UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                         No. 96-4804
MARK GUNTHER; GUNTHER'S LEASING
TRANSPORT, INCORPORATED,
Defendants-Appellants.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.
(CR-95-255-WMN)

Argued: October 3, 1997

Decided: January 28, 1998

Before MURNAGHAN and WILKINS, Circuit Judges, and
MAGILL, Senior Circuit Judge of the United States Court of
Appeals for the Eighth Circuit, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: William James Murphy, MURPHY & SHAFFER, Balti-
more, Maryland, for Appellants. Andrew Clayton White, Assistant
United States Attorney, Baltimore, Maryland, for Appellee. ON
BRIEF: Neil R. White, MURPHY & SHAFFER, Baltimore, Mary-
land, for Appellants. Lynne A. Battaglia, United States Attorney, Bar-
bara S. Sale, Assistant United States Attorney, Baltimore, Maryland,
for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Gunther's Leasing Transport, Inc. ("GLT") is a trucking company
owned equally by Mark Gunther ("Gunther") and his wife. GLT and
Gunther were convicted in the United States District Court for the
District of Maryland of conspiracy to violate federal highway safety
regulations, in violation of 18 U.S.C. § 371, and four counts of mak-
ing false statements, in violation of 18 U.S.C.§ 1001. Gunther was
convicted individually of two counts of perjury, in violation of 18
U.S.C. § 1621.

On appeal, Gunther challenges his perjury convictions, arguing that
his testimony was not knowingly false. Gunther also asserts that the
evidence is insufficient to sustain a conviction on the four false state-
ment charges. Both Gunther and GLT contend that prosecutorial mis-
conduct requires reversal of the convictions. We affirm.

I.

GLT is a nationwide over-the-road trucking company based in
Hanover, Maryland. The present case arises out of administrative pro-
ceedings before the Federal Highway Administration ("FHWA"), a
division of the Department of Transportation ("DOT"), in which GLT
was found to be in violation of FHWA record-keeping requirements.

Federal highway safety regulations prohibit truckers from driving
a tractor trailer for more than ten hours without a break of at least
eight hours, and limit drivers to 70 hours of driving every eight days.

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49 C.F.R. § 395.3 (1996). To ensure compliance with the hour limita-
tions, the regulations require truck drivers to complete Records of
Duty Status, also known as "drivers' logs," or"log books." Id.
§ 395.8. A driver's log is a graph on which a truck driver records his
or her activities, 24 hours a day, even on days off.

Drivers must physically keep and produce on request all logs for
the previous seven-day period. Id. § 395.8(k)(2). After seven days,
drivers turn logs into the carrier. The regulations require the carrier
to maintain the logs on file for at least six months. Id. § 395.8(k)(1).

In January 1992, the FHWA attempted to conduct a compliance
audit of GLT. Gunther refused to produce the requested records, and
asked the inspectors to leave the premises.

On March 30, the district court ordered GLT to produce the
requested records for inspection. GLT replied that the drivers' logs
for October through December of 1991 had been lost during renova-
tions to GLT's headquarters building.

The district court then allowed the United States Attorney's Office
to investigate the circumstances of the logs' disappearance through
depositions of GLT employees. Gunther, GLT safety department
director Keith Hughes ("Hughes"), GLT log auditor Jamie DeLuca
("DeLuca"), and GLT safety supervisor Michael Hoffman testified in
their depositions that the logs had been lost during renovations at
GLT. With the exception of Gunther, each witness subsequently
admitted he had lied about the cause of the logs' disappearance, and
stated that GLT safety department supervisor Louis Dale Higgins
("Higgins") had disposed of the logs.

Higgins testified in deposition that he had discarded the logs at
Gunther's express direction. Gunther denied giving any such com-
mand. Gunther's denial formed a basis of the false declaration charge
in the present proceeding, of which the jury acquitted Gunther.

On August 7, 1993, FHWA agents executed a search warrant at
GLT headquarters and seized GLT pay records, dispatch sheets, and
drivers' logs. Using the documents seized from GLT, inspectors

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determined that GLT drivers were driving well in excess of the fed-
eral limits and that GLT was maintaining logs that did not reflect the
true number of hours driven. Based on a random sampling of logs
seized from GLT, inspectors concluded that 73% of GLT's main-
tained logs were false.

In November 1994, Gunther gave additional deposition testimony
in the ongoing FHWA investigation into the destruction and falsifica-
tion of logs. Portions of Gunther's testimony eventually formed the
basis of the perjury charges in the instant case.

On June 20, 1995, the government indicted GLT and Gunther on
one count of conspiracy to falsify the safety records, in violation of
18 U.S.C. § 371, and four counts of making false statements, in viola-
tion of 18 U.S.C. § 1001. In addition, Gunther was indicted on one
count of making false declarations before a grand jury, in violation of
18 U.S.C. § 1623, and two counts of perjury, in violation of 18 U.S.C.
§ 1621.

The first perjury charge alleged that the following deposition testi-
mony given by Gunther during the 1994 FHWA proceedings against
GLT was knowingly false:

          Q: Did you ever request any Gunther's employees to dis-
          pose of the records of duty status of October, Novem-
          ber and December of 1991?

          A: No, not those specific months.

          Q: You didn't specifically say throw these logs out for
          those months?

          A: Absolutely not.

          Q: Do you have any knowledge concerning the disappear-
          ance of those records of duty status for those three
          months, October, November and December of 1991?

          A: Nothing other than hearsay.

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          Q: You have no personal knowledge?

          A: None at all.

          Q: You don't know what happened to those records of
          duty status?

          A: Not at all.

The second perjury count alleged that Gunther lied when he answered
"absolutely not" to the question whether GLT had a "policy" of falsi-
fying drivers' logs that showed violations of the safety regulations.

On December 20, 1995, the jury returned guilty verdicts against
both defendants on all counts charged in the indictment, except that
Gunther was acquitted of the false declarations charge. The defen-
dants timely moved for judgments of acquittal and renewed their
motions after the verdicts were returned. The district court denied the
motions.

Gunther was sentenced to a 30 month term of imprisonment and
GLT was fined $170,000. Both defendants have appealed.

II.

We first address Gunther's contentions that he did not commit per-
jury in the FHWA depositions.

A.

Gunther has maintained that his answers to the questions about the
logs' disappearance were literally truthful, if evasive or misleading.
Gunther's argument is founded on the Supreme Court's holding in
Bronston v. United States, 409 U.S. 352 (1973), that a witness may
not be convicted of perjury based on an answer that is "literally true
but not responsive to the question asked and arguably misleading by
negative implication." Id. at 352-53. While Bronston properly places
the burden of imprecise questioning on the questioner, and allows the
evasive but truthful witness to avoid a perjury prosecution, it does not

                    5
sanction the post-hoc justification of knowing falsehoods. "Imagina-
tive hindsight will not save a defendant who has testified falsely."
United States v. Martellano, 675 F.2d 940, 942 (7th Cir. 1982); see
also United States v. Bell, 623 F.2d 1132, 1136 (5th Cir. 1980).

Gunther testified with respect to the logs' disappearance that he
knew nothing but "hearsay," had no "personal knowledge," and did
not know what "happened" to the logs. The evidence showed, how-
ever, that Gunther knew the logs had been discarded by Higgins when
he gave the testimony in question. There was testimony that Gunther
heard Higgins admit to throwing the logs away shortly after their
destruction. Gunther confided to GLT sales director Ken Buck that he
knew Higgins had thrown the logs away. Therefore, we hold that the
jury reasonably determined that Gunther lied when he said he knew
nothing about what "happened" to the logs.

Gunther contends, however, that the final question, like the ones
that preceded it, called for Gunther's personal knowledge about the
logs' disposal. So understood, Gunther concludes, he truthfully testi-
fied that he did not know what "happened" to the logs because he
never "personally participated in, witnessed, or verified" the disposal
of the records. We do not find in Gunther's disingenuous explanation
a sufficient basis on which to overturn the jury's determination that
Gunther's response was knowingly false. We therefore affirm the per-
jury conviction.*
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*Gunther has argued that unless we find all five answers untruthful,
we must reverse the conviction. He maintains that in the absence of a
special verdict, we may not assume that the jury's verdict was based on
an answer that could support the conviction. Gunther, however, neither
moved to withdraw the challenged assignments from the indictment nor
for a special verdict. Because the issue was not properly preserved for
appeal, we review it only for plain error. See United States v. Olano, 507
U.S. 725, 731 (1993). And, concluding that Gunther suffered no preju-
dice as a result of any error, see Griffin v. United States, 502 U.S. 46,
56-60 (1991) (upholding a general verdict when one of the possible bases
of conviction was supported by inadequate evidence), we find no plain
error, see Olano, 507 U.S. at 734.

                    6
B.

Gunther next contends that the prosecutor's query whether GLT
had a "policy" of falsifying drivers' logs was"fundamentally ambigu-
ous" and therefore insufficient as a matter of law to support a perjury
conviction. See United States v. Lighte, 782 F.2d 367, 375 (2d Cir.
1986); United States v. Manapat, 928 F.2d 1097, 1099 (11th Cir.
1991). We conclude that the inquiry was sufficiently precise to sup-
port the conviction.

A question is fundamentally ambiguous only when"it [is] entirely
unreasonable to expect that the defendant understood the question
posed to him." United States v. Slawik, 548 F.2d 75, 86 (3d Cir.
1977), quoted in United States v. Reilly, 33 F.3d 1396, 1416 (3d Cir.
1994). An inquiry is not rendered fundamentally ambiguous merely
because "the words in question have different meanings in different
situations." Lighte, 782 F.2d at 375. In determining whether a ques-
tion is fundamentally ambiguous, we must view the disputed term in
context of the entire line of questioning. United States v. Bonacorsa,
528 F.2d 1218, 1221 (2d Cir.), cert. denied sub nom. Bonacorsa v.
United States, 426 U.S. 935 (1976). Whether a question is fundamen-
tally ambiguous is a matter of law that we review de novo. See Lighte,
782 F.2d at 375.

Gunther contends that because the term policy often refers to a
formally-adopted business practice, it was unreasonable to expect him
to understand that the government intended to inquire whether GLT
safety department employees routinely altered logs. Viewed in con-
text, the term "policy" is decidedly less ambiguous than Gunther has
claimed. A question that asks whether a company has a policy of
engaging in illegal practices cannot plausibly be understood to ask if
the matter has been put to a vote before the board of directors or writ-
ten into a corporate manual.

Furthermore, the government presented evidence that Gunther had
instructed safety department employees to falsify logs. The govern-
ment has argued, and we agree, "[i]t is difficult to imagine that an
explicit instruction from the President and owner to his employees
would constitute anything less than a `policy,' no matter how that
word is defined."

                    7
Because the only logical interpretation of the question leads inexo-
rably to a conclusion that Gunther's reply was untruthful, we affirm
the second perjury conviction.

III.

We next consider Gunther's contention that the evidence was
insufficient to support his conviction on the four false statements
charges under 18 U.S.C. § 1001. Our standard of review is whether,
viewing the evidence in the light most favorable to the government,
"any rational trier of fact could have found the elements of the offense
beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319
(1979).

The government must prove three elements to establish a violation
of § 1001: "(1) the defendant made a false statement to a governmen-
tal agency or concealed a fact from it or used a false document know-
ing it to be false, (2) the defendant acted `knowingly or willfully,' and
(3) the false statement or concealed fact was material to a matter
within the jurisdiction of the agency." United States v. Arch Trading
Co., 987 F.2d 1087, 1095 (4th Cir. 1993). In the instant case, the gov-
ernment sought to obtain Gunther's conviction through application of
the accomplice liability principles of Pinkerton v. United States, 328
U.S. 640 (1946).

Under Pinkerton, a defendant may be convicted of a substantive
offense if the government proves: (1) the existence of a conspiracy,
(2) the defendant's knowledge of and participation in the conspiracy,
and (3) the commission of the substantive offense by a coconspirator
in furtherance of the conspiracy. See Pinkerton , 328 U.S. at 645-47;
United States v. Chorman, 910 F.2d 102, 110-11 (4th Cir. 1990).
Accordingly, the jury was instructed that it could convict Gunther of
the § 1001 violations if it found that: (1) a conspiracy to falsify logs
existed, (2) a substantive false statement was made, (3) the driver who
made the false statement was a member of the conspiracy, (4) the
false statement was made pursuant to the conspiracy, (5) Gunther was
a member of the conspiracy at the time the false statement was made,
and (6) Gunther could reasonably have foreseen that the false state-
ment would be made.

                     8
Gunther does not contest the existence of the conspiracy. He main-
tains, however, that the government failed to prove that the four driv-
ers who submitted false logs were members of the conspiracy. We do
not agree.

The "gravamen of the crime of conspiracy is an agreement to effec-
tuate a criminal act." United States v. Laughman, 618 F.2d 1067,
1074 (4th Cir.), cert. denied, 447 U.S. 925 (1980). The existence of
an agreement may be proved by circumstantial evidence "that two or
more persons acted in concert to achieve an illegal goal." Id. In the
present case, the government offered testimony by the four drivers
named in the false statement counts that they were often dispatched
on long runs that could not be completed within the regulatory time
limits. The drivers also testified, however, that GLT expected submit-
ted logs to appear legal. There was further testimony that the drivers'
submission of false logs was motivated at least in part by the financial
benefits gained from driving hours in excess of those permitted by the
FHWA regulations.

The evidence also established that Gunther personally monitored
dispatch computers and was fully cognizant of the hours his drivers
were on the road. Gunther therefore knew that his drivers had to fal-
sify logs to feign compliance with the FHWA regulations. Moreover,
Keith Hughes testified that Gunther personally directed Hughes to
alter logs that did not demonstrate compliance with the time limita-
tions.

In short, the government demonstrated that GLT and Gunther regu-
larly dispatched drivers on long solo runs that could not be completed
within the time permitted by the FHWA regulations and expected the
safety department to alter logs that appeared illegal. The evidence
also established that the drivers knew of the hour limitations but dis-
regarded them and submitted false logs, partially because GLT
expected drivers to do so, and partially because of the personal finan-
cial benefit involved.

We hold that the government's circumstantial evidence was suffi-
cient to permit an inference that an implicit agreement existed
between GLT, Gunther and the four drivers named in the false state-
ment charges to falsify logs. See Laughman, 618 F.2d at 1074. There-

                    9
fore, we affirm Gunther's conviction on the four substantive false
statement charges.

IV.

Gunther and GLT next allege error in the district court's refusal to
grant a mistrial or a new trial based on alleged prosecutorial miscon-
duct. The test for reversible prosecutorial misconduct requires the
appellants to establish that the prosecutor's remarks were in fact
improper, and that the remarks prejudiced the appellants' rights to a
fair trial. United States v. Mitchell, 1 F.3d 235, 240 (4th Cir. 1993).

With one exception, the appellants timely objected to the prosecu-
tor's remarks. We therefore review the district court's denial of a mis-
trial and of the appellants' motion for a new trial for abuse of
discretion. United States v. Alonzo, 689 F.2d 1202, 1204 (4th Cir.
1982); United States v. Campbell, 977 F.2d 854, 859 (4th Cir. 1992),
cert. denied sub nom. Campbell v. United States, 507 U.S. 938
(1993). We review the remark not subject to a timely objection for
plain error. United States v. Olano, 507 U.S. 725, 731 (1993).

Having carefully considered the appellants' numerous allegations
of misconduct arising from the government's rebuttal closing argu-
ment, we hold that the district court did not abuse its discretion in
denying the defendant's motions for a mistrial and for a new trial. We
are persuaded that the district court correctly found that several of the
allegedly objectionable remarks made in closing were not improper
in the context in which they were made. To the extent that other com-
ments made during the government's rebuttal closing approached and
perhaps passed over the threshold of impropriety, we find that they
were invited by equally improper defense argument. See United States
v. Young, 470 U.S. 1, 12 (1985); United States v. Harrison, 716 F.2d
1050, 1052 (4th Cir. 1983), cert. denied sub nom. Wissler v. United
States, 466 U.S. 972 (1984).

Gunther and GLT have also objected to the district court's denial
of a mistrial based on the prosecutor's questions about the safety con-
cerns served by the FHWA regulations and trucking accidents involv-
ing drowsy drivers. The prosecutor made six such comments over the
course of the month-long trial. The district court instructed the jury

                    10
to disregard one question, admonished government counsel, and
instructed the jury at defendants' request that"[n]either defendant is
charged with a crime that concerns traffic accidents or the safe driv-
ing of any given driver." We hold that the district court took appropri-
ate and sufficient steps to stem any prejudice flowing from the
government's improper questions, and acted within its discretion in
denying a mistrial. See United States v. Martin , 756 F.2d 323, 328
(4th Cir. 1985) (stating that "before granting a mistrial, the court
should always consider whether the giving of a curative instruction or
some alternative less drastic than a mistrial is appropriate.").

Finally, the appellants maintain that a series of questions addressed
to Mrs. Gunther regarding payments by GLT to the Gunthers' minor
children of more than $27,000 constituted reversible prosecutorial
misconduct. We conclude, as did the district court, that the inquiries
became relevant and permissible when defense counsel opened the
door by seeking to paint the Gunthers as "workaholics" who put the
success of GLT before personal gain. We therefore hold that the dis-
trict court did not abuse its discretion in refusing to grant a mistrial.

CONCLUSION

The judgment in its entirety is hence

AFFIRMED.

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