     05-5531
     U.S. v. Kaplan

 1                          UNITED STATES COURT OF APPEALS
 2
 3                              FOR THE SECOND CIRCUIT
 4
 5                                      -------------
 6
 7                                    August Term 2006
 8
 9             Argued: November 7, 2006         Decided: April 11, 2007
10                                              Errata Filed: April 30, 2007)
11
12                                  Docket No. 05-5531-cr
13
14   --------------------------------------------------X
15
16   UNITED STATES OF AMERICA,
17
18                              Appellee,
19
20                    - against -
21
22   SOLOMON KAPLAN
23                              Defendant-Appellant.
24
25   --------------------------------------------------X
26
27           Before:       FEINBERG, LEVAL, and CABRANES, Circuit Judges.
28
29        Appeal from a judgment of conviction, entered following a
30   jury trial in the United States District Court for the Southern
31   District of New York (Batts, J.), on all seven counts of an
32   indictment charging conspiracy, mail fraud, wire fraud, making
33   false statements in connection with health care matters, health
34   care fraud, witness tampering, and making false statements to the
35   FBI.
36
37           Affirmed in part, vacated in part, and remanded.
38
39                         ZACHARY MARGULIS-OHNUMA, New York, New York, for
40                              Defendant-Appellant
41
42                         MIRIAM   E.  ROCAH,   Assistant   United   States
43                              Attorney, (Michael J. Garcia, United States
44                              Attorney, Timothy Treanor and Jonathan S.
45                              Kolodner, Assistant United States Attorneys,
46                              on the brief), United States Attorney’s
 1                       Office for the Southern             District   of   New
 2                       York, for Appellee.
 3   FEINBERG, Circuit Judge:

 4        Solomon   Kaplan   appeals   from   a   judgment    of   conviction,

 5   entered following a jury trial in the United States District

 6   Court for the Southern District of New York (Batts, J.), on all

 7   seven counts of an indictment charging Kaplan’s participation in

 8   an insurance fraud scheme (Counts One through Five) and Kaplan’s

 9   interference with an investigation into that scheme (Counts Six

10   and Seven). Specifically, the indictment charged Kaplan with one

11   count of conspiracy1 in violation of 18 U.S.C. § 371 (Count One);

12   two counts of mail fraud in violation of 18 U.S.C. §§ 1341 and 2

13   (Counts Two and Three); one count of making false statements in

14   connection with health care matters in violation of 18 U.S.C. §§

15   1035 and 2 (Count Four); one count of health care fraud in

16   violation of 18 U.S.C. §§ 1347 and 2 (Count Five); one count of

17   witness tampering in violation of 18 U.S.C. §§ 1512(b) and 2

18   (Count Six); and one count of making false statements to an agent

19   of the Federal Bureau of Investigation (“FBI”) in violation of 18

20   U.S.C. § 1001 (Count Seven).

21        On appeal, Kaplan’s principal contentions are that (I) his

22   conviction on the insurance fraud counts (Counts One through



           1
             The indictment alleged that the objects of the conspiracy
      were mail fraud, wire fraud, making false statements relating to
      health care matters, health care fraud, and witness tampering.


                                       -2-
 1   Five)   must   be    vacated     because     the   district   court   erred   in

 2   admitting (A) lay opinion testimony regarding his knowledge of

 3   the fraud and (B) testimony concerning others’ knowledge of the

 4   fraud and (II) his conviction on the interference counts (Counts

 5   Six and Seven) must be vacated because (A) the district court’s

 6   jury instruction on Count Six was erroneous in light of the

 7   Supreme Court’s supervening decision in Arthur Andersen LLP v.

 8   United States, 544 U.S. 696 (2005); (B) the district court

 9   improperly gave a conscious avoidance jury instruction on Count

10   Six; and (C) variance between a bill of particulars and proof at

11   trial concerning Count Seven constituted a constructive amendment

12   of the indictment or a prejudicial variance.

13         For the reasons set forth below, we agree that Kaplan’s

14   conviction on Counts One through Five must be vacated because the

15   district court erred in admitting, without adequate foundation,

16   lay opinion testimony regarding Kaplan’s knowledge of the fraud

17   and testimony regarding others’ knowledge of the fraud, and that

18   at least the first of these errors was not harmless.               However, we

19   affirm his conviction on Counts Six and Seven because these

20   evidentiary errors were harmless as to those counts, which relied

21   on strong independent evidence of the crimes charged in those

22   counts, and because we find no merit in Kaplan’s other arguments

23   on   appeal.        The   case   is   remanded     for   further   proceedings

24   consistent with this opinion.


                                            -3-
 1                                    BACKGROUND

 2        Viewed in the light most favorable to the Government, see

 3   Jackson v. Virginia, 443 U.S. 307, 318-19 (1979), the evidence

 4   showed the following.

 5        Josef Sherman, a medical doctor, and his brother, Yevgeny

 6   Sherman, operated a medical clinic in Brooklyn, New York (the

 7   “Clinic”).     The Clinic hired “runners” to recruit patients by

 8   staging automobile accidents and identifying individuals who had

 9   been in legitimate accidents but were willing to exaggerate their

10   injuries.     At the Clinic, these accident participants received

11   unnecessary    treatment       for    their   feigned     injuries      and    were

12   compensated    with     a    kickback.        The    Clinic      then   submitted

13   fraudulent insurance claims for medical expenses to collect money

14   under New York State’s no-fault insurance law.

15        The     accident       participants      were    also    referred        to   a

16   cooperating law office, which submitted on the participants’

17   behalf false or inflated insurance claims for bodily injury.

18   From January 2000 until July 30, 2001, most of the Clinic’s cases

19   were referred to a law office (the “Law Office”) operated in the

20   name of Alexander Galkovich, a lawyer hired by the Shermans and

21   their associate Gennady “Gene” Medvedovsky to serve as counsel of

22   record in the referred cases.           The accident participants signed

23   a retainer agreement providing that the Law Office received one-

24   third   of    any   insurance        settlement      as   well    as    expenses.


                                            -4-
 1   Medvedovsky, although not an attorney, managed the Law Office on

 2   behalf of the Shermans through a management        company called

 3   Starlin Executive Management.     Galkovich paid almost all of the

 4   proceeds he received from the insurance company settlements to

 5   Starlin Management, and received $1,000 per week as salary and

 6   occasional bonuses.   The Shermans and Medvedovsky extracted the

 7   insurance proceeds from the law office principally by submitting

 8   to Starlin Management fraudulent bills from fictitious entities

 9   or by paying themselves salaries from Starlin Management.

10        By 2001, the Law Office had more than 3,000 active cases,

11   and was receiving approximately 80 to 200 new cases per month, a

12   significant portion of which came from the Sherman Clinic.

13   Approximately five to 10 percent of the cases at the Law Office

14   resulted from staged accidents, and 60 to 70 percent of the cases

15   involved clients who exaggerated or faked the injuries.

16        In July 2001, Galkovich was arrested by the FBI and charged

17   with filing false and fraudulent claims and coaching clients to

18   lie to the insurance companies.    Because Galkovich thus stood to

19   lose his law license, the Shermans and Medvedovsky sought a

20   replacement to serve as attorney-of-record in the fraudulent

21   cases.    They settled on Kaplan, with whom they were familiar

22   because a few of the Clinic’s cases had previously been referred

23   to him.   An employee of the Clinic, Alexander Burman, testified

24   that the cases referred to Kaplan were those that had been


                                     -5-
 1   rejected by other lawyers because they were considered too

 2   obviously fraudulent.

 3        In    September    2001,   Kaplan   began   representing   1,200   of

 4   Galkovich’s 3,000 clients. The Shermans and Medvedovsky, worried

 5   that the transfer of all 3,000 cases from Galkovich to Kaplan

 6   would look suspicious, arranged for Kaplan to formally purchase

 7   the law firm from Galkovich.      To make the deal appear legitimate,

 8   they hired a lawyer to draft a contract and conduct a closing,

 9   and Kaplan wrote several checks to Galkovich totaling $50,000,

10   including a $20,000 check at the closing.            But at least some of

11   the money came from the Shermans and Medvedovsky and was later

12   returned    to   them   by   Galkovich.      Thus,    the   Shermans    and

13   Medvedovsky essentially bought the Law Office from themselves,

14   but structured the transaction to look as if Kaplan had bought it

15   from Galkovich.

16        Galkovich testified that on the way to the closing in

17   October 2001, Kaplan and Galkovich discussed the sale of the Law

18   Office, and Kaplan stated that “he had handled cases like this

19   before,” which Galkovich understood to mean that Kaplan had

20   previously handled fake accident cases.

21        The Law Office continued to operate much as it had before,

22   with Kaplan now formally representing almost all of Galkovich’s

23   3000 clients.     Medvedovsky and others, including Emik Aguronov,

24   who was responsible for drafting false medical narratives to be


                                        -6-
 1   submitted to insurance companies on behalf of clients seeking

 2   settlements, remained.           Medvedovsky formed a new entity called

 3   Prostaff       Support    Services,       Inc.,    which    performed     the    same

 4   functions that Starlin Management had. From October 2001 through

 5   March    2002,    the     Law    Office    had     revenues     of    approximately

 6   $892,000.        The     proceeds   of     the    fraud    were      transferred    to

 7   Medvedovsky and the Shermans through Prostaff, which was paid

 8   over $100,000 per month to “manage” the Law Office.                          Kaplan

 9   received approximately $74,000 in payments from the Law Office.

10         Kaplan, the Shermans, and Medvedovsky all agreed that Kaplan

11   would stay away from the Law Office and appear only to sign

12   checks and for essential meetings.                   A photograph of Kaplan’s

13   office at the Law Office, Kaplan’s appointment book, and the

14   testimony of FBI Special Agent Rothe revealed that Kaplan was

15   rarely present at the Law Office.

16         Following the sale of the Law Office to Kaplan, Galkovich

17   began cooperating with the FBI.                 Between approximately December

18   27,     2001    and    February     22,     2002,    Galkovich        recorded     his

19   conversations with the Shermans, Medvedovsky, and Kaplan on

20   approximately 10 separate occasions.                     In addition to general

21   discussions       about    the    operations        of    the   Law    Office,     the

22   conversations recorded by Galkovich detailed the efforts by the

23   Shermans, Medvedovsky, and Kaplan to prevent Galkovich from

24   cooperating with law enforcement authorities in its investigation


                                               -7-
 1   of the Sherman Clinic and the Law Office.         Specifically, after

 2   Galkovich informed his co-conspirators that he had been arrested

 3   and that the FBI had inquired about the Shermans, a meeting was

 4   arranged with Galkovich on January 8, 2002.          Medvedvosky told

 5   Galkovich that the purpose of the meeting was to “sit down and

 6   decide everything” about Galkovich’s case.         Josef Sherman and

 7   Gene    Medvedovsky   initially   met   with    Galkovich   alone   and

 8   questioned him about the statement he had given to the FBI at the

 9   time of his arrest. Later, at Galkovich’s request, Kaplan joined

10   the meeting, and Galkovich told Kaplan that they needed to

11   discuss the “transition of my practice to yours” and “this thing

12   that I’m going to need for . . . possibly for court or possibly

13   for the Disciplinary Committee.”         Medvedovsky, Sherman, and

14   Kaplan suggested a variety of false stories to explain the Law

15   Office transfer.

16          In March 2002, Kaplan, the Shermans, and Medvedovsky were

17   arrested by the FBI. Immediately following his arrest, Kaplan

18   agreed to be interviewed by the FBI.           During that interview,

19   Kaplan made a number of statements that the Government contends

20   were false, including that in August 2001 he was introduced to

21   Galkovich and Medvedovsky by a Vladimir Scheckman; that, as part

22   of his purchase of the Law Office, he was to receive only 1,000

23   files; that he did not recall who gave him the $20,000 check used

24   to purchase the Law Office; that the Law Office was sold to him


                                       -8-
 1   for $120,000; that he was assured by Medvedovsky and Galkovich

 2   that   the    charges   against   Galkovich   “meant   nothing   because

 3   Galkovich had done nothing wrong”; that he “just stopped by” the

 4   January 8 meeting between Galkovich, Medvedovsky, and Sherman

 5   without planning in advance to participate; and that he did not

 6   take the conversation on January 8 “seriously” and they were just

 7   “joking around.”

 8          In    August   2002,   Josef    Sherman,   Eugene   Sherman,   and

 9   Medvedovsky pled guilty to a three-count information charging

10   them with conspiracy, mail fraud, and witness tampering.          Kaplan

11   was tried on the seven-count indictment against him described

12   above.      After an approximately two-week trial, the jury found

13   Kaplan guilty on all counts.       In August 2005, the district court

14   sentenced Kaplan principally to 27 months of imprisonment, three

15   years of supervised release, and $200,000 in restitution, but

16   granted bail pending appeal pursuant to 18 U.S.C. § 3143(b).

17          This appeal followed.

18

19                                   DISCUSSION

20   I.     Counts One through Five: The Insurance Fraud Scheme

21          Turning first to the insurance fraud counts (Counts One

22   through Five), Kaplan argues on appeal, among other things, that

23   his conviction must be vacated because the district court erred

24   in admitting (A) lay opinion testimony regarding his knowledge of


                                           -9-
 1   the fraud and (B) testimony concerning others’ knowledge of the

 2   fraud.    We consider each of his arguments in turn.

 3        A.     Admission of Galkovich’s lay opinion testimony

 4        The first issue before us concerns the district court’s

 5   admission of lay opinion testimony regarding Kaplan’s knowledge

 6   of the fraud.    Kaplan principally objects to two colloquies in

 7   which Galkovich recounted a conversation he and Kaplan had as

 8   they drove together to the meeting in October 2001 to finalize

 9   the sale of the Law Office to Kaplan.       After describing the

10   conversation, Galkovich was allowed to offer his lay opinion

11   testimony regarding Kaplan’s knowledge of the fraud.    First, on

12   direct examination, Galkovich testified as follows:

13        [Prosecutor]: Did you have any discussions in the car
14        ride on the way to Davis’ office?
15
16        [Galkovich]: Yes. It was actually the first time we
17        really talked, me and Solomon Kaplan. And I asked him,
18        What do you do? What kind of work do you do? Are you
19        familiar with car accident cases, with the process of
20        settlement and what it takes to settle?        And he
21        explained, yes he has handled cases like this before.
22        Yes, he has settled cases before.
23
24        . . . .
25
26        He explained that he has experience with these kinds of
27        cases.
28
29        [Prosecutor]: What did you understand him to mean when
30        he said “these kinds of cases”?
31
32        [Defense Counsel]: Objection.
33
34        The Court: I will allow it.
35


                                  -10-
 1        [Galkovich]: That he understood that these were car
 2        accident cases where people exaggerated their injuries,
 3        where it was crucial to have a narrative report that
 4        exaggerated the injuries, that these reports were bought
 5        for the best of prices to get the best of reports and
 6        that you could settle these cases for very good money in
 7        a short period of time.
 8
 9   Joint Appendix (“JA”) 104-05.        Then, on redirect, Galkovich

10   elaborated:

11        [Prosecutor]: What happened in this conversation?
12
13        [Galkovich]: I asked him what experience he had with the
14        car accident cases and generally what kind of experience
15        he had, and he told me that he knew about these car
16        accidents, he knew how to handle these cases, he knew
17        how to maximize potential recoveries, and what is
18        supposed to be in the files, how they are supposed to be
19        worked up.
20
21        [Prosecutor]: What was your purpose in asking Kaplan
22        this question?
23
24        [Galkovich]: I wanted to know how much he knew about the
25        fraudulent office that he is participating in.
26
27        [Prosecutor]: And after you got this answer from Mr.
28        Kaplan, what did you think?
29
30        [Galkovich]: I think he knew exactly what he was getting
31        into.
32
33   JA 138-39.1

34        We review a district court’s decision to admit evidence,

35   including lay opinion testimony, for abuse of discretion.       See

36   United States v. Yuri Garcia, 413 F.3d 201, 210 (2d Cir. 2005)

37   (citing Old Chief v. United States, 519 U.S. 172, 174 n.1



           1
            The two colloquies quoted above are hereafter frequently
      referred to as “Galkovich’s lay opinion testimony.”

                                   -11-
 1   (1997)).    “A district court ‘abuses’ or ‘exceeds’ the discretion

 2   accorded to it when (1) its decision rests on an error of law

 3   (such as application of the wrong legal principle) or a clearly

 4   erroneous factual finding, or (2) its decision -- though not

 5   necessarily the product of a legal error or a clearly erroneous

 6   factual    funding    --    cannot      be   located     within   the       range   of

 7   permissible decisions.”        Zervos v. Verizon N.Y., Inc., 252 F.3d

 8   163, 169 (2d Cir. 2001) (footnotes omitted).

 9         The Federal Rules of Evidence, in a sharp departure from the

10   common law, see Asplundh Mfg. Div. v. Benton Harbor Eng'g, 57

11   F.3d 1190, 1195 (3d Cir. 1995) (Becker, J.), permit lay witnesses

12   to   testify   in    the    form   of    opinions      to   address     a    problem

13   identified by Judge Learned Hand many years ago:

14         Every judge of experience in the trial of causes has
15         again and again seen the whole story garbled, because of
16         insistence upon a form with which the witness cannot
17         comply, since, like most men, he is unaware of the
18         extent to which inference enters into his perceptions.
19         He is telling the ‘facts’ in the only way that he knows
20         how, and the result of nagging and checking him is often
21         to choke him altogether, which is, indeed, usually its
22         purpose.
23
24   Central R.R. Co. of N.J. v. Monahan, 11 F.2d 212, 214 (2d Cir.

25   1926); see also Yuri Garcia, 413 F.3d at 211 (“eyewitnesses

26   sometimes   find     it    difficult     to    describe     the   appearance        or

27   relationship of persons, the atmosphere of a place, or the value

28   of   an    object    by     reference        only   to      objective       facts”).

29   Accordingly, Rule 701 of the Federal Rules of Evidence was


                                             -12-
 1   adopted “to accommodate and ameliorate these difficulties by

 2   permitting   lay   witnesses,      in   appropriate   circumstances,   to

 3   testify in language with which they are comfortable.”          4 Jack B.

 4   Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence §

 5   701.02 (Joseph M. McLaughlin ed., 2d ed. 2004).

 6        But to ensure that lay opinion testimony is reliable and

 7   does not usurp the jury’s role as fact-finder, Rule 701 imposes

 8   certain foundation requirements that must be satisfied if such

 9   testimony is to be admitted:

10        If the witness is not testifying as an expert, the
11        witness’ testimony in the form of opinions or inferences
12        is limited to those opinions or inferences which are (a)
13        rationally based on the perception of the witness, (b)
14        helpful to a clear understanding of the witness’
15        testimony or the determination of a fact in issue, and
16        (c) not based on scientific, technical, or other
17        specialized knowledge within the scope of Rule 702.

18   Fed. R. Evid. 701 (2001). In interpreting these requirements, we

19   have observed that (a) the rational-basis requirement “is the

20   familiar requirement of first-hand knowledge or observation,”

21   United States v. Rea, 958 F.2d 1206, 1215 (2d Cir. 1992) (quoting

22   Fed. R. Evid. 701 advisory committee’s note on 1972 Proposed

23   Rules); (b) the helpfulness requirement is principally “designed

24   to provide assurance[] against the admission of opinions which

25   would merely tell the jury what result to reach,” id. (quoting

26   Fed. R. Evid. 704 advisory committee’s note on 1972 Proposed

27   Rules);   and   (c)   the   “not   based   on   specialized   knowledge”

28   requirement requires that “a lay opinion must be the product of

                                         -13-
 1   reasoning processes familiar to the average person in everyday

 2   life,” Yuri Garcia, 413 F.3d at 215.2               See also Fed. R. Evid. 701

 3   advisory committee’s note on 2000 amendments.

 4          The    government’s        evidence    failed     to   demonstrate    that

 5   Galkovich’s lay opinion testimony was “rationally based on the

 6   perception of the witness.”           Fed R. Evid. 701(a).         We note that

 7   Rule 701(a) requires that lay opinion testimony be both (a) based

 8   on    the    witness’s    first-hand       perceptions    and    (b)   rationally

 9   derived from those first-hand perceptions.

10          As to the first of these requirements, Rule 701(a) reflects,

11   in part, the Rules’ more general requirement that “[a] witness

12   may   not    testify     to   a   matter    unless    evidence    is   introduced

13   sufficient to support a finding that the witness has personal

14   knowledge of the matter.”            Fed. R. Evid. 602; see also United

15   States v. Durham, 464 F.3d 976, 982 (9th Cir. 2006) (“opinion

16   testimony of lay witnesses must be predicated upon concrete facts

17   within their own observation and recollection -- that is facts

18   perceived from their own senses, as distinguished from their

19   opinions      or   conclusions      drawn     from    such    facts”    (internal

20   quotation      marks     omitted)).          When    Galkovich   was    asked   to

21   articulate the basis for his opinion, he answered, “I based it on

22   the only thing I could base it on, which is my experience there,



             2
            In 2000, after Rea was decided, Rule 701 was amended to
      include 701(c).

                                            -14-
 1   what people said about [Kaplan], my conversation with [Kaplan],

 2   everything that I [had] been involved in.          That’s what my opinion

 3   could be based on.”     JA 140.    Although Galkovich asserts that his

 4   testimony    was    based   in    part    on   first-hand      experience       --

 5   principally his prior experiences at the Law Office and his

 6   conversation with Kaplan -- his response was extremely vague.

 7   Thus, Galkovich’s testimony failed to show that his opinion as to

 8   Kaplan’s knowledge was rationally based on facts he had observed.

 9          We are therefore unable to conclude, as we must under Rule

10   701, that the opinion he offered was rationally based on his own

11   perceptions.   See Rea, 958 F.2d at 1216 (“When a witness has not

12   identified the objective bases for his opinion, the proffered

13   opinion obviously fails completely to meet the requirements of

14   Rule 701 . . . because there is no way for the court to assess

15   whether it is rationally based on the witness's perceptions . .

16   . .”).   We applied this requirement to similar facts in Rea, and

17   observed that lay opinion testimony regarding a defendant’s

18   knowledge will, in most cases, only satisfy the rationally-based

19   requirement if the witness has personal knowledge of one or more

20   “objective factual bases from which it is possible to infer with

21   some   confidence    that   a    person    knows   a   given    fact   .    .    .

22   includ[ing] what the person was told directly, what he was in a

23   position to see or hear, what statements he himself made to

24   others, conduct in which he engaged, and what his background and


                                         -15-
 1   experience were.”       958 F.2d at 1216.           Because the Government did

 2   not lay an adequate foundation, Galkovich’s testimony expressing

 3   his opinion as to Kaplan’s knowledge was not admissible.

 4        Accordingly,       having    found      that    Galkovich’s    lay    opinion

 5   testimony      does   not    satisfy   Rule    701,    we   conclude      that   the

 6   district court erred in admitting it.

 7        B.        Admission of Galkovich’s additional testimony regarding
 8                  his and others’ knowledge
 9
10        Kaplan asserts that it was error for the district court to

11   admit Galkovich’s additional testimony regarding Galkovich and

12   others’ knowledge of the fraud as circumstantial evidence of

13   Kaplan’s knowledge.          Specifically, Galkovich was permitted to

14   testify that (1) when he first saw the building in which the Law

15   Office was located, he thought, “[t]his is where I am going to

16   get arrested,” JA 84; (2) everyone he spoke with told him not to

17   buy the Law Office, JA 87; (3) the fraud was “done very subtly”

18   because “this whole industry was a very big sham and it was big

19   lies,” JA 90; (4) the fraud was not discussed explicitly because

20   it was “kind of like . . . hear no evil, see no evil,” and he was

21   warned    to    “be   very   careful    in    what    you   say,”   JA    94;    (5)

22   “[e]veryone knew what was going on, but you don’t say it,” JA 94;

23   (6) at a Christmas party at the Law Office, Eugene Sherman read

24   a poem about clients getting paid for sham injuries, JA 97; and

25   (7) Steven Rosenberg, a lawyer at the Law Office, quit because he


                                            -16-
 1   saw a file with “blatant” fraud, JA 116-19, and Michael Brummer,

 2   another lawyer at the Law Office, was “very sensitive and nervous

 3   about what was going on in the office” and was “always very

 4   nervous when we were skirting the issue of fraud,” JA 119-21.

 5        As    previously     noted,   we      review   a    district   court’s

 6   evidentiary rulings for abuse of discretion.              See Yuri Garcia,

 7   413 F.3d at 210 (citing Old Chief, 519 U.S. at 174 n.1).                Kaplan

 8   argues that the district court abused its discretion because the

 9   evidence was irrelevant and should have been excluded under Fed.

10   R. Evid. 402 or, in the alternative, that its probative value was

11   substantially outweighed by the danger of unfair prejudice and

12   should    have   been   excluded   under    Fed.    R.   Evid.   403.      The

13   Government argues that the testimony was relevant to the question

14   of whether Kaplan was aware of the fraud because evidence that

15   the fraud was obvious and widely-known tended to make it more

16   probable that Kaplan also knew about it.                 As the prosecutor

17   argued to the jury, “[Kaplan] had to know.           Everybody else did.”

18        The parties vigorously dispute which of two precedents --

19   United States v. Patrisso, 262 F.2d 194 (2d Cir. 1958), and

20   United States v. Schultz, 333 F.3d 393 (2d Cir. 2003) -- controls

21   this case.       In Patrisso, a truckload of television tubes was

22   hijacked; Patrisso, who knew they were stolen, sold them to

23   Ellis, who also knew; Ellis, in turn, sold them to Postrel;

24   finally, Postrel sold 1,000 of them to defendant Mankes.                  262


                                        -17-
 1   F.2d at 196.    We reversed Mankes’s conviction, finding that the

 2   district court had erred by, inter alia, allowing the Government

 3   to introduce Postrel’s knowledge of the theft without evidence

 4   that Postrel, or anyone else, had communicated that fact to

 5   Mankes.     Id. at 197.    Over four decades later, in Schultz, we

 6   distinguished Patrisso in upholding the admission of testimony

 7   regarding other individuals’ knowledge of a particular Egyptian

 8   law to prove the defendant’s knowledge of the law, finding that

 9   it was “relevant both to explain the practice of the industry in

10   which this prosecution arose and to establish what someone with

11   [defendant’s] extended background in the industry probably would

12   know.”    333 F.3d at 416 (quoting United States v. Leo, 941 F.2d

13   181, 197 (3d Cir. 1991)).

14        We believe that Patrisso and Schultz, though they reach

15   different    outcomes,    stand   for   the   same   principle:   evidence

16   regarding the knowledge of individuals other than the defendant

17   should be admitted only if there is some other evidence in the

18   record -- concerning, for example, the nature of the fraud or the

19   relationship of the parties -- from which to conclude that the

20   defendant would have the same knowledge.             Indeed, the Schultz

21   court noted that the principal difference between the two cases

22   was the nature of the knowledge involved: Schultz was likely to

23   have the same knowledge, the defendant in Patrisso wasn’t.             333

24   F.3d at 416.    What of Kaplan?


                                        -18-
 1        We turn first to relevance.   Relevant evidence includes any

 2   “evidence having any tendency to make the existence of any fact

 3   that is of consequence to the determination of the action more

 4   probable or less probable than it would be without the evidence.”

 5   Fed. R. Evid. 401; see also Fed. R. Evid. 402.   “Implicit in that

 6   definition are two distinct requirements: (1) [t]he evidence must

 7   be probative of the proposition it is offered to prove, and (2)

 8   the proposition to be proved must be one that is of consequence

 9   to the determination of the action.”   United States v. Diaz, 878

10   F.2d 608, 614 (2d Cir. 1989).   As the Supreme Court has observed,

11   “[t]he Rules’ basic standard of relevance . . . is a liberal

12   one.”   Daubert v. Merrell Dow Pharms., 509 U.S. 579, 587 (1993).

13   Despite this liberal standard, we think this evidence had little

14   relevance in the circumstances of Kaplan’s case.      Evidence of

15   others’ knowledge would have been highly relevant had it been

16   supplemented by evidence supporting the conclusion that such

17   knowledge was communicated to Kaplan, or that Kaplan had been

18   exposed to the same sources from which these others derived their

19   knowledge of the fraud.    In the absence of such evidence, the

20   relevance of others’ knowledge was at best minimal in proving

21   Kaplan’s knowledge.

22        Nor does our inquiry end there -- even as to evidence that

23   is plainly relevant, the trial judge retains discretion to

24   exclude the evidence “if its probative value is substantially


                                     -19-
 1   outweighed by the danger of unfair prejudice.”           Fed. R. Evid.

 2   403.   This evidence was of minimal probative value for two

 3   reasons.   First,    as   noted,   the    Government   failed   to   offer

 4   evidence that would connect the third parties’ knowledge of the

 5   fraud to Kaplan.    Under the Government’s own theory of the case,

 6   Kaplan spent very little time at the law office and reviewed very

 7   few claims directly.       Moreover, the Government proffered no

 8   evidence that anyone who allegedly was aware of the fraudulent

 9   scheme actually had communicated his knowledge to Kaplan.               In

10   fact, Galkovich testified that the participants in the fraud were

11   careful not to speak openly about the fraudulent nature of the

12   injury claims: he testified that clients did not directly admit

13   to the firm that their accidents were staged, but rather that

14   “generally it was done very subtly,” and that he did not have

15   explicit conversations about the fraud with clients or other

16   people in the office “because you don’t want to get in trouble .

17   . . It is kind of like, you know, hear no evil, see no evil. . .

18   . Everyone knew what was going on, but you don’t say it.”             This

19   was not an office where the illegal nature of the business was

20   necessarily visible and audible to everyone who worked there. In

21   that sense, we think this case is more analogous to Patrisso than

22   to Schultz: as in Patrisso, the Government failed to offer

23   evidence that would explain how defendant Kaplan would have

24   obtained the third parties’ knowledge of the criminal scheme.


                                        -20-
 1        Second, much of the testimony concerning knowledge of the

 2   fraud was so speculative or flawed in other respects that it had

 3   little or no probative value.         For example, the Government did

 4   not lay a proper foundation for Galkovich’s statement that it was

 5   “[his] understanding that this whole business was very very --

 6   this whole industry was a very big sham and it was big lies”;

 7   Galkovich was not qualified as one having special knowledge of

 8   the personal injury “industry,” so it is difficult to see how

 9   Galkovich had sufficient knowledge of the industry to testify

10   competently on its criminal nature.           See Fed. R. Evid. 602 (“A

11   witness may not testify to a matter unless evidence is introduced

12   sufficient to support a finding that the witness has personal

13   knowledge of the matter.”); Woodman v. WWOR-TV, Inc., 411 F.3d

14   69, 86-87 (2d Cir. 2005) (affirming district court’s decision to

15   exclude plaintiff’s testimony that her age was “well known

16   throughout the industry” on ground that plaintiff was “hardly

17   competent to testify to how others in the broadcast community

18   perceived her age” (citing Fed. R. Evid. 602)). Galkovich’s

19   testimony concerning the alleged knowledge of Rosenberg, another

20   lawyer   in   the   office,   was   hearsay   upon   hearsay;   Rosenberg

21   allegedly made statements to a secretary in the office, who

22   allegedly told Galkovich, who offered the jury the conclusion

23   that Rosenberg had quit his job because of fraud.          Cf. Brown v.

24   Keane, 355 F.3d 82, 90 (2d Cir. 2004) (“An assertion of fact


                                         -21-
 1   based on conjecture and surmise, to which the declarant would not

 2   be allowed to testify if called to the witness box, does not

 3   become admissible under an exception to the hearsay rule . . .

 4   .”).

 5          We conclude, furthermore, that this limited probative value

 6   is substantially outweighed by the risk of unfair prejudice.

 7   Although relevant evidence is always prejudicial to one side, we

 8   conclude that the risk of unfair prejudice here -- in particular,

 9   the likelihood that jurors would render a decision on an improper

10   basis by giving this testimony undue weight or improperly holding

11   Kaplan liable because they believed he should have known of the

12   fraud -- was great.       The jury was required to draw a series of

13   inferences, unsupported by other evidence, to connect Galkovich’s

14   testimony about his guilty knowledge (and that of others) to

15   Kaplan’s own knowledge, the ultimate issue in the case.                 Under

16   the circumstances, the District Court should have concluded that

17   whatever slight probative value the testimony might have had was

18   outweighed    by   the   risk   that   the   jury   would   draw   improper

19   inferences from the testimony.         Cf. United States v. Ravich, 421

20   F.2d 1196, 1204 n.10 (2d Cir. 1970) (Friendly, J.) (“The length

21   of the chain of inferences necessary to connect the evidence with

22   the ultimate fact to be proved necessarily lessens the probative

23   value   of   the   evidence,    and    may   therefore   render    it   more

24   susceptible to exclusion as unduly confusing, prejudicial, or


                                        -22-
 1   time-consuming . . . .”).    Moreover, Galkovich’s testimony that

 2   the entire industry in which Kaplan operated was “a very big sham

 3   and it was big lies” was so inflammatory that it should have been

 4   excluded as prejudicial under the circumstances.         Furthermore,

 5   the likelihood of prejudice was increased by the government’s

 6   improper use of the evidence of others’ knowledge. In summation,

 7   the prosecutor argued, “[Kaplan] had to know.          Everybody else

 8   did.”   As noted, the evidence did not support any such inference.

 9        Accordingly, with respect to Galkovich’s testimony regarding

10   his and others’ knowledge of the fraud, we conclude that the risk

11   of   unfair   prejudice   substantially   outweighed     the   limited

12   probative value, and hold that the district court erred in

13   receiving this evidence.

14        C.    Harmless error analysis

15        We will reverse on account of these evidentiary errors only

16   if they affect “substantial rights.” See Fed. R. Crim. P. 52(a);

17   Fed. R. Evid. 103(a); Yuri Garcia, 413 F.3d at 210.      In Kotteakos

18   v. United States, the Supreme Court set forth the analysis for

19   determining whether a non-constitutional error is harmless:

20        If, when all is said and done, the conviction is sure
21        that the error did not influence the jury, or had but
22        very slight effect, the verdict and the judgment should
23        stand, except perhaps where the departure is from a
24        constitutional norm or a specific command of Congress .
25        . . . But if one cannot say, with fair assurance, after
26        pondering all that happened without stripping the
27        erroneous action from the whole, that the judgment was
28        not substantially swayed by the error, it is impossible
29        to conclude that substantial rights were not affected.

                                   -23-
 1         The inquiry cannot be merely whether there was enough to
 2         support the result, apart from the phase affected by the
 3         error. It is rather, even so, whether the error itself
 4         had substantial influence. If so, or if one is left in
 5         grave doubt, the conviction cannot stand.

 6   328 U.S. 750, 764-65 (1946) (footnote omitted); see also United

 7   States v. Dukagjini, 326 F.3d 45, 62 (2d Cir. 2003) (holding that

 8   non-constitutional error affects substantial rights if it had a

 9   “substantial and injurious effect or influence” on the jury’s

10   verdict).   But “we are not required to conclude that it could not

11   have had any effect whatever; the error is harmless if we can

12   conclude that that testimony was ‘unimportant in relation to

13   everything else the jury considered on the issue in question, as

14   revealed in the record.’”     Rea, 958 F.2d at 1220 (quoting Yates

15   v. Evatt, 500 U.S. 391, 403 (1991)).       In conducting this inquiry,

16   we   principally   consider   “(1)   the   overall   strength   of   the

17   prosecution’s case; (2) the prosecutor’s conduct with respect to

18   the improperly admitted evidence; (3) the importance of the

19   wrongly admitted testimony; and (4) whether such evidence was

20   cumulative of other properly admitted evidence.” Zappulla v. New

21   York, 391 F.3d 462, 468 (2d Cir. 2004).

22         Applying these factors, it is clear that Galkovich’s lay

23   opinion testimony may have “substantially swayed,” Kotteakos, 328

24   U.S. at 765, the jury’s verdict on Counts One through Five

25   because it was not “unimportant in relation to everything else




                                     -24-
 1   the jury considered on the issue in question.”3         The Government’s

 2   case on those five counts rested principally on the following

 3   evidence:     the   recorded   conversations   during    which   Kaplan,

 4   Sherman, and Medvedovsky told Galkovich to lie, Kaplan’s sham

 5   purchase of the Law Office, Kaplan’s disinterest in cases filed

 6   by the Law Office in his name, Kaplan’s absence from the Law

 7   Office, the arrangement between the Law Office and Prostaff and

 8   Medvedovsky, Kaplan’s receipt of over $70,000 for his limited

 9   services at the Law Office, and his false statements upon his

10   arrest.     Although the Government may, of course, prove its case

11   exclusively with such circumstantial evidence, their case with

12   respect to those counts was not strong.

13        As a result, and because Kaplan’s knowledge of the fraud was

14   the central disputed issue in the case, Galkovich’s lay opinion

15   testimony was vitally important -- just the sort of evidence that

16   might well sway a jury confronted with a marginal circumstantial

17   case.       Our concern is heightened by the Government’s trial

18   strategy with respect to the evidence; the Government repeatedly

19   called the jury’s attention to Galkovich’s lay opinion testimony.

20   In its opening statement, the Government told the jury that

21   “Galkovich will recount for you conversations he had with Kaplan

22   during the sale in which they discussed the fraudulent nature of


             3
             As a result of this conclusion, we need not evaluate
      whether the error in admitting Galkovich’s testimony regarding
      others’ knowledge was harmless.

                                       -25-
 1   the law practice.”         In its closing, the Government reminded the

 2   jury that “Galkovich explained to you that that conversation, and

 3   Kaplan’s comments, satisfied Galkovich that Kaplan understood all

 4   about the fraud,” and that “[w]e know . . . from the testimony of

 5   the witnesses, that Solomon Kaplan knew, undeniably knew, about

 6   the fraud at the law firm.”         In rebuttal, the Government stated

 7   that “[Kaplan] essentially admitted to Galkovich that he knew

 8   what was going on at this law office.            That was how Galkovich

 9   understood what he said.         It is not his opinion.      He was there.

10   He had the conversation.”          And, finally, we observe that this

11   evidence was unique and thus was not cumulative of properly

12   admitted evidence.

13         Because we cannot, in light of the foregoing, say with fair

14   assurance    that    Galkovich’s     lay    opinion    testimony   did    not

15   “substantially sway[]” the jury’s verdict as to Counts One, Two,

16   Three, Four, and Five, we conclude that this error was not

17   harmless    and    therefore     vacate   Kaplan’s    conviction   on    those

18   counts.

19

20   II.   Counts Six and Seven: Interfering with the Investigation

21         We    turn    next    to   Kaplan’s   arguments     challenging     his

22   conviction for interfering with the investigation by tampering

23   with a witness (Count Six) and giving false statements to the FBI

24   (Count Seven). He argues on appeal, among other things, that his


                                          -26-
 1   conviction on those two counts must be vacated due to the

 2   district court’s witness tampering and conscious avoidance jury

 3   instructions and a constructive amendment of, or prejudicial

 4   variance   from,   the       indictment,    as    clarified      by      a    bill   of

 5   particulars.4    We address his arguments in turn.

 6         A.   Witness tampering jury instruction

 7         Kaplan contends that the district court’s jury instruction

 8   on Count Six, alleging witness tampering, is deficient in light

 9   of the Supreme Court’s decision in Arthur Andersen LLP v. United

10   States, 544 U.S. 696 (2005), decided after his conviction.

11         Kaplan    made    no   objection     to    this   aspect      of       the   jury

12   instruction.     Therefore, we review his argument under the plain

13   error standard of Fed. R. Crim. P. 52(b).                 We have ruled that

14   when the claim of error derives from a supervening decision

15   altering a settled rule of law in the Circuit, as it does here,

16   the   claimed   error    should    be    assessed       under   a     standard       of

17   “modified plain-error.”         See United States v. Viola, 35 F.3d 37,


            4
              We note briefly that to the extent Kaplan argues that
      the evidentiary errors discussed in Section I compel us to
      vacate his conviction on Counts Six and Seven as well, we reject
      his argument.    As to Counts Six and Seven, the evidentiary
      errors were harmless because the improper evidence was at most
      tangential to the theory of Counts Six and Seven.            The
      Government’s case rested on substantial independent evidence,
      including tape recordings of Kaplan’s participation in witness
      tampering, Kaplan’s post-arrest statement, and testimony by the
      FBI agent who took Kaplan’s post-arrest statement, to support
      his conviction. Moreover, the Government did not emphasize the
      testimony in issue in urging the jury to convict Kaplan of these
      two counts.

                                          -27-
 1   41-44 (2d Cir. 1994).   Ordinarily, the defendant asserting plain

 2   error bears the burden of persuasion as to prejudice, but under

 3   our “modified plain-error” review, the Government bears that

 4   burden.   See id. at 41-42.    In this case it makes no difference

 5   whether the standard applied is the conventional or the modified

 6   “plain error” standard because any error in the charge was

 7   inconsequential   and   did   not   rise   to   the   level   of   either

 8   standard.5

 9        Count Six alleges violations of 18 U.S.C. §§ 1512(b)(1) and

10   (b)(3), which provide that:

11        (b) Whoever knowingly uses intimidation, threatens or
12        corruptly persuades another person, or attempts to do
13        so, or engages in misleading conduct toward another
14        person, with intent to--
15             (1) influence, delay or prevent the testimony of
16             any person in an official proceeding;
17             . . .
18             (3) hinder, delay, or prevent the communication to
19             a law enforcement officer or judge of the United
20             States of information relating to the commission or
21             possible commission of a Federal offense or a
22             violation of conditions of probation, supervised
23             release, parole, or release pending judicial
24             proceedings;
25        shall be fined under this title or imprisoned not more
26        than ten years, or both.
27
28        In Arthur Andersen, the Supreme Court found the district

29   court’s instructions were deficient in two respects -- they


           5
             The Government argues that the Supreme Court’s decision
      in Johnson v. United States, 520 U.S. 461 (1997), requires that
      this Court abandon its “modified plain-error” test. We need not
      address the merits of this argument because we find that, even
      under the modified plain error test, Kaplan is not entitled to
      have his witness tampering conviction overturned.

                                     -28-
 1   failed to convey the requirements of 18 U.S.C. § 1512(b)(2) of

 2   mens rea and nexus to an official proceeding.           As to the first of

 3   these   deficiencies,    the   district   court    in    Arthur   Andersen

 4   instructed the jury that it could convict Arthur Andersen of

 5   witness tampering in relation to an official proceeding if it

 6   found that Arthur Andersen intended to “subvert, undermine, or

 7   impede” governmental factfinding by suggesting to its employees

 8   that they enforce the document retention policy, and that “even

 9   if [Arthur Andersen] honestly and sincerely believed that its

10   conduct was lawful, you may find [Arthur Andersen] guilty.”            544

11   U.S. at 706. These instructions, the Supreme Court held, did not

12   properly convey the mens rea required for a violation of 18

13   U.S.C. § 1512(b) --     they “diluted the meaning of ‘corruptly’ so

14   that it covered innocent conduct,” id. -- because “[o]nly persons

15   conscious of wrongdoing can be said to ‘knowingly . . . corruptly

16   persuad[e],’” id. (emphasis supplied).

17         As to the second deficiency -- regarding the so-called

18   “nexus requirement” -- the Supreme Court in Arthur Andersen found

19   the   instructions   deficient    because   “[a]    ‘knowingly     .   .   .

20   corrup[t] persuade[r]’ cannot be someone who persuades others to

21   shred documents under a document retention policy when he does

22   not have in contemplation any particular official proceeding in

23   which those documents might be material,” id. at 708, and the

24   district court’s instructions “led the jury to believe that it


                                      -29-
 1   did not have to find any nexus between the ‘persua[sion]’ to

 2   destroy documents and any particular proceeding,” id. at 707.

 3   Cf. United States v. Arthur Andersen, 374 F.3d 281, 298 n.32 (5th

 4   Cir. 2004) (reciting district court’s charge in Arthur Andersen

 5   defining “official proceeding”).    Instead, a “knowingly . . .

 6   corrupt persuader” must believe that his actions are likely to

 7   affect a particular, existing or foreseeable official proceeding.

 8   See Arthur Andersen, 544 U.S. at 708; see also United States v.

 9   Quattrone, 441 F.3d 153, 181 (2d Cir. 2006) (holding that Arthur

10   Andersen requires that there be “some nexus between the effort to

11   tamper . . . pertaining to the relevant proceeding and awareness

12   that such conduct was likely to affect the proceeding”).

13        Kaplan contends that the district court’s instructions in

14   this case are similarly deficient. The district court instructed

15   the jury on Count Six as follows:

16             The first element the government must prove is that
17        the defendant corruptly persuaded a person, or attempted
18        to do so.
19             . . . .
20             The word “corruptly” simply means having an
21        improper purpose. An intent to subvert or undermine the
22        factfinding ability of an official proceeding is an
23        improper purpose . . .”
24             The second element that the government must prove
25        is that the defendant acted knowingly and with the
26        specific intent to influence the testimony of another
27        person in an official federal proceeding.
28             An act is done “knowingly” if it is done
29        voluntarily and intentionally and not because of mistake
30        or accident.
31             By specific intent, I meant that the defendant must
32        have acted knowingly and with the unlawful intent to
33        influence the testimony of another person in an official

                                 -30-
 1        federal proceeding; or to hinder, delay or prevent the
 2        communication to a federal law enforcement officer or
 3        judge information relating to the commission or possible
 4        commission of a federal offense.
 5
 6   JA 287-88.

 7        Applying the lessons of Arthur Andersen, we find that the

 8   charge adequately conveyed the statute’s mens rea requirement.

 9   Viewing the charge as whole, the district court conveyed the

10   substantial equivalent of Arthur Andersen’s holding that the

11   defendant must be “conscious of wrongdoing” by instructing the

12   jury to convict only if it found that the defendant acted with an

13   “improper purpose” and “acted knowingly and with the unlawful

14   intent to influence the testimony.”       We note that the Supreme

15   Court in Arthur Andersen expressly faulted the jury instructions

16   in that case for (1) specifying that the jury could convict if it

17   found that Arthur Andersen intended to “subvert, undermine, or

18   impede”    (emphasis   added)   because   “‘impede’   has   broader

19   connotations than ‘subvert’ or even ‘undermine,’ and many of

20   these connotations do not incorporate any ‘corruptness’ at all,”

21   544 U.S. at 706-07 (brackets omitted), and (2) instructing the

22   jury that “even if [Arthur Andersen] honestly and sincerely

23   believed that its conduct was lawful, you may find [Arthur

24   Andersen] guilty,” id. at 706.    The district court here charged

25   nothing of the sort.     To convict, the jury had to find that

26   Kaplan acted with an “improper purpose” and with “unlawful

27   intent.”

                                     -31-
 1          Second, with regard to Kaplan’s argument that the district

 2   court’s instructions were erroneous in light of Arthur Andersen’s

 3   discussion of the statute’s nexus requirement, we note first that

 4   the charges in Arthur Andersen were brought under two clauses of

 5   § 1512(b)(2), both of which explicitly include as an element that

 6   the obstruction or tampering relate to an “official proceeding,”

 7   see id. at 702.      Kaplan, however, was charged under §§ 1512(b)(1)

 8   and (3). With respect to § 1512(b)(3), it is unclear whether

 9   Arthur Andersen’s nexus requirement is applicable because §

10   1512(b)(3) does not explicitly refer to an “official proceeding.”

11   See United States v. Byrne, 435 F.3d 16, 23-25 (1st Cir. 2006).

12   We    need   not   decide    this   issue,   because   even     if   the   nexus

13   requirement is applicable to prosecutions under § 1512(b)(3), and

14   the    district    court’s    instructions     under   §   1512(b)(3)       were

15   erroneous for failure to discuss nexus, any such error was

16   harmless in the circumstances of this case for the reasons

17   discussed below.

18          Kaplan was, as noted, also charged under § 1512(b)(1), which

19   does    contain    an   explicitly    stated   element     of   an   “official

20   proceeding.”       The jury instructions on this charge undoubtedly

21   needed to comply with the nexus requirement discussed in Arthur

22   Andersen.      The district court instructed the jury that the

23   government “must prove” that the defendant acted “with the

24   specific intent to influence the testimony of another person in


                                           -32-
 1   an official federal proceeding.”             The instructions did not

 2   identify the official proceeding. In view of the Supreme Court’s

 3   discussion in Arthur Andersen, 544 U.S. at 707 (finding the

 4   instructions infirm because they led the jury to believe that it

 5   did not have to find any nexus between the “persuasion” to

 6   destroy documents and any “particular proceeding”), it would

 7   surely have been more prudent, even where the evidence only

 8   points to one federal proceeding, for the district judge to

 9   identify the “particular” federal proceeding that the defendant

10   intended to obstruct.     We need not decide whether the failure to

11   do so in this case was error, because as we note below, it was

12   harmless in any event.

13         Furthermore, in Quattrone, 441 F.3d at 153, the district

14   court, following the Supreme Court’s formulation of the nexus

15   requirement in United States v. Aguilar, 515 U.S. 593, 599

16   (1995), described nexus to the jury as “some relationship in

17   time, causation or logic, between the defendant’s actions and the

18   grand jury proceeding so that his action or actions may be said

19   to have the natural and probable effect of interfering with that

20   proceeding.” Quattrone, 441 F.3d at 177 n.24. We ruled that this

21   instruction accurately described the nexus requirement.           Id. at

22   178. The instructions given below did not contain this language,

23   or   its   reasonable   equivalent.     In    that   regard,   they   were

24   deficient.


                                      -33-
 1         Nevertheless, Kaplan is not entitled to reversal of his

 2   conviction on Count Six.               Despite this error and other arguable

 3   deficiencies in the charge on nexus, any deficiencies were

 4   harmless in the particular circumstances of the case and did not

 5   amount to plain error.            Unlike the defendants in Arthur Andersen

 6   and Quattrone, who, in accordance with a routine file purging

 7   policy, had urged destruction of documents that they may not have

 8   known    were    relevant        to    any    “particular      proceeding,”         Arthur

 9   Andersen, 544 U.S. at 707, Kaplan, according to the government’s

10   evidence,       directly        participated        in   an    effort    to   influence

11   Galkovich’s testimony.                 In his summation, Kaplan implicitly

12   conceded that, if the jury found that he urged Galkovich to

13   testify    falsely,        it    was    with       respect    to   either     the    state

14   disciplinary      proceeding           or    the    federal    criminal     proceeding.

15   Kaplan argued that the jury should find that any such effort

16   related to the state disciplinary proceeding, and was therefore

17   not   covered     by   §    1512.           His    argument,    however,      implicitly

18   conceded that, if the jury rejected his contention that his

19   efforts related to the disciplinary proceeding, the efforts

20   “relat[ed] in time, causation or logic,” Quattrone, 441 F.3d at

21   177     n.24,     to       Galkovich’s            federal     criminal      proceeding.

22   Accordingly, the court’s failure to explain in full an element

23   that Kaplan had essentially conceded was harmless.




                                                  -34-
 1        In sum, any error in the jury instructions was harmless and

 2   does not meet the standard of plain error.                 We reject Kaplan’s

 3   argument that we must vacate his conviction on Count Six.

 4        B.      Conscious avoidance jury instruction

 5        Kaplan contends that it was error for the district court to

 6   give a conscious avoidance charge on Count Six.                    We agree but

 7   conclude that the error was harmless.

 8        An instruction on conscious avoidance is proper only “(i)

 9   when a defendant asserts the lack of some specific aspect of

10   knowledge    required    for    conviction    and    (ii)    the    appropriate

11   factual predicate for the charge exists.” Quattrone, 441 F.3d at

12   181 (internal citations omitted).            As for the second of these

13   requirements, a factual predicate exists when “the evidence is

14   such that a rational juror may reach the conclusion beyond a

15   reasonable    doubt     that   the    defendant     was    aware    of    a     high

16   probability of the fact in dispute and consciously avoided

17   confirming that fact.”         Id. (internal quotation marks omitted).

18        Evidence    sufficient      to   find   actual       knowledge      does    not

19   necessarily constitute evidence sufficient to find conscious

20   avoidance.    See United States v. Ferrarini, 219 F.3d 145, 157 (2d

21   Cir. 2000) (“The evidence shows that [defendant] actually knew of

22   the frauds; it is not sufficient to permit a finding that he

23   consciously avoided confirming them. The fact that a jury can --

24   on the evidence -- find actual knowledge does not mean that it


                                           -35-
 1   can also find conscious avoidance.”).              Because the only record

 2   evidence indicates that Kaplan had actual knowledge of the

 3   witness tampering, there was no factual predicate for a conscious

 4   avoidance charge on Count Six, and it was error for the district

 5   court to give it.6

 6        Nevertheless, we find that the error was harmless because

 7   there was overwhelming evidence of Kaplan’s actual knowledge and

 8   direct involvement in the witness tampering, see ante at 8.             See

 9   Quattrone, 441 F.3d at 181 (quoting Ferrarini, 219 F.3d at 154)

10   (“But       an   erroneously   given   conscious    avoidance   instruction

11   constitutes harmless error if the jury was charged on actual

12   knowledge and there was ‘overwhelming evidence’ to support a

13   finding that the defendant instead possessed actual knowledge of

14   the fact at issue.”).

15

16


             6
             We reject Kaplan’s argument that it was error for the
      district court to give a conscious avoidance charge when the
      government argued actual knowledge in the alternative. Although
      we noted in Ferrarini that evidence sufficient to find actual
      knowledge does not necessarily establish a factual predicate for
      conscious avoidance, 219 F.3d at 157, we have held that a
      conscious avoidance charge is “not inappropriate merely because
      the Government has primarily attempted to prove that the
      defendant had actual knowledge, while urging in the alternative
      that if the defendant lacked such knowledge it was only because
      he had studiously sought to avoid knowing what was plain,”
      United States v. Hopkins, 53 F.3d 533, 542 (2d Cir. 1995). So
      long as the Government can establish a factual predicate for
      conscious avoidance, it is free to argue alternative theories of
      conscious avoidance and actual knowledge.

                                            -36-
 1        C.      Variance between bill of particulars and proof

 2        Finally, Kaplan argues that the Government’s proof at trial

 3   constructively amended, or prejudicially varied from, Count Seven

 4   of the indictment, as clarified in a bill of particulars.               We

 5   disagree.

 6        Count Seven, which arises from the statements that Kaplan

 7   made to the FBI after his arrest, alleges that Kaplan “made

 8   materially    false,    fictitious,   and   fraudulent    statements   and

 9   representations, to wit, KAPLAN falsely informed an agent of the

10   Federal     Bureau     of   Investigation   about   the    circumstances

11   surrounding his purchase of a law practice from [Galkovich].” JA

12   17-18. These false statements were disclosed to Kaplan in an FBI

13   report prior to trial.         In response to Kaplan’s request for a

14   bill of particulars, the Government stated that “the statements

15   contained in paragraphs three and four on page one of Kaplan’s

16   post-arrest statement form the basis of Count Seven.”

17        At trial, the Government offered ample proof of numerous

18   false statements.7          In summation, the Government principally

19   contended that seven statements were false: Kaplan told the FBI

20   that (1) he was introduced to Galkovich and Medvedvosky by a

21   Vladimir Scheckman; (2) “he received a thousand cases from

22   Galkovich as a result of the sale;” (3) the Law Office was sold



           7
            On appeal, Kaplan does not challenge the sufficiency of
      this evidence to support his conviction on Count Seven.

                                         -37-
 1   to him for $120,000; (4) he did not recall who gave him the

 2   $20,000 check used to purchase the Law Office; (5) he was assured

 3   by Medvedovsky and Galkovich that the charges against Galkovich

 4   “were nothing [because] Galkovich had done nothing wrong”; (6) he

 5   “just stopped by” the January 8 meeting between                    Galkovich,

 6   Medvedovsky,       and   Sherman    without      planning   in    advance      to

 7   participate; and (7) he did not take the conversation on January

 8   8 “very seriously” and that they were just “joking around.” Only

 9   one   of   these    statements     --    concerning   how   Kaplan     had    met

10   Galkovich    and    Medvedovsky     --    was   specified   in   the   bill   of

11   particulars.

12         This does not constitute a constructive amendment of the

13   indictment.    “To prevail on a constructive amendment claim, a

14   defendant must demonstrate that either the proof at trial or the

15   trial court’s jury instructions so altered an essential element

16   of the charge that, upon review, it is uncertain whether the

17   defendant was convicted of conduct that was the subject of the

18   grand jury’s indictment.”          United States v. Salmonese, 352 F.3d

19   608, 620 (2d Cir. 2003).      Here, because the Government proved the

20   essential elements of the crime charged in Count Seven -- albeit

21   with different proof, as indicated above -- the indictment was

22   not constructively amended. See, e.g., United States v. Wallace,

23   59 F.3d 333, 337 (2d Cir. 1995) (holding that no constructive




                                             -38-
 1   amendment occurs “where a generally framed indictment encompasses

 2   the specific legal theory or evidence used at trial”).

 3         A variance, on the other hand, occurs when the charging

 4   terms remain unaltered but the facts proven at trial differ from

 5   those alleged in the indictment or bill of particulars.                            See

 6   United States v. Dupre, 462 F.3d 131, 140 (2d Cir. 2006); United

 7   States v. Glaze, 313 F.2d 757, 759 (2d Cir. 1963) (holding that

 8   once the Government has responded with a bill of particulars, it

 9   is “strictly limited to proving what it has set forth in it.”).

10   However, we will reverse on account of a variance only if it

11   prejudices    the    defendant     by    infringing      on    the    “substantial

12   rights” that indictments exist to protect -- “to inform an

13   accused of the charges against him so that he may prepare his

14   defense and to avoid double jeopardy.”               Dupre, 462 F.3d at 140;

15   see also Glaze, 313 F.2d at 759 (“it is well settled that a

16   variance between the proof and the bill of particulars is not

17   grounds for reversal unless the [defendant] is prejudiced by the

18   variance.”).

19         Assuming      arguendo   there     was    a   variance,        we   detect   no

20   prejudice to Kaplan’s ability to prepare his defense or interpose

21   a defense of double jeopardy.           Where the defendant has notice of

22   the   “core   of    criminality”    to     be   proven    at    trial,      we   have

23   permitted “significant flexibility” in proof without finding

24   prejudice.     See United States v. LaSpina, 299 F.3d 165, 181-82


                                             -39-
 1   (2d Cir. 2002); see also Salmonese, 21 F.3d at 1236 (“A defendant

 2   cannot demonstrate that he has been prejudiced by a variance

 3   where the pleading and the proof substantially correspond . . .

 4   .”).    For example, in Dupre, we concluded that the proof of a

 5   wire transfer other than that specified in the indictment was a

 6   variance but did not prejudice the defendant because she was not

 7   surprised by the proof, 462 F.3d at 141-42, and suffered no risk

 8   of double jeopardy, id. at 143 n.12.                Additionally, we have

 9   routinely found that no prejudice results from a variance between

10   overt acts charged in an indictment and those proved at trial.

11   See, e.g., Frank, 156 F.3d at 337; LaSpina, 299 F.3d at 182-83;

12   Salmonese,   352   F.3d   at   622    (“In   this    case,   because   [the]

13   [i]ndictment . . . gave [defendant] fair and adequate notice that

14   the conspiratorial scheme achieved its ultimate economic purpose

15   through the conspirators’ multiple sales of stripped securities

16   and their receipt of proceeds through June 1996, [defendant]

17   cannot show that he was prejudiced by proof of a few uncharged

18   proceed receipts after May 8, 1996.”).

19          The alleged variance here in issue similarly does not

20   justify reversal.    Before trial, the government gave Kaplan the

21   FBI report detailing all of his statements.            Count Seven of the

22   indictment was broadly framed, giving Kaplan notice of the “core

23   of criminality” to be proven at trial.         And Kaplan’s counsel did

24   not object to the admission of the false statements not specified


                                          -40-
 1   in the bill of particulars, nor did he request a continuance when

 2   they were introduced.       There is therefore no indication in the

 3   record that the evidence adduced at trial unfairly surprised

 4   Kaplan, exposed him to a risk of double jeopardy, or unfairly

 5   prejudiced him in any other way.         The variance did not create

 6   error, much less the plain error that arguably was required to be

 7   shown as a result of Kaplan’s failure to object.

 8         We therefore reject Kaplan’s argument that the Government’s

 9   proof at trial constructively amended, or prejudicially varied

10   from, Count Seven of the indictment.

11

12                                  CONCLUSION

13         We have considered all of Kaplan’s remaining arguments on

14   appeal and find them to be without merit.          For the reasons set

15   forth above, the judgment of conviction is vacated as to Counts

16   One, Two, Three, Four, and Five, and affirmed as to Counts Six

17   and   Seven.   The   case    is   remanded   for   further   proceedings

18   consistent with this opinion.




                                       -41-
