United States of America v.  Frank J. Masiarczyk, Jr.; Linda M. Masiarczyk

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4536 
FRANK J. MASIARCZYK, JR.; LINDA M.
MASIARCZYK,
Defendants-Appellants. 
Appeal from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
Irene M. Keeley, District Judge.
(CR-97-39)
Argued: September 26, 2000
Decided: January 12, 2001
Before WIDENER, WILLIAMS, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Richard Dwight Biggs, LAW OFFICE OF MARCIA G.
SHEIN, P.C., Atlanta, Georgia, for Appellants. Sharon L. Potter,
Assistant United States Attorney, Wheeling, West Virginia, for
Appellee. ON BRIEF: Marcia Gail Shein, LAW OFFICE OF MAR-
CIA G. SHEIN, P.C., Atlanta, Georgia, for Appellants. Melvin W.
Kahle, Jr., United States Attorney, Sam G. Nazzaro, Assistant United
States Attorney, Wheeling, West Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Frank and Linda Masiarczyk (Frank and Linda) were convicted by
a jury in the United States District Court for the Northern District of
West Virginia of conspiracy to defraud the United States by impairing
and impeding the lawful function of the Internal Revenue Service
(IRS) in the computation and assessment of taxes, pursuant to 18
U.S.C.A. § 371, and structuring financial transactions to avoid bank
reporting requirements, pursuant to 31 U.S.C.A. § 5324. Frank also
was convicted of willful tax evasion, pursuant to 26 U.S.C.A. § 7201.
Frank and Linda argue on appeal that the district court should have
granted their joint motion for judgment of acquittal based upon insuf-
ficiency of the evidence, that the district court erred in admitting and
excluding certain evidence at trial, that the jury was not impartial, and
that the Government violated their due process rights by relying upon
false evidence. Linda also argues that the district court erred in
enhancing her sentence because she was a leader, manager, or orga-
nizer under the Sentencing Guidelines. Finding no reversible error,
we affirm.
I.
In 1981, Frank was convicted of misdemeanor tax charges arising
from his failure to file personal income tax returns, corporate income
tax returns, and quarterly employer returns. At the time, Frank lived
in Florida with his then-wife, Linda, where they operated various car
washes, adult entertainment clubs, and other businesses. In 1984, after
the IRS filed various tax assessments against Frank, he signed a set-
tlement decision in the United States Tax Court. Despite acknowledg-
ing that he owed taxes, however, Frank did not pay the taxes that he
owed. Instead, Frank engaged in a scheme with Linda and others to
conceal his income and assets in order to avoid paying the IRS.1
1Because this is a challenge to the denial of a motion for judgment of
acquittal based upon insufficiency of the evidence, we view the evidence
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Frank and Linda’s scheme included cash purchases of various
property in the names of others, including a purchase of 404 acres in
Grantsville, West Virginia, and the purchase of a leasehold in Walton
Beach, Florida. In addition, Frank divorced Linda in 1989, which per-
mitted Frank to conceal his assets by placing them in Linda’s name.
Frank and Linda continued to represent to third parties that they were
still married.
Frank and Linda’s business interests included the ownership of cor-
porate entities run by Frank that operated several adult entertainment
clubs in West Virginia. Linda was an officer or employee of most of
these corporations and handled all of the bookkeeping, while Frank
operated and managed the clubs. These clubs paid their employees,
including the managers, dancers, and bartenders, in cash. The clubs
did not file W-2 forms or withhold taxes for any of their employees.
On October 9, 1997, Frank and Linda were named in a three-count
indictment. Count One charged Frank and Linda with conspiring to
defraud the United States by impairing and impeding the lawful func-
tion of the IRS in the computation and assessment of taxes pursuant
to 18 U.S.C.A. § 371. Count Two charged Frank with willful tax eva-
sion relating to taxes due and owing from previous years, pursuant to
26 U.S.C.A. § 7201. Count Three charged Frank and Linda with
structuring financial transactions to avoid bank reporting require-
ments, pursuant to 31 U.S.C.A. § 5324.
On June 8, 1998, a jury trial commenced. At trial, the evidence
showed that Frank and Linda had actively concealed substantial
assets. For example, the evidence revealed that in March 1995, the
IRS executed a search warrant at Frank and Linda’s home and uncov-
ered over $375,000 in cash that was hidden under a false floor in a
safe. In addition, the evidence showed that Frank and Linda’s
monthly car and mortgage payments of over $2,500 totaled more
annually than the combined gross income that they reported on their
tax returns in the early 1990s. The evidence also disclosed that Frank
called his daughter in Florida to ask her to retrieve business records
in the light most favorable to the Government. See United States v. Sut-
ton, 961 F.2d 476, 478 (4th Cir. 1992).
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from a warehouse to prevent the IRS from finding them. After his
daughter refused to comply, Frank traveled to Florida, obtained the
records, and discarded them in a trash can.
On July 23, 1998, the jury convicted Frank on all counts, and it
convicted Linda on the counts involving her. On November 6, 1998,
the district court denied their motion for judgment of acquittal or for
a new trial. On April 26, 1999, Frank and Linda filed another motion
for new trial based upon newly discovered evidence alleging that a
juror was biased because he knew some of the Government witnesses
and he had more serious tax problems than he had disclosed at voir
dire. On July 8, 1999, after holding a hearing and taking testimony to
determine whether Frank and Linda were denied a fair trial, the dis-
trict court found no juror bias. On the same day, the district court sen-
tenced Frank to eighty months imprisonment and Linda to fifty
months imprisonment.
Frank and Linda raise several issues on appeal. First, they argue
that the district court erred in denying their joint motion for judgment
of acquittal because there was insufficient evidence to support their
structuring convictions or Frank’s tax evasion conviction. Second,
they argue that the district court abused its discretion in admitting and
excluding certain evidence. Third, they argue that they were denied
a fair trial because the jury was not impartial. Fourth, they argue that
the Government violated their due process rights by relying upon
false evidence before the grand jury. Finally, they argue that the dis-
trict court clearly erred in determining Linda’s base offense level at
sentencing by incorrectly finding that she was a leader, manager, or
organizer in the criminal enterprise. We address each of these argu-
ments, in turn.
II.
Frank and Linda first argue that the district court erred in denying
their joint motion for judgment of acquittal based upon insufficiency
of the evidence as to their structuring convictions, as well as Frank’s
individual conviction for willful tax evasion. In reviewing the denial
of a motion for judgment of acquittal based upon insufficiency of the
evidence, we must determine whether there is substantial evidence to
support the jury’s verdict, viewing the evidence in the light most
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favorable to the Government. See United States v. Sutton, 961 F.2d
476, 478 (4th Cir. 1992); see also Glasser v. United States, 315 U.S.
60, 80 (1942) ("It is not for us to weigh the evidence or to determine
the credibility of witnesses. The verdict of a jury must be sustained
if there is substantial evidence, taking the view most favorable to the
Government, to support it."). Substantial evidence is evidence that,
when viewed in the light most favorable to the government, "a rea-
sonable finder of fact could accept as adequate and sufficient to sup-
port a conclusion of a defendant’s guilt beyond a reasonable doubt."
United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc).
A.
We first address whether the Government offered sufficient evi-
dence to support Frank and Linda’s structuring convictions. Frank and
Linda argue that there is insufficient evidence to show that either of
them were aware of the currency transaction reporting (CTR) require-
ments of 31 U.S.C.A. § 5313, that either of them knew that structur-
ing was unlawful, or that either of them knowingly and willfully
evaded the CTR requirements in violation of 31 U.S.C.A. § 5324.
Domestic financial institutions must file CTRs for any transaction
or series of transactions involving currency in an amount greater than
$10,000. See United States v. Beidler, 110 F.3d 1064, 1065 (4th Cir.
1997). It is unlawful to structure, to assist in structuring, or to attempt
to structure or to assist in structuring a currency transaction to avoid
the reporting requirement. See id. at 1066. At the time of Frank and
Linda’s illegal conduct, "an individual could not be convicted of vio-
lating the antistructuring law absent proof that he did so ‘willfully.’"2
2Prior to 1994, § 5322 provided that penalties could be imposed upon
"‘[a] person willfully violating’ the antistructuring laws." United States
v. Beidler, 110 F.3d 1064, 1066 (4th Cir. 1997) (quoting 31 U.S.C.
§ 5322 (1988)). The Supreme Court in Ratzlaf v. United States, 510 U.S.
135 (1994), held that the willfulness requirement of § 5322 required the
Government to "prove that the defendant acted with knowledge that his
conduct was unlawful." Id. at 137. In 1994, Congress amended § 5322
to omit the willfulness requirement for violations of § 5324. See Beidler,
110 F.3d at 1066 n.1. It now provides, in pertinent part, that
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Id. For the Government to show that a defendant acted "willfully" for
this purpose, courts required proof that "the defendant acted with
knowledge that the conduct was unlawful." Id. (internal quotation
marks omitted). Thus, at the time of the offenses in this case, a con-
viction under § 5324 required that the Government show three things:
(1) that the defendant structured or assisted in structuring currency
transactions with one or more financial institutions; (2) that he did so
for the purpose of evading the CTR requirements; (3) and that he
acted with knowledge that his conduct was unlawful. See id. Although
evidence that a defendant structured currency transactions, standing
alone, is not sufficient to prove that the defendant knew that his con-
duct was illegal, see Ratzlaf v. United States, 510 U.S. 135, 137
(1994); United States v. Ismail, 97 F.3d 50, 56-58 (4th Cir. 1996), and
although the "evidence must suggest knowledge of the antistructuring
law as distinct from knowledge of financial institutions’ reporting
requirements," Beidler, 110 F.3d at 1068 (internal quotation marks
omitted), we have held that "evidence that a defendant has structured
currency transactions in a manner indicating a design to conceal the
structuring activity itself, alone or in conjunction with other evidence
of the defendant’s state of mind, may support a conclusion that the
defendant knew structuring was illegal," id. at 1069. Moreover, "be-
cause willfulness concerns the defendant’s state of mind, which —
unless the defendant admits to an intent to violate the law — can only
be inferred from conduct," id., the factfinder may draw reasonable
(a) A person willfully violating this subchapter or a regulation
prescribed under this subchapter (except section 5315 or 5324 of
this title or a regulation prescribed under section 5315 or 5324)
shall be fined not more than $250,000, or imprisoned for not
more than five years, or both.
(b) A person willfully violating this subchapter or a regulation
prescribed under this subchapter (except section 5315 or 5324 of
this title or a regulation prescribed under section 5315 or 5324),
while violating another law of the United States or as part of a
pattern of any illegal activity involving more than $100,000 in
a 12-month period, shall be fined not more than $500,000,
imprisoned for not more than 10 years, or both.
31 U.S.C.A. § 5322 (West Supp. 2000) (emphasis added).
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inferences from the available facts. Likewise, "willfulness may be
inferred from evidence of attempts to conceal illegal conduct." Id.
In the present case, the Government presented evidence that on
August 2, 1993, Frank and Linda arranged a transaction under which
they distributed a total of $25,000 in cash to four relatives. Linda
accompanied these relatives to the Calhoun County Bank, where each
of the relatives used Frank and Linda’s cash to purchase cashier’s
checks in their own names. Each cashier’s check was for less than
$10,000. These relatives did not keep the cashier’s checks, but instead
gave them back to Linda, who in turn used the five cashier’s checks
and cash as a partial payment for Frank and Linda’s purchase of a
club from Terry Shimbo. None of these relatives were involved in the
transaction with Shimbo, and Shimbo did not recognize any of the
names on the checks except Linda’s.
Based upon the evidence presented at trial, a jury reasonably could
have inferred that Frank and Linda structured this transaction to evade
the CTR requirements. See id. The Government presented evidence,
for example, that Frank was aware of the CTR requirements and
intended to avoid them, including the testimony of Joe Anania, a for-
mer business partner, to "never draw out more than $10,000 because
if you draw out more than $10,000 or more, then the bank has to
report it." (J.A. at 661.)3 The Government also presented the testi-
mony of James Reed, a former employee, who stated that he would
send Frank amounts ranging from $3,000 to $5,000 a week after pay-
ing the dancers and that "[s]ome banks would get curious and wonder
why we was using all of this cash to come and get the cashier’s
checks," and that Frank told him to go to another bank if a bank asked
any questions. (J.A. at 434.) Although Frank argues that Anania’s tes-
timony was "highly unreliable," and, therefore, that there was insuffi-
3The Government also offered a note from Frank to Anania that said
"Joe, you should start taking out more money twice a week so it doesn’t
go over $10,000 at one time; and if you leave it in the bank, we are going
to be sorry next year at tax time on the credit cards." (J.A. at 661.)
Anania also testified that Frank wrote him a note asking him to "take
some cash out of the bag before it sends up a red flag. We’re putting in
too much credit cards. We need to say that they are cash draws so they
can tip the girls, if anyone asks." (J.A. at 659-60.)
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cient evidence to support Frank’s structuring conviction (Appellant’s
Br. at 16), we note that it is "[t]he jury, not the reviewing court, [that]
weighs the credibility of the evidence and resolves any conflicts in the
evidence presented." Beidler, 110 F.3d at 1067 (internal quotation
marks omitted).
Moreover, Linda accompanied the four relatives to the bank so that
they could purchase a total of $25,000 in cashier’s checks for Frank
and Linda. In other words, Frank and Linda designed the Shimbo
transaction in such a way that the relatives purchased more cashier’s
checks "than the minimum necessary to evade the reporting require-
ments." Id. at 1070. The jury could have inferred from the design of
this transaction that Frank and Linda were attempting to conceal their
structuring activity.4 See id. Here, similar to Beidler, if Frank and
Linda only had intended to avoid the filing of a CTR for the Shimbo
transaction, as opposed to seeking to conceal their illegal structuring
activity, they just as easily could have arranged for the purchase of
only three cashier’s checks, each at amounts just under $10,000,
rather than arranging for the purchase of five cashier’s checks at
smaller amounts. In Beidler, this Court noted that "the jury reasonably
could have inferred that Beidler intended to conceal his structuring
because he knew structuring was illegal" based upon the fact that
"Beidler made 34 cash deposits, totaling $116,500 at 10 different
branches of three different banks. If Beidler’s only intent was to avoid
the filing of a CTR, 12 separate deposits would have served this pur-
pose just as well." Id. Thus, the fact that Frank and Linda used more
straw purchasers and cashier’s checks than necessary raises the per-
4Frank and Linda argue that the Shimbo transaction does not give rise
to a reasonable inference that Frank and Linda structured the transaction
to evade the CTR requirements because they could have paid Shimbo
$50,000 in cash rather than paying Shimbo $25,000 in cash and $25,000
through five cashier’s checks. Had Frank and Linda not sought to evade
the CTR requirements, however, they also could have used a single cash-
ier’s check rather than having the four relatives, who were each other-
wise unrelated to the transaction, purchase checks for Frank and Linda.
"Additionally, the jury — the sole judge of the credibility of the wit-
nesses — was entitled to reject [Frank and Linda’s] explanation of the
transactions and to consider its rejection of [Frank and Linda’s] story as
positive evidence of [their] guilt." United States v. Beidler, 110 F.3d
1064, 1070 (4th Cir. 1997).
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missible inference that they intended to conceal their structuring
activity, and, therefore, that they were aware of the CTR requirements
and the illegality of their structuring activity.5 Accordingly, we affirm
the district court’s denial of Frank and Linda’s motion for judgment
of acquittal on their structuring convictions.
B. Tax Evasion
Frank argues that there was insufficient evidence to support his tax
evasion conviction. In particular, he argues that although the indict-
ment on this count alleged that his tax evasion began in 1981, the tax
assessment did not become legally due until 1984, when he reached
5Linda argues, nevertheless, that even if the evidence shows that Frank
had knowledge of the CTR requirements, there is no direct evidence that
she had such knowledge. Although Linda is correct that the Government
did not present any direct evidence that Linda, as opposed to Frank,
knew of the CTR requirements, we have previously recognized that
"[w]illfulness is rarely proven by direct evidence; rather, the factfinder
must draw reasonable inferences from the available facts." United States
v. Beidler, 110 F.3d 1064, 1069 (4th Cir. 1997) (internal quotation marks
and alterations omitted). In other words, direct evidence of Linda’s
knowledge and state of mind is not required to support Linda’s structur-
ing conviction. See id. (noting that "willfulness concerns the defendant’s
state of mind, which — unless the defendant admits to an intent to vio-
late the law — can only be inferred from conduct"). Here, Linda was not
merely a passive participant in the Shimbo transaction. The evidence
shows that Linda actively participated in, and, indeed, supervised, the
Shimbo transaction by accompanying the relatives to the bank to pur-
chase the cashier’s checks for Frank and Linda. As with Frank, the evi-
dence of Frank and Linda’s attempt to conceal the structuring activity
raises the permissible inference that Frank and Linda knew that structur-
ing is illegal. See id. at 1070. Moreover, the Government presented other
circumstantial evidence from which the jury could have inferred Linda’s
knowledge of the CTR requirements, including that Linda controlled the
books and that Linda was at least aware, if not in control of, many of the
financial decisions in Frank and Linda’s business and thus was in a posi-
tion to know of and participate in avoiding the CTR requirements. Based
upon Linda’s active participation in the concealment of the structuring,
as well as her control over the financial aspects of the enterprise, the jury
reasonably could have inferred that she, as well as Frank, willfully struc-
tured the Shimbo transaction.
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a settlement with the IRS on his challenge.6 Thus, Frank asserts, there
was a prejudicial variance in the indictment that warrants reversal of
his tax evasion conviction. The Government responds that it offered
evidence of Frank’s tax evasion dating back to 1981 and that even if
the 1981 date is a variance, it is only a minor variance in light of the
voluminous evidence regarding Frank’s tax evasion after 1984. We
affirm the district court because even if we assumed the correctness
of Frank’s premise — that "the tax assessments did not become
legally due until after Appellant Frank had the opportunity to chal-
lenge them in tax court" (Appellant’s Br. at 13) — Frank still cannot
prevail because he cannot show that the alleged error in the indict-
ment constitutes a fatal variance so as to warrant reversal of his con-
viction.
"When the government, through its presentation of evidence and/or
its argument, or the district court, through its instructions to the jury,
or both, broadens the bases for conviction beyond those charged in
the indictment, a constructive amendment — sometimes referred to as
a fatal variance — occurs." United States v. Randall, 171 F.3d 195,
203 (4th Cir. 1999) (internal citation omitted), cert. denied, Randall
v. United States, 121 S. Ct. 248 (Oct. 2, 2000). "However, not all dif-
ferences between an indictment and the proof offered at trial, rise to
the ‘fatal’ level of a constructive amendment. When different evi-
dence is presented at trial but the evidence does not alter the crime
charged in the indictment, a mere variance occurs." Id. (internal cita-
tions omitted). "A mere variance does not violate a defendant’s con-
stitutional rights unless it prejudices the defendant either by surprising
him at trial and hindering the preparation of his defense, or by expos-
ing him to the danger of a second prosecution for the same offense."
Id. In other words, "[a] variance constitutes a legitimate grounds for
reversal only if the appellant shows that the variance infringed his
‘substantial rights’ and thereby resulted in actual prejudice." United
States v. Kennedy, 32 F.3d 876, 883 (4th Cir. 1994) (internal citation
omitted).7
6Although Frank argues in his brief that he did not challenge his tax
assessment until 1985, the record discloses that he reached a settlement
with the IRS in 1984.
7In the context of indictments that purportedly allege the wrong start-
ing date for a conspiracy, for example, we have held that "the trier of fact
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Frank’s indictment charged that "[b]eginning in or about Septem-
ber 1981 up until March 1995," Frank deliberately concealed his
assets to avoid paying taxes that he owed from 1974 to 1977. (J.A.
at 56.) At trial, the Government offered evidence dating back to 1981
showing that Frank was aware that the IRS was seeking a civil judg-
ment against him and that Frank made large purchases in cash. This
evidence is consistent with the Government’s argument that Frank
deliberately was attempting to conceal his assets from the IRS. The
Government also offered evidence that Frank concealed his assets
after 1984 by means of large cash payments and purchases through
corporate and third party names. For example, the Government
offered evidence that Frank paid over $25,000 in cash to James Mel-
ton in 1989 to purchase property from Melton’s employer and that
Frank told Melton that "he didn’t write checks. He had had a problem
somewhere else before and didn’t leave a paper trail for nobody."
(J.A. at 979-83.) The Government also offered evidence of large cash
payments for a dump truck, bulldozer, and contracting work in 1991
and 1992 and of payments for Frank’s pool and garage in 1991
through 1994 that either were made in cash or paid by Frank’s com-
pany, FJT Enterprises. There also was evidence that in 1997, Frank
paid $25,000 for property that was deeded to Christopher Masiarczyk
and Robert Balma.
In light of the evidence presented at trial concerning Frank’s post-
1984 tax evasion, we have no difficulty concluding that the jury had
sufficient evidence from which to convict Frank of tax evasion, even
if his tax assessment did not become legally due until after his 1984
settlement. Moreover, aside from bare conclusory allegations, Frank
has failed to articulate, let alone show, any actual prejudice arising
from the purported variance between the indictment and the actual
may find that the starting date of a conspiracy begins anytime in the time
window alleged, so long as the time frame alleged places the defendant
sufficiently on notice of the acts with which he is charged." United States
v. Queen, 132 F.3d 991, 999 (4th Cir. 1997) (rejecting appellant’s argu-
ment that the district court erred in instructing the jury that it could find
a conspiracy beginning anytime within or reasonably near the time win-
dow alleged in the indictment because "Queen was sufficiently on notice
of both of the charges against him to enable him to defend himself effec-
tively and to prevent reprosecution for the same offense").
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evidence at trial. See Randall, 171 F.3d at 203. Accordingly, because
the Government presented sufficient evidence of Frank’s post-1984
tax evasion and because Frank cannot point to any prejudice if the
indictment improperly included pre-1984 conduct, we conclude that
the district court did not commit reversible error in denying Frank’s
motion for judgment of acquittal as to Frank’s tax evasion count.
III.
Frank and Linda next argue that the district court erred in admitting
and excluding certain evidence at trial. In particular, Frank and Linda
argue that a summary report detailing Frank and Linda’s insurance
payments for various vehicles should not have been admitted because
the report contained inaccurate information and that the district court
should not have admitted evidence of Frank’s prior tax conviction
because that evidence prejudiced Linda.8 We review the district
court’s decision to admit or exclude evidence for abuse of discretion.
See United States v. Hassouneh, 199 F.3d 175, 182 (4th Cir. 2000).
8Frank and Linda also argue that the district court erred in preventing
them from offering tax returns from various corporations that they oper-
ated. The district court refused to admit these records because they were
beyond the scope of direct examination. Frank and Linda did not attempt
to introduce these records during their case-in-chief even though the dis-
trict court explicitly left open that option. Frank and Linda also assert
that the district court should not have admitted evidence showing their
failure to withhold taxes for their dancers because, they argue, their
dancers were independent contractors whose income was not subject to
withholding. Even if Frank and Linda believed that the dancers were
independent contractors, they still would have been required to file Form
1099s for the dancers if the dancers’ income came into the corporation
before being paid out. Frank and Linda also failed to withhold taxes for
their managers and bartenders, who are not independent contractors.
Because the evidence that Frank and Linda did not withhold taxes for
their dancers was relevant to show a pattern of conduct and was consis-
tent with their general failure to observe the tax laws with respect to their
club employees, the district court did not abuse its discretion in admitting
this evidence.
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A. Inaccurate Summary Report
Frank and Linda argue that the district court abused its discretion
in admitting a report that allegedly contained inaccuracies. The report
in question — a summary report presented during the testimony of a
State Farm Insurance representative to show that Frank and Linda
paid $12,776.12 in insurance payments over four years for various
insured vehicles — contained information relating to vehicles that
were owned by Frank’s father or that may have been leased. At trial,
defense counsel objected to the report on the ground that "there are
a number of inaccuracies in this thing based on my inspection of what
she brought with her." (J.A. at 609.) The district court, noting that the
inaccuracies would "go to the weight" rather than the "admissibility"
and that defense counsel "can cross-examine [the witness] about it,"
(J.A. at 609-10), permitted the witness to testify about the summary.
Defense counsel thereafter thoroughly cross-examined the witness as
to the inaccuracies.
We agree with the district court that Frank and Linda’s argument
on this issue — that admission of the report prejudiced him because
it contained inaccurate information — goes to weight rather than
admissibility. See United States v. Scholl, 166 F.3d 964, 978-79 (9th
Cir. 1999) (finding no abuse of discretion in admission of Market
Analysis Center (MAC) reports because, among other reasons, "a
party need not prove that business records are accurate before they are
admitted" and "Scholl had the opportunity to attack the reliability of
the MAC reports at trial and did so"), cert. denied, 528 U.S. 873 (Oct.
4, 1999); United States v. Keplinger, 776 F.2d 678, 694-95 (7th Cir.
1985) (finding no abuse of discretion because "[g]enerally, objections
that an exhibit may contain inaccuracies, ambiguities, or omissions go
to the weight and not the admissibility of the evidence"); United
States v. Smallwood, 443 F.2d 535, 540 (8th Cir. 1971) ("The claimed
error in the accuracy of the summaries was fully presented to the jury,
and in our view the relatively few inaccuracies went to the weight of
the evidence and not its admissibility."); cf. United States v. Johnson,
54 F.3d 1150, 1160-61 (4th Cir. 1995) (affirming admission of sum-
mary chart describing organization of drug conspiracy pursuant to
Federal Rule of Evidence 611 because the summary chart aided the
jury in ascertaining the truth and the district court minimized preju-
dice by, among other things, allowing extensive cross-examination
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regarding the basis for the chart); United States v. Bakker, 925 F.2d
728, 736-37 (4th Cir. 1991) (affirming admission of composite tapes
compiling excerpts of a longer broadcast pursuant to Federal Rule of
Evidence 1006 and rejecting objection that the composite tapes were
unrepresentative of the broadcasts because "Bakker’s objection is
misplaced because it goes to the weight to be accorded to the compos-
ite tapes, not their admissibility"). Accordingly, we affirm the district
court’s admission of the summary report.
B. Prior Tax Evasion Conviction
Frank and Linda next argue that admission of Frank’s prior tax
conviction had a prejudicial "spill-over" effect against Linda that
allowed the jury to improperly infer her guilt "simply by her relation-
ship with Appellant Frank." (Appellant’s Br. at 27.) We conclude that
admission of Frank’s prior conviction for tax evasion is not a basis
for reversal. First, defense counsel originally introduced this evi-
dence, initially in an attempt to demonstrate that the IRS fraudulently
obtained Frank’s signature on the tax settlement, and then during the
cross-examination of Timothy Ayers, a business partner of Frank and
Linda’s: "And you remember having a conversation with Frank . . .
where he told you, many years ago even though he was innocent, that
he was found guilty of a tax offense?" (J.A. at 816.) Second, the dis-
trict court gave a specific limiting instruction to the jury on this evi-
dence, instructing that Frank’s prior conviction could be considered
"only in determining whether [Frank] owed a tax debt as alleged in
the indictment" and not "for any purpose, whatsoever, in deciding the
government’s case against [Linda]." (J.A. at 864-65.) Jurors, of
course, are presumed to follow such cautionary instructions. See
United States v. Love, 134 F.3d 595, 603 (4th Cir. 1998). The district
court, therefore, did not abuse its discretion in admitting evidence of
Frank’s prior conviction.9
9Frank and Linda’s argument could be construed as an argument in
favor of severance. Federal Rule of Criminal Procedure 14 provides that
"the court may . . . grant a severance of defendants" if "it appears that
a defendant or the government is prejudiced by a joinder of . . . defen-
dants . . . for trial together." Fed. R. Crim. P. 14. However, "[b]arring
special circumstances, individuals indicted together should be tried
together." United States v. Brugman, 655 F.2d 540, 542 (4th Cir. 1981).
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IV.
Frank and Linda next argue that the district court should have
granted them a new trial because they discovered post-trial that a
juror, Charles Olson, knew some of the Government witnesses and
that Olson had more serious tax problems than he had revealed at voir
dire. We review decisions regarding a motion for a new trial under the
abuse of discretion standard. See McDonough Power Equip., Inc. v.
Greenwood, 464 U.S. 548, 556 (1984) ("Generally, motions for a new
trial are committed to the discretion of the district court.").
Frank and Linda allege that Olson "provided false information
and/or withheld information during the voir dire which, if made
known, would have warranted the exercise of a peremptory strike as
to Olson, rather than on a different juror." (Appellant’s Br. at 28.) At
voir dire, Olson disclosed that the IRS had audited both him and his
company, that penalties were assessed, and that corporate penalties
were ongoing. When the district court asked whether any venire per-
son or immediate family members "now have, or . . . presently antici-
pate having any case or dispute with or claim against the U.S.
In other words, there is a presumption that co-defendants indicted
together will be tried together unless "a joint trial would be so unfairly
prejudicial that a miscarriage of justice would result." United States v.
Williams, 10 F.3d 1070, 1080 (4th Cir. 1993). Thus, the mere fact that
evidence against one or more defendants is stronger or more inflamma-
tory than the evidence against other defendants does not warrant sever-
ance. See United States v. Hall, 93 F.3d 126, 131 (4th Cir. 1996).
Moreover, "[a] defendant making a motion for severance pursuant to
Rule 14 has the burden of demonstrating a strong showing of prejudice,
and it is not enough to simply show that joinder makes for a more diffi-
cult defense." United States v. Goldman, 750 F.2d 1221, 1225 (4th Cir.
1984) (internal citations omitted). Even if the admission of Frank’s prior
conviction made Linda’s defense more difficult, we cannot conclude that
Linda has satisfied her burden of "demonstrating a strong showing of
prejudice" arising from her joint trial with Frank. Id. Consequently, the
district court did not abuse its discretion in denying Linda’s motion for
severance. See United States v. Smith, 44 F.3d 1259, 1267 (4th Cir. 1995)
(stating that the grant or denial of a motion for severance is within the
sound discretion of the district court).
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Government," (J.A. at 203), no one responded, including Olson. The
district court later recited a list of potential witnesses, and Olson
responded that he knew a witness named Daqualante. He did not say
that he knew Anania, Ayers, or IRS agent Ron Fluharty, who were on
the list of witnesses. After trial and before sentencing, Frank and
Linda filed a motion alleging that Olson had not been impartial. They
based this motion upon statements by jury foreperson Lorrell Smith,
who claimed that she had spoken with Olson after the verdict and that
Olson told her that he knew Anania, that he could not believe that he
was picked because he knew so many people in Calhoun County, that
he knew now what Anania was doing, "and that he knew of Tim
Ayers and had known of him for quite awhile." (J.A. at 2485-86.) The
district court, after holding a hearing on this issue, found that "none
of Mr. Olson’s failures to respond were dishonest" and that "he was
neither actually nor impliedly biased against these defendants." (J.A.
at 2499.)
To obtain a new trial based upon a juror’s responses to voir dire
questions, Frank and Linda must demonstrate that the juror failed to
answer honestly a material question and that a correct response would
have provided a basis for a challenge for cause. See Fitzgerald v.
Greene, 150 F.3d 357, 362 (4th Cir. 1998). "The motives for conceal-
ing information may vary, but only those reasons that affect a juror’s
impartiality can truly be said to affect the fairness of a trial." McDo-
nough, 464 U.S. at 556. However, "[f]ailure to satisfy the require-
ments of McDonough does not end the court’s inquiry . . . when the
petitioner also asserts a general Sixth Amendment claim challenging
the partiality of a juror based upon additional circumstances occurring
outside the voir dire." Fitzgerald, 150 F.3d at 362-63. Rather, "re-
gardless of whether a juror’s answer is honest or dishonest, it remains
within the trial court’s option, in determining whether a jury was
biased, to order a post-trial hearing at which the movant has the
opportunity to demonstrate actual bias, or in exceptional circum-
stances, that the facts are such that bias can be inferred." Id. Implied
bias "is limited in application to those extreme situations where the
relationship between a prospective juror and some aspect of the litiga-
tion is such that it is highly unlikely that the average person could
remain impartial in his deliberations under the circumstances." Id. at
365 (internal quotation marks omitted).
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In the present case, the district court applied the McDonough stan-
dards at the post-trial hearing and found that Olson had not been dis-
honest and that Olson was not actually or impliedly biased against
Frank and Linda. The record supports the district court’s findings.
First, Olson testified at the post-trial hearing that he knew an IRS
agent named Ron Fluharty, but that he was "quite sure" that the IRS
agent named Ron Fluharty who testified was "not the same one." (J.A.
at 2423.) Second, he testified that he knew of Ayers, but did not know
him and had never talked to him; notably, the district court phrased
its voir dire question as whether the venire members knew potential
witnesses such as Ayers. Moreover, to the extent that Olson expressed
an opinion of Ayers to Smith, he told Smith that he thought Ayers
may have been incompetent. Third, although Frank and Linda argue
that Olson failed to disclose the full extent of his tax problems at voir
dire, the district court found that he had fully disclosed his tax prob-
lems in his jury questionnaire, and the record reveals that Olson
addressed the relevant details of his tax problems at voir dire, disclos-
ing that he and his corporation had been audited, that he had paid pen-
alties, and that his corporate penalties were ongoing.
As to Anania, Olson testified at the post-trial hearing that he knew
Anania, but only under the name of "Joe Anney." (J.A. at 2428.) He
testified that he grew up with Anney and went to school with him
about fifty years ago, but that he had not seen him in twenty to
twenty-five years. He stated that he had heard about Anney through
press clippings about Anney’s clubs throughout the years but that he
did not recognize Anania at the time of voir dire, nor did he immedi-
ately recognize Anania as Anney when Anania testified because "[h]e
didn’t look anything like he did the last time [Olson] saw him." (J.A.
at 2444.) Olson did eventually recognize Anania during Anania’s tes-
timony, but Olson did not inform the district court because he did not
think it was important. Olson stated that he did not give Anania any
more credibility than he otherwise would have had he not known him,
and, in fact, Olson testified that he did not believe Anania very much
at all.
It is true that Olson actually knew Anania, albeit decades ago, and
that Olson did not disclose his relationship with Anania after realizing
that Anania was the same man he had known fifty years ago in
school. And, Olson’s explanation that he did not realize that Anania
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was Anney is arguably undermined by the fact that Olson testified
that he had kept up with Anney through news clippings that he had
seen throughout the years. The district court, however, had the oppor-
tunity to see Olson and Smith firsthand and to judge their credibility,
and it explicitly found that Olson was not dishonest and that his
explanations were reasonable. There is no evidence as to whether the
press clippings to which Olson referred involved "Joe Anney" or "Joe
Anania" and, thus, Olson’s recollection of the news clippings does not
necessarily undermine Olson’s credibility. Consequently, Olson’s
explanation is not implausible. Indeed, Olson explicitly stated that he
did not give Anania’s testimony any extra weight or much weight at
all, and that his relationship with Anania did not affect his ability to
judge the case. In light of these facts, and absent a showing of actual
or implied bias on the part of Olson, we cannot conclude that the dis-
trict court abused its discretion in denying a new trial based upon
Olson’s nondisclosures. See Fitzgerald, 150 F.3d at 364 (finding no
bias where district court properly held a hearing and the juror "un-
equivocally stated . . . that his granddaughter’s molestation [which he
had not disclosed at voir dire] had no effect on his voting to convict
or sentence Fitzgerald for any of his crimes").
V.
Frank and Linda next argue that their constitutional rights were
violated when a Government witness, Agent Harper, gave false evi-
dence before the grand jury through her testimony. Because Frank
and Linda did not raise this argument before the district court, we
review this claim for plain error.10 See United States v. Hawkins, 76
10Frank and Linda submit that the standard of review is de novo
because "this represent[s] a claim of a constitutional violation, through
prejudicial misconduct on the part of the government." (Appellant’s Br.
at 34.) We disagree. See United States v. Ferguson, 211 F.3d 878, 886
(5th Cir. 2000) (reviewing allegation of constitutional error for plain
error because Ferguson did not raise the issue below), cert. denied, 121
S. Ct. 258 (Oct. 2, 2000); United States v. Means, 133 F.3d 444, 447 (6th
Cir. 1998) ("The defendant raises a constitutional challenge to his con-
viction, which, as a question of law, we generally would review de novo.
However, . . . this issue was never raised in the district court. The usual
rule in this court is that such a failure precludes this court’s consideration
of the issue on appeal." (internal citation omitted)).
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F.3d 545, 552 (4th Cir. 1996). "[W]e may only reverse a conviction
for plain error if the defendant establishes the following: (1) that an
error occurred, (2) that it is plain, and (3) that the error affected his
substantial rights." United States v. Richardson, ___ F.3d ___, No.
97-4101, 2000 WL 1729654, at *4 (4th Cir. Nov. 22, 2000). "More-
over, Rule 52(b) leaves the decision to correct the forfeited error
within the sound discretion of the court of appeals, and the court
should not exercise that discretion unless the error seriously affects
the fairness, integrity or public reputation of judicial proceedings." Id.
(internal quotation marks and alterations omitted).
Paragraph 38 of the indictment describes as an overt act of the con-
spiracy that "[o]n or about August 13, 1995," Frank "burned records
subject to discovery by federal agents with the Internal Revenue Ser-
vice, who were in Pensacola at the time." (J.A. at 54.) Frank and
Linda argue that the basis for this information — the grand jury testi-
mony of Harper — was false because Harper had no actual knowl-
edge of this incident and, instead, relied upon second-hand
information that Harper did not verify. Frank and Linda argue that
other agents who were in Pensacola and who would have seen the
burning of these records, had it actually occurred, never mentioned it,
and, therefore, Harper’s testimony that Frank burned the records must
be false. At trial, Harper conceded that she did not witness the burn-
ing of documents and that the burning of documents was not men-
tioned by detectives at the scene. She stated that she told the grand
jury about the burning of documents because "[t]hat’s what [she]
believed happened" based upon what she heard from Detective Mike
Simmons, who apparently was not at the scene.11 (J.A. at 1756.)
"Relief from an erroneous indictment after a case has been decided
by a petit jury is rarely granted." United States v. McDonald, 61 F.3d
11As evidence of "Agent Harper’s propensity in submitting false state-
ments in order to get what she wants," (Reply Br. at 17), Frank and Linda
point to Harper’s testimony conceding that she was not on the scene
where various evidence was seized even though she swore to the magis-
trate when she returned various property that she was the one who actu-
ally took the items. Harper testified that she did not seize the evidence
but that she swore that she had "[b]ecause the seizing officer took it and
gave the evidence to [her]." (J.A. at 1761.)
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248, 252 (4th Cir. 1995), overruled on other grounds by United States
v. Wilson, 205 F.3d 720 (4th Cir. 2000). "Only a defect so fundamen-
tal that it causes the grand jury no longer to be a grand jury, or the
indictment no longer to be an indictment, gives rise to the constitu-
tional right not to be tried." Id. (internal quotation marks omitted).
Consequently, "[w]e will not hear a challenge to the reliability or
competence of the evidence presented to the grand jury, and the mere
fact that evidence itself is unreliable is not sufficient to require dis-
missal of the indictment." Id. (internal quotation marks omitted). In
United States v. Mechanik, 475 U.S. 66 (1986), the Supreme Court
addressed whether the joint testimony of witnesses before the grand
jury, in violation of Fed. R. Crim. P. 6(d), warranted reversal of a
conviction even though the trial jury found the defendants guilty
beyond a reasonable doubt. The Court assumed that the joint testi-
mony before the grand jury was improper but concluded that "the
supervening jury verdict made reversal of the conviction and dis-
missal of the indictment inappropriate." Id. at 70. The Court stated
that "the petit jury’s subsequent guilty verdict means not only that
there was probable cause to believe that the defendants were guilty as
charged, but also that they are in fact guilty as charged beyond a rea-
sonable doubt. Measured by the petit jury’s verdict, then, any error in
the grand jury proceeding connected with the charging decision was
harmless beyond a reasonable doubt." Id.
Applying these standards to this case, we conclude that even if
Harper’s grand jury testimony was inaccurate or false, that falsity pro-
vides no basis for reversing Frank and Linda’s convictions. First,
although Frank and Linda assert that Harper’s false grand jury testi-
mony unduly prejudiced them, defense counsel thoroughly cross-
examined Harper at trial on this issue. Second, even if Harper’s grand
jury testimony entirely relied upon second-hand information, grand
jury testimony can be based upon hearsay. See Costello v. United
States, 350 U.S. 359, 363-64 (1956) (rejecting the argument that a
grand jury may not rely on hearsay evidence); see also United States
v. Newcomb, 488 F.2d 190, 192 (5th Cir. 1974) (stating that "an
indictment based exclusively on hearsay evidence is not constitution-
ally invalid and . . . a defendant is not entitled to litigate the suffi-
ciency of the evidence presented to the grand jury"). Third, because
the petit jury subsequently convicted Frank and Linda beyond a rea-
sonable doubt, any error in their grand jury proceedings is harmless.
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See Mechanik, 475 U.S. at 73 (stating that the "petit jury’s verdict
rendered harmless any conceivable error in the charging decision that
might have flowed from the violation"); see also Bank of Nova Scotia
v. United States, 487 U.S. 250, 256 (1988) (stating that an indictment
may be quashed because of prosecutorial misconduct only where the
improper conduct "substantially influenced the grand jury’s decision
to indict or if there is grave doubt that the decision to indict was free
from the substantial influence of such violations" (internal quotation
marks omitted)); United States v. Colon-Munoz, 192 F.3d 210, 218-19
(1st Cir. 1999) (relying upon Mechanik and stating that "any error in
the charging decision of the grand jury was rendered harmless by the
verdict and Colon cannot claim that [the presence of Gil, the interim
U.S. Attorney who may not have been properly appointed] before the
grand jury entitles him to a dismissal of the indictment."), cert.
denied, 120 S. Ct. 1559 (Apr. 3, 2000). We conclude, therefore, that
even if Harper lied before the grand jury, Frank and Linda have nev-
ertheless failed to establish a sufficient basis to reverse their convic-
tions.
VI.
Finally, Linda argues that the district court erred in finding that
Linda’s role in the offense warranted a four-point enhancement
because she was not an organizer or leader in the criminal activity.
We review the district court’s application of a role enhancement for
clear error. See United States v. Sheffer, 896 F.2d 842, 846 (4th Cir.
1990) ("The trial court’s determination that the defendant played an
aggravating role in the offense is essentially factual and therefore is
subject to the ‘clearly erroneous’ standard of review." (internal cita-
tions omitted)).
Section 3B1.1 of the Sentencing Guidelines provides that "[i]f the
defendant was an organizer or leader of a criminal activity that
involved five or more participants or was otherwise extensive,
increase by 4 levels."12 U.S.S.G. § 3B1.1(a) (1998). The application
note states that
12Linda does not argue that the criminal activity involved fewer than
five individuals.
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[t]o qualify for an adjustment under this section, the defen-
dant must have been the organizer, leader, manager, or
supervisor of one or more other participants. An upward
departure may be warranted, however, in the case of a
defendant who did not organize, lead, manage, or supervise
another participant, but who nevertheless exercised manage-
ment responsibility over the property, assets, or activities of
a criminal organization.
U.S.S.G. § 3B1.1(a) comment. (n.2). In determining whether a defen-
dant qualifies for this adjustment, we look to several factors: (1) the
exercise of decision making authority; (2) the nature and participation
in the commission of the offense; (3) the recruitment of accomplices;
(4) the claimed right to a larger share of the fruits of the crime; (5)
the degree of participation in planning or organizing the offense; (6)
the nature and scope of the illegal activity; and (7) the degree of con-
trol and authority exercised over others. See U.S.S.G. § 3B1.1 com-
ment. (n.4). The district court found that
[t]he business enterprise here of running these clubs was run
by [Frank and Linda] and they had very different roles. To
call [Linda] a mere bookkeeper underrates her abilities and
her position within the structure of this criminal activity.
She kept these books and kept them in a manner that would
assist the defendants in preventing the IRS from being able
to discover that they were, in fact, living as a married couple
in West Virginia operating these clubs . . . [and also notable
was] the fact that the money was kept at the house in cash.
Her role was extremely significant and amounted to a man-
agement or leadership position when you consider that she
was, in fact, a business partner with some of the other par-
ticipants in this criminal activity, that she had a right to a
larger share of the fruits of the crime here, and that she was
exerting control and authority over those to whom she pro-
vided financial records pertaining to their income.
(J.A. at 2614.) Accordingly, the district court increased Linda’s
offense level by four levels, and she was sentenced to fifty months
imprisonment on each count, to be served concurrently.
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There was evidence to support the district court’s conclusion that
Linda had a leadership position in the criminal activity that substan-
tially related to Frank and Linda’s various financial transactions. For
example, Frank testified that Linda controlled the books and that she,
rather than he, knew how much money the clubs brought in every
year. Frank’s testimony established that Linda’s involvement in their
financial endeavors was more than as a passive bookkepper. Frank
testified, for example, that "I let Linda take care of the bills, and I
have spending money in my pocket" (J.A. at 1998), and that he had
no recollection of certain IRS collection notices because "[w]hen I’d
get this kind of stuff, I’d just give them to Linda." (J.A. at 1949.)
Frank’s testimony supports the conclusion that Linda "exercised man-
agement responsibility over the property, assets, or activities of a
criminal organization." U.S.S.G. § 3B1.1(a) comment. (n.2).
Although Linda argues that she was a mere bookkeeper, the district
court explicitly found that she was more than that, and that Frank left
"all of the business and financial aspects of the enterprise to [Linda]
and that she kept the books." (J.A. at 2615.) In light of the evidence,
we cannot conclude that the district court clearly erred in its finding
that Linda played a "leadership role" sufficient to warrant a three-
level enhancement.
VII.
In conclusion, the district court did not commit reversible error in
denying Frank and Linda’s motions for judgment of acquittal based
upon insufficiency of the evidence, denying and excluding certain
evidence at trial, rejecting Frank and Linda’s bid for a new trial based
upon juror partiality, denying Frank and Linda’s due process chal-
lenge based upon allegedly false evidence presented to the grand jury,
and enhancing Linda’s sentence because she was a leader, manager,
or organizer in the criminal enterprise. We, therefore, affirm Frank
and Linda’s convictions and Linda’s sentence.
AFFIRMED
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