Federal Criminal Law Opinions

Appeal from the U.S. District Court for the Northern District of Alabama (No. 03-00182-CR-2-UWC-HGD).

ON REMAND FROM THE

UNITED STATES SUPREME COURT
(Before HULL and MARCUS, Circuit Judges, and BARZILAY*, Judge.)

(HULL, Circuit Judge.) This case is before us on remand from the United States Supreme Court for reconsideration in light of Gall v. United States, 552 U.S. __, 128 S. Ct. 586 (2007) [21 Fla. L. Weekly Fed. S11a]. Livesay v. United States, __ U.S. __, 128 S. Ct. 872, 872-73 (2008). In this $1.4 billion fraud scheme, defendant-appellee Kenneth K. Livesay, the former Assistant Controller and Chief Information Officer (“CIO”) of HealthSouth Corporation who played a major role in the fraud, was sentenced to 60 months’ probation, with the first 6 months to be served as home detention. This panel previously vacated Livesay’s non-custodial sentence. See United States v. Livesay (Livesay II),484 F.3d 1324, 1325-26 (11th Cir. 2007) [20 Fla. L. Weekly Fed. C543a].1 After reconsideration in light of Gall and affording substantial deference to the district court’s sentencing determinations, we conclude that the district court committed Gall procedural error, and thus we must vacate Livesay’s sentence and remand.

I. FACTUAL BACKGROUND
Earlier decisions of this Court outline the $1.4 billion criminal fraud scheme at HealthSouth. See United States v. Martin, 455 F.3d 1227, 1230-31 (11th Cir. 2006); United States v. McVay, 447 F.3d 1348, 1349-50 (11th Cir. 2006). Accordingly, in this opinion, we provide only a brief overview of that general scheme. We then detail Livesay’s specific role in the fraud, as outlined in Livesay’s Presentence Investigation Report (“PSI”).2

At some point in the early to mid-1990s, HealthSouth officials realized that HealthSouth’s financial results were failing to produce sufficient earnings-pershare to meet the expectations of Wall Street analysts. Various HealthSouth officials, including Livesay, became aware that the earnings shortfall created a substantial risk that, unless the earnings-per-share were artificially inflated, the earnings would fail to meet analyst expectations, and the market price of HealthSouth’s securities would decline.

Therefore, from at least 1994 until March 2003, a group of HealthSouth officials “conspired to artificially inflate HealthSouth’s reported earnings and earnings per share, and to falsify reports about HealthSouth’s overall financial condition.” Martin, 455 F.3d at 1230. The officials “made, and directed accounting personnel to make, false and fraudulent entries in HealthSouth’s books and records for the purpose of falsely reporting HealthSouth’s assets, revenues, and earnings per share and in order to defraud investors, banks, and lenders.” Id.

For over ten years from April 1989 to November 1999, Livesay was the Assistant Controller in HealthSouth’s accounting department.3 According to the PSI, during his time as Assistant Controller, Livesay had access to all of the financial information on HealthSouth’s balance sheets and income statements. As Assistant Controller, Livesay directly assisted the Controller and the Chief Financial Officer in preparing the financial statements and reports that HealthSouth was required to file with the Securities and Exchange Commission (“SEC”). Senior executives issued instructions to defendant Livesay regarding the desired earnings-per-share, and Assistant Controller Livesay and HealthSouth’s accounting staff met to discuss ways to meet Wall Street’s earnings-per-share expectations.

More specifically, Livesay, as Assistant Controller, made false entries in HealthSouth’s books and records to artificially inflate the company’s earnings-pershare. Livesay also managed and supervised others in manipulating HealthSouth’s books and records, instructing HealthSouth’s accounting staff to alter certain accounts so as to inflate HealthSouth’s earnings-per-share. Livesay participated in the preparation of HealthSouth’s 1998 quarterly and annual reports that were filed with the SEC, and Livesay fully knew that the reports materially misstated HealthSouth’s net income, revenue, earnings-per-share, assets, and liabilities. For example, HealthSouth’s pre-tax income was overstated by approximately $440,000,000 in 1997 and $635,000,000 in 1998.

This massive fraud, in which Livesay directly participated for over five years, impacted many victims. After the conspiracy was uncovered in March 2003 and the SEC temporarily suspended trading in HealthSouth stock, the total drop in the value of outstanding HealthSouth stock was approximately $1.4 billion. Many shareholders had invested their life savings in HealthSouth stock, which plummeted to pennies per share. This fraud also affected many others, including: (1) HealthSouth employees, many of whom were long-time employees close to retirement, who suffered by either losing their job or their retirement savings that was invested in the company’s stock ownership plan or pension fund; (2) employees of contractors who were dependent on HealthSouth contracts for income; (3) banks and other lenders who loaned money to HealthSouth based on false financial information; (4) health-service competitors who lost business or financing due to HealthSouth’s false financial representations; and (5) members of the community who benefited from HealthSouth’s charitable activities.

II. PROCEDURAL HISTORY
A. Guilty Plea and Advisory Guidelines Range

Livesay pled guilty to an information charging him with: (1) conspiracy to commit wire and securities fraud, in violation of 15 U.S.C. §§ 78m(a), (b)(2)(A)-(B) and (b)(5), and 78ff and 18 U.S.C. §§ 371 and 1343, et al. (Count One); and (2) falsification of financial information, in violation of 15 U.S.C. §§ 78m(b)(2)(A), 78m(b)(5), 78ff, and 18 U.S.C. § 2 (Count Two). The information also included a forfeiture count.

The PSI set Livesay’s base offense level at 6, pursuant to U.S.S.G. § 2F 1.1(a).4 Livesay’s adjusted offense level was 28, however, due to four enhancements reflecting the magnitude of the fraud and his significant role in it. The enhancements were: (1) 18 levels, pursuant to U.S. S.G. § 2F 1.1(b)(1)(S), because the loss amount exceeded $80 million; (2) 2 levels, pursuant to U.S.S.G. § 2F 1. 1(b)(2)(A), because the offense involved more than minimal planning; (3) 2 levels, pursuant to U.S.S.G. § 2F 1.1(b)(5)(C), because the offense involved sophisticated means; and (4) 3 levels, pursuant to U.S.S.G. § 3B1.1(b), for Livesay’s role in the offense as a manager or supervisor. After a 3-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1, Livesay’s adjusted offense level was 28. With an offense level of 28 and a criminal history category of I, Livesay’s advisory Guidelines range was 78 to 97 months’ imprisonment.

The government filed a U.S.S.G. § 5K1.1 motion for downward departure, based on Livesay’s cooperation and substantial assistance. The government noted that Livesay: (1) met whenever needed with several government agencies, each of which had a substantial need for his assistance; (2) met with the forensic auditor reconstructing HealthSouth’s books and records; (3) spent many hours reviewing financial statements and other documents; (4) provided the government with critical documents evidencing the fraud; (5) helped quantify the fraud; and (6) facilitated guilty pleas from other co-conspirators and the prosecution of others yet to be convicted.

B. First Sentencing in June 2004

At Livesay’s first sentencing, the government’s § 5K1.1 motion recommended a downward departure of 3 levels (from 28 to 25) and a sentence of 60 months’ imprisonment. The district court granted the government’s § 5K1.1 motion, but departed downward 18 levels, to an offense level of 10. Livesay I, 146 F. App’x at 404. Offense level 10, combined with Livesay’s criminal history category of I, yielded an advisory Guidelines range of 6 to 12 months’ imprisonment. Because Livesay’s Guidelines range of 6 to 12 months’ imprisonment fell within “Zone B” of the sentencing table, the Guidelines gave the district court the option of sentencing Livesay to probation and 6 months’ home detention without any additional Guidelines departures. See U.S.S.G. §§ 5B 1.1(a)(2), 5C 1.1(c)(3) (permitting a sentence of probation, subject to certain conditions inapplicable here, if a defendant’s applicable advisory Guidelines range is within “Zone B”). The government objected to the reasonableness of the § 5K 1.1 departure.

Alternatively, the government asked that Livesay at least be sentenced to the maximum sentence in that range (12 months’ imprisonment). The district court nevertheless sentenced Livesay to 60 months’ probation, with the first 6 months to be served on home detention, pursuant to U.S.S.G. § § 5B 1.1(a)(2) and 5C 1. 1(c)(3).5 The district court imposed a $10,000 fine and forfeiture of $750,000.

The government appealed, which resulted in our Livesay I decision. In Livesay I, this Court vacated Livesay’s sentence and remanded Livesay’s case to the district court for resentencing. Livesay I, 146 F. App’x at 405. This Court concluded that the sentencing court “failed entirely to address specifically the § 5K1.1 factors or otherwise to state reasons supporting the extent of its departure.” Id. This Court further concluded that “[w]e do not say that every § 5K1.1 factor must be separately addressed in the order of judgment and conviction; we say only that this record fails to provide the minimum indicia required to allow us to review for reasonableness.” Id.

C. Resentencing in December 2005

This current appeal is from the resentencing in December 2005. As discussed later, the district court judge added very little to the record in this resentencing and basically made it clear he was simply reimposing the same sentence on remand. We outline what the brief seventeen-page resentencing transcript shows.

This brief transcript shows that the district court actually began Livesay’s resentencing hearing with “preliminary remarks,” in which the district court commented that “[l]urking not too far in the background of this sentencing is the jury’s verdict in the Richard Scrushy case.” Richard Scrushy was the Chief Executive Officer of HealthSouth at all times pertinent, and he was acquitted by the jury in his trial. The district court, speaking “not as one of twelve Article III judges of the court, but as the Chief Judge of the Northern District of Alabama,” observed that he knew of no allegations that the jury in the Scrushy case had been in any way compromised. The district court publicly thanked the Scrushy jury for its “tremendous public service,” and observed that before attacking the jury’s verdict, “it is important to reflect on the fact that we did not sit here in the courtroom and hear and consider all of the evidence, as the jurors did.”

The district court then noted that, in Livesay’s case, this Court had directed the district court to outline in some detail the factors on which it relied in giving the § 5K1.1 departure and its reasons for the extent of the departure. The government renewed its § 5K1.1 motion, but in light of Livesay’s continued substantial assistance since the first sentencing, recommended 20 months’ imprisonment6 (i.e., less than its recommendation for 60 months’ imprisonment at the first sentencing).7

The district court again granted the government’s § 5K1.1 motion and said it was “basically reimposing the original sentence.” The district court did make specific § 5K1.1 findings that the significance and truthfulness of Livesay’s information and testimony, as well as the nature and extent of his assistance, was “extraordinarily high” and warranted an “extraordinary departure.” The district court further found that Livesay’s assistance was “very timely” and warranted extraordi-

nary consideration.” The district court acknowledged that Livesay’s “actions were not sufficient to meet the legal standards for withdrawing from a conspiracy,” but nevertheless stated that it was “impressed with the fact that from just an ordinary, common sense understanding, [Livesay] did substantially withdraw from the conspiracy.”

The district court then repeated the same earlier § 5K1.1 downward departure and departed downward 18 levels to an offense level of 10, which once again left Livesay with an advisory Guidelines range of 6 to 12 months’ imprisonment.

At that point, the government asked to be heard before the district court imposed its final sentence. While the government acknowledged that Livesay was “well deserving of a downward departure,” the government stressed that Livesay also “was a key player, a significant cog, in the operation of this fraud at HealthSouth for a number of years.” The government emphasized that although Livesay “did come forward early,” he nevertheless “didn’t come forward until the fraud itself was revealed.” The government further observed that Livesay’s “handiwork as one of the mechanics” of the fraud was reflected in the fraudulent forms that HealthSouth filed with the SEC. The government stressed the “need for deterrence” in sentencing Livesay, and stated its belief that some prison “sentence of significance” was necessary in light of the sentencing factors found in 18 U.S.C. § 3553(a). The government renewed its request for a sentence of 12 months’ imprisonment under the adjusted Guidelines range found by the district court.

The district court then summarily stated, “If I’m wrong on the extent of the departure which I have just made, I believe that the sentence I’m about to impose is the most appropriate sentence in this case in consideration of the Booker case.”8 In other words, even without the § 5K1.1 departure, the district court would have made the same variance under United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), from the advisory Guidelines range of 78 to 97 months’ imprisonment. The district court proceeded to sentence Livesay to 60 months’ probation (the first 6 months to be served on home detention, which Livesay already had done). The district court reimposed the $10,000 fine and forfeiture of $750,000, both of which Livesay had already paid.

With regard to the sentencing factors in § 3553(a), the district court stated that it viewed the sentence as “appropriate” based on the “nature and circumstances” of Livesay’s crimes; Livesay’s “history and personal characteristics”; the “need for this sentence to reflect the seriousness” of the crimes to which Livesay pled guilty; the need to “promote respect for the law, and to provide just punishment”; “and to afford adequate deterrence.” The district court further stated that it considered the sentence “justified in order to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct,” and listed the sentences imposed on twelve other HealthSouth co-conspirators as follows:

In the cases arising out of this conduct, Weston Smith received 27 months [imprisonment]; William Owens, 27 months [imprisonment]; Emery Harris, five months [imprisonment]; Angela Ayers, 48 months of probation; Cathy Edwards, 48 months of probation; Rebecca Morgan, 48 months of probation; Virginia Valentine, 48 months of probation; Michael Martin, seven days [imprisonment]; Aaron Beam, three months [imprisonment]; Richard Botts, 60 months of probation; Will Hicks, 24 months of probation; and Catherine Fowler, 24 months of probation.

Livesay’s counsel then pointed out that William Owens’s sentence was actually 60 months’ imprisonment, not 27 months. The district court said, “I stand corrected.” The district court did not discuss the nature of the conduct of these twelve other coconspirators or explain how their conduct was similar to Livesay’s.

This appeal followed.

III. DISCUSSION
A. District Court’s Post-Gall Duties at Sentencing

After the Supreme Court’s decisions in Booker and Gall, the district courts are still required to correctly calculate the advisory Guidelines range. See United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir. 2008); see also Martin, 455 F.3d at 1235; United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005). “ ‘[A]fter giving both parties an opportunity to argue for whatever sentence they deem appropriate, the district judge should then consider all of the § 3553(a) factors to determine whether they support the sentence requested by a party.’ ” Pugh, 515 F.3d at 1189-90 (quoting Gall, 552 U.S. at __, 128 S. Ct. at 596). Gall also instructs that the district court “ ‘must make an individualized assessment based on the facts presented.’ ” Id. at 1190 (quoting Gall, 552 U.S. at __, 128 S. Ct. at 597). If the district court decides that a sentence outside of the Guidelines is warranted, it “ ‘must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.’ ” Id. (quoting Gall, 552 U.S. at __, 128 S. Ct. at 597) (emphasis omitted).

In addition, Gall admonishes that the district court “must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.” Gall, 552 U.S. at __, 128 S. Ct. at 597; see also 18 U.S.C. § 3553(c) (stating that a district court “at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence”); Rita v. United States, 551 U.S. __, __, 127 S. Ct. 2456, 2468 (2007) [20 Fla. L. Weekly Fed. S381a] (discussing § 3553(c)). The Supreme Court in Rita recognized that the requirement that a district court explain the reasons for its chosen sentence “reflects sound judicial practice” because “[c]onfidence in a judge’s use of reason underlies the public’s trust in the judicial institution” and a statement of the judge’s reasoning “helps provide the public with the assurance that creates that trust.” Rita, 551 U.S. at __, 127 S. Ct. at 2468.

The length and amount of detail of the judge’s reasoning required depends on the circumstances. Id. A statement of reasons for a criminal sentence is particularly important. Id. While a sentencing judge is not required to state on the record that it has explicitly considered each of the § 3553(a) factors or to discuss each of the § 3553(a) factors, United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005), “ ‘ [t]he sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority,’ ” United States v. Agbai, 497 F.3d 1226, 1230 (11th Cir. 2007) (quoting Rita, 551 U.S. at __, 127 S. Ct. at 2468).

Generally, when sentencing within the advisory Guidelines range, the district court is not required to give a lengthy explanation for its sentence if the case is typical of those contemplated by the Sentencing Commission. See id. (citing Rita, 551 U.S. at __, 127 S. Ct. at 2468). However, if a party requested a sentence outside of the Guidelines range, the district court “will normally go further and explain why he has rejected those arguments.” Rita, 551 U.S. at __, 127 S. Ct. at 2468. Further, Rita explained that “[w]here the judge imposes a sentence outside the Guidelines, the judge will explain why he has done so.” Id. at __, 127 S. Ct. at 2468. Subsequent to Rita and Gall, this Court explained in Pugh that “a district court need not discuss each Section 3553(a) factor, although ‘[w]here the judge imposes a sentence outside the Guidelines, the judge will explain why he has done so.’ ” Pugh, 515 F.3d at 1191 n.8 (quoting Rita, 551 U.S. at __, 127 S. Ct. at 2468) (alterations in original).

B. Appellate Review

With regard to appellate review of sentences, the Supreme Court in Gall emphasized that “ ‘while the extent of the difference between a particular sentence and the recommended Guidelines range is surely relevant, courts of appeals must review all sentences — whether inside, just outside, or significantly outside the Guidelines range — under a deferential abuse-of-discretion standard.’ ” Id. at 1189 (quoting Gall, 552 U.S. at __, 128 S. Ct. at 591). Thus, the Supreme Court rejected “ ‘an appellate rule that requires “extraordinary” circumstances to justify a sentence outside the Guidelines range’” and also rejected “‘the use of a rigid mathematical formula that uses the percentage of a departure as the standard for determining the strength of the justifications required for a specific sentence.’ ” Id. at 1190 (quoting Gall,552 U.S. at __, 128 S. Ct. at 595).

Instead, under Gall, we must engage in a two-step process of sentencing review. See id. First, we must “ ‘ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.’ ” Id. (quoting Gall, 552 U.S. at __, 128 S. Ct. at 597) (emphasis added). Second, we must consider the “‘substantive reasonableness of the sentence imposed, under an abuse-of-discretion standard,’” taking into account the “‘totality of the circumstances.’” Id. (quoting Gall, 552 U.S. at __, 128 S. Ct. at 597). In considering the substantive reasonableness of the sentence, we may “‘not apply a presumption of unreasonableness’” where a sentence is outside of the Guidelines range, and we “ ‘must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.’ ” Id. (quoting Gall, 552 U.S. at __, 128 S. Ct. at 597). “Gall reminds us once again . . . to appreciate the institutional advantage that district courts have in applying and weighing the Section 3553(a) factors in individual cases.” Pugh, 515 F.3d at 1190-91; see also Gall, 552 U.S. at __, 128 S. Ct. at 597-98.

However, Gall makes clear that “it also remains true that the district court’s choice of sentence is not unfettered.” Pugh, 515 F.3d at 1191. The Supreme Court in Gall emphasized that appellate courts may “ ‘take the degree of variance into account and consider the extent of a deviation from the Guidelines.’ ” Id. at 1190 (quoting Gall, 552 U.S. at __, 128 S. Ct. at 595). Moreover, the district court is obliged to consider all of the § 3553(a) factors, and those “ ‘factors in turn . . . guide appellate courts, as they have in the past, in determining whether a sentence is unreasonable.’ ” Id. at 1191 (quoting Booker, 543 U.S. at 261, 125 S. Ct. at 766). Additionally, appellate courts “ ‘will, of course, take into account the totality of the circumstances, including the extent of any variance from the Guidelines range.’ ” Id. at 1190 (quoting Gall, 552 U.S. at __, 128 S. Ct. at 597). In summary, Gall’s “directives leave no doubt that an appellate court may still overturn a substantively unreasonable sentence, albeit only after examining it through the prism of abuse of discretion, and that appellate review has not been extinguished.” Id. at 1191.

Applying these principles, we review Livesay’s sentence again.

C. The Section 5K1.1 Departure

It remains true that after the government has made a motion for downward departure pursuant to U.S.S.G. § 5K1.1, the government has no control over whether and to what extent the district court will depart from the Guidelines. See Martin, 455 F.3d at 1235; McVay, 447 F.3d at 1353. The district court’s downward departure need only be reasonable. See Martin, 455 F.3d at 1235; McVay, 447 F.3d at 1353. And after Gall, of course, we must review the district court’s § 5K1.1 departure under a deferential abuse-of-discretion standard. See Gall, 552 U.S. at __, 128 S. Ct. at 597 (“[R]egardless of whether the sentence imposed is inside or outside the Guidelines range, the appellate court must review the sentence under an abuse-of-discretion standard.”); see also Martin, 455 F.3d at 1236 (stating that if a district court departs under § 5K1.1, we review that departure for an abuse of discretion).

Applying Gall and affording substantial deference to the district court here, we are once again constrained to conclude that the district court legally erred in its § 5K1.1 downward departure. More specifically, the district court committed prong one, or “procedural,” Gall error in its § 5K1.1 departure, because the district court based the extent of its § 5K1.1 departure on an impermissible consideration. See Gall, 552 U.S. at __, 128 S. Ct. at 597.

As we outlined in Livesay II, in determining the extent of a § 5K1.1 departure, the district court must consider the five non-exclusive § 5K1.1 factors, which are: (1) the usefulness of the defendant’s assistance; (2) the truthfulness and completeness of the defendant’s information and testimony; (3) the nature and extent of the defendant’s assistance; (4) any injury suffered or risk of injury or danger to the defendant and his family as a result of his assistance; and (5) the timeliness of the assistance. See U.S.S.G. § 5K1.1(a)(1)-(5); see also Livesay II, 484 F.3d at 1330-31. The district court may consider factors beyond those five,“but only if the factors relate to the assistance provided by the defendant.” Martin, 455 F.3d at 1235, 1239 (concluding that the district court committed legal error by considering, in its § 5K1.1 analysis, the threat of future civil liability, which was not assistance-related) (emphasis added); see also McVay, 447 F.3d at 1354-55 (declining to consider extent of § 5K1.1 departure because district court had committed legal error by considering only non-assistance related facts — McVay’s “exemplary record” and his “relationship with his daughter” — in the § 5K1.1 analysis); United States v. Davis, 407 F.3d 1269, 1271 (11th Cir. 2005); United States v. Luiz, 102 F.3d 466, 469 (11th Cir. 1996).

Here, the resentencing transcript makes clear that the district court, in determining the extent of its § 5K1.1 departure, considered “the fact that [Livesay] repudiated the conspiracy at an early time and no longer participated in it.” The district court even explained in its § 5K1.1 ruling that “[a]lthough [Livesay's] actions were not sufficient to meet the legal standards for withdrawing from a conspiracy, the Court [was] impressed with the fact that from just an ordinary, common sense understanding, [Livesay] did substantially withdraw from the conspiracy.” However, Livesay’s repudiation of or “common sense” withdrawal from the conspiracy simply does not relate to the assistance that Livesay provided to the government. Accordingly, the district court should not have considered Livesay’s repudiation of or withdrawal from the conspiracy in determining the extent of its § 5K1.1 departure. As such, the district court committed prong one or “procedural” Gall error when it departed 18 levels under § 5K1.1.

Nonetheless, it is unnecessary to remand for resentencing if the § 5K1.1 procedural error did not affect the ultimate sentence imposed. See United States v. Keene, 470 F.3d 1347, 1349 (11th Cir. 2006). In fact, the district court here clearly indicated that it would have imposed the same sentence even if its § 5K1.1 downward departure was erroneous. In other words, even without any § 5K1.1 departure, the district court still would have varied under Booker from the advisory Guidelines range of 78 to 97 months’ imprisonment to impose a sentence of 60 months’ probation (with 6 months’ home detention) based on the § 3553(a) factors. Thus, we also review the district court’s alternative Booker variance from the advisory Guidelines range of 78 to 97 months’ imprisonment.

D. The Alternative Variance Sentence

As to the alternative sentence, we conclude that another Gall procedural error occurred because the district court failed to adequately explain its variance from the advisory Guidelines range to its chosen sentence in a way that allows for any meaningful appellate review. Gall, 552 U.S. at __, 128 S. Ct. at 597 (stating that a district court commits procedural error by, inter alia, “failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range”).9

Here, the district court, for the second time, failed to give any explanation of its reasons for imposing a sentence of 60 months’ probation (with 6 months’ home detention). After imposing its sentence, the district court did proceed to list certain § 3553(a) factors. So far, so good. However, the district court then gave no reasoning or indication of what facts justified such a significant variance from the advisory Guidelines range under its alternative sentence. See Pugh, 515 F.3d at 1190, 1191 n.8 (stating that a district court need not discuss each § 3553(a) factor, but “‘must make an individualized assessment based on the facts presented’” and, where it imposes a sentence outside the Guidelines range, will explain why it has done so (quoting Gall, 552 U.S. at __, 128 S. Ct. at 597)); Agbai, 497 F.3d at 1230 (“ ‘ [T]he sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority’ ” (quoting Rita, 551 U.S. at __, 127 S. Ct. at 2468)).

Although the district court stated that it would exercise its discretion to impose the same sentence even if its § 5K1.1 departure was erroneous, it simply failed to explain its reasons for why it would do so in a way that allows for meaningful appellate review and promotes the perception of fair sentencing. See Gall, 552 U.S. at __, 128 S. Ct. at 597. Thus, there is also procedural error under Gall in the district court’s alternative sentence of a Booker variance from the advisory Guidelines range of 78 to 97 months’ imprisonment to the imposed sentence of 60 months’ probation (with 6 months’ home detention).

For example, the district court offered no explanation or reasoning of how a sentence of 60 months’ probation (with 6 months’ home detention) for an individual who pled guilty to knowingly playing an active and crucial supervisory role in a massive $1.4 billion fraud for at least five years reflected the seriousness of the offense or the nature and circumstances of the crime. The district court did not state or explain in any way why it rejected the government’s argument that, notwithstanding Livesay’s timely assistance, Livesay should receive “some sentence of significance” in this $1.4 billion fraud scheme because he was a “key player, a significant cog, in the operation of this fraud at HealthSouth for a number of years.” See Rita, 551 U.S. at __, 127 S. Ct. at 2468 (“Where the defendant or prosecutor presents nonfrivolous reasons for imposing a different sentence, . . . the judge will normally go further and explain why he has rejected those arguments.”).

Furthermore, as this Court noted in Martin, the legislative history of § 3553 reveals that Congress “viewed deterrence as ‘particularly important in the area of white collar crime.’ ” Martin, 455 F.3d at 1240 (citation omitted). However, the district court provided nothing more than a conclusory statement that a variance from the advisory Guidelines range of 78 to 97 months’ imprisonment to the ultimate sentence of 60 months’ probation (with 6 months’ home detention) satisfied Congress’s important concerns of deterrence.

The district court did summarily list twelve other individuals convicted in the HealthSouth fraud and their respective sentences, which ranged from 24 months’ probation to 60 months’ imprisonment. However, the district court gave no description of the criminal conduct committed by these twelve defendants, much less any explanation of how Livesay’s criminal conduct was similar to that of the co-conspirators who received probation. Indeed, among the sentences noted by the district court was the sentence of 5 months’ imprisonment imposed on Emery Harris, who was, according to Livesay’s PSI, the Assistant Controller of Finance at the same time that Livesay was the Assistant Controller of Accounting. Livesay’s PSI states that Livesay instructed Harris to manipulate HealthSouth’s books and records. The district court also noted that Weston Smith, the HealthSouth Controller from March 2000 through August 2001, received 27 months’ imprisonment. However, at sentencing, the district court also did not offer any comparison of Harris’s or Smith’s conduct to Livesay’s to explain why it imposed a lesser sentence on Livesay. In sum, the district court’s list of sentences received by other defendants involved in the HealthSouth fraud provides no indication or explanation as to how Livesay’s sentence serves the needs described in § 3553(a)(6).

In contrast, the district court in Gall discussed with the government at sentencing the circumstances of two of Gall’s codefendants who had already been sentenced and, specifically, whether they also had voluntarily withdrawn from the conspiracy. See Gall, 552 U.S. at __, 128 S. Ct. at 599. The district court and the government also discussed another codefendant who engaged in comparable conduct, but had several circumstances that distinguished him from the defendant Gall. See id. at ___, 128 S. Ct. at 600. The Supreme Court was able to determine from this colloquy that the district court had considered the needs reflected in § 3553(a)(6) and ascertain why the district court had imposed a lesser sentence on Gall than these other codefendants received. See id. While we do not mean to imply that such a colloquy is necessary in every case, we reference the sentencing in Gall as an example of what type of record evidence aids appellate courts in assessing whether the sentencing court considered the § 3553(a) factors and why it imposed the chosen sentence.

Therefore, even though the district court stated that it would exercise its discretion to impose the same sentence even if its § 5K1.1 departure was erroneous, it committed Gall procedural error by failing to adequately explain why it would do so in order to allow for meaningful appellate review. Gall, 552 U.S. at __, 128 S. Ct. at 597.

IV. CONCLUSION
For all of the foregoing reasons, we vacate Livesay’s sentence and remand this case for resentencing in a manner consistent with this opinion.10

SENTENCE VACATED AND REMANDED WITH INSTRUCTIONS.

__________________

*Honorable Judith M. Barzilay, Judge, United States Court of International Trade, sitting by designation.

1Our Livesay II decision was this Court’s second review of Livesay’s sentence. In United States v. Livesay (Livesay I), 146 F. App’x 403, 405 (11th Cir. 2005), we vacated and remanded Livesay’s sentence of probation after concluding that the record provided a “scant basis to assess” the reasonableness of that sentence. On remand after Livesay I, the district court again sentenced Livesay to probation, and we again reversed, determining the sentence to be unreasonable. See Livesay II, 484 F.3d at 1325-26. Livesay appealed from our decision in Livesay II, and the Supreme Court remanded to us for this reconsideration in light of Gall. See Livesay, __ U.S. at __, 128 S. Ct. at 872-73.

2Before the district court, both Livesay and the government withdrew all objections to the PSI.

3In late 1999, Livesay became the CIO of HealthSouth.

4The parties stipulated that the appropriate version of the Guidelines was the November 1998 edition; accordingly, all Guidelines citations are to the November 1998 edition unless otherwise noted.

5After departing downward to an offense level of 10, the district court was able to sentence Livesay to 60 months’ probation and 6 months’ home detention without any additional Guidelines departures because U.S. S.G. §§ 5B1.1(a)(2) and 5C1.1(c)(3) permit a sentence of probation, subject to certain conditions inapplicable here, if a defendant’s applicable advisory Guidelines range is within “Zone B” of the sentencing table. Because Livesay’s offense level was 10 and criminal history category was I, Livesay fell within Zone B on the sentencing table. Thus, by imposing 6 months’ home detention, the district court was able to sentence Livesay to 60 months’ probation. See U.S.S.G. §§ 5B1.1(a)(2), 5C1.1(c)(3).

6The government did not make a specific recommendation as to how many levels downward the district court should depart within the advisory Guidelines range.

7Between Livesay’s first sentencing and resentencing, Livesay testified for the government at Scrushy’s trial. Livesay also testified for the government at the trial of Sonny Crumpler and aided the government in preparing for both Scrushy’s and Crumpler’s trials.

8See United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005).

9Ordinarily, after determining that the district court would have imposed the same sentence notwithstanding its procedural error, we would examine whether Livesay’s ultimate sentence was still reasonable in light of the Guidelines range calculated without the procedural Guidelines error (i.e., the original Guidelines range of 78 to 97 months’ imprisonment). See Keene, 470 F.3d at 1349-50. However, as noted herein, we are unable to conduct this analysis because the district court failed to adequately explain its chosen sentence so to allow for meaningful appellate review.

10As to the government’s request that this case be reassigned to a different district judge on remand, we observe that the district judge has already recused himself from further participation in this matter. Thus, we need not address this request.

* * *

Appeals from the U.S. District Court for the Northern District of Florida (No. 06-00036 CR-4-RH-WCS).

(Before EDMONDSON, Chief Judge, KRAVITCH and ALARCÓN,* Circuit Judges.)

(ALARCÓN, Circuit Judge.) Officer Alan Moore and Officer Gregory Dixon seek reversal of their convictions following trial by jury. Officer Moore and Officer Dixon contend that the evidence was insufficient to prove a conviction of conspiracy to accept an illegal gratuity and an “official act.” They also assert that there was a material variance between the allegations of conspiracy in the indictment and the evidence produced at trial. They argue that the Government failed to prove a single conspiracy as alleged in the indictment and the District Court erred in its conspiracy instructions.

Officer Dixon also asserts that the District Court erred in its instructions on the elements of bribery. Officer Moore maintains that the evidence was insufficient to support his conviction for witness tampering.

We affirm because we conclude that the District Court properly rejected these contentions.

I
Appellants Alan Moore and Gregory Dixon were correctional officers at the Federal Correctional Institute in Tallahassee, Florida, a women’s institution, on the dates the crimes in the indictment were alleged to have occurred. Officer Moore and Officer Dixon, along with four other correctional officers, were charged with a variety of misconduct arising from their inappropriate sexual contact with female inmates and their distribution of contraband to inmates. Officer Moore and Officer Dixon pled not guilty. Their four co-defendants pled guilty.

At trial, the Government produced evidence that Officer Moore and Officer Dixon engaged in sexual acts with various inmates in exchange for contraband. Furthermore, the Government presented evidence that the officers assisted each other in gaining access to the inmates, so that they could engage in sexual acts with them. The officers switched assignments, gave keys to other officers to staff offices so that they could meet with the inmates in private, and permitted inmates to leave their cells to meet with other officers. Additionally, the officers had an unspoken agreement that they would not report their illicit activities.

Officer Moore was found guilty of conspiracy to accept an illegal gratuity, the lesser included offense of the charge of conspiracy to commit bribery alleged in Count One, and witness tampering as alleged in Count Seventeen. R267. Also, the jury convicted Officer Moore of accepting an illegal gratuity, a lesser included offense of the crime of bribery alleged in Count Sixteen. The District Court granted judgment of acquittal of that lesser included offense, notwithstanding the jury’s guilty verdict. R267. Officer Moore was sentenced on Count One and Count Seventeen to twelve months of incarceration, to run concurrently, followed by a three-year term of supervised release, and ordered to pay a $6,000 fine. R267.

Officer Dixon was found guilty of conspiracy to accept an illegal gratuity, a lesser included offense of the crime of conspiracy to commit bribery alleged in Count One, and bribery, the charges alleged in Counts Nine through Eleven. R265. Officer Dixon was sentenced to twelve months of imprisonment on Counts One, Nine, Ten, and Eleven, to run concurrently, followed by a three-year term of supervised release. He was also ordered to pay a $3,000 fine. R265. Officer Moore and Officer Dixon filed timely notices of appeal. R258, 260.

II

A
Officer Moore and Officer Dixon argue that there was insufficient evidence to convict them of conspiracy to accept an illegal gratuity pursuant to 18 U.S.C. § 201(c)(1)(B). To prove a violation of § 201(c)(1)(B), the Government must establish that:

a public official, former public official, or person selected to be a public official, otherwise than as provided by law for the proper discharge of official duty, directly or indirectly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally for or because of any official act performed or to be performed by such official or person.

18 U.S.C. § 201(c)(1)(B). They argue that there was insufficient evidence of an agreement to receive something of value.

The question of whether the evidence was sufficient to support a conviction is reviewed de novo. United States v. Harris, 20 F.3d 445, 452 (11th Cir. 1994). “Although we conduct our review without special deference to the district court, we review the evidence in the light most favorable to the government, with all reasonable inferences and credibility choices made in the government’s favor.” Id. (citations omitted).

To sustain a verdict of guilt the evidence need not exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, as long as a reasonable factfinder choosing from among reasonable constructions of the evidence could find that the evidence establishes guilt beyond a reasonable doubt.

United States v. Sepulveda, 115 F.3d 882, 888 (11th Cir. 1997) (citations omitted). Conflicting testimony is an issue of credibility left to the fact finder to determine. United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002).

1
Officer Moore and Officer Dixon argue that the testimony of Officer Alfred Barnes does not establish the existence of an agreement between the officers. Dixon Br. at 14-15. The Government argues that Officer Barnes’s testimony established that an agreement existed between the guards. Gov’t Br. at 30-31. We agree.

“The elements of the offense of conspiracy are: (1) an agreement between the defendant and one or more persons, (2) the object of which is to do either an unlawful act or a lawful act by unlawful means.” United States v. Arias-Izquierdo, 449 F.3d 1168, 1182 (11th Cir. 2006) (citation omitted). While an agreement is always required for conviction of conspiracy, the Government is not required to demonstrate the existence of a “formal agreement.” Id. Instead, an agreement may be demonstrated by circumstantial evidence of a meeting of the minds to commit an unlawful act. Id. Proof that the accused committed an act which furthered the purpose of the conspiracy is an example of the type of circumstantial evidence the Government may introduce to prove the existence of an agreement. United States v. Sullivan, 763 F.2d 1215, 1218-19 (11th Cir. 1985).

The circumstantial evidence presented at trial was sufficient for a rational fact finder to infer the existence of an agreement between the officers. Inmate Shonnie D. testified that Officer Moore gave Officer Barnes the keys to the staff office area so he could meet with inmate Shonnie D. in the middle of the night to perform a sexual act. R313 at 221-23. Inmate Shonnie D. also testified that Officer Moore permitted her to leave her unit to visit Officer Barnes. R313 at 218-19. Additionally, Officer Barnes testified that Officer Moore knew that Officer Barnes engaged in sexual intercourse with inmate Shonnie D. R315 at 783. Officer Barnes stated that he and Officer Moore had an “understanding” that they would not turn each other in. R315 at 845.

Officer Barnes testified that there was a mutual unstated understanding to switch assignments so Officer Dixon could see inmate Sabrina B., and Officer Barnes could avoid inmate Shonnie D. in order to prevent the sex for contraband scheme from being discovered. R315 at 845-46. Officer Barnes further testified that Officer Dixon explained to him how to make money bringing in contraband for inmates who could be trusted.

Officer Moore and Officer Dixon correctly note that Officer Barnes gave conflicting testimony about the agreement that existed between the guards. Dixon Br. at 13-15, citing R315 at 828-29. When Officer Barnes gave conflicting testimony, his credibility as a witness became a question of fact for the jury to decide. Here, the jury determined his testimony was believable. See RamirezChilel, 289 F.3d at 749 (holding that the Court must give deference to the fact finder’s determination of credibility unless it is “unbelievable”). We conclude from the evidence in this record that there was sufficient circumstantial evidence that Officer Moore and Officer Dixon had an agreement to participate in a sex-forcontraband conspiracy.

2
Officer Moore and Officer Dixon contend that there was insufficient evidence that an “official act” occurred. For purposes of § 201(c)(1)(B), an “official act” is defined as “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s capacity, or in such official’s place of trust or profit.” 18 U.S.C. § 201(a)(3).

Officer Moore and Officer Dixon cite to Valdes v. United States, 475 F.3d 1319 (D.C. Cir. 2007), in support of their contention that the Government failed to present evidence of an “official act.” Valdes involved moonlighting police officers who looked up information on a criminal database in exchange for cash. Id. at 1321-22. The Valdes court held these inqueries did not rise to the level of issues that the Government normally resolves, like the question of whether the police should investigate a person or not. Id. at 1325-26. The court defined “official act” in the negative, stating that “precedent and the language of the statute make clear that § 201 is not about officials’ moonlighting, or their misuse of government resources, or the two in combination.” Id. at 1324. Under Valdes, an “official act” is narrowly construed as applying to significant “pending” Government issues that may be brought “by law” before a public official. Id.

Officer Moore and Officer Dixon argue that the “low-level actions alleged in this case” are similar to those of the police officer in Valdes and that, therefore, their conviction should be overturned. Dixon Br. at 19. In relying on Valdes, however, they ignore relevant Supreme Court precedent. In United States v. Birdsall, 233 U.S. 223 (1909), the Court interpreted the “official act” requirement of the precursor to § 201. Id. at 231. The Court held that “[t]o constitute it official action, it was not necessary that it should be prescribed by statute.” Id. at 230-31. Official action can be “clearly established by settled practice.” Id. at 231. In addition, the scope of official conduct may be found in “established usage.” Id. The Court held in Birdsall that “[e]very action that is within the range of official duty comes within the purview of these sections.” Id. at 230. The dissenting opinion in Valdes asserts that Supreme Court precedent should have prevented the D.C. Circuit from narrowly construing the definition of an official act. Valdes, 475 F.3d at 1331 (Henderson, J., dissenting) (citing U.S. v. Birdsall, 233 U.S. 223 (1909). Judge Henderson also noted in Valdes that because Birdsall has never been overruled, and because the precursor to § 201 contains the same definition of an official action, Birdsall is the controlling precedent. Valdes, 475 F.3d at 1331- 32 (Henderson, J., dissenting).

Birdsall was followed by the Second Circuit as recently as 1988. In United States v. Biaggi, 853 F.2d 89 (2d Cir. 1988), the court held that a United States Congressman engaged in official acts within the meaning of 18 U.S.C. § 201(b)(1)(B) when he wrote letters on his congressional stationary on behalf of a party who had paid for his vacations, and urged federal and city officials to take action favorable to that party. Id at 97-98. The Biaggi court held that even though the Congressman’s actions were non-legislative, his conduct constituted an official act under the broad definition of Birdsall. Id.

Having established that a broader definition of “official act” is the controlling precedent, we now must determine whether a reasonable fact finder could have concluded beyond a reasonable doubt that an official act took place. The Government offered evidence of five instances which satisfied the official act requirement: (1) Officers Dixon and Barnes switched unit assignments; (2) Officer Dixon permitted inmate Sabrina B. to telephone Officer Barnes to request contraband; (3) Officer Moore telephoned Officer Barnes on inmate Shonnie D.’s behalf; (4) Officer Moore permitted inmate Shonnie D. to leave her unit to meet with Officer Barnes; and (5) Officer Moore gave Officer Barnes the key to staff offices to meet with inmate Shonnie D. in the middle of the night. All of these actions fall within the broad definition of “official act” set forth in Birdsall. Thus, there was sufficient evidence that the conduct of Officer Moore and Officer Dixon constituted an “official act.”

B
Officer Moore and Officer Dixon argue that their convictions should be overturned because a material variance existed between the superseding indictment and the evidence produced at trial. They contend that the evidence presented at trial established multiple uncharged conspiracies rather than one single conspiracy, as charged in the superceding indictment. After reviewing the evidence, we conclude that there was substantial evidence that a single conspiracy to exchange sex for contraband existed.

“A material variance between an indictment and the government’s proof at trial occurs if the government proves multiple conspiracies under an indictment alleging only a single conspiracy.” United States v. Castro, 89 F.3d 1443, 1450 (11th Cir. 1996), cert. denied, 519 U.S. 1118 (1997). Because the jury determines the question of fact as to whether the evidence establishes a single conspiracy, the arguable existence of multiple conspiracies does not constitute a material variance from the indictment if, viewing the evidence in the light most favorable to the Government, a reasonable trier of fact could have found that a single conspiracy existed beyond a reasonable doubt. United States v. Adams, 1 F.3d 1566, 1584 (11th Cir. 1993). Accordingly, we will not disturb the determination of the jury that a single conspiracy exists if supported by substantial evidence. United States v. Calderon, 127 F.3d 1314, 1327 (11th Cir. 1997).

In determining whether a jury could have found a single conspiracy, this Court considers: (1) whether a common goal existed; (2) the nature of the underlying scheme; and (3) the overlap of participants. Id. “Separate transactions are not necessarily separate conspiracies, so long as the conspirators act in concert to further a common goal.” United States v. Chandler, 388 F.3d 796, 811 (11th Cir. 2004) (citation omitted). If “a defendant’s actions facilitated the endeavors of other co-conspirators, or facilitated the venture as a whole,” a single conspiracy is established. Id. It is irrelevant that the particular co-conspirators did not participate in every stage of the conspiracy. United States v. Alred, 144 F.3d 1405, 1415 (11th Cir. 1998).

1
Courts typically define the common goal element as broadly as possible. See United States v. Edouard, 485 F.3d 1324, 1347-48 (11th Cir. 2007) (holding that the three different methods of bringing cocaine into the United States all fell under the broader goal of bringing cocaine into the United States). Furthermore, the word “common,” has repeatedly been defined as “similar” or “substantially the same.” Calderon, 127 F.3d at 1327.

With regard to Officer Dixon’s conduct, the evidence produced at trial suggests that he was involved in the common goal of trading sex with inmates for contraband. The evidence shows that: (1) the circumstances were sufficient to support an inference that the guards had an unspoken mutual agreement among each other not to report each other’s wrongdoing; (2) Officer Dixon explained to Officer Barnes how to make money bringing in contraband for inmates who could be trusted; (3) Officers Barnes and Dixon switched unit assignments so Officer Dixon could engage in sexual relations with inmate Sabrina B.; (4) Officer Dixon questioned inmate Latoya B. whether she was cooperating against co-defendant Officer Hill and warned her that inmates who talk get sent to other institutions; and (5) Officer Dixon told inmate Patricia P. he had sex with inmates Demetrius C. and Deyandra D.

The evidence established that Officer Moore was also involved in the common goal of trading sex with inmates for contraband. The evidence shows that: (1) Officer Moore gave Officer Barnes the keys to the staff office area so that Officer Barnes could have sex with inmate Shonnie D.; (2) Officer Moore told Officer Barnes he knew that Officer Barnes had engaged in sexual relations with inmate Shonnie D.; (3) Officer Moore permitted inmate Shonnie D. to leave her unit to visit Officer Barnes; and (4) Officer Moore sent inmate Delores H. to another unit to meet with Officer Barnes, where Officer Barnes provided her with contraband.

Taken together this evidence suggests that both Officer Moore and Officer Dixon were participating in a system of delivering contraband to inmates in return for sex, were aware that other guards were involved in similar undertakings, did not report the other guards, and engaged in witness tampering to preserve the sex for contraband system. Thus, there was sufficient evidence that both Officer Moore and Officer Dixon had the common goal of trading sex with inmates for contraband.

2
We must also determine whether the record shows that there was an underlying scheme. See Alred, 144 F.3d at 1415 (noting that what were allegedly multiple conspiracies were virtually the same); Calderon, 127 F.3d at 1329 (holding that there was an underlying scheme to import and distribute cocaine because the “importation was accomplished over a relatively short amount of time, aboard the same vessel, in the same manner, and from the same supplier”).

Here, testimony established that both officers exchanged sex for contraband with the inmates, switched assignments to facilitate similar sex for contraband exchanges with the inmates, engaged in similar conduct with multiple inmates, threatened inmates who might report their behavior, and declined to turn in guards who had committed similar acts. All of these actions took place within the same prison location. Further, the officers achieved the common goal in the same manner; the guards gave contraband to inmates in exchange for sexual acts.

3
The record shows that there was extensive evidence of overlap between the guards. Evidence was presented that guards were involved in sex for contraband arrangements with the same inmates. For example, Officer Dixon had sex with inmates Sabrina B., Letishe M., and Demetrius C. Officer Moore had sex with inmates Shonnie D. and Sabrina B. Officer Barnes had sex with inmates Shonnie D., Sabrina B., and Latoya B. R315 at 741-65, 768, 789-90.

This evidence shows that multiple guards had overlapping arrangements with the same inmates as part of a scheme to trade sex with the inmates for contraband. Therefore, because all three elements required for a single conspiracy have been established, the conviction should not be overturned on the basis of variance.

C
In a related, but somewhat different argument than the variance claim, Officer Moore and Officer Dixon contend that the district judge erred in refusing to give the jury a multiple conspiracies instruction. They argue that the District Court erred by failing to give a multiple conspiracy jury instruction in light of what they allege was evidence of multiple conspiracies. The Government argues that a multiple conspiracy jury instruction was not necessary because there was insufficient evidence from which a reasonable jury could conclude that some of the alleged co-conspirators were involved in separate conspiracies unrelated to the overall conspiracy charged in the indictment. We agree.

Generally, a multiple conspiracies instruction is required where “the indictment charges several defendants with one overall conspiracy, but the proof at trial indicates that a jury could reasonably conclude that some of the defendants were only involved in separate conspiracies unrelated to the overall conspiracy charged in the indictment.”

Calderon, 127 F.3d at 1328 (quoting United States v. Laetividal-Gonzales, 939 F.2d 1455, 1465 (11th Cir. 1991)) (emphasis in original) (citations omitted). This claim differs from the variance claim in that the question was whether a reasonable jury could have concluded beyond a reasonable doubt that a single conspiracy existed. On the other hand, the issue to be resolved here is whether that same jury could also have reasonably concluded from the evidence that multiple conspiracies, rather than the single charged conspiracy, existed. Id. at 1329. “The issue of whether the defense produced sufficient evidence to sustain a particular instruction such as a multiple conspiracy instruction, is generally a question of law subject to de novo review.” Id. (citing United States v. Maza, 93 F.3d 1390, 1399 (8th Cir. 1996).

We conclude that evidence in the record does not support a theory of multiple conspiracies to warrant the requested instruction. Rather, the evidence shows a single overarching conspiracy to exchange sex with inmates for contraband. As detailed above in our review of the variance claim, the evidence presented at trial showed a common scheme by an overlapping group of participants. This common scheme was accomplished over a relatively short amount of time, in the same location and manner. Our review convinces us that the only reasonable conclusion to be drawn from the evidence presented is that there was a single conspiracy to exchange sex for contraband.

Officer Moore and Officer Dixon mistakenly rely on United States v. Chandler, 376 F.3d 1303 (11th Cir. 2004) and Kotteakos v. United States, 328 U.S. 750 (1946) in support of their argument that there were multiple conspiracies. Officer Moore and Officer Dixon’s reliance is misplaced because both cases involved “hub and spoke” conspiracies wherein one central individual was involved in separate conspiracies that radiated from him. However, unlike the classic “hub and spoke” conspiracy, the arrangements in both Chandler and Kotteakos involved spokes that were separate from each other and which had no knowledge of the other’s existence. Chandler, 376 F.3d at 1316 (holding that Jacobson was the only conspirator in the hub, and when he moved from spoke to spoke, he moved alone and the spokes were not aware of such movement); Kotteakos, 328 U.S. at 768-69 (holding that the different defendants fraudulently obtained loans through the central key man, Brown, but there was no connection between the defendants). The conspiracy here differs from the conspiracies in Chandler and Kotteakos because the co-conspirators here had knowledge of one another’s actions. The officers confided in each other and the indirect evidence supports an inference that they agreed not to report one another. Further, they helped each other gain access to inmates in order to engage in sex and/or deliver contraband. R313 at 221-23, R314 at 845. Thus, in light of the evidence produced at trial, the District Court did not err in declining to submit a multiple conspiracies instruction to the jury.

D
Officer Dixon challenges his bribery conviction on three grounds. First, Officer Dixon argues that the jury instruction was too broad because it stated that Officer Dixon could be convicted if he received favors in return for “violating his duty as a federal corrections officer.” R193 at 7. Second, he contends that the jury instruction incorrectly defined contraband, bypassing his defense that it was within his discretion to provide such contraband to the inmates. Third, he maintains that the District Court improperly instructed the jury that it is bribery for a guard to trade contraband for sex. Specifically, Officer Dixon contends that the instruction improperly implied that sex was a “thing of value.”

1
Officer Dixon challenges his bribery convictions by claiming that there was a constructive amendment to the indictment. Officer Dixon argues that the indictment was impermissibly expanded when the jury was instructed that he could be convicted if he received favors “in return for violating his duty as a federal correctional officer.” R193 at 7. Officer Dixon argues that the expansion of the very narrow charge in the indictment constituted a constructive amendment to the indictment. The Government argues that the bribery instruction tracked the language of Counts Nine, Ten, and Eleven, and thus, there was no constructive amendment. Gov’t Br. at 49-50. The Government is correct.

“[A]n amendment occurs when the essential elements of an offense contained in the indictment are altered to broaden the possible bases for conviction beyond what is contained in the indictment.” United States v. Keller, 916 F.2d 628, 634 (11th Cir. 1990). A “constructive amendment of the indictment is per se reversible error.” Id. at 633.

Here, the superseding indictment charged Officer Dixon in three counts with bribery, receiving something of value in return for “being induced to do or omit to do an act in violation of his official duty, that is, to provide contraband and enforce federal statutes and BOP regulations.” The jury instructions provided that a defendant can only be convicted on a bribery count if all of the following facts are proved beyond a reasonable doubt:

First: That Defendant was a federal correctional officer;

Second: That Defendant demanded, sought, received, accepted, or agreed to receive or accept the thing of value described in the count at issue; and

Third: That the Defendant did so knowingly and corruptly and in return for violating his duty as a federal correctional officer.

The instruction further explained that:

An officer acts “corruptly,” as that word is used in the instruction, only if there is a “quid pro quo,” that is, only if the officer intends to receive something of value in exchange for his duty. It is a violation of an officer’s duty to provide contraband to an inmate.

In United States v. Narog, 372 F.3d 1243 (11th Cir. 2004), this Court found that the jury instruction constructively amended the indictment. Id. at 1249. This Court held that essential elements of an indictment are impermissibly broadened when an indictment includes language describing the statutory crime and additional language narrowing the charged crime to a subset of the statutory crime, but the jury instruction omits the narrowing language. Id. at 1248. In Narog, the defendants were charged with offenses involving the possession of pseudoephedrine with knowledge that it would be used to manufacture methamphetamine. Id. at 1246. At trial, the district court delivered an initial jury instruction that tracked verbatim the language in the indictment. Id. After receiving this instruction, the jury asked the judge whether the defendants could be convicted based on intent to manufacture any controlled substance or whether the evidence had to show intent to manufacture methamphetamine. Id. at 1247. The district court, departing from the indictment and initial jury instruction, told the jury that conviction could be based on any controlled substance. Id. On appeal, this Court held that the district court’s response to the jury’s question constructively amended the indictment. Id. at 1250.

Here, the jury instruction did not exactly match the form of the indictment; however, the substance of the indictment remained intact. The elements of the bribery offense required proof that Officer Dixon was “induced to do or omit to do any act in violation of his official duty.” 18 U.S.C. § 201(b)(2). The inclusion in the superceding indictment of the language referring to contraband, enforcing federal statutes and Bureau of Prisons (“BOP”) regulations narrows the statutory crime. Unlike Narog, however, this narrowing language was not omitted from the jury instruction. Rather, the jury instruction still contained the limiting language, stating: “It is a violation of an officer’s duty to provide contraband to an inmate.” R197 at 7. Thus, the jury instructions did not unconstitutionally broaden the indictment.

Further, unlike Narog, there does not appear to be confusion among the jury as to the grounds for conviction. In Narog, the district court concluded that the jury was “clearly confused,” as evidenced by the question asked about the instruction during deliberation. Narog, 372 F.3d at 1246. Here, the jury did not request further instruction. Officer Dixon sets forth no other evidence that the jury was confused by the instructions provided. He merely suggests that there was a “possibility that the jury could have convicted Officer Dixon for accepting something of value in exchange for violating some general policy or ethical obligation, rather than exchange for contraband.” Dixon Br. at 29. Officer Dixon has failed to demonstrate that the challenged instruction amended the indictment.

2
Officer Dixon challenges the bribery conviction on the basis that the jury instruction, defining contraband as “anything whatsoever not approved by the warden,” was improper. He argues that this instruction did not allow the jury to consider the BOP policy, that provides guards with discretion to approve possession of non-hazardous materials by inmates. Dixon Br. at 29. Officer Dixon argues that the instruction prevented the jury from considering the critical issue of intent. Id. The Government persuasively argues that the definition of contraband was proper. The testimony at trial established that the guards did not have the discretion to provide contraband to inmates.

We review a district court’s rejection of proposed jury instructions for an abuse of discretion. United States v. Maduno, 40 F.3d 1212, 1215 (11th Cir. 1994). The district court’s refusal to incorporate a requested jury instruction will be reversed only “if the proffered instruction was substantially correct, the requested instruction was not addressed in charges actually given, and failure to give the instruction seriously impaired the defendant’s ability to present an effective defense.” Id. (citing United States v. Mendoza-Cecelia, 963 F.2d 1467 (11th Cir. 1992), cert. denied, 506 U.S. 964 (1992). “[T]he district court has broad discretion in formulating its charge as long as the charge accurately reflects the law and the facts.” United States v. Winchester, 916 F.2d 601, 604 (11th Cir. 1990) (citation omitted).

Officer Dixon argues that the indictment did not define contraband and instead referred to 28 C.F.R. § 500.1(h), which gives a broad definition of contraband. Dixon Br. at 30. Under 28 C.F.R. § 500.1(h), contraband is defined as, “material prohibited by law, or by regulation, or material which can reasonably be expected to cause physical injury or adversely affect the security, safety, or good order of the institution.” Officer Dixon further argues that the only list of contraband introduced at trial was a general BOP list that did not include the items allegedly provided to inmates by Officer Dixon. Officer Dixon concedes that a regulation was introduced into evidence that suggested that the warden had the power to determine what could be possessed by inmates. He nonetheless argues that this broad regulation should have been considered in conjunction with BOP Program Statement P5580.07, which provides that an inmate may possess only that property which is approved by staff to be received by an inmate. R313 at 136- 37. Officer Dixon argues that the same program statement provided staff with guidelines on exercising their discretion to approve things possessed by the inmates. R313 at 138.

Based on Officer Henson’s testimony and the language in the Code of Federal Regulations, the District Court did not abuse its discretion in instructing the jury as to the definition of contraband. The District Court derived its definition of contraband from 28 C.F.R. § 6. 1, which maintains:

The introduction or attempt to introduce into or upon the grounds of any Federal penal or correctional institution or the taking or attempt to take or send therefrom anything whatsoever without the knowledge and consent of the warden or superintendent of such Federal penal or correctional institution is prohibited.

28 C.F.R. § 6.1 (emphasis added).

Further, Officer Barry Henson’s testimony supports the District Court’s definition of contraband. Officer Henson is another correctional officer at the Federal Correctional Institute at Tallahasse, Florida. His testimony established that: (1) only the warden could approve the items available to inmates; (2) there was no such thing as “permitted contraband”; (3) upon arrival in the prison, officers were only permitted to provide inmates for “necessities so [they] can maintain sanitation,” such as bedding, standard work clothes, temporary toiletry items, and items purchased from the commissary; and (4) guards were not authorized to give anything to the inmates. Thus, based on both Officer Henson’s testimony and 28 C.F.R. § 6.1, the District Court did not abuse its discretion in defining contraband as it did.

3
Officer Dixon argues that the District Court improperly instructed the jury that it is bribery for a guard to trade contraband for sex because the instruction impliedly defined sex as a “thing of value.” Officer Dixon argues that the determination of whether sex, an intangible thing, is a thing of value involves a determination of Officer Dixon’s subjective intent. Id. Officer Dixon further argues that this question is one of fact that is properly left for the jury. Id.

Rule 30(d) of the Federal Rules of Criminal Procedure reads in pertinent part: “[a] party who objects to any portion of the instructions or to a failure to give a requested instruction must inform the court of the specific objection and the grounds for the objection before the jury retires to deliberate. An opportunity must be given to object out of the jury’s hearing and, on request, out of the jury’s presence. Failure to object in accordance with this rule precludes appellate review, except as permitted under Rule 52(b).” Fed. R. Crim. P. 30(d).

Officer Dixon’s counsel did not object to the jury instruction that defined sex as a “thing of value.” In fact, the jury instruction proffered by Officer Dixon’s counsel is similar enough to the actual jury instruction given to constitute a forfeiture of this argument. In a jury instruction conference, Officer Dixon’s counsel suggested that an appropriate jury instruction should read: “It would be sufficient if the thing of value were either money or sexual favors in exchange for violating an official duty.” Further, Officer Dixon’s counsel did not object to sex being classified as a “thing of value.”

Rule 30(d) requires the defendant to make his specific objection before the jury retires. The failure to do so subjects the defendant’s argument to plain error review. Here, there is no indication that Officer Dixon made his objection clear to the District Court. Thus, we can apply plain error review. In United States v. Olano, 507 U.S. 725 (1993), the Supreme Court outlined four requirements for plain error: first, an error occured; second, the error was plain; third, it affected substantial rights; and finally, not correcting the error would seriously affect the fairness of the judicial proceeding. Id. at 732-35. This Court has interpreted the Olano test strictly in the context of erroneous jury instructions and verdict forms. Moreover, we accord a trial judge wide discretion in formulating the jury charge. Winchester, 916 F.2d at 604.

Here, Officer Dixon has failed to demonstrate that plain error occurred. Officer Dixon relies on a Second Circuit case, United States v. Williams, 705 F.2d 603 (2d Cir. 1983), for the proposition that when a “thing of value” is intangible, the jury should determine whether the donee believed that such thing was of value. Id. at 622-23 . Williams is not binding authority in this Circuit. Further, this Court has held that the term “thing of value” unambiguously covers intangible considerations. United States v. Nilsen, 967 F.2d 539, 542 (11th Cir. 1992). This broad interpretation is based upon a recognition that monetary worth is not the sole measure of value. Id. at 542-43 (citing United States v. Schwartz, 785 F.2d 673, 679 (9th Cir. 1986)). “The conduct and expectations of both the defendant and the subject of the extortionate threat also can establish whether an intangible objective is a ‘thing of value.’ ” Id. at 543 (citing United States v. Zouras, 497 F.2d 1115, 1121 (7th Cir. 1974) (emphasis added). Because the donee’s subjective intent is not necessary in determining whether the intangible consideration is a “thing of value,” no plain error occurred. Thus, Officer Dixon’s trial counsel forfeited his objection to this jury instruction on appeal.

E
Officer Moore contends that the evidence produced at trial was insufficient to show that he knowingly and corruptly tampered with witness inmate Shirley B. Inmate Shirley B. was incarcerated in the Federal Correctional Institute at Tallahasse, Florida. Though Shirley B. did not engage in sexual intercourse with Officer Moore, she witnessed Officer Moore having sexual intercourse with her cell mate, inmate Sabrina B. R314 at 690-92.

The standard of review for this issue is de novo, but this Court views all facts and makes all reasonable inferences in favor of the party who won below, here, the Government. United States v. Miller, 71 F.3d 813, 815-16 (11th Cir. 1996). The test for whether the evidence is sufficient is whether a reasonable fact finder could conclude that the defendant was guilty beyond a reasonable doubt. Sepulveda, 115 F.3d at 888. Any conflicting testimony is a credibility issue for the jury to determine. Ramirez-Chilel, 289 F.3d at 749.

To prove a violation of 18 U.S.C. § 1512(b), the Government must prove beyond a reasonable doubt that Officer Dixon:

knowingly use[d] intimidation, threatene[d], corruptly persuade[d] another person, or attempt[ed] to do so, or engage[d] in misleading conduct toward another person, with intent to —

. . .

(3) hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense.

18 U.S.C. § 1512(b).

Officer Moore directs our attention to Arthur Anderson LLP v. United States, 544 U.S. 696 (2005), for the proposition that “limiting criminality to persuaders conscious of their wrongdoing sensibly allows § 1512(b) to reach only those with the level of ‘culpability . . . we usually require in order to impose criminal liability.’” Id. at 706 (citation omitted). The question then is whether a jury could reasonably believe that Officer Moore was conscious that what he was doing was wrong when he gave inmate Shirley B. cigars in return for her silence about his having sexual relations with inmate Sabrina B. The testimony given by inmate Shirley B. indicates that Officer Moore tried to persuade her not to talk to authorities about the sex for contraband scheme. Officer Moore admitted to inmate Shirley B. that he had sex with inmate Sabrina B. and told inmate Shirley B. to let him know if she needed anything. Inmate Shirley B. understood this as an offer to provide her with contraband. Additionally, inmate Shirley B. testified that Officer Moore gave her cigars and told her that it was for “not telling.”

Officer Moore’s allegation, without citation to the record, that inmate Shirley B. had a reputation for blackmail is a credibility issue and a question for the fact finder to decide. Ramirez-Chilel, 289 F.3d at 749. Further, inmate Shirley B.’s testimony that she believed the payments to be hush money does not demonstrate any indicia of fabrication. We hold, therefore, that the evidence was sufficient to uphold Officer Moore’s conviction of witness tampering.

AFFIRMED.

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*Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Circuit, sitting by designation.

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