United States v. Herbert Vederman , 914 F.3d 112 ( 2019 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
Nos. 16-4397, 16-4410, 16-4411,
16-4427, 17-1346
_____________
UNITED STATES OF AMERICA
Appellant in 17-1346
v.
CHAKA FATTAH, SR.,
Appellant in 16-4397
KAREN NICHOLAS,
Appellant in 16-4410
ROBERT BRAND,
Appellant in 16-4411
HERBERT VEDERMAN,
Appellant in 16-4427
_____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court Nos. 2-15-cr-00346-001,
2-15-cr-00346-002, 2-15-cr-00346-003,
2-15-cr-00346-004
District Judge: The Honorable Harvey Bartle III
Argued January 18, 2018
Before: SMITH, Chief Judge, GREENAWAY, JR., and
KRAUSE, Circuit Judges
(Filed: January 16, 2019)
Andrea G. Foulkes
Eric L. Gibson
Paul L. Gray
Robert A. Zauzmer
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Jonathan Ian Kravis [ARGUED]
United States Department of Justice
Criminal Division, Public Integrity Section
1400 New York Avenue, N.W.
Washington, DC 20005
Counsel for the United States
Mark M. Lee
Bruce P. Merenstein [ARGUED]
Samuel W. Silver
2
Schnader Harrison Segal & Lewis
1600 Market Street
Suite 3600
Philadelphia, PA 19103
Counsel for Appellant Fattah
Ann C. Flannery [ARGUED]
Suite 2700
1835 Market Street
Philadelphia, PA 19103
Lisa A. Mathewson
Suite 810
123 South Broad Street
Philadelphia, PA 19109
Counsel for Appellant Nicholas
Alan Silber
Pashman Stein Walder Hayden
21 Main Street
Suite 200
Hackensack, NJ 07601
Counsel for National Association of Criminal
Defense Lawyers, Amicus Appellant Nicholas
Mira E. Baylson
Barry Gross [ARGUED]
Meredith C. Slawe
Drinker Biddle & Reath
One Logan Square
3
Suite 2000
Philadelphia, PA 19103
Counsel for Appellant Brand
Henry W. Asbill
Buckley Sandler
1250 24th Street, N.W.
Suite 700
Washington, DC 20037
Glen D. Nager [ARGUED]
Jacob M. Roth
Julia W. M. F. Sheketoff
Jones Day
51 Louisiana Avenue, N.W.
Washington, DC 20001
Counsel for Appellant Vederman
________________
OPINION
________________
SMITH, Chief Judge.
4
Table of Contents
I. Introduction ................................................................... 8
II. Background .................................................................. 9
A. The Fattah for Mayor Scheme ................................. 9
1. The Lord Loan and Its Repayment ..................... 10
2. The College Tuition Component of the FFM
Scheme ................................................................ 27
3. The NOAA Grant and the Phantom Conference 28
B. The Blue Guardians Scheme.................................. 31
C. The Fattah–Vederman Bribery Scheme................. 33
D. The Indictment and Trial ....................................... 39
III. Juror Misconduct and Dismissal of Juror 12 ........... 58
A. Investigation of Alleged Juror Misconduct ........... 58
B. Dismissal of Juror 12 ............................................. 64
IV. The District Court’s Instructions Under McDonnell 70
A. The McDonnell Framework................................... 71
B. The Kirk Meeting ................................................... 76
C. Fattah’s Efforts to Secure Vederman an
Ambassadorship.......................................................... 79
D. The Zionts Hiring .................................................. 82
E. Vederman’s Sufficiency Challenge to Counts 16–18
and 22–23.................................................................... 89
F. Blue Guardians ....................................................... 91
5
V. Sufficiency of the Evidence for the RICO Conspiracy
Conviction ...................................................................... 95
VI. Variance from the Indictment and Sufficiency of the
Evidence for Count 2.................................................... 110
VII. The District Court’s Instruction to the Jury on the
Meaning of Intent ......................................................... 120
VIII. Sending the Indictment to the Jury ...................... 126
IX. The District Court’s Evidentiary Rulings .............. 129
A. The District Court’s Application of Rule 404(b) 129
B. Evidentiary Rulings Regarding Nicholas’s
Defense ..................................................................... 134
1. The EAA Board Minutes .................................. 134
2. Jones’ Memory Regarding Other Contracts ..... 136
3. Exclusion of NOAA Evidence.......................... 137
C. The Cooperating Witness’s Mental Health
Records ..................................................................... 138
1. The District Court’s Denial of Access to the
Mental Health Records ..................................... 140
2. The District Court’s Grant of the Motion in
Limine ............................................................... 142
X. The Government’s Cross-Appeal ............................ 147
A. CUMA is a Mortgage Lending Business............. 148
B. Sufficiency of the Evidence ................................. 155
XI. Prejudicial Spillover ............................................... 158
A. Fattah’s Claim of Prejudicial Spillover ............... 159
6
B. Vederman’s Assertion of Prejudicial Spillover ... 160
XII. Conclusion ............................................................ 164
7
I. Introduction
Chaka Fattah, Sr., a powerful and prominent fixture
in Philadelphia politics, financially overextended himself
in both his personal life and his professional career during
an ultimately unsuccessful run for mayor. Fattah received
a substantial illicit loan to his mayoral campaign and used
his political influence and personal connections to engage
friends, employees, and others in an elaborate series of
schemes aimed at preserving his political status by hiding
the source of the illicit loan and its repayment. In so doing,
Fattah and his allies engaged in shady and, at times, illegal
behavior, including the misuse of federal grant money and
federal appropriations, the siphoning of money from
nonprofit organizations to pay campaign debts, and the
misappropriation of campaign funds to pay personal
obligations.
Based upon their actions, Fattah and four of his
associates—Herbert Vederman, Robert Brand, Bonnie
Bowser, and Karen Nicholas—were charged with
numerous criminal acts in a twenty-nine count indictment.
After a jury trial, each was convicted on multiple counts.
All but Bowser appealed. As we explain below, the
District Court’s judgment will be affirmed in part and
reversed in part.
8
II. Background1
During the 1980s and ’90s, Fattah served in both
houses of the Pennsylvania General Assembly, first as a
member of the House of Representatives and later as a
Senator. In 1995, Fattah was elected to the United States
House of Representatives for Pennsylvania’s Second
Congressional District. In 2006, Fattah launched an
unsuccessful run for Mayor of Philadelphia, setting in
motion the events that would lead to his criminal
conviction and resignation from Congress ten years later.
A. The Fattah for Mayor Scheme
Fattah declared his candidacy for mayor in
November of 2006. Thomas Lindenfeld, a political
consultant on Fattah’s exploratory committee, believed
that “[a]t the beginning of the campaign, [Fattah] was a
considerable . . . candidate and somebody who had a very
likely chance of success.” JA1618. But Fattah’s campaign
soon began to experience difficulties, particularly with
fundraising. Philadelphia had adopted its first-ever
campaign contribution limits, which limited contributions
to $2,500 from individuals and $10,000 from political
action committees and certain types of business
organizations. Fattah’s fundraising difficulties led him to
1
The facts are drawn from the trial record unless otherwise
noted.
9
seek a substantial loan, far in excess of the new
contribution limits.
1. The Lord Loan and Its Repayment
While serving in Congress, Fattah became
acquainted with Albert Lord, II. The two first met around
1998, when Lord was a member of the Board of Directors
of Sallie Mae.
As the May 15, 2007 primary date for the
Philadelphia mayoral race approached, Fattah met Lord to
ask for assistance, telling Lord that the Fattah for Mayor
(FFM) campaign was running low on funds. Fattah asked
Lord to meet with Thomas Lindenfeld, a political
consultant in Washington, D.C., and part-owner of LSG
Strategies, Inc. (Strategies), a company that was working
with the FFM campaign and that specialized in direct voter
contact initiatives. Lindenfeld had been part of the
exploratory group that initially considered Fattah’s
viability as a candidate for mayor. Lindenfeld had known
Fattah since 1999, when Fattah endorsed Philadelphia
Mayor John Street. Through Fattah, Lindenfeld had also
gotten to know several of Fattah’s associates, including
Herbert Vederman, Robert Brand, and Bonnie Bowser.
Herbert Vederman, a businessman and former state
official, was the finance director for the FFM campaign.
Robert Brand owned Solutions for Progress (Solutions), a
“Philadelphia-based public policy technology company,
whose mission [was] to deliver technology that directly
assists low and middle income families [in obtaining]
10
public benefits.” JA6551. Bowser was Fattah’s Chief of
Staff and campaign treasurer, and served in his district
office in Philadelphia.
Lord’s assistant contacted Lindenfeld to arrange a
meeting, and Lindenfeld informed Fattah that he would be
meeting with Lord. Lindenfeld, along with his partner,
Michael Matthews, met with Lord and discussed Fattah’s
need for funds to mount an intensive media campaign.
After that meeting, Lindenfeld reported to Fattah that Lord
wanted to help, but that they had not discussed a specific
dollar amount. Approximately a week later, Fattah
instructed Lindenfeld to meet with Lord a second time.
Lord “wanted to know if he could give a substantial
amount of money, a million dollars” to Fattah’s campaign.
JA1630. That prompted Lindenfeld to reply that the
amount “would be beyond the campaign finance limits.”
Id.
Lord proposed a solution: he offered to instead give
a million dollars to Strategies in the form of a loan. To that
end, Lindenfeld had a promissory note drafted which
specified that Lord was lending Strategies $1 million, and
that Strategies promised to repay the $1 million at 9.25%
interest, with repayment to commence January 31, 2008.
Lindenfeld later acknowledged that the promissory note
would make it appear as though Lord’s $1 million was not
a contribution directly to the Congressman, although he
knew that it was actually a loan to the FFM campaign.
Indeed, Lindenfeld confirmed with Fattah that neither
11
Lindenfeld nor Strategies would be responsible for
repayment. With that understanding, Lindenfeld executed
both the note and a security agreement purporting to
encumber Strategies’ accounts receivable and all its assets.
On May 1, shortly before the primary election, Lord
wired $1 million to Lindenfeld. Lindenfeld held the money
in Strategies’ operating account until Fattah told him how
it was to be spent. Some of the money was eventually used
for print materials mailed directly to voters. And, at
Fattah’s direction, Lindenfeld wired a substantial sum to
Sydney Lei and Associates (SLA), a company owned by
Gregory Naylor which specialized in “get out the vote”
efforts.
Naylor had known Fattah for more than 30 years.2
During the campaign, Naylor worked as the field director
and was in charge of getting out the vote on election day.
2
Naylor first worked with Fattah when he was in the state
legislature. When Fattah was elected to Congress, Naylor
worked in his Philadelphia office. Naylor met Nicholas
when she joined Fattah’s staff at some point in the 1990s.
After concluding her employment with Fattah’s office,
Nicholas worked with the Educational Advancement
Alliance (EAA), an education nonprofit entity founded by
Fattah. This entity helped to recruit underrepresented
students for scholarship and college opportunities. Around
2009, Naylor left Fattah’s office to work exclusively with
SLA. Naylor also knew Brand.
12
On the final day of the campaign, Naylor worked with
Vederman, who allowed Naylor to use his credit card to
rent vans that would transport Fattah voters to the polls.
As the primary date neared, Fattah and Naylor knew
the campaign was running out of money. The campaign
was unable to finance “media buys,” and Naylor needed
money for field operations to cover Philadelphia’s more
than one thousand polling places. In early May,
Lindenfeld called Naylor to say that Lindenfeld “would be
sending some money [Naylor’s] way.” JA3057. Within
days, SLA received a six-figure sum for Naylor to use in
the campaign and on election day. Naylor used the money
to pay some outstanding bills, including salaries for FFM
employees, and allocated $200,000 to field operations for
election day.
Fattah lost the mayoral primary on May 15, 2007.
Afterward, Lindenfeld spoke with Fattah, Naylor and
Bowser about accounting for the FFM campaign money
from Lord that had been spent. They decided that the
amounts should not appear in the FFM campaign finance
reports, and Fattah instructed Naylor to have his firm,
SLA, create an invoice. Naylor did so, creating an invoice
dated June 1, 2007 from SLA to FFM, seeking payment of
$193,580.19. Naylor later acknowledged that the FFM
campaign did not actually owe money to SLA, and that the
false invoice was created to “hide the transaction that took
place earlier” and “make it look like [SLA] was owed
money.” JA3075–76. Although FFM did not owe SLA
13
anything for the election day expenses, the FFM campaign
finance reports from 2009 through 2013 listed a $20,000
in-kind contribution from SLA for each year, thereby
lowering FFM’s alleged outstanding debt to SLA.
Of the total $1 million Lord loan, $400,000 had not
been spent. Lindenfeld returned that sum to Lord on June
3, 2007. He included a cover letter which stated: “As it
turns out the business opportunities we had contemplated
do not seem to be as fruitful as previously expected.”
JA1254. Lindenfeld later admitted that there were no such
“business opportunities” and that the letter was simply an
effort to conceal the loan.
In late 2007, faced with financial pressures, Lord
asked his son, Albert Lord, III, to collect the outstanding
$600,000 balance on the loan to Strategies. Lord III
contacted Lindenfeld about repayment and expressed a
willingness to forgive the interest owed if the principal
was paid. Lindenfeld immediately called Fattah and
informed him that repayment could not be put off any
longer. Fattah told Lindenfeld more than once that “[h]e
would take care of it,” JA1652, but Fattah did not act.
Needing someone who might have Fattah’s ear,
Lindenfeld reached out to Naylor and Bowser. Naylor
talked to Fattah on several occasions and told him that
Lindenfeld was under considerable pressure to repay the
loan. Fattah told Naylor more than once that he was
“working on it.” JA3082–83.
14
During his political career, Fattah had focused on
education, especially for the underprivileged. Indeed,
Fattah founded two nonprofit organizations: College
Opportunity Resources for Education (CORE), and the
Educational Advancement Alliance (EAA).
EAA held the annual Fattah Conference on Higher
Education (the “annual conference”) to acquaint high
school students with higher education options. JA3079.
Sallie Mae regularly sponsored the conference. According
to Raymond Jones, EAA’s chairman of the board from
2004 through 2007, EAA offered a variety of programs to
provide “marginalized students with educational
opportunities so they could continue and go to college.”
JA1360. EAA was funded with federal grant money which
could only be spent for the purposes described in the
particular grant. Karen Nicholas served as EAA’s
executive director, handling the organization’s day-to-day
administrative responsibilities. Nicholas had previously
been a staffer for Fattah when he was a member of
Pennsylvania’s House of Representatives.
CORE was an organization that awarded
scholarships to graduating high school students in
Philadelphia who had gained admission to a state
university or the Community College of Philadelphia.
CORE received funding from a variety of sources,
including Sallie Mae. Because CORE also received
federal funds, and because EAA had experience working
with federal grants, EAA received and handled the federal
15
funds awarded to CORE. In short, EAA functioned as a
fiduciary for CORE. When money became a problem for
the FFM campaign, Fattah’s involvement with EAA and
CORE soon became less about helping underprivileged
students, and more about providing an avenue for
disguising efforts to repay the illicit campaign funds from
Lord.
On January 7, 2008, Robert Brand contacted Fattah
by telephone. Shortly thereafter, Lindenfeld received an
unexpected call from Brand proposing an arrangement for
Brand’s company, Solutions, to work with Strategies.
Solutions had developed a software tool called “The
Benefit Bank,” which was designed to “assist low and
moderate income families to have enhanced access to
benefits and taxes.” JA1993. During the telephone call,
Brand referred to The Benefit Bank and suggested a
contract under which Strategies would be paid $600,000
upfront. JA1666. Shortly thereafter, on January 9, 2008,
Brand followed up on his call to Lindenfeld with an email
about “develop[ing] a working relationship where you
could help us to grow The Benefit Bank and our process
of civic engagement. While I know this is not your core
business I would like to try to convince you to take us on
as a client.” JA6427. Lindenfeld responded that he was
interested. To Lindenfeld, “this was the way that
Congressman Fattah was going to repay the debt to Al
Lord.” JA1654. When Lindenfeld called Fattah and told
him of the contact from Brand, Fattah simply replied that
Lindenfeld “should just proceed.” JA1666–67.
16
A few days later, Brand emailed Nicholas at EAA a
proposal from Solutions concerning The Benefit Bank,
which sought EAA’s support in developing an education
edition of The Benefit Bank and a $900,000 upfront
payment.
As the January 31 date for repayment of the balance
of the $1 million Lord loan approached, a flurry of activity
took place. On January 24, both Raymond Jones, chair of
the EAA Board, and Nicholas signed a check from EAA
made out to Solutions in the amount of $500,000.
Although no contract existed between EAA and Solutions,
the memo line of the check indicated that it was for a
contract, and Nicholas entered it into EAA’s ledger.3
That same day, Ivy Butts, an employee of
Strategies, emailed Lindenfeld the instructions Brand
would need to wire the $600,000 balance on the Lord loan.
3
Raymond Jones, who was EAA’s Chairman of the Board
from 2004 through 2007, recalled at trial that the Board
had a limit on the amount that Nicholas could spend
without board approval. JA1358, 1369. Nicholas was
authorized to sign contracts on behalf of EAA for no more
than $100,000. JA1369–71. Jones did not recall the
contract between EAA and Solutions, nor did the EAA
board minutes for December 2007, February 2008, or May
2008 refer to the EAA–Solutions contract or to the
substantial upfront payment of half a million dollars upon
execution of the agreement. JA6358–63; 6567.
17
Within minutes, Lindenfeld forwarded that email to Brand
at Solutions. Brand then made two telephone calls to
Fattah. By late afternoon, Brand emailed Nicholas,
informing her that he had “met with all the people I need
to meet with and have a pretty clear schedule of what
works best for us. I am also seeing what line of credit we
have to stretch out the payments until you get your line of
credit in place.” JA6558. Brand asked if they could talk
and “finalize this effort.” JA6558. On January 25 and 26,
there were a number of calls between Fattah, Brand, and
Nicholas.
On Sunday January 27, at 5:46 pm, Brand
telephoned Fattah. At 10:59 pm, Brand emailed Nicholas
a revised contract between EAA and Solutions for the
engagement of services. Brand indicated he would send
someone to pick up the check at about 1:00 pm the
following day. The revised contract called for the same
$900,000 payment from EAA to Solutions, yet specified
that $500,000 was to be paid on signing, with $100,000
due three weeks later, and another $100,000 to be paid six
weeks out. No due date for the $200,000 balance was
specified. The terms of the contract called for EAA to
assist Solutions with further developing The Benefit Bank.
In addition, under the contract, EAA would receive certain
18
funds from the Commonwealth of Pennsylvania for a
program relating to FAFSA applications. 4
The same evening, Brand sent Lindenfeld a contract
entitled “Cooperative Development Agreement to Provide
Services to Solutions for Progress, Inc. for Growth of The
Benefit Bank.” JA6569. The agreement proposed a
working partnership in which Strategies would work with
Solutions to identify and secure a Benefit Bank affiliate in
the District of Columbia and two other states, and to
facilitate introductions to key officials in other states
where The Benefit Bank might expand. The terms of the
agreement provided that Solutions would pay $600,000 to
Strategies by January 31, 2008, which would “enable
[Strategies’] team to assess opportunities and develop
detailed work plans for each area.” JA6572. Brand copied
Solutions’ Chief Financial Officer, Michael Golden.
Lindenfeld responded to Brand’s email within a minute,
asking if Brand had received the wiring instructions.
Brand immediately confirmed that he had.
Concerned that Solutions did not have $600,000 to
pay Strategies, Golden talked to Brand, who informed him
that Solutions would be receiving a check for $500,000
from EAA. Early the next morning, Nicholas responded to
Brand’s email from the night before. She advised Brand
that he could pick up the check, “but as I stated I am not
4
FAFSA is an acronym for Free Application for Federal
Student Aid.
19
in a position to sign a contract committing funds that I am
not sure that I will have.” Gov’t Supp. App. (GSA) 1. That
same day, a $540,000 transfer was made from the
conference account, which EAA handled, into EAA’s
checking account. The conference account was maintained
to handle expenses for Fattah’s annual higher education
conference. Prior to this transfer, EAA had only
$23,170.95 in its account. EAA then tendered a $500,000
check to Solutions, which promptly deposited the check
before the close of that day’s business. EAA never
replenished the $540,000 withdrawal from the conference
account.
Brand received the executed contract between
Solutions and Strategies on January 28. Even though the
contract called for Strategies to perform services in
exchange for the $600,000 payment, Lindenfeld neither
expected to do any work for the $600,000, nor did he in
fact do any work.
In sum, by January 28, Solutions had received
$500,000 from EAA, but it still had to come up with
$100,000 to provide Strategies with the entire amount
needed to repay the Lord loan. Golden obtained the needed
funds the following day by drawing $150,000 on a line of
credit held by Brand’s wife. Brand and Fattah spoke four
more times on the telephone on January 29. Trial evidence
later showed that, during the month of January 2008,
neither the FFM campaign bank account nor Fattah’s
20
personal account had a sufficient balance to fund a
$600,000 payment.
On the morning of January 30, frustrated by the
delay, Lindenfeld sent Brand an email with a subject line
“You are killing me.” JA6430. Lindenfeld stated that he
had “made a commitment based on yours to me. Please
don’t drag this out. I have a lot on the line.” Id. Brand
responded late in the afternoon, stating: “just met with
Michael. He does the transfer at 8 AM tomorrow. It should
be in your account ($600K) early tomorrow morning.” Id.
Lindenfeld replied: “The earlier the better.” Id. The
following morning, Golden wired $600,000 from
Solutions’ Pennsylvania bank account into Strategies’
Washington D.C. bank account. JA2745, 2874. Strategies
in turn, wired the same amount from its Washington D.C.
bank account to Lord’s bank account in Virginia. JA2874,
6549. Around noon, Brand telephoned Lindenfeld.
In the days following the exhaustive efforts to meet
the January 31 loan repayment deadline, four more
telephone calls took place between Brand and Fattah.5
Naylor learned at some point that the loan had been paid
off. When Naylor asked Fattah about details of the
repayment, Fattah simply replied “[t]hat it went through
EAA to Solutions and it was done.” JA3088.
5
By contrast, between October to December 2007, Brand
and Fattah spoke by telephone only “once or twice [a]
month.” JA2734.
21
Meanwhile, at some point in January, EAA received
notice that the Department of Justice Office of the
Inspector General (DOJ) intended to audit its books.6 DOJ
auditors told EAA to provide, at the “entrance
conference,” documentation containing budgetary and
accounting information. EAA failed to produce any
accounting information.
Although Lindenfeld was no longer making
demands of Brand, Brand was still owed the remaining
$100,000 that Solutions had paid to satisfy the Lord loan.
On March 23, 2008, Brand sent Nicholas an email
outlining his efforts to contact her over the previous two
weeks about documentation on the CORE work, how to
proceed with the paperwork for the Commonwealth of
Pennsylvania, and “how we can get our proposed contract
signed and the outstanding payments made.” JA2749.
Nicholas responded that evening, writing:
I can appreciate your urgency however I do
have EAA work that I continue to do,
including the [usual] facilitation of programs,
our financial audit, the start-up of two new
programs[,] and of course the DOJ audit. I am
still trying to obtain a line of credit without a
completed 2007 audit and things are getting a
6
One of the terms and conditions of a federal grant is that
the recipient “be readily prepared for an audit.” JA2314.
22
little uncomfortable now as I try to keep us
afloat.
JA6576. Nicholas told Brand that the DOJ auditors were
making demands and would soon be on site. She noted that
“[t]hey are still very uncomfortable with your contract
amongst other things and depending on their findings
some of the funding received may have to be returned.” Id.
Nicholas said that she had submitted the paperwork to the
state, and she told Brand that “in the future . . . as a result
of the DOJ audit I will not be in a position to do another
contract such as this.” Id.
Shortly after Nicholas’s reply to Brand, Nicholas
forwarded the Brand–Nicholas email chain to Fattah. The
body of the email stated, in its entirety: “I really don’t
appreciate the tone of Bob’s email. I can appreciate that he
has some things going on however I am doing my best to
assist him. Some other things are a priority. He needs to
back off.” GSA2. Later that night, Bowser sent Fattah an
email with a subject line that read “Karen N” and a
telephone number. JA2752.
As the audit continued, the auditors found other
deficiencies. During April of 2008, DOJ issued a notice of
irregularity to EAA, which resulted in the audit being
referred to DOJ’s Investigations Division for a more
comprehensive review.
On April 24, 2008, Brand emailed Nicholas asking
for a time to update her on The Benefit Bank. In early May,
23
Brand sent another email to Nicholas attaching a revised
EAA–Solutions contract proposal, which decreased the
initial upfront cost from $900,000 to $700,000.
Although Solutions and EAA had still not signed a
contract, EAA paid Solutions another $100,000 in May.
That money was obtained via a loan to EAA from CORE.
Thomas Butler, who had worked for Fattah both when
Fattah was in Congress and when he was in the General
Assembly, was CORE’s executive director. Butler had
been contacted in mid-May by Jackie Barnett, a member
of CORE’s Board who had also worked with
Congressman Fattah. Barnett informed Butler that
Nicholas had requested a loan from CORE to EAA, and
that Fattah, as Chairman of CORE’s Board, had approved
it. Butler and Barnett withdrew funds from two CORE
bank accounts and obtained a cashier’s check, dated May
19, in the amount of $225,000 and made payable to EAA.
The withdrawals were from accounts used for Sallie Mae
funds and other scholarship money.
After EAA received the $225,000 check, EAA
tendered a $100,000 check to Solutions. The check bore
the notation “Commonwealth of Pennsylvania.” EAA
repaid CORE the following month. Because EAA lacked
sufficient funds of its own to cover this payment, EAA
drew on grant money that it had received from NASA.
Brand and Lindenfeld continued to communicate
concerning The Benefit Bank. In July of 2008, a meeting
was held at Solutions with Brand, Lindenfeld, Golden, and
24
other Solutions employees to discuss “an enormous
amount of work” that Brand wanted Strategies to do.
JA1670. Lindenfeld said in response “we’d be glad to do
that, but . . . we would have to be paid.” Id. At that point,
someone in the meeting stated that Strategies “had already
been paid” $600,000. Id. Lindenfeld replied: “well, that
was for Congressman Fattah, . . . that’s not for us. So if
you want us to do work, we have to get paid for it
separately.” Id. Brand became upset with Lindenfeld over
his comment about being paid because his colleagues at
Solutions were not aware of the reason for the $600,000
payment.
Meanwhile, EAA was attempting to meet the
demands of the DOJ auditors, who were focused on the
relationship between EAA and CORE. DOJ served a
subpoena upon Solutions to produce “[a]ny and all
documents including, but not limited to, contract
documents, invoices, correspondence, timesheets,
deliverables and proof of payment related to any services
provided to or payments received” from CORE or EAA.
JA2350.
Special Agent Dieffenbach, from the DOJ,
interviewed Nicholas on July 14, 2008. During that
interview, Nicholas discussed the relationship between
EAA and CORE, how invoices were paid, and how
consultants were handled. Nicholas also answered
questions about EAA’s relationship with Solutions,
including the payment of invoices. She did not inform
25
Agent Dieffenbach of the $500,000 payment in January or
the subsequent $100,000 payment in May. Nor did the
interview address the EAA–Solutions contract that
purportedly required those payments, because the contract
had yet to be produced.
Solutions failed to comply with the subpoena,
prompting an email from Agent Dieffenbach on August 26
asking for an update concerning Solutions’ reply to the
DOJ subpoena. Solutions then produced an undated
version of the EAA–Solutions contract that required the
$600,000 upfront payment. Neither Brand nor Nicholas
provided the auditors with the January and May checks
from EAA to Solutions.
Efforts to conceal the repayment of the Lord loan
and to promote the political and financial interests of
Fattah continued. The FFM campaign reports indicated in-
kind contributions of debt forgiveness by SLA even
though there had been no actual debt. In September of
2009, with EAA’s ledgers still under scrutiny, Nicholas
altered the description of the entry for the $100,000 check
to Solutions from “professional fees consulting” to
“CORE Philly.” JA2546. Other FFM campaign debt was
reduced further after Vederman negotiated with creditors.
EAA never fully recovered from its payment of the
$600,000 balance on the Lord loan and the audits that took
place in 2008. It began laying off employees in 2011, and
by June of 2012, only four employees remained. JA3659.
EAA ceased operations at some point in 2012. JA1530.
26
2. The College Tuition Component of the FFM
Scheme
Although the FFM campaign was close to insolvent,
it nevertheless made tuition payments for Fattah’s son,
Chaka Fattah Jr., also known as Chip. Chip attended
Drexel University, but had yet to complete his coursework
because he had failed to pay an outstanding tuition
balance. As the FFM campaign got underway in 2007,
Fattah wanted Chip to re-enroll in classes at Drexel and
get a degree. Fattah asked Naylor to help financially, and
he did so by writing checks from SLA to Drexel toward
Chip’s outstanding tuition. By October of 2007, Chip was
permitted to re-enroll in classes.
Although Naylor never directly addressed the issue
with Fattah, he agreed to assist with Chip’s outstanding
tuition with the expectation that SLA would be repaid. The
first check to Drexel in the amount of $5,000 was sent in
August of 2007, with $400 payments in the months that
followed until August of 2008. At some point, Chip
informed Naylor that the payee was no longer Drexel, but
Sallie Mae. Naylor then began sending monthly checks
from SLA to Sallie Mae. Those payments, in the amount
of $525.52, began in March of 2009 and continued until
April of 2011, after which Fattah told Naylor he no longer
needed to make them. SLA’s payments to Drexel and
Sallie Mae totaled $23,063.52.
Naylor’s expectation of repayment was eventually
realized. Beginning in January of 2008 and continuing
27
until November 2010, Bowser sporadically sent SLA
reimbursement checks from the FFM campaign with a
notation that payment was for “election day operation
expenses.” JA3136. The FFM funds had been transferred
from the Fattah for Congress campaign. These
reimbursement checks totaled $25,400. In an effort to
conceal the source of the payments to Drexel and Sallie
Mae, and to make it appear that the younger Fattah had
performed services for SLA, Naylor created false tax
forms for Chip. Chip, however, had never performed
services for SLA.
3. The NOAA Grant and the Phantom Conference
In mid-December 2011, when EAA was
experiencing serious financial difficulties, Nicholas
submitted an email request to the educational partnership
program of the National Oceanic & Atmospheric
Administration (NOAA) for a grant “designed to provide
training opportunities and funding to students at minority
serving institutions” interested in science, technology,
engineering, and math fields related to NOAA’s mission.
JA3354–55. The request sought $409,000 to fund EAA’s
annual conference scheduled for February 17–19, 2012.
Jacqueline Rousseau, a supervisory program manager at
NOAA, participated in a conference call with Nicholas
shortly thereafter and advised Nicholas that the agency
could not afford the $409,000 request but would consider
a smaller grant. Rousseau advised Nicholas that EAA
28
would need to submit an application if it wished to be
considered for a grant.
Before submitting a grant application, Nicholas
emailed Rousseau about sponsoring the conference. On
January 11, 2012, Rousseau informed Nicholas that the
“NOAA Office of Education, Scholarship Programs has
agreed to participate and provide sponsorship funds of
$50K to support the referenced conference.” JA6453.
Rousseau also informed Nicholas that Chantell Haskins,
who also worked with the student scholarship program,
would be the point of contact for NOAA.
In February 2012, EAA held its annual conference
at the Sheraton Hotel in downtown Philadelphia. The
conference had been held at the same location each year
since 2008.
Nicholas contacted Haskins at some point in early
2012, inquiring about the $50,000 grant. On May 8, 2012,
Haskins sent Nicholas an e-mail which included
information about submitting proposals to fund a
conference for students. EAA then submitted a grant
application, which Haskins reviewed. She advised
Nicholas on June 28, 2012 that the grant could not be used
to provide meals, and that the date of the conference would
have to be pushed back, with the new date included in a
modified application. When Nicholas asked if expenses
from a previous conference could be paid from the new
grant, Haskins informed her that this was not allowed.
29
In early July 2012, Nicholas sent a modified grant
proposal to Haskins. It eliminated the budget item for food
and changed the date of the 2012 conference to October
19–21, 2012 at the same Sheraton Hotel in Philadelphia
where EAA’s annual conference had taken place earlier in
the year. NOAA approved a $50,000 grant for the October
2012 conference—a conference that would never be held.
Unaware that no October 2012 conference had
taken place, NOAA allowed Nicholas access to the
$50,000 grant in March of 2013. She then transferred the
entire amount from NOAA to EAA’s bank account a few
days later. Naylor had performed services for EAA for
which he was still owed $116,590. JA3119. In discussions
with Naylor, Nicholas had informed him that the
likelihood of EAA’s being able to pay him was “[n]ot very
good.” JA3120. Yet several days after EAA had received
the $50,000 from NOAA, Nicholas sent Naylor a check
for $20,000. JA3120, 4283.
On April 3, 2013, Nicholas submitted a final report
to NOAA concerning EAA’s use of the grant. Notably,
page 4 of the report stated the conference had been held in
February 2012, while page 17 stated that the conference
had been held from October 19 to 21, 2012. NOAA issued
a notice asking for clarification and for a list of students
who had been supported at the conference. Nicholas failed
to file either a clarifying report regarding the date of the
conference or a timely report regarding the disbursement
of the grant. Finally, in November of 2013, Nicholas
30
submitted the final Federal Financial Report in which she
certified, falsely, that the $50,000 had been used for a
project during the period from August 1, 2012 to
December 30, 2012.
B. The Blue Guardians Scheme
In addition to functioning as the conduit for Lord’s
$1 million loan to Fattah’s campaign, Lindenfeld’s
company, Strategies, also performed services for the
campaign. The work resulted in indebtedness from FFM
to Strategies of approximately $95,000. Fattah made
several small payments, but failed to pay the full amount
due. Although Lindenfeld spoke to Fattah, Naylor and
Bowser about the debt, no payments were forthcoming.
During a meeting in Fattah’s D.C. office, Fattah told
Lindenfeld “that [repayment] really wasn’t going to be
possible because the campaign had been over for a long
time” and the funds were not available. JA1693. Fattah
then asked Lindenfeld if he could write off the debt on his
FFM campaign finance reports. Id. Lindenfeld told Fattah
that as long as he was paid, it was not his business how
Fattah disclosed it on the campaign finance reports.
JA1694.
In lieu of repayment, Fattah suggested that
Strategies could claim to be interested in setting up an
entity to address environmental issues and ocean pollution
along the coastline and in the Caribbean. Fattah explained
that creating such an entity would make it possible to
obtain an appropriation from the government. Hearing
31
this, Lindenfeld knew he was not going to be paid by the
FFM campaign, and was amenable to receiving money
from an appropriation instead. At a later meeting,
Lindenfeld told Fattah that the name of the entity would
be “Blue Guardians.” Lindenfeld consulted with an
attorney about creating Blue Guardians as an entity to
receive the federal grant. He emailed Fattah, asking
questions about how to complete an application to the
House Appropriations Committee. Fattah provided
suggestions, and an application was eventually completed.
It indicated that Blue Guardians would be “in operation for
a minimum of ten years,” and, in accordance with Fattah’s
guidance, requested $15 million in federal funds. JA1711–
13.
Lindenfeld submitted the application to Fattah’s
office in April of 2009. Afterward, a Fattah staffer
contacted Lindenfeld to suggest that he change his
Washington, D.C., address to Philadelphia because that
was the location of Fattah’s district. Fattah later suggested
to Lindenfeld that Brand might allow the use of his
Philadelphia office address, a plan to which Brand agreed.
In February 2010, Lindenfeld submitted a second
application to the Appropriations Committee. In March,
Fattah submitted a project request using his congressional
letterhead and seeking $3,000,000 for the “Blue
Guardians, Coastal Environmental Education Outreach
Program.” JA6432. Within a month, Blue Guardians had
both articles of incorporation and a bank account. Around
32
that time, a news reporter contacted Lindenfeld to discuss
the new Blue Guardians entity. The inquiry made
Lindenfeld uncomfortable, and he ultimately decided to
abandon the Blue Guardians project. He continued to seek
payment from Fattah, to no avail.
Nonetheless, having obtained Lindenfeld’s
acquiescence to writing off the campaign’s debt to
Strategies, Fattah started falsifying FFM’s campaign
reports. Beginning in 2009 and extending through 2013,
the FFM campaign reports executed by Fattah and Bowser
stated that Strategies made in-kind contributions of
$20,000, until the debt appeared to have been paid in full.
C. The Fattah–Vederman Bribery Scheme
Vederman and Fattah were personal friends.
Vederman was a successful businessman who had also
served in prominent roles in the administrations of Ed
Rendell when he was Mayor of Philadelphia and Governor
of Pennsylvania. In November of 2008, Vederman was a
senior consultant in the government and public affairs
practice group of a Philadelphia law firm. His assistance
to the FFM campaign included paying for rented vans used
in the get-out-the-vote effort.
After Fattah’s electoral defeat, the campaign still
owed more than $84,000 to a different law firm for
services performed for the campaign. Vederman
approached that firm in the summer of 2008 asking if it
would forgive FFM’s debt. Negotiations resulted in a
33
commitment from FFM to pay the firm $30,000 by the end
of 2008 in exchange for forgiveness of $20,000, all of
which would appear on the FFM campaign finance report.
Vederman’s efforts also led to payment by Fattah of an
additional $10,000 in 2009 to the law firm, in exchange
for additional forgiveness of $20,000 of debt. It was not
long after Vederman’s successful efforts to lower Fattah’s
campaign debt, that Fattah wrote a letter to U.S. Senator
Robert P. Casey recommending Vederman for an
ambassadorship.
At some point in 2010, Vederman again intervened
on behalf of the FFM campaign. FFM remained in debt to
an advertising and public relations firm owned by Robert
Dilella. By late 2011, Vederman and Dilella had worked
out a settlement to resolve the outstanding debt. Pursuant
to that settlement, Dilella received partial payment from
the FFM campaign: $25,000 in satisfaction of a $55,000
debt. Dilella testified at trial that he would not have agreed
to retire a portion of the debt had he known the FFM
campaign was paying college tuition for Fattah’s son.
Vederman helped Fattah financially in other ways.
Before the 2006 FFM campaign, Fattah and his wife,
Renee Chenault-Fattah, sponsored a young woman named
Simone Muller to live with them as an au pair exchange
visitor. Muller was from South Africa, and her J-1 visa
allowed her to serve as a nanny and to study in the United
States. Muller later applied for and received a second visa,
an F-1 student visa that indicated she had been accepted as
34
an international student at the Community College of
Philadelphia. The application indicated that Muller would
again be residing with the Fattahs. Notwithstanding this
living arrangement, Fattah identified Vederman as the
person who would be paying for Muller’s trip to the
United States.
By the beginning of 2010, Muller wished to transfer
to Philadelphia University. This required her to submit
verification that funds were available to pay for her study.
Although the Fattahs were Muller’s sponsors, Fattah
explained to the University’s Dean of Enrollment Services
that he was submitting a letter of secondary support from
Vederman. JA3754, 3763–65, 6504. Without Vederman’s
January 2010 letter of support, the University would not
have admitted Muller. In addition to this pledge of support,
Vederman paid $3,000 of Muller’s tuition. Shortly
thereafter, Fattah resumed his efforts to secure an
ambassadorship for Vederman.
In February of 2010, Fattah staffer Maisha Leek
contacted Katherine Kochman, a scheduler for White
House Chief of Staff Rahm Emanuel. Leek requested a
telephone conference with Emanuel, Rendell, and Fattah
to discuss Vederman’s “serving his country in an
international capacity.” JA2893. In a follow-up email on
March 26, Leek sent documents to Kristin Sheehy, a
secretary to White House Deputy Chief of Staff James
Messina. The documents included Fattah’s 2008 letter to
Senator Casey and Vederman’s biography. After
35
participating in a telephone conference about Vederman
with Fattah and Rendell, Messina sent Vederman’s
biography to the White House personnel office for
consideration.
As the April 2010 tax deadline approached, Fattah
still owed the City of Philadelphia earned income tax in
the amount of $2,381. Just days before the filing deadline,
Vederman gave a check to Chip Fattah for $3,500. The
younger Fattah quickly deposited $2,310 into his father’s
bank account. Fattah paid his tax bill on April 15. Without
Chip’s deposit into his father’s bank account, the older
Fattah would not have had sufficient funds to pay his tax
bill.
On October 30, 2010, Vederman gave Chip another
check, this one for $2,800. That same day, Fattah hand-
delivered a letter to President Obama recommending
Vederman for an ambassadorship. A few weeks later,
Fattah’s staffer, Leek, sent the letter that Fattah had given
to President Obama to Messina’s office. That letter
pointed out that both Rendell and Fattah had sent letters
on behalf of Vederman, and that he was an
“unquestionably exceptional candidate for an
ambassadorship.” JA6291–92.
Fattah’s efforts to secure Vederman an
ambassadorship were unsuccessful. Fattah then shifted
gears and sought to secure Vederman a position on a
federal trade committee. Fattah approached Ron Kirk, who
served as U.S. Trade Representative, and asked him to
36
speak with a constituent. In May of 2011, Leek followed
up on that discussion by emailing Kirk and asking him to
meet with Vederman. Kirk met with Vederman on June 5,
2011 and explained to him the role of the trade advisory
committees. Although the two men “had a very nice
conversation,” JA 3566, it soon became “pretty apparent
to [Kirk and his staff] that [serving on a trade advisory
committee was] not what Mr. Vederman was interested
in.” JA3567. As Kirk put it, “it was obvious that
[Vederman] was looking for something perhaps more
robust in his mind or . . . higher profile than one of our
advisory committees.” Id. Given Vederman’s lukewarm
interest, no appointment to an advisory committee was
forthcoming.
In late December 2011, the Fattahs applied for a
mortgage so they could purchase a second home in the
Poconos. Shortly after applying for the mortgage, Fattah
emailed Vederman, offering to sell him his wife’s 1989
Porsche for $18,000. Vederman accepted the offer. The
next day, Vederman wired $18,000 to Fattah’s Wright
Patman Federal Credit Union account.
The Credit Union Mortgage Association (CUMA)
acted as the loan processing organization for the home
mortgage. Because CUMA is required to verify the source
of any large deposits, CUMA’s mortgage loan processor,
Victoria Souza, contacted Fattah on January 17, 2012, to
confirm the source of the $18,000. Fattah informed Souza
that the $18,000 represented the proceeds of the Porsche
37
sale. Souza requested documentation, including a signed
bill of sale and title.
That same day, Bowser emailed Vederman a blank
bill of sale for the Porsche. After Vederman signed the bill
of sale, Fattah forwarded it to Souza. The bill of sale was
dated January 16, 2012, which was the day before Souza
had requested the documentation. It bore the signatures of
Renee Chenault-Fattah and Herbert Vederman, with
Bonnie Bowser as a witness.
Fattah also provided Souza with a copy of the
Porsche’s title. It was dated the same day it was sent to
Souza, and bore signatures of Chenault-Fattah as the seller
and Vederman as buyer, along with a notary’s stamp.
Neither Vederman nor Chenault-Fattah actually appeared
before the notary.
Vederman never took possession of the Porsche.
Renee Chenault-Fattah continued to have the Porsche
serviced and insured long after the purported sale had
taken place. Moreover, the Porsche remained registered in
Chenault-Fattah’s name, and was never registered to
Herbert Vederman. When FBI agents searched the
Fattahs’ home in 2014, the Porsche was discovered in the
Fattahs’ garage.
On January 24, 2012, the Fattahs wired $25,000 to
the attorney handling the escrow account for the purchase
of the vacation home. Without the $18,000 transfer from
38
Vederman, the Fattahs would not have had sufficient funds
in their bank accounts to close on the home.
Around the same time that the Fattahs were
purchasing the house in the Poconos, Fattah’s Philadelphia
office hired Vederman’s longtime girlfriend, Alexandra
Zionts. Zionts had long worked for a federal magistrate
judge in Florida. Near the end of 2011, the magistrate
judge retired, leaving Zionts ten months shy of obtaining
the necessary service required to receive retirement
benefits. If Zionts could find another job in the federal
government, her benefits and pension would not be
adversely affected. Vederman assisted Zionts in her job
search, which included calling Fattah. Fattah hired her, a
move that put his congressional office overbudget. Zionts
worked in Fattah’s office for only about two months,
leaving to work for a congressman from Florida.
Tia Watson, who performed constituent services for
Fattah and worked on the same floor as Zionts in Fattah’s
district office, testified she had no idea what work Zionts
performed. Although Zionts contacted Temple University
about archiving Fattah’s papers from his career in both the
state and federal government, an employee from Temple
University observed that Zionts’ work contributed nothing
of value to the papers project.
D. The Indictment and Trial
Fattah’s schemes eventually unraveled. On July 29,
2015, a federal grand jury in the Eastern District of
39
Pennsylvania returned a twenty-nine count indictment
alleging that Fattah and his associates had engaged in a
variety of criminal acts. Fattah, Vederman, Nicholas,
Brand, and Bowser were charged with unlawfully
conspiring to violate the Racketeer Influenced and Corrupt
Organizations Act (RICO), 18 U.S.C. § 1962(d). In
addition to the RICO charge, the indictment alleged that
Fattah and certain co-defendants had unlawfully conspired
to commit wire fraud, 18 U.S.C. §§ 1343, 1349; honest
services fraud, 18 U.S.C. §§ 1343, 1346, 1349; mail fraud,
18 U.S.C. §§ 1341, 1349; money laundering, 18 U.S.C.
§ 1956; and to defraud the United States, 18 U.S.C. § 371.
Several defendants were also charged with making false
statements to banks, 18 U.S.C. § 1014; falsifying records,
18 U.S.C. § 1519; laundering money, 18 U.S.C. § 1957;
and engaging in mail, wire, and bank fraud, 18 U.S.C.
§§ 1341, 1343, and 1344.
The RICO charge alleged that the defendants and
other co-conspirators constituted an enterprise aimed at
supporting and promoting Fattah’s political and financial
interests. The efforts to conceal the $1 million Lord loan
and its repayment are at the heart of the RICO conspiracy
and the Fattah for Mayor scheme. The indictment further
alleged that the RICO enterprise involved: (1) the scheme
to satisfy an outstanding campaign debt by creating the
fake “Blue Guardians” nonprofit; and (2) the bribery
scheme to obtain payments and things of value from
Vederman in exchange for Fattah’s efforts to secure
Vederman an appointment as a United States Ambassador.
40
A jury trial, before the Honorable Harvey Bartle III
of the Eastern District of Pennsylvania, began on May 16,
2016, and lasted about a month. 7 Judge Bartle charged the
jury on Wednesday, June 15, 2016, and deliberations
began late that afternoon. The following day, after
deliberating for only four hours, the jury sent a note to the
judge. Written by the foreperson, the note read:
Juror Number 12 refuses to vote by the letter
of the law. He will not, after proof, still
change his vote. His answer will not change.
He has the 11 of us a total wreck knowing that
we are not getting anywhere in the hour of
deliberation yesterday and the three hours
today. We have zero verdicts at this time all
due to Juror Number 12. He will not listen or
reason with anybody. He is killing every
other juror’s experience. We showed him all
the proof. He doesn’t care. Juror Number 12
has an agenda or ax to grind w/govt.
JA5916.
Shortly after receiving the foreperson’s note, the
Court received a second communication—a note signed
7
The District Court dismissed one charge prior to
trial: an individual money laundering count against
Nicholas.
41
by nine jurors, including the foreperson. The second note
read:
We feel that [Juror 12] is argumentative,
incapable of making decision. He constantly
scream [sic] at all of us.
Id.Judge Bartle met with counsel in his chambers and
advised them of his intention to voir dire both the
foreperson and Juror 12 in an effort to determine whether
the juror was deliberating as required by his oath. The
Judge also indicated that he would “stay away from the
merits of the case,” and that whether he would voir dire
more jurors “remain[ed] to be seen.” JA5917.
Counsel for the defendants objected to the Court’s
proposed inquiry. As a group, they indicated that while the
note could be read as suggesting “a flat refusal to
deliberate,” they were of the opinion that it sounded “more
in the manner of a disagreement over the evidence.”
JA5918. Nicholas’s counsel specifically argued that
questioning the jurors so quickly after the start of
deliberations would send a message that differences of
opinion among a block of jurors could be resolved by
complaining to the Court. Defense counsel acknowledged
that the case law gave Judge Bartle wide discretion on how
to proceed, but suggested that a “less intrusive” course of
action was preferred. JA5918–19. They collectively urged
42
the Court to do nothing more than remind the jurors of
their duty to deliberate.
The Government agreed with Judge Bartle’s
proposed voir dire. In the prosecution’s view, the Court
had already given proper instructions to the jury on their
duty to deliberate. The Government further argued that if
Juror 12 had exhibited bias, as suggested in the notes, he
would have lied during the voir dire process and his
refusal to deliberate would be “further evidence of that and
his unsuitability as a juror.” JA5921.
With all counsel present, and over defense counsel’s
objections, Judge Bartle ultimately questioned five jurors
in chambers. He questioned Juror 2 (the foreperson), Juror
12 (the subject of the complaints), Juror 3, Juror 6, and
Juror 1.
Judge Bartle began each voir dire by informing the
juror that he would ask a series of questions, but would not
inquire into the merits of the case or how any juror was
voting. Each juror was placed under oath, and Judge Bartle
asked, among other questions, whether screaming was
occurring; whether the jurors were discussing the
evidence; whether Juror 12 was placing his hands on other
jurors; and whether Juror 12 was unwilling to follow his
instructions.
The foreperson acknowledged that he had written
the initial note during lunch earlier that day. He stated that
Juror 12 was not willing to follow the law, but instead
43
“want[ed] to add his own piece of the law . . . which has
nothing to do with it.” JA5927–28. The foreperson further
testified that Juror 12 “was standing up screaming” and
that “[i]t was everybody pretty much against [Juror 12].”
JA5929. He testified that Juror 12 “has his own agenda,”
and that Juror 12 put his hand on another juror. JA5930.
The foreperson also stated that the jury had discussed only
a single count since the day before, and that they were still
discussing it. When the District Court responded that the
jurors should understand that they could take as much time
as they needed, the foreperson responded: “I understand
that. . . . [W]e all understand it. But we feel that he’s just—
he’s got another agenda.” JA5934.
Judge Bartle advised counsel that he considered this
“a very serious situation” and that he would proceed to
voir dire Juror 12. JA5937. Fattah’s counsel renewed his
objection to questioning Juror 12, which the Court
overruled. Brand’s counsel argued that because the Court
had decided to voir dire Juror 12, it should also voir dire
an additional juror. The Court agreed to do so.
When the Court questioned Juror 12, he admitted to
having “yelled back” at others, but only when they raised
their voices to him. JA5939. Juror 12 contended that he, in
fact, was “the only one” deliberating. Id. When an initial
vote was taken the previous afternoon, his vote “was
different than everybody else’s.” Id. Juror 12 explained to
the other jurors why his vote was different, bringing up
specific evidence. In response, the other jurors said “that
44
doesn’t mean anything” and “pointed to the indictment.”
JA5940. Juror 12 told the other jurors that the indictment
is not evidence. Id. In response, the others “threatened to
have [him] thrown off.” Id.Juror 12 testified that a similar sequence of events
had taken place that morning. After a brief period of
deliberations, another vote was taken, and with the same
result as the previous afternoon. A discussion ensued, and
the other jurors again “point[ed] to the indictment.” Id.Juror 12 told them to “read the charge,” “[t]he indictment
is not evidence.” Id. They read the charge, and Juror 12
again attempted to explain his view, but the other jurors
paid little attention. Accordingly, Juror 12 told the others
that if they did not want him there, he “[didn’t] want to be
[there]”—he would be “[o]kay with it” if they wanted him
taken off the jury. JA5941.
Upon hearing this testimony, Judge Bartle again
asked about the tone of deliberations. Juror 12 repeated
that he raised his voice only in response to others who did
so—he did “not want to yell at anybody.” JA5942. Judge
Bartle then asked whether he had touched other jurors.
Juror 12 replied that he had not hurt anyone. When asked
if he had put his hand on anybody’s shoulder, Juror 12
answered: “I couldn’t remember to be honest with you.”
JA5946.
Following Juror 12’s voir dire, the Court summoned
Juror 3 to chambers. Juror 3 testified that, after discussion
of a particular count, there was one juror at odds with the
45
others. According to Juror 3, “the rest of the jurors
pounced on the gentleman with the . . . dissenting
opinion.” JA5948. Juror 3 testified that Juror 12 “got very
defensive and just a little bit [] impatient” and that “the
other jurors were very impatient with him.” Id. Juror 3 did
not recall witnessing Juror 12 putting his hand on any
other jurors.
The Government requested that the Court voir dire
another juror. Defense counsel objected, claiming that the
questioning “threaten[ed] . . . the entire deliberative
process.” JA5949–50. Judge Bartle reminded counsel that
he had the authority to question each juror, and called for
voir dire of Juror 6.
Juror 6 testified that the jury had been discussing the
case and reviewing the evidence, but that Juror 12 “wants
to be seen” and was “being obstinate.” JA5951–52.
According to Juror 6, Juror 12 “may not agree” with the
conclusion of other jurors but “doesn’t give valid reasons
as to why he may disagree with the charge.” JA5952. Juror
6 also revealed that Juror 12 was the first to raise his voice,
and that he may have touched her and another juror. When
asked to clarify what she meant by Juror 12 disagreeing
with “the charge,” Juror 6 testified that Juror 12 was
“reading maybe too deeply into it and putting his own
emotions into it instead of just looking at what it says [and]
what the facts are.” JA5952, 5955. According to Juror 6,
Juror 12 “just continues to read past that into his own mind
of what he feels it should be.” JA5955. Juror 6 testified
46
that Juror 12’s “justification for some of his responses [did
not] seem to relate to what the matter [was] before
[them].” JA5957.
Judge Bartle chose to hear from yet another juror.
Juror 1 was called and informed the Court and counsel that
the jury “really [hadn’t] been able to even start the
deliberation process” in light of the disruptive behavior of
“one particular individual.” JA5958–59. The particular
individual, according to Juror 1, was “very opinionated”
and “[came] into the process with his view already
established, refusing to even listen to any of the evidence
. . . [being] very forceful . . . standing up, yelling, pointing
his finger.” JA5959. When asked if this individual was
willing to follow the Court’s instructions, Juror 1 testified
that he “pours [sic] over the documents very well” but that
he was adding other factors to answer the question on the
verdict form, such as “what did this person feel.” JA5961.
When Judge Bartle advised that intent was an appropriate
consideration, Juror 1 agreed but said that Juror 12 was
“trying to investigate . . . going way beyond the scope” of
the evidence before them. JA5961–62. Juror 12, he said,
“has an opinion and that opinion is established.” JA5962.
He stated that Juror 12 was “not willing to listen to any
sort of reason or any sort of what everyone else is saying”
but instead, was “trying to force everyone else to get to his
point of view.” Id. “[I]f he feels like he’s not getting there,
he gets louder and louder and points and puts his hand on
your shoulder . . . .” Id.47
After questioning the five jurors (Jurors 1, 2, 3, 6,
and 12), Judge Bartle heard argument from counsel. The
attorney for the Government pointed out that the Court
would have to make a credibility determination because
Juror 12 stated that he did not recall touching anyone. In
the Government’s view, Juror 12 was disrupting the
process and should be removed. Defense counsel
disagreed. They argued that Juror 12 was conscientious
and was engaging with the evidence. They pointed out that
despite the testimony that Juror 12 was reading too deeply
into the instructions or introducing new factors for the jury
to consider, Juror 6 had testified that the jurors “talked it
through” and resolved the concern. JA5965. Defense
counsel argued that the jury was discussing intent, an issue
that was at the heart of the case. Defense counsel perceived
no breakdown in deliberations and argued that dismissal
would be premature. They suggested, instead, that the
Court provide a supplemental instruction.
Judge Bartle decided to adjourn for the afternoon.
But before he left the courtroom, defense counsel brought
two matters to his attention. First, in light of testimony
during the voir dire, they asked that the jury be
reinstructed that the verdict form and indictment were not
evidence. Second, they apprised the Judge of the standard
for juror dismissal set forth in United States v. Kemp, 500
F.3d 257 (3d Cir. 2007). Defense counsel stated that under
Kemp, a request to discharge a juror must be denied if there
is a possibility that the request stems from the juror’s view
of the evidence. Judge Bartle expressed hesitation on
48
reinstructing the jury, but agreed that Kemp would control
his determination as to whether dismissal was appropriate.
With the following morning came a new revelation.
With counsel in chambers, the Judge informed them that
“additional significant evidence” had come to light since
the previous day’s recess. JA5980. He placed his
courtroom deputy under oath, and she proceeded to testify
to an exchange that had occurred the previous day as she
was escorting Juror 12 back to the jury room after he had
been voir dired. According to the deputy, Juror 12 stopped
her in the hallway, placed his hand on her shoulder, and
looked her “straight in the eye.” JA5981. He then said:
“I’m going to hang this jury.” Id. The deputy then related
that before any further conversation could take place
between Juror 12 and the deputy, Judge Bartle summoned
Juror 12 back to his chambers. Later that day, however,
Juror 12 and the courtroom deputy had another exchange.
She testified that after all five jurors had been questioned,
Juror 12 emerged from the jury room and told her “I really
need to talk to you.” JA5982. She informed Judge Bartle
and counsel that Juror 12 “said more about how they’re
treating him and what he’s saying to them.” Id. He flatly
stated that “it’s going to be 11 to 1 no matter what.” Id.There were no follow-up questions for the deputy.
Instead, defense counsel suggested that what Juror 12 may
have meant was that he was willing to hang the jury
because of a lack of evidence. They requested that Juror
12 be asked about his comments to the deputy.
49
After once again summoning Juror 12 to his
chambers, the Judge advised him that “[s]ome questions
have arisen” about what he may have done after being voir
dired the previous day. JA5985. Juror 12 acknowledged
having conversations with the courtroom deputy. When
asked “what happened” and “[w]hat occurred,” Juror 12
responded: “Basically, I said that there was a lot of name
calling going on.” JA5985. He said comments had been
made by other jurors about his service in the military. He
specifically referred to other jurors’ suggesting that he had
possibly “hit [his] head . . . hard a few times” while
serving in a parachute regiment. JA5986. He testified he
had conveyed these comments to the deputy and that he
found them offensive. When asked if he said anything else
to the deputy, Juror 12 responded: “I may have. I really
can’t recall.” JA5987. And when Judge Bartle followed up
by asking if he could recall anything else that he said to
the deputy, Juror 12 simply replied: “No. To me, that was
the most important thing.” Id. Juror 12 was then excused
from chambers.
Defense counsel next requested that the juror be
asked directly whether he told the courtroom deputy that
he was going to “hang this jury.” JA5988. Juror 12 was
recalled to chambers, and the following back and forth
took place:
The Court: You may be seated. And, of
course, [Juror 12], you know you’re under
oath here from yesterday?
50
Juror 12: Yes, sir.
The Court: . . . Did you say to [the courtroom
deputy] that you’re going to hang this jury?
Juror 12: I said I would.
The Court: You did?
Juror 12: I did. I said—I told her—I said, we
don’t agree; I’m not just going to say guilty
because everybody wants me to, and if that
hangs this jury, so be it.
....
Juror 12: I did say that, sir.
The Court: You didn’t remember that before?
Juror 12: I’m more concerned about people
spitting on my military record.
The Court: Did you say that you’d hang the
jury no matter what?
Juror 12: If they do—if we cannot come to—
The Court: No. The question is what you said
to her. Did you say to her you would hang the
jury no matter what?
Juror 12: I can’t really remember that. I did
say that if we didn’t—a person—no matter
what, I can’t recall that exactly.
The Court: All right. Thank you very much.
You can wait just out there in the anteroom.
JA5989–90.
Defense counsel continued to oppose Juror 12’s
dismissal. They argued that the juror’s concern was about
51
the evidence, and that his comments to the courtroom
deputy reflected a conviction that “he’s not going to agree
just because others want him to agree.” JA5991. They also
argued that nothing should be made of Juror 12’s failure
to mention the comments when initially questioned by the
Court, and that a supplemental instruction was all that was
warranted given the early stage of the deliberations.
The Government strongly disagreed. The Assistant
United States Attorney argued that Juror 12 “should
absolutely be removed” because “his demeanor ha[d]
demonstrated a hostility . . . both to the other jurors and to
the court.” JA5993. The Government also suggested that
Juror 12’s comments that he would hang the jury meant
that he was not participating in the deliberations and was
ignoring the evidence and the law.
Ruling from the bench, Judge Bartle announced:
I find [the deputy clerk] to be credible. I find
[Juror 12], not to be credible. I find that [Juror
12] did tell [the deputy clerk] that he was
going to hang this jury no matter what.
There have been only approximately
four hours of deliberation. There’s no way in
the world he could have reviewed and
considered all of the evidence in the case and
my instructions on the law.
I instructed the jury to deliberate,
meaning to discuss the evidence; obviously,
to hold onto your honestly held beliefs, but at
52
least you have to be willing to discuss the
evidence and participate in the discussion
with other jurors.
Juror number 12 has delayed,
disrupted, impeded, and obstructed the
deliberative process and had the intent to do
so. I base that having observed him, based on
his words and his demeanor before me.
He wants only to have his own voice
heard. He has preconceived notions about the
case. He has violated his oath as a juror.
And I do not believe that any further
instructions or admonitions would do any
good. I think he’s intent on, as he said,
hanging this jury no matter what the law is,
no matter what the evidence is.
Therefore, he will be excused, and I
will replace him with the next alternate . . . .
JA5994–95.
In response, defense counsel moved for a mistrial,
which the judge promptly denied. He then informed the
reconstituted jury that deliberations would need to start
over, and reinstructed them on certain points of law,
including that the verdict slip does not constitute evidence.
Judge Bartle elaborated upon his decision to remove
Juror 12 in two post-trial memorandum opinions. In the
first, ruling on a media request for the sealed transcripts,
he explained:
53
Here, there is no doubt that Juror 12
intentionally refused to deliberate when he
declared so early in the process that he would
hang the jury no matter what. This finding
was predicated on the admission of Juror 12
as reported by the court’s deputy clerk. The
facts became clear to the court after hearing
the credible testimony of the deputy clerk and
the less credible testimony of Juror 12. The
demeanor of Juror 12 before the court
confirmed the court’s findings.
GSA23–24. The second opinion addressed motions for
bail pending appeal from Nicholas and Brand. GSA25.
There, Judge Bartle explained:
The law is well-settled that the court has
discretion to act as it did under these
circumstances. See United States v. Kemp,
500 F.3d 257, 304 (3d Cir. 2007). The court,
after taking testimony, specifically found that
the juror, following only a few hours of
deliberation, stated to the court’s courtroom
deputy clerk that he would hang this jury no
matter what. He could not possibly have
reviewed all of the law and evidence of this
five-week trial at the time he made his
remark. The court examined the deputy clerk
and the juror under oath in the presence of
counsel for all parties. The undersigned
54
found the deputy clerk to be credible and the
juror not to be credible. Based on the juror’s
demeanor, it was clear he would not change
his attitude and that his intent had been and
would continue to be to refuse to deliberate
in good faith concerning the law and the
evidence.
GSA32.
After deliberating for approximately 15 hours, the
jury returned with its verdicts on June 21, 2016, finding
the defendants guilty on most counts. Fattah, Vederman,
and Brand were convicted on all counts. The jury acquitted
Bowser on sixteen counts, but found her guilty of the
bribery conspiracy and the associated charges of bank
fraud, making false statements to a financial institution,
falsifying records, and money laundering (Counts 16, 19,
20, 21 and 22). The jury also acquitted Nicholas of wire
fraud (Count 24). See Nicholas Supp. App. (NSA) 36.
The following week, on June 27, the Supreme Court
issued its opinion in McDonnell v. United States, 136 S.
Ct. 2355 (2016). McDonnell provided new limitations on
the definition of “official acts” as used in the honest
services fraud and bribery statutes under which Fattah and
Vederman had been convicted. Id. at 2369–72. Fattah and
Vederman both moved to set aside their convictions. The
District Court “acknowledge[d] that under McDonnell our
instructions to the jury on the meaning of official act
turned out to be incomplete and thus erroneous.” JA103.
55
But the Court held that “the incomplete and thus erroneous
jury instruction on the meaning of official acts did not
influence the verdict on the bribery counts” and upheld the
verdict on Counts 16–18 and 22–23. JA107, 121.
Fattah, Vederman, and Bowser had more success
with their other post-verdict motions. The District Court,
in a thoughtful opinion, granted relief under Federal Rule
of Criminal Procedure 29, acquitting Vederman of the
RICO conspiracy (Count 1) and Fattah, Vederman, and
Bowser of bank fraud, making false statements to a
financial institution, and falsifying records (Counts 19, 20,
and 21). JA37–139.
This appeal followed. 8 The defendants raise a
variety of challenges to their convictions. All defendants
but Bowser challenge the District Court’s decision to
dismiss Juror 12. Fattah and Vederman argue that the
District Court erred in upholding the jury’s verdict on the
bribery and honest services fraud counts in light of the
Supreme Court’s decision in McDonnell. Fattah, Brand
and Nicholas challenge the sufficiency of the evidence
underlying the RICO conviction. Several of the defendants
contend the District Court erred in its instruction on intent
and by sending the indictment out to the jury. There are
8
Fattah, Brand, Vederman, and Nicholas each filed a
timely notice of appeal, but Bowser did not challenge her
convictions.
56
also several evidentiary challenges.9 The Government
cross-appeals from the District Court’s judgment
acquitting Fattah and Vederman on Counts 19 and 20,
arguing that the District Court erred in interpreting the
definition of a “mortgage lending business” under 18
U.S.C. § 27. We address these arguments in turn.
We hold that the District Court erred in upholding
the jury verdict in light of McDonnell, and we will
therefore reverse and remand for retrial on Counts 16, 17,
18, 22, and 23. We also hold that the District Court erred
9
Pursuant to Rule 28(i), “Fattah joins in the arguments of
Herbert Vederman, Robert Brand, and Karen Nicholas to
the extent their arguments on appeal apply to Mr. Fattah.”
Fattah Br. 19 n.69. Federal Rule of Appellate Procedure
28(i) provides that a defendant, “[i]n a case involving
more than one appellant . . . may adopt by reference a part
of another’s brief.” Here, Fattah’s decision to join fails to
specify which of the many issues of his codefendants he
believes worthy of our consideration. Rather, it appears
that he presumes we will scour the record and make that
determination for him. This type of blanket request fails to
satisfy Rule 28(a)(5)’s directive requiring that the
“appellant’s brief must contain . . . a statement of the
issues presented for review.” Fed. R. App. P. 28(a)(5). We
conclude that expecting the appellate court to identify the
issues to be adopted simply results in the abandonment and
waiver of the unspecified issues. See Kost v. Kozakiewicz,
1 F.3d 176, 182 (3d Cir. 1993).
57
in acquitting Fattah and Vederman on Counts 19 and 20.
Because the jury’s verdict was supported by the evidence,
we will reinstate the convictions as to those counts. In all
other respects, we will affirm the judgment of the District
Court.
III. Juror Misconduct and Dismissal of Juror 12 10
Defendant Fattah challenges the District Court’s
decision to conduct an in camera inquiry into alleged juror
misconduct and the ultimate dismissal of Juror 12. 11 We
reject both challenges. The record reveals credible
allegations of juror misconduct and a sufficient basis to
support the finding that Juror 12 violated his oath.
A. Investigation of Alleged Juror Misconduct
We first consider whether the District Court erred in
its handling of the two notes from jurors. A trial court’s
response to allegations of juror misconduct is reviewed
under an abuse of discretion standard. United States v.
Boone, 458 F.3d 321, 326 (3d Cir. 2006) (citing United
States v. Resko, 3 F.3d 684, 690 (3d Cir. 1993)). We
conclude that the District Court did not abuse its discretion
10
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).
11
Vederman, Nicholas, and Brand adopt Fattah’s claim of
reversible error concerning the dismissal of Juror 12.
58
in addressing the issues raised in the jurors’ notes to the
Court.
Trial courts are afforded discretion in responding to
allegations of juror misconduct. This is so because “the
trial court is in a superior position to observe the ‘mood at
trial and the predilections of the jury.’ ” Resko, 3 F.3d at
690 (quoting United States v. Chiantese, 582 F.2d 974,
980 (5th Cir. 1978)). But this discretion is not unlimited.
Once the jury retires to deliberate, the confidentiality of its
deliberations must be closely guarded. An accused is
constitutionally entitled to be tried before a jury of his
peers. As ordinary citizens, jurors are “expected to speak,
debate, argue, and make decisions the way ordinary people
do in their daily lives.” Pena-Rodriguez v. Colorado, 137
S. Ct. 855, 874 (2017) (Alito, J., dissenting). To protect
against intrusion into a defendant’s right to be judged only
by fellow citizens, “the door to the jury room [is] locked.”
Id. at 875.
In Boone, this Court considered the threshold for
intervention by a trial judge who is presented with
allegations of juror misconduct during the course of
deliberations. 458 F.3d at 327. We recognized that “[i]t is
beyond question that the secrecy of deliberations is critical
to the success of the jury system.” Id. at 329. But that
secrecy abuts a competing interest—the jury’s proper
execution of its duties. That is, “a juror who refuses to
deliberate or who commits jury nullification violates the
sworn jury oath and prevents the jury from fulfilling its
59
constitutional role.” Id. Recognizing these competing
interests, we declined in Boone to adopt a sweeping
limitation on a trial court’s ability to investigate
allegations of misconduct during jury deliberations. See id.Consistent with the standard applied at other stages of
criminal proceedings, Boone teaches that “where
substantial evidence of jury misconduct—including
credible allegations of jury nullification or of a refusal to
deliberate—arises during deliberations, a district court
may, within its sound discretion, investigate the
allegations through juror questioning or other appropriate
means.” Id.Fattah argues that the District Court had no basis to
question any of the jurors. Fattah Br. 20. We disagree. In
Boone, notes from the jury presented substantial credible
evidence of misconduct. 458 F.3d at 330. Here, the initial
note from the foreperson alleged that Juror 12 “refuse[d]
to vote by the letter of the law,” would “not listen or reason
with anybody,” and that he had “an agenda or ax to grind”
with the Government. JA5916. The note contained
allegations of both a refusal to deliberate and a suggestion
of nullification. A refusal to deliberate is a violation of a
juror’s oath. Boone, 458 F.3d at 329 (citing United States
v. Baker, 262 F.3d 124, 130 (2d Cir. 2001) (“It is well-
settled that jurors have a duty to deliberate.”)). Moreover,
nullification—a juror’s refusal to follow the law—is a
violation of the juror’s sworn oath to render a verdict
according to the law and evidence. See United States v.
Thomas, 116 F.3d 606, 614–18 (2d Cir. 1997) (discussing
60
both “benevolent” and “shameful” examples of juror
nullification, but “categorically reject[ing] the idea that, in
a society committed to the rule of law, jury nullification is
desirable or that courts may permit it to occur when it is
within their authority to prevent”). The second jury note,
signed by nine jurors, supported the claim of misconduct
by asserting that Juror 12 was “incapable of making
decision[s]” and was “constantly scream[ing]” at the other
jurors. JA5916–17. We conclude that the District Court
did not abuse its discretion in deciding to initially question
Juror 2, and subsequently, Jurors 12, 3, 6 and 1.
Fattah also challenges the scope of the District
Court’s questioning. He argues that the rights to an
impartial jury and to a unanimous verdict “would be
rendered toothless if trial courts had free rein to question
jurors during deliberations.” Fattah Br. 36. Indeed, we
acknowledged the legitimacy of such a concern in Boone.
Despite adopting a modest “credible allegations” standard
for investigating misconduct, we “ke[pt] in mind the
importance of maintaining deliberative secrecy.” Boone,
458 F.3d at 329. Fattah asserts that the trial court’s
questions to the five jurors were “intrusive and pointed”
and “nothing like the questioning . . . approved in Boone.”
Fattah Br. 38. But Fattah does not elaborate on how, in his
view, the questions posed by Judge Bartle specifically
intruded into deliberative secrecy.
To be sure, Judge Bartle’s questioning of each juror
was more extemporaneous than the juror questioning in
61
Boone. There, the district court asked a single juror four
“concise and carefully-worded” questions. 458 F.3d at
330. Judge Bartle’s voir dire of each of the five jurors took
on a more conversational tone. We take no issue with that
approach. The substance of the judge’s questions was
limited and mirrored that of questions we deemed
appropriate in Kemp. There, the court conducted three
rounds of questioning. In the first round, each juror was
asked:
(1) “Are you personally experiencing any
problems with how the deliberations are
proceeding without telling us anything about
the votes as to guilt or innocence? If yes,
describe the problem.” (2) “Are all the jurors
discussing the evidence or lack of evidence?”
(3) “Are all the jurors following the court’s
instructions on the law?”
Kemp, 500 F.3d at 273. In the second and third rounds,
each juror was asked:
(1) “Is there any juror or jurors who are
refusing to deliberate?” (2) “Is there any juror
who is refusing to discuss the evidence or
lack of evidence?” (3) “Is there any juror who
is refusing to follow the Court’s
instructions?”
Id. at 274. Here, Judge Bartle began his voir dire of each
juror by stating that he did not wish for the juror to discuss
62
the merits of the case or to reveal the content of the
deliberations that had taken place. He asked the jurors
whether screaming was occurring, whether the jurors were
discussing the evidence, whether Juror 12 was placing his
hands on other jurors, and whether Juror 12 was unwilling
to follow his instructions.
Fattah points to no specific question posed or topic
discussed that was inappropriate, and we see little to no
substantive difference between the questions here and
those asked by the trial judge in Kemp. As in Kemp, “the
District Court took care to limit its questions to appropriate
matters that did not touch on the merits of the jury’s
deliberation, and expressly informed each juror on
multiple occasions that he or she should not reveal the
substance of the deliberations.” Id. at 302 (citing United
States v. Edwards, 303 F.3d 606, 634 n.16 (5th Cir. 2002)).
Fattah also argues that once the remarks of Juror 2
and Juror 12 revealed no further evidence of misconduct,
the court had no basis to question other jurors. Fattah
Reply 19. Yet, our cases make clear that a trial court may,
in its discretion, examine each juror. Kemp, 500 F.3d at
302 (“We have recognized that there are times in which
individual questioning is the optimal way in which to root
out misconduct.”). Indeed, “the District Court must utilize
procedures that will ‘provide a reasonable assurance for
the discovery of prejudice.’ ” Id. (quoting Martin v.
63
Warden, Huntingdon State Corr. Inst., 653 F.2d 799, 807
(3d Cir. 1981)). 12
Judge Bartle, a very able and experienced district
judge, was in the best position to determine what type of
inquiry was warranted under the circumstances. We
conclude that his questioning of the five jurors was not an
abuse of discretion. See id. at 302.
B. Dismissal of Juror 12
Fattah, joined by Vederman, Brand, and Nicholas,
strongly contends that the District Court committed
reversible error by dismissing Juror 12. “We review the
dismissal of a juror for cause for abuse of discretion.”
12
Our cases do not suggest that a trial judge confronted
with allegations that a jury’s deliberations are being
obstructed by one of its members should always resort to
interviewing jurors. Reinstructing the jury on its duty to
deliberate will often be the better course at the first sign of
trouble. Mere disagreement among jurors—even spirited
disagreement—is no ground for intervention.
Furthermore, intrusive or leading questions about the
deliberative process may work against the twin goals of
protecting that process and ensuring that jurors remain
faithful to their oaths. We share the Eleventh Circuit’s
preference of “err[ing] on the side of too little inquiry as
opposed to too much.” United States v. Oscar, 877 F.3d
1270, 1287 (11th Cir. 2017) (quoting United States v.
Augustin, 661 F.3d 1105, 1133 (11th Cir. 2011)).
64
Kemp, 500 F.3d at 303. That deferential standard compels
us to affirm.
Rule 23(b) of the Federal Rules of Criminal
Procedure permits a trial court to excuse a deliberating
juror for good cause. See id. (citing Fed. R. Crim. P.
23(b)). Good cause exists where a juror refuses to apply
the law, refuses to follow the court’s instructions, refuses
to deliberate with his or her fellow jurors, or demonstrates
bias. See Kemp, 500 F.3d at 305–06; United States v.
Oscar, 877 F.3d 1270, 1287 (11th Cir. 2017); Thomas, 116
F.3d at 617. Good cause does not exist when there is
reasonable but sustained disagreement about how a juror
views the evidence. The courts of appeals are emphatic
that trial courts “may not dismiss a juror during
deliberations if the request for discharge stems from
doubts the juror harbors about the sufficiency of the
government’s evidence.” Kemp, 500 F.3d at 303 (quoting
United States v. Brown, 823 F.2d 591, 596 (D.C. Cir.
1987)); see also Oscar, 877 F.3d at 1287 (same); United
States v. Symington, 195 F.3d 1080, 1087 (9th Cir. 1999);
Thomas, 116 F.3d at 622.
To reinforce a defendant’s right to a unanimous
jury, we have adopted a high standard for juror dismissal.
Kemp, 500 F.3d at 304 & n.26. “[D]istrict courts may
discharge a juror for bias, failure to deliberate, failure to
follow the district court’s instructions, or jury nullification
when there is no reasonable possibility that the allegations
of misconduct stem from the juror’s view of the evidence.”
65
Id. at 304 (emphasis added). This “no reasonable
possibility” standard is “by no means lax.” Id. Rather, “[i]t
corresponds with the burden for establishing guilt in a
criminal trial.” Id.We first applied this standard in Kemp, but have not
had occasion to do so since. There, the evidence
supporting the district court’s removal decision was
“overwhelming.” 500 F.3d at 304. Ten jurors separately
and consistently reported that a juror was improperly
biased, and did so only after three rounds of questioning
and careful and correct instructions from the district court
as to the distinction between appropriate skepticism and
impermissible bias. Id. at 304–05; see id. at 275–76
(district court’s instruction). The testimony also showed
that the juror in question refused to deliberate or to discuss
the evidence with her fellow jurors. Id. at 305.
Whether the evidence of misconduct in this case is
as strong as that in Kemp is beside the point. After only
four hours of deliberations, Juror 12 stated unequivocally
to the courtroom deputy that he was “going to hang” the
jury, and that it would be “11 to 1 no matter what.”
JA5981–82 (emphasis added). These statements, coupled
with the District Court’s finding that Juror 12 lacked
credibility, provided a sufficient basis for Juror 12’s
dismissal.
As grounds for excusing Juror 12, the District Court
found that he refused to deliberate in good faith, “delayed,
disrupted, impeded, and obstructed the deliberative
66
process and had the intent to do so,” JA5995, and that he
was “intent on . . . hanging this jury no matter what the law
is, no matter what the evidence is.” Id. The District Court
determined from this that Juror 12 had violated his oath as
a juror and that no further instructions or admonitions
could rehabilitate the juror. Id. The District Court based
these findings on personal observation, including Juror
12’s words and demeanor, and making the specific finding
that Juror 12 was not credible. That finding is amply
supported by the record.
In United States v. Abbell, 271 F.3d 1286, 1303 (9th
Cir. 2001), the Ninth Circuit recognized that “the
demeanor of the pertinent juror is important to juror
misconduct determinations” because the “juror’s
motivations and intentions are at issue.” That court
emphasized, as we do, that a district judge is best situated
to assess the demeanor of a juror. Id. Here, Juror 12 stated
he could not recall putting his hand on another juror’s
shoulder, while his fellow jurors’ testimony was consistent
on this point. Juror 12 also failed, at first, to recall his
troubling statements to the courtroom deputy despite
having made those statements only the previous afternoon.
When questioned a second time and asked directly about
the statements, he admitted to saying that he would hang
the jury but claimed he could not “really remember”
saying “no matter what” the day before. JA5989–90. Juror
12’s spotty recollection of the previous day’s events
further supports the District Court’s finding that he was
not credible.
67
Fattah argues that the credibility determination was
not, by itself, a sufficient reason to dismiss the juror
because the record demonstrates more than a reasonable
possibility that the complaints about his conduct stemmed
from Juror 12’s own view of the Government’s case.
Fattah Reply Br. 11; Fattah Br. 25, 28. Fattah claims that
the District Court abused its discretion by dismissing Juror
12 “on the basis of, in effect, six words the juror
purportedly said to the court’s deputy after he was verbally
attacked by other jurors.” Fattah Br. 24. According to
Fattah, the questioning of the other jurors “confirmed that
there were no legitimate grounds for removing juror 12.”
Id. at 26. We conclude otherwise.
“A district court’s finding on the question whether
a juror has impermissibly refused to participate in the
deliberation process is a finding of fact to which
appropriate deference is due.” Baker, 262 F.3d at 130.
While district courts must apply a high standard for juror
dismissal, their underlying findings are afforded
considerable deference on appeal. Kemp, 500 F.3d at 304
(citing Abbell, 271 F.3d at 1302–03). We will reverse only
if the decision to dismiss a juror was “without factual
support, or for a legally irrelevant reason.” Abbell, 271
F.3d at 1302 (citation omitted).
Here, the District Court had a legitimate reason for
removing Juror 12. Refusal to deliberate constitutes good
cause for dismissal. Although the judge did not expressly
articulate the Kemp standard when he announced that he
68
would dismiss Juror 12, he did acknowledge the “no
reasonable possibility” standard in his discussion with
counsel. The unmistakable import of the District Court’s
statement from the bench is that there was no reasonable
possibility that Juror 12’s intransigence was based on his
view of the evidence. See Oscar, 877 F.3d at 1288 n.16.
Fattah contends that there is no record support for
the finding that Juror 12 said “he was going to hang this
jury no matter what.” Fattah Br. 29. To be sure, the
courtroom deputy’s testimony is not that Juror 12 used the
words “hang this jury” and “no matter what” in the same
sentence. She testified that Juror 12 first stated “I am going
to hang this jury,” then later stated “it is going to be 11 to
1 no matter what.” JA5981–82. This is a distinction
without a difference. Likewise, Fattah challenges the
District Court’s finding that Juror 12 was determined to
hang the jury “no matter what the law is” and “no matter
what the evidence is.” Fattah Br. 29. Although there is no
evidence that Juror 12 uttered the phrases “no matter what
the law is” or “no matter what the evidence is,” the District
Court was describing the import of Juror 12’s statements.
This was not error.
Fattah expresses the concern that “[i]f jurors are
asked the right questions or interrogated long enough, it
would not be difficult for a trial court to elicit testimony
from [a] majority [of] jurors that can be held up as
evidence of a dissenting juror’s bias or refusal to
deliberate.” Fattah Br. 22. He also worries that a group of
69
jurors might have an incentive to rid themselves of a juror
who holds a different view. Id. These are valid concerns—
but no basis existed for such concerns in this case. Juror
12’s own words provided most of the support for his
eventual dismissal. Furthermore, his statements were
made early in the deliberations, in a complex case, before
any juror could reasonably be expected to have reached
final verdicts on the twenty-nine counts before the jury.
The able District Judge did not err in finding that
Juror 12 refused to deliberate and therefore violated his
oath.
IV. The District Court’s Instructions Under
McDonnell
On appeal, Fattah and Vederman renew their
challenge to the jury instructions given on Counts 3, 16,
17, 18, 22, and 23, concerning the meaning of the term
“official act” as used in the bribery statute (pursuant to
which both were convicted) and the honest services fraud
statute (pursuant to which Fattah alone was convicted).
In light of the Supreme Court’s opinion in
McDonnell v. United States, 136 S. Ct. 2355 (2016),
released the week after the jury verdict, the District Court
conceded that its instructions were incomplete and
erroneous, at least as to Counts 16–18. Nevertheless, the
District Court held that the erroneous jury instructions had
not influenced the verdict on the bribery counts, and
declined to set aside Fattah and Vederman’s convictions.
70
As to Counts 16–18 and 22–23, we disagree, and will
reverse the District Court’s judgment. The District Court’s
judgment with respect to Count 3, which did not involve
Vederman, will be affirmed. JA78–79.
A. The McDonnell Framework
In McDonnell, the Supreme Court interpreted the
term “official act” as defined in 18 U.S.C. § 201(a)(3). 136
S. Ct. at 2368. The statute defines an “official act” as “any
decision or action on any question, matter, cause, suit,
proceeding or controversy, which may at any time be
pending, or which may by law be brought before any
public official, in such official’s official capacity, or in
such official’s place of trust or profit.” 18 U.S.C.
§ 201(a)(3). The McDonnell Court distilled this definition
into two requirements:
First, the Government must identify a
“question, matter, cause, suit, proceeding or
controversy” that “may at any time be
pending” or “may by law be brought” before
a public official. Second, the Government
must prove that the public official made a
decision or took an action “on” that question,
matter, cause, suit, proceeding, or
controversy, or agreed to do so.
136 S. Ct. at 2368. Applying this two-step test to Governor
Robert McDonnell’s convictions, the Supreme Court
concluded that “the jury was not correctly instructed on
71
the meaning of ‘official act,’ ” and as a result, “may have
convicted Governor McDonnell for conduct that is not
unlawful.” Id. at 2375. Given that uncertainty, the Court
“[could not] conclude that the errors in the jury
instructions were ‘harmless beyond a reasonable doubt.’ ”
Id. (quoting Neder v. United States, 527 U.S. 1, 16 (1999)).
The Supreme Court, therefore, vacated Governor
McDonnell’s convictions. Id.McDonnell lays out a clear path for the Government
to follow in proving that an accused has performed an
“official act.” First, the Government must “identify a
‘question, matter, cause, suit, proceeding or controversy’
that ‘may at any time be pending’ or ‘may by law be
brought’ before a public official.” 136 S. Ct. at 2368
(quoting 18 U.S.C. § 201(a)(3)). This first step is divided
into two sub-components. In Step 1(A), the Government
must “identify a ‘question, matter, cause, suit, proceeding
or controversy.’ ” Id. Step 1(B) then clarifies that the
identified “question, matter, cause, suit, proceeding or
controversy” be one that “ ‘may at any time be pending’ or
‘may by law be brought’ before a public official.” Id.Under Step 1(A), a “question, matter, cause, suit,
proceeding or controversy” must be “a formal exercise of
governmental power that is similar in nature to a lawsuit
before a court, a determination before an agency, or a
hearing before a committee.” Id. at 2372. Importantly, “a
typical meeting, telephone call, or event arranged by a
72
public official” does not qualify as such a formal exercise
of governmental power. Id. at 2368.
Step 1(B) then requires us to ask whether the
qualifying “question, matter, cause, suit, proceeding or
controversy” was one that “ ‘may at any time be pending’
or ‘may by law be brought’ before a public official.” Id.As the McDonnell Court clarified, “ ‘[p]ending’ and ‘may
by law be brought’ suggest something that is relatively
circumscribed—the kind of thing that can be put on an
agenda, tracked for progress, and then checked off as
complete.” Id. at 2369; accord United States v. Repak, 852
F.3d 230, 252 (3d Cir. 2017) (quoting McDonnell, 136 S.
Ct. at 2369). By contrast, matters described at a high level
of generality—for example, “[e]conomic development,”
“justice,” and “national security”—are not sufficiently
“focused and concrete.” McDonnell, 136 S. Ct. at 2369.
In McDonnell, the Court concluded that at least
three questions or matters identified by the Fourth Circuit
were sufficiently focused:
(1) whether researchers at any of Virginia’s
state universities would initiate a study of [a
drug]; (2) whether the state-created Tobacco
Indemnification and Community
Revitalization Commission would allocate
grant money for the study of [a chemical
compound]; and (3) whether the health
insurance plan for state employees in
73
Virginia would include [a specific drug] as a
covered drug.
Id. at 2370 (internal quotations omitted) (quoting United
States v. McDonnell, 792 F.3d 478, 515–16 (4th Cir.
2015)). We provided guidance in the form of a fourth
example in Repak, when we held that a redevelopment
authority’s awarding of contracts was “a concrete
determination made by the [redevelopment authority’s]
Board of Directors.” 852 F.3d at 253.
Step 2 requires the Government to prove that the
public official made a “decision” or took “an action” on
the identified “question, matter, cause, suit, proceeding or
controversy.” McDonnell, 136 S. Ct. at 2368. The
McDonnell Court explained:
Setting up a meeting, hosting an event, or
calling an official (or agreeing to do so)
merely to talk about a research study or to
gather additional information . . . does not
qualify as a decision or action on the pending
question of whether to initiate the study.
Simply expressing support for the research
study at a meeting, event, or call—or sending
a subordinate to such a meeting, event, or
call—similarly does not qualify as a decision
or action on the study, as long as the public
official does not intend to exert pressure on
another official or provide advice, knowing
74
or intending such advice to form the basis for
an “official act.”
Id. at 2371. The Court further clarified:
If an official sets up a meeting, hosts an
event, or makes a phone call on a question or
matter that is or could be pending before
another official, that could serve as evidence
of an agreement to take an official act. A jury
could conclude, for example, that the official
was attempting to pressure or advise another
official on a pending matter. And if the
official agreed to exert that pressure or give
that advice in exchange for a thing of value,
that would be illegal.
Id.
Here, Fattah was charged with engaging in three
categories of official acts, which we analyze in accordance
with the McDonnell framework. In Counts 16–18 and 22–
23, Fattah is alleged to have set up a meeting between
Vederman and the U.S. Trade Representative, attempted
to secure Vederman an ambassadorship, and hired
Vederman’s girlfriend, all in return for a course of conduct
wherein Vederman provided things of value to Fattah.
In this case, as in McDonnell, the jury instructions
were erroneous. We conclude that the first category of the
charged acts—setting up a meeting between Vederman
75
and the U.S. Trade Representative—is not unlawful, and
that the second category—attempting to secure Vederman
an ambassadorship—requires reconsideration by a
properly instructed jury. The third charged act—hiring
Vederman’s girlfriend—is clearly an official act. But
because we cannot isolate the jury’s consideration of the
hiring from the first two categories of charged acts, we
must reverse and remand the judgment of the District
Court.
B. The Kirk Meeting
We turn first to Fattah’s scheduling of a meeting
between Vederman and the U.S. Trade Representative,
Ron Kirk. Under McDonnell, “setting up a meeting . . .
does not, standing alone, qualify as an ‘official act.’ ” 136
S. Ct. at 2368. Fattah’s setting up the meeting between
Vederman and Kirk was therefore not an official act, a
concession implicit in the Government’s opening brief.
See Gov’t Br. 32 (failing to mention the Kirk meeting as
one of the “two categories” of allegedly “official acts”).
But the jury was not properly instructed on this point.
Without the benefit of the principles laid down in
McDonnell, the jury was free to conclude that arranging
the Kirk meeting was an official act—and it may have
done so. The District Court’s erroneous jury instructions,
therefore, cannot survive harmless error review.
In a footnote in its brief to this Court, the
Government argues that evidence about the Kirk meeting
was offered only “because it established the strength of
76
Vederman’s desire to be an ambassador” and not because
the Government was attempting to establish the meeting
as an independent official act. Id. at79–80 n.6. But the
record undercuts the Government’s post hoc justification.
The indictment, provided to the jury in redacted
form for use in its deliberations, lists Fattah’s setting up
the Kirk meeting as an official act under the heading
“FATTAH’s Official Acts for VEDERMAN.” JA494.
Under this heading are three distinct subheadings:
(1) “The Pursuit of an Ambassadorship,” (2) “The Pursuit
of Another Executive Branch Position,” and (3) “Hiring
the Lobbyist’s Girlfriend to the Congressional Staff.”
JA494–95. The second subheading, “The Pursuit of
Another Executive Branch Position,” describes the
arrangement of the Kirk meeting. Quite clearly, then, this
three-part structure demonstrates that setting up the Kirk
meeting was one of three distinct categories of official acts
alleged by the Government.
Although there is some support for the
Government’s argument that evidence of the Kirk meeting
was presented at trial only to establish the extent of
Vederman’s interest in becoming an ambassador, JA827,
852–53 (mentioning the Kirk meeting in close proximity
to references to Fattah’s attempts to secure Vederman an
ambassadorship), it is undermined by language in the
redacted indictment itself, and by the way in which the
Government presented its case at trial as a “pattern” of
connected acts.
77
The redacted indictment, for example, refers to the
Kirk meeting as “The Pursuit of Another Executive
Branch Position.” JA495 (emphasis added). The use of the
word “Another” strongly suggests that evidence about the
Kirk meeting was not merely evidence of Fattah’s attempt
to secure Vederman an ambassadorship, but was also
evidence of a separate and distinct attempt to secure
Vederman a position on a federal trade-related
commission. The redacted indictment also notes that “[i]n
or around May 2011, with little progress made on securing
an ambassadorship for VEDERMAN, FATTAH turned
towards obtaining for VEDERMAN an appointment in the
Executive Branch to a federal trade commission.” Id.
(emphasis added). The words “turned towards,” taken
literally, clearly convey that arranging the Kirk meeting
was presented as distinct from Fattah’s efforts to secure
Vederman an ambassadorship.
The District Court denied Fattah and Vederman a
new trial on Counts 17 and 18, referring to evidence of the
Kirk meeting as “de minimis” and noting that “Kirk’s
testimony during this lengthy trial lasted a mere sixteen
minutes.” JA97 n.14. In the District Court’s view,
evidence of the Kirk meeting “played no role in the
outcome” of the case. Id. Considering the record in light
of McDonnell, we are not so sure.
Although it is possible that evidence of the Kirk
meeting played a minor role at trial when compared to the
other acts on which the Government presented evidence,
78
the redacted indictment suggests that the Kirk meeting was
a significant part of the Government’s case. The
indictment dedicates five paragraphs to describing the
Kirk meeting, but just three paragraphs to describing the
hiring of Vederman’s girlfriend—a hiring that, as we
explain below, is clearly an official act. JA495–96. While
neither the number of minutes used at trial nor the number
of paragraphs contained in an indictment is a dispositive
unit of measurement for determining the significance of
evidence, we conclude that the District Court’s erroneous
jury instructions pertaining to the Kirk meeting were not
harmless.
We conclude, in accordance with McDonnell, that
Fattah’s arranging a meeting between Vederman and the
U.S. Trade Representative was not itself an official act.
Because the jury may have convicted Fattah for conduct
that is not unlawful, we cannot conclude that the error in
the jury instruction was harmless beyond a reasonable
doubt, and we must vacate and remand the convictions of
Fattah and Vederman as to Counts 16, 17, 18, 22 and 23.
C. Fattah’s Efforts to Secure Vederman an
Ambassadorship
The nature of Fattah’s efforts to secure Vederman
an ambassadorship is less clear, and presents a closer
question than the Kirk meeting. We ultimately conclude
that the question warrants remand so that it may be
answered by a properly instructed jury. On remand, the
jury must decide whether Fattah’s conduct constituted a
79
“decision” or “action” under Step 2 of the McDonnell
analysis.
At the outset, it is clear to us that, under Steps 1(A)
and 1(B), a formal appointment of Vederman as an
ambassador would qualify as a “matter” that “may at any
time be pending” before a public official. The formal
appointment of a particular person (Vederman), to a
specific position (an ambassadorship), constitutes a matter
that is sufficiently focused and concrete. The formal
appointment of an ambassador is a matter that is “pending”
before the President—the constitutional actor charged
with nominating ambassadors—as well Senators, who are
charged with confirming the President’s ambassadorial
nominations. U.S. Const. art. II § 2 (“[H]e shall nominate,
and by and with the Advice and Consent of the Senate,
shall appoint Ambassadors . . . .”). It is beyond cavil that
the formal appointment of an ambassador satisfies both
sub-components of McDonnell’s Step 1.
Turning to Step 2, we consider whether Fattah’s
efforts to secure Vederman an ambassadorship qualify as
making a “decision” or taking “an action” on the identified
“matter” of appointment. McDonnell, 136 S. Ct. at 2368.
Although those efforts—three emails, two letters, and one
phone call—do not themselves qualify as a “question,
matter, cause, suit, proceeding, or controversy” under
McDonnell’s Step 1, they may nonetheless qualify as the
making of a “decision” or taking “an action” on the
identified matter of appointment. Id.
80
McDonnell’s Step 2 requires us to determine
whether Fattah’s efforts qualify as permissible attempts to
“express[] support,” or impermissible attempts “to
pressure or advise another official on a pending matter.”
Id. at 2371. At trial, the jury was not instructed that they
had to place Fattah’s efforts on one side or the other of this
divide. The jury might even have thought they were
permitted to find Fattah’s efforts—three emails, two
letters, and one phone call—to themselves be official acts,
rather than a “decision” or “action” on the properly
identified matter of appointment. Such a determination
would have been contrary to the dictates of McDonnell.
Faced with such uncertainty, we cannot assume the
jury verdict was proper. Although the jury might not have
concluded that Fattah’s efforts were themselves official
acts, and although the jury might not have concluded that
those efforts crossed the line into impermissible attempts
“to pressure or advise,” we are unable to conclude that the
jury necessarily did so. Nor can we, on the cold record
before us, determine whether Fattah’s efforts to secure
Vederman an ambassadorship crossed the line.
Determining, for example, just how forceful a strongly
worded letter of recommendation must be before it
becomes impermissible “pressure or advice” is a fact-
intensive inquiry that falls within the domain of a properly
instructed jury. Should the Government elect to retry these
counts after remand, the finder of fact will need to decide
whether Fattah’s efforts constituted permissible attempts
to “express[] support,” or impermissible attempts “to
81
pressure or advise another official on a pending matter.”
Id.
D. The Zionts Hiring
The third group of acts charged in the Fattah–
Vederman scheme involves Fattah’s decision to hire
Vederman’s girlfriend, Alexandra Zionts, as a
congressional staffer. We conclude that the hiring was an
official act. A brief analysis of McDonnell’s two steps
suffices to show why this is so.
Here, under McDonnell’s Step 1(A), the relevant
“matter” is the decision to hire Zionts. Step 1(B) of the
analysis is satisfied because the hiring decision was
“pending” before Fattah himself. And that hiring was
“focused and concrete,” “within the specific duties of an
official’s position—the function conferred by the
authority of his office.” Id. at 2369. Finally, McDonnell’s
Step 2 requires that the “Government . . . prove that the
public official made a decision or took an action ‘on’ [the
identified] question, matter, cause, suit, proceeding, or
controversy, or agreed to do so.” Id. at 2368. Fattah’s
decision to hire Zionts clearly satisfies that requirement.
We therefore conclude that the hiring of Zionts was an
official act under McDonnell.
Vederman concedes that the Zionts hiring was an
official act. Oral Argument Transcript at 5–6. Fattah, for
his part, maintains that “hiring someone for a routine, part-
time, short-term position falls well outside [the] definition
82
[of ‘official act’] and is nothing like a lawsuit, agency
determination, or committee hearing, even if each shares
the happenstance that federal funds will be used.” Fattah
Reply Br. 25.
Fattah’s argument lacks traction. Official acts need
not be momentous decisions—or even notable ones.
Judges, for example, make “routine” evidentiary rulings
every day, and yet it is beyond question that those rulings
are official acts. In the realm of official acts, it is of no
moment that Zionts provided only “part-time, short term”
labor. When a public official hires an employee to work in
his government office, he has engaged in an official act.
* * *
If we could conclude that the Zionts hiring was the
only category of actions that the jury relied on when it
found that Fattah performed an official act under Counts
16–18 and 22–23, remand would not be necessary. But, as
we have explained, we cannot rule out that the jury
erroneously convicted Fattah and Vederman based on
other actions that were not official acts under
McDonnell.13
13
More specifically, the incomplete, and therefore
erroneous, instructions could have led the jury to commit
at least one of three mistakes. First, the jury could have
improperly convicted Vederman and Fattah based on the
Kirk meeting alone, or misunderstood the Kirk meeting to
83
The Government argues that because the Zionts
hiring was an official act, the effect of the erroneous jury
instructions could be no more than harmless. The jury’s
verdict, the Government contends, permits us to deduce
that the jury necessarily concluded the Zionts hiring was
an official act, and that this conclusion alone supported
Fattah’s and Vederman’s convictions as to Counts 16–18
and 22–23—regardless of whether the jury erroneously
found any unofficial acts to be official acts. We disagree.
Fattah and Vederman objected to the definition of
“official act” at trial. We thus apply the harmless error
standard of review. McDonnell, 136 S. Ct. at 2375. The
Government argues that because the jury convicted Fattah
and Vederman of illegally laundering the proceeds of a
“scheme to commit bribery” under Count 23, the jury
found that the scheme must have encompassed only the
Zionts hiring. JA531.That would mean that the jury did not
conclude that the “scheme to commit bribery” included
be a necessary component of an impermissible “pattern”
of official acts. Second, the jury might have concluded that
Fattah’s efforts to secure Vederman an ambassadorship
were themselves official acts. Third, the jury might have
concluded that Fattah’s efforts to secure Vederman an
ambassadorship were merely attempts to “express[]
support,” rather than to “exert pressure . . . or provide
advice,” but nonetheless erroneously concluded that those
expressions of support were official acts. McDonnell, 136
S. Ct. at 2371.
84
any acts that McDonnell now makes clear were unofficial.
Yet the redacted indictment, jury instructions, and the fact
that the Government presented its case under a “pattern”
theory at trial compel us to reject the Government’s
argument.
The very first sentence under Count 23 of the
redacted indictment incorporates all three categories of
“Overt Acts” contained within paragraphs “58 through 95
of Count One.” 14 All three of these categories fall under a
general heading within the redacted indictment titled “The
Bribery and Fraud Scheme [redacted].” JA494. The jury
had before it instructions for Count 23 which referred to
“the alleged bribery scheme involving an $18,000
payment,” JA448 (emphasis added), and the redacted
indictment which referred to “a scheme to commit
bribery,” JA531 (emphasis added). The parallel language
could well lead a rational jury to conclude that the relevant
“scheme” included all three categories of acts listed under
the general heading: “The Bribery and Fraud Scheme
[redacted].” JA494 (emphasis added).
14
JA531. Paragraphs 58 through 95 of Count 1 refer to the
three categories of allegedly official acts discussed above:
(1) “The Pursuit of an Ambassadorship,” (2) “The Pursuit
of Another Executive Branch Position,” and (3) the
“Hiring of the Lobbyist’s Girlfriend to the Congressional
Staff.” JA494–95.
85
Like the redacted indictment and jury instructions,
the Government’s trial arguments referred to patterns and
a course of conduct, and stressed that the jury need not
connect specific payments to particular official acts. In its
closing argument to the jury, the Government stated that
the alleged “scheme took place over a period of several
years. Over and over again you’re going to see the same
pattern.” JA5383 (emphasis added). Then, in its rebuttal
argument, the Government went out of its way to
explicitly distinguish its “pattern” theory from an
alternative theory that would have directly connected
individual payments to individual acts. As the prosecutor
argued to the jury:
Ms. Recker appears to argue that each thing
of value must coincide with some specific
official act, but that is not the law and that is
not what Judge Bartle is going to instruct you.
Instead what he will tell you is that the
government is not required to prove that
Vederman intended to influence Fattah to
perform a set number of official acts in return
for things of value so long as the evidence
shows a course of conduct of giving things of
value, things of value to Fattah in exchange
for a pattern of official acts favorable to
Vederman. In other words a stream of
benefits. These for those, not this for that.
86
JA5715–16 (emphases added). In closing to the jury, the
Government made several other references to this
“pattern” theory, 15 and the District Court referred to this
“pattern” theory in its instructions to the jury. As Judge
Bartle instructed:
[I]t is not necessary for the government to
prove that a defendant intended to induce a
public official to perform a number of official
acts in return for things of value.
So as long as the evidence shows a
course of conduct of giving things of value to
a public official in exchange for a pattern of
official acts favorable to the giver.
JA5833–34 (emphasis added). On appeal, the Government
changes course, asking us to assume that the jury ignored
these repeated references to a “pattern of official acts” and
15
See, e.g., JA5389 (“And the exchange of an official act
for a thing of value is called a bribe. There’s the pattern.
Fattah needs money, Vederman gets an official act.”); JA
5393 (“That’s why you see the pattern over and over again.
Fattah needs money, Vederman gets an official act.”);
JA5400 (“The same pattern we saw over and over again.
Fattah needs money, Vederman gets an official act.”);
JA5409 (“[Y]ou know that these were bribes because of
the pattern you saw over and over and over again. Fattah
needs money, Vederman gets an official act, that makes
these things a bribe.”).
87
instead considered the Zionts hiring and Vederman’s
$18,000 payment to Fattah as an isolated quid pro quo.
This is an invitation to speculate, and we decline to do so.16
The jury began its deliberations accompanied by a copy of
the redacted indictment which alleged a pattern of official
acts, consisting of any combination of three categories of
acts: pursuing an ambassadorship, arranging the Kirk
meeting, and hiring Zionts. In light of the erroneous
instructions, and because only one category clearly
16
Providing some support to the Government’s ultimately
unconvincing argument that the jury considered the Zionts
hiring and $18,000 payment in isolation, we note that the
redacted indictment does mention those two events side-
by-side in paragraph 78 of the indictment’s Part V. JA497
(“On January 13, 2012, VEDERMAN wired $18,000 to
FATTAH, and six days later, on January 19, 2012,
BOWSER emailed VEDERMAN’s girlfriend, A.Z.,
welcoming her as a new employee to FATTAH’s
Congressional Staff.”). But although paragraph 78
mentions the $18,000 wire transfer and the Zionts hiring
in the same breath, paragraph 78 does not instruct the jury
to connect these two events apart from the rest of the
evidence presented at trial. In light of the other instructions
and arguments indicating that the jury should not consider
the Zionts hiring in isolation, but instead should consider
the hiring as one part of a three-part scheme, paragraph 78
is not sufficient to avoid a reversal and remand on the
convictions of Fattah and Vederman as to Counts 16–18
and 22–23.
88
qualifies as an “official act,” the jury’s deliberations were
fraught with the potential for McDonnell error. We will
vacate the convictions of Fattah and Vederman as to
Counts 16, 17, 18, 22, and 23, and remand to the District
Court.
E. Vederman’s Sufficiency Challenge to Counts 16–18
and 22–23
Vederman argues that there is insufficient evidence
to support a conviction, even if a jury were properly
instructed under McDonnell. Specifically, Vederman
argues that there is insufficient evidence to convict him
and Fattah, after remand, on Counts 16–18 and 22–23
because “[a]t least seven of the eight alleged ‘official acts’
were, as a matter of law, not official at all.” Vederman Br.
35. As to the single act that Vederman implicitly concedes
to be an official act—the Zionts hiring—Vederman argues
that “[t]he only thing that even arguably associates” the
Zionts hiring with Vederman was its timing in relation to
Vederman’s sham purchase of the Fattahs’ Porsche. Id.
According to Vederman, “the undisputed chronology
precludes any inference that Vederman conferred this
benefit on his friend as an illegal bribe.” Id. (emphasis
omitted). Vederman is wrong. Sufficient evidence was
produced at trial to have allowed a properly-instructed jury
to convict Fattah and Vederman of Counts 16–18 and 22–
23.
To begin with, even if the Zionts hiring had been the
sole official act to survive this Court’s interpretation of
89
McDonnell, there would still be sufficient evidence to
convict Fattah and Vederman. Zionts did not receive
written notice of her official hiring until six days after the
sham Porsche purchase. Moreover, the jury would not be
restricted to considering the chronology of the sham
purchase alone. It would be free to consider Vederman’s
entire course of conduct. Under the general heading
“VEDERMAN’S Payments and Things of Value to
FATTAH,” the redacted indictment not only refers to the
$18,000 wire transaction from Vederman to Fattah as part
of the sham Porsche purchase, but also to Vederman’s
$3,000 payment for the college tuition of Simone Muller,
Fattah’s live-in au pair, as well as thousands of dollars in
payments made by Vederman for Chip Fattah’s college
tuition. JA496–97.
And the Zionts hiring is not the only act to survive
our application of McDonnell. As we explained, a jury
could find that Fattah’s efforts to secure Vederman an
ambassadorship—three emails, two letters, and a phone
call—were an impermissible attempt to “pressure or
advise” President Obama, Senator Casey, or both men.17
17
Although Fattah’s efforts to secure Vederman an
ambassadorship present a jury question that is not for us to
answer on appeal, we note that not one of these efforts
alone could qualify as an official act itself. See McDonnell,
136 S. Ct. at 2372 (“Setting up a meeting, talking to
another official, or organizing an event (or agreeing to do
so)—without more—does not fit that definition of ‘official
90
This means that a properly instructed jury on remand,
presented with evidence of Fattah’s efforts to secure an
ambassadorship for Vederman and evidence of the Zionts
hiring, could find more than a single official act.
F. Blue Guardians
In addition to the charges arising from his dealings
with Vederman, Fattah was charged in Count 3 with
act.’ ”). The relevant question for a jury to consider on
remand, then, is whether these actions constituted “a
‘decision or action’ on a different question or matter”—to
wit, the formal appointment of an ambassador. Id. at 2369
(emphasis omitted).
Even though the emails, letters, and phone call are
not, individually, official acts, it will be for a jury to decide
if Fattah’s efforts to secure an ambassadorship for
Vederman crossed the line from permissible “support” to
impermissible “pressure or advice.” While we express
doubt that some of Fattah’s efforts concerning the
ambassadorship are, when considered in isolation, enough
to cross that line, a properly instructed jury considering all
of the facts in context might nonetheless conclude that
other efforts—such as a hand-delivered letter to the
President of the United States—indeed crossed that line.
Further, a jury might find that in the aggregate, three
emails, two letters, and a phone call crossed the line and
therefore constituted a “decision or action” on the
identified matter of appointment.
91
participating in a scheme with Lindenfeld to funnel money
to a fraudulent nonprofit organization. In connection with
this scheme, Fattah was convicted of conspiring to commit
honest services fraud.
Fattah owed Lindenfeld nearly $100,000 for work
performed on Fattah’s 2007 mayoral campaign. In lieu of
repayment, Fattah suggested that Lindenfeld create an
entity, later named Blue Guardians, to which Fattah would
direct $15,000,000 in public funds by using his position as
a member of the House Committee on Appropriations.
Nothing in McDonnell requires us to upset Fattah’s
conviction on Count 3.
Step 1(A) of our McDonnell analysis requires the
Government to “identify a ‘question, matter, cause, suit,
proceeding or controversy.’ ” 136 S. Ct. at 2368. Here, the
“matter” is the appropriation of millions of dollars in
public funds. See Repak, 852 F.3d at 253–54 (holding the
awarding of redevelopment funds to be an official act). In
particular, it was Fattah’s promise to perform this official
act that was unlawful. As McDonnell makes clear:
[A] public official is not required to actually
make a decision or take an action on a
“question, matter, cause, suit, proceeding or
controversy”; it is enough that the official
agree to do so. The agreement need not be
explicit, and the public official need not
specify the means that he will use to perform
his end of the bargain.
92
136 S. Ct. at 2370–71 (internal citations omitted). That
Fattah took steps to actually carry out his promise (e.g., by
drafting and sending a formal appropriations request on
official congressional letterhead) is evidence of his illegal
promise. See id. at 2371.
Step 1(B) requires the Government to establish that
the “ ‘question, matter, cause, suit, proceeding or
controversy’ . . . ‘may at any time be pending’ or ‘may by
law be brought’ before a public official.” McDonnell, 136
S. Ct. at 2368. Appropriating public funds was not only a
matter that was pending before Fattah as a member of the
Appropriations Committee, it was also a matter that was
pending before the Chairman and Ranking Member of an
Appropriations Subcommittee to whom Fattah ultimately
sent a formal written request. See id. at 2369 (“[T]he
matter may be pending either before the public official
who is performing the official act, or before another public
official.”). Appropriating millions of dollars in response to
the Blue Guardians request is “focused and concrete,” and
“the kind of thing that can be put on an agenda, tracked for
progress, and then checked off as complete.” Id.
Given Fattah’s membership on the Appropriations
Committee, this was “something within the specific duties
of an official’s position—the function conferred by the
authority of his office.” Id. Even if we were to assume,
against all reason, that an appropriation is not “something
within the specific duties” of either Fattah or the Chairman
or Ranking Member of an Appropriations Subcommittee,
93
Fattah’s formal request for an appropriation was
something that Fattah had the authority to do. Like the
Executive Director in Repak, who lacked authority himself
to award redevelopment funds but could request such
funds from the Board, Fattah used his position as a
Congressman to formally request appropriations for the
Blue Guardians. 852 F.3d at 254 (“Repak had the power
to, and indeed did, make recommendations to the
[redevelopment authority.
Step 2 of McDonnell requires the Government to
“prove that the public official made a decision or took an
action ‘on’ that question, matter, cause, suit, proceeding,
or controversy, or agreed to do so.” 136 S. Ct. at 2368
(emphasis added). Here, Fattah agreed to request an
appropriation for a bogus purpose. Unlike Fattah’s letters,
emails, and phone call seeking an ambassadorship for
Vederman, there is no potential for the jury to have made
a mistake when it found Fattah’s Blue Guardians promise
unlawful.
Fattah argues that the Government presented “[n]o
evidence . . . that would have allowed [the jury] to
conclude that [he] made a decision or took an action, or
could have done so, on the question whether Blue
Guardians would receive a $15 million federal grant.”
Fattah Br. 46. This argument misses the point. It was
Fattah’s agreement to engage in the official act of formally
requesting the appropriation that was illegal. See
McDonnell, 136 S. Ct. at 2371.
94
Lindenfeld’s trial testimony provided sufficient
evidence of Fattah’s illegal agreement. JA1694–96, 1954.
Fattah’s letter provided additional evidence from which
the jury could have concluded that Fattah illegally agreed
to perform an official act. 18 In short, the agreement itself
was illegal, and the Government provided sufficient
evidence for the jury to conclude that the illegal agreement
took place.
The Government’s evidence in support of the Blue
Guardians scheme meets the requirements of McDonnell,
and the Count 3 verdict will stand.
V. Sufficiency of the Evidence for the RICO
Conspiracy Conviction
The jury found Fattah, Vederman, Brand, and
Nicholas guilty of the RICO conspiracy charged in Count
1 of the indictment, but acquitted Bowser. Vederman filed
a post-verdict motion, and the District Court overturned
his RICO conspiracy conviction.
18
Despite Fattah’s protestation to the contrary, there is
evidence that Fattah took steps to carry out his official act.
JA6432–33 (Letter from Congressman Fattah to House
Appropriations Subcommittee members “request[ing]
funding and support for the following projects and
programs of critical importance,” including $3,000,000
for “Blue Guardians”).
95
On appeal, Fattah, Brand, and Nicholas challenge
the sufficiency of the evidence supporting their RICO
conspiracy convictions. We “review[] the sufficiency of
the evidence in the light most favorable to the government
and must credit all available inferences in favor of the
government.” United States v. Riddick, 156 F.3d 505, 509
(3d Cir. 1998). If a rational juror could have found the
elements of the crime beyond a reasonable doubt, we must
sustain the verdict. United States v. Cartwright, 359 F.3d
281, 286 (3d Cir. 2004), abrogated on other grounds by
United States v. Caraballo-Rodriguez, 726 F.3d 418 (3d
Cir. 2013) (en banc).
The indictment charged a RICO conspiracy in
violation of 18 U.S.C. § 1962(d), which makes it
“unlawful for any person to conspire to violate” § 1962(c).
Section 1962(c) provides:
It shall be unlawful for any person . . .
associated with any enterprise engaged in, or
the activities of which affect, interstate . . .
commerce, to conduct or participate, directly
or indirectly, in the conduct of such
enterprise’s affairs through a pattern of
racketeering activity . . . .
18 U.S.C. § 1962(c).
In Salinas v. United States, 522 U.S. 52 (1997), the
defendant was convicted of a § 1962(d) RICO conspiracy,
but a jury acquitted him of the substantive RICO offense
96
under § 1962(c). Id. at 55. The Supreme Court rejected
Salinas’s contention that his conviction had to be set aside
because he had neither committed nor agreed to commit
the two predicate acts required for the § 1962(c) offense.
Id. at 66. The Court declared that liability for a RICO
conspiracy under § 1962(d), “unlike the general
conspiracy provision applicable to federal crimes,” does
not require proof of an overt act. Id. at 63. A conspiracy
may be found, the Court explained, “even if a conspirator
does not agree to commit or facilitate each and every part
of the substantive offense. The partners in the criminal
plan must agree to pursue the same criminal objective and
may divide up the work, yet each is responsible for the acts
of each other.” Id. at 63–64 (citations omitted). This means
that, if a plan “calls for some conspirators to perpetrate the
crime and others to provide support, the supporters are as
guilty as the perpetrators.” Id. at 64. Thus, opting into and
participating in a conspiracy may result in criminal
liability for the acts of one’s co-conspirators. Smith v.
Berg, 247 F.3d 532, 537 (3d Cir. 2001).
Accordingly, liability for a RICO conspiracy may
be found where the conspirator intended to “further an
endeavor which, if completed, would satisfy all of the
elements of a substantive criminal offense, but it suffices
that he adopt the goal of furthering or facilitating the
criminal endeavor.” Salinas, 522 U.S. at 65. Because the
substantive criminal offense here was conducting a
§ 1962(c) enterprise, the government had to prove:
97
(1) that two or more persons agreed to
conduct or to participate, directly or
indirectly, in the conduct of an enterprise’s
affairs through a pattern of racketeering
activity; (2) that the defendant was a party to
or member of that agreement; and (3) that the
defendant joined the agreement or conspiracy
knowing of its objective to conduct or
participate, directly or indirectly, in the
conduct of an enterprise’s affairs through a
pattern of racketeering activity.
United States v. John-Baptiste, 747 F.3d 186, 207 (3d Cir.
2014).
In United States v. Turkette, 452 U.S. 576 (1981),
the Supreme Court instructed that an enterprise is a “group
of persons associated together for a common purpose of
engaging in a course of conduct.” Id. at 583. The
government can prove an enterprise “by evidence of an
ongoing organization, formal or informal, and by evidence
that the various associates function as a continuing unit.”
Id. In Boyle v. United States, 556 U.S. 938 (2009), the
Supreme Court established that an “association-in-fact
enterprise must have at least three structural features: a
purpose, relationships among those associated with the
enterprise, and longevity sufficient to permit these
associates to pursue the enterprise’s purpose.” Id. at 946.
The structure necessary for a § 1962(c) enterprise is not
complex. Boyle explained that an enterprise
98
need not have a hierarchical structure or a
“chain of command”; decisions may be made
on an ad hoc basis and by any number of
methods—by majority vote, consensus, a
show of strength, etc. Members of the group
need not have fixed roles; different members
may perform different roles at different
times. The group need not have a name,
regular meetings, dues, [or] established rules
and regulations . . . .While the group must
function as a continuing unit and remain in
existence long enough to pursue a course of
conduct, nothing in RICO exempts an
enterprise whose associates engage in spurts
of activity punctuated by periods of
quiescence.
Id. at 948.
Another element of a substantive § 1962(c) RICO
enterprise is that the enterprise must conduct its affairs
through a pattern of racketeering activity. Section 1961
defines racketeering activity to include various criminal
offenses, including wire fraud, 18 U.S.C. § 1344, and
obstruction of justice, 18 U.S.C. § 1511. See 18 U.S.C.
§ 1961(1). A pattern of such activity “requires at least two
acts of racketeering activity.” Id. § 1961(5). The
racketeering predicates may establish a pattern if they
“related and . . . amounted to, or threatened the likelihood
99
of, continued criminal activity.” H.J. Inc. v. Nw. Bell Tel.
Co., 492 U.S. 229, 237 (1989).
Here, the District Court denied the post-trial
sufficiency arguments raised by Fattah, Brand, and
Nicholas. It reasoned:
For a RICO conspiracy to exist, the
conspirators must agree to participate in an
enterprise with a unity of purpose as well as
relationships among those involved. The
evidence demonstrates that an agreement
among Fattah, Brand, Nicholas, Lindenfeld,
and Naylor existed for the overall purpose of
maintaining and enhancing Fattah as a
political figure and of preventing his standing
from being weakened by the failure to be able
to pay or write down his campaign debts.
These five persons agreed to work together as
a continuing unit, albeit with different roles.
The Government established that
Fattah, Brand, and Nicholas conspired along
with Naylor and Lindenfeld to conceal and
repay the 2007 illegal $1,000,000 loan to the
Fattah for Mayor campaign.
JA128–29. The District Court further determined that
[w]hile each member may not have been
involved in every aspect of the enterprise, its
activities were sufficiently structured and
100
coordinated to achieve the purpose of
maintaining and enhancing Fattah’s political
standing and of preventing him from being
weakened politically because of his
campaign debts.
A RICO conspiracy also requires an
agreement to participate in an enterprise with
longevity sufficient to pursue its purpose.
This was established. In May 2007 the illegal
loan was obtained and continued through its
repayment in January 2008 and into at least
2014 when the last campaign report reducing
a fake campaign debt to Naylor’s consulting
firm was filed by Fattah.
JA131.
The defendants argue that the evidence is
insufficient to show either an enterprise for purposes of
§ 1962(c) or an agreement as required for a § 1962(d)
conspiracy. We disagree, and conclude that the District
Court’s analysis is on the mark.
We begin by considering whether there was an
agreement. The evidence showed that Fattah knew each
member involved in the scheme to conceal the unlawful
campaign loan. When Lindenfeld learned of the $1 million
loan, he informed Fattah that it exceeded campaign
finance limits. In short, the transaction was unlawful, and
the two knew it. The transaction nonetheless went
forward, disguised as a loan, with Lindenfeld executing
101
the promissory note as Strategies’ officer and obligating
Strategies to repay Lord $1 million. The concealment
efforts continued as Lindenfeld funneled a substantial
portion of the loan proceeds to Naylor for get-out-the-vote
efforts. After the losing campaign, Lindenfeld spoke with
Fattah and Naylor about accounting for the funds that had
been spent. They decided not to include the amounts in the
FFM campaign reports. Fattah instructed Naylor to
prepare a fictitious invoice, and Naylor complied. The
FFM campaign reports filed from 2008 to 2014 disclosed
nothing about the unlawful $1 million loan. Instead, they
falsely showed that Naylor’s consulting firm made yearly
in-kind contributions of $20,000 in debt forgiveness, when
in reality there was no debt to forgive.
As Lindenfeld fretted over repaying the $600,000
balance of the Lord loan, Naylor assured him that Fattah
had promised to take care of the repayment. And the
evidence supports an inference that Fattah recruited both
Nicholas and Brand in doing so. As EAA’s director,
Nicholas could fund the repayment. Brand, through his
company, Solutions, acted as the middleman: he received
the payment from EAA pursuant to a fictitious contract,
and then forwarded the balance due to Strategies pursuant
to yet another fictitious contract. Nicholas and Brand
continued in the spring and summer of 2008 to hide the
fictitious agreement and the $600,000 payment to
Lindenfeld to satisfy the Lord loan.
102
In short, this evidence shows that Fattah,
Lindenfeld, Naylor, Brand, and Nicholas all agreed to
participate in Fattah’s plan to conceal the unlawful
campaign loan to maintain his political stature. Nicholas
and Brand claim that they had no knowledge of the false
campaign reporting aspect of the plan. But as Salinas
instructs, conspirators need not “agree to commit or
facilitate each and every part of the” conspiracy. 522 U.S.
at 63. Rather, they “must agree to pursue the same criminal
objective and may divide up the work, yet each [be]
responsible for the acts of each other.” Id. at 63–64. Thus,
a conspirator may agree to “facilitate only some of the acts
leading to the substantive offense” yet still be criminally
liable. Id. at 65.
The evidence showed that a substantial amount of
money was needed to repay Lord, and that the source of
the repayment was EAA, a non-profit organization whose
funds could be spent only for purposes consistent with the
terms of the grants it received. It also showed that Nicholas
was presented with a sham contract to legitimize the
EAA–Solutions transaction. We conclude that the
evidence is sufficient to support an inference that Nicholas
knew at the start that the plan was unlawful. Yet she still
agreed to provide the requisite funds and to play a role in
concealing the illegal campaign loan so that Fattah could
maintain his political stature.
As to Brand, even if he did not know that false
campaign reports were being filed, the evidence is
103
sufficient to show he played a key role in the enterprise.
From the outset, Brand worked to disguise the repayment
of the Lord loan as the consideration in a sham contract
between EAA and Solutions. He then arranged for the
transfer of funds to Strategies in satisfaction of a
contractual term in another purported business agreement
between Solutions and Strategies. The evidence reveals
that Brand was the point man in the effort to meet the
January 31, 2008 deadline to repay the Lord loan, and it
amply shows that Brand also agreed to participate in the
plan to hide the illegal campaign loan and its repayment to
benefit Fattah politically.
Fattah, Brand, and Nicholas attack their RICO
conspiracy convictions on another front. They argue that
those verdicts should be set aside because the evidence
fails to show that the various schemes alleged in the
indictment as part of the RICO conspiracy are connected.
The RICO count, they assert, charges a hub-and-spoke
conspiracy that is unconnected by a rim. In their view,
Fattah is the hub, and the spokes consist of a series of
independent schemes: the Vederman bribery scheme, the
payment of the outstanding tuition debt of Fattah’s son
Chip, the Blue Guardians plan, and the repayment of the
illegal Lord loan to maintain Fattah’s political stature.
They argue that, without a unifying rim, their actions
cannot constitute an enterprise. Again, we disagree.
In In re Insurance Brokerage Antitrust Litigation,
618 F.3d 300 (3d Cir. 2010), we concluded, in analyzing
104
one of plaintiffs’ RICO claims, that the alleged hub-and-
spoke enterprise—comprised of broker hubs and insurer
spokes—could not withstand a motion to dismiss because
it did not have a unifying rim. Id. at 374. We explained
that the allegations did “not plausibly imply concerted
action—as opposed to merely parallel conduct—by the
insurers, and therefore cannot provide a ‘rim’ enclosing
the ‘spokes’ of these alleged ‘hub-and-spoke’
enterprises.” Id. Thus, the allegations did not “adequately
plead an association-in-fact enterprise” because the hub-
and-spoke conspiracy failed to “function as a unit.” Id.That is not the case here. The evidence showed that
Fattah, Brand, and Nicholas agreed to conceal the illegal
Lord loan. Each acted for the common purpose of
furthering Fattah’s political interests. In short, they
engaged in concerted activity and functioned as a unit. The
jury convicted Fattah, Brand, and Nicholas of the RICO
conspiracy based on the racketeering activity of wire fraud
and obstruction of justice to conceal the unlawful
transaction. Because the evidence shows that Fattah,
Lindenfeld, Naylor, Brand, and Nicholas agreed to protect
Fattah’s political status by acting to maintain the secrecy
of the unlawful Lord loan, the alleged lack of a unifying
“rim” is not fatal to this RICO enterprise. What matters in
analyzing the structure of this enterprise is that it
functioned as a unit. Boyle, 556 U.S. at 945; In re Ins.
Brokerage Antitrust Litig., 618 F.3d at 374. That “basic
requirement” was met. Id.105
We turn next to the contention that the evidence
fails to establish other components of an enterprise. We
conclude that much of the evidence supporting the
existence of an agreement also shows that there was an
association-in-fact enterprise.
Boyle made clear that an association-in-fact
enterprise must have “a purpose, relationships among
those associated with the enterprise, and longevity
sufficient to permit these associates to pursue the
enterprise’s purpose.” 556 U.S. at 946. The purpose, as we
have repeatedly observed, was to maintain and preserve
Fattah’s political stature by concealing the illegal loan and
its repayment. Though informal, there were relationships
among those associated with the enterprise. Fattah was at
the center of this association and he directed its activity.
He knew each of the association’s members, and the
members knew each other (except, perhaps, for Nicholas,
who may not have known Lindenfeld).19
19
Nicholas’s lack of familiarity with Lindenfeld does not
undermine her membership in this association-in-fact
enterprise. We have previously explained that “[i]t is well-
established that one conspirator need not know the
identities of all his co-conspirators, nor be aware of all the
details of the conspiracy in order to be found to have
agreed to participate in it.” United States v. Riccobene, 709
F.2d 214, 225 (3d Cir. 1983), abrogated on other grounds
by Griffin v. United States, 502 U.S. 46 (1991).
106
The Government also adduced sufficient proof of
the longevity component required for an enterprise. The
scheme began in mid-2007, when Lord made the
campaign loan, directing the proceeds of the loan to
Strategies. From the outset, Fattah, Lindenfeld, and Naylor
all knew they needed to conceal this illegal transaction.
They began by fabricating an explanation for the source of
the funds they spent on election day. SLA created a fake
invoice for the campaign, showing a fictitious debt that
Naylor could later forgive by fictitious in-kind
contributions existing only on Fattah’s campaign finance
reports.
The effort to disguise the Lord loan was not limited
to filing false campaign reports. Nicholas and Brand, who
joined the conspiracy a few months later than the other
members, understood that they too had to make the
fraudulent $600,000 payment by EAA to Solutions appear
legitimate. Nicholas and Brand tried to disguise the sham
contract as an ordinary transaction (even though it called
for a six-figure upfront payment simply to support
Solutions’ various projects), and they succeeded in
keeping it out of the DOJ auditors’ view until August
2008. The ruse continued as Solutions funneled the
$600,000 payment to Strategies under the guise of another
sham contract (which also required an upfront six-figure
payment). The scheme then continued as Fattah submitted
false FFM campaign reports from 2008 through 2014.
107
Finally, we consider whether the enterprise
conducted its affairs through a pattern of racketeering
activity, as required for a § 1962(c) enterprise. Wire fraud
and obstruction of justice may constitute “racketeering
activity” under § 1961(1). As the Supreme Court
instructed in H.J. Inc., the “multiple predicates within a
single scheme” must be related and “amount[] to, or
threaten[] the likelihood of, continued criminal activity.”
492 U.S. at 237. Here, the amount of the illegal loan to be
concealed was substantial. The enterprise needed to write
off the fictitious debt to Naylor’s consulting firm, and it
was urgent that both the EAA–Solutions contract and the
Solutions–Strategies contract be legitimized. We conclude
the evidence was sufficient to establish that this enterprise
conducted its affairs through a pattern of racketeering
activity and that the predicate acts of wire fraud and
obstruction of justice were related. The racketeering
activity furthered the goals of maintaining the secrecy of
this $1 million illicit campaign loan and of preserving
Fattah’s political stature.
Nicholas contends that the evidence fails to
establish a pattern of racketeering activity because the
actions to which she agreed did not “extend[] over a
substantial period of time” as H.J. Inc. requires. 492 U.S.
at 242. That case indeed instructs that the continuity
requirement of a pattern is a “temporal concept,” and that
“[p]redicate acts extending over a few weeks or months”
do not satisfy the continuity concept. Id. But the Supreme
Court explained that continuity may also be established by
108
showing that there is a “threat of continued racketeering
activity.” Id. Here, the course of fraudulent conduct
undertaken to secure and to conceal the $1 million Lord
loan consisted of the creation of sham debts, fictitious
contracts, and false accounting entries over the course of
about a year. But because Fattah needed to appear able to
retire his campaign debt, the enterprise needed to continue
filing false campaign reports for several years, allowing
the annual $20,000 in-kind debt forgiveness contributions
to appear to satisfy Naylor’s fake $193,000 invoice. That
evidence was sufficient to establish the requisite threat of
continued criminal activity. See H.J. Inc., 492 U.S. at 242–
43.
We conclude that the Government met its burden in
proving that Fattah, Brand, and Nicholas 20 engaged in a
RICO conspiracy in violation of § 1962(d).
20
Nicholas also asserts, in passing, that that her conviction
under § 1962(d) should be set aside because that statutory
provision is unconstitutionally vague as applied to her.
According to Nicholas, a person of ordinary intelligence
would not know that her actions constituted an agreement
to participate in a RICO enterprise. See United States v.
Pungitore, 910 F.2d 1084, 1104–05 (3d Cir. 1990). To the
contrary, a person of ordinary intelligence, who had been
employed by a prominent politician and then became the
CEO of a nonprofit organization which that politician had
founded (and, to some extent, continued to direct), would
109
VI. Variance from the Indictment and Sufficiency of
the Evidence for Count 2
Brand and Nicholas challenge their convictions for
conspiracy to commit wire fraud by arguing that the
Government’s evidence at trial impermissibly varied from
the indictment. Nicholas also challenges the sufficiency of
the evidence to support her conviction for conspiracy to
commit wire fraud. We address these contentions
together. 21
Count 2 of the indictment alleged a single
conspiracy. JA277–79. Brand and Nicholas assert that the
Government’s evidence at trial did not support the
existence of a single conspiracy but instead showed two
independent conspiracies, only one of which involved the
two of them. According to Brand and Nicholas, the only
conspiracy with which they were involved ended more
than five years before the Government charged them. That
would mean that all their conduct falls outside the five-
year limitations period for wire fraud conspiracy under 18
U.S.C. § 3282.
realize that agreeing to participate with others in hiding an
unlawful campaign loan of $1 million could constitute an
unlawful RICO conspiracy.
21
In her briefing, Nicholas discusses variance in far less
detail than Brand, so we refer primarily to Brand’s
arguments. See Nicholas Br. 54–56. Her variance
arguments fail for the same reasons that Brand’s fail.
110
“A conviction must be vacated when (1) there is a
variance between the indictment and the proof presented
at trial and (2) the variance prejudices a substantial right
of the defendant.” Kemp, 500 F.3d at 287 (quoting United
States v. Kelly, 892 F.2d 255, 258 (3d Cir. 1989)). We see
no variance, and will affirm the District Court.
A variance exists “if the indictment charges a single
conspiracy while the evidence presented at trial proves
only the existence of multiple conspiracies.” Id. “We must
determine ‘whether there was sufficient evidence from
which the jury could have concluded that the government
proved the single conspiracy alleged in the indictment.’ ”
Id. (quoting Kelly, 892 F.2d at 258). Viewing the record in
the light most favorable to the Government, we consider
three factors: (1) “whether there was a common goal
among the conspirators”; (2) “whether the agreement
contemplated bringing to pass a continuous result that will
not continue without the continuous cooperation of the
conspirators”; and (3) “the extent to which the participants
overlap in the various dealings.” Id. (quoting Kelly, 892
F.2d at 259).
Brand argues that the Government failed to
establish a common goal among the conspirators. To
determine whether the conspirators shared a common
goal, “we look to the underlying purpose of the alleged
criminal activity” in a fairly broad sense. United States v.
Rigas, 605 F.3d 194, 214 (3d Cir. 2010) (en banc). In
Rigas, we described the common goal of the defendants as
111
“enriching [themselves] through the plunder of [their
corporate employer],” id., and we have similarly
articulated the common goal in fairly general terms
elsewhere. See United States v. Greenidge, 495 F.3d 85,
93 (3d Cir. 2007) (“There was certainly evidence of a
common goal among these co-conspirators: to make
money by depositing stolen and altered corporate checks
into business accounts.”); Kelly, 892 F.2d at 259 (“[T]he
common goal of all the participants was simply to make
money selling ‘speed.’ ”). Importantly, a common goal
may exist even when “conspirators individually or in
groups perform different tasks in pursuing the common
goal,” and a single conspiracy may “attract[] different
members at different times” or “involve[] different sub-
groups committing acts in furtherance of the overall plan.”
United States v. Boyd, 595 F.2d 120, 123 (3d Cir. 1978).
Here, the indictment described the purpose of the
unified conspiracy in Count 2 at length:
It was a purpose of the conspiracy to obtain
an illegal campaign loan and to fraudulently
repay that loan with hundreds of thousands of
dollars of misappropriated charitable funds
from Sallie Mae and federal grant funds from
NASA which were intended for educational
purposes.
. . . . It was further a purpose of the
conspiracy to present FATTAH to the public
as a perennially viable candidate for public
112
office who honored his obligations to his
creditors and was able to retire his publicly
reported campaign debts.
. . . . It was further a purpose of the
conspiracy to promote FATTAH’s political
and financial goals through deception by
concealing and protecting the conspirators’
activities from detection and prosecution by
law enforcement officials and the federal
judiciary, as well as from exposure by the
news media, through means that included
obstruction of justice and the falsification of
documents, including Campaign Finance
Reports, false invoices, contracts, and other
documents and records.
JA277–78, ¶¶ 3–5.
Brand characterizes the evidence at trial as
establishing two distinct conspiracies. The first he labels
the “diversion of funds scheme,” covering the
misappropriation of funds by Nicholas, Brand,
Lindenfeld, and Fattah to repay the Lord loan. Brand Br.
34. Brand calls the second conspiracy the “CFR scheme,”
in which Fattah and Naylor filed the false campaign
finance reports showing Naylor gradually forgiving a non-
existent debt. Id.Brand argues that the only goal of the CFR scheme
was to cover up how the funds from the illegal campaign
113
loan were spent, a goal he distinguishes from that of the
diversion of funds scheme, which he characterizes as a
plan to cover up the repayment of the loan with stolen
funds. He also argues that the evidence does not establish
he was involved in, or even aware of, the false campaign
finance reports filed by Fattah. In Brand’s view, that
necessarily means the evidence showed two separate
conspiracies.
In considering these arguments, we begin by noting
that one conspiracy can involve multiple subsidiary
schemes. Rigas, 605 F.3d at 214. It is true that the false
campaign finance reports, in the narrowest sense, had the
specific purpose of covering up how the illegal loan funds
were used during the election. But the false campaign
finance reports were also filed in furtherance of a broader
goal shared by the conspirators involved in repayment of
the Lord loan. They sought to promote Fattah’s political
and financial goals by preserving his image as a viable
candidate and making him appear able to repay or
otherwise service his campaign debts without resorting to
illegal means in doing so. The two subsidiary schemes
worked in concert in furtherance of this overarching goal,
and both were directed at covering up how the loan was
truly repaid. The “diversion of funds scheme” hid the
illegal (but real) loan repayment through the use of fake
contracts; the “CFR scheme” showed the seemingly legal
(but fake) loan forgiveness installments through the
creation of fake invoices and campaign finance reports.
The existence of two concealment schemes acting in
114
concert does not undermine the unity of the conspiracy of
which they were both a part. We have no difficulty
concluding that the false campaign finance reports and the
concealed use of stolen funds to repay the Lord loan
operated together in furtherance of a common goal.
As for Brand’s argument that he was unaware of the
false campaign finance reports and therefore could not be
a part of any conspiracy involving them, it is well-settled
that “each member of the charged conspiracy is liable for
the substantive crimes his coconspirators commit in
furtherance of the conspiracy even if he neither
participates in his co-conspirators’ crimes nor has any
knowledge of them.” United States v. Bailey, 840 F.3d 99,
112 (3d Cir. 2016) (citing Pinkerton v. United States, 328
U.S. 640 (1946)). The exceptions to that rule allow a
defendant to escape liability for a co-conspirator’s crime
if: (1) “the substantive offense committed by one of the
conspirators was not in fact done in furtherance of the
conspiracy,” (2) “the substantive offense committed by
one of the conspirators ‘did not fall within the scope of the
unlawful project,’ ” or (3) “the substantive offense
committed by one of the conspirators ‘could not be
reasonably foreseen as a necessary or natural consequence
of the unlawful agreement.’ ” Id. (quoting Pinkerton, 328
U.S. at 647–48). There was, as we have concluded, a unity
of purpose between the co-conspirators to further Fattah’s
political and financial goals by secretly obtaining and
repaying an illegal campaign loan with stolen funds. The
filing of false campaign reports does not fit within any of
115
the recognized exceptions to co-conspirator liability, as it
was in furtherance of the conspiracy’s shared goal, within
the scope of the agreement to conceal the loan, and
foreseeable to Brand and Nicholas.
Neither Brand nor Nicholas briefed the other two
factors we consider when determining whether the
evidence impermissibly varied from the evidence,
“whether the agreement contemplated bringing to pass a
continuous result that will not continue without the
continuous cooperation of the conspirators,” and “the
extent to which the participants overlap in the various
dealings.” Kemp, 500 F.3d at 287 (quoting Kelly, 892 F.2d
at 258). The unified goal of promoting Fattah’s political
career and maintaining secrecy surrounding the illegal
loan and the misappropriated funds used to repay it
required the continuous cooperation of the conspirators.
Indeed, the efforts of several of them overlapped in every
aspect of the scheme. And Lindenfeld and Fattah were, at
a minimum, involved in some way in nearly every aspect
of the origination of the loan, the false campaign finance
reports, and the use of misappropriated funds to repay the
loan. For his part, Naylor was involved in the use of the
funds, the false campaign finance reports, and to a lesser
extent, the repayment of the loan.
Brand (as part of his variance argument) and
Nicholas (as part of her sufficiency argument) argue that
the Government did not prove they agreed to conceal their
actions, and thus the false campaign reports would not be
116
sufficient to extend the duration of the conspiracy so that
it fell within the statute of limitations. Acts of
concealment, such as the false campaign reports, are not
automatically “in furtherance” of a conspiracy. We must
determine whether there was “an express original
agreement among the conspirators to continue to act in
concert in order to cover up, for their own self-protection,
traces of the crime after its commission,” as opposed to “a
conspiracy to conceal . . . being implied from elements
which will be present in virtually every conspiracy case,
that is, secrecy plus overt acts of concealment.”
Grunewald v. United States, 353 U.S. 391, 404 (1957). If
the indictment “specifically alleges a continuing
conspiracy” to conceal the crime after the completion of
the wire fraud, and such a conspiracy can be proven, the
statute of limitations does not begin to run until the last
overt act of concealment. United States v. Moses, 148 F.3d
277, 282 (3d Cir. 1998).
Here, the evidence shows that the conspirators
expressly agreed to conceal the loan and its repayment. As
an initial matter, Brand’s only role in the conspiracy was
to cover up the use of stolen funds by (1) serving as an
intermediary between Nicholas and Lindenfeld; and
(2) agreeing to create false documentation (the contracts)
with both EAA and Strategies for the sole purpose of
disguising the payments and covering up the wire fraud
conspiracy. Nicholas could simply have paid Lindenfeld
herself (or paid Lord) if she and Brand had not agreed to
conceal the crime from the start. Additionally, and as
117
Brand acknowledges, the false campaign finance reports
began before the loan was repaid, proving that
concealment of the crime was contemplated and begun as
a direct purpose of the conspiracy before Brand and
Nicholas became involved in the repayment. Nicholas too
agreed to conceal the repayment, as she implicitly
acknowledged in her emails with Brand and Fattah. GSA2.
Finally, when Lindenfeld briefly strayed from the
conspiracy’s commitment to secrecy by mentioning the
repayment in front of others who did not know of the
scheme, Brand became “angry,” “took [Lindenfeld] out in
the hallway,” and chastised him, saying that “[Lindenfeld]
couldn’t say that sort of []thing” in front of other people.
JA1670–71. We conclude that the evidence is consistent
with the allegations in the indictment, which charge a
single conspiracy consisting of an original agreement to
conceal the illegal loan and its subsequent illegal
repayment to further Fattah’s political career.
Nicholas makes several arguments in passing. She
suggests that the District Court upheld the conviction after
trial “on a theory not submitted to the jury.” Nicholas Br.
51. This argument is, essentially, that the indictment and
the District Court’s post-trial ruling described the
conspiracy one way, but that the jury charge described the
conspiracy differently. Nicholas argues that the jury was
presented with the theory that the sole purpose of the false
campaign reports under Count 2 was to “conceal[] the
alleged scheme to defraud,” JA5849, rather than to support
118
Fattah’s political career, as the District Court described the
purpose after trial, see JA74.
Nicholas ignores that part of the jury charge which
instructed that Count 2 required a finding “[t]hat two or
more persons agreed to commit wire fraud as charged in
the indictment.” JA5845 (emphasis added). The jury had
access to the indictment, and as Nicholas points out,
Nicholas Br. 45–46, the indictment outlines the offense in
the same way the District Court later described it in its
post-trial ruling. The District Court consistently described
the count, and we see no reversible error.
Nicholas also argues that the conspiracy charged in
Count 2 has an objective—“to ‘present Fattah’ as
‘perennially viable’ ”—and that such an objective is not
illegal. Nicholas Br. 53. But, of course, the jury was not
instructed that it was illegal to be a Fattah supporter, or
even to work on his campaign. The jury was charged
specifically on the crime of wire fraud.
We conclude that there was no impermissible
variance between the indictment and the Government’s
evidence at trial, and that there was sufficient evidence to
support the convictions. We will affirm the convictions of
Brand and Nicholas for conspiracy to commit wire fraud
under Count 2.
119
VII. The District Court’s Instruction to the Jury on
the Meaning of Intent
Nicholas contends that the District Court
improperly instructed the jury by using the disjunctive
rather than the conjunctive at one point in its definition of
intent. When providing its final charge to the jury, the
District Court explained:
Certain of the offenses charged in the
indictment require that the government prove
that the charged defendant acted intentionally
or with intent. This means that the
government must prove either that (1), it was
the defendant’s conscious desire or purpose
to act in a certain way or to cause a certain
result; or (2), the defendant knew that he or
she was acting in that way or it would be
practically certain to cause that result.
JA5787 (emphasis added). According to Nicholas, an
accurate definition of intent required that the final “or” be
an “and.” Nicholas argues that this was an error so
grievous as to “effectively eliminate[] the intent element
from each offense of conviction.” 22 Nicholas Br. 26.
22
The Comment to Third Circuit Model Criminal Jury
Instruction 5.03 makes clear that the definition of intent
encapsulates both “specific intent” (acting “purposely” or
with “conscious object”) and “general intent” (acting
120
Our review of whether a jury instruction stated the
proper legal standard is plenary. United States v. Petersen,
622 F.3d 196, 207 n.7 (3d Cir. 2010). At trial, Nicholas
failed to object to this portion of the jury charge.
Accordingly, our review must be for plain error. See
United States v. Flores-Mejia, 759 F.3d 253, 258 (3d Cir.
2014) (en banc).
To prevail on plain error review, Nicholas must
establish that there was an error, that it was plain (i.e., clear
under current law), and that it affected her substantial
rights (i.e., whether there is a reasonable likelihood that
the jury applied the challenged instruction in an
impermissible manner). United States v. Olano, 507 U.S.
“knowingly” or “with awareness”). Although Nicholas
describes the alleged error as “essentially eliminating” the
element of intent, we think Nicholas’s argument is better
understood as a claim that the instruction given could have
permitted a jury to conclude that she acted with only
general intent (that she was aware of what she was doing),
when her crimes require specific intent (that she had an
illegal purpose). As her brief states, “[p]lainly she
‘knowingly’ wrote checks from EAA to [Solutions] and
made record entries about them; the question was whether
she intended to defraud EAA and NASA, or to obstruct
justice, by doing so.” Nicholas Br. 24. We cannot agree
with her characterization that the instruction resulted in the
“effective omission” of the intent element from the jury
instructions.
121
725, 733–34 (1993); United States v. Dobson, 419 F.3d
231, 239–40 (3d Cir. 2005). If these requirements are met,
we may then exercise our discretion to address the error,
but only if we conclude that the error seriously affected the
fairness, integrity, or public reputation of the judicial
proceeding. United States v. Andrews, 681 F.3d 509, 517
(3d Cir. 2012) (quoting Johnson v. United States, 520 U.S.
461, 467 (1997)). A failure to instruct the jury on a
necessary element of an offense ordinarily constitutes
plain error, unless the instructions as a whole otherwise
make clear to the jury all the necessary elements of the
offense. United States v. Stimler, 864 F.3d 253, 270 (3d
Cir. 2017).
Nicholas acknowledges, as she must, that the
instruction given was a verbatim recitation of Instruction
5.03 of the Third Circuit’s Model Criminal Jury
Instructions. She nonetheless contends that our Model
Instruction is erroneous. Even if we were to accept
Nicholas’s contention that the instruction is incorrect, a
proposition we consider as highly doubtful, see Petersen,
622 F.3d at 208 (“We have a hard time concluding that the
use of our own model jury instruction can constitute error
. . . .”), we conclude that, considering the instructions as a
whole, the District Court clearly and specifically
instructed the jury on the intent element as it applied to
each of Nicholas’s charged crimes.
The disputed intent instruction was given at the
beginning of the final charge, explaining the general
122
meaning of the intent applicable to “[c]ertain of the
offenses charged.”23 JA5787. The District Court went on
to instruct the jury in specific detail on the elements of
each of the crimes of which Nicholas was accused,
23
The introductory definition did not end with the
language Nicholas cites. The District Court elaborated that
acting in good faith is a complete defense to the charges:
The offenses charged in the indictment
require proof that the charged defendants
acted with criminal intent. If you find that a
defendant acted in good faith that would be a
complete defense to such a charge, because
good faith on the part of the defendant would
be inconsistent with his or her acting
knowingly, willfully, corruptly, or with intent
to defraud or intent to impede, obstruct, or
wrongfully influence.
JA5788–89 (emphasis added). This instruction
undermines Nicholas’s claim that the jury could have
reasonably concluded that she “ ‘knowingly’ wrote
checks” but did not “intend[] to defraud . . . or to obstruct
justice[] by doing so,” Nicholas Br. 24, as this instruction
leaves little room for doubt that good faith is at odds with
“criminal intent.”
123
explaining also the intent element of each. 24 See JA5791
(describing the third element of the RICO conspiracy
charge as: “the particular defendant and at least one other
alleged conspirator shared a unity of purpose and the intent
to achieve the objective of conducting or participating in
the conduct of an enterprise’s affairs through a pattern of
racketeering activity”); JA5823 (regarding wire fraud,
instructing that the government must prove “[t]hat the
defendant under consideration acted with the intent to
defraud”); JA5838–39 (regarding obstruction of justice,
instructing that the defendant must have acted “with the
intent to impair the record, document, or object’s integrity
or availability for use in an official proceeding,” and must
have acted corruptly “with the purpose of wrongfully
impeding the due administration of justice”); JA5860
(explaining that falsification of records requires that “the
defendant under consideration acted with the intent to
impede, obstruct or influence the investigation or proper
administration of a matter”). These instructions are
consistent with both our Model Jury Instructions and our
case law concerning the elements of these crimes. See
Third Circuit Model Criminal Jury Instruction 6.18.1962D
(RICO), 6.18.1343 (wire fraud), 6.18.1512A2 (obstruction
of justice); United States v. Sussman, 709 F.3d 155, 168
(3d Cir. 2013) (obstruction of justice); United States v.
24
Nicholas did not object to the knowledge and intent
instructions when the District Court discussed each of the
individual charges, and does not identify a disagreement
with any specific instruction on any particular charge.
124
Moyer, 674 F.3d 192, 208–09 (3d Cir. 2012) (falsification
of records); United States v. Pelullo (Pelullo I), 964 F.2d
193, 216 (3d Cir. 1992) (wire fraud).
The District Court also provided a separate
definition of the knowledge element of each charge,
illustrating the difference between knowledge and intent.
See JA5793 (explaining that the evidence must show that
a RICO defendant “knowingly agreed to facilitate or
further a course of conduct, which if completed would
include a pattern of racketeering activity”); JA5823 (wire
fraud means that the defendant “knowingly devised a
scheme to defraud a victim . . . by materially false or
fraudulent pretenses”); JA5860 (falsification of records
has as an element “[t]hat the defendant under
consideration knowingly concealed, covered up, falsified
or made false entries in a document or record”). These
instructions made clear that knowledge and intent are
separate considerations, undermining Nicholas’s
contention that the jury was led to believe that “knowledge
is sufficient to prove intent.” Nicholas Br. 24.
The District Court provided each member of the
jury with more than 100 pages of instructions before
deliberations began. Viewing those instructions as a
whole, we are satisfied that the jury was apprised of the
correct meaning of intent as an element of the crimes with
which Nicholas was charged, as well as the distinction
between knowledge and intent. We perceive no error,
125
much less error that is plain, in the District Court’s
instructions to the jury. 25
VIII. Sending the Indictment to the Jury
At trial, Vederman, Nicholas, and Brand objected to
the District Court’s decision to give the jury a redacted
copy of the indictment to use during its deliberations. Only
Nicholas and Brand raise this issue on appeal. In
Nicholas’s view, sending the indictment to the jury
unfairly prejudiced her because it contained unsupported
allegations that she had obstructed federal agencies and
referred to a nonexistent certification requirement for
Sallie Mae funds. Brand argues that he was prejudiced by
the indictment’s references to “schemes” and “fake”
contracts, and because it mentioned Brand’s spouse and
that she was a former member of Fattah’s congressional
staff. Nicholas and Brand together assert that the
indictment included legal theories on which the jury was
not instructed. They contend that the indictment’s
narrative of the Government’s case set out a roadmap that
omitted any averments relating to the defense theory and
allowed the Government to yet again present its case. To
buttress that argument, Nicholas and Brand cite the
testimony of Juror 12, who described the jury’s initial
25
Accordingly, we need not consider the merits of
Nicholas’s argument that Model Criminal Jury Instruction
5.03 is erroneous.
126
deliberations and alleged that the jurors viewed the
indictment as evidence.
In United States v. Todaro, 448 F.2d 64, 66 (3d Cir.
1971), we held that the decision to allow “jurors to have a
copy of the indictment with them during their
deliberations . . . is a matter within the discretion of the
District Judge, subject to a limiting instruction that the
indictment does not constitute evidence, but is an
accusation only.” Subsequently, in United States v.
Pungitore, 910 F.2d 1084, 1142 n.83 (3d Cir. 1990), we
acknowledged that the District Court has the power to
redact the indictment if doing so would be appropriate to
avoid prejudice to the defendant. See also United States v.
Roy, 473 F.3d 1232, 1237 n.2 (D.C. Cir. 2007) (noting that
court may redact an indictment before submitting it to the
jury).
While both Nicholas and Brand objected in general
terms to the District Court’s decision to provide the
indictment to the jury, they have not directed us to any
specific request to redact the information they now claim
is prejudicial. And the District Court provided a limiting
instruction on four occasions during its charge, repeatedly
emphasizing that the indictment was not evidence.
JA5765, 5767, 5782, 5880. The Court instructed the jury
on its duty to base its verdict “solely upon the evidence in
the case.” JA5764. Just before the jury retired to
deliberate, the Court reiterated that the purpose of the
127
indictment is to set forth the charges, and that it is “merely
an accusation.” JA5909.
“[J]uries are presumed to follow their instructions
. . . .” Richardson v. Marsh, 481 U.S. 200, 211 (1987). In
our view, Juror 12’s assertion that the indictment was
being considered evidence does not, standing alone,
establish that his fellow jurors actually did so. We reject
the notion that the jury, after hearing weeks of testimony
and having viewed substantial documentary evidence,
went on to ignore the Court’s limiting instruction
concerning the indictment. 26 Accordingly, we conclude
26
We acknowledge that our case law provides minimal
guidance to district courts concerning the practice of
sending an indictment to the jury for their use during
deliberations. We are also aware that some courts have
disapproved the practice of sending the indictment out
with the jury. See United States v. Esso, 684 F.3d 347, 352
n.5 (2d Cir. 2012); Roy, 473 F.3d at 1237 n.2. We
emphasize that this practice is committed to the sound
discretion of the district judge. Todaro, 448 F.2d at 66. In
our view, such an exercise of a judge’s discretion should
be informed by considering the nature of the case, the
number of defendants, the length of the indictment, the
extent of the factual recitation supporting the criminal
charges, and most importantly, whether the indictment
(especially if lengthy and fact-laden) will be useful to the
jury, in light of the judge’s own carefully tailored jury
128
that the District Court did not abuse its discretion in
sending the indictment out to the jury.
IX. The District Court’s Evidentiary Rulings
Vederman, Nicholas, and Brand each challenge
evidentiary rulings by the District Court. We conclude that
none of these contentions warrants setting aside their
convictions.
A. The District Court’s Application of Rule 404(b)
Vederman argues that the District Court misapplied
Federal Rule of Evidence 404(b) when it excluded
evidence of Vederman’s prior gift-giving. 27 This Court
reviews a district court’s application of Rule 404(b) for
abuse of discretion. United States v. Daraio, 445 F.3d 253,
instruction, as supplemented by a verdict slip. See Esso,
684 F.3d at 352 n.5.
27
Although Rule 404(b) determinations are usually in
response to attempts to introduce “bad” acts evidence,
Vederman’s attempt to introduce “good” acts of gift-
giving is properly analyzed under the same rule. Ansell v.
Green Acres Contracting Co., 347 F.3d 515, 520 (3d Cir.
2003) (“The evidence admitted in this case differs from
garden variety Rule 404(b) matter because it is evidence,
not of a prior bad act in a criminal case, but of a subsequent
good act in a civil case. Nonetheless, this evidence is
encompassed by the plain text of Rule 404(b) which
addresses ‘other . . . acts,’ not just prior bad acts.”).
129
259 (3d Cir. 2006); Ansell v. Green Acres Contracting Co.,
347 F.3d 515, 519 (3d Cir. 2003). A trial court commits
“[a]n abuse of discretion . . . when [the] district court’s
decision rests upon a clearly erroneous finding of fact, an
errant conclusion of law or an improper application of law
to fact.” Pardini v. Allegheny Intermediate Unit, 524 F.3d
419, 422 (3d Cir. 2008) (quoting P.N. v. Clementon Bd. of
Educ., 442 F.3d 848, 852 (3d Cir. 2006)).
Federal Rule of Evidence 404(b) provides in part:
(b) Crimes, Wrongs, or Other Acts.
(1) Prohibited Uses. Evidence of a
crime, wrong, or other act is not
admissible to prove a person’s
character in order to show that on a
particular occasion the person
acted in accordance with the
character.
(2) Permitted Uses; Notice in a
Criminal Case. This evidence may
be admissible for another purpose,
such as proving motive,
opportunity, intent, preparation,
plan, knowledge, identity, absence
of mistake, or lack of accident.
Fed. R. Evid. 404(b)(1)–(2).
130
At trial, Vederman sought to present a witness from
American University who would have testified that
“Vederman agreed, on more than fifty instances, to
financially assist students [at American] who needed help
with tuition, book money, or travel funds to visit their
families.” Vederman Br. 42 (emphasis omitted).
According to Vederman, the testimony was relevant to
refuting the Government’s argument that he agreed to
guarantee the tuition expenses of Fattah’s au pair as a way
of bribing the congressman. In excluding this evidence
under Rule 404(b), the District Court stated at sidebar:
I sustain the government’s objection to
calling a representative of American
University to testify on behalf of Herbert
Vederman.
In my view the testimony runs afoul of
Rule 404(b)(1) of the Federal Rules of
Evidence. I find it to be propensity evidence.
He or she would be testifying about Mr.
Vederman’s financial generosity with respect
to students of American University.
The issue here is payment of partial
tuition of a student at the Philadelphia
University. I see no connection between the
generosity at American University and the
situation with Philadelphia University.
131
JA4459–60. Vederman argues that because the proposed
evidence related to Vederman’s intent, and not solely his
propensity to perform good acts, we should conclude that
the District Court abused its discretion. We see no error in
the District Court’s ruling.
Vederman challenges as arbitrary the District
Court’s “assertion that support for American University
students is too remote from support for Philadelphia
University students” such that it constitutes inadmissible
evidence. Vederman Reply Br. 23. This distinction was far
from arbitrary. Vederman may well have financially
supported American University students because of
connections he had to that school or to the D.C.
community at large—connections Vederman did not have
to Philadelphia University. And the excluded testimony
appears to have described support for students Vederman
did not previously know. By supporting Fattah’s au pair,
Vederman was helping an employee of a man whom he
knew quite well. JA889 (“[Fattah and Vederman] spent a
lot of time together traveling back and forth to
Washington, in the case of a death in the family attending
certain ceremonies that were important, and above all
spending time with each other and their families
together.”). Vederman’s decision to help Fattah’s au pair,
who wished to attend Philadelphia University, seems more
like a departure from, rather than a continuation of, his
pattern of support for American University students.
132
As the party seeking admission of evidence under
Rule 404(b), Vederman bore “the burden of demonstrating
its applicability” and “identifying a proper purpose.”
United States v. Caldwell, 760 F.3d 267, 276 (3d Cir.
2014). By failing to explain sufficiently why the factual
distinctions discussed above were not material, Vederman
failed to meet his burden. In particular, although
Vederman argues that he offered evidence of his prior gift-
giving to prove intent—“a proper non-propensity
purpose”—he failed to show why the proposed testimony
was “relevant to that identified purpose.” Id. at 277. 28 As
we noted in Ansell v. Green Acres Contracting, an
employment discrimination case on which Vederman
heavily relies, “[t]here is. . . no bright line rule for
determining when evidence is too remote to be relevant.”
347 F.3d at 525. As such, a district court’s determination
under Rule 404(b) “will not be disturbed on appeal unless
it amounts to an abuse of discretion.” Id. The District
28
Under Rule 404(b), “prior act evidence is inadmissible
unless the evidence is (1) offered for a proper non-
propensity purpose that is at issue in the case; (2) relevant
to that identified purpose; (3) sufficiently probative under
Rule 403 such that its probative value is not outweighed
by any inherent danger of unfair prejudice; and
(4) accompanied by a limiting instruction, if requested.”
United States v. Caldwell, 760 F.3d 267, 277–78 (3d Cir.
2014).
133
Court did not abuse its discretion in excluding evidence of
Vederman’s support for students at American University.
B. Evidentiary Rulings Regarding Nicholas’s Defense
Nicholas argues that the District Court rendered
three erroneous evidentiary rulings that prejudiced her
defense. We do not find any of her arguments convincing.
1. The EAA Board Minutes
In support of its theory that Nicholas defrauded
EAA, the Government introduced minutes from EAA’s
Board. Minutes from 2005 revealed that the Board limited
Nicholas’s signing authority to $100,000. Minutes from
December 2007, February 2008, and May 2008 failed to
reference either the EAA–Solutions contract or the checks,
drawn from EAA’s account for $500,000 and $100,000,
that were purportedly paid pursuant to the contract.
Nicholas contends that the Board minutes were
erroneously admitted because they constituted improper
hearsay which failed to satisfy either the exception for
business records under Federal Rule of Evidence 803(6)
or the absence of records exception under Federal Rule of
Evidence 803(7). “We review the District Court’s
evidentiary ruling[s] for abuse of discretion, but also
‘exercise plenary review . . . to the extent [the rulings] are
based on a legal interpretation of the Federal Rules of
Evidence.’ ” Repak, 852 F.3d at 240 (citations omitted)
(second alteration in original).
134
Applying those standards here,29 we conclude there
was sufficient basis to admit exhibit EAA-48 under
Federal Rule of Evidence 803(6) as a business record.
Although allowing the prosecution to inquire over
Nicholas’s earlier objection based on Federal Rule of
Evidence 803(7) to the absence of any mention of the
$500,000 check in the 2008 Board Minutes was error, it
was not reversible error. Other evidence in the record
overwhelmingly showed that Nicholas made the $500,000
and $100,000 payments to Solutions with the requisite
fraudulent intent. That evidence included the 2005 policy
limiting Nicholas’s authority to approve expenditures to
$100,000, the accountant’s testimony about the
disbursement policy requiring the completion of a check
request form for the issuance of a check, and Jones’
testimony that he never saw a request for the $500,000
check. That evidence, coupled with Nicholas’s tendering
of the upfront half-million dollar payment before the terms
of the purported agreement had been finalized or executed,
her failure to mention the $600,000 in payments to
Solutions during her interview with FBI Agent
29
We note that the argument section of Nicholas’s brief on
this issue specifically cited to the page in the record where
exhibit EAA-48 was admitted without objection by any
defense counsel. See Appellant’s Br. at 57 (citing JA4381-
82). Nonetheless, there was an earlier objection to the
admission of exhibit EAA-48 that was preserved and that
was referenced in a string citation elsewhere in Nicholas’s
brief.
135
Dieffenbach, and her alteration of EAA’s general ledger
to conceal the $100,000 payment, makes it “highly
probable” that the jury would have reached the same
result. See United States v. Friedman, 658 F.3d 342, 352
(3d Cir. 2011).
Nicholas also asserts that the Board minutes were
unfairly prejudicial. We disagree. Any possible prejudice
was minimized by the fact that the Board minutes make no
reference to either the EAA–Solutions contract or to any
financial matters whatsoever. Indeed, given these lacunae
in the Government’s proof, a reasonable factfinder might
well have concluded that the Board’s intention to limit
Nicholas’s signing authority had not been implemented
and that Nicholas had not concealed the contract from the
Board.
2. Jones’ Memory Regarding Other Contracts
Nicholas next asserts that the District Court erred
during her cross-examination of Board Chairman Jones by
sustaining the prosecution’s objection to her inquiry into
whether he remembered other contracts in excess of
$100,000 being brought to the Board. See JA1386–87. The
basis of the prosecution’s objection seemed to be that
Nicholas’s line of inquiry was beyond the scope of the
direct testimony. JA1387 (“I showed checks concerning
what’s going on, not other programs.”); see Fed. R. Evid.
611(b). The District Court sustained the objection,
declaring that “it has absolutely nothing to do with this
case.” JA1387. Nicholas contends that if Jones did not
136
recall whether other large contracts had been presented to
the Board, his inability to recall the EAA–Solutions
contract would have been “unremarkable rather than
evidence of fraud or concealment.” Nicholas Br. 61.
We acknowledge that whether Jones remembered
other large contracts requiring Board approval had some
relevance under Rule 401. Yet any error by the District
Court in prohibiting Nicholas’s counsel from pursuing this
line of inquiry is harmless. Jones admitted that he did not
know if the Board ever implemented the policy requiring
its approval of contracts exceeding $100,000. He also
conceded that the EAA Board focused less on the financial
side of EAA than on its programs. JA1383–85. Nicholas
could not have been prejudiced by the District Court’s
ruling.
3. Exclusion of NOAA Evidence
Nicholas defended against the criminal charges
arising out of the non-existent October 2012 conference
by asserting that she acted in “good faith in spending the
NOAA funds on EAA expenses,” Nicholas Br. 64, that the
difference in the dates in the paperwork was not material,
and that NOAA had received the benefits of the
sponsorship because its logo was displayed on the signage
used at the February conference. Nicholas succeeded in
presenting testimony and introducing photographs that
showed NOAA’s logo on the February 2012 annual
conference bags, padfolios, and name tags. The Court
excluded a photograph of a NOAA intern at the February
137
2012 conference, other photographs of the February
conference signage, and some checks that pertained to the
February conference. Nicholas claims that her inability to
introduce those exhibits frustrated her ability to present
her good faith defense. We are not persuaded.
The photographs were excluded as cumulative, the
sort of ruling to which we afford trial judges very broad
discretion. See Fed. R. Evid. 403; United States v.
Dalfonso, 707 F.2d 757, 762 (3d Cir. 1983). It was not
error to exclude the student intern’s photograph. The
conference brochure included photographs from previous
conferences, and the witness from NOAA was unable to
testify to the year the student served as an intern. Finally,
the checks tendered for the travel expenses incurred for the
February conference were excluded as irrelevant to
whether Nicholas had a good faith belief that NOAA
sponsored the October conference.
C. The Cooperating Witness’s Mental Health Records
During discovery, Brand learned that a cooperating
witness was diagnosed with bipolar II disorder and was
taking medication to treat that condition. Brand
subpoenaed mental health records kept by the witness’s
current and former psychiatrists in hopes of using those
records to attack the witness’s memory, truthfulness, and
credibility. The witness and the Government both filed
motions to quash the subpoena, arguing that the witness’s
mental health records were protected by the
psychotherapist–patient privilege recognized by the
138
Supreme Court in Jaffee v. Redmond, 518 U.S. 1 (1996).
The Government also filed a motion in limine seeking to
restrict the scope of cross-examination to prevent Brand
from questioning the witness about his mental health.
Alongside his motion to quash, the witness
voluntarily produced for the Court his mental health
records. The Court concluded that the psychotherapist–
patient privilege would ordinarily apply to the mental
health records, but that the privilege was not absolute,
especially when invoked in response to a criminal
defendant’s efforts to obtain through discovery evidence
that is favorable to his case. Following the procedure set
forth in Pennsylvania v. Ritchie, 480 U.S. 39 (1987), the
District Court conducted an in camera review of the
mental health records to determine if they contained
material evidence—that is, evidence that would “give[]
rise to a reasonable probability that it [would] affect the
outcome of the case.” JA149. The District Court found
“nothing in the mental health records of the [witness] . . .
material for this criminal action,” noting that “[t]he
records reveal nothing that calls into question [the
witness’s] memory, perception, competence, or veracity.”
JA150. Accordingly, the Court entered an order granting
the motions to quash the subpoena.
The District Court also granted the Government’s
motion in limine and restricted the scope of cross-
examination, ruling that “no reference may be made to [the
witness’s] bipolar disorder or the medications he takes to
139
manage it.” JA142, 156. The Court reasoned that bipolar
disorder varied in its effects from person to person, and
concluded that Brand had not shown that the effects of the
disorder had any bearing on the witness’s credibility. The
District Court ruled that cross-examination would not
serve any valid impeachment purpose.
Brand claims that the District Court’s order ran
afoul of the Due Process Clause of the Fifth Amendment
and the Confrontation Clause of the Sixth Amendment.
We review a district court’s rulings to quash a subpoena
and to limit the scope of cross-examination for abuse of
discretion. United States v. Tykarsky, 446 F.3d 458, 475
(3d Cir. 2006); NLRB v. Frazier, 966 F.2d 812, 815 (3d
Cir. 1992). Here, the District Court did not abuse that
discretion.
1. The District Court’s Denial of Access to the Mental
Health Records
In claiming that the District Court’s decision to
review the mental health records in camera before ruling
on their admissibility violated his rights under both the
Fifth and Sixth Amendments, Brand specifically argues
that his right to confront the witness was impeded because
he was denied access to records he could have used to
impeach the witness. This very argument was considered
and rejected by a plurality of the Supreme Court in Ritchie,
which noted that “the effect [of the argument] would be to
transform the Confrontation Clause into a constitutionally
compelled rule of pretrial discovery. . . . [T]he right to
140
confrontation is a trial right, designed to prevent improper
restrictions on the types of questions that defense counsel
may ask during cross-examination.” 480 U.S. at 52. We
follow the Ritchie plurality, and conclude that the
Confrontation Clause did not require the District Court to
grant Brand access to the witness’s mental health records.
Brand next challenges the District Court’s decision
to quash the subpoena as a violation of the Fifth
Amendment’s Due Process Clause. He concedes that
Ritchie’s Due Process holding allowed the District Court
to review the mental health records in camera without
disclosing them to him. See id. at 59–60 (“A defendant’s
right to discover exculpatory evidence does not include the
unsupervised authority to search through [the
Government’s] files. . . . We find that [the defendant’s]
interest . . . in ensuring a fair trial can be protected fully by
requiring that the [privileged] files be submitted only to
the trial court for in camera review.”). Brand instead
argues that the District Court abused its discretion by
focusing on “irrelevant facts and spurious symptoms. . . .
such as ‘hallucinations,’ ” and by “refus[ing] to consider
evidence of cognitive impairment and memory issues.”
Brand Br. 30. The record reveals, however, that the
District Court reviewed the mental health records and
determined that they “reveal[ed] nothing that calls into
question [the witness’s] memory, perception, competence,
or veracity.” JA150. This hardly amounts to a refusal to
consider evidence of cognitive impairment or memory
issues.
141
Brand also challenges the legal standard applied by
the District Court, arguing that the court “focused solely
on whether disclosure would ‘change the outcome’ of
Brand’s trial,” Brand Br. 29 (quoting JA148), rather than
considering “whether the ultimate verdict is one ‘worthy
of confidence.’ ” Id. (quoting United States v. Robinson,
583 F.3d 1265, 1270 (10th Cir. 2009)). Brand
misleadingly quotes from the District Court’s opinion. The
District Court considered, in accordance with Ritchie,
“whether there is a reasonable probability that disclosure
would change the outcome” of Brand’s trial, JA148
(emphasis added), not whether disclosure would
necessarily change the outcome. As articulated in Ritchie,
a “ ‘reasonable probability’ is a probability sufficient to
undermine confidence in the outcome.” 480 U.S. at 57(quoting United States v. Bagley, 473 U.S. 667, 682 (1985)
(Blackmun, J.)). The District Court applied the correct
standard.
2. The District Court’s Grant of the Motion in Limine
In granting the Government’s motion in limine, the
District Court ruled that Brand could not “reference . . .
[the witness’s] bipolar disorder or the medications he takes
to manage it.” JA156. Yet that ruling placed no restriction
on Brand’s ability to cross-examine the witness with
respect to “his memory, competence, or truthfulness.” Id.Brand argues, nevertheless, that his Sixth Amendment
right “to be confronted with the witnesses against him”
was violated. U.S. Const. amend. VI.
142
The Confrontation Clause protects a defendant’s
right to cross-examine a witness with respect to any
testimonial statements made by that witness. United States
v. Berrios, 676 F.3d 118, 125–26 (3d Cir. 2012) (citing
Crawford v. Washington, 541 U.S. 36, 51 (2004), and
Davis v. Washington, 547 U.S. 813, 823–24 (2006)). But
the scope of cross-examination is not unlimited, and “[a]
district court retains ‘wide latitude insofar as the
Confrontation Clause is concerned to impose reasonable
limits on such cross-examination based on concerns about
. . . harassment, prejudice, confusion of the issues, the
witness’ safety, or interrogation that is repetitive or only
marginally relevant.’ ” John-Baptiste, 747 F.3d at 211
(quoting United States v. Mussare, 405 F.3d 161, 169 (3d
Cir. 2005)). We review limitations on cross-examination
for abuse of discretion, and reverse “only when the
restriction ‘is so severe as to constitute a denial of the
defendant’s right to confront witnesses against him and . . .
is prejudicial to [his] substantial rights.’ ” Id. (alternation
in original) (quoting United States v. Conley, 92 F.3d 157,
169 (3d Cir. 1996)).
In United States v. Chandler, 326 F.3d 210, 219 (3d
Cir. 2003), we analyzed whether a district court’s decision
to limit cross-examination with respect to a witness’s
motivation for testifying violated the Confrontation
Clause. See also Mussare, 405 F.3d at 169; John-Baptiste,
747 F.3d at 211–12. Consistent with Delaware v. Van
Arsdall, 475 U.S. 673 (1986), we first concluded that “the
exposure of a witness’ motivation in testifying is a proper
143
and important function of the constitutionally protected
right of cross-examination.” Chandler, 326 F.3d at 219–
20 (quoting Van Arsdall, 475 U.S. at 678–79). We also
noted that the Confrontation Clause does not prevent a trial
judge from imposing reasonable limits on cross-
examination. Id. In reviewing a district judge’s imposition
of such limitations, we apply a two-part analysis. As we
have since described, “we inquire into: ‘(1) whether the
limitation significantly limited the defendant’s right to
inquire into a witness’s motivation for testifying; and
(2) whether the constraints imposed fell within the
reasonable limits that a district court has the authority to
impose.’ ” John-Baptiste, 747 F.3d at 211–12 (quoting
Mussare, 405 F.3d at 169).
The same analytical framework is appropriate when
determining whether a restriction on the cross-
examination of a witness with respect to his memory and
perception violates the Confrontation Clause. See Davis v.
Alaska, 415 U.S. 308, 316 (1974); Greene v. McElroy, 360
U.S. 474, 496 (1959); United States v. Segal, 534 F.2d
578, 582 (3d Cir. 1976). Memory and perception, like
motivation for testifying, are central issues affecting the
credibility of any witness, and unreasonable limitations on
the right to cross-examine on those subjects cannot be
countenanced. We therefore ask, paraphrasing Chandler:
(1) whether the District Court’s decision to put the
witness’s diagnosis and medications off limits
significantly impaired Brand’s right to inquire into the
witness’s memory and perception; and (2) whether the
144
ruling fell within the reasonable limits that the District
Court has the authority to impose.
We conclude that the District Court did not err. As
an initial matter, the District Court permitted Brand to
cross-examine the witness about his memory and
perception, and limited cross-examination only with
respect to the witness’s bipolar disorder and the
medications he was taking to treat that condition. Brand
was free to question the witness about his memory and
perception, and indeed did so. The restriction on asking
the witness about his bipolar disorder was not a significant
limitation of Brand’s right to inquire into the witness’s
memory or perception. Moreover, as the District Court
pointed out, Brand failed to show how inquiry into the
witness’s bipolar disorder would be useful for
impeachment purposes. See JA154.
Given that failure, the District Court’s limits on
cross-examination were reasonable. The Court concluded,
after reviewing the evidence submitted by Brand and the
witness’s mental health records, that any mention of the
witness’s bipolar disorder would “only be designed to
confuse the jury or to stigmatize him unfairly because of a
‘mental problem’ without any countervailing probative
value.” JA155. The District Court did not abuse its
discretion in limiting Brand’s cross-examination on a topic
that would be far more prejudicial than probative. See
Tykarsky, 446 F.3d at 476–77 (“[T]he District Court acted
145
well within its discretion to restrict irrelevant and
confusing testimony.”).
All of this is not to suggest that a witness’s mental
health is always off limits. The appropriate course in any
given case must be determined from the facts and
circumstances surrounding that case and the witness’s
particular condition. See United States v. George, 532 F.3d
933, 937 (D.C. Cir. 2008) (“The days are long past when
any mental illness was presumed to undermine a witness’s
competence to testify. . . . [M]ental illness [is] potentially
relevant in a broad[] range of circumstances . . . . [But]
some indication is needed that a particular witness’s
medical history throws some doubt on the witness’s
competence or credibility.”). Here, Brand failed to show,
through mental health records or otherwise, any
particularized reason to doubt the credibility of the witness
for medical reasons.
Brand states that the witness provided “the only
evidence offered” on the intent element of his conspiracy
conviction and that he should therefore be entitled to
unrestricted cross-examination. Brand Br. 12 n.3. Yet no
matter the importance of a witness to any party, a district
court may always place reasonable limits on cross-
examination to avoid “harassment, prejudice, confusion of
the issues, the witness’ safety, or interrogation that is
repetitive or only marginally relevant.” John-Baptiste, 747
F.3d at 211 (citation omitted).
146
We conclude that the District Court did not abuse
its discretion in restricting the scope of Brand’s cross-
examination of the cooperating witness.
X. The Government’s Cross-Appeal
The jury convicted Fattah, Vederman, and Bowser
of bank fraud, 18 U.S.C. § 134430 (Count 19) and making
false statements to a financial institution, 18 U.S.C.
§ 1014 31 (Count 20). In response to post-trial motions, the
District Court granted a judgment of acquittal on both
counts under Fed. R. Crim. P. 29, concluding that the
30
“Whoever knowingly executes, or attempts to execute,
a scheme or artifice . . . to defraud a financial institution
. . . shall be fined not more than $1,000,000 or imprisoned
not more than 30 years, or both.” The definition of
“financial institution” for purposes of § 1344 is set forth at
18 U.S.C. § 20, and includes “a credit union with accounts
insured by the National Credit Union Share Insurance
Fund” and “a mortgage lending business (as defined in
section 27 of this Title).” 18 U.S.C. §§ 20(2), (10).
31
“Whoever knowingly makes any false statement or
report, or willfully overvalues any land, property or
security, for the purpose of influencing in any way the
action of . . . a Federal credit union . . . any institution the
accounts of which are insured by . . . the National Credit
Union Administration Board . . . or a mortgage lending
business . . . shall be fined not more than $1,000,000 or
imprisoned not more than 30 years, or both.”
147
evidence was insufficient to establish that the Credit
Union Mortgage Association (CUMA), the entity to whom
Fattah, Vederman, and Bowser made the false statements,
is a “financial institution,” or, more specifically, a
“mortgage lending business” as defined in 18 U.S.C. § 27.
The Government claims that, viewing the evidence in the
light most favorable to it, the District Court erred and that
CUMA is, indeed, a “mortgage lending business.” We
agree. Because the evidence is sufficient to support the
jury’s verdict, we will remand so Fattah and Vederman
may be resentenced on these charges.32
A. CUMA is a Mortgage Lending Business
In reviewing the District Court’s post-verdict
judgment of acquittal under Rule 29 of the Federal Rules
of Civil Procedure, we consider whether the evidence,
when viewed in a light most favorable to the government,
supports the jury’s verdict. United States v. Dixon, 658
F.2d 181, 188 (3d Cir. 1981). Our standard of review is the
same as that applied by the District Court, and we must
uphold the jury’s verdict unless no reasonable juror could
accept the evidence as sufficient to support the defendant’s
guilt beyond a reasonable doubt. United States v.
Coleman, 811 F.2d 804, 807 (3d Cir. 1987).
32
Because the Government did not file an appeal as to
Bowser, the cross-appeal is limited to Fattah and
Vederman. The judgment of acquittal as to Bowser is
therefore unaffected by our ruling today.
148
Initially, the grand jury’s indictment alleged that
CUMA is a financial institution because it is federally
insured. JA302–03. At trial, however, the jury was
instructed that CUMA could qualify as a financial
institution either because it is federally insured or because
it is a “mortgage lending business.” See JA111, 401–02. A
“mortgage lending business” is “an organization which
finances or refinances any debt secured by an interest in
real estate, including private mortgage companies and any
subsidiaries of such organizations, and whose activities
affect interstate or foreign commerce.” 18 U.S.C. § 27.
At trial, CUMA’s president and CEO, Eddie Scott
Toler, testified that CUMA is not federally insured.
JA4235. The Government therefore attempted to prove
that CUMA is a “mortgage lending business” by
presenting evidence that CUMA funds mortgages and then
sells them in a secondary market.
Toler also testified that CUMA is a “credit union
service organization”—a for-profit company owned by 48
credit unions, which serves small credit unions that do not
have the infrastructure or in-house expertise to handle
mortgage loans themselves. JA4235. According to Toler,
“[CUMA] exclusively provide[s] First Trust Residential
Mortgage loaning [sic] services, all the way from the
origination of the mortgage loan through processing,
underwriting, closing and access to the secondary market
where—and we’re selling the mortgage loan on the
secondary market.” JA4236–37. In jurisdictions in which
149
CUMA is licensed, 33 CUMA holds the mortgage for a
limited period, generally from two to thirty days, and then
sells the mortgage either to a partner credit union or on the
secondary market. JA4240.
The District Court concluded that CUMA is not a
“mortgage lending business” because “[t]he record is
devoid of any evidence that CUMA finances or refinances
any debt.” JA113. Concluding that CUMA “simply is a
loan processor for various credit unions which do the
financing or refinancing,” id., the District Court ruled that
CUMA’s “activity does not constitute the financing or
refinancing of any debt. CUMA is not the mortgagee. It is
merely selling the debt instrument to a third party.” JA114.
We cannot agree with the District Court’s view of
the evidence. Toler testified that in “Maryland, D.C., and
Virginia . . . all of the loans are closed in the name of
CUMA.” JA4238–39. As Toler described it, CUMA
borrows on a line of credit to fund the loan, and when the
loan is sold, CUMA pays off its line of credit. JA4239–40.
So contrary to the District Court’s assessment, the
evidence, viewed in a light most favorable to the
Government, shows that CUMA is indeed the
mortgagee—at least during the time from closing until the
loan is sold to a partner credit union or on the secondary
market. The fact that CUMA funds the closing and then
33
CUMA is licensed in Maryland, Washington, D.C., and
Virginia. JA4238.
150
holds the mortgage, even for a brief time, is sufficient to
support a conclusion that CUMA is “an organization
which finances or refinances any debt secured by an
interest in real estate.” 18 U.S.C. § 27.
Fattah and Vederman attempt to refute the argument
that CUMA engages in financing mortgages by focusing
on Toler’s testimony that CUMA “doesn’t actually have
any money to fund these mortgage loans.” JA4239; see
Fattah Reply Br. 38, Vederman Reply Br. 36. But Toler
testified that CUMA employs a credit line to borrow the
funds necessary to close on mortgages. See JA4239. That
CUMA incurs debt to finance mortgages hardly
undermines a conclusion that CUMA finances mortgages.
Indeed, it is the very nature of modern banking that
financial institutions do not hold cash reserves equal to the
full amount of their liabilities. See, e.g., Timothy C.
Harker, Bailment Ailment: An Analysis of the Legal Status
of Ordinary Demand Deposits in the Shadow of the
Financial Crisis of 2008, 19 Fordham J. Corp. & Fin. L.
543, 561 (2014) (“[F]ractional reserve banking . . . is the
de facto standard for all modern banks.”).
Vederman also argues that, even if CUMA acts as a
mortgage lending business in some transactions, it was not
acting as a mortgage lending business in this transaction.
Vederman points to Toler’s testimony that, in a state in
which CUMA is not licensed, the mortgage is closed in the
name of a credit union. In such cases, the credit union, and
not CUMA, owns the mortgage for the short period before
151
the loan is sold on the secondary market. JA4241. CUMA
is not licensed in the Commonwealth of Pennsylvania. See
id. Thus, according to Vederman, CUMA was acting in its
capacity as a mortgage servicing company for Fattah’s
vacation home purchase and did not—and could not—
finance Fattah’s mortgage. That would mean that CUMA
could not have been a victim of a crime against a financial
institution in this instance: “When an entity is not
functioning as a mortgage lender, the ‘pertinent federal
interest’ behind the statutes is not implicated.” Vederman
Reply Br. 38 (citation omitted).
The Government responds that neither of the
statutes of conviction requires that the fraud or false
statement occur in connection with the same transaction
that places the entity within the definition of “financial
institution.” Gov’t Fourth Step Br. 4. We agree with the
Government.
Both § 1344 and § 1014 protect entities that fall
within the definition of “financial institution” and are
otherwise quite broad in their application. See Loughrin v.
United States, 134 S. Ct. 2384, 2389 (2014) (interpreting
§ 1344 as not requiring specific intent to defraud a bank);
United States v. Boren, 278 F.3d 911, 914 (9th Cir. 2002)
(“[Section 1014’s] reach is not limited to false statements
made with regard to loans, but extends to any application,
commitment or other specified transaction.”). Neither
statute is expressly limited in the manner that Vederman
suggests. Williams v. United States, 458 U.S. 279, 284
152
(1982) (“To obtain a conviction under § 1014, the
Government must establish two propositions: it must
demonstrate (1) that the defendant made a ‘false statement
or report,’ . . . and (2) that he did so ‘for the purpose of
influencing in any way the action of [a described financial
institution] upon any application, advance, . . .
commitment, or loan.’ ”); United States v. Leahy, 445 F.3d
634, 646 (3d Cir. 2006) (“The purpose of the bank fraud
statute is to protect the ‘financial integrity of [banking]
institutions.’ ”) (citing S. Rep. No. 98-225, at 377 (1983),
as reprinted in 1984 U.S.C.C.A.N. 3517), abrogated on
other grounds by Loughrin, 134 S. Ct. at 2389.
In support of his position, Vederman relies on
United States v. Devoll, 39 F.3d 575 (5th Cir. 1994), in
which the Fifth Circuit concluded that § 1014 (false
statements to a financial institution) is not intended to
capture fraud unrelated to an entity’s lending activities,
and therefore held that it “applies only to actions involving
lending transactions.” Id. at 580. The Fifth Circuit stated:
[W]e are not persuaded that the statute
imposes liability whenever a defendant’s
false statement was intended to interfere with
any activity of a financial institution; such a
broad interpretation of section 1014
presumably would encompass fraud or false
representations having nothing to do with
financial transactions, such as fraud in an
employment contract or, for example, in a
153
contract to provide goods or services for
custodial care, premises repair, or renovation.
Id.
Yet a majority of circuits, including our own, have
declined to follow Devoll’s suggestion that § 1014 is
restricted to lending transactions. As the Ninth Circuit has
held, “we join at least six of our sister circuits—the First,
Third, Fourth, Sixth, Seventh, and Tenth—in holding that
18 U.S.C. § 1014 is not limited to lending transactions,
and reject the minority rule to the contrary.” Boren, 278
F.3d at 915. And even if we were to adopt Devoll’s narrow
construction of § 1014 to lending transactions, that would
not resolve the more specific question of whether the
defrauded entity must be defined as a “mortgage lending
business” by virtue of the specific transaction in which the
false statements arose.
Recently, the Eighth Circuit addressed precisely
this issue. In United States v. Springer, 866 F.3d 949 (8th
Cir. 2017), that Court considered the defendant’s appeal
from the district court’s denial of a Rule 29 motion on
grounds that GMAC, the entity defrauded, was not a
“financial institution.” The Court upheld the district
court’s determination that the evidence was sufficient to
establish that GMAC is in the mortgage lending business
because there was testimony that “it had made hundreds or
thousands of loans secured by mortgages in 2010 and 2011
in states all across the country,” which established that its
activities affect interstate commerce. Id. at 953. It was not
154
determinative that GMAC did not own the specific loan at
issue in the case: “we discern no requirement in the
definition of ‘mortgage lending business’ that the business
own the particular loan in question; it need only finance or
refinance any debt secured by an interest in real estate, or,
in other words, be in the interstate mortgage lending
business in general.” Id.In our view, the Eighth Circuit’s analysis is correct.
We therefore adopt that Court’s reasoning in Springer and
conclude that it is of no moment that CUMA did not
finance the mortgage at issue in Fattah’s case. CUMA is a
“mortgage lending business,” and that alone suffices to
support the convictions under §§ 1014 and 1344.
B. Sufficiency of the Evidence
Finally, Vederman argues that, even if CUMA is a
financial institution, the judgment of acquittal should
stand because the Government did not put forth any
evidence that he made a false representation to CUMA.34
Specifically, Vederman argues that the title to the Porsche
was actually changed to his name, making it a “true sale”
as a matter of law, without regard to whether Fattah’s wife
34
Although Vederman presented this argument in his Rule
29 motion, the District Court did not need to reach it in the
context of Counts 19 and 20 because the Court granted the
motion on the ground that CUMA is not a financial
institution. The District Court rejected the argument as to
Counts 16, 17, and 18. See JA100–02.
155
continued to retain possession. See United States v.
Castro, 704 F.3d 125, 139 (3d Cir. 2013) (holding in
another context that “the government must be able to show
that [the defendant] made a statement to government
agents that was untrue, and the government cannot satisfy
that burden by showing that the defendant intended to
deceive, if in fact he told the literal truth”); see also 75 Pa.
Cons. Stat. § 102 (defining “owner” as “[a] person, other
than a lienholder, having the property right in or title to a
vehicle”).
The Government responds that, regardless of
whether it is legally possible for one person to hold a title
while a different person possesses the vehicle, the jury was
permitted to consider all the circumstances in deciding
whether the Porsche sale was a sham. We agree.
First, as the District Court observed, it was unclear
as to whether the title had been properly executed under
Pennsylvania law. For instance, Fattah’s wife never
appeared before a notary. 35 JA101. In addition, title 75,
section 1111(a) of the Pennsylvania Consolidated Statutes
requires that, “[i]n the event of the sale or transfer of the
ownership of a vehicle within this Commonwealth, the
owner shall . . . deliver the certificate to the transferee at
35
Vederman argues that it is of no significance that the
parties did not appear before a notary as the statute
requires, but he offers cases only from states other than
Pennsylvania to support this proposition.
156
the time of the delivery of the vehicle.” And, the transferee
must, within twenty days of the assignment of the vehicle,
apply for a new title. See 75 Pa. Cons. Stat. § 1111(b).
Neither of these requirements was fulfilled. Finally,
Vederman never registered the Porsche in his name with
the Department of Motor Vehicles. See id.; JA4254.
Second, and more importantly, even if the title had
been properly transferred to Vederman, the title provisions
of the Pennsylvania Motor Vehicle Code “were [not]
designed to establish conclusively the ownership of an
automobile.” Weigelt v. Factors Credit Corp., 101 A.2d
404, 404 (Pa. Super. Ct. 1953). Indeed, “[t]he purpose of
a certificate of title is not to conclusively establish
ownership in a motor vehicle, but rather to establish the
person entitled to possession.” Speck Cadillac-Olds, Inc.
v. Goodman, 95 A.2d 191, 193 (Pa. 1953). Thus, a title
provides evidence of ownership; it is not dispositive of the
issue. Wasilko v. Home Mut. Cas. Co., 232 A.2d 60, 61
(Pa. Super. Ct. 1967).
Vederman’s argument that the title in his name
constitutes conclusive evidence of ownership rests upon
an erroneous conclusion that the jury was prohibited from
considering all the circumstances of the transfer. As the
District Court observed, though, Pennsylvania’s
Commonwealth Court has held that “[w]hether a
transferor has transferred ownership of a motor vehicle to
a transferee is a factual determination to be made by the
court below.” Dep’t. of Transp. v. Walker, 584 A.2d 1080,
157
1082 (Pa. Commw. Ct. 1990). Thus, the signed certificate
of title was appropriately treated as one piece of evidence
for the jury to consider in assessing the validity of the
vehicle transfer. Considered in the light most favorable to
the Government, the totality of the evidence is sufficient
to support the jury’s conclusion that the Porsche sale was
a sham.
XI. Prejudicial Spillover
Finally, Fattah, Vederman, Nicholas, and Brand
each contend that their convictions on various counts
resulted from prejudicial spillover. We are not persuaded.
We exercise plenary review over a district court’s
denial of a claim of prejudicial spillover, United States v.
Lee, 612 F.3d 170, 178–79 (3d Cir. 2010), and we apply a
two-step test when reviewing such a claim. United States
v. Wright, 665 F.3d 560, 575 (3d Cir. 2002). First, a court
must consider “whether the jury heard evidence that would
have been inadmissible at a trial limited to the remaining
valid count[s].” Id. (quoting United States v. Cross, 308
F.3d 308, 317 (3d Cir. 2002)). The second step requires
that we “ask whether that evidence (the ‘spillover
evidence’) was prejudicial.” Id. We consider four factors:
“whether (1) the charges are intertwined with each other;
(2) the evidence for the remaining counts is sufficiently
distinct to support the verdict on these counts; (3) the
elimination of the invalid count [will] significantly
change[] the strategy of the trial; and (4) the prosecution
used language of the sort to arouse a jury.” Id. (quoting
158
United States v. Murphy, 323 F.3d 102, 118 (3d Cir.
2003)); see also United States v. Pelullo (Pellulo II), 14
F.3d 881, 898–99 (3d. Cir. 1994). These four factors are
considered in a light “somewhat favorable to the
defendant.” Wright, 665 F.3d at 575 (quoting Murphy, 323
F.3d at 122); see also Gov’t Br. 198 (same).
A. Fattah’s Claim of Prejudicial Spillover
Fattah argues that he suffered prejudicial spillover
on the remaining counts of conviction in light of (1)
evidence pertinent to the alleged Vederman bribery
schemes that is now arguably inadmissible under
McDonnell; and (2) “the government’s flawed RICO
conspiracy theory.” Fattah Br. 50, 64. Fattah’s argument
is undercut substantially because of our determination that
McDonnell requires a new trial for Counts 16, 17, 22, and
23 and our decision to affirm the RICO conspiracy
conviction. The only possible spillover left to consider is
the evidence pertaining to Fattah’s arranging a meeting
between Vederman and the U.S. Trade Representative,
Ron Kirk, which in light of McDonnell is now arguably
inadmissible.36
The evidence of the Kirk meeting admitted during
this five-week trial was limited. Although this evidence
36
Nothing in this opinion is intended to foreclose the
possibility that evidence of the Kirk meeting may be
admissible on retrial for some purpose other than as proof
of an official act.
159
was part of the Government’s proof as to both the RICO
and the bribery related charges, there is more than
sufficient—and distinct —evidence to support Fattah’s
conviction on all the other counts. In our view, eliminating
any evidence of the Kirk meeting would not have altered
the strategy of the trial, nor should it significantly change
the strategy for any new trial that may be held. Because
Fattah has not pointed us to any argument by the
prosecution relating to this meeting that could have
inflamed the jury, we conclude that Fattah’s prejudicial
spillover claim fails. Like the District Court, we presume
that the jury followed the Court’s instructions to consider
and weigh separately the evidence on each count as to each
defendant and not to be swayed by evidence pertaining to
other defendants. 37
B. Vederman’s Assertion of Prejudicial Spillover
Because the District Court acquitted Vederman of
the RICO charge, Vederman argues that he was “severely
prejudiced by the presentation to the jury of a legally
flawed racketeering conspiracy charge,” and as a
consequence his bribery and money laundering
37
We likewise reject Brand’s prejudicial spillover
arguments. See Brand Br. 6 (“Brand adopts the significant
issue advanced by his co-appellant pursuant to Fed. R.
App. P. 28(i) that improper jury instructions and the
resulting spillover of related improperly admitted
evidence and argument unfairly prejudiced Brand.”).
160
convictions should be overturned. Vederman Br. 46. In
response to the Government’s appeal of the District
Court’s Rule 29 acquittal on Counts 19–20 involving
CUMA, Vederman asserts that these two counts also were
affected by spillover evidence because the Government’s
theory tied the bribery charges to the actions taken to
defraud CUMA. In that we are vacating Vederman’s
convictions of Counts 16–18 and 22–23 based on
McDonnell and remanding for further proceedings, we
need address only Vederman’s argument of prejudicial
spillover as it relates to the charges involving CUMA in
Counts 19–20, charges that we will reinstate.
The District Court’s acquittal of Vederman on the
RICO count establishes that step one of the Wright
spillover test has been met. “[T]he jury heard evidence that
would have been inadmissible at a trial limited” to the
bribery and CUMA-related counts. Wright, 665 F.3d at
575 (quoting Cross, 308 F.3d at 317).
Wright’s second step requires “ask[ing] whether
that evidence (the ‘spillover evidence’) was prejudicial.”
Id. Vederman submits that the RICO, bribery, and CUMA-
related charges were intertwined “in that the acts relating
to the alleged bribery scheme were also charged as
‘predicates’ under RICO.” Vederman Br. 49. We disagree.
To be sure, the RICO, bribery, and CUMA Counts
are related to one another. But in this instance, mere
relatedness is not enough to demonstrate the foundation
necessary for spillover. This is so because the bribery
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charges were a predicate to the RICO charge. In other
words, the jury had to determine if Vederman was guilty
of bribery, and the jury then used that “predicate” to
consider whether he was also guilty of the RICO
conspiracy. Thus, the necessarily tiered structure of the
questions presented to the jury refute Vederman’s
argument that the counts were intertwined.
That the bribery charges were predicates for the
RICO conspiracy further demonstrates that the “evidence
for the different counts was sufficiently distinct to support
the verdict on other separate counts.” Pelullo II, 14 F.3d at
898. Regardless of the evidence pertaining solely to the
RICO conviction, the evidence supporting both the bribery
charges and the charges involving CUMA in Counts 19–
20 would have remained the same.
The next factor we address is “whether the
elimination of the count on which the defendant was
invalidly convicted would have significantly changed the
[defendant’s] strategy of the trial.” Id. As Vederman
argues, “the RICO charge interfered with Vederman’s
central defense to the bribery charge—that his gestures
toward Fattah ‘were motivated purely by friendship.’ ”
Vederman Reply Br. 28 (citing Gov’t Br. 200). In other
words, the “RICO count made it dangerous to unduly
emphasize [Vederman’s] close friendship” with Fattah. Id.From Vederman’s perspective, “a bribery-only trial would
have reduced this danger and allowed a freer presentation
of the defense.” Id.162
It is quite likely that Vederman’s claim of friendship
would have been less risky as a litigation strategy if he had
not been facing a RICO charge. But Vederman
nevertheless chose to take that risk and fully presented his
friendship argument to the jury. Moreover, while
Vederman’s reliance on friendship might have helped him
defend against the bribery charges, that friendship would
not have altered the evidence pertaining to Counts 19–20
involving CUMA. Whether done for friendship or some
other reason, submitting fraudulent information to a
financial institution is unlawful.
Finally, we “examine the charges, the language that
the government used, and the evidence introduced during
the trial to see whether they are ‘of the sort to arouse a
jury.’ ” Pelullo II, 14 F.3d at 899 (quoting United States v.
Ivic, 700 F.2d 51, 65 (2d Cir. 1983)). Vederman points out
that Fattah was presented as “a backslapping, corrupt party
boss,” with “predictable spillover to his friend and
associate, Vederman.” Vederman Br. 50 (quoting United
States v. Murphy, 323 F.3d 102, 118 (3d Cir. 2003)). But
this description was of Fattah, not Vederman. Vederman
cites other examples of prejudicial, pejorative language in
the Government’s closing arguments. At one point, the
Government referred to “conspirators engaged in what can
only be described as a white collar crime spree from
Philadelphia all the way to Washington, D.C.” and
promised “to untangle the webs of lies and deception that
these conspirators spun.” Vederman Br. 51 (quoting
JA5295, 5297). Whatever rhetorical flair these words
163
contained, they did not obscure the evidence which
independently supported the convictions for bank fraud at
Count 19 and for making false statements to CUMA at
Count 20. Accordingly, because we presume that the jury
followed the District Court’s instruction to consider and to
weigh separately the evidence on each count and as to each
defendant, and because the evidence supporting the
CUMA-related charges in Counts 19–20 is sufficiently
distinct from the RICO conspiracy, we conclude that
Vederman’s spillover argument is unavailing.38
XII. Conclusion
We will vacate the convictions of Chaka Fattah, Sr.
and Herbert Vederman as to Counts 16, 17, 18, 22, and 23.
38
Nicholas adopted “pertinent portions” of the prejudicial
spillover arguments advanced by Vederman and Fattah.
Nicholas Br. 65. Her spillover claim has no more merit
than theirs. Nicholas’s involvement in the RICO
conspiracy was distinct from the bribery charges, which
did not unfairly influence the other counts. As to
Nicholas’s assertion that the NOAA charges did not
belong in the indictment and should have been tried
separately, we fail to see how this relates to a claim of
prejudicial spillover. To the extent it challenges the
District Court’s denial of Nicholas’s motion for a
severance, Nicholas has failed to provide legal support for
such a contention. See Fed. R. App. P. 28(a)(8)(A); United
States v. Irizarry, 341 F.3d 273, 305 (3d Cir. 2003).
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Fattah and Vederman may be retried on these counts
before a properly instructed jury. We will also reverse the
District Court’s judgment of acquittal on Counts 19 and
20. The convictions of Chaka Fattah, Sr. and Herbert
Vederman will be reinstated, and the case will be
remanded for sentencing on those counts. In all other
respects, the judgments of the District Court will be
affirmed.
165