Criminal Litigation

This office represents Mr. Patrick Frega on appeal in the United States Court of Appeals for the Ninth Circuit in United States v. Frega, No. 97-50100. The reply brief written by our firm follows:

IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

No. 97-50100
[Consolidated Case Nos. 97-50111,
97-50113 & 97-50171]

UNITED STATES OF AMERICA,

Plaintiff-Appellee-Cross-Appellant,

vs.

Defendants-Appellants-Cross-Appellees.
_______________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF CALIFORNIA
HONORABLE EDWARD RAFEEDIE, PRESIDING

96-CR-0698 ER
_________________________________________________________

DEFENDANT-APPELLANT-CROSS-APPELLEE PATRICK FREGA'S
COMBINED REPLY/ANSWERING BRIEF;
NOTICE OF JOINDER IN CO-APPELLANTS' ARGUMENT;
CERTIFICATE OF RELATED CASES
_________________________________________________________

TABLE OF CONTENTS

TABLE OF AUTHORITIES

Pursuant to the Court's order of August 17, 1998, Defendant-Appellant-Cross-Appellee Patrick Frega (hereinafter "Frega") hereby submits his combined reply/answering brief that includes the text of his previously filed separate brief in opposition and reply brief.

Appellant Patrick Frega responds below to several portions of the Government's Brief addressing legal errors, any one of which requires reversal of the judgment against him. First, the jury may have impermissibly based its verdict of guilt on the RICO Conspiracy and substantive RICO counts on third-party gifts, which cannot serve as the required predicate racketeering acts because the gifts do not violate the California bribery statutes. The jury may have also impermissibly based the RICO Conspiracy conviction on the mail fraud violations or the Overt Acts charged in the Indictment, which were not charged as predicate acts of racketeering in the conspiracy charge.

Next, a fatal variance between proof of multiple schemes to defraud and the Indictment's charge of a single scheme required the District Court to give the jury a same single scheme instruction, which it refused to do. Lack of such an instruction, which the defense requested, seriously prejudiced Frega. Frega was denied his right to a unanimous jury verdict. Accordingly, Frega was entitled to acquittal on the Mail Fraud counts. Finally, Frega is entitled to a new trial on all counts without the testimony of Government witness Greer because Greer's plea agreement with the Government violates 18 U.S.C. section 201.

The California bribery statutes Frega allegedly violated, which served as the proposed predicate offenses for his RICO conviction, are plainly limited to bribes given, offered or received by judicial officers and other specified individuals and not third parties on their behalf. See Calif. Penal Code ?? 92 and 93. The jury was not instructed that third-party gifts cannot be considered bribes under California law. Rather, the District Court refused Frega's proposed limiting instructions and instead instructed the jury incorrectly that "to constitute the giving of a bribe it is necessary that the bribe actually be delivered either directly to the person being bribed or to someone else for that person." (RT 4315, emphasis added.)

The Indictment charged and the Government insisted on submitting proof of third-party gifts, taking the position that the gifts could constitute the requisite predicate acts of bribery. It is impossible to determine from the jury's general verdict whether the guilty verdicts on Counts 1 and 20 (RICO Conspiracy and substantive RICO) rested on these ineligible, legally insufficient third-party gifts. Accordingly, Frega's conviction on these counts must be reversed. See Yates v. United States, 354 U.S. 298 (1957); see also United States v. Barona, 56 F.3d 1087, 1096-1097 (9th Cir. 1995), cert. denied, Bennett v. United States, 516 U.S. 1092 (1996).

Moreover, the District Court improperly instructed the jury that it could consider all of the evidence in determining the defendants' guilt on Count 1, the RICO Conspiracy. The jury was required to find that the defendants committed two racketeering acts in support of this count. The court's instruction impermissibly allowed the jury to consider the mail fraud violations as predicate acts for the purpose of Count 1 even though mail fraud violations were not included in the predicate acts charged in the substantive RICO count (Count 20), nor were violations of 18 U.S.C. ?? 1341 or 1346 alleged as part of the pattern of racketeering charged in Count 1. It is thus impossible to determine from the jury's general verdict whether the jury based the conviction on Count 1 impermissibly on the mail fraud violations. The verdict must be reversed. Id.

In order to convict Frega of the RICO Conspiracy charged in Count 1 and the substantive RICO offense charged in Count 20, the jury was instructed that it had to find the defendants agreed on at least two of the predicate acts through which the defendants conducted the affairs of the alleged enterprise. The Government's theory was that the defendants violated the California bribery statutes, and thus committed predicate acts delineated under RICO.

California Penal Code section 92 provides, in pertinent part, "Every person who gives or offers to give a bribe to any judicial officer . . . ." California Penal Code section 93 provides, in pertinent part, "Every judicial officer . . . , who asks, receives, or agrees to receive, any bribe . . . ." At a minimum, four of the predicate acts of racketeering alleged in the Indictment do not meet that description, but rather describe gifts to third parties. The Government, without citing any case law to support its position, disagrees that the giving of a gift to a third-party cannot be a "bribe" under California Penal Code sections 92 or 93, even where the defendant is unaware of the payment. (See Government's Brief, pp. 69-70). That is not the law.

The District Court's interpretation of a statute is reviewed de novo. See Sousa v. Callahan, 143 F.3d 1240 (9th Cir. 1998). In construing a statute, the court's primary goal is to find and give effect to the legislative intent or purpose in enacting the statute. The first, and often the only step necessary to achieve that goal is to analyze the statutory language. As stated in People v. McCaskey, 216 Cal.Rptr. 54, 56 (1985), "the court must first look to the language of the statute to ascertain legislative intent, giving effect to the usual, ordinary import of the language. If the language is clear and unambiguous then the court need not engage in further construction; it merely applies the statute as expressed."

a. Section 92 Is Clear and Unambiguous

The language of Section 92 clearly and unambiguously indicates that it prohibits only those bribes given directly to a judicial officer, not bribes given to a third party. The section states that it is a crime to give or offer to give a bribe "to any judicial officer"; it does not state that it is a crime to give or offer to give a bribe to any judicial officer or to another person for him or to another person on his behalf or to give or offer to give a bribe directly or indirectly to any judicial officer. In the absence of more expansive language, there is no basis to interpret Section 92 to prohibit third-party bribes as well as bribes given or offered directly to a judicial officer. Had the California Legislature intended to prohibit the former as well as the latter, it would have said so.

Because the language of Section 92 is clear and unambiguous, there is no reason for the Court to look beyond the language of the statute and examine its legislative history. See, e.g., United States v. Rone, 598 F.2d 564, 569 (9th Cir. 1979) ("When no ambiguity is apparent on the face of a statute, an examination of legislative history is inappropriate. The proper function of legislative history is to solve, and not create, an ambiguity."). People v. McCaskey, supra, 216 Cal.Rptr. at 56.

Assuming an ambiguity, the language of Sections 92 and 93 and their legislative history as well as the cases interpreting them and similar bribery statutes compel the conclusion that Sections 92 and 93 do not prohibit third-party bribes. In resolving a purported ambiguity in a statute, it is a well-established principle of California law that,

People v. Davis, 633 P.2d 186, 193 (1981). Federal law compels the same result. See, e.g., Crandon v. United States, 494 U.S. 152, 168 (1990) (noting that under the "rule of lenity," ambiguities in the scope of a criminal statute "should be resolved in the [defendant's] favor unless and until Congress plainly states that we have misconstrued its intent").

The California Legislature enacted Sections 92 and 93 in 1872, the same year that it passed Section 85, California's legislative bribery statute. The language of Section 85 unequivocally indicates that the California Legislature knew how to prohibit third-party bribes:

The markedly different language in Section 85 is significant because "[i]t is a well settled principle of statutory construction that `where a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject . . . is significant to show that a different intention existed.'" Traverso v. People, 6 Cal.4th 1152, 1166 (1993) (quoting People v. Drake, 566 P.2d 622, 628 (1977)). The fact that Section 85 contains a provision expressly prohibiting third-party bribes, while Section 92 does not, is an unequivocal indication that the California Legislature did not intend Section 92 to prohibit third-party bribes.

The California Supreme Court has consistently enjoined courts to resolve statutory ambiguities by "examining the context in which the language appears and adopting the construction which best serves to harmonize the statute . . . with related statutes." Hsu v. Abbara, 891 P.2d 804, 809 (1995). A claim that Section 92 covers third-party bribes does not "harmonize" Sections 85 and 92; instead, it renders Section 85's "or to another person for him" language superfluous. Such an interpretation of Sections 85 and 92 is not only forbidden by Hsu, it also contradicts, with regard to Section 85, the basic principle that "[i]n construing [a] statute, the court must presume each word, phrase, or provision in the statute was intended by the Legislature to have meaning and perform a useful function." People v. McCaskey, 216 Cal.Rptr. at 56.

Although limited, the California case law related to this issue is in accord. As noted in the Opening Brief, in the case of Willens v. Superior Court, 92 Cal.Rptr. 922 (1971), a writ of prohibition was granted dismissing a judicial bribery case. There was no evidence that a judicial officer was asking, receiving, or agreeing to receive a bribe, only a third party who was not a judicial officer. The Government incorrectly dismisses the Willens case, arguing that unlike the evidence in that case, the evidence here was sufficient to show that the defendants were aware of the third-party gifts. (Gov't Brief, p. 70.) Yet the Willens decision does not create a rule that the judicial officer (or the party giving the gift) is guilty of bribery if the officer is simply aware of the gift. Rather, the Willens case enunciates the clear elements of the bribery statute at issue there, California Penal Code Section 93, that the officer ask, receive, or agree to receive the gift.

The Government's further suggestion that simple awareness of the gift (a fact it infers solely from the familial relationships of the gift-recipients with the charged judges) is tantamount to "receipt" of the gift is a remarkable interpretation of California Penal Code Section 93. (Gov't Brief, p. 70.) The statute requires much more than simple awareness of the gift, which would support only an inference that the third party received the gift on the judicial officer's behalf. And as explained ante, the statutory language and legislative history show that receipt of a gift by a third party on behalf of the charged judicial officer does not violate the California bribery statute. In any event, there was no instruction to the jury here that the judicial officer had to be aware of the gift, so the Government's argument is moot.

Federal case law resolving a similar issue is also helpful. In United States v. Brewster, 506 F.2d 62 (D.C. Cir. 1974), a United States Senator allegedly solicited bribes in exchange for his vote in opposition to an increase in the Federal postal rate. The payments were not made to the Senator but to his reelection campaign committee. The Senator was charged with violation of a bribery statute, 18 U.S.C. ? 201(c)(1), but was convicted of a related "gratuity" statute, 18 U.S.C. ? 201(g), as a lesser included offense. At the time Brewster was decided, the bribery statute prohibited solicitation or acceptance of bribes by a public official "for himself or for any other person or entity." In contrast, the gratuity statute prohibited the identical conduct by the public official "for himself," with no reference to any third party.

Senator Brewster argued that the gratuity conviction could not be sustained because the payments in question went to his campaign committee and, thus, could not constitute benefits "for himself" alone per the language of the gratuity statute. The Brewster court, 506 F.2d at 69, first concluded that the gratuity statute was in fact narrower in scope than the bribery offense but ultimately held that the Senator could be convicted under the gratuity statute if the campaign committee was in fact the "alter ego" of defendant personally. Brewster, 506 F.2d at 81. Because the jury was not instructed on any "alter ego" theory, the gratuity conviction was reversed.

The significance of Brewster, for present purposes, lies in its recognition that the gratuity statute, on its face, had to be interpreted to reach more restricted forms of conduct than the bribery statute. The same logic applies to Sections 85 and 92 of the California Penal Code. Like the differing sections of the Federal bribery statute, the California legislative bribery statute is broader in scope than the judicial bribery statute and compels the conclusion that third-party benefits do not fall within the ambit of Section 92, unless the jury could find that the third-party recipient was an "alter ego" of the judicial officer. The jury here, however, was never instructed on an "alter ego" theory in relation to the third-party gifts and such a theory was never offered by the Government.

The jury returned a general verdict of guilty on both counts, without identifying the predicate offenses they had agreed upon. (ER 139.) Because it is impossible to determine whether the jury based its general verdict on Counts 1 and 20 on the third-party payments submitted by the Government which do not violate the California bribery statutes, Frega's guilty verdict as to Counts 1 and 20 must be reversed. See Yates v. United States, 354 U.S. at 312; see also United States v. Barona, 56 F.3d at 1096-1097.

The principle requiring reversal is drawn from the jury's reliance on a legally invalid ground, as opposed to factually unsupported allegation. This principle was articulated by the United States Supreme Court in Yates v. United States,

354 U.S. at 312. Later the Court clarified the legal versus factual distinction in Griffin v. United States, 502 U.S. 46, 58 (1991),

(Emphasis added.)

This Court in Barona applied the Yates principle in reversing two convictions under circumstances similar to this case. In Barona, the Court reversed two defendants' convictions for managing a continuing criminal enterprise in violation of 21 U.S.C. section 848. In order to convict, the jury had to agree that the defendants had supervised five or more persons. The Government presented lists of supervises, each of which included at least one person who could not legally qualify as a supervisee. The Court noted there were no instructions directing the jury to exclude the legally ineligible supervises and found it was impossible from the verdict to tell whether the jury had selected one of the ineligible individuals. The Court concluded that the Supreme Court's seminal Yates decision required reversal of the convictions because they could have been based on a legally inadequate theory. Id.

Here, the possibility that the jury relied on the legally inadequate third-party payments as predicate acts of bribery under California law is even greater. In Barona the Government's lists of supervises each contained only one ineligible individual. Here, as explained ante at page 11 and footnote 3, at a minimum four of the 24 predicate acts alleged in Count 20 were third-party payments and, thus, legally ineligible. As such, Frega's conviction on Counts 1 and 20 must be reversed. See United States v. Malizia, 720 F.2d 744, 746 (2d Cir. 1983) (reversing substantive RICO and RICO Conspiracy convictions where the bribes alleged as predicate acts did not "plainly and unmistakably" violate New Jersey's bribery statute); see also United States v. Cissell, 700 F.2d 338, 340 (6th Cir. 1983) (reversing substantive RICO conviction where the bribes alleged as predicate acts of racketeering did not violate Kentucky's bribery statute).

During deliberations, the jury sent out a note with the following questions:

As noted in the Opening Brief, after the hearing the District Court told the jury that Instruction No. 39, which listed the predicate acts of racketeering applicable to Count 20, "only applies to Count 20, but all the evidence that you have heard or seen during the trial may be considered by you as to all counts." (RT 4812, emphasis added.) The District Court rejected the defense proposal that the jury be instructed it could consider only the predicate racketeering acts specified in Count 20, the substantive RICO count, as to both Counts 1 and 20. (RT 4809-4810.)

The District Court's instruction was improper because it not only permitted the jury to consider the acts of mail fraud charged in the Indictment as racketeering acts in support of Count 1, the RICO Conspiracy, and Count 20, the RICO itself, it also invited an uninstructed jury to consider literally any act as a predicate including the Overt Acts listed in Count 1. It is now impossible to know what the jury decided.

The jury was instructed that the predicate racketeering acts supporting the RICO counts included 24 separate acts of bribery in violation of the California bribery statutes. The Indictment did not charge any acts of mail fraud as predicate racketeering acts under the RICO counts. The conspiracy count confined the "pattern of racketeering activity" to violations of Sections 92 and 93 of the California Penal Code and violations of 18 U.S.C. section 1951. The RICO count charged only violations of Section 92. Accordingly, the mail fraud and the RICO counts were entirely separate.

The RICO Conspiracy count (Count 1) and the RICO count (Count 20) required the jury to find that the defendants had committed two racketeering acts in furtherance of the RICO Conspiracy. By allowing the jury to consider all of the evidence in deciding these counts, the District Court invited the jury to use the charged mail fraud violations as predicate racketeering acts. Further, the court opened up the entire record to search by the uninstructed and, clearly, confused jury for the undefined predicate acts. It is highly likely that the jury turned to the Overt Acts since it lacked both the legal sophistication and instructions to distinguish between Overt and predicate acts. Since many of the 167 charged Overt Acts are not crimes, let alone violations of the California Penal Code, the conviction must fall.

It is impossible to determine from the jury's general verdict whether they based their finding of two predicate acts in support of the RICO counts impermissibly on the noncriminal third-party gifts, on the uncharged mail fraud violations or the noncriminal Overt Acts. Justice Black held for a unanimous Supreme Court in Thompson v. City of Louisville, 362 U.S. 199, 205 (1960):

The Supreme Court reaffirmed this principle in Vachon v. New Hampshire, 414 U.S. 478, 481 (1974), finding that an individual is denied due process when the conviction rests "on a record lacking any relevant evidence as to a crucial element of the offense charged." Here the due process violations are identical to those the Supreme Court condemned. Frega's convictions as to Counts 1 and 20 must be reversed. See Yates v. United States, 354 U.S. at 312; see also United States v. Barona, 56 F.3d at 1096-1097.

Frega has consistently argued throughout the proceedings below and in his Opening Brief that the evidence at trial showed multiple schemes to defraud and not the single, broad, unitary scheme charged in the Indictment. The jury's split verdict shows it agreed with him. The jury convicted at least one defendant on every Mail Fraud count, therefore finding that adequate proof as to the "mailing in furtherance of a scheme" element existed as to each count. The jury found, however, that the schemes advanced by those mailings were different from one another, with different defendants involved in different schemes and with no common scheme involving all defendants.

Because the evidence at trial showed multiple schemes to defraud, the District Court was required by law to give the jury a same single scheme jury instruction, which was requested by the defense. See, e.g., United States v. Mastelotto, 717 F.2d 1238, 1246-47 (9th Cir. 1983) (where there is a potential variance between a charged single scheme and proof of several schemes, the jury should be instructed that it must agree unanimously on the existence of the single scheme in order to convict). The District Court refused to give the necessary instruction. The fatal variance between pleading and proof and the erroneous jury instructions denied Frega his right to a unanimous jury verdict guaranteed by Article III, ? 2, and the Sixth Amendment of the Constitution, and his Fifth Amendment right to be "held to answer" only for the crime charged by the Grand Jury. Id.

Under the circumstances of this case, the proper remedy is acquittal on the Mail Fraud counts. See, e.g., United States v. Camiel, 689 F.2d 31, 38 (3d Cir. 1982) (acquittal proper remedy because breadth of indictment on single mail fraud scheme allows for and encourages presentation of evidence establishing multiple schemes; "it is the indictment itself . . . that is the root cause of the prejudicial variance.").

The analytical framework for deciding this issue is set forth in this Court's Mastelotto decision, which reversed Mail Fraud convictions under nearly identical circumstances. The Court in Mastelotto explained,

Id. at 1246. In Mastelotto, the Court found sufficient evidence to submit the issue of a single scheme to the jury but reversed because the District Court had failed to give a same single scheme instruction to the jury, thereby prejudicing the defendant.

Here, the Mail Fraud charges on which the defendants were indicted arose from what the Government claimed was a single charged scheme involving all three judges and Frega. The verdict shows unequivocally that the jury found no mail fraud scheme scheme in which all the defendants participated. That finding is based squarely on the evidence. A proper same single scheme instruction could reasonably have resulted in an acquittal for Frega on the Mail Fraud counts challenged on appeal. As in the Mastelotto case, "we cannot be certain that the defendants' substantial right to a jury verdict was not affected." Id. at 1250.

A same single scheme jury instruction was required because the evidence demonstrated more than one scheme to defraud. See United States v. Taren-Palma, 997 F.2d 525, 530 (9th Cir. 1993); see also United States v. Wellington, 754 F.2d 1457, 1463 (9th Cir. 1985). The Mail Fraud counts in the Indictment charged that the defendants "did knowingly devise and intend to devise a scheme and artifice to defraud the people of the State of California by depriving them of their right to the honest services of Judges of the State Superior Court in San Diego County performed free from bribery, undue influence and deceit." (Indictment Counts 2-19, ER 1.) In response to Frega's motion to dismiss the charges as duplicitous, the Government contended that the sole scheme charged in Counts 2 through 19 was the bribery scheme.

In support of this broad single scheme to defraud, the Indictment further alleged that: (1) Frega and Williams gave more than $100,000 in payments and benefits with the intent to influence California Superior Court judges in their official capacity; (2) Adams, Malkus and Greer accepted these payments and benefits with the intent to be influenced and rewarded in their official capacity as judges; and (3) Frega, Adams, Malkus, Greer and Williams concealed these payments and benefits from the people of the State of California, the Judicial Performance Commission and law enforcement authorities. Of the 19 counts of Mail Fraud, nine involve letters sent to the Judicial Performance Commission during the period from November 1991 through November 1993. The other nine counts are based on mailings of pleadings and documents relating to Frega's cases.

In support of these allegations, however, the Government presented evidence of multiple schemes to defraud. The Government did not present any evidence showing that the three judges involved colluded with each other and thus were furthering a single scheme with Frega. Rather, assuming the evidence showed each judge's collusion with Frega to commit bribery, it would reveal only the existence of multiple schemes. The evidence showed further that Frega was not involved with the individual judges' correspondence with the Judicial Performance Commission and that mailings in Frega's various cases underlying separate counts could not be connected to all three of the involved judges. Indeed, Greer never testified that he had an agreement with Adams to engage in corrupt activities. Greer also testified that he had never entered into any scheme with Malkus to corrupt the latter's office or functions as a judge. (RT VII, 1495.)

The record amply demonstrates the lack of connection between all the charged individuals that a single scheme required. For example, the record shows a personal rift between Greer and Malkus, because Malkus believed that Greer had failed to support him in a bid for the office of assistant presiding judge. (RT VI, 1150-51.) While actual agreement between Malkus and Greer as to the bribery and coverup was not required to prove a common scheme, "lack of agreement places the burden on the government to produce other evidence proving its existence. Further, actual hostility between [Greer and Malkus] may raise the possibility that the requisite common scheme was non-existent . . . ." United States v. Camiel, 689 F.2d at 35.

By way of further example, a brief summary showing the history of three cases used by the Government in support of the mail fraud counts shows unequivocally the numerous possible schemes presented to the jury. In the case of Oliver v. A.O. Reed (Bruyea), Greer's testimony established that Malkus had no involvement in the case and that Greer recused himself on January 7, 1992. (RT 1142-1149.) Attorney Dennis Hickman, defense counsel in this matter, testified that Adams was assigned as a settlement judge by mutual agreement of the parties after Greer recused himself. (RT 3743-3755.)

In the case of Berman v. McKellar, the testimony of Greer and attorney William Lerach showed that although the case was initially assigned by Greer to Malkus, it went from Malkus to Judge Anthony Joseph for trial. Judge Joseph stopped the trial then ordered a settlement conference. Presiding Judge Arthur Jones assigned Adams to settle the case, which he succeeded in doing. Neither Malkus nor Greer had any role in Adams' assignment. (RT 1125-36, 1899-1908.) In the Pressley case, Greer assigned the case to Malkus, who tried it. Adams had no involvement whatsoever. (RT 1098-1101.)

With respect to these three cases as well as the other incidents underlying the mail fraud counts, the jury's split verdict shows it convicted each defendant in accordance with his connection to the others, showing multiple schemes to defraud. Frega and Malkus (but not Adams) were convicted of Counts 6, 11 and 15, which involved mailings of court documents in the Pressley case presided over by Malkus. Frega and Adams (but not Malkus) were convicted of Counts 4 and 5, which involved mailings of court documents in the Berman case presided over by Adams. Only Frega was convicted of Count 7 which involved the mailing of a request for dismissal in the Berman case.

The jury's verdict on the other mail fraud counts involving contact with the Judicial Commission is equally revealing. Malkus alone was convicted of Counts 13 and 19, which involved mailings to the Commission in Judicial Performance. Adams alone was convicted of Counts 8, 10 and 12, which involved his correspondence with the Commission. Frega alone was convicted of Counts 16 and 17, which involved letters he and an associate sent to the Commission. Frega alone was convicted of Counts 9 and 14, which involved mailings to the Commission from Greer.

The Government also misconstrues the applicable law by arguing that the "same evidence" proved both the single RICO Conspiracy and the single scheme to defraud. (Gov't Brief, p. 104.) Conspiracy and mail fraud are related, but distinct offenses. A conspiracy or agreement to commit a RICO violation, that is to further an enterprise through racketeering acts (here only acts of bribery as charged in the Indictment), is not the same as committing mailings pursuant to a scheme to defraud. Indeed, conspiracy requires the existence of an agreement among the alleged co-conspirators, but mail fraud requires only that the co-schemers participate in a common scheme. "It is the existence of a common scheme, and not any agreement among the parties to participate in it, that is critical." United States v. Camiel, 689 F.2d at 36, citing United States v. Read, 658 F.2d 1225 (7th Cir. 1981). Here, the Government argues that to prove the RICO Conspiracy, they did not need to prove that the defendants agreed to the commission of any particular criminal act, only that they agreed,

(Gov't Brief, p. 38 (citations omitted).) The Conspiracy count required the jury to find that the defendants had committed two racketeering acts in furtherance of the RICO Conspiracy. The Indictment then delineates the alleged racketeering acts solely as acts of bribery and not mail fraud. The jury thus could have found that the defendants agreed, as charged, "to corruptly use the Superior Court system via bribery or extortion," but did not engage in a common scheme to defraud via use of the mails.

Thus, the Government is wrong when it claims that Frega is complaining only of "inconsistent verdicts." The doctrine of "inconsistent verdicts," as discussed in United States v. Powell, 469 U.S. 57 (1984), arises where a defendant's acquittal on a related count necessarily requires reversal of a conviction on another count. Acquittal on a count for conduct necessarily subsumed under another count of conviction is an example of the type of inconsistency claim rejected under Powell. In the instant case, the entirely distinct concept of variance is invoked in that the subject mail fraud verdicts are consistent with but one conclusion - that the jury was unable to find the existence of a single scheme as alleged by the Government. This is not inconsistent with a finding that the defendants engaged in a RICO Conspiracy.

Indeed, the conspiracy as charged in the sweeping language of the indictment as well as the amorphous legal principles governing the offense of conspiracy invited the jury to find a single conspiracy in spite of the separate relationships shown by the evidence. The flexible test developed by the courts for finding a single conspiracy, as opposed to a single scheme to defraud, is summarized in United States v. Castro, 89 F.3d 1443, 1451 (11th Cir. 1996), cert. denied, 117 S.Ct. 965 (1997):

This Court has noted that, "A single conspiracy exists . . . where there is 'one overall agreement' to perform various functions to achieve the objectives of the conspiracy." United States v. Patterson, 819 F.2d 1495, 1502 (9th Cir. 1987). Moreover, "[a] single conspiracy can include subgroups or subagreements . . . ." United States v. Bauer, 84 F.3d 1549, 1560 (9th Cir.), cert. denied, 117 S.Ct. 267 (1996).

Proof of such "subgroups" or "subagreements" was invited here by the Indictment, which charged in Count 1 in sweeping language the commission of 167 overt acts. In keeping with the overcharged Indictment, the government submitted proof of multiple groupings of defendants. Frega argued below that there were at least two schemes to defraud allegedly established by the government's case - the scheme to bribe and the scheme to cover up the bribes. Of course, the evidence showed even more schemes, including the discrete Frega/Malkus, Frega/Greer, Frega/Adams relationships. The jury's verdict shows it viewed the evidence in this fashion.

Frega submitted, and the District Court rejected, the following proposed jury instruction on the issue of same single scheme:

(See Frega's Proposed Instruction No. 10, ER 56, emphasis added.) This proposed instruction is nearly identical to other single scheme instructions found by this Circuit to be proper. See, e.g., United States v. Wellington, 754 F.2d at 1463 (court instructed that "[e]ach of the jurors must find the defendant guilty of participating in the same single scheme to defraud, and that the scheme to defraud in which the defendant is found to have participated is the same scheme as the overall fraudulent scheme alleged in the indictment.").

The District Court did not give any equivalent same single scheme instruction. Instead, the Court simply advised the jury that in order to sustain its burden of proof on the Mail Fraud counts, the Government had to prove that the defendants "knowingly devised or knowingly participated in a scheme or artifice to defraud the people of the State of California of their right to the honest services of Superior Court judges as detailed in counts two through nineteen of the indictment." (RT 4318.) The District Court was required to instruct specifically on this issue and focus the jury's attention on the issue in a meaningful way. The Court's instruction did nothing of the kind, and instead allowed the jury to convict the defendants of multiple schemes, a result evidenced by the jury's split verdict.

The Mastelotto case and other case law emphasize that the single versus multiple scheme issue is a question of fact to be resolved by a properly instructed jury. See United States v. Johansen, 56 F.3d 347, 350 (2d Cir. 1995); see also United States v. Brown, 912 F.2d 1040, 1043 (9th Cir. 1990) (stressing the importance of proper jury instructions in evaluating a variance claim based on the parallel issue of single versus multiple conspiracies). The Government's attempt to characterize the District Court's instruction as "adequately" conveying to the jury the "necessity of finding a single fraudulent scheme" is unconscionable. (Gov't Brief, pp. 95-97.) As support for this argument, the Government erroneously cites United States v. Bryan, 868 F.2d 1032 (9th Cir. 1989), and United States v. Feldman, 853 F.2d 648 (9th Cir. 1988). These cases, however, are "plain error" cases, and this Circuit has recognized that "[a]n improper instruction rarely justifies a plain error finding." United States v. Payseno, 782 F.2d 832, 834 (9th Cir. 1986).

Moreover, in Bryan, the defendant did not object to the court's instructions on the "scheme" element of the offense and proffered no instruction of his own on the issue of multiple schemes. This Court observed that this was the most important factor distinguishing the case from Mastelotto. 868 F.2d at 1039. In Feldman, defense counsel had stipulated to the scheme instruction that the defendant attempted to challenge on appeal. 853 F.2d at 652. It is clear that the District Court's instruction was flawed and failed to provide proper guidance to the jury.

The fatal variance between pleading and proof and the erroneous jury instructions denied Frega his right to a unanimous jury verdict guaranteed by Article III, ? 2, and the Sixth Amendment of the Constitution, and his Fifth Amendment right to be "held to answer" only for a crime which he has been indicted by a Grand Jury. See United States v. Mastelotto, 717 F.2d at 1250. Further prejudice resulted from the "spillover of evidence" from one scheme to another. United States v. Camiel, 689 F.2d at 37.

The determination of prejudice is a legal conclusion based on a factual predicate, which requires plenary review of legal decisions combined with application of the clearly erroneous standard to the District Court's factual findings. Id. The District Court's determination whether there was a factual basis for giving an instruction is reviewed for an abuse of discretion and related issues of law are reviewed de novo. See United States v. Taren-Palma, 997 F.2d at 530. Here, the District Court did not properly instruct the jury, refusing to give any same single scheme instruction. (ER 56, 71.) The Court then denied Frega's motions for acquittal and reversal on the same ground. (ER 141-143; DK 238, 244, 320, 330, 331, 338, 390.)

The sweeping 21-count Indictment spanning 12 years and charging three defendants with RICO and Mail Fraud violations alleges 167 overt acts charged in furtherance of the RICO Conspiracy and 24 predicate acts of racketeering. The breadth of this Indictment allowed for and encouraged the Government to submit evidence of multiple schemes at trial. Frega repeatedly objected to the Government's use of multiple schemes to try the case, which was based on a single scheme indictment. The jury ultimately agreed with Frega.

The verdict does not show, as the Government contends, that the jury found "a single, fraudulent scheme -- and then acquitted each appellant on counts involving mailings that he had nothing to do with." (Gov't Brief, p. 105.) The District Court instructed the jury that to gain a conviction, the Government did not have to prove that a defendant either mailed anything or even intended that anything be mailed. (ER 4318-4319.) This instruction is consistent with the "broad standard of causation set forth by the Court in Pereira v. United States, 347 U.S. 1, 8-9 (1954). United States v. Mastelotto, 717 F.2d at 1250. Jurors applied that principle.

For example, on Counts 2-7, 9, 11, 14-15 and 17-18, at least one defendant who was not directly involved in the charged mailing was convicted of it. This means that when the jury acquitted a defendant on a particular mailing, it did so not because of his lack of involvement with the mailing per se, but because he had not participated in a dishonest scheme related to that particular mailing. Frega submits that the acquittal of various defendants on some mailings and conviction on other mailings shows that the jury found separate schemes to defraud. At a minimum, the split verdict on these counts shows the jury's lack of unanimity as to the existence of a single, fraudulent scheme.

Under the circumstances of this case, acquittal is the proper remedy. The defective single scheme Indictment, which invites and sanctions the submission of multiple scheme evidence, precludes the use of a less severe sanction. Similar to the situation in the Camiel case, it would be impossible for the District Court to fashion a retrial so that only evidence of a particular scheme could be introduced against the appropriate defendants. See United States v. Camiel, 689 F.2d at 39-40.

Id. at 40. Accordingly, Frega is entitled to acquittal on the Mail Fraud counts on which he was convicted.

The Government relies primarily on the testimony of Judge Greer, provided pursuant to a plea agreement containing mutual promises. Greer's testimony should be suppressed and a new trial ordered because his plea agreement violates 18 U.S.C. section 201(c)(2), which provides,

Without Greer's testimony, the Government's case collapses, requiring acquittal of Frega for lack of sufficient evidence. This issue is being raised now for the first time in this case because of the Tenth Circuit Court of Appeals' recent decision in United States v. Singleton, 1998 U.S. App. LEXIS 14896 (10th Cir. July 1, 1998). The Tenth Circuit in Singleton held squarely that the Government violated 18 U.S.C. section 201 by promising leniency to a witness against the defendant in that case, then suppressed the testimony. That decision has now been vacated pending rehearing of the appeal by the Tenth Circuit en banc. United States v. Singleton, 1998 U.S. App. LEXIS 15451.

Admission of testimony obtained under an agreement that violates a Federal criminal statute affected Frega's "substantial rights" because this particular statutory violation directly tainted the reliability of the Government's evidence, depriving Frega of his right to due process and a fair trial under the Fifth Amendment to the Constitution. Admission of such illegal testimony also made the District Court an unwitting party to lawlessness. It is thus appropriate for this Court to review and decide this issue as plain error under Federal Rule of Criminal Procedure 52(b) and in order to protect judicial integrity.

In return for his cooperation and testimony, the Government promised to file a motion for an eight-level downward departure under section 5K1.1 of the United States Sentencing Guidelines. The Government also permitted Greer to plead guilty to a single-count indictment charging him with Bribery in violation of 18 U.S.C. section 666(a)(1)(B) in lieu of the RICO and Mail Fraud charges brought against Frega, Malkus and Adams.

In making this agreement with Greer, the Government violated 18 U.S.C. section 201. That statute applies to Assistant United States Attorneys acting on behalf of the Government. The operation of the statute is upon the agents of the sovereign, here an Assistant United States Attorney, and not the sovereign itself. The statute's purpose is also to prevent fraud, injury, or wrong. Accordingly, the exceptions to government inclusion in the statutory class created by the United States Supreme Court in Nardone v. United States, 302 U.S. 379, 383 (1937), do not apply.

The promises given by the Government also qualify as "anything of value," as required by the statutory language. 18 U.S.C. ? 201. "Anything of value" is not limited to what objectively has actual value. See United States v. Williams, 705 F.2d 603, 622-23 (2d Cir. 1983). Courts construing the phrase have held various intangibles to be things of value. See also United States v. Schwartz, 785 F.2d 673, 679-81 (9th Cir. 1986) (construing 18 U.S.C. ? 1954); United States v. Girard, 601 F.2d 69, 71 (2d Cir. 1979) (construing 18 U.S.C. ? 641).

The purpose of section 201 also confirms Congress' intent to include promises of leniency to cooperating witnesses. The manifest purpose of the statute is to keep testimony free of all influence so that its truthfulness is protected. See United States v. Biaggi, 853 F.2d 89, 101 (2d Cir. 1988). The promise of intangible benefits is as great a threat to a witness' truthfulness as a cash payment. See United States v. Cervantes-Pacheco, 826 F.2d 310, 315 (5th Cir. 1987) ("It is difficult to imagine a greater motivation to lie than the inducement of a reduced sentence . . . .").

The appropriate remedy in the circumstances of this case is suppression of the testimony given by Greer in return for the Government's illegal promises. Suppression is necessary to compel respect for the statutory protections Congress has placed around testimony in federal courts, as well as to protect the integrity of the Court and the judicial process. A new trial without Greer as a witness is required.

For the reasons stated herein and in Appellant's Opening Brief and the reasons delineated in the Opening and Reply briefs of Co-Appellants Malkus and Adams, Frega is entitled to acquittal on all counts charged in the Indictment.

V.

Sections V to IX respond to the contentions set forth in the Government's cross-appeal on sentencing issues.

Whether the District Court misinterpreted and misapplied the Sentencing Guidelines in finding that Frega was not an organizer or leader of the bribery scheme, in confining the Government's sentencing argument to its trial theory, and in refusing to enhance the sentences on the basis of the fees Frega received from the cases involving co-appellants.

After jury trial below, Frega was convicted of one count of Conspiracy to Violate the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. section 1962(d) (Count 1), a substantive RICO violation (Count 20), and several mail fraud counts in violation of 18 U.S.C. sections 1341, 1346 and 2. (Counts 2-7, 9, 11, 14-18). The sentencing process generated a Presentence Report ("PSR") and an "Addendum to the Presentence Report" ("Addendum"), which the Government has submitted to the Court under seal.

The PSR, at page 5, describes a 12-year scheme in which Frega allegedly gave gifts and benefits to co-defendant judges and a third jurist (Michael Greer), totalling $110,078.00. The PSR asserts that Frega obtained civil judgments in cases "involving" the co-defendants totalling $16,236,012.00 (PSR, p. 7.) The PSR proposed to utilize the latter figure as an enhancing element to the base offense level pursuant to United States Sentencing Guidelines ("USSG") sections 2C1.1(b)(2)(A) and 2F1.1. Counsel for Frega objected to this analysis on the ground that the Government had neither alleged nor attempted to prove that any civil outcome in any case involving Frega was "fixed" or tainted by the giving of any gift. Indeed, the Government repeatedly insisted that the legal validity of any case outcome was completely irrelevant to its theory of prosecution. (Gov't Supp. ER 23-24, 48-49.)

As a consequence of the dispute over these issues, the Addendum, at pages 5-6, notes that the probation officer contacted the Technical Assistance Staff of the United States Sentencing Commission and was advised that the value of benefits solely received by the defendant or the value of bribes given should be the benchmark of adjustment to the base offense level under USSG section 2C1.1(b)(2)(A). Accordingly, the Addendum, at page 8, shifted the theoretical basis of adjustment to attorney fees received and noted that the probation officer "has not been able to characterize, to any degree of certainty, Frega's attorney fees. Additionally, the sum has not been quantified by the government. Therefore, the amount of bribery payments ('value of the payments') has been used to compute this enhancement." This procedure is sanctioned by USSG section 2C1.1(b)(2)(A). In response to this revised assessment in the Addendum, the Government submitted a "clarification" document purporting to show several million dollars in attorney fees from cases "involving" co-defendants and former Judge Greer. (Gov't Supp. ER 66-68.)

At the sentencing hearing itself, the parties submitted the benefit issue on the pleadings, and the District Court made the following findings:

(Gov't Supp. ER 49.)

(Gov't Supp. ER 49.)

(Gov't Supp. ER 24.)

The District Court then applied an eight-level "role of recipient" upward adjustment pursuant to USSG section 2C1.1(b)(2)(B).

As a second contention raised on cross-appeal, the Government asserts that the District Court erred in failing to enhance Frega's sentence level by four points under USSG section 3B1.1(a) for an organizer or leadership role in a criminal activity that involved five or more participants. The District Court rejected this contention, noting,

(Gov't Supp. ER 50.) Having determined that the enhancing factors proposed by the Government were inappropriate to the case, the District Court sentenced Frega to a term of imprisonment of 41 months based upon a Criminal History Category of I and an adjusted offense level of 22. (Gov't ER 51.) The Government's cross-appeal followed.

A. STANDARD OF REVIEW

This Court reviews de novo the District Court's interpretation of the Sentencing Guidelines. United States v. Ford, 989 F.2d 347, 349 (9th Cir. 1993). Factual decisions made in connection with sentencing decisions are reviewed for clear error (United States v. Ponce, 51 F.3d 820, 826 (9th Cir. 1995)) and are afforded great deference:

United States v. Traynor, 990 F.2d 1153 (9th Cir. 1993).

The applicable guideline, USSG section 2C1.1(b)(2)(A), charges the court to increase the base offense level by eight levels if the recipient of the bribe is an elected official or any public official holding a high level decision-making position. Alternatively, the court may apply an upward adjustment based upon the greatest of three relevant "values": (1) the value of the payment made; (2) the value of the "benefit received"; and (3) the value of the benefit "to be received." The extent of the upward adjustment contemplated by these "values" is derived from the chart set forth at USSG section 2F1.1. The court must apply the eight-level "role of recipient" adjustment unless one of the designated "value" calculations is greater. As set forth above, the "value" of gifts involved in the case was approximately $110,000.00, which yields a six-level adjustment under USSG 2F1.1. Thus, the District Court's application of the eight-level "role of recipient" adjustment was wholly correct in relationship to the "value of payment" test.

The calculation of a six-level adjustment is based on the value of the bribes Frega allegedly paid, which USSG section 2C1.1 requires. The District Court was obligated to focus only on the personal benefit derived by Frega from the alleged bribery, which the Technical Assistance Staff to the Sentencing Commission confirmed. See United States v. Ellis, 951 F.2d 580, 585 (4th Cir. 1991). Accordingly, the District Court's refusal to focus on the amount of civil judgments obtained as a result of the alleged bribes was a correct application of the Sentencing Guidelines.

The benefit received by the defendant must be demonstrated by a preponderance of evidence, a "meaningful" standard requiring "the judge to be convinced" that the relevant fact in question exists. United States v. Restrepo, 946 F.2d 654, 661 (9th Cir. 1991). In a case where use of a particular sentencing factor will drastically increase punishment, the existence of that factor should be established by clear and convincing evidence. United States v. Wong, 2 F.3d 927, 930 (9th Cir. 1993). This latter, more onerous standard applies here because the Government sought to drastically increase Frega's offense level by fourteen pursuant to USSG section 2F1.1. (Gov't Supp. ER 48-49.)

In the "Background" section to USSG section 2C1.1, the Sentencing Commission explains also that, "Where the . . . value of the benefit cannot be determined, the value of the bribe is used . . . ." 18 United States Code Service, Appendix ? 2C1.1 (1998). The District Court's decision that the Government had failed to prove the value of the benefit received by Frega was not clearly erroneous because the Government failed to show by clear and convincing evidence either that (1) Frega personally benefitted from the judgments he obtained, (2) the identified judgments resulted from the alleged bribes, or (3) the amount of the attorney fees Frega received.

The Government's attempt to base the upward adjustment on the civil judgments is without legal basis because Frega did not personally benefit from them. The concept of "personal benefit" is firmly grounded in the law. See, e.g., United States v. Ellis, 951 F.2d at 585.

In Ellis, the Government challenged the sentence because the District Court had focused on the personal benefit to the defendant in a scheme to use improper methods to obtain passage of a bill that would benefit race tracks. The Government wanted the court to focus on the total profit to the two race tracks derived from passage of the bill as a result of their paid lobbyist's illegal acts. The Fourth Circuit, upholding the District Court's rejection of this interpretation of USSG section 2C1.1(b)(2)(A), explained,

The government claims that this approach is sanctioned by language from other provisions of the Guidelines that focuses on the total loss or harm caused by the offense. These provisions, however, show only that the drafters of the Guidelines knew how to prescribe punishment on this basis, not that they intended to in drafting ? 2C1.1. Equally unavailing is the government's reliance on the principle that a conspirator must answer for his conduct and for all foreseeable consequences of it. See Pinkerton v. United States, 328 U.S. 640 (1946). Neither the provision itself nor precedent requires that vicarious liability apply to ? 2C1.1 calculations.

Id. (italics included and emphasis added).

Examples set forth in Application Note 2 to USSG section 2C1.1 further illustrate this principle. The Sentencing Commission notes that wherein "a government employee, in return for a $500 bribe reduces the price of a piece of surplus property . . ." or "a $150,000 contract on which $20,000 was made was awarded in return for a bribe." In short, the Sentencing Commission clearly contemplated a "quid pro quo" theory in the application of a "benefit received" enhancement. The District Court correctly found that,

(Gov't Supp. ER 49.)

(Gov't Supp. ER 24.) Here, the prosecution offered no proof at trial of an official judicial decision which resulted in any "benefit received" by Frega, and the trial court was wholly justified in rejecting that theory as a basis for sentence enhancement on evidentiary grounds alone.

The authority cited by the Government to establish personal benefit is decidedly unhelpful to their position, instead supporting the District Court's decision. In United States v. Agostino, 132 F.3d 1183, 1196-97 (7th Cir. 1997), the Seventh Circuit held that a briber's liability does not extend to benefits obtained by a third party unless (1) the beneficiary jointly undertook the corrupt bribery activity with the defendant or (2) the defendant acted as the agent of the beneficiary in the corrupt transaction itself. Neither of these critical linkages are alleged between Frega and his clients. In the cases of United States v. Fitzhugh, 78 F.3d 1326 (8th Cir. 1996), and United States v. Landers, 68 F.3d 882 (5th Cir. 1995), the issue of improper liability for third-party benefits was neither raised nor ruled upon by the courts.

The Government's simplistic benefit argument, based upon the lumping together of gross jury verdict amounts, is further analytically flawed for a separate and distinct reason. Application note 2 to USSG section 2C1.1 notes that the value of a benefit received or to be received "means the net value of such benefit," a phrase which has been construed to mean a benefit value reduced by the value "that would be derived in a legitimate transaction not induced by a bribe." See United States v. Schweitzer, 5 F.3d 44, 47 (3d Cir. 1993). See also Fitzhugh, 78 F.3d at 1331; Landers, 68 F.3d at 884. Under these authorities, any measure of benefit received postulated by the Government would have to be reduced by the fees or judgements that would have been obtained in the absence of the purported bribes. Ascertainment of that figure is a patent impossibility. That impossibility arises moreover from the Government's stalwart insistence that it need never identify the corrupt judicial act which affected any case outcome nor any operative judicial act that was intended to be influenced. The Government cannot have its cake and eat it too.

The Government here also miscites the principle that a broad range of conduct "beyond the offense of conviction" may be considered at sentencing. (Gov't Memorandum 115.) Yet this theory fails to consider the specific directions in the applicable guideline, which admonish the Court to limit its analysis to the elements cited, which require a personal benefit to the defendant. The Government did not prove that Frega personally benefitted, nor did they produce sufficient evidence that the alleged bribes actually resulted in the identified judgments as the District Court properly found.

As a secondary assault on the District Court's refusal to enhance, the Government asserts that the amount of attorney fees "to be received" by Frega should have been used in the adjustment calculation. (Gov't Brief, p. 118.) The "benefit to be received test," which is conceptually distinct from the "benefit received" test, rests on the premise that an identifiable intended benefit (whether or not actually obtained as the result of a bribe) may be utilized as the appropriate basis for an enhanced sentence. The case authority cited by the Government is marked by allegations and proof of an identified act or omission by the bribe recipient which did or was intended to bear a causative relationship to the targeted benefit. Thus, the Government was obligated to prove that each alleged bribe cause a specific judgment which, in turn, resulted in a specific amount of attorney fees payable to Frega. They did not meet this requirement, as the District Court found.

The Government further miscites United States v. Tejada-Beltran, 50 F.3d 105 (1st Cir. 1995), United States v. Hang, 75 F.3d 1275 (8th Cir. 1996), United States v. Pretty, 98 F.3d 1213 (10th Cir. 1996), cert. denied, 138 L.Ed.2d 197 (1997), and United States v. Landers, 68 F.3d 882. These cases do not involve any analysis of the "intended benefit" test at all but relate to enhanced sentences based upon aggregate bribe amounts (Tejada-Beltran) or net value of benefits actually received as a result of bribes (Landers, Hang, Pretty). Similarly, in United States v. Wester, 90 F.3d 592 (1st Cir. 1996), a bank officer made loans to business partners with the understanding that loan proceeds would be used to buy out the official's interest in the business venture and that his partners would release him from a personal guarantee on a separate $12.4 million real estate loan. Both the value of the buy-out payment and the intended release on the $12.4 million loan were properly cited as intended benefits which induced the bank officer's conduct.

Finally, the Government cites United States v. Muhammad, 120 F.3d 688 (7th Cir. 1997), a case involving a juror's solicitation of a bribe from a civil litigant "in return for" his promise to sway the jury in the litigant's favor. The corrupt juror was arrested and the jury panel ultimately returned a verdict of $933,000 against the solicited litigant. The trial court utilized this figure to enhance the sentence on the ground that it constituted "the benefit to be received in return for the bribery because (the litigant) would not have to pay this amount had Muhammad influenced the verdict." Muhammad merely stands for the proposition that a case outcome may form the basis of a sentence enhancement, if the recipient's act or intended act, bears a causative relationship to that outcome. No such direct relationship was ever alleged, or proven, in the instant case. The Government's theories were rejected due to the failure to produce evidence that any corrupt act of Frega or any co-defendant led to or had any causative connection to the judgments or fees obtained. The District Court's sentencing decision should be upheld.

USSG section 3B1.1(a) provides a four-level sentence enhancement for a defendant who is an "organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive . . . ." Application Note 4 to section 3B1.1 notes several factors relevant to the "leadership" concept, including (1) exercise of decision-making authority, (2) recruitment of accomplices, (3) planning or organizing the offense, and (4) degree of control and authority exercised over others. The District Court's factual determination that the Government failed to prove these factors as to Frega was not clearly erroneous. Indeed, the factors illustrating the concept of "leadership" do not fit conceptually into the framework of a bribery-based offense, particularly where the essence of culpability claimed is corrupt intent not manifested in proven corrupt conduct.

The Government argues incorrectly that the District Court's comments at sentencing ("The evidence was that all the defendants were in effect in it together"; "there was not one leader supervising or directing the activities of the others") reflect an erroneous legal interpretation of Guideline 3B1.1(a). In support of this contention, the Government miscites a number of cases holding that there can be more than one leader of a conspiracy or criminal association. (Gov't Brief, pp. 105-106.) Yet the District Court's remarks cannot be construed as a conclusion that more than one "leader" existed, but an interpretation of the evidence leading to the conclusion that no particular defendant supervised or directed "subordinates" in the claimed bribery scheme. Taking the Government's theory of culpability at face value, i.e., the giving and accepting of gifts with an inchoate corrupt intent, no "leadership" role necessarily or logically arises in this relationship of co-equal participation.

This Court has emphasized that for a four-point upward adjustment to be appropriate, a preponderance of the evidence must support a finding that the defendant was an organizer or leader, not merely that the defendant was more culpable than others who participated in the crime. United States v. Avila, 95 F.3d 887, 889 (9th Cir. 1996). That is, the terms "leader" or "organizer" necessarily suggest "the presence of underlings and subordinates." United States v. Fuller, 897 F.2d 1217, 1220 (1st Cir. 1990). As set forth below, the concepts of "underling" and "subordinate" are not legitimately applied to Frega's relationships with Judges Greer, Malkus or Adams.

The Government asserts that Frega "recruited" the judicial officers in question into his "criminal venture." (Gov't Brief, pp. 107-08.) The trial evidence simply does not support this characterization. As noted in Frega's Opening Brief on substantive conviction issues, his relationships with all three jurists were personal and social in nature. No evidence at trial supports the notion that Frega "invented" a criminal plan and then recruited any of the judges as a participant. If, as the Government asserts, the personal relationships at issue became "friendships corrupted," that process clearly occurred gradually over a lengthy period of time. Moreover, the evidence discloses that many benefits given arose at the instigation of the judges, which fact alone militates against a finding of Frega's "dominance" over others. Significantly, and appropriately, the Government analysis is silent with respect to any claimed dominance or leadership role with respect to Co-Appellant Adams. Indeed, no evidence exists to support that contention.

The Government cites a comment by their key witness Greer to the effect that he knew he was "in trouble" after Frega contributed to the purchase of a Mercedes. (RT 1317.) That statement, however, reflects only a consciousness of professional impropriety. Moreover, any such claim of dominance was belied by Greer's repeated assertions that his relationship to Frega became a matter of friends "taking care of each other." (RT 1016.) Greer testified, without corroboration, that he assigned cases at the request of Frega. He also testified, however, that he "pressured" Frega's opponents in settlement conferences, an assertion that was denied by the participants when asked to give their impression of the same event. (See Frega's Opening Brief in Case No. 97-50100, pp. 6 & 9, describing the Hood v. Frega, Frega v. Belardo, and Herrington v. Comco Superior Court cases.)

Greer testified, at best, to a cooperative arrangement between himself and Frega. Greer had an obvious motive to portray himself as less culpable in the claimed relationship. The District Court was entitled to consider this and all other factors bearing on Greer's credibility in deciding the factual issues relevant to sentencing. See United States v. Darden, 70 F.3d 1507, 1544-046 (8th Cir. 1995), cert. denied, 517 U.S. 1149 (1996). Indeed, Congress has specifically mandated, in the context of sentencing appeals, that the Court of Appeals "shall give due regard to the opportunity of the District Court to judge the credibility of the witnesses . . . ." 18 U.S.C. ? 3742(e). As has been noted in United States v. Garcia, 66 F.3d 851, 856 (7th Cir. 1995):

The Government further attempts to show a leadership role as to Co-Appellant Malkus from a single cryptic assertion by Frega that he "had control" over Malkus' courtroom (which could be interpreted as the professional comment of a skilled litigator) and an equally cryptic comment attributed to Malkus that he was "vulnerable" to Frega in some unspecified way. (Gov't Brief, p. 108.) Neither of these comments constitute a preponderance of evidence that Frega exercised any authority or dominion over Malkus in the performance of his official duties, particularly in light of the utter absence of proof of any "tainted" Malkus decision. Nor does any of the "evidence" cited by the Government show that the District Court's decision was "clearly erroneous."

Finally, the Government cites Frega's alleged control over the car dealer Williams by arranging or requesting Williams to "provide services to many people including Judges Greer, Adams, and Malkus." (Gov't Brief, p. 108.) This theory of "control" is of dubious merit in that Williams clearly had his own interest in mind by extending "good deals" to many persons of status in the community. Equally important, there was no showing that Williams knew that any of the deals he participated in were being extended with a corrupt intent to influence the judges in their official decisions and actions. It is well settled that "to be considered a participant under the Guidelines, an individual must be criminally responsible, i.e., he must have committed all of the elements of a statutory crime with the requisite mens rea." United States v. Badaracco, 954 F.2d 928, 934-35 (3d Cir. 1992). In the absence of proof that Williams knowingly participated in a plan to corruptly benefit the officials, his relationship with Frega afforded no basis for the leadership enhancement at issue.

The District Court correctly denied the requested sentencing enhancement.

The District Court repeatedly noted that his findings on the "benefit received" issue and Frega's alleged leadership role were based upon the evidence before him. There was no "misinterpretation" of Guideline principles involved in this sentence. On the benefit obtained issue, the Court correctly noted that the prosecution sought enhanced punishment on a factual basis which it could not or would not prove at trial. Similarly, there is no basis on which to overturn the District Court's fact-based conclusion that Appellants were cooperating co-equally in whatever corrupt scheme or schemes had been shown. Counsel therefore respectfully submits that the Government's assignments of error as to sentencing should be denied.

Appellant joins in the arguments advanced by Co-Appellants in their briefs in this case.

The following related cases are pending before the Court and have been consolidated with the instant appeal:

1. United States v. James Malkus, No. 97-50111

2. United States v. Dennis Adams, No. 97-50113

3. United States v. Patrick Frega, No. 97-50100