Telemarketing Fraud - a TRUE life story - PART II

Telemarketing Fraud - PART II

In this case, however, we are dealing with the District Court's ruling on Hoffecker's motion to dismiss the indictment on limitations grounds, not an evidentiary ruling.   The District Court made this ruling before the first trial started, and the ruling did not “turn upon the evidence as developed in the particular trial.”  Akers, 702 F.2d at 1148.

Other courts have distinguished Akers on this basis.   The Court of Appeals for the District of Columbia Circuit itself later rejected the argument that Akers stands for the proposition that after a mistrial a defendant must re-raise every issue to preserve those issues for appeal.   See United States v. Sanders, 485 F.3d 654, 657 (D.C.Cir.2007).   In Sanders, prior to the trial the district court declined to dismiss the case for violations of the Speedy Trial Act. Id. at 656.   After the jury was unable to reach a verdict, the district court declared a mistrial.  Id. at 655-56.   The defendants did not advance the Speedy Trial Act contention before the second trial, and the jury found them guilty.  Id. at 656-57.   On appeal, the Government contended that the defendants waived their rights under the Speedy Trial Act by failing to renew the Speedy Trial Act objection at the second trial.  Id. at 657.   The court found that the defendants had not waived the issue:

Akers does not support a requirement to re-litigate all pretrial issues before a second trial.   Although the partial mistrial and partial grant of a new trial nullified the original trial, those rulings did not nullify all proceedings.   For example, the indictment underlying the speedy trial issue was not compromised by the first jury's failure to reach a unanimous verdict on all counts․ In any event, the law-of-the-case doctrine underlying Akers does not support the government's position.   In Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 816, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988), the Supreme Court summarized the doctrine as providing that ‘when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages [in] the same case.’   For mid-trial evidentiary rulings, a new trial will result in different factual and evidentiary circumstances occasioning a new exercise of the district court's discretion.   However, an alleged violation of the Speedy Trial Act will not change between trials and is constrained by the principle that ‘the same issue presented a second time in the same case in the same court should lead to the same result.’  LaShawn A. v. Barry, 87 F.3d 1389, 1393 (D.C.Cir.1996) (en banc).   Thus, requiring a defendant to re-raise the issue upon a retrial would be an exercise in wasteful formality.

We agree with the reasoning in Sanders and find that it applies to this case.   As with the alleged violation of the Speedy Trial Act in Sanders, the statute of limitations issues that Hoffecker raised in his motion before the District Court in this case did not change between the two trials.   Thus, requiring Hoffecker to re-raise those issues before the retrial would have been “an exercise in wasteful formality.”  Id.

The Government also contends that United States v. Palmer, 122 F.3d 215 (5th Cir.1997), supports its argument.   In Palmer, the district court originally denied a defendant's motion for severance before the first of his two trials.  Id. at 220.   After that trial ended in a mistrial, the defendant did not raise the severance issue again until after her retrial began, which was too late under Federal Rule of Criminal Procedure 12(b)(5).  Id. On appeal, the Government argued that the defendant had waived her severance claim because “the mistrial invalidated all motions made by [the defendant] at her first trial, requiring her to reassert them at the second in a timely manner.”  Id. The Government also argued that the defendant was “on notice that her earlier-filed motions would not be carried to the second trial” because of a colloquy before the retrial between her counsel and the trial court.  Id. The defendant argued that she had not waived her claim because under the law-of-the-case doctrine, “ ‘when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.’ ” Id. (quoting Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 1391, 75 L.Ed.2d 318 (1983)).

The Court of Appeals for the Fifth Circuit agreed with the Government, reasoning:

The law-of-the-case doctrine does not ․ set a trial court's prior rulings in stone, especially if revisiting those rulings will prevent error.   For example, we have held that in civil cases a district court is not precluded by the law-of-the-case doctrine from reconsidering previous rulings on interlocutory orders such as summary judgment motions, as those rulings are not immutable and lack res judicata effect.   Moreover, we have noted that district courts hearing criminal cases may revisit pretrial issues, such as suppression motions, upon which they have previously ruled.   Even considering the law-of-the-case doctrine, we agree with the government and find waiver under these circumstances.   A retrial following a mistrial is both in purpose and effect a new trial.   Accordingly, objections made at the aborted trial have no bearing on the retrial, as the two are entirely separate affairs.   Although formal, written motions such as severance motions may have more of a lasting effect than simple objections, our previous analysis of the law-of-the-case doctrine indicates that district courts are not always bound by their prior rulings on pretrial motions.   Here, the trial court expressed in unambiguous terms that it would not automatically revive any of [the defendant's] pretrial motions.   Given that the trial court had the authority to reconsider these motions, the court's statement placed [the defendant] under the duty to reurge them.

Id. at 220-21 (citations omitted).   The court concluded by stating:

the trial judge told [the defendant] it was not safe to assume that the court would recognize all of its previous rulings.   Thus, [the defendant] was on notice that the trial court was not going to apply the law-of-the-case doctrine to preserve her previous objections.   Accordingly, [the defendant] had an obligation to reassert her severance motion in a timely fashion if she wished to preserve error.   Failing to do so, [the defendant] waived her severance claim.

Id. at 221.   The reasoning of the court in Palmer does not apply to this case, however, because the Government does not point to any colloquy before the retrial between Hoffecker and the District Court that put Hoffecker “on notice” that he must renew all motions that he had made before the first trial.   Thus, to the best of our knowledge, unlike the court in Palmer, the District Court here never “expressed in unambiguous terms that it would not automatically revive any of [the defendant's] pretrial motions.”  Id.

Thus, we conclude Hoffecker did not waive his claim that we should dismiss the conspiracy charged in Count One on his theory that it was untimely and his further contention that the District Court should have instructed the jury on the limitations defense or his claim that we should dismiss the mail frauds charged in Counts Two and Three on the theory that the Government's suspension application was improper because the proceeding before the grand jury judge was ex parte.   Accordingly, we will consider these claims on their merits.

First, we will consider the issue of whether we should dismiss the conspiracy charge in Count One because it was untimely and the District Court did not instruct the jury on the limitations defense.   Hoffecker claims that if the jury had been so instructed, it would have found that the last overt act charged in the conspiracy-a March 4, 1998 mailing by Amitex-was not “in furtherance” of the conspiracy, and thus the conspiracy offense was not committed within the five-year statute of limitations.

As we stated above, an indictment for conspiracy to commit mail and wire fraud must be found within five years of the last overt act of the conspiracy.   Jake, 281 F.3d at 129 n. 6. Here, the Government alleged that the last overt act was a mailing by Amitex on March 4, 1998, to one of its victims, and the indictment was found on February 14, 2003, 18 days before the statute of limitations would have expired if its running was measured from March 4, 1998, without taking into account the 23 8-day suspension of the running of the statute of limitations.   The mailing, which also formed the basis for the mail fraud charged in Count Four, was a letter and a check for $4,039 to Harriet Davis, who had invested $42,903 in the scheme, purporting to send her the balance left in her account.   The Government alleged that this mailing was the final overt act of the conspiracy charged in Count One because the mailing was a “lulling communication,” i.e., it was intended to lull Davis into believing she merely was an unlucky investor so that she would not complain to regulatory authorities or report a crime.

Before the first trial, Hoffecker filed a motion to dismiss the indictment.   During oral argument, he argued that the District Court, not the jury, should determine whether the March 4, 1998 mailing was a lulling communication.   Although “[t]he determination of when the crime has been committed for statute of limitation purposes ․ is ordinarily a question of fact for the jury,” Oliva, 46 F.3d at 324-25, Hoffecker explicitly asked the District Court to decide the issue because, according to him, “under no interpretation of the facts could this be a lulling letter,” app. vol. 2 at 13.   The District Court found that the mailing was a lulling communication in furtherance of the conspiracy and that therefore the conspiracy count was timely.

At the charge conference during the second trial, Hoffecker reversed his position and contended that the nature of the letter was a factual matter for the jury to decide.   The District Court found that it had ruled definitively on the issue prior to the first trial and stood by its initial ruling.   Accordingly, it denied Hoffecker's request for a jury instruction on the limitations defense for Count One.

We review a district court's decisions regarding jury instructions for abuse of discretion.  Leahy, 445 F.3d at 642.   We will order a new trial on account of a district court's refusal to give a proposed jury instruction “only when the requested instruction was correct, not substantially covered by the instructions given, and was so consequential that the refusal to give the instruction was prejudicial to the defendant.”  Id. at 651 (quoting United States v. Phillips, 959 F.2d 1187, 1191 (3d Cir.1992)).   Although it is “well settled that a criminal defendant is entitled to an instruction on the applicable statute of limitations,” Jake, 281 F.3d at 129, we conclude that the District Court's refusal to give the proposed jury instruction was not reversible error because it was not “so consequential that the refusal to give the instruction was prejudicial to the defense,” Leahy, 445 F.3d at 651.

The court did not prejudice Hoffecker by its refusal to give the instruction because it properly instructed the jury on the elements of the mail fraud charged in Count Four, which was based on the same mailing alleged to be the last overt act of the conspiracy charged in Count One. The court instructed the jury that it could return a verdict of guilty on Count Four only if it found beyond a reasonable doubt that the March 4, 1998 mailing was “intended to further or assist in carrying out or continuing the scheme to defraud.”   App. vol. 49 at 10;  see United States v. Copple, 24 F.3d 535, 544 (3d Cir.1994) (“The essential elements of the crime of mail fraud are 1) a scheme or artifice to defraud;  2) participation by the defendant with specific intent to defraud;  and 3) use of the mail in furtherance of the scheme.”).

Thus, in convicting Hoffecker of the mail fraud charged in Count Four, the jury necessarily found beyond a reasonable doubt that the mailing was “in furtherance” of the conspiracy charged in Count One. Inasmuch as the jury found the mailing was in furtherance of the conspiracy and the indictment was found within five years of that mailing, the jury necessarily effectively found beyond a reasonable doubt that Count Four and thus, by extension, Count One were both timely.   In these circumstances, the District Court's refusal to give the limitations instruction with regard to Count One did not prejudice Hoffecker.

Next, we consider the issue of whether we should dismiss Counts Two and Three on the basis of Hoffecker's contention that the Government's section 3292 suspension application was improper because the proceeding before the grand jury judge who granted the suspension order was ex parte.   The Government urges us to apply Federal Rule of Criminal Procedure 52(b)'s “plain error” standard of review to this issue because “[e]ven if Hoffecker's failure to raise his limitations defense before his second trial did not waive the claim, it forfeited it.”   Appellee's Br. at 51;  see United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508 (1993) (“Waiver is different from forfeiture.   Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right․ Mere forfeiture, as opposed to waiver, does not extinguish an ‘error’ under Rule 52(b).”) (citations and quotation marks omitted).

As we found above, Hoffecker has preserved this issue for this appeal.   Accordingly, in considering the issue we will apply a de novo standard of review to the District Court's denial of the motion to dismiss on statute of limitations grounds and we will review the court's factual findings underlying the legal ruling for clear error. See United States v. Grenier, 513 F.3d 632, 636 (6th Cir.2008);  United States v. Hagege, 437 F.3d 943, 953-54 (9th Cir.2006);  Laurino v. Tate, 220 F.3d 1213, 1216 (10th Cir.2000).

We find that there was nothing improper about the ex parte nature of the proceeding before the grand jury judge.   As the Court of Appeals for the Ninth Circuit explained, “[n]owhere in [section 3292] does it state that the party whose statute of limitation is being suspended is entitled to notice or a hearing.”  DeGeorge v. United States Dist. Court for Cent. Dist. of Cal., 219 F.3d 930, 937 (9th Cir.2000).   Significantly, to interpret section 3292 to require notice or a hearing for a defendant “would be to ignore the traditionally non-adversarial and secret nature of grand jury investigations.”  Id.;  see also United States v. Wilson, 249 F.3d 366, 371 (5th Cir.2001) (“An application to toll the statute of limitations under § 3292 is a preindictment, ex parte proceeding.”).   We also point out that it might be critical that the existence of an ongoing grand jury investigation be confidential so that a potential target of an indictment will not be aware of it.   A requirement that a section 3292 application be made on notice would undermine the confidentiality of a grand jury's inquiry and give a potential defendant the opportunity to flee or destroy evidence.   Accordingly, we will not reverse the convictions on Counts Two and Three on this basis.

3. Alleged Prosecutorial Misconduct

Hoffecker claims that cumulative prosecutorial misconduct deprived him of a fair trial.  “A new trial is required on this basis only when ‘the [ ] errors, when combined, so infected the jury's deliberations that they had a substantial influence on the outcome of the trial.’ ” Copple, 24 F.3d at 547 n. 17 (alteration in original) (quoting United States v. Thornton, 1 F.3d 149, 156 (3d Cir.1993)).   Hoffecker points to three separate acts of alleged misconduct.

Hoffecker first claims that the Government “hand-picked the transcripts it believed were most helpful to its case, and provided only those transcripts to the jury, notwithstanding that numerous transcripts supporting the defense position had been introduced into evidence.”   Appellant's Br. at 38.   Hoffecker contends that after the jury had deliberated for two days, defense counsel discovered that numerous admitted transcripts and tape recordings had not been included among the exhibits taken to the jury.

This assertion is incorrect.   On the first day of jury deliberations, defense counsel asked the court to provide full tape recordings and transcripts that had been admitted into evidence for the jury, not merely excerpts.   The District Court granted the request and asked the Government to remove the excerpts from the jury room, which the Government did in the presence of defense counsel.   At that point, the Government attorney began to remove three tapes, in the presence of defense counsel, explaining that the tapes contained recordings of conversations involving people who were not witnesses in the case.   Defense counsel objected and the Government did not remove the tapes.

On the second day of deliberations, defense counsel filed a brief contending that an additional 47 tapes and transcripts never had been sent to the jury room.   The items involved conversations to which neither the Government nor the defense had referred during trial.   Many were inconsequential such as Field's telephone calls to Hoffecker in which Field simply left a message that he had called.   According to the Government, these tapes and transcripts had not been sent to the jury room due to a misunderstanding of the parties' stipulation to enter certain tapes and transcripts into evidence.

As the District Court made clear, the Government never “unilaterally removed” any tapes or transcripts from the jury room. App. vol. 53 at 93-94.   The court stated that it had “a problem” with defense counsel accusing “the government of some kind of selective removal that was secretive, sly and otherwise inappropriate,” given the “care and open process that's been utilized in identifying” the items to be sent to the jury room.  Id. at 10.   The court explained that “[t]he attorneys at all times were free to work with my staff, work with each other and ․ satisfy themselves that what was in evidence was going to [the jury room.]”  Id. at 9. The court pointed out that defense counsel was not aware of the content of the tapes that it complained the jury did not have.   Instead, it appeared to the court that defense counsel was attempting to “dump,” id. at 26, “relatively meaningless” material on the jury, id. at 98.

During counsel's argument on the issue, late in the afternoon of the second day of deliberations, the jury sent the court a note requesting to hear Tape 38 in its entirety.   Because this tape already was in the jury room, the court and the courtroom deputy interpreted the note to mean that the jury was not aware that the tapes and transcripts were already in the jury room.

On the morning of the third day of deliberations, the District Court ruled in favor of the defense and instructed defense counsel and the Government to bring the 47 additional tapes and transcripts to the jury room.   The court explained:

The jury clearly has not begun even approaching the transcripts and the tapes․ So we have right now an opportunity to simply put all of the tapes and transcripts [in the jury room] while the jury is sitting [in the courtroom] for 90 minutes and listening to [Tape 38] and reading the transcripts that they requested.

App. vol. 54 at 9. After depositing the tapes and transcripts in the jury room, Hoffecker's attorney reported to the court:

The government and defense counsel resolved the matter of all the tapes and transcripts being presented to the jury․ [I]ssues raised by the Defendants' Trial Briefs ․ have been fully resolved with the delivery of the tapes and transcripts discussed therein, which would be the complete tapes and transcripts to the jury for use and deliberation.

Id. at 12, 15.

Accordingly, we see no basis for Hoffecker's claim that there was prosecutorial misconduct.   Moreover, given the full context and resolution of this issue by the District Court, which ensured that the jury had access to all the tapes and transcripts, there could not have been an error, particularly an error that would have affected the outcome of the proceedings.   Hoffecker complains that the jury was “hours away from the verdict,” Appellant's Br. at 39, but the jury was not required to revisit these unimportant tapes.   Indeed, it does not appear that the jury revisited any of the tapes and transcripts sent to the jury room other than Tape 38.   Significantly, Hoffecker never has explained what evidence the tapes and transcripts that were provided to the jury on the third day of deliberations contained, much less explain why this evidence “support[ed] the defense position․” Id. at 38.   In these circumstances, we conclude that there was no error.

Hoffecker next contends that Field gave impermissible opinion evidence.   On direct examination, Field testified that in his and Hoffecker's meeting on June 12, 1996, Hoffecker admitted to Field that Amitex was promoting an investment in “physical” metal but did not actually purchase metal.   App. vol. 28 at 102.   Field testified that as a result he concluded Amitex was a “scam.”  Id. at 102.   Hoffecker objected to this testimony but the District Court ruled that it was admissible lay opinion testimony.

We review a district court's decision to admit lay opinion testimony for abuse of discretion.  United States v. Leo, 941 F.2d 181, 192-93 (3d Cir.1991).   Under the Federal Rules of Evidence:

If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (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 [which governs expert testimony].

Fed.R.Evid. 701.

Two of our cases shed light on whether the District Court abused its discretion when it permitted Field's lay opinion testimony.   First, in United States v. De Peri we ruled that the trial court did not abuse its discretion when it permitted the Government's witness to provide his lay opinion regarding his understanding of the meaning of tape recorded conversations between himself and one of the defendants.  778 F.2d 963, 977-78 (3d Cir.1985).   We found that the witness's opinions were helpful to the jury because the “language on the tapes is sharp and abbreviated, composed with unfinished sentences and punctuated with ambiguous references to events that are clear only to [the defendant] and his audience.   To the uninitiated listener, [the defendant] speaks as if he were using code.”  Id. at 977.   We further noted that “the trial court vigorously policed the government's examination of [the witness] to ensure that he was not asked to interpret relatively clear statements.”  Id. at 978.

Second, in United States v. Dicker we found that the district court abused its discretion by permitting a Government agent to testify regarding his understanding of his recorded conversations with the defendant.  853 F.2d 1103, 1110 (3d Cir.1988).   In Dicker we stated that “interpretation of clear conversations is not helpful to the jury, and thus is not admissible under either [Rule 701 or 702].”  Id. at 1108.   We found that the Government witness “simply ascribed his own, illicit meaning to straightforward, potentially legitimate statements.   This admission was surely prejudicial, and was not helpful to a clear understanding of the testimony.   The recorded conversations, unlike those at issue in De Peri, were perfectly clear without [the witness's] ‘interpretations.’ ” Id. at 1110.

Here the District Court found that the Government properly laid a foundation under Rule 701 for Field's statement that Amitex was a “scam.”   First, Field based the statement on his “rational perceptions,” Hoffecker's statements, and his previous interactions with Hoffecker.   Supp. app. at 52.   The court found that Field's opinion was not based on specialized knowledge because he had “first-hand knowledge and observation.”   App. vol. 30 at 21.   Second, the statement was helpful to the jury because Field's perception that the Amitex program was a “scam” explained why he was a Government cooperator.   The court rejected defense counsel's suggestion that Field and Hoffecker's recorded conversations were “clear” and were “matters that this jury can understand.”   Id. at 19.   The court found instead that it was “fair to view the jury as uninitiated listeners,” id., and that Field's testimony was helpful to the jurors because Field interpreted his conversations with Hoffecker, and the jury otherwise could not have understood those conversations without Field's testimony.   The court found that because the “deliberately” “guarded responses” in the conversations which were “not clear to the uninitiated observer” were akin to “coded words,” Field's explanation of the language used in the conversations was helpful to the jury.  Id. at 25.   The court also noted that in Dicker the Government agent improperly was mischaracterizing the conversation while in this case Field was not mischaracterizing his conversations with Hoffecker.   Field also stated his belief that Amitex was a “scam” only one time, as opposed to the agent in Dicker who testified repeatedly in an objectionable manner.

The District Court also found that the situation here was unlike that in United States v. Scop, 846 F.2d 135 (2d Cir.), on rehearing, 856 F.2d 5 (2d Cir.1988), a case Hoffecker cited to support his argument.   In Scop, the court of appeals found that Federal Rule of Evidence 704 was violated by the admission of testimony of a Government expert witness who was an SEC investigator and expert in securities trading practices to the extent that his legal conclusion was that the defendants were “active” and “material participants” in a “fraudulent scheme in furtherance of [the] manipulation [of stock].”  Id. at 138.   The expert “drew directly upon the language of the statute” and acknowledged that his positive assessment of the testimony of other Government witnesses was a basis for his opinion.  Id. at 140-42.

This case, however, differs from Scop because the District Court found that Field was not an expert witness, did not couch his view that Amitex was a “scam” on the language of the mail fraud statute, and did not base his opinion on the credibility or testimony of others.   The court found that calling Amitex a “scam” was different from offering a legal opinion and, in any event, under Rule 704(a) a lay opinion is not “objectionable because it embraces an ultimate issue to be decided by the trier of facts.”   Supp. app. at 53 (quoting Fed.R.Evid. 704(a)).   Moreover, the court found that Field was “a witness to the scam at the time of the scam, not someone performing 20-20 hindsight analysis.”   App. vol. 30 at 22.   Field's testimony involved what he thought about Amitex in 1996, not at the time of trial.   Field “did not ․ attempt to be a thirteenth juror,” because his testimony was not based upon what he had heard at the trial.  Id. at 22.   In these circumstances, the District Court did not abuse its discretion under Rule 701 in admitting Field's lay opinion testimony.

Furthermore, even if the court erred in allowing this testimony, its error would not have “so infected the jury's deliberations” that it, combined with other alleged errors, “had a substantial influence on the outcome of the trial.”  Copple, 24 F.3d at 547 n. 17.   Field's one-time reference to Amitex as a “scam” on direct examination was brief, and the Government did not refer to Field's testimony on this point again during the trial.   In addition, his brief comment that he believed Amitex was a “scam” was hardly likely to shock the jury given Hoffecker's own tape-recorded admission that “[i]n America, Amitex cannot operate.   It would be a scam.”   Supp. app. at 40.   Indeed, it is surreal that Hoffecker complains about a witness using Hoffecker's own term to describe his scheme.

Finally, Hoffecker argues that the Government improperly bolstered Field's credibility by asking him on redirect how many convictions resulted from his cooperation.   Hoffecker's cross-examination of Field elicited the following:

Defense Counsel:  ․ [Y]ou were an informant in a number of cases, were you not?

Field:  I think there were several, yes sir.

Defense Counsel:  Well, let's quantify that.   How many other cases were you involved in where you were ․ acting in a capacity as an informant for the government?

Field:  Two directly.

Defense Counsel:  Okay. And can you tell the jury how many people, either indicted or unindicted, that you spoke to in your capacity as an undercover informant?

Field:  Probably two dozen maybe.

App. vol. 32 at 85.   Defense counsel also attacked Field's motive to testify by questioning the benefits that resulted from Field's cooperation and suggesting that his conviction and 24-month sentence were far less severe than what he should have faced given the potential charges and his 35-year maximum statutory sentencing exposure.

On redirect, the Government sought to clarify the misleading inference that Field received a substantial reduction at sentencing based only on his work in this case, when Field, in fact, cooperated on many unrelated investigations:

Government:  Both defense lawyers asked you questions about your cooperation with law enforcement;  do you recall those questions, sir?

Field:  Yes, sir.

Government:  As part of your cooperation with law enforcement, did you provide information on a number of people separate and apart from Mr. Hoffecker and Mr. Myers and [the] Amitex program?

Field:  Yes, sir.

Government:  To your knowledge, Mr. Field, how many individuals were convicted or investigated as a result of your cooperation?

Field:  There were over [a] dozen convicted.   I don't know how many more were investigated, sir.

App. vol. 34 at 67.

Hoffecker then objected and moved for a mistrial, citing United States v. Sorondo, 845 F.2d 945 (11th Cir.1988), as support for his claim that the prosecutor improperly bolstered Field's credibility.   In Sorondo the defendant, who was arrested after supplying drugs to a Drug Enforcement Administration (“DEA”) informant, claimed that the informant entrapped him.   Id. at 947. The Government called as a rebuttal witness a DEA agent who testified regarding the number of cases in which the informant had participated and the amount of money and property that had been forfeited to the Government due to his assistance.  Id. at 948.   The Government also elicited testimony that all of the 40 prosecutions in which the informant had participated had resulted in convictions.  Id. On appeal, the court of appeals found that the admission of this testimony was plain error because it “created a great danger that the jury would simply credit [the informant's] testimony and find in favor of the government because many other juries had done so in the past.”  Id. at 949.

In this case, the District Court considered Sorondo and found that it arose in a different context.   There, a Government agent was called on rebuttal to bolster the credibility of a Government witness.   Here, by contrast, the testimony of the cooperator on re-direct “went to the usefulness of the cooperation, the substantial assistance ․ as a basis for ․ sentencing decisions․” App. vol. 37 at 20.   Defense counsel's cross-examination of Field risked leaving the jury with the misimpression that Field received an extraordinary reduction in his sentence as a result of his help only in one case, and Field's re-direct simply corrected that misimpression.   The District Court found that the “context dilutes the harmfulness of the testimony.”   Id.

Nevertheless, the Government requested the District Court to instruct the jury to disregard any testimony by Field involving convictions of other individuals which were not related to this case. The court noted that because the matter was brought to its attention in a timely fashion-unlike in Sorondo, where no timely objection was made-it could fashion a curative instruction.   The court invited counsel to draft an instruction and carefully “tracked the concerns of the defense that the jury instruction not appear to highlight the testimony that was objected to.”  Id. at 24.   The court then instructed the jury in pertinent part:

During its redirect examination of Mr. Field the government asked Mr. Field how many people were convicted as a result of his cooperation.   At the time, this was objected to.   I am now sustaining the defense objection.   Whether or not Mr. Field's cooperation led to any prosecutions or convictions is irrelevant to your consideration of the charges in this case.   I instruct you that you must disregard this testimony.   And it must not be considered by you in any way in your deliberations.

Id. at 30.

We doubt that this curative instruction was needed because Hoffecker opened up this whole line of inquiry himself but, assuming that it was required, the instruction certainly was sufficient to cure any error in the Government's eliciting the disputed testimony from Field.   In light of this instruction, combined with the ample evidence demonstrating Hoffecker's guilt, we find that the testimony did not have “a substantial influence on the outcome of the trial.”  Copple, 24 F.3d at 547 n. 17.   Accordingly, the three alleged errors Hoffecker raises do not alone or in combination require reversal of his convictions.

4. Jury Instructions

Hoffecker next argues that he was denied a fair trial because the District Court rejected several of his requested jury instructions and overruled his objections to two other instructions.  “We exercise plenary review to determine whether jury instructions misstated the applicable law, but in the absence of a misstatement we review for abuse of discretion.”   Cooper Distributing Co. v. Amana Refrigeration, Inc., 180 F.3d 542, 549 (3d Cir.1999).

First, the District Court rejected Hoffecker's requested instruction on “single or multiple conspiracies” which stated in pertinent part that “[p]roof of separate or independent conspiracies is not sufficient” for the Government to sustain its burden of proof for the conspiracy charge in Count One. App. vol. 59 at 148.   The District Court rejected this instruction because it concluded it was inapplicable to the evidence presented in the case and would mislead and confuse the jurors.   Hoffecker contends this decision was incorrect because the Government's proof of “multiple business operations, the divisions between Global and Amitex, the investments in other companies, and the distinctions between the operations of the various sales rooms, among others, all combine to provide factual support for a finding of multiple conspiracies.”   Appellant's Rep. Br. at 38.

We recognize that “[i]f a defendant asks for a charge on multiple conspiracies and there is sufficient evidence to support such an instruction, the failure to grant the request can be reversible error,” United States v. Curran, 20 F.3d 560, 572 (3d Cir.1994), but that principle is inapplicable here because the evidence did not support the instruction.   Despite the complexity of the scheme in this case, the evidence could not support a conclusion that there had been a conspiracy other than the one charged.   All of the business entities and divisions in labor existed to advance the single conspiracy to dupe victims into investing in Amitex's LPCIP.   In these circumstances, inasmuch as there was not an evidentiary basis for Hoffecker's requested instruction if it had been given it only would have confused the jury.   Moreover, the District Court gave a clear instruction that the jury only could convict Hoffecker if it found that he knowingly and willingly joined the single charged conspiracy.   We conclude that the District Court did not abuse its discretion when it rejected Hoffecker's requested jury instruction on “single or multiple conspiracies.”

The District Court also rejected Hoffecker's requested instruction on “conjecture and speculation,” which stated:

Of course, a defendant is never to be convicted on suspicion or conjecture.   If, for example, you view the evidence in the case as reasonably permitting either of two conclusions-one that a defendant is guilty as charged, the other that the defendant is not guilty-you will find the defendant not guilty.   It is not sufficient for the Government to establish a probability, though a strong one, that a fact charged is more likely to be true than not true.   That is not enough to meet the burden of proof beyond reasonable doubt.   On the other hand, there are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt.

App. vol. 59 at 150.   The court rejected the instruction because it duplicated the reasonable doubt instruction that it already had given to the jury explaining:

The reasonable doubt instruction that I read to the jury is an instruction that has been discussed and approved of in Third Circuit cases ․ and I believe that it is a fair depiction and expression of the law of reasonable doubt.   And the language [in Hoffecker's requested instruction] does not advance the ball ․ [and] might becloud what I have told the jurors.

App. vol. 48 at 102.   The District Court was correct:  we had approved the District Court's reasonable doubt instruction.   See United States v. Hernandez, 176 F.3d 719, 728-35 (3d Cir.1999) (mirroring our model instruction, Third Circuit Model Criminal Jury Instructions § 3.06).   Thus, there was no need for the court to give Hoffecker's requested instruction.   Accordingly, the court in rejecting the “conjecture and speculation” instruction did not abuse its discretion.

The District Court also rejected Hoffecker's requested “theory of defense” instructions.   The first of these stated:

It is the defense in this case that the Defendants through its [sic] company Amitex employed the services of Peter Hug and Associates, Phoenix, and Perrigrine to hedge its customers' positions in the forward and futures markets.   It is further the defense that Amitex maintained as much as $2 million in its bank accounts to cover the liquidation value of its customers' investment. I instruct you that if you find that the Defendants in fact did protect their customers['] investments through hedging, you may consider this as evidence of the Defendants['] lack of criminal intent.

App. vol. 59 at 155.   The second instruction stated:

It is the defense in this case that the Defendants are not responsible for any misrepresentations made by brokers working at sales offices marketing Amitex' [s] program.   I hereby instruct you that if you find that material misrepresentations were made by brokers, you cannot consider there [sic] misrepresentations as evidence of the Defendants['] criminal intent, unless you find that the misrepresentations were made with the knowledge and consent of the individual Defendant.

Id. at 156.   The third instruction stated:

It is the defense in this case that the Defendants were not required to take physical possession of any commodity offered through the Amitex program until such time as the customer paid for the commodity in full.   I hereby instruct you that if you find that the Amitex documents provided to the customers were consistent with this belief, you may consider this as evidence of the Defendants['] lack of criminal intent.

Id. at 157.   The fourth instruction stated:

It is the defense in this case that the Amitex Program provided for physical delivery of a commodity upon the payment for the commodity in full or upon the repaying of the 80% loan value extended by Amitex.   It is further the defense that the loan Amitex made to its customers was a genuine obligation Amitex entered into binding Amitex to hedge either in cash or in the future or forward markets the value of the commodity equal to the customers 80%.   I hereby instruct you that if you find that Amitex had the ability to deliver commodities to its customers and hedged its obligations so as to guarantee delivery, you may consider this evidence of the Defendants['] lack of criminal intent.

Id. at 158.   The fifth instruction stated:

It is the defense in this case that the Defendants disclosed all commissions, fees, and charges to its customers and that the Defendants through Amitex informed its customers that speculating in commodities had a high degree of risk and that the customer could lose their [sic] entire investment.   I hereby instruct you that if you find that these expenses were disclosed and that the customers were informed of the risks of speculating in commodities, you may consider this in determining the reasonableness of any customers['] testimony that they were misled.   You may further consider this in determining the materiality of any statements by the Defendants alleged to have been false or misleading.

Id. at 159.   The sixth instruction stated:

It is the defense in this case that the Defendants reasonably believed that their program was not an off exchange future subject to regulation by the CFTC. As such, the defendants contend that they did not intentionally mislead their customers by claiming that Amitex was not a futures product.   I hereby instruct you that in determining the reasonableness of this claim you may consider the differences between the program marketed by Amitex and that offered on the futures exchanges.   To that end you may consider evidence presented at trial that the size of the contract offered on a futures exchange was larger than that offered by Amitex making delivery easier;  that futures contracts are of a limited duration, usually a matter of months, requiring the customer to sell out of their position or take delivery by a date certain;  and that in a futures contract, a customer could be forced out of the market owing additional money to the exchange.   I further instruct you that if you find that these differences are present you may consider this evidence in determining whether the Defendants acted with criminal intent.

Id. at 160.   The seventh instruction stated:

An honest mistake of fact is a complete defense to all charges in the indictment, because it is inconsistent with the existence of wrongful intent, which is an essential element of the charges.   Such an honest mistake negates the criminal intent of a defendant when the defendant's acts would be lawful if the facts were as the defendant supposed them to be.   A defendant whose actions are based on an honest belief that the defendant was acting lawfully is not chargeable with intentional criminal conduct-even if this belief was erroneous or mistaken.   The burden of proof is not on the defendant to prove the defendant's honest belief of a mistaken fact, since no defendant has any burden to prove anything.

Id. at 161.   The eighth instruction stated:

It is the position of the defendants that they never entered or intended to enter into any conspiracy to commit mail and wire fraud and that they never engaged in, or agreed to engage in, fraudulent activities.   Further, the defendants maintain they were honest businessmen whose interest was in providing legitimate speculative investment opportunities to customers.

Id. at 162.

“A defendant is entitled to a theory of defense instruction if (1) he proposes a correct statement of the law;  (2) his theory is supported by the evidence;  (3) the theory of defense is not part of the charge;  and (4) the failure to include an instruction of the defendant's theory would deny him a fair trial.”  United States v. Wren, 363 F.3d 654, 664 (7th Cir.2004), vacated on other grounds, Yarbor v. United States, 543 U.S. 1101, 125 S.Ct. 1021, 160 L.Ed.2d 1005 (2005).   As the Court of Appeals for the Fifth Circuit has pointed out, however, a defendant is not “entitled to a judicial narrative of his version of the facts, even though such a narrative is, in one sense of the phrase, a ‘theory of the defense.’ ” United States v. Barham, 595 F.2d 231, 244 (5th Cir.1979).   In Barham the court found that the district court properly rejected the defendant's proposed “theory of the defense” instruction because it was

essentially a recounting of the facts as seen through the rose-colored glasses of the defense-glasses that [the defendant] hoped the jurors would wear when they retired to the jury room․ As the Trial Judge commented, the requested instruction was more in the nature of a jury argument than a charge.

Id. at 244-45 (footnote omitted);  see also United States v. Paradies, 98 F.3d 1266, 1287 (11th Cir.1996) (“We find that the district court was correct in finding that the requested jury charge was partisan and that it aspired ‘to place the ․ defendants' desired factual findings into the mouth of the court.’ ”).

The District Court correctly refused to give Hoffecker's requested “theory of defense” instructions because they were argument.   When considering these proposed instructions, the court stated:

I think that they stray ․ into a commentary on the evidence and make[ ] the Court, as it were, stand alongside arguments to come regarding how the jurors view the evidence.   And to insert myself in that way, I think, would in somewise change my role as the neutral giver of the law and turn me into some what of ․ a commentator on argument and I'm not only reluctant but it's not my role to do that․

App. vol. 48 at 105.   The court was correct.   Moreover, many of Hoffecker's “theory of the defense” instructions, such as the “mistake of fact” instruction and the “lack of intent to enter a conspiracy” instruction, duplicated other instructions that the District Court gave on the subject of criminal intent, such as the charges on “knowingly and willfully” and the “good faith defense” to fraud.   In these circumstances, Hoffecker was not entitled to have the court charge the jury on his requested “theory of defense” instructions and the court did not abuse its discretion when it rejected the instructions.

Hoffecker also contends that the District Court erred by giving two other instructions to the jury.   First, the court gave an instruction that the negligence of a victim was not a defense to the charged crimes.   The language of this instruction paraphrased our statement of the law:  in United States v. Rennert, we stated that a “fraud victim's negligence or lack of diligence in uncovering the fraud is not a defense.”  374 F.3d 206, 213 (3d Cir.2004) (citing United States v. Coyle, 63 F.3d 1239, 1244 (3d Cir.1995)), vacated on other grounds, Miller v. United States, 544 U.S. 958, 125 S.Ct. 1744, 161 L.Ed.2d 598 (2005).   Accordingly, the court did not abuse its discretion when it chose to give this instruction to the jury.

The court also gave the following “absence of an attorney-client relationship” instruction, to which Hoffecker objects:

You have heard testimony that Jack Field was a practicing attorney.   In addition, you heard that Jack Field represented Charles “Chip” Hoffecker in the FTC v. Uni-Vest, Hoffecker, et al. matter that concluded in July 1991.   As [a] matter of law, I am instructing you that during the period charged in the Indictment, Jack Field was not Mr. Hoffecker's lawyer.   Furthermore, Jack Field was not Mr. Myers's lawyer, Global Investment's lawyer or Amitex's lawyer at any time.   As a result, for purposes of your deliberation, I am instructing you that Mr. Field did not have an attorney-client relationship with Mr. Hoffecker, Mr. Myers, Global or Amitex.

App. vol. 49 at 22-23.

Hoffecker argues this instruction prejudiced him because Field was an attorney who “provided advice and counsel” to him, and Field was a principal component of the Amitex operation. Appellant's Br. at 45.   Accordingly, he contends that “the jury should have been allowed to consider the impact of Field's role as a lawyer on his actions and intent.”  Id. Hoffecker therefore contends that this instruction “was reversible error based on the evidence.”   Appellant's Rep. Br. at 44.

The Government responds that the instruction “was proper given the facts of this case and defense counsel's attempts to mislead the jury.”   Appellee's Br. at 87.   The Government notes that “there was no evidence to support the theory that Field served as Hoffecker's counsel during the fraud, no legal advice was given by Field, and none was relied upon by Hoffecker.”  Id. The Government further contends that throughout the trial “defense counsel attempted to mislead and confuse the jury by suggesting that Hoffecker lacked the criminal intent to commit fraud because he relied on Field's legal advice to purportedly run a legitimate operation.”  Id. at 88.   The Government points out that even after the District Court gave the “absence of an attorney-client relationship” instruction to the jury, defense counsel argued at closing that Hoffecker lacked the criminal intent to commit fraud because he was following Field's legal advice, an argument prompting the court to repeat its instruction.

We conclude that the Government's view of the evidence is correct and that Hoffecker has no evidentiary support for his argument that the instruction was improper on the theory that Field acted as his attorney during the Amitex investigation or gave Hoffecker legal advice, or that he relied on Field's legal advice.   Therefore, we will not reverse his convictions on that basis.

Finally, in a letter submitted after oral argument, Hoffecker raises the issue of whether the District Court's “absence of an attorney-client relationship” instruction infringed his Sixth Amendment right to a jury trial by deciding an element of each of the charged offenses.   Appellant's Letter (dated April 1, 2008).   In his letter, Hoffecker contends:

[i]t is the jury's responsibility to assess Mr. Hoffecker's belief and the reasonableness thereof in evaluating whether he acted with the specific intent to defraud․ The defense was unconstitutionally deprived of the right to have the jury decide whether Mr. Hoffecker reasonably relied on the advice of counsel.   The district court's determination that no attorney-client relationship existed cannot supplant the constitutional mandate that the jury is to decide fact issues, especially questions of intent.

Id. at 4-5.

After reviewing the record, however, we find that Hoffecker did not raise this issue before the District Court or in his opening brief on appeal.   Indeed, there is very little discussion of this instruction in the record.   According to Hoffecker's letter:

The complete discussion and argument on the jury instructions took place during the charge conference, a proceeding the district court conducted off the record in the absence of the court reporter beginning on March 6, 2006․ Following that conference, the government submitted to the court and defense counsel its proposed written Charge No. 54 [regarding the absence of an attorney-client relationship] by email on March 7, 2006, the day before the court instructed the jury.

Id. at 1-2.   On March 8, 2006, the day after the Government submitted its proposed charge, the District Court gave instructions one through twenty-five to the jury before excusing the jury for the day.   The following exchange then occurred:

THE COURT:  Counsel, initially I have read jury instructions 1 through 25 to the jury.   Is there any objection to the charge as it was read thus far?

PROSECUTOR:  No, your Honor.

THE COURT:  Defense.

DEFENSE COUNSEL:  Your Honor, we agree that the charge as read reflects the charge that the Court advised you would read during the robing room conference.   Having said that, there were a number of items that we requested or objected to that the Court ruled on, and the appropriate time I can make a record of that.

THE COURT:  Well my suggestion is that we attend to those issues now less [sic] we lose track of them.   I have no problems dealing with motions such as we're going to be addressing later on.   But this is right on point so let's get it done.   And I think, [defense counsel], you indicated that there were additional charges, so we're not talking just about language changes but whole additional charges you were going to proffer to the Court, and I would like to hear from you on those as well.

DEFENSE COUNSEL:  Your Honor, there are no further objections to the instructions as read for instructions 1 through and including 25. The remainder would be items the Court has not yet read or are items dealing with the requested supplemental jury instruction.

THE COURT:  Let's jump into that number.

App. vol. 48 at 95-96, 98.   The court and counsel then discussed various proposed instructions.

Eventually, counsel for Hoffecker addressed the instruction with which we are concerned, stating, “And we object to Charge Number 54:  Absen[ce] of [an] Attorney-Client Relationship.  The Court did make a change to the proposed language based on the defense position. But in other respects [it] is including the instruction and we object to it its institution [sic].”  Id. at 117.

At no point in the record does Hoffecker explain the basis for this objection, and the District Court's ruling on the objection is not in the record, although we believe that the court overruled the objection because the court gave the instruction (renumbered as Charge Number 44a) the next day to the jury.   App. vol. 49 at 22-23.

After the court finished instructing the jury, it held the following sidebar:

THE COURT:  Counsel, was the reading of the jury instruction satisfactory?

PROSECUTOR:  Yes, ma‘am.

DEFENSE COUNSEL:  It was, Judge.   And we reserve the objections previously made, but we have no additional objection.  ․ I do have a note, Judge, to make.   Since prior to the start today, we had a brief additional charge conference that was not reported.   We did raise a number of issues and in some respects objections and alterations, as given to the Court.   I think the procedure is, you will allow us to put it on the record at the appropriate time, but the position we took during the pre-part two of the charge to the charge will otherwise be preserved?

THE COURT:  We'll take our time to go through the charge and you will have a chance to put on the record the alterations.   You asked for them and I didn't include them and we'll do that.

DEFENSE COUNSEL:  Thank you.

Id. at 32-33.   The Government and the defendants then made their closing arguments to the jury.

At one point during Hoffecker's closing argument, the Government objected because “there were several attempts by [defense counsel] to do an end run around your earlier ruling and your instruction that Jack Field was not an attorney for purposes of Amitex and Global.”   App. vol. 50 at 117.   The District Court then instructed the jury:  “I am reminding you that Mr. Field is not Mr. Myers['s] lawyer, Global Investment's lawyer or Amitex's lawyer at any time, and for purposes of your deliberations, I instruct you that Mr. Field did not have an attorney-client relationship with Mr. Hoffecker or Mr. Myers or Global or Amitex․” Id. at 121.   Later, during Myers's closing argument, the Government again objected for the same reason and the court told the jury:

Ladies and gentlemen, I remind you again of the instruction concerning Jack Field.   You heard that he was a practicing attorney, but you also heard me tell you, and I remind you again, that as a matter of law, I instruct you that during the period charged in the indictment Jack Field was not Mr. Hoffecker's lawyer, Mr. Myers's lawyer, Global Investment's lawyer or Amitex's lawyer at any time.   And for purposes of your deliberation, I instruct you that Jack Field did not have an attorney-client relationship with Mr. Hoffecker, Mr. Myers, Global or Amitex.

App. vol. 51 at 29.

After closing arguments, but before the jury left to begin deliberating, Hoffecker's counsel stated:  “I want to, we renew all prior comments and objections in connection with the jury instruction.  ․ I do want the record to reflect that the Court is allowing us to preserve all the previous objections that we have made and requests that we have made.”   App. vol. 52 at 55.   That is the last statement in the record that we have located relating to Hoffecker's objections to the jury instructions.

As we noted, Hoffecker never stated the basis for his objection to the “absence of an attorney-client relationship” instruction on the record.   Moreover, in his opening brief on this appeal, Hoffecker's entire discussion regarding the instruction was the following:

The defendant was prejudiced by Charge 44a-Absence of Attorney-Client Relationship (A59:172).   At all times, Field was a lawyer, Field provided advice and counsel to Hoffecker, and Field was a principal component of the Amitex operation.   The jury should have been allowed to consider the impact of Field's role as a lawyer on the defendant's actions and intent.

Appellant's Br. at 45.   As we noted above, in his Reply Brief, Hoffecker makes clear that his argument is that “based on the evidence” the instruction was incorrect.   Appellant's Rep. Br. at 44.

Because Hoffecker did not raise before the District Court or in his opening brief on appeal the issue of whether the District Court's “absence of an attorney-client relationship” instruction infringed his Sixth Amendment right to a jury trial by deciding an element of each of the charged offenses, he has waived it.   See Fed.R.Crim.P. 51(b) (“A party may preserve a claim of error by informing the court-when the court ruling or order is made or sought-of the action the party wishes the court to take, or the party's objection to the court's action and the grounds for that objection.”);   Pelullo, 399 F.3d at 222 (“It is well settled that an appellant's failure to identify or argue an issue in his opening brief constitutes waiver of that issue on appeal.”).

But even if we were to consider this issue, we would find that Hoffecker has not shown plain error or, indeed, error at all in its disposition.   See Fed.R.Crim.P. 52(b) (“A plain error that affects substantial rights may be considered even though it was not brought to the court's attention.”);  United States v. Wise, 515 F.3d 207, 214 (3d Cir.2008) (reviewing jury instructions for plain error after defendant failed to raise an argument before the district court).  “Under the plain error standard, ‘before an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affect[s] substantial rights.   If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.’ ” United States v. Williams, 464 F.3d 443, 445 (3d Cir.2006) (alterations in original) (quoting United States v. Vazquez, 271 F.3d 93, 99 (3d Cir.2001)).   To affect substantial rights, an error must be “prejudicial, i.e., it ‘must have affected the outcome of the district court proceedings.’ ” United States v. Nappi, 243 F.3d 758, 762 (3d Cir.2001) (quoting Olano, 507 U.S. at 734, 113 S.Ct. at 1778).

Here, the District Court clearly left to the jury the determination of whether the Government established beyond a reasonable doubt each of the elements of conspiracy and mail fraud.   For example, the court instructed the jury that to convict Hoffecker of conspiracy it must find beyond a reasonable doubt that he willfully participated in the unlawful plan charged with intent to commit mail fraud and wire fraud:

So, if a defendant[ ], with understanding of [the] unlawful character of a plan knowingly encouraged, advise[d] or assist[ed] for the purpose of furthering the undertaking or scheme, [he] thereby bec[a]me [a] willful participant[ ], that is, [a] conspirator[ ]․ [W]hether or not the defendants were members of the conspiracy may be determined upon all of the evidence in this case, including the reasonable inferences that you draw from that evidence.

App. vol. 48 at 87-88.

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