On Appeal from the United States District Court for the Eastern District of Pennsylvania; D.C. Criminal Action No. 89-00132-01.
Becker, Nygaard and Alito, Circuit Judges.
A jury found Russell Werme guilty of conspiracy to violate the Travel Act, 18 U.S.C. §§ 371, 1952(a)(3). Werme's conviction was based on bribes he and Eugene Brault paid when they ran and managed B & B Insulation Company. We have jurisdiction pursuant to 28 U.S.C. § 1291. We will affirm.
United Engineers and Constructors ("United") was the primary contractor on the Seabrook Nuclear Power Plant construction project in Seabrook, New Hampshire. B & B, a subsidiary of Insulco, Inc., desired to participate in the Seabrook project as a subcontractor. Werme, then President of Insulco, Inc. learned that B & B was not on the qualified subcontractor/bidder's list. Werme sent two B & B salesmen to meet with Timothy McCuen, United's Chief Buyer, to remedy this situation. The B & B salesmen's efforts failed because McCuen said he wanted to meet with a higher level B & B employee.
McCuen was dishonest. While employed by United, he accepted bribes in exchange for confidential bid information. McCuen was charged with bribery in 1981, but negotiated a plea and began cooperating with the federal government in its bribery and kickback investigations. McCuen did not, however, tell the FBI about bribes he accepted in connection with the Seabrook contract. When these bribes were discovered, Ronald Mizzau, United's buyer on the Seabrook project, pleaded guilty to aiding and abetting McCuen in his bribery scheme on Seabrook. McCuen was then also charged with taking bribes, entered into a second agreement, and pleaded guilty to bribery. The details regarding McCuen's receipt of bribes on the Seabrook progress are as follows.
In 1982, Frank Farese, a B & B consultant acquainted with McCuen, arranged a meeting between Werme and McCuen to discuss selling Seabrook bid information to Werme. At a January 1983 meeting in Philadelphia, Werme paid McCuen $2000: the first of several bribes for confidential bidding information.
In April 1983, Werme used Farese as a messenger to give McCuen $4000 for access to competing Seabrook bids. Werme called defendant Eugene Brault, the sales manager of B & B, in Houston, and Brault flew from Texas to Philadelphia, where both men allegedly examined the competing bids before B & B submitted its proposal.
In August 1983, United sought clarification of subcontractors' bids. Again, Werme made arrangements with McCuen to preview competing bids. This time, McCuen received free use of a rental car as payment. In return, he left Werme copies of the competing bids in a hotel room. In September 1983, Brault and Werme's secretary travelled to Philadelphia to prepare B & B's bid and to view confidential bid information.
In April 1984, when United solicited a re-bid on the Seabrook contract, Werme and Brault once again arranged to pay McCuen $3000 for confidential bid information. The day the re-bids were due, Brault paid $3,000 to McCuen in Philadelphia. As before, McCuen left copies of competing bids at a hotel where Brault retrieved them.
Werme and Brault were indicted and each charged with: (1) one count of conspiracy to violate the Travel Act, 18 U.S.C. § 371; and (2) one count of violating the Travel Act, 18 U.S.C. § 1952(a)(3). A jury found Werme guilty of both counts, and Brault guilty of the Travel Act violation but acquitted him of conspiracy.
The district court granted Brault's and Werme's motion for judgment of acquittal on the Travel Act violation, finding that the special verdict did not set forth a theory upon which they could be found guilty. The court denied Werme's motion to acquit him of conspiracy. The district court sentenced Werme to a suspended three-year prison term and placed him on probation for five years, during which he must perform 300 hours of community service.
Werme makes three allegations of error. First, he challenges the sufficiency of the conspiracy count of the indictment, claiming it did not contain all elements of the underlying Travel Act offense and, consequently, neither put him on notice of the charges against him nor afforded him double jeopardy protection. Second, Werme claims the district court erred by failing to give the jury a cautionary instruction he requested after the government used McCuen's and Mizzau's guilty pleas in its case against him and by allowing the government to inquire whether McCuen ever had been charged with extortion. Third, Werme claims the district court erred by allowing the prosecutor to argue to the jury, without supporting evidence, that Werme paid a bribe in September 1983.
We conclude that the conspiracy count of the indictment was legally sufficient, and that the district court did not err by allowing the prosecutor to argue the September 1983 bribe to the jury. We also conclude that it was harmless error to introduce the guilty pleas of McCuen and Mizzau and to allow the inquiry concerning whether McCuen had been charged with extortion. Thus, we will affirm.
SUFFICIENCY OF THE INDICTMENT
Generally, each count of the indictment must set forth a sufficient description of the crime charged. The charging portion of a conspiracy count includes all paragraphs within that count except for allegations under the overt acts heading, unless those allegations are expressly incorporated by reference. Joplin Mercantile Co. v. United States, 236 U.S. 531, 535-36, 59 L. Ed. 705, 35 S. Ct. 291 (1915); United States v. Knox Coal Co., 347 F.2d 33, 38 (3d Cir.), cert. denied, 382 U.S. 904, 86 S. Ct. 239, 15 L. Ed. 2d 157 (1965). In addition, the charging portion of a conspiracy count may not rely upon other counts within the indictment to cure deficiencies, unless those counts too are expressly incorporated by reference. See, e.g., United States v. Scanzello, 832 F.2d 18, 23 (3d Cir. 1987).
The charging portion of this conspiracy count alleges that Werme and Brault, along with others, "did conspire, combine, confederate and agreed to violate Title 18, United States Code, Section 1952(a)(3)." It further alleges that the purpose of the alleged conspiracy was to obtain confidential bid information in exchange for money or "other things of value." Finally, the charging portion alleges that the conspiracy's purpose was implemented through overt acts of bribery.
When reviewing the sufficiency of the indictment, we look at the entire indictment and determine de novo:
(1) whether the indictment contains the elements of the offense intended to be charged and sufficiently appraises the defendant of [the ...