                                   ___________

                                   No. 97-1005
                                   ___________

United States of America                       *
                                               *
           Appellee,                           *
                                               *    Appeal from the United States
     v.                                        *   District Court for the
                                               *    Western District of Missouri
Anthony Slaughter                  *
                                               *
           Appellant.              *

                                  _____________

                              No. 97-1048
                              ____________

United States of America                    *
                                           *
           Appellee,                       *
                                       *   Appeal from the United States
     v.                                     * District Court for the
                                            * Western District of Missouri
Roy E. Leonard,                        *
                                           *
          Appellant.                   *

                              _____________


                        Submitted: May 20, 1997
                          Filed:   October 16, 1997
                                 ____________

Before MURPHY     and   HEANEY,   Circuit          Judges,   and   ROSENBAUM,*   District
     Judge.
                                   ___________

ROSENBAUM, District Judge.




     *
     The HONORABLE JAMES M. ROSENBAUM, United States District
Judge for the District of Minnesota, sitting by designation.
        Anthony Slaughter and Roy Leonard were tried before a jury and
convicted of conspiracy to commit wire fraud and wire fraud in August,
1996.        They appeal their convictions.              We affirm the judgment of the
                     2
district court.


                                                I.
        On June 3, 1996, a federal grand jury returned an 11-count indictment
charging Slaughter, Leonard, and Willie Stafford with conspiracy                         to
commit       wire   fraud   and    wire   fraud.      See 18 U.S.C. §§ 371 and 1343.    The
indictment charged Slaughter, Leonard, and Stafford3 with conspiring with
others to defraud their employer, Ford Motor Company, by submitting
fraudulent overtime claims.            According to the indictment, Howard McDaniels,
a superintendent at the Ford plant in Claycomo, Missouri, submitted
fraudulent overtime claims on behalf of Slaughter, Leonard, and others.


        Trial commenced August 12, 1996.               McDaniels, who pleaded guilty to
an earlier indictment concerning the same fraudulent                scheme, testified at
Slaughter's and Leonard's trial.            According to McDaniels, he initiated the
scheme in early 1993.            He approached Ford employees and offered to adjust
their       overtime     hours    in   return    for    cash   kickbacks.    As   a    Ford
superintendent, McDaniels could enter the company’s computer system and
adjust employee hours throughout the Ford plant.                Using this scheme, false
payroll information was transmitted by interstate wire from the Claycomo
plant to Ford's headquarters in Dearborn, Michigan.                   After a period of
time, McDaniels asked Herman Moore, another Ford employee, to provide names
and social security numbers of other employees who would participate in the
scheme.       Moore did so, collecting




        2
     The Honorable D. Brook Bartlett, United States District Judge
for the Western District of Missouri.
        3
            Stafford was acquitted at trial.

                                                -2-
kickbacks    from    the   employees    he    recruited   and   giving    the    money    to
McDaniels.


        McDaniels    testified     to   entering    fraudulent      overtime    for     both
Slaughter and Leonard.        McDaniels stated he dealt directly with Leonard,
while Moore recruited Slaughter.              Evidence showed that Slaughter knew
McDaniels was inputting the false overtime claims.                  McDaniels testified
Slaughter told him he knew McDaniels was putting money on his check, but
"he wouldn't tell on the scheme."


        During the trial, the government learned McDaniels had perjured
himself.     McDaniels falsely denied entering fraudulent overtime for two
additional Ford employees.          After discovering his false testimony, the
government recalled McDaniels, who admitted his perjury.                 Defense counsel
were then permitted to reopen McDaniels’ cross-examination.


        Moore also testified at trial.        He related how he recruited Slaughter
to participate in the overtime scheme.                Other witnesses corroborated
Slaughter's involvement.       Ronald Sheppard, a Ford employee who participated
in the overtime scheme, testified that Slaughter asked him about getting
paid for overtime he had not worked.                John Cartwright, another Ford
employee involved in the scheme, testified he asked Moore who else was
participating.       Moore gave him a number of names, including Slaughter's.


        In January, 1994, Ford began investigating the scheme.             Investigator
Scott    Laing   interviewed     Slaughter     on   February    9   or   10,    1994,    and
interviewed Leonard on February 10, 1994.           Slaughter told Laing he noticed
receiving too much money on one check, but stated he reported this to his
union committeeman.        Slaughter also told Laing he had worked one weekend
for which he received overtime pay, but he denied having received overtime
pay for another weekend when Ford’s records showed he received extra
compensation.       Leonard told




                                             -3-
Laing he had worked the weekends for which he received overtime pay.


     Slaughter and Leonard both testified at trial.    Slaughter said he did
not notice having been paid overtime for any week but one, and stated he
reported that overpayment to his union committeeman.   Leonard stated he had
also noticed receiving overtime pay for one weekend, but did not realize
he received overtime pay for any other period.


     During jury deliberations, the jury sent the court a question
concerning the conspiracy instruction.   The jury had been instructed that
to find defendants guilty of conspiracy, it needed to find:

     FIRST, that . . . two or more persons reached an agreement or
     came to an understanding to commit wire fraud . . . ;

     SECOND, that [defendants] knowingly and intentionally joined in
     the agreement or understanding to commit wire fraud . . . ;

     THIRD, that at the time [defendants] joined in the agreement or
     understanding, [they] knew that the purpose of the agreement or
     understanding was to submit false overtime information with the
     intent that Ford pay for the false overtime; and

     FOURTH, that while the agreement or understanding was in
     effect, a person or persons may have joined the agreement and
     knowingly caused the false payroll information to be
     transmitted from the Ford plant at Claycomo to Ford
     headquarters in Dearborn, Michigan.

     The jury asked whether defendants, to be found guilty of conspiracy,
needed to know that the falsified data was transmitted to Michigan by wire.
The jury further asked whether defendants also needed to know that the
scheme violated federal law.




                                   -4-
     The court responded to the jury's questions by submitting a new
instruction, which stated:

     FIRST, that . . . two or more persons reached an agreement or
     came to an understanding to submit false overtime information
     to Ford with the intent that Ford pay for the false overtime .
     . . ;

     SECOND, that [defendants] knowingly and intentionally joined in
     the agreement or understanding to submit false overtime
     information to Ford with the intent that Ford pay for the false
     overtime information . . . ;

     THIRD, that at the time [defendants] joined in the agreement or
     understanding, [they] knew that the purpose of the agreement or
     understanding was to submit false overtime information with the
     intent that Ford pay for the false overtime;

     FOURTH, in order to carry out the agreement or understanding,
     it is reasonably foreseeable by someone participating in the
     agreement that the false payroll information would be
     transmitted by electronic transmission from the Ford plant in
     Claycomo to Ford headquarters in Dearborn, Michigan . . . ; and

     FIFTH, that interstate wire communications were used in
     transmitting the false overtime information to Ford Motor
     Company to Dearborn, Michigan.

Defense counsel objected to the new instruction and suggested they would
need to reargue the case to address the instruction, but made no formal
motion for reargument.


     On August 22, 1996, the jury returned its verdict, finding Slaughter
guilty of three of four wire fraud counts and conspiracy to commit wire
fraud.   The jury found Leonard guilty of six of seven wire fraud counts and
conspiracy to commit wire fraud.


                                    II.
                                     A.
     Slaughter appeals his conviction.     He argues: (1) the evidence was
insufficient to support the jury's verdict; (2) the court erred in
submitting the amended conspiracy instruction; and (3) the




                                    -5-
indictment should have been dismissed for failure to plead materiality.


                                       1.
     Evidence is sufficient to sustain a conviction if, when viewed in the
light most favorable to the government, it offers substantial support for
the verdict.     Glasser v. United States, 315 U.S. 60, 80 (1942); United
States v. Marin-Cifuentes, 866 F.2d 988, 992 (8th Cir. 1989).         It is
axiomatic that we do not “pass upon the credibility of witnesses or the
weight to be given their testimony.”    United States v. Witschner, 624 F.2d
840, 843 (8th Cir. 1980) (citing Stanley v. Henderson, 597 F.2d 651, 653
(8th Cir. 1979)).


     Slaughter argues there was insufficient evidence from which to find
he knowingly and intentionally participated in a scheme to defraud Ford
Motor Company, or that he violated any known legal duty.      He points out
that, because of his variable work schedule, his paychecks varied from week
to week.   Slaughter claims the only witnesses whose testimony tied him to
the scheme were participants themselves.    He challenges the credibility of
these witnesses because they bargained with the government in exchange for
their testimony.    This argument was initially directed to the jury, which
rejected it at trial.      We decline to revisit the jury’s credibility
determination.


     To prove a conspiracy, the government must show that two or more
people agreed to commit an offense, and that at least one conspirator acted
to achieve the agreement's illegal purpose.     United States v. Hoelscher,
764 F.2d 491, 494 (8th Cir. 1985).      The government must prove, beyond a
reasonable doubt, that the defendant knew the essential object of the
conspiracy.    Henderson v. United States, 815 F.2d 1189, 191-92 (8th Cir.
1987).     To prove wire fraud, the government must show the defendant
voluntarily joined a scheme to defraud another out of money, that he did
so




                                    -6-
with intent to defraud, that it was reasonably foreseeable interstate wire
communications would be used, and that interstate wire communications were
used.     United States v. Proffit, 49 F.3d 404, 406 n.1 (8th Cir. 1995);
Atlas Pile Driving Co. v. DiCon Fin. Co., 886 F.2d 986, 991 (8th Cir.
1989).


        Here, McDaniels testified that Slaughter told him he could be trusted
not to "tell on the scheme."    Moore testified he recruited Slaughter into
the scheme.      Other conspirators related conversations with Slaughter
showing Slaughter’s knowledge of, and participation in, the scheme.   Ford’s
investigator told of Slaughter’s claim that he reported an overpayment to
his union committeeman, Tom Lawrenson.     Lawrenson, however, denied having
any such conversation.    This evidence, viewed in the light most favorable
to the government, shows Slaughter's knowledge of the scheme and its
purpose, and his agreement to participate.


        In reaching its verdict, the jury clearly credited the testimony of
the government's witnesses.    That some of these witnesses were members of
the scheme does not undermine the verdict.    Witschner, 624 F.2d at 843; see
also United States v. Cunningham, 83 F.3d 218, 222 (8th Cir. 1996).
Certainly, whether a witness has a plea agreement with the government, and
whether a witness will receive a sentence reduction in exchange for his
testimony, is relevant in assessing the witness's credibility.        United
States v. Roan Eagle, 867 F.2d 436, 443-44 (8th Cir. 1989).        The jury,
however, is always the ultimate arbiter of a witness's credibility, and
this Court will not disturb the jury's findings in this regard.   Witschner,
624 F.2d at 843.     As such, we reject Slaughter's claim of insufficient
evidence.



                                      2.
        Both Slaughter and Leonard challenge the district court's amended
conspiracy instruction.     They claim the instruction




                                     -7-
constructively amended the indictment.        In particular, they claim the
instruction improperly converted the case into one of conspiracy to submit
false information, while the indictment charged conspiracy to commit wire
fraud.   We disagree.


       A jury instruction constructively amends the indictment if the
instruction "modif[ies] the essential elements of the offense charged so
that a substantial likelihood exists that the defendant was convicted of
an offense other than that charged in the indictment."         United States v.
Johnson, 934 F.2d 936, 941 (8th Cir. 1991).       We find no such constructive
amendment in this case, because the revised instruction did not modify the
essential elements of the crime charged in the indictment.


       The district court’s revised instruction required a finding that two
or more people agreed to submit false overtime information to Ford,
intending that Ford pay money based on the false information.         A finding
that two or more people agreed to submit false overtime information
necessitates a finding that two or more people agreed to defraud Ford.        The
jury was told it must find defendants knowingly and intentionally joined
this   agreement, knowing its purpose.        This requires a finding that
defendants joined the agreement knowing its purpose was to defraud Ford.
Finally, the instruction told the jury it must find this false information
was transferred by interstate wire, and that the use of this communication
method   was   reasonably   foreseeable.     We   find   the   district   court’s
instruction fairly tracks the elements of the indictment’s charges of
conspiracy to commit wire fraud.


       Slaughter further argues the revised instruction misstates Eighth
Circuit law, because it required the jury to find it reasonably foreseeable
that interstate wire communications would be used to effectuate the
conspiracy.    Slaughter asserts the conspiracy must have contemplated the
use of interstate wire.     As we set out above, the government needed to show
only that the use




                                      -8-
of interstate wire was reasonably foreseeable.     See Proffit, 49 F.3d at 406
n.1; Atlas Pile Driving Co., 886 F.2d at 991.


       Slaughter also argues the district court denied reargument following
the court’s reply to the jury, thus prejudicing his defense and violating
Rule   30   of the Federal Rules of Criminal Procedure.          His argument
necessarily fails; as we have determined above, the instruction neither
amended nor added a new element to the indictment’s charge.           As such,
reargument was not required.     See   United States v. Fontenot, 14 F.3d 1364,
1368 (9th Cir. 1994) ("A supplemental instruction which merely clarifies
an existing theory does not mandate additional arguments.").


       Finally, Slaughter argues the district court's response to the jury
was premature.    We disagree.   A district court is afforded broad discretion
in responding to a jury’s requests for supplemental instruction.        United
States v. Felici, 54 F.3d 504, 507 (8th Cir. 1995), cert. denied, 116 S.
Ct. 251 (1995).     The district court’s reply fell well within its broad
discretion.    We find no error in the instruction or its timing.


                                        3.
       Finally, Slaughter argues that the district court erred in denying
his motion to dismiss the indictment for failure to plead materiality.
This argument is without merit.        We join our sister court in the Tenth
Circuit in finding that "materiality is not a separate essential element
of wire fraud."     United States v. Daily, 921 F.2d 994, 1006 (10th Cir.
1990); cf. United Healthcare Corp. v. American Trade Ins. Co., 88 F.3d 563,
571 n.5 (8th Cir. 1996) ("[I]t is well settled that . . . a showing [of
detrimental reliance] is not required to prove . . . wire fraud."). The
district court correctly denied Slaughter's motion to dismiss.


                                        B.




                                       -9-
     Leonard also appeals his conviction.     He argues: (1) the indictment
alleged a single conspiracy, when the trial evidence proved multiple
conspiracies; (2) the government knew, or should have known, McDaniels'
testimony was perjured; (3) the court erred in its reply to the jury’s
question concerning the conspiracy instruction; and (4) cumulative errors
at trial denied him his right to a fair trial and due process.


                                    1.
     Leonard contends the evidence at trial proved multiple conspiracies,
rather than the single conspiracy with which he was charged.       He argues
this caused a variance and urges that the variance is fatal to the verdict.
Leonard’s argument, however, is unavailing.


     It is a question of fact for the jury whether the government has
shown a single conspiracy or multiple conspiracies.       United States v.
Morales, 113 F.3d 116, 118-19 (8th Cir. 1997); see also 2 Devitt, Blackmar
and O'Malley, Federal Jury Practice and Instructions § 28.09, at 179-80
(4th ed. 1990) (instruction on single or multiple conspiracies).    Notably,
neither defendant requested a multiple conspiracy instruction, nor did they
object to the initial conspiracy instruction.    Under these circumstances,
it is problematic whether this issue is properly before us.   United States
v. Merritt, 982 F.2d 305, 306-07 (8th Cir. 1992) ("This court will not
consider an issue raised for the first time on appeal absent a showing of
plain error resulting in a miscarriage of justice."); see also Fed. R.
Crim. P. 52(b).    Here, we find there was no plain error because the
evidence revealed only a single conspiracy.


     A single conspiracy involves individuals "sharing common purposes or
objectives under one general agreement."      Morales, 113 F.3d at 118-19
(quotations omitted).   Thus, if the evidence shows "one overall agreement
to commit an illegal act," the evidence




                                   -10-
reveals a single conspiracy.   Id. at 119 (quoting United States v. Regan,
940 F.2d 1134, 1135 (8th Cir. 1991)).   A jury may find an overall agreement
when the participants in the conspiracy share a common aim or purpose, and
enjoy mutual dependence and assistance.    Id.


       If the indictment charges a single conspiracy, but the evidence shows
multiple conspiracies, a variance exists.        Id.   To determine whether a
variance exists, "we consider the totality of the circumstances, including
the nature of the activities, the location and time frame in which the
activities were performed, and the participants involved."       Id.


       Viewing the evidence in the light most favorable to the verdict, we
find this was a single, “hub and spokes” conspiracy.     In such a conspiracy,
"the hub constitut[es] the central figure, the spokes form[] its various
branches and ramifications, and all [are] held together by the rim, which
represents the agreement."   Hayes v. United States, 329 F.2d 209, 214 (8th
Cir. 1964) (quotations omitted).   Here, McDaniels was the conspiracy's hub,
and its spokes were the employees who benefitted from the false overtime
submissions, and thereafter divided their ill-gotten overtime payments with
McDaniels or his agent, Moore.


       Neither the law, nor logic, requires that all of the conspirators
know each other or the full extent of the conspiracy’s reach.      See id. at
213 ("To unite [conspirators] in a single conspiracy it is only necessary
that   the activities of each individual or group be directed toward
accomplishing a single criminal objective.") (quotations omitted).     Indeed,
a single conspiracy exists even where the members of the conspiracy
undertake to commit several crimes, so long as there is a single agreement.
See id. ("If there is but one agreement, there is but one conspiracy.").




                                    -11-
     Even adopting Leonard's view that the evidence revealed multiple
conspiracies, a view we decline to adopt, his argument fails.               We need not
reverse a conviction merely because of a variance.                  "Rather, we must
reverse [for variance] only when a 'spillover' of evidence from one
conspiracy to another has prejudiced a defendant's substantial rights."
Morales, 113 F.3d at 119.         Here, Leonard has not shown or argued any
“spillover” occurred, nor have we found any which could have acted to his
prejudice.


     The     government   did   not   allege   or   attempt    to   show   Leonard   was
connected to any other conspiracy.       See id.    No one suggested Leonard acted
to further anyone's interests beyond his own.           The conspiratorial events
were straightforward:      McDaniels entered fraudulent overtime hours for a
limited number of Ford employees.       See United States v. Jones, 880 F.2d 55,
66 (8th Cir. 1989) ("[T]his case did not involve so many conspirators and
conspiracies that a jury could not be expected to give separate and
individual consideration to the evidence against each defendant.").                  The
government presented sufficient evidence against Leonard to leave us no
concern    that the jury's verdict was based on evidence of unrelated
conspiracies.4     See Morales, 113 F.3d at 120.              Accordingly, we reject
Leonard's variance claim.


                                         2.
     Leonard's second argument, that he was prejudiced by McDaniels’
perjured testimony, is without merit.          To prevail on this claim, Leonard
must show the government used perjured testimony that it knew or should
have known was perjured.        United States v. Perkins, 94 F.3d 429, 432-33
(8th Cir. 1996), cert. denied, 117 S. Ct. 1004 (1997).                     Leonard must
further show a




     4
      This determination is bolstered by the jury's acquittal of
Leonard's co-defendant, Willie Stafford, and by its acquittal of
Leonard on Count 2 and Slaughter on Count 7.

                                        -12-
"reasonable likelihood" that the perjured testimony could have affected the
jury's judgment.   Id.


     Here, we need not even examine whether the government knew or should
have known the testimony at issue was perjured, as we find no likelihood
it could have affected the jury's judgment.     McDaniels’ testimony that he
did not enter fraudulent overtime for two unindicted Ford employees had no
bearing on whether he entered fraudulent overtime for Leonard, among
others.     On discovering the perjury, the government immediately and
properly advised the court and defense counsel.      McDaniels was recalled,
admitted his falsehoods, and was subjected to cross-examination concerning
his willingness to give false testimony under oath.      The jury knew full
well that McDaniels had lied.   We cannot fathom how Leonard could have been
prejudiced by having the government's star witness shown as a self-
confessed perjurer.   Accordingly, we reject this claim.


                                      3.
     Our discussion concerning the propriety of the revised conspiracy
instruction disposes of Leonard's claims in this regard.        See supra §
II(A)(2).


                                      4.
     Finally, based on our prior determinations, we reject Leonard's claim
that cumulative errors denied him a fair trial or due process.


                                     III.
     The judgment of the district court is affirmed.


HEANEY, Circuit Judge, concurring.


     I concur in the result reached by the majority because neither
defendant requested a multiple-conspiracy instruction nor did they object
to the initial conspiracy instruction.      Thus, in my view,




                                    -13-
the issue is not properly before us, and there has been no showing that a
miscarriage of justice results from an affirmance.


     A true copy.


           Attest:


                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                  -14-
