United States v. Lore ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
12-2-2005
USA v. Lore
Precedential or Non-Precedential: Precedential
Docket No. 03-3043
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 03-3043, 03-3217, 03-4349, 03-4350
UNITED STATES OF AMERICA
v.
JOSEPH LORE,
Appellant in No. 03-3043
UNITED STATES OF AMERICA
v.
DENISE BOHN,
Appellant in No. 03-3217
UNITED STATES OF AMERICA
v.
JOSEPH PELLICCIA,
Appellant in No. 03-4349
UNITED STATES OF AMERICA
v.
WILLIAM HURLEY,
Appellant in No. 03-4350
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Crim. No. 99- cr-00292-4/3/6/5)
Honorable Mary Little Cooper, District Judge
Submitted under Third Circuit LAR 34.1(a)
October 28, 2005
BEFORE: SLOVITER, FISHER, and GREENBERG, Circuit Judges
(Filed December 2, 2005)
Marc Fernich
570 Lexington Avenue
16th Floor
New York, NY 10022
Attorney for Appellant Joseph Lore in No. 03-3043
Michael P. Koribanics
Koribanics & Koribanics
685 Van Houten Avenue
Clifton, NJ 07012
Attorney for Appellant Denise Bohn in No. 03-3217
Joseph Pelliccia
50 West 48th Street
Bayonne, NJ 07002
Attorney pro se in 03-4349
Leonard Meyerson
Miller, Meyerson, Schwartz & Corbo
955 West Side Avenue
Jersey City, NJ 07306
Attorney for Appellant William Hurley In No. 03-4350
2
Christopher J. Christie
United States Attorney
George S. Leone
Chief, Appeals Division
Attorneys for Appellee
David B. Lat
Assistant U.S. Attorney
970 Broad Street
Newark, NJ 07102-2535
Attorneys for Appellee
OPINION OF THE COURT
GREENBERG, Circuit Judge.
I. INTRODUCTION
These matters come on before this court on partially
consolidated appeals following convictions at a jury trial in the district
court on December 17, 2001, and the subsequent entry of judgments
of convictions and sentences on July 10, 2003, as to Joseph Lore, July
25, 2003, as to Denise Bohn, and October 31, 2003, as to Joseph
Pelliccia and William Hurley. The case originated on June 2, 1999,
when a grand jury returned an indictment against Bohn, Eugene
G’Sell and John Angelone charging them with conspiracy to embezzle
funds from Local 1588 of the International Longshoremen’s
Association (the “union” or “Local 1588"), contrary to the Labor-
Management Reporting and Disclosure Act of 1959, 29 U.S.C. §
501(c) (“section 501(c)”), in violation of 18 U.S.C. § 371.
Subsequently, a grand jury returned a superseding indictment on
December 19, 2000, charging defendants-appellants, Lore, Bohn,
Pelliccia and Hurley (collectively, “defendants”), along with Thomas
Rackley, who is not a party on these appeals, among other things, with
conspiracy to embezzle and embezzlement of funds from Local 1588.
In these proceedings, defendants appeal from their convictions by
challenging numerous rulings by the district court made prior to,
during, and after their three-week trial that began in November 2001.
Lore and Bohn, but not Pelliccia and Hurley, also challenge their
sentences in light of United States v. Booker, 543 U.S. , 125 S.Ct.
738 (2005).
3
II. FACTUAL AND PROCEDURAL HISTORY
A. The Parties and Conduct at Issue
Local 1588, which is headquartered in Bayonne, New Jersey,
is a labor organization comprised of longshoremen, dockworkers and
others who service the shipping industry.1 In 1990, the government
asserted that its president and secretary-treasurer, respectively Blaze
Terraciano and Dominic Sanzo, had allowed organized crime
elements into the union. As a result, the government initiated a civil
RICO action against Local 1588 seeking to purge the union of these
elements.2 The civil RICO action culminated in a consent order by
which the executive board of Local 1588 agreed, inter alia, that the
union’s officers and employees would not associate with Lore with
regard to any union business. The order was unusual inasmuch as
Lore was not an officer or member of Local 1588 but rather was the
hiring agent for International Terminal Operations, a waterfront entity
that employed many Local 1588 members. In that capacity Lore
controlled the work assignments of many union members.
In December 1990, Local 1588 elected G’Sell and Angelone
as its president and secretary-treasurer, respectively, to replace
Terraciano and Sanzo, who had been implicated in the civil RICO
action. Lore exerted significant influence over their election, but his
influence over Local 1588 was not limited to the selection of its
leadership for he exercised significant control over its payroll by
directing that the union place certain individuals, including Pelliccia
and Hurley, on it.
Bohn, who was Terraciano’s daughter, and was involved
romantically with Lore, staffed the Local 1588 office. According to
Angelone, she gave herself the title “Administrator.” Bohn was
1
Though we set forth the facts on the basis of the testimony
favorable to the government as the verdict winner, see United States v.
Pungitore, 910 F.2d 1084, 1097 (3d Cir. 1990), there is no real dispute
regarding some but not all of the facts we reference. In this opinion we
refer to the joint appendix Bohn filed as “J.A.” She also filed an
addendum to her appendix, and the other defendants and the government
filed additional appendices.
2
See also United States v. Carson, 52 F.3d 1173, 1176-80 (2d
Cir. 1995) (providing background information regarding Local 1588).
4
responsible for Local 1588's day-to-day financial operations, a power
that she exercised to give herself complete control over its books and
records. Thus, she drafted paychecks, paid bills, and conducted bank
transactions for the union. Her control was so complete that she did
not allow anyone else access to the union’s financial records and
checkbook– not even Angelone, who replaced Sanzo as Local 1588's
secretary-treasurer. Bohn enjoyed numerous benefits incidental to her
employment, including the use of a leased BMW, the expenses for
which Local 1588, at Lore’s prompting, paid. Furthermore, Bohn
received a Christmas bonus in an amount of her choice. Clearly,
Bohn was secure in her position for Lore successfully intervened on
her behalf when Angelone suggested terminating her employment.
As we have indicated, on June 2, 1999, a grand jury returned
an indictment charging G’Sell, Angelone, and Bohn with conspiring
to embezzle funds from Local 1588. In particular, the indictment
charged them with abusing union credit cards by improperly charging
personal expenses and obtaining kickbacks from vendors and service
providers who performed services for Local 1588. G’Sell and
Angelone pleaded guilty to one count of the indictment pursuant to
cooperating plea agreements, and, as a result, they testified on behalf
of the government at the trial in this case.
In the superseding indictment returned on December 19, 2000,
the grand jury charged, inter alia, that Lore, Bohn, Pelliccia, Hurley
and Rackley embezzled large sums of money from Local 1588 over a
period of years.3 These defendants pleaded not guilty following which
3
The superceding indictment included the following counts:
Count One, against Lore, Bohn, Hurley, Pelliccia and Rackley charged
a conspiracy against the victim union in violation of 18 U.S.C. § 371,
contrary to section 501(c). Count Two, against Lore, charged him with
making false statements to obtain worker’s disability benefits under the
Longshore and Harbor Workers’ Compensation Act, in violation of 33
U.S.C. § 931. Count Three, against Lore and Hurley, charged a section
501(c) violation for diverted salary payments. Count Four, against Lore
and Pelliccia, charged a section 501(c) violation for diverted salary
payments. Count Five, against Lore and Rackley, charged a section
501(c) violation for diverted salary payments. Counts Six, Seven and
Eight, against Bohn, charged section 501(c) violations in various
specified amounts relating to an alleged vendor kickback scheme. All
of the substantive charges (Counts Two through Eight) also charged
violations of the aiding and abetting statute, 18 U.S.C. § 2.
5
there was a three-week trial on the superceding indictment at which
the government alleged and demonstrated that they used three
methods to embezzle union funds: (1) a salary diversion scheme; (2)
credit card abuse; and (3) service provider kickbacks.
B. Salary Diversion Scheme
The salary diversion scheme appears to have been defendants’
most lucrative method of embezzlement. The scheme was
uncomplicated but effective. To carry it out Bohn prepared paychecks
for union members who were officers or employees of Local 1588,
independently of and in addition to their primary employment on the
waterfront. She did not, however, deliver the checks to the designated
payees. Rather, in a typical case G’Sell would endorse a check with
the payee’s name, and G’Sell or Bohn then would take the check to a
bank to be cashed. Thereafter, the cash was returned to the union hall
for disbursement, where half was delivered to Lore, usually by G’Sell,
and the other half went to the designated payee.
G’Sell testified that, after being elected president of Local
1588 in 1990, he understood that half of his and Angelone’s salaries
would be diverted to Lore. G’Sell further testified that he similarly
diverted to Lore half of Pelliccia’s and Hurley’s salaries, along with
the salaries of other persons, at various times while Local 1588
employed them. According to G’Sell, he informed each participant in
the scheme of the salary diversion to Lore, and they all acquiesced.
G’Sell testified that Bohn was aware of the salary diversion scheme
and, on at least one occasion, helped him count the money. Even
though it may seem strange that the payees would permit the diversion
of such significant portions of their payments from the union, even
without regard for Lore’s undoubted hold over the union and the
effect that that power had on the union officials, their acquiescence in
the scheme is actually not so surprising when it is considered that
testimony at the trial indicated that at least some of the payees
performed little or no useful services for Local 1588.4 Thus, it
appears that the payees sometimes were giving up something to which
they were not entitled. Therefore, in at least those instances, the union
and its membership, and not the payees, could be regarded as the sole
4
Defendants claim that the payees earned their salaries so this
point is disputed.
6
victims of the scheme.5 In total, the government alleged that Lore and
his co-conspirators diverted over $750,000 from Local 1588 through
the salary diversion scheme.
C. Credit Card Abuse
As union officers, G’Sell and Angelone obtained American
Express cards for union purchases and Local 1588 paid the American
Express bills. Through the use of these cards G’Sell and Angelone
incurred approximately $20,000 and $10,000, respectively, in charges
unrelated to the union. Bohn, though not issued a union credit card,
also participated in the credit card abuse by using G’Sell’s card. For
instance, she spent at least $11,000 in union funds on liquor and on
merchandise from a music store, dispatching G’Sell to retrieve her
items and to pay for them with his union credit card. Sharon Carballo,
who had been a close friend of Bohn during the time of the criminal
conduct in this case, testified regarding Bohn’s spending habits and
stated that she witnessed Bohn use G’Sell’s union credit card for
purchases unrelated to Local 1588's business at a department store.
D. Service Provider Kickbacks
Lore, Bohn, G’Sell and Angelone orchestrated the kickback
scheme with vendors and service providers. For example, one
kickback involved Jack Doris who furnished the union with apparel–
hats, jackets, sweatshirts and other clothing items. After receiving
checks from Bohn for apparel, he would cash the check at a bank and
return to the union hall with the kickback in cash, which he would
give to Bohn or G’Sell or both.
The vendor kickback scheme also involved various renovation
and construction projects at the union hall. For instance, on several
occasions the union commissioned the services of a fence company
that Lore’s longtime friend, Joe Toscano, owned. In one instance,
Toscano’s company constructed an eight-foot fence along one side of
the union hall parking lot and then constructed an identical eight-foot
fence a mere three inches in front of the first. Angelone testified that
the second fence was unnecessary, and cost double the cost of the first
fence. The government alleged that Toscano substantially
5
We do not suggest that our outcome turns on this point as our
result would be the same regardless of whether the payees earned all,
some, or none of their salaries.
7
overcharged the union on the fence project, and that he kicked back
the overcharge to Lore. In another instance, the union hired Vito
Bilotta to perform paving and roofing work. In his dealings with
Local 1588, Bilotta dealt exclusively with Bohn, with whom he may
have been involved romantically. She drafted weekly checks for
Bilotta’s services, totaling approximately $70,000, but there were no
work orders or invoices supporting the expenditures. In describing
Lore’s influence over the construction and renovation at the union
hall, Angelone recounted how Lore instructed him to cease
negotiating for lower prices on union hall construction and
remodeling.
E. Proceedings in the District Court
The trial on the superceding indictment began October 9,
2001, but the court declared a mistrial the following day after certain
jurors observed Lore making a threatening gesture toward the
government’s first witness, G’Sell. Consequently, the court selected a
new jury following which the trial began again on November 7, 2001.
After three weeks of testimony, the court submitted the case to the
jury on December 12, 2001. The jury returned a verdict of guilty as to
all defendants on all counts on December 17, 2001. Subsequently the
court sentenced Lore, Bohn, Pelliccia, Hurley and Rackley to
custodial terms of 70 months, 38 months, 24 months, 18 months and
13 months, respectively, followed by appropriate periods of
supervised release.6 Defendants (not including Rackley) have timely
appealed. Thus, as we have indicated, Rackley is not a party to these
proceedings. The district court had jurisdiction under 18 U.S.C. §
3231, and we have jurisdiction pursuant to 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a).
III. DISCUSSION7
6
We are setting forth the net custodial terms without breaking
them down to show that the sentences encompassed concurrent
components.
7
Each defendant filed a separate brief, but Lore, Bohn and
Pelliccia adopted by reference the arguments of their co-defendants to
the extent such arguments might be applicable to them and were not
inconsistent with their own contentions.
8
A. Section 501(c) Convictions
1. Statutory Interpretation
Defendants raise two arguments concerning the reach of 29
U.S.C. § 501(c). They argue that the salary diversion scheme was
beyond the scope of the conduct that section 501(c) prohibits, and
Bohn adds that she is not within the class of persons the section
covers. The district court rejected both arguments. We exercise
plenary review over defendants’ challenge to the district court’s
interpretation of 29 U.S.C. § 501(c). See United States v. Urban, 404
F.3d 754, 762 (3d Cir. 2005).
a. Conduct Covered by Section 501(c)
Lore, Pelliccia and Hurley contend that the salary diversion
scheme underlying their convictions is beyond the reach of section
501(c) which provides in pertinent part:
Any person who embezzles, steals, or unlawfully and
willfully abstracts or converts to his own use, or the
use of another, any of the moneys, funds, securities,
property, or other assets of a labor organization of
which he is an officer, or by which he is employed,
directly or indirectly, shall be fined not more than
$10,000 or imprisoned for not more than five years, or
both.
29 U.S.C. § 501(c).8 In United States v. Silverman, 430 F.2d 106 (2d
Cir. 1970), the court explained the crime that Congress intended to
establish in enacting section 501(c):
[Congress has] gone beyond the common law offense
of larceny and the old statutory crime of embezzlement
because ‘gaps or crevices have separated particular
crimes of this general class and guilty men have
8
Defendants challenge the applicability of section 501(c) to the
salary diversion scheme but do not challenge its applicability to the other
means underlying the conspiracy to embezzle– i.e., credit card abuse and
service providers kickbacks.
9
escaped through the breaches,’ Morissette v. United
States, 342 U.S. 246, 271-72, 72 S.Ct. 240, 254, 96 L.
Ed. 288 (1952). But, as was there held, despite minor
variations in language the common thread is that the
defendant, at some stage of the game, has taken
another person’s property or caused it to be taken,
knowing that the other person would not have wanted
that to be done. . . .
It is easy to understand how a union employee does
this when he ‘unlawfully and willfully’ uses union
funds in a manner that works to the personal benefit of
himself or the payee and does not benefit the union,
whether or not the union went through the form of
authorization; the ‘union’ presumably would have
objected if it had been able to speak freely.
Id. at 126-27 (internal citations omitted). As another court of appeals
has explained, the broad language of section 501(c) “would seem to
cover almost every kind of taking.” United States v. Harmon, 339
F.2d 354, 357 (6th Cir. 1964); see also United States v. Robinson, 512
F.2d 491, 494 (2d Cir. 1975) (“The statutory language condemns the
embezzlement or conversion not only of moneys, funds and securities,
but also of ‘property, or other assets of a labor organization . . .
directly or indirectly. . . .’”).
Defendants assert that their conduct cannot be regarded as a
taking of union funds because “lawfully earned salary payments are
not union funds within the scope of section 501(c).” Lore Br. at 15.
The argument contends that the payments to Lore came from bona
fide, authorized salaries and thus the scheme involved private
transactions rather than the embezzlement of union funds. In support
of this argument they cite United States v. Brill, 350 F.2d 171, 174
(2d Cir. 1965) (internal quotation marks omitted), for the proposition
that “section 501(c) does not prohibit any union officer or employee
from using his bona fide salary in any manner he or she may see fit.”
Lore Br. at 15; see also Hurley Br. at 22 (“It is axiomatic that one
cannot steal, embezzle moneys from oneself.”). In addition,
defendants devote much space in their briefs to their assertion that
Local 1588 benefitted from the salaried officials’ services.
Defendants’ attempts to recast the evidence, however, are
unpersuasive. The government’s proof established that the
10
designation of funds as “salary” was merely a clever scheme for
routing union funds to Lore, who directed that the union place the
payees on the payroll. Lore even controlled the amounts of what, in
reality, were nominal “salaries,” dictating that the union grant raises
for salaried officials when he wanted to increase the amount of money
diverted to him. Finally, there was no evidence that Lore, who was
not a union member, much less one of its officials, provided any
services or benefits to Local 1588 in exchange for the funds diverted
to him.9 In fact, the parties stipulated at trial that the consent order in
the civil RICO action we discussed above barred Local 1588 from
associating with Lore. But rather than heeding the consent order, it
appears that Lore regarded the union treasury as a personal money
access machine available for his use.
We recognize that the fraudulent scheme involved here was
novel. Indeed, as the district court noted in its sentencing
memorandum, “there are no reported cases in this or any circuit that
involve a salary diversion embezzlement scheme similar to that
perpetrated in this case.” Lore App. at 30. But this is not the first
time that a court has been tasked with assessing whether
unconventional chicanery falls within the ambit of section 501(c).
See, e.g., Robinson, 512 F.2d 491. In Robinson, a jury convicted a
union official and two union employees of violating section 501(c) by
converting union forms normally reserved for union members to grant
them priority status in regard to promotions, and selling them to new
recruits. On appeal, the court rejected the defendants’ argument that
they had not violated section 501(c) because the forms that they
converted had no intrinsic value and the union, rather than suffering a
loss, actually profited from the defendants’ activities. Id. at 494-95.
The court explained:
Although appellants claim that this is a case of first
impression, that is true only to the extent that the fact
9
Indeed, it is rather disingenuous for defendants to assert that the
salary diversion scheme was merely a series of private transactions and
to decry a “narrow focus on what the Salaried Officials did with their
money,” Lore Br. at 20. In reality, the payees of the union’s checks did
not realize, possess or otherwise beneficially enjoy their salaries for, as
the district court noted at a hearing on post-trial motions, the evidence
demonstrated that the checks representing the diverted funds did not
reach the payees but, instead, were “immediately cashed out and divvied
up,” with half of the salary going to Lore. J.A. at 5107-08.
11
pattern is unusual. . . . In our view, the activities of the
defendants fall within [the court’s] description [in
Silverman] of the crime Congress intended to establish.
They utilized the property of the union in a way which
benefitted themselves and not the union. Their action
was not authorized and presumably the [union] and its
membership would have objected had it been made
known.
Id. at 495-96 (citing Silverman, 430 F.2d at 126-27). Here,
defendants’ scheme similarly falls within the description of the crime
Congress intended to establish: the diversion of hundreds of
thousands of dollars in union funds disguised as “salary” was an
unlawful and willful misuse of union funds “that works to the
personal benefit of . . . the payee and does not benefit the union.” See
Silverman, 430 F.2d at 127.10
We also find unpersuasive defendants’ assertion that they
could not have violated section 501(c) because the diverted salaries
were “duly authorized by the union or its president” or because the
union benefitted from the services of the salaried officials. See, e.g.,
Hurley Br. at 21. We have recognized the “obvious problems”
concomitant with any approach to section 501(c) that places too much
weight on authorization and union benefit. United States v. Oliva, 46
F.3d 320, 323-24 (3d Cir. 1995). In Oliva, we explained that there is
“potential for abusing” authorization by those doing the authorizing,
who then are “in the strongest position to justify [conduct] as a benefit
to the union in ways that are not easily disproven.” Id. at 324.
Instead, we held that authorization and benefit are “merely factors that
may be considered as bearing on intent.” Id.; accord United States v.
Vandenbergen, 969 F.2d 338, 340 (7th Cir. 1992) (“We can imagine
cases in which formally authorized expenditures violate section
501(c).”).11 Thus, it does not matter whether the union “went through
10
We do not suggest that we predicate our result on the large
amount of money involved.
11
The Court of Appeals for the Seventh Circuit has explained that
even when expenditures are authorized, the authorization is a nullity if
obtained “without the disclosure of material information.” United States
v. Carlino, 143 F.3d 340, 344 (7th Cir. 1998). See also United States v.
Butler, 954 F.2d 114, 119 (2d Cir. 1992) (affirming section 501(c)
conviction and noting “[a]n authorization obtained without disclosure of
12
the form of authorization,” because the union, which a district court in
a consent order had enjoined permanently from even associating with
Lore, “presumably would have objected if it had been able to speak
freely.” Silverman, 430 F.2d at 127.12
Accordingly, we reject defendants’ construction, which
elevates form over substance to allow their “escape[ ] through the
breaches” of gaps and crevices which Congress sought to close with
section 501(c)’s broad prohibition on pilfering union funds.
b. Persons Covered by Section 501(c)
Bohn asserts that she is not among the class of persons section
501(c) covers because she did not have a fiduciary relationship with
Local 1588. We find that this argument lacks merit.
Section 501(c) does not limit its coverage to fiduciary officials
and employees. Instead, the clear text covers “any person” employed
by a union, without regard to any other statute setting forth fiduciary
obligations of union officers. See United States v. Capanegro, 576
F.2d 973, 978 (2d Cir. 1978) (“We have heretofore affirmed the
convictions under section 501(c) of defendants who held such
relatively menial positions as Patrolman and Master-at-Arms of a
labor organization.”).13 Neither the statutory definition of “person”
nor that of “employee” references fiduciary relationships. See 29
U.S.C. § 402(d),(f). Moreover, Bohn misapprehends our opinion in
Oliva, 46 F.3d 320, which she cites for her fiduciary relationship
argument, because in Oliva we neither were presented with nor ruled
on the issue of whether a section 501(c) violation requires a fiduciary
. . . material information is obviously a nullity”).
12
It is significant that, notwithstanding the purported
authorizations and union benefits, the jury here concluded that
defendants acted knowingly, willfully, and unlawfully, “with intent to
deprive Local 1588 of the use of its funds.” See J.A. at 4959. We know
the jury made that finding because the district court in its charge told the
jury that it had to do so to convict defendants on Counts Three through
Eight, and the jury did exactly that.
13
Though we accept the court’s opinion in Capanegro, and thus
rely on it, we do not join in its characterization of the positions involved
as “menial.”
13
relationship. We now make clear that it does not have such a
requirement.
2. Sufficiency of Evidence
Bohn, Pelliccia and Hurley unsuccessfully filed post-trial
motions for judgment of acquittal pursuant to Fed. R. Crim. P. 29,
arguing that the government failed to adduce sufficient evidence to
support their section 501(c)-related convictions. Moreover, in
addition to contending in a less focused way that there was
insufficient evidence to support her conspiracy conviction, Bohn
argues that she was convicted solely on the basis of her association
with Lore. See Bohn Br. at 26 (“Basically, the Government’s case
against Denise Bohn was essentially based on her relationship with
Joe Lore.”). Pelliccia and Hurley contend that the evidence that they
had a fraudulent intent was purely circumstantial and insufficient.14
“The burden on a defendant who raises a challenge to the
sufficiency of the evidence is extremely high.” United States v.
Serafini, 233 F.3d 759, 770 (3d Cir. 2000). In reviewing a jury
verdict for sufficiency of the evidence, “we determine whether there is
substantial evidence that, when viewed in the light most favorable to
the government, would allow a rational trier of fact to convict.”
United States v. Helbling, 209 F.3d 226, 238 (3d Cir. 2000) (quoting
Gov’t of the Virgin Islands v. Charles, 72 F.3d 401, 410 (3d Cir.
1995)). In other words, we “must consider the evidence in the light
most favorable to the government and affirm the judgment if there is
substantial evidence from which any rational trier of fact could find
guilt beyond a reasonable doubt.” United States v. Frorup, 963 F.2d
41, 42 (3d Cir. 1992) (citing Glasser v. United States, 315 U.S. 60, 80,
62 S.Ct. 457, 469 (1942)). Moreover, we review both direct and
14
The government asserts that Hurley’s and Pelliccia’s section
501(c)-related arguments, “while cast as a sufficiency challenge, [are]
properly viewed as presenting the same statutory interpretation as
Lore’s.” Gov’t. Br. at 21. We disagree. Although the bulk of their
argument challenging the section 501(c)-related convictions mirrors the
statutory argument, they also challenge the sufficiency of evidence
establishing intent. See Pelliccia Br. at 3-3C (asserting “insufficient
evidence” that he “knew that his actions, of giving [money] back to
G’Sell . . . was furthering a crime”); Hurley Br. at 28 (“The evidence did
not show knowledge and fraudulent intent.”). Accordingly, we address
their insufficiency claim insofar as it relates to intent.
14
circumstantial evidence where there are sufficiency of the evidence
questions. See United States v. Kapp, 781 F.2d 1008, 1010 (3d Cir.
1986). None of the defendants can sustain this heavy burden on the
sufficiency of evidence issue.
The record is replete with evidence with regard to Bohn
sufficient to support her conviction. In denying Bohn’s motion for a
judgment of acquittal, the district court chronicled much of the
evidence establishing her guilt. This evidence included, but was not
limited to, testimony linking Bohn to all three methods alleged in the
conspiracy: (1) negotiating and endorsing checks associated with the
salary diversion scheme, the proceeds of which she helped divide; (2)
processing all inflated bills associated with the vendor kickback
scheme; and (3) using a union credit card for personal use and
spending union funds to purchase liquor. Thus, contrary to Bohn’s
contention, the jury did not convict her solely on the basis of her
association with Lore. Indeed, her criminal conduct with respect to
Local 1588 was uncabined and demonstrated that she had no more
interest in ensuring that the union’s funds were spent properly than
did Lore.
Pelliccia’s and Hurley’s challenges to the sufficiency of
evidence establishing intent, which they describe as largely
circumstantial, are also devoid of merit. We have held that all the
elements of a conspiracy charge, including intent and knowledge of
illicit purpose, “may be proven entirely by circumstantial evidence.”
United States v. Schramm, 75 F.3d 156, 159 (3d Cir. 1996) (internal
citation omitted); see also United States v. Klein, 515 F.2d 751, 754
(3d Cir. 1975) (“Circumstantial evidence is clearly proper . . .
especially in a conspiracy case where direct evidence is likely to be
scant.”); United States v. Stubin, 446 F.2d 457, 461 (3d Cir. 1971)
(holding that circumstantial evidence may support finding of intent in
a prosecution under section 501(c)). There was compelling evidence
from which to infer Pellicia’s and Hurley’s intent and knowledge of
illicit purpose, including evidence that they participated in the scheme
with knowledge that half their salaries would be diverted to Lore. For
example, G’Sell testified that he explained the salary diversion
scheme to Pelliccia and Hurley. It does not matter that the co-
conspirators did not discuss the fraudulent nature of their actions. See
United States v. Anderskow, 88 F.3d 245, 254 (3d Cir. 1996).
B. Denial of Severance
15
Bohn and Hurley assert that the spillover of evidence relating
to Lore and, in particular, the evidence on Count Two which charged
Lore with making false statements to obtain worker’s disability
benefits under the Longshore and Harbor Workers’ Compensation
Act, in violation of 33 U.S.C. § 931, prejudiced them. This position,
however, is in tension with “the fundamental principle that the federal
system prefers joint trials of defendants who are indicted together
because joint trials promote efficiency and serve the interests of
justice by avoiding the scandal and inequity of inconsistent verdicts.”
United States v. Urban, 404 F.3d at 775 (quoting Zafiro v. United
States, 506 U.S. 534, 537, 113 S.Ct. 933, 937 (1993) (internal
quotation marks omitted)). For this reason the choice of whether to
sever defendants’ trials rests in the sound discretion of the district
courts. Accordingly, we review a district court’s denial of a motion to
sever for abuse of discretion. Id. A court should grant severance
under Fed. R. Crim. P. 14 “only if there is a serious risk that a joint
trial would compromise a specific trial right of one of the defendants,
or prevent the jury from making a reliable judgment about guilt or
innocence.” Id. (citing Zafiro, 506 U.S. at 539, 113 S.Ct. at 938).
Defendants seeking a severance bear a “heavy burden” and must
demonstrate not only that the court would abuse its discretion if it
denied severance, “but also that the denial of severance would lead to
clear and substantial prejudice resulting in a manifestly unfair trial.”
Id. (internal citations and quotations omitted).
Neither Bohn nor Hurley can meet the burden to show that the
district court erred under this standard. The fact that Lore may have
been the only defendant the grand jury charged in connection with
making a false worker’s disability claim is not determinative. We see
no reason why, in a joint trial of defendants charged with participating
in a conspiracy, the fact that the grand jury charged one defendant
separately with an additional criminal act somehow would interfere
with the petite jury’s ability to consider the evidence against each
defendant on each count separately. See United States v. Sandini, 888
F.2d 300, 307 (3d Cir. 1989). Notably, the government’s proof
regarding Count Two consisted largely of testimony of G’Sell and
Angelone, co-conspirators in the embezzlement scheme. In fact, there
was nothing unusual in the joinder of charges and defendants in this
case for, as we have recognized, “undoubtedly, there are many
criminal cases in which defendants are tried together on different
counts, so that all the evidence is not germane to all the counts against
each defendant.” Id. Indeed, the Federal Rules of Criminal Procedure
in allowing joinder of defendants expressly contemplate as much:
16
“All defendants need not be charged in each count.” Fed. R. Crim. P.
8(b).
Bohn and Hurley claim prejudice from the spillover of
evidence portraying Lore in a more negative light than they or relating
to the false accident charge, but their arguments in this regard also
fail. We long have held that “a defendant is not entitled to a
severance merely because evidence against a co-defendant is more
damaging than the evidence against the moving party.” United States
v. Somers, 496 F.2d 723, 730 (3d Cir. 1974). Instead, the relevant
inquiry is “whether the jury will be able to compartmentalize the
evidence as it relates to separate defendants in view of its volume and
limited admissibility.” United States v. Davis, 397 F.3d 173, 182 (3d
Cir. 2005) (internal quotation marks omitted). In this case the false
accident claim charge underlying the claim of prejudice was relatively
straightforward and discrete, not involving overly technical or
scientific issues. In these circumstances we do not doubt that the jury
reasonably could have been expected to compartmentalize the
evidence as it related to Lore and actually did so. See id. Moreover,
the district court instructed the jury several times to compartmentalize
the evidence by considering the evidence separately as to each
defendant and each count. We presume that the jury followed the
instructions, and thus we regard the instructions as “persuasive
evidence that refusals to sever did not prejudice the defendant[s.]”
Urban, 404 F.3d at 776 (citing United States v. Voigt, 89 F.3d 1050,
1096 (3d Cir. 1996)).
Finally, defendants do not satisfy their heavy burden by
claiming that the district court abused its discretion in denying their
renewed motions to sever after an incident during the trial in which
certain jurors reported that Lore had walked closer to them outside of
the courtroom than they would have expected. Though threats made to
a juror in some instances could undermine a defendant’s right to a fair
and impartial trial, we have no reason to characterize Lore’s conduct
in walking near jurors as a threat to the jurors or to believe that it
undermined defendants’ right to a fair trial. In this regard we point to
the district court’s description of the incident:
Several of the jurors mentioned to [the Court] today
that they felt that Mr. Lore was walking in their
vicinity at an uncomfortably close range. He said
nothing to them. He did not eyeball them or anything,
but they noticed it to the degree that they mentioned it
17
to [the Court]. They hastened to add that they didn’t
feel anything improper had been done. And it didn’t
affect their ability to, you know, perceive the events in
the courtroom without bias at all.
J.A. at 4461 (emphasis added). In denying the motion for severance,
the court explained that the incident did not involve any
communication, either verbal or non-verbal, and that the occurrence
was the inevitable result of persons involved in the case occupying
common areas, like sidewalks. Moreover, “out of extreme caution,”
the court instructed defense counsel to keep their clients “in tow, at all
times.” J.A. at 4487. On this record, we cannot hold that the district
court abused its discretion in denying the motions to sever.
C. Bohn’s Fifth Amendment Challenge
Bohn contends that the district court committed reversible
error in denying her two motions for mistrial based upon perceived
Fifth Amendment violations stemming from two sources: (1) a
statement made by the prosecution in its opening; and (2) an answer
given by a witness during trial. In this regard we observe that Bohn
did not testify. Our review of the record satisfies us that the district
court properly denied the motions for mistrial.
1. Statement by Prosecution
The standard of review for allegedly prejudicial comments by
the prosecution in its opening statement varies depending upon
whether the error is constitutional or non-constitutional. Helbling,
209 F.3d at 241. “If the error is non-constitutional, we will affirm
when it is highly probable that the error did not contribute to the
judgment”; but “if the error is constitutional, we will affirm if we find
that the error is harmless beyond a reasonable doubt.” Id. (internal
citations and quotations omitted). Here we are satisfied that even
under the most stringent harmless error analysis, we cannot conclude
that the statement to which Bohn points in the prosecution’s opening
prejudiced her. The allegedly prejudicial comment to which she
points was in the prosecutor’s discussion of the service provider fraud
and was as follows:
I’m going to call as witnesses two of the contractors
[involved in the scheme], Mr. Vito Ballotta [sic] and
Mr. Joe Toscano. Wait until you hear Joe Toscano’s
18
scam. Joe Toscano has a fence company in Bayonne.
Personal friend of Joe Lore’s. In fact, Mr. G’Sell will
tell you that he, Mr. G’Sell and his wife, Mr. Toscano
and his wife and Mr. Lore and his girlfriend went out
to dinner. Mr. Toscano comes onboard to put up a
fence around– actually around part of the parking lot.
Now again, remember what it is, 20 by 60 or 70 feet,
$57,000 to put a fence. He didn’t put one fence. And
I’ll show you photographs. He put up a fence and then
was told to put up another fence three inches from it.
Three inches. Chainlink fence, three inches apart. The
first chainlink fence cost the Union $9,000. He put up
the exact same fence three inches apart from the other
one and charged them $20,000. Where did the money
go? They have some explaining to do.
J.A. at 444 (emphasis added). Specifically, Bohn claims that the
prosecutor’s statement in the final sentence that we have quoted,
“They have some explaining to do,” violated her Fifth Amendment
protections. Bohn Br. at 36-37.15 But, as the district court explained
when it denied the motion for a mistrial predicated on the statement,
when the statement is considered in context it refers not to Bohn but
to the contractors, Bilotta and Toscano, whom the prosecutor said he
would call as witnesses. Indeed, the most natural reading of “they” at
the end of this remark is to treat it as referring to the witnesses the
prosecution identified at the outset of the remark, as opposed to Bohn,
whom the prosecutor did not even name.
2. Statement by Angelone
Bohn’s claim that her Fifth Amendment rights were violated
when, in response to questioning by counsel for Lore about why
certain checks were not supported by invoices, Angelone replied,
“You’d have to ask Denise. She handled the checkbook,” is similarly
unavailing. J.A. at 2673. Bohn claims this remark caused the jury to
perceive her as “the best person . . . to come forward to explain
financial irregularities or purported criminality.” Bohn Br. at 39. We
15
Bohn did not object to the statement at the time the prosecutor
made it. But counsel for Lore did object, and his objection preserved the
objection for all defendants inasmuch as the district court deemed “all
defense counsel [to] join in every objection in every application, unless
[counsel] expressly opt[ed] out.” J.A. at 586.
19
review the denial of a motion for a mistrial based on a witness’s
allegedly prejudicial comments for an abuse of discretion. United
States v. Xavier, 2 F.3d 1281, 1285 (3d Cir. 1993). In reviewing the
denial of her motion on that standard, three factors guide our analysis:
(1) whether Angelone’s remarks were pronounced and persistent,
creating a likelihood they would mislead and prejudice the jury; (2)
the strength of the other evidence; and (3) curative action taken by the
district court. See id. Here, a single statement by a witness whose
testimony spanned five days hardly can be deemed “pronounced and
persistent,” and the record contains strong evidence of the extent of
Bohn’s participation in the illegal schemes. Moreover, even though
Bohn declined the district court’s offer to issue a specific curative
instruction at the time of Angelone’s statement, the court
subsequently instructed the jury regarding the defendants’ right to
refrain from testifying.
D. Bohn’s Sixth Amendment Confrontation Clause Challenge
Next Bohn claims that the district court violated her Sixth
Amendment Confrontation Clause rights because it placed limitations
on her cross-examination of a prosecution witness, Sharon Carballo,
regarding Carballo’s drug use over a decade earlier and her present
recovery treatment. The Supreme Court long has recognized that “the
Confrontation Clause guarantees an opportunity for effective cross-
examination, not cross-examination that is effective in whatever way,
and to whatever extent, the defense might wish.” Delaware v.
Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 294 (1985) (per curiam)
(emphasis in original). But a district court “retains wide latitude
insofar as the Confrontation Clause is concerned to impose reasonable
limits” on cross-examination to avoid, among other things,
harassment, prejudice, confusion of issues, or interrogation that is
only marginally relevant or is repetitive. United States v. Mussare,
405 F.3d 161, 169 (3d Cir. 2005) (internal citation omitted).
Accordingly, a court of appeals reviews limitations on cross-
examination for an abuse of discretion. Id. If we determine that there
was an abuse of discretion, we then must review the error to see if it is
harmless. United States v. Casoni, 950 F.2d 893, 902 (3d Cir. 1991).
We are satisfied that the district court did not abuse its
discretion in limiting Bohn’s cross-examination of Carballo. The
prosecution called Carballo to demonstrate Bohn’s abuse in the use of
union credit cards. In order to determine the permissible scope of
cross-examination the district court allowed Bohn’s counsel to
20
question Carballo at a voir dire outside of the presence of the jury. At
that time Carballo explained that she was a recovering heroin addict
who has been on a treatment program under the supervision of a
physician and counselors. She further explained that within that
program she takes methadose, a mild form of methadone that her
physician prescribed. Carballo also admitted that she had used
cocaine eleven years earlier and she acknowledged that she had been
convicted of the offense of cocaine possession in 1989, for which she
had been placed on probation. The district court ruled that the
conviction could not be used on cross-examination and determined
that her past drug use and present methadose treatment did not affect
her demeanor, method of expression, or apparent ability to process.16
In reaching its conclusions the district court acted well within
its discretion in limiting the scope of Bohn’s cross-examination of
Carballo. Moreover, the court properly adhered to its ruling in
denying Bohn’s counsel’s subsequent attempt to impeach Carballo’s
account of receiving gifts of champagne from Bohn predicated on the
attorney’s statement that, “in his experience recovering drug users
should remain alcohol-free as well as drug-free.” Bohn Br. at 42-43.
Considering that Carballo’s past drug use and present recovery efforts
had no connection to her testimony concerning Bohn’s spending
habits and use of union credit cards, and did not affect her credibility
as a witness, the district court did not abuse its discretion by limiting
the cross-examination of Carballo to exclude reference to these
matters.
E. Lore’s Sixth Amendment Confrontation Clause Challenge
Lore claims that the admission and misuse of grand jury
testimony of defendants Hurley and Rackley, who did not testify,
violated his Sixth Amendment rights. Specifically, Lore asserts that
the grand jury testimony was testimonial hearsay inadmissible under
Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004). We
exercise plenary review over Confrontation Clause challenges.
United States v. Trala, 386 F.3d 536, 543 (3d Cir. 2004) (internal
citation omitted). If evidence was admitted in contravention of Lore’s
confrontation rights, we must consider whether the error was harmless
beyond a reasonable doubt. See Lilly v. Virginia, 527 U.S. 116, 140,
119 S.Ct. 1887, 1901 (1999); United States v. Hinton, 423 F.3d 355,
16
We believe that the court was referring to processing
“information” though it did not use that word.
21
362 (3d Cir. 2005).
The Confrontation Clause of the Sixth Amendment affords an
accused the fundamental right to confront the witnesses against him.
Crawford, 541 U.S. at 42, 124 S.Ct. at 1359. The central function of
this right is to protect the accused from the use of ex parte
examinations as evidence against him in a criminal trial. Id. at 50,
124 S.Ct. at 1363. Accordingly, the Confrontation Clause prohibits
the admission of testimonial statements made by witnesses outside of
court, unless the witnesses are unavailable and the defendant had a
previous opportunity to cross examine him or her. Id. at 59, 124
S.Ct. at 1369; United States v. Hendricks, 395 F.3d 173, 178-79 (3d
Cir. 2005).
Hurley’s and Rackley’s grand jury testimony was
unquestionably “testimonial” within Crawford. See id. at 64, 124
S.Ct. at 1372 (listing grand jury testimony among examples of
“plainly testimonial statements”). Nonetheless, a conclusion that the
grand jury testimony was admitted properly is not inconsistent with
Crawford. As we held in Trala, testimonial statements are admissible
without prior cross-examination if they are not offered for their truth.
386 F.3d at 544 (“Crawford does not apply where the reliability of
testimonial evidence is not at issue[.]”); see also Crawford, 541 U.S.
at 59 n.9, 124 S.Ct. at 1369 n.9 (“The [Confrontation] Clause also
does not bar the use of testimonial statements for purposes other than
establishing the truth of the matter asserted.”). As the district court
observed, the grand jury testimony contains self-exculpatory
statements denying all wrongdoing. Thus, as in Trala, these
statements “were admitted because they were so obviously false.”
386 F.3d at 544-45. In addition to self-exculpatory statements, the
district court described the balance of the statements as factual
statements “totally innocuous as to the co-defendants based upon
what’s already in the record.” J.A. at 5221-22.
In any event, assuming, but not deciding, that the admission of
these statements violated Lore’s Sixth Amendment rights, the error
was harmless beyond a reasonable doubt inasmuch as there was
overwhelming evidence of Lore’s participation in the conspiracy.
This evidence included testimony from other witnesses who set forth
in convincing detail Lore’s participation in the salary diversion and
kickback schemes, and this testimony was corroborated independently
of the challenged grand jury statements. Moreover, the questioned
grand jury testimony did not name Lore, and the testimony was
22
“totally innocuous” and duplicative of other record evidence.
Finally, the district court properly instructed the jury to
consider Hurley’s grand jury testimony only in connection with the
government’s case against him and likewise to consider Rackley’s
grand jury testimony only with respect to the case against him.17 In
accordance with the instruction, in summation the prosecution
discussed the grand jury testimony only in the way that the court
instructed the jury that it could be used.
F. Purported Prosecutorial Misconduct
Lore contends that he is entitled to a new trial because of the
prosecutor’s “pervasive . . . misconduct” during his summation and
rebuttal arguments. See Lore Br. at 40. Specifically, Lore claims: (1)
that the prosecution misrepresented the contents of a stipulation; (2)
engaged in improper vouching; (3) impermissibly shifted the burden
of proof to him; and (4) gratuitously attacked defense counsel.
In reviewing the statements underlying Lore’s claim of
prosecutorial misconduct, we are mindful of the Supreme Court’s
admonition that:
a criminal conviction is not to be lightly overturned on
the basis of a prosecutor’s comments standing alone,
for the statements or conduct must be viewed in
context; only by so doing can it be determined whether
the prosecutor’s conduct affected the fairness of the
trial.
United States v. Young, 470 U.S. 1, 11, 105 S.Ct. 1038, 1044 (1985).
Accordingly, we review the district court’s ruling on any
contemporaneous objections for an abuse of discretion. United States
v. Brennan, 326 F.3d 176, 182 (3d Cir. 2003). If an appellate court
finds that there has been prosecutorial misconduct, it should reverse
unless the error is harmless. Id. (citing United States v. Zehrbach, 47
F.3d 1252, 1265 (3d Cir. 1995) (en banc)). An error is deemed
harmless if the court possesses “a sure conviction that [it] did not
prejudice the defendant.” Zehrbach, 47 F.3d at 1265 (internal
17
As we discussed above, the district court also instructed the jury
to compartmentalize the evidence and to consider the evidence
separately as to each defendant and each count.
23
quotation marks omitted). “Any non-contemporaneous objections are
subject to plain error review.”18 Brennan, 326 F.3d at 182. After our
review, we find Lore’s various challenges to the prosecution’s
summation and rebuttal unpersuasive.
1. Representation of Stipulation
Lore claims that the prosecution misrepresented the contents
of a stipulation related to the 1990 civil RICO action that the
government brought against Local 1588. The parties agreed on the
stipulation after defendants’ counsel sought to impeach G’Sell and
Angelone with inconsistent deposition testimony in connection with
the RICO action that alleged a background of organized crime and
corruption in Local 1588. The government asserted that this
impeachment opened the door to the underlying subject matter of the
civil RICO action. In lieu of evidence concerning the civil suit, the
parties agreed on a stipulation which the prosecutor read to the jury.
But before the prosecutor read it, the district court explained to the
jury that:
[A stipulation] is a long word that means that the
parties have agreed that a certain fact or facts exist.
So, the Government and each of the defendants have
entered into this as a stipulated fact. And you may,
therefore, regard these facts that [the prosecutor] is
going to read to you as proven in the case.
18
Lore asserts that all instances of purported prosecutorial
misconduct must be reviewed to determine if they were harmless errors
because he “duly objected” to them. Lore Br. at 41. Though Lore
provides citations to the record to demonstrate that there were
contemporaneous objections for three bases to support his claim of
misconduct, see J.A. at 4664 (use of stipulation), 4665-67 (shifting
burden), 4903-04 (attacks on counsel), he fails to provide a reference as
required by Third Circuit Local Appellate Rules to indicate “specific
pages of the appendix or place in the proceedings at which [his objection
to vouching] was raised, objected to and ruled upon.” 3d Cir. L.A.R.
28.1. Nevertheless, while a non-contemporaneous objection is reviewed
for plain error, Brennan, 326 F.3d at 182, thus suggesting that we should
use two different standards of review on the misconduct claim, in reality
the standard of review makes no difference in this case for the vouching
claim fails under either standard.
24
J.A. at 3735. The prosecutor then read the following stipulation to the
jury:
The parties hereby stipulate in 1992 and thereafter, the
Executive Board of Local 1588 agreed with the Federal
Government that the officers and employees of the
Local were not permitted to associate with Joseph Lore
who was neither a member nor an employee of the
Local with regard to any business of the Local. The
Board further agreed that it would not prohibit purely
social contact between Denise Bohn, who was then an
employee of the Local[,] and Mr. Lore. As long as that
contact did not occur in or about the waterfront,
including the Local’s offices.
J.A. at 3735-36. Defendants aggressively cross examined G’Sell
concerning his prior deposition testimony in the civil RICO litigation
in which he denied that Lore had been involved in the affairs of Local
1588. At trial, G’Sell explained that he lied during his depositions to
protect Lore.
Lore moved for a mistrial based on the prosecution’s
representation in summation that the stipulation supported the
inference that Lore had been involved in the affairs of Local 1588.
This challenge lacks merit. As the court explained to the jury, it could
regard the facts contained in the stipulation “as proven in the case.”
Defendants do not point to limitations that the parties placed on the
stipulation. Absent limitations, it was not improper for the
prosecution to draw fair inferences from the stipulation. United States
v. Sullivan, 803 F.2d 87, 91 (3d Cir. 1986) (“[T]he prosecution may
ask the jury to draw permissible inferences from anything that appears
in the record.”) (internal quotation marks and citation omitted). It was
reasonable and permissible to infer that Lore’s participation in the
affairs of Local 1588 precipitated its agreement with the government
to bar Lore from its affairs. Moreover, even if there had been an error
stemming from the prosecutor’s argument, it would have been
harmless under even the most exacting standard in light of the
extensive testimony that defendants elicited from G’Sell that he lied
in connection with the civil RICO investigation to obscure Lore’s
involvement in union affairs.
Lore also challenges certain remarks from the rebuttal
summation relating to the stipulation. However, contrary to Lore’s
25
argument, it does not appear that any defendant contemporaneously
objected to the purported misrepresentations he now cites in his brief.
Accordingly, we review these comments for plain error. Brennan, 326
F.3d at 182 (“Any non-contemporaneous objections are subject to
plain error review.”). Our review of these remarks in the context of
the full trial does not reveal “egregious error or a manifest miscarriage
of justice” necessary to support a finding of plain error, or indeed any
error at all, warranting a new trial. Rather, as with its original
summation remarks, the prosecution was asking the jury to draw
inferences from the stipulated facts in evidence that were entered
without limitation.
2. Vouching
Lore submits that the prosecution improperly vouched for the
credibility of the government’s key witnesses, G’Sell and Angelone.
A prosecutor improperly vouches when he (1) assures the jury that the
testimony of a government witness is credible, and (2) he bases his
assurance on either his claimed personal knowledge or other
information not contained in the record. Brennan, 326 F.3d at 183
(citing United States v. Walker, 155 F.3d 180, 187 (3d Cir. 1998)).
But when we determine whether statements to the jury improperly
vouched for a witness’s credibility we consider them in the context in
which they were given. Id. at 186. In the context of this case we
conclude that the challenged remarks did not constitute improper
vouching.
The first statement to which Lore points arose during the
prosecution’s summation. The prosecutor framed his comment as a
response to a “particular remark” made by the defense in its opening
that the prosecutor perceived as suggesting impropriety in using
G’Sell and Angelone as prosecution witnesses:
And I suggest to you, ladies and gentlemen, that that
particular remark indicates that not only – not the
Government is stupid, but the Government was corrupt
in putting up these witnesses just to win the case.
So corrupt or stupid or both, in order to win, would the
Government suborn perjury? Or am I simply stupid
because I didn’t bother to corroborate what Mr. G’Sell
said in any of his disclosure of this story or bother to
check on the story that Mr. Angelone told subsequent
26
to Mr. G’Sell? But as we go along, ladies and
gentlemen, you’ll see that not only was the story that
Mr. G’Sell told with regard to this embezzlement
corroborated by Mr. Angelone, but it was also
corroborated by other witnesses, other documentation
and other physical evidence. And that the case was
presented to you not as a collection of lies, perjured
testimony and fabricated documents, but in fact was
simply the truth based upon the testimony and based
upon the evidence that was presented.
J.A. at 4676-77 (emphasis added). Although the prosecutor asked
rhetorical questions implying that he would not suborn perjury and
that G’Sell was credible, he did not base his assurance on claimed
personal knowledge or evidence outside the record. On the contrary,
following the rhetorical question the prosecutor explained that he
based his assertion on the evidence of record, namely “corroborat[ion]
by Mr. Angelone . . . [and] by other witnesses, other documentation
and other physical evidence.” Rather than invoke information not
contained in the record, the prosecutor urged the jury to consider “the
evidence that was presented.”
Lore also points to selected references by the prosecution to
the fact that the government had subpoenaed business records of
Local 1588 prior to G’Sell’s cooperation, thus eliminating any
opportunity to fashion his testimony to the business records. Notably,
as the district court explained, the fact that the government had
obtained business records by subpoena was before the jury. Viewed
in context, these comments amounted to nothing more than an attempt
to dismiss the suggestion that G’Sell could have fabricated the version
of events that he recounted at trial, particularly because his version of
events was consistent with the documentary evidence the government
obtained through its subpoena. Moreover, throughout the comments
Lore cites, the prosecutor referenced the corroborating evidence of
record. Overall, there was no suggestion in the prosecutor’s
comments that he had material personal knowledge or other
information not contained in the record.
Finally, Lore points to the prosecution’s comment that
“[S]tupid or not, the Government might like blind squirrel [sic] might
have found a flaw in [G’Sell’s version of events], maybe over the
course of seven or eight years.” Lore Br. at 52 (citing J.A. at 4680).
But considered in context, this statement merely called attention to the
27
absence of evidence contradicting G’Sell’s version of events and to
the intricacies of the testimony that he was incapable of fabricating. It
is significant that the prosecutor followed immediately with specific
examples drawn from the evidence relating to the participation of the
co-defendants to buttress the notion that G’Sell was incapable of
fabricating the particulars of the conspiracy. Thus, considering that
defendants vigorously challenged G’Sell’s and Angelone’s testimony,
the prosecutor’s remarks should be understood as an argument that any
suggestion that G’Sell was lying was not supported by the evidence of
record– an argument that does not amount to vouching. See United
States v. Walker, 155 F.3d at 187 (“A prosecutor may argue in the
negative that the assertions made by defense counsel that a witness is
lying are not supported by the testimony in the record.”).
3. Shifting Burden of Proof
According to Lore, the prosecutor impermissibly shifted the
burden of proof to the defense in his summation by stating that “the
defense has several dilemmas that they are burdened with here” and
referring to various “dilemmas” the defendants faced after the
presentation of evidence. This argument lacks merit. As we have
explained, there is nothing improper about a prosecutor “attempt[ing]
to focus the jury’s attention on holes in the defense’s theory.” United
States v. Balter, 91 F.3d 427, 441 (3d Cir. 1996). “Such a comment
does not implicate any of the burden-shifting concerns that are raised
when a prosecutor points to a defendant’s failure to testify or
improperly suggests that the defendant has the burden of producing
evidence.” Id. Such is the case here– the prosecutor’s references to
“dilemmas” that “burdened” the defense were attempts to focus the
jury’s attention on perceived deficiencies in the defendants’ theory in
light of the evidence presented at trial. Accordingly, the district court
did not abuse its discretion in rejecting this challenge.
4. Attack on Defense Counsel
Lore contends that the prosecutor made a “gratuitous personal
attack” on defense counsel by posing a rhetorical question during
rebuttal summation asking whether the cross-examination of G’Sell
was “disingenuous” or “clever lawyering.” Lore Br. at 55-57.
Though personal attacks on the character of defense counsel in some
instances can rise to the level of misconduct, the single remark here
regarding defense tactics falls far short of that level. See United States
v. Millar, 79 F.3d 338, 343-44 (2d Cir. 1996) (holding that
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prosecution’s reference to defense as “hog wash” and a “smoke
screen” did not warrant new trial); United States v. Santiago, 46 F.3d
885, 892 (9th Cir. 1995) (holding that there was no error in permitting
prosecution comments that defense was devaluing the victim and
“dirtying up” witnesses); United States v. Hartmann, 958 F.2d 774,
785 (7th Cir. 1992) (holding that there was no error in allowing
prosecution remark that defense told a “whopper” and tried to mislead
the jury); cf. United States v. Friedman, 909 F.2d 705, 709 (2d Cir.
1990) (holding that it was plainly improper for prosecutor to remark,
“[w]hile some people . . . prosecute drug dealers and try to see them
brought to justice, there are others who defend them, try to get them
off, perhaps even for high fees”). Hartmann is particularly instructive
for, as the Court of Appeals for the Seventh Circuit has explained,
there is a distinction between comments directed at the tactics and
arguments advanced by defense counsel and those aimed at the
character of the attorneys themselves, with nothing inherently
improper about the former. See Hartmann, 958 F.2d at 785. Our
review of the transcript convinces us that the comments at issue here
amount to the former.
Moreover, when Lore’s counsel’s earlier remarks are
considered, it is evident that the prosecutor’s summation demonstrates
that “the prosecution was only meeting the defense on a level of the
defense’s own choosing.” United States v. LaSorsa, 480 F.2d 522,
526 (2d Cir. 1973). After all, prior to the rebuttal summation he now
challenges, counsel for Lore implied that the prosecution may have
suborned perjury or willfully permitted the prosecution witnesses to
testify falsely. See Supp. App. at 88-89 (“This idea of suborning
perjury . . . .”). In this context, the prosecution’s criticism of defense
tactics appears to be more of a defensive response rather than an
affirmative attack. See United States v. Pungitore, 910 F.2d 1084,
1126-27 (3d Cir. 1990) (explaining the “invited response doctrine,”
whereby “a prosecutor may neutralize improper defense arguments but
may not rely on them as a ‘springboard’ for the launching of
affirmative attacks upon the defendants.”). Thus, the remark about
“disingenuous” or “clever” lawyering– mildly inappropriate, at worst–
does not rise to the level of severity sufficient to require reversal.
G. Sentencing Challenges
The district court sentenced the defendants prior to the
Supreme Court’s decision in United States v. Booker, 543 U.S. __ ,
125 S.Ct. 738, holding that mandatory enhancement of a sentence
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under the Sentencing Guidelines based on facts found by the court
alone, in the absence of a waiver of a jury trial, violates the Sixth
Amendment. Id. at , 125 S.Ct. at 756. To remedy the constitutional
infirmity of the Guidelines, the Court severed that portion of the
statute making application of the Guidelines mandatory, rendering
them effectively advisory. Id. at , 125 S.Ct. at 764. Bohn and Lore
challenge their sentences in light of Booker. The government does not
oppose Bohn’s challenge but contends that we should not vacate
Lore’s sentence because “the District Court offered an alternative
sentencing rationale, in which it expressly stated its intention to
achieve the same Guidelines range through a different analysis.”
Gov’t Br. at 85.
The government, however, overstates the district court’s
“alternative sentencing rationale.” While the district court offered an
alternative to its loss calculation, the government points to nothing
that suggests that it contemplated a framework that was advisory
rather than mandatory. Nor are we able to “ascertain whether the
District Court would have imposed a greater or lesser sentence under
an advisory framework,” and therefore prejudice in a plain error
analysis “can be presumed.” See United States v. Davis, 407 F.3d
162, 164-65 (3d Cir. 2005) (en banc). Moreover, notwithstanding the
alternative to the loss calculation, the problem of enhancements based
upon facts found by the district court by a preponderance of the
evidence still remains. See Lore App. at 267-77 (district court
imposing enhancement for obstruction of justice based upon a
preponderance of the evidence).
Inasmuch as we have concluded that sentencing issues that
arise in light of Booker best are determined by the district court in the
first instance, Davis, 407 F.3d at 165-66, we are satisfied that the
district court should resentence Bohn and Lore. The district court,
however, need not resentence Pelliccia or Hurley as neither challenges
his sentence.
IV. CONCLUSION
For the foregoing reasons, we will affirm the judgments of
conviction and sentence of Pelliccia and Hurley and will affirm the
judgments of conviction of Lore and Bohn, but we will vacate the
sentences imposed on them and will remand their cases to the district
court for resentencing.
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