USA v. Bohuchot

Filing

PUBLISHED OPINION FILED. [08-11090 Affirmed 08-11112 Affirmed ] Judge: JES , Judge: EBC , Judge: PRO Mandate pull date is 11/30/2010 for Appellant Ruben B Bohuchot and Appellant Frankie Logyang Wong [08-11090, 08-11112]

USA v. Bohuchot

Case: 08-11090 Document: 00511289199 Page: 1 Date Filed: 11/09/2010

Doc. 0

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
November 9, 2010 N o . 08-11090 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f ­ A p p e lle e , v.

R U B E N B. BOHUCHOT AND FRANKIE LOGYANG WONG, D e fe n d a n t s ­ A p p e lla n t s .

A p p e a ls from the United States District Court for the Northern District of Texas

B e fo r e SMITH, CLEMENT, and OWEN, Circuit Judges. P R I S C I L L A R. OWEN, Circuit Judge: R u b e n B. Bohuchot and Frankie Logyang Wong were convicted of bribery, c o n s p ir a c y to commit bribery, and conspiracy to launder monetary instruments in connection with computer and technology contracts awarded by the Dallas I n d e p e n d e n t School District and programs that received federal funds. Bohuchot and Wong challenge these convictions and their respective sentences. We affirm the convictions and sentences. I R u b e n Bohuchot and Frankie Wong were charged in a multi-count in d ic t m e n t for offenses relating to the award of computer technology contracts

Dockets.Justia.com

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No. 08-11090 b y the Dallas Independent School District (DISD). At the time of the indictment, B o h u c h o t was DISD's chief technology officer. Wong was the president and coo w n e r of Micro Systems Engineering, Inc. (MSE), a computer reseller that c o n t r a c te d with larger companies to resell and maintain computer hardware. Two contracts were at the center of the government's bribery and c o n s p ir a c y allegations. The first was for a technology program called Seats M a n a g e m e n t , which provided computers, related services, and support for s c h o o ls within the district. DISD awarded this contract, calling for payments t o t a lin g approximately $18 million, to a partnership between Hewlett-Packard ( H P ) and MSE in September 2002. MSE received at least $4,674,303 for its p a r tic ip a t io n in the partnership. The second contract involved E-Rate, a federal p r o g r a m that provides money and technology to school districts that subsidize s t u d e n t lunches. DISD awarded this contract, contemplating payments of over $ 1 1 5 million, in December 2003 to a group of 13 companies called the C o n s o r t iu m , which included HP, Novell, and MSE. More than $35 million was p a id to MSE on behalf of the Consortium between May 2003 and July 2005 for M S E 's participation. D I S D used Requests for Proposals (RFP) to inform potential bidders of the s c o p e , location, and requirements for its major technology projects. To insure fa ir n e s s in the bidding process, information regarding forthcoming RFPs and t h e ir requirements was released to all competitors at the same time. The

p r o p r ie t y of the relationship between Bohuchot and Wong came into question w h e n a vendor who bid unsuccessfully for one of the DISD technology contracts lo d g e d a complaint. Subsequent investigation by the government revealed s u b s t a n t ia l evidence that Wong and Bohuchot had engaged in an ongoing s c h e m e in which Bohuchot provided valuable inside information regarding the R F P process to Wong in return for cash, vacation trips for Bohuchot and his fa m ily members, employment for Bohuchot's son-in-law, sporting event tickets, 2

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No. 08-11090 a n d extensive use of two yachts owned by an MSE affiliate. There was evidence t h a t Bohuchot provided insider information for approximately one year before t h e initial Seats Management RFP was released and that Bohuchot had met w it h Wong in Key West, Florida days before the release of that RFP. Witnesses fo r the government who were present at this latter meeting testified that B o h u c h o t shared a draft copy of the Seats Management RFP with Wong and a s s o c ia t e s at that time. W o n g and Bohuchot were convicted of violating and conspiring 1 to violate 1 8 U.S.C. §§ 666(a)(1)(B) and (2) (bribery concerning programs receiving federal f u n d s ), and of conspiracy to commit money laundering.2 Bohuchot was also c o n v ic t e d of obstruction of the grand jury proceeding 3 and of making a false s t a t e m e n t on a tax return,4 but he has not appealed his convictions for these la t t e r offenses. The district court sentenced Bohuchot to a 132-month term of im p r is o n m e n t and Wong to a 120-month term of imprisonment. Wong brings fo r w a r d six issues on appeal, arguing that (1) the government's proof and the c h a r g e to the jury constructively amended the indictment, (2) there was in s u ffic ie n t evidence to support the bribery theory on which Wong was indicted, (3 ) the prosecutor impermissibly commented on Wong's failure to testify, (4) the ju r y instructions were erroneous regarding money laundering because the mens r e a element was "knowing" rather than "intentional," (5) the district court erred in using the total cost of ownership of two yachts in sentencing, and (6) the d i s t r i c t court erroneously found multiple bribes rather than a single bribe. Bohuchot adopts Wong's argument and briefing regarding five of these issues.

1

18 U.S.C. § 371. 18 U.S.C. § 1956(h). 18 U.S.C. § 1512(c). 26 U.S.C. § 7206(1).

2

3

4

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No. 08-11090 II W e first consider the argument that the proof offered at trial by the g o v e r n m e n t and the jury charge submitted by the district court permitted the ju r y to convict Wong and Bohuchot on theories that were not alleged in the in d ictm en t, thereby impermissibly constructively amending the indictment. The d e fe n d a n t s rely on the Supreme Court's seminal decision in Stirone v. United S ta te s , in which the indictment alleged that Stirone had unlawfully interfered w it h interstate commerce in sand.5 At trial the prosecution presented not only e v id e n c e of interference with interstate commerce in sand but as to steel as well, a n d over the defendant's objection, the trial court's charge permitted the jury to c o n v ic t based on a finding regarding either sand or steel.6 The Supreme Court h e ld that this violated "the basic protection the grand jury was designed to a ffo r d " because it "subject[ed] the defendant to prosecution for interference with in t e r s t a t e commerce which the grand jury did not charge." 7 T h e indictment presently at issue alleged that Bohuchot provided and W o n g received non-public information relating to the Seats Management c o n t r a c t before the information was provided to other vendors who were c o m p e t in g with MSE, which assisted MSE in submitting the winning bid, and t h a t Bohuchot signed documents authorizing DISD to enter into contracts b e n e fitt in g MSE. The indictment also alleged that approximately six months b e fo r e the Seats Management RFP was published for bidding, Bohuchot

5

361 U.S. 212, 213-14 (1960). Id. at 214.

6

Id. at 218; see also id. ("The charge that interstate commerce is affected is critical since the Federal Government's jurisdiction of this crime rests only on that interference. It follows that when only one particular kind of commerce is charged to have been burdened a conviction must rest on that charge and not another, even though it be assumed that under an indictment drawn in general terms a conviction might rest upon a showing that commerce of one kind or another had been burdened.").

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No. 08-11090 r e p r e s e n t e d that a former employee of DISD, William Coleman, was then an e m p lo y e e of DISD when in fact he was a consultant for MSE. W o n g and Bohuchot contend that the government's theory of the case s h ift e d during trial and that it urged the jury to convict the defendants on g r o u n d s that differed from those set forth in the indictment. The allegedly new g r o u n d s include theories that Wong bribed Bohuchot to (1) manipulate the flow o f information to the DISD board of trustees, (2) select individuals who would be fa v o r a b le to MSE to serve on committees that would evaluate the competing bids o n the two contracts, (3) influence or pressure those committees, (4) create fa v o r a b le scoring matrixes or tamper with the scores for evaluating the c o m p e t in g bids, (5) improperly influence contract negotiations, and (6) rush the R F P process. T h e defendants failed to object to any of the evidence or arguments by the p r o s e c u t io n that they now urge constructively amended the indictment. They c o n t e n d , however, that they preserved their contentions by objecting to the d is t r ic t court's proposed instructions to the jury. The defendants point to the o b je c t io n s they lodged to the definition of "corruptly." The defendants argued to t h e district court that "[i]n light of the evidence that has developed," the jury in s t r u c t io n should have defined "corruptly" as "intent to receive a specific benefit in return for a payment. And incorporated in that is the intent of the specific q u id pro quo required for bribery and under 201 Section 18, 201 concerning b r ib e r y under 18 U.S. Code Section 666." The defendants were referring to 18 U .S .C . § 201, regarding bribery of public officials, and were arguing that the s a m e intent requirement for that offense is required under 18 U.S.C. § 666, the s t a t u t e the defendants were charged with violating. During this colloquy with t h e court, Wong and Bohuchot also cited the Fourth Circuit's decision in United S ta te s v. Jennings for the proposition that "corrupt intent" is "the intent to

5

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No. 08-11090 e n g a g e in `some more or less specific quid pro quo.'"8 Wong and Bohuchot

r e it e r a t e d similar objections to the definition of "corruptly" during subsequent d is c u s s io n s with the district court.9 However, there was no discussion of the e v id e n c e during the course of these objections. There was no hint or suggestion t o the district court that the government had changed its theory of how the d e fe n d a n t s had violated 18 U.S.C. § 666 or that this had resulted in a c o n s t r u c t iv e amendment of the indictment. Nor did either of the defendants a p p r is e the district court that the jury instructions would permit a conviction b a s e d on a theory that was not contained in the indictment. It was only to this c o u r t , on appeal, that Wong and Bohuchot for the first time argued that the in d ic t m e n t was constructively amended. Prior to the Supreme Court's decision in United States v. Olano,1 0 this c o u r t had held that "[c]onstructive amendments are reversible per se." 1 1 Our p o s t -O la n o decisions, however, have concluded that plain error review applies e v e n if there has been a constructive amendment. Although there is "tension b e tw e e n plain error review and the `automatic reversal' rule of Mize," it is clear

160 F.3d 1006, 1021 n.6 (4th Cir. 1998) (quoting United States v. Arthur, 544 F.2d 730, 734 (4th Cir. 1976)).
9

8

Counsel for Bohuchot argued:

Your Honor, it ["corruptly"] does not have its ordinary and common meaning in this specific statute because this specific statute relates back to the 18 U.S. Code [201] a bribery statute for its language when it was adopted, and bribery requires the intent to effect and [sic] exchange of money for a specific official action and that is ­ for a short term quid pro quo requirement and 666, while it doesn't define it and that is the issue other circuits have held that a specific quid pro quo is required and the instructions relating back to ­ 18 U.S. Code [201] are required. That is why just the common usage definition won't apply here or wouldn't adequately instruct the jury, Your Honor, or at least that is my position.
10

507 U.S. 725 (1993). United States v. Chandler, 858 F.2d 254, 256 (5th Cir. 1988).

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No. 08-11090 in this Circuit that we have "reconciled [that tension] in favor of plain error r e v ie w ."1 2 Our inquiry is therefore whether there was plain error in the district c o u r t proceedings.13 As the Supreme Court has often noted, there are four prongs to a plain e r r o r analysis.1 4 These are "(1) there was an error or defect, a `deviation from a le g a l rule--that has not been intentionally relinquished or abandoned'; (2) `the le g a l error must be clear or obvious, rather than subject to reasonable dispute'; (3 ) the error affected the defendant's substantial rights, `which in the ordinary c a s e means he must demonstrate that it affected the outcome of the district c o u r t proceedings'; and (4) when these three elements are present, a court may e x e r c is e its discretion to correct the error, although this discretion `ought to be e x e r c is e d only if the error seriously affect[s] the fairness, integrity, or public r e p u t a tio n of judicial proceedings.'"1 5 We conclude that it is at least debatable w h e t h e r there was clearly or obviously a constructive amendment of the in d ic t m e n t , but that in any event, neither the third nor fourth prongs of plain e r r o r review is satisfied in this case. The defendants acknowledge that the government's presentation of its case d u r in g opening statements remained within the confines of the indictment. It

United States v. Dixon, 273 F.3d 636, 639 n.1 (5th Cir. 2001) (quoting United States v. Daniels, 252 F.3d 411, 414 n.8 (5th Cir. 2001)); see also United States v. Scher, 601 F.3d 408, 411 (5th Cir. 2010); United States v. Broadnax, 601 F.3d 336, 340 (5th Cir. 2010); United States v. Phillips, 477 F.3d 215, 221 (5th Cir. 2007); United States v. Reyes, 102 F.3d 1361, 1365 (5th Cir. 1996). See Dixon, 273 F.3d at 639 (holding that the contention that the indictment had been constructively amended would be reviewed for plain error when there was no objection in the district court).
14 13

12

See, e.g., Puckett v. United States, 129 S. Ct. 1423, 1429 (2009); Olano, 507 U.S. at

732-36. United States v. John, 597 F.3d 263, 283 n.91 (5th Cir. 2010) (quoting Puckett, 129 S. Ct. at 1429) (internal quotation marks omitted).
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No. 08-11090 w a s during the presentation of government witnesses, the defendants claim, that t h e government began to assert other theories upon which the jury could find W o n g and Bohuchot guilty. The record, however, reflects that it was the

d e fe n d a n t s who first broached many of the facts that they now say should not h a v e been before the jury. In opening statements, the defendants argued that Bohuchot did not have t h e authority to bind DISD to any contracts and was not a member of either the D I S D board or the committees selected to evaluate the bids on the two contracts. The defendants also asserted in opening statements that Bohuchot did not a t t e m p t to influence the evaluation committees. The defendants continued to d e v e lo p this strategy in cross-examining government witnesses. For example, t h e government did not go beyond the facts set forth in the indictment in the d ir e c t examination of Larry Groppel, who was the deputy superintendent for b u s in e s s services at DISD when the contracts were awarded. It was on crosse x a m in a t io n that the defendants elicited that the bids were opened by the p u r c h a s in g department, that that department chose who would be on the c o m m it t e e s scoring the bids, and that Bohuchot's department "left the e v a lu a tio n committees alone" to do their work. Similarly, on cross-examination of another witness, Roland Taylor, the d e fe n d a n t s emphasized that Bohuchot was not a member of the bid evaluation c o m m it t e e s , and that there were no records that he was present when these c o m m it t e e s were doing their work. On redirect of this witness, the government e lic it e d that it was probably Bohuchot who determined how many points would b e awarded in each category of scoring that was to be used in evaluating the bids a n d that Bohuchot chose the evaluation committee members. I n its direct examination of other witnesses, the government hewed to the in d ic t m e n t, developing in some detail how Wong and those with whom he a s s o c ia t e d were able to use nonpublic information to structure a winning bid. 8

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No. 08-11090 F o r example, through Blair Thomas, the director of sales and operations for M S E , the government offered evidence that, long before the RFP for the Seats M a n a g e m e n t contract was made public, Bohuchot gave Thomas information that " v a lu e adds," meaning things of value to DISD outside the specifications of the R F P , would be important and how the "value adds" would be weighted in the e v a lu a tio n process. Bohuchot also discussed financing with Thomas, and

T h o m a s knew well in advance of the RFP's dissemination that bidding firms w o u ld be required to have a net worth of at least $1 billion. MSE did not meet t h a t requirement, and receipt of this early information gave MSE time to a s s o c ia t e with another company that had the requisite financial strength. In a m e e t in g that occurred in Key West, days before the RFP was publicly released, T h o m a s was given a copy of the RFP by Bohuchot. Thomas handed it to Wong. Wong then told Thomas that Wong and Bohuchot needed to meet and that T h o m a s did not need to be present. T h e government did not go beyond the facts set forth in the indictment d u r in g its initial closing argument to the jury. Counsel for Bohuchot made n u m e r o u s points in response and briefly argued to the jury that his client did not r e c e iv e the bids for the two contracts and that Taylor chaired the bid selection c o m m it t e e , of which Bohuchot was not a member. He noted that Bohuchot did n o t participate in the scoring of the bids and did not try to influence that process. Wong's counsel similarly argued in closing that Bohuchot did not have the power o r the authority to award contracts to Wong and that the bids for both contracts w e n t through evaluation committees. In response, in its closing argument, the g o v e r n m e n t asserted that Bohuchot had discussions with MSE representatives o v e r the course of the year before the RFP for the Seats Management contract w a s publicly available. The government did, however, make other points that w e r e not part of the indictment, including that Bohuchot was involved in the e v a lu a tio n process, had contact with the DISD board, and that the board would 9

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No. 08-11090 n a t u r a lly rely on him. The government argued that the members of the

e v a lu a tio n team reported to Bohuchot and "when you know your boss wants s o m e t h in g , what are you going to do? You are going to try to make your boss h a p p y ." The government then emphasized that the DISD board would have r e lie d on the head of the technology department, Bohuchot, in signing the Seats M a n a g e m e n t contract, and that Bohuchot's signature appeared on a document r e c o m m e n d in g to the board that it accept the contract that would handsomely c o m p e n s a te MSE. Later in the argument, the government asserted, "[t]hen you h a v e DISD. What did he [Bohuchot] control here? . . . He controlled the board o f trustees. He controlled his department employees. And he controlled most im p o r t a n t ly the information flow. That is a lot of control." With regard to the E -r a te contract, the government argued that Bohuchot set the scoring matrix t h a t was used by the evaluation committee to score each bid. These were not fa c t s alleged in the indictment. W e will assume, without deciding, that there was a constructive a m e n d m e n t of the indictment. We cannot conclude, however, that any such e r r o r affected the defendants' substantial rights, that is, that it affected the o u tc o m e of the district court proceedings.1 6 The evidence that Wong bribed B o h u c h o t was strong, notwithstanding the defendants' point that the g o v e r n m e n t 's own witnesses testified that it was common practice for school d istricts to share information with vendors regarding forthcoming RFPs, and the defendants' argument that the government failed to call any of MSE's business c o m p e t it o r s to establish the allegation that Wong received "inside" information u n a v a ila b le to other companies. Two separate witnesses for the government, T h o m a s and Coleman, testified that Bohuchot brought a draft of the Seats M a n a g e m e n t RFP with him to a secret meeting with Wong that took place in

16

See Olano, 507 U.S. at 734.

10

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No. 08-11090 K e y West, Florida days before the official release of the RFP. More importantly, G a r r e t t Goeters, an HP account executive, testified to having multiple and s p e c ific early conversations with Bohuchot, and admitted that the information p r o v id e d by Bohuchot helped HP/MSE prepare their bid for the Seats M a n a g e m e n t contract because they had more time and were thus better p r e p a r e d than competitors. The jury heard not only the facts recounted earlier in this opinion that were included within the indictment, it also heard detailed t e s t im o n y that supported extensive allegations in the indictment that after the S e a ts Management contract was signed by DISD, Wong provided to Bohuchot t h e expansive use of and control over two yachts in Florida. Wong not only paid, t h r o u g h a shell entity, for the purchase of the yachts, but he paid more than $ 3 0 0 ,0 0 0 for yacht-related expenses. Wong provided frequent-flyer miles to B o h u c h o t and his family to travel to the yachts. The yachts' captain, Dan T in g le y , testified that Bohuchot controlled and used these high-dollar vessels as h is personal possessions and that Wong told Tingley on one occasion when he c o m p la in e d about Bohuchot's operating the boat unsafely, that without B o h u c h o t , "there would be no boat." The evidence also established that Wong fu n n e le d substantial sums of money to Bohuchot's son-in-law and attempted to c o n c e a l these payments through a series of holding companies. Other things of v a lu e , such as expensive tickets to sporting events and expensive golf outings, w e r e bestowed upon Bohuchot by Wong. It is improbable that the jury would h a v e concluded that Wong and Bohuchot were innocent if only the evidence of w h ic h the defendants now complain had been excluded. I n any event, we decline to exercise our discretion to correct any error that m a y exist regarding a constructive amendment of the indictment. Any such e r r o r did not seriously affect the fairness, integrity, or public reputation of the

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No. 08-11090 ju d ic ia l proceedings.1 7 Wong and Bohuchot were not surprised by the evidence t h e y now challenge. The defendants, in large measure, raised these areas of in q u ir y defensively, and the government responded. There is no contention that t h e defendants were unable to meet the government's evidence. And, as noted, t h e evidence of guilt was very substantial. Accordingly, we will not reverse the c o n v ic t io n s on the basis of a constructive amendment of the indictment.

III W o n g and Bohuchot argue that they are entitled to rendition of judgment in their favor, contending that the evidence was insufficient to prove the charges fo r which they were indicted. Our review is to determine if "any rational trier o f fact could have found the essential elements of the crime beyond a reasonable d o u b t ." 18 W it h regard to the Seats Management contract, we have set forth above t h e considerable evidence that supports the jury's findings of guilt. The evidence w a s sufficient to support the convictions that pertain to the Seats Management c o n tr a c t. W it h regard to the E-rate contract, the government concedes that it p r e s e n t e d no direct evidence that Bohuchot assisted Wong in submitting the s u c c e s s fu l bid or otherwise influencing the contracting process. However, as set fo r t h above, there was considerable evidence that Wong provided money and o t h e r things of considerable value to Bohuchot after the E-rate contract was a w a r d e d . A rational juror could infer from this circumstantial evidence and the e v id e n c e regarding the Seats Management contract that Bohuchot accepted or s o lic it e d the remuneration from Wong as part of an ongoing scheme as alleged

17

See id. at 736. United States v. Ekanem, 555 F.3d 172, 174 (5th Cir. 2009) (citation omitted).

18

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No. 08-11090 in the indictment.

IV W o n g asserts that the prosecutor impermissibly commented on Wong's d e c is io n to invoke his Fifth Amendment right not to testify at trial. Generally, w e review such a contention de novo.1 9 Because Wong failed to object to these c o m m e n ts at trial, however, this claim is reviewed for plain error.2 0 A prosecutor is prohibited from commenting directly or indirectly on a d e fe n d a n t 's failure to testify.2 1 Ordinarily, "[t]he test for determining whether th e prosecutor's remarks were constitutionally impermissible is: `(1) whether the p r o s e c u t o r 's manifest intent was to comment on the defendant's silence or (2) w h e t h e r the character of the remark was such that the jury would naturally and n e c e s s a r ily construe it as a comment on the defendant's silence.'" 2 2 The

p r o s e c u t o r 's intent is not manifest if there is some other, equally plausible e x p la n a t io n for the remark.2 3 Both inquiries are properly conducted by

r e v ie w in g the challenged remarks in context.2 4 D u r in g closing arguments, the prosecutor remarked:
19

United States v. Martinez, 151 F.3d 384, 392 (5th Cir. 1998).

United States v. Zanabria, 74 F.3d 590, 593 (5th Cir. 1996) ("[Where] [t]here was no timely objection . . . our review must be for plain error, i.e., an error which is clear and which affects substantial rights.") (citing Olano, 507 U.S. 725). Griffin v. California, 380 U.S. 609, 615 (1965); United States v. Montoya-Ortiz, 7 F.3d 1171, 1178 (5th Cir. 1993) ("The Fifth Amendment prohibits a prosecutor from commenting directly or indirectly on a defendant's failure to testify."). United States v. Grosz, 76 F.3d 1318, 1326 (5th Cir. 1996) (quoting United States v. Collins, 972 F.2d 1385, 1406 (5th Cir.1992)). Id.; see also United States v. Green, 324 F.3d 375, 382 (5th Cir. 2003) ("If there is an equally plausible explanation for the remark, the prosecutor's intent is not manifest.") (internal quotations omitted) (citing Grosz, 76 F.3d at 1326).
24 23 22 21

20

United States v. Jones, 648 F.2d 215, 218 (5th Cir. Unit B June 1981) (per curiam).

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No. 08-11090 W h a t else is happening during this time period? May, 2002, t h is trip to Key West we know Mr. Bohuchot was on it. Mr. C o le m a n was on it. Mr. Wong was on it, and Blair Thomas w a s on it. The four men two of which talked to you about t h e RFP being there and the other two sitting here. W o n g contends that there is no reasonable way to interpret the prosecution's a r g u m e n t other than: "Our witnesses testified; Mr. Wong did not." The

g o v e r n m e n t responds that the prosecutor could not possibly have been referring t o Wong's failure to testify because the reference to "the other two sitting here" w a s to Wong and Bohuchot, and Bohuchot testified. The prosecutor was

a r g u in g , the government contends, that two of the four men in the van in Florida t e s t ifie d that the RFP for the Seats Management contract was displayed in the v a n and the other two deny this occurred (in the case of Wong, through a r g u m e n t s of his counsel, and in Bohuchot's case, through his own testimony as w e ll as arguments of counsel). We agree with the government that, in context, t h is is a plausible explanation of the prosecutor's statement. E v e n if the prosecutor's comments were improper, they were not s u ffic ie n t ly prejudicial to "cast serious doubt on the correctness of the jury's v e r d ic t."2 5 Nor did they affect Wong's substantial rights. The district court c a u t io n e d the jury through instructions that "no inference or conclusion may be d r a w n from a defendant's decision not to testify." As already noted, the evidence o f Wong's guilt was substantial.

V R e v e r s a l and remand is required, Wong and Bohuchot assert, because the d is t r ic t court's jury instructions lowered the mens rea for conspiracy to commit m o n e y laundering. The indictment charged the defendants with violating 18

25

See United States v. Virgen-Moreno, 265 F.3d 276, 290 (5th Cir. 2001) (citation

omitted).

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No. 08-11090 U . S .C . § 1956(h). Section 1956(h) prohibits conspiracies to launder money, as d e fin e d by § 1956(a).2 6 The district court's charge to the jury stated, in pertinent p a r t: T it le 18 U.S.C. § 1956(h) makes it a crime for anyone to conspire or a g r e e with someone else to do something that, if actually carried o u t , would be a violation of 18 U.S.C. § 1956(a), which prohibits k n o w in g ly using the proceeds of certain illegal activity to promote t h e carrying on of certain illegal activity or conceal or disguise the n a t u r e , location, source, ownership, or control of the proceeds. Count 10 of the Indictment charges Defendants with conspiracy to la u n d e r monetary instruments. You are directed to read this count a s set forth in the Indictment. *** F o r you to find Defendants Bohuchot and Wong guilty of the c r im e of conspiracy to launder monetary instruments as charged in c o u n t 10, you must be convinced that the Government has proved e a c h of the following beyond a reasonable doubt:
26

18 U.S.C. § 1956(a) provides

Whoever, knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity­ (A)(i) with the intent to promote the carrying on of specified unlawful activity; or ... (B) knowing that the transaction is designed in whole or in part­ (i) to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity; ... shall be sentenced to a fine of not more than $500,000 or twice the value of the property involved in the transaction, whichever is greater, or imprisonment for not more than twenty years, or both. For purposes of this paragraph, a financial transaction shall be considered to be one involving the proceeds of specified unlawful activity if it is part of a set of parallel or dependent transactions, any one of which involves the proceeds of specified unlawful activity, and all of which are part of a single plan or arrangement.

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Case: 08-11090 Document: 00511289199 Page: 16 Date Filed: 11/09/2010

No. 08-11090 F ir s t: T h a t two or more persons, in some way or m a n n e r , came to a mutual understanding to try t o accomplish a common and unlawful plan to v io la te Title 18 U.S.C. § 1956(a) as charged in the I n d ic t m e n t ; and T h a t the defendant, knowing the unlawful p u r p o s e of the plan, willfully joined in it, that is, w it h the intent to further the unlawful purpose.

S econ d :

W o n g and Bohuchot assert that although the indictment correctly alleged t h e required mens rea, the jury instructions can be read in two erroneous ways. They argue that the instruction required that the defendants knowingly used fu n d s but that it had no mens rea requirement at all regarding promoting or c o n c e a lin g . Alternatively, they argue that the instruction required that the d e fe n d a n t s knowingly used funds and knowingly promoted or concealed. This, t h e y say, lowered the mens rea from "intentional" to "knowing." The defendants did not object in the district court on either of these g r o u n d s . Our review, therefore, is for plain error.2 7 We will assume, without d e c id in g , that the jury instructions did not require the jury to find all the n e c e s s a r y elements to convict the defendants of conspiracy to commit money la u n d e r in g . Even were we reviewing for error, rather than plain error, the h a r m le s s error rule of the Supreme Court's decision in Chapman v. California 28 w o u ld apply when, as here, an element of an offense is omitted or misdescribed i n a jury charge.2 9 The question we would ask, had error been preserved, is " w h e t h e r it appears `beyond a reasonable doubt that the error complained of did

27

FED. R. CIV. P. 51(d)(2); United States v. Clayton, 172 F.3d 347, 351 (5th Cir. 1999). 386 U.S. 18, 23-24 (1967). See Neder v. United States, 527 U.S. 1, 4 (1999).

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Case: 08-11090 Document: 00511289199 Page: 17 Date Filed: 11/09/2010

No. 08-11090 n o t contribute to the verdict obtained.'"3 0 Error would be harmless if no jury c o u ld reasonably find that Wong and Bohuchot did not agree to transfer funds w it h the intent to promote the carrying on of specified unlawful activity and did n o t agree to transfer funds knowing that the transfer was designed to conceal t h e nature, location, source, ownership or control of proceeds of specified u n la w fu l activity. T h e jury found that there was an agreement regarding unlawful proceeds. In light of that finding and the considerable and strong evidence of the in ten tion a l and knowing nature of Wong and Bohuchot's agreement and conduct, n o jury could reasonably fail to make the requisite findings regarding the a p p lic a b le mens rea. There was evidence that Wong funneled proceeds from M S E 's participation in the DISD contracts to a company, Statewide Marketing, o w n e d by the same three individuals who owned MSE. Statewide Marketing o w n e d the yachts and paid for all the bills associated with them. There was also e v id e n c e that Wong hired Bohuchot's son-in-law, who received two paychecks. Bohuchot told his son-in-law that he would continue to receive checks even if his e m p lo y m e n t with MSE ended, and Bohuchot instructed his son-in-law to pay p a r t of the proceeds from his second check each month to Bohuchot. These p a y m e n t s to Bohuchot amounted to $50,000 per year. We will not lengthen this o p in io n by detailing all of the additional evidence of money laundering. Suffice it to say that the jury believed that there was an agreement to launder money a n d there was overwhelming evidence to support that finding. It follows that t h e r e was no plain error.

VI Bohuchot and Wong further contend that the district court committed

30

Id. at 15 (quoting Chapman, 386 U.S. at 24).

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Case: 08-11090 Document: 00511289199 Page: 18 Date Filed: 11/09/2010

No. 08-11090 e r r o r in calculating the "value" of the bribe for sentencing purposes under U .S .S .G . § 2C1.1(b)(2), which provides for increasing the offense level according t o the value of the bribe.3 1 Specifically, the Defendants argue that the district c o u r t overestimated the benefit of the two yachts provided by MSE for B o h u c h o t 's personal use. Defendants allege that the court committed error by e q u a t in g the cost of actual ownership of the vessels with Bohuchot's frequent u se . This resulted in the court attributing to Bohuchot 80% and 90%,

r e s p e c t iv e ly , of MSE's total cost of ownership for the two yachts--$667,669 in t o t a l. Defendants contend this calculation vastly overestimated the "value" of t h e bribe, which the court found totaled $946,942. Defendants argue that

b e c a u s e Bohuchot did not own the yachts, but merely used them (approximately 4 0 times over a two-and-a-half-year period on trips that lasted anywhere from a day to several weeks at a time), the proper methodology would have been to c a lc u la t e the cost of renting the boats for this period. Basing the calculations on t h e market value of yachts that Bohuchot did not actually own, defendants in s is t , resulted in a gross inflation of the actual "value" Bohuchot enjoyed. The d e fe n d a n t s raised these arguments in the district court. " T h e amount of benefit to be received is a fact finding issue that is r e v ie w e d for clear error."3 2 The district court need not determine the value of the b e n e fit with precision.3 3 Moreover, when "determining the amount of benefit to

See U.S.S.G. § 2C1.1(b)(2) ("If the value of the payment, the benefit received or to be received in return for the payment, the value of anything obtained or to be obtained by a public official or others acting with a public official, or the loss to the government from the offense, whichever is greatest, exceeded $5,000, increase by the number of levels from the table in § 2B1.1 (Theft, Property Destruction, and Fraud) corresponding to that amount.")

31

United States v. Griffin, 324 F.3d 330, 365 (5th Cir. 2003); see also United States v. Valladares, 544 F.3d 1257, 1266 (11th Cir. 2008) (per curiam) (same). Griffin, 324 F.3d at 366 (citing United States v. Landers, 68 F.3d 882, 884 n.2 (5th Cir. 1995)).
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Case: 08-11090 Document: 00511289199 Page: 19 Date Filed: 11/09/2010

No. 08-11090 b e received, courts may consider the expected benefits, not only the actual b e n e fits received." 3 4 N e v e r t h e le s s , we conclude that because Bohuchot did not have the legal r ig h t to sell or otherwise transfer any interest in the boats in question, Bohuchot c o u ld not be found to enjoy an "ownership" interest for the purposes of c a lc u la t in g the amount of a benefit received under U.S.S.G. § 2C1.1(b)(2). Bohuchot did not receive the market value of the yachts, only the value a t t r ib u t a b le to his use of the yachts. However, the district court's use of the y a c h t s ' market value in calculating Bohuchot's sentence was harmless. T h e district court applied a 14-level increase under section 2B1.1(b)(1) of t h e Sentencing Guidelines. That increase applies when the value of the bribe is g r e a t e r than $400,000 but less than $1,000,000. The district court estimated t h a t the value of payments and benefits to Bohochut unrelated to the yachts was $ 2 7 8 ,2 4 3 . Accordingly, if the value of the use of the boats was more than $ 1 2 1 ,7 5 7 , the 14-level enhancement would still have applied. The defendants c o n t e n d that the value of the use of the yachts was from $1500 to $2500 per day fo r the first yacht and $2500 to $3500 per day for the second. If Bohuchot used t h e less expensive yacht for approximately 49 days at a value of $2500 per day, t h e value to him would have exceeded $121,757, and there was evidence that he u s e d the yachts for more than 49 days. The defendants have failed to establish h a r m fu l error in the district court's application of the 14-level increase.

V II W it h regard to sentencing, the defendants also assert that the district c o u r t erred in finding more than one bribe and adding two levels under U .S .S .G . § 2C1.1(b)(1). The district court reasoned that the counts of conviction

34

Id.

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Case: 08-11090 Document: 00511289199 Page: 20 Date Filed: 11/09/2010

No. 08-11090 s u p p o r t finding more than one bribe. There was evidence that proceeds MSE r e c e iv e d from both the Seats Management contract and the E-Rate contract were s h a r e d with Bohuchot. The district court's application of the two-level increase w a s not clearly erroneous. *** T h e convictions and sentences are AFFIRMED.

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