     Case: 10-50018 Document: 00511342056 Page: 1 Date Filed: 01/06/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           January 6, 2011
                                     No. 10-50018
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

MARK EDWARD KEDROWSKI,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 5:06-CR-291-8


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Mark Edward Kedrowski appeals his jury convictions for conspiring to
commit wire fraud and committing wire fraud in violation of 18 U.S.C. §§ 1343
and 1349. He was sentenced to concurrent terms of three years of probation and
ordered to pay $19,600 in restitution.
       In his first issue, Kedrowski contends that the defendants were improperly
joined under Rule 8(b) of the Federal Rules of Criminal Procedure because the
indictment failed to allege a single conspiracy. The third superseding indictment

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
     Case: 10-50018 Document: 00511342056 Page: 2 Date Filed: 01/06/2011

                                  No. 10-50018

alleged a wire fraud scheme in which Althea Jackson stole tickets from
Southwest Airlines, she and her husband James sold them to the defendants, the
defendants either resold or used the tickets using fraudulent misrepresentations
about how they had acquired the tickets, and Southwest was deprived of revenue
from legitimate purchases to which it was entitled. Count nine charged the
defendants with conspiring with each other to commit wire fraud and defraud
Southwest. Counts one through eight charged each defendant with committing
wire fraud and executing the scheme to defraud by making a reservation with
a stolen ticket.
      Kedrowski’s argument that the defendants were misjoined is unavailing
because the conspiracy count alleged a legally sufficient, single conspiracy. See
United States v. Wasson, 568 F.2d 1214, 1221-22 (5th Cir. 1978); cf. United
States v. Levine, 546 F.2d 658, 665-66 (5th Cir. 1977). Accordingly, the district
court did not err in denying the severance motion on this basis.
      Second, Kedrowski contends that severance was warranted under Rule
14(a) of the Federal Rules of Criminal Procedure because there was a substantial
risk of juror confusion due to the similarity of his name, “Mark Kedrowski,” to
that of one of his codefendants, “Mark Gudanowski.” The testimony cited by
Kedrowski does not show that the attorneys or witnesses confused the
defendants during trial. The few instances of confusion that occurred prior to
trial fail to show that the risk of juror confusion was “unusually likely.” United
States v. Bermea, 30 F.3d 1539, 1574 (5th Cir. 1994).
      Kedrowski also argues that the district court’s instruction to the jury to
consider each defendant separately was insufficient to prevent prejudice to him
because the jury convicted him but acquitted Gudanowski.           The evidence
pertaining to Kedrowski and Gudanowski was easily separable, and the jury was
entitled to credit or discredit the evidence for and against them. Therefore, the
fact that the jury convicted Kedrowski but acquitted Gudanowski does not
demonstrate that the jury was unable to make a reliable judgment as to their

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                                  No. 10-50018

respective guilt or innocence. See United States v. Rodriguez, 553 F.3d 380, 394
(5th Cir. 2008). Accordingly, Kedrowski has failed to show that the district court
abused its discretion in denying the severance motion on this basis. See United
States v. Whitfield, 590 F.3d 325, 356 (5th Cir. 2009), cert. denied, 2010 WL
2070226 (Oct. 04, 2010) (No. 09-1422), 2010 WL 2150905 (Oct. 04, 2010) (No.
09-11039), 2010 WL 2151025 (Oct. 04, 2010) (No. 09-11067).
      In his third issue, Kedrowski contends that the evidence at trial
established the existence of multiple conspiracies between each defendant and
the Jacksons instead of a single conspiracy among all defendants as alleged in
the indictment, thus establishing a material variance between the indictment
and the proof at trial. We need not resolve whether there was a material
variance because Kedrowski does not dispute that there was sufficient evidence
he participated in at least one conspiracy with the Jacksons. “[W]here the
indictment alleges a single conspiracy and the evidence established each
defendant’s participation in at least one conspiracy[,] a defendant’s substantial
rights are affected only if the defendant can establish reversible error under
general principles of joinder and severance.” United States v. Mitchell, 484 F.3d
762, 770-71 (5th Cir. 2007) (internal quotation marks and citations omitted);
Rodriguez, 553 F.3d at 392, 394. The foregoing analysis shows there was no
reversible error under Rules 8(b) and 14(a). Accordingly, Kedrowski cannot
prevail on this claim. See Rodriguez, 553 F.3d at 394.
      Last, Kedrowski contends the district court erroneously instructed the jury
on deliberate ignorance. Because there was substantial evidence that Kedrowski
actually knew the tickets were stolen or illegitimately obtained, any error in
instructing the jury on deliberate ignorance was harmless. See United States v.
Wofford, 560 F.3d 341, 354 (5th Cir. 2009).
      The judgment of the district court is AFFIRMED.




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