United States v. Edwin Pawlowski ( 2022 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 18-3390
UNITED STATES OF AMERICA
v.
EDWIN PAWLOWSKI,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Action No. 5-17-cr-00390-001)
District Judge: Honorable Juan R. Sanchez
Submitted Under Third Circuit L.A.R. 34.1(a)
September 28, 2021
Before: AMBRO, KRAUSE, and BIBAS, Circuit Judges
(Opinion filed: March 4, 2022)
Jack J. McMahon, Jr.
139 North Croskey Street
Philadelphia, PA 19103
Counsel for Appellant
Richard P. Barrett
Michelle Morgan
Anthony J. Wzorek
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
OPINION OF THE COURT
AMBRO, Circuit Judge
A jury convicted Edwin Pawlowski of federal programs
bribery, Travel Act bribery, attempted Hobbs Act extortion,
wire and mail fraud, honest services fraud, making false
statements to the FBI, and conspiracy. The charges stemmed
from a scheme in which Pawlowski—then the Mayor of
Allentown, Pennsylvania—steered city contracts and provided
other favors in exchange for campaign contributions. The
District Court imposed a 180-month sentence.
On appeal, Pawlowski argues that (1) there was
insufficient evidence to support his convictions, (2) his
2
inability to recross-examine a Government witness violated the
Sixth Amendment’s Confrontation Clause, and (3) his sentence
is procedurally and substantively unreasonable. We reject each
argument and hence affirm. 1
I.
We conduct a fresh review for a sufficiency-of-the-
evidence challenge. United States v. Starnes, 583 F.3d 196,
206 (3d Cir. 2009). Our review is, however, “guided by strict
principles of deference to a jury’s verdict.” United States v.
Rosario, 118 F.3d 160, 162–63 (3d Cir. 1997). We must view
the evidence “in the light most favorable to the prosecution,”
and will affirm the conviction if a “rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt.” United States v. Garner, 915 F.3d 167, 169
(3d Cir. 2019) (quoting United States v. Caraballo-Rodriguez,
726 F.3d 418, 424–25 (3d Cir. 2013) (en banc)). “Reversing
the jury’s conclusion simply because another inference is
possible—or even equally plausible—is inconsistent with the
proper inquiry for review of sufficiency of the evidence
challenges.” Id. (quoting Caraballo-Rodriguez, 726 F.3d at
432).
Pawlowski contests all counts of conviction as lacking
sufficient evidence. For our purposes, these counts can be
1
The District Court had jurisdiction under 18 U.S.C. § 3231.
We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a).
3
divided into two groups: bribery 2 and false statements. We
conclude that the evidence was sufficient to convict on both.
A.
As to the bribery counts, Pawlowski contends the
Government failed to prove an explicit quid pro quo necessary
to succeed on charges premised on the solicitation or
acceptance of campaign funds. Because the parties agree that
proof is required, we assume (without deciding) it is.
The “explicit quid pro quo” requirement derives from
McCormick v. United States, 500 U.S. 257 (1991). There, the
Supreme Court addressed the complexities in prosecuting an
elected official for soliciting or receiving campaign donations.
On the one hand, our nation’s election campaigns are privately
funded, requiring candidates to seek donations from their
supporters. See id. at 272. And a representative’s role is to
2
The bribery offenses are federal programs bribery, 18 U.S.C.
§ 666(a)(1)(b); Travel Act bribery, 18 U.S.C. § 1952(a)(3);
Hobbs Act extortion, 18 U.S.C. § 1951; wire fraud, 18 U.S.C.
§ 1343; mail fraud, 18 U.S.C. § 1341; honest services wire
fraud, 18 U.S.C. §§ 1343, 1346; and honest services mail fraud,
18 U.S.C. §§ 1341, 1346. Pawlowski was also convicted of
conspiracy, 18 U.S.C. § 371, but challenges the sufficiency of
the evidence supporting his bribery and conspiracy convictions
on the same grounds, arguing only that the overt acts alleged
in the conspiracy charge—which also form the basis of his
bribery convictions—were not borne out by the evidence. We
reject this argument for the reasons discussed below.
4
further the interests of his or her constituents. Indeed, “[i]t is
well understood that a substantial and legitimate reason, if not
the only reason, [to contribute to] one candidate over another
is that the candidate will respond by producing those political
outcomes the supporter favors.” Citizens United v. FEC, 558
U.S. 310, 359 (2010) (quoting McConnell v. FEC, 540 U.S. 93,
297 (2003) (Kennedy, J., concurring in part and dissenting in
part)). Thus, as a practical matter, policing elected officials for
requesting or receiving campaign funds “open[s] to
prosecution not only conduct that has long been thought to be
well within the law but also conduct that in a very real sense is
unavoidable so long as election campaigns are financed by
private contributions or expenditures.” McCormick, 500 U.S.
at 272.
But, at the same time, this regime is open to abuse, and
our representative system is undermined without restrictions
on officials’ ability to engage in partisan conduct on behalf of
their donors. See Buckley v. Valeo, 424 U.S. 1, 26–27 (1976)
(per curiam). The public correspondingly has an interest in
ensuring its representatives are held accountable for abusing
the public trust, even when that abuse occurs in the campaign-
finance context. See United States v. Dozier, 672 F.2d 531,
537 (5th Cir. 1982) (“Our need to avoid hampering honest
candidates who must solicit funds from prospective supporters
does not require that the courts abandon this necessary, if
troublesome, realm of political maneuver to those who would
abuse its opportunities.”).
To balance these competing claims, McCormick
imposed on the Government a heightened burden of proof: an
official’s solicitation or acceptance of campaign funds is
presumed legitimate unless the prosecution establishes an
5
explicit quid pro quo, meaning “an explicit promise or
undertaking by the official to perform or not to perform an
official act” in exchange for the donation. 500 U.S. at 273. A
“vague expectation of future benefits” is not enough. Dozier,
672 F.2d at 537. Rather, the evidence, considered as a whole,
must show that the official obtained or attempted to obtain
campaign contributions “in exchange for specific promises to
do or refrain from doing specific things.” See United States v.
Farley, 2 F.3d 645, 651 (6th Cir. 1993) (emphasis omitted)
(quoting United States v. Bibby, 752 F.2d 1116, 1127 n.1 (6th
Cir. 1985)).
At issue in McCormick was whether a public official’s
receipt of alleged campaign funds constituted Hobbs Act
extortion “under color of official right.” 18 U.S.C.
§ 1951(b)(2). The Supreme Court has yet to extend
McCormick’s explicit quid pro quo requirement beyond the
extortion context. But because the parties agreed to require
proof of such an arrangement, we assume without deciding that
McCormick governs each of the Government’s bribery counts,
at least where those counts are premised on the solicitation or
acceptance of campaign funds. See United States v. Antico,
275 F.3d 245, 257 (3d Cir. 2001) (declining to extend
McCormick to non-campaign donation cases). And contrary to
Pawlowski’s position, when viewed in the Government’s
favor, the parties’ conversations and conduct (detailed below)
establish explicit quid pro quos, showing the intent to use his
public office to provide specific favors in exchange for
political donations.
Pawlowski was convicted of seven bribery sub-
schemes, each of which involved a different prospective donor
(generally, would-be city contractors). He interacted with
6
them largely through his political consultants, Michael Fleck
and Sam Ruchlewicz. And several favors involved the
assistance of the City’s Managing Director, Francis Dougherty.
In addition to the testimony of Ruchlewicz, Dougherty, and
several contributors, the Government introduced
surreptitiously taped conversations among Pawlowski,
Ruchlewicz, Fleck, and others. This evidence was sufficient to
show an explicit quid pro quo between Pawlowski and each of
the seven prospective donors: (1) Ramzi Haddad; (2) Northeast
Revenue Service; (3) Spillman Farmer Architects; (4) McTish,
Kunkel & Associates; (5) the Norris McLaughlin law firm;
(6) The Efficiency Network; and (7) CIIBER/5C Security.
Because the District Court thoroughly recounted the evidence
in its opinion denying Pawlowski’s Rule 29 motion, see United
States v. Pawlowski, 351 F. Supp. 3d 840, 851–71 (E.D. Pa.
2018), we set out only a portion of that evidence here.
1.
The first contributor, Ramzi Haddad, was developing a
property in Allentown. Evidence showed he and Pawlowski
agreed that Haddad would contribute to Pawlowski’s campaign
in exchange for two favors regarding the property:
(1) expediting a zoning request; and (2) securing a favorable
inspection.
For the first favor, Haddad approached the City’s
zoning office with a request in early December 2014 and was
told it would not be addressed until January 2015. He then
spoke with Ruchlewicz. During that conversation, Ruchlewicz
asked Haddad to contribute $2,500 to Pawlowski’s campaign.
He responded by asking for a “gift” from Pawlowski,
7
explaining that it had to do with a zoning issue. Supp. App.
1131. The two spoke again about a contribution a few days
later, at which time Ruchlewicz informed Haddad that he had
conferred with Pawlowski about Haddad’s need for zoning
help, and Pawlowski responded, “[W]hatever [Haddad]
want[s, c]onsider it done.” Id. at 1137. Ruchlewicz also
testified that he had brought Haddad’s zoning issue to the
attention of Pawlowski and Dougherty. Then, in a
conversation on December 17, Dougherty told Ruchlewicz that
he would direct the City’s Zoning Supervisor, Barbara Nemith,
to “prioritize her review” of Haddad’s request. Id. at 1144.
Nemith testified that Dougherty told her about Haddad’s
request and that, but for his inquiry, it would have taken longer
to approve. A reasonable jury could find that Pawlowski—
acting through Ruchlewicz and Dougherty—pressured Nemith
to expedite Haddad’s zoning request in exchange for Haddad’s
$2,500 campaign contribution. 3
3
Pawlowski submits that he only arranged meetings on
Haddad’s behalf, and thus did not take an “official action” as
required to support his bribery conviction. See McDonnell v.
United States, 136 S. Ct. 2355 (2016). Because the parties do
not argue otherwise, we assume that proof of official acts was
required under Pawlowski’s statutes of conviction. And
Pawlowski is right that “merely setting up a meeting” does not
qualify as an official act. Id. at 2369 (defining an “official act”
as a “focused,” “concrete,” and “formal exercise of
governmental power”). But the evidence here was not so weak.
It showed that Pawlowski used his office to facilitate specific
official favors for Haddad in exchange for donations; these
actions were sufficient to support his convictions. See id. at
2370 (an official act occurs where the bribe recipient agrees to
8
The second favor—concerning a property inspection—
came a few months later. During a meeting in May 2015,
Pawlowski asked how much Haddad could raise for the
former’s campaign, to which he responded that he had $35,000
“in [his] pocket for [Pawlowski].” Id. at 1267. Haddad then
immediately turned the conversation to a city inspection of the
property, expressing frustration that a delay had cost him
customers as well as concern that the inspector would “[]nit
pick [him] again.” Id. Pawlowski said he was “working” on
the issue. Id. Three days later, on the morning of the scheduled
inspection, Pawlowski discussed Haddad’s property with the
Director of the City’s Office of Building Standards and Safety,
David Paulus. Following the inspection, Paulus emailed
Pawlowski to tell him it had gone well. A month later, on the
day before Pawlowski’s campaign-contribution deadline,
Pawlowski expressed frustration about Haddad’s fundraising,
stating that he had provided “so much help for [Haddad]” and
had “ben[t] over backwards for [him].” Id. at 1291–92.
Given this evidence, a reasonable jury could find that
Pawlowski used his influence to pressure city officials into
expediting Haddad’s zoning request and securing him a
favorable property inspection in exchange for campaign funds.
2.
The second contributor, Northeast Revenue Service,
sought a contract to serve as the City’s collector of delinquent
real estate taxes. In an effort to obtain the contract, Northeast
use his or her “official position to exert pressure on another
official to perform an ‘official act’” (emphasis in original)).
9
in October 2013 made a presentation to Pawlowski. He
remarked during it that the owner of the firm then holding the
contract—Michelle Portnoff—had “done nothing for [him].”
App. 394. After Northeast submitted its contract proposal,
Pawlowski called Sean Kilkenny—who was working to obtain
the contract for Northeast and who had been at the
presentation—and asked him for a campaign contribution.
Kilkenny testified that he then contributed $2,500, as he “felt
pressure” to do so. Id. at 400.
Shortly thereafter, while Northeast’s proposal was still
pending, Ruchlewicz called Kilkenny and asked for tickets to
a Philadelphia Eagles playoff game for himself and Pawlowski.
Northeast obtained the tickets and, on the day of the game,
Kilkenny joined Pawlowski and Ruchlewicz for dinner at a
Philadelphia steakhouse. At dinner, Ruchlewicz remarked in
Pawlowski’s presence that Northeast’s proposal “looked
good.” Id. at 404. Pawlowski and Ruchlewicz did not offer to
pay for the dinner or the tickets.
In January 2014, Pawlowski spoke with the City’s
Finance Director, David Strathearn, about the contract.
Pawlowski stated that he needed Northeast to be awarded the
contract, and that he was concerned the committee responsible
for the decision was going to select another firm. Strathearn
testified that he considered this to be a direction from
Pawlowski, prompting the former to intervene with the
committee to alter its selection methodology so Northeast
would be picked rather than the firm the committee had
previously favored. As a result, Northeast got the contract.
Given this evidence, a reasonable jury could find an
explicit quid pro quo, with Pawlowski helping the firm obtain
10
the revenue contract in exchange for campaign contributions,
Eagles tickets, and dinner for Pawlowski and Ruchlewicz.
3.
The third contributor, Spillman Farmer, is an
architectural firm that sought a contract to design and construct
pools for the City. The evidence at trial showed an explicit
quid pro quo for Pawlowski to steer the contract to Spillman in
exchange for campaign contributions.
Prior to interceding in the contract-selection process,
Pawlowski and Dougherty spoke about the firm. Pawlowski
told Dougherty that it “would be great to get [Spillman] on
board . . . for some of our pool work,” and informed him that
the firm “would be [a] campaign contributor[].” Supp. App.
223. Dougherty then told the City’s Superintendent of Parks,
Richard Holtzman, that Pawlowski wanted Spillman to receive
the pools contract. But after reviewing proposals from it and
other potential contractors, the evaluation committee did not
prefer Spillman. When Dougherty learned this, he asked
Holtzman “[t]o take another look at Spillman,” which,
Holtzman testified, “pressure[d]” him to favor it. App. 1891–
92.
On looking into the matter, Holtzman learned that one
of Spillman’s references had provided the committee a
negative review. He passed this information to Dougherty; the
latter told Pawlowski, who in turn asked Dougherty to speak
with Ruchlewicz. After their conversation, Ruchlewicz called
a partner at Spillman, Joseph Biondo, advising him about the
negative reference and asking him to provide another reference
as soon as possible. Ruchlewicz told Biondo that “everybody
11
likes you guys and you’re the low bid.” Supp. App. 1244.
Biondo responded “okay,” thanked Ruchlewicz for the
information, and agreed to provide a new reference. Id. at
1244–45. Spillman was awarded the contract.
Before officially signing the contract, Pawlowski called
Biondo and asked him for a $2,700 campaign contribution.
Biondo responded that he would have to run that request “up
the flagpole,” meaning he would have to discuss it with the
other partners. App. 2049. After the call ended, Pawlowski
expressed frustration to Ruchlewicz, telling him that Biondo
“[b]etter run it up the flagpole fairly quick.” Supp. App. 1230.
Pawlowski’s staff then reached out to Biondo again, shortly
before Pawlowski’s fundraising deadline, requesting a
contribution. Though Pawlowski did ultimately sign the pools
contract without receiving a contribution from Spillman, he did
so only after his fundraising deadline had passed and on the
same day as his interview with the FBI.
From this evidence, a reasonable jury could find that
Pawlowski intended to secure the contract for the firm in
exchange for a campaign donation, and that Spillman merely
failed to live up to its end of the bargain.
4.
The fourth contributor, McTish, Kunkel & Associates,
is an engineering firm that sought a street-improvement
contract. One of the firm’s engineers, Matthew McTish,
testified that, based on conversations he had with Pawlowski—
in which Pawlowski would discuss both contributions to his
own campaign and City contracts—McTish did not believe he
12
could obtain contracts from the City unless he contributed to
Pawlowski’s campaign.
During a conversation in December 2014, Ruchlewicz
informed Pawlowski that he had “found . . . a project” for the
firm—specifically, the street-improvement contract. Id. at
1133. Pawlowski expressed his approval and agreed with
Ruchlewicz’s suggestion that he “hit [McTish] up” for his
holiday party campaign fundraiser. Id. Five days later,
Ruchlewicz called McTish and told him that the Mayor was
“very[,] very happy” that the firm would be donating about
$2,500, and that as soon as the street-improvement contract
came before Pawlowski, he would “give it the rubber stamp,
sign it, seal it, [and] it will be yours.” Id. at 1135. McTish and
his brother then donated $2,250.
The firm did not, however, receive the street-
improvement contract. At a meeting a few months after the
donation, Ruchlewicz reassured McTish that would occur and
there would be more work for the firm on bridges in Allentown.
Later in the meeting, McTish spoke with Pawlowski, who
asked McTish for additional fundraising help. Ruchlewicz
later asked McTish if he and Pawlowski were “all squared
away” and had “talked about bridges.” Id. at 1221. McTish
responded yes to both.
From this, a reasonable jury could find that Pawlowski
and McTish agreed—through Ruchlewicz—that Pawlowski
would obtain a contract for McTish in exchange for campaign
contributions, and Pawlowski failed to follow through.
5.
13
The fifth contributor, Norris McLaughlin, is an
Allentown law firm. Evidence showed that Pawlowski
solicited campaign contributions from it and Scott Allinson, a
partner at the firm, 4 in exchange for Pawlowski’s agreement to
steer a Parking Authority contract its way.
At trial the Government introduced several recorded
conversations about the Parking Authority scheme. In
December 2014, Allinson complained to Ruchlewicz that the
firm had “been unbelievably supportive in the past and now,
you know, the work’s going everywhere . . . but to our shop.”
Id. at 1235. The men spoke again two days later. Ruchlewicz
told Allinson that the City’s current Parking Authority
Solicitor would be fired and a Norris McLaughlin partner—
Richard Somach—would take his place. But he informed
Allinson that the firm would need to “do something for the
mayor’s holiday party.” Id. at 1239. Allinson responded that
he was willing to write a check.
The next month, Allinson complained to Fleck and
Ruchlewicz about “sore feelings” at the firm. Id. at 1168. He
told them that the Parking Authority job could “begin to fix all
of those little sore feeling issues and get the checkbooks back
out.” Id. Ruchlewicz went back to Pawlowski and informed
him that Allinson was having doubts about whether Norris
McLaughlin would support his campaign. Pawlowski
4
Allinson was tried alongside Pawlowski and was convicted
of conspiracy and federal programs bribery. His appeal is
pending before us, C.A. No. 19-3806, and was consolidated
with this matter for disposition purposes by Clerk’s Order
entered January 29, 2020. That appeal we address in a separate
opinion.
14
responded, “I’m not gonna make Somach solicitor or anything.
Screw it all.” Id. at 1297. Ruchlewicz replied that he and Fleck
would “get everything fixed.” Id.
Allinson, Ruchlewicz, and Fleck met again a few days
later. Allinson told them that, if Norris McLaughlin were to
get the Parking Authority contract, he would have “the full
stack of cash on [his] side to do with it what [he] need[s] to do,
annually.” Id. at 1179. Shortly thereafter, Ruchlewicz
informed Pawlowski that Allinson had brought a check—
which Ruchlewicz called “[i]nstallment number one”—to one
of Pawlowski’s fundraisers. Id. at 1204. When Ruchlewicz
later asked Pawlowski about the status of the Parking Authority
position, Pawlowski assured him, “I’m working on it.” Id. at
1214. Ruchlewicz told Pawlowski that Allinson would need to
get the credit for bringing in the contract, as he controlled the
firm’s PAC money. Pawlowski responded, “I got you.” Id. at
1215.
Pawlowski then sought $25,000 in campaign
contributions from the firm. Allinson complained to
Ruchlewicz that this was “a lot of fucking money when you’re
getting absolutely zero back from the city.” Id. at 1247.
Ruchlewicz responded, “Well, we’ll have to change that. The
mayor will.” Id.
Norris McLaughlin contributed $17,300 to Pawlowski’s
campaign. After notifying Pawlowski of the firm’s
contribution, Fleck asked if they could now appoint Somach as
Parking Authority Solicitor, and the men discussed options for
getting the current Solicitor to leave the position.
15
From this, a reasonable jury could find an explicit quid
pro quo for Pawlowski to secure the Parking Authority job for
a Norris McLaughlin partner in exchange for campaign funds.
6.
The sixth donor, The Efficiency Network (“TEN”), is a
company that sought a City contract to provide streetlights.
Dougherty testified that Pawlowski wanted TEN to receive
contracting work from the City because one of TEN’s
principals, Patrick Regan, was politically influential. To
ensure that TEN would qualify for the streetlight contract,
Pawlowski and Ruchlewicz asked Regan to provide language
the City could incorporate into a request for qualifications
(“RFQ”) issued to prospective contractors. After Pawlowski
left the meeting, Ruchlewicz told Regan that the deal was
“lined up.” Id. at 1164. Later in the same meeting, Ruchlewicz
told Regan that Pawlowski wanted to invite him to a campaign
fundraiser and “was hoping” for a $2,500 contribution, noting
that the City’s contractors needed “to give back a little bit.” Id.
at 1166. Regan agreed.
Thereafter, one of TEN’s political consultants, Jim
Hickey, provided Dougherty language for the City’s RFQ for
the streetlight contract. Dougherty testified that, at
Pawlowski’s request, he directed the City’s Public Works
Director to incorporate this language into the RFQ. But the
contract evaluation committee refused to do so. This upset
Pawlowski, who asked Dougherty who needed to be fired.
The same day, Pawlowski phoned Regan and asked for
TEN to sponsor a state conference of the Pennsylvania
16
Municipal League to be held in Allentown. TEN obliged,
donating $5,000 for the conference.
Just weeks later, TEN submitted its proposal to the City,
but it arrived late. Dougherty informed Ruchlewicz, who
brought it to Pawlowski’s attention, stating that this problem
had been “resolved.” Id. at 1213. Dougherty testified that he
permitted the late filing.
Before the streetlight contract was awarded, Fleck
spoke with Pawlowski about campaign contributions from
TEN. Fleck told Pawlowski that, given the pending
contracting process, it “would be a good time to ask” for an
additional contribution from Regan. Id. at 1255. Pawlowski
agreed. Later that day, he instructed Ruchlewicz to seek
contributions from TEN through its political consultant,
Hickey. Ruchlewicz obliged, asking Hickey to have Regan
donate to Pawlowski, and reminding Hickey that “TEN’s
gonna get some street lights.” Id. at 1225. When Hickey
stated, “[L]et’s just get the deal done first,” Ruchlewicz
responded, “The deal’s done.” Id. at 1226. Less than two
months later, TEN was awarded the contract.
Given the above, a reasonable jury could find an explicit
quid pro quo for Pawlowski to secure the streetlight contract
for TEN in exchange for campaign contributions and the
contribution to the Pennsylvania Municipal League.
7.
The seventh and final contributor, CIIBER/5C Security,
is a company that sought a contract to provide cybersecurity
for the City. Dougherty testified that Pawlowski wanted
17
CIIBER/5C Security to receive contracting work for the City
because its principal, Jack Rosen, was wealthy and politically
influential, and thus a valuable fundraiser. Pawlowski tasked
Dougherty with finding Rosen contract work. Dougherty and
Pawlowski decided on a cybersecurity contract.
Pawlowski and Ruchlewicz met with Rosen in February
2015, and the three discussed Rosen making a campaign
contribution to Pawlowski. They then discussed the
cybersecurity contract for CIIBER/5C Security. Pawlowski
told Rosen, “[W]e’re going to do the contract.” Id. at 1191.
Pawlowski explained to him that the contract had to be for no
more than $19,000; otherwise the City charter would require it
to be put out for competitive bidding. Rosen explained that
$19,000 was acceptable because, even if he lost money on the
contract, it would get his company a foothold in Pennsylvania.
At a meeting a few months later, Pawlowski and Rosen
again discussed the cybersecurity contract for CIIBER/5C
Security. Pawlowski noted that it was “lined up.” Id. at 1261.
The conversation then turned to fundraising for Pawlowski.
He asked Rosen to raise $100,000 in New York, and Rosen
responded, “I think we will raise you some money.” Id. at
1264.
Given the above, a reasonable jury could find an explicit
quid pro quo for Pawlowski to secure the cybersecurity
contract for CIIBER/5C Security in exchange for campaign
contributions raised by Rosen.
B.
Pawlowski was also convicted of several counts—
18
Counts 49 through 55 of the indictment—for making
materially false statements to the FBI, in violation of 18 U.S.C.
§ 1001. To establish such a violation, the Government needed
to prove that: (1) Pawlowski made a statement or
representation; (2) it was false; (3) it was made knowingly and
willfully; (4) it was material; and (5) it was made in a matter
within the federal government’s jurisdiction. United States v.
Moyer, 674 F.3d 192, 213 (3d Cir. 2012). Pawlowski focuses
his attention only on the false-statement prong, arguing that the
Government failed to present sufficient evidence that certain
of his statements were untrue. Again we disagree.
Counts 49 and 50 charge Pawlowski with falsely stating
that he “stayed out of the contract bidding process” and “did
not try to influence the awarding of contracts from the City . . .
to particular vendors.” Indictment at 59. The evidence
recounted above is sufficient to show that Pawlowski
repeatedly intervened in the contracting process to steer
contracts toward vendors from whom he expected campaign
contributions.
Count 51 charges Pawlowski with falsely stating that
“he did not tell the . . . City Solicitor to whom to award City
. . . contracts, when he knew that he did tell the [C]ity
[S]olicitor to award contracts to certain law firms and to deny
contracts to certain law firms.” Id. A former City Solicitor,
Jerry Snyder, testified that Pawlowski directed him to award
representation on a certain lawsuit to a different law firm than
the one Snyder had already chosen for the suit.
Count 52 charges Pawlowski with falsely stating that he
“never used a list of vendors and the amount of money they
have received in contracts from the City . . . to determine how
19
much money those vendors should contribute to his political
campaign.” Id. Both Dougherty and Ruchlewicz testified that
Pawlowski did so on multiple occasions. 5
Count 53 charges Pawlowski with falsely stating that he
had “never taken anything of value from anyone bidding on a
City . . . contract, when he knew that he did take a free meal
and tickets to a Philadelphia Eagles playoff game from a
company bidding on a [C]ity contract.” Id. Pawlowski objects
that while Northeast Revenue gave him the Eagles tickets, he
neither requested nor used them. But the evidence, recounted
above, was sufficient to show that he requested the tickets
through Ruchlewicz and did not offer to contribute toward a
steakhouse dinner paid for by representatives of the firm.
Count 54 charges Pawlowski with falsely stating that he
never took “any official action to benefit . . . Haddad.” Id. As
discussed, the evidence was sufficient for a jury to find that
Pawlowski took two official actions on the part of Haddad—
pressuring City officials to expedite his zoning request and
securing him a favorable property inspection.
Finally, Count 55 charges Pawlowski with falsely
stating that he “had no role in selecting or not selecting the law
5
Pawlowski contends that during his FBI interview he
“corrected his previous comments regarding use of vendor lists
and made clear he did use these for political fundraising
purposes.” Pawlowski Br. 48. But a reasonable jury could
have concluded that Pawlowski’s initial statement was
knowingly false and that he only corrected it after the
interviewing FBI agent informed him the agency possessed
tapes of his conversations.
20
firm Stevens [&] Lee for contracts with the City.” Id. In
addition to the various pay-to-play schemes described above,
the Government also charged Pawlowski in connection with
his solicitation of campaign funds from attorneys at Stevens &
Lee. The District Court acquitted him of these charges,
holding that the Government’s evidence showed only that
Pawlowski solicited those funds by offering to undertake
“some unspecified future action” on the firm’s behalf rather
than a specific official act as required by McCormick. App. 45.
But the jury heard Pawlowski’s complaint that he had “given
[the firm] millions of dollars of work,” Supp. App. 1066, and
Dougherty testified that Pawlowski told him the firm “fell out
of favor” with him due to its lack of campaign contributions,
id. at 253. It was thus entitled to find that Pawlowski had a role
in obtaining contracts for the firm—even if he failed
specifically to offer it contracts in exchange for donations—
and steered work away from the firm.
III.
Pawlowski also challenges his inability to recross-
examine Ruchlewicz, who was a cooperating witness and
testified on behalf of the Government at trial.
The Sixth Amendment’s Confrontation Clause requires
that defendants be given the opportunity to confront and cross-
examine the prosecution’s witnesses. Preston v.
Superintendent Graterford SCI, 902 F.3d 365, 380 (3d Cir.
2018) (citing Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987)).
But the right to recross-examination is more limited. A
defendant is entitled to recross “[w]hen material new matters
are brought out on redirect examination.” United States v.
Riggi, 951 F.2d 1368, 1375 (3d Cir. 1991). And where a
district court improperly denies recross-examination, we still
21
will affirm if, “assuming that the damaging potential of the
[proposed recross-examination] were fully realized, [we]
might nonetheless say that the error was harmless beyond a
reasonable doubt.” Id. at 1376 (quoting Delaware v. Van
Arsdall, 475 U.S. 673, 684 (1986)).
Pawlowski argues the District Court erred by denying
him the chance to recross-examine Ruchlewicz regarding
statements made during a recorded conversation among
Ruchlewicz, Fleck, and a person who was—unbeknownst to
Ruchlewicz and Fleck at that time—an undercover
Government agent. 6 During that conversation, Fleck made
certain statements to the undercover agent regarding
Pawlowski that could be considered exculpatory because they
indicate he would not take bribes. For example, Fleck told the
undercover agent that Pawlowski “is not greedy” and that “you
don’t have to give [him] a dime” so long as the prospective
project is “the right thing to do.” Supp. App. 735. Although
Ruchlewicz and Fleck would both later agree to cooperate with
the Government and record their conversations with
Pawlowski and his prospective donors, neither was an
informant at the time of this conversation.
6
Pawlowski’s brief notes that he sought recross-examination
as to “eight specific areas where there was either new
testimony or new exhibits” introduced by the Government on
redirect. Pawlowski Br. 21. But he only provides argument as
to one area—the recorded conversation among Ruchlewicz,
Fleck, and the undercover agent. And Pawlowski waived his
request as to other areas during oral argument in the District
Court. Accordingly, we do not consider those areas.
22
On cross-examination of Ruchlewicz, Pawlowski’s
counsel introduced these statements by Fleck. On redirect, the
Government sought to explain their potentially exculpatory
content by asking Ruchlewicz whether he and Fleck “trust[ed]”
the undercover agent at the time of the conversation. App.
1607–08. Ruchlewicz testified that they did not. Pawlowski’s
counsel then sought recross-examination to undermine
Ruchlewicz’s assertion. The trial judge denied the request,
concluding that recross-examination as to this issue was not
required because it was not a material new matter.
We need not determine whether this decision was in
error. Even if assumed so, it was harmless beyond a reasonable
doubt.
In determining whether an error is harmless, we assess
“the importance of the witness’ testimony, whether the
testimony was cumulative, the presence or absence of evidence
corroborating or contradicting the testimony of the witness on
material points, the extent of cross-examination otherwise
permitted, and the overall strength of the prosecution’s case.”
Riggi, 951 F.2d at 1376. Considering these factors, we first
note that the potentially exculpatory statements on which
Pawlowski sought to question Ruchlewicz further were made
by Fleck—not Ruchlewicz. Indeed, at first Pawlowski
objected to the Government’s asking Ruchlewicz whether he
trusted the undercover agent, arguing that it was irrelevant
because it was Fleck who made the statements. Yet Pawlowski
never called Fleck himself to testify about those statements and
whether he trusted the undercover agent when he made them.
It is difficult to conclude Pawlowski was harmed by the denial
of recross-examination of Ruchlewicz—who was merely
present when Fleck make the potentially exculpatory
23
statements—when his counsel had the opportunity to examine
Fleck but declined to do so. 7
Moreover, both the extent of Pawlowski’s opportunity
to cross-examine Ruchlewicz and the overall strength of the
Government’s case support the conclusion that any error was
harmless. Pawlowski’s counsel cross-examined Ruchlewicz
extensively over multiple trial days. And, as we only partially
recounted above, the Government introduced extensive
evidence of Pawlowski’s guilt, including not only the
testimony of Ruchlewicz but that of Dougherty and several of
the contributors, in addition to Pawlowski’s own recorded
statements. Thus, while Ruchlewicz was no doubt an
important witness for the prosecution, we decline to vacate
Pawlowski’s convictions on this ground.
IV.
Finally, Pawlowski contends that the District Court’s
imposition of a 180-month sentence was procedurally and
substantively unreasonable. We generally review both for
abuse of discretion. United States v. Tomko, 562 F.3d 558, 568
(3d Cir. 2009) (en banc). His procedural objections, however,
7
The Government also argues that Pawlowski “did not attempt
to call Ruchlewicz as his own witness during the defense case.”
Gov’t Br. 44. But in his motion for reconsideration of the
District Court’s oral ruling denying recross-examination,
Pawlowski did request in the alternative that Ruchlewicz be
made available to testify in his case-in-chief. The District
Court did not directly address this alternative request. That still
does not change our conclusion that any error in barring further
questioning of Ruchlewicz was harmless.
24
we review for plain error, as Pawlowski failed to raise these
challenges at the time of sentencing. United States v. Flores-
Mejia, 759 F.3d 253, 257–58 (3d Cir. 2014) (en banc).
In evaluating the reasonableness of Pawlowski’s
sentence, we must first “ensur[e] that the [D]istrict [C]ourt
committed no significant procedural error, such as . . . failing
to consider the [18 U.S.C] § 3553(a) factors . . . or failing to
adequately explain the chosen sentence.” Tomko, 562 F.3d at
567 (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). If
the sentence is procedurally sound, we then consider if it is
substantively reasonable given “the totality of the
circumstances.” Id. A sentence will not be held unreasonable
unless “no reasonable sentencing court would have imposed
the same sentence on that particular defendant for the reasons
the [D]istrict [C]ourt provided.” Id. at 568. And if the sentence
is within the applicable Guidelines range, we may presume it
is reasonable. Rita v. United States, 551 U.S. 338, 347 (2007).
Pawlowski contends that the District Court erred
procedurally by failing to consider meaningfully two of the
§ 3553(a) factors: (1) his history and characteristics, including
many character letters submitted by members of the
community, and (2) the need to avoid unwarranted disparities
among defendants who have been found guilty of similar
offenses. It adequately considered both.
First, as to Pawlowski’s history and characteristics, the
District Court noted that it reviewed, “with extraordinary care,
the 111 letters that were submitted on behalf of Mr.
Pawlowski.” App. 2568–69. Moreover, it heard—over the
course of several hours at sentencing—character testimony
from approximately 45 witnesses, which it summarized as
25
attesting to “the great things and the great deeds that Mr.
Pawlowski has done for the [C]ity, and . . . his character.” Id.
at 2569.
Second, as to sentencing disparities, the Court noted
that it had considered a chart prepared by Pawlowski’s counsel
showing that many defendants convicted of similar offenses
received between five- and ten-years’ imprisonment. The
Court also noted that it considered other sentences—higher
than those cited by Pawlowski—imposed in other cases. In
sum, it is clear from the record that the Court considered the
appropriate § 3553(a) factors. 8
As to substantive reasonableness, we note that the 180-
month sentence is presumptively reasonable, as it falls within
the applicable Guidelines range, 151 to 188 months. While
Pawlowski is a first-time offender and has significant
community and family support, the District Court reasonably
concluded that his offense was very serious, “strik[ing] at the
core of our democracy.” Id. at 2577. It held that a sentence
near the top of the Guidelines range was necessary to deter
8
Pawlowski also contends that the Court improperly
considered two additional facts: (1) that his conduct constituted
an abuse of power, which he notes was already factored into
his Guidelines range; and (2) that he did not show remorse for
his conduct. Neither is inappropriate. Pawlowski cites no
authority—and we can find none—precluding a sentencing
court from considering a fact at the § 3553(a) stage merely
because that fact is also relevant to the Guidelines calculation.
And sentencing courts routinely consider a defendant’s lack of
remorse. See, e.g., United States v. King, 454 F.3d 187, 195
(3d Cir. 2006).
26
others from abusing the public trust in a similar fashion. We
discern no abuse of discretion in this decision.
* * * * *
The Government’s case against Pawlowski was strong.
Its evidence showed a man eager to influence and be influenced
if it would help him fund his political campaigns. While we
acknowledge the practical realities of public office, the jury
was entitled to find that Pawlowski’s conduct—that is, his
promises and efforts to perform specific official favors in
exchange for donations—crossed into the criminal. We agree
that his sentence was quite substantial. But seeing no error, we
affirm.
27