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                                                              [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 09-13778
                           ________________________

                   D.C. Docket No. 6:98-cr-00099-PCF-KRS-1



UNITED STATES OF AMERICA,

                                                           Plaintiff - Appellee,

                                       versus

SHOLAM WEISS,

                                                           Defendant - Appellant.

                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________

                               (September 24, 2013)

Before BARKETT, MARCUS, and HILL, Circuit Judges.

PER CURIAM:

      Sholam Weiss appeals his conviction following a jury trial for seventy-eight

counts of racketeering, wire fraud, interstate transportation of stolen funds, money
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laundering, and other offenses arising out of a scheme to defraud the National

Heritage Life Insurance Company (“NHLIC”). Weiss argues (1) that the

government violated his Sixth Amendment right to counsel when it improperly

subpoenaed his attorney, thereby preventing the attorney from serving as trial

counsel, and (2) that he was denied his Sixth Amendment right to a unanimous

verdict because the trial court failed to instruct the jury that it had to unanimously

agree on whether the wire fraud convictions were predicated on a scheme to obtain

money or property or on a scheme to deprive another of the intangible right to

honest services. After a review of the record and oral argument, we affirm.

                                I.     Choice of Counsel

      Weiss first argues that he was deprived of his Sixth Amendment right to

counsel of his choice when the government improperly issued a trial subpoena to

his long-time counsel, Robert Leventhal. Weiss contends that the subpoena, which

was eventually quashed by the district court, was issued in bad faith and resulted in

the de facto disqualification of Leventhal from serving as trial counsel. Weiss

argues that the deprivation of chosen counsel is a structural error that does not

require any showing of prejudice. Weiss further argues that dismissal of the

indictment is warranted here because the government engaged in willful

misconduct when it issued the subpoena and because Weiss would suffer actual




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prejudice from a retrial. In the alternative, Weiss asks this Court to vacate his

convictions and remand to the district court for further proceedings.

                             a. Factual and Procedural Background

       Weiss first retained Leventhal in 1995 in connection with the investigation

of the failure of NHLIC. During that investigation, Leventhal provided certain

documents and recordings to the government on Weiss’s behalf, which the

government later discovered Weiss had fabricated. Both parties agree that

Leventhal was not aware that the documents and recordings were false.

       As a result of the NHLIC investigation, Weiss was indicted in 1997, and

Leventhal entered his appearance in that case as sole counsel of record for Weiss.

The government dismissed the 1997 indictment without prejudice and, in April

1998, a grand jury returned a ninety-three count indictment against Weiss charging

him with racketeering, wire fraud, money laundering, and other offenses relating to

the collapse of NHLIC.

       Sometime before Weiss’s initial appearance on May 15, 1998, 1 the

government advised Leventhal that he would be subpoenaed by the government to

testify at trial regarding the documents he had provided to the government on

Weiss’s behalf in 1995 and to provide those documents he still had in his


       1
         Weiss contends that the government did not inform Leventhal of the anticipated
subpoena until shortly before his initial appearance in May 1998. The government, on the other
hand, claims that prosecutors informed Leventhal of the subpoena at least by January 1998.
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possession to the prosecution. According to the government, the anticipated

testimony concerned when and what Weiss told Leventhal about the fraudulent

documents and recordings and their production to the government. The documents

in question formed the basis of the two counts of false statement and one count of

obstruction of justice against Weiss. Before the subpoena was served, Weiss and

Leventhal offered to enter into certain stipulations to avoid the need for

Leventhal’s testimony, but negotiations with the government failed. The

government served the subpoena on Leventhal on July 7, 1998. Leventhal did not

enter a general appearance on behalf of Weiss 2 and Weiss retained Joel

Hirschhorn, who had not previously been involved in the investigation or case, as

replacement counsel.

       Both Weiss and Leventhal filed motions to quash the subpoena on the

grounds of lack of necessity and the Sixth Amendment right to counsel. 3 The

district court, believing that Leventhal’s testimony was not necessary to the case

because of Weiss’s proposed stipulations, quashed the subpoena.

       2
         The parties disagree as to why Leventhal did not enter a general appearance. While
Weiss contends that the only reason Leventhal did not enter a general appearance was because of
the pending subpoena, the government points to certain statements made during pre-trial and trial
proceedings that Leventhal did not enter a general appearance because Weiss was unable to
arrange payment for Leventhal’s services, Leventhal had other business obligations, and
Leventhal did not want to work with Weiss’s current lawyer. The government also argues that
Leventhal had an actual conflict of interest in the case because Weiss used his services to
obstruct justice and, for this reason, could not represent Weiss at trial.
       3
        Leventhal argued in his motion to quash that the government issued the subpoena in bad
faith. Weiss did not explicitly make any bad faith argument, but did incorporate by reference all
arguments in Leventhal’s motion to quash.
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       According to Weiss, there was not enough time for Leventhal to clear his

schedule and prepare for the nine-month trial that was scheduled to begin ten days

after the district court issued its ruling. Thus, Weiss argues, Leventhal was

effectively disqualified from serving as Weiss’s trial counsel because of the

government’s alleged bad faith issuance of the trial subpoena.

       During trial, Weiss testified regarding the fraudulent documents and

recordings. The government objected that Weiss’s testimony contradicted the

stipulation that the parties had entered as a result of the litigation surrounding

Leventhal’s trial subpoena and re-subpoenaed Leventhal to rebut Weiss’s

testimony. Weiss filed a motion to quash the subpoena, arguing that Leventhal had

been assisting Hirschhorn with the trial and that the re-issued subpoena had a

chilling effect on Hirschhorn’s ability to consult with Leventhal. After hearing

Leventhal’s testimony outside of the presence of the jury, the district court denied

the motion to quash and allowed Leventhal to testify, finding that the testimony

concerned some disputed issued of material fact that were not covered by the

stipulation and to which no other witness could testify. Leventhal eventually

testified during trial.

                                        b. Discussion

       We review claims of prosecutorial misconduct, which involve questions of

law and fact, de novo. United States v. Eckhardt, 466 F.3d 938, 947 (11th Cir.


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2006). 4 Here, there is no evidence that the government acted in bad faith when it

subpoenaed Leventhal’s testimony. It was evident that Leventhal’s representation

of Weiss was rife with conflict---conflict about the nature, timing, and

circumstances of disgorging the documents at issue to federal law enforcement

authority.

       Furthermore, Weiss has failed to show that it was the issuance of the

subpoena that caused Leventhal’s failure to represent Weiss. Leventhal had an

actual conflict of interest that arose when Weiss used his services to obstruct

justice and could not represent Weiss for that reason. Certainly, Leventhal could

not counsel Weiss as to whether he should or should not testify regarding, for

example, the timing and circumstances of the conveyance of the documents when

Leventhal’s knowledge of events differed from Weiss’s testimony. We find no

violation of Weiss’s Sixth Amendment right to counsel.

                                   II.    Unanimous Verdict

       Weiss also argues that he was denied his Sixth Amendment right to a

unanimous verdict. Weiss was charged with twenty-seven counts of wire fraud in

violation of 18 U.S.C. §§ 1343 and 1346 for participating in a scheme to



       4
         The government argues that this claim should be subject to plain error review because
Weiss did not raise it front of the district court. However, the prolonged subpoena litigation,
including Weiss’s motion to quash in which he adopted by reference Leventhal’s allegations of
prosecutorial misconduct, are sufficient to preserve his prosecutorial misconduct for appellate
review.
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fraudulently obtain money or property or to fraudulently deprive another of the

intangible right of honest services. At trial, although the district court gave the

jury a general unanimity instruction, it did not specifically instruct the jury that

they had to unanimously agree on whether Weiss was guilty of wire fraud because

he engaged in a scheme to obtain money or property or because he engaged in a

scheme to deprive of honest services. Weiss argues that the failure to give this

additional unanimity instruction violated the Sixth Amendment.

      Because Weiss did not raise this issue in the district court, we review the

district court’s instructions for plain error. United States v. Felts, 579 F.3d 1341,

1343 (11th Cir. 2009). Under the plain error standard, a defendant must

demonstrate that (1) an error occurred, (2) the error was plain, and (3) the error

affected the defendant’s substantial rights. Id. at 1344. For an error to be plain,

the error must be “clear from the plain meaning of a statute or constitutional

provision, or from a holding of the Supreme Court of this Court” at the time of

appellate review. United States v. Pantle, 637 F.3d 1172, 1174-75 (11th Cir.

2011). Here, even assuming that the district court erred in failing to give a specific

unanimity instruction as to the wire fraud charges, we cannot find such error was

plain. Id.

      It is clear that, under the Sixth Amendment, “a jury in a federal criminal case

cannot convict unless it unanimously finds that the Government has proved each


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element [of the offense].” Richardson v. United States, 526 U.S. 813, 817 (1999).

However, the Supreme Court has made clear that jurors need not unanimously

agree on the underlying facts that make up a particular element of the offense, such

as which of several possible means a defendant used to commit that element, so

long as they unanimously agree that the government has proven the element

beyond a reasonable doubt. Schad v. Arizona, 501 U.S. 624, 631-32 (1991); see

also Richardson, 526 U.S. at 817 (“Where, for example, an element of robbery is

force or the threat of force, some jurors might conclude that the defendant used a

knife to create the threat; others might conclude he used a gun. But that

disagreement—a disagreement about means—would not matter as long as all 12

jurors unanimously concluded that the Government had proved the necessary

related element, namely, that the defendant had threatened force.”).

         In the case of wire fraud, neither the Supreme Court nor this Court has

decided whether the nature of the wire fraud scheme is an element of the offense,

requiring the jury’s unanimous agreement on whether the scheme was to

fraudulently obtain money or property or whether it was to fraudulently deprive of

honest services. Therefore, the district court’s failure to instruct the jury that they

must unanimously agree on the nature of the wire fraud scheme was not plain

error.




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      Weiss argues that this Court has previously approved of a similar unanimity

instruction in a wire fraud prosecution. See United States v. Woodard, 459 F.3d

1078, 1084 (11th Cir. 2006). However, the Court in Woodard held only that the

district court did not err in giving the specific unanimity instruction; it did not

consider whether failure to give such an instruction would violate the Sixth

Amendment. Weiss’s reliance on the government’s own current practice of using

special verdict forms or specific unanimity instructions in wire fraud prosecutions

is similarly misplaced. See United States v. Cabrera, 804 F. Supp. 2d 1261, 1264-

68 (M.D. Fla. 2011) (noting that the district court instructed the jury that they must

unanimously agree on the nature of the defendant’s wire fraud scheme and that the

court used a special verdict form requested by the government which called for the

jury to decide whether the defendant was guilty of a scheme to defraud of money

or of a scheme to deprive of honest services). The mere fact that the government

now has a practice of requesting specific unanimity instructions or special verdict

forms does not plainly establish “from a holding of the Supreme Court of this

Court” that such instructions are required by the Sixth Amendment. See Pantle,

637 F.3d at 1174-75.

      Furthermore, Weiss cannot show that the failure to give a specific unanimity

instruction, even if it were plainly erroneous, affected his substantial rights, as

required for a reversal under the plain error standard of review. United States v.


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Felts, 579 F.3d at 1344. In other words, Weiss has the burden of proving that there

is a reasonable probability that, but for the alleged error, the outcome of the trial

would have been different. United States v. Kennard, 472 F.3d 851, 858 (11th Cir.

2006). Here, the district court instructed the jury that the verdict must be

unanimous. Consequently, Weiss’s proposed specific unanimity instruction on the

wire fraud counts was substantially covered by the district court’s other

instructions. See United States v. Gonzales, 122 F.3d 1383, 1388 n.5 (11th Cir.

1997) (holding that the failure to give a specific unanimity instruction was not

reversible under plain error review because the district court gave a general

unanimity instruction); see also United States v. Fredette, 315 F.3d 1235, 1242-43

(10th Cir. 2003) (affirming, under plain error review, the district court’s failure to

give a specific unanimity instruction on a wire fraud count because “it is assumed

that a general instruction on the requirement of unanimity suffices to instruct the

jury that they must be unanimous on whatever specifications they find to be the

predicate of the guilty verdict” and because the evidence was sufficient to convict

the defendant of both types of wire fraud). For these reasons, we affirm the district

court’s jury instructions.

      AFFIRMED.




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