     Case: 14-20727      Document: 00513211684         Page: 1    Date Filed: 09/29/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit
                                      No. 14-20727                            FILED
                                                                      September 29, 2015
                                                                         Lyle W. Cayce
UNITED STATES OF AMERICA,                                                     Clerk

                                          Plaintiff - Appellee

v.

MARK ALLAN JAMES,

                                          Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:11-CR-869


Before JONES, SMITH, and SOUTHWICK, Circuit Judges.
EDITH H. JONES, Circuit Judge:*
       Appellant Mark James was convicted of both a wire fraud conspiracy to
defraud Hewlett Packard and a money laundering conspiracy, in violation of
18 U.S.C. §§ 1349 and 1956(h), respectively. He was sentenced to concurrent
terms of 60 months’ imprisonment, supervised release, and restitution
exceeding $13 million.        His audacious scam enabled him to bypass HP’s
controls on a special deep discount program and pocket the savings for himself
in subsequent computer equipment sales.



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                   No. 14-20727
      On appeal, James raises only two issues: whether the indictment was
constructively amended during the government’s closing argument; and
whether the district court abused its discretion by refusing to hold a post-
verdict hearing concerning a hearing-impaired juror. Finding no reversible
error of fact or law, we affirm.
      1.    James objected contemporaneously to one comment in the
government’s closing argument. The indictment stated that James conspired
“with others, known and unknown to the grand jury” in committing wire fraud.
James’s theory of defense was that HP knew he and his confederates were
reselling computer equipment they obtained through the Big Deal program on
the open market contrary to HP’s rules for the discount program. James
argued that because HP “condoned” his activities, he had no intent to defraud.
In closing, the government responded that even if a salesman or a person
working in an HP warehouse knew what James was up to, this did not mean
that HP condoned James’s fraudulent purchases and reselling. Instead, it
made those employees co-conspirators. James contends that this response
constructively amended the indictment by turning the indicted “outside
conspiracy,” organized without HP’s knowledge or acquiescence, into an “inside
conspiracy” against the company.
      Like the district court, we find no merit in this contention.           The
indictment is broad enough to cover unnamed conspirators. Moreover, the
government was entitled to inform the jury of a basic feature of corporate law:
knowledge of low level employees cannot necessarily be imputed to the victim
corporation itself. An indictment is impermissibly amended only where a court
“allows proof of an essential element of the crime on an alternative basis
permitted by the statute but not charged in the indictment.” United States v.
Slovacek, 867 F.2d 842, 847 (5th Cir. 1989). That the indictment named co-
conspirators who were outside HP did not, under its specific “known and
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                                  No. 14-20727
unknown” terms foreclose the government from proving the involvement, had
it chosen to do so, of an employee inside HP. We emphasize, however, that the
government’s argument here is best read only as a hypothetical response to the
“condonation” argument.
      2. The ability of a juror to hear the trial proceedings is “an internal
matter,” Tanner v. United States, 483 U.S. 107, 118 (1987). This court has held
that “in order to initiate any post-verdict inquiry into an internal matter
regarding a juror, an extremely strong showing of juror incompetence must be
adduced, and substantial evidence of incompetence must originate from a non-
juror source.” United States v. Webster, 960 F.2d 1301, 1306 (5th Cir. 1992)
(citation omitted).   James denies the applicability of this stringent standard
on the basis that the juror’s hearing deficit was considered before trial and re-
raised post-verdict. But the only case to which he refers is distinguishable
because it concerned allegations about juror conduct that were raised and
delved into before the verdict was rendered. United States v. Sotelo, 97 F.3d
782, 797 (5th Cir. 1996). An extraordinary showing is reasonably required,
however, when the losing party waits to impugn a juror until after rendition of
the verdict. Weaver v. Puckett, 896 F.2d 126, 128 (5th Cir. 1990).
      No extraordinary showing was made of this juror’s hearing difficulty.
The district court carefully accommodated the juror’s self-described deficits by
placing her nearest the witness box and instructing her to raise her hand if she
could not hear at any point. James’s only specific objections are that (a) the
court had to repeat two questions to the juror during voir dire, and (b) the juror
hesitated before being the first one polled on the verdict of conviction. Notably,
defense counsel informed the court before it dismissed alternate jurors at the
close of trial that he was comfortable with “the usual procedure.” In other
words, defense counsel withdrew his previously expressed concern about this
juror’s hearing difficulty. The trial court witnessed these events and later
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                                  No. 14-20727
wrote that the juror never indicated she was having any trouble hearing the
proceedings. As to the polling, the court concluded that the juror was more
likely hesitant because of the nature of an unfamiliar request rather than
because she was hard of hearing. We find no error or abuse of discretion in the
court’s refusal to hold a post-verdict hearing or declare a new trial because of
the juror’s hearing impairment.
      The judgment of conviction is AFFIRMED.




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