Defendant-appellant Ralph Fagan was convicted of aiding and abetting on nine counts of mail fraud, 18 U.S.C. Sec. 1341, one count of witness intimidation, 18 U.S.C. Sec. 1512(a), and one count of transmitting a threat in interstate commerce, 18 U.S.C. Sec. 875(b). The district court imposed concurrent two-year sentences on each count. We affirm.Facts and Proceedings Below

Ralph Fagan owned two Louisiana corporations--Toddell Enterprises, Inc. and Fagan Boat Service, Inc.--engaged in leasing work boats (used to transport heavy equipment to offshore drilling platforms) and crew boats (smaller boats used for ferrying crews and supplies) to offshore drilling companies. Sometime late in 1980 or early in 1981, Fagan was introduced to Donald L. Riley, who at that time was drilling superintendent of Texoma Production Company, a wholly-owned subsidiary of Mid-Continent Petroleum. As drilling superintendent Riley made the initial choice of the companies from which to lease boats for a given drilling project. The drilling superintendent sent his selection for approval to the manager of drilling; from there the recommendation went to Texoma's vice president for drilling and production, and finally the recommendation was sent to Texoma's president.

Apparently, Riley leased some boats from Fagan's companies shortly after their first meeting. Soon thereafter, Riley was promoted to manager of drilling. He hired Jeffrey Reid Hughes to fill his former job as drilling superintendent.

Sometime in the first half of 1981, Fagan and Riley--who was by then the manager of drilling--agreed to a kickback scheme. Fagan would pay Riley $100 a day for each boat that Texoma leased from Fagan's companies. Beginning in August 1981 and continuing until May 1983, Fagan or his companies paid Riley about $165,000 in twelve checks made payable to C & D Consultants, Inc., a corporation created by Riley at least partially to hide the kickbacks from Texoma. All the checks were mailed from Larose, Louisiana, a town not too far from New Orleans, in the Eastern District of Louisiana, to Spring, Texas, a town near Houston, in the Southern District of Texas.

When the scheme had been in place just a short time, Riley told Hughes about it and urged him to set up a dummy company so he could receive part of the kickbacks Fagan was paying to Riley. Hughes agreed, and Riley split his kickbacks with Hughes on four occasions, but stopped doing so without explanation, even though Riley continued receiving kickbacks from Fagan.

Each of the twelve checks was the basis of a separate count charging Fagan, Hughes, and Riley with mail fraud. At trial the government dropped three of the counts (counts 5, 7, and 9) because on three occasions two checks were mailed together. Thus there were only nine mailings. See United States v. Blankenship, 746 F.2d 233, 236 (5th Cir.1984) (each separate use of the mails is a separate crime). In exchange for Riley's testimony and cooperation at trial and his plea of guilty to four counts, the government dropped the remaining counts against him and also promised not to seek charges against Riley arising from other illegal activities in which he was involved, including at least one other kickback arrangement. Fagan was convicted on all nine mail fraud counts. The jury acquitted Hughes.

Sometime after the last kickback was sent, Texoma fired Riley. He had violated company policy by leasing a computer for Texoma from his son's company. At this point, Texoma's parent, Mid-Continent, still did not know about the kickback scheme, but for several months Mid-Continent auditors had been suspicious of the informality of the relationship between Fagan's companies and Texoma. Large sums of money were being paid by Texoma to lease Fagan's boats, yet there was little documentation that Texoma had solicited bids from other companies. Mid-Continent eventually discovered the kickback scheme and caused Texoma to file a civil action against Fagan and others. At all times material, the suit was pending in the United States District Court for the Southern District of Texas, Houston Division. In connection with this civil suit, the final important character in this appeal, Thomas Woolsey, comes on the scene.

Woolsey was a friend of Fagan's, to whom he had been introduced by Riley. At the time, Riley and Woolsey were also friends, but they later had a falling out over Riley's decision to lease a computer for Texoma from his son's company rather than from Woolsey.

In the fall of 1984 Fagan repeatedly expressed concern to Woolsey about what Riley's testimony might be in Texoma's civil suit against Fagan and others. According to Woolsey, Fagan said he could not afford to have Riley testify against him and that a no-show by Riley would be worth $20,000. Woolsey testified that he understood this to be an offer by Fagan to pay him or anyone else to obtain Riley's silence by any means, including murder.

On December 26, 1984, Woolsey, slightly inebriated, went to Riley's home near Houston. Woolsey testified he intended to beat Riley up if he would not agree not to testify about the kickback scheme. Riley was not home, but Woolsey stayed for some time, frightening Riley's wife and daughter with his behavior and threats of violence to Riley. While there Woolsey also spoke to Riley on the telephone, threatening and attempting to bribe Riley not to testify in the suit. Nothing was resolved except that the two agreed to discuss the matter later. After talking to Riley, Woolsey, the same day, called Fagan from the Riley house and later from a pay phone. Woolsey testified that both times he told Fagan that he thought that bribery, as opposed to other means, would suffice to cause Riley not to testify.

Woolsey's December 26 threats frightened Riley, and he sought protection for himself and his family from the FBI. The FBI instructed him to record his subsequent telephone conversations with Woolsey, and Riley complied. On December 28 and again on December 30, Woolsey, then in the Southern District of Texas, called Riley, then in the Western District of Louisiana. The transcripts of Riley's recordings of those conversations were introduced as evidence.

Although in neither of the latter two conversations does Woolsey explicitly threaten to kill Riley, in both conversations the threat of violence is clearly implicit, particularly in light of the events of December 26. The conclusion of the December 30 conversation was that Riley would accept $50,000 not to testify.

Immediately after his December 30 conversation with Riley, Woolsey called Fagan, who told him to have no further contact with Riley because Fagan suspected that Riley was cooperating with the government. Fagan was arrested a few weeks later. He was indicted in December 1985 and tried in February 1986. The jury found him guilty of the nine counts of mail fraud (counts 1, 2, 3, 4, 6, 8, 10, 11, and 12; 18 U.S.C. Secs. 1341, 2). It also found him guilty of inducing and procuring (18 U.S.C. Sec. 2) Woolsey to transmit a threat in interstate commerce (count 14; 18 U.S.C. Sec. 875(b)) and to intimidate a witness (count 13; 18 U.S.C. Sec. 1512(a)), each in respect to Woolsey's December 30 telephone call to Riley. The district court convicted Fagan on all eleven counts and sentenced him thereon to eleven concurrent two-year prison terms and imposed a $50 special assessment on both threat-related counts.

On this appeal, Fagan raises several challenges to his convictions.

Fagan's first contention is that the district court erred in refusing to sever the mail fraud counts from the interstate threat and witness intimidation counts. The relevant rules of procedure governing this issue are Fed.R.Crim.P. 8(a) and 14.

Rule 8(a) allows the joinder of offenses against a single defendant "if the offenses ... are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan." We review de novo the district court's denial of a Rule 8(a) motion. United States v. Davis, 752 F.2d 963, 971 (5th Cir.1985); United States v. Forrest, 623 F.2d 1107, 1114 (5th Cir.); cert. denied, 449 U.S. 924, 101 S. Ct. 327, 66 L. Ed. 2d 153 (1980); cf. United States v. Lane, 474 U.S. 438, 106 S. Ct. 725, 732 n. 12, 88 L. Ed. 2d 814 (1986) (joinder of defendants under Rule 8(b ) is reviewed on appeal for an "error of law").

In rejecting Fagan's motion to sever, the district court did not violate Rule 8(a). Joinder was clearly appropriate under the third clause of Rule 8: "two or more acts ... connected together or constituting parts of a common scheme or plan." Fagan argues that the mail fraud counts involve a different scheme than the witness intimidation counts. We disagree. The threat and intimidation were related to the fraudulent scheme. From Fagan's point of view, the scheme could not be considered a success if it or his part in it were to be established on the public record or if he were to be held civilly liable for it. Fagan's participation in intimidating Riley was an integral part of his continuing effort to ensure nondisclosure and retain the benefits of his fraud.

On similar facts we reached the same conclusion in United States v. Davis, 752 F.2d 963 (5th Cir.1985). The defendant was indicted for mail fraud and for making false statements to a federally insured bank. He was also charged with obstructing justice because, inter alia, he directed a witness in the mail fraud case to testify a certain way. Like Fagan, the Davis defendant argued that "the two obstruction of justice charges and the mail fraud and false statement charges grew out of a separate set of circumstances." 752 F.2d at 972. We held to the contrary. "Both obstruction charges grew out of Davis' attempt to avoid implication in or the detection of a fraudulent scheme. Thus, the coverup attempts bear a logical relationship to the underlying fraud crimes." Id.; see also United States v. Scott, 659 F.2d 585, 589 (5th Cir.1981), cert. denied, 459 U.S. 854, 103 S. Ct. 121, 74 L. Ed. 2d 105 (1982); United States v. Duzac, 622 F.2d 911 (5th Cir.), cert. denied, 449 U.S. 1012, 101 S. Ct. 570, 66 L. Ed. 2d 471 (1980).

Fagan also argues that joinder of the claims prejudiced him because he wanted to testify on his behalf with regard to the threat-related counts, but not the mail fraud counts. This argument is cognizable under Rule 14, which allows the district court to sever offenses properly joined under Rule 8 upon a showing of prejudice. We review the disposition of Rule 14 motions for an abuse of discretion. E.g., Lane, 106 S. Ct. at 732 n. 12; Davis, 752 F.2d at 974.

The district court did not abuse its discretion in denying Fagan's Rule 14 motion. Fagan did not inform the district court until after the jury's verdict that he wanted the counts severed so that he could testify with regard to some but not others. This is simply too late. There is no valid reason Fagan could not have properly brought this contention to the district court's attention before trial began. Fagan's tardy post-verdict assertion did not meet his burden of demonstrating that he had "important testimony to give concerning one count and a strong need to refrain from testifying on the other." Forrest, 623 F.2d at 1115 (quoting Alvarez v. Wainwright, 607 F.2d 683, 686 (5th Cir.1979)). Until the trial was over, the only reason Fagan gave for a Rule 14 severance was that the jury would think worse of him if all counts were tried together and therefore would be more prone to convict him. As we pointed out in Forrest, this possibility exists anytime a defendant is tried on more than one count; standing alone it is not grounds for a new trial. 623 F.2d at 1115. Fagan was not otherwise prejudiced by the joinder of all counts because evidence of the mail fraud scheme would have been admissible in a separate trial for witness tampering to show Fagan's motive. Evidence of the witness tampering would have been admissible in a separate mail fraud trial to show Fagan's guilty knowledge. See Davis, 752 F.2d at 972; Scott, 659 F.2d at 589.

In the district court, Fagan filed an unsuccessful Fed.R.Crim.P. 21(b) motion (permitting transfer for convenience and in the interest of justice), to transfer all counts against him from the Southern District of Texas, Houston Division, to the Eastern District of Louisiana, where he lived. On appeal Fagan asserts that the district court committed reversible error in denying the motion. To prevail, Fagan must show that in denying the transfer the trial judge abused his "broad discretion." United States v. Dickie, 775 F.2d 607, 609 (5th Cir.1985). See also United States v. Juarez, 573 F.2d 267, 280 (5th Cir.), cert. denied, 439 U.S. 915, 99 S. Ct. 289, 58 L. Ed. 2d 262 (1978). After surveying the Rule 21 appellate cases, Professor Wright reports, "In no case has a final judgment been reversed on this ground." 2 C. Wright, Federal Practice & Procedure (Criminal) Sec. 347, at 282 (1982 and Supp. 1986).

Fagan asserts that holding trial in Houston, rather than Louisiana, made it more disruptive to him, his witnesses, and his attorney. He also asserts that if he had been tried in Louisiana, one particular attorney, who did not represent him in this trial, would have participated in his defense. However, the inconvenience Fagan asserts does not show the prejudice necessary to establish abuse of discretion. In United States v. Alvarado, 647 F.2d 537 (5th Cir.1981), a case involving the transfer of a case from Brownsville to Victoria, this Court held that the "additional travel and lodging expenses upon [defendants] and their attorneys in addition to the expenses that became necessary in order to subpoena crucial witnesses" did not demonstrate sufficient prejudice to establish an abuse of discretion. 647 F.2d at 539. The distance in this case is somewhat greater, but Fagan has not shown that the fact he was tried in Houston kept him from calling any witness, prevented his access to any evidence, or in any other way prejudiced the outcome of his case. Fagan does not dispute that venue was proper in the Southern District of Texas. He had mailed the kickback checks to a town in that district and it was from that district that Woolsey had made the threatening phone call. See Fed.R.Crim.P. 18; 18 U.S.C. Sec. 3237(a). Further, the threats related to the civil suit against Fagan for his part in the kickback scheme and that suit was pending in Houston. Moreover, as Riley was in the Western District of Louisiana when the threatening call was made to him, and as the charged mailings were all made from the Eastern District of Louisiana, the Southern District of Texas was the only district in which (at least absent further evidence) venue was initially proper as to all counts. While this does not prevent a Rule 21(b) transfer of all counts to another district, it is at least an indication that the government's selection of the forum was not arbitrary.

We conclude that the district court did not abuse its discretion in denying Fagan's Rule 21(b) motion.

III. "Scheme to Defraud"

"To establish a mail fraud violation, the government must prove the existence of a scheme to defraud that involved use of the mails for the purpose of executing the scheme. The evidence must demonstrate the defendant's specific intent to commit fraud." United States v. Goss, 650 F.2d 1336, 1341 (5th Cir.1981) (citations omitted). Viewed in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680 (1942); United States v. Blankenship, 746 F.2d 233, 241 (5th Cir.1984), the evidence is sufficient to sustain Fagan's mail fraud convictions.

As for the "scheme to defraud," unrebutted testimony from several witnesses, including Riley, established the existence of the kickback scheme.1 Fagan asserts, however, that the evidence is insufficient to show that this scheme was one to defraud. He claims in this connection that Texoma was not defrauded within the meaning of section 1341 because he absorbed the costs of the kickbacks himself, and his leasing rates remained competitive.2

We reject this contention. We have stated that section 1341 is violated when an employee violates his duty to disclose to his employer economically material information which the "employee has reason to believe ... would lead a reasonable employer to change its business conduct." United States v. Ballard, 663 F.2d 534, 541 (5th Cir.1981) (Ballard I ), as modified on reh'g, 680 F.2d 352 (5th Cir.1982) (Ballard II ).3

We held in Ballard I that the intricate kickback scheme in that case was not a "scheme to defraud" because the "defrauded" employers, whose prices were strictly regulated by federal law, could not have charged any higher price, even had they known that their employees were accepting kickbacks to sell to certain customers. There was, therefore, no potential economic detriment to the employers--and Ballard I expressly held that in the absence of some detriment, a breach of fiduciary duty does not constitute a mail fraud violation. Ballard I, 663 F.2d at 540. However, Ballard II observed, "[I]n an unregulated market, the detriment necessary for a finding of mail fraud ... would be shown by mere receipt of kickbacks." 680 F.2d at 354 n. 5.

This case, involving the unregulated boat leasing market, falls within the dictum of Ballard II. The kickback scheme deprived Texoma of economically material information regarding the amount Fagan would have accepted for his boats. Quite simply, if Riley had not violated his duty to disclose, Texoma might have captured for itself the large sums that Riley was secreting because Texoma would have known that Fagan was willing to lease his boats for less. This possibility clearly had some economic value.

A leading case in support of this conclusion is United States v. George, 477 F.2d 508 (7th Cir.), cert. denied, 414 U.S. 827, 94 S. Ct. 49, 155, 158, 38 L. Ed. 2d 61 (1973). In George, a cabinet buyer for Zenith Radio Corporation received kickbacks from a supplier of cabinets. The defendants--the buyer, supplier, and a third party who assisted in the scheme--argued that Zenith was not defrauded because the supplier's prices were reasonable, the quality was good, and the supplier apparently absorbed the kickbacks without passing them on to Zenith. Id. at 512. The Seventh Circuit rejected this reasoning. "Not only did [the Zenith employee] secretly earn a profit from his agency, but also he deprived Zenith of material knowledge that [the supplier] would accept less profit." Id. at 513. Fagan was willing to lease his boats to Texoma at a lesser rental--the amount of the actual rental less the kickbacks. Riley plainly breached his duty to Texoma by secretly receiving and retaining the kickbacks. See note 3, supra. In these circumstances, Texoma was entitled to those funds. See 53 Am.Jur.2d Master & Servant Sec. 101 at 173.4 See also United States v. Drumm, 329 F.2d 109 (1st Cir.1964). The scheme was calculated to deprive Texoma of this economic benefit.5 Moreover, as George observed, " 'A man is none the less cheated out of his property, when he is induced to part with it by fraud, because he gets a quid pro quo of equal value.' " 477 F.2d at 513 (quoting United States v. Rowe, 56 F.2d 747, 749 (2d Cir.), cert. denied, 286 U.S. 554, 52 S. Ct. 579, 76 L. Ed. 1289 (1932)). Here, Texoma was fraudulently induced to part with its rental payments on the false premise (implicitly represented to it by Riley's nondisclosure when he had a fiduciary duty to disclose) that Riley, its employee making the rental decisions, was not receiving a portion of the rental payments from the lessor, Fagan, and that the latter was not accepting less than the stated rent.

Other out-of-circuit decisions in cases no stronger from the prosecution's point of view than the present also support the government's position here. Without necessarily endorsing all the language in each of the cited opinions, we call attention to them because they dispel the notion that this kickback scheme contemplated no sufficient detriment to Texoma. See, e.g., United States v. Connor, 752 F.2d 566, 573 (11th Cir.) (employee defrauded his employer by accepting kickback in connection with employer's land purchase even if the purchase price was "within the range of prices encompassed within the fair market value of the land" because without the employee's disloyalty the employer might have obtained a better deal), cert. denied, --- U.S. ----, 106 S. Ct. 72, 88 L. Ed. 2d 59 (1985); United States v. Bush, 522 F.2d 641, 648 (7th Cir.1975) (city official who used his position to influence Chicago's award of advertising contract at O'Hare Airport violated section 1341 by failing to disclose his ownership interest in the successful bidder, even though contract was profitable to the city because, inter alia, "if the city had known of [defendant's] interest it might have been able to obtain a better contract"), cert. denied, 424 U.S. 977, 96 S. Ct. 1484, 47 L. Ed. 2d 748 (1976); United States v. Barrett, 505 F.2d 1091, 1103-05 (7th Cir.1974), cert. denied, 421 U.S. 964, 95 S. Ct. 1951, 44 L. Ed. 2d 450 (1975). These decisions dispel the notion that the instant kickback scheme contemplated no sufficient economic detriment to Texoma.6

In addition to our conclusion that the evidence amply established the existence of a "scheme to defraud," we hold that the evidence shows the requisite intent. The kickback scheme was not a creature of accident; Riley and Fagan carefully conceived and orchestrated it. The steps taken to hide the scheme show that the pair knew they were doing wrong. Contrary to Fagan's intimations on appeal, their asserted agreement that Fagan's leasing rates would remain competitive does not negate the intent to defraud. Even if Fagan and Riley were sincere, each knew that Fagan was willing to lease to Texoma for the lesser sums and that Texoma could have been receiving the benefit of Fagan's kickbacks to its employee Riley. But this was all knowingly hidden from Texoma, and in this breach of duty Fagan was Riley's equal partner. See George, 477 F.2d at 513-14 (intent to defraud found in receipt of kickbacks).

Finally, as for the "use of the mails" element, unrebutted testimony established use of the mails to transfer the kickback checks from Fagan to Riley, and Fagan does not claim an insufficiency of evidence on this element.

IV. The Interstate Threat and Witness Intimidation Charges

Counts 13 and 14 of the indictment charged Fagan, under 18 U.S.C. Sec. 2, with inducing and procuring Woolsey's threats to Riley in the December 30, 1984, telephone call, contrary to 18 U.S.C. Secs. 1512(a) and 875(b). Fagan's sole complaint on appeal as to these counts is that "[t]he evidence does not support a finding that defendant, Fagan, was accountable for the conduct of government witness Thomas Henry Woolsey ... at the time of the telephone conversation of December 30, 1984, which gave rise to the charges in Counts 13 and 14...." In other words, Fagan's only contention as to either count 13 or count 14 is that the evidence does not show that he induced and procured the threats made by Woolsey to Riley in the December 30, 1984, telephone conversation.7 Fagan does not, among other things, assert that Woolsey, in his December 30, 1984, call to Riley, did not violate 18 U.S.C. Secs. 875(b) and 1512(a).

We reject Fagan's contention. Fagan is not guilty as an aider and abettor unless he " 'willfully associated himself in some way with the criminal venture and willfully participated in it as he would in something he wished to bring about.' " United States v. Fischel, 686 F.2d 1082, 1087 (5th Cir.1982) (quoting Fifth Circuit precedent). An aider and abettor is punishable for criminal acts that are the "natural or probable consequence of the crime that he advised or commanded...." Russell v. United States, 222 F.2d 197, 199 (5th Cir.1955). See also United States v. Barnett, 667 F.2d 835, 841 (9th Cir.1982) (delay between counsel to commit crime and principal's act does not necessarily absolve aider and abettor). Measured by these principles, the evidence linking Fagan to Woolsey is such that a rational fact finder could find him guilty beyond a reasonable doubt.

According to Woolsey's testimony, in the fall of 1984 Fagan repeatedly expressed concern about what Riley might say in his testimony in Texoma's civil lawsuit against Fagan and others. In Woolsey's words, "He [Fagan] stated that he couldn't have Riley testify and that he was willing to pay $20,000 for a no show." Fagan repeated this statement on many occasions, including in December 1984. Woolsey further testified:

"Q Did he offer you or anyone else any money to pursue that opportunity?

"A It was my understanding that it was more or less an open offer.

"Q Open offer for what?

"A For Don Riley not being able to testify.

"Q Did you understand that to mean a bribe or a murder? Or any other thing?

"A I understood it to mean that it would be whatever it took for him not to testify, and that it would not necessarily rule out him being not there permanently.

"Q In other words murdered?

"A Yes, sir.

"Q Did you in November or December--about how many times did you talk with Mr. Fagan, and where did you talk to him about these conversations of no shows?

"A There were numerous conversations. Most of them by telephone. Normally I would speak to him at his home. Also at his business occasionally."Woolsey explained that by "an open offer" he meant that he did not understand Fagan to be asking that Woolsey personally procure Riley's absence, but that "if I could secure someone" to do so "that would be fine," and that Fagan was making "requests" to him, Woolsey, "to assist in that."

Following these conversations with Fagan, Woolsey went to Riley's home in the evening of December 26, 1984. He testified that in making this visit, and a telephone call he made from the Riley home to Riley in Breaux Bridge, Louisiana, the same evening:

"A I was trying to get a solution to the matter that would be less drastic than one that might occur if he didn't listen to me.

"Q Which would have been what?

"A I think the man would have been killed."

Riley testified that he received a call the evening of December 26 from his wife, who was crying, and that she put Woolsey on the phone. Riley further related that Woolsey then told him

"I'm here to do you a favor. And said, you better play along with us. Said there's a contract out to kill you, and to keep you from your deposition being used against Mr. Fagan. And I can either get that contract to work--I can make the money by killing you, or we can give you a certain amount of money to leave the country and never hear from you again. And said, I'll be back in touch with you." (Emphasis added).

Woolsey testified that after he called Riley on the 26th, he called Fagan from the Riley home and told Fagan:

"A That I thought we could probably get Mr. Riley to agree not to testify by the offer of money.

"Q As opposed to anything else?

"A As opposed to anything, yes.

"Q As opposed to what?

"A As opposed to more drastic means."

Riley's daughter, who was in the Riley home on the 26th, heard Woolsey speak to her mother, and then on the phone to her father, and then on the phone to another man--whom Woolsey's testimony shows to have been Fagan. As to this latter call, Riley's daughter testified that Woolsey "asked the man on the phone if he would cancel the deal if he can make Don Riley cooperate with him." Riley's daughter feared for her father's life, as well as her mother's and her own.

Later in the evening of the 26th, after he left the Riley home, Woolsey again called Fagan on the subject of Riley's not testifying. He also called Fagan on the same subject on December 28th. On both occasions, he told Fagan he thought Riley would accept money not to testify, and he testified that Fagan "was in agreement with payment" as a means of getting Riley not to testify. After talking to Fagan on December 28, Woolsey called Riley. Woolsey testified as to this connection with Riley:

"Q Let me rephrase it. When you said, it's going to be good news, on the 28th, was that because you had talked to Mr. Fagan?

"A Yes, sir. That's correct.

"Q And did Mr. Fagan lead you to believe something?

"A Yes.

"Q And what did he lead you to believe?

"A That the payment of monies would be agreeable."

However, the testimony reflects that Woolsey and Riley had not, through the 28th, agreed on a sum. Riley was asking for considerably more than $20,000, and the only figure Fagan had authorized for a "no show" was $20,000. Woolsey called Riley again on December 30. The pertinent parts of that conversation are as follows:

"Woolsey: Don, the man cannot afford to have you testify....

"Riley: Well, what's he gonna offer me?

"Woolsey: Ah, there are two options. What do you need?

[At this point, Riley hemmed and hawed over how much money he would have to be paid to keep silent. When Riley would not produce a firm number, Woolsey brought up the second option.]

"Woolsey: The second alternative, it's not hard to come up with.

"Riley: Yeah, what's that?

"Woolsey: That you don't testify at all.

"Riley: How come?

"Woolsey: Like I said, it's not hard to come up with.

[Riley immediately became more cooperative, and the pair began negotiating the size of the bribe. Before reaching a final number, Riley and Woolsey had the following exchange.]

"Riley: Okay. Well ... I guess whatever it takes, Tom. I sure don't want [my] family hurt and I don't want to get knocked off.

"Woolsey: Good thinking, now tell me what it takes.

[Finally Riley agreed to a bribe of $50,000. Before closing the conversation, Woolsey resorted to further thinly-veiled threats as if to seal the deal.]

"Woolsey: ... I didn't have to go by your home the other evening. Okay?

"Riley: Well, you did.

"Woolsey: Yes, but I could have left a contract and it would have been cheaper. And as you well know, I don't have any reason to think kind of you...." (Emphasis added).8

The jury could reasonably determine that Fagan had made known to Woolsey his willingness to pay $20,000 to anyone who would cause Riley not to testify, whether by violence or threats of violence or bribery, that Fagan had solicited Woolsey's assistance in effectuating this "open offer," and that he was in contact with Woolsey as Woolsey began his course of threats of violence against Riley commencing on December 26 and continuing on December 28 and 30. That Fagan told Woolsey on December 30, after Woolsey reported on his conversation that date with Riley, not to further contact Riley because "he was probably wired," in no way compels a contrary conclusion. Indeed, it merely suggests a belated change of mind. The jury could properly infer that Fagan induced and procured Woolsey's December 30 threats of violence to Riley to prevent the latter from testifying.

Accordingly, we reject Fagan's sole attack on his conviction under counts 13 and 14. We further observe that an adequate jurisdictional basis for sections 1512(a) and 875(b) is shown, inasmuch as Woolsey's threats were made in the December 30 interstate telephone call, which Woolsey placed from Texas to Riley in Louisiana, and the proceeding from which Riley was threatened to withhold his testimony was a lawsuit then pending in the United States District Court.9

Having considered and rejected all of Fagan's claims of error,10 and discerning no possibility of manifest miscarriage of justice in his convictions, the judgment below is accordingly

AFFIRMED.