Full opinion text
OPINION OF THE COURT ALITO, Circuit Judge. This is an appeal by defendant Robert W. Lee, Sr. (“Lee”) from a judgment in a criminal case. Lee was indicted on charges stemming from the alleged payment of bribes by boxing promoters to Lee and other officials of the International Boxing Federation (“IBF”). After a jury trial, Lee was convicted of one count of conspiracy to engage in money laundering, in violation of 18 U.S.C. § 1956(h); three counts of interstate travel in aid of racketeering, in violation of 18 U.S.C. § 1952 (the “Travel Act”) and 18 U.S.C. § 2; and two counts of filing false tax returns, in violation of 26 U.S.C. § 7206. He was sentenced to a concurrent term of 22 months’ imprisonment on each count and was fined $25,000. In this appeal, Lee argues (1) that video tapes that show him receiving money from a confidential government informant violated his Fourth Amendment rights and should have been suppressed, (2) that the District Court misinstructed the jury concerning the meaning of the “duty of fidelity” under the New Jersey commercial bribery statute, N.J.S.A. 2C:21-10, (3) that his Travel Act and money laundering conspiracy convictions must be reversed because they are predicated upon the New Jersey commercial bribery statute, and there is an insufficient nexus between his conduct and New Jersey to permit the application of the New Jersey statute, (4) that his money laundering conviction should be reversed because the evidence at trial did not prove the existence of a single conspiracy, (5) that two of the Travel Act counts were impermissibly amended at trial, and (6) that the District Court erred when it imposed concurrent sentences of 22 months’ imprisonment on the tax counts. We affirm. I. Lee was a cofounder and president of the IBF, an organization that crowns international boxing champions and publishes ratings of boxers within different weight divisions. The ratings are published monthly from the IBF headquarters in East Orange, New Jersey. The primary function of the ratings is to determine which boxers will fight in upcoming IBF championship bouts. During the period relevant to this appeal, Lee served on the IBF Executive Board and various IBF committees, including the championship committee, chaired by Don “Bill” Brennan, and the ratings committee, chaired by C. Douglas Beavers. In May 1996, the Federal Bureau of Investigation received information that boxing promoters were paying certain IBF officials in order to receive more favorable IBF ratings for their boxers. Beavers was questioned and, in May of 1997, chose to cooperate with the FBI. He told investigators that he had solicited and received bribes from boxing promoters and that these bribes had been divided equally among himself, Brennan, Lee, and Lee’s son, Robert W. Lee, Jr. (“Lee, Jr.”). Beavers, who is based in Portsmouth, Virginia, further testified that he had held regular telephone conversations with Lee, who works out of the IBF headquarters in East Orange, regarding strategies for maximizing payment amounts, methods for laundering bribes that were received as checks, and arrangements for Lee to travel from New Jersey to Virginia to collect his share of the bribes. With Beavers’ cooperation, the FBI made audio and video recordings of three meetings between Beavers and Lee that took place in Portsmouth, Virginia, on June 9, 1997, December, 18, 1997 and October 21,1998. The meetings were held in a hotel suite rented by Beavers for Lee in the Portsmouth Holiday Inn and were electronically monitored and recorded using equipment installed in the living room of the suite by the FBI prior to Lee’s arrival. This equipment consisted of a concealed camera and microphone that transmitted video and audio signals to a monitor and recorder located in an adjacent room. The FBI did not obtain a warrant authorizing the installation or use of the equipment but instead relied on Beavers’ consent. The government agents located in the room next to Lee’s suite were instructed to monitor activity in the corridor to determine whether or not Beavers had entered Lee’s rooms. The agents were further instructed to switch on the monitor and recorder only when Beavers was in the suite and that, at all other times, the monitor and recorder were to be switched off. During the December 1997 meeting, Beavers was recorded handing Lee cash that had originated as a bribe paid to the IBF’s South American representative, Francisco “Pancho” Fernandez, by a Colombian boxing promoter, Billy Chams. On November 4, 1999, a federal grand jury in the District of New Jersey indicted Lee, Lee, Jr., Brennan and Fernandez on 35 counts related to the receipt of bribes from boxing promoters. As noted, Lee Sr. was convicted on six counts but acquitted on the rest. Lee, Jr. was acquitted on all counts. The case against Brennan was dismissed because of his ill health and age, and Fernandez remains a fugitive outside the United States. II. A. Lee challenges the District Court’s admission into evidence of tapes of meetings in his hotel suite. Lee contends that the monitoring and recording of these meetings violated his Fourth Amendment rights because the government did not obtain a warrant. Lee’s argument, however, is inconsistent with well-established Fourth Amendment precedent concerning the electronic monitoring of conversations with the consent of a participant. In Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), a confidential government informant named Partin met with the defendant in the defendant’s hotel suite and elsewhere and testified about those conversations at trial. The defendant argued that Partin had conducted an illegal search for verbal evidence and that, because the defendant was unaware of Partin’s role as an informant, the defendant had not validly consented to his entry into the suite. Id. at 300, 87 S.Ct. 408. The Supreme Court rejected this argument, holding that the defendant had “no interest legitimately protected by the Fourth Amendment.” Id. at 301-02, 87 S.Ct. 408. The Court concluded that the Fourth Amendment does not protect “a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.” Id. at 302, 87 S.Ct. 408. Although Hoffa involved testimony about conversations and not electronic recordings of conversations, the Supreme Court in later cases drew no distinction between the two situations. See United States v. Caceres, 440 U.S. 741, 744, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979); United States v. White, 401 U.S. 745, 752, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971) (plurality). As the Court in Caceres put it, Concededly a police agent who conceals his police connections may write down for official use his conversations with a defendant and testify concerning them, without a warrant authorizing his encounters with the defendant and without otherwise violating the latter’s Fourth Amendment rights. Hoffa v. United States, 385 U.S., at 300-303, 87 S.Ct. 408. For constitutional purposes, no different result is required if the agent instead of immediately reporting and transcribing his conversations with defendant, either (1) simultaneously records them with electronic equipment which he is carrying on his person; (2) or carries radio equipment which simultaneously transmits the conversations either to recording equipment located elsewhere or to other agents monitoring the transmitting frequency.... 440 U.S. at 750-51, 99 S.Ct. 1465 (quoting United States v. White, 401 U.S. 745, 749, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971)) (citation omitted). The Court added that it had “repudiated any suggestion that [a] defendant had a ‘constitutional right to rely on possible flaws in the agent’s memory, or to challenge the agent’s credibility without being beset by corroborating evidence that is not susceptible of impeachment.’ ” Id. at 750, 91 S.Ct. 1122 (quoting Lopez v. United States, 373 U.S. 427, 439, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963)). In short, the Court adopted the principle that, if a person consents to the presence at a meeting of another person who is willing to reveal what occurred, the Fourth Amendment, permits the government to obtain and use the best available proof of what the latter person could have testified about. This principle appears to doom Lee’s argument here. Lee argues, however, that neither the Supreme Court nor our court has extended this principle to the circumstances present in this case. He points to three factors: (1) the agents used video rather than audio equipment; (2) the recording occurred in Lee’s hotel room, a place where a person has a heightened expectation of privacy; and (3) the monitoring equipment remained in the room when Beavers was not present. In making this argument, Lee relies on the First Circuit’s decision in United States v. Padilla, 520 F.2d 526, 527-28 (1st Cir.1975), which held that the defendant’s Fourth Amendment rights were violated when agents placed an audio recording device in,the defendant’s hotel room and recorded conversations between the defendant and another person who consented to the recordings. In reaching this conclusion, the First Circuit expressed concern that if law enforcement officers were permitted to leave a monitoring or recording device in a hotel for a lengthy period of time the officers would be tempted to monitor or record conversations that occurred when no consenting participant was present. Id. As the Court put it, [t]he government’s position would turn on its head the carefully tailored [consenting party] exception to ... one’s expectation of privacy. Electronic devices could be installed for lengthy periods of time without antecedent authority, so long as only a suspect’s conversations with police agents were offered in evidence and the enforcement officials alleged that nothing else was recorded. Under this approach a room or an entire hotel could be bugged permanently with impunity and with the hope that some usable conversations with agents would occur. Id. at 528. See also United States v. Shabazz, 883 F.Supp. 422 (D.Minn.1995) (audio and video recording). In contrast to the First Circuit, the Second and Eleventh Circuits have held that the Fourth Amendment is not violated by the use of a fixed electronic device to record a meeting between a defendant and a person who consents to the recording. United States v. Yonn, 702 F.2d 1341, 1346-47 & n. 5 (11th Cir.1983); United States v. Myers, 692 F.2d 823 (2d Cir. 1982). In Myers, a defendant was videotaped during a meeting with a government informant at a townhouse maintained by the FBI. Id. at 832. Rejecting the defendant’s Fourth Amendment argument, the Court stated that the defendant’s “conversations with undercover agents in whom he chose to confide were not privileged, and mechanical recordings of the sights and sounds to which the agents could have testified were proper evidence.” Id. at 859. In Yonn, the Eleventh Circuit likewise held that the Fourth Amendment was not violated when agents placed a microphone in a motel room and monitored and recorded the defendant’s conversations when a person who consented to the surveillance was present. The Court held that “[t]he location of the electronic equipment does not alter the irrefutable fact that Yonn had no justifiable expectation of privacy in his conversation with [the person who consented].” 702 F.2d at 1347. The Court also specifically rejected the'reasoning of Padilla, stating that it saw “no reason to suppress the recording of a clearly unprotected conversation merely because the monitoring technique employed poses a hypothetical risk that protected conversations may be intercepted.” Id. at 1347 n. 5. We have considered the concern expressed by the Padilla Court, but we remain convinced that the present case is governed by the well-established principle that a person has no legitimate expectation of privacy in conversations with a person who consents to the recording of the conversations. None of the three factors on which Lee relies appears to us to be sufficient to take this case beyond the reach of this principle. First, we cannot distinguish this case on the ground that the recorded meetings occurred in a hotel suite. What is significant is not the type of room in which the surveillance occurred but Lee’s action in admitting Beavers to the room. Although Lee had an expectation of privacy in the hotel suite so long as he was alone there, when Lee allowed Beavers to enter, any expectation of privacy vis-a-vis Beavers vanished. We note that in Hoffa many of the conversations also occurred in a hotel suite, but the Court nevertheless held that the case did not involve any legitimate Fourth Amendment interest. 385 U.S. at 296, 87 S.Ct. 408. Second, we cannot draw a constitutional distinction between consensual audio and video surveillance. The principle underlying the governing Supreme Court cases is that if a defendant consents to the presence of a person who could testify about a meeting and is willing to reveal what occurs, the defendant relinquishes any legitimate expectation of privacy with respect to anything that the testimony could cover. Thus, just as Lee gave up any expectation of privacy in the things that he allowed Beavers to hear, Lee also gave up any expectation of privacy in the things that he allowed Beavers to see. Although video surveillance may involve a greater intrusion on privacy than audio surveillance, the difference is not nearly as great as the difference between testimony about a conversation and audio recordings of conversations. As noted, however, the Supreme Court has not drawn any distinction between those two types of evidence, and we similarly see no constitutionally relevant distinction between audio and video surveillance in the present context. Finally, we do not agree with the First Circuit that it is appropriate to suppress recordings of meetings ■ between a defendant and a cooperating individual simply because the recording device was placed in the room rather than on the cooperating individual’s person. To be sure, there are three circumstances in which this distinction would matter for Fourth Amendment purposes. First, if the defendant had an expectation of privacy in the premises at the time when the device was installed, the entry to install the device would constitute a search. Second, the cases involving consensual monitoring do not apply if recordings are made when the cooperating individual is not present. Third, the logic of those cases is likewise inapplicable if the placement of the recording device permits it to pick up evidence that the cooperating individual could not have heard or seen while in the room. Unless one of these circumstances is present, however, it does not matter for Fourth Amendment purposes whether the device is placed in the room or carried on the person of the cooperating individual. In either event, the recording will not gather any evidence other than that about which the cooperating witness could have testified. As the government argues, the decision in Padilla appears to be based, not on the conclusion that the recordings in that case had been obtained in violation of the Fourth Amendment, but on a prophylactic rule designed to stamp out a law enforcement technique that the Court viewed as creating an unacceptable risk of abuse. Even assuming for the sake of argument that we have the authority to adopt such a rule, however, we would not do so. Although Padilla was decided more than a quarter century ago and has not been followed in any other circuit, we are not aware of evidence that the installation of recording devices to monitor meetings attended by a cooperating individual has led to the sort of abuse that the Padilla Court feared. Nor is it intuitively obvious that there is much risk of such abuse. As noted, the Padilla Court feared that law enforcement agents would install electronic devices in a hotel rooms and monitor what occurred “in the hope that some usable conversations with agents would occur.” 520 F.2d at 527-28. However, there are numerous reasons to doubt whether law enforcement is likely to find this an alluring strategy. First, a person who illegally intercepts wire, oral, or electronic communicates is subject to criminal and civil penalties, see 18 U.S.C. §§ 2511, 2520, and a federal agent who violates the Fourth Amendment may be sued under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Second, in order to install a monitoring device, law enforcement authorities or a person cooperating with them must acquire a right to enter the premises, such as by obtaining a warrant or renting the premises in which the device is to be installed. Thus, the Padilla Court’s fear that agents might bug “an entire hotel,” 520 F.2d at 528, and the fear of the District Court in Shabazz that devices could be placed in a person’s home, see 883 F.Supp. at 425, seem misplaced. Third, it is not clear’ that law enforcement would have much to gain from monitoring conversations that occur when a cooperating individual is not present. A video tape of a conversation generally reveals whether a cooperating individual is present, and without proof of the presence of the cooperating individual, the tape is inadmissible. We do not go so far as to say that there is no risk of the type of abuse that worried that Padilla Court, but the risk is not great enough to justify the holding of the Padilla Court. In the present case, there was no violation of Lee’s Fourth Amendment rights. The monitoring devices were installed in the suite’s living room at a time when Lee had no expectation of privacy in the premises. There is no evidence that conversations were monitored when Beavers was absent from the room, and Beavers was plainly there at the time of the incriminating meetings shown on the tapes that were introduced at Lee’s trial. We are satisfied that the tapes do not depict anything material that Beavers himself was not in a position to hear or see while in the room. Finally, we reject Lee’s suggestion that the government was required, before resorting to video surveillance, to demonstrate that less intrusive investigative techniques were unlikely to succeed. Although this requirement applies to monitoring governed by the federal wiretapping statute, 18 U.S.C. § 2518(3)(c), that statute does not apply to electronic surveillance conducted with the prior consent of a party to the communication. Similarly, judicial decisions considering a similar requirement in cases involving silent video surveillance conducted without a participant’s consent, see United States v. Williams, 124 F.3d 411, 416 & n. 5 (3d Cir.1997), are inapplicable in this context. We therefore reject Lee’s argument that the tapes should have been suppressed. • B. Lee next contends that the District Court misinstructed the jury regarding the elements of commercial bribery under the New Jersey Commercial bribery statute, N.J.S.A. § 2C:21~10, which figured in four of the counts on which Lee was convicted, i.e., the three counts of interstate travel in aid of racketeering and the money laundering conspiracy count. Our “[rjeview of the legal standard enunciated in a jury instruction is plenary,” United States v. Yeaman, 194 F.3d 442, 452 (3d Cir.1999), “but review of the wording of the instruction, ie., the expression, is for abuse of discretion.” Id. “This Court reviews jury instructions to determine whether, ‘taken as a whole, they properly apprized the jury of the issues and the applicable law.’ ” Id. (quoting Dressler v. Busch Entertainment Corp., 143 F.3d 778, 780 (3d Cir.1998)). The New Jersey commercial bribery statute provides in relevant part as follows: A person commits a crime if he solicits, accepts or agrees to accept any benefit as consideration for knowingly violating or agreeing to violate a duty of fidelity to which he is subject as ... An officer, director, manager or other participant in the direction of the affairs of an incorporated or unincorporated association . N.J.S.A. § 2C:21-10a (emphasis added). The District Court instructed the jury that the three elements needed in order to establish a violation óf the New Jersey commercial bribery statute are: First, that the defendant solicited, accepted or agreed to accept a benefit; Second, that the defendant did so in consideration for knowingly violating or agreeing to violate a duty of fidelity; Third, that the defendant owed that duty of fidelity because he is either an officer, a director, a manager or other participant in the direction of the affairs of an incorporated or unincorporated association. Joint App. at 3788. This was a straightforward and accurate statement of the elements of N.J.S.A. § 2C:21-10a. The Court further instructed the jury as to the meaning of a “duty of fidelity,” stating: A person who owes a duty of fidelity or loyalty may not engage in self-dealing or otherwise use his or her position to further personal interests rather than those of the beneficiary. For example officers and directors have a duty not to engage in self-dealing to further their own personal interests rather than the interests of the corporation. The duty of loyalty or fidelity may also arise based on the existence of a contractual relationship between a defendant such as Mr. Lee, Sr. and the corporation such as the IBF. A contract creates a duty between the contracting parties to adhere to the terms of the contract, and those terms may include or encompass a duty of fidelity. A director or officer’s failure to abide by the terms of his contract with a corporation could, if you so find, be a breach of his duty of loyalty to the corporation. Joint App. at 3790-91. Pointing to these latter instructions, Lee contends that the District Court erred by telling the jury (1) that a person can breach a “duty of fidelity” merely by engaging in self-dealing and (2) that a breach of an employment contract is a per se breach of a duty of fidelity. We disagree. Lee first argues that the District Court went astray in instructing the jury that any act of self-dealing by a corporate officer constitutes a breach of a duty of loyalty. According to Lee, the New Jersey commercial bribery statute reaches only “those specific duties of the actor ‘to which he is subject’ as a director, manager, etc. of the specific corporation at issue, not to generic, vague, undefined co'i'porate duties, such as a duty to refrain from ‘self-dealing.’ ” Appellant’s Br. at 32 (emphasis added). However, Lee cites no New Jersey case law that supports this interpretation of N.J.S.A. § 2C:21-10a; we are not aware of any such authority; and the jury instruction in question seems to be an accurate interpretation of the statutory language. Moreover, in light of the nature of the breach alleged in this case (accepting bribes in exchange for rigging the ratings of boxers) any failure to draw the fine distinction suggested by Lee (between “specific” and “generic” corporate duties) was harmless. Lee next maintains that the instructions regarding the “duty of fidelity” were flawed because the jury could have interpreted them to mean that proof that he breached this duty was alone sufficient to establish that he violated N.J.S.A. § 2C:21~10a. Lee’s argument is not convincing. The Court’s discussion of the meaning of a “duty of fidelity” was delivered immediately after its careful explanation of the three elements that were necessary for the jury to convict Lee of violating N.J.S.A. § 2C:21-10a, and one of these elements was that “the defendant [received a benefit] in consideration for knowingly violating or agreeing to violate a duty of fidelity.” Joint App. at 3788. Thus, the District Court did not read the element of consideration out of the statute. Finally, Lee suggests that the District Court told that jury that a breach of contract is per se a breach of a duty of fidelity, Appellant’s Br. at 33, but the District Court said no such thing. Rather, the Court said only that a duty of loyalty or fidelity “may ... arise based on the existence of a contractual relationship between a defendant such as Mr. Lee, Sr. and the corporation such as the IBF” and that “[a] director or officer’s failure to abide by the terms of his contract with a corporation could, if you so find, be a breach of his duty of loyalty to the corporation.” Joint App. at 3791 (emphasis added). We are convinced that the jury instructions, read in their entirety, “properly apprized the jury of the issues and the applicable law.” Yeaman, 194 F.3d at 452. C. Lee next contends that his convictions for interstate travel in aid of racketeering and for conspiracy to engage in money laundering violated his rights to due process. Asserting that those convictions were predicated on violations of the New Jersey commercial bribery statute, Lee argues that “the connections between the conduct underlying [those counts] and the State of New Jersey [were] tenuous at best” and that the application of the New Jersey statute to the conduct at issue would violate due process. Appellant’s Br. at 39. Lee contends that “the vast majority of the conduct constituting ‘commercial bribery’ took place outside the state of New Jersey in states that either do not consider such conduct a crime, or do not consider it as serious a criminal offense as New Jersey does.” Appellant’s Br. at 36. He notes that the bribe money was handed to him by Beavers in Virginia and that the agreements between Beavers and Fernandez, the IBF’s South American representative, were made outside of New Jersey. Lee’s arguments are not persuasive. “Acts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a state in punishing the cause of the harm as if [the defendant] had been present [in the state] at the effect.” Strassheim v. Daily, 221 U.S. 280, 284, 31 S.Ct. 558, 55 L.Ed. 735 (1911). See also United States v. Woodward, 149 F.3d 46, 66 (1st Cir.1998). Cf. Model Penal Code § 1.03. In this case, both the purpose and the effect of the commercial bribery was to cause the IBF, which has its principal place of business in New Jersey, to alter its rankings of boxers. Thus, the conduct in question had effects within New Jersey: it tended to harm a business headquartered in the state and to produce attendant consequences there. These effects are sufficient to permit the state to regulate the conduct without violating due process. The First Circuit’s decision in United States v. Woodward, supra, supports this conclusion. In Woodward, a member of the Massachusetts Legislature accepted gratuities in Florida and was convicted under the Travel Act of traveling in interstate commerce with the intent to promote the offense of commercial bribery, in violation of the Massachusetts statute. The First Circuit held that the potential effect on Massachusetts when one of its legislators accepts gratuities in another state was sufficient to satisfy the “effects test” set out in Strassheim. 149 F.3d at 67-68. Lee attempts to distinguish Woodward by arguing that the conduct of the defendant in that case created a potential for harm that was unique to his own state (because he was a member of that state’s legislature), whereas the effects of Lee’s conduct “were no greater in New Jersey than they were in any other state.” Reply Br. at 12. However, the effects within a state of extraterritorial conduct need not be unique to that state in order to justify the exercise of jurisdiction. The effects need only be of sufficient magnitude, and while the effects-test argument was stronger in Woodward than it is here, the effects here were adequate. Moreover, we note that, contrary to Lee’s suggestion, his conduct did create the potential for special harm in New Jersey because that is where the IBF is headquartered and publishes its rankings. We thus hold that Lee’s convictions on the counts in question did not violate due process. D. Lee contends that the government failed to prove the existence of a single conspiracy to engage in money laundering, as charged in the indictment, and merely proved the existence of a series of unrelated conspiracies between different boxing promoters and individual officers of the IBF. Lee argues that his conviction for conspiracy to engage in money laundering should therefore be reversed. We reject this argument. We exercise plenary review over “whether there was sufficient evidence from which the jury could have concluded that the government proved the single conspiracy alleged in the indictment.” United States v. Kelly, 892 F.2d 255, 258 (3d Cir.1989). In reviewing the sufficiency of the evidence after conviction, we must view the evidence in the light most favorable to the verdict. Id. Where a single conspiracy is alleged in an indictment, and the evidence at trial merely proves the existence of several distinct conspiracies, there is an impermissible variance. Id. On the other hand, “a finding of a master conspiracy with subschemes does not constitute a finding of multiple, unrelated conspiracies and, therefore, would not create an impermissible variance.” Id. (quoting United States v. Smith, 789 F.2d 196, 200 (3d Cir.1986)). In Kelly, we adopted a three-step inquiry to distinguish a single conspiracy from a series of separate, unrelated conspiracies: First, we examine whether there was a common goal among the conspirators. Second, we look at the nature of the scheme to determine whether the agreement contemplated bringing to pass a continuous result that will not continue without the continuous cooperation of the conspirators. Third, we examine the extent to which the participants overlap in the various dealings. Id. at 259 (citations and quotation marks omitted). Application of the Kelly inquiry shows that the jury had a reasonable basis for concluding that what Lee alleges were four separate conspiracies was in fact part of the same overarching conspiracy to launder the proceeds of the bribes paid to Lee and other IBF officials. The first step of the Kelly inquiry is satisfied because Lee, Lee Jr., Brennan and Fernandez. shared a common goal, namely, to receive shares of the payments from boxing promoters. The second step in the Kelly inquiry—that the co-conspirators each acted to bring about a continuous result that would not have- continued but for their continuing cooperation—is also met because the participants-continuously cooperated in their receipt of bribes, in the laundering of checks, and in the distribution of proceeds between themselves. For example, Lee held several conversations with Beavers regarding the risks of receiving bribes in the form of checks, and Beavers deposited checks that he had received from Fernandez into the bank account belonging to the Portsmouth Athletic Club and then distributed part of the proceeds to Lee. Finally, there was sufficient evidence to show that the participants overlapped in the various dealings, in satisfaction of the third Kelly factor. In establishing this third factor, the government is not required to “prove that each defendant knew all the details, goals, or other participants in order to find a single conspiracy.” Id. at 260 (internal quotation marks and citations omitted). Evidence was presented at trial that Lee participated in each of the four supposedly separate schemes, Beavers was directly implicated in three, and Fernandez was directly implicated in two. In sum, there was sufficient evidence, when viewed in the light most favorable to the government, from which the jury could have concluded that there was a single conspiracy, as opposed to a series of unrelated smaller agreements between the participants. E. Lee contends that the two of the Travel Act counts of the indictment were improperly amended at trial. We exercise plenary review over a claim that an indictment was impermissibly amended. United States v. Asher, 854 F.2d 1483, 1497-98 (3d Cir.1988). “In order to rise to the level of an impermissible amendment, a variance must act to modify the indictment so that the defendant is convicted of a crime that involves elements distinct from those of the crimes with which he was . originally charged.” Id. at 1497. “Thus, where trial evidence [has] amended the indictment by broadening the possible bases for conviction from that which appeared in the indictment, the variance violates the defendant’s substantial right to be tried only on charges returned by a grand jury.” Id. (citations and quotation marks omitted, emphasis and alteration in original). “If, on the other hand, the variance does not alter the elements of the offense charged, [courts] focus upon whether or not there has been prejudice to the defendant.” Id. (alteration in original). Counts 21 and 23 of the indictment included the following language: On or about the- following dates, in the district of New Jersey, and elsewhere, the below-named defendants did knowingly and wilfully travel in interstate and foreign commerce as described below, with intent to promote, manage, establish, carry on and facilitate the promotion, management, establishment and carrying on of an unlawful activity, that is, bribery, contrary to N.J.S.A. 2C:21-10(a)(4) and 2C:21-10(b), and thereafter did perform, and cause the performance of an act to promote, manage, establish, carry on and • facilitate the promotion, management, and carrying on of said unlawful activity. Count Date Defendants From/To 21 11/97 Lee, Sr. Colombia to Virginia 23 6/98 Lee, Sr. Colombia to Virginia. Appellee’s Supp.App. at 64-65 (emphasis added). In violation of Title 18, United States Code, Sections 1952 and 2. Appellee’s Supp.App. at 64-65 (emphasis added). Lee contends that his conviction under these counts should be overturned because the government impermissibly amended the indictment by presenting evidence at trial, not that he traveled from “Colombia to Virginia” on or about “11/97” and “5/98,” as the indictment charged, but that Fernandez made those trips. We disagree. Lee’s argument ignores the fact that Counts 21 and 23 charge that the alleged conduct violated “Title 18, United States Code, Sections 1952 and 2,” Appellee’s Supp.App. at 65 (emphasis added), and under 18 U.S.C. § 2 Lee could be held liable as a principal for Fernandez’s travel in interstate or foreign commerce if Lee aided, abetted, counseled, commanded, induced, procured, or willfully caused Fernandez to engage in that conduct. We have previously noted that criminal indictments are to be read “as a whole and interpreted] in a common sense manner.” Gov’t of Virgin Islands v. Moolenaar, 133 F.3d 246, 250 (3d Cir.1998). Accordingly, even though Counts 21 and 23 of Lee’s indictment could perhaps have been more carefully drafted, it is apparent that these counts apply both to travel in aid of racketeering by Lee himself, acting as principal, and to Lee’s aiding and abetting the travel in aid of racketeering of another unnamed individual or individuals. The evidence presented at trial showed that Lee aided and abetted Fernandez’s travel to and from Colombia but did not show such travel by Lee. The elements of the offense charged in Lee’s indictment were therefore narrowed at trial. Accordingly, we look to whether Lee suffered any prejudice. Asher, 854 F.2d at 1497. The indictment charged Lee with aiding and abetting travel between Colombia and Virginia by an unnamed individual on or about November of 1997 and June of 1998. Evidence at trial showed that Fernandez, the IBF’s South American representative and Lee’s co-indictee, was the unnamed individual that Lee had aided and abetted in his travels between Colombia and Virginia during these months. We cannot believe Lee was prejudiced by this narrowing of the government’s theory at trial. F. Lee’s last argument is that the District Court erred when it sentenced him to concurrent terms of 22 months’ imprisonment on the two tax counts, which charged violations of 26 U.S.C. § 7206. Because Lee did not raise this argument in the District Court, we review for plain error. United States v. Gricco, 277 F.3d 339, 350 (3d Cir.2002). Title 26, United States Code Section 7206 provides that any violation may be punished by a fine of “not more than $100,000 ... or imprison[ment for] not more than 3 years.” 26 U.S.C. § 7206. Section 3D1.2 of the Sentencing Guidelines directs a sentencing court to group “[a]ll counts involving substantially the same harm,” and Section 5G1.2(b) of the Guidelines instructs a court to apply the same sentence to each count in the same group, unless the statutorily authorized maximum for that count is less than the minimum of the guideline range or the statutory minimum is greater than- the maximum of the guideline range. - U.S.S.G. § 5G1.2(b) (referring to §§ 5Gl.l(a) and (b)). At the sentencing hearing, the District Court determined the offense level for Lee’s money laundering and Travel Act offenses to be 16 and the offense level for his tax convictions to be seven. Joint App. at 3646-48. The Court did not commit plain error when it grouped these offenses. The Court proceeded to identify a guideline range of 21 to 27 months, based on an offense level of 16 and Lee’s criminal history category of I. Id. at 6. The Court then imposed concurrent sentences of 22 months on all six counts. Id. at 3700. Because the statutory maximum for Lee’s tax offenses, 3 years, is not less than the minimum guideline range of 21 months, and because there was no mandatory minimum term of imprisonment for those offenses, the District Court did not commit plain error when it imposed the same concurrent 22-month sentence on all counts. III. For the reasons explained above, we affirm the judgment of the District Court. McKEE, Circuit Judge, dissenting. McKEE, Circuit Judge. “What a person knowingly exposes to the public, even in his own home or office, is not 'a subject of Fourth Amendment protection.” Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (emphasis added). Today my colleagues stretch that rule to include personal effects that a person unknowingly exposes to the public. Accordingly, I must respectfully dissent from the majority’s rejection of Lee’s Fourth Amendment claim. I. BACKGROUND The FBI rented a hotel suite for Lee in June and December of 1997. The suite consisted of “a sitting room and kitchenette, from which one could walk through a continuously open door, into a bedroom, which also had a bathroom in it.” A496-97. C. Douglas Beavers, the government’s cooperating witness, rented the hotel suite in Lee’s name on behalf of the government and kept a key for himself. However, both Lee and Beavers treated the suite as if it was exclusively Lee’s hotel room. With Beavers’ consent, the FBI concealed a video camera and microphone in the suite after Beavers rented it. The camera could swivel 360 degrees and transmit video images from the living room area and part of the bedroom area of Lee’s suite 24 hours a day. Special Agent Reilly of the FBI monitored the hidden surveillance equipment from an adjacent hotel room the government had rented for that purpose. Reilly could remotely control the camera and equipment in Lee’s suite from her location in the adjoining room. The equipment in Lee’s room continuously transmitted video and audio to the receiving equipment operated by Agent Reilly although she could not receive or record those transmissions unless her equipment was turned on. Agent Reilly testified without contradiction that she did not turn her equipment on or monitor any of the transmissions from Lee’s suite unless Beavers was in the suite with Lee. However, the camera could scan and focus on different areas of Lee’s suite whether or not Beavers was there. See Reply Br. at 4 n. L When Beavers visited Lee, he also wore a “body wire” capable of sending audio transmissions to the equipment in Agent Reilly’s adjoining room. However, Beavers’ body transmitter apparently malfunctioned and the FBI was only able to monitor and record audio transmissions by utilizing the microphone and camera hidden inside Lee’s suite. The audio and video recordings that resulted from this surveillance constituted the primary evidence for the only counts on which Lee was convicted. The Government argues that “Beavers’ view of the room was unobstructed, and he could look around the room at will. Nothing was concealed from Beavers that was visible to the camera.” See Appellee’s Br. at 28. However, that claim is not supported by this record, and the district court did not focus on that aspect of Lee’s argument. Instead, it found that Lee had no expectation of privacy in his hotel suite because he admitted Beavers to the room, and Beavers’ presence negated Lee’s Fourth Amendment expectation of privacy under Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966). A498. II. DISCUSSION A. Katz and Hoffa The Supreme Court first addressed the tension between law enforcement’s use of technology and the Fourth Amendment’s guarantee of privacy in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). There, FBI agents attached an electronic device to the outside of a public telephone booth that Katz was suspected of using for gambling-related telephone calls. The device allowed the FBI to surreptitiously listen to Katz’s end of telephone conversations. Based primarily upon evidence obtained from monitoring those calls, Katz was subsequently convicted of using the telephone for interstate transmission of gambling information in violation of 18 U.S.C. § 1084. Following his conviction, Katz appealed the trial court’s denial of his motion to suppress evidence derived from the electronic interception of his telephone conversations. The Supreme Court concluded that Katz’s expectation of privacy in the content of his calls was reasonable even though he was standing in a public telephone booth in full view of everyone passing by, and that the electronic interception of his telephone calls constituted a “seizure” under the Fourth Amendment even though it was accomplished without physically invading the place where the monitoring occurred. Therefore, absent exigencies that were not present, the seizure was subject to the warrant requirement of the Fourth Amendment. The Court explained: [Bjypassing a neutral predetermination of the scope of a search leaves individuals secure from Fourth Amendment violations only in the discretion of the police. These considerations do not vanish when the search in question is transferred from the setting of a home, an office, or a hotel room to that of a telephone booth. Wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures. The government agents here ignored the procedure of antecedent justification ... that is central to the Fourth Amendment, a procedure that we hold to be a constitutional precondition of the kind of electronic surveillance involved in this case. Because the surveillance here failed to meet that condition, and because it led to the petitioner’s conviction, the judgment must be reversed. 389 U.S. at 358-59, 88 S.Ct. 507 (internal quotation marks and citations omitted). The majority relies upon Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), in concluding that Lee’s expectation of privacy inside the intimacy of his hotel suite was not reasonable. However, on this record, that is an unjustified and unsupportable extension of Hoffa and its progeny. The defendant in Hoffa was convicted of jury tampering based primarily upon the testimony of Edwin Partin, an official of a Teamsters Union local in Nashville, Tennessee, where Hoffa and other union officials were on trial for violating the Taft-Hartley Act. During the course of that trial, the government became concerned that Hoffa and his codefendants might attempt to bribe some of the jurors. Unbeknownst to Hoffa, the government recruited Partin to gather evidence of jury tampering. Partin was able to visit Hoffa’s hotel suite and Hoffa spoke freely of attempting to bribe jurors in his presence. Hoffa’s trial for Taft-Hartley violations ended with a hung jury, but Hoffa was thereafter convicted of jury tampering based largely on Partin’s testimony about statements Hoffa had made in his hotel suite. Hoffa appealed arguing in part that Partin’s testimony should have been suppressed because it was obtained in violation of the Fourth Amendment. Hoffa argued that Partin’s failure to disclose that he was “a government informer vitiated the consent that [Hoffa] gave to Partin’s repeated entries into the [hotel] suite, and that by listening to [Hoffa’s] statements Partin conducted an illegal ‘search’ for verbal evidence.” 385 U.S. at 300, 87 S.Ct. 408. The Hoffa Court began its analysis by conceding that the legal predicate of Hoffa’s argument rested on solid ground. A hotel room can clearly be the object of Fourth Amendment protection as much as a home or office.... The Fourth Amendment can certainly be violated by guileful ... intrusions into a constitutionally protected area.... And the protections of the Fourth Amendment are surely not limited to tangibles, but can extend as well to oral statements. Id. at 301, 87 S.Ct. 408. The Court explained: The Fourth Amendment protects .... the security a man relies upon when he places himself or his property within a constitutionally protected area, be it his home or his office, his hotel room or his automobile. There he is protected from unwarranted governmental intrusion. And when he puts something in his filing cabinet, in his desk drawer, or in his pocket, he has the right to know it will be secure from an unreasonable search or an unreasonable seizure. Id. (footnote omitted). However, the Court rejected the balance of Hoffa’s argument because Hoffa’s disclosures resulted from his relationship with Partin, not any reliance on the privacy of his hotel suite. Thus, there was no reasonable expectation of privacy in the contents of the statements made to Partin, and no Fourth Amendment privacy interest prevented Partin from testifying about Hoffa’s “confidential” statements. The Court explained: It is obvious that [Hoffa] was not relying on the security of his hotel suite when he made the incriminating statements to Partin or in Partin’s presence. Partin did not enter the suite by force or by stealth. He was not a surreptitious eavesdropper. Partin was in- the suite by invitation, and every conversation which he heard was either directed to him or knowingly carried on in his presence. The petitioner, in a word, was not relying on the security of the hotel room; he' was relying upon his mis: placed confidence that Partin would not reveal his wrongdoing. Id. at 302, 87 S.Ct. 408. The same is true here, but only to a point, and it is this limitation that the majority ignores in allowing Hoffa to swallow Katz on this record, and gulp down the Fourth Amendment in the process. Under the majority’s Hoffa analysis, once Lee allowed Beavers to enter the suite, Lee no longer had a reasonable expectation of privacy and Katz becomes irrelevant. I disagree. Hoffa teaches that one’s expectation of privacy is compromised, and therefore unreasonable, to the extent that he or she confides in a confederate because the speaker is assuming the risk that the confederate may subsequently betray the speaker’s trust and repeat anything communicated in “private.” The same logic dictates that one has no reasonable expectation in the privacy of anything he/she knoivingly allows the confederate to see in the presumed privacy of a home or hotel room, or elsewhere. As noted above, the government concealed a microphone and video camera in the sitting room area inside Lee’s hotel suite. From that vantage point, the government was capable of monitoring Lee’s activity inside his suite 24 hours a day by way of audio and video transmissions to Agent Reilly in the adjoining room. The government maintains that it took steps to insure Lee’s privacy and to guarantee that its actions were consistent with the pronouncements in Hoffa. It argues that Agent Reilly did not start monitoring the transmissions from Lee’s suite until Beavers arrived, that she turned the equipment off when Beavers left, and that she did not turn it on in Beavers’ absence. My colleagues conclude that this restraint was consistent with Lee’s expectation of privacy under Hoffa, and therefore no Fourth Amendment violation occurred. In doing so, my colleagues ignore the fact that the Court in Katz rejected that very argument. The Court in Katz began its analysis by noting the restrained manner in which the government had obtained the evidence there. [T]he surveillance was limited, both in scope and in duration, to the specific purpose of establishing the contents of petitioner’s unlawful telephonic communications. The agents confined the surveillance to the brief periods during which he used the telephone booth and they took great care to overhear only the conversations of the petitioner himself. 389 U.S. at 354, 88 S.Ct. 507 (footnotes omitted). Accordingly, there, as here, the actual surveillance had been conducted “in an entirely defensible manner[.]” Id. There, as here, “[i]t [was] apparent that the agents ... acted with restraint” Id. at 356, 88 S.Ct. 507. Nevertheless, the Court concluded that this self-imposed restraint could not legitimize the warrantless seizure of Katz’s conversations in the public telephone booth. The Court reasoned: [T]he inescapable fact is that this restraint was imposed by the agents themselves, not by a judicial officer. They were not required, before commencing the search, to present their estimate of probable cause for detached scrutiny to a neutral magistrate. They were not compelled, during the conduct of the search itself, to observe precise limits established in advance by a specific court order. Nor were they directed, after the search had been completed, to notify the authoring magistrate in detail of all that had been seized. In the absence of such safeguards, this Court has never sustained a search upon the sole ground that officers reasonably expected to find evidence of a particular crime and voluntarily confined their activities to the least intrusive means consistent with that end. Id. at 356-57, 88 S.Ct. 507 (emphasis added). Accordingly, I fail to see the significance of the government’s self-imposed restraint here. Despite those self-imposed limitations, the fact remains that Agent Reilly had the ability to manipulate a video camera to see and hear practically everything that Lee did in the privacy of his hotel suite throughout the day and night. The limitations of that Orwellian capability were not subject to any court order. Rather, they were defined by the curiosity and scruples of a single agent. That is simply not adequate given the importance of Fourth Amendment guarantees. If subjective good faith alone were the ■ test, the protections of the Fourth Amendment would evaporate, and the people would be secure in their persons, houses, papers and effects, only in the discretion of the police. Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1068) (internal quotation marks and citation omitted). Moreover, the agents in Katz did not even initiate them electronic monitoring “until investigation of the [defendant’s] activities established a strong probability that he was using the telephone in question [for interstate gambling purposes].” 389 U.S. at 354, 88 S.Ct. 507. Here, there is no such representation. In fact, it is clear that Lee was not using the hotel suite for illegal purposes before the government installed microphones and cameras there and arranged for him to occupy it. The government attempts to negate the reasonableness of Lee’s expectation of privacy by suggesting that, since Lee knew Beavers paid for the room and retained a key, “Lee’s expectation of privacy in the room was relatively diminished.” Appel-lee’s Br. at 21. However, as noted above, both parties regarded the suite as Lee’s and the government does not seriously argue to the contrary. Everyone involved apparently knew that Lee wras to remain in the suite overnight, and there is nothing to suggest that anyone ever expected Beavers to remain in the suite for any length of time. “From the overnight guest’s perspective,” the expectation of privacy in a hotel room is entitled to the same respect as afforded one’s actual home under the Fourth Amendment. Minnesota v. Olson, 495 U.S. 91, 99, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990). Thus, “[n]o less than a tenant of a house, or an occupant of a room in a boarding house, ... a guest in a hotel room is entitled to constitutional protection against unreasonable searches and seizures.” Stoner v. California, 376 U.S. 483, 490, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964). Accordingly, the fact that Beavers rented the suite for Lee and retained a key to Lee’s suite before surrendering possession to Lee for the latter’s sole occupancy is little more than a technicality of convenience that the government devised to fortify this intrusion against the expected suppression motion. It is entitled to no more consideration than that. [I]t is unnecessary and ill-advised to import into the law surrounding the constitutional right to be free from unreasonable searches and seizures subtle distinctions, developed and refined by the common law in evolving the body of private property law which, more than almost any other branch of law, has been shaped by distinctions whose validity is largely historical. (W)e ought not to bow to them in the fair administration of the criminal law. Id. at 488, 84 S.Ct. 889. To the extent the Fourth Amendment has any vitality in an era of increasingly sophisticated electronic eavesdropping, it surely protects the privacy of someone in the intimacy of a hotel suite from the potential of warrantless 24-hour video surveillance. As noted above, the majority concludes that the Supreme Court’s analysis in Hoffa negates Lee’s claim of privacy. Lee, like Hoffa, “was not relying on the security of his hotel suite when he made incriminating statements to [Beavers] or in [Beavers’] presence.” Hoffa, 385 U.S. at 302, 87 S.Ct. 408. Beavers, like the confederate- in Hoffa, “was in the suite by invitation, and every conversation which he heard was either directed to him or knowingly carried on in his presence.” Id. It is now clear that the Fourth Amendment does not protect “a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.” Id. However, this means that Lee’s expectation of privacy is only unreasonable insofar as he actually made statements in Beavers’ presence, or allowed Beavers to see the effects inside his suite. It does not mean that Lee’s expectation of privacy in things beyond Beavers’ earshot or line of sight was unreasonable. Indeed, that expectation remained reasonable and should be protected under the Fourth Amendment. However, the concealed camera was capable of sweeping the hotel suite at a 360-degree angle, thereby displaying for the FBI all of Lee’s effects inside the suite whether or not Beavers would have been able to see them. Neither Hoffa nor any other legal precedent supports such an abrogation of the fundamental right of privacy. B. Lee’s Right of Privacy The Fourth Amendment states that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.... ” U.S. CONST. Amend. IV. At the very core of the Fourth Amendment “stands the right of' a [person] to retreat into [his or her] own home and there be free from unreasonable governmental intrusion.” Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961). It has often been said that “the Fourth Amendment protects people, not places.” Katz, 389 U.S. at 351, 88 S.Ct. 507. However, my colleagues appear to assume that since Lee admitted Beavers to his suite (the place), Lee (the person) lost all constitutional protection. That conclusion would be warranted if Lee had allowed Beavers’ unlimited access to everything that was within the 360-degree field of vision of the video camera. However, despite its assertion to the contrary, the government has not established that he did. “[T]he capacity to claim the protection of the Fourth Amendment depends ... upon whether [Lee] has a legitimate expectation of privacy” in those portions of his hotel room that were beyond the gaze of Beavers. Minnesota v. Olson, 495 U.S. 91, 95, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990) (ellipsis in original; internal citation and quotation marks omitted). Unlike my colleagues, I conclude that Lee’s expectation of privacy in anything inside the suite that he did not knowingly let Beavers see was reasonable, and entitled to Fourth Amendment protection. Moreover, the government was able to peer into Lee’s hotel room even after Beavers left. “When [the informant] leaves [the] premises, [the subject] is left with the expectation of privacy in his surroundings which is not only actual but justifiable .... ” United States v. Padilla, 520 F.2d 526, 527 (1st Cir.1975) (citing Katz, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576). C. Video Surveillance Under Hoffa In United States v. Felton, 753 F.2d 256 (3d Cir.1985), we explained the invited informant rule in the context of a monitored telephone conversation. There, we stated: Insofar as the Fourth Amendment is concerned, one party to a telephone conversation assumes the risks that the other party (a) will permit a third party to eavesdrop on an extension telephone, for the purpose of communicating what he heard to the police, or (b) may be a police informer who will relate or record or transmit a conversation to the authorities, or (c) may record the conversation and deliberately turn it over. Id. at 260. We then stated: “the expectation of privacy is not measured' by what takes place during or after the conversation, it is measured by what is expected before the conversation begins.” Id. As then-Chief Judge Aldisert so plainly explained, “[w]hen you pick up that phone and talk, you can’t trust nobody, nohow, nowhere!” Id. Hoffa’s reliance on the Court’s earlier decision in Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963) clearly demonstrates this. Lopez is even more relevant to Lee’s claim here because in Lopez, unlike in Katz, the government concealed a transmitter and recorder on a government agent. That agent then interviewed the defendant in the latter’s office after being invited in. The defendant was convicted of offering the agent a bribe based on the ensuing conversation, and thereafter argued that the trial court had erred in refusing to suppress recordings of conversations with the agent. The Lopez Court began by noting that “it [was] plain that [the agent] could properly testify about his conversation with Lopez;” thus, “the constitutional claim relating to the recording of that conversation emerge[d] in proper perspective.” 373 U.S. at 438, 83 S.Ct. 1381. The Court concluded that the recordings were properly admitted at trial because “[t]he Government did not use an electronic device to listen in on conversations it could not otherwise have heard.” Rather, “the device was used only to obtain the most reliable evidence possible of a conversation in which the Government’s own agent was a participant and which that agent was fully entitled to disclose.” Id. However, neither Lopez nor Hoffa allow the government to go farther and substitute its own electronically enhanced senses for the mortal senses of the informant. Putting aside for a moment the ability to monitor Lee’s suite