## Facts

- Chromalloy Research and Technology Division (CRT), a jet-engine repair business, performed repairs for commercial airlines.
- In 1992, federal authorities began investigating CRT for misrepresenting aspects of certain jet-engine repairs.
- CRT executive vice presidents James M. Gabriel and Gerard E. Vitti were charged with mail fraud, wire fraud, and making false statements to the FAA; Gabriel was also charged with witness tampering.
- The witness-tampering charge stemmed from a post-investigation fax Gabriel sent to a Qantas representative concerning an “ongoing government investigation,” which the government argued was intended to influence the representative’s prospective grand jury testimony by aligning the representative’s account with Gabriel’s.
- After a six-week jury trial in the Southern District of New York, the jury convicted both defendants on fraud and false-statement counts and convicted Gabriel of witness tampering.

## Issues

1. Whether the district court abused its discretion by denying defendants’ request for a bench trial.
2. Whether challenged evidence or prosecutorial comments denied defendants a fair trial.
3. Whether an erroneous jury instruction on the intent element of mail and wire fraud required reversal.
4. Whether 18 U.S.C. § 2(b)’s use of “willfully” requires proof that the defendant knew the conduct was unlawful.
5. Whether 18 U.S.C. § 1512(b) incorporates a requirement, derived from obstruction doctrine under 18 U.S.C. § 1503, that the defendant’s conduct be “likely to affect” an official proceeding.
6. Whether the trial suffered from retroactive misjoinder.
7. Whether resentencing was required due to inadequate findings supporting a perjury-based obstruction enhancement.
8. Whether restitution had to be reconsidered under the Mandatory Victims Restitution Act of 1996.
9. Whether an upward departure on a fine required advance notice to the defendant.

## Decision

- The court affirmed all convictions and rejected challenges to the denial of a bench trial, evidentiary rulings, and prosecutorial comments.
- The court held that the district court’s misinstruction on mail and wire fraud intent was harmless given the charge as a whole and the strength of the proof.
- The court held that 18 U.S.C. § 2(b) does not require the government to prove the defendant knew the conduct was unlawful.
- The court held that 18 U.S.C. § 1512(b) does not incorporate an Aguilar-style “likely to affect” requirement.
- The court found no retroactive misjoinder.
- The court remanded for resentencing to address: (i) whether a perjury-based obstruction enhancement was supported by the required findings under a clear-and-convincing standard, (ii) restitution under the MVRA, and (iii) an upward fine departure imposed without notice.

## Legal Principles

- A defendant has no unilateral right to waive a jury; a bench trial requires the government’s consent and the court’s approval, and denial is reviewed for abuse of discretion.
- An erroneous instruction on the intent element of mail or wire fraud does not require reversal if the error is harmless in light of the overall charge and the evidence.
- Under 18 U.S.C. § 2(b), “willfully causes” does not impose a general requirement that the defendant knew the conduct was illegal; it is enough that the defendant intentionally caused the proscribed act and possessed the mens rea required for the substantive offense.
- For 18 U.S.C. § 1512(b), the government need not prove the defendant’s conduct was “likely to affect” an official proceeding; the statute focuses on intimidation, threats, or corrupt persuasion undertaken with intent to influence, delay, or prevent testimony in an official proceeding.
- When applying a perjury-based obstruction enhancement at sentencing, the court must make specific, independent findings identifying willful, material false testimony, and may be required to apply a clear-and-convincing evidence standard where the enhancement substantially affects the sentence.
- Restitution and fine departures must comply with applicable statutory requirements and procedural protections, including notice before an upward sentencing departure.

## Conclusion

The Second Circuit upheld convictions arising from a scheme to misrepresent aircraft-engine repairs and related witness tampering, holding that § 2(b) does not require proof of knowledge of illegality and that § 1512(b) does not include an Aguilar-derived “likely to affect” element, while remanding for limited resentencing proceedings concerning perjury findings, restitution, and notice for an upward fine departure.


United States v. Gabriel, 125 F.3d 89 (2d Cir. 1997)