UNITED STATES of America, Plaintiff-Appellee, v. Philip A. CHANCE, Defendant-Appellant, 306 F.3d 356

OPINION BECKWITH, District Judge. Defendanb-Appellant Philip A.

Chance appeals his conviction and sentence on one count of conducting the affairs of an enterprise through a pattern of racketeering activity, in violation of 18 U.S.C. § 1962(c), one count of conspiring to conduct the affairs of an enterprise through a pattern of racketeering activity, in violation of 18 U.S.C. § 1962(d), two counts of conspiring to obstruct, delay, or affect commerce through extortion, in violation of the Hobbs Act, 18 U.S.C. § 1951(a), and one count of conspiring to obstruct the enforcement of the criminal laws of a state with the intent to facilitate an illegal gambling business, in violation of 18 U.S.C. § 1511.

The district judge sentenced Appellant to 71 months of imprisonment and two years of supervised release, and imposed a mandatory $500 special assessment. In sentencing Appellant to 71 months of imprisonment, the district judge upwardly departed three levels from the applicable final offense level on the grounds that the fact that Appellant’s conduct was undertaken as chief law enforcement officer of Mahoning County, Ohio was not taken into consideration by the Sentencing Guidelines.

The district court also imposed a two level increase in the offense level pursuant to U.S.S.G. § 3C1.1 for obstruction of justice on the grounds that Appellant committed perjury during the trial. On appeal, Appellant challenges the sufficiency of the evidence supporting the convictions, the district court’s decision to impose a sentencing enhancement for obstruction of justice, and the district court’s decision to upwardly depart from the guideline sentence.

Appellant also claims the district court erred by permitting the prosecution to conduct cross-examination regarding criminal convictions or indictments of other employees of the Mahoning County Sheriffs Department. For the reasons set forth below, we affirm Appellant’s convictions on Counts 1, 2, and 3 of the indictment. We reverse Appellant’s convictions on Counts 4 and 5 of the indictment. In addition, we affirm the district court’s decision to upwardly depart from the guideline sentencing range but remand the case for the district court to justify the extent of the departure. I.

As the evidence presented in this case will be discussed in greater detail in

Part II, infra, at this time we will only give a brief recounting of the facts in this case. In 1992, Appellant Philip A. Chance ran for the office of Mahoning County Sheriff but lost in the primaries to incumbent Ed Nemeth. Appellant did, however, garner forty percent of the votes in the primary. Buoyed by this achievement, Appellant decided to run for Sheriff again in 1996. Missing from his 1996 campaign, however, was a key ingredient of his 1992 campaign-the financial support of Youngstown mall developer Anthony Cafaro.

Financially strapped and with his campaign in need of funds, Appellant turned to Youngstown Mafia boss Lenine “Lenny” Strollo for help. Lenny Strollo was having problems of his own in 1996. Strollo was a member of the Pittsburgh branch of La Cosa Nostra. Thanks to extensive payoffs to politicians and high-ranking law enforcement officials, Strollo controlled all the illegal gambling operations in the communities and suburbs surrounding Youngstown. Gambling operations within Youngstown itself, however, were a different matter. Here, Strollo had two interrelated problems.

One problem was that he had competition not only from independent gambling operations, but also from the Cleveland branch of La Cosa Nostra. The second problem was that the police chief in Youngstown was unbuyable and Strollo’s agreement with the incumbent sheriff, Ed Nemeth, had apparently run its course. Thus, Strollo had no influence within Youngstown proper. To illustrate, one of Strollo’s early efforts to extort a “street tax” from the independent bookmakers for the privilege of operating in Youngstown was largely unsuccessful because of lack of cooperation from local law enforcement.

Therefore, Strollo decided to back Appellant in the election for county sheriff and then use the Appellant’s department to close down those gambling operations who refused to pay up. The other principal players in this crime drama were John Chicase, Lawrence “Jeep” Garono, and Charles O’Nesti. Chi-case, also a former deputy sheriff, was a close friend of Appellant’s and a key member of Appellant’s campaign staff. Although after leaving the Sheriffs Department Chicase ran a legitimate security business, he also participated in Strollo’s criminal operations.

It was Chicase, along with a collector named Tony Zappia, who carried out Strollo’s initial attempt to extort a street tax from the independent gambling operations. Coincidentally and fortuitously, Jeep Garono and Chicase were first cousins. Garono owned a legitimate landscaping business, but was also one of the top lieutenants in Lenny Strol-lo’s gambling organization. Charles O’Nesti, a long-time friend of Lenny Strol-lo, was an aide to U.S. Representative James Traficant and had a well-known reputation for being the mob’s “bagman” in Youngstown.

Testimony at trial showed that during the election campaign, Appellant asked Chicase to approach Jeep Garono about soliciting money on his behalf from Lenny Strollo despite Chicase’s warnings that if he took money from Strollo he “would be selling his soul to the Devil.” Appellant also asked O’Nesti to ask Strollo for money for his campaign. Strollo testified that initially he and Appellant met at his house several times and that Appellant understood what would be required when he took office.

The understanding, of course, was that Appellant would use the Sheriffs Department to shut down the non-cooperating gambling operations identified by Strollo but leave unmolested Strollo’s own operations. After the initial few face-to-face meetings, Appellant and Strollo used Chicase, Garono, and O’Nesti as go-be-tweens so the two would not be connected and ruin Appellant’s bid to become sheriff. Testimony at trial further showed that Strollo used Garono, O’Nesti, and Chicase to funnel over $30,000 to Appellant for his campaign.

In addition, Strollo paid for the cost of catering one of Appellant’s fundraisers by forgiving a $12,000 gambling debt owed to him by the caterer’s nephew. In addition, after the election, Strollo paid for a gambling junket to Atlantic City taken by Appellant and Chicase. Appellant won the election and installed Chicase as the head of the vice department. According, to Chicase’s testimony, Garono identified two gambling operations, one on Lane Street in Youngstown and one at the Open Hearth Restaurant, which Strollo wanted the Sheriffs Department to raid.

Chicase testified that Appellant gave him permission to conduct the raids with the full knowledge that the requests for the raids came from Strollo. On another occasion, O’Nesti. asked Chicase to raid a barbut game at an establishment called the Greek Coffee House. It turned out, however, that this particular game was operated by Bernie Altshuler, another one of Strollo’s top men. Therefore, Garono told Chicase to leave it alone. Faced with conflicting instructions, Chicase went to Appellant, who told him not to raid the game and said that he would “take care of’ O’Nesti.

As a result, the Sheriffs Department never raided the Greek Coffee House game. In addition to his agreement with Lenny Strollo, Appellant had his own plan to extort campaign contributions from Youngstown fireworks millionaire Bruce Zoldan. Zoldan was a supporter of Appellant’s opponent and therefore did not contribute to Appellant’s campaign. Chicase testified that during the election, he and Appellant discussed shutting down Zoldan’s business after taking office (presumably on bogus safety violations) in response to his lack of support.

After Appellant took office, Chi-case was involved in a meeting regarding transferring some prisoners from Colum-biana County to Mahoning County with Zoldan’s chief of security, Robert Martino. Martino testified that when that meeting broke up, Chicase pulled him aside to tell him to tell Zoldan that if Zoldan “didn’t come across he was going to shut his operation down.” Martino relayed the message to Zoldan and as a result, Zoldan purchased approximately $2,000 in tickets to a golf outing being held to reduce Appellant’s campaign debt.

On February 2, 1999, a grand jury for the Northern District of Ohio returned a six-count indictment against Appellant and John Chicase. Appellant was charged in five of those six counts. Chicase later entered into a plea agreement with the government and testified against Appellant at trial. Count 1 of the indictment charged Appellant with conducting the affairs of an enterprise through a pattern of racketeering activity in violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(c).

As predicate acts of the RICO charge, the indictment alleged three separate acts of bribery in violation of Ohio Revised Code § 2921.02, two separate acts of extortion in violation of the Hobbs Act, 18 U.S.C. § 1951, and one act of obstruction of local law enforcement in violation of 18 U.S.C. § 1511. Count 2 charged Appellant with conspiracy to commit a RICO violation under 18 U.S.C. § 1962(d). Counts 3 and 4 of the indictment were substantive Hobbs Act charges for conspiring to extort campaign contributions from Bruce Zoldan and conspiring to extort a street tax from independent gambling operations.

Count 5 of the indictment was the substantive charge for obstruction of local law enforcement in violation of 18 U.S.C. § 1511. The case proceeded to a ten-day trial beginning on June 28, 1999. During trial and over Appellant’s objections, the district court permitted the prosecution to cross-examine Appellant concerning the criminal indictments of other deputies working under Appellant on the Sheriffs Department. The trial court also denied Appellant’s Rule 29 motions for judgment of acquittal at the close of the government’s case-in-chief and at the close of evidence.

On July 13, 1999, the jury returned verdicts convicting Appellant on all counts. The district court held a sentencing hearing on November 24, 1999. For purposes of sentencing, Appellant’s convictions were grouped pursuant to U.S.S.G. § 3D 1.2. The district court then used the guideline for bribery, U.S.S.G. § 2C1.1, because pursuant to the RICO guideline, U.S.S.G. § 2E1.1, it provided the highest offense level. The bribery guideline established a base offense level of ten.

The district court then added 2 levels because the offense involved more than one bribe and 8 levels because the offense involved payments for, the purpose of influencing an elected official or an official holding a high-level decision-making position. The subtotal from § 2C1.1 was 20. Over Appellant’s objections, the district court then added a 2 level enhancement under § 3C1.1 for obstruction of justice on the grounds that Appellant committed perjury during trial. Thus, those calculations combined with a criminal history category of I provided a guideline sentencing range of 41 to 51 months of imprisonment.

The trial judge, however, found that Appellant’s case was “outside the heartland” of bribery cases and, therefore, again over Appellant’s objections, upwardly departed three levels to a final offense level of 25. A final offense level of 25 produced a sentencing range of 57 to 71 months of imprisonment. The district court then sentenced Appellant to 71 months of imprisonment, two years of supervised release, 100 hours of community service, and a $500 special assessment. Appellant now appeals from the judgment of the district court.

Specifically, Appellant challenges the sufficiency of the evidence supporting the convictions, the district court’s decision regarding the proper scope of cross-examination, the district court’s decision to impose a two-level enhancement for obstruction of justice, and the district court’s decision to upwardly depart from the guideline sentencing range. We take up these issues seriatim. II. A. Sufficiency of the Evidence As noted, Appellant challenges the sufficiency of the evidence supporting his convictions.

In particular, Appellant argues that the evidence failed to establish that: 1) the RICO enterprise described in the indictment had an existence apart from the alleged pattern of racketeering activity; 2) the activities of the alleged RICO enterprise had a cognizable effect on interstate commerce; 3) the alleged Hobbs Act extortions had a cognizable effect on interstate commerce; 4) Appellant had any culpable involvement in a conspiracy to commit extortion under the Hobbs Act; and 5) there was an “illegal gambling business” as defined in 18 U.S.C. § 1511.

This Court reviews the sufficiency of the evidence supporting a criminal conviction “by determining whether after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Wang, 222 F.3d 234, 237 (6th Cir.2000) (internal quotation marks omitted). Before reviewing the sufficiency of the evidence, however, we must determine whether Appellant has preserved these issues for appeal.

The government argues that Appellant failed to preserve these challenges to the sufficiency of the evidence by failing to raise them in motions for judgment of acquittal made under Rule 29 of the Federal Rules of Criminal Procedure at the end of the prosecution’s casein-chief and at the close of evidence. This Court will not consider challenges to the sufficiency of the evidence if the defendant failed to make a Rule 29 motion for judgment of acquittal at the end of the prosecution’s case-in-chief and at the close of the evidence. United States v. Dandy, 998 F.2d 1344, 1356 (6th Cir.1993).

Failure to make the required motions constitutes a waiver of objections to the sufficiency of the evidence. Id. Although specificity in a Rule 29 motion is not required, where the defendant makes a Rule 29 motion on specific grounds, all grounds not specified in the motion are waived. Id. at 1356-57. In this case, since the record is clear that Appellant did make Rule 29 motions at the appropriate time, the issue is whether, as the government contends, Appellant’s Rule 29 motions were based on specific grounds which did not include the claims of insufficiency now asserted.

In opposition, Appellant argues that his Rule 29 motions were based on general grounds and that trial counsel merely highlighted specific areas of alleged insufficiency only as examples. In fact, Appellant argues, the record demonstrates that the trial judge understood that his motions were general in nature and could potentially be challenges to each element of the offense charged in each count of the indictment. The record reflects the following discussion on Appellant’s Rule 29 motion at the end of the government’s case-in-chief: Mr. Yelsky [Appellant’s trial counsel]: I agree.

But at any rate, just to make the record complete, I would still make a Rule 29 motion. Particularly, I find no evidence that anyone said that Phil Chance helped extort Zoldan, as an example. And also, the only documentary evidence about any money offered by the government turned out to be a complete fabrication by Mr. O’Nesti, and that he testified very explicitly that he carried 5,000 dollars of cash that was given by Mr. Strollo to him, and that he very explicitly stated that he put this $5,000 cash into his bank account, and he showed us his bank account. What it really turned out to be was a complete fraud.

The Court: That goes to the credibility of that witness, and credibility is a determination that the jury has to make. Mr. Yelsky: I understand all that. I have to make my motion. The Court: The witness firmly testified under oath that he transferred those funds. Whether the jury ultimately believes him or not is for them to conclude. Mr. Yelsky: I have to make my motion, Judge. The Court: I understand.

I actually went through the indictment this morning and assessed each of the elements in anticipation of a Rule 29 motion, and I think that you are probably correct that one of the weakest places in the government’s case is the reference to the extortion of Mr. Zoldan, but to the extent that John Chicase can be characterized as an agent for Mr. Chance with respect to those statements, there is testimony from Mr. Chicase and testimony from Mr. Strollo and testimony from Mr. Zol-dan that those statements, threatening statements were made, and that they were passed on to Mr. Zoldan. Mr. Morford [AUSA]: And Mr.

Martino and Mr. O’Nesti. Mr. Yelsky: Idle chatter. The Court: The real issue will be whether or not the jury ultimately concludes that Mr. Chance directed or even requested or adopted those statements. Mr. Yelsky: But in response, I’d like to say that Mr. Chance, that Mr. Zoldan himself testified that when a former sheriff closed him down he sued the county and won a considerable sum of money, and that Phil Chance under the directions of a former sheriff by the name of Traficant apologized to him for doing this, that he knew it Was wrong.

That’s coming right out of the mouth of one of the witnesses that’s quoting what Phil Chance said. Mr. Morford: Knew what was wrong? The Court: I’m not sure that’s an exact characterization. Mr. Morford: Even if it was, even if that’s-he [Appellant] knew what was going on, he knew it was wrong to go in and conduct the raid and he did it anyway[.] Okay? Mr. Yelsky: He did it under instructions. He apologized. The Court: That same witness also said that Mr. Chance said, you know, “I know it’s wrong, but I also sympathize with why we’re doing it.” The jury can take all that into consideration.

I think the government has established enough evidence to go to the jury on each of its claims. I think that with respect to the RICO there is stronger evidence with respect to certain of the alleged predicate acts, but all the jury needs to conclude unanimously is that at least two of these predicate acts occurred, but there is certainly enough on each of the claims to go to the jury. I think some claims, the evidence on some is probably weaker than on others, but that’s not a conclusion for me to determine.

I only need to determine as to whether each element of each of the offenses the government has established proof, and with the direct testimony of the witnesses, all of whom you can argue as to their credibility, but with their direct testimony of sworn testimony of witnesses and the admissible out-of-court statements, as well as the admissible admissions attributed to Mr. Chance himself, there is certainly enough for the jury to consider each of the charges against the defendant. So your Rule 29 motion is denied. Jt. Appx. 417-20.

At the close of evidence, the following discussion on Appellant’s renewed Rule 29 motion took place: Mr. Yelsky: One last thing, Your Honor. I would like to renew our Rule 29 motion to make the record complete, and also I would like to ask that the Court specifically re-examine the Zoldan count of extortion. Other than that, that’s what we have at this point. The Court: Re-examine the Zoldan count because you think there has not been— Mr. Yelsky: Proof sufficient to go to the jury on that point. The Court: I’m going to deny the motion.

I do think that the Zoldan count, because they don’t have any witnesses other than John Chicase that testified, that that information came directly from Phil Chance. Mr. Morford: And Chuck O’Nesti. The Court: Well, I thought Chuck O’Nesti testified that it came from John Chicase. In other words, you have Chuck O’Nesti, you have what’s his name, Marino [sic], Mr. Morford: Right. The Court: Both of whom say that John Chicase— Mr. Morford: O’Nesti actually even says right on the tape, Phil Chance told me that he’s going to shut him down for the 4th of July, and he said that’s what Phil Chance had told him.

The Court: Okay. In any event, I think there is a strong argument you can make to the jury that it hasn’t been established by proof beyond a reasonable doubt, but I think that with the testimony of John Chicase, Chuck O’Nesti, and Mr. Martino and Mr. Zol-dan himself that there is enough to go to the jury on that question. So I’m going to deny the Rule 29 motions and send the issues to the jury. Jt. Appx. at 543-44. We think that Appellant is correct when he argues that his Rule 29 motions were general in nature and that the trial court understood the motions to be general.

While it is true that the much of the colloquy on the motions centered around specific areas of evidence, particularly whether Appellant made threatening statements to Mr. Zoldan, it is clear that the trial court’s rulings on the motions were not addressed to the extortion charge only. For instance, during the first colloquy, the trial judge stated that she “went through the indictment” and “assessed each element in anticipation of a Rule 29 motion.” See Jt. Appx. at 418 (emphasis added).

In addition, the trial judge stated on three separate occasions that the government had adduced sufficient evidence on each of the charges to present the case to the jury. See id. at 420 (“I think the government has established enough evidence to go the jury on each of its claims.” “[Tjhere certainly is enough on each of the claims to go the jury.” “There is certainly enough for the jury to consider each of the charges against the defendant.”) (emphasis added).

We find that even though most of the discussion centered on one alleged flaw in the evidence on one particular charge, trial counsel did not intend and the trial judge did not interpret Appellant’s Rule 29 motion to be limited to just that one charge. Fairly read, the trial judge’s statements indicate that she considered the Rule 29 motion with respect to all of the charges against Appellant.

Furthermore, at the close of evidence, we believe that trial counsel adequately renewed and incorporated by reference the first Rule 29 motion, even though again some discussion centered on the adequacy of the evidence supporting the charge for extorting Mr. Zoldan. We find, however, that the discussion on this issue was simply too abbreviated to be construed as a Rule 29 motion based on specific grounds and that it would be unreasonable to interpret this colloquy as a waiver of further challenges to the sufficiency of the evidence.

Accordingly, we find that Appellant preserved for appeal his challenges to the sufficiency of the evidence. We now turn to the merits of Appellant’s challenges to the sufficiency of the evidence. 1. RICO Enterprise Count 1 of the indictment charged Appellant with conducting the affairs of an enterprise through a pattern of racketeering activity in violation of 18 U.S.C. § 1962(c). RICO defines an “enterprise” as “any individual, corporation, association, or other legal entity and any union or group of individuals associated in fact although not a legal entity.” 18 U.S.C. § 1961(4).

Under RICO, an “enterprise” may play a different role depending on the subsection implicated. See National Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 258, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994). Under subsections (

a) and (b), the “enterprise” is something acquired through illegal activities or by money obtained through illegal activities. Id. at 259, 114 S.Ct. 798. For purposes of subsection (c), however, the “enterprise” is the instrument through which illegal activity is conducted. Id.

In order to establish the existence of an “enterprise” under subsection (c), the government was required to prove: 1) an ongoing organization with some sort of framework or superstructure for making and carrying out decisions; 2) that the members of the enterprise functioned as a continuing unit with established duties; and 3) that the enterprise was separate and distinct from the pattern of racketeering activity in which it engaged. Frank v. D’Ambrosi, 4 F.3d 1378, 1386 (6th Cir.1993).

In this case, Appellant argues that the government failed to prove that the alleged enterprise was separate and distinct from the pattern of racketeering activity. We disagree. The indictment alleged an enterprise consisting of Appellant, John Chicase, Lenny Strollo, Bernie Altshuler, Jeep Gar-ono, Charles O’Nesti, and other unspecified members of the Pittsburgh branch of La Cosa Nostra. The purpose of the enterprise, the indictment alleged, was to control criminal activity in Mahoning County on behalf of the Pittsburgh family, and to preserve and enrich the Pittsburgh family’s power and profits.

The indictment further described each participant’s role in the enterprise: Lenny Strollo was the boss of the enterprise and directed its affairs. Bernie Altshuler, Jeep Garono, Charles O’Nesti, and John Chicase were liaisons or go-betweens between Appellant and Strollo, and Appellant was to enforce the laws in a manner which furthered the purposes of the enterprise. We believe that the indictment describes an enterprise which is separate from the pattern of racketeering activity and that the government proved the existence of this enterprise at trial.

First, we find there was evidence to firmly establish that Lenny Strollo was the leader of the enterprise. Strollo testified that by the time the 1996 elections approached he essentially had a falling out with the incumbent sheriff, Ed Nemeth, in that Nemeth no longer felt obligated to work with Strollo to shut down competing independent gambling operations. Therefore, Strollo testified while he facially supported Nemeth’s campaign in order to hedge his bets, he devoted the majority of his support to Appellant.

Strollo met with Appellant several times during the primary campaign and personally gave Appellant at least $10,000. In exchange for his financial support, Strollo testified that Appellant understood that, among other things, he would be required to work with Strollo to enforce and collect the street tax among the independent gambling operations. In order to accomplish this goal, Strollo and Chance agreed that Chance would appoint Chicase to lead the vice department.

As further evidence of Strol-lo’s control over Chance, Strollo testified that he instructed Chance not to accept any campaign contributions from the rival Center Street mob because they would try to control him or otherwise weaken Strol-lo’s influence over him. Strollo also testified that he used Chuck O’Nesti and Jeep Garono as intermediaries to communicate with Appellant and that on one occasion he dealt directly with John Chicase. Jt. Appx. at 274-75.

On two occasions, Strol-lo asked Garono to ask Chicase to shut down two independent gambling operations, one on Lane Street and one at the Open Hearth Restaurant. Id. at 279-80. Chicase confirmed that Garono asked him to shut down both operations and that he received authorization from Appellant to conduct raids and that Appellant was aware that the request came from Garono. Id. at 381-84. On another occasion, O’Nesti asked Chicase to shut down the gambling operation at the Greek Coffee House, but that Garono ordered him to leave it alone because it was Bernie Altsh-uler’s operation.

When Chicase told Appellant of the conflicting requests, Appellant told Chicase that he would take of O’Nesti. Id. In fact, the Sheriffs Department did not close down the Greek Coffee House game. Id. In addition to orders flowing downward from Strollo through Garono or O’Nesti to Chicase to Appellant, the evidence showed that the lines of communication flowed the other way. Chicase testified that when Appellant’s campaign needed cash, Appellant instructed Chicase to approach Garo-no to ask Strollo for money. Id. at 352. Appellant also approached O’Nesti to ask Strollo for money. Id. at 354.

Furthermore, Appellant was aware that Chicase solicited money from Strollo through Garo-no and O’Nesti to pay for gambling junkets to Atlantic City. Id. at 379-80. Appellant also asked Chicase to ask Garono for the name of a lawyer Appellant could consult about suing his campaign opponent. Id. at 366-67. In short, we find that the evidence showed that the enterprise involved in this case had a very clearly defined structure which was separate from the pattern of racketeering activity. The group was structured to minimize the likelihood that anyone would discover that Appellant was connected to Lenny Strollo.

Strollo designated the gambling operations he wanted shut down and passed those instructions to Garono. Garono then identified the operations for Chicase. Chicase then received approval from Appellant to conduct raids on the operations. Appellant also took orders from Strollo on accepting campaign contributions. Conversely, when Appellant needed assistance, whether it be financial assistance or otherwise, he used Chicase to approach Strollo through Garo-no or Appellant would approach Strollo himself through O’Nesti. Strollo then sent money to Appellant through O’Nesti or Garono to Chicase.

When there were conflicting instructions, Appellant became personally involved in resolving the dispute. This was no ad hoc association of criminals. Accordingly, we find that Appellant’s challenge to the sufficiency of the evidence regarding the RICO enterprise alleged in the indictment is without merit. 2. Effect on Interstate Commerce Appellant next contends that the evidence was insufficient to support a finding that the RICO enterprise and the alleged Hobbs Act extortions had an effect on interstate commerce.

As identified by Appellant, the racketeering activities were: 1) the campaign contributions from Lenny Strollo which the jury found to be a bribe; 2) solicitation of expense money to travel to Atlantic City; 3) a conspiracy to extort a “few thousand dollars” from Bruce Zol-dan by threatening to shut down his fireworks business, which Appellant argues was only a threat to the individual, not the business; 4) a conspiracy to extort a few thousand dollars apiece, from local bookmakers; and 5) and the obstruction of justice charge related to gambling activities at the Greek Coffee House.

According to Appellant, none of the racketeering activities alleged in the indictment and found to have been proved by the jury had an effect on interstate commerce sufficient to support the convictions. For purposes of a conviction under 18 U.S.C. §§ 1962(c) & (d), the government need only prove that the enterprise’s racketeering activities had a de minimis connection with interstate commerce. United States v. Riddle, 249 F.3d 529, 537 (6th Cir.2001).

In Riddle, a case involving many of the cast members of this case, the court held that this de minimis standard was satisfied where: 1) the enterprise purchased lottery tickets in Pennsylvania to protect against losses in Ohio; 2) sold in Pennsylvania a ring taken from an Ohio murder victim; 3) extorted money from a victim who sold fireworks in New York; and 4) the government alleged that the Pittsburgh mafia was involved in the enterprise. Id. In light of the decision in Riddle, we believe that the government adequately established the requisite de minimis connection in this case.

Appellant solicited and received from Lenny Strollo bribe money in order to travel to Atlantic City to gamble. Clearly this act had an effect on interstate commerce. Appellant’s characterization of this payment from Strollo as a reimbursement of expenses, as opposed to an up front payment, we find to be a distinction without a difference. The point is that the payment or reimbursement facilitated the opportunity for interstate travel. Appellant extorted campaign contributions from Bruce Zoldan, whose company sold fireworks in interstate commerce.

Furthermore, as in Riddle, the indictment alleged that the enterprise involved members of the Pittsburgh La Cosa Nostra. Lenny Strollo testified that he was a member of the Pittsburgh family and that proceeds from his illegal gambling operations were transferred across state lines. Jt. Appx. 198-99, 210-11; Compare United States v. Turner, 272 F.3d 380, 388 (6th Cir.2001) (holding, under Hobbs Act, connection to interstate commerce not established where no evidence suggested that robbery victim’s illegal gambling operation crossed over the Michigan border into Ohio).

Thus, we are satisfied in this case that the government met its burden of demonstrating that the activities of the enterprise had at least a de minimis connection with interstate commerce. Turning to the Hobbs Act charges, we find that the government carried its burden of establishing the required connection with interstate commerce with respect to the extortion of Bruce Zoldan as alleged in Count 3 of the indictment. Like RICO, the Hobbs Act only requires a showing of a de minimis connection with interstate commerce. United States v. Harding, 563 F.2d 299, 302 (6th Cir.1977).

An exception to the de minimis standard applies, as Appellant correctly points out, where the alleged Hobbs Act robbery or extortion is directed at an individual and not a business. See United States v. Wang, 222 F.3d 234, 239-40 (6th Cir.2000). Appellant argues that the act of extortion was directed at Zoldan as an individual and not at his business. Because, Appellant argues, the extortion was directed at an individual, the government was required to prove a substantial, rather than de minimis, effect on interstate commerce. See id.

Since according to Appellant the amount to be extorted from Zoldan was relatively small, a few thousand dollars, he argues that the government failed to establish a significant connection to interstate commerce. Even if we adopt Appellant’s reasoning as to the applicable standard, we disagree that the Zoldan extortion did not have a substantial connection to interstate commerce. In Wang, this Court also noted that a substantial connection could be established by proof that the defendant knew of or was motivated by the victim’s connection to interstate commerce. See id. at 240 (citing United States v.

Mills, 204 F.3d 669, 670 (6th Cir.2000)). In this case, Appellant, through Chicase, threatened to close down Zoldan’s fireworks business if he did not make a campaign contribution. We believe the fact that the threat was directed at Zoldan’s business, and not at Zoldan personally, even if the money was to have been paid from Zoldan’s personal assets, shows that Appellant knew of and was motivated by Zoldan’s connection to interstate commerce.

Therefore, even if we were to conclude that the government was required to prove a substantial connection to interstate commerce in this case, we believe that standard has been satisfied with respect to Count 3. We agree with Appellant, however, that the evidence was insufficient to establish even a de minimis connection with respect to the Hobbs Act extortion of the local bookmakers. The specific overt acts of extortion included in the indictment are the raids on the Lane Street gambling operation and the gambling stag at the Open Hearth Restaurant.

Reviewing the record supplied to us, we find no evidence that either of these operations affected interstate commerce, nor do we find evidence sufficient to establish a “realistic probability that [either of these operations would] have an effect on interstate commerce.” Wang, 222 F.3d at 237 (quoting United States v. Peete, 919 F.2d 1168, 1174 (6th Cir.1990)). Regarding the Lane Street operation, there was no evidence regarding its size, amount of profits, who its customers were, or whether money, either incoming or outgoing, traveled across state lines.

The only evidence presented was that the operation was located in a bar called “Chuck’s Place” and that Lenny Strollo wanted it closed down. See Jt. Appx. at 327-28. The same kind of evidence is lacking regarding the gambling stag at the Open Hearth Restaurant. We believe that the lack of evidence presented on these operations’ connection with interstate commerce presents a situation nearly identical to the situation in Turner, where this Court held that the government failed to establish that the victim’s gambling operation had even a de minimis connection with interstate commerce. See Turner, 272 F.3d at 388.

The government relies on-two cases in support of the proposition that a connection with interstate commerce is established where the gambling business sold goods produced in interstate commerce, United States v. Brown, 959 F.2d 63, 67-68 (6th Cir.1992) and United States v. Richardson, 596 F.2d 157, 160-61 (6th Cir.1979). Both cases are distinguishable from the present case, however.

In Brown, which involved a Hobbs Act prosecution for the robbery of a bar, the interstate commerce connection was satisfied by the testimony of a liquor distributer who testified that all of the beer sold by the bar was manufactured outside of the state. See Brown, 959 F.2d at 68. No such testimony was presented in this case about the goods sold at Chuck’s Place or the Open Hearth Restaurant. In Richardson, which also involved law enforcement officers involved in an extortion scheme, there was evidence that alcoholic beverages sold by the victim bars were for the most part manufactured out of state.

See Richardson, 596 F.2d at 160. Again, no such'testimony was presented about the gambling operations involved in this case. We do note that there was testimony from Jeffrey Chrystal, who threw the gambling stag at the Open Hearth Restaurant, that the food served at the party traveled in interstate commerce. Chrystal testified, however, that he .catered the food for the party himself from his own restaurant. See Jt. Appx. at 402-07.

We find no evidence that the food which Chrystal testified had traveled in interstate commerce was provided by either the operators of the stag or the owners of the Open Hearth Restaurant. It does not appear that Chrystal or any of the stag’s attendees were targets for extortion-no arrests were made, no citations were issued, and nothing was confiscated. Id. at 406. Therefore, we do not think the interstate commerce connection is satisfied for purposes of the Hobbs Act, even under the de minimis standard, where the only connection to commerce is that the patrons brought their own food to the stag.

The government argues that one bookmaker, Mickey Murphy, testified that he got the odds for his operation from a wire service located in New York or Las Vegas. See Jt. Appx. at 334. The government contends that this evidence also demonstrates the requisite connection with interstate commerce. We disagree with the government’s characterization of Murphy’s testimony. There is nothing in Murphy’s testimony which indicates where the service he used was located. It further appears that Murphy only assumed that the information came from New York or Las Vegas based on what employees at his service told him.

In any event, we think the fact that the betting line originally emanated from New York or Las Vegas is insufficient to establish even a de minimis connection with interstate commerce. See Turner, 272 F.3d at 388 (holding connection with interstate commerce not established where victim’s illegal lottery was based on winning lottery numbers from Michigan and Ohio). The government raises several other arguments in support of its contention that a connection with interstate commerce was established with respect to the extortion of the independent bookmakers which we find unpersuasive.

The government relies on United States v. Carmichael, 232 F.3d 510, 516 (6th Cir.2000), for the proposition that the requisite connection is established where there is a realistic probability that some of the money to pay the extortion would come from the proceeds of interstate gambling. While we agree that this is a correct proposition of law, this case is distinguishable from Carmichael because in Carmichael there was specific evidence that the bookmaking operation took bets from gamblers in Kentucky, Alabama, and Tennessee. See id. at 513.

As noted above, in this case, there was no evidence presented regarding the client base of the independent bookmakers. Thus, there was no basis upon which a juror could conclude that money to pay the extortion would come from the proceeds of interstate gambling. Therefore, Carmichael is inapplicable in this case. Finally, the government relies on United States v. Ables, 167 F.3d 1021 (6th Cir.1999) and United States v.

Wall, 92 F.3d 1444 (6th Cir.1996), for the proposition that it is not necessary to prove an effect on interstate commerce on a case-by-case basis because Congress has already determined that illegal gambling itself has an effect on interstate commerce. We agree with Appellant that these cases are inappo-site. Both Abies and Wall addressed Congress’ authority under the Commerce Clause to enact 18 U.S.C. § 1955, w'hich criminalizes the operation of illegal gambling businesses, in light of the U.S. Supreme Court’s decision in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995).

In Lopez, the Court held that Congress lacked authority under the Commerce Clause to enact the Gun Free School Zones Act, 18 U.S.C. § 922(q), because, inter alia, the statute' did not contain “a jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce.” Lopez, 514 U.S. at 561, 115 S.Ct. 1624.

The Court further noted that “neither the statute nor its legislative history eontain[s] express congressional findings regarding the effects upon interstate commerce of gun possession in a school zone.” Id. at 562, 115 S.Ct. 1624; see also Wall, 92 F.3d at 1447 (analyzing Lopez). In applying Lopez to § 1955, the Wall Court observed that like § 922(q), § 1955 does not have a jurisdictional element to ensure on a case-by-case basis that the illegal gambling in question has an effect on interstate commerce. Wall, 92 F.3d at 1450.

Unlike § 922(q), however, the Court noted that the legislative history of § 1955 contains “reams” of information supporting a specific finding by Congress that illegal gambling makes widespread use of and has an effect on interstate commerce. Id. As a result, the Wall Court concluded that “18 U.S.C. § 1955 is a proper exercise of congressional power under the United States Constitution.” Id. at 1452. The Court in Abies essentially followed the reasoning of the panel in Wall.

In contrast, as Appellant correctly points out, the issue presented here does not involve a challenge to Congress’ power under the Commerce Clause to enact the Hobbs Act. Moreover, unlike both § 922(

q) and § 1955, the Hobbs Act contains a specific jurisdictional element which ensures the act in question affects interstate commerce on a case-by-case basis. See 18 U.S.C. § 1951(“Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any

article or commodity in commerce ....”) (emphasis added). Thus, because the statute contains a jurisdictional element, there is no need to examine congressional findings to determine whether the Hobbs Act is an appropriate exercise of legislative power under this Court’s decisions in Abies and Wall. However, what Abies and Wall do not stand for is the proposition that the government really asserts — that the prosecution is relieved from proving an essential element of the offense by proof beyond a reasonable doubt where Congress has made findings of fact concerning the area regulated.

Of course, under the Hobbs Act, the government is required to prove beyond a reasonable doubt the interstate commerce element. See Turner, 272 F.3d at 389. No congressional findings of fact can substitute for proof on this element. For the reasons stated above, we find the evidence with regard to the interstate commerce connection sufficient to sustain the convictions on Counts 1, 2, and 3 of the indictment. With respect to Count 4 of the indictment, however, we find that the evidence was insufficient to support a connection with interstate commerce under the Hobbs Act.

Accordingly, Appellant’s conviction on Count 4 of the indictment is reversed. 3. Appellant’s Involvement in Extortion Conspiracies Appellant’s next assignment of error charges that the evidence was insufficient to establish that he had any culpable involvement in extorting campaign contributions from Bruce Zoldan, as alleged in Count 3 of the indictment, or extorting a street tax from independent bookmakers, as alleged in Count 4 of the indictment.

As we have already reversed Appellant’s conviction as to Count 4, we need only address whether the evidence was sufficient to sustain a conviction for the conspiracy to extort Bruce Zoldan. Although we agree with the district court that the evidence supporting this conviction was not strong, we do believe that there was sufficient evidence for the jury to infer that Appellant was involved in a scheme to extort campaign contributions from Zol-dan.

Zoldan testified that his chief security officer, Bob Martino, told him that Chicase told Martino to tell him that he (Zoldan) “did not treat the Chance campaign fairly and did not give what [he] was able to afford to give and that it won’t be forgotten about, won’t be forgotten, and that [he] will pay the price.” Jt. Appx. at 88. Mar-tino testified that Chicase told him to relay a message to Zoldan: “[I]f Bruce didn’t come across he [Chicase] was going to shut his operation down.” Id. at 102.

Chicase stated that during the campaign he and Appellant discussed closing down Zoldan’s fireworks business on the 4th of July because Zoldan had not contributed to the campaign, although “it wasn’t a definite thing.” Id. at 371. Chicase could not remember if he told Martino that Appellant was considering shutting down Zol-dan, but did admit that he might have said that. Id. at 371-72. O’Nesti testified that Appellant told him that if Zoldan did not “come up with how many thousands, screw him, he’s got the fourth of July and everything goes down, I will shut him down.” Id. at 176.

Although there are gaps in the evidence, there are enough details to support an inference that Appellant and Chi-case conspired to extort campaign contributions from Zoldan. We think the fact that the threats Chicase and Appellant made against Zoldan mirror their initial conversation on the subject during the campaign indicates that at some point in time after this conversation Appellant and Chicase reached an agreement to extort Zoldan for campaign money.

Furthermore, we believe it irrelevant that Chicase did not make the threat until after the campaign was over since Zoldan testified that his contributions were made to help pay off Appellant’s campaign debts. See Jt. Appx. at 87-88. Accordingly, for the reasons stated, we believe the evidence was sufficient to support the jury’s conclusion that Appellant was involved in a conspiracy to extort campaign contributions from Bruce Zoldan in violation of the Hobbs Act. Therefore, this assignment of error is not well-taken. 4.

Obstruction of State or Local Law Enforcement Appellant next contends that the evidence was insufficient to support a conclusion that the Greek Coffee House was an “illegal gambling business” within the meaning of 18 U.S.C. § 1511. Therefore, Appellant argues, his conviction for violating § 1511 as alleged in the indictment should be reversed.

Section 1511 provides in relevant part: (

a) It shall be unlawful for two or more persons to conspire to obstruct the enforcement of the criminal laws of a State or political subdivision thereof, with the intent to facilitate an illegal gambling business if— (1) one or more of such persons does any act to effect the object of such a conspiracy; (2) one or more of such persons is an official or employee, elected, appointed, or otherwise, of such State or political subdivision; and (3) one or more of such persons conducts, finances, manages, supervises, directs, or owns all or part of an gambling business. rects, or owns all or part of an illegal gambling business. (

b) As used in this section— (

b) As used in this section— (1) “illegal gambling business” me gambling business which— (1) “illegal gambling business” means a gambling business which— (

i) is a violation of the law of a St political subdivision in which it if ducted; (

i) is a violation of the law of a State or political subdivision in which it is conducted; (ii) involves five or more person; conduct, finance, manage, supervi; rect, or own all or part of such bus and (ii) involves five or more persons who conduct, finance, manage, supervise, direct, or own all or part of such business; and (iii) has been or remains in substa; continuous operation for a period cess of thirty days or has a gross nue of $2,000 in any single day. (iii) has been or remains in substantially continuous operation for a period in excess of thirty days or has a gross revenue of $2,000 in any single day.

L8 U.S.C. § 1511. Appellant argue; he evidence was insufficient to sup] lonclusion that five or more person; lucted or managed the'alleged illegal Dling business for the continuous lay period. Therefore, Appellant a: lis conviction on Count 5 of the indie should be reversed. We agree with i ant that the evidence was insufficii support a finding that five or more pe sonducted an illegal gambling busim shat it was in substantially continuoi iration for more than thirty conti lavs. 18 U.S.C. § 1511.

Appellant argues that the evidence was insufficient to support a conclusion that five or more persons conducted or managed the'alleged illegal gambling business for the continuous thirty day period.12 Therefore, Appellant argues, his conviction on Count 5 of the indictment should be reversed. We agree with Appellant that the evidence was insufficient to support a finding that five or more persons conducted an illegal gambling business or that it was in substantially continuous operation for more than thirty continuous days.

Initially we note that in order to determine whether the government has established the “illegal gambling business” element of § 1511 we may consult case law interpreting 18 U.S.C. § 1955, which includes as an element of the offense the identically defined “illegal gambling business.” See 18 U.S.C. § 1955(b)(1); see also United States v. Marrifield, 515 F.2d 877, 880 (5th Cir.1975) (stating that § 1511 and § 1955 have been construed in pari materia). We are not satisfied that the evidence demonstrated that the government established by proof beyond a reasonable doubt the five person requirement of § 1511.

The five person requirement can “be satisfied at any point during the thirty days, regardless of the duration of the person’s involvement in the business, so long as his or her participation is either regularly helpful or necessary to the operation of the gambling enterprise.” United States v. Mick, 263 F.3d 553, 568 (6th Cir.2001) (emphasis added)(internal quotation omitted). The only evidence submitted in support of Count 5 was the testimony of Jeep Garono and Lenny Strollo. Garono testified that when he controlled the barbut game at the Greek .

Coffee House the participants were Garono, Victor Malis, with whom Garono split profits, Victor Malis’s brother, who was a dealer, and “another Greek kid who dealt there.” See Jt. Appx. at 298-99. Garono’s testimony establishes only that four persons participated in the gambling business when he was in charge. Garono did testify that Gary Goodrick dealt at the Greek Coffee House, but not until after he had turned the game over to Bernie Altshuler. Id. at 299.

Lenny Strollo testified that he split the profits from the game with Bernie Altshuler and Victor Malis and that Eddie Pruneski was a dealer and that Gary Goodrick dealt there “on occasion.” Id. at 220-21. Although clearly more than five people were involved over the life of the operation, we find no evidence that five or more people were involved during any single thirty day period.

Compare with Marrifield, 515 F.2d at 880-81 (under § 1955, holding that five person requirement met even though only four persons were present at business at one time because the evidence showed that there were five active participants who rotated through four positions). For instance, although Strollo shared profits with Bernie Altshuler when Altshuler had the game, there was no evidence that Strollo shared profits with Garono when Garono ran the game.

In addition, although Strollo’s testimony identifies five people who were involved in the game when he shared profits with Bernie Altsh-uler, he testified that Gary Goodrick dealt only “on occasion.” We do not believe testimony that Goodrick dealt “on occasion,” without further amplification as to the frequency of the occasions, is sufficient to show either regular or necessary participation in the alleged gambling business. See, e.g., United States v.

Murray, 928 F.2d 1242, 1248-49 (1st Cir.1991) (holding that five-person requirement not satisfied where bartender took bets on only four occasions over fifty-six day period). Therefore, Strollo’s testimony, we find, establishes that only four persons participated in operating the barbut game during the time that he participated in the operation. Moreover, we find that the five-person requirement is not satisfied by evidence that the cumulative number of participants in the alleged illegal gambling business was five or more.

The legislative history to § 1511 indicates that in enacting §§ 1511 and 1955 Congress intended only to regulate illegal gambling activities of a particular size or scope. See United States v. Tarter, 522 F.2d 520, 525-26 (6th Cir.1975) (explaining legislative history). The fact that an operation has employed more than four people over the course of its existence does not necessarily increase the size or scope of its activities in order to bring it within the reach of the statute.

For instance, over a period of time, three principal operators of a card game may employ fifteen different dealers, but only one at a time and only in succession. In such a case, the card game would not be an “illegal gambling business” because it never had more than four active participants at any one time. The evidence adduced in the present case parallels our example. Although the evidence presented by the government suggests that over time perhaps as many as nine persons were involved in the barbut game at the Greek Coffee House, their participation was successive and not simultaneous.

At most, the testimony establishes that four persons (Garono, Victor Malis, Malis’s brother, and “the Greek kid”) were involved when Garono controlled the game and that he turned the game over to Bernie Altshuler, and then essentially a different cast of four persons (excluding Goo-drick) ran the operation (Altshuler, Strollo, Malis, and Pruneski). Thus, we reiterate, the evidence presented by the government was insufficient to establish the five person requirement of § 1511(b)(l)(ii).

Furthermore, we are unconvinced that the government proved beyond a reasonable doubt that the barbut game at the Greek Coffee House was in substantially continuous operation for thirty or more days, as is required by § 1511(b)(l)(iii). As we read the trial transcript provided, there is a general sense imparted from the testimony that the barbut game may have been in existence for a number of years. The government, however, never elicited testimony which described the specific time periods the game was in operation. For instance, Jeep Garono testified as follows: See Jt. Appx. at 298.

Garono then goes on to testify about how barbut is played and states later that he turned the game over to Bernie Altshuler after the FBI raided a Super Bowl party in 1996. Reading Garo-no’s testimony we find it unclear: 1) whether barbut was in fact played at the Greek Coffee House in the 1980’s; 2) when Jeep Garono assumed control of the game; 3) if the game was in existence between the 1980’s and the time Garono assumed control of the game; and 4) whether the game was held on a regular basis after Garono assumed control of the game.

See Tarter, 522 F.2d at 525 (“The provisions of [sections 1511 and 1955] do not apply to gambling that is sporadic or of insignificant monetary proportions.”) (quoting legislative history); United States v. Trupiano, 11 F.3d 769, 773-74 (8th Cir.1993) (stating “substantially continuous” does not mean every day; rather “the operation ... must be one that was conducted upon a

schedule of regularity sufficient to take it out of the casual nonbusiness category. ”)(quoting United States v. Nerone, 563 F.2d 836, 843 (7th Cir.1977)). Q. What kind of activity took place at the Greek Coffee House? A. Are we talking 80’s? Q. Let’s talk 80’s and more recent time; what’s the main game they played? A. Barbute [sic]. Lenny Strollo’s testimony on this point is similarly non-specific and we think the government exaggerates if not distorts his testimony by arguing that he testified that gambling had been going on at the Greek Coffee House “for years.” See Gov’t’s brief at 39.

Strollo testified as follows: Q. What is the Greek Coffee House? A. It’s a coffee house that the Greeks have had for years that they congregate together and they play short cards, and when I say short cards, you know, they have Greek games like Greek rummy. And just to pass the time and they sell their Turkish coffee. Q. What happens at night after hours? A. Barbute [sic], and the game barbute [sic] is a Greek game. It’s a dice game. Q. Is it a gambling game? A. Yes. Jt. Appx. at 220.

In fact, Strollo testified only that the Greeks have owned the coffee house for years, not that gambling had gone on there for years. Like Garono’s testimony, Strollo’s overall testimony is lacking in details as to the frequency with which the game was conducted, although, as stated, there is a general sense that the barbut game was held on a regular basis for a number of years. Frankly, we find the gaps in the evidence astounding given that the government called on two of the game’s proprietors, who presumably knew all the details of the operation, to provide testimony in support of the charge.

Were this a civil matter, we think the proofs on this issue were sufficient to carry the day in that the barbut game at the Greek Coffee House probably meets the thirty day requirement. In a criminal case, however, the government cannot meet its burden of proof by imparting a general impression that the defendant’s conduct meets one of the elements of the offense, particularly where there is no apparent reason, other than carelessness, for not adducing more specific testimony on the issue.

Accordingly, for the reasons stated, we find that the evidence was insufficient for the jury to find that the barbut game at the Greek Coffee House meets either the five person requirement or the thirty day requirement of § 1511. Therefore, the government failed to prove that the barbut game was an “illegal gambling business” under § 1511 and thus failed to prove an essential element of the offense. Consequently, Appellant’s conviction on Count 5 of the indictment must be reversed. B.

Scope of Cross Examination Appellant next claims that he was denied a fair trial when the district judge permitted cross-examination which suggested guilt through association. This alleged error, Appellant argues, merits reversal of each of his convictions and remand for a new trial. This assignment of error stems from the trial judge’s ruling that on re-direct examination of Appellant, Appellant’s trial counsel “opened the door” for the prosecution to inquire into the criminal indictments and prosecutions of certain subordinates of Appellant’s within the Mahoning County Sheriffs Department.

On re-direct examination, Appellant testified as follows: Q. Now, [AUSA] Morford also asked you some questions regarding employees that you hired. Do you recall that? You said that Russell Osman— A. Correct. Q. who is a friend of yours, worked in the campaign. Rocky Russo’s son— A. Yes. Q. who was hired as a deputy. Mark Colucci as a personnel adviser, correct? A. Correct. Q. Your cousin Rick Farina, correct? A. Correct. Q. Did you ever consider hiring your political enemies? A. No, sir. Q. Have these individuals that I just mentioned, were they loyal campaign workers in your campaign? A.

The majority of them, yes. Q. Did you also know them to be competent hard-working folks? A. Yes, they were all very competent, except for John [Chicase], he became a disappointment. Jt. Appx. at 527. At that point, the AUSA asked to approach the bench for a side-bar conference. The following discussion, which we quote at length, took place during the side-bar: Mr. Morford [AUSA]: I’m going to ask that that last question and answer be stricken or he’s opened the door for me to get into the fact that half the department is under indictment; that they go out and they plant drugs in raids, including his brother. Mr.

Lonardo [defense counsel]: I didn’t mention his brother. Mr. Morford: You asked about employees who are competent. The Court: Competent hard-working people. Are you crazy? You just opened the biggest door to bring a truck through. Mr. Morford: Maybe I should drive the truck through. I would like to leave the answer and pursue that on recross. Mr. Lonardo: I asked about Russell Osman. Mr. Morford: You asked about the employees were competent people that he [Appellant] promoted. He promoted his brother. Mr. Lonardo: I specifically asked about four people.

Russell Osman— The Court:You asked if the employees that he hired were all competent hardworking— Mr. Lonardo: No, I just asked about those four. Mr. Morford: You tried to create the impression that these people he hired and promoted are honest hard-working people, and you know they’re not. Mr. Lonardo: No. I asked the question regarding four people, that he — you mentioned Russell Osman, I mentioned Russell Osman. You mentioned Rocky Russo’s son, I mentioned Rocky Russo’s son. I think I also mentioned-who was the third one I mentioned-it is nobody under indictment or anybody that is in trouble.

The Court: You know, Mr. Lonardo, the government has held back extremely. You have brought out so many references of trying to make this man out to be the most honorable man that ever walked down the pike. You have talked about character evidence, you have talked about Juanita Rich being the savior of Mahoning Valley. They haven’t directly approached any of those, but you opened the door to this, and I am going to allow some limited cross.

I’m not going to allow, I’m not going to open this trial and have a mini-trial on all these individuals, but he has the right to question him about the character of these people. Mr. Morford: There is one other point- and I’m not going to pursue it, but if he continues to open doors then I’m going to continue to pursue these-he asked about whether Mr. Chance’s opponents were smearing his good reputation, knowing that one of the things that they accused him of was failing a polygraph when there were documents to show it, and the Court has asked us to stay away from that.

These are the kinds of things they’re doing and if they’re going to open those doors we’re going to start going through them. We have been very careful not to do those kind of things, and as you said about Juanita Rich, the defendant through his counsel yesterday conceded to us that Mr. Chance did meet with her in hotel rooms and had sexual encounters. But if they continue down this road and continue to present this man as something he!s not, then they’re opening the door, and we’ll begin to respond in kind.

The Court: You have opened a lot of doors, and I think the government could have driven through a lot of them and they haven’t. I think at this point it probably would have been fair game for them to go into all that stuff, and it is certainly fair game at this point for them to address. Mr. Yelsky [Defense co-counsel]: Indictments? The Court: You just had him testify to the character and the quality of the individuals he hired, and— Mr. Yelsky: He didn’t hire Jeff Chance. Mr. Morford: He promoted him. The Court: You said hired. Mr. Morford: You opened the door. Mr. Yelsky: Wait a minute.

He did not hire Jeff Chance. We didn’t mention his name. Mr. Lonardo: Just so the record is clear, the record will speak for itself, I mentioned these four people. If it’s construed I’m talking about his entire department, that was not my intent. Mr. Morford: By mentioning that, even if that’s all you did, and I don’t think that’s what you did, by mentioning that these four of the people he hired or promoted are very hard-working competent good people, you’ve opened the door to about the fact that key people he hired are not in-and his last comment was that John Chicase was the only bad person he hired.

The Court: The only bad person, that’s what he said. Mr. Morford: That’s what it was. Now he’s opened the door. Mr. Yelsky: He did say that. The Court: Part of my problem, Mr. Lonardo, is that I have given you a lot of places in which I have attempted to limit the government, and each time, in my view, you abuse those limitations. With respect to this whole thing about Bruce Zoldan, I said they weren’t allowed to bring out he fired him because he didn’t trust him, and you bring out evidence and testimony saying that he gave him a completely different job offer.

You painted a completely different picture with respect to the Juanita Rich thing. I limited the government, and you in opening statement and throughout your cross-examination of Mr. Strol-lo kept holding her out, despite the limitations I placed on the government. You know, I can’t be in a position where I give you the benefit of rulings and then you abuse them. I’m going to allow you to recross to talk about the individuals that he hired. Jt. Appx. at 528-32. On recross-examination, the government queried Appellant about two specific instances of misconduct involving members of the Appellant’s department.

The first involved a drug raid led by Jeff Chance, Appellant’s brother, in which a bag of powder was seized. Based on information provided to him, Appellant represented to the media that the bag contained cocaine when in fact it contained flour. The bag was never booked into evidence. The trial court permitted the government to elicit testimony from Appellant that his brother was under indictment from this incident on unspecified charges. Jt. Appx. at 535-38.

The government also adduced testimony from Appellant that another one of his deputies, Antonio Owens, had pled guilty to obstructing justice for falsely swearing out an affidavit in support of a search warrant. Id. at 538-39. At that point, Appellant moved for a mistrial on the grounds that the AUSA’s questions exceeded the permissible scope of cross-examination and that the Court had permitted evidence of an indictment to be proof of guilt. Trial counsel also asked the Court to issue a cautionary instruction to the jury stating that the fact of an indictment is not proof of guilt. Id. at 540.

The district court denied Appellant’s motion for a mistrial on the grounds that trial counsel had repeatedly abused the limitations and rulings on evidence it had given in Appellant’s favor. The court also declined to issue the requested cautionary instruction on the grounds that the jury had already been instructed that an indictment is not evidence of guilt and that it would instruct the jury on that point again during the closing instructions. Id. at 540-41.

On appeal, Appellant argues that the trial judge committed prejudicial error by allowing the prosecution to suggest that he was guilty of the crimes charged through association with family members and employees of the Sheriffs Department. Appellant argues that his questioning was limited to the four persons specifically identified by trial counsel and that the trial court mischaraeterized his testimony as a broad endorsement of all of the persons he hired.

Moreover, Appellant argues, evidence that other employees were indicted does not rebut his testimony that the four persons he mentioned were competent and hard-working. Appellant also contends that the trial court allowed the prosecution to inquire about other deputies simply as a punitive measure for perceived excesses of trial counsel. Appellant also claims that the trial court failed to give the jury a proper limiting instruction during final instructions.

While we agree with some of Appellant’s arguments as a matter of general principle, we disagree that the trial judge committed reversible error with respect to these evidentiary rulings. The trial court has broad discretion regarding the scope of cross-examination. United States v. Mohney, 949 F.2d 1397, 1409 (6th Cir.1991). Moreover, where one party has “opened the door” on an issue, the opponent, in the trial court’s discretion, may introduce evidence on the same issue to rebut any false impression that may have been created by the earlier admission of evidence. See United States v.

Segines, 17 F.3d 847, 856 (6th Cir.1994). We review a trial court’s rulings on the scope of cross-examination and admissible rebuttal evidence for abuse of discretion. See id; Mohney, 949 F.2d at 1409. As stated, we.agree with Appellant on several points as matters of general principle. We disagree, however, as to the application of some of those principles to this case. For instance, we observe that a witness may not be impeached by evidence that he or she was indicted for a crime, since an indictment is not any evidence of guilt. See Pearson v. United States, 192 F.2d 681, 699 (6th Cir.1951).

We also agree that the prosecution may not comment on the fact that the defendant has been indicted on the crimes being tried as proof of guilt. See United States v. Bowen, 500 F.2d 41, 41 n. 1 (6th Cir.1974). We further agree that establishing guilt by association is also an improper manner by which to obtain a eon-viction, United States v. Gibbs, 182 F.3d 408, 423 (6th Cir.1999), and that the prosecution may not use proof of another’s conviction as evidence against the accused. See Kirby v. United States, 174 U.S. 47, 59-61, 19 S.Ct. 574, 43 L.Ed. 890 (1899).

We think, however, that in general the cases and principles cited to us by Appellant are inapplicable to this case. For example, unlike Pearson, the government was not, in general, attempting to impeach a witness through evidence of an indictment on a prior, unrelated charge. In addition, unlike the case in Bowen, the prosecution did not comment upon the fact of Appellant’s indictment as proof that he was guilty of the crimes charged.

Gibbs is distinguishable from the present case because in that case, which concerned a drug conspiracy prosecution, the trial court permitted the government to establish participation in the conspiracy simply through proof that thé défendant associated with other gang members who sold drugs. See Gibbs, 182' F.3d at 423. In Kirby, which involved a prosecution for receiving stolen postage stamps, the trial court permitted the government to prove that the postage stamps were stolen by submitting the transcript of an earlier trial in which three other men pled guilty to stealing the stamps in question.

See Kirby, 174 U.S. at 53-54, 19 S.Ct. 574. In contrast, we do not think that the testimony elicited by the government tended to establish directly guilt through association with others involved in the same or similar conduct, as was the case in Gibbs. Nor did the testimony directly establish an element of any of the offenses, as was the case with the trial transcript in Kirby.

Although we have not been furnished the entire trial transcript on this appeal, the discussion during the side-bar conference we quoted supra indicates that throughout the trial, Appellant’s counsel attempted to paint a picture of Appellant as a good law enforcement official who was betrayed by a trusted associate. Indeed, that was the theme of trial counsel’s opening argument. Therefore, we believe that the trial judge properly determined that the prosecution was entitled to adduce some evidence to rebut the implication that Appellant was a responsible law enforcement officer.

The only question that remains is whether the trial judge improperly expanded the scope of recross-examination. We think not. Initially, we do agree that counsel’s question (“Did you also know them to be competent hard-working folks?”), as posed to Appellant, was intended to be limited to be to the specific persons identified — Osman, Russo, Colucci, and Farina. We believe, however, that Appellant’s answer (“They all were very competent, except for John[.]”) expanded upon the question and implied that everyone in the department but Chicase was a competent employee.

Therefore, the trial judge did not abuse her discretion by allowing the prosecution to cross-examine Appellant about the performance of other deputies within the department. Furthermore, the testimony the government elicited from Appellant fairly rebuts the implication contained in his answer to the question. The phrase “competent hard-working people” suggests that the persons identified were wholesomely industrious citizens. We do not think that wholesomely industrious law enforcement officers plant evidence, mistake flour for cocaine, or swear out false affidavits in support of search and arrest warrants.

Consequently, we reject Appellant’s contention that the testimony elicited does not impeach the claim. We recognize that the testimony showed that Appellant’s brother was only indicted, and not convicted of any crime, for the flour/cocaine incident. Appellant, however, admitted that the facts underlying the indictment were true — flour was identified as cocaine and the evidence was later lost and/or destroyed.

Therefore, the typical reason for excluding indictment evidence (the indictment is only an accusation, not fact) is not implicated because Appellant’s admission established the impeaching fact-that some deputies on his staff were not competent hard-working people. In the false affidavit incident, the deputy actually pled guilty to the charge. Thus here, the government did not elicit any indictment evidence at all. We also reject Appellant’s contention that the trial judge allowed the government to adduce the contested evidence as a punitive measure for the perceived excesses of trial counsel.

While the judge did comment that trial counsel had abused her prior rulings about eliciting character evidence, we believe in toto that the side-bar colloquy merely indicates a recognition on the part of the district judge that counsel was attempting to create a false impression of Appellant that the government was entitled to rebut. See Segines, 17 F.3d at 856. Therefore, we find that the trial court’s evidentiary ruling was not simply a retaliatory gesture as Appellant contends.

The only issue which gives us some pause is the district court’s refusal to give the jury a contemporaneous limiting instruction under Federal Rule of Evidence 105 on the proper uses of the challenged testimony as Appellant’s trial counsel requested. Rule 105 provides: When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. Fed.R.Evid. 105.

Although the Rule states that a limiting instruction shall be given upon request when such evidence “is admitted,” the text itself does not clearly require the trial court to give the instruction at the same time the jury is exposed to the evidence. The phrase “is admitted” may reasonably be interpreted to require simply that the trial court give the requested instruction during final instructions, as the trial judge indicated she would do in this case.

But see 21 Wright & Graham, Federal Practice & Procedure § 5065, at 328 (1977 & Supp.2001) (stating that Rule 105 requires trial judge to give contemporaneous instruction if requested). In the context of Rule 404(b), which governs the admissibility of prior acts evidence, this Court has held that it is within the trial judge’s discretion to decide whether to give the limiting instruction contemporaneous with the introduction of the evidence or during final instructions. See, e.g., United States v. Dabish, 708 F.2d 240, 243 (6th Cir.1983).

In Dabish, the Court noted that a contemporaneous limiting instruction may unduly émphasize the evidence in the minds of the jury. See id. In United States v. Miller, 115 F.3d 361 (6th Cir.1997), the Court held that the defendant was not substantially prejudiced where the trial judge did not give a contemporaneous limiting instruction but instead incorporated the instruction in its final instructions to the jury. See id. In United States v.

Latouf, 132 F.3d 320 (6th Cir.1997), the Court did hold that the trial judge erred by not giving an appropriate limiting instruction until after a weekend had passed between the introduction of the evidence and the giving of the instruction. Id. at 329. The Court ruled, however, that the trial court’s error was harmless given the weight of the other evidence establishing the defendant’s guilt. Id.

More recently, this Court, albeit in an unreported decision, reiterated that a trial judge may appropriately give the limiting instmction during final instructions where the defendant is not substantially prejudiced by the timing. See United States v. Ruggles, No. 98-5477, 2000 WL 331970, at *7 (6th Cir. Mar.24, 2000).

In this case, although the trial judge did not give a contemporaneous limiting instruction, we do observe that during final instructions the coui-t reminded the jury that it had heard evidence that other persons may have committed other illegal acts and that such evidence could not be considered as evidence that Appellant committed the crimes charged in the indictment. See Jt. Appx. at 671. The trial court further gave an appropriate instruction to the jury on the proper purposes for which such evidence could be considered. Id. at 671-72.

Although the instruction was not particularly tailored to the testimony the government elicited from Appellant, we do not find on this record any indication that Appellant requested the trial court to give a more specific instruction during final instructions. Therefore, we believe that Appellant has waived any claim to the adequacy of the instx-uction actually given. In any event, we think that any prejudice Appellant suffered as a result of the timing of the instruction was minimal.

The government’s inquiry was limited to two specific instances of conduct by other deputies that were unrelated to the crimes charged in the indictment. Moreover, as the government points out in its brief, the prosecutor did not exploit this testimony by re-emphasizing it during closing argument. Although we have reversed two of the counts on which Appellant was convicted, we believe it is more likely than not that the jury would have reached the same verdicts on the other charges, on which we have held the evidence was sufficient to support the convictions, even in the absence of the challenged testimony.

Therefore, we think any error, if indeed the trial court did err, was harmless. See United States v. Martin, 897 F.2d 1368, 1372 (6th Cir.1990) (“Where an error is not of constitutional dimensions, it is harmless unless it is more probable than not that the error materially affected verdict.”). Accordingly, in

summary, we find this assignment of error to be without merit. C. Sentencing Issues Appellant next challenges the district court’s decisions to impose a two-lev

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