in the united states court of appeals for the sixth ... · suarez then moved the district court to...

IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

CASE NOS. 14-4192 & 14-4249

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

BENJAMIN SUAREZ, Defendant-Appellant.

On Appeal from the United States District Court for the Northern District of Ohio

Eastern Division

BRIEF OF PLAINTIFF-APPELLEE Mark E. Schamel Joshua D. Greenberg Womble Carlyle Sandridge & Rice, LLP 1200 19th Street, NW, Suite 500 Washington, DC 20036 Telephone No: (202) 857-4481 Facsimile No: (202) 261-0098 [email protected] [email protected] Brian M. Pierce The Gothic Building 54 East Mill St., Suite 400 Akron, OH 44308 Telephone No: (330) 253-0785 Facsimile No: (330) 253-7432 [email protected]

STEVEN M. DETTELBACH United States Attorney Carole S. Rendon First Assistant United States Attorney Matthew J. Cronin Assistant United States Attorney 801 West Superior Avenue, Suite 400 Cleveland, Ohio 44113 Telephone No: (216) 622-3656 Facsimile No: (216) 522-7545 [email protected] [email protected] Rebecca Lutzko Assistant United States Attorney 2 South Main Street, Suite 208

Case: 14-4192 Document: 30 Filed: 01/26/2015 Page: 1

ii

Nicole D. Milos Cremer, Spina, Shaughnessy, Jansen & Siegert One North Franklin Street, 10th Floor Chicago, IL 60606 Telephone No.: (312) 980-3024 Facsimile No.: (312) 726-3818 [email protected] Counsel for Defendant-Appellant

Akron, Ohio 44308 Telephone No: (330) 761-0530 Facsimile No: (330) 375-5492 [email protected] Counsel for Plaintiff-Appellee


iii

TABLE OF CONTENTS Page

TABLE OF AUTHORITIES .................................................................................... iv STATEMENT REGARDING ORAL ARGUMENT .............................................. ix JURISDICTIONAL STATEMENT .......................................................................... 1 STATEMENT OF THE ISSUES............................................................................... 1 STATEMENT OF THE CASE .................................................................................. 2 SUMMARY OF THE ARGUMENT ...................................................................... 17 ARGUMENT ........................................................................................................... 18 I. THE COUNT EIGHT JURY INSTRUCTIONS WERE ACCURATE ....... 18 II. SUAREZ'S COUNT EIGHT CONVICTION NEITHER SUFFERS FROM

DUPLICITY NOR VIOLATES DOUBLE JEOPARDY. ............................ 49 CONCLUSION ........................................................................................................ 58 CERTIFICATION OF COMPLIANCE WITH WORD LIMITATION ................. 59 CERTIFICATE OF SERVICE ................................................................................ 60 DESIGNATION OF RELEVANT DISTRICT COURT DOCUMENTS .............. 61


iv

TABLE OF AUTHORITIES

FEDERAL CASES PAGE

Abney v. United States, 431 U.S. 651 (1977) ........................................................ 52

Brown v. Ohio, 432 U.S. 161 (1977) ..................................................................... 52

California v. Brown, 479 U.S. 538 (1987) ............................................................. 47

Evans v. Techs. Applications & Serv. Co., 80 F.3d 954 (4th Cir. 1996) ............... 35

Glenn v. Dallman, 686 F.2d 418 (6th Cir. 1982) ................................................... 47

Gov’t of Virgin Is. v. Cruz, 478 F.2d 712 (3d Cir. 1973) ...................................... 21

Gradsky v. Sperry Rand Corp., 489 F.2d 502 (6th Cir. 1973) .............................. 28

Greenlaw v. United States, 554 U.S. 237 (2008) ................................................... 23

Griffin v. United States, 502 U.S. 46 (1991) .................................................... 50, 51

Hoover v. Garfield Heights Mun. Court, 802 F.2d 168 (6th Cir. 1986) ................ 47

Johnson v. Hudson, 2011 U.S. Dist. LEXIS 154547 (N.D. Ohio Aug. 22, 2011), as adopted, 2012 U.S. Dist. LEXIS 44728 (N.D. Ohio Mar. 31, 2012) ....... 52 Jones v. United States, 527 U.S. 373 (1999) .................................................. passim

Judicial Watch v. U.S. Dep’t of Commerce, 224 F.R.D. 261 (D.D.C. 2004) ....................................................................... 35 Londrigan v. FBI, 670 F.2d 1164 (D.C. Cir. 1981) ............................................... 35

Martinez v. Illinois, 134 S. Ct. 2070 (2014) .......................................................... 52

Moyer v. Metro Life Ins. Co., 762 F.3d 503 (6th Cir. 2014) ................................. 23

Neder v. United States, 527 U.S. 1 (1999) ............................................................. 48


v

Norris v. Warden, Noble Corr. Inst., No. 2:08-CV-732, 2010 U.S. Dist. LEXIS 12171 (S.D. Ohio Feb. 11, 2010), as adopted, 2010 U.S. Dist. LEXIS 21198 (S.D. Ohio Mar. 9, 2010) ........................................................... 39 Osborne v. Ohio, 495 U.S. 103 (1990) .................................................................. 30

Patterson v. Mintez, 717 F.2d 284 (6th Cir. 1983) ................................................. 33

Pierce v. United States, 252 U.S. 239 (1920) ........................................................ 39

Preferred RX v. American Prescription Plan, 46 F.3d 535 (6th Cir. 1995) .......... 29

Schad v. Arizona, 501 U.S. 624 (1991) ..................................................... 51, 53, 54

Turner v. Jago, 798 F.2d 1416 (6th Cir. 1986) ...................................................... 39

United States v. Alsobrook, 620 F.2d 139 (6th Cir. 1980) ..................................... 55

United States v. Bailey, 444 U.S. 394 (1980) ........................................................ 44

United States v. Bilderbeck, 163 F.3d 971 (6th Cir. 1999) .................................... 40

United States v. Blackwell, 459 F.3d 739 (6th Cir. 2006) ..................................... 38

United States v. Blankenship, 954 F.2d 1224 (6th Cir. 1992) ......................... 17, 19

United States v. Bornfield, 184 F.3d 1144 (10th Cir. 1999) ...................... 20, 24, 27

United States v. Boyd, 640 F.3d 657 (6th Cir. 2011) .............................................. 56

United States v. Branham, 97 F.3d 835 (6th Cir. 1996) ........................................ 50

United States v. Brown, No. 97-1618, 2000 U.S. App. LEXIS 14522 (6th Cir. June 20, 2000) ................................................................................. 48 United States v. Buckley, 934 F.2d 84 (6th Cir. 1991) .......................................... 46

United States v. Busacca, 863 F.2d 433 (6th Cir. 1988) ....................................... 36

United States v. Callipari, 368 F.3d 22 (1st Cir. 2004) ......................................... 21


vi

United States v. Campbell, 42 F.3d 1199 (9th Cir. 1994) ..................................... 21

United States v. Carson, 560 F.3d 566 (6th Cir. 2009) .................................. 36, 38

United States v. Clarke, 134 S. Ct. 2361 (2014) .................................................... 45

United States v. Combs, 33 F.3d 667 (6th Cir. 1994) ............................................ 36

United States v. Concepcion, 983 F.2d 369 (2d Cir. 1992) ................................... 39

United States v. Coss, 677 F.3d 278 (6th Cir. 2012) ............................................. 48

United States v. Damra, 621 F.3d 474 (6th Cir. 2010) .......................................... 48

United States v. Damrah, 412 F.3d 618 (6th Cir. 2005) ........................................ 55

United States v. Davis, 306 F.3d 398 (6th Cir. 2002) ............................................ 55

United States v. Desposito, 704 F.3d 221 (2d Cir. 2013) ...................................... 42

United States v. Douglas, 818 F.2d 1317 (7th Cir. 1987) ..................................... 20

United States v. Doyle, 121 F.3d 1078 (7th Cir. 1997) ......................................... 52

United States v. Freeman, 813 F.2d 303 (10th Cir. 1987) ..................................... 20

United States v. Friedman, 854 F.2d 535 (2d Cir. 1988) ...................................... 20

United States v. Garcia, 400 F.3d 816 (9th Cir. 2005) .......................................... 55

United States v. Green, 779 F.2d 1313 (7th Cir. 1985) ......................................... 20

United States v. Hamilton, 684 F.2d 380 (6th Cir. 1982) ...................................... 34

United States v. Harrod, 168 F.3d 887 (6th Cir. 1999) ......................................... 38

United States v. Hecht, 705 F.2d 976 (8th Cir. 1983) ........................................... 22

United States v. Horton, 847 F.2d 313 (6th Cir. 1988) ......................................... 37


vii

United States v. Kakos, 483 F.3d 441 (6th Cir. 2007) ........................................... 49

United States v. Loya, 807 F.2d 1483 (9th Cir. 1987) ........................................... 27

United States v. Mack, 159 F.3d 208 (6th Cir. 1998) ................................ 18, 37, 42

United States v. Martin, 520 F.3d 656 (6th Cir. 2008) .......................................... 50

United States v. Miller, 734 F.3d 530 (6th Cir. 2013) ........................................... 36

United States v. Miller, 767 F.3d 585 (6th Cir. 2014) ........................................... 47

United States v. Moloney, 287 F.3d 236 (2d Cir. 2002) ........................................ 56

United States v. Morrison, 594 F.3d 543 (6th Cir. 2010) ...................................... 36

United States v. Parisien, 574 F.2d 974 (8th Cir. 1978) ....................................... 27

United States v. Prince, 214 F.3d 740 (6th Cir. 2000) .......................................... 37

United States v. Pritchett, 749 F.3d 417 (6th Cir. 2014) ....................................... 50

United States v. Rayborn, 491 F.3d 513 (6th Cir. 2007) ....................................... 36

United States v. Robinson, 651 F.2d 1188 (6th Cir. 1981) .................................... 56

United States v. Sanderson, 966 F.2d 184 (6th Cir. 1992) .................................... 56

United States v. Scarpa, 913 F.2d 993 (2d Cir. 1990) ........................................... 28

United States v. Semrau, 693 F.3d 510 (6th Cir. 2012) ...................................passim

United States v. Sivils, 960 F.2d 587 (6th Cir. 1992) ............................................ 40

United States v. Sturman, 951 F.2d 1466 (6th Cir. 1991) ..................................... 21

United States v. Tovar-Rico, 61 F.3d 1529 (11th Cir. 1995) ................................. 53

United States v. Williams, 704 F.2d 315 (6th Cir. 1983) ................................. 41, 42


viii

United States v. Williams, 952 F.2d 1504 (6th Cir. 1991) ............................... 37, 42

Valentine v. Konteh, 395 F.3d 626 (6th Cir. 2005) ................................................ 53

Woodbridge v. Dahlberg, 954 F.2d 1231 (6th Cir. 1992) ..................................... 29

FEDERAL STATUTES

18 U.S.C. §1512(b) .................................................................................... 38, 43, 56

18 U.S.C. §1512(b)(1) ......................................................................................... 2, 11

FEDERAL RULES

Fed.R.App.P. 34(a)(2)(C) ........................................................................................ ix

Fed.R.Crim.P. 7(c)(1) ...................................................................................... 51, 54

Fed.R.Crim.P. 12(b) ............................................................................................... 50

Fed.R.Crim.P. 30 ............................................................................................. passim

Fed.R.Crim.P. 52(b) ............................................................................................... 19

OTHER AUTHORITY

2-46 Modern Federal Jury Instructions-Criminal P 46.05 (2014) ......................... 40

Sixth Circuit Pattern Instructions on Attempt, §5.01 ............................................ 41


ix

STATEMENT REGARDING ORAL ARGUMENT

Plaintiff-appellee, the United States of America, believes that the facts and

legal arguments are adequately presented in the briefs and record and that the

decisional basis would not be significantly aided by oral argument. Further,

Suarez requested an expedited appeal; dispensing with oral argument would further

Suarez’s stated interest in an expedited resolution. Thus, the government

recommends that this case be decided on the briefs under Federal Rule of

Appellate Procedure 34(a)(2)(C).


1

JURISDICTIONAL STATEMENT

The government agrees with Defendant-Appellant Suarez’s statement of

jurisdiction.

STATEMENT OF THE ISSUES

I. DID THE DISTRICT COURT PLAINLY ERR IN DENYING SUAREZ’S MOTION FOR A NEW TRIAL BASED UPON AN UNPRESERVED OBJECTION TO A JURY INSTRUCTION THAT CORRECTLY RECITED THE LAW?

II. DID THE DISTRICT COURT PLAINLY ERR IN DENYING SUAREZ’S

UNPRESERVED POST-VERDICT MOTION CLAIMING THAT THE INDICTMENT WAS DUPLICITOUS, PURPORTEDLY CAUSING PREJUDICE BASED ON A WHOLLY SPECULATIVE DOUBLE JEOPARDY HARM FROM A NON-EXISTENT SECOND PROSECUTION?


2

STATEMENT OF THE CASE

A. Procedural History.

On October 22, 2013, a federal grand jury returned a Superseding Indictment

charging Benjamin Suarez, his company Suarez Corporation Industries (“SCI”),

and SCI’s then-CFO, Michael Giorgio, with conspiring to violate campaign

finance laws and obstruct justice, along with other substantive charges. (R.27:

Superseding Indictment, PageID 126). In Count 8, only Suarez was charged with

witness tampering under Title 18, United States Code, Section 1512(b)(1). (Id.,

PageID 159). On May 19, 2014, Giorgio pled guilty to counts 1 through 7.

(R.170: Plea Agreement, PageID 2330). After a month-long trial, the jury

convicted Suarez on Count 8 and acquitted him on the remaining charges. (R.285:

Verdict, PageID 3664). At Suarez’s request, the court specifically polled the jury;

its members stated they had unanimously found that Suarez had committed one or

more of the three means charged in Count 8. (R.285: Trial Tr., PageID 3669).

Suarez later moved for a judgment of acquittal or a new trial, raising the

same issues and virtually the same arguments that he now raises on appeal.

(R.288: Motion for New Trial, PageID 4245). Both parties fully briefed the issues.

The district court issued a detailed opinion denying Suarez’s motion. (R.322:

Opinion, PageID 6530). On November 14, 2014, the court sentenced Suarez to 15

months incarceration.


3

Suarez then moved the district court to reconsider its order denying his

motion for a new trial. (R.349: Motion to Reconsider, PageID 7308). In this

motion, Suarez attempted to add into the record declarations from seven attorneys

on his trial team. The court denied Suarez’s motion. It further granted the United

States’ motion to strike the declarations finding that “Defendant improperly

attempt[ed] to present new evidence for the first time in a motion for

reconsideration. Further, the Court is very disturbed with the self-serving and

inaccurate attorney affidavits, which are belied by the record.” (R.364: Order,

PageID 7982).

This appeal followed. (R.354, 365: Appeal Notices, PageID 7385, 7984).

B. Factual Statement.

1. Count 8’s Language and Underlying Evidence.

Count 8 charged Suarez with engaging in a course of conduct (described in

subparts (a) (b) and (c)) aimed at tampering with a witness named Barbara Housos,

who was SCI’s Controller. (R.27: Superseding Indictment, PageID 159). Housos

was an important witness to the defendants’ scheme to solicit numerous SCI

employees, contractors, and their spouses to illegally contribute almost $200,000 to

two candidates for federal office based on the promise that they would be fully

reimbursed with corporate funds – which they were. Housos also was an important

witness to the obstruction of the FBI’s and Grand Jury’s investigation into that


4

conduct. As Controller, Housos assisted in making the illegal corporate

reimbursements to the straw donors (including herself), the subsequent

recharacterization of the reimbursements as purported “advances” on future profit

sharing, and the production and non-production of numerous incriminating

documents, some of which were in her own office. Suarez knew that Housos, his

employee, had information directly concerning the matters being investigated. (Id.).

After learning that Housos planned to testify before the Grand Jury, Suarez

sent by late-night private courier the letter referenced in subpart (a) of Count 8.

(R.289: Trial Tr., PageID 4353; R.374: Notice of Exhibit, PageID 8594). In his

handwritten cover page, Suarez told Housos that the attached typed portion was

“his memory of what happened” and asked her to confirm its accuracy. (R.374:

Notice of Exhibit, PageID 8594). Suarez also directed Housos:

Do not tell anyone about this. Also, the new attorneys said no one should admit to wrongdoing even with a letter of immunity. That’s a lie. They will still prosecute you as a co-conspirator. Also, do not admit to anything you think might be wrongdoing to the attorneys. They could turn you in. Your testimony is key to keeping Mike G[iorgio] from getting indicted[,] which would take down SCI. Do not call me on this as our lines may be tapped.

(Id.).

Suarez proposed turning the accompanying document with his version of

events into an affidavit for Housos. (Id.). It contained false information and

information that Housos did not and could not know. (E.g., R.289: Trial Tr.,


5

PageID 4563 (confirming that, contrary to Suarez’s typewritten letter, Housos had

no “side written hand log” about the reimbursements and “do[es]n’t know what

that is”)). Housos also admitted that it was impossible for Suarez to have any

knowledge – let alone “memory” – of many of the assertions that he asked Housos

to affirm. (E.g., id. (“Q: Did you ever discuss with Mr. Suarez what you had done

in reimbursing people who contributed to Jim Renacci or Josh Mandel?” “A: No, I

did not.”)). The fabricated information was designed to exonerate Suarez.

Housos explained the emotional toll that Suarez’s actions had on her, stating

that she was “so shook up over” receiving the letter and that the experience “was

just so frightening.” (Id., PageID 4357, 4570, 4362 (“all I know is that it affected

me and I was worried and I didn’t know what to do”)). Housos was concerned

with “the whole last paragraph” (quoted above) of the handwritten note. (Id.,

PageID 4569). In particular, Suarez’s assertion that the government would still

prosecute her even with a letter of immunity “scared [her] to death.” (Id.). And,

while she speculated that Suarez, her close friend for decades, may have been

trying to help her, Housos also admitted that she had “no idea what was in his

head” and that many of his directives, such as telling her not to talk to her

attorneys, were not designed to benefit her.1 (Id., PageID 4362).

1 Suarez asserts that Housos “repeatedly testified that she thought that Mr. Suarez was trying to help her.” (Brief at 43). Suarez conveniently omits the forgoing testimony, as well as numerous other similar statements by Housos that the jury


6

Housos’ Grand Jury testimony was delayed, because she sought formal

immunity, resulting in her ultimately testifying in November 2012. Suarez then

attempted to undermine the investigation by seeking to discredit her testimony.

Two months after her testimony, Suarez publicly approached Housos at SCI’s

annual meeting, suggesting that she had previously admitted to him that she was

experiencing memory lapses. (Id., PageID 4374 (“He said that I told him I was

having memory lapses, but I have no recollection of ever telling him I had mental –

memory lapses”)). Housos testified that she was not having and had not ever had

any such problems with her mental faculties. (Id. (“Have you ever, since the

summer of 2012, experienced serious mental problems? No.”)). These events are

addressed in Count 8 subpart (c).

A month later, in February 2013, Suarez drafted a letter and demanded that

SCI’s Human Resource Director Julianne Dalayanis sign and hand-deliver it, over

her objection, to each of SCI’s more than 500 employees. The letter is described in

Count 8 subpart (b). (Id., PageID 4364; R.374: Notice of Exhibit, PageID 8600).

Notwithstanding serious concerns, Dalayanis complied, because not following

Suarez’s directive would put her at “risk of losing [her] job.” (R.292: Trial Tr.,

PageID 4832; see also id., PageID 4757). In this letter, Suarez made the following

heard explaining how Suarez’s letter scared her and that she did not know what he intended by it.


7

statements concerning Housos:

They initiated Grand Jury subpoenas to the donors. Several of the donors were experiencing serious health problems, and one of them was also experiencing serious mental problems. In June of 2012, one of the donor’s sons committed suicide, which we believe in part or in whole was directly related to his mother being under an FBI investigation. This donor also underwent major surgery in June for removal of her colon. Yet, [federal prosecutors] Dettelbach and Rendon kept harassing her right after the operation and the death of her son to testify before the Grand Jury. She later had to have another operation for a hernia in late summer. Yet, Dettelbach and Rendon still pursued her, and, shortly after her next operation, she was forced to go through eight hours of questioning and document review, and then following that, five and one half hours of grand jury testimony.

(R.374: Notice of Exhibit, PageID 8600).

Suarez’s public use of Housos’ “son’s death and [her] surgery” deeply

affected Housos. (R.289: Trial Tr., PageID 4369-70). She was “very, very upset.”

(Id.) Housos testified, “It was wrong. It was wrong. I was, you know, my heart

was torn out at the time anyway, and then to publish this, it was wrong to use my

tragedies to help this case.” (Id., PageID 4370). She similarly explained that it

was “terribly wrong” to put false information about her “out there to everyone in

the company.” (Id., PageID 4369; see also id., PageID 4372 (“everyone knew it

was me”)).

Housos called Suarez and “begged him to take it out” and not to publish the

false and shameful allegations to her friends and colleagues. (Id., PageID 4371).


8

He refused. Instead, Suarez told Housos that she “ha[d] to help the company,”

which was under investigation. (Id.).

2. Suarez’s Failure to Object to Count 8. Suarez and his codefendants engaged in significant pretrial litigation, filing

nearly twenty pretrial motions. Not a single one of those motions challenged, in

any way, the charges contained in Count 8. (R.322: Opinion, PageID 6531

(“Defendant made no pretrial motion with regard to Count Eight”)).

During trial, Suarez raised numerous objections on a wide variety of issues.

He did not, however, challenge Count 8 or seek a judgment of acquittal on that

count. (See, id., PageID 6533 (“Although the [Rule 29] motion was detailed and

lengthy, defendant Suarez did not move with respect to Count Eight”)).

3. Suarez’s Failure to Object to the Count 8 Jury Instructions.

Suarez likewise did not challenge the Count 8 jury instructions before the

jury retired to deliberate, as required by Federal Rule of Criminal Procedure 30 and

this Court’s precedent. Before trial, the district court ordered the parties to consult

and jointly submit jury instructions. (R.22: Pretrial Order, PageID 103). The

government prepared a set of proposed instructions and asked all defense counsel

to review and comment. Only Defendant Giorgio, who was not charged in

Count 8, responded. (R.322: Opinion, PageID 6533). As required by the court’s

order, the government submitted an “annotated” set of instructions identifying


9

those instructions upon which the parties agreed and those that were at issue, and

provided legal support. (Id.; R.152-1: Annotated Jury Instructions, PageID 1942-

2048). Because Suarez neither responded to the government nor objected to the

proposed instructions, the annotated instructions did not identify any objections to

them by Suarez, and in particular, included no objection concerning the “attempt”

instruction for Count 8.

Under the court’s order, “[n]o proposed jury instruction will be considered

by the [District] Court” unless included in the annotated instructions. (R.322:

Opinion, PageID 6549; R.22: Pretrial Order, PageID 103). Suarez chose not to

participate in creating the annotated instructions. (R.322: Opinion, PageID 6533

n.1 (“Defendant Suarez simply did not comply with the Court’s pretrial Order

because he failed to participate in the preparation of the joint jury instructions that

were required to be submitted”)). Suarez further did not, as the court’s order

required, independently submit an attempt instruction.2

The day before closing arguments and jury charge, the court held an in-

chambers conference to review the jury instructions, address objections, and

consider supplemental instructions that both parties had submitted. Suarez 2 Suarez noted his disagreement with the proposed language in the defendants’ joint trial brief, filed pretrial and simultaneously with the annotated jury instructions, saying the attempt instruction should be modified and citing a case. (R.151: Def. Trial Brief, PageID 1801). However, after a month long trial, many modifications to the instructions, and countless motions, he never objected to the Count 8 instructions as given by the court.


10

submitted other supplemental instructions, but did not submit a proposed

alternative “attempt” instruction for Count 8. At the beginning of that conference,

the court stated that it was working from the annotated set of proposed instructions

submitted by the government after consultation with the parties. (R.322: Opinion,

PageID 6534). The court stated that it had examined those instructions in light of

the Sixth Circuit pattern instructions and case law, both cited by the parties and

otherwise. The court addressed each instruction, in order, informing the parties of

the language it intended to use in the jury charge. (Id., PageID 6534, 6548-49).

The court described each instance in which it changed the language of the

annotated instructions, and explained the basis for its decision. (Id.) The court

heard any objections that the parties raised and addressed them, further changing

the instructions as appropriate. As the court specifically found, Suarez did not

object to the attempt portion of the Count 8 instructions. (Id., PageID 6534 (“[a]t

no time did any party raise any issue with the attempt instruction” at the

conference, and noting that the court amended other instructions based on issues

defendants actually raised at the charging conference)).

The following morning, the court provided all parties with a copy of the

instructions it planned to use. Suarez made no objections to the instructions before

closing arguments during a sidebar conference. (R.297: Trial Tr., PageID 5093-95

(discussing jury instruction issues during first sidebar)). Again he did not object


11

after closing arguments, before the court actually charged the jury. (Id., PageID

5290-91). Suarez thereby declined the foregoing five opportunities to object to the

court’s instruction. Thus, for Count 8, the district court gave the instructions it had

informed the parties it intended to give, without Suarez ever presenting an

alternative instruction or objecting to the court’s instruction.

After reading verbatim the text of 18 U.S.C. §1512(b)(1), the court

instructed as follows on Count 8:3

[(1)] For you to find defendant Benjamin Suarez guilty of the crime of witness tampering charged in Count 8 of the Superseding Indictment, the government must prove each of the following two elements beyond a reasonable doubt:

First, that on or about the date charged, Benjamin Suarez knowingly intimidated, threatened, corruptly persuaded, or engaged in misleading conduct toward the person identified in the Superseding Indictment as a witness, or attempted to do so.

And second, that Benjamin Suarez did so intending to influence, delay, or prevent the testimony of that person in an official proceeding.

[(2)] An act is done knowingly if it is done voluntarily and purposely, and not by accident or mistake.

[(3)] The term “Intimidation” as used in these instructions means the use of any words or any actions that would harass, frighten, or threaten a reasonable, ordinary person to do something that person would not otherwise do, or not to do something that the person otherwise would do.

3 Suarez asserts that “the District Court gave the jury an instruction defining ‘attempt’ for Count 8 that eliminated the intent element of the offense.” (Brief at 1). A review of the complete instruction belies that claim.


12

[(4)] To corruptly persuade means to act knowingly with a wrongful, immoral or evil purpose to convince or induce another person to engage in certain conduct.

[(5)] As I indicated, the first element may be satisfied if Benjamin Suarez actually used intimidation, threats, corrupt persuasion, or engaged in misleading conduct, or if he attempted to do so. A defendant may be found to have attempted to intimidate, threaten, corruptly persuade, or engage in misleading conduct if his conduct constituted a substantial step towards committing the crime. The act which constitutes a substantial step must corroborate the defendant's criminal purpose.

[(6)] The government is not required to prove that an official proceeding was ongoing - or even about to be instituted- at the time of the offense. The law requires only that the proceeding was foreseen by the defendant such that the defendant knew that his actions were likely to affect the proceeding.

[(7)] If you are convinced that the government has proved all of these elements, say so by returning a guilty verdict on this charge. If you have a reasonable doubt about any one of these elements, then you must find the defendant not guilty of this charge.

The phrase “With intent to influence, delay, or prevent testimony” means to act for the purpose of causing any person to change her testimony or information in any way or to withhold testimony or information, permanently or only for a period of time.

The government is not required to prove that the person to be threatened, intimidated, corruptly persuaded, or mislead, actually felt threatened, or intimidated, or influenced, or misled, or that there was any actual delay or withholding of that person's testimony.

The government must prove beyond a reasonable doubt, however, that defendant, Benjamin Suarez acted with intent to influence, delay, or prevent testimony.

(R.297: Trial Tr., PageID 5323-25) (emphasis added).


13

Most telling of all, after the jury charge, the court brought all counsel to

sidebar and asked if they had any objections to the instructions. Although asked

twice, Suarez’s counsel affirmatively stated he had no objections to anything,

including the Count 8 instructions:

THE COURT: On behalf of the government, any objections?

MS. RENDON: No, Your Honor. ***

MR. SCHAMEL: On behalf of Mr. Suarez no objections.

THE COURT: On behalf of defendant Benjamin Suarez.

MR. SCHAMEL: No objections, Your Honor.

(R.297: Trial Tr., PageID 5343 (emphasis added) (SCI also stating it had no

objections)). The jury then retired to deliberate.

4. The District Court’s Polling of the Jury.

During its deliberations, the jury asked the court one question about Count 8:

“In order to find as it pertains to superseding indictment Page 34, Paragraph 99,

does the burden have to be met on A, B and C, or any one?” (R.285: Trial Tr.,

PageID 3673). Suarez acknowledged that, as a legal matter, only one must be

found. Nonetheless, Suarez claimed that because the indictment was drafted in the

conjunctive (as indictments properly are to provide sufficient notice to defendants),

the court should instruct the jury that it must find all three. The court – in

accordance with precedent – declined to do so and while the government asserted


14

that the jury did not have to be unanimous on any one of the means, “eventually

counsel all agreed that the answer should be ‘any one.’” (R.322: Opinion, PageID

6535). Suarez then requested that the court’s answer also state “beyond a

reasonable doubt” and include language on unanimity, despite the fact that the jury

already had been instructed on unanimity. The court told the jury, “[a]ny one

beyond a reasonable doubt.” (Id.) Suarez later demanded that the court give a new

answer focused on unanimity; the government opposed. (R.274: Motion, PageID

3608; R.276: Opposition, PageID 3614). The jury returned its verdict shortly

thereafter, mooting the issue.

After the verdict was read, the court polled each juror to confirm that the

verdict accurately reflected his or her verdict. (R.285: Trial Tr., PageID 3665-66).

Suarez’s counsel then requested a second poll “as to which of the three acts, the A,

the B, or the C of Count 8 that they found on. If they, in fact, they found

unanimity as to one of those three, we think we need to preserve that for appeal.”

(Id., PageID 3667) (emphasis added).4 On appeal, Suarez states that “The District

Court denied Mr. Suarez’s request to poll the jury on which act it found him

guilty.” (Brief at 2, 9, 11). Not true. Not only did the court poll the jury at

4 Because jury unanimity is not an issue that Suarez can raise on appeal since the court acceded to his request, he seeks now to frame the same issue as a Double Jeopardy challenge. (See Brief at 51). That legal sleight of hand is unpersuasive.


15

Suarez’s request, Suarez agreed to the specific language that the court proposed for

the poll:

MR. SCHAMEL: “That’s fair, Judge. I’m not asking – they have to have been unanimous as to one of them, and that’s why when we had the note –

THE COURT: Of at least one.

MR. SCHAMEL: Correct.

(R.285: Trial Tr., PageID 3668 (emphasis added)). The court then asked each juror,

“as to defendant Benjamin Suarez and as to Count 8, did you unanimously agree

on at least one of the three acts?” (Id., PageID 3669). Each juror replied

affirmatively. (Id.)

5. Suarez’s Brief is Rife with Other Misstatements and Omissions. Suarez’s brief contains numerous inaccurate and incomplete statements

regarding the record and omits facts that belie many of his claims. In the interest

of brevity, the government addresses only two.

Suarez claims that Giorgio testified “that he did not know during the spring

of 2011 that the campaign finance laws prohibited his conduct and that he had no

intent to violate those laws.” (Brief at 4, emphasis in original). Suarez fails to

acknowledge that during three days of testimony, Giorgio repeatedly admitted that

he acted knowingly, willfully, and in a criminal manner. For example, Giorgio

testified:


16

Q. Mr. Giorgio, you said on cross-examination that you made a mistake. Do you recall that?

A. Yes, I do.

Q. Did you make a mistake or did you commit a crime?

A. I’m saying I committed a crime.

* * * *

Q. All right. Let me back up. You committed a crime. What crime did you commit?

A. I funneled -- I used corporate cash, corporate money to make campaign contributions, to cause the campaigns to file false reports, and I created straw donors.

* * * *

Q. And was there any doubt in your mind that at the time that SCI was reimbursing the straw donors, that making corporate contributions was illegal?

A. There -- I knew corporate contributions were illegal.

(R.307: Trial Tr., PageID 6288-6291) (overruled objections and rulings omitted).

Suarez likewise claims that the court was disturbed by his false declarations

“because they challenge and refute” the court’s application of plain error. (Brief at

27). Not so. In striking Suarez’s inaccurate declarations, the court made clear that

the reason it was “very disturbed” with the declarations is that they were false,

stating: “The motion to strike is GRANTED…the Court is very disturbed with the

self-serving and inaccurate attorney affidavits, which are belied by the record.”

(R.364: Order, PageID 7982).


17

SUMMARY OF THE ARGUMENT

Suarez’s conviction should stand. The court’s instruction on Count 8

properly instructed on intent and there was no error. That conclusion is buttressed

by the fact that Suarez did not preserve any objection to the Count 8 jury

instructions as Federal Rule of Criminal Procedure 30 and binding precedent both

require, thus requiring plain error review. See Fed.R.Crim.P. 30(d); United States

v. Blankenship, 954 F.2d 1224, 1230 (6th Cir. 1992) (“Fed.R.Crim.P. 30 requires

that, in order to preserve an objection, a party must object to the instruction before

the jury retires and must state the grounds of the objection”); Jones v. United

States, 527 U.S. 373, 388 (1999) (“nor does a request for an instruction before the

jury retires preserve an objection to the instruction actually given by the court.”).

The government thoroughly addresses the standard of review to respond to

Suarez’s numerous factually and legally inaccurate claims. The court’s instruction,

however, was legally correct regardless of the standard of review. Suarez’s

attempt to selectively parse the court’s instructions, pick words out of context to

suit his purposes rather than read them as whole, and create a false doctrine

unsupported even by the cases upon which he relies should be soundly rejected.

Suarez’s second argument attempts to combine two waived and flawed

claims relating to duplicity and Double Jeopardy. It urges the unsupported

conclusion that in some theoretical future prosecution, he might be charged with


18

the same crime. His duplicity claim is contradicted by uncontroverted precedent

establishing that indictments may, as Count 8 did, charge multiple means of

commission in one count. That is especially true in this case, as the charge

describes a single continuing course of illegal conduct. His attendant Double

Jeopardy claim, founded upon a speculative second prosecution, has been

universally rejected by this Court and others. This argument likewise fails. Suarez

failed to raise this claim before trial, also relegating this argument to plain error

review now.

None of Suarez’s arguments are correct. None were preserved. This Court

should affirm Suarez’s conviction.

ARGUMENT

I. THE COUNT EIGHT JURY INSTRUCTIONS WERE ACCURATE.

Suarez failed to preserve his Count 8 jury instruction argument under

Rule 30, Supreme Court precedent, and this Circuit’s jurisprudence. This Court

thus reviews his argument under the plain error standard. Moreover, the court’s

instructions were legally sound. Suarez’s contrary argument hinges on a myopic

view of the instructions, parsing words out of context. Such a selective reading is

improper. United States v. Mack, 159 F.3d 208, 218 (6th Cir. 1998) (courts must

“review jury instructions as a whole to determine whether they fairly and

adequately submitted the issues and applicable law to the jury”). It ignores not


19

only entire sections of the jury instructions detailing intent, but also precedent

establishing the legal soundness of the instructions.

A. Suarez’s Failure to Timely Object Mandates Plain Error Review.

1. Binding Precedent Requires Plain Error Review.

Suarez forfeited any objection to the Count 8 jury instructions because he

failed to object on the record before the jury retired to deliberate as required by the

plain language of Fed. R. Crim. P. 30(d) and interpretive precedent.

Rule 30(d) states:

Objections to Instructions. A party who objects to any portion of the instructions or to a failure to give a requested instruction must inform the court of the specific objection and the grounds for the objection before the jury retires to deliberate. An opportunity must be given to object out of the jury’s hearing and, on request, out of the jury’s presence. Failure to object in accordance with this rule precludes appellate review, except as permitted under Rule 52(b).

Fed.R.Crim.P. 30(d) (emphasis added); Fed.R.Crim.P. 52(b) (plain error standard).

When a defendant first objects to a jury instruction after the jury retires to

deliberate, plain error applies. Blankenship, 954 F.2d at 1230.

According to the Supreme Court, to preserve an objection to jury

instructions, a defendant must affirmatively state his objection, on the record, after

the court has formulated the instructions that it plans to give and has given those

instructions to the jury: “a request for an instruction before the jury retires” does

not preserve “an objection to the instruction actually given by the court.” Jones,


20

527 U.S. at 388. To preserve an objection, “merely submitting instructions is not

sufficient. Instead, a defendant must object, on the record, to the judge’s refusal to

tender the defendant’s instructions, and must clearly state the reasons for his or her

objections.” United States v. Douglas, 818 F.2d 1317, 1320 (7th Cir. 1987)

(emphasis added). See also United States v. Semrau, 693 F.3d 510, 527 (6th Cir.

2012) (“[m]erely proposing a jury instruction is insufficient to preserve an

objection”); United States v. Bornfield, 184 F.3d 1144, 1146 (10th Cir. 1999)

(stating specific objection to instruction during an off-the-record conference not

sufficient); United States v. Green, 779 F.2d 1313, 1320 n.6 (7th Cir. 1985)

(objection not preserved where “defendant originally argued on behalf of his

proposed instruction, but offered no further comment, much less an objection”

after court adopted other instructions); United States v. Freeman, 813 F.2d 303,

305 (10th Cir. 1987) ( “defendant’s submission of proposed instructions does not

satisfy Rule 30”).

As courts have consistently noted, the “separate references in Rule 30 to

charge requests and to objections clearly indicate that a charge request does not

relieve a party of the obligation to make a specific objection.” United States v.

Friedman, 854 F.2d 535, 555 (2d Cir. 1988) (citing cases). Thus, “a party who has

requested an instruction that has not been given is not relieved of the requirement

that he state distinctly his objection to the instruction that is given.” Id. at 556


21

(emphasis added); United States v. Sturman, 951 F.2d 1466, 1475 (6th Cir. 1991)

(citing Friedman with approval) (argument unpreserved when defendant did not

state specific objections to instruction given on the record after court instructed

jury); United States v. Campbell, 42 F.3d 1199 (9th Cir. 1994) (defendant’s

submission of alternate instruction on issue of criminal intent did not satisfy Rule’s

requirement of stating distinctly matter to which he objects and grounds). Thus,

even a defendant who proposes an alternative instruction that is not given, which

Suarez did not do, must thereafter lodge a distinct and specific objection on the

record to the instruction that the court actually gives.

In Jones, the Supreme Court explained why this requirement is so strict:

These timeliness and specificity requirements . . . enable a trial court to correct any instructional mistakes before the jury retires and in that way help to avoid the burdens of an unnecessary retrial. Nor does a request for an instruction before the jury retires preserve an objection to the instruction actually given by the court. Otherwise, district judges would have to speculate on what sorts of objections might be implied through a request for an instruction and issue rulings on “implied” objections that a defendant never intends to raise. Such a rule would contradict Rule 30’s mandate that a party state distinctly his grounds for objection.

527 U.S. at 387-88 (emphasis added).5

5 Rule 30’s requirement cannot be circumvented by claiming there was no point in objecting because the court had already heard and disagreed with defendant’s argument. Gov’t of Virgin Is. v. Cruz, 478 F.2d 712, 718 (3d Cir. 1973) (defendant must specifically object on the record even if he believes “there was no point in doing so since he had already made his objections”); United States v. Callipari, 368 F.3d 22, 41 (1st Cir. 2004) (remanded on other grounds) (general objection or


22

Suarez did not once object on the record nor clearly state his reasons for

such objection concerning the now-challenged Count 8 instruction, as required by

Rule 30. Indeed, as required by Rule 30(d), the district court gave Suarez an

“opportunity. . . to object [to the jury instructions] out of the jury’s hearing.” In

fact, the court did so, on the record, at least three times: once during a discussion

of jury instructions at sidebar before the jury was charged, and twice after the jury

was charged, but before the jury retired, by specifically asking whether Suarez had

any objections to the instructions. (R.297: Trial Tr., PageID 5093-95, 5343).

Suarez did not object, much less “articulate the specific errors the trial judge would

commit” by giving the instruction the court gave. See United States v. Hecht, 705

F.2d 976, 978 (8th Cir. 1983) (Rule 30(d) “requires a defendant to ‘articulate the

specific errors the trial judge would commit if he failed to give [defendant’s]

requested instruction’”). Suarez’s affirmative statement that he had “no

objections” permitted the court to proceed without reason to consider and “correct”

the language about which Suarez now complains. That failure limits review to

plain error.

In fact, Suarez forfeited the opportunity to challenge the attempt instructions

on at least seven occasions. First, he failed to comply with the court’s pretrial

order and inform the government and the court of his objection in response to the incorporating arguments or objections made in charging conference by reference is insufficient).


23

government sending him a proposed joint set of jury instructions. (R.22: Pretrial

Order, PageID 103; R.152-1: Annotated Instructions, PageID 1942). 6

Second, he failed to submit independently to the court a proposed jury

instruction on attempt – as required by the court’s pretrial order. (R.22: Pretrial

Order, PageID 103; R.322: Opinion, PageID 6533 n.1, 6534). Suarez knew he

must provide the court with any instruction that he wanted given, as evidenced by

his submission of other disputed instructions, such as his proposed “perjurer’s

instruction,” which he submitted and which was discussed at length during the jury

charge conference. (R.270: Proposed Instruction, PageID 3567). Although

submitting such an instruction or raising it in connection with the government’s

preparation of the annotated instructions, alone, would not have preserved his

objection, see, e.g., Semrau, 693 F.3d at 527, those are nonetheless forfeited

opportunities to make an objection known and further support the court’s

reasonable determination that Suarez had no objection to the instruction. 6 Suarez claims that the court violated the “party presentation principle” by sua sponte invoking the pretrial order. (Brief at 19). Not so. Greenlaw v. United States, cited by Suarez, addressed only whether an appellate court could sua sponte increase a defendant’s sentence without the government’s statutorily required cross-appeal. 554 U.S. 237, 244 (2008). That case is irrelevant to whether a court can consider an additional sub-point supporting an argument properly raised by a party. See Moyer v. Metro Life Ins. Co., 762 F.3d 503, 505 (6th Cir. 2014) (party presentation principle does not foreclose this Court from considering additional points supporting a party’s larger argument) (rehearing en banc denied, 2014 U.S. App. LEXIS 20701, *1 (6th Cir. Oct. 24, 2014)). The government clearly requested that the district court employ a plain error review. (R.293: Response to New Trial Motion, PageID 4952, 4977-84).


24

Third, Suarez did not object to the attempt instruction during the in-

chambers jury instruction conference notwithstanding that the court modified other

portions of the Count 8 instructions. (R.322: Opinion, PageID 6534, 6548). While

simply raising the issue during the charging conference would not, alone, have

preserved such objection, see, e.g., Semrau, 693 F.3d at 527; Bornfield, 184 F.3d at

1146, Suarez again failed to use this opportunity to even bring the issue to the

court’s attention.

Fourth, having received a written copy of the instructions the court planned

to give to the jury, Suarez did not object to the Count 8 instruction despite a

sidebar conference before closing arguments during which the instructions were

again discussed. (R.297: Trial Tr., PageID 5093-95). Suarez likewise did not

object to the Count 8 instruction after closing arguments, before the actual jury

charge, thus forfeiting the issue a fifth time. (Id., PageID 5290-91).

Suarez forfeited the issue a sixth and seventh time when, at sidebar, after the

charge was read, but before the jury retired to deliberate, he twice failed to object

to the Count 8 instruction on the record in response to an explicit question from the

court asking whether he had any objections to the instructions given. (Id., PageID

5343). To the contrary, in response to the court’s question, Suarez’s attorney twice

affirmatively answered “no objections.” (Id.).


25

If he truly had an issue with the Count 8 instructions, Suarez had the

affirmative obligation to clearly articulate, on the record, his objection to the

instructions and basis thereof after the court informed the parties of the instructions

it planned to give and after the court in fact gave the instructions. That never

happened. Plain error review thus applies.

2. Mentioning Disagreement with a Proposed Instruction in a Pretrial Brief Does Not Preserve an Objection.

a. Suarez’s Claim is Contrary to Precedent.

Suarez attempts to claim preservation and avoid plain error review by

referring to statements regarding the Count 8 instructions made in defendants’ joint

trial brief filed 25 days before trial even started. That argument is without merit

and ignores contrary precedent, not to mention practical realities facing trial judges

managing complex cases. This Court has refused to find Rule 30’s mandate

satisfied even where – unlike in this case – defendants have made some effort to

preserve their objections, but failed to do so on the record after the court

announced the instructions it would give and after those instructions were actually

given.

In Semrau, a defendant submitted several proposed instructions to discuss at

a charging conference before closing arguments and the jury charge. The court

acknowledged receiving those instructions, but asked the parties to examine the set

of instructions that the court had prepared before the conference as a “template” or


26

“central document to work from.” Semrau, 693 F.3d at 526. Defendant’s attorney

asked the court to consider a specific instruction (#2) he proposed. The court

examined it, stated that the language was confusing, but said “we can look at it

some more.” Id. The court adjourned the conference, stating that unless the

parties raised a particular jury instruction issue the following day, the court would

regard the proposed instructions as duplicative. The defendant did not raise

proposed instruction #2 nor a second instruction (#5) during a conference the

following morning, and did not object after the jury was charged. Id.

This Court held that proposed instruction #5 could be reviewed only for

plain error because the defendant “did not request his proposed instruction #5 at

either charge conference and did not object to its omission from the jury charge

before or after it was given.” Id. at 527. Suarez, likewise, did not request the

attempt instruction at the charge conference and did not object to its omission from

the jury charge before or after it was given. That Suarez proposed modifications to

the attempt instruction in his trial brief almost two months earlier did not preserve

his objection.

This Court also found that plain error review applied to proposed instruction

#2 even though Semrau – unlike Suarez – raised the issue at the jury charge

conference. This Court rejected Semrau’s argument that his request at the charge

conference sufficed to preserve his objection to the actual instructions given by the


27

court, holding that the “objection was forfeited by a failure to properly object

pursuant to Rule 30(d).” Id. This Court reasoned, “[m]erely proposing a jury

instruction is insufficient to preserve an objection,” and Semrau’s “attempt to

‘draw the court’s specific attention’ to his proposed instruction also does not

satisfy Rule 30(d)’s requirement to ‘inform the court of the specific objection and

the grounds for the objection.’” Id. (noting failure to object “before or after the

charge was read to the jury”). See also United States v. Loya, 807 F.2d 1483, 1491

(9th Cir. 1987) (defense counsel objecting in an off-the-record conference but

failing to specifically object on the record afterwards does not preserve an

objection).

The holding in Bornfield also undermines Suarez’s claim. During an off-

the-record conference, Bornfield did not merely request an instruction, but actually

stated a distinct and specific objection to the court’s instruction and reasons why it

should not be given. Bornfield, 184 F.3d at 1146. That specific objection was

even put on the record after the fact by the court. Id. The Tenth Circuit

nonetheless held that defendant’s off-the-record objections were not proper

because defense counsel is “obligated to object on the record before the jury

retired to preserve his objection for appellate [review].” Id. (emphasis in original).

See also United States v. Parisien, 574 F.2d 974 (8th Cir. 1978) (district court

noting a defendant’s “exception to any requested instructions that were not


28

included in the general charge” fails to preserve objection); United States v.

Scarpa, 913 F.2d 993, 1020 (2d Cir. 1990) (even in on-the-record instruction

conference, defense counsel did not provide sufficiently specific objection when he

requested different instruction and cited a supporting case).

b. Suarez’s Citations Do Not Support His Position. Suarez claims that in Jones, the Supreme Court recognized that “a defendant

can preserve a claim that a jury instruction is erroneous by submitting an objection

in writing before the jury retires.” (Brief at 13). Jones, however, does not say this,

in any manner. See Jones, 527 U.S. at 384-89.

Suarez also leans heavily on Gradsky v. Sperry Rand Corporation, 489 F.2d

502 (6th Cir. 1973) (per curiam). It offers no support. Gradsky is (1) a three-page

per curiam decision, (2) in a civil case that does not interpret Rule 30, (3) decided

over 40 years ago and well before the Supreme Court’s seminal Jones decision

interpreting Rule 30, and (4) unlike the instant case, does not involve a party who

affirmatively informed the court at all, much less twice, that there were no

objections to the court’s jury charge as given. See also Fed.R.Crim.P. 30,

Advisory Committee Notes on 2002 amendments (noting change to Rule 30(d)’s

language in light of Jones). Gradsky has no bearing on this case.

Moreover, Suarez fails to mention Woodbridge v. Dahlberg, where this

Court both rejected the same argument that Suarez makes here and limited


29

Gradsky’s holding. Woodbridge v. Dahlberg, 954 F.2d 1231, 1235-36 (6th Cir.

1992). There, this Court held that “[t]he law in this circuit generally requires a

formal objection, which should in most circumstances be made both before and

after the jury instructions are read to the jury.” Id. (emphasis added). Woodridge

flatly rejects Suarez’s claim that proposed language in a pretrial brief preserves an

objection. Instead, Woodbridge held that where a party “submit[s] a proposed jury

instruction with their pre-trial brief which contained the language that was

ultimately omitted from the charge,” but informed the court, both during a pre-

charge conference and on the record after the jury charge that he had no objections,

the party does not preserve a jury instruction objection for appeal. Id. at 1235-36

(finding that “result is entirely consistent with this court’s most recent decisions”);

Preferred RX v. American Prescription Plan, 46 F.3d 535, 547 (6th Cir. 1995)

(“The rule reiterated in Woodbridge is not a ‘mere formality,’ but was developed to

fulfill the basic purpose of Rule 51; that is, to alert the trial judge to potential

problem areas so that the jury can be clearly and correctly instructed”).

The only possible exception to this rule is when it is “plainly apparent from

the discussion between the parties and the judge that the judge was aware of a

party’s dissatisfaction with the instruction, as read to the jury, and the specific

basis for that claimed error or omission.” Id. (emphasis added). The district court

confirmed that it was unaware of any objections; it thus was not “plainly


30

apparent.” (R.322: Opinion, PageID 6548-49). Even if this Court were to consider

civil cases to interpret a criminal rule, this Circuit’s standard mandates plain error

review.

Beyond Gradsky, Suarez attempts to support his legally unsound approach

with inapposite cases like Osborne v. Ohio, a child pornography case involving an

unrelated due process challenge to a state court conviction that the defendant

properly raised in a motion to dismiss. 495 U.S. 103 (1990). What he fails to

mention is that while the Court found this due process argument preserved, it also

held that it could not consider the defendant’s jury instruction challenge because

defense counsel failed to object to the jury instruction on the record. Id. at 123.

Indeed, the Supreme Court found that the rule forfeiting review when counsel fails

to object to an instruction “serves the State’s important interest in ensuring that

counsel do their part in preventing trial courts from providing juries with erroneous

instructions.” Id. at 123-24. A full reading of Osborne only serves to highlight the

fact that by failing to object on the record, Suarez failed to preserve his jury

instruction claim.

3. Suarez’s Assertion that the District Court Addressed the Count 8 Concerns Stated in His Pretrial Brief by Omission Is Contrary to the Record.

Suarez tries to avoid plain error review by asserting that the district court

“considered all of the objections in Defendant’s Joint Trial Brief” before


31

instructing the jury because the court stated that it “carefully reviewed the trial

briefs” in its opinion denying his motion for a new trial. (Brief at 16-20). Even if

this claim could trump the above-described precedent, is contrary to the record.

Suarez provides only a snippet of the actual quote, and uses it out of context.

What the court actually said is:

Upon review, the Court finds that defendant’s challenges to the jury instructions are subject to plain error review. As set forth above, the Court’s pretrial Order required the parties to submit a joint set of annotated instructions indicating the objections to each instruction. The government submitted the document, in which the government indicates that only defendant Giorgio participated by providing comments. The government incorporated those comments and objections into the joint set and the Court utilized this document as a starting point during the jury conference with the parties. The Court did not unilaterally accept the government’s proposed instructions. To the contrary, many of the instructions, including the “corruptly” instruction, were altered by the Court. Notably, the annotated instructions do not indicate any objection or alternate instruction with regard to “attempt.” Although the Court carefully reviewed the trial briefs, the Court specifically instructed the parties to provide an annotated set to assist the Court with addressing all issues with the jury instructions. In fact, the Court specifically informed all parties that “No proposed jury instruction will be considered by the Court unless it has been submitted in compliance with these provisions.” (Doc. 22). As is readily apparent from the annotated set, the government and co-defendant Giorgio were able to reach an agreement on a number of issues related to the instructions. (See, Doc. 152-1 at n.1). Thus, the joint set became the Court’s working document for all jury instruction issues. The Court informed the parties that it would be using this document during the jury charge conference.

(R.322: Opinion, PageID 6548). Read in context, the quoted language plainly

conveys that “although” the district court reviewed the trial briefs, it focused on the


32

annotated instructions to determine where there was an objection. It did so

because, in this multi-defendant case, the court ordered the parties to identify

objections and disagreements in this manner. (R.22: Pretrial Order, PageID 103).

See Semrau, 693 F.3d at 527 (“district courts have some discretion to direct how

and when objections to jury instructions should be made”). As the court found,

“No defendant ever informed the Court that the annotated set of jury instructions

provided by the government misstated the objections in any fashion. . . . [and] “[a]t

no time [during the in-chambers jury charge conference] did any party raise any

issue with the attempt instruction.” (R.322: Opinion, PageID 6533-34). Rule 30

compelled Suarez to identify the “attempt” issue for the court on the record if he

continued to object. Suarez cannot properly blame his failure to object on the court

by distorting its words.

Similarly, the fact that the court at the conference eliminated some language

from the government’s proposed willfulness instruction in accord with the

defendants’ alternative proposed instruction and argument in their trial brief only

weakens Suarez’s claim. (Brief at 16-18). Because codefendant Giorgio informed

the government that he disagreed with its proposed willfulness instruction and

planned to submit an alternate instruction, the government clearly noted that

disagreement in footnote 15 of the annotated jury instructions. (R.152-1:

Annotated Instructions, PageID 1989). That the court resolved that disagreement


33

and changed its willfulness instruction only further highlights Suarez’s repeated

failure to bring any “attempt” objection to the court’s attention at the charging

conference or otherwise in conformity with Rule 30.

In short, the court simply did not address an objection to the attempt

instruction because Suarez failed to make it. Distorting the record does not alter

that fact.7

4. Suarez’s Claimed “Standing Objection” Practice Does Not Change the Standard of Review.

Suarez incorrectly claims that the district court’s practice “was that an

already stated objection need not be repeated to be preserved.” (Brief at 23-24).

Not so. The first of only two examples he can offer as support involves a question

to a witness regarding a document that previously was admitted over Suarez’s

objection. (Brief at 23). Not surprisingly, the court told Suarez that he need not

object to every subsequent question regarding that admitted document to preserve

his objection. To do otherwise would be to render the examination of witnesses

and arguments incomprehensible. The second example is the district court

propounding the Bostic question, which the court is required to ask in the very 7 Moreover, the case Suarez cites to support this argument does not. In Patterson v. Mintzes, which does not involve jury instructions, this Court found that an objection to a magistrate’s report and recommendation filed outside the standard 10-day threshold was still timely because 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 6(b)(1) give the court specific latitude to accept a late objection and the district court actually addressed the objection. 717 F.2d 284 (6th Cir. 1983). Rule 30(d)’s exacting standards provide no such latitude.


34

form in which it was asked at sentencing. (Brief at 24). The district court did not,

by following Sixth Circuit precedent post-trial, in any way establish a court

practice that objections were not required on the record.

Moreover, the court did not “previously overrule” an objection regarding the

attempt instruction; there was no ruling because, due to Suarez’s silence, there was

no objection. Further, as a matter of law, a generalized standing objection does not

satisfy Rule 30’s specificity requirement. See United States v. Hamilton, 684 F.2d

380, 385 (6th Cir. 1982) (“The question is whether a standing objection to any

requested instructions not given serves the purpose of Rule 30. We hold that it

does not.”).

5. The Court Properly Struck Suarez’s Inaccurate, Self-Serving Affidavits, which the Record Refutes.

In a final attempt to rewrite history, Suarez’s counsel filed declarations five

months after the trial ended, which the court appropriately struck after concluding

that they were “self-serving,” “inaccurate,” and “belied by the record.” (R.364:

Order, PageID 7982). Suarez does little to argue that the court’s explicit finding

was an abuse of discretion beyond asserting that the court had an affirmative

obligation to dispute his counsel’s post hoc version of events. The court already

detailed what happened in its 25-page opinion. (See R.322: Opinion, PageID

6530). The court was under no obligation to repeat itself and Suarez cites to no

precedent supporting the theory that the court abused its discretion for failing to do


35

so. As the fact-finder who was present on all occasions, the district court – not the

inaccurate, self-serving, post-hoc statements of defense counsel or a recitation of

their purported subjective motivations – is the proper arbiter of what occurred.

Indeed, it is quite proper to strike such materials. See generally Judicial

Watch v. U.S. Dep’t of Commerce, 224 F.R.D. 261, 263 (D.D.C. 2004) (remanded

on other grounds) (it is “within the sound discretion of the trial judge” to strike

declaration “statements that are impermissible hearsay, conclusory or self-serving

are generally precluded”); Evans v. Techs. Applications & Serv. Co., 80 F.3d 954,

962 (4th Cir. 1996) (because courts “generally consider self-serving opinions

without objective corroboration not significantly probative, the decision to strike

and disregard as irrelevant Evans’s assertions was not improper”); Londrigan v.

FBI, 670 F.2d 1164, 1174 (D.C. Cir. 1981) (holding that “an affidavit based merely

on information and belief is unacceptable” and striking affidavit).

Suarez’s declarations are impermissible hearsay that question the court’s

integrity. See, e.g., Judicial Watch, 224 F.R.D. at 265. The district court did not

abuse its discretion in striking them.8

8 Although the government did not add its own declarations to the record, Suarez is incorrect to claim that is because the government agrees with his version of events. The court struck the declarations on the government’s motion and made findings, which obviated the need for the government to state further that Suarez’s reconstructionist history is wrong.


36

The law, the record and the district court’s findings are clear. Suarez did not

preserve his objection, relegating his claim to plain error review.

B. The District Court’s Count 8 Jury Instructions Correctly Reflected the Relevant Law and Thus Were Not Erroneous, Plainly or Otherwise.

1. An Unchallenged Jury Instruction Rarely Constitutes Plain Error.

“In the context of challenges to jury instructions, plain error requires a

finding that, taken as a whole, the jury instructions were so clearly erroneous as to

likely produce a grave miscarriage of justice.” United States v. Morrison, 594 F.3d

543, 546 (6th Cir. 2010) (internal quotation marks and citation omitted); see also

United States v. Miller, 734 F.3d 530 (6th Cir. 2013); United States v. Combs, 33

F.3d 667, 669 (6th Cir. 1994). A trial court’s rulings are rarely plain error, cf.

United States v. Busacca, 863 F.2d 433, 435 (6th Cir. 1988) (it must be “an

egregious error, one that directly leads to a miscarriage of justice”), and the power

to reverse for plain error is used “sparingly.” Jones, 527 U.S. at 389.

“[A]n improper jury instruction will rarely justify reversal of a criminal

conviction when no objection has been made at trial . . . and an omitted or

incomplete instruction is even less likely to justify reversal, since such an

instruction is not as prejudicial as a misstatement of the law.” Miller, 734 F.3d at

538 (emphasis added); United States v. Rayborn, 491 F.3d 513, 521 (6th Cir.

2007); see also Jones, 527 U.S. at 389. Moreover,“[t]rial courts have broad

discretion in drafting jury instructions.” United States v. Carson, 560 F.3d 566,


37

578 (6th Cir. 2009). A court’s refusal to use defendant’s requested language is

never an error “if the instruction as given is accurate and sufficient.” Mack, 159

F.3d at 218 (quoting United States v. Horton, 847 F.2d 313, 322 (6th Cir. 1988)).

Even if a defendant’s proposed alternative instruction was a more accurate

statement of the law, that fact alone does not establish that the court’s instruction

was plainly erroneous. Id.

2. The District Court’s Count 8 Instructions Accurately Stated the Law.

As the district court correctly found after re-reviewing its “attempt”

instructions to address Suarez’s post-trial motions, the instructions that it gave,

viewed as a whole, were legally accurate and did not omit any mens rea

requirement. (See R.322: Opinion, PageID 6550).9

Courts do not read jury instructions in isolation to determine if there is error.

Rather, they must “review jury instructions as a whole to determine whether they

fairly and adequately submitted the issues and applicable law to the jury.” Mack,

159 F.3d at 218; United States v. Williams, 952 F.2d 1504, 1512 (6th Cir. 1991);

United States v. Prince, 214 F.3d 740, 760 (6th Cir. 2000) (“[n]o single provision

of the instructions can be reviewed in isolation”). A court “will reverse a jury

9 Although done in a convoluted manner, Suarez concedes that the court properly instructed that, to find Suarez guilty on Count 8, the jury must find that Suarez intended to influence, delay, or prevent Housos’s testimony in an official proceeding by knowingly intimidating, threatening, corruptly persuading, or attempting to do so. (Brief at 1-2, 30).


38

verdict on account of instructional error only in situations where the instruction,

viewed as a whole is confusing, misleading, and prejudicial.” Carson, 560 F.3d at

578 (quoting United States v. Blackwell, 459 F.3d 739, 764 (6th Cir. 2006));

United States v. Harrod, 168 F.3d 887, 892 (6th Cir. 1999) (citation omitted)).

Suarez cannot meet this standard.

When read as a whole, the instructions told the jury that to be guilty of

attempting to tamper with a witness, Suarez must have acted with specific,

unlawful intent. The court, tracking the language of Section 1512(b), described the

first element of the offense as requiring the jury to find that Suarez “knowingly

intimidated, threated, corruptly persuaded, or engaged in misleading conduct

toward [witness Barbara Housos], or attempted to do so.” (R.297: Trial Tr.,

PageID 5323-24 (emphasis added)). Immediately thereafter, the court told the jury

that an “act is done knowingly if it is done voluntarily and purposely, and not by

accident or mistake.” (Id. (emphasis added)). The court thus defined

“knowingly,” the statutorily required mens rea, for purposes of the first element of

the crime, as requiring intentional, purposeful conduct. If anything, through this

definition, the court increased, rather than decreased, the government’s burden by

requiring purposeful conduct whether the crime was successfully completed or

merely attempted. Either way, the court instructed on purposeful intent with

respect to the first element.


39

The court provided the following additional explanation regarding attempt:

As I indicated, the first element may be satisfied if Benjamin Suarez actually used intimidation, threats, corrupt persuasion, or engaged in misleading conduct, or if he attempted to do so. A defendant may be found to have attempted to intimidate, threaten, corruptly persuade, or engage in misleading conduct if his conduct constituted a substantial step towards committing the crime. The act which constitutes a substantial step must corroborate the defendant’s criminal purpose.

(Id. (emphasis added)). The first sentence told the jury that all of the language in

that paragraph related to the offense’s first element. The next sentence merely

explained the actus reus (i.e., the first element) for attempted witness tampering.

In the third sentence, the court told the jury about the required mental state

specifically relating to attempt, explaining: “The act which constitutes a substantial

step must corroborate the defendant’s criminal purpose” (emphasis added). Rather

than presupposing a criminal purpose, the instruction required that, in order to

convict, the jury must find such a purpose, as the court had instructed when

defining “knowingly.”

Further, “defendant’s criminal purpose” is equivalent to defendant

“intending to engage in criminal conduct.” Pierce v. United States, 252 U.S. 239,

244 (1920) (using criminal “purpose” and “intent” interchangeably); Turner v.

Jago, 798 F.2d 1416, *8 (6th Cir. 1986) (unpublished) (same); United States v.

Concepcion, 983 F.2d 369 (2d Cir. 1992) (same); Norris v. Warden, Noble Corr.

Inst., No. 2:08-CV-732, 2010 U.S. Dist. LEXIS 12171, at *3 (as adopted 2010


40

U.S. Dist. LEXIS 21198 (S.D. Ohio Mar. 9, 2010)) (noting criminal purpose and

criminal intent are interchangeable, “‘criminal purpose’ i.e., ‘criminal intent’”); 2-

46 Modern Federal Jury Instructions-Criminal P 46.05 (2014) (using language

similar to present case); cf. United States v. Bilderbeck, 163 F.3d 971, 975 (6th Cir.

1999) (explaining that the purpose for requiring a “substantial step” is because it

confirms the defendant intends to act criminally). Thus, if the jury followed the

instruction, it “could not have concluded that defendant attempted to engage in

witness intimidation without first concluding that the substantial step he took was

taken to corroborate his criminal purpose.” (R.322: Opinion, PageID 6551).10

Moreover, the court clearly articulated the intent element of the crime of

witness tampering, and thus the crime of attempted witness tampering, i.e., “with

intent to influence, delay, or prevent testimony” as follows:

to act for the purpose of causing any person to change her testimony or information in any way or to withhold testimony or information, permanently or only for a period of time.

(Id., PageID 5325 (emphasis added)). The court then reiterated that: 10 Engaging in linguistic gymnastics, Suarez claims that the phrase “must corroborate a defendant’s criminal purpose” removes the intent requirement, letting a jury find that any action is criminal. As is clear from the plain text, the “language clearly sets forth that with regard to attempt, the ‘substantial step’ must have been ‘in line’ with the defendant’s criminal purpose.” (R.322: Opinion, PageID 6551). When “jurors are [] instructed, courts presume that the jurors understood and followed the directions given.” United States v. Sivils, 960 F.2d 587, 594 (6th Cir. 1992).


41

The government must prove beyond a reasonable doubt, however, that defendant Benjamin Suarez acted with intent to influence, delay, or prevent testimony.

(Id. (emphasis added)). This instruction clearly required that Suarez must have

acted with a specific, improper purpose to be guilty of the crime of attempted

witness tampering. Based on this and the court’s previous instruction, the jury had

to find that Suarez acted with the intent to influence, delay, or prevent Housos’

testimony and he had to act with a criminal purpose when he attempted to

intimidate, threaten or corruptly persuade her. The requisite intent is clear.

Read as a whole, the Count 8 instructions also were consistent with the Sixth

Circuit Pattern Instructions on Attempt, §5.01, (which, in turn, are based on United

States v. Williams, 704 F.2d 315, 321 (6th Cir. 1983)). Like the pattern

instructions, the entire instruction given by the district court – including in

describing the first element and further explaining what is meant by “attempt” –

specifically instructed the jury that it must find both that Suarez intended to

commit the crime of witness tampering and that he took a substantial step toward

completing that crime, corroborating his criminal purpose, for Suarez to be guilty

of an attempt.11 Suarez’s claim to the contrary hinges on isolating a single

11 Neither the pattern instructions nor the relevant case law required the court to instruct, as Suarez claims, that Suarez “intended to intimidate, threaten, or corruptly persuade Ms. Housos – i.e., to use the methods of witness tampering.” (Brief at 32). Williams and the other cases Suarez cites describe attempt in terms


42

sentence of the court’s instructions out of context. (Brief at 32). Such selective

parsing of the instructions is improper and should be rejected. Mack, 159 F.3d at

218; Williams, 952 F.2d at 1512.

In short, Suarez cannot demonstrate that the district court’s instructions,

taken as a whole, were “confusing, misleading, and prejudicial” to such an extent

that a “grave miscarriage of justice” occurred. Nothing in the single sentence on

which Suarez relies, or any other part of the instruction, casts doubt on the entire

instruction discussing mens rea. Nothing implied that the jury could ignore the

portion of the first element that specifically described the mens rea of attempt, and

instead heed only the portion of the instruction defining the actus reus of attempt.

And nothing in the instructions told the jurors that this second sentence was

somehow more important than any other. To the contrary, the district court

explicitly instructed the jurors that “[a]ll the instructions are important, and you

should consider them together as a whole.” (R.297: Trial Tr., PageID 5292).

There is no reason to believe that any juror would improperly disregard any of the

instructions about Count 8 and instead wrongly convict Suarez based solely on the

second sentence of one paragraph of the instruction. The instructions were

accurate and certainly not plainly erroneous. of intending to commit the crime in its entirety, i.e., defendant “intends to commit the crime of . . . .” E.g., Williams, 704 F.2d at 321; see also, United States v. Desposito, 704 F.3d 221, 230 (2d Cir. 2013) (to convict of an attempt, government must prove that defendant “had the intent to commit the object crime.”).


43

3. The District Court’s Use of the Term “Knowingly” to Convey Intent was Proper.

Suarez’s claim that the district court’s use of the term “knowingly” failed to

inform the jury of the intent requirement for an attempt (Brief at 33-35) has no

merit. Suarez asks this Court to ignore the definition of “knowingly” that the

district court actually used and instead read into the court’s instruction substitute

language that various courts have used generally to define the term “knowledge.”

But this Court examines the instruction as actually given, which required the jury

to find purposeful conduct.

In its Count 8 instruction – and almost immediately after using the term –

the court defined “knowingly” as “an act . . . done voluntarily and purposely and

not by accident or mistake.” (R.297, Trial Tr., PageID 5319). Suarez concedes,

through the language he quotes, that the term “purposely” is sufficient. That the

court defined “knowingly” to be “purposely” rather than directly used the term

“purposely” in describing the first element of the offense is a distinction without

substance. It is unsurprising that the court used the term “knowingly” in

describing the element; that is the mens rea for witness tampering that is actually

used in the statute. 18 U.S.C. §1512(b).

Moreover, the cases Suarez cites to claim that any court which ever uses the

term “knowingly” instead of “purposely” in a jury instruction commits plain error

say the exact opposite. The Supreme Court in United States v. Bailey stated that


44

drawing “hair splitting distinctions” between words such as “knowingly” and

“purposely” was improper and dangerous because the judicial “system could easily

fall of its own weight if courts or scholars become obsessed with hair-splitting

distinctions, either traditional or novel, that Congress neither stated nor implied

when it made the conduct criminal.” 444 U.S. 394, 406-07 (1980). In fact, the

Bailey Court reversed an appellate court for holding exactly what Suarez proposes

here, and instead held that the “knowingly” instruction was sufficient to inform the

jury about specific intent. Id. at 408 (“requiring the Government to prove that the

respondents acted with the purpose” of committing the crime to be “quite

unsupportable”) (emphasis added).

4. The “Substantial Step” Instruction Did Not Somehow Cancel the Intent Requirement.

The district court did not, as Suarez claims, “subsume” the intent

requirement in the substantial step instruction. (Brief at 36-38). In arguing that it

did, Suarez once again ignores the paragraphs containing the actual elements of the

offense – and, in particular, the district court’s use of the term “knowingly,” which

it defined to be acting “purposely,” not to mention the entire second element

defining a specific intent. Moreover, the court’s use of the language “[t]he act

which constitutes a substantial step must corroborate the defendant's criminal

purpose,” logically read, does not as Suarez claims, “presuppose” that Suarez had a

criminal purpose. To the contrary, as the district court acknowledged, it merely


45

relates back to intent and makes clear that the jury must also find that a “criminal

purpose” in fact exists. (R.322: Opinion, PageID 6551). In other words, “the jury

could not have concluded that defendant attempted to engage in witness

intimidation without first concluding that the substantial step he took was taken to

corroborate his criminal purpose.” (Id.) The language only served as an additional

reminder of the intent requirement and not, as Suarez claims, a replacement for all

mens rea language found throughout the instructions. This assertion deserves no

credence.

5. Suarez’s Stated “Test” for Whether the Count 8 Instructions Eliminated the Attempt “Intent” Requirement Is Contrary to the Cases He Cites.

Suarez also asserts that, although jury instructions are generally reviewed for

an abuse of discretion, “[w]here a jury instruction is claimed to be legally

erroneous . . . this Court’s review is de novo because an error of law is necessarily

an abuse of discretion.” (Brief at 28 (emphasis added)). Common sense belies that

claim. All jury instruction challenges, by their nature, assert legal error. There are

literally thousands of federal cases – including the dozens cited in this brief – that

speak directly against this premise.

Moreover, Suarez’s reliance upon United States v. Clarke, 134 S. Ct. 2361,

2369 (2014), does not support his argument. The case had nothing to do with jury


46

instructions and Suarez’s quoted language only states the well-understood holding

that a finding of an error of law means a court abused its discretion. Id. at 2369.

Suarez next asserts that a challenged jury instruction must be overturned if a

juror “could have” understood the charge in the incorrect manner that a defendant

espouses on appeal. (Brief at 29, 32, 37). That is illogical. Any juror theoretically

could have misunderstood any correct instruction, making every challenged jury

instruction erroneous per se under this theory. Suarez cites United States v.

Buckley, 934 F.2d 84, 87 (6th Cir. 1991), to support this novel assertion, offering

the quote, “the question is what a reasonable jury could have understood” without

context. In context, this Court stated:

The standard on appeal for a court’s charge to the jury is whether the charge, taken as a whole, fairly and adequately submits the issues and applicable law to the jury. The question is what a reasonable juror could have understood the charge as meaning. Even if an instruction proves impermissible viewed in isolation, the reviewing court upholds the instruction if it takes on a permissible meaning in the context of surrounding instructions.

Id. at 87-88. Contrary to Suarez’s claim, under Buckley, a jury instruction must be

upheld so long as a juror could have understood “the permissible meaning in the

context of surrounding instructions.” See id.

Moreover, Suarez fails to note that every case he cites after his Buckley

argument not only contradicts his interpretation, but actually affirms the challenged

jury instructions. (See Brief at 29). California v. Brown, which Suarez cites,


47

reversed a court that failed to review the “instructions as a whole.” 479 U.S. 538,

541-42 (1987) (even if a “rational juror could parse the instruction in such a

hypertechnical manner,” the jury instructions would still stand). Suarez’s cited

cases debunk his own novel theory.

6. Suarez’s Claim of “Per Se Reversible Error” Is Without Merit.

Suarez asserts that the district court “necessarily” committed reversible error

by, allegedly, not instructing the jury on the Count 8 attempt “intent” element. As

discussed above, the court’s instruction was proper and satisfactorily instructed on

intent. Thus, no “element” was missing from the Count 8 instructions.

Even if, however, an element had been missing, Suarez’s stated standard still

would not apply. That is because Suarez did not “contest” the attempt instruction.

To the contrary, as detailed above, Suarez forfeited that argument repeatedly.

Suarez also mischaracterizes United States v. Miller, 767 F.3d 585 (6th Cir.

2014), to support his assertion of per se error, incorrectly claiming this Court held

that because the jury instructions omitted the element of motive, the error was “per

se harmful.” (Brief at 40). To the contrary, the Miller Court devoted an entire

section of its opinion to a harmless error analysis and concluded that “[t]he error

was not harmless.” Miller, 767 F.3d at 594-601.

Suarez’s attempts to rely on Glenn v. Dallman, 686 F.2d 418 (6th Cir. 1982),

and Hoover v. Garfield Heights Mun. Court, 802 F.2d 168 (6th Cir. 1986), fare no


48

better: the Supreme Court’s subsequent binding precedent is directly contrary to

the parsed language from these cases. In Neder v. United States, the jury

instructions omitted a critical element of the offense upon which a defendant

principally relied at trial. The Supreme Court expressly held – in direct

contradiction to Suarez’s claim – that omitting an element of the offense is not per

se plain error: “a jury instruction that omits an element of the offense[] differs

markedly from the constitutional violations we have found to defy harmless-error

review.” Neder v. United States, 527 U.S. 1, 8 (1999).12

In conformance with Neder, the Sixth Circuit has held that “[a]n erroneous

jury instruction does not automatically affect substantial rights simply because it

omits an element of an offense.” United States v. Brown, No. 97-1618, 2000 U.S.

App. LEXIS 14522, at *36 (6th Cir. June 20, 2000) (unpublished) (citing Neder);

United States v. Coss, 677 F.3d 278, 284 (6th Cir. 2012); United States v. Damra,

621 F.3d 474, 500 (6th Cir. 2010) (finding that willfulness intent instruction was

adequate and not plain error despite defendant’s argument under Glenn that the

instruction’s wording removed the intent requirement). Thus, Suarez’s reliance on

12 Suarez implies that the instruction cannot be harmless because he has somehow divined that the jury convicted him on Count 8 and acquitted him on the remaining charges because of the different intent instructions. (Brief at 4-5, 41). An equally likely explanation is that Count 8 involved documents Suarez personally authored and evidence that he acted directly, rather than through others. No one, however, knows why the jury acquitted him on some counts and convicted him of witness tampering.


49

Glenn and Hoover is misplaced. The district court’s instructions were not

reversible error under any applicable standard.

II. SUAREZ’S COUNT EIGHT CONVICTION NEITHER SUFFERS FROM DUPLICITY NOR VIOLATES DOUBLE JEOPARDY.

Suarez’s assertion that the district court created duplicity in Count 8 by its

answer to a jury question and thereby further created a Double Jeopardy issue that

requires reversal is contrary to both precedent and logic. Initially, it bears

emphasis what Suarez is not claiming on appeal. Although he includes many

arguments about alleged duplicity, the “primary concern” created by a duplicitous

charge, i.e., deprivation of the right to a unanimous jury verdict, see United States

v. Kakos, 483 F.3d 441, 443 (6th Cir. 2007), is not an issue he raises and, indeed,

expressly disavows. (See Brief at 51-52). Instead, Suarez claims only that the

purported duplicity might create a Double Jeopardy problem in the future.

Because Suarez has framed his claim, as he must given the record, only as one of

Double Jeopardy, and because the law on that issue is determinative, the

government addresses that claim first. Although this Court need not address

Suarez’s duplicity claim to affirm his conviction, in the interest of completeness,

the government also explains the faulty nature of that claim.

A. Suarez’s Conviction Raises No Double Jeopardy Concerns.

1. Plain Error Review Applies.

“The defense of double jeopardy is personal and is capable of waiver.”


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United States v. Branham, 97 F.3d 835, 842 (6th Cir. 1996). “Rule 12(b)(1) of the

Federal Rules of Criminal Procedure dictates that [a defendant] was required to

raise the jeopardy issue by motion prior to trial.” Id. at 841. A defendant’s failure

to raise a challenge before trial as required under Rule 12(b)(1) results in a

forfeiture and “review [of the] jeopardy claim for plain error.” Id. at 842. Suarez

failed to allege any Double Jeopardy claim about Count 8 until well after the

verdict in a motion for a new trial. His arguments are thus subject to plain error

review. Id. To demonstrate plain error, Suarez must show that: (1) there was an

error; (2) that was plain; (3) that affected a substantial right; and (4) seriously

affected the fairness, integrity, or public reputation of the judicial proceedings.

United States v. Martin, 520 F.3d 656, 658 (6th Cir. 2008).

The district court’s legally accurate instruction about the disjunctive nature

of the three means by which Suarez attempted to tamper with Housos, given in

response to the jury’s question, does not somehow alter the appropriate standard of

review. Although Count 8 used the word “and” in describing three means by

which Suarez sought to tamper with Housos as part of his ongoing course of

conduct, it is well-settled that an offense may be charged in the conjunctive, but

proved by the government and instructed by the trial judge in the disjunctive. E.g.,

Griffin v. United States, 502 U.S. 46, 56-57 (1991) (citing cases); United States v.

Pritchett, 749 F.3d 417, 429 (6th Cir. 2014). This legal premise applies to both


51

statutory elements and means of commission. See Schad v. Arizona, 501 U.S. 624,

631-32 (1991) (jurors need not agree on means by which a defendant committed a

crime; the verdict can be based on any combination of alternative findings);

Griffin, 502 U.S. at 48, 51 (same); Fed.R.Crim.P. 7(c)(1) (“It may be alleged in a

single count that the means by which the defendant committed the offense are

unknown or that the defendant committed it by one or more specified means”).

Accordingly, the court did not somehow alter Count 8 by instructing the jury

that they need find “any one [of the three means], beyond a reasonable doubt.” It

therefore could not have “created” duplicity – or Suarez’s corresponding claimed

Double Jeopardy – where none previously existed. To the contrary, the only

possible Double Jeopardy or duplicity challenge Suarez could have brought was to

Count 8 of the superseding indictment as drafted. He, however, did not make

either claim in a Rule 12(b) motion, and he did not object on duplicity-causing-

Double-Jeopardy grounds at trial. Plain error review thus applies.13

2. A Double Jeopardy Claim Cannot Be Based on a Theoretical Future Prosecution.

There is no merit to Suarez’s claim that an alleged duplicity in Count 8

results in a Double Jeopardy violation because – in a theoretical trial that he

13 The court’s second polling of the jury likewise did not somehow preserve Suarez’s Double Jeopardy or duplicity arguments. Far from objecting, defense counsel received the polling he requested and then thanked the judge for providing it. (R.285: Trial Tr., PageID 3688).


52

speculates could occur later – the government hypothetically may attempt to

prosecute him for the same crime. He cites no cases supporting this proposition.

Suarez has only been prosecuted once. He may raise a Double Jeopardy claim

only if prosecuted again.

The Fifth Amendment guarantee against Double Jeopardy “is a guarantee

against being twice put to trial for the same offense.” Abney v. United States, 431

U.S. 651, 661 (1977). “The core of the Double Jeopardy Clause is protection

against multiple prosecutions or multiple sentences for the same offense.” Johnson

v. Hudson, 2011 U.S. Dist. LEXIS 154547, at *21 (as adopted 2012 U.S. Dist.

LEXIS 44728 (N.D. Ohio Mar. 31, 2012)) (emphasis added); see Brown v. Ohio,

432 U.S. 161 (1977). Further, “the bright-line rule [is] that ‘jeopardy attaches

when the jury is empaneled and sworn.’” Martinez v. Illinois, 134 S. Ct. 2070,

2072 (2014) (per curiam).

Here, jeopardy has only attached once. There is no later indictment, much

less an empaneled and sworn jury, on any second prosecution, let alone one for the

same offense. The only basis for Suarez’s Double Jeopardy claim is pure

speculation about what might occur in the future. That leaves his claim unripe for

review. See United States v. Doyle, 121 F.3d 1078, 1087 (7th Cir. 1997)

(defendant’s belief about prosecution’s intent was, “at best, mere conjecture and

speculation” because “[t]here is simply no record evidence that unearths the inner-


53

thoughts of the prosecutors”); United States v. Tovar-Rico, 61 F.3d 1529, 1532

(11th Cir. 1995) (“[i]f the government decides to proceed with another trial of

[defendant], she may raise the double jeopardy issue which would then be ripe for

decision. We cannot speculate what further proceedings, if any, will take place”).

The Double Jeopardy guarantee is not a protection against hypothetical

future prosecutions. The lack of a second prosecution is thus fatal to Suarez’s

Double Jeopardy claim. As his entire argument about duplicity and Double

Jeopardy hinges on this flaw, it must be rejected on this ground alone.

There is no merit to Suarez’s assertion that, to plead Double Jeopardy in the

future, he needs to know “on which of the acts [the jury] found him guilty.” (Brief

at 51). First, the jury was not required to agree that Suarez committed witness

tampering by any one particular means. See Schad, 501 U.S. at 631-32.

Moreover, knowing the “agreed upon means” would in no way affect a future

Double Jeopardy defense: the government may not bring a second witness

tampering charge based on any of the three means alleged in Count 8 because for

each, it was already charged and either the jury used it as a basis to convict or the

jury rejected it. Count 8 does not present a situation where it would be difficult to

differentiate the substance of Count 8 and some other witness tampering charge

theoretically brought in the future. Compare Valentine v. Konteh, 395 F.3d 626

(6th Cir. 2005) (dismissing all but one of multiple identical charges on Double


54

Jeopardy grounds due to lack of differentiation among them). In other words,

Count 8 provided Suarez with sufficient notice, the linchpin for protecting his

future Double Jeopardy rights.

B. Count 8 Is Not Duplicitous. Count 8 is not duplicitous. Instead, it merely lists a course of conduct

including three separate means by which Suarez attempted to commit witness

tampering with respect to the same witness in the same investigation. The Federal

Rules of Criminal Procedure, the Supreme Court, and this Circuit all make clear

that it is permissible to include such separate means of commission in a single

count.

Rule 7(c)(1) provides, “[i]t may be alleged in a single count that the means

by which the defendant committed the offense are unknown or that the defendant

committed it by one or more specified means.” Fed.R.Crim.P. 7 (emphasis added).

The Supreme Court has explained that Rule 7 “embodies” the “fundamental

proposition” of criminal law that an indictment need not specify the means by

which a crime was committed. Schad, 501 U.S. at 631. The Court further held,

“We have never suggested that in returning general verdicts in such cases the

jurors should be required to agree upon a single means of commission, any more

than the indictments were required to specify one alone.” Id. Instead, “different

jurors may be persuaded by different pieces of evidence, even when they agree


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upon the bottom line.” Id. at 631-32.

This Court has similarly held that “it is not duplicitous to allege in one count

that multiple means have been used to commit a single offense.” United States v.

Damrah, 412 F.3d 618, 622 (6th Cir. 2005); see also United States v. Garcia, 400

F.3d 816, 819 (9th Cir. 2005) (“jurors are not required to agree unanimously on

alternative means of committing a crime”); United States v. Alsobrook, 620 F.2d

139, 143 (6th Cir. 1980) (“[m]ore importantly, however, we are hesitant to create

an inflexible rule that would force the government to charge each punishable act as

a separate count and thereby to cumulate both offenses and possible

punishments”). Count 8 was not duplicitous because it set forth three means by

which Suarez committed the crime of tampering with Housos as a witness.

Suarez, however, claims duplicity exists because each of the three means in

Count 8 “require[] proof of an additional fact that the other does not.” (Brief at

52). Suarez cites Davis in support of this proposition, but fails to note that Davis

did not adopt the “additional fact” language. See United States v. Davis, 306 F.3d

398, 416 (6th Cir. 2002) (“whether, in fact, § 924(c) constitutes separate offenses is

a question we need not resolve for purposes of the instant appeal”). He also fails to

note that the question raised in Davis was not about duplicity generally, but rather

a very specific inquiry into statutory language. Id.


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Moreover, Count 8’s three means are all intimately related. They all involve

(1) the same witness, (2) the same potential testimony that Suarez attempted to

prevent, and (3) occurred during the same continuing investigation. The only

difference between the three methods by which Suarez attempted to tamper with

Housos is the means by which he violated Section 1512(b).

Further, these events happened close in time. Suarez (1) attempted to

prevent Housos’ Grand Jury testimony; (2) attempted to discredit her two months

after she testified; and (3) a month after that, attempted to discredit her yet again

and create a chilling effect among all of the potential SCI witnesses by issuing his

abhorrent letter to all employees. See United States v. Moloney, 287 F.3d 236, 240

(2d Cir. 2002) (“criminal charges may aggregate multiple individual actions” that

are part of overarching scheme); United States v. Sanderson, 966 F.2d 184, 189

(6th Cir. 1992). Suarez thus cannot demonstrate that the court committed an “error

[] so plain that the trial judge and prosecutor were derelict in countenancing it.”

United States v. Boyd, 640 F.3d 657, 669 (6th Cir. 2011).

Finally, the second polling of the jury, done at Suarez’s request, cured any

theoretical possibility of prejudice. “The vice of duplicity is that a jury may find a

defendant guilty on the count without having reached a unanimous verdict on the

commission of any particular offense.” United States v. Robinson, 651 F.2d 1188,

1194 (6th Cir. 1981). Here, the second polling left absolutely no doubt on the


57

record that the jury agreed unanimously on one or more of the means described in

Count 8.

Specifically, each juror confirmed that the jury was unanimous on at least

one of the three means described in Count 8. (R.285: Trial Tr., PageID 3669-71).

The record therefore definitively establishes the lack of any error, much less

prejudice. Suarez’s argument should be rejected.


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CONCLUSION

The United States respectfully requests that this Court affirm Suarez’s

conviction.

Respectfully submitted,

STEVEN M. DETTELBACH UNITED STATES ATTORNEY

By: /s/ Carole S. Rendon

Carole Rendon (OH: 0070345) First Assistant U.S. Attorney /s/ Matthew J. Cronin Matthew J. Cronin (VA: 80267) Assistant U.S. Attorney United States Court House 801 West Superior Avenue, Suite 400 Cleveland, OH 44113 (216) 622-3656/3955 (216) 522-7545 (facsimile) [email protected] [email protected] /s/ Rebecca Lutzko Rebecca Lutzko (OH: 0069288) Assistant U.S. Attorney United States Court House 2 South Main Street, Suite 208 Akron, Ohio 44308 (330) 761-0530 (330) 330-375-5492 (facsimile) [email protected]


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CERTIFICATION OF COMPLIANCE WITH WORD LIMITATION

I hereby certify that the foregoing contains 13,961 words according to the

word counting feature of Word 2010 and complies with this Court’s 14,000 word

limitation for briefs.

/s/ Rebecca Lutzko Rebecca Lutzko Assistant United States Attorney


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CERTIFICATE OF SERVICE

I hereby certify that on this 26th day of January 2015, a copy of the

foregoing Brief of Plaintiff-Appellee, was filed electronically. Notice of this filing

will be sent to all parties by operation of the Court’s electronic filing system.

Parties may access this filing through the Court’s system.

/s/ Rebecca Lutzko Rebecca Lutzko Assistant United States Attorney


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UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

DESIGNATION OF RELEVANT DISTRICT COURT DOCUMENTS

Pursuant to Sixth Circuit Rule 30(b), the following filings from the district

court’s records are designated as relevant to this appeal:

DESCRIPTION OF ENTRY RECORD ENTRY NO.

PAGE ID RANGE

Docket Sheet, Northern District of Ohio, Case No. 5:13-CR-00420 N/A N/A

Pretrial Order 22 102-04

Superseding Indictment 27 126-61

Defendant Trial Brief 151 1797-884

Annotated Jury Instructions 152-1 1942-2048

Plea Agreement as to Michael Giorgio 170 2330-56

Proposed Instruction 270 3567-604

Motion for Additional Jury Instruction 274 3608

Opposition to Additional Jury 276 3614

Trial Transcript held on June 30, 2014 285 3662-76





Opinion Denying Motion for Acquittal or New Trial 322 6530-54


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Judgment as to Benjamin Suarez 339 6930-35

Motion for Reconsideration 349 7308-60

First Notice of Appeal 354 7385-91

Order Denying Motion for Reconsideration and Granting Motion to Strike 364 7982-83

Second Notice of Appeal 365 7984-86


in the united states court of appeals for the sixth ... · suarez then moved the district court to...

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