fees amounted to a property right would result in

"the conclusion that States have property rights in any license or

permit requiring an up front fee, including drivers' licenses,

medical licenses, and fishing and hunting licenses," which the

government conceded were "purely regulatory." Id.

The Court, in Cleveland, then addressed the government's

contention concerning the State's right to control the issuance,

renewal, and revocation of video poker licenses. The Court noted

that the "intangible rights of allocation, exclusion, and control

amount to no more and no less than Louisiana's sovereign power to

regulate." Id. at 23.

Furthermore, the Court held that the government's reading of

the mail fraud statute would result in a sweeping expansion of

federal criminal jurisdiction without a clear statement of intent

from Congress. Id. at 24. The Court stated:

Equating issuance of licenses or permits with deprivation

40 of property would subject to federal mail fraud prosecution a wide range of conduct traditionally regulated by state and local authorities. We note in this regard that Louisiana's video poker statute typically and unambiguously imposes criminal penalties for making false statements on license applications.

Id. Thus, as it had in previous cases, the Court noted that

"'unless Congress conveys its purpose clearly, it will not be

deemed to have significantly changed the federal-state balance' in

the prosecution of crimes.’" Id. at 25 (quoting Jones v. United

States, 529 U.S. 848, 858 (2000)). In addition, the Court noted

that it has instructed that "’ambiguity concerning the ambit of

criminal statutes should be resulted in favor of lenity.’" Id.

(quoting Rewis v. United States, 401 U.S. 808, 812 (1971)).

Therefore, to the extent that the meaning of the word "property"

might be ambiguous as used in section 1341, the Court concluded

that "’it is appropriate, before [the Court] choose[s] the harsher

alternative, to require that Congress should have spoken in

language that is clear and definite.’" Id. (quoting United States

v. Universal C.I.T. Credit Corp., 344 U.S. 218, 222 (1952)).

We conclude that Cleveland is controlling in this case.

Unissued tax credits have zero intrinsic value. Therefore, tax

credits are not property when they are in the TDHCA's possession.

As a result, section 1341 does not reach fraud in obtaining the

allocation of tax credits in this case. The tax credits at issue

derive from Congress' Tax Reform Act of 1986. Each year, state and

41 local agencies are granted low-income housing tax credits by the

United States Treasury Department. Local entities then reallocate

these tax credits to qualified low-income projects. TDHCA is the

only entity in the State of Texas with the authority to reallocate

tax credits under this program. Once tax credits have been

allocated, they cannot be transferred from the property to which

they were allocated. If the tax credits cannot be used because the

property to which they were allocated does not become a low-income

residence, the federal government reclaims the tax credits. The

tax credits are not actually issued on a project involving new

construction, as was the case for the Golden Oaks project, until

the rental units actually have been constructed and placed in

service at reduced rent for low-income occupants. Once the tax

credits have been issued on a property, the owner can sell limited

partnership interests in the property so that investors can take

advantage of the tax credits allocated to that project. See

generally 26 U.S.C. § 42.

As with the issuance of the gaming licenses in Cleveland,

THDCA collects up front fees such as application fees and

commitment fees. Beyond those fees, however, TDHCA does not derive

any benefit, gain, or income from tax credits while it possesses

them. After the tax credits have been issued, TDHCA also may

collect some fees such as an annual compliance monitoring fee.

However, those fees amount to nothing more than program fees

42 necessary to carry out the State's power to regulate the issuance

of the tax credits. In fact, the benefit that the State of Texas

receives from those fees is minute compared to the benefit that is

realized from the creation of affordable rental housing, which is

the goal of the tax credit program. Unquestionably, that benefit

is not realized when the tax credits have been allocated to the

State for distribution. Rather, that benefit is realized only

after the tax credits actually have been issued into the

developers' possession so they can be sold to investors who can use

them to offset their federal income tax obligations. In sum, the

only property interest the State has in the tax credits is purely

abstract or theoretical, even after the entire transaction between

the State and a developer is completed. Unissued tax credits,

therefore, do not amount to economic property as contemplated by

section 1341 while they are in the TDHCA's possession.

2. Constructive amendment to Counts 6 and 7.

"A constructive amendment occurs when the trial court 'through

its instructions and facts it permits in evidence, allows proof of

an essential element of a crime on an alternative basis permitted

by the statute but not charged in the indictment.'" United States

v. Arlen, 947 F.2d 139, 144 (5th Cir. 1991) (quoting United States

v. Slovacek, 867 F.2d 842, 847 (5th Cir. 1989)). There is no doubt

that the Fifth Amendment guarantees a criminal defendant that he

will only be tried on the charges that have been alleged in an

43 indictment handed down by a grand jury, which "cannot be 'broadened

or altered except by the grand jury.'" Id. (quoting United States

v. Chandler, 858 F.2d 254, 256 (5th Cir. 1988)”)”. As the Supreme

Court has explained:

To allow the prosecutor, or the court, to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment would deprive the defendant of a basic protection which the guaranty of the intervention of a grand jury was designed to secure. For a defendant could then be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury which indicted him.

Russell v. United States, 369 U.S. 749, 770 (1962).

Therefore, when a constructive amendment has occurred and

error has been properly preserved, we have made it clear that "the

conviction cannot stand; there is no prejudice requirement."

United States v. Mikolajczyk, 137 F.3d 237, 243 (5th Cir. 1998).

However, neither Griffin's attorney nor counsel for Walker and

Roberts objected to the district court's instruction that included

the deprivation of an intangible right of honest services language.

As a result, we must review this issue for plain error. United

States v. Dixon, 273 F.3d 636, 639-40 (5th Cir. 2001). Under this

standard of review, we may correct forfeited errors only if (1)

there was an error, (2) the error was clear or obvious, and (3) the

error affected the defendant's substantial rights. See United

States v. Olano, 507 U.S. 725, 731-34 (1993); Dixon, 273 F.3d at

639-40. Even if these three conditions are met, this Court may

44 correct a forfeited error only if it "'seriously affect[s] the

fairness, integrity, or public reputation of the judicial

proceedings.'" Olano, 507 U.S. at 736 (quoting United States v.

Atkinson, 297 U.S. 157, 160 (1936)).

We find that the requirements for granting relief under the

plain error standard of review have been satisfied. There is no

doubt that the district court erred by instructing the jury that a

scheme to defraud includes “a scheme to deprive another of the

intangible right to honest services” because the indictment did not

contain a reference to 18 U.S.C. § 1346 or its language. And, that

error was obvious. Furthermore, we can not permit the district

court to second guess "what was in the mind[] of the grand jury at

the time [it] returned the indictment." Russell, 369 U.S. at 770.

To do so would violate the Appellants' Fifth Amendment right to

indictment by a grand jury and undermine the public's faith in the

integrity of our judicial proceedings. Therefore, we hold that the

district court's jury instruction amounted to a constructive

amendment of Counts 6 and 7 of the indictment.

Based on the foregoing, we hold that unissued tax credits do

not amount to economic property under 18 U.S.C. § 1341. We also

hold that the district court's jury instruction constructively

amended Counts 6 and 7 of the indictment. Therefore, the

Appellants' mail fraud convictions must be reversed.

E. Whether the government failed to present sufficient evidence that Walker and Roberts were aware of Griffin's activities and,

45 therefore, failed as a matter of law to present sufficient evidence to support their convictions of the specific intent crimes.

Walker and Roberts contend that the government failed to

present sufficient evidence that they were aware of Griffin's

criminal activities. Where counsel failed to move for a judgment

of acquittal at the close of the government's case, the sufficiency

of the evidence challenge is reviewed only to determine if the

defendant's conviction constitutes a manifest miscarriage of

justice. United States v. Maldonado, 735 F.2d 809, 817 (5th Cir.

1984). Although a motion for a judgment of acquittal was

eventually filed by counsel for Griffin after both sides had

closed, neither Walker's nor Roberts' counsel filed such a motion

at the close of the government's case. Therefore, the standard of

review here is the manifest miscarriage of justice standard. Id.

In reviewing the record, this Court "must consider all the

evidence, direct and circumstantial, in the light most favorable to

the jury's verdict, accepting all reasonable inferences and

credibility choices in favor of that verdict." Id.

As already discussed above, we have concluded that low-income

housing tax credits are not property in the hands of the State for

purposes of mail fraud under 18 U.S.C. § 1341. Rather, the tax

credits become property only after they have been issued and are in

the control of the developers and investors of the projects to

which the tax credits have been allocated. Therefore, for the same

reasons discussed above, Walker's and Roberts' mail fraud

46 convictions must be reversed.

In addition to their mail fraud convictions, Walker and

Roberts were convicted of (1) aiding and abetting Griffin in

committing theft of tax credits in violation of 18 U.S.C. §§ 2 and

666(a)(1)(A); (2) aiding and abetting the bribery of Griffin with

money and land with the intent to influence Griffin to vote to

approve the Golden Oaks project's tax credit application in

violation of 18 U.S.C. § 666(a)(2); and (3) with conspiracy to

commit theft, bribery, and money laundering in violation of 18

U.S.C. § 371. In addition, Walker was convicted of aiding and

abetting in the laundering of bribery proceeds in violation of 18

U.S.C. § 1956(a)(1)(B)(I).

A person who aids or abets the commission of an offense

against the United States is punishable as a principal. 18 U.S.C.

§ 2. To establish aiding and abetting under 18 U.S.C. § 2, "the

defendant 'must have (1) associated with a criminal venture, (2)

participated in the venture, and (3) sought by action to make the

venture successful.'" United States v. Carreon-Palacio, 267 F.3d

381, 389 (5th Cir. 2001) (citation omitted). In order to convict

on the theft of tax credits in violation of 18 U.S.C. §

666(a)(1)(A), the jury must find that the government agent

knowingly converted government property valued at more than

$5,000.00 to the use of another. To be guilty of bribery under 18

U.S.C. § 666(a)(2), a defendant must "corruptly give[], offer[], or

47 agree[] to give anything of value to any person, with intent to

influence or reward an agent of an organization or of a State . .

. in connection with any business, transaction, or series of

transactions of such . . . agency involving anything of value of

$5000.00 or more." And, as previously noted, in order to convict

for the laundering of bribery proceeds under 18 U.S.C. §

1956(a)(1)(B)(i), the government must prove that the defendant "(1)

conducted or attempted to conduct a financial transaction, (2)

which he knew involved the proceeds of unlawful activity, (3) with

the intent either to conceal or disguise the nature, location,

source, ownership, or control of the proceeds of unlawful

activity." Pipkin, 114 F.3d 528, 534 (5th Cir. 1997).

Walker and Roberts insist that the government did not prove

that they had sufficient knowledge to be convicted under the above

statutes. Specifically, they argue that the government did not

prove that they knew Griffin was going to vote on the Golden Oaks

project's tax credit application, planned for her to vote on the

application, or knew that she was not going to disclose her

interest in the project. Walker and Roberts note that although

Hammond testified that Griffin's role was to vote on projects for

BHHI and to use her influence, Hammond did not specifically testify

that they were aware of that role. The government, on the other

hand, asserts that the evidence of Walker's and Roberts' leadership

roles in the scheme, the money they received, their acts of

48 deception in concealing that money by placing it in other people's

names, and their attendance at meetings with Griffin and Hammond to

discuss the Golden Oaks project prior to Griffin's vote shows that

they had sufficient knowledge of the scheme to support their

convictions.

Although the government did not provide much in the way of

direct evidence of Walker's and Roberts' knowledge concerning the

bribery scheme, we conclude that it provided adequate

circumstantial evidence from which knowledge could have been

inferred by the jury. This Court has held that a jury can infer a

defendant's knowledge of the scope of the conspiracy from the

defendant's important role in that conspiracy. See, e.g., United

States v. Hayles, 471 F.2d 788, 793 (5th Cir. 1973)(evidence that

defendants were leaders in counterfeiting conspiracy supported, in

part, convictions for conspiracy, making counterfeit money with

intent to defraud, possessing counterfeit money with intent to

defraud, and transfer of counterfeit money with intent to defraud).

We also have held that proof of a close association between the

defendant and a key player in the conspiracy can be probative of

the defendant's guilty knowledge. See, e.g., United States v.

Beckner, 134 F.3d 714, 720 (5th Cir. 1998) (acknowledging that,

where counsel has intimate association with client's activities, a

jury may reasonably infer knowledge of their illegal nature, even

absent direct evidence).

49 The evidence in the record is sufficient for a jury to infer

that Walker and Roberts played a role in the bribery scheme, and

that they had a close association with Griffin, whom the government

alleges was the key player in the scheme. Walker's role, according

to the evidence presented by the government, was to represent

Griffin's interest throughout the scheme. The record indicates

that Walker was paid a salary by BHHI at Griffin's discretion and

that he accepted a large portion of Griffin's share of the monetary

proceeds from the land sale in his name. Walker was later deeded

Griffin's portion of the land so that it could be sold to Stephen

Weiss. Moreover, evidence was presented to show that Walker

created a false promissory note from BHHI to J & G construction in

the amount of $19,167.00 to guarantee BHHI's debt to Griffin; that

LCCM was placed in his name so he could control the money; that he

received $23,333.00 from Mitchell on behalf of LCCM and paid it to

Griffin through Arkofa; that he endorsed the $8,216.72 check from

BHHI to LCCM, and used the proceeds to pay Griffin; and, that he

kept a written record of the $19,167.00 debt BHHI owed to Griffin.

Finally, the government presented evidence that Walker offered to

act as a liaison by speaking to Griffin about Hammond's concern

that he was going to be cut out of the Golden Oaks project, which

indicates that Walker and Griffin had a close association.

In addition, the record contains evidence that Roberts' role

was to convince Mitchell to use BHHI to build the Golden Oaks

project and to use Walker to obtain the land. As a result, the

50 government argued that Roberts defrauded TDHCA by intentionally

involving BHHI in the scheme wherein Griffin's ownership interest

in the corporation and her receipt of land and money from Walker,

Roberts, and Hammond, in exchange for her vote to approve the

project, was not disclosed. In support of that contention, the

government presented evidence that Roberts' role in convincing

Mitchell to use Walker to obtain the land for the Golden Oaks

project was crucial to the scheme because it made Mitchell's

purchase money available to pay the bribe to Griffin. Lastly, the

government showed that Roberts played a crucial role in introducing

Griffin and Walker to Hammond for purposes of entering into the

agreement to share ownership of BHHI.

This Court also has held that guilty knowledge can be inferred

from deception. See, e.g., United States v. Thomas, 120 F.3d 564,

570 (5th Cir. 1997) (defendant's "patently false statement [was]

circumstantial evidence of [defendant's] guilty knowledge"). The

record in this case indicates that the government presented

evidence that Walker and Roberts placed the land they received in

third party names. Further, Roberts placed cash disbursements he

received in the name of his mother; and he later placed $13,333.00

of the $50,000.00 check Mitchell wrote for Walker's services in the

name of Ozell Roberts. Moreover, during the recorded conversation

Roberts had with Mitchell, Roberts denied being one of the owners

of BHHI when the evidence clearly shows that was not true. Also,

51 Roberts claimed that he did not receive any of the $28,000.00

disbursement from the land sale when the record indicates that he

did. We conclude that the above evidence is sufficient for a jury

to impart knowledge to both Walker and Roberts as a result of

deception.

Therefore, we conclude that there was sufficient evidence in

the record for a jury to find that Walker and Roberts had knowledge

of the bribery scheme. The record contains evidence that they both

played an integral part in the scheme and had a close association

with Griffin, the key player in the scheme. The record also

contains enough evidence of Walker's and Roberts' use of deception

to conceal the scheme.

F. Whether the district court erred in restricting Griffin's testimony of her out-of-court conversations.

Griffin contends that the district court erred in refusing to

let her testify to the contents of conversations that she had with

Walker and Roberts, though the court allowed her to testify

regarding the topics of those conversations. Griffin's counsel did

not object to this ruling by the district court, so plain error

review applies. As noted above, to withstand plain error review

(1) there must have been an error, (2) that was clear or obvious,

and (3) that affected the defendant's substantial rights. Olano,

507 U.S. at 731-34; Dixon, 273 F.3d at 639-40. Even if these

conditions are met, the error must have seriously affected "the

52 proceedings" before it will be corrected by this Court. Olano, 507

U.S. at 736; Dixon, 273 F.3d at 640.

Griffin argues that she sought to introduce the testimony

concerning her out-of-court conversations to show her state of mind

or intent, and not to show the truth of the statements made during

the conversations. According to Griffin, therefore, the testimony

was not hearsay. Ultimately, Griffin argues that the jury was

unable to determine if what she did and said was reasonable because

she could not explain what precipitated her actions.

Griffin has not made it clear to this Court how her

substantial rights have been affected by the district court's

decision not to allow her to testify to the content of her out-of-

court statements. A review of the record, furthermore, reveals no

effect to Griffin's substantial rights or the integrity of the

trial. Therefore, we conclude that under the plain error standard,

there is no basis for reversal on this issue.

G. Whether the district court abused its discretion by allowing evidence of similar incidences of misconduct by Griffin.

This Court reviews the admission of extrinsic acts evidence

for abuse of discretion. United States v. Route, 104 F.3d 59, 63

(5th Cir. 1997). The admissibility of evidence of other acts is

controlled by Rule 404(b) of the Federal Rules of Evidence, which

states:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however,

53 be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

FED. R. EVID. 404(b). We employ a two-part test to determine whether

evidence is admissible under Rule 404(b): "(1) whether the

evidence is relevant to an issue other than the defendant's

character and (2) whether the evidence possesses probative value

that is not outweighed substantially by the danger of unfair

prejudice and is otherwise admissible under Rule 403." Route, 104

F.3d at 63. "Evidence that is 'inextricably intertwined' with the

evidence used to prove the crime charged is not 'extrinsic'

evidence under Rule 404(b). “Such evidence is considered

'intrinsic' and is admissible 'so that the jury may evaluate all

circumstances under which the defendant acted.'" United States v.

Navarro, 169 F.3d 228, 233 (5th Cir. 1999) (quoting United States

v. Royal, 972 F.2d 643, 647 (5th Cir. 1992) (citation omitted)).

Three witnesses testified to extrinsic acts by Griffin.

Griffin's attorney objected to the testimony of these witnesses.

The district court, however, overruled the objections concluding

that the testimony went to the issue of knowledge and intent

concerning Griffin's use of her office for personal gain.

Brenda Jenkins, executive director of the Texas Public Utility

54 Commission in 1996, testified that the General Services Commission

was planning on awarding a contract worth between $4 million and

$10 million to move the Public Utility Commission from leased space

to government-owned space. The process for awarding the contract

involved issuing a state-wide request for bids. Jenkins stated

that Griffin came to her office with two men to discuss the

possibility of doing the work. Griffin identified herself as a

commissioner with TDHCA and stated that as they were all "Aggies"

from Texas A&M University, Jenkins should consider using her

influence to help them get the contract. The record indicates that

Jenkins did not enter any agreement to help Griffin obtain the

contract.

Jenkins' testimony clearly was extrinsic because it had

nothing to do with the case at hand. However, the government notes

that it called Jenkins as a rebuttal witness, after Griffin

testified that she had never used her position as a board member

for personal gain. Griffin called two people who worked at TDHCA

to testify that they were never influenced by her. Jenkins then

testified on rebuttal as to Griffin's alleged attempt to influence

her on the Public Utility Commission's contract.

In United States v. Gibson, James Gibson was charged with

conspiracy to manufacture and to possess with intent to distribute

methamphetamine, possession of methylamine and maintaining a place

for the purpose of manufacturing and distributing a controlled

55 substance. 55 F.3d 173, 175 (5th Cir. 1995). Melvin Hazelton was

indicted as part of the same conspiracy and pled guilty to one

count pursuant to a plea agreement. Hazelton testified against

Gibson. Id. Gibson's defense was that he was completely innocent

of involvement in or even knowing of the production and

distribution of methamphetamine, and that Hazelton was lying. Id.

at 180. In rebuttal, the government called a witness to testify

that Gibson had sold him "speed" several times, but there was no

indication that these sales were related to any of the charged

conduct. Id. at 179. The district court admitted the testimony,

and we affirmed. We found that the evidence was relevant because

it "merely completed the picture as to appellant's true involvement

in and knowledge of the drug world, thereby correcting a distorted

view of appellant's testimony." Id. at 180. We find Gibson to be

akin to the case at hand in that Jenkins' rebuttal testimony

refuted Griffin's claim that she never used her position to

influence anyone.

Paul Todd, senior administrator of BVCAA, testified during the

government's case-in-chief and on rebuttal. He testified on direct

that Roberts was the housing director of BVCAA and had contacts

with TDHCA. He further testified on direct and on rebuttal that

Griffin proposed to act as a consultant to BVCAA on a low-income

housing project that would be funded by TDHCA, while Griffin was on

the TDHCA board. BVCAA did not participate in the proposed

56 project.

The government argues that Todd's testimony provided

background information on Griffin's and Roberts' relationship and

their experience in funding housing projects through TDHCA. We

agree. Moreover, Todd's testimony concerning Griffin’s having

approached him about the low-income housing project goes directly

to Griffin's involvement in the conspiracy. The evidence clearly

has probative value that outweighs any prejudice given the other

evidence presented on Griffins and Roberts' relationship and the

conspiracy.

Finally, Leslie Donaldson, manager of the credit underwriting

department at TDHCA, testified that Griffin contacted her directly

about a tax credit application for the Shadow Wood project. The

record indicates that Griffin requested that Donaldson fax her a

memorandum regarding the deficiencies in the application and that

Donaldson keep her advised throughout the process. According to

Donaldson, that form of contact by a TDHCA commissioner was

"absolutely unheard of." The record, nevertheless, indicates that

Donaldson did fax the requested information to Griffin, and

followed up with Griffin throughout the process.

The government argues that Donaldson's testimony about the

Shadow Wood project was intrinsic evidence because that project

involved the same participants as this case. In addition, the

government claims that the down payment on the land for the Shadow

Wood project was part of the reason BHHI was having financial

57 problems. But, the district court admitted the evidence as

extrinsic because it went to knowledge and intent only. Although

Griffin argues that knowledge, intent, and motive were not at issue

at trial because her defense was that she did not own any part of

BHHI and had done nothing wrong, the government still bore the

burden of proving that she acted with the requisite intent when she

voted on the tax credit applications and took bribes. Also, we

note that Donaldson was called as a rebuttal witness, so her

testimony was properly admitted to rebut Griffin's claim that she

had never tried to influence anyone.

Therefore, we conclude that the district court did not abuse

its discretion by allowing in evidence of similar incidences of

misconduct by Griffin. Jenkins' and Donaldson's testimony was

rebuttal evidence. Todd's testimony had probative value that

outweighed any prejudice given the other evidence presented during

the trial.

H. Whether the district court abused its discretion by limiting Griffin's attorney's closing argument.

We review the rulings of a district court concerning

statements made during a closing argument to which a party

preserved an objection for abuse of discretion. United States v.

Kang, 934 F.2d 621, 627 (5th Cir. 1991). When a party fails to

preserve an objection to a district court's limitations on an

attorney's closing argument, we review any alleged error for plain

error only. United States v. Baptiste, 264 F.3d 578, 591 n.10 (5th

58 Cir. 2001).

The record reflects that during closing argument, Griffin's

attorney attempted to present an argument concerning the statutes

related to Texas' ethics laws, and that Griffin had not violated

those laws. The government objected. In response, the district

court did not specifically sustain the objection. Rather, the

district court explained that although the parties could argue the

relevance of state law, the case ultimately was one of federal law.

Griffin's attorney then continued his closing argument,

discussing Griffin's relationship with TDHCA and noting that the

former employees of TDHCA who testified during the trial still had

some form of business relationship with TDHCA. Griffin's attorney

also stated that the ethical standards brought up by the government

were for the state legislature to decide and that even if the jury

did not agree with those laws, only the state legislature could

change them, not the federal prosecutors. The district court then

told Griffin's attorney that he needed to get back to the issues at

hand and noted that Griffin was "not a former member [of TDHCA],

she's not accused of being a former member. She is accused of

being a member and then taking certain actions." Griffin's

attorney responded: "Well, I certainly do know that, Your Honor,

but this is my argument." The district court responded: "I

understand. Let's not get off--I just don't want the jury to get

off on any of--." Griffin's attorney then continued his argument

moving on to a different topic.

59 Griffin contends that the protestation, "Your Honor, but this

is my argument," is sufficient to constitute a viable objection.

Griffin further argues that her attorney's statement should amount

to an objection particularly considering the fact that the district

court interrupted the closing argument and indicated that the

lawyer was not properly addressing the issues. Thus, Griffin

asserts that the district court abused its discretion by

interrupting her attorney's closing argument in the manner it did.

We do not agree that Griffin's attorney's protestation was a

viable objection. Nevertheless, whether we apply an abuse of

discretion standard or plain error standard, we conclude that the

record does not support a finding that the district court

improperly limited the closing argument. The district court made

clear to the jury that it should follow the elements of the crime

as laid out in the court's charge, and that what the attorneys were

rightfully doing during their closing arguments was arguing the

evidence. Although Griffin's attorney was able to argue that she

did not violate Texas law, it was not improper for the district

court to tell him to move on when he started arguing that it was up

to the Texas legislature to change Texas' ethics laws, not the

federal prosecutor, as that has no relevance to the case.

Therefore, any limitation on Griffin's closing argument that

resulted from the district court's interruption did not amount to

an abuse of discretion or plain error.

60 I. Whether Walker and Roberts were constructively denied counsel.

Walker and Roberts did not argue to the district court that

they were constructively denied counsel. Generally, this Court

cannot determine a claim of inadequate representation on direct

appeal when the claim has not been raised before the district

court. United States v. Freeze, 707 F.2d 132, 138 (5th Cir. 1983).

"Only when the record is sufficiently developed with respect to

such a claim, will we determine the merits of the claim." Id.

(citing United States v. Phillips, 664 F.2d 971, 1040 (5th Cir.

1981)).

Walker and Roberts argue that they were constructively denied

counsel because their lawyers deferred to Griffin's counsel and

thereby represented only Griffin's interests. They also argue that

their lawyers failed to subject the government's case to meaningful

adversarial testing. Specifically, Walker and Roberts complain

that their attorneys did not raise the defense that they were

unaware of Griffin's illegal activities because doing so would have

been inconsistent with Griffin's defense that she did not own part

of BHHI and therefore had done nothing wrong.

Additionally, Walker and Roberts argue that their attorneys

did not make motions for separate trials. Furthermore, their

attorneys did not object when the government elicited testimony

that was damaging to them. In particular, the government elicited

evidence of the sale of land to Mitchell by BHHI for $15,000.00 an

61 acre, even though BHHI had only paid $2,000.00 an acre for the

land. Walker and Roberts argue that this land sale was irrelevant

to the charged counts, even though the government argues that the

sale showed a concert of action in relation to BHHI and revealed

the source of the bribe to Griffin. Walker and Roberts also point

out that the district court expressed concern at several points

during the trial that Griffin's attorney seemed to be representing

everyone, even though Walker and Roberts might have different

interests.

Notably, Griffin's attorney filed "boilerplate" objections to

Walker's sentencing on his behalf, which were the same as those

filed for Griffin and not specific to Walker's interests. The

district court, however, refused to allow Griffin's attorney to

represent Walker because of his loyalty to Griffin, who had

different legal and factual positions. The district court also

questioned Roberts' attorney as to whether he truly was

"comfortable that he has represented Roberts' interests without

regard to Griffin." The district court then reiterated that it had

told Walker and his counsel "in no uncertain terms, that Mr. Walker

needed separate counsel, truly separate counsel."

In order for an attorney's assistance to be so defective as to

require reversal of the conviction, the defendant must make two

showings:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the

62 "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984). However, the

defendant need not make a specific showing of prejudice in a

limited number of cases. These include: (1) "the complete denial

of counsel," such as "if the accused is denied counsel at a

critical stage of his trial;” (2) situations in which "counsel

entirely fails to subject the prosecution's case to meaningful

adversarial testing;” and, (3) "on some occasions when although

counsel is available to assist the accused during trial, the

likelihood that any lawyer, even a fully competent one, could

provide effective assistance is so small that a presumption of

prejudice is appropriate without inquiry into the actual conduct of

the trial." United States v. Cronic, 466 U.S. 648, 659-660 (1984).

"A constructive denial of counsel occurs in only a very narrow

spectrum of cases where the circumstances leading to counsel's

ineffectiveness are so egregious that the defendant was in effect

denied any meaningful assistance at all." Gochicoa v. Johnson, 238

F.3d 278, 284 (5th Cir. 2000)(citation omitted). Walker and

Roberts allege that their representation at trial completely failed

to subject the prosecution's case to meaningful adversarial testing

and, therefore, they were constructively denied counsel.

In Burdine v. Johnson, this Court held that the defendant was

63 denied counsel and was entitled to a presumption of prejudice when

his lawyer repeatedly slept as evidence was being introduced

against him. 262 F.3d 336, 338 (5th Cir. 2001) (en banc).

Additionally,

[w]e have found constructive denial in cases involving the absence of counsel from the courtroom, conflicts of interest between defense counsel and the defendant, and official interference with the defense; and have stated that constructive denial will be found when counsel fails to subject the prosecution's case to any meaningful adversarial testing.

Gochicoa, 238 F.3d at 284. However,

we have refused to find a constructive denial where defense counsel investigated only certain issues, where counsel's trial presentation was "somewhat casual," where counsel failed to pursue a challenge based on racial bias in jury selection, to object to a variation between the indictment and the jury charge, or to raise a meritorious issue on appeal. Thus, prejudice is presumed, and Washington's second prong inapplicable, only when the defendant demonstrates that counsel was not merely incompetent but inert, distinguishing shoddy representation from no representation at all. When the defendant complains of errors, omissions, or strategic blunders, prejudice is not presumed; bad lawyering, regardless of how bad, does not support the per se presumption of prejudice.

Id. at 284-85 (citations and internal quotations omitted). The

attorneys' acts of which Walker and Roberts complain fall in this

latter group of cases. The record indicates that there was no

complete absence of counsel, no actual conflict between the

attorneys and their clients, and no official interference. In

addition, Walker's and Roberts' attorneys made opening statements,

albeit after the government's case. Both attorneys also questioned

64 some of the witnesses and made closing statements. We find,

therefore, that prejudice cannot be presumed in this case.

Furthermore, Walker and Roberts have not shown this Court that

their counsels' performance was deficient under the first prong of

Washington. In other words, they have not shown that their

counsels' errors were serious enough to constitute a deficiency, or

that they suffered actual prejudice. A decision by co-defendants

to proceed with a unified defense is one of trial strategy, and not

a basis for an ineffective assistance claim. See United States v.

Mooney, 769 F.2d 496, 499-500 (8th Cir. 1985).

Additionally, although Walker and Roberts argue that their

attorneys were deficient in failing to seek separate trials, the

Supreme Court has indicated that a severance of co-defendants'

trials should be granted "only if 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 v. United States, 506 U.S. 534,

539 (1993). We have found that a defendant did not suffer

prejudice from the joinder of his trial with a co-defendant when

there was sufficient evidence to convict the defendant. See United

States v. Broussard, 80 F.3d 1025, 1036-37 (5th Cir. 1996).

Lastly, Walker and Roberts have not shown prejudice in that the

outcome of the trial would have been different absent any alleged

errors. We find, therefore, that Walker and Roberts were not

65 constructively denied counsel.

J. Whether the district court erred in sentencing the Appellants in its calculations of the benefits to be received from the bribes, the existence of multiple bribes, and the amount of restitution owed to Mitchell.

All three Appellants assert that the district court erred in

calculating their sentences. In reviewing a sentence imposed by a

district court under the federal sentencing guidelines, "’we review

the trial court's findings of fact for clear error and review

purely legal conclusions or interpretations of the meaning of a

guideline de novo.’" United States v. Canada, 110 F.3d 260, 262-63

(5th Cir. 1997) (quoting United States v. Kimbrough, 69 F.3d 723,

733 (5th Cir. 1995). Clear error exists if this court is left with

a definite and firm conviction that a mistake has been made.

Estate of Jameson v. Commissioner, 267 F.3d 366, 370 (5th Cir.

2001).

As to Griffin's sentence, the district court applied a total

offense level of 29 and a criminal history category of I. The

district court began with a base offense level of 10 under U.S.S.G.

§ 2C1.1, which is applicable to offenses under 18 U.S.C. §

666(a)(1)(B). The court then increased the offense level by 2

under U.S.S.G. § 2C1.1(b)(1) because it found that there was more

than one bribe. The court also increased the offense level by an

additional 13 under U.S.S.G. § 2C1.1(b)(2)(A) because it found

that the value of the benefit to be received from the offenses was

$3.1 million. In addition, the court increased the offense level

66 by 2 under U.S.S.G. § 3B1.1(c) for her role in the offense, and by

2 under U.S.S.G. § 3C1.1 for obstruction of justice. These

increases resulted in a total offense level of 29. Walker's and

Roberts' offense levels were similarly increased by two on a

finding of more than one bribe, and by 13 on the calculation of

approximately a $3.1 million benefit to be received from the

offenses.

The Appellants argue that there was only one bribe alleged in

the indictment, and that it was error to find two bribes. Further,

the Appellants contend that the only benefit to be received by BHHI

from the Golden Oaks project bribe was the $403,289.00 in profit to

BHHI, as stated by Mitchell in a line item in the tax credit

application that he prepared. The district court also included in

its calculations the $216,000.00 for the 108 acres left over from

the land that Smith sold to BHHI, the $61,522.00 salary that

Roberts received from One Golden Oaks Ltd., the $400,000.00

developer's fee that Roberts anticipated from completing the

project, and the $120,000.00 anticipated profit on the Shadow Wood

project. The Appellants argue that the $2.4 million profit

calculation is incorrect, and that the additional amounts were not

part of the benefit to be received and should not be taken into

account. Rather, Appellants argue that $403,289.00, which was the

amount listed as the contractor profit on the Golden Oaks project's

tax credit application, should have been used.

The amount of benefit to be received is a fact finding issue

67 that is reviewed for clear error. United States v. Chmielewski,

196 F.3d 893, 894 (7th Cir. 1999); see also United States v.

Bankston, 182 F.3d 296, 317 (5th Cir. 1999), vacated on other

grounds sub nom. Cleveland v. United States, 529 U.S. 1017 (2000).

The district court need not determine the value of the benefit with

precision. United States v. Landers, 68 F.3d 882, 884 n.2 (5th

Cir. 1995). In fact, in determining the amount of benefit to be

received, courts may consider the expected benefits, not only the

actual benefits received. See, e.g., Chmielewski, 196 F.3d at 894-

95; United States v. Thickstun, 110 F.3d 1394, 1400 (9th Cir.

1997).

The guideline commentary defines the value of "the benefit

received or to be received" as "the net value of such benefit."

U.S.S.G. § 2C1.1(b)(2)(A), comment. (n.2). The commentary provides

two examples:

(1) A government employee, in return for a $500 bribe, reduces the price of a piece of surplus property offered for sale by the government from $10,000 to $2,000; the value of the benefit received is $8,000. (2) A $150,000 contract on which $20,000 profit was made was awarded in return for a bribe; the value of the benefit received is $20,000. Do not deduct the value of the bribe itself in computing the value of the benefit received or to be received. In the above examples, therefore, the value of the benefit received would be the same regardless of the value of the bribe.

U.S.S.G. § 2C1.1, comment. (n.2). We have stated that these

examples make clear that "direct costs should be deducted from the

gross value of the contract." Landers, 68 F.3d at 884.

68 Applying these principles, we find that the district court

clearly erred in calculating the Appellants' sentences. First, we

find that the district court clearly erred in determining BHHI's

anticipated profit to be $2.4 million, which was the difference

between what BHHI allegedly was going to bill One Golden Oaks, Ltd.

and what the actual building costs were projected to be. We can

find no evidence in the record to indicate BHHI intended to bill

One Golden Oaks, Ltd. $7.5 million. We also cannot find any

evidence to support the district court's conclusion that building

costs were projected to be $5.1 million. There is nothing in the

record to support the district court's finding that the profit

expected by the Appellants was $2.4 million. Apparently, the

district court adopted the figure of $2.4 million as the profit to

be made by BHHI, as described in the Appellants' PSRs, which is the

major item in the $3.1 million benefits.

The Golden Oaks project's tax credit application is the best

indicator in the record as to what the expected costs and profits

were. Mitchell specifically noted in the tax credit application

that BHHI's expected profit was $403,289.00, which we conclude is

the best available evidence of what BHHI's expected profit was.

Second, we agree with the Appellants' argument that the

benefit received should not have included the $216,000.00 that BHHI

earned from the land sale to One Golden Oaks, Ltd. This sale had

nothing to do with any bribe concerning Griffin's vote for the

Golden Oaks project's tax credit application. Mitchell hired

69 Roberts to obtain land for the project, which he did. As a

sophisticated businessman, Mitchell knew or should have known the

potential costs of purchasing land in the location intended for the

project. Roberts' act of making a profit off of his own business

partner may be unethical and possibly actionable in a civil

lawsuit; but it was not a crime and we do not believe it can be

included within the scope of the bribe in this case.

Third, we do not believe that the benefit received should have

included Roberts' salary amounting to $61,5226 or his anticipated

$400,000 expected bonus. Both the salary and bonus were negotiated

with Mitchell before any bribery scheme came into being. And,

Roberts would have received these amounts regardless of any bribes

had the project been completed. Again, these amounts were

negotiated with Mitchell, a sophisticated businessman, who clearly

viewed the salary and bonus as part of the cost of doing business.

These amounts cannot be included in the scope of the bribery

scheme.

Fourth, we conclude that the $120,000 expected profit from the

Shadow Wood project should not have been considered as part of the

benefit received. The record includes very little testimony

concerning this potential project. Regardless, the record clearly

indicates that Griffin never voted on this project, nor was there

6 The Appellants' PSRs indicated that Roberts received $61,529.94 in salary from Mitchell. During the Appellants' sentencing hearings, however, the district court stated that the amount of Roberts' salary was $61,522.

70 any evidence that she intended to so. Furthermore, the indictment

does not even include a charge that refers to this project or a

bribe for Griffin's vote. Therefore, the $120,000 should not have

been included in the calculations.

We conclude that the expected benefit to the Appellants should

have been the $403,289.00, which is stated in the tax credit

application; and it was clear error for the district court to

include the other amounts discussed above. As a result, the

Appellants' sentences must be recalculated to account for this

change.

Similarly, we conclude that the district court erred in

applying a two level increase as a result of concluding that there

were two bribes in this case. Our reading of the indictment is

that there was only one bribe charged--the bribe for Griffin's vote

on the Golden Oaks project. As noted above, though there was some

testimony concerning other intended projects such as Shadow Wood,

they had nothing to do with the bribe charged in this case.

Therefore, this two level increase should not have been applied.

Lastly, we question the district court's determination that

Mitchell is owed $783,455.00 in restitution, which was based on the

amount of restitution recommended in the Appellants' PSRs. There

are two puzzling aspects of this determination in the PSRs. First,

the PSRs suggest that Mitchell is qualified to receive restitution

under 18 U.S.C. § 3663(a) because he is a "proximate victim," who

suffered financial harm resulting from the Appellants' criminal

71 conduct. Secondly, the PSRs indicate the amount of restitution

owed to Mitchell by adding the $61,529.947 in salary that he paid

to Roberts; the $328,133.87 for the land purchased for the Golden

Oaks project; credit card charges totaling $2,570.22; and

$391,221.05 for development costs including appliances, application

fees and lumber.

We are not convinced that the amount of restitution suggested

by the PSRs and ordered by the district court is justified. We

cannot speak to the credit card charges incurred by Mitchell

because the record does not indicate what they were for and when

they were incurred. However, as we noted above, Roberts' salary

and the land purchase occurred before the fruition of the bribery

scheme and were part of what Mitchell clearly viewed as acceptable

costs of putting the project together. Therefore, these amounts

should not be included in any restitution figure.

Further, the development costs noted in the PSRs also should

not be included for restitution. These costs had nothing to do

with the bribery scheme, and would have been incurred had there

never been a bribery scheme. Again, Mitchell agreed to these costs

as part of doing business.

We note that this Court has expressly held that a victim who

is "directly and proximately harmed" in the context of 18 U.S.C. §

3663A may be entitled to restitution. See United States v.

7 See supra note 5.

72 Mancillas, 172 F.3d 341, 343 (5th Cir. 1999) (citing United States

v. Hughey, 147 F.3d 423, 437 (5th Cir. 1998)). However, we also

have restricted "the award of restitution to the limits of the

offense." Id. Our reading of the record indicates that any losses

incurred by Mitchell resulted from the Golden Oaks project

collapsing because of BHHI's or LCCM's inability to obtain interim

financing and performance bonds. This collapse had nothing to do

with the bribery scheme for which the Appellants were charged.

Rather, Mitchell was a sophisticated businessman who should have

been able to evaluate whether a construction company was capable of

performing a particular project.

The record does not indicate that there was a separate hearing

detailing whether Mitchell qualifies for restitution as a

“proximate victim” and what amount he should receive if he does

qualify. Therefore, on remand, the district court should conduct

a hearing to determine Mitchell's status as a "direct and

proximate" victim, and the amount of restitution that is

"attributable to the specific conduct supporting the offense of

conviction." Hughey, 147 F.3d at 437

III. CONCLUSION

We REVERSE the Appellants' convictions on counts 6 and 7 for

mail fraud. We AFFIRM the Appellants' convictions on the other

counts for which they were indicted. We vacate the sentence of

73 each Appellant and REMAND this case for resentencing in light of

our opinion. The district court also should conduct a hearing for

the purpose of determining whether Mitchell qualifies as “a direct

and proximate victim” and for the purpose of determining the

quantum of restitution, if any, to which he may be entitled.

AFFIRMED IN PART, REVERSED IN PART and REMANDED.