OPINION

I

This case involves allegations of numerous bribes paid by Patrick Frega, a San Diego attorney, to three then Superior Court judges, Dennis Adams, James Malkus, and Michael Greer. Over a period of twelve years, Frega, together with Jim Williams, the owner of a San Diego car dealership, purportedly gave more than $100,000 in payments and benefits — ranging from automobiles, car repairs, money orders, an apartment, health club memberships, and a queen-sized bed — to the judges or members of their families. In exchange, Frega allegedly sought and received an unfair advantage in the cases in which he was involved in the Superior Court.

In June of 1996, after Greer became a witness for the prosecution, a grand jury returned a twenty-one count indictment against Frega, Malkus and Adams. The Indictment charged all three with RICO conspiracy in violation of 18 U.S.C. § 1962(d) ("Count One"). This charge was based on allegations that the three defendants had conspired to conduct the affairs of the Superior Court through a pattern of racketeering activity consisting of multiple acts of bribery in violation of Sections 92 and 93 of the California Penal Code and extortion in violation of 18 U.S.C. § 1951. Frega, Adams and Malkus were also charged with eighteen counts of mail fraud in violation of 18 U.S.C. § 1341 and 1346. The mail fraud counts specifically related to mailings done in furtherance of the defendants' alleged scheme to defraud the people of the State of California by depriving them of their right to the honest services of judges of the Superior Court. Most of the mailings listed in the Indictment related to an investigation of the defendants' actions conducted by the California Commission on Judicial Performance and involved documents sent to the Commission by Frega and the judges. A few related to proceedings in the Superior Court. Additionally, the grand jury charged Frega with a substantive RICO offense in violation of 18 U.S.C. § 1962(c), and with forfeiture allegations pursuant to 18 U.S.C. § 1963. The substantive RICO charge alleged that Frega not only conspired to conduct the affairs of the Superior Court through his bribes, as charged in Count One, but that he in fact succeeded in doing so.

During a thirty-day jury trial, Malkus was the only defendant to take the stand. He professed complete ignorance of Frega's various expenditures on behalf of himself and his family. Adams, through counsel, acknowledged receiving Frega's many payments and benefits, but contended that he did so without corrupt intent. It was Frega's defense that his gifts to the judges were just that, gifts not bribes, conferred out of friendship and generosity.

The jury found Frega, Malkus, and Adams guilty of the RICO conspiracy charge. Frega was convicted on thirteen mail fraud counts, Adams of five such counts, and Malkus of six. The jury also found Frega guilty of committing the substantive RICO offense. The district court sentenced Frega and Adams to forty-one months imprisonment, and Malkus to thirty-three months.

Each appeals his conviction, raising myriad claims of error. The government cross-appeals the district court's application of the bribery guidelines and its refusal to adjust Frega's offense level upward for being a leader or organizer under U.S.S.G. § 3B1.1(a). We first analyze the defendants' claims and then the government's cross-appeal.

II

Frega claims that he was denied due process in the resolution of his claim of prosecutorial conflict of interest. Prior to indictment, Frega filed a motion to recuse the U.S. Attorney's Office on the ground that one of the attorneys in the office, Assistant U.S. Attorney Michael Dowd, had represented Frega before the Judicial Commission with respect to this case and had joined the law firm that represented Greer before the Commission. The district court found that an evidentiary hearing was unnecessary as Frega provided no evidence to believe that any disclosure by Dowd had occurred, or that the fire-wall built around the investigation before Dowd joined the office, or the office-wide screen that had been established specifically for Dowd after it was learned that Dowd was conflicted, was in any way breached. District judges have "substantial latitude" in deciding whether counsel must be disqualified, and we see no abuse of discretion. United States v. Stites, 56 F.3d 1020, 1024 (9th Cir. 1995).

Declarations from those in charge of the investigation representing that they had received no information from Dowd, and that they had directed others working on it not to speak to Dowd, were uncontradicted. That the government did not submit a declaration from Dowd himself does not change the analysis. The U.S. Attorney's Office believed it would breach the fire-wall for any of its attorneys to obtain a declaration from Dowd, but the government did recommend that the court ask for one should any questions remain. In any event, Frega knew what Dowd knew and could have specified which broken confidences, if any, were suggested by the government's submissions. On the record adduced, there is no reasonable possibility of prejudice to the verdict, and thus no due process violation. See United States v. Velasquez-Carbona, 991 F.2d 574, 576 (9th Cir. 1993).

III

Malkus suggests that his prosecution exceeds the bounds of federal authority under United States v. Lopez, 514 U.S. 549 (1995), which he reads to indicate that it is up to the states to decide whether criminal sanctions are necessary in areas of traditional state concern such as the state judiciary. He also relies upon McNally v. United States, 483 U.S. 350 (1987), which he reads as holding that Congress must clearly state that it seeks to regulate the conduct of state officials. The short answer is that RICO explicitly makes it unlawful to agree to conduct an enterprise through predicate acts of state criminal violations, such as bribery. 18 U.S.C. § 1961(1)(A). As we recently noted:

That RICO embodies a fundamental federal policy can scarcely be disputed. . . . RICO represents a fundamental choice by Congress to employ the heavy artillery of federal law against a variety of organized criminal endeavors involving security fraud, wire fraud, and bribery.

Govett Am. Endeavor Fund Ltd. v. Trueger, 112 F.3d 1018, 1021-22 (9th Cir. 1997). Moreover, we have often affirmed RICO convictions involving bribery of state officials, see, e.g., Jackson, 72 F.3d at 1373 (bribery of state senator); United States v. Dischner, 974 F.2d 1502, 1506-08 (9th Cir. 1992) (bribery of a mayor), as have other circuits, see, e.g., United States v. Griffith, 85 F.3d 284, 288 (7th Cir.), cert. denied, ___ U.S. ___, 117 S.Ct. 272 (1996) ("[b]ribery of local . . . officials is just the sort of corruption connoted by the term `racketeering'"), and the United States Supreme Court, see Salinas v. United States, 118 S.Ct. 469, 472-73 (1997) (upholding RICO conspiracy convictions of deputy who accepted bribes from prisoners in county jail).

Beyond this, Malkus contends that RICO is facially unconstitutional under Lopez. Lopez struck down the Gun-Free School Zones Act on the ground that the statute did not implicate commercial activity that substantially affects interstate commerce. See Lopez, 514 U.S. at 551, 561. However, unlike the Gun-Free School Zones Act, RICO by definition prohibits participating in an enterprise "engaged in, or the activities of which affect, interstate or foreign commerce." 18 U.S.C. § 1962(c). Because RICO is aimed at activities which, in the aggregate, substantially affect interstate commerce, "all that is required to establish federal jurisdiction in a RICO prosecution is a showing that the individual predicate racketeering acts have a de minimis impact on interstate commerce." United States v. Juvenile Male, 118 F.3d 1344, 1348 (9th Cir. 1997). In other words, Lopez's "substantial effects" test is inapplicable. Unlike guns near schools that have "nothing to do with `commerce' or any sort of economic enterprise," Lopez, 541 U.S. at 561, courts in general, and the enterprise whose affairs Malkus conspired to conduct through bribery in particular, are concerned daily with economic activity that has at least a de minimis effect on interstate commerce. Malkus does not cite any authority to support applying Lopez to RICO. In fact, we have rejected similar Lopez challenges. See, e.g., Juvenile Male, 118 F.3d at 1348-49. Since Congress is plainly empowered to regulate activity that has an impact on interstate commerce, RICO is not unconstitutional on its face, nor as applied to Malkus.

IV

Malkus next points out that he, Frega, and Adams successfully challenged a federal bribery charge pursuant to 18 U.S.C. § 666 in the original indictment on the ground that the conduct in question did not threaten federal funds. See United States v. Frega, 933 F. Supp. 1536, 1543 (S.D. Cal. 1996). After that count was dismissed, a second superseding indictment was filed charging them with a RICO conspiracy. Malkus argues that this amounted to retaliatory action by the government for the exercise of procedural rights that resulted in dismissal of the § 666 charge.

While we have yet to settle on a standard of review for vindictive prosecution, see United States v. Montoya, 45 F.3d 1286, 1291 (9th Cir. 1995), we do not need to here, as Malkus's claim of prosecutorial vindictiveness fails whether our review is for abuse of discretion, clear error, or de novo. When, as here, there is no evidence of actual vindictiveness, "cases involving increased charges or punishments after trial are to be sharply distinguished from cases in which the prosecution increases charges in the course of pretrial proceedings." United States v. Gallegos-Curiel, 681 F.2d 1164, 1167 (9th Cir. 1982); see also United States v. Brooklier, 685 F.2d 1208, 1215-16 (9th Cir. 1982). At the pretrial stage, a prosecutor's assessment of the boundaries of his case may not yet have crystallized. See United States v. Goodwin, 457 U.S. 368, 381 (1982). In addition, defendants may be

expected to invoke procedural rights that inevitably impose some "burden" on the prosecutor. Defense counsel routinely file pretrial motions . . . to challenge the sufficiency and form of an indictment; . . . [i]t is unrealistic to assume that a prosecutor's probable response to such motions is to seek to penalize and to deter. The invocation of procedural rights is an integral part of the adversary process in which our criminal justice system operates.

Thus, the timing of the prosecutor's action in this case suggests that a presumption of vindictiveness is not warranted. A prosecutor should remain free before trial to exercise the broad discretion entrusted to him to determine the extent of the societal interest in prosecution. An initial decision should not freeze future conduct.

Id. at 381-82. Accordingly, a presumption of vindictiveness is not warranted here,

simply because the prosecutor's actions followed the exercise of a right, or because they would not have been taken but for exercise of a defense right. Rather, the appearance of vindictiveness results only where, as a practical matter, there is a realistic or reasonable likelihood of prosecutorial conduct that would not have occurred but for hostility or a punitive animus towards the defendant because he has exercised his specific legal rights.

Gallegos-Curiel, 681 F.2d at 1168-69 (citations omitted). Since Malkus has shown no likelihood that the second superseding indictment would not have been returned absent hostility or a punitive animus towards him because he moved to dismiss the federal bribery charges, the decision to charge the RICO conspiracy was not vindictive.

V

Adams, Malkus and Frega challenge their mail fraud convictions on various grounds.

A

Malkus and Adams claim that the mail fraud statute, 18 U.S.C. § 1346, does not reach schemes to deprive the people of a state of the intangible right to honest services, and that in any event § 1346 is unconstitutionally vague. In short, their argument is that Congress did not intend § 1346 to overrule McNally, 483 U.S. 350. We think it did.

18 U.S.C. § 1341 prohibits "any scheme or artifice to defraud" through the use of the mail. In 1987, the Supreme Court held that the mail fraud statute "protects property rights, but does not refer to the intangible right of the citizenry to good-government." Id. at 356. The Court added, "If Congress desires to go further, it must speak more clearly than it has." Id. at 360.

On November 18, 1988, Congress responded by enacting 18 U.S.C. § 1346, which provides: "For the purposes of this chapter, the term `scheme or artifice to defraud' includes a scheme or artifice to deprive another of the intangible right of honest services." The legislative history accompanying § 1346 specifically refers to the intention of Congress to overturn McNally. We have previously acknowledged that § 1346 overruled McNally. See, e.g., United States v. Lewis, 67 F.3d 225, 233 n. 13 (9th Cir. 1995). So have other circuits. We therefore make explicit what we have implicitly held before: Congress fully intended § 1346 to reach schemes that seek to deprive the people of a state of the intangible right to honest services.

Adams and Malkus submit that § 1346 is unconstitutionally vague. First, they contend that the word "another" is singular and cannot refer to the citizens of a state. However, "another" could also be read as referring to another state citizen, as the district court suggested in its published opinion, see Frega, 933 F. Supp. at 1546, or it could merely be inelegant. Either way, it is clear that Congress reacted, at the Court's invitation, to overrule McNally. We are not persuaded otherwise by Adams's attempt to find significance in the failure of the House to pass alternative versions of the statute that specifically mentioned public corruption. As the district court noted, that could simply mean that the House thought the Senate bill, which was somewhat broader in other respects, was better.

Malkus and Adams next argue that the terms "intangible rights" and "honest services" are unconstitutionally vague. A statute will be struck down on void for vagueness grounds if "it fails to give adequate notice to people of ordinary intelligence concerning the conduct it proscribes." Schwartzmiller v. Gardner, 752 F.2d 1341, 1345 (9th Cir. 1984). We agree with the district court that "[i]t is not unreasonable to conclude that a person of reasonable intelligence would conclude that the accepting of bribes while sitting as a judge constituted a criminal offense." Frega, 933 F. Supp. at 1547. As we have done before with the mail fraud statute, we reject the vagueness challenge here. See United States v. Bohonus, 628 F.2d 1167, 1174-75 (9th Cir. 1980).

B

Frega contends that the mail fraud convictions contain a fatal variance and are tainted by instructional error. The claimed variance is that the indictment charges a single scheme but multiple independent goals and relationships were actually shown. The proof in the pudding, he submits, is that the jury failed to convict all three on any single mail fraud count.

In order to convict for mail fraud, the jury had to find a scheme to defraud Californians of their right to the judges' honest services, and a use of the mails in furtherance of that scheme. The evidence need not exclude every hypothesis but that of a single scheme. See United States v. Mastelotto, 717 F.2d 1238, 1246 (9th Cir. 1983), overruled on other grounds by United States v. Miller, 471 U.S. 130, 135-36 (1985). We conclude that a rational trier of fact could find a single scheme to defraud because the two schemes are essentially the same, as are the factors to be considered. See United States v. Morse, 785 F.2d 771, 775 (9th Cir. 1986) (noting the "expansive standard for a single scheme"). Each mail fraud count alleged a separate mailing by Frega or one of the judges. While the jury could have found all three responsible for each mailing because all participants in a mail fraud scheme have joint liability, see United States v. Dadanian, 818 F.2d 1443, 1446 (9th Cir. 1987), modified, 856 F.2d 1391 (9th Cir. 1988), the fact that it did not is not inconsistent with a finding that all were involved in the larger scheme as charged. The jury could simply have believed that the others did not "cause" or know of the discrete mailings charged in each count, or it could have misunderstood the instructions as meaning that it should only find the person who actually did the mailing guilty on the count that charged that mailing.

Frega further claims that the court erred by failing to give a unanimity instruction because the possibility existed that the jury could have found multiple conspiracies. In the district court, he argued that there were two different schemes — one to bribe, the other to conceal. However, in textbook instructions, the jury was told that it had to find a scheme to defraud the people of the state of their right to honest services of superior court judges whereby Frega and Williams gave, and Adams, Malkus and Greer accepted, over one hundred thousand dollars in payments and benefits with intent to influence and reward California Superior Court judges. The jury was also told that it had to find that Frega and the judges used the mails to further the scheme. Mastelotto, upon which Frega relies, does not suggest that a different instruction was necessary. There, the instructions affirmatively invited conviction based on multiple schemes, and two distinct sorts of fraudulent transactions were involved (selling mislabeled oil at inflated prices, and sale of corporate subsidiaries based on inflated earnings). See Mastelotto, 717 F.2d at 1249-50. We reversed, because in those circumstances the jury should have been instructed that each juror had to find the defendant guilty of participation in the same single scheme to defraud, and that the scheme in which the defendant is found to have participated must be the same as the overall fraudulent scheme alleged in the indictment. See id. at 1249-51. Here, the instructions did not permit conviction based on a finding of different schemes, and unlike Mastelotto, bribery and concealing bribery are part and parcel of the same scheme. In sum, the court's repeated use of words such as "the" and "a" scheme, rather than "some" or "any," coupled with the direction that a verdict has to be unanimous, sufficiently informed the jury of the need to find a single scheme. See United States v. Feldman, 853 F.2d 648, 653-54 (9th Cir. 1988).

Finally, Frega argues that the court should have instructed the jury that good-faith was a complete defense to mail fraud charges. However, since the district court provided adequate instructions on the specific intent element of mail fraud, no good-faith defense instruction was required. See United States v. Sarno, 73 F.3d 1470, 1487 (9th Cir. 1995), cert. denied, 518 U.S. 1020, 116 S.Ct. 2554 (1996) ("Notwithstanding the normal rules governing`theory of defense' requests, the Ninth Circuit has held that`the failure to give an instruction on "good-faith" defense is not fatal so long as the court clearly instructed the jury as to the necessity of "specific intent" as an element of a crime.'" (quoting United States v. Solomon, 825 F.2d 1292, 1297 (9th Cir. 1987)).

Because the defendants offer no other challenges to their convictions on the mail fraud counts, we affirm those convictions.

VI

The defendants also raise a number of challenges regarding the predicate acts — the state bribery charges — which form the "pattern of racketeering" necessary to the RICO conspiracy charge against them, as well as to the substantive RICO charge applicable only to Frega. In light of our disposition of the conspiracy charge, we need consider the arguments only insofar as they affect Frega's conviction on the substantive charge. The alleged errors relate to the following: the facial validity of the indictment; the sufficiency of the evidence regarding the predicate acts of bribery; the jury instructions regarding the predicate acts; and, the statute of limitations on those acts. The bulk of the claims regarding the bribery charges turn on the contention that those charges were defectively pled and proven because there was no link shown between a particular thing of value and a specific official act that was influenced or intended to be influenced. For the reasons detailed below, we reject each and every claim of error relating to the predicate acts for the substantive RICO charge.

A

Frega argues that the indictment should have been dismissed as facially invalid because it failed to identify specific decisions or acts that he corruptly intended to influence by his financial generosity to the judges. The indictment charged that the payments and benefits Frega provided to the judges were intended to influence Adams and Malkus in their handling of Frega's cases in general. Prior to trial, the court denied defense counsels' motions to dismiss the indictment for facial invalidity.

Linkage between a payment and a specific official decision is not required under California bribery law. California Penal Code §§ 92 and 93 make unlawful bribes intended to influence any matter "which is or may be brought" before a judge for decision. A "bribe" is anything of value given or accepted with "a corrupt intent to influence, unlawfully, the person to whom it is given, in his or her action, vote, or opinion, in any public or official capacity." Cal. Penal Code § 7(6). Therefore, a bribe intended to influence a case or decision not yet on a judge's docket, or intended to influence the assigning of cases, or intended to influence, generally, a judge's future actions with respect to matters that may come before him, falls within the statute's prohibitions. As the California Supreme Court observed in connection with another section of the Penal Code, which similarly makes unlawful the receipt of a bribe intended to affect consideration "of any question or matter, upon which [the official] may be required to act in his official capacity":

The law does not require any specific action to be pending on the date the bribe is received. . . . The use of the word "may" suggests that payments designed to alter the outcome of any matter that could conceivably come before the official are within the prohibition of the statute.

People v. Diedrich, 182 Cal.Rptr. 354, 360 (1982) (en banc). See also People v. Markham, 64 Cal. 157, 159 (1883) (holding that the crime is complete when the payment is corruptly given with intent to influence the judicial officer on any matter that may by law come before him in his official capacity, whether or not it ever does).

Because no linkage of payment and specific official act is required under California law and because the indictment incorporates the relevant state bribery statutes, which, in turn, state the elements of the bribery offenses, the indictment is valid in this respect.

B

Frega also casts his quid pro quo argument as a challenge to whether the evidence was sufficient to establish that he had committed the predicate acts of bribery. First, he contends that the evidence of bribery was insufficient because it did not show how a specific case was affected by a particular bribe, or that any "official conduct" occurred in any case because of any particular payment. As discussed above, this argument misapprehends the law: there is no requirement under the California bribery statutes that a judge act, let alone act improperly, in response to a bribe. See, e.g., Markham, 30 P. at 622. Second, Frega argues that much of the evidence introduced at trial did not pertain to "official acts" at all and should have been excluded on that ground. Examples of non-official acts by the judges include giving legal advice to Frega regarding his cases, evaluating their settlement value, reviewing legal documents to be filed, critiquing witness testimony before it was given, and granting Frega private access to the judges' chambers before, during, and after trial. While Frega may be correct that this evidence did not pertain to "official acts," he is wrong in his assertion that the court erred in admitting it. The evidence is probative of the relationship between Frega and the judges. Moreover, the jury was properly and repeatedly instructed that the bribes must have been intended to influence the judges' official actions.

C

Frega next argues that it was error to refuse his proposed instructions on the predicate state bribery acts. His proposed instructions set forth his theories that a bribe must be linked to a particular pending case; that he could be guilty of bribery only if a bribe was both offered and accepted with corrupt intent; that there is no bribery if the judges performed their duties in a manner that was otherwise correct, or if the payments to the judges were gifts, not bribes; that a payment to a family member is not a bribe if the judge is not made aware of the payment; and that certain conduct does not constitute "official action."

For the reasons we have already explained, linkage is not required and it would have been error to give Frega's proposed instruction to the contrary. See United States v. Jackson, 72 F.3d 1370, 1376 (9th Cir. 1995), cert. denied, 517 U.S. 1157 (1996) (California bribery law does not require an explicit quid pro quo instruction). The proposed instruction requiring that both the offer and the acceptance be corrupt in order for Frega to be found guilty of bribery was also properly rejected; only his intent need be corrupt, not the recipient's. See Markham, 64 Cal. at 160-61. So too, the court had no obligation to instruct the jury that it could consider the fact that a particular judicial act was legally supportable and correct aside from the purported bribe; again, the crucial issue is Frega's intent in making the payment, not what the judge who accepts the payment believes or does. Id. We also do not see any problem with the court's instructions on Frega's theory that if his payments were gifts, no bribery occurred; although not in the precise words preferred by Frega, the court instructed that

Even though giving a judge something of value may be inappropriate or a violation of the ethical rules. . . such an act is not done corruptly so as to constitute a bribery offense unless [it] is intended at the time it is given to affect a specific action the judge officially will take in a case before him, or may take in a case that may be brought before him.

A gift or favor bestowed on a judge solely out of friendship, to promote good-will, or for motive wholly unrelated to influence over official action does not violate the bribery statutes[.]

The instruction carefully set forth the distinction that Frega requested be drawn. See United States v. Faust, 850 F.2d 575, 583 (9th Cir. 1988) (defendant not entitled to any particular form of instruction so long as instructions that are given fairly and adequately cover theory of defense). Next, the court's refusal to give Frega's proposed instruction as it pertained to gifts to members of the judges' families comports with the law. As we have previously made clear, what is critical to a finding that Frega committed the predicate acts for the substantive RICO charge is Frega's intent in making the payment, whether to a judge or to a member of the judge's family, not whether the judge was in fact aware of or influenced by the payment. Frega argues that Willens v. Superior Court of San Joaquin County (Joseph Baker), 19 Cal.App.3d 356 (Ct.App. 1971), puts payments to family members beyond the reach of the bribery statute, but Willens involved not a family member, but an unrelated third party who said he could "fix" a case for $1000. See 19 Cal.App.3d at 359. Finally, with respect to "official action," the district court was well within its discretion in declining to give an instruction on what does not constitute official action when it correctly instructed on what does. the payments had to be for the purpose of influencing official actions.

D

Finally, Frega contends that the statute of limitations had run on the substantive RICO charge because the statute provides that at least one predicate act must have occurred within five years of the filing of the indictment. 18 U.S.C. § 3282. The indictment listed 24 predicate acts of alleged bribery under California Penal Code § 92, only three of which (Racketeering Acts 22, payment of the $1,000 bill for a rental car used by Adams's daughter, Lindsay; 23, payment of the $1,500 bill for repairs to the Jeep Lindsay owned; and 24, payment of $5,250 towards the purchase of a Saab for Greer) were alleged to have occurred within the statute of limitations period. Frega argues that none of these three predicate acts is legally sufficient under the California bribery statute, and, therefore, that the statute of limitations was violated.

Frega's claim that these three acts are legally insufficient reiterates his arguments that the California bribery statute requires that a bribe be intended to influence a particular decision and that payments to the judges' families do not constitute bribes. We have already rejected both of these arguments.

Because Frega offers no other challenge to his conviction on the substantive RICO count, we affirm that conviction.

VII

Frega, Adams and Malkus contest their RICO conspiracy convictions on a variety of grounds. Because we reverse those convictions due to instructional error, we do not consider their other contentions.

Defendants claim that the judge's response to an inquiry from the jury regarding what predicate acts could constitute the pattern of racketeering underlying the RICO conspiracy charge was unresponsive, misleading and legally incorrect. We agree. The district court's response not only failed to ameliorate, but exacerbated, the jury's expressed confusion, thereby creating a strong possibility that the jury verdict was based on legally inadequate evidence. Accordingly, we reverse the defendants' convictions on the RICO conspiracy charges.

The disputed instruction was given in response to a note that the jury sent to the district judge during deliberations asking what predicate racketeering acts it could consider for Count One, the RICO conspiracy charge. The jury's note read: "Are racketeering acts in Court's Instruction 39 only applicable to Count 20 or are they also used in Count 1? Are the racketeering acts in Court's Instruction 39 the only racketeering acts to be used in Count 1?" The jury had received an instruction (Number 39) listing the predicate racketeering acts for Count 20 (the substantive RICO count, applicable only to defendant Frega), but no analogous instruction for Count 1 (the RICO conspiracy charge, applicable to all three defendants).

At a highly contentious conference at which all counsel were present, the judge informed the lawyers of the response he was planning to give to the question from the jury: in pertinent part, that the list of racketeering acts it had received (Instruction 39) applied only to Count 20, but that "all of the evidence that you have heard or seen during the trial may be considered by you as to all counts." The defendants' lawyers pointed out that the jury's note showed that it did not know what acts it could consider as predicate racketeering acts for the conspiracy charge, and that the judge would be giving it erroneous and misleading information. Defense counsel requested that the judge answer, "Yes, the only racketeering acts [you] can consider are the ones that are contained in . . . Count 20." The prosecutor agreed and made a similar request. Defense counsel also specifically objected to the "all of the evidence" portion of the judge's answer as confusing and unresponsive to the jury's questions. The judge rejected the response that the parties agreed was proper, overrode the objections to his proposed answer, and sent it to the jury. Defendant Frega immediately moved for a mistrial; the judge denied his motion. After further deliberation, the jury returned a verdict of guilty as to all of the defendants on the RICO conspiracy charge.

In the original instructions, the jury was advised that in order to convict Frega, Adams and Malkus on the RICO conspiracy count it had to find that each defendant agreed to conduct the affairs of the court through a pattern of racketeering activity consisting of at least two predicate acts. What it had not been told was what conduct could constitute predicate acts for that count: the jury instructions for the RICO conspiracy charge did not identify any predicate racketeering acts, nor did the indictment list any such acts when setting forth that charge. The only predicate racketeering acts specified were set forth in the sections of the indictment and the jury instructions that pertained to the substantive RICO count, which applied only to Frega. The jury clearly expressed its confusion as to what conduct could constitute the requisite predicate acts for the RICO conspiracy charge, asked whether the predicate acts specified in Instruction 39 applied to the conspiracy count and explicitly requested clarification from the trial judge on this point. See United States v. Walker, 575 F.2d 209, 213 (9th Cir. 1978) (on appeal, we may infer from questions asked by the jury that it was confused about a controlling legal principle).

"When a jury makes explicit its difficulties a trial judge should clear them away with concrete accuracy." Bollenbach v. United States, 326 U.S. 607, 612-13 (1946); see also McDowell v. Calderon, 130 F.3d 833, 839 (9th Cir. 1997) (en banc) (the trial court has a "duty to respond to the jury's request with sufficient specificity to clarify the jury's problem"). We must, accordingly, inquire into whether in this case the district judge fulfilled his responsibility to eliminate the jury's confusion. See United States v. Hayes, 794 F.2d 1348, 1352 (9th Cir. 1985).

In this instance, what the jury needed in order to dissipate its confusion was the answer: yes, the predicate acts listed in Instruction 39 are applicable to the RICO conspiracy charge; or, at the least, an explanation of how the jury could identify the acts that could properly serve as the predicates for that charge. In his response, the district judge did not identify any predicate acts that the jury could rely upon for the RICO conspiracy charge. Instead, he told the jury, erroneously, that it could not rely on the only predicate acts that had been set forth in the indictment and the jury instructions — the only predicate acts concerning which evidence had been presented during the trial — the very acts that the jury correctly thought might be the ones it should use. The court's erroneous response left the jury with the task of identifying, and unanimously agreeing upon, at least two acts of bribery, forming the "pattern of racketeering activity" — apart from the twenty-four specific acts of bribery involving Frega's unlawful payments to the judges. The government in its brief identifies no such additional acts. Moreover, the district judge expanded on his answer, telling the jury that it could consider "all of the evidence that [it had] heard or seen during the trial . . . as to all counts." This expansion was certain to further confuse and mislead the jury, given that it had nothing to do with the jury's question, or indeed with what constitutes a predicate act.

Because the jury here expressed confusion about the acts upon which it could properly base its verdict on the conspiracy charge, we must be concerned about whether the jury verdict was based on conduct that was legally adequate for the purpose. Given the judge's answer to the jury's inquiry and, in particular, his exclusion of the predicate acts of bribery specified in Count 20 from the jury's consideration, the jurors may well have rendered a verdict of guilty as to the RICO conspiracy charge based on conduct that could not constitute predicate acts. The jury may have relied on acts of mail fraud that were not predicate acts or on acts listed in Count 1 that were "overt" but not "predicate." That is, among "all the evidence" the jury was instructed to consider in response to its questions regarding predicate acts was evidence of acts that were wrongful but could not qualify as predicates for the RICO conspiracy charge.

As the Supreme Court has said, "[w]hen . . . jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from error." Griffin v. United States, 502 U.S. 46, 59 (1991); see also United States v. Barona, 56 F.3d 1087, 1097-98 (9th Cir. 1995) (where the jury is presented with a legally inadequate theory, the conviction must be vacated). Because the jury was not given the opportunity to identify which predicate acts it relied upon, we cannot be sure that the verdict on the RICO conspiracy charge was based on legally adequate evidence. Even less, given the confusing and misleading nature of the district court's response, can we assume that all members of the jury convicted the defendants on that charge on the basis of the same acts, and, thus, that the defendants' right to a unanimous jury verdict as guaranteed by article III, § 2 and the sixth amendment to the United States Constitution was not infringed. See United States v. Gordon, 844 F.2d 1397, 1400-01 (9th Cir. 1988); United States v. Echeverry, 698 F.2d 375, 377 (9th Cir. 1983).

The Supreme Court has clearly stated that it is reversible error for a trial judge to give an answer to a jury's question that is misleading, unresponsive, or legally incorrect. Bollenbach, 326 U.S. at 612-13. The answer given here was all three. Moreover, in a case of this nature, involving a highly complex statute, multiple charges and defendants, allegations of a conspiracy, a number of subsidiary legal issues, and highly disputed facts (as well as a second set of counts involving the application of a second federal statute), the danger of jury confusion is especially great and the district court's responsibility to provide clarification particularly acute. Under the law of this Circuit, the convictions on the RICO conspiracy count must be reversed. See McDowell, 130 F.3d 833; United States v. Walker, 575 F.2d 209, 214 (9th Cir. 1978).

VIII

Finally, the United States cross-appeals from the sentences on the ground that the district court misinterpreted and misapplied the Sentencing Guidelines. We see no basis for reversal, as the court did not clearly err in its findings.

The government first contends that Frega should have received a four-level sentencing enhancement under U.S.S.G. § 3B1.1(a) as an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive. The district court found to the contrary:

The evidence in this case was that all defendants were in effect in it together. There was not one leader supervising or directing the activities of the others. It is hard for the Court to conclude that Mr. Frega here was an organizer. . . . That certainly is not consistent with the evidence presented in court and therefore the Court does not find this to be an appropriate departure.

In the government's view, all the factors a court is to consider in determining whether an individual was an organizer or leader point to an enhancement for Frega. See United States v. Ponce, 51 F.3d 820, 827 (9th Cir. 1995) (identifying factors). Certainly there is evidence that Frega was the scheme's central actor, having bankrolled it, profited from it, involved other participants, and exercised control over co-conspirators. However, there is support for the district court's assessment as well. Frega was in no position to coerce any of the judges into rendering favorable decisions and, in fact, often played the role of errand boy. Indeed, he complained about Adams being demanding. Williams substantially contributed to the funding of the conspiracy by providing discounted cars and car repairs. Frega did not necessarily have a "claimed right" to a larger share of the pie. And while he started the scheme by doing favors for Greer, and then the others, we cannot say that the trial judge erred in finding that while the scheme started with Frega trying to ingratiate himself with the judges, the pattern developed into a corrupt enterprise with all of the parties more or less equally involved. As the call could go either way, the district court did not abuse its discretion in finding that Frega was not an organizer or leader such as to warrant the enhancement.

Next, the government seeks resentencing because the court enhanced each sentence by eight levels under U.S.S.G. § 2C1.1(b)(2)(B), rather than by fourteen levels under U.S.S.G. § 2C1.1(b)(2)(A), as the government had suggested. The government's calculation was based on the sum of the judgments won by Frega clients adjudicating their claims in the courts of Adams and Malkus, which amounted to over $5 million. In the alternative, the government proposed that the § 2C1.1(b)(2)(A) offense level be calculated based on the attorneys' fees received by Frega in the tainted cases, which amounted to at least $9 million and would also have corresponded to a fourteen-level upward enhancement.

We cannot say that the district court clearly erred in finding insufficient evidence to rely on the dollar figure of favorable monetary judgments as a reasonable measure of benefit. The government did not (and did not have to) connect any particular payment with any particular result. Nor was there any basis in the record for relating the amount of benefit to Frega's attorneys' fees. Rather, the court was well within its discretion in finding that the value of the payments to Greer, Adams, and Malkus — $110,078 — was the value of the improper benefit accrued under § 2C1.1(b)(2)(A).

The government also contends that the court could have calculated the amount of benefit Frega intended or expected to receive from his bribes by calculating either the amount of the judgments Frega expected to secure his clients through bribery, or the amount of attorneys' fees Frega expected to receive from cases tainted with bribery. Again, however, the district court did not abuse its discretion in finding no basis in the record for reasonably determining "but for" benefit. The Seventh Circuit's decision in United States v. Muhammad, 120 F.3d 688 (7th Cir. 1997), which the government urges us to follow, is not to the contrary. The district court in that case did have a reasonable basis for calculating the benefit of a bribe to a juror, namely the amount the litigant would not have had to pay had the juror succeeded in influencing the jury. See id. at 700-01.

Finally, the government argues that the effect of the crimes in shaking the public's confidence in the legal system warrants an upward departure under U.S.S.G. § 2C1.1. However, the district court's discretionary decision not to depart from the Sentencing Guidelines is not reviewable on appeal. See Tucker, 133 F.3d at 1214.

Conclusion

For the reasons set forth above, we reverse the convictions on Count 1 and affirm the convictions on all other counts.

REVERSED IN PART; AFFIRMED IN PART; REMANDED FOR RECONSIDERATION OF THE DEFENDANTS' SENTENCES IN LIGHT OF THIS OPINION.