UNITED STATES OF AMERICA
ROBERT W. LEE, SR.,
OPINION OF THE COURT
ALITO, Circuit Judge:
This is an appeal by defendant Robert W. Lee, Sr. ("Lee") from a judgment in a criminal case. Lee was indicted on charges stemming from the alleged payment of bribes by boxing promoters to Lee and other officials of the International Boxing Federation ("IBF"). After a jury trial, Lee was convicted of one count of conspiracy to engage in money laundering, in violation of 18 U.S.C. § 1956(h); three counts of interstate travel in aid of racketeering, in violation of 18 U.S.C. § 1952 (the "Travel Act") and 18 U.S.C. § 2; and two counts of filing false tax returns, in violation of 26 U.S.C. § 7206. He was sentenced to a concurrent term of 22 months' imprisonment on each count and was fined $25,000.
In this appeal, Lee argues (1) that video tapes that show him receiving money from a confidential government informant violated his Fourth Amendment rights and should have been suppressed, (2) that the District Court misinstructed the jury concerning the meaning of the "duty of fidelity" under the New Jersey commercial bribery statute, N.J.S.A. 2C:21-10, (3) that his Travel Act and money laundering conspiracy convictions must be reversed because they are predicated upon the New Jersey commercial bribery statute, and there is an insufficient nexus between his conduct and New Jersey to permit the application of the New Jersey statute, (4) that his money laundering conviction should be reversed because the evidence at trial did not prove the existence of a single conspiracy, (5) that two of the Travel Act counts were impermissibly amended at trial, and (6) that the District Court erred when it imposed concurrent sentences of 22 months' imprisonment on the tax counts. We affirm.
Lee was a cofounder and president of the IBF, an organization that crowns international boxing champions and publishes ratings of boxers within different weight divisions. The ratings are published monthly from the IBF headquarters in East Orange, New Jersey. The primary function of the ratings is to determine which boxers will fight in upcoming IBF championship bouts. During the period relevant to this appeal, Lee served on the IBF Executive Board and various IBF committees, including the championship committee, chaired by Don "Bill" Brennan, and the ratings committee, chaired by C. Douglas Beavers.
In May 1996, the Federal Bureau of Investigation received information that boxing promoters were paying certain IBF officials in order to receive more favorable IBF ratings for their boxers. Beavers was questioned and, in May of 1997, chose to cooperate with the FBI. He told investigators that he had solicited and received bribes from boxing promoters and that these bribes had been divided equally among himself, Brennan, Lee, and Lee's son, Robert W. Lee, Jr. ("Lee, Jr."). Beavers, who is based in Portsmouth, Virginia, further testified that he had held regular telephone conversations with Lee, who works out of the IBF headquarters in East Orange, regarding strategies for maximizing payment amounts, methods for laundering bribes that were received as checks1, and arrangements for Lee to travel from New Jersey to Virginia to collect his share of the bribes.
With Beavers' cooperation, the FBI made audio and video recordings of three meetings between Beavers and Lee that took place in Portsmouth, Virginia, on June 9, 1997, December, 18, 1997 and October 21, 1998. The meetings were held in a hotel suite rented by Beavers for Lee in the Portsmouth Holiday Inn and were electronically monitored and recorded using equipment installed in the living room of the suite by the FBI prior to Lee's arrival. This equipment consisted of a concealed camera and microphone that transmitted video and audio signals to a monitor and recorder located in an adjacent room. The FBI did not obtain a warrant authorizing the installation or use of the equipment but instead relied on Beavers' consent. The government agents located in the room next to Lee's suite were instructed to monitor activity in the corridor to determine whether or not Beavers had entered Lee's rooms. The agents were further instructed to switch on the monitor and recorder only when Beavers was in the suite and that, at all other times, the monitor and recorder were to be switched off. During the December 1997 meeting, Beavers was recorded handing Lee cash that had originated as a bribe paid to the IBF's South American representative, Francisco "Pancho" Fernandez, by a Colombian boxing promoter, Billy Chams.
On November 4, 1999, a federal grand jury in the District of New Jersey indicted Lee, Lee, Jr., Brennan and Fernandez on 35 counts related to the receipt of bribes from boxing promoters. As noted, Lee Sr. was convicted on six counts but acquitted on the rest. Lee, Jr. was acquitted on all counts. The case against Brennan was dismissed because of his ill health and age, and Fernandez remains a fugitive outside the United States.
Lee challenges the District Court's admission into evidence of tapes of meetings in his hotel suite. Lee contends that the monitoring and recording of these meetings violated his Fourth Amendment rights because the government did not obtain a warrant. Lee's argument, however, is inconsistent with well-established Fourth Amendment precedent concerning the electronic monitoring of conversations with the consent of a participant.
In United States v. Hoffa, 385 U.S. 293 (1967), a confidential government informant named Partin met with the defendant in the defendant's hotel suite and elsewhere and testified about those conversations at trial. The defendant argued that Partin had conducted an illegal search for verbal evidence and that, because the defendant was unaware of Partin's role as an informant, the defendant had not validly consented to his entry into the suite. Id. at 300. The Supreme Court rejected this argument, holding that the defendant had "no interest legitimately protected by the Fourth Amendment." Id. at 301-02. The Court concluded that Fourth Amendment does not protect wrongdoer's misplaced belief that a person to whom he voluntarily confides wrongdoing will not reveal it." Id. at 302. Although Hoffa involved testimony about conversations and not electronic recordings of conversations, the Supreme Court in later cases drew no distinction between the two situations. See United States v. Caceres, 440 U.S. 741, 744 (1979); United States v. White, 401 U. 745, 752 (1971) (plurality).
As the Court in Caceres put it, Concededly a police agent who conceals his police connections may write down for official use his conversations with a defendant and testify concerning them, without a warrant authorizing his encounters with the defendant and without otherwise violating the latter's Fourth Amendment rights. Hoffa v. United States, 385 U.S., at 300-303.
For constitutional purposes, no different result is required if the agent instead of immediately reporting and transcribing his conversations with defendant, either (1) simultaneously records them with electronic equipment which he is carrying on his person; (2) or carries radio e q u i p m e n t w h i c h simultaneously transmits the conversations either to recording equipment located elsewhere or to other agents monitoring the transmitting frequency . . . . 440 U.S. at 750-51 (quoting United States v. White, 401 U.S. 745, 749 (1971)) (citation omitted)). The Court added that it had "repudiated any suggestion that [a] defendant had a "constitutional right to rely on possible flaws in the agent's memory, or to challenge the agent's credibility without being beset by corroborating evidence that is not susceptible of impeachment.'" Id. at 750 (quoting Lopez v. United States, 373 U.S. 427, 439 (1963)). In short, the Court adopted the principle that, if a person consents to the presence at a meeting of another person who is willing to reveal what occurred, the Fourth Amendment permits the government to obtain and use the best available proof of what the latter person could have testified about. This principle appears to doom Lee's argument here. Lee argues, however, that neither the Supreme Court nor our court has extended this principle to the circumstances present in this case. He points to three factors: (1) the agents used video rather than audio equipment; (2) the recording occurred in Lee's hotel room, a place where a person has a heightened expectation of privacy; and (3) the monitoring equipment remained in the room when Beavers was not present.
In making this argument, Lee relies on the First Circuit's decision in United States v. Padilla, 520 F.2d 526, 527-28 (1st Cir. 1975), which held that the defendant's Fourth Amendment rights were violated when agents placed an audio recording device in the defendant's hotel room and recorded conversations between the defendant and another person who consented to the recordings. In reaching this conclusion, the First Circuit expressed concern that if law enforcement officers were permitted to leave a monitoring or recording device in a hotel for a lengthy period of time the officers would be tempted to monitor or record conversations that occurred when no consenting participant was present. Id. As the Court put it, would turn on its head the carefully tailored [consenting party] exception to . . . one's expectation of privacy. Electronic devices could be installed for lengthy periods of time without antecedent authority, so long as only a suspect's conversations with police agents were offered in evidence and the enforcement officials alleged that nothing else was recorded. Under this approach a room or an entire hotel could be bugged permanently with impunity and with the hope that some usable conversations with agents would occur. Id. at 528. See also United States v. Shabazz, 883 F.Supp. 422 (D.Minn. 1995) (audio and video recording).
In contrast to the First Circuit, the Second and Eleventh Circuits have held that the Fourth Amendment is not violated by the use of a fixed electronic device to record a meeting between a defendant and a person who consents to the recording. United States v. Yonn, 702 F.2d 1341, 1346-47 & n. 5 (11th Cir. 1983); United States v. Myers, 692 F.2d 823 (2d Cir. 1982). In Myers, a defendant was videotaped during a meeting with a government informant at a townhouse maintained by the FBI. Id. at 832. Rejecting the defendant's Fourth Amendment argument, the Court stated that the defendant's "conversations with undercover agents in whom he chose to confide were not privileged, and mechanical recordings of the sights and sounds to which the agents could have testified were proper evidence." Id. at 859.
In Yonn, the Eleventh Circuit likewise held that the Fourth Amendment was not violated when agents placed a microphone in a motel room and monitored and recorded the defendant's conversations when a person who consented to the surveillance was present. The Court held that "[t]he location of the electronic equipment does not alter the irrefutable fact that Yonn had no justifiable expectation of privacy in his conversation with [the person who consented]." 702 F.2d at 1347. The Court also specifically rejected the reasoning of Padilla, stating that it saw "no reason to suppress the recording of a clearly unprotected conversation merely because the monitoring technique employed poses a hypothetical risk that protected conversations may be intercepted." Id. at 1347 n.5.
We have considered the concern expressed by the Padilla Court, but we remain convinced that the present case is governed by the well-established principle that a person has no legitimate expectation of privacy in conversations with a person who consents to the recording of the conversations. None of the three factors on which Lee relies appears to us to be sufficient to take this case beyond the reach of this principle.
First, we cannot distinguish this case on the ground that the recorded meetings occurred in a hotel suite. What is significant is not the type of room in which the surveillance occurred but Lee's action in admitting Beavers to the room. Although Lee had an expectation of privacy in the hotel suite so long as he was alone there, when Lee allowed Beavers to enter, any expectation of privacy vis-a-vis Beavers vanished. We note that in Hoffa many of the conversations also occurred in a hotel suite, but the Court nevertheless held that the case did not involve any legitimate Fourth Amendment interest. 385 U.S. at 296.
Second, we cannot draw a constitutional distinction between consensual audio and video surveillance. The principle underlying the governing Supreme Court cases is that if a defendant consents to the presence of a person who could testify about a meeting and is willing to reveal what occurs, the defendant relinquishes any legitimate expectation of privacy with respect to anything that the testimony could cover. Thus, just as Lee gave up any expectation of privacy in the things that he allowed Beavers to hear, Lee also gave up any expectation of privacy in the things that he allowed Beavers to see. Although video surveillance may involve a greater intrusion on privacy than audio surveillance, the difference is not nearly as great as the difference between testimony about a conversation and audio recordings of conversations. As noted, however, the Supreme Court has not drawn any distinction between those two types of evidence, and we similarly see no constitutionally relevant distinction between audio and video surveillance in the present context.
Finally, we do not agree with the First Circuit that it is appropriate to suppress recordings of meetings between a defendant and a cooperating individual simply because the recording device was placed in the room rather than on the cooperating individual's person. To be sure, there are three circumstances in which this distinction would matter for Fourth Amendment purposes. First, if the defendant had an expectation of privacy in the premises at the time when the device was installed, the entry to install the device would constitute a search. Second, the cases involving consensual monitoring do not apply if recordings are made when the cooperating individual is not present. Third, the logic of those cases is likewise inapplicable if the placement of the recording device permits it to pick up evidence that the cooperating individual could not have heard or seen while in the room. Unless one of these circumstances is present, however, it does not matter for Fourth Amendment purposes whether the device is placed in the room or carried on the person of the cooperating individual. In either event, the recording will not gather any evidence other than that about which the cooperating witness could have testified.
As the government argues, the decision in Padilla appears to be based, not on the conclusion that the recordings in that case had been obtained in violation of the Fourth Amendment, but on a prophylactic rule designed to stamp out a law enforcement technique that the Court viewed as creating an unacceptable risk of abuse. Even assuming for the sake of argument that we have the authority to adopt such a rule2, however, we would not do so. Although Padilla was decided more than a quarter century ago and has not been followed in any other circuit, we are not aware of evidence that the installation of recording devices to monitor meetings attended by a cooperating individual has led to the sort of abuse that the Padilla Court feared. Nor is it intuitively obvious that there is much risk of such abuse. As noted, the Padilla Court feared that law enforcement agents would install electronic devices in a hotel rooms and monitor what occurred "in the hope that some usable conversations with agents would occur." 520 F.2d at 527-28. However, there are numerous reasons to doubt whether law enforcement is likely to find this an alluring strategy.
First, a person who illegally intercepts wire, oral, or electronic communicates is subject to criminal and civil penalties, see 18 U.S.C. §§ 2511, 2520, and a federal agent who violates the Fourth Amendment may be sued under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). Second, in order to install a monitoring device, law enforcement authorities or a person cooperating with them must acquire a right to enter the premises, such as by obtaining a warrant or renting the premises in which the device is to be installed. Thus, the Padilla Court's fear that agents might bug "an entire hotel," 520 F.2d at 528, and the fear of the District Court in Shabazz that devices could be placed in a person's home, see 883 F.Supp. at 425, seem misplaced. Third, it is not clear that law enforcement would have much to gain from monitoring conversations that occur when a cooperating individual is not present. A video tape of a conversation generally reveals whether a cooperating individual is present, and without proof of the presence of the cooperating individual, the tape is inadmissible. We do not go so far as to say that there is no risk of the type of abuse that worried that Padilla Court, but the risk is not great enough to justify the holding of the Padilla Court. In the present case, there was no violation of Lee's Fourth Amendment rights. The monitoring devices were installed in the suite's living room at a time when Lee had no expectation of privacy in the premises. There is no evidence that conversations were monitored when Beavers was absent from the room, and Beavers was plainly there at the time of the incriminating meetings shown on the tapes that were introduced at Lee's trial. We are satisfied that the tapes do not depict anything material that Beavers himself was not in a position to hear or see while in the room. Finally, we reject Lee's suggestion that the government was required, before resorting to video surveillance, to demonstrate that less intrusive investigative techniques were unlikely to succeed. Although this requirement applies to monitoring governed by the federal wiretapping statute, 18 U.S.C. § 2518(3)©, that statute does not apply to electronic surveillance conducted with the prior consent of a party to the communication. Similarly, judicial decisions considering a similar requirement in cases involving silent video surveillance conducted without a participant's consent, see United States v. Williams, 124 F.3d 411, 416 & n.5 (3d Cir. 1997), are inapplicable in this context. We therefore reject Lee's argument that the tapes should have been suppressed.
Lee next contends that the District Court misinstructed the jury regarding the elements of commercial bribery under the New Jersey Commercial bribery statute, N.J.S.A. § 2C:21-10, which figured in four of the counts on which Lee was convicted, i.e., the three counts of interstate travel in aid of racketeering and the money laundering conspiracy count.3 Our "[r]eview of the legal standard enunciated in a jury instruction is plenary," United States v. Yeaman, 194 F.3d 442, 452 (3d Cir. 1999), "but review of the wording of the instruction, i.e., the expression, is for abuse of discretion." Id. "This Court reviews jury instructions to determine whether, "taken as a whole, they properly apprized the jury of the issues and the applicable law.'" Id. (quoting Dressler v. Busch Entertainment Corp., 143 F.3d 778, 780 (3d Cir. 1998)).
The New Jersey commercial bribery statute provides in relevant part as follows:
A person commits a crime if he solicits, accepts or agrees to accept any benefit as consideration for knowingly violating or agreeing to violate a duty of fidelity to which he is subject as . . . An officer, director, manager or other participant in the direction of the affairs of an incorporatedor unincorporated association .. . . .N.J.S.A. § 2C:21-10a (emphasis added). The District Court instructed the jury that the three elements needed in order to establish a violation of the New Jersey commercial bribery statute are:
First, that the defendant solicited , accepted or agreed to accept a benefit; Second, that the defendant did so in consideration for knowingly violating or agreeing to violate a duty of fidelity; Third, that the defendant owed that duty of fidelity because he is either an officer, a director, a manager or other participant in the direction of the affairs of an incorporated or unincorporated association. Joint App. at 3788. This was a straightforward and accurate statement of the elements of N.J.S.A. § 2C:21-10a. The Court further instructed the jury as to the meaning of a "duty of fidelity," stating:
A person who owes a duty of fidelity or loyalty may not engage in self-dealing or otherwise use his or her position to further personal interests rather than those of the beneficiary.
For example officers and directors have a duty not to engage in self-dealing to further their own personal interests rather than the interests of the corporation. . . . . The duty of loyalty or fidelity may also arise based on the existence of a contractual relationship between a defendant such as Mr. Lee, Sr. and the corporation such as the IBF. A contract creates a duty between the contracting parties to adhere to the terms of the contract, and those terms may include or encompass a duty of fidelity. A director or officer's failure to abide by the terms of his contract with a corporation could, if you so find, be a breach of his duty of loyalty to the corporation. Joint App. at 3790-91.
Pointing to these latter instructions, Lee contends that the District Court erred by telling the jury (1) that a person can breach a "duty of fidelity" merely by engaging in self-dealing and (2) that a breach of an employment contract is a per se breach of a duty of fidelity. We disagree. Lee first argues that the District Court went astray in instructing the jury that any act of self-dealing by a corporate officer constitutes a breach of a duty of loyalty. According to Lee, the New Jersey commercial bribery statute reaches only "those specific duties of the actor "to which he is subject' as a director, manager, etc. of the specific corporation at issue, not to generic, vague, undefined corporate duties, such as a duty to refrain from "selfdealing.'" Appellant's Br. at 32 (emphasis added). However, Lee cites no New Jersey case law that supports this interpretation of N.J.S.A. § 2C:21-10a; we are not aware of any such authority; and the jury instruction in question seems to be an accurate interpretation of the statutory language. Moreover, in light of the nature of the breach alleged in this case (accepting bribes in exchange for rigging 10 the ratings of boxers) any failure to draw the fine distinction suggested by Lee (between "specific" and "generic" corporate duties) was harmless. Lee next maintains that the instructions regarding the "duty of fidelity" were flawed because the jury could have interpreted them to mean that proof that he breached this duty was alone sufficient to establish that he violated N.J.S.A. § 2C:21-10a. Lee's argument is not convincing. The Court's discussion of the meaning of a "duty of fidelity" was delivered immediately after its careful explanation of the three elements that were necessary for the jury to convict Lee of violating N.J.S.A. § 2C:21-10a, and one of these elements was that "the defendant [received a benefit] in consideration for knowingly violating or agreeing to violate a duty of fidelity." Joint App. at 3788. Thus, the District Court did not read the element of consideration out of the statute.
Finally, Lee suggests that the District Court told that jury that a breach of contract is per se a breach of a duty of fidelity, Appellant's Br. at 33, but the District Court said no such thing. Rather, the Court said only that a duty of loyalty or fidelity "may . . . arise based on the existence of a contractual relationship between a defendant such as Mr. Lee, Sr. and the corporation such as the IBF" and that "[a] director or officer's failure to abide by the terms of his contract with a corporation could, if you so find, be a breach of his duty of loyalty to the corporation." Joint App. at 3791 (emphasis added). We are convinced that the jury instructions, read in their entirety, "properly apprized the jury of the issues and the applicable law." Yeaman, 194 F.3d at 452.
Lee next contends that his convictions for interstate travel in aid of racketeering and for conspiracy to engage in money laundering violated his rights to due process.4 Asserting that those convictions were predicated on violations of the New Jersey commercial bribery statute, Lee argues that "the connections between the conduct underlying [those counts] and the State of New Jersey [were] tenuous at best" and that the application of the New Jersey statute to the conduct at issue would violate due process.
Appellant's Br. at 39. Lee contends that "the vast majority of the conduct constituting "commercial bribery' took place outside the state of New Jersey in states that either do not consider such conduct a crime, or do not consider it as serious a criminal offense as New Jersey does." Appellant's Br. at 36. He notes that the bribe money was handed to him by Beavers in Virginia and that the agreements between Beavers and Fernandez, the IBF's South American representative, were made outside of New Jersey. Lee's arguments are not persuasive.
"Acts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a state in punishing the cause of the harm as if [the defendant] had been present [in the state] at the effect." Strassheim v. Daily, 221 U.S. 280, 284 (1911). See also United States v. Woodward, 149 F.3d 46, 66 (1st Cir. 1998).6 Cf. Model Penal Code § 1.03. In this case, both the purpose and the effect of the commercial bribery was to cause the IBF, which has its principal place of business in New Jersey, to alter its rankings of boxers. Thus, the conduct in question had effects within New Jersey: it tended to harm a business headquartered in the state and to produce attendant consequences there. These effects are sufficient to permit the state to regulate the conduct without violating due process. The First Circuit's decision in United States v. Woodward, supra, supports this conclusion. In Woodward, a member of the Massachusetts Legislature accepted gratuities in Florida and was convicted under the Travel Act of traveling in interstate commerce with the intent to promote the offense of commercial bribery, in violation of the Massachusetts statute. The First Circuit held that the potential effect on Massachusetts when one of its legislators accepts gratuities in another state was sufficient to satisfy the "effects test" set out in Strassheim. 149 F.3d at 67-68.
Lee attempts to distinguish Woodward by arguing that the conduct of the defendant in that case created a potential for harm that was unique to his own state (because he was a member of that state's legislature), whereas the effects of Lee's conduct "were no greater in New Jersey than they were in any other state." Reply Br. at 12. However, the effects within a state of extraterritorial conduct need not be unique to that state in order to justify the exercise of jurisdiction. The effects need only be of sufficient magnitude, and while the effects-test argument was stronger in Woodward than it is here, the effects here were adequate. Moreover, we note that, contrary to Lee's suggestion, his conduct did create the potential for special harm in New Jersey because that is where the IBF is headquartered and publishes its rankings. We thus hold that Lee's convictions on the counts in question did not violate due process.
Lee contends that the government failed to prove the existence of a single conspiracy to engage in money laundering, as charged in the indictment,7 and merely proved the existence of a series of unrelated conspiracies between different boxing promoters and individual officers of the IBF. Lee argues that his conviction for conspiracy to engage in money laundering should therefore be reversed. We reject this argument.
We exercise plenary review over "whether there was sufficient evidence from which the jury could have concluded that the government proved the single conspiracy alleged in the indictment." United States v. Kelly, 892 F.2d 255, 258 (3d Cir. 1989). In reviewing the sufficiency of the evidence after conviction, we must view the evidence in the light most favorable to the verdict. Id. Where a single conspiracy is alleged in an indictment, and the evidence at trial merely proves the existence of several distinct conspiracies, there is an impermissible variance. Id. On the other hand, "a finding of a master conspiracy with subschemes does not constitute a finding of multiple, unrelated conspiracies and, therefore, would not create an impermissible variance." Id. (quoting United States v. Smith, 789 F.2d 186, 200 (3d Cir. 1986)). In Kelly, we adopted a three-step inquiry to distinguish a single conspiracy from a series of separate, unrelated conspiracies:
First, we examine whether there was a common goal among the conspirators. Second, we look at the nature of the scheme to determin e whether the agreement contemplated bringing to pass a continuous result that will not continue without the continuous cooperation of the conspirators. Third, we examine the extent to which the participants overlap in the various dealings. Id. at 259 (citations and quotation marks omitted).
Application of the Kelly inquiry shows that the jury had a reasonable basis for concluding that what Lee alleges were four separate conspiracies was in fact part of the same overarching conspiracy to launder the proceeds of the bribes paid to Lee and other IBF officials. The first step of the Kelly inquiry is satisfied because Lee, Lee Jr., Brennan and Fernandez shared a common goal, namely, to receive shares of the payments from boxing promoters. The second step in the Kelly inquiry - that the co-conspirators each acted to bring about a continuous result that would not have continued but for their continuing cooperation - is also met because the participants continuously cooperated in their receipt of bribes, in the laundering of checks, and in the distribution of proceeds between themselves. For example, Lee held several conversations with Beavers regarding the risks of receiving bribes in the form of checks, and Beavers deposited checks that he had received from Fernandez into the bank account belonging to the Portsmouth Athletic Club and then distributed part of the proceeds to Lee. Finally, there was sufficient evidence to show that the participants overlapped in the various dealings, in satisfaction of the third Kelly factor. In establishing this third factor, the government is not required to "prove that each defendant knew all the details, goals, or other participants in order to find a single conspiracy." Id. at 260 (internal quotation marks and citations omitted). Evidence was presented at trial that Lee participated in each of the four supposedly separate schemes, Beavers was directly implicated in three9, and Fernandez was directly implicated in two.
In sum, there was sufficient evidence, when viewed in the light most favorable to the government, from which the jury could have concluded that there was a single conspiracy, as opposed to a series of unrelated smaller agreements between the participants.
Lee contends that the two of the Travel Act counts of the indictment were improperly amended at trial. We exercise plenary review over a claim that an indictment was impermissibly amended. United States v. Asher, 854 F.2d 1483, 1497-98 (3d Cir. 1988). "In order to rise to the level of an impermissible amendment, a variance must act to modify the indictment so that the defendant is convicted of a crime that involves elements distinct from those of the crimes with which he was originally charged." Id. at 1497. "Thus, where trial evidence [has] amended the indictment by broadening the possible bases for conviction from that which appeared in the indictment, the variance violates the defendant's substantial right to be tried only on charges returned by a grand jury." Id. (citations and quotation marks omitted, emphasis and alteration in original). "If, on the other hand, the variance does not alter the elements of the offense charged, [courts] focus upon whether or not there has been prejudice to the defendant." Id. (alteration in original).
Counts 21 and 23 of the indictment included the following language:
On or about the following dates, in the district of New Jersey, and elsewhere, the below-named defendants did knowingly and willfully travel in interstate and foreign commerce as described below, with intent to promote, manage, establish, carry on and facilitate the promotion, management, establishment and carrying on of an unlawful activity, that is, bribery, contrary to N.J.S.A. 2C:21-10(a)(4) and 2C:21- 10(b), and therafter did perform, and cause the performance of an act to promote, manage, establish, carry on and facilitate the promotion, management, and carrying on of said unlawful activity.
. . . . In violation of Title 18, United States Code, Sections 1952 and 2. Appellee's Supp. App. at 64-65 emphasis added).
Lee contends that his conviction under these counts should be overturned because the government impermissibly amended the indictment by presenting evidence at trial, not that he traveled from Colombia to Virginia" on or about 11/97" and "5/98," as the indictment charged, but that Fernandez made those trips. We disagree.
Lee's argument ignores the fact that Counts 21 and 23 charge that the alleged conduct violated "Title 18, United States Code, Sections 1952 and 2," Appellee's Supp. App. at 65 (emphasis added), and under 18 U.S.C. § 2 Lee could be held liable as a principal for Fernandez's travel interstate or foreign commerce if Lee aided, abetted, counseled, commanded, induced, procured, or willfully caused Fernandez to engage in that conduct. We have previously noted that criminal indictments are to be read "as a whole and interpret[ed] in a common sense manner." Gov't of the Virgin Islands v. Moolenar, 133 F.3d 246, 250 (3d Cir. 1998).10 Accordingly, even though Counts 21 and 23 of Lee's indictment could perhaps have been more carefully drafted, it is apparent that these counts apply both to travel in aid of racketeering by Lee himself, acting as principal, and to Lee's aiding and abetting the travel in aid of racketeering of another unnamed individual or individuals. The evidence presented at trial showed that Lee aided and abetted Fernandez's travel to and from Colombia but did not show such travel by Lee. The elements of the offense charged in Lee's indictment were therefore narrowed at trial. Accordingly, we look to whether Lee suffered any prejudice. Asher, 854 F.2d at 1497. The indictment charged Lee with aiding and abetting travel between Colombia and Virginia by an unnamed individual on or about November of 1997 and June of 1998. Evidence at trial showed that Fernandez, the IBF's South American representative and Lee's co-indictee, was the unnamed individual that Lee had aided and abetted in his travels between Colombia and Virginia during these months. We cannot believe Lee was prejudiced by this narrowing of the government's theory at trial.
Lee's last argument is that the District Court erred when it sentenced him to concurrent terms of 22 months' imprisonment on the two tax counts, which charged violations of 26 U.S.C. § 7206. Because Lee did not raise this argument in the District Court, we review for plain error. United States v. Gricco, 277 F.3d 339, 350 (3d Cir. 2002).
Title 26, United States Code Section 7206 provides that any violation may be punished by a fine of "not more than $100,000 . . . or imprison[ment for] not more than 3 years." 26 U.S.C. § 7206. Section 3D1.2 of the Sentencing Guidelines directs a sentencing court to group "[a]ll counts involving substantially the same harm," and Section 5G1.2(b) of the Guidelines instructs a court to apply the same sentence to each count in the same group, unless the statutorily authorized maximum for that count is less than the minimum of the guideline range or the statutory minimum is greater than the maximum of the guideline range. U.S.S.G. § 5G1.2(b) (referring to §§ 5G1.1(a) and (b)). At th e sen tencin g hearing, the District Court determined the offense level for Lee's money laundering and Travel Act offenses to be 16 and the offense level for his tax convictions to be seven. Joint App. at 3646-48. The Court did not commit plain error when it grouped these offenses. The Court proceeded to identify a guideline range of 21 to 27 months, based on an offense level of 16 and Lee's criminal history category of I. Id. at 6. The Court then imposed concurrent sentences of 22 months on all six counts. Id. at 3700. Because the statutory maximum for Lee's tax offenses, 3 years, is not less than the minimum guideline range of 21 months, and because there was no mandatory minimum term of imprisonment for those offenses, the District Court did not commit plain error when it imposed the same concurrent 22-month sentence on all counts.
For the reasons explained above, we affirm the judgment of the District Court.