U.S. v. Kaplan

05-5531
U.S. v. Kaplan
UNITED STATES COURT OF APPEALS 1
2
FOR THE SECOND CIRCUIT 3
4
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6
August Term 2006 7
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Argued: November 7, 2006 Decided: April 11, 2007 9
Errata Filed: April 30, 2007) 10
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Docket No. 05-5531-cr 12
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UNITED STATES OF AMERICA, 16
17
Appellee, 18
19
- against - 20
21
SOLOMON KAPLAN 22
Defendant-Appellant. 23
24
--------------------------------------------------X 25
26
Before: FEINBERG, LEVAL, and CABRANES, Circuit Judges. 27
28
Appeal from a judgment of conviction, entered following a 29
jury trial in the United States District Court for the Southern 30
District of New York (Batts, J.), on all seven counts of an 31
indictment charging conspiracy, mail fraud, wire fraud, making 32
false statements in connection with health care matters, health 33
care fraud, witness tampering, and making false statements to the 34
FBI. 35
36
Affirmed in part, vacated in part, and remanded. 37
38
ZACHARY MARGULIS-OHNUMA, New York, New York, for 39
Defendant-Appellant 40
41
MIRIAM E. ROCAH, Assistant United States 42
Attorney, (Michael J. Garcia, United States 43
Attorney, Timothy Treanor and Jonathan S. 44
Kolodner, Assistant United States Attorneys, 45
on the brief), United States Attorney’s 46

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1 The indictment alleged that the objects of the conspiracy
were mail fraud, wire fraud, making false statements relating to
health care matters, health care fraud, and witness tampering.
-2-
Office for the Southern District of New 1
York, for Appellee. 2
FEINBERG, Circuit Judge: 3
Solomon Kaplan appeals from a judgment of conviction, 4
entered following a jury trial in the United States District 5
Court for the Southern District of New York (Batts, J.), on all 6
seven counts of an indictment charging Kaplan’s participation in 7
an insurance fraud scheme (Counts One through Five) and Kaplan’s 8
interference with an investigation into that scheme (Counts Six 9
and Seven). Specifically, the indictment charged Kaplan with one 10
count of conspiracy1 in violation of 18 U.S.C. § 371 (Count One); 11
two counts of mail fraud in violation of 18 U.S.C. §§ 1341 and 2 12
(Counts Two and Three); one count of making false statements in 13
connection with health care matters in violation of 18 U.S.C. §§ 14
1035 and 2 (Count Four); one count of health care fraud in 15
violation of 18 U.S.C. §§ 1347 and 2 (Count Five); one count of 16
witness tampering in violation of 18 U.S.C. §§ 1512(b) and 2 17
(Count Six); and one count of making false statements to an agent 18
of the Federal Bureau of Investigation (“FBI”) in violation of 18 19
U.S.C. § 1001 (Count Seven). 20
On appeal, Kaplan’s principal contentions are that (I) his 21
conviction on the insurance fraud counts (Counts One through 22

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Five) must be vacated because the district court erred in 1
admitting (A) lay opinion testimony regarding his knowledge of 2
the fraud and (B) testimony concerning others’ knowledge of the 3
fraud and (II) his conviction on the interference counts (Counts 4
Six and Seven) must be vacated because (A) the district court’s 5
jury instruction on Count Six was erroneous in light of the 6
Supreme Court’s supervening decision in Arthur Andersen LLP v. 7
United States, 544 U.S. 696 (2005); (B) the district court 8
improperly gave a conscious avoidance jury instruction on Count 9
Six; and (C) variance between a bill of particulars and proof at 10
trial concerning Count Seven constituted a constructive amendment 11
of the indictment or a prejudicial variance. 12
For the reasons set forth below, we agree that Kaplan’s 13
conviction on Counts One through Five must be vacated because the 14
district court erred in admitting, without adequate foundation, 15
lay opinion testimony regarding Kaplan’s knowledge of the fraud 16
and testimony regarding others’ knowledge of the fraud, and that 17
at least the first of these errors was not harmless. However, we 18
affirm his conviction on Counts Six and Seven because these 19
evidentiary errors were harmless as to those counts, which relied 20
on strong independent evidence of the crimes charged in those 21
counts, and because we find no merit in Kaplan’s other arguments 22
on appeal. The case is remanded for further proceedings 23
consistent with this opinion. 24

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BACKGROUND 1
Viewed in the light most favorable to the Government, see 2
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979), the evidence 3
showed the following. 4
Josef Sherman, a medical doctor, and his brother, Yevgeny 5
Sherman, operated a medical clinic in Brooklyn, New York (the 6
“Clinic”). The Clinic hired “runners” to recruit patients by 7
staging automobile accidents and identifying individuals who had 8
been in legitimate accidents but were willing to exaggerate their 9
injuries. At the Clinic, these accident participants received 10
unnecessary treatment for their feigned injuries and were 11
compensated with a kickback. The Clinic then submitted 12
fraudulent insurance claims for medical expenses to collect money 13
under New York State’s no-fault insurance law. 14
The accident participants were also referred to a 15
cooperating law office, which submitted on the participants’ 16
behalf false or inflated insurance claims for bodily injury. 17
From January 2000 until July 30, 2001, most of the Clinic’s cases 18
were referred to a law office (the “Law Office”) operated in the 19
name of Alexander Galkovich, a lawyer hired by the Shermans and 20
their associate Gennady “Gene” Medvedovsky to serve as counsel of 21
record in the referred cases. The accident participants signed 22
a retainer agreement providing that the Law Office received one- 23
third of any insurance settlement as well as expenses. 24

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Medvedovsky, although not an attorney, managed the Law Office on 1
behalf of the Shermans through a management company called 2
Starlin Executive Management. Galkovich paid almost all of the 3
proceeds he received from the insurance company settlements to 4
Starlin Management, and received $1,000 per week as salary and 5
occasional bonuses. The Shermans and Medvedovsky extracted the 6
insurance proceeds from the law office principally by submitting 7
to Starlin Management fraudulent bills from fictitious entities 8
or by paying themselves salaries from Starlin Management. 9
By 2001, the Law Office had more than 3,000 active cases, 10
and was receiving approximately 80 to 200 new cases per month, a 11
significant portion of which came from the Sherman Clinic. 12
Approximately five to 10 percent of the cases at the Law Office 13
resulted from staged accidents, and 60 to 70 percent of the cases 14
involved clients who exaggerated or faked the injuries. 15
In July 2001, Galkovich was arrested by the FBI and charged 16
with filing false and fraudulent claims and coaching clients to 17
lie to the insurance companies. Because Galkovich thus stood to 18
lose his law license, the Shermans and Medvedovsky sought a 19
replacement to serve as attorney-of-record in the fraudulent 20
cases. They settled on Kaplan, with whom they were familiar 21
because a few of the Clinic’s cases had previously been referred 22
to him. An employee of the Clinic, Alexander Burman, testified 23
that the cases referred to Kaplan were those that had been 24

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rejected by other lawyers because they were considered too 1
obviously fraudulent. 2
In September 2001, Kaplan began representing 1,200 of 3
Galkovich’s 3,000 clients. The Shermans and Medvedovsky, worried 4
that the transfer of all 3,000 cases from Galkovich to Kaplan 5
would look suspicious, arranged for Kaplan to formally purchase 6
the law firm from Galkovich. To make the deal appear legitimate, 7
they hired a lawyer to draft a contract and conduct a closing, 8
and Kaplan wrote several checks to Galkovich totaling $50,000, 9
including a $20,000 check at the closing. But at least some of 10
the money came from the Shermans and Medvedovsky and was later 11
returned to them by Galkovich. Thus, the Shermans and 12
Medvedovsky essentially bought the Law Office from themselves, 13
but structured the transaction to look as if Kaplan had bought it 14
from Galkovich. 15
Galkovich testified that on the way to the closing in 16
October 2001, Kaplan and Galkovich discussed the sale of the Law 17
Office, and Kaplan stated that “he had handled cases like this 18
before,” which Galkovich understood to mean that Kaplan had 19
previously handled fake accident cases. 20
The Law Office continued to operate much as it had before, 21
with Kaplan now formally representing almost all of Galkovich’s 22
3000 clients. Medvedovsky and others, including Emik Aguronov, 23
who was responsible for drafting false medical narratives to be 24

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submitted to insurance companies on behalf of clients seeking 1
settlements, remained. Medvedovsky formed a new entity called 2
Prostaff Support Services, Inc., which performed the same 3
functions that Starlin Management had. From October 2001 through 4
March 2002, the Law Office had revenues of approximately 5
$892,000. The proceeds of the fraud were transferred to 6
Medvedovsky and the Shermans through Prostaff, which was paid 7
over $100,000 per month to “manage” the Law Office. Kaplan 8
received approximately $74,000 in payments from the Law Office. 9
Kaplan, the Shermans, and Medvedovsky all agreed that Kaplan 10
would stay away from the Law Office and appear only to sign 11
checks and for essential meetings. A photograph of Kaplan’s 12
office at the Law Office, Kaplan’s appointment book, and the 13
testimony of FBI Special Agent Rothe revealed that Kaplan was 14
rarely present at the Law Office. 15
Following the sale of the Law Office to Kaplan, Galkovich 16
began cooperating with the FBI. Between approximately December 17
27, 2001 and February 22, 2002, Galkovich recorded his 18
conversations with the Shermans, Medvedovsky, and Kaplan on 19
approximately 10 separate occasions. In addition to general 20
discussions about the operations of the Law Office, the 21
conversations recorded by Galkovich detailed the efforts by the 22
Shermans, Medvedovsky, and Kaplan to prevent Galkovich from 23
cooperating with law enforcement authorities in its investigation 24

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of the Sherman Clinic and the Law Office. Specifically, after 1
Galkovich informed his co-conspirators that he had been arrested 2
and that the FBI had inquired about the Shermans, a meeting was 3
arranged with Galkovich on January 8, 2002. Medvedvosky told 4
Galkovich that the purpose of the meeting was to “sit down and 5
decide everything” about Galkovich’s case. Josef Sherman and 6
Gene Medvedovsky initially met with Galkovich alone and 7
questioned him about the statement he had given to the FBI at the 8
time of his arrest. Later, at Galkovich’s request, Kaplan joined 9
the meeting, and Galkovich told Kaplan that they needed to 10
discuss the “transition of my practice to yours” and “this thing 11
that I’m going to need for . . . possibly for court or possibly 12
for the Disciplinary Committee.” Medvedovsky, Sherman, and 13
Kaplan suggested a variety of false stories to explain the Law 14
Office transfer. 15
In March 2002, Kaplan, the Shermans, and Medvedovsky were 16
arrested by the FBI. Immediately following his arrest, Kaplan 17
agreed to be interviewed by the FBI. During that interview, 18
Kaplan made a number of statements that the Government contends 19
were false, including that in August 2001 he was introduced to 20
Galkovich and Medvedovsky by a Vladimir Scheckman; that, as part 21
of his purchase of the Law Office, he was to receive only 1,000 22
files; that he did not recall who gave him the $20,000 check used 23
to purchase the Law Office; that the Law Office was sold to him 24

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for $120,000; that he was assured by Medvedovsky and Galkovich 1
that the charges against Galkovich “meant nothing because 2
Galkovich had done nothing wrong”; that he “just stopped by” the 3
January 8 meeting between Galkovich, Medvedovsky, and Sherman 4
without planning in advance to participate; and that he did not 5
take the conversation on January 8 “seriously” and they were just 6
“joking around.” 7
In August 2002, Josef Sherman, Eugene Sherman, and 8
Medvedovsky pled guilty to a three-count information charging 9
them with conspiracy, mail fraud, and witness tampering. Kaplan 10
was tried on the seven-count indictment against him described 11
above. After an approximately two-week trial, the jury found 12
Kaplan guilty on all counts. In August 2005, the district court 13
sentenced Kaplan principally to 27 months of imprisonment, three 14
years of supervised release, and $200,000 in restitution, but 15
granted bail pending appeal pursuant to 18 U.S.C. § 3143(b). 16
This appeal followed. 17
18
DISCUSSION 19
I. Counts One through Five: The Insurance Fraud Scheme 20
Turning first to the insurance fraud counts (Counts One 21
through Five), Kaplan argues on appeal, among other things, that 22
his conviction must be vacated because the district court erred 23
in admitting (A) lay opinion testimony regarding his knowledge of 24

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the fraud and (B) testimony concerning others’ knowledge of the 1
fraud. We consider each of his arguments in turn. 2
A. Admission of Galkovich’s lay opinion testimony 3
The first issue before us concerns the district court’s 4
admission of lay opinion testimony regarding Kaplan’s knowledge 5
of the fraud. Kaplan principally objects to two colloquies in 6
which Galkovich recounted a conversation he and Kaplan had as 7
they drove together to the meeting in October 2001 to finalize 8
the sale of the Law Office to Kaplan. After describing the 9
conversation, Galkovich was allowed to offer his lay opinion 10
testimony regarding Kaplan’s knowledge of the fraud. First, on 11
direct examination, Galkovich testified as follows: 12
[Prosecutor]: Did you have any discussions in the car 13
ride on the way to Davis’ office? 14
15
[Galkovich]: Yes. It was actually the first time we 16
really talked, me and Solomon Kaplan. And I asked him, 17
What do you do? What kind of work do you do? Are you 18
familiar with car accident cases, with the process of 19
settlement and what it takes to settle? And he 20
explained, yes he has handled cases like this before. 21
Yes, he has settled cases before. 22
23
. . . . 24
25
He explained that he has experience with these kinds of 26
cases. 27
28
[Prosecutor]: What did you understand him to mean when 29
he said “these kinds of cases”? 30
31
[Defense Counsel]: Objection. 32
33
The Court: I will allow it. 34
35

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1 The two colloquies quoted above are hereafter frequently
referred to as “Galkovich’s lay opinion testimony.”
-11-
[Galkovich]: That he understood that these were car 1
accident cases where people exaggerated their injuries, 2
where it was crucial to have a narrative report that 3
exaggerated the injuries, that these reports were bought 4
for the best of prices to get the best of reports and 5
that you could settle these cases for very good money in 6
a short period of time. 7
8
Joint Appendix (“JA”) 104-05. Then, on redirect, Galkovich 9
elaborated: 10
[Prosecutor]: What happened in this conversation? 11
12
[Galkovich]: I asked him what experience he had with the 13
car accident cases and generally what kind of experience 14
he had, and he told me that he knew about these car 15
accidents, he knew how to handle these cases, he knew 16
how to maximize potential recoveries, and what is 17
supposed to be in the files, how they are supposed to be 18
worked up. 19
20
[Prosecutor]: What was your purpose in asking Kaplan 21
this question? 22
23
[Galkovich]: I wanted to know how much he knew about the 24
fraudulent office that he is participating in. 25
26
[Prosecutor]: And after you got this answer from Mr. 27
Kaplan, what did you think? 28
29
[Galkovich]: I think he knew exactly what he was getting 30
into. 31
32
JA 138-39.1
33
We review a district court’s decision to admit evidence, 34
including lay opinion testimony, for abuse of discretion. See 35
United States v. Yuri Garcia, 413 F.3d 201, 210 (2d Cir. 2005) 36
(citing Old Chief v. United States, 519 U.S. 172, 174 n.1 37

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(1997)). “A district court ‘abuses’ or ‘exceeds’ the discretion 1
accorded to it when (1) its decision rests on an error of law 2
(such as application of the wrong legal principle) or a clearly 3
erroneous factual finding, or (2) its decision -- though not 4
necessarily the product of a legal error or a clearly erroneous 5
factual funding -- cannot be located within the range of 6
permissible decisions.” Zervos v. Verizon N.Y., Inc., 252 F.3d 7
163, 169 (2d Cir. 2001) (footnotes omitted). 8
The Federal Rules of Evidence, in a sharp departure from the 9
common law, see Asplundh Mfg. Div. v. Benton Harbor Eng'g, 57 10
F.3d 1190, 1195 (3d Cir. 1995) (Becker, J.), permit lay witnesses 11
to testify in the form of opinions to address a problem 12
identified by Judge Learned Hand many years ago: 13
Every judge of experience in the trial of causes has 14
again and again seen the whole story garbled, because of 15
insistence upon a form with which the witness cannot 16
comply, since, like most men, he is unaware of the 17
extent to which inference enters into his perceptions. 18
He is telling the ‘facts’ in the only way that he knows 19
how, and the result of nagging and checking him is often 20
to choke him altogether, which is, indeed, usually its 21
purpose. 22
23
Central R.R. Co. of N.J. v. Monahan, 11 F.2d 212, 214 (2d Cir. 24
1926); see also Yuri Garcia, 413 F.3d at 211 (“eyewitnesses 25
sometimes find it difficult to describe the appearance or 26
relationship of persons, the atmosphere of a place, or the value 27
of an object by reference only to objective facts”). 28
Accordingly, Rule 701 of the Federal Rules of Evidence was 29

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adopted “to accommodate and ameliorate these difficulties by 1
permitting lay witnesses, in appropriate circumstances, to 2
testify in language with which they are comfortable.” 4 Jack B. 3
Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 4
701.02 (Joseph M. McLaughlin ed., 2d ed. 2004). 5
But to ensure that lay opinion testimony is reliable and 6
does not usurp the jury’s role as fact-finder, Rule 701 imposes 7
certain foundation requirements that must be satisfied if such 8
testimony is to be admitted: 9
If the witness is not testifying as an expert, the 10
witness’ testimony in the form of opinions or inferences 11
is limited to those opinions or inferences which are (a) 12
rationally based on the perception of the witness, (b) 13
helpful to a clear understanding of the witness’ 14
testimony or the determination of a fact in issue, and 15
(c) not based on scientific, technical, or other 16
specialized knowledge within the scope of Rule 702. 17
Fed. R. Evid. 701 (2001). In interpreting these requirements, we 18
have observed that (a) the rational-basis requirement “is the 19
familiar requirement of first-hand knowledge or observation,” 20
United States v. Rea, 958 F.2d 1206, 1215 (2d Cir. 1992) (quoting 21
Fed. R. Evid. 701 advisory committee’s note on 1972 Proposed 22
Rules); (b) the helpfulness requirement is principally “designed 23
to provide assurance[] against the admission of opinions which 24
would merely tell the jury what result to reach,” id. (quoting 25
Fed. R. Evid. 704 advisory committee’s note on 1972 Proposed 26
Rules); and (c) the “not based on specialized knowledge” 27
requirement requires that “a lay opinion must be the product of 28

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2 In 2000, after Rea was decided, Rule 701 was amended to
include 701(c).
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reasoning processes familiar to the average person in everyday 1
life,” Yuri Garcia, 413 F.3d at 215.2 See also Fed. R. Evid. 701 2
advisory committee’s note on 2000 amendments. 3
The government’s evidence failed to demonstrate that 4
Galkovich’s lay opinion testimony was “rationally based on the 5
perception of the witness.” Fed R. Evid. 701(a). We note that 6
Rule 701(a) requires that lay opinion testimony be both (a) based 7
on the witness’s first-hand perceptions and (b) rationally 8
derived from those first-hand perceptions. 9
As to the first of these requirements, Rule 701(a) reflects, 10
in part, the Rules’ more general requirement that “[a] witness 11
may not testify to a matter unless evidence is introduced 12
sufficient to support a finding that the witness has personal 13
knowledge of the matter.” Fed. R. Evid. 602; see also United 14
States v. Durham, 464 F.3d 976, 982 (9th Cir. 2006) (“opinion 15
testimony of lay witnesses must be predicated upon concrete facts 16
within their own observation and recollection -- that is facts 17
perceived from their own senses, as distinguished from their 18
opinions or conclusions drawn from such facts” (internal 19
quotation marks omitted)). When Galkovich was asked to 20
articulate the basis for his opinion, he answered, “I based it on 21
the only thing I could base it on, which is my experience there, 22

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what people said about [Kaplan], my conversation with [Kaplan], 1
everything that I [had] been involved in. That’s what my opinion 2
could be based on.” JA 140. Although Galkovich asserts that his 3
testimony was based in part on first-hand experience -- 4
principally his prior experiences at the Law Office and his 5
conversation with Kaplan -- his response was extremely vague. 6
Thus, Galkovich’s testimony failed to show that his opinion as to 7
Kaplan’s knowledge was rationally based on facts he had observed. 8
We are therefore unable to conclude, as we must under Rule 9
701, that the opinion he offered was rationally based on his own 10
perceptions. See Rea, 958 F.2d at 1216 (“When a witness has not 11
identified the objective bases for his opinion, the proffered 12
opinion obviously fails completely to meet the requirements of 13
Rule 701 . . . because there is no way for the court to assess 14
whether it is rationally based on the witness's perceptions . . 15
. .”). We applied this requirement to similar facts in Rea, and 16
observed that lay opinion testimony regarding a defendant’s 17
knowledge will, in most cases, only satisfy the rationally-based 18
requirement if the witness has personal knowledge of one or more 19
“objective factual bases from which it is possible to infer with 20
some confidence that a person knows a given fact . . . 21
includ[ing] what the person was told directly, what he was in a 22
position to see or hear, what statements he himself made to 23
others, conduct in which he engaged, and what his background and 24

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experience were.” 958 F.2d at 1216. Because the Government did 1
not lay an adequate foundation, Galkovich’s testimony expressing 2
his opinion as to Kaplan’s knowledge was not admissible. 3
Accordingly, having found that Galkovich’s lay opinion 4
testimony does not satisfy Rule 701, we conclude that the 5
district court erred in admitting it. 6
B. Admission of Galkovich’s additional testimony regarding 7
his and others’ knowledge 8
9
Kaplan asserts that it was error for the district court to 10
admit Galkovich’s additional testimony regarding Galkovich and 11
others’ knowledge of the fraud as circumstantial evidence of 12
Kaplan’s knowledge. Specifically, Galkovich was permitted to 13
testify that (1) when he first saw the building in which the Law 14
Office was located, he thought, “[t]his is where I am going to 15
get arrested,” JA 84; (2) everyone he spoke with told him not to 16
buy the Law Office, JA 87; (3) the fraud was “done very subtly” 17
because “this whole industry was a very big sham and it was big 18
lies,” JA 90; (4) the fraud was not discussed explicitly because 19
it was “kind of like . . . hear no evil, see no evil,” and he was 20
warned to “be very careful in what you say,” JA 94; (5) 21
“[e]veryone knew what was going on, but you don’t say it,” JA 94; 22
(6) at a Christmas party at the Law Office, Eugene Sherman read 23
a poem about clients getting paid for sham injuries, JA 97; and 24
(7) Steven Rosenberg, a lawyer at the Law Office, quit because he 25

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saw a file with “blatant” fraud, JA 116-19, and Michael Brummer, 1
another lawyer at the Law Office, was “very sensitive and nervous 2
about what was going on in the office” and was “always very 3
nervous when we were skirting the issue of fraud,” JA 119-21. 4
As previously noted, we review a district court’s 5
evidentiary rulings for abuse of discretion. See Yuri Garcia, 6
413 F.3d at 210 (citing Old Chief, 519 U.S. at 174 n.1). Kaplan 7
argues that the district court abused its discretion because the 8
evidence was irrelevant and should have been excluded under Fed. 9
R. Evid. 402 or, in the alternative, that its probative value was 10
substantially outweighed by the danger of unfair prejudice and 11
should have been excluded under Fed. R. Evid. 403. The 12
Government argues that the testimony was relevant to the question 13
of whether Kaplan was aware of the fraud because evidence that 14
the fraud was obvious and widely-known tended to make it more 15
probable that Kaplan also knew about it. As the prosecutor 16
argued to the jury, “[Kaplan] had to know. Everybody else did.” 17
The parties vigorously dispute which of two precedents -- 18
United States v. Patrisso, 262 F.2d 194 (2d Cir. 1958), and 19
United States v. Schultz, 333 F.3d 393 (2d Cir. 2003) -- controls 20
this case. In Patrisso, a truckload of television tubes was 21
hijacked; Patrisso, who knew they were stolen, sold them to 22
Ellis, who also knew; Ellis, in turn, sold them to Postrel; 23
finally, Postrel sold 1,000 of them to defendant Mankes. 262 24

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F.2d at 196. We reversed Mankes’s conviction, finding that the 1
district court had erred by, inter alia, allowing the Government 2
to introduce Postrel’s knowledge of the theft without evidence 3
that Postrel, or anyone else, had communicated that fact to 4
Mankes. Id. at 197. Over four decades later, in Schultz, we 5
distinguished Patrisso in upholding the admission of testimony 6
regarding other individuals’ knowledge of a particular Egyptian 7
law to prove the defendant’s knowledge of the law, finding that 8
it was “relevant both to explain the practice of the industry in 9
which this prosecution arose and to establish what someone with 10
[defendant’s] extended background in the industry probably would 11
know.” 333 F.3d at 416 (quoting United States v. Leo, 941 F.2d 12
181, 197 (3d Cir. 1991)). 13
We believe that Patrisso and Schultz, though they reach 14
different outcomes, stand for the same principle: evidence 15
regarding the knowledge of individuals other than the defendant 16
should be admitted only if there is some other evidence in the 17
record -- concerning, for example, the nature of the fraud or the 18
relationship of the parties -- from which to conclude that the 19
defendant would have the same knowledge. Indeed, the Schultz 20
court noted that the principal difference between the two cases 21
was the nature of the knowledge involved: Schultz was likely to 22
have the same knowledge, the defendant in Patrisso wasn’t. 333 23
F.3d at 416. What of Kaplan? 24

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We turn first to relevance. Relevant evidence includes any 1
“evidence having any tendency to make the existence of any fact 2
that is of consequence to the determination of the action more 3
probable or less probable than it would be without the evidence.” 4
Fed. R. Evid. 401; see also Fed. R. Evid. 402. “Implicit in that 5
definition are two distinct requirements: (1) [t]he evidence must 6
be probative of the proposition it is offered to prove, and (2) 7
the proposition to be proved must be one that is of consequence 8
to the determination of the action.” United States v. Diaz, 878 9
F.2d 608, 614 (2d Cir. 1989). As the Supreme Court has observed, 10
“[t]he Rules’ basic standard of relevance . . . is a liberal 11
one.” Daubert v. Merrell Dow Pharms., 509 U.S. 579, 587 (1993). 12
Despite this liberal standard, we think this evidence had little 13
relevance in the circumstances of Kaplan’s case. Evidence of 14
others’ knowledge would have been highly relevant had it been 15
supplemented by evidence supporting the conclusion that such 16
knowledge was communicated to Kaplan, or that Kaplan had been 17
exposed to the same sources from which these others derived their 18
knowledge of the fraud. In the absence of such evidence, the 19
relevance of others’ knowledge was at best minimal in proving 20
Kaplan’s knowledge. 21
Nor does our inquiry end there -- even as to evidence that 22
is plainly relevant, the trial judge retains discretion to 23
exclude the evidence “if its probative value is substantially 24

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outweighed by the danger of unfair prejudice.” Fed. R. Evid. 1
403. This evidence was of minimal probative value for two 2
reasons. First, as noted, the Government failed to offer 3
evidence that would connect the third parties’ knowledge of the 4
fraud to Kaplan. Under the Government’s own theory of the case, 5
Kaplan spent very little time at the law office and reviewed very 6
few claims directly. Moreover, the Government proffered no 7
evidence that anyone who allegedly was aware of the fraudulent 8
scheme actually had communicated his knowledge to Kaplan. In 9
fact, Galkovich testified that the participants in the fraud were 10
careful not to speak openly about the fraudulent nature of the 11
injury claims: he testified that clients did not directly admit 12
to the firm that their accidents were staged, but rather that 13
“generally it was done very subtly,” and that he did not have 14
explicit conversations about the fraud with clients or other 15
people in the office “because you don’t want to get in trouble . 16
. . It is kind of like, you know, hear no evil, see no evil. . . 17
. Everyone knew what was going on, but you don’t say it.” This 18
was not an office where the illegal nature of the business was 19
necessarily visible and audible to everyone who worked there. In 20
that sense, we think this case is more analogous to Patrisso than 21
to Schultz: as in Patrisso, the Government failed to offer 22
evidence that would explain how defendant Kaplan would have 23
obtained the third parties’ knowledge of the criminal scheme. 24

-- 20 of 41 --

-21-
Second, much of the testimony concerning knowledge of the 1
fraud was so speculative or flawed in other respects that it had 2
little or no probative value. For example, the Government did 3
not lay a proper foundation for Galkovich’s statement that it was 4
“[his] understanding that this whole business was very very -- 5
this whole industry was a very big sham and it was big lies”; 6
Galkovich was not qualified as one having special knowledge of 7
the personal injury “industry,” so it is difficult to see how 8
Galkovich had sufficient knowledge of the industry to testify 9
competently on its criminal nature. See Fed. R. Evid. 602 (“A 10
witness may not testify to a matter unless evidence is introduced 11
sufficient to support a finding that the witness has personal 12
knowledge of the matter.”); Woodman v. WWOR-TV, Inc., 411 F.3d 13
69, 86-87 (2d Cir. 2005) (affirming district court’s decision to 14
exclude plaintiff’s testimony that her age was “well known 15
throughout the industry” on ground that plaintiff was “hardly 16
competent to testify to how others in the broadcast community 17
perceived her age” (citing Fed. R. Evid. 602)). Galkovich’s 18
testimony concerning the alleged knowledge of Rosenberg, another 19
lawyer in the office, was hearsay upon hearsay; Rosenberg 20
allegedly made statements to a secretary in the office, who 21
allegedly told Galkovich, who offered the jury the conclusion 22
that Rosenberg had quit his job because of fraud. Cf. Brown v. 23
Keane, 355 F.3d 82, 90 (2d Cir. 2004) (“An assertion of fact 24

-- 21 of 41 --

-22-
based on conjecture and surmise, to which the declarant would not 1
be allowed to testify if called to the witness box, does not 2
become admissible under an exception to the hearsay rule . . . 3
.”). 4
We conclude, furthermore, that this limited probative value 5
is substantially outweighed by the risk of unfair prejudice. 6
Although relevant evidence is always prejudicial to one side, we 7
conclude that the risk of unfair prejudice here -- in particular, 8
the likelihood that jurors would render a decision on an improper 9
basis by giving this testimony undue weight or improperly holding 10
Kaplan liable because they believed he should have known of the 11
fraud -- was great. The jury was required to draw a series of 12
inferences, unsupported by other evidence, to connect Galkovich’s 13
testimony about his guilty knowledge (and that of others) to 14
Kaplan’s own knowledge, the ultimate issue in the case. Under 15
the circumstances, the District Court should have concluded that 16
whatever slight probative value the testimony might have had was 17
outweighed by the risk that the jury would draw improper 18
inferences from the testimony. Cf. United States v. Ravich, 421 19
F.2d 1196, 1204 n.10 (2d Cir. 1970) (Friendly, J.) (“The length 20
of the chain of inferences necessary to connect the evidence with 21
the ultimate fact to be proved necessarily lessens the probative 22
value of the evidence, and may therefore render it more 23
susceptible to exclusion as unduly confusing, prejudicial, or 24

-- 22 of 41 --

-23-
time-consuming . . . .”). Moreover, Galkovich’s testimony that 1
the entire industry in which Kaplan operated was “a very big sham 2
and it was big lies” was so inflammatory that it should have been 3
excluded as prejudicial under the circumstances. Furthermore, 4
the likelihood of prejudice was increased by the government’s 5
improper use of the evidence of others’ knowledge. In summation, 6
the prosecutor argued, “[Kaplan] had to know. Everybody else 7
did.” As noted, the evidence did not support any such inference. 8
Accordingly, with respect to Galkovich’s testimony regarding 9
his and others’ knowledge of the fraud, we conclude that the risk 10
of unfair prejudice substantially outweighed the limited 11
probative value, and hold that the district court erred in 12
receiving this evidence. 13
C. Harmless error analysis 14
We will reverse on account of these evidentiary errors only 15
if they affect “substantial rights.” See Fed. R. Crim. P. 52(a); 16
Fed. R. Evid. 103(a); Yuri Garcia, 413 F.3d at 210. In Kotteakos 17
v. United States, the Supreme Court set forth the analysis for 18
determining whether a non-constitutional error is harmless: 19
If, when all is said and done, the conviction is sure 20
that the error did not influence the jury, or had but 21
very slight effect, the verdict and the judgment should 22
stand, except perhaps where the departure is from a 23
constitutional norm or a specific command of Congress . 24
. . . But if one cannot say, with fair assurance, after 25
pondering all that happened without stripping the 26
erroneous action from the whole, that the judgment was 27
not substantially swayed by the error, it is impossible 28
to conclude that substantial rights were not affected. 29

-- 23 of 41 --

-24-
The inquiry cannot be merely whether there was enough to 1
support the result, apart from the phase affected by the 2
error. It is rather, even so, whether the error itself 3
had substantial influence. If so, or if one is left in 4
grave doubt, the conviction cannot stand. 5
328 U.S. 750, 764-65 (1946) (footnote omitted); see also United 6
States v. Dukagjini, 326 F.3d 45, 62 (2d Cir. 2003) (holding that 7
non-constitutional error affects substantial rights if it had a 8
“substantial and injurious effect or influence” on the jury’s 9
verdict). But “we are not required to conclude that it could not 10
have had any effect whatever; the error is harmless if we can 11
conclude that that testimony was ‘unimportant in relation to 12
everything else the jury considered on the issue in question, as 13
revealed in the record.’” Rea, 958 F.2d at 1220 (quoting Yates 14
v. Evatt, 500 U.S. 391, 403 (1991)). In conducting this inquiry, 15
we principally consider “(1) the overall strength of the 16
prosecution’s case; (2) the prosecutor’s conduct with respect to 17
the improperly admitted evidence; (3) the importance of the 18
wrongly admitted testimony; and (4) whether such evidence was 19
cumulative of other properly admitted evidence.” Zappulla v. New 20
York, 391 F.3d 462, 468 (2d Cir. 2004). 21
Applying these factors, it is clear that Galkovich’s lay 22
opinion testimony may have “substantially swayed,” Kotteakos, 328 23
U.S. at 765, the jury’s verdict on Counts One through Five 24
because it was not “unimportant in relation to everything else 25

-- 24 of 41 --

3 As a result of this conclusion, we need not evaluate
whether the error in admitting Galkovich’s testimony regarding
others’ knowledge was harmless.
-25-
the jury considered on the issue in question.”3 The Government’s 1
case on those five counts rested principally on the following 2
evidence: the recorded conversations during which Kaplan, 3
Sherman, and Medvedovsky told Galkovich to lie, Kaplan’s sham 4
purchase of the Law Office, Kaplan’s disinterest in cases filed 5
by the Law Office in his name, Kaplan’s absence from the Law 6
Office, the arrangement between the Law Office and Prostaff and 7
Medvedovsky, Kaplan’s receipt of over $70,000 for his limited 8
services at the Law Office, and his false statements upon his 9
arrest. Although the Government may, of course, prove its case 10
exclusively with such circumstantial evidence, their case with 11
respect to those counts was not strong. 12
As a result, and because Kaplan’s knowledge of the fraud was 13
the central disputed issue in the case, Galkovich’s lay opinion 14
testimony was vitally important -- just the sort of evidence that 15
might well sway a jury confronted with a marginal circumstantial 16
case. Our concern is heightened by the Government’s trial 17
strategy with respect to the evidence; the Government repeatedly 18
called the jury’s attention to Galkovich’s lay opinion testimony. 19
In its opening statement, the Government told the jury that 20
“Galkovich will recount for you conversations he had with Kaplan 21
during the sale in which they discussed the fraudulent nature of 22

-- 25 of 41 --

-26-
the law practice.” In its closing, the Government reminded the 1
jury that “Galkovich explained to you that that conversation, and 2
Kaplan’s comments, satisfied Galkovich that Kaplan understood all 3
about the fraud,” and that “[w]e know . . . from the testimony of 4
the witnesses, that Solomon Kaplan knew, undeniably knew, about 5
the fraud at the law firm.” In rebuttal, the Government stated 6
that “[Kaplan] essentially admitted to Galkovich that he knew 7
what was going on at this law office. That was how Galkovich 8
understood what he said. It is not his opinion. He was there. 9
He had the conversation.” And, finally, we observe that this 10
evidence was unique and thus was not cumulative of properly 11
admitted evidence. 12
Because we cannot, in light of the foregoing, say with fair 13
assurance that Galkovich’s lay opinion testimony did not 14
“substantially sway[]” the jury’s verdict as to Counts One, Two, 15
Three, Four, and Five, we conclude that this error was not 16
harmless and therefore vacate Kaplan’s conviction on those 17
counts. 18
19
II. Counts Six and Seven: Interfering with the Investigation 20
We turn next to Kaplan’s arguments challenging his 21
conviction for interfering with the investigation by tampering 22
with a witness (Count Six) and giving false statements to the FBI 23
(Count Seven). He argues on appeal, among other things, that his 24

-- 26 of 41 --

4 We note briefly that to the extent Kaplan argues that
the evidentiary errors discussed in Section I compel us to
vacate his conviction on Counts Six and Seven as well, we reject
his argument. As to Counts Six and Seven, the evidentiary
errors were harmless because the improper evidence was at most
tangential to the theory of Counts Six and Seven. The
Government’s case rested on substantial independent evidence,
including tape recordings of Kaplan’s participation in witness
tampering, Kaplan’s post-arrest statement, and testimony by the
FBI agent who took Kaplan’s post-arrest statement, to support
his conviction. Moreover, the Government did not emphasize the
testimony in issue in urging the jury to convict Kaplan of these
two counts.
-27-
conviction on those two counts must be vacated due to the 1
district court’s witness tampering and conscious avoidance jury 2
instructions and a constructive amendment of, or prejudicial 3
variance from, the indictment, as clarified by a bill of 4
particulars.4 We address his arguments in turn. 5
A. Witness tampering jury instruction 6
Kaplan contends that the district court’s jury instruction 7
on Count Six, alleging witness tampering, is deficient in light 8
of the Supreme Court’s decision in Arthur Andersen LLP v. United 9
States, 544 U.S. 696 (2005), decided after his conviction. 10
Kaplan made no objection to this aspect of the jury 11
instruction. Therefore, we review his argument under the plain 12
error standard of Fed. R. Crim. P. 52(b). We have ruled that 13
when the claim of error derives from a supervening decision 14
altering a settled rule of law in the Circuit, as it does here, 15
the claimed error should be assessed under a standard of 16
“modified plain-error.” See United States v. Viola, 35 F.3d 37, 17

-- 27 of 41 --

5 The Government argues that the Supreme Court’s decision
in Johnson v. United States, 520 U.S. 461 (1997), requires that
this Court abandon its “modified plain-error” test. We need not
address the merits of this argument because we find that, even
under the modified plain error test, Kaplan is not entitled to
have his witness tampering conviction overturned.
-28-
41-44 (2d Cir. 1994). Ordinarily, the defendant asserting plain 1
error bears the burden of persuasion as to prejudice, but under 2
our “modified plain-error” review, the Government bears that 3
burden. See id. at 41-42. In this case it makes no difference 4
whether the standard applied is the conventional or the modified 5
“plain error” standard because any error in the charge was 6
inconsequential and did not rise to the level of either 7
standard.5
8
Count Six alleges violations of 18 U.S.C. §§ 1512(b)(1) and 9
(b)(3), which provide that: 10
(b) Whoever knowingly uses intimidation, threatens or 11
corruptly persuades another person, or attempts to do 12
so, or engages in misleading conduct toward another 13
person, with intent to-- 14
(1) influence, delay or prevent the testimony of 15
any person in an official proceeding; 16
. . . 17
(3) hinder, delay, or prevent the communication to 18
a law enforcement officer or judge of the United 19
States of information relating to the commission or 20
possible commission of a Federal offense or a 21
violation of conditions of probation, supervised 22
release, parole, or release pending judicial 23
proceedings; 24
shall be fined under this title or imprisoned not more 25
than ten years, or both. 26
27
In Arthur Andersen, the Supreme Court found the district 28
court’s instructions were deficient in two respects -- they 29

-- 28 of 41 --

-29-
failed to convey the requirements of 18 U.S.C. § 1512(b)(2) of 1
mens rea and nexus to an official proceeding. As to the first of 2
these deficiencies, the district court in Arthur Andersen 3
instructed the jury that it could convict Arthur Andersen of 4
witness tampering in relation to an official proceeding if it 5
found that Arthur Andersen intended to “subvert, undermine, or 6
impede” governmental factfinding by suggesting to its employees 7
that they enforce the document retention policy, and that “even 8
if [Arthur Andersen] honestly and sincerely believed that its 9
conduct was lawful, you may find [Arthur Andersen] guilty.” 544 10
U.S. at 706. These instructions, the Supreme Court held, did not 11
properly convey the mens rea required for a violation of 18 12
U.S.C. § 1512(b) -- they “diluted the meaning of ‘corruptly’ so 13
that it covered innocent conduct,” id. -- because “[o]nly persons 14
conscious of wrongdoing can be said to ‘knowingly . . . corruptly 15
persuad[e],’” id. (emphasis supplied). 16
As to the second deficiency -- regarding the so-called 17
“nexus requirement” -- the Supreme Court in Arthur Andersen found 18
the instructions deficient because “[a] ‘knowingly . . . 19
corrup[t] persuade[r]’ cannot be someone who persuades others to 20
shred documents under a document retention policy when he does 21
not have in contemplation any particular official proceeding in 22
which those documents might be material,” id. at 708, and the 23
district court’s instructions “led the jury to believe that it 24

-- 29 of 41 --

-30-
did not have to find any nexus between the ‘persua[sion]’ to 1
destroy documents and any particular proceeding,” id. at 707. 2
Cf. United States v. Arthur Andersen, 374 F.3d 281, 298 n.32 (5th 3
Cir. 2004) (reciting district court’s charge in Arthur Andersen 4
defining “official proceeding”). Instead, a “knowingly . . . 5
corrupt persuader” must believe that his actions are likely to 6
affect a particular, existing or foreseeable official proceeding. 7
See Arthur Andersen, 544 U.S. at 708; see also United States v. 8
Quattrone, 441 F.3d 153, 181 (2d Cir. 2006) (holding that Arthur 9
Andersen requires that there be “some nexus between the effort to 10
tamper . . . pertaining to the relevant proceeding and awareness 11
that such conduct was likely to affect the proceeding”). 12
Kaplan contends that the district court’s instructions in 13
this case are similarly deficient. The district court instructed 14
the jury on Count Six as follows: 15
The first element the government must prove is that 16
the defendant corruptly persuaded a person, or attempted 17
to do so. 18
. . . . 19
The word “corruptly” simply means having an 20
improper purpose. An intent to subvert or undermine the 21
factfinding ability of an official proceeding is an 22
improper purpose . . .” 23
The second element that the government must prove 24
is that the defendant acted knowingly and with the 25
specific intent to influence the testimony of another 26
person in an official federal proceeding. 27
An act is done “knowingly” if it is done 28
voluntarily and intentionally and not because of mistake 29
or accident. 30
By specific intent, I meant that the defendant must 31
have acted knowingly and with the unlawful intent to 32
influence the testimony of another person in an official 33

-- 30 of 41 --

-31-
federal proceeding; or to hinder, delay or prevent the 1
communication to a federal law enforcement officer or 2
judge information relating to the commission or possible 3
commission of a federal offense. 4
5
JA 287-88. 6
Applying the lessons of Arthur Andersen, we find that the 7
charge adequately conveyed the statute’s mens rea requirement. 8
Viewing the charge as whole, the district court conveyed the 9
substantial equivalent of Arthur Andersen’s holding that the 10
defendant must be “conscious of wrongdoing” by instructing the 11
jury to convict only if it found that the defendant acted with an 12
“improper purpose” and “acted knowingly and with the unlawful 13
intent to influence the testimony.” We note that the Supreme 14
Court in Arthur Andersen expressly faulted the jury instructions 15
in that case for (1) specifying that the jury could convict if it 16
found that Arthur Andersen intended to “subvert, undermine, or 17
impede” (emphasis added) because “‘impede’ has broader 18
connotations than ‘subvert’ or even ‘undermine,’ and many of 19
these connotations do not incorporate any ‘corruptness’ at all,” 20
544 U.S. at 706-07 (brackets omitted), and (2) instructing the 21
jury that “even if [Arthur Andersen] honestly and sincerely 22
believed that its conduct was lawful, you may find [Arthur 23
Andersen] guilty,” id. at 706. The district court here charged 24
nothing of the sort. To convict, the jury had to find that 25
Kaplan acted with an “improper purpose” and with “unlawful 26
intent.” 27

-- 31 of 41 --

-32-
Second, with regard to Kaplan’s argument that the district 1
court’s instructions were erroneous in light of Arthur Andersen’s 2
discussion of the statute’s nexus requirement, we note first that 3
the charges in Arthur Andersen were brought under two clauses of 4
§ 1512(b)(2), both of which explicitly include as an element that 5
the obstruction or tampering relate to an “official proceeding,” 6
see id. at 702. Kaplan, however, was charged under §§ 1512(b)(1) 7
and (3). With respect to § 1512(b)(3), it is unclear whether 8
Arthur Andersen’s nexus requirement is applicable because § 9
1512(b)(3) does not explicitly refer to an “official proceeding.” 10
See United States v. Byrne, 435 F.3d 16, 23-25 (1st Cir. 2006). 11
We need not decide this issue, because even if the nexus 12
requirement is applicable to prosecutions under § 1512(b)(3), and 13
the district court’s instructions under § 1512(b)(3) were 14
erroneous for failure to discuss nexus, any such error was 15
harmless in the circumstances of this case for the reasons 16
discussed below. 17
Kaplan was, as noted, also charged under § 1512(b)(1), which 18
does contain an explicitly stated element of an “official 19
proceeding.” The jury instructions on this charge undoubtedly 20
needed to comply with the nexus requirement discussed in Arthur 21
Andersen. The district court instructed the jury that the 22
government “must prove” that the defendant acted “with the 23
specific intent to influence the testimony of another person in 24

-- 32 of 41 --

-33-
an official federal proceeding.” The instructions did not 1
identify the official proceeding. In view of the Supreme Court’s 2
discussion in Arthur Andersen, 544 U.S. at 707 (finding the 3
instructions infirm because they led the jury to believe that it 4
did not have to find any nexus between the “persuasion” to 5
destroy documents and any “particular proceeding”), it would 6
surely have been more prudent, even where the evidence only 7
points to one federal proceeding, for the district judge to 8
identify the “particular” federal proceeding that the defendant 9
intended to obstruct. We need not decide whether the failure to 10
do so in this case was error, because as we note below, it was 11
harmless in any event. 12
Furthermore, in Quattrone, 441 F.3d at 153, the district 13
court, following the Supreme Court’s formulation of the nexus 14
requirement in United States v. Aguilar, 515 U.S. 593, 599 15
(1995), described nexus to the jury as “some relationship in 16
time, causation or logic, between the defendant’s actions and the 17
grand jury proceeding so that his action or actions may be said 18
to have the natural and probable effect of interfering with that 19
proceeding.” Quattrone, 441 F.3d at 177 n.24. We ruled that this 20
instruction accurately described the nexus requirement. Id. at 21
178. The instructions given below did not contain this language, 22
or its reasonable equivalent. In that regard, they were 23
deficient. 24

-- 33 of 41 --

-34-
Nevertheless, Kaplan is not entitled to reversal of his 1
conviction on Count Six. Despite this error and other arguable 2
deficiencies in the charge on nexus, any deficiencies were 3
harmless in the particular circumstances of the case and did not 4
amount to plain error. Unlike the defendants in Arthur Andersen 5
and Quattrone, who, in accordance with a routine file purging 6
policy, had urged destruction of documents that they may not have 7
known were relevant to any “particular proceeding,” Arthur 8
Andersen, 544 U.S. at 707, Kaplan, according to the government’s 9
evidence, directly participated in an effort to influence 10
Galkovich’s testimony. In his summation, Kaplan implicitly 11
conceded that, if the jury found that he urged Galkovich to 12
testify falsely, it was with respect to either the state 13
disciplinary proceeding or the federal criminal proceeding. 14
Kaplan argued that the jury should find that any such effort 15
related to the state disciplinary proceeding, and was therefore 16
not covered by § 1512. His argument, however, implicitly 17
conceded that, if the jury rejected his contention that his 18
efforts related to the disciplinary proceeding, the efforts 19
“relat[ed] in time, causation or logic,” Quattrone, 441 F.3d at 20
177 n.24, to Galkovich’s federal criminal proceeding. 21
Accordingly, the court’s failure to explain in full an element 22
that Kaplan had essentially conceded was harmless. 23

-- 34 of 41 --

-35-
In sum, any error in the jury instructions was harmless and 1
does not meet the standard of plain error. We reject Kaplan’s 2
argument that we must vacate his conviction on Count Six. 3
B. Conscious avoidance jury instruction 4
Kaplan contends that it was error for the district court to 5
give a conscious avoidance charge on Count Six. We agree but 6
conclude that the error was harmless. 7
An instruction on conscious avoidance is proper only “(i) 8
when a defendant asserts the lack of some specific aspect of 9
knowledge required for conviction and (ii) the appropriate 10
factual predicate for the charge exists.” Quattrone, 441 F.3d at 11
181 (internal citations omitted). As for the second of these 12
requirements, a factual predicate exists when “the evidence is 13
such that a rational juror may reach the conclusion beyond a 14
reasonable doubt that the defendant was aware of a high 15
probability of the fact in dispute and consciously avoided 16
confirming that fact.” Id. (internal quotation marks omitted). 17
Evidence sufficient to find actual knowledge does not 18
necessarily constitute evidence sufficient to find conscious 19
avoidance. See United States v. Ferrarini, 219 F.3d 145, 157 (2d 20
Cir. 2000) (“The evidence shows that [defendant] actually knew of 21
the frauds; it is not sufficient to permit a finding that he 22
consciously avoided confirming them. The fact that a jury can -- 23
on the evidence -- find actual knowledge does not mean that it 24

-- 35 of 41 --

6 We reject Kaplan’s argument that it was error for the
district court to give a conscious avoidance charge when the
government argued actual knowledge in the alternative. Although
we noted in Ferrarini that evidence sufficient to find actual
knowledge does not necessarily establish a factual predicate for
conscious avoidance, 219 F.3d at 157, we have held that a
conscious avoidance charge is “not inappropriate merely because
the Government has primarily attempted to prove that the
defendant had actual knowledge, while urging in the alternative
that if the defendant lacked such knowledge it was only because
he had studiously sought to avoid knowing what was plain,”
United States v. Hopkins, 53 F.3d 533, 542 (2d Cir. 1995). So
long as the Government can establish a factual predicate for
conscious avoidance, it is free to argue alternative theories of
conscious avoidance and actual knowledge.
-36-
can also find conscious avoidance.”). Because the only record 1
evidence indicates that Kaplan had actual knowledge of the 2
witness tampering, there was no factual predicate for a conscious 3
avoidance charge on Count Six, and it was error for the district 4
court to give it.6
5
Nevertheless, we find that the error was harmless because 6
there was overwhelming evidence of Kaplan’s actual knowledge and 7
direct involvement in the witness tampering, see ante at 8. See 8
Quattrone, 441 F.3d at 181 (quoting Ferrarini, 219 F.3d at 154) 9
(“But an erroneously given conscious avoidance instruction 10
constitutes harmless error if the jury was charged on actual 11
knowledge and there was ‘overwhelming evidence’ to support a 12
finding that the defendant instead possessed actual knowledge of 13
the fact at issue.”). 14
15
16

-- 36 of 41 --

7 On appeal, Kaplan does not challenge the sufficiency of
this evidence to support his conviction on Count Seven.
-37-
C. Variance between bill of particulars and proof 1
Finally, Kaplan argues that the Government’s proof at trial 2
constructively amended, or prejudicially varied from, Count Seven 3
of the indictment, as clarified in a bill of particulars. We 4
disagree. 5
Count Seven, which arises from the statements that Kaplan 6
made to the FBI after his arrest, alleges that Kaplan “made 7
materially false, fictitious, and fraudulent statements and 8
representations, to wit, KAPLAN falsely informed an agent of the 9
Federal Bureau of Investigation about the circumstances 10
surrounding his purchase of a law practice from [Galkovich].” JA 11
17-18. These false statements were disclosed to Kaplan in an FBI 12
report prior to trial. In response to Kaplan’s request for a 13
bill of particulars, the Government stated that “the statements 14
contained in paragraphs three and four on page one of Kaplan’s 15
post-arrest statement form the basis of Count Seven.” 16
At trial, the Government offered ample proof of numerous 17
false statements.7 In summation, the Government principally 18
contended that seven statements were false: Kaplan told the FBI 19
that (1) he was introduced to Galkovich and Medvedvosky by a 20
Vladimir Scheckman; (2) “he received a thousand cases from 21
Galkovich as a result of the sale;” (3) the Law Office was sold 22

-- 37 of 41 --

-38-
to him for $120,000; (4) he did not recall who gave him the 1
$20,000 check used to purchase the Law Office; (5) he was assured 2
by Medvedovsky and Galkovich that the charges against Galkovich 3
“were nothing [because] Galkovich had done nothing wrong”; (6) he 4
“just stopped by” the January 8 meeting between Galkovich, 5
Medvedovsky, and Sherman without planning in advance to 6
participate; and (7) he did not take the conversation on January 7
8 “very seriously” and that they were just “joking around.” Only 8
one of these statements -- concerning how Kaplan had met 9
Galkovich and Medvedovsky -- was specified in the bill of 10
particulars. 11
This does not constitute a constructive amendment of the 12
indictment. “To prevail on a constructive amendment claim, a 13
defendant must demonstrate that either the proof at trial or the 14
trial court’s jury instructions so altered an essential element 15
of the charge that, upon review, it is uncertain whether the 16
defendant was convicted of conduct that was the subject of the 17
grand jury’s indictment.” United States v. Salmonese, 352 F.3d 18
608, 620 (2d Cir. 2003). Here, because the Government proved the 19
essential elements of the crime charged in Count Seven -- albeit 20
with different proof, as indicated above -- the indictment was 21
not constructively amended. See, e.g., United States v. Wallace, 22
59 F.3d 333, 337 (2d Cir. 1995) (holding that no constructive 23

-- 38 of 41 --

-39-
amendment occurs “where a generally framed indictment encompasses 1
the specific legal theory or evidence used at trial”). 2
A variance, on the other hand, occurs when the charging 3
terms remain unaltered but the facts proven at trial differ from 4
those alleged in the indictment or bill of particulars. See 5
United States v. Dupre, 462 F.3d 131, 140 (2d Cir. 2006); United 6
States v. Glaze, 313 F.2d 757, 759 (2d Cir. 1963) (holding that 7
once the Government has responded with a bill of particulars, it 8
is “strictly limited to proving what it has set forth in it.”). 9
However, we will reverse on account of a variance only if it 10
prejudices the defendant by infringing on the “substantial 11
rights” that indictments exist to protect -- “to inform an 12
accused of the charges against him so that he may prepare his 13
defense and to avoid double jeopardy.” Dupre, 462 F.3d at 140; 14
see also Glaze, 313 F.2d at 759 (“it is well settled that a 15
variance between the proof and the bill of particulars is not 16
grounds for reversal unless the [defendant] is prejudiced by the 17
variance.”). 18
Assuming arguendo there was a variance, we detect no 19
prejudice to Kaplan’s ability to prepare his defense or interpose 20
a defense of double jeopardy. Where the defendant has notice of 21
the “core of criminality” to be proven at trial, we have 22
permitted “significant flexibility” in proof without finding 23
prejudice. See United States v. LaSpina, 299 F.3d 165, 181-82 24

-- 39 of 41 --

-40-
(2d Cir. 2002); see also Salmonese, 21 F.3d at 1236 (“A defendant 1
cannot demonstrate that he has been prejudiced by a variance 2
where the pleading and the proof substantially correspond . . . 3
.”). For example, in Dupre, we concluded that the proof of a 4
wire transfer other than that specified in the indictment was a 5
variance but did not prejudice the defendant because she was not 6
surprised by the proof, 462 F.3d at 141-42, and suffered no risk 7
of double jeopardy, id. at 143 n.12. Additionally, we have 8
routinely found that no prejudice results from a variance between 9
overt acts charged in an indictment and those proved at trial. 10
See, e.g., Frank, 156 F.3d at 337; LaSpina, 299 F.3d at 182-83; 11
Salmonese, 352 F.3d at 622 (“In this case, because [the] 12
[i]ndictment . . . gave [defendant] fair and adequate notice that 13
the conspiratorial scheme achieved its ultimate economic purpose 14
through the conspirators’ multiple sales of stripped securities 15
and their receipt of proceeds through June 1996, [defendant] 16
cannot show that he was prejudiced by proof of a few uncharged 17
proceed receipts after May 8, 1996.”). 18
The alleged variance here in issue similarly does not 19
justify reversal. Before trial, the government gave Kaplan the 20
FBI report detailing all of his statements. Count Seven of the 21
indictment was broadly framed, giving Kaplan notice of the “core 22
of criminality” to be proven at trial. And Kaplan’s counsel did 23
not object to the admission of the false statements not specified 24

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in the bill of particulars, nor did he request a continuance when 1
they were introduced. There is therefore no indication in the 2
record that the evidence adduced at trial unfairly surprised 3
Kaplan, exposed him to a risk of double jeopardy, or unfairly 4
prejudiced him in any other way. The variance did not create 5
error, much less the plain error that arguably was required to be 6
shown as a result of Kaplan’s failure to object. 7
We therefore reject Kaplan’s argument that the Government’s 8
proof at trial constructively amended, or prejudicially varied 9
from, Count Seven of the indictment. 10
11
CONCLUSION 12
We have considered all of Kaplan’s remaining arguments on 13
appeal and find them to be without merit. For the reasons set 14
forth above, the judgment of conviction is vacated as to Counts 15
One, Two, Three, Four, and Five, and affirmed as to Counts Six 16
and Seven. The case is remanded for further proceedings 17
consistent with this opinion. 18

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