
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 95-2146                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   DENNIS JOSLEYN,                                Defendant, Appellant.                                                                                      ____________________        No. 95-2147                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  JOHN W. BILLMYER,                                Defendant, Appellant.                                                                                      ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                 [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]                                                 ___________________                                                                                      ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                                                                      ____________________             David W. Long, with whom Joseph E. Zeszotarski, and Poyner &             _____________            _____________________      ________        Spruill, LLP were on brief for appellant Billmyer.         ____________             Paul Twomey, with whom Twomey & Sisti Law Offices was on brief             ___________            __________________________        for appellant Josleyn.             Michael J. Connolly and Donald A. Feith, Assistant United States             ___________________     _______________        Attorneys, with whom Paul M. Gagnon, United States Attorney, was on                             ______________        brief for appellee.                                                                                      ____________________                                   October 15, 1996                                                                                      ____________________                                          2                    CYR, Circuit  Judge.   A  federal jury  sitting in  New                    CYR, Circuit  Judge.                         ______________          Hampshire  returned guilty  verdicts against  appellants John  W.          Billmyer and  Dennis R. Josleyn  for conspiring to  defraud their          former  employer,  American  Honda  Motor  Company ("Honda"),  by          accepting money and other valuable consideration from prospective          Honda  dealers in  exchange for  lucrative dealership  rights and          sundry advantage.  See 18 U.S.C.    371 (conspiracy) & 1341 (mail                             ___          fraud) (1994).   Verdicts were returned also against  Josleyn for          racketeering, conspiracy, and mail fraud, see id.    1962(c), 371                                                    ___ ___          & 1341, relating, inter alia, to kickbacks received in connection                            _____ ____          with national  sales  training seminars  and  dealer  advertising          programs  for Honda  dealers.   On  appeal, Billmyer  and Josleyn          principally contend that  New Hampshire was an improper venue for          the  franchise conspiracy charge in  Count II and  that there was          insufficient evidence  to support the guilty verdicts.  We affirm          the district court judgments in all respects.                                            I                                          I                                     BACKGROUND1                                     BACKGROUND                                     __________                    Following the second OPEC oil embargo in 1979, American          consumer demand for the energy-efficient automobiles manufactured          by  Honda skyrocketed, and remained strong  for a decade thereaf-          ter.  Just  as demand in the  United States surged, the  Japanese          government imposed export restraints  on its carmakers, and Honda                                        ____________________               1We recite  the background  facts the jury  reasonably could          have found, viewing the  evidence in the light most  favorable to          the  verdicts.  See United  States v. Bello-Perez,  977 F.2d 664,                          ___ ______________    ___________          666 (1st Cir. 1992).                                           3          was unable to  meet the demand for its  automobiles in the United          States.   These  uncommonly favorable  market conditions  endured          throughout much of the 1980s, causing enterprising car dealers in          the United  States to  compete fiercely (and  sometimes unfairly)          for exclusive Honda franchises  in anticipation of the extraordi-          narily  large  profit margins  available  on  such popular  Honda          models as the Civic, Prelude, and Accord.                    Appellant  John Billmyer  joined  Honda  as a  district          sales representative in  1970, and rose rapidly  through all four          management  levels  in  its  field  sales  division.2    By 1977,          Billmyer  had  been  appointed  regional sales  manager  for  the          eastern United  States.   By 1980, he  held the  top field  sales          position at Honda     national  sales manager     and soon  moved          from its New Jersey  office to headquarters in California.   When          Honda  launched a  line of  luxury automobiles in  1985, Billmyer          became national sales manager for the new Acura Division as well.          He  remained  the top  Honda field  sales  manager in  the United          States until he retired on March 31, 1988.                    After Billmyer  retired, he was  succeeded as  national          sales manager by S. James Cardiges, his closest associate at Hon-          da.  Billmyer had hired Cardiges  as the Honda sales manager  for          the  Baltimore/Washington  D.C.  district in  1977,  and  rapidly                                        ____________________               2At Honda,  district sales managers in  the field maintained          day-to-day  contact  with their  dealers  and  reported to  their          respective zone sales managers.   Each zone manager was responsi-          ble  for Honda sales  in several states.   Zone  managers in turn          reported to  their respective regional  sales managers.   The two          regional  managers each supervised  Honda sales in  the field for          roughly one-half the country.                                            4          promoted him through  the ranks:  from zone  manager for the mid-          Atlantic states in 1979,  to zone manager for the west coast (the          largest and  most prestigious zone)  in 1981,  to regional  sales          manager  for the  western  United States  in  late 1982.    While          western  regional sales  manager,  Cardiges worked  closely  with          Billmyer.    The two  often traveled  to  work together  and took          business trips within the  United States and overseas.   Finally,          Cardiges succeeded  Billmyer as  national sales manager  in 1988.          He  resigned in April 1992  by "mutual agreement"  with Honda, to          forfend termination.                    Appellant Dennis  R.  Josleyn joined  Honda in  January          1983, and followed a  similar path:  assistant sales  manager for          the mid-Atlantic zone in 1985; mid-Atlantic zone manager in March          1987; and zone manager  for the west coast, resident  in Califor-          nia, in  early 1991, a  position he held  until he resigned  from          Honda in April 1992.                    Throughout  appellants'  tenure  with Honda,  corporate          policy and procedures for awarding new Honda dealerships were set          forth  in the  "Honda  Automobile Dealer  Appointment  Procedures          Manual."   The first step was to  identify a geographic area ripe          for a new dealership    in  Honda terminology an "open point"              through  reference to  marketing  and  demographic studies,  data          relating to competition, and  an assortment of other information.          Next, the district  and zone  sales managers for  the area  under          consideration were to "prospect"  for a qualified dealer  to fill          the  "open point," then compose a slate of three or more suitable                                          5          candidates.   Honda policy directed that  sales managers evaluate          candidates according to their experience in automobile retailing,          available capital, personal reputation,  and the quality of their          location and  facilities, all  with the  ultimate aim that  Honda          dealerships be awarded to the best candidates.                     Honda sales managers at  each level, see supra note  2,                    _____ _____ ________ __  ____ _____  ___ _____          were required to participate in recommending and approving candi-          ____ ________ __ ___________ __ ____________ ___ _________ ______          dates  for  any "open  point."   With  the possible  exception of          _____  ___  ___  ____  _____          Billmyer and Cardiges, in their respective capacities as national          sales manager, no sales manager at any level possessed unilateral                         __ _____ _______ __ ___ _____ _________ __________          authority to award  a new dealership.   Furthermore, approval was          _________ __ _____  _ ___ __________          required  from  managers  representing  the  parts,  service, and          market-representation departments as well.                      Once selected for an  "open point" dealership, with the          approval of sales managers  at the district, zone, regional,  and          national levels, a successful candidate received a "Letter of In-          tent"  ("LOI") from Honda via United States mail, authorizing the          prospective  dealer to  open the  new, exclusive  dealership upon          certain  conditions, such  as  constructing a  facility within  a          specified time.   Until the  franchise itself was  issued to  the          prospective  dealer,  however,  these  LOI  rights  remained  the          property  of Honda.  Like  its competitors, Honda  exacted no fee          for its dealership franchises.  Nor were  Honda personnel allowed          to accept money or  other consideration of significant value  for          assistance in obtaining a Honda franchise.                      In addition  to Honda policy  and procedures  governing                                          6          new  dealerships, its  "conflict of  interest" policy  prohibited          employees  from accepting  anything of  significant value  from a          Honda  dealer and  from acquiring  or holding  any interest  in a          Honda or Acura dealership.  The "conflict of interest" policy was          disseminated among all Honda sales managers, who were required to          sign disclosure  forms  indicating  ongoing  compliance.    Sales          managers  at  every level  were duty-bound  to ensure  that their          respective subordinates honored the policy  prohibiting conflicts          of interest, and report all violations to their senior manager or          the Human Resources Department.                    Notwithstanding  these  rigorous  internal  procedures,          however,  there  were numerous  violations  of  the "conflict  of          interest" policy.  From  the late 1970s through the  early 1990s,          sales managers at every level  commonly accepted money and  valu-          able  gifts, including  Rolex  watches,  furniture, and  business          suits, from prospective dealers  vying for "open points"  or from          dealers  seeking  increased Honda  automobile  allocations.   Yet          their illicit activities apparently escaped notice by nonpartici-          pating sales managers and dealers for years.                      Finally,  in 1991  an internal investigation  was trig-          gered by an uninvolved  district sales representative in Arkansas          who provided  a Honda  executive vice-president with  evidence of          payoffs involving Cardiges, then  the national sales manager, and          a zone manager.   By early 1992, Honda had begun "cleaning house"          and Cardiges had resigned.  An  extensive federal criminal inves-          tigation ensued.                                              7                    On  March 11, 1994, a  federal grand jury  in New Hamp-          shire returned an indictment  against Billmyer, Josleyn, Cardiges          and two lower-level Honda sales managers responsible for  the New          England  region,  David  L.  Pedersen  and  Damien  C.  Budnick.3          Superseding indictments were returned against  Billmyer, Josleyn,          and  Cardiges in  October  1994 and  January  1995.   Ultimately,          Budnick, Cardiges, and Pedersen  entered into plea agreements and          cooperated with the  government.  Cardiges and Pedersen  were key          government witnesses at trial.                      The second superseding  indictment charged Josleyn  and          Cardiges, in Count I, with a pattern of racketeering in violation          of the  Racketeer Influenced and Corrupt  Organizations Act ("RI-          CO"), 18  U.S.C.    1962(c) (1994).   As  Racketeering Act 1,  it          alleged that Josleyn and Cardiges had persuaded Honda to select a          particular outside vendor (from which the defendants had received          kickbacks) to conduct sales training seminars for Honda salespeo-          ple employed in New Hampshire and elsewhere in the United States.          Racketeering  Acts 2  through 8  related to  regional advertising          associations  which pooled  monies  advanced by  individual Honda          dealers to defray  their local Honda advertising  costs.  Josleyn          and Cardiges were charged with causing Honda to match the contri-                                        ____________________               3Pedersen  had joined Honda in July 1979 as a district sales          manager for Maine, New Hampshire, Vermont, and  upstate New York.          Within a year he was transferred to Minnesota.  Around June 1982,          he  became a district sales manager in  northern Ohio; in 1985, a          district sales manager in the new Acura Division, responsible for          a  territory  extending from  Maine to  Minnesota; and,  in March          1987,  an assistant zone manager, responsible  for the area which          included New Hampshire.   Budnick, a district sales  manager also          responsible for New Hampshire, reported directly to Pedersen.                                           8          butions made  by the Honda dealers to  these regional advertising          associations, on the condition  that the advertising associations          hire  a particular  vendor (controlled  by Josleyn's  brother) to          provide the advertising services.   After receiving payments from          the regional advertising associations, the vendor allegedly  made          kickbacks  to  Josleyn and  Cardiges.    Other Racketeering  Acts          described  in  Count  I alleged,  inter  alia,  that Josleyn  and                                            _____  ____          Cardiges received kickbacks for awarding numerous LOIs to various          dealership  candidates in  California,  Maryland,  New York,  and          other states.                    Count  II charged Billmyer,  Cardiges, and Josleyn with          conspiring  to  defraud Honda  by  accepting  payments and  other          valuable  consideration from  dealers and prospective  dealers in          exchange  for  LOIs  or  other preferred  treatment.    Count III          (conspiracy)  and  Count  IV  (mail fraud)  charged  Josleyn  and          Cardiges  with accepting  kickbacks  from 1989  through 1992,  in          relation  to the sales  training seminars.   Overall, Josleyn was          charged in all four counts, whereas Billmyer was charged with the          Count II "dealer franchise" conspiracy only.                    Trial  began on  February 7,  1995, before  Chief Judge          Joseph A. DiClerico, Jr.4   After presenting thirty-five witness-          es,  including Cardiges and Pedersen  and many Honda dealers from          around the country,  the government  rested its case  on May  10,          1995.   Billmyer opted  to present  no  witnesses, while  Josleyn                                        ____________________               4Three  weeks into the trial, we were called upon to resolve          a  discovery dispute. See United  States v. Billmyer,  57 F.3d 31                                ___ ______________    ________          (1st Cir. 1995).                                          9          mounted  a defense based on  the theory that  top Japanese execu-          tives in Honda had condoned the activities alleged in the indict-          ment.   At the  close of the evidence,  the district court denied          appellants' renewed  Rule 29 motions for  judgments of acquittal.          See Fed. R. Crim. P. 29(a).          ___                    The case went  to the jury on May 19.   Seven days into          the  deliberations, guilty  verdicts were  returned  against both          Billmyer  and Josleyn.  After denying their motions for judgments          of acquittal,  the district court  sentenced Billmyer to  a five-          year prison term and a $125,000 fine; and Josleyn to six and one-          half years  in prison on Count  I and a five-year  prison term on          each  of the three remaining counts, all to be served concurrent-          ly.                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________          A. Joinder of Defendants           A. Joinder of Defendants             _____________________                    As in the district  court, Josleyn and Billmyer contend          on  appeal that their joint indictment and trial violated Fed. R.          Crim. P. 8.5                                          ____________________               5Rule 8 provides:                    (a) Joinder of Offenses.  Two or more offenses may                    (a) Joinder of Offenses.               be  charged in the same  indictment or information in a               separate  count  for  each  offense  if  the   offenses               charged, whether felonies or  misdemeanors or both, are               of  the same or similar  character or are  based on the                       ____ __ _______  _________               same  act  or transaction  or on  two  or more  acts or               ____  ___  __ ___________  __                   ____ __               transactions connected together  or constituting  parts               ____________               of a common scheme or plan.                    ______ ______ __ ____                    (b) Joinder of Defendants.  Two or more defendants                    (b) Joinder of Defendants.               may be charged in the same indictment or information if               they  are alleged to have  participated in the same act                         _______          ____________        ____ ___                                          10                    The federal  courts have long recognized  that consoli-          dated trials tend to  promote judicial economy, conserve prosecu-          torial resources, and foster the consistent resolution of factual          disputes common to properly joined defendants.  See, e.g., United                                                          ___  ____  ______          States v.  MacDonald & Watson Waste Oil Co., 933 F.2d 35, 60 (1st          ______     ________________________________          Cir. 1991).  In resolving a Rule 8(b) misjoinder claim, the trial          court must examine the indictment to determine whether there is a          factual basis  for  joining the  defendants.   United  States  v.                                                         ______________          Boylan, 898 F.2d 230, 245 (1st Cir.), cert. denied, 498  U.S. 849          ______                                _____ ______          (1990).   While Rule 8 harbors the potential for unfair prejudice          in  consolidated trials, see King v. United States, 355 F.2d 700,                                   ___ ____    _____________          703-04 (1st Cir. 1966) (Aldrich, C.J.) (noting risk that jury may          infer  guilt by association), the  rule nonetheless may be gener-          ously construed in favor of joinder, given the protective discre-          tion vested in the trial court under Fed. R. Crim. P. 14.                    The district court apparently  concluded that the Count          II  dealer  franchise  conspiracy  charge  against  Billmyer  and          Josleyn warranted their joinder under  Rule 8(b).  Its conclusion          plainly  would  have  been  unexceptionable  had  the  indictment          contained only Count  II, see  United States v.  Morrow, 39  F.3d                                    ___  _____________     ______          1228,  1237-38 (1st  Cir. 1994),  cert. denied,  115 S.  Ct. 1421                                            _____ ______          (1995),  or had the conspiracy alleged in Count II clearly encom-                                        ____________________               or  transaction or in the same series of acts or trans-                                         ____ ______ __ ____               actions  constituting  an offense  or  offenses.   Such                        ____________  __ _______               defendants may be charged in one or more counts togeth-               er  or separately and all of the defendants need not be               charged in each count.           Fed. R. Crim. P. 8 (emphasis added).                                          11          passed all  substantive offenses alleged in the  indictment.  See                                                                        ___          United  States  v. Arruda,  715 F.2d  671,  678 (1st  Cir. 1983).          ______________     ______          Otherwise,  joinder under  Rule 8(b)  was problematic  unless the          criminal  acts alleged in all counts were part of the same series                                 __ ___ ______                  ____ ______          of acts or  transactions.  See United States v.  Yefsky, 994 F.2d                                     ___ _____________     ______          885, 895 (1st Cir. 1993).                      A misjoinder of defendants  requires a reversal only if          the resulting prejudice "`had substantial and injurious effect or          influence in determining the jury's  verdict.'"  United States v.                                                           _____________          Lane, 474 U.S. 438, 449 (1986) (mandating "harmless error" review          ____          of Rule 8(b) misjoinder) (quoting Kotteakos v. United States, 328                                            _________    _____________          U.S. 750, 776 (1946)).  As  it would be incumbent upon this court          in  all events to conduct  the "harmless error" analysis mandated          in Lane were we to conclude that a  misjoinder occurred, see id.,             ____                                                  ___ __          and  since the misjoinder question  itself is far  from clear, we          will assume,  without deciding,  that the misjoinder  occurred as          claimed by Billmyer, and proceed directly to the "harmless error"          inquiry.  See United States v. Edgar, 82 F.3d 499, 504 (1st Cir.)                    ___ _____________    _____          (bypassing misjoinder  question where any  error ultimately would          prove harmless), petition for cert. filed, 65 U.S.L.W. 3110 (U.S.                           ________ ___ _____ _____          July 16, 1996) (No. 96-178).  We conclude that any misjoinder was          harmless.                      Not  only did  the  parties  marshal their  evidentiary          presentations to  minimize prejudicial spillover,  but throughout          the trial  the district  court prudently and  carefully cautioned          the  jury to consider the evidence against each individual defen-                                          12          dant.   No  less importantly,  Billmyer's retirement  from Honda,          prior to the time Josleyn launched the dealer advertising associ-          ation and sales training schemes,  unquestionably facilitated the          individualized factfinding  focus  to which  each  defendant  was          entitled from the jury.  Cf.  Morrow, 39 F.3d at 1235-36 (errone-                                   ___  ______          ous admission of hearsay under coconspirator exception held to be          "harmless"  given distinctiveness  of two  fraudulent  schemes).           Finally, at the close of all the evidence, the trial judge gave a          careful cautionary instruction, once  again reminding the jury to          consider the  evidence against each defendant  individually.  See                                                                        ___          Lane, 474  U.S. at 450 (limiting  instructions mitigate prejudice          ____          from misjoinder).                     Although  these  safeguards may  not  have sufficed  in          another case, the evidence  against both Billmyer and Josleyn can          only be described as overwhelming.  See Randazzo, 80 F.3d at 628.                                              ___ ________          An  army   of  former   Honda  executives,   including  Cardiges,          Billmyer's proteg   and eventual  successor, as well  as numerous          Honda  dealers, presented  a wealth  of telling  evidence against          appellants.    See Lane,  474  U.S. at  450  (noting overwhelming                         ___ ____          evidence of guilt);  see infra Section II.B.3.   Consequently, we                               ___ _____          are  persuaded that no aspect of the jury's decision was substan-          tially influenced by any misjoinder.  See O'Neal v. McAninch, 115                                                ___ ______    ________          S. Ct. 992, 995 (1995).          B.   Sufficiency of the Evidence and          B.   Sufficiency of the Evidence and               _______________________________               Venue (Franchise Conspiracy Count)               Venue (Franchise Conspiracy Count)               _________________________________                    The jury found that both appellants participated in the                                          13          dealership franchise  conspiracy alleged  in Count II.6   Neither          appellant  seriously disputes  that he  conspired with  Cardiges.          Rather, their principal contention is that there was insufficient          evidence  to prove,  beyond a  reasonable doubt,  that  they both                               ______ _  __________ _____          participated in  the same  conspiracy with Pedersen,  which, they          maintain, was  essential to  establish both the  substantive con-          spiracy charge in Count II and proper venue in New Hampshire.  As                                     ___          their contention  confuses the  standards of proof  applicable to          these two distinct  issues, and the record  demonstrates that the          government readily met both, appellants'  convictions under Count          II must be affirmed.                    1.  Standard of Proof                    1.  Standard of Proof                        _________________                    The  unchallenged instructions  apprised the  jury that          the government  was  required to  prove four  elements, beyond  a          reasonable doubt,  in order to prevail  on Count II:   (i) two or          more persons entered into  the unlawful agreement charged  in the          indictment; (ii) the particular defendant, knowing the purpose of          the agreement,  knowingly and  willfully became  a member  of the          conspiracy; (iii) some member of the conspiracy knowingly commit-          ted at least one alleged  overt act; and (iv) at least  one overt                                        ____________________               6Count II  alleged  that Billmyer,  Josleyn,  Cardiges,  and          others known and unknown, conspired to defraud Honda by accepting          money and other valuable consideration in exchange for LOI rights          and  other preferential  treatment to  various Honda  dealers and          prospective  dealers.  Only one  overt act in  furtherance of the          franchise  conspiracy  alleged  in Count  II  took  place  in the          District  of New Hampshire.  It alleged that David Pedersen, then          an assistant  zone sales  manager responsible for  New Hampshire,          had  recommended one Thomas Bohlander for  an Acura dealership in          Nashua,  New Hampshire,  in return  for approximately  $18,000 in          college tuition payments for Pedersen's son.                                          14          act was committed in  furtherance of the conspiracy.   See, e.g.,                                                                 ___  ____          United States v. Sawyer, 85 F.3d 713, 714 (1st Cir. 1996) (citing          _____________    ______          United  States v. Frankhauser, 80 F.3d 641, 653 (1st Cir. 1996));          ______________    ___________          United  States v.  Brandon, 17  F.3d 409,  428 (1st  Cir.), cert.          ______________     _______                                  _____          denied, 115  S. Ct. 80  (1994).   Thus, the jury  need only  have          ______          found  beyond a  reasonable doubt  that each  appellant conspired          with at least one  other person (e.g., Cardiges), and  not neces-          sarily with Pedersen as well.                    Putting aside for the moment the question of guilt, see                                                                        ___          infra  Section  II.B.3, it  is  clear that  adequate  evidence of          _____          Pedersen's role in the  dealer franchise conspiracy was essential          to  establish  New Hampshire  as a  proper  venue for  Count II.7          Without objection,  the district  court instructed the  jury that          the government must establish, by a preponderance of the evidence                                              _____________          (rather than beyond a  reasonable doubt), that Pedersen, Billmyer          and  Josleyn  joined the  Count II  conspiracy and  that Pedersen          committed the alleged overt act involving the Acura dealership in          Nashua,  New Hampshire.  See  United States v.  Cordero, 668 F.2d                                   ___  _____________     _______          32, 45 n.18 (1st Cir. 1981) (applying preponderance standard,  as          venue is not  an element  of conspiracy offense);  supra note  6.                                                             _____                                        ____________________               7Venue rights  are guaranteed by the  Constitution, see U.S.                                                                   ___          Const. art. III,   2, cl. 3;  United States v. Georgacarakos, 988                                        _____________    _____________          F.2d  1289, 1293 (1st Cir.  1993), and prescribed  by the Federal          Rules of Criminal Procedure, see Fed. R. Crim. P. 18 ("Except  as                                       ___          otherwise permitted by statute or by these rules, the prosecution          shall be had in a district in which the offense was committed.").          Venue  "concerns only the place  where the case  may be tried[,]"          whereas jurisdiction "has to do with the authority  or power of a          court  to try  a case."    Wayne R.  LaFave &  Jerold H.  Israel,          Criminal  Procedure   16.1, at 334 (1984 & Supp. 1991) (footnotes          ___________________          omitted).                                            15          Thus,  consistent  with  the unchallenged  jury  instructions  on          conspiracy and venue,  as well as applicable  law, the government          could establish venue in New Hampshire by only a preponderance of          the  evidence,  but it  was  required to  prove  each appellant's          participation in the conspiracy beyond a reasonable doubt.8                      2.  Standard of Review                    2.  Standard of Review                        __________________                    We  will uphold the verdicts under Count II if a ratio-          nal  juror  could have  found  each  substantive  element of  the          alleged conspiracy  beyond a  reasonable doubt, United  States v.                                                          ______________          DiMarzo, 80 F.3d 656,  660 (1st Cir.), petition for  cert. filed,          _______                                ________ ___  _____ _____          No. 96-5578 (U.S. Aug.  13, 1996), and proper venue by  a prepon-          derance  of the  evidence, Cordero,  668  F.2d at  45 n.18.   All                                     _______          credibility  issues  are to  be  resolved,  and every  reasonable          inference drawn,  in  the light  most favorable  to the  verdict.          DiMarzo, 80 F.3d at 660; United States v. Lam Kwong-Wah, 924 F.2d          _______                  _____________    _____________          298, 301  (D.C. Cir.  1991) (venue).   A  thorough review  of the          entire record  discloses ample  evidentiary support for  the ver-                                        ____________________               8The  following  explanation  exposes  the  fallacy  in  the          unitary standard of proof urged by appellants.                      [T]he  evidence  may  well  be  sufficient to                    permit  reasonable  inferences  that a  given                    individual was  more likely than not a member                    of the  alleged  conspiracy and  performed  a                    given  act in  furtherance of  the conspiracy                    within the district  of prosecution,  thereby                    satisfying the venue requirement, even if the                    jury finds the same evidence not sufficiently                    persuasive to cause  it, for purposes of  as-                    sessing  guilt, to draw  those inferences be-                    yond a reasonable doubt.            United  States v. Rosa, 17 F.3d 1531, 45 n.18 (2d Cir.) (citation          ______________    ____          omitted), cert. denied, 115 S. Ct. 211 (1994).                    _____ ______                                          16          dicts against each appellant.                     3.  Guilt                          3.  Guilt                              _____                    The Count II conspiracy  charge required proof that the          particular  defendant and at least  one other person expressly or          tacitly agreed to commit a federal  offense.  DiMarzo, 80 F.3d at                                                        _______          660.   The government must  have shown that  the defendant volun-          tarily participated to promote a criminal objective.  Brandon, 17                                                                _______          F.3d  at 428.   When, as in  this case, mail fraud  is an alleged          goal  of the  conspiracy, the  government must  prove either  the          intent to use  the mails or that such use was reasonably foresee-          able.  Yefsky, 994 F.2d  at 890; see also United States  v. Dray,                 ______                    ___ ____ _____________     ____          901 F.2d 1132,  1137 (1st  Cir.) (noting that  intent element  in          conspiracy  differs from  substantive mail fraud),  cert. denied,                                                              _____ ______          498 U.S. 895 (1990).   A particular defendant need not have  been          familiar  with  all the  details of  the  conspiracy or  with the          identities  of   all  other  conspirators.     United  States  v.                                                         ______________          Innamorati,  996 F.2d 456, 470 (1st Cir. 1993), cert. denied, 510          __________                                      _____ ______          U.S. 1120 (1994); United States v. Bello-Perez, 977 F.2d 664, 668                            _____________    ___________          (1st Cir. 1992).                      A  brief  overview  leaves  no  reasonable  doubt  that          Billmyer,  Cardiges, and  other Honda  sales  executives, respec-          tively, conspired to defraud  Honda by accepting valuable consid-          eration for awarding dealership franchises and other preferential          treatment to Honda dealers and prospective dealers.                           a.   Billmyer                         a.   Billmyer                              ________                    As  early  as  1979,  while Billmyer  was  the  eastern                                          17          regional sales manager,  Cardiges, as zone  manager for the  mid-          Atlantic states, accepted  a $10,000 payment from  a Honda dealer          in  Philadelphia, and split  it with Billmyer.   In  late 1979 or          early  1980, Cardiges presented Billmyer  with a gold Rolex watch          worth as much as $15,000  from a large Honda dealer in  the Wash-          ington,  D.C. area.  Beginning  with the 1984  holiday season and          continuing  through 1992,  Cardiges received  $20,000  to $25,000          each year  from John Rosatti,  a Honda  dealer in New  York City.          Rosatti told Cardiges that he  was paying Billmyer also, because,          as Cardiges testified at trial, like other dealers Rosatti wanted          "favorable  treatment, wanted more  automobiles, more franchises,          and wanted the ability to have the ear of the  people who were in          power at Honda."                       Cardiges and  Billmyer both helped a  dealer named Rick          Hendrick acquire approximately thirty  Honda and Acura franchises          in various  states, including Texas, Georgia,  and the Carolinas.          In return,  Hendrick helped  Cardiges buy a  California residence          from which Cardiges later realized  a $250,000 gain.  Thereafter,          Hendrick defrayed approximately $150,000 in interest payments  on          a loan Cardiges  had obtained to  buy a $700,000  home in  Laguna          Hills, California.  During this same 1989-92 time frame, Hendrick          intimated  to   Cardiges  that  he  was   involved  in  financing          Billmyer's home in Palm  Springs as well.  Cardiges  also learned          from Billmyer  that Hendrick had provided Billmyer with a top-of-          the-line BMW.                     Cardiges  described  periodic  payoffs  from  one Marty                                          18          Luftgarten, who  owned dealerships  in New  Jersey, Philadelphia,          and southern California.   For example, at the grand opening of a          Luftgarten dealership  during the mid-1980s,  Billmyer, Cardiges,          and two  other  Honda  sales managers,  Bill  Kutchera  and  Jeff          Conway,  gathered in  a conference  room where  Luftgarten handed          each an envelope containing  $5,000 in cash.  Around  the holiday          season,  another  dealer  customarily sent  Cardiges  $5,000 gift          certificates from  Neiman-Marcus for both Cardiges  and Billmyer.          See Boylan, 898 F.2d at 242 (noting that defendants often cooper-          ___ ______          ated with one  another by  collecting payments).   The record  is          replete with  other evidence  of cash  payments from  dealers and          lavish shopping trips to Hong Kong.                          b.   Josleyn                         b.   Josleyn                              _______                    Similarly, there was ample  evidence to enable a ratio-          nal jury to find beyond a reasonable doubt that Josleyn conspired          with  Cardiges and others to defraud Honda in connection with the          Honda dealership franchises.   In early 1991, while  zone manager          for  the west coast, Josleyn  arranged for a  "friend" back east,          Joe Pope,  to pay  $150,000 for  the "open  point" in  Elk Grove,          California.  Josleyn approached Cardiges, national sales manager,          and  Robert  Rivers,  regional  manager for  the  western  United          States, and  advised that there would  be money in it  for all of          them if Pope were to receive the Elk Grove dealership.   Thereaf-          ter, Cardiges,  Rivers, and Josleyn, in direct violation of Honda          procedure,  decided  not  to  prospect  for  suitable  dealership          candidates, and awarded the Elk Grove franchise outright to Pope.                                          19          As  promised,  Pope issued  a $150,000  check  payable to  Gary &          Associates, a company controlled by Josleyn and his brother Gary.          Josleyn in turn gave Cardiges and Rivers each $50,000 in cash.                     Cardiges testified that Ed  Temple, a former Honda zone          manager, approached  him in the summer  of 1991 in behalf  of Bob          Frink,  a  dealer interested  in  the  Folsom, California  point.          Temple had accepted payoffs from dealers while employed by Honda,          and  after  leaving the  company in  1989  established a  firm             Blakely Consultants    to facilitate payments to Honda executives          from dealers seeking  new Honda franchises.   Simply put,  Temple          told  Cardiges that Frink was willing to pay Cardiges and Josleyn          for  the Folsom dealership.   On August 5,  1991, Cardiges signed          the Folsom LOI, and  on the same day  Frink paid Blakely  Consul-          tants $500,000 for services rendered.   Three days later,  Temple          wrote  a $166,666 check to  Magnum Marketing, a  company owned by          Josleyn.  Cardiges reported  $166,666 from Blakely Consultants on          his own 1991  income tax  return, although Temple  had agreed  to          hold Cardiges' one-third share until Cardiges left Honda.                      We need  belabor the  point  no further,  as there  was          ample evidence to enable the  jury reasonably to conclude, beyond          a reasonable  doubt, that  Josleyn was a  member of the  Count II          dealership franchise conspiracy.  See Boylan, 898 F.2d at 242.                                            ___ ______                    4.  Venue                    4.  Venue                        _____                    As a general rule,  venue in a conspiracy case  depends          upon whether an overt act in furtherance of the alleged conspira-          cy occurred in the  trial district.  United States  v. Uribe, 890                                               _____________     _____                                          20          F.2d 554, 558 (1st  Cir. 1989); see  18 U.S.C.   3237(a)  (1994).                                          ___          The  defendant need not have been physically present in the trial          district during  the conspiracy.   United States v.  Santiago, 83                                             _____________     ________          F.3d 20, 24-25 (1st  Cir. 1996); see, e.g., Cordero,  668 F.2d at                                           ___  ____  _______          43-44 (furthering drug importation conspiracy with phone calls to          undercover  DEA  agent  in Puerto  Rico);  cf.  United  States v.                                                     ___  ______________          Georgacarakos, 988  F.2d 1289, 1294 (1st  Cir. 1993) (contrasting          _____________          venue  for  "group" and  "individual"  crimes).   The  government          acknowledges that venue was  proper in the District of  New Hamp-          shire only if  there was enough evidence  for a rational  jury to          find  it more likely than not that Pedersen, Josleyn and Billmyer          belonged to the Count II conspiracy.                      Upon joining Honda  as a district sales manager in July          1979, see supra notes 2  & 3, Pedersen learned that Honda  policy                ___ _____          prohibited sales executives from  awarding LOIs for personal gain          and  from accepting gifts valued  at more than  $25 from dealers.          In  keeping with Honda policy, Pedersen objected in December 1979          when Bill  Lia, a dealer in upstate New York, stuffed an envelope          containing  cash  into  Pedersen's  pocket.    Although  Pedersen          threatened  to report the incident, he relented when Lia told him          not to worry because Lia had  "already handled the zone."   More-          over,  Pedersen knew at the time that both his immediate supervi-          sor, Northeast Zone Manager Bill Kutchera, and Billmyer, regional          manager  for the  eastern  United States,  as  well as  Cardiges,          worked  at Honda  headquarters  in New  Jersey.   In  fact,  when          Pedersen  told Kutchera  about the  cash  bribe tendered  by Lia,                                          21          Kutchera  advised Pedersen to ask for a gift certificate in place          of the  cash.  Accordingly,  Pedersen ultimately accepted  a $300          gift  certificate  from Lia  with  Kutchera's  explicit approval.          Around this same  time, Kutchera also  told Pedersen that  during          the course of the previous year  he had received two Rolex watch-          es, a cruise, furniture, and other gifts, valued at $13,000, from          various dealers.                    Pedersen testified that he frequently  discussed dealer          payoffs with Roger  Novelly and Larry Finley,  his Honda supervi-          sors in Ohio.  Novelly, the assistant zone manager,  specifically          told Pedersen that  Billmyer and Cardiges were  being "taken care          of" by dealers, and  Finley, the zone manager, admitted  that Tom          Bohlander  had paid  him for  the Honda  "open  point" dealership          franchise in West Cleveland.9  See, e.g., Boylan, 898 F.2d at 243                                         ___  ____  ______          (noting that tacit accord among alleged conspirators is permissi-          bly inferred from evidence that defendants  "often spoke to their          victims  about other victims  or other defendants  in words which          plainly revealed that the crimes were interdependent").  Based on          this  evidence,  and there  was more,  the  jury would  have been          permitted to draw the reasonable  inference that Pedersen and his          various supervisors over the years had developed a  shared under-                                                              ______          standing of an "unwritten  policy" at Honda:  dealers had  to pay          Billmyer and Cardiges, as  well as other sales executives  in the                                        ____________________               9Significantly,  Cardiges  identified  Finley, Novelly,  and          Kutchera as fellow conspirators.  In addition, Pedersen testified          that he  subsequently received $5,000  from John  Rosatti, a  New          York Honda dealer who admittedly paid both Cardiges and Billmyer.          See supra Section II.B.3(a).          ___ _____                                          22          chain of command, in order to receive a Honda or Acura  franchise          or other favorable treatment.  Id.                                         __                    John Orsini,  a Honda and Acura  dealer in Connecticut,          provided  corroborative  testimony at  trial,  characterizing the          kickbacks he had made to Billmyer, Pedersen,  and Damien Budnick,          Pedersen's subordinate,  as a "way of doing business" with Honda.          At Budnick's  suggestion, Orsini  met with Billmyer  in September          1987  to discuss obtaining another Acura dealership.  A few weeks          later, Billmyer offered  Orsini a franchise in  Nanuet, New York,          if Orsini created a "no-show" job for Billmyer's friend,  Douglas          T.  Richert, at  $1,000  per week.    After Orsini  accepted  the          Billmyer proposal, he received the Nanuet LOI.                       Around the same time, Orsini discussed with Budnick and          Pedersen the possibility that Orsini  might obtain a new  dealer-          ship franchise in Salem,  New Hampshire.  According to  Pedersen,          Orsini  and other  dealers routinely  and unilaterally  mentioned          Billmyer's  name in conversation, as a means of "impress[ing]" on          Pedersen the  dealers' established connections  with higher-level          Honda  sales managers.   Orsini  told Pedersen  that he  would be          willing  to  pay for  the Salem  franchise,  but not  the $50,000          demanded by Budnick.   After  agreeing to help  secure the  Salem          dealership for Orsini in February 1988, Pedersen received between          $2,000 and $4,000  in cash from Orsini.   Thus, given the circum-          stantial evidence that both Billmyer and Pedersen shared a common          goal or plan to defraud Honda  by accepting illicit consideration          for awarding new dealership franchises, the jury reasonably could                                          23          infer, by  a preponderance  of  the evidence,  that Billmyer  and          Pedersen  defrauded  Honda  in  connection with  the  Salem,  New          Hampshire LOI by accepting payoffs from a common  source, Orsini.          See, e.g., Brandon,  17 F.3d at  450 (finding single  conspiracy,          ___  ____  _______          despite variations in details  and tactics, where main objective,          structure,  intended  victim, and  modus  operandi remained  con-          stant); supra Section I.                   _____                    In addition to accepting  illicit payments from Lia and          Orsini,  the  record  demonstrates,  by a  preponderance  of  the          evidence, that  Pedersen committed an overt act  in New Hampshire          in  furtherance of the Count  II conspiracy, by  accepting a free          Acura Integra  from Bohlander's West  Cleveland, Ohio, dealership          in  1986.  After Bohlander  and Pedersen became friends, Pedersen          agreed  to  help  Bohlander  acquire more  Acura  dealerships  in          exchange for a silent  ownership interest in a Nashua,  New Hamp-          shire, dealership.   Pedersen  recommended Bohlander for  the new          Nashua  franchise,  and  in  due course  Bohlander  received  it.          Although  Pedersen later  declined an  ownership interest  in the          Nashua  dealership,  he  nonetheless  let  Bohlander  pay roughly          $18,000  in college tuition fees  for Pedersen's son.   Thus, the          evidence sufficed to demonstrate,  by a preponderance, that venue          was proper in the District of New Hampshire.  See Uribe, 890 F.2d                                                        ___ _____          at 558.                    Finally, there was evidence  from which a rational jury          reasonably could have  inferred, by a  preponderance of the  evi-          dence,  that Bohlander  routinely paid  Billmyer and  Cardiges as                                          24          well.   Pedersen described  a  card game  at Bohlander's  Florida          condominium  in February  1991,  during which  Bohlander and  Lou          Tecco, a  dealer associated  with Marty Luftgarten,  talked about          paying  bribes as a "way of doing business" with Honda, and noted          that Billmyer and Cardiges had to be paid in order to get dealer-          ships  and other  favorable treatment.   Along with  the evidence          that Bohlander had paid Finley for  the West Cleveland dealership          and that dealers commonly bribed sales executives at each succes-          sive level, see  supra p. 22, Pedersen's  testimony permitted the                      ___  _____          jury reasonably to conclude that it was more likely than not that          Bohlander  had paid Billmyer, the Acura Division head, as well as          Pedersen, in return for the Nashua dealership in 1987.  Thus, the          similarity in the pattern  of fraudulent transactions relating to          new dealership franchises, the  common core of "insider" partici-          pants, and  the temporal  overlap would  enable  a rational  jury          reasonably to infer, under the applicable preponderance standard,          that Pedersen,  Billmyer, Josleyn, and Cardiges  agreed, at least          tacitly, to defraud Honda by accepting illicit consideration from          candidates for  new Honda dealership franchises  in direct viola-          tion  of established Honda policy and procedures.  See Morrow, 39                                                             ___ ______          F.3d at  1233-34;  Bello-Perez,  977  F.2d at  668  (noting  that                             ___________          conspirators need  not know all coconspirators);  see also United                                                            ___ ____ ______          States v. Richerson, 833 F.2d 1147, 1152-54 (5th Cir. 1987).          ______    _________          C.  Other Claims By Josleyn          C.  Other Claims By Josleyn              _______________________                    1.   Sufficiency of the Evidence                    1.   Sufficiency of the Evidence                         ___________________________                         (Counts I, III & IV)                          (Counts I, III & IV)                           __________________                    After the government rested its case, Josleyn moved for                                          25          acquittal under Counts I, III, and IV, claiming that the evidence          was insufficient  to establish,  beyond a reasonable  doubt, that          the Honda  dealers and their dealer  advertising associations had          been victimized by the  alleged mail fraud since the  dealers and          advertising  associations had  received  the sales  training  and          advertising  services for which they  paid.  This  claim fails as          well.                     In United  States v.  Allard, 926 F.2d  1237 (1st  Cir.                       ______________     ______          1991),  we explained  that  it is  no  "defense that  the  victim          received something in exchange even if it was equivalent in value                   _________          to what the victim was deceived into relinquishing."  Id. at 1242                                                                ___          (citing United States v.  King, 860 F.2d  54, 55 (2d Cir.  1988),                  _____________     ____          cert.  denied,  490 U.S.  1065 (1989)).    Given that  the proper          _____  ______          inquiry under Allard is whether  Josleyn intended to defraud  the                        ______          dealers  and advertising  associations  into  parting with  their          money, there  was ample  evidence, particularly the  testimony of          Cardiges,  to support  the  jury verdicts  against Josleyn  under          Counts I, III, and IV.             2.     Jury   Instructions  on                                             2.     Jury   Instructions  on                                                    _______________________          Condonation          Condonation          ___________                    The district  court  rejected Josleyn's  proposed  jury          instruction that  the government must prove,  beyond a reasonable          doubt, that  Honda had not condoned  Josleyn's fraudulent activi-          ties.  Ordinarily, a  defendant is entitled to an  instruction on          his theory of  the case as long as it is  legally valid and there          is sufficient evidence, viewed in the light most favorable to the          defendant, to permit a reasonable juror to credit the defendant's                                          26          theory.  United  States v.  Flores, 968 F.2d  1366, 1368-69  (1st                   ______________     ______          Cir.  1992); United States v. Shenker, 933  F.2d 61, 65 (1st Cir.                       _____________    _______          1991).  The government does not dispute that the evidence adduced          at  trial would  have  permitted the  jury  to find  that  native          Japanese  executives at  the highest  levels of  Honda implicitly          condoned the  acceptance of bribes and  kickbacks.  Nevertheless,          the trial court need not adopt the precise instructional language          proposed by the defendant.   United States v. DeStefano,  59 F.3d                                       _____________    _________          1, 3 (1st Cir. 1995).                      Viewed as a  whole, we think  the instruction given  by          the district court fairly summarized Josleyn's defense theory:                     Since  the  essential  element of  the  crime                    charged is intent to defraud, it follows that                    good faith on  the part of the defendant is a                    complete defense to  a charge of mail  fraud.                    A defendant,  however has no burden to estab-                    lish a defense of good faith.  The burden  is                    on the government  to prove fraudulent intent                    and the consequent lack of good faith  beyond                    a reasonable doubt.                          . . . .                         It  is the defendant Josleyn's theory of                    the case that American Honda knew of and con-                    doned; that  is, gave  tacit approval  to the                    activities  of its  employees alleged  in the                    indictment  that  were  in violation  of  its                    policies.  American Honda's knowledge or con-                    donation of the commission of an offense does                    not  by  itself  constitute a  defense  or an                         __  ______                    excuse.   However,  any evidence  of American                                        ___ ________  __ ________                    Honda's  actions or omissions, or evidence of                    _______  _______ __ _________  __ ________ __                    deficiencies in the manner in which it imple-                    ____________ __ ___ ______ __ _____ __ ______                    mented  and enforced its  policies and proce-                    ______  ___ ________ ___  ________ ___ ______                    dures, may be considered by you to the extent                    _____  ___ __ __________ __ ___ __ ___ ______                    that  such  evidence bears  on  the  issue of                    ____  ____  ________ _____  __  ___  _____ __                    whether  or not  Mr. Josleyn  formed  the re-                    _______  __ ___  ___ _______  ______  ___ ___                    quired intent to commit the crimes with which                    ______ ______ __ ______ ___ ______ ____ _____                    he  is charged.   Mr.  Josleyn contends  that                    __  __ _______                    because  he believed  American Honda  knew of                    and condoned the  activities in question,  he                                          27                    did not possess the required intent to commit                    the offenses with which he is charged.                          The  defendant  has no  obligation what-                    soever  to prove  to you  that his  theory is                    correct, but rather  the burden is always  on                    the government to prove  all of the  material                    elements  of  each offense  charged  beyond a                    reasonable doubt[,] including the  element of                    intent with  respect to each  offense[,] as I                    have  already  explained to  you.   (Emphasis                    added.)                                      The  charge  given  by  the  trial  judge  unmistakably          permitted  the jury to  consider all the  condonation evidence in          determining whether  Josleyn had  formed the requisite  intent to          defraud Honda.   No more was required.  See generally New England                                                  ___ _________ ___________          Enters.,  Inc. v.  United States,  400 F.2d  58, 71-72  (1st Cir.          ______________     _____________          1968)  (discussing "good  faith"  defense to  mail fraud),  cert.                                                                      _____          denied, 393  U.S.  1036  (1969).   Since  Josleyn  neither  cites          ______          authority, nor  demonstrates, that  any condonation by  Honda was          relevant to an element of the charged offenses other than intent,          see  Yefsky, 994 F.2d at  890-91 (listing elements  of mail fraud          ___  ______          conspiracy  and substantive mail fraud); see also Aetna Cas. Sur.                                                   ___ ____ _______________          Co. v.  P &  B Autobody,  43 F.3d 1546,  1558-60 (1st  Cir. 1994)          ___     _______________          (RICO),  we conclude  that  the  jury  instruction given  by  the          district  court was  adequate.   See  DeStefano,  59 F.3d  at  3;                                           ___  _________          Shenker,  933  F.2d  at  65-66  (rejecting  proposed  instruction          _______          predicated on impermissibly broad  defense); cf. United States v.                                                       ___ _____________          Wallach, 935 F.2d  445, 464  (2d Cir. 1991)  (mail fraud  statute          _______          protects  property  interests  of  shareholders  and  corporation          against officers' schemes).                     3.  Impeachment of Cardiges                    3.  Impeachment of Cardiges                        _______________________                                          28                    Josleyn contends that though the prosecutor was respon-          sible for  deliberately suborning false testimony  from Cardiges,          the district  court unduly  impeded Josleyn's efforts  to impeach          Cardiges on cross-examination.   These claims are meritless.  See                                                                        ___          generally United States v. Osorio, 929 F.2d 753, 759-60 (1st Cir.          _________ _____________    ______          1991)  (approving  reasonable  restrictions  by  trial  court  on          repetitive,  harassing, unduly prejudicial, irrelevant, or other-          wise improper  cross-examination); cf. United States  v. Tavares,                                             ___ _____________     _______          93 F.3d  10, 14-15  (1st Cir.  1996) (rejecting  baseless perjury          allegation).                         On cross-examination, defense counsel asked Cardiges to          explain  two newspaper  articles in  which his  lawyer reportedly          stated that  the government  had evidence  that the top  Japanese          managers at Honda knew about  the alleged criminal activities  in          its sales  division.  Cardiges  testified that he  neither autho-          rized the press statements,  nor knew their basis.   On redirect,          the prosecutor  elicited testimony  that though Cardiges  and his          attorney  had been  afforded  "open access"  to the  government's          file, Cardiges had  seen "no documents  that either indicated  or          show[ed] that the Japanese knew anything about kickbacks or gifts          or anything like that."  In response, Josleyn's counsel sought to          confront Cardiges with several  FBI interview reports    obtained          from the government's file    which contained statements by Honda          employees to the effect  that the Japanese knew about  the bribes          and kickbacks.                      The district court permitted defense counsel to use the                                          29          FBI reports for impeachment purposes, i.e., to show that Cardiges                                                ____          either did not  tell the  truth, or had  not reviewed the  entire                                                                     ______          contents  of the government  file.  But the  court ruled that the          FBI interview  reports were  inadmissible hearsay if  offered for          their truth.   See Innamorati, 996 F.2d at 480-81;  Fed. R. Evid.                         ___ __________          801(c) (defining  hearsay).  On  appeal, Josleyn argues  that the          district  court  impermissibly restricted  recross-examination by          refusing  to allow the jury to consider all hearsay statements in                                                  ___          the FBI interview reports.                      Our review  of the trial transcripts  satisfies us that          the district court  accorded Josleyn ample leeway  to explore the          FBI interview  reports in sufficient  detail to  enable the  jury          fairly to weigh Cardiges'  testimony relating to the government's          file.   For  example, Cardiges  admitted on  recross that  he had          never seen the FBI  interview reports, and was "quite  sure" that          he was  not able to get  through the "thousands and  thousands of          documents"  during the  four-hour period  he spent  reviewing the          government file.  The district  court did sustain several hearsay          objections when  defense counsel  attempted to delve  more deeply          into  the  contents of  the  FBI interview  reports.   It  did so          properly,  however, since  Josleyn  proffered  no  relevant  non-          hearsay purpose  for  probing  further.   Cf.  United  States  v.                                                    ___  ______________          Hudson,  970 F.2d 948,  956-57 (1st  Cir. 1992)  (defense counsel          ______          responded to  hearsay objection  with impeachment proffer).   Nor          does Josleyn  now challenge these hearsay  rulings.  Accordingly,          we find no error.  See Fed. R. Evid. 103(a)(2).                               ___                                          30                    4.  Delayed Disclosure of Condonation Evidence                     4.  Delayed Disclosure of Condonation Evidence                         __________________________________________                    Josleyn  claims that  he was  deprived of  a meaningful          opportunity  to  cross-examine  Cardiges  and  other  prosecution          witnesses due  to the government's delayed  disclosure of certain          letters written to the government by Cecil Proulx, a former Honda          executive, outlining his efforts  in the late 1980s to  bring the          pervasive bribes and  kickbacks to the  attention of Honda's  top          Japanese  executives.  The government produced some of the Proulx          materials before trial, including a summary of his FBI interview,          but found and  unseasonably produced  additional material  months          later    upon learning that Josleyn intended  to call Proulx as a          witness     tending to show  that Honda's  Japanese managers  had          condoned  the illegal activities in  its sales division.  Josleyn          unsuccessfully  moved to  dismiss the  indictment on  due process          grounds.                     Given  the specific  discovery request  for condonation          evidence,  the government  plainly had  an obligation  to furnish          Josleyn with  the Proulx materials in a more timely fashion.  See                                                                        ___          United States v. Sepulveda,  15 F.3d 1161, 1178 (1st  Cir. 1993),          _____________    _________          cert. denied, 114 S. Ct.  2714 (1994); see also Fed. R.  Crim. P.          _____ ______                           ___ ____          16(a)(1)(C)  (discovery  relating  to documents  material  to de-          fense);  16(c) (continuing duty to  disclose).  Since the govern-          ment failed seasonably to disclose evidence "material to guilt or          punishment,"  United States v. Devin, 918 F.2d 280, 289 (1st Cir.                        _____________    _____          1990) (citing Brady v.  Maryland, 373 U.S. 83, 87  (1963)), which                        _____     ________          includes both  exculpatory and impeachment  evidence, we  inquire                                          31          whether  as  a  consequence  of the  delayed  disclosure  defense          counsel was unable to use  the material "effectively in preparing          and presenting the defendant's case."  Id. (quoting United States                                                 __           _____________          v.  Ingraldi, 793 F.2d 408, 411-12 (1st  Cir. 1986)).  Due to its              ________          greater  familiarity with the dynamics  of the case,  we will not          reverse a district court's ruling on delayed disclosure unless it          amounts to a demonstrable abuse  of discretion.  Id.   We discern                                                           ___          no abuse of discretion.                    First, a principal concern  in delayed disclosure cases              whether the failure to supply the information in a seasonable          fashion  caused the defense to change its trial strategy, see id.                                                                    ___ ___          at 290    is not significantly implicated in this case.   Josleyn          consistently  pursued the  same  defense theory  both before  and          after  the Proulx materials  were provided,  by arguing  that the          Japanese  managers at  Honda  had condoned  the charged  conduct.          Secondly, even though the Proulx materials unquestionably provid-          ed additional support  for the condonation "defense," we  are not          persuaded  that the  delay in  disclosure adversely  affected the          defense in any important respect.  In fact, while Cardiges was on          the   witness  stand,   Josleyn's  counsel  observed   that  "the          government's file is like 100,000 pages  or so."  See also  infra                                                            ___ ____  _____          note  10.   The defense  took full  advantage of  the condonation          evidence  by using it  in its own  case, even before  the tardily          produced Proulx materials were  made available, then featured the                                          32          government's delayed disclosure in its closing argument.10                      On  this record,  we think  the district  court soundly          concluded that the Proulx materials added little to  the evidence          previously  produced by  the government,  and therefore  its late          disclosure  had not  impeded Josleyn's  defense to  a significant          degree.  See United States v.  Catano, 65 F.3d 219, 227 (1st Cir.                   ___ _____________     ______          1995)   (noting   cumulativeness   of   impeachment   materials);          Sepulveda, 15  F.3d  at 1179  (holding  that failure  to  produce          _________          "incremental information" caused no prejudice).   We note as well          that Josleyn makes no claim that the prosecutor intentionally de-          layed disclosure.                      Furthermore,  and by  no  means least  importantly, the          only  relief Josleyn requested was  the outright dismissal of the          indictment.  The district court  has broad discretion to  redress          discovery  violations  in  light  of their  seriousness  and  any          prejudice occasioned the defendant.  Osorio,  929 F.2d at 762-63;                                               ______          see also Fed. R. Crim. P. 16(d)(2) (authorizing district court to          ___ ____          "permit  the discovery  or  inspection, grant  a continuance,  or          prohibit the  party from introducing the  evidence not disclosed,                                        ____________________               10Defense counsel argued in closing:                     When  you ask  [a  witness] a  question, when  the               question  is asked  [whether] you've  gone through  our               files and there's nothing there to indicate that Ameri-               can Honda executives knew  about these activities, or a               question  of that  type,  and there's  tons of  things,               reams of things in  that file, that's wrong.   When the               file isn't even complete  because you have a memorandum               from Mr. Proulx  that you  haven't turned  over to  the               defense at  all and don't  get turned  over till  weeks               later, well, isn't  that question kind of a  little bit               false?                                          33          or .  . .  enter such  other order  as it  deems  just under  the          circumstances").  On the other hand, the draconian relief demand-          ed  by   Josleyn  was   grossly  disproportionate  both   to  the          prosecution's nonfeasance and  any prejudice to the defense.  See                                                                        ___          Bello-Perez, 977 F.2d at  670 (favoring continuance over dismiss-          ___________          al);  accord  Devin, 918  F.2d at  290-91.   As  Josleyn eschewed                ______  _____          various alternative remedies more consonant with the government's          culpability  and any prejudice to the defense, see, e.g., Osorio,                                                         ___  ____  ______          929 F.2d  at 762-63  (noting, as alternative  remedies, recalling          witness  for  additional  cross-examination,   affording  defense          greater leeway with witnesses,  and instructing jury that govern-          ment failed to meet  discovery obligations), we find no  abuse of          discretion in refusing to dismiss the indictment.                      5.  Closing Argument                     5.  Closing Argument                         ________________                    Josleyn  claims  that  the lead  prosecutor  improperly          vouched for the credibility of government witnesses, and Cardiges          in particular, during  rebuttal.   Absent contemporaneous  objec-          tion, we may notice only "plain error."  United States v. Tuesta-                                                   _____________    _______          Toro, 29 F.3d  771, 776-77 (1st Cir. 1994), cert.  denied, 115 S.          ____                                        _____  ______          Ct. 947 (1995); Fed. R. Crim. P. 52(b).  Viewed in the context of          the entire trial,  United States v. Smith, 982 F.2d 681, 682 (1st                             _____________    _____          Cir. 1993), the prosecutor's  remarks, though plainly inappropri-          ate,  did not  undermine  the fundamental  fairness of  Josleyn's          trial.  See United States v. Young, 470 U.S. 1, 16 (1985).                   ___ _____________    _____                    Although at  times it  may be difficult  to distinguish          improper  vouching from zealous  advocacy, there can  be no doubt                                          34          that the statements at issue here constituted improper rebuttal:                     Now there  was a  lot of suggestion  of false                    play in this case.  I  want to say this.  I'm                    a married person with a family, and I go home                    at  night with  a sound  conscience.   I have                    worked very hard on this case.  Mr. Feith has                    worked very hard on  this case.  Mr. Mulvaney                    and Miss  Roux have worked very  hard on this                    case.   And we are very proud of what we have                    done.   We  have done  nothing to  be ashamed                    of.11           Injecting  the prosecutor's personal  life and individual efforts          into the decisional  mix not  only invited the  jury to  consider          irrelevant matters  beyond the  record, but unfairly  evoked jury          sympathy and  diverted attention from the relevant evidence.  See                                                                        ___          United  States v.  Rosales,  19 F.3d  763,  767 (1st  Cir.  1994)          ______________     _______          (prosecutor denied fabricating evidence against defendant).                      There should  be no need to  remind federal prosecutors          that they are not free to disregard the bounds of proper argument          even in response to  perceived provocation.  See Young,  470 U.S.                                                       ___ _____          at  18-19.   The important  precept that  the prosecutor  may not          vouch  for  the credibility  of  a government  witness  is deeply          rooted in American law.   See Rosales, 19 F.3d at 767  ("When the                                    ___ _______                                        ____________________               11Nor have we  any doubt that  defense counsel provoked  the          prosecution  to these excesses.  See United States v. Grabiec, __                                           ___ _____________    _______          F.3d __, __ (1st Cir. 1996) [No. 96-1131, slip op. at 4 (1st Cir.          Sept. 25,  1996)].   Referring to Cardiges'  testimony, Josleyn's          counsel argued:  "It's wrong to  lie, and it's also wrong to help          you lie; to  ask them questions [when you  know] that the answers          are going to be untrue. . . .   I call it disgusting."  Later, he          added:   "You want to see  mail fraud?  Stick  this indictment in          the mail and you'll see a mail fraud."  Josleyn's counsel made an          improper appeal for jury  nullification as well:   "People aren't          born and  the Almighty says  you may be  a prosecutor.   That's a          right that's given by  the people.  It's a trust.   And when it's          abused, somebody's got to do something about it."                                            35          prosecutor  places  the  credibility  of counsel  at  issue,  the          advantage lies with the government . . . .") (citations omitted).          Thus, a prosecutor may not lend the prestige of the government to          buttress a  witness, nor  indicate to  the jury that  information          known to the prosecutor, but  not admitted in evidence,  supports          the government's theory of the case.  Young, 470 U.S. at 18-19.                                                  _____                    The appropriate  response for  the prosecutor in  these          circumstances is to lodge a contemporaneous objection and request          an appropriate curative  instruction.   See id. at  13.   Failing                                                  ___ ___          that, the prosecutor is  constrained to a fair discussion  of the          evidence.   But for the  brief passage challenged  on appeal, see                                                                        ___          supra p. 34, the prosecution adhered to the appropriate standard.          _____                    Under the "plain  error" standard, appellants  bear the          burden  of  showing that  the  prosecutor's  remarks resulted  in          prejudice, i.e.,  affected their substantial rights.   See United                                                                 ___ ______          States v. Olano, 507 U.S. 725,  732-34 (1993).  Even then, howev-          ______    _____          er,  we will not notice error  unless it caused "a miscarriage of          justice" or seriously undermined "the integrity or public reputa-          tion of judicial proceedings."  Id.   We must consider the likely                                          ___          impact the  prosecutor's remarks had on the  jury in light of the          entire record,  including the  closing argument presented  by the          defense.  Young, 470 U.S. at 16-17.                      _____                    Compared  with  defense  counsel's  attack  against the          integrity of the  prosecuting attorneys throughout closing  argu-          ment, see supra note 11, their rebuttal was moderate.  See United                ___ _____                                        ___ ______          States v. Oreto,  37 F.3d  739, 746 (1st  Cir. 1994)  (tolerating          ______    _____                                          36          measured response to repeated attempts to magnify government mis-          conduct),  cert. denied, 115 S. Ct. 1161  (1995).  In all events,                     _____ ______          the  district  court  prudently  countered the  risk  of  serious          residual prejudice by promptly cautioning the jury that counsel's          arguments  are not evidence, and  directing the jury  to base its          verdicts solely on  the evidence.   See United  States v.  Mejia-                                              ___ ______________     ______          Lozano,  829 F.2d  268, 274  (1st Cir.  1987).   Given  the over-          ______          whelming evidence  against Josleyn, see supra  Section II.B.3(b),                                              ___ _____          the provocative excesses in the closing argument presented by his          own  counsel, and  the timely jury  instructions by  the district          court, the improper remarks by the prosecutor in rebuttal did not          rise to the level of plain error.  See Rosales, 19 F.3d at 767-68                                             ___ _______          (finding similar vouching harmless error).12                                    ________          D.  The Billmyer Sentencing Claim          D.  The Billmyer Sentencing Claim              _____________________________                    Billmyer challenges a two-level enhancement of his base          offense level ("BOL")  for abusing a  position of private  trust.          See  U.S.S.G.   3B1.3  (1995).  We  review the    3B1.3 ruling de          ___                                                            __          novo.   United States v. Tardiff,  969 F.2d 1283,  1289 (1st Cir.          ____    _____________    _______                                        ____________________               12Citing United  States v. DiLoreto,  888 F.2d 996,  999 (3d                        ______________    ________          Cir. 1989), Josleyn suggests that prosecutorial vouching requires          reversal per se.   DiLoreto was not only inconsistent  with First                   ___ __    ________          Circuit case  law, it has been  overruled.  See United  States v.                                                      ___ ______________          Zehrbach, 47  F.3d  1252,  1264-65 (3d  Cir.)  (en  banc),  cert.          ________                                                    _____          denied, 115 S. Ct. 1699 (1995).  Furthermore, Josleyn's strongest          ______          authority,  see United States v. Smith, 962 F.2d 923, 933-36 (9th                      ___ _____________    _____          Cir. 1992)  (finding plain  error),  is readily  distinguishable.          There, defense  counsel did not allege that the prosecutor either          withheld evidence or suborned perjury,  id. at 934; moreover, the                                                  ___          prosecutor had invoked  both the prestige  of the government  and                                                                        ___          the authority of  the court in  rebuttal, id. at 936;  cf. United                                                    ___          __  ______          States v. Perez, 67 F.3d 1371, 1379 (9th Cir. 1995) (distinguish-          ______    _____          ing Smith on latter ground).                _____                                          37          1992).  As Billmyer acknowledges a sound factual basis for the             3B1.3  enhancement, we  need only  apply the  pertinent guideline          language.                     If the defendant abused a position  of public                    or private trust, or used a special skill, in                    a manner that  significantly facilitated  the                    commission  or  concealment  of the  offense,                    increase  by 2  levels.  This  adjustment may                                 2           ____  __________ ___                    not be employed if an abuse of trust or skill                    ___ __ ________ __ __ _____ __ _____ __ _____                    is  included  in  the base  offense  level or                    __  ________  __  ___ ____  _______  _____ __                    specific offense characteristic.                       ________ _______ ______________          U.S.S.G.   3B1.3 (Nov. 1995) (emphasis added).                      The district court applied U.S.S.G.   2B4.1 (commercial          bribery) to  determine Billmyer's BOL.   As the  specific offense          characteristics  listed in   2B4.1(b) are  not germane,13 we must          consider  whether the  BOL prescribed  in    2B4.1  "included" an                                        ____________________               13Section 2B4.1(b) provides:               Specific Offense Characteristics               (1)  If  the greater of the  value of the  bribe or the                    improper  benefit  conferred exceeded  $2,000, in-                    crease  the  offense  level by  the  corresponding                    number  of levels  from the  table in   2F1.1 [of-                    fense-conduct   guideline   for   fraud  and   de-                    ceit/forgery].               (2)  If the offense --                    (A)  substantially  jeopardizes   the  safety  and                         soundness of a financial institution; or                     (B)  affected  a  financial  institution  and  the                         defendant  derived  more  than $1,000,000  in                         gross receipts from the offense,                    increase by  4 levels.   If the  resulting offense                                 4                    level is less than 24, increase to level 24.                                       24                    24          U.S.S.G.   2B4.1(b).                                          38          abuse-of-trust  component which  would render  the offense  level          enhancement invalid under the second sentence in   3B1.3.                    The  Guidelines  prohibit  the  sentencing  court  from          imposing an abuse-of-trust enhancement  in a public bribery case,                                                       ______          see U.S.S.G.   2C1.1, comment. (n.3), unless special circumstanc-          ___          es  require reference  to  other offense  guidelines,  see id.                                                                    ___ ___          2C1.1(c).  Thus,  in its  main thrust the  present challenge  at-          tempts  to  equate  Billmyer's commercial  bribery  offense  with          bribery  of a public official.   According to  Billmyer, the same          general  rule  must  apply  because public  bribery  and  private          bribery are "virtually identical" offenses.   We are not persuad-          ed.                     The  absence of  an explicit provision  restricting the                                        ________          application  of  the  abuse-of-trust  enhancement  in  commercial          bribery cases  severely undercuts the analogy  urged by Billmyer.          See United States v. Newman, 982 F.2d 665, 673-74 (1st Cir. 1992)          ___ _____________    ______          (applying expressio unius est exclusio alterius principle in this                    _________ _____ ___ ________ ________          sentencing context), cert. denied, 510 U.S. 812 (1993).  Further-                               _____ ______          more, the Sentencing Commission  took pains throughout the Guide-          lines to  specify the  circumstances in  which courts  should not          impose  enhancements for abuse of  trust.14  In  sum, the overall          structure of the Guidelines simply does not warrant the categori-                                        ____________________               14See,  e.g., U.S.S.G.   2A3.1(b)(3), comment. (n.4) (sexual                 ___   ____          abuse);  id.     2H1.1(b)(1),  comment.  (n.5)  (violating  civil                   ___          rights); id.   2P1.1(b)(1), comment. (n.3) (prison escape); id.                     ___                                                ___          2T1.4(b)(1), comment. (n.2) (aiding  tax fraud); see also Newman,                                                           ___ ____ ______          982 F.2d  at 673-74; cf. United  States v. Wong, 3  F.3d 667, 670                               ___ ______________    ____          (3d Cir.  1993) (noting  Commission's awareness of  potential for          "double counting").                                            39          cal ban advocated by Billmyer.                    Moreover,  not only  does Billmyer  cite no  supporting          case law, but our research discloses ample authority for imposing          an  abuse-of-trust enhancement in such  a case.   For example, in          United States  v. Butt, 955  F.2d 77  (1st Cir. 1992),  the court          _____________     ____          provided  clear explication  of  its rationale  for upholding  an          abuse-of-trust  enhancement  in  the  case of  a  police  officer          convicted on a RICO charge, even though the underlying racketeer-          ing activity included extortion under color of right.                      The  base offense  level  prescribed  by  the                    guidelines for a particular  crime presumably                    reflects,  or "includes,"  those characteris-                    tics considered by Congress  to inhere in the                    crime  at issue.   In  the case  of extortion                    under color of right, abuse of trust would be                    one such characteristic, since Congress could                    reasonably have determined  that every act of                    extortion  under color  of right  involves an                    abuse of  public  trust.   Because  the  RICO                    statute,  by  contrast,  can be  violated  in                    innumerable ways, there are, arguably, no of-                    fense  characteristics  common  to  all  RICO                    offenses.          Id. at 89.  The same holds true here.            ___                    Billmyer  was convicted  of  mail  fraud conspiracy  in          violation of 18 U.S.C.   371.  As not every mail fraud conspiracy          involves an abuse of  trust, we cannot conclude that  the BOL for          commercial bribery necessarily includes an abuse-of-trust element          so as to preclude an enhancement pursuant to   3B1.3.  See United                                                                 ___ ______          States v. Kummer, 89 F.3d 1536, 1546-47 (11th Cir. 1996) (reject-          ______    ______          ing  similar argument  under  U.S.S.G.    2E5.1 (bribe  affecting          employee  benefit plan)); cf. United States  v. Connell, 960 F.2d                                    ___ _____________     _______          191, 199 (1st Cir. 1992) (finding that BOL applicable to currency                                          40          reporting  violations did  not  encompass  stockbroker's  special          skill).15           United States v. Sinclair,  74 F.3d 753, 762-                              _____________    ________          63  (7th Cir.  1996), likewise  demonstrates that  the commercial          bribery guideline does not take into account an abuse of trust.16          Sinclair, a bank officer,  was convicted of accepting a  bribe in          violation  of  18 U.S.C.    215(a)(2),  a  crime that  would seem          almost  invariably to  entail an abuse  of trust.   Yet the court          noted that the statute did  not define a single crime, see  id.                                                                   ___  ___          215(a)(1) (prohibiting  person from offering bribe  to bank offi-                                              ________          cer), and  reasoned that  it would be  wrong to require  that the                                                          _______          briber,  who did  not  necessarily breach  a  position of  trust,          receive  the   same  sentence  as   the  bank-officer  recipient.          Sinclair, 74 F.3d at 763.  Similarly, we think Billmyer's greater          ________          culpability, relative to other defendants who need not necessari-          ly  have abused a position of trust in the course of a mail fraud          conspiracy, entitled the  district court  to impose  the    3B1.3          adjustment in this case.  Accordingly, we affirm the enhancement.                                        ____________________               15One  reasonable explanation  for the  two-level difference          between  the BOL for private bribery, see U.S.S.G.   2B4.1 (level                                                ___          8), and public bribery, see U.S.S.G.    2C1.1 (level 10), may lie                                  ___          in the fact that the Sentencing Commission factored the abuse-of-          trust element into the BOL for public bribery only.                 16Sinclair  is  the only  case  involving  an abuse-of-trust                 ________          enhancement under U.S.S.G.   2B4.1.  We note, however, that other          courts commonly allow an abuse-of-trust enhancement  in embezzle-          ment cases  under U.S.S.G.   2B1.1.   See, e.g., United States v.                                                ___  ____  _____________          Broumas, 69 F.3d 1178,  1182 (D.C. Cir. 1995), cert.  denied, 116          _______                                        _____  ______          S. Ct. 1447 (1996).                                          41                                         III                                         III                                      CONCLUSION                                      CONCLUSION                                      __________                    Finding no reversible  error, the district court  judg-          ments are affirmed.                     AFFIRMED.                    AFFIRMED.                    ________                                          42
