US v. Seidman

Affirmed by published opinion. Judge Williams wrote the opinion.

Judge Michael wrote a separate opinion concurring in parts I, II and

IV and the judgment. Senior Judge Kiser wrote a separate opinion

concurring in part and dissenting in part.

_________________________________________________________________

COUNSEL

ARGUED: Mark J. Biros, PROSKAUER ROSE, L.L.P., Washing-

ton, D.C., for Appellant. Ira Lee Oring, Assistant United States Attor-

ney, Baltimore, Maryland, for Appellee. ON BRIEF: Alec W. Farr,

PROSKAUER ROSE, L.L.P., Washington, D.C., for Appellant.

Lynne A. Battaglia, United States Attorney, Baltimore, Maryland, for

Appellee.

_________________________________________________________________

OPINION

WILLIAMS, Circuit Judge:

Harry Seidman was convicted on September 26, 1997, on one

count of conspiracy to embezzle funds from a labor union, see 18

U.S.C.A. § 371 (West Supp. 1998) and 29 U.S.C.A. § 501(c) (West

1985), and on twelve counts of embezzlement from a labor union, see

29 U.S.C.A. § 501(c) (West 1985), or aiding and abetting the same,

see 18 U.S.C.A. § 2 (West 1969). The district court sentenced Seid-

man to thirty-nine months imprisonment on each count, the sentences

to run concurrently, and imposed a fine of $30,000. Seidman appeals

his convictions on two grounds: (1) that the district court erred in

denying his motion to suppress a tape-recorded conversation; and (2)

that the district court's instructions on 18 U.S.C.A. § 2 were

improper. Because we conclude that the district court properly denied

the suppression motion and correctly instructed the jury on aiding and

abetting, we affirm Seidman's convictions.

I.

Seidman was employed by the International Organization of Mas-

ters, Mates, and Pilots (the Union), a labor union headquartered in

Linthicum, Maryland, 1 from the 1950s until December of 1993. Seid-

man eventually became the Comptroller for the Union. His responsi-

bilities as Comptroller included paying the Union's bills,

administering the Union office on a day-to-day basis, and obtaining

annual financial audits. Seidman was personally authorized to sign

checks on the Union's behalf. Although the Secretary/Treasurer,

James T. Hopkins, Jr., was the chief financial officer of the Union, a

_________________________________________________________________

1 During some of the relevant events underlying this action, the Union

office was located in New York City. The Union office was moved to

Maryland sometime in 1984 or 1985.

major portion of the Secretary/Treasurer's time was devoted to han-

dling contract grievances for Union members. The Secre-

tary/Treasurer did not review invoices submitted to the Union or

checks signed by Seidman on behalf of the Union.

When Timothy Brown became President of the Union in April of

1991, the Union was in poor financial condition. In 1992, Seidman

informed Brown that Seidman had cashed the last of the Union's cash

reserves which had been held in million dollar certificates of deposit.

Approximately five to six percent of the Union's total expenditures,

or $30,000 a month, were incurred by the Union-published monthly

newspaper. In the fall of 1992, Brown decided to print the newspaper

on a bimonthly basis to reduce costs.

Ronald Schoop was an independent contractor who provided print-

ing services to the Union through the corporate entity "Mercury

Graphics" from approximately 1978 to October 1993. Initially,

Schoop provided general printing services, including business cards,

envelopes, and wall calendars. During 1985, Schoop began printing

the Union newspaper. In October of 1993, Schoop briefly became an

employee of the Union until his resignation in December of 1993

when a scheme of embezzlement between Seidman and Schoop was

discovered. 2 Schoop had an office located in the Union headquarters,

but no printing services were actually performed at the Union office.

To obtain payment for his printing services, Schoop submitted bills

to the Union which were paid by Seidman. In late May of 1993, Bev-

erly Gutmann, the Union's Assistant Comptroller, informed Brown

that there had been a potential double billing for the Union newspa-

per. Brown questioned Seidman about the possible double billing, and

Seidman responded that the additional charges were for editorial

changes that Brown had made in a recent issue of the paper. Brown

did not question Seidman's answer because he had substantially

rewritten large sections of that edition of the paper.

When Brown later inquired about the expenses associated with pro-

ducing the newspaper during the summer of 1993, Seidman

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responded that the cost of the newspaper had not decreased even

though the paper was being published bimonthly instead of monthly.

Brown was not satisfied with Seidman's explanation of the expenses

associated with publishing the newspaper. He became even more

suspicious in November of 1993 when Gutmann approached him

again about double charges for Schoop's printing services for the

December 1992/January 1993, February/March 1993, and May/June

1993 editions of the Union newspaper. Gutmann told Brown that she

believed Seidman and Schoop were embezzling funds from the

Union.

Because of these mounting suspicions of financial impropriety,

Brown hired an outside forensic auditor, Gunther Borris, to perform

an audit. On December 24, 1993, Borris met Brown and Hopkins, the

Secretary/Treasurer, at the Union office. Borris spent the entire day

reviewing the Union's financial records, particularly the potential

double billings for the Union newspaper. As a result of Borris' inves-

tigation, Brown learned for the first time that checks had been issued

to Ronald Schoop personally for invoices submitted by Mercury

Graphics and that 1099 forms had not been issued to Schoop.³ Borris

also confirmed that there had been at least two double billings for the

Union newspaper.

On December 28, 1993, Borris submitted his financial report at a

meeting of the International Subcommittee, a group of five individu-

als charged with managing the affairs of the Union during time peri-

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3 Persons engaged in a trade or business who make payments of more

than $600 annually to an individual of "rent, salaries, wages, premiums,

annuities, compensations, remunerations, emoluments, or other fixed or

determinable gains, profits, and income" are required to make informa-

tional returns, commonly referred to as "1099 forms" to the Secretary of

the Internal Revenue Service setting forth the amount of the income. See

26 U.S.C.A. § 6041(a) (West Supp. 1998). Beverly Gutmann testified at

trial that the Union typically accounted for payments made to individuals

other than salaried employees by the issuance of 1099 forms. Gutmann

further testified that Seidman instructed Gutmann not to issue a 1099

form for Schoop for the money paid to him personally. John Gorman,

who succeeded Seidman as Comptroller for the Union, testified that upon

learning that no 1099 forms had been issued to Schoop, they were then

issued and filed with the IRS.

ods between meetings of the General Executive Board. During the

meeting, Seidman and Schoop were questioned about the allegations

of double billings. As a result of Borris' audit and the December 28

meeting, the Subcommittee asked Seidman for his resignation. Seid-

man signed a resignation letter on December 28, 1993. Ronald

Schoop, who was at that time a salaried employee of the Union,

resigned one day later.

In March of 1995, Schoop confessed to agents of the Department

of Labor's Office of Labor Racketeering to conspiring with Seidman

to embezzle funds from the Union and agreed to participate as a gov-

ernment informant. In that capacity, Schoop made two recorded tele-

phone calls to Seidman, on March 9, 1995, and March 21, 1995.

Schoop agreed to go to Seidman's residence wearing an electronic

recording device and record a conversation with Seidman on May 23,

1995. Upon arriving at Seidman's residence, Schoop knocked on

Seidman's door approximately ninety times. When he received no

answer, Schoop opened the unlocked door and saw Seidman in the

hallway near the door. When Schoop asked Seidman what he was

doing, Seidman responded that he had been riding his exercise bicycle

in the basement and closed the door to the basement, as if he had just

come upstairs. Seidman led Schoop to the kitchen where the two pro-

ceeded to have a conversation for the next forty-five minutes. 4

(Text continued on page 7)

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4 The tape-recorded conversation between Seidman and Schoop related

to Schoop's tax dilemma, Union business, and Schoop's and Seidman's

personal lives. Although Seidman did not explicitly confess to participa-

tion in a scheme to embezzle funds from the Union, his responses to

Schoop's questions, and his failure to respond in some instances, sup-

ported and corroborated the testimony of the government's witnesses and

the government's documentary evidence. The contents of the taped con-

versation in pertinent part follow:

Schoop: Well, this is your problem too. Are you going to help me? Seidman: I wish -- I don't know. All I can tell you is in fact, tell Jeff [referring to Schoop's accountant]. Schoop: If I told Jeff everything, then it would incriminate you and me. Seidman: I would give them this and tell him,"Do what you have to." --

5

Schoop: I don't know. -- I'm sick, Harry. Seidman: I understand that. -- Believe me, I understand that. . . . Schoop: What do you want me to tell them? Seidman: I received these ten [..] [referring to 1099 forms], "Here's a letter" -- Schoop: No, no, no, I'm talking about when the Feds come back `cause I'm sure they will. Seidman: Tell them the truth. -- Schoop: Tell them the truth? I mean, both of us are in trouble . . .

(J.A. at 97.)

Schoop: Well, whatever it is on this thing here, I expect you to pay for it `cause I ain't gonna to pay for it. I don't have it to begin with. If I had it, bub, I'd do it. I'd pay it. But I don't have it. I've been putting this off and putting it off. Every day I look at it, and I get sick. . . . Schoop: I counted it up. I gave you almost a million dollars. Do you know that? And you're living over here. (Laughing.) . . . Schoop: What are you going to do? Are you going to stay here? Schoop: You don't know? Schoop: Huh? Seidman: I don't -- I'm not sure what my plans are in the future.

(J.A. at 105.)

Schoop: You know, you tell me to tell the truth. I tell the truth to them, both of us are in trouble. Is that what you want me to do?

6

II.

On May 14, 1996, Seidman was charged in a thirteen count indict-

ment with one count of conspiracy to embezzle funds from a labor

union and twelve counts of embezzlement from a labor union or aid-

ing and abetting the same. The indictment alleged that Seidman con-

spired with Schoop from approximately 1987 to July 1993 to

embezzle approximately $800,000 in a complicated kickback scheme

by "directing" or "causing" Schoop to submit fraudulent invoices for

services from Mercury Graphics and other corporate entities.

A two-week trial was held in September of 1996. Schoop testified

that he and Seidman participated in a kickback scheme. 5 Schoop testi-

fied that he submitted fraudulent invoices to the Union from his cor-

poration, Mercury Graphics, and that Seidman issued checks on the

Union's checking account to Schoop personally. 6 Schoop explained

_________________________________________________________________

Seidman: Tell the truth.

(J.A. at 110.)

Schoop: Yeah, send it to him, but there's no record that, ah, you know -- how in the hell can I prove that I gave you the money? I can't do it. . . . Seidman: But any liability may not be as high as you think it is. . . . My guess is you're going to work it out with the IRS. Schoop: It's a lot of money, Harry. That bullshit thing you gave me with the two-sixty-five doesn't even come nowhere near it.

(J.A. at 116-17.)

5 Schoop pleaded guilty to conspiracy to embezzle funds from the

Union. Schoop received a two-level downward departure under the U.S.

Sentencing Guidelines as a result of his willingness to testify at Seid-

man's trial.

6 Schoop "broke down" his bills for printing into legitimate invoices for

the cost of the actual printing services provided by his corporation, Mer-

that he cashed the checks and gave approximately eighty percent of

the proceeds to Seidman. Schoop also testified that he gave Seidman

and his family gifts and made payments for expenses incurred by

Seidman and his family. The Government contended that the gifts and

payments were part of the kickback scheme.

Seidman's version of events was that he received gifts and pay-

ments from Schoop because he and Schoop were close friends for

many years. Seidman also claimed that Schoop gave him cash to be

held in trust for Schoop's son because Schoop was addicted to gam-

bling and alcohol. In a letter to Schoop dated March 21, 1994, Seid-

man stated that he was returning the money to Schoop because

Seidman had retired from the Union: "I am returning to you all the

assets you entrusted to me, including all interest earned thereon."

(J.A. at 1046.) In conjunction with the letter, Seidman gave Schoop

a check for $265,000.00. At Seidman's request, Schoop signed the

March 21 letter. Schoop also accepted and cashed the check for

$265,000.00. Schoop testified at trial, however, that he was shocked

when Seidman gave him the money and that he had never asked Seid-

man to hold any money in trust for him.

The jury found Seidman guilty on all thirteen counts of the indict-

ment. Seidman appeals his conviction, arguing that the district court

erred in denying his motion to suppress the tape-recorded conversa-

tion and that a portion of the district court's jury instructions consti-

tuted reversible error. We address each argument in turn.

_________________________________________________________________

cury Graphics, and fraudulent invoices for "typesetting" services that he

never performed. In accordance with the invoices, checks for the legiti-

mate services were made payable to Mercury Graphics, while the checks

for typesetting were made payable to Schoop personally. Schoop cashed

the checks made payable to him personally for typesetting services and

provided most of the cash to Seidman.

Schoop also submitted duplicative invoices for printing services for

the newspaper and other items, such as the Union constitution. For exam-

ple, Schoop submitted two invoices in February of 1993 (one for printing

and one for typesetting) for the February/March issue of the newspaper.

Schoop then submitted duplicate invoices in March of 1993 for the same

issue.

III.

On appeal, Seidman first claims that Schoop, acting as a govern-

ment agent, entered his home illegally. As a result, Seidman contends

that the recorded conversation obtained by Schoop was the tainted

fruit of the illegal entry and should have been suppressed. Even

assuming, without deciding, that there was an illegal entry, we con-

clude that the ensuing conversation between Seidman and Schoop

was sufficiently independent of the unlawful invasion to purge any

taint arising from the initial entry. Therefore, we hold that the district

court did not err in denying Seidman's motion to suppress.

We review legal conclusions made pursuant to a district court's

suppression determination de novo, but review the underlying factual

findings for clear error. See United States v. McDonald, 61 F.3d 248,

254 (4th Cir. 1995). We construe the evidence in the light most favor-

able to the Government, the prevailing party below. See United States

v. Elie, 111 F.3d 1135, 1140 (4th Cir. 1997) (citing United States v.

Han, 74 F.3d 537, 540 (4th Cir.), cert. denied, 517 U.S. 1239 (1996)).

The Fourth Amendment protects the "right of the people to be

secure in their persons, houses, papers, and effects, against unreason-

able searches and seizures" by the government or its agents. U.S.

Const. amend. IV; see also United States v. Jacobsen, 466 U.S. 109,

113 (1984). During the suppression hearing on August 30, 1996, the

Government conceded that Schoop was acting as a government agent

when he went to Seidman's home. 7 Thus, Schoop's conduct violated

the Fourth Amendment if it constituted an unreasonable search or sei-

zure. See Jacobsen, 466 U.S. at 113; United States v. Taylor, 90 F.3d

903, 908 (4th Cir. 1996). "A `search' occurs when an expectation of

privacy that society is prepared to consider reasonable is infringed."

Jacobsen, 466 U.S. at 113. It is well established that a search con-

ducted without a warrant is "per se unreasonable under the Fourth

Amendment -- subject only to a few specifically established and

_________________________________________________________________

7 Although we are not bound by the Government's concession, see

United States v. Stanfield, 109 F.3d 976, 984 n.5 (4th Cir.), cert. denied,

118 S. Ct. 156 (1997), we agree that the evidence demonstrated that

Schoop was acting as a government informant when he went to Seid-

man's home.

well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357

(1967); see also Wilson v. Layne, 1998 WL 159673 (4th Cir. April 8,

1998) (en banc) (noting that entry into a home without a warrant is

per se unreasonable unless an exception to the warrant requirement

exists). The district court concluded that Schoop's action of opening

Seidman's unlocked door and stepping inside, without a warrant, was

an unreasonable infringement on Seidman's privacy and thus consti-

tuted a search in violation of the Fourth Amendment.

The district court, nevertheless, denied Seidman's motion to sup-

press the recorded conversation. The district court concluded that it

was irrelevant whether Schoop stepped inside Seidman's house with-

out express invitation because Seidman voluntarily consented to the

ensuing conversation. The district court determined that Seidman's

consent to the conversation was manifested by Seidman's attempt to

create the appearance that, out of politeness to Schoop, he had not

heard Schoop's knocks. 8 According to the district court, Seidman also

manifested his consent to the conversation by never asking Schoop to

leave and by speaking to Schoop at length about various topics

including family relations and their personal lives. Moreover, the dis-

trict court noted that Schoop never acted in a threatening or hostile

manner toward Seidman, so Seidman was not coerced into the con-

versation.

"[O]ne of the specifically established exceptions to the require-

ments of both a warrant and probable cause is a search that is con-

ducted pursuant to consent." Schneckloth v. Bustamonte, 412 U.S.

218, 219 (1973). If the Government has committed a constitutional

violation, however, evidence obtained as a result of the violation can-

not be used unless the connection between the unlawful conduct and

the acquisition of the evidence has "become so attenuated as to dissi-

pate the taint." Nardone v. United States, 308 U.S. 338, 341 (1939).

Because the district court concluded that Schoop entered Seidman's

residence in violation of the Fourth Amendment, it was required to

apply a "tainted fruit" analysis to determine whether the taint of the

illegal entry was purged. See Wong Sun v. United States, 371 U.S.

_________________________________________________________________

8 Seidman told Schoop that he had not heard Schoop knocking because

he was in the basement riding his exercise bike. The clear suggestion is

that had Seidman heard the knocking, he would have let Schoop in.

471, 486-88 (1963). The district court erred in simply concluding that

Seidman's subsequent consent rendered the tape-recorded conversa-

tion admissible. Rather, the district court should have determined

whether the taint arising from the unlawful entry was sufficiently

attenuated by the consent. 9

As a general rule, evidence obtained as a result of a Fourth Amend-

ment violation is inadmissible. See id. at 484-85. This broad exclu-

sionary prohibition extends to verbal evidence as well as physical

evidence. See id. In Wong Sun, however, the Supreme Court noted

that an intervening "act of free will [may] purge the primary taint of

the unlawful invasion." Id. at 486. Factors relevant to the inquiry

include: (1) the amount of time between the illegal action and the

acquisition of the evidence; (2) the presence of intervening circum-

stances; and (3) the purpose and flagrancy of the official misconduct.

See Brown v. Illinois, 422 U.S. 590, 603-04 (1975). Nevertheless, "a

finding with respect to attenuation . . . can only be made after consid-

eration of all the circumstances of the case." United States v. Wellins,

654 F.2d 550, 554 (9th Cir. 1981) (citing Schneckloth v. Bustamonte,

412 U.S. 218, 248-49 (1973)). This requires a "careful sifting of the

unique facts and circumstances of each case." Schneckloth 412 U.S.

at 233. Finally, "[t]he burden of showing admissibility rests . . . on

the prosecution." Id. at 604. Although the district court did not engage

in an inquiry as to whether the taint of the illegal entry had been

purged, the district court's factual findings transcribed at the suppres-

sion hearing and the May 23 tape recording are sufficient for us to

make such a determination, so that remand is not necessary. See id.

at 604.

For purposes of this appeal, we will assume, without deciding, that

Schoop's entry into Seidman's home was violative of the Fourth

Amendment. With that having been said, we note that the brief intru-

sion into Seidman's home was at worst a minor and technical inva-

_________________________________________________________________

9 The district court's finding that Seidman consented to the ensuing

conversation with Schoop and that the tape-recorded conversation was

therefore admissible was tantamount to a finding that the taint of the ille-

gal entry was purged. The district court, however, did not explicitly

apply the analysis set forth in Wong Sun v. United States, 371 U.S. 471

(1963), and Brown v. Illinois, 422 U.S. 590 (1975).

sion of Seidman's rights. Indeed, unlike the cases cited by the

concurrence, Seidman was neither arrested without probable cause,

nor involuntarily transported to the police station and interrogated in

the hope that something would turn up. See Taylor v. Alabama, 457

U.S. 687 (1982); Dunaway v. New York, 442 U.S. 200 (1979); Brown

v. Illinois, 422 U.S. 590 (1975); People v. Gonzalez, 75 Cal. Rptr. 2d

272 (Cal. Ct. App. 1998). Nor, for that matter, was Seidman present

when incriminating evidence was found in an illegal search of his

home or confronted by the police with incriminating evidence that

they had illegally seized. In fact, this case lacks the element of overt

police coercion that exists in every case cited by the concurrence. See

Rawlings v. Kentucky, 448 U.S. 98 (1980); Johnson v. Louisiana, 406

U.S. 356 (1972); United States v. Gooding, 695 F.2d 78 (4th Cir.

1982); United States v. Wellins, 654 F.2d 550 (9th Cir. 1981). As a

result, the taint that must be purged here is, at best, slight.

Applying the analysis developed in Wong Sun and its progeny, we

determine that the taint of the illegal entry had been purged, and,

therefore, the tape-recorded conversation of May 23, 1995, was prop-

erly admitted at trial. As to the first factor, we recognize that very lit-

tle time elapsed between Schoop's entry and the conversation

regarding Schoop's tax dilemma. Approximately one minute after he

entered, Schoop stated, "What are we going to do about this, bub?"

(J.A. at 83) referring to his unpaid taxes. Despite the concurrence's

contentions to the contrary, the lack of a significant intervening

period of time does not require that the tape recording in question be

suppressed for want of sufficient attenuation. See United States v.

Rodriguez, 585 F.2d 1234, 1239, 1242 (5th Cir. 1978). Indeed, "the

Brown test does not require that each of the factors set forth be

resolved in favor of the Government." United States v. Wellins, 654

F.2d 550, 554 (9th Cir. 1981). Here, the second and third factors

weigh strongly in favor of admissibility.

As to the second factor, we conclude that Seidman's actions toward

Schoop after Schoop's entry constitute intervening circumstances.

Almost immediately after Schoop entered the home, any taint arising

from Schoop's entry was attenuated by Seidman's consent to the

conversation. 10 Shortly after Schoop opened the door to Seidman's

_________________________________________________________________

10 By focusing on Seidman's subsequent consent to the conversation,

the concurrence suggests that we have "confused the Fifth Amendment

house, Seidman shut the front door behind Schoop, and Seidman

motioned him into the kitchen. These intervening acts indicated Seid-

man's willingness to engage in a conversation with Schoop. More

importantly, shutting the door behind Schoop and motioning him into

the kitchen were independent acts of free will by Seidman. For the

following forty-five minutes, Seidman and Schoop engaged in a con-

versation in Seidman's kitchen, regarding their families, personal

lives, Union business, and Schoop's tax dilemma. Seidman never

asked Schoop to leave.

The third factor also weighs against suppression. As noted above,

the flagrancy and offensiveness of the governmental misconduct in

this case pales in comparison to other cases where evidence has been

held inadmissible on Fourth Amendment grounds. In Wong Sun, six

or seven officers went to the business of James Toy, a man alleged

to have sold heroin, broke open his door, followed him into his bed-

room, and almost immediately handcuffed and arrested him. Wong

Sun, 371 U.S. at 474, 486. The Supreme Court held that Toy's state-

ments to the officers shortly thereafter were inadmissible because it

was unreasonable to infer that the statements were an act of free will

under the circumstances. Id. at 486. Similarly, in Brown, police offi-

cers broke into Brown's apartment and searched it without probable

cause and without a warrant. See Brown, 422 U.S. at 592. Brown was

_________________________________________________________________

voluntariness analysis with Brown's distinct Fourth Amendment attenua-

tion analysis." See post at 22. We disagree. The proper test, which we

have applied, is whether a statement made subsequent to a Fourth

Amendment violation is "sufficiently an act of free will to purge the pri-

mary taint." Brown v. Illinois, 422 U.S. 590, 602 (1975) (citing Wong

Sun v. United States, 371 U.S. 471, 486 (1963)). Consent has often been

recognized as sufficient to waive Fourth Amendment rights. See

Schneckloth v Bustamonte, 412 U.S. 218, 219 (1973). We see no reason

why it could not also sever the connection between an unlawful act and

the acquisition of additional evidence. Indeed, voluntary consent is the

quintessential act of free will. See United States v. Dickson, 64 F.3d 409,

410-11 (8th Cir. 1995) (holding that defendant's independent and volun-

tary consent to search his apartment dissipated taint of prior illegal

search); United States v. Sheppard, 901 F.2d 1230, 1234 (5th Cir. 1990)

(holding that defendant's voluntary consent to search his car dissipated

taint of officer's illegal entry).

returning to his apartment when a police officer pointed a revolver at

him and told him he was under arrest. See id. Brown subsequently

was held at gunpoint and searched. See id. at 593. The degree of coer-

cion resulting from the police officers' illegal acts in Wong Sun and

Brown v. Illinois simply was not present here. According to Seid-

man's own testimony, he and Schoop had been friends for many

years. In fact, Schoop's visit to Seidman's house that day was not

entirely unexpected. In a recorded telephone conversation on March

21, 1995, the two had discussed potentially meeting in person in

Columbia, Maryland, where Seidman resided, instead of Baltimore,

Maryland, where Schoop worked and resided. As the district court

noted, Schoop never made any threats to Seidman or exerted any

force towards him. Seidman now claims on appeal that he did not ask

Schoop to leave because Schoop intimidated him. 11 In a slightly dif-

ferent context, however, we have noted that "[s]ubsequent testimony

by an accused about his prior subjective mental impressions and reac-

tions must be carefully scrutinized, as such testimony is always influ-

enced by [his] self-interest." United States v. Braxton, 112 F.3d 777,

781 (4th Cir.) (en banc) (holding statement to police officers was vol-

untary under the Fifth Amendment in view of totality of circum-

stances) (internal quotation marks omitted), cert. denied, 118 S. Ct.

192 (1997). With the exception of Seidman's own testimony, there is

simply no evidence to suggest that Schoop intimidated Seidman.

_________________________________________________________________

11 Seidman testified at the suppression hearing, however, as follows:

Q. And it wasn't once during the course of this conversation that you asked him to leave? A. That is correct, sir.

(J.A. at 264.)

Q. Did Mr. Schoop threaten you during the course of this con- versation? A. No, sir. Q. Did he shout at you during the course of this conversation? A. No, sir. Q. Did he make a threatening physical motion at you? A. No, sir.

(J.A. at 265-66.)

14

Considering all of the factors set forth by the Supreme Court in

Brown v. Illinois, and the unique circumstances of this case, we con-

clude that the admission of the May 23 tape-recording at trial did not

abridge Seidman's Fourth Amendment guarantee of freedom from an

unreasonable search and seizure. Even though the time span between

the unlawful entry and Seidman's consent was short, we cannot say

that Seidman's statements resulted from the exploitation of the unlaw-

ful entry. Rather, we conclude that the taint arising from the initial

entry was purged by the intervening independent acts of Seidman

shutting the door behind Schoop, motioning Schoop into his kitchen,

and engaging Schoop in conversation for a substantial period of time.

Seidman acted voluntarily, without coercion or threat of force from

Schoop. Therefore, we conclude that the May 23 tape-recording was

properly admitted by the district court.

IV.

Next, Seidman argues that his convictions on Counts two through

thirteen of the indictment must be vacated because the district court's

instructions on 18 U.S.C.A. § 2 (West 1969) were improper. Specifi-

cally, Seidman contends that Schoop, as a matter of law, could not

have been convicted of violating 29 U.S.C.A. § 501(c) (West 1985).

Thus, Seidman claims that the district court erred in instructing the

jury that it could find him guilty under § 2 if it found that he aided

and abetted Schoop in violating § 501(c)."Both the decision to give

(or not to give) a jury instruction and the content of an instruction are

reviewed for abuse of discretion." United States v. Russell, 971 F.2d

1098, 1107 (4th Cir. 1992). If, however, Schoop, as a matter of law,

could not have been convicted of violating § 501(c), the district court

did abuse its discretion in instructing the jury. See Koon v. United

States, 518 U.S. 81, 100 (1996) (noting that"[a] district court by defi-

nition abuses its discretion when it makes an error of law).

Counts two through thirteen of the indictment charged Seidman

with embezzlement from a labor union in violation of 29 U.S.C.A.

§ 501(c) or aiding and abetting the same in violation of 18 U.S.C.A.

§ 2. When a jury has been instructed on two legal theories, one of

which is legally inadequate, the conviction must be reversed if it is

not possible to determine whether the jury convicted on the legally

adequate, or inadequate, theory. See Yates v. United States, 354 U.S.

298, 312 (1957); cf. Griffin v. United States , 502 U.S. 46, 56-60

(1991) (explaining that when a case is submitted to a jury on two ade-

quate legal theories and the jury returns a general verdict of guilty,

affirmance is appropriate so long as the evidence is sufficient to sup-

port a conviction on either theory). Because the jury returned a gen-

eral verdict of guilty, it is not possible to determine whether

Seidman's convictions were based on the theory that he violated 29

U.S.C.A. § 501(c) or on the theory that he violated 18 U.S.C.A. § 2.

Seidman concedes that § 501(c) provides a legally adequate ground

for his convictions. Thus, this case turns on whether § 2 provides a

legally adequate ground for Seidman's convictions.

Section 2 provides:

(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal. (b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.

18 U.S.C.A. § 2. The district court charged the jury that it could find Seidman guilty as a principal under § 2(a) if it found "beyond a rea- sonable doubt that the government has proved that another person actually committed the offense with which the defendant was charged and that the defendant aided or abetted that person in the commission of the offense." As a result, the district court instructed the jury that it must first

find that another person, Mr. Schoop, has committed the crime charged, the embezzlement alleged in the substantive count. Obviously, no one can be convicted of aiding and abetting the criminal acts of another if no crime was com- mitted by the other person in the first place so, therefore, if Mr. Schoop did not commit the embezzlements charged in 2 through 13 then Mr. Seidman could not be convicted of aiding and abetting Mr. Schoop.

(J.A. at 1016.)

The crime charged in the substantive count was 29 U.S.C.A. § 501.

That section provides:

Any person who embezzles, steals, or unlawfully and will- fully abstracts or converts to his own use, or the use of another, any of the moneys, funds, securities, property, or other assets of a labor organization of which he is an officer, or by which he is employed, directly or indirectly, shall be fined not more than $10,000 or imprisoned for not more than five years, or both.

29 U.S.C.A. § 501(c) (emphasis added). Section 501, by its own terms, only applies to persons "employed" by the Union. Seidman claims that Schoop was not an employee of the Union. Accordingly, Seidman contends that Schoop could not have been convicted of vio- lating § 501. Following this line of reasoning (i.e., Schoop could not have been convicted of embezzlement from a labor union), Seidman argues that he could not have been convicted of aiding and abetting embezzlement in violation of 18 U.S.C.A. § 2.

Whether § 2 provides a legally adequate ground for Seidman's con-

victions turns on whether Schoop was employed by the Union within

the meaning of § 501(c). Despite Seidman's contentions to the con-

trary, we conclude that Schoop was so employed during the entire

time period covered by the indictment. 12 An individual has the requi-

site status to be convicted under § 501(c) if"he is employed, directly

or indirectly," by a labor organization. See 29 U.S.C.A. § 501(c). It

was clearly established at trial that Schoop provided printing services

_________________________________________________________________

12 In its brief, the Government has conceded that Schoop was not an

employee of the Union. Notwithstanding the Government's concession,

we may conduct our own review of the issue. See Sibron v. New York,

392 U.S. 40, 58 (1968) (noting that "[i]t is the uniform practice of this

Court to conduct its own examination of the record in cases where the

. . . Government . . . confesses [error]"); Young v. United States, 315 U.S.

257, 258 (1942) (noting that concessions of error do not "relieve this

Court of the performance of the judicial function"); United States v.

Stanfield, 109 F.3d 976, 984 n.5 (4th Cir. 1997) (refusing to reverse

defendant's conviction despite Government's concession of error), cert.

denied, 118 S. Ct. 156 (1997).

to the Union during the entire time period covered by the indictment.

Cf. United States v. Lawton, 995 F.2d 290, 294-95 (D.C. Cir. 1993)

(holding individual could not have embezzled pursuant to § 501(c)

where relationship to International union was not clearly established

at trial). We have little difficulty concluding that a contractor hired to

perform printing services is indirectly employed by the Union. 13 Cf.

United States v. Capanegro, 576 F.2d 973, 976 (2d Cir. 1978) (hold-

ing that an attorney who provided legal services primarily to individ-

ual union members was employed by the union). In so holding, we

recognize that the common law definition of "employee" does not

include independent contractors. See, e.g., Baker v. Texas & Pacific

Ry. Co., 359 U.S. 227 (1959); Rutherford Food Corp. v. McComb,

331 U.S. 722, 728-29 (1947). Indeed, the definition of employee in

29 U.S.C.A. § 152(3) (West 1973) expressly excludes independent

contractors. Here, however, Congress chose not to use the word "em-

ployee" in § 501(c). See Morissette v. United States, 342 U.S. 246,

263 (1952) (noting that when Congress uses a term of art it presum-

ably knows and adopts the meaning attached to the word). Instead,

Congress applied § 501(c) to "any person" who embezzles or steals

from a labor organization "by which he is employed, directly or indi-

rectly." We believe that the aforementioned language is broad enough

to include independent contractors like Schoop. 14

Because we conclude that Schoop could be convicted under

§ 501(c), it necessarily follows that Seidman could also be convicted

_________________________________________________________________

13 It is undisputed that Schoop was a salaried employee of the Union

for three months, from October of 1993 through December of 1993. As

such, Schoop was, at least for a time, directly employed by the Union.

For reasons that are not entirely clear, however, the indictment covered

only acts occurring between 1987 and July of 1993.

14 Even assuming that Schoop was not employed by the Union, Seid-

man could have been convicted as a principal pursuant to 18 U.S.C.

§ 2(b) if he willfully caused Schoop to perform acts which, if directly

performed by Seidman, would be an offense against the United States.

See 18 U.S.C.A. § 2(b) (West 1969). Thus, Seidman is simply incorrect

in arguing that he could not be convicted under§ 2 if Schoop could not

be convicted under 29 U.S.C.A. § 501(c).

under § 2 for aiding and abetting Schoop. Accordingly, we hold that

Seidman's convictions do not require reversal under Yates. 15

V.

We conclude that the district court properly denied Seidman's

motion to suppress the May 23, 1995, conversation at Seidman's resi-

dence. We also conclude that the district court's instruction on aiding

_________________________________________________________________

15 In instructing the jury on the elements of § 501(c), the district court

defined the terms embezzlement, conversion, and theft. Of particular

importance here, the district court instructed the jury that a person can

embezzle funds only if he holds a position of trust. Although we readily

conclude that Schoop was indirectly employed by the Union, we agree

with Seidman that Schoop did not hold a position of trust. As a conse-

quence, Schoop could not have embezzled funds from the Union.

In explaining the elements necessary to convict Seidman of aiding and

abetting pursuant to 18 U.S.C.A. § 2, the district court erroneously stated

that the jury must find that Schoop "committed the crime charged, the

embezzlement alleged in the substantive count." (J.A. at 1016.) (emphasis

added). Of course, a cursory review of the statutory language reveals that

it was not necessary for the jury to find that Schoop embezzled the funds.

The jury could convict Seidman of violating 18 U.S.C.A. § 2 by finding

that Schoop converted or stole the funds. See 28 U.S.C.A. § 501(c) (stat-

ing "[a]ny person who embezzles, steals, or unlawfully and willfully

abstracts or converts to his own use, or the use of another" money or

other assets from a labor union violates § 501(c)). Indeed, the district

court had previously instructed the jury that a person violates § 501 by

either embezzling, stealing, or converting funds. Schoop could not

embezzle funds, but he certainly was capable of stealing or converting

those funds. It is clear, therefore, that the district court simply used "em-

bezzlement" as a short hand for describing all the acts prohibited by

§ 501(c). Although we do not consider the district court's instruction a

model of clarity, we do not find it to be so harmful as to require reversal

of the convictions. See Johnson v. United States , 117 S. Ct. 1544, 1549

(1997) (stating that a misinstruction is "subject to harmless-error analy-

sis"). In particular, we conclude, "beyond a reasonable doubt, that a cor-

rectly instructed jury would have reached the same conclusion." United

States v. Hastings, 134 F.3d 235, 241 (4th Cir. 1998), petition for cert.

filed (U.S. Apr. 14, 1998) (No. 97-8732). The evidence that Schoop stole

money from the labor Union was simply overwhelming.

19

and abetting was proper because Schoop was indirectly employed by

the Union. Accordingly, we affirm Seidman's conviction on all counts. 16

AFFIRMED

MICHAEL, Circuit Judge, concurring in part and concurring in the

judgment:

While I agree with the majority's conclusion that Seidman's con-

viction should be affirmed, I cannot join its reasoning on the admissi-

bility of the tape of the May 23 conversation between Seidman and

Schoop. In holding that tape to be admissible, the majority waters

down the protections of the Fourth Amendment. Schoop pressed his

way into Seidman's home in violation of the Fourth Amendment. In

literally a minute's time Schoop was trying to ensnare Seidman into

admissions of guilt. As a result, Seidman did not have a sufficient

chance to consider his options and exercise his free will, and the taint

of Schoop's unconstitutional entry was never purged. The majority's

conclusion -- that Seidman's nonresistance alone attenuated the taint

of Schoop's illegal entry -- in effect relies on Fifth Amendment vol-

untariness criteria to satisfy the stricter Fourth Amendment require-

ment that the government may not exploit an unconstitutional

incursion to obtain even a "voluntary" statement.

Nevertheless, because the inadmissible tape was merely cumulative

and Seidman's guilt was established beyond a reasonable doubt, I

would find the error to be harmless and affirm Seidman's conviction.

Accordingly, I concur in the judgment, and I concur in parts I, II, and

IV of the majority opinion.

_________________________________________________________________

16 Seidman also claims that because the district court's instruction on

Counts two through thirteen of the Indictment -- the object offenses of

the conspiracy -- was legally inadequate, his conspiracy conviction also

rests upon legally inadequate grounds. Because we find that Seidman's

convictions on the substantive counts of embezzlement in Counts two

through thirteen were proper, we also conclude that Seidman's challenge

to the conspiracy charge in Count one of the indictment fails.

I.

The Fourth Amendment to the Constitution of the United States

forbids government agents from conducting unreasonable searches

and seizures. This prohibition is especially powerful when it comes

to "protect[ing] the physical integrity of the home." United States v.

McCraw, 920 F.2d 224, 230 (4th Cir. 1990) (citations omitted). The

majority recognizes that Schoop was acting as a government agent

when he entered Seidman's home. See ante at 9 n. 7. Also, the major-

ity assumes that by opening Seidman's closed front door and entering

without permission or invitation, Schoop violated the Fourth Amend-

ment. This assumption should be a firm conclusion. Schoop did not

have a search warrant, and he had no legitimate reason to make an

uninvited entry into Seidman's home. Schoop therefore committed a

clear violation of the Fourth Amendment. See United States v.

Thomas, 955 F.2d 207 (4th Cir. 1992) (FBI agents violated Fourth

Amendment by entering defendant's room without permission or war-

rant).

When an agent obtains an incriminating statement on the heels of

a Fourth Amendment violation, the government has a substantial bur-

den in establishing admissibility. It is not enough for the government

to show that the statement was voluntary under the Fifth Amendment.

Rather, the government must also show that the statement was not

obtained by exploitation of the Fourth Amendment violation. See

Brown v. Illinois, 422 U.S. 590, 601 (1975). Because the government

could not meet its burden here, what Seidman said to Schoop on the

May 23 tape should have been excluded at trial.

A.

Even if a confession made by a suspect following a Fourth Amend-

ment violation is completely voluntary, the statement must be

excluded unless the government can show that it was"`sufficiently an

act of free will to purge the primary taint.'" Id. at 602 (quoting Wong

Sun v. United States, 371 U.S. 471, 486 (1963)). This showing is

completely separate from the Fifth Amendment requirement of volun-

tariness, and an otherwise voluntary statement must be excluded if the

taint of the Fourth Amendment violation has not been purged. See

Taylor v. Alabama, 457 U.S. 687, 690 (1982) ("[T]his Court [has]

firmly established that the fact that a confession may be `voluntary'

for purposes of the Fifth Amendment . . . is not by itself sufficient to

purge the taint of an illegal arrest. In this situation, a finding of `vol-

untariness' for purposes of the Fifth Amendment is merely a threshold

requirement for Fourth Amendment analysis" (citing Dunaway v. New

York, 442 U.S. 200, 217 (1979)). The Court has set out three factors

that we must consider in determining whether the taint has been

purged: "[1] [t]he temporal proximity of the [illegal entry] and the

confession, [2] the presence of intervening circumstances and, partic-

ularly, [3] the purpose and flagrancy of the official misconduct."

Brown 422 U.S. at 603-04 (citations and footnotes omitted). In

Brown, because the suspect's statement was separated from his illegal

arrest by less than two hours, there were no significant intervening

events, and the arrest was for an improper purpose (investigation and

questioning), the Court held that the suspect's statement was tainted

by the illegal arrest and therefore inadmissible. See id. at 604-05.

B.

The majority purports to apply the Brown test to the events sur-

rounding the May 23 conversation. As to the first Brown factor (prox-

imity of Fourth Amendment violation to the statement), the majority

recognizes that "very little time" (about a minute) elapsed between

Schoop's entry and his first question to Seidman about wrongdoing.

See ante at 12. The majority would apparently concede, as it must,

that the first Brown factor weighs heavily against the government.

Where the majority goes astray is in its analysis of the second and

third Brown factors. There, the majority has confused the Fifth

Amendment voluntariness analysis with Brown's distinct Fourth

Amendment attenuation analysis.

1.

The second Brown factor focuses on the presence of intervening

circumstances. I cannot accept the majority's position that Seidman's

apparent consent to talk with Schoop, as manifested by his acts of

closing an open front door and motioning Schoop into the kitchen, is

an intervening circumstance that assists in purging Schoop's blatant

Fourth Amendment violation. The majority takes Seidman's acts of

apparent consent, which would be relevant to a Fifth Amendment vol-

untariness inquiry, and attempts to transform them into a Fourth

Amendment "intervening circumstance." See ante at 12 ("[A]ny taint

arising from Schoop's entry was attenuated by Seidman's consent to

the conversation"). This goes completely against the Supreme Court's

consistent teaching that voluntary consent by itself is insufficient to

purge the taint of a Fourth Amendment violation. It is also contrary

to the Court's interpretation of what constitutes an intervening cir-

cumstance in a taint attenuation context.

The inquiry to determine intervening circumstances under the

Fourth Amendment is different from the one to determine voluntari-

ness under the Fifth Amendment. An intervening circumstance (for

Fourth Amendment purposes) is one that "contribute[s] to [the sus-

pect's] ability to consider carefully and objectively his options and to

exercise his free will." Taylor, 457 U.S. at 691. In Taylor the defen-

dant had been illegally arrested without a warrant. In the short period

that followed, the police gave Miranda warnings to Taylor three

times, obtained a written Miranda waiver from him, fingerprinted

him, placed him in a lineup, and permitted him to speak briefly with

his girlfriend and a male companion. The Court weighed all of these

events, and held that not one of them, not even the Miranda waiver,

was an intervening circumstance sufficient to "purge the taint of the

illegal arrest." Id. at 690; see also Dunaway, 442 U.S. at 218-19 (find-

ing no intervening circumstance between defendant's illegal arrest

and subsequent confession, even though he was given Miranda warn-

ings and waived his right to counsel).

By comparison, the Supreme Court has found intervening circum-

stances only when the events were sufficient to break the "causal

chain[ ] between the [Fourth Amendment violation] and the state-

ments made subsequent thereto." Brown, 422 U.S. at 602. Examples

of intervening circumstance sufficient to break that chain include a

hearing before a magistrate judge at which the defendant was advised

of his rights, see Johnson v. Louisiana, 406 U.S. 356, 365 (1972); an

arraignment plus a six-day release from custody, see Wong Sun, 371

U.S. at 491; and the issuance of a valid search warrant that resulted

in the independent discovery of drugs and a spontaneous admission,

see Rawlings v. Kentucky, 448 U.S. 98, 108-09 (1980). See also

United States v. Wellins, 654 F.2d 550, 555 (9th Cir. 1981) (finding

intervening circumstance when defendant was allowed to consult with

his lawyer). When measured against these examples, Seidman's rather

innocuous acts of closing a door and nodding to Schoop are not suffi-

cient to break the causal chain.

Like the Supreme Court, our court has refused to find that the taint

of a Fourth Amendment violation was purged when a suspect did not

have the chance to consider his options rationally and make a free

choice. In United States v. Gooding, 695 F.2d 78 (4th Cir. 1982), the

defendant (Gooding) was stopped illegally by police officers at a bus

stop because they suspected he was carrying drugs. Within minutes

of the illegal stop, the officers asked Gooding for permission to search

his briefcase and flight bag. Gooding assented, opened his briefcase

and bag, and actively handed items to the police officers to facilitate

their search. There is no question that Gooding's actions manifested

a willingness to cooperate with the search. Yet we held that Good-

ing's actions were not "intervening circumstances" sufficient to purge

the taint of the Fourth Amendment violation. See id. at 84 (citing

Taylor, Dunaway, and Brown). If Gooding's positive signs of assent

and cooperation were not sufficient, then Seidman's benign acts of

shutting a door and nodding to Schoop could not be either.

In McCraw, another of our cases, a suspect consented to a search

of his room and made statements that were voluntary manifestations

of consent after the police had entered his room without his permis-

sion or a warrant. Nevertheless, we found the fruits of that search and

the suspect's statements to be tainted by the Fourth Amendment vio-

lation:

Assuming that the consent to search and hotel room state- ments were voluntary by fifth amendment standards, the proximity in time and place between the arrest and the search and statements and the absence of intervening cir- cumstances nevertheless require suppression of this evi- dence to protect the physical integrity of the home and to vindicate the purpose of the fourth amendment.

McCraw, 920 F.2d at 230 (citations omitted).

The case law is clear. The majority is therefore wrong to conclude

that Seidman's consent to talk with Schoop should be double counted

as consent under the Fifth Amendment and as an intervening circum-

stance under the Fourth. Seidman's actions are not the kind of inter-

vening circumstances that either the Supreme Court or we have

considered sufficient to attenuate the taint of a Fourth Amendment

violation. Moreover, within a minute of pushing his way into Seid-

man's house, Schoop launched into a question aimed at getting Seid-

man to admit to illegal activity. Seidman simply did not have the

opportunity "to consider carefully and objectively his options and to

exercise his free will." Taylor, 457 U.S. at 691. There was no inter-

vening circumstance that attenuated or purged Schoop's violation of

Seidman's Fourth Amendment rights. The "intervening circum-

stances" factor thus weighs heavily against the admission of the May

23 tape. 1

2.

The last Brown factor looks at the "purpose and flagrancy" of the

Fourth Amendment violation. Here, I disagree with the majority's

suggestion that a government agent's conduct will be flagrant and

purposeful only if it involves the degree of coercion present in Brown

and Wong Sun. After setting the bar unjustifiably high, the majority

compounds its mistake by again erroneously applying Fifth Amend-

ment standards of voluntariness to conclude that the taint was attenu-

ated. See ante at 15 ("Seidman acted voluntarily, without coercion or

threat of force from Schoop").

It is true that the government's actions in Brown and Wong Sun

were particularly flagrant. In Brown, for instance, a policeman held

the defendant at gunpoint before getting his consent to search. "How-

ever, the flagrancy of police misconduct is not measured by how

polite the police are to the defendant." People v. Gonzalez, 75 Cal.

Rptr. 2d 272, 280 (Cal. Ct. App. 1998). The Supreme Court has made

clear that the "purpose and flagrancy" inquiry looks for more than evi-

_________________________________________________________________

1 The majority simply goes against precedent when it says, "We see no

reason why [consent] could not also sever the connection between an

unlawful act and the acquisition of additional evidence." Ante at 12-13

n.10. Again, voluntary consent by itself does not cure a Fourth Amend-

ment violation. The Brown factors must still be applied. See Taylor, 457

U.S. at 690-93; Dunaway, 442 U.S. at 218; McCraw, 920 F.2d at 230.

dence of intimidation that would render a confession involuntary

under the Fifth Amendment. Rather, it is the "quality of purposeful-

ness" of the Fourth Amendment violation that determines whether the

taint of that violation is attenuated. Brown, 422 U.S. at 605.

In Taylor, even though the police did not threaten or intimidate the

defendant to get his confession after an illegal investigatory arrest, the

Fourth Amendment violation was still found to be flagrant and pur-

poseful misconduct. "The fact that the police did not physically abuse

petitioner, or that the confession they obtained may have been `volun-

tary' for purposes of the Fifth Amendment, does not cure the illegality

of the initial arrest." Taylor, 457 U.S. at 693. Similarly, the police

misconduct in Dunaway (arresting the defendant without probable

cause "in the hope something might turn up") did not involve threats

or abuse against the defendant. Nevertheless, the Court identified

Dunaway as "virtually a replica of the situation in Brown" and found

that purposefulness of the Fourth Amendment violation required

exclusion of the confession. Dunaway, 442 U.S. at 218; see also id.

at 220 (Stevens, J., concurring):

The flagrancy of the official misconduct is relevant, in my judgment, only insofar as it has a tendency to motivate the defendant. A midnight arrest with drawn guns will be equally frightening whether the police acted recklessly or in good faith. Conversely, a courteous command has the same effect on the arrestee whether the officer thinks he has prob- able cause or knows that he does not. In either event, if the Fourth Amendment is violated, the admissibility question will turn on the causal relationship between that violation and the defendant's subsequent confession.

In this case Schoop, who seemed desperate to engage Seidman in incriminating conversation, deliberately entered Seidman's home without permission. In addition, the federal agents directing Schoop had a cavalier attitude about Seidman's constitutional rights. This was confirmed during Schoop's second (agent-directed) attempt to gain entrance into Seidman's home on June 19, 1995, about three weeks after the first (wired) visit. Schoop's repeated knocks at the front door went unanswered, as did his call to Seidman from his (Schoop's) car phone. When Schoop returned to where the agents were parked, one agent asked, "Is his door locked this time?," and Schoop answered, "Yeah." This confirms that the agents condoned Schoop's violation of Seidman's Fourth Amendment rights on May 23 and that they were ready to encourage the very same violation on June 19. I can only conclude that Schoop's unconstitutional entry, and his handlers' com- plicity in it, was flagrant and purposeful. The third factor also weighs against the government.

C.

All of the Brown factors cut against the government. No significant

time elapsed between Schoop's illegal entry on May 23 and his con-

versation with Seidman. There were no intervening circumstances

that broke the causal link between Schoop's entry and his efforts to

draw Seidman into admissions of guilt. Finally, Schoop and his con-

trollers flagrantly and purposefully disregarded Seidman's Fourth

Amendment rights in order to position themselves to get a confession.

As a result, the government has not met its burden of establishing that

the taint of Schoop's Fourth Amendment violation has been purged,

even if Seidman's statements were voluntary under the Fifth Amend-

ment. The tape of the May 23 conversation should have been

suppressed. 2

II.

Although I do not agree with the majority's Fourth Amendment

analysis, I do agree with the government that the error in admitting

the May 23 tape was harmless. If the guilt of a defendant was estab-

lished beyond a reasonable doubt without the evidence admitted in

error, the error is harmless and we must affirm the conviction. See

United States v. Melgar, 139 F.3d 1005, 1016 (4th Cir. 1998).

Here, the evidence of guilt, even absent the taped conversation of

May 23, was strong. See ante at 2-5, 7-8. Moreover, the government's

main point about the May 23 tape, that Seidman was transparent in

_________________________________________________________________

his failure to deny Schoop's suggestions of wrongdoing, is equally

supported by an admissible tape that was also played to the jury. That

was the tape of a telephone conversation on March 21 between

Schoop and Seidman, in which Seidman also failed to deny Schoop's

suggestions that they were in the middle of an illegal scheme. 3

_________________________________________________________________

3 The March 21 conversation included the following exchange:

Schoop: Well, look, Bub, why don't we meet for lunch, alright? Because, uh, they, they, they hit me with a lot of stuff and I, you know, there's only so much you can get away with and, you know, or that they buy. Seidman: Well they're Department of Labor. Uh, what are they uh looking, ah, for the Department of Labor? Schoop: Harry, the only thing I can do is just tell you what the hell they said, you know, to me. And what they said to me was that, they, they are very curious as to why a Controller of the Union would uh want to be, uh, you know, wou. . . wou . . . would okay the pay- ments to me for typesetting that they claim I never did. And apparently . . . Seidman: But you did do it, you were . . . Schoop: Well, I'm saying I did too, bub, ha ha, but the only damn thing is that I'm, you know, very concerned.

* * *

Schoop: Alright, now how the hell do I answer the direct pay- ment? You know what I'm saying? And I don't want to get into all this shit on the phone. Seidman: The direct payments . . . exactly what the letter says . . . you gave the money, remember you all did me, you gave me the money because, exactly what you said, save the money for David because, again, you are known to gamble. [or] [or] I mean, exactly what happened. Schoop: No, it's not going to fly. It's not that easy, babes, it isn't. Seidman: Well if it happens babe, you own your business . . . Schoop: Huh?

28

The prosecutor devoted a considerable amount of time in his clos-

ing argument to the uncontested March 21 conversation, while he

mentioned the inadmissible May 23 conversation only briefly to bol-

ster his point. The May 23 conversation was merely cumulative of the

admissible March 21 conversation. "Improper admission of evidence

which is cumulative of matters shown by admissible evidence is

harmless error." Smith v. Firestone Tire & Rubber Co., 755 F.2d 129,

132 (8th Cir. 1985). Because the May 23 tape was cumulative of

admissible evidence, I would hold that the error in admitting the tape

was harmless.

III.

Because the May 23 tape was cumulative and because I concur in

the majority opinion on the remaining issues, I vote to affirm Seid-

man's conviction.

_________________________________________________________________

Seidman: I mean everything was out in the open. I mean it, Always everything was reported, all the figures were reported to, uh, here I don't know if they actually report what the newspaper cost, they're a separate thing, there was the Finance Committee, this is what you charged. Schoop: Yeah, okay, but what happens if they put a paper trace on this damn thing and they find out it never went into my account? Seidman: Well, again, what you did, the reason you didn't put it in, as far as I know . . . I mean I'm not sure if you put it in the account, but if you didn't, what you did was you gave it to me because that's what you wanted to do. You told me to put it in a trust for David because you don't want to gamble it away and you were afraid that you were drinking and you wanted to save it for David. Schoop: Harry, that story isn't gonna fly, babe. It isn't. It just isn't. Can you come up and meet me for lunch? Seidman: At your place? Schoop: Yeah.

29

KISER, Senior District Judge, concurring in part and dissenting in

part:

I concur with Sections I, II and III of the majority opinion. I dis-

agree with the majority, however, on the aiding and abetting issue

presented in Section IV of its opinion.

In Section IV, the majority upholds the district court's jury instruc-

tions on counts two through thirteen of the indictment. First, the

majority decides that Schoop, an independent contractor, was indi-

rectly employed by the International Organization of Masters, Mates,

and Pilots (the Union) for the purposes of 29 U.S.C.A. § 501(c). Thus,

the majority concludes that Schoop could embezzle, steal, abstract, or

convert funds from the Union under § 501(c). Then, the majority

finds that Seidman could be guilty of aiding and abetting Schoop

under 18 U.S.C.A. § 2(a).

I disagree with the majority on two points. First, whether or not

Congress intended for § 501(c) to apply to independent contractors is

unclear. Where a criminal statute is ambiguous, the rule of lenity pre-

vents an expansive reading of the statute. Applying the rule of lenity,

I conclude that Schoop was not employed by the Union under

§ 501(c). Therefore, Schoop was not legally capable of embezzling,

stealing, abstracting, or converting funds under§ 501(c). Second, the

district court only instructed the jury that it could convict Seidman of

aiding and abetting Schoop's embezzlement. Schoop lacked the nec-

essary fiduciary relationship with the Union to be convicted of the

underlying embezzlement, however. Thus, irrespective of whether or

not § 501(c) extends to independent contractors, I find that Seidman

could not have been convicted of aiding and abetting Schoop under

§ 2(a).

I.

Section 501(c) of Title 29 provides that:

Any person who embezzles, steals, or unlawfully and will- fully abstracts or converts to his own use, or the use of another, any of the moneys, funds, securities, property, or other assets of a labor organization of which he is an officer, or by which he is employed, directly or indirectly, shall be fined not more than $10,000 or imprisoned for not more than five years, or both.

Section 2(a) of Title 18 extends criminal liability to anyone who "aids, abets, counsels, commands, induces or procures" the commis- sion of "an offense against the United States." The interaction of these two statutes means that Seidman could have been convicted of aiding and abetting under § 2(a), if Schoop could have been convicted as a principal under § 501(c). United States v. Coleman, 940 F. Supp. 15, 17-18 (D.D.C. 1996); United States v. Capanegro , 576 F.2d 973, 980 (2d Cir.) (Friendly, J. dissenting), cert. denied, 439 U.S. 928 (1978). Schoop could have been convicted as a principal under § 501(c) if he embezzled, stole, or unlawfully and willfully abstracted or converted the funds at issue from a labor organization "by which he is employed."

A.

First, I find that Schoop was not employed by the Union. "As a

criminal statute, § 501(c) must be strictly construed." United States v.

Hart, 417 F. Supp. 1314, 1321 (S.D. Iowa 1976) (citing United States

v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820) ("The rule that penal

laws are to be construed strictly, is perhaps not much less old than

construction itself. It is founded on the tenderness of the law for the

rights of individuals; and on the plain principle, that the power of

punishment is vested in the legislative, not in the judicial depart-

ment.")). See also United States v. Belt, 574 F.2d 1234, 1237-38 (5th

Cir. 1978) ("We have interpreted § 501(c) as a remedial statute creat-

ing a new federal crime to be given its broadest construction to reach

the ills it was designed to counteract. Thus the duty imposed by the

statute may be more stringent than that imposed by the common law

if necessary to fulfill the statutory purpose. Nevertheless, because the

statute is a criminal one, we must be wary of a too-broad construction

that goes beyond congressional intent or power.") (citations omitted).

The doctrine that a criminal statute should be construed strictly is

known as the rule of lenity. "The rule of lenity is premised on two

ideas: first, a fair warning should be given to the world in language

that the common world will understand, of what the law intends to do

if a certain line is passed; second, legislatures and not courts should

define criminal activity." Babbitt v. Sweet Home Chapter of Commu-

nities for a Great Oregon, 515 U.S. 687, 704 n.18 (1995) (citations

and internal quotations omitted); see also United States v. Lanier, 520

U.S. 259, 117 S.Ct. 1219, 1225 (1997) ("the canon of strict construc-

tion of criminal statutes, or rule of lenity, ensures fair warning by so

resolving ambiguity in a criminal statute as to apply it only to conduct

clearly covered") (citations omitted); Hughey v. United States, 495

U.S. 411, 422 (1990) (lenity principles "demand resolution of

ambiguities in criminal statutes in favor of the defendant") (citation

omitted); Crandon v. United States, 494 U.S. 152, 160 (1990)

("Because construction of a criminal statute must be guided by the

need for fair warning, it is rare that legislative history or statutory pol-

icies will support a construction of a statute broader than that clearly

warranted by the text."). Under the rule of lenity, a court "will not

interpret a federal criminal statute so as to increase the penalty that

it places on an individual when such an interpretation can be based

on no more than a guess as to what Congress intended." Ladner v.

United States, 358 U.S. 169, 178 (1958).

It is unclear what Congress intended when it used the phrase "by

which he is employed." The use of such language could have been a

deliberate attempt to avoid the use of the term"employee," as the

majorities in this case and Capanegro have concluded. See

Capanegro, 576 F.2d at 978-79. 1 Alternatively, the use of the phrase

merely could have been a "draftsman's choice." Id. at 981 (Friendly,

_________________________________________________________________

J. dissenting). I am inclined to agree with Judge Friendly that this was

a choice of form and not substance. 2 I do not need to reach this ulti-

mate conclusion, however. I am satisfied that, at a minimum, the stat-

ute is ambiguous and any construction of the statute should be

governed by the rule of lenity.

Absent a clear indication by Congress that it intended § 501(c) to

reach non-employees, I am bound by the rule of lenity to restrict the

reach of the statute to employees. First, I find that the majority's inter-

pretation of § 501(c) does not provide fair warning to independent

contractors that they are subject to federal criminal liability under

§ 501(c). Second, and most importantly, whether or not to extend

_________________________________________________________________

2 I tend to agree with Judge Friendly for four reasons. First, as Judge

Friendly pointed out, Congress entertained versions of the Labor-

Management Reporting and Disclosure Act that more clearly would have

extended criminal liability beyond employees. Yet, it did not enact such

a statute. Capanegro, 576 F.2d at 981 n.1 (Friendly, J., dissenting).

Second, as the majority pointed out, the definition of "employee" in 29

U.S.C.A. § 152(3) explicitly excludes independent contractors.

Third, Congress has demonstrated that where it wants to extend crimi-

nal liability beyond employees in the labor-management context, it

knows how to do so. See 18 U.S.C.A. § 664 (liability extended to "[a]ny

person" rather than "[a]ny person . . . by which he is employed").

Fourth, Congress did not need to extend criminal liability under

§ 501(c) to independent contractors in order to accomplish its objectives.

As the Second Circuit stated in United States v. Robinson, "[t]here is no

question but that the legislative history of the statute reveals that the

Congress was principally concerned with the looting of union treasuries

by union leaders for their personal profit." 512 F.2d 491, 493-94 (2d

Cir.) (citing Congressional debate) (emphasis added), cert. denied sub

nom. Villegas v. United States, 423 U.S. 853 (1975); see also United

States v. Silverman, 430 F.2d 106, 113 (2d Cir.) ("It was the plain inten-

tion of Congress to hold officers and employees strictly responsible as

fiduciaries for the union funds entrusted to them . . . .") (citation omitted)

(Moore, J. dissenting), modified on other grounds, 439 F.2d 1198 (1970),

and cert. denied, 402 U.S. 953 (1971). Where the government requests

and district court applies the correct legal standard, the interaction of 29

U.S.C.A. § 501(c) and 18 U.S.C.A. §§ 2(a) and (b) provide adequate pro-

tection for union property from union officials and employees.

criminal liability for a violation of § 501(c) to independent contractors

is the exclusive province of the legislative branch, not the judiciary.

Since Congress has not chosen to explicitly extend liability to inde-

pendent contractors, it is not our place to do so now.

Accordingly, I find that the rule of lenity precludes the majority's

interpretation of § 501. 3 Applying the rule of lenity, I conclude that

Schoop could not have been employed by the Union under § 501(c).

Since Schoop could not be have been employed by the Union, he was

not subject to criminal liability under § 501(c). Consequently, Seid-

man could not be guilty of aiding and abetting Schoop. Therefore, the

district court erroneously instructed the jury that it could convict Seid-

man of aiding and abetting under § 2(a).

B.

Assuming that Schoop was employed by the Union, I conclude that

the district court's instructions only permitted the jury to convict

Seidman of aiding and abetting Schoop's embezzlement, an underly-

ing crime which Schoop could not have committed.

_________________________________________________________________

3 As stated earlier, the majority concludes that Schoop was indirectly

employed by the Union. Thus, the majority assumes that "directly or

indirectly," as used in § 501(c), modifies"by which he is employed." The

precedent I found on this issue, however, implies that "directly or indi-

rectly" actually modifies "embezzles, steals, or unlawfully and willfully

abstracts or converts." See Robinson, 512 F.2d at 494 ("It is understand-

able that this kind of obvious abuse by union officials was the principal

concern of congressional leaders in the hearings and debates which pre-

ceded the enactment of the statute in question. However, it is evident

from the clear and unambiguous language employed by the statute that

the behavior condemned is not limited to the embezzlement or conver-

sion of union funds. The statutory language condemns the embezzlement

or conversion not only of moneys, funds and securities, but also of `prop-

erty, or other assets of a labor organization . . . directly or indirectly

. . . .'"); Silverman, 430 F.2d at 113 (purpose of § 501(c) "should not be

subverted by the use of indirect methods") (Moore, J. dissenting) (cita-

tion omitted); Capanegro, 576 F.2d at 977 n.3 (discussing Robinson). I

do not opine as to which phrase "directly or indirectly" modifies. I sim-

ply note these cases as evidence that this less than artfully drafted statute

is ambiguous.

The lower court instructed the jury that "[c]ounts two through thir-

teen of the indictment, these are not the conspiracy counts but the

substantive counts, also charge Mr. Seidman with aiding and abetting

the embezzlement of funds of the [Union]." J.A. at 1015. The lower

court then went on to instruct the jury that "under the facts of this case

this aiding and abetting concept concerns the theory that it was Mr.

Schoop who committed the embezzlements in Counts 2 through 13

inclusive, but that Mr. Seidman aided and abetted Mr. Schoop in

doing it. . . . As you can see, the first requirement is that you find that

another person, Mr. Schoop, has committed the crime charged, the

embezzlement alleged in the substantive count. Obviously, no one can

be convicted of aiding and abetting the criminal acts of another if no

crime was committed by the other person in the first place so, there-

fore, if Mr. Schoop did not commit the embezzlements charged in 2

through 13 then Mr. Seidman could not be convicted of aiding and

abetting Mr. Schoop." J.A. at 1016.

The Fourth Circuit discussed embezzlement under§ 501(c) in

United States v. Stockton, 788 F.2d 210 (4th Cir.), cert. denied, 479

U.S. 840 (1986):

Although § 501(c) reaches other theft offenses as well, it is clear that embezzlement is the statute's primary concern. The section is captioned "embezzlement of assets," and its legislative history refers to it as a provision designed to impose a federal punishment for embezzlement. . . . Looking first to the language of § 501(c), we note that Congress chose to use the term "embezzle," a term which already acquired a generally accepted legal meaning in court decisions interpreting state statutes. 4 . . . Nothing in the legislative history of § 501(c) contradicts

_________________________________________________________________ 4 Embezzlement is a statutory crime which did not exist at common law. . . . A defendant who obtained possession of property lawfully, in a fiduciary capacity, before converting it could not be convicted at com- mon law. Embezzlement statutes were enacted to remedy the common law's deficiency.

the conclusion that Congress meant to adopt the traditional concept of embezzlement. . . . The central element of the traditional concept of embez- zlement is the conversion of property belonging to another. Conversion involves an act of control or dominion over the property that seriously interferes with the owner's rights. . . . The crime of embezzlement builds on the concept of con- version, but adds two further elements. First, the embezzled property must have been in the lawful possession of the defendant at the time of its appropriation. Second, embez- zlement requires knowledge that the appropriation is con- trary to the wishes of the owner of the property. In less formal language, the defendant must have taken another per- son's property or caused it to be taken, knowing that the other person would not have wanted that to be done. . . . To sum up, then, the traditional concept of embezzlement comprises (1) a conversion--or, in other words, an unautho- rized appropriation--of property belonging to another, where (2) the property is lawfully in the defendant's posses- sion (though for a limited purpose) at the time of the appro- priation, and (3) the defendant acts with knowledge that his appropriation of the property is unauthorized, or at least without a good-faith belief that it has been authorized.

Id. at 215-17 (internal quotation, citations and footnotes omitted). To be subject to conviction for embezzlement under§ 501(c), Schoop must have come into possession of the property at issue by way of a fiduciary relationship with the Union. Id. at 215 n.4; see also Colella v. United States, 360 F.2d 792, 799 (1st Cir.) ("Embezzlement . . . carries with it the concept of a breach of a fiduciary relation- ship."), cert. denied, 385 U.S. 829 (1966). In this case, there clearly was no such position of trust between Schoop and the Union. 5 5 The majority agrees with this point in footnote 15 of its opinion. Despite the embezzlement instructions and the lack of a fiduciary relationship between Schoop and the Union, the majority would uphold Seidman's aiding and abetting convictions. The majority con- cludes that the district court's instructions would have permitted a jury to find that Schoop stole or converted funds from the Union and that Seidman aided and abetted in that crime.

Assuming that Schoop was employed by the Union under§ 501(c),

I agree with the majority that the facts would support a conclusion

that Schoop stole or converted funds from the Union. However, the

lower court did not so instruct the jury. In its aiding and abetting

instruction, the district court never mentioned stealing, abstracting or

converting, yet it referenced embezzlement on several occasions. J.A.

at 1015-16 (quoted above); J.A. at 1018 ("Now if you look back or

think back to Count One, conspiracy, and the other counts, embezzle-

ment, you will see in each of them there are three concepts that are

very important . . . knowingly, willfully, intentionally."); J.A. at 1020

("It is important to bear in mind that this is a criminal embezzlement

case . . . ."); J.A. at 1021 (discussing how negligence cannot be basis

for conviction of embezzlement). The majority concludes that the

lower court used "embezzlement" as an abbreviation for describing all

of the conduct prohibited by § 501(c). 6 Indeed, following the defen-

_________________________________________________________________

6 In support of its conclusion, the majority notes that the lower court

discussed embezzling, stealing and converting when it instructed the jury

on Seidman's principal liability under § 501(c). See J.A. at 1008. The

lower court instructed the jury that it could convict Seidman as a princi-

pal if it found that he had "embezzled, stole, abstracted or converted"

finds from the Union. J.A. at 1009-10. The lower court then instructed

the jury that "[e]mbezzlement is the voluntary and intentional taking or

conversion to one's use of the money or property of another after that

money to property lawfully came into the possession of the person taking

it by virtue of some office, employment, or position of trust." J.A. at

1011. The court also instructed as to the definitions of abstraction and

conversion. J.A. at 1011. The court then provided a hypothetical to dif-

ferentiate between the concepts of embezzlement and robbery. J.A. at

1012. After providing the jury with definitions as to all of the possibili-

ties for convicting Seidman as a principal, the district court then limited

its instructions regarding the underlying offense for aiding and abetting

to embezzlement. Such limitation by the lower court may have been

unintentional. Nonetheless, it effectively informed the jury that it could

only convict Seidman of aiding and abetting if it first concluded that

Schoop embezzled from the Union.

dant's objections, the lower court intimated that the instruction cov-

ered embezzlement and conversion. J.A. at 1033. No matter what the

lower court's subjective intent, it still only instructed the jury that it

could convict Seidman of aiding and abetting Schoop's embezzle-

ment. It never instructed the jury that they could convict Seidman of

aiding and abetting Schoop's conversion. 7

Without more clear instruction from the bench, I conclude that the

jury only could have convicted Seidman of aiding and abetting

Schoop's embezzlement from the Union. Because, as has been admit-

ted, the requisite fiduciary relationship did not exist, Schoop could not

have been convicted of the underlying embezzlement. Where a con-

viction on the underlying crime is not possible, there also can be no

conviction for aiding and abetting that alleged underlying crime. See

United States v. Blackwood, 735 F.2d 142 (4th Cir. 1984) (defen-

dant's conviction for aiding and abetting overturned where court gave

incorrect legal standard for determining guilt of principal).

In summation, I find that Schoop could not have been convicted of

embezzling from the Union. I also find that the lower court did not

instruct the jury that it could convict Seidman of aiding and abetting

on a theory that Schoop stole or converted funds from the Union.

Therefore, irrespective of whether or not Schoop was employed by

the union, I conclude that the district court erroneously instructed the

jury that it could convict Seidman of aiding and abetting under § 2(a).

C.

As pointed out by the majority, where the district court instructs the

jury as to two alternative theories of guilt, and one is an incorrect

statement of the law, it must be clear that the jury convicted upon the

correct legal theory or the guilty verdict must be overturned. See

Yates v. United States, 354 U.S. 298, 312 (1957) ("[W]e think the

proper rule to be applied is that which requires a verdict to be set

aside in cases where the verdict is supportable on one ground, but not

_________________________________________________________________

7 "Congress recognized that there was a difference between embezzle-

ment and conversion by including both in the statute." United States v.

Harmon, 339 F.2d 354, 357 (6th Cir. 1964), cert. denied, 380 U.S. 944

(1965).

on another, and it is impossible to tell which ground the jury

selected."), overruled on other grounds by Burks v. United States, 437

U.S. 1 (1978); Griffin v. United States, 502 U.S. 46, 49-60 (1991)

(discussing and applying Yates). Here, the lower court instructed the

jury that Seidman could be convicted on either one of two different

theories: (1) embezzlement, abstraction or conversion under 29

U.S.C.A. § 501(c) or (2) aiding and abetting Schoop's embezzlement

under 18 U.S.C.A. § 2(a). As discussed above, the latter theory of

guilt was an incorrect statement of the law. Therefore, unless it can

be ascertained that the jury convicted Seidman under the former the-

ory, the convictions as to counts two through thirteen must be

reversed.

In this case, the district court provided the jury with a general ver-

dict form which did not clarify whether the convictions on counts two

through thirteen were based upon a finding of principal liability under

§ 501(c) or aiding and abetting liability under § 2(a). 8 Thus, it is

unclear whether the jury's verdict was based upon the valid or invalid

alternative. Accordingly, under Yates, the guilty verdicts as to counts

two through thirteen must be overturned.

II.

While I believe that the jury likely would have convicted Seidman

as a principal under § 501(c), I cannot turn a blind eye to the error in

this case. As a reviewing court, it is our task to strictly interpret crimi-

nal statutes and to check abuse of the criminal process. In this case,

the government requested and the court gave an instruction which

erroneously allowed the jury to convict Seidman of aiding and abet-

ting Schoop's § 501(c) embezzlement. A conviction possibly based

_________________________________________________________________

8 At footnote 14 of its opinion, the majority states its belief that Seid-

man could have been convicted as a principal under 18 U.S.C.A. § 2(b).

I believe the facts of this case would have supported such a conviction.

The court's instructions do not support such a conviction, however. The

court below instructed only as to aiding and abetting under § 2(a). It did

not instruct the jury regarding punishment as a principal under § 2(b).

J.A. 1015-1018. As with the lower court's failure to instruct on conver-

sion in its aiding and abetting charge, I cannot agree that a person can

be convicted on a theory which was never presented to the jury.

upon a legally erroneous instruction cannot stand. Accordingly, I

would reverse the convictions as to counts two through thirteen. 9

_________________________________________________________________

9 Appellant argues that the error with respect to counts two through

thirteen tainted the entire proceeding and requires reversal of the conspir-

acy conviction as well. I disagree. The lower court clearly instructed the

jury that the conspiracy charge in count one was separate and distinct

from the charges in counts two through thirteen. See J.A. at 995. I con-

clude, therefore, that the conspiracy instruction and aiding and abetting

instruction "were not so intertwined that it was highly probable that

[Seidman] was prejudiced on the [conspiracy] count[ ] by the erroneous

instruction on the [aiding and abetting] counts." United States v. Walker,

677 F.2d 1014, 1016 n.2 (4th Cir. 1982) (citation omitted). Here, the evi-

dence of the conspiracy and the evidence of each of the various object

offenses which could have formed the basis of the conspiracy conviction

was simply overwhelming.