United States v. Scott Allinson ( 2022 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 19-3806
UNITED STATES OF AMERICA
v.
SCOTT ALLINSON,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Action No. 5-17-cr-00390-002)
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)
Megan S. Scheib
715 Pine Street
Apartment 5
Philadelphia, PA 19106
Counsel for Appellant
Richard P. Barrett
Michelle Morgan
Anthony J. Wzorek
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
OPINION OF THE COURT
AMBRO, Circuit Judge
Scott Allinson appeals his convictions of federal
programs bribery, 18 U.S.C. § 666(a)(2), and conspiracy, 18
U.S.C. § 371, in connection with a pay-to-play scheme
involving Edwin Pawlowski, the former Mayor of Allentown,
Pennsylvania. Allinson’s challenges are based on several
theories: (1) there was insufficient evidence to support the
bribery charge; (2) the Government failed to prove the single
conspiracy alleged in the indictment, resulting in a prejudicial
2
variance from the indictment; (3) it impermissibly amended the
bribery charge; (4) it made improper statements during its
closing argument; and (5) his trial should have been severed
from that of his co-defendant Pawlowski, as Allinson was
prejudiced by the numerous charges lodged against the former
Mayor. 1
In thorough and well-reasoned opinions and orders, the
District Court rejected Allinson’s contentions. We do the
same. 2
I.
We start with Allinson’s sufficiency-of-the-evidence
challenge, which we review anew. United States v. John-
Baptiste, 747 F.3d 186, 201 (3d Cir. 2014). But out of
deference to the jury’s verdict, we “consider the evidence in
the light most favorable to the [G]overnment and affirm the
judgment if there is substantial evidence from which any
rational trier of fact could find guilt beyond a reasonable
doubt.” Id. (quoting United States v. Benjamin, 711 F.3d 371,
376 (3d Cir. 2013)). We will uphold its decision “as long as it
does not ‘fall below the threshold of bare rationality.’” United
States v. Caraballo-Rodriguez, 726 F.3d 418, 431 (3d Cir.
2013) (en banc) (quoting Coleman v. Johnson, 566 U.S. 650,
656 (2012)).
1
Pawlowski’s appeal is pending before our Court, C.A. No.
18-3390, and is consolidated with this matter for disposition
purposes by Clerk’s Order entered January 29, 2020. A
separate opinion addresses that appeal.
2
The District Court had jurisdiction under 18 U.S.C. § 3231.
We have jurisdiction under 28 U.S.C. § 1291.
3
The federal programs bribery statute—the basis of
Allinson’s bribery conviction—makes it a crime to “corruptly
give[], offer[], or agree[] to give anything of value to any
person, with intent to influence or reward [a government agent]
in connection with any business, transaction, or series of
transactions of such organization, government, or agency
involving anything of value of $5,000 or more.” 18 U.S.C.
§ 666(a)(2). The Government’s evidence against Allinson
consisted of several recorded conversations among himself,
Pawlowski, and two of Pawlowski’s political consultants,
Michael Fleck and Sam Ruchlewicz (both of whom were,
unbeknownst to Allinson and Pawlowski, cooperating with the
Federal Bureau of Investigation). From these conversations
the jury learned the following.
In December 2014, Allinson—then an attorney at the
law firm Norris McLaughlin—complained to Ruchlewicz
about a legal services contract then-Mayor Pawlowski had
diverted from Norris McLaughlin to another firm. Allinson
complained that he was now unable to “rally [his] troops with
their checks.” P-Supp. App. 1234. 3 He told Ruchlewicz he
was “just talking our dialect of English” and explained,
“[W]e’ve been unbelievably supportive in the past and now,
you know, the work’s going everywhere . . . but to our shop.”
Id. at 1235. He then confirmed with Ruchlewicz that this was
“a short[-]term fixable issue.” Id.3
Citations to “P-Supp. App.” refer to the Supplemental
Appendix docketed by the Government in Pawlowski’s appeal,
whereas citations to “A-Supp. App.” refer to the Supplemental
Appendix docketed by the Government in this appeal.
4
Shortly thereafter, Ruchlewicz told Allinson that the
City’s current Parking Authority Solicitor would be fired and
a Norris McLaughlin partner, Richard Somach, would be
appointed in his place. He explained that Allinson would be
the originating attorney for the appointment, allowing him to
receive internal firm credit. But he also informed Allinson that
the firm would need “to do something for the mayor’s holiday
party.” Id. at 1239. Allinson responded by offering to write a
check for $2,500 in the new year.
The men confirmed this arrangement a few days later.
Ruchlewicz assured Allinson that Pawlowski would be
“putting [the firm] on the [P]arking [A]uthority” and that
Allinson would “get[] credit for it.” Id. at 1241. Allinson
warned Ruchlewicz, “[I]f I don’t get the first call, and the first
email, this will get fucked up and I’m not gonna be responsible
for the fuck up.” Id. at 1242. The latter reiterated that Allinson
would “get the first call,” to which Allinson responded, “Then,
then everything is gonna be smooth, smooth as a baby’s
bottom.” Id.The two met again the following month. Ruchlewicz
noted that he was solving Allinson’s “[P]arking [A]uthority
problems.” Id. at 1153. Allinson stated, “That’s the only
problem, Sam, I’m telling you right now . . . [i]f you solve that
problem, you get the golden goose. . . . You get everything.”
Id. at 1153–54. He cautioned Ruchlewicz, however, “The
money flow comes from me. The golden goose comes to me.”
Id. at 1154. Ruchlewicz confirmed that Allinson would receive
credit for the contract but reiterated that Pawlowski wanted
him to raise money for the Mayor’s campaign. Allinson
replied, “Well of course I am going to raise money.” Id. at
1155.
5
The next week, Allinson complained to Fleck and
Ruchlewicz about “sore feelings” at the firm and told them that
the Parking Authority job would “get the checkbooks back
out.” Id. at 1168. Referring to a specific fundraising request
from Pawlowski, Allinson noted that “for us to come up with
[$12,500], I think that’s going to be a really heavy stretch
unless I can say hey, good news, this is . . . the mayor’s way of
finding a good spot for us.” Id. at 1169.
When Ruchlewicz relayed to Pawlowski Allinson’s
apparent reluctance to donate, the Mayor was incensed. He
noted that he had “given [Allinson] millions of dollars” and
declared, “[He] will get nothing now.” Id. at 1296–97. “You
know, fuck them,” he continued. Id. at 1297. “And . . . I’m
not gonna make Somach solicitor or anything. Screw it all.”
Id. Ruchlewicz asked Pawlowski not to do anything yet, as he
and Fleck would be seeing Allinson again shortly.
At their next meeting, Allinson reiterated to Fleck and
Ruchlewicz that if the firm was to receive the Parking
Authority contract, he would “get a hundred percent of . . . the
kind of credit that turns into money that goes out of my
checkbook where you want it to go.” Id. at 1178. He told them
that he and the firm’s chairman, Matthew Sorrentino, would
ensure the firm contributed to Pawlowski’s campaign, noting
that “Matt understands everything,” and “Matt and I have
always spoken . . . the same language.” Id. at 1179.
On the day of Pawlowski’s Mardi Gras fundraiser,
Allinson and Ruchlewicz again discussed the Parking
Authority contract. Allinson reiterated the importance of
receiving firm credit for the work. Ruchlewicz responded,
“[Y]ou know what the mayor cares about. And the mayor’s
6
got plans. He’s got to raise money.” Id. at 1202. Allinson then
brought a $250 check—which, when talking to Pawlowski,
Ruchlewicz referred to as “[i]nstallment number one”—to the
fundraiser. Id. at 1204. Afterward, Ruchlewicz relayed to
Pawlowski that Allinson wanted “it . . . known” that he had
dropped off a check. Id. Ruchlewicz informed the Mayor that
he had told Allinson they could now move forward with the
“Somach to solicitor plan.” Id. Pawlowski responded, “That’s
good.” Id.A few weeks later, Allinson told Fleck and Ruchlewicz
that he would tell his law partners, “If you guys are going to
handle the [City] work and deal with all that stuff, you’re gonna
have to work with [Fleck] and [Ruchlewicz] on . . . cobbling
some money together. This isn’t like we’re being hired
because we are good guys, it’s not the way this shit works. . . .
It just isn’t. I don’t care how good you are.” Id. at 1251. When
Ruchlewicz later checked in with Pawlowski about the Parking
Authority contract, Pawlowski told 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 Allinson
controlled the firm’s political contributions. Pawlowski
replied, “I got you.” Id. at 1215.
Pawlowski then met with Allinson, Fleck, and
Sorrentino (the firm chairman who “spoke[] the same
language” as Allinson) to pitch them on a nascent senatorial
campaign, and asked the firm to raise $25,000 before his June
30th fundraising deadline. Allinson later complained to
Ruchlewicz that this was “a lot of fucking money when you’re
getting absolutely zero back from the [C]ity. I mean, I mean
when I tell you bone dry, bone fucking dry.” Id. at 1247.
7
Ruchlewicz responded, “Well, we’ll have to change that. The
mayor will.” Id.Norris McLaughlin contributed $17,300 to Pawlowski’s
campaign prior to the fundraising deadline. Fleck informed
Pawlowski of the contribution and asked if they could now
appoint Somach as Parking Authority Solicitor. Pawlowski
told Fleck that he did not control the board’s decisions but
could talk to them. The men then discussed plans for getting
rid of the current Solicitor.
Viewed in the light most favorable to the Government,
this evidence showed the parties’ plan to steer the Parking
Authority contract to Allinson’s firm in exchange for campaign
contributions and was thus sufficient to support Allinson’s
bribery conviction. See 18 U.S.C. § 666(a)(2). His arguments
to the contrary fall short.
Allinson first contends the evidence did not show an
explicit quid pro quo, that is, that he gave or agreed to give
campaign funds with the specific intent to influence Pawlowski
to take a specific official action. See McCormick v. United
States, 500 U.S. 257, 273 (1991). 4 He suggests that, while
Fleck and Ruchlewicz repeatedly solicited funds from him, he
4
In McCormick, the Supreme Court held that an explicit quid
pro quo is required to convict a public official of Hobbs Act
extortion premised on the exchange of campaign funds. See
500 U.S. at 273. We have yet to decide if the same holds true
for federal programs bribery, see United v. Willis, 844 F.3d
155, 164 (3d Cir. 2016), and we need not do so here because
we hold that there was enough evidence of an explicit quid pro
quo anyway.
8
never clearly acquiesced to their requests. But a jury could find
from the conversations and conduct detailed above that
Allinson agreed to contribute, did contribute, and caused other
firm attorneys to contribute to Pawlowski’s campaign, with the
specific intent of obtaining the Parking Authority contract.
Although he presented at trial several Norris McLaughlin
attorneys who testified that Allinson played no role in their
contribution decisions, the jury had no duty to credit this
testimony. He himself stated that he and Sorrentino
“control[led] the flow of [the firm’s] political donations,” P-
Supp. App. 1179, and they were the only firm lawyers to
entertain Pawlowski’s request for $25,000 in senatorial
campaign contributions. Allinson complained to Ruchlewicz
and Fleck shortly thereafter about the amount of the ask given
the lack of legal work coming in from the City, was assured the
Mayor would “change that,” id. at 1247, and, the day before
the fundraising deadline, the firm contributed thousands to
Pawlowski’s campaign. This evidence—which included the
many conversations in which Allinson expressly contemplates
exchanging donations for the Parking Authority job—was
sufficient to show that he engaged in an explicit quid pro quo.
Allinson further submits that there was insufficient
evidence of an “official act” as that term is defined in
McDonnell v. United States, 136 S. Ct. 2355, 2367–69 (2016).
The McDonnell Court interpreted the general federal bribery
statute, which “makes it a crime for ‘a public official or person
selected to be a public official, directly or indirectly, corruptly’
to demand, seek, receive, accept, or agree ‘to receive or accept
anything of value’ in return for being ‘influenced in the
performance of any official act.’” Id. at 2365 (quoting 18
U.S.C. § 201(b)(2)). It narrowed the conduct that would
constitute an “official act” under this provision: merely
9
“setting up a meeting, calling another public official, or hosting
an event” is not enough. Id. at 2368. Rather, to prove an
“official act,” the prosecution must show “a ‘question, matter,
cause, suit, proceeding or controversy’” involving a “specific,”
“focused,” and “formal exercise of governmental power.” Id.at 2371–72.
The parties agreed prior to trial that the Government
needed to prove that Allinson intended to influence an “official
act” per McDonnell. We thus assume, but do not decide, that
the Government had to show Allinson bought official acts. It
met this burden. The Parking Authority solicitorship surely
qualifies as a specific matter that would “be pending . . . before
[a] public official, in such official’s official capacity.” Id. at
2365; see also United States v. Repak, 852 F.3d 230, 253 (3d
Cir. 2017) (the awarding of a contract by a redevelopment
agency’s board of directors constitutes a “matter”). And a
reasonable jury could find from Allinson’s statements that he
intended Pawlowski do more to help obtain the contract than
merely “arrange a meeting” or perform some other informal
action on the firm’s behalf. The above conversations indicate
Allinson’s intent that Pawlowski use his public office to
facilitate installing a Norris McLaughlin attorney as Parking
Authority Solicitor. See, e.g., P-Supp. App. 1241–42
(Ruchlewicz states that Pawlowski would “put[ the firm] on
the [P]arking [A]uthority” and that Allinson would get the
credit, and Allinson responds, “[I]f I don’t get the first call, and
the first email, this will get fucked up”). The evidence shows
that this was Pawlowski’s understanding, as well. See, e.g., id.at 1296–97 (after learning of Allinson’s reluctance to
contribute, Pawlowski notes, “I’m not gonna make Somach
solicitor or anything. Screw it all.”); id. at 1288–89
(Pawlowski explains that he has “gotta get rid” of the then-
10
current Parking Authority Solicitor before a Norris attorney
can be installed and strategizes ways of getting the Solicitor to
resign); see also McDonnell, 136 S. Ct. at 2370 (it is an
“official act” to agree to use one’s office “to exert pressure on
another official to perform an ‘official act’”); Repak, 852 F.3d
at 253 (it is an “official act” for a public official to use his or
her power to influence the awarding of government contracts,
even if the official lacks final decisionmaking power).
Finally, Allinson submits the Government’s evidence
was insufficient to prove that the sought-after contract was
worth $5,000 or more, as required for a federal programs
bribery conviction. See 18 U.S.C. § 666(a)(2). Yet the record
suggests that Allinson himself understood the contract to be
worth more than $5,000. 5 See P-Supp. App. 1251 (Allinson
responds “[o]h yeah” to Fleck’s assertion that “the Parking
Authority bills a few hundred thousand a year”); see also id. at
1179 (Allinson states that if the contract “comes to me and I
get the billing credit, then I get the full stack of cash on my side
5
Allinson takes issue with the Government’s reliance on two
conversations between him and Fleck, wherein the latter stated
that the Parking Authority contract was worth well over
$5,000. He suggests that Fleck’s valuation was unreliable, not
only because Fleck lacked knowledge concerning the value of
the contract but also because he was cooperating with the
Government to develop its case against Allinson. But it is not
Fleck’s statement that supports the value of the transaction.
Rather, it is Allinson’s acceptance of Fleck’s valuation that is
relevant (along with his many other comments indicating that
the Parking Authority contract was worth a great deal to him),
as Allinson’s valuation goes to the objective value of the
contract.
11
to do what I need to do with it, annually”); id. at 1153 (Allinson
tells Ruchlewicz that “[i]f you solve [the Parking Authority]
problem, you get the golden goose”); id. at 1169 (“[F]or us to
come up with [12,500] dollars [in campaign funds], I think
that’s going to be a really heavy stretch unless I can say, hey,
good news, this is, this is the mayor’s way of finding a good
spot for us.”).
Moreover, the amount of money Allinson agreed to
contribute to Pawlowski’s campaign indicates that the value of
the proposed transaction exceeded $5,000. See United States
v. Zwick, 199 F.3d 672, 690 (3d Cir. 1999) (finding a
transaction to be worth more than $5,000 where the public
official helped obtain permits in exchange for a $15,000
donation), abrogated on other grounds, Sabri v. United States,
541 U.S. 600 (2004). Allinson counters that the amount of the
bribe cannot substantiate the transaction value where the
subject of a transaction is a tangible interest. However, even
assuming a legal services contract—and the internal firm credit
Allinson hoped to receive from that contract—is “tangible,” we
have never said that the amount of a bribe cannot prove the
value of the transaction where parties seek to exchange
tangible assets. As Allinson notes, courts look to the bribe
amount as one method for valuing an intangible asset, such as
freedom for a prisoner, see United States v. Townsend, 630
F.3d 1003, 1011 (11th Cir. 2011), or a conjugal visit, see
United States v. Marmolejo, 89 F.3d 1185, 1193–94 (5th Cir.
1996). But we have found no holding that the bribe amount is
irrelevant in other contexts, and we decline to hold so here. 6
6
Which is not to say that the amount of a bribe will always
support the value of the transaction. Rather, “the utility of
looking to the bribe amount will vary depending on the
12
See, e.g., United States v. Richard, 775 F.3d 287, 294 (5th Cir.
2014) (finding a school board superintendent position to be
worth $5,000 or more based on the $5,000 bribe amount).
In sum, the Government’s evidence easily suffices to
support Allinson’s bribery conviction.
II.
We next consider Allinson’s argument that the
indictment, which alleged a single conspiracy among Allinson
and others, impermissibly varied from the evidence at trial that,
he submits, proved only multiple, unrelated conspiracies. 7
For a conspiracy, the Government had to establish an
agreement to achieve an unlawful end, knowing and voluntary
participation by the co-conspirators, and the commission of an
overt act to further the agreement. United States v. Gonzalez,
905 F.3d 165, 179 (3d Cir. 2018). The evidence recounted
above was sufficient for a jury to find that Allinson,
Pawlowski, Fleck, and Ruchlewicz agreed to exchange
circumstances of the transaction.” United States v. Delgado,
984 F.3d 435, 447 (5th Cir. 2021). If, for instance, an
undercover government agent bribes a public official with
$5,000, the price the agent is willing to pay for an asset may
not be an accurate proxy for its market value.
7
To the extent the Government suggests Allinson failed to
preserve this argument, we disagree. While he may not have
used the word “variance” in the trial court, we are satisfied that
he sufficiently raised a variance theory, arguing that the
Government failed to prove the single conspiracy alleged in the
indictment.
13
campaign donations for a specific official act, that Allinson’s
involvement was knowing and voluntary, and that the men
engaged in overt acts to further the scheme. Allinson does not
seriously dispute this conclusion.
But he does raise a separate challenge. In its indictment,
the Government charged Allinson with a single, “hub-and-
spokes” style conspiracy involving not just Pawlowski and his
political consultants, but also several other private vendors
vying for government contracts. The evidence, Allinson
contends, failed to show a single endeavor among all these
alleged participants and instead showed several distinct
schemes. See United States v. Kemp, 500 F.3d 257, 287–88
(3d Cir. 2007). In other words, while the Government may
have proven separate agreements between the hub (Pawlowski)
and the various spokes (the vendors) to exchange campaign
funds for contracts, it failed to prove a “rim” connecting the
spokes to one another. See id.Where an indictment charges a single conspiracy but the
evidence at trial proves only multiple, separate conspiracies, a
variance occurs. Id. at 287. When faced with a variance
argument, we must first decide “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). But unlike a “pure” sufficiency-of-the-evidence
challenge, a successful variance challenge requires us to vacate
a conviction only where the discrepancy between the
indictment and the proof at trial prejudiced the defendant’s
substantial rights. Kemp, 500 F.3d at 287 n.4, 291.
14
To assess whether a single conspiracy, rather than
multiple conspiracies, existed, we look for sufficient evidence
of: (1) a common goal among the conspirators; (2) a common
scheme wherein “the activities of one group . . . were
‘necessary or advantageous to the success of another aspect of
the scheme or to the overall success of the venture’”; and
(3) overlap in the dealings of the conspiracy’s participants.
Kelly, 892 F.2d at 259 (quoting United States v. DeVarona, 872
F.2d 114, 118–19 (5th Cir. 1989)).
The Government argues its evidence proved a single
conspiracy between Allinson and the other vendors. It asserts
they all sought the same end—public contracts—the
achievement of which depended on Pawlowski’s satisfaction
and success. It submits Allinson was aware that others
contributed to Pawlowski’s campaigns with the goal of
influencing his official conduct. And it suggests that their
enterprise was cooperative and mutually interdependent, as
each had a shared motive in ensuring Pawlowski’s electoral
success so all could continue calling on his influence to obtain
government work.
This single-conspiracy theory is appealing in the
abstract; however, it finds little support in the record. There is
no evidence that any of the alleged conspirators were
motivated to contribute for any purpose other than to obtain
their own individual contracts. See Kemp, 500 F.3d at 288(“[A]lthough each of these alleged spoke conspiracies had the
same goal, there was no evidence that this was a common
goal.” (emphasis in original) (quoting United States v.
Chandler, 388 F.3d 796, 811 (11th Cir. 2004))). The record
instead indicates that they gave campaign funds in exchange
for their contracts because that is what Pawlowski and his
15
political consultants asked for—not to ensure that Pawlowski
remained in a position to keep doling out official favors
generally. See Blumenthal v. United States, 332 U.S. 539, 558
(1947). And while Allinson may have suspected that others
donated to Pawlowski to secure government contracts, there is
no evidence that he “derived [any] benefit” from his alleged
co-conspirators’ conduct, see United States v. Smith, 82 F.3d
1261, 1271 (3d Cir. 1996), or “aided in any way, by agreement
or otherwise, in procuring” work for other would-be city
contractors, Blumenthal, 332 U.S. at 558. Indeed, in its
summation, the Government itself described this case as
consisting of several “different schemes,” rather than a single,
overarching enterprise. App. 2830.
But even if the Government’s proofs were insufficient
to show a single conspiracy, our inquiry does not stop there.
We must also determine whether Allinson was prejudiced by
the variance between the indictment and the evidence. See
Kemp, 500 F.3d at 291. As he was not, his conviction must
stand.
In arguing otherwise, Allinson contends the variance
affected his right “not to be tried en masse for the
conglomeration of distinct and separate offenses committed by
others.” Id. (quoting United States v. Schurr, 775 F.2d 549,
553 (3d Cir. 1985)). Put simply, he alleges the separate
conspiracy of Group A spilled over to Group B such “that the
jury might have been unable to separate offenders and offenses
and easily could have transferred the guilt from one alleged co-
schemer to another.” Schurr, 775 F.2d at 557 (quoting United
States v. Camiel, 689 F.2d 31, 38 (3d Cir. 1982)).
16
Where, however, “the government compartmentalize[s]
its presentation . . . as to each defendant separately” and the
court “charge[s] the jury to consider the evidence against each
defendant separately,” there is little risk of spillover. United
States v. Greenidge, 495 F.3d 85, 95 (3d Cir. 2007). That
standard was met here. The evidence against Allinson was
segregated, coming in through the testimony of Ruchlewicz
and consisting of a series of recorded conversations, all of
which involved or concerned Allinson. There was, moreover,
no suggestion that evidence relevant to Pawlowski’s
agreements with other campaign contributors was relevant to
proving Allinson’s role in the conspiracy. See Kemp, 500 F.3d
at 292 (no prejudice where the government “rigorously
segmented its proofs and ‘never suggested in any way that any
piece of evidence related to [the separate defendants] was
relevant to establish [the appellants’] participation in the
conspiracy’”). And the District Court instructed the jury that
“[y]our decision on any one defendant or any one offense,
whether guilty or not guilty, should not influence your decision
on any one of the other defendants or offenses,” A-Supp. App.
16–17, and that “Allinson [was] not charged with conspiring to
commit any offense other than federal programs bribery,” id.
at 27.
We recognize that the risk of prejudice “increases along
with the number of conspiracies and individuals that make up
the wrongly charged single conspiracy.” Kemp, 500 F.3d at292 (citing Kotteakos v. United States, 328 U.S. 750, 766–67
(1946)). The conspiracy charged in this case included over ten
alleged co-conspirators and seven distinct sub-schemes, only
one of which involved Allinson. Even so, the Government’s
efforts at trial were reasonably calculated to prevent guilt
transference, and we see no reason to think they were
17
unsuccessful given the nature of the evidence in this case. We
thus reject his variance challenge. 8
III.
Allinson also asserts that the Government
constructively amended its indictment with respect to the
bribery charge. A constructive amendment occurs “when
evidence, arguments, or the district court’s jury instructions
effectively ‘amend[] the indictment by broadening the possible
bases for conviction from that which appeared in the
indictment.’” United States v. McKee, 506 F.3d 225, 229 (3d
Cir. 2007) (quoting United States v. Lee, 359 F.3d 194, 208 (3d
Cir. 2004)). We exercise a fresh review over such claims.
United States v. Vosburgh, 602 F.3d 512, 531 (3d Cir. 2010).
If we determine that a constructive amendment occurred, it is
“a per se violation of the [F]ifth [A]mendment’s grand jury
clause.” United States v. Syme, 276 F.3d 131, 148 (3d Cir.
2002) (quoting United States v. Castro, 776 F.2d 1118, 1121–
22 (3d Cir. 1985)).
The bribery charge here alleges that Allinson
corruptly gave, offered to give,
agreed to give, caused, and
attempted to cause others to give,
8
Allinson argues that his bribery conviction was tainted by
prejudicial spillover from the conspiracy conviction, such that
if we vacate his conspiracy conviction, we must also vacate his
bribery conviction. See United States v. Wright, 665 F.3d 560,
575 (3d Cir. 2012). Because the conspiracy conviction stands,
we do not address this contention.
18
something of value, that is,
campaign contributions, to
defendant EDWIN PAWLOWSKI
and his political action committees
. . . with intent to influence and
reward defendant PAWLOWSKI
in connection with the business,
transaction, and series of
transactions of the City of
Allentown involving something of
value of $5,000 or more, namely,
legal services contracts awarded to
[Norris McLaughlin].
App. 141. Allinson argues that the indictment’s use of
“awarded” refers to an alleged quid pro quo based only on
legal-services contracts already given or awarded in the past,
whereas at trial the Government asserted that the jury could
convict Allinson even if no such work had been awarded to his
firm.
Again we disagree. Allinson’s reading of the charge is
much too cramped, that is, it encompasses both past and
prospective legal work to his firm. It indicates that Allinson
“inten[ded] to influence” Pawlowski so legal services contracts
would be awarded to the firm and intended to “reward” him for
contracts already awarded to the firm. Id. Indeed, the bribery
charge expressly incorporates Allinson’s conduct as alleged in
the conspiracy charge, such as its allegation that Allinson made
and caused others to make campaign contributions in exchange
for future contracts. See id. at 105 ¶ 33 (alleging he “made
campaign contributions and caused others to make campaign
contributions . . . in return for which [he] received, and
19
anticipated receiving, favorable treatment from [Pawlowski] in
obtaining [C]ity contracts with the City of Allentown”
(emphasis added)). The indictment contemplated a bribery
conviction premised on anticipated legal work, and the District
Court therefore did not err in finding that no constructive
amendment occurred. 9
IV.
Next, Allinson submits that the District Court erred in
denying him a new trial based on an alleged misstatement of
law in the Government’s closing argument. We review this
decision for abuse of discretion. See United States v. Wood,
486 F.3d 781, 786 (3d Cir. 2007). “To find that the court
abused its discretion . . . we must first be convinced that the
prosecution did in fact misconduct itself.” Id. (quoting United
States v. Rivas, 479 F.3d 259, 266 (3d Cir. 2007)). If so, we
assess whether the prosecution’s improper statement can be
excused as harmless error. United States v. Gambone, 314
F.3d 163, 177 (3d Cir. 2003).
The Government’s closing argument contained the
following statement:
9
Alternatively, Allinson alleges a variance between the
indictment and the evidence of bribery presented at trial. But
the Government’s evidence showed that Allinson agreed to
contribute to Pawlowski’s campaign to obtain the Parking
Authority contract for his firm, and these facts do not
“materially differ[]” from those alleged in the indictment. See
Vosburgh, 602 F.3d at 532.
20
Bribery happens with a wink and a
nod and sometimes a few words,
an understanding between two
people, we all know what’s
happening here. You’re giving me
this, I’m giving you that.
App. 2473. According to Allinson, this line suggested to the
jury that the quid pro quo agreement between the parties could
be implicit—a lower burden than proving an explicit quid pro
quo. See United States v. Antico, 275 F.3d 245, 257–58 (3d
Cir. 2001).
But the Government’s statement is consistent with the
law, which recognizes that bribery can occur through
“knowing winks and nods.” See Evans v. United States, 504
U.S. 255, 274 (1992) (Kennedy, J., concurring). Nowhere in
its summation did the Government use the term “implicit” or
suggest that “a wink and a nod” would, standing alone, be
sufficient to convict. Rather, it repeatedly stated that it was
required to show “a clear, unambiguous understanding
between the parties that the campaign contribution was being
offered in exchange for the official action by the mayor”—that
is, an explicit quid pro quo. App. 2472; see also id. (informing
the jury that the quid pro quo must be “clear and unambiguous,
leaving no uncertainty about the terms of the bargain”). This
same statement of the law was echoed in the jury instructions,
which were approved by all parties. A-Supp. App. 45 (“The
explicitness requirement does not require an official’s specific
statement that he will exchange official action for a
contribution, but rather requires that the quid pro quo be clear
21
and unambiguous, leaving no uncertainty about the terms of
the bargain.”).
The Government’s closing remark was not improper
when considered in context, and the District Court did not
abuse its discretion in denying Allinson a new trial because of
it. In any event, the Government’s case against Allinson
consisted of far more than mere “winks” and “nods.” As
explained above, its evidence proved an explicit quid pro quo.
Thus, even were its closing statement improper, any
conceivable error was harmless.
V.
We last consider Allinson’s argument that the District
Court erred in denying the motion to sever his trial from
Pawlowski’s. Again we review the Court’s decision for abuse
of discretion. United States v. Walker, 657 F.3d 160, 170 (3d
Cir. 2011).
“Ordinarily, defendants jointly indicted should be tried
together to conserve judicial resources.” United States v.
Eufrasio, 935 F.2d 553, 568 (3d Cir. 1991). Yet Allinson
(continuing with his defense theme of prejudicial spillover)
contends that a joint trial was improper because the “sweeping
charges against Pawlowski and others” led the jury to convict
him. Allinson Br. 41. But “[n]either a disparity in evidence,
nor introducing evidence more damaging to one defendant than
others[,] entitles seemingly less culpable defendants to
severance.” Eufrasio, 935 F.2d at 568. Allinson must instead
show real prejudice arising from the joint trial either
compromising his trial rights or preventing the jury “from
making a reliable judgment about guilt or innocence.” United
22
States v. Lore, 430 F.3d 190, 205 (3d Cir. 2005) (quoting
United States v. Urban, 404 F.3d 754, 775 (3d Cir. 2005)). He
fails to do so.
The District Court instructed the jurors that “[e]ach
offense and each defendant should be considered separately.”
A-Supp. App. 17. It told them that evidence “admitted solely
against Edwin Pawlowski cannot be considered by you in
determining the guilt or the innocence of Scott Allinson,” and
that “[y]our decision on any one defendant or any one offense,
whether guilty or not guilty, should not influence your decision
on any one of the other defendants or offenses.” Id. at 16–17.
“[J]uries are presumed to follow” such limiting instructions.
Zafiro v. United States, 506 U.S. 534, 540–41 (1993) (quoting
Richardson v. Marsh, 481 U.S. 200, 211 (1987)).
This case was not, moreover, so complex that the jury
could not “reasonably be expected to compartmentalize the
evidence” against Allinson. United States v. Ward, 793 F.2d
551, 556 (3d Cir. 1986) (quoting United States v. Wright-
Barker, 784 F.2d 161, 175 (3d Cir. 1986)). As previously
discussed, the evidence against him was segregated and largely
consisted of his own recorded statements. Allinson fails to
show “clear and substantial prejudice” resulting from the joint
trial, and thus he fails to meet the high bar required to gain a
severance. Urban, 404 F.3d at 775.
* * * * *
The jury here was privy to private conversations in
which Allinson and Pawlowski repeatedly expressed their
intent for Norris McLaughlin to receive the Parking Authority
contract and Allinson the credit, all in exchange for political
23
donations. Allinson’s words and actions were sufficient to
support his bribery and conspiracy convictions.
Moreover, while we see little evidence in the record to
support the Government’s single-conspiracy theory, any
variation between the indictment and the evidence was not
prejudicial. The Government’s efforts at trial were sufficient
to avert the risk that jurors might transfer guilt from the alleged
co-schemers to Allinson. And as to his other claims of error,
there was no impermissible amending of the bribery charge,
the Government’s closing statement was not improper, and
Allinson was not prejudiced by having his trial remain joined
with that of Pawlowski. We thus affirm.
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