United States v. Wayne Bryant , 655 F.3d 232 ( 2011 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
Nos. 09-3243 & 09-3275
_______________
UNITED STATES OF AMERICA
v.
WAYNE R. BRYANT,
Appellant (09-3243)
R. MICHAEL GALLAGHER,
Appellant (09-3275)
_______________
On Appeal from the United States District Court
For the District of New Jersey
(D.C. Criminal Action Nos. 3-07-cr-00267-001/2)
District Judge: Honorable Freda L. Wolfson
_______________
Argued March 8, 2011
_______________
Before: SCIRICA, AMBRO,
and VANASKIE, Circuit Judges
(Opinion filed: August 25, 2011)
Lisa A. Mathewson, Esquire (Argued)
123 South Broad Street, Suite 810
Philadelphia, PA 19109-0000
Carl D. Poplar, Esquire
1010 Kings Highway South, Building Two
Cherry Hill, NJ 08034-0000
Counsel for Appellant
Wayne R. Bryant
Jeremy D. Frey, Esquire (Argued)
Pepper Hamilton
18th & Arch Streets
3000 Two Logan Square
Philadelphia, PA 19103-0000
Ralph A. Jacobs, Esquire (Argued)
Jacobs & Singer
1515 Market Street, Suite 705
Philadelphia, PA 19102
Counsel for Appellant,
R. Michael Gallagher
Paul J. Fishman
United States Attorney
Mark E. Coyne, Esquire
Office of United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102-0000
2
Norm Gross, Esquire (Argued)
Office of United States Attorney
Camden Federal Building & Courthouse
401 Market Street
P.O. Box 2098, 4th Floor
Camden, NJ 08101-0000
Counsel for Appellee
_______________
OPINION OF THE COURT
_______________
AMBRO, Circuit Judge
This case involves the federal crimes of honest
services fraud, mail fraud, and bribery. Appellants Wayne
Bryant and R. Michael Gallagher were charged with six
counts of honest services fraud, in violation of 18 U.S.C.
§§ 1341, 1343 and 1346 (the “honest services fraud counts”),
and one count each of bribery in connection with a state
agency that receives federal funds, in violation of 18 U.S.C.
§ 666(a) (the “bribery counts”), all in connection with a
scheme to defraud the citizens of the State of New Jersey of
Bryant’s honest services as a State Senator. Counts 9-13
charged Bryant with mail fraud, in violation of 18 U.S.C.
§ 1341, in connection with a second scheme involving his
state pension application. A jury convicted Bryant on all
counts and Gallagher on all counts but one, which dealt with
the mailing of Bryant’s 2003 Financial Disclosure statement.
Their sentences included imprisonment—48 months for
Bryant and 18 months for Gallagher—and joint restitution in
3
the amount of $113,167. For the reasons that follow, we
affirm their convictions and the restitution order.
I. Background
Gallagher was formerly Dean of the School of
Osteopathic Medicine (“SOM”) of the University of Medicine
and Dentistry of New Jersey (“UMDNJ”). Bryant, as noted,
was a New Jersey State Senator. They were indicted in 2007.
The charges stemmed from an alleged quid pro quo
arrangement in which Gallagher gave Bryant a “low-show”
job at SOM (meaning he provided only minimal or nominal
services) as a “Program Support Coordinator,” in which
position he received an annual salary of $35,000 (and a
$5,000 bonus), in exchange for Bryant’s efforts as Chairman
of the Senate Appropriations Committee to funnel State
funding to SOM. The quo was a “success”: during Bryant’s
tenure at SOM, the institution gained an additional $10
million in funding over three years. Based on that same
scheme, Bryant and Gallagher were also charged under the
federal bribery statute—Bryant for corruptly soliciting and
demanding the SOM salary and Gallagher for corruptly
giving the salary.
In a second scheme, involving only Bryant, the
Government alleged that he also attempted to use a “no-
show” job (meaning he personally provided no services at all)
as an attorney for the Gloucester County Board of Social
Services (the “Social Services Board”) to increase his pension
benefits. Specifically, the Government introduced evidence
at trial showing that Bryant falsely reported that he had
worked numerous hours providing legal services to the Social
Services Board when he had not provided those services at all
but had delegated his work to associates at his private law
4
firm. In other words, Bryant claimed pensionable time credit
for work he did not do. In New Jersey, the amount of pension
benefits for which a public servant is eligible depends on the
number of public sector jobs held. Thus, by accumulating
public sector jobs, but not actually performing the duties
commensurate with the positions, the Government argued that
Bryant fraudulently inflated his pension eligibility.
After Appellants’ convictions in November 2008, the
District Court denied their motions for a judgment of acquittal
or a new trial and this appeal followed. The District Court
had jurisdiction under 28 U.S.C. § 3231. We have
jurisdiction under 28 U.S.C. § 1291.
Appellants challenge their convictions on the
following grounds: they argue that the Government violated
their due process rights by interfering with their access to
potential witnesses in the pretrial phase of the case; that the
evidence of honest services fraud and bribery was
insufficient; and that the jury instructions on both honest
services fraud and bribery were defective. Bryant challenges
the sufficiency of the evidence that he committed mail fraud
in connection with the pension scheme. He also claims that
he is entitled to a judgment of acquittal or a new trial on the
pension fraud counts because the District Court improperly
allowed a lay witness to testify about the law. Lastly, both
Bryant and Gallagher challenge the order of restitution. We
consider each argument in turn.
5
II. Discussion
A. The Prosecutorial Misconduct Claim
During its investigation of Appellants, the Government
issued grand jury subpoenas to potential witnesses with the
following language placed on the front of each subpoena:
Disclosure of the nature and existence of this
subpoena could obstruct and impede a criminal
investigation into alleged violations of federal
law. Therefore, the United States Attorney
requests that you do not disclose the existence
of this subpoena.
Appellants argued to the District Court that this language, and
the Government’s requests during the grand jury proceedings
that witnesses voluntarily not disclose “any matters” that
occur during those proceedings, 1 interfered with the defense’s
access to witnesses. They claim that this violated due process
and Federal Rule of Criminal Procedure 6(e)(2)(A), 2 which
1
Appellants allege two additional examples of improper
Government conduct: that an FBI agent told a witness not to
disclose the subpoena, or “words to [that] effect;” and that
another agent asked a witness after her testimony whether she
had heeded the nondisclosure request.
2
Federal Rule of Criminal Procedure 6(e)(2)(A) states, in
part, that “[n]o obligation of secrecy may be imposed on any
person except in accordance with [the exceptions enumerated
in B].” Those exceptions are laid out in Federal Rule of
Criminal Procedure 6(e)(2)(B), which lists certain actors in
the grand jury process who “must not disclose a matter
6
prohibits the Government from imposing an obligation of
secrecy on witnesses. The District Court denied their pretrial
motion to dismiss the indictment on those grounds. Instead, it
ordered the Government to write to the witnesses and inform
them that they were under no legal obligation to keep the
subpoena secret.
On appeal, Appellants again argue that the
Government’s conduct—including both the subpoena
language and its requests to witnesses to preserve the secrecy
of the proceeding—violated Rule 6(e)(2)(A) and due process.
They claim that the Government’s actions restricted the “free
choice” of potential witnesses to speak to defense counsel and
effectively imposed an obligation of secrecy on those
witnesses. We disagree.
We review a district court’s decision regarding a
motion to dismiss an indictment because of prosecutorial
misconduct for abuse of discretion. See United States v. Lee,
612 F.3d 170, 193 (3d Cir. 2010). Generally, because
witnesses “belong” neither to the defense nor to the
prosecution, both must have equal access to witnesses before
trial. Kines v. Butterworth, 669 F.2d 6, 9 (1st Cir. 1981);
Callahan v. United States, 371 F.2d 658, 660 (9th Cir. 1967).
If the prosecution impermissibly interferes with the defense’s
access to a witness during a criminal trial, that conduct
violates due process insofar as it undermines the fundamental
fairness of the proceeding. Kines, 669 F.2d at 9 (collecting
cases). In connection with a grand jury proceeding, Rule
6(e)(2) also provides that the Government may not impose an
occurring before the grand jury.” Witnesses are not included
in that listing.
7
obligation of secrecy on a witness absent limited exceptions,
none of which applies here.
However, there is an important difference between
requesting nondisclosure and discretion on the part of
witnesses and artificially restricting defense counsel’s access
to witnesses by, for example, instructing the latter not to
communicate with the former. Merely requesting that
witnesses practice discretion does not violate a defendant’s
due process rights. See United States v. Agostino, 132 F.3d
1183, 1191-92 (7th Cir. 1997). Here, the record demonstrates
that the Government requested, but never required, witnesses
not to disclose the subpoena or the grand jury proceedings.
Aside from those requests, it took no affirmative steps to
restrict or stop witnesses from conferring with the defense.
Appellants argue that the language, emblazoned on the
subpoena, gave an appearance of a judicial imprimatur that
suggested to witnesses they were legally obligated to comply
with the Government’s secrecy request. Certainly, many
forthright citizens would comply with such a request, given
the context in which it was made. However, we will not say
what occurred here imposed an obligation of secrecy.
Compare id. at 1192 (holding that prosecutor’s mere request
that witness not discuss his testimony with defense counsel,
while acknowledging his right to do so, did not constitute a
due process violation), with In re Grand Jury Proceedings
(Appeal of Diamante), 814 F.2d 61, 68-70 (1st Cir. 1987)
(concluding that a subpoena instructing witnesses “not to
disclose the existence of this subpoena or the fact of your
compliance for a period of 90 days from the date of the
subpoena” impermissibly conveyed that witnesses were
legally obligated to remain silent).
8
Nor do we think that the Government’s actions
infected the fairness of the proceeding. Notably, Appellants
did not identify to the District Court (nor do they now) any
witnesses who claim that they would have spoken to the
defense but were deterred from doing so because of the
Government’s nondisclosure requests. Rather, those
witnesses who declined to speak with the defense did so on
the advice of counsel. 3 But “[n]o right of a defendant is
violated when a potential witness freely chooses not to talk; a
witness may of his own free will refuse to be interviewed by
either the prosecution or the defense.” Kines, 669 F.2d at 9;
see also United States ex rel. Trantino v. Hatrack, 408 F.
Supp. 476, 481 (D.N.J. 1976) (“[W]hile it is true that a
witness is not to be prevented from speaking to the defense by
the prosecution, it is equally true that a witness cannot be
required to speak to an investigator or attorney. That matter
rests . . . entirely with the witness.”).
Even if there were witnesses (about whom we do not
know) with the mistaken impression that they could not speak
to the defense, the District Court took measures to clarify
such a misunderstanding well before trial. In response to
Appellants’ motion to dismiss, the Court instructed the
Government to send a letter to all subpoena recipients five
3
These witnesses were employees of UMDNJ, whose general
counsel advised them not to speak with the defense. Counsel
stated that she instructed the employees not to speak with the
defense for fear it would jeopardize the University’s deferred
prosecution agreement. In this context, we do not attribute to
Government misconduct UMDNJ counsel’s advice to
University employees.
9
months before the start of trial, stating that the witnesses had
“an absolute right to speak to anyone . . . about anything
[they] know about any of the matters under investigation,
including the fact that [they] were subpoenaed and . . .
testified before the grand jury.” 4 In particular, that letter
confirmed that the Government “[would] not take any adverse
action against [the witness] or [his or her] employer because
[he or she chose] to speak to the defense or anyone else about
these matters.”
In these circumstances, we believe that Appellants
have not shown that, because of the Government’s conduct,
there was an “absence of . . . fairness [that] fatally infected
the trial.” Kines, 669 F.2d at 9 (quoting Lisenba v.
California, 314 U.S. 219, 236 (1941)); see also United States
v. Terzado-Madrugo, 897 F.2d 1099, 1108-09 (11th Cir.
1990) (concluding that letter advising witness that she was
free to talk to defense cured or mitigated any harm from
Government’s prior insinuation that witness would face legal
consequences from speaking with defense); Diamante, 814
F.2d at 70 (advising the Government to correct its error of
instructing subpoenaed witnesses to keep their involvement in
the grand jury secret by sending out letters notifying the
witnesses that they have no legal obligation to do so). 5
4
We agree with the District Court that the Government’s
practice of placing its non-disclosure request on all grand jury
subpoenas is “not a good policy” and discourage that practice
in the future.
5
Appellants claim that, in the time before the curative letter
was sent, some witnesses’ memories faded before the defense
could speak with them and others were too intimidated by the
10
Accordingly, we conclude that Appellants were not denied
due process of law or the protections of Rule 6(e)(2)(A) and
we decline to vacate their convictions for those reasons. 6 We
now turn to the merits of Appellants’ remaining claims.
B. Sufficiency of the Evidence on the Honest Services
Fraud and Bribery Counts
After trial, Bryant and Gallagher challenged the
sufficiency of the evidence to support their honest services
fraud and bribery convictions in a motion for a judgment of
acquittal. Fed. R. Crim. P. 29. 7 The District Court denied
their motion, finding that the record supported the jury’s
verdict. On appeal, they again challenge the sufficiency of
the evidence to support their convictions.
We review a sufficiency of the evidence challenge de
novo, viewing the evidence in the light most favorable to the
prosecution. United States v. Miller, 527 F.3d 54, 60 (3d Cir.
2008). Appellants have a heavy burden to carry: “[w]e will
overturn a verdict only ‘if no reasonable juror could accept
evidence as sufficient to support the conclusion of the
grand jury process to come forward. They offer nothing to
support these assertions and we shall not address their
speculations.
6
Nor do we believe that the District Court erred in declining
to afford Appellants a hearing to demonstrate prejudice, and
thus we do not remand the case for such a hearing now.
7
Bryant also challenged the sufficiency of the evidence to
support the pension fraud counts in the Rule 29 motion,
which we consider below.
11
defendant’s guilt beyond a reasonable doubt.’” United States
v. Anderskow, 88 F.3d 245, 251 (3d Cir. 1996) (quoting
United States v. Coleman, 811 F.2d 804, 807 (3d Cir. 1987));
see also Wright v. West, 505 U.S. 277, 296-97 (1992) (same).
We do not believe Appellants have met that burden.
Our Court has defined the elements of traditional mail
fraud as follows: “To prove mail fraud, the government must
establish (1) the defendant’s knowing and willful
participation in a scheme or artifice to defraud, (2) with the
specific intent to defraud, and (3) the use of the mails . . . in
furtherance of the scheme.” United States v. Kemp, 500 F.3d
257, 279 (3d Cir. 2007) (citation and internal quotation marks
omitted). “[T]he term ‘scheme or artifice to defraud’ includes
[one] to deprive another of the intangible right of honest
services.” Id. (citing 18 U.S.C. § 1346). Bribery, “where a
[public official] was paid for a particular decision or action,”
is one type of honest services fraud. Id. (quoting United
States v. Antico, 275 F.3d 245, 263 (3d Cir. 2001))
(alterations in original). The indictment in our case charged
Appellants under a bribery theory of honest services fraud. 8
The Supreme Court has explained that, as “[b]ribery
requires intent ‘to influence’ an official act or ‘to be
influenced’ in an official act . . . , there must be a quid pro
quo—a specific intent to give or receive something of value in
exchange for an official act.” United States v. Sun-Diamond
Growers, 526 U.S. 398, 404-05 (1999) (emphasis in original).
As the District Court instructed the jury, a quid pro quo may
8
They were also charged under an additional theory
involving failure to disclose a conflict of interest, but the
District Court struck those allegations before trial.
12
come in the form of a “stream of benefits.” Accordingly, to
prove a quid pro quo
the Government is not required to present
evidence that attributes each official action to a
corrupt payment. It is enough for the
[G]overnment to present evidence that shows a
course of conduct of favors and gifts flowing to
a public official in exchange for a pattern of
official actions favorable to the donor. Thus,
payments may be made with the intent to retain
the official’s services on an “as needed” basis,
so that whenever the opportunity presents itself
the official will take specific action on the
payor’s behalf. The evidence of a quid pro quo
can be implicit, that is, a conviction can occur if
the Government shows that [the defendant]
accepted payments or other consideration with
the implied understanding that he would
perform or not perform an act in his official
capacity.
United States v. Bryant, No. 3:07-cr-267, 2009 WL 1559796,
*4 (D.N.J. 2009) (emphases added) (citation and internal
quotation marks omitted); see United States v. Kemp, 500
F.3d 257, 281-82 (3d Cir. 2007) (endorsing “stream of
benefits” theory of honest services fraud bribery); United
States v. Kincaid-Chauncey, 556 F.3d 923, 943 n.15 (9th Cir.
2009) (same).
Appellants argue that the Government did not prove
that they entered into an unlawful quid pro quo arrangement.
They claim that, although Bryant took official action while
working at SOM, the Government failed to prove that he took
13
those actions because of his employment at SOM or that the
Appellants had the requisite intent to enter into an illicit quid
pro quo agreement. However, based on the trial evidence,
reasonable jurors could conclude beyond a reasonable doubt
that Bryant and Gallagher had an agreement, even if implicit,
that Bryant’s salary, bonus, and pension eligibility would be
given in exchange for his official actions to increase state
funding for SOM.
The record evidence shows that in 2002 Gallagher was
interested in improving SOM’s political clout and that Bryant
wanted a pensionable job at UMDNJ. At that time, Gallagher
knew that SOM was in trouble, financially and otherwise. It
was historically underfunded relative to UMDNJ’s other
schools, and in 2002 SOM’s academic budget was reduced by
10%. Because of the budget cut and decreasing revenues in
general, SOM had difficulty paying staff salaries. Also
around that time the Governor appointed a commission to
recommend medical education reforms. That Commission
suggested the consolidation of UMDNJ with Rutgers
University and the New Jersey Institute of Technology. The
Government introduced evidence that Gallagher was
disconcerted with this Commission report because, if such a
merger occurred, he could lose his position as Dean of SOM.
He expressed a desire to become more active in the “political
arena” to ward off these proposed changes. For his part,
Bryant was keen to get a job at UMDNJ at that time. As
evidence of his interest, the Government elicited testimony
from Stuart Cook, President of UMDNJ, that in 2002 Bryant
approached Cook during a meeting and sought a part-time job
at UMDNJ. Cook later characterized this “request” as a
“shakedown” given Bryant’s influence over budget decisions
that affected the University.
14
Gallagher then created a new position at SOM with the
title Program Support Coordinator. According to the official
job description, the Program Support Coordinator would
report directly to Gallagher and would work three full days a
week, making him a “.6” employee. The official job
description, which was approved by the Human Resources
Department and posted for the public, listed the Program
Support Coordinator’s responsibilities as improving SOM’s
relations with local governments and community
organizations; there was no reference to securing additional
funding for SOM from the State government. The salary was
approved at $35,000, which was commensurate with the work
of a .6 employee.
There was evidence introduced at trial, however, that
the interview process was a sham. Only two candidates were
actually interviewed (including Bryant), and Bryant’s
interview was orchestrated only “to provide a paper trail.”
Robert Prodoehl, Director of Operations at SOM and later
Gallagher’s Chief of Staff, testified that, long before
candidates were interviewed for the position, Gallagher had
determined that Bryant would be hired for it. Prodoehl also
testified that, notwithstanding the official job description,
Gallagher told him (Prodoehl) that Bryant would only work
7.5 hours (one day) a week. This should have qualified him
as only a .2 employee.
Six days after Bryant was hired, a meeting with
Gallagher, Bryant, and John W. Crosbie, Director of Strategic
Planning Program Development at SOM, was held to discuss
how Bryant might advance SOM’s “supplemental funding
strategy.” Henceforth, procuring additional funding appears
to have been Bryant’s principal activity. The Government
presented evidence that, during his employment at SOM
15
(about three years), Bryant orchestrated a $2.325 million
carve-out of UMDNJ’s annual budget to be allocated to
SOM’s base funding, an $800,000 appropriation for SOM’s
Center for Child Support (a carve-out from the New Jersey
Division of Youth and Family Services), and a $200,000
grant to SOM’s Institute for Successful Aging (“ISA”). 9
Notably, Bryant received a $5,000 bonus from SOM after the
2003-2004 budget passed with the $2.325 million carve-out
for SOM. From this and other evidence, a reasonable jury
could conclude that Gallagher offered Bryant his position at
SOM in exchange for his official actions to procure additional
State funding for the School and that Bryant then misused his
power to that end.
Appellants’ arguments to the contrary are not
persuasive. They claim that Bryant would have taken many
of these official actions to “serve his constituents” even
without the benefits from SOM. However, the jury was not
required to “find that the SOM salary was the sole impetus for
Bryant’s actions.” Bryant, 2009 WL 1559796, *7 (citing
Kemp, 500 F.3d at 281-82). Rather, “a conviction for honest
services fraud may be sustained so long as there is sufficient
evidence in the record for the jury to conclude that the public
official intended to be influenced in exchange for a stream of
corrupt payments.” Id. Here, based on the timing of Bryant’s
official acts, a jury could infer that Bryant intended to accept
a “stream of benefits” in the form of a salary and benefits
from SOM in exchange for his official acts over the course of
9
In a 2004-2005 budget program, individual New Jersey
legislators could allocate discretionary grants to organizations
of their choice. Bryant controlled 10% of the grants, or $4
million. This was the source of the ISA grant.
16
his nearly three-year employment there. That his actions may
also have benefited his constituents is irrelevant.
Appellants also argue that the Government failed to
prove Gallagher’s mens rea—his intent that Bryant’s salary
and benefits serve as a quid pro quo bribe. They cite the
Government’s lack of a smoking gun (i.e., that there was “no
evidence of cash in a bag”), and assert that there is nothing
wrong with Gallagher, as Dean, wanting his institution to
flourish financially. The Government may prove mens rea
with circumstantial evidence, United States v. McKee, 506
F.3d 225, 235 n.9 (3d Cir. 2007), and here the indirect proof
of Gallagher’s intent was extensive: for example, after the
fraudulent job description surfaced, Gallagher made Crosbie
create a false calendar to create the appearance that Bryant
had done legitimate work at SOM. Gallagher also lied to his
supervisors about the nature of Bryant’s work, telling them
that Bryant’s role involved “community relations” with no
mention of his funding initiatives. Based on that and other
evidence discussed above, a reasonable jury could find that
Gallagher had the requisite intent.
Finally, we reject Appellants’ argument that the
Government failed to prove the value of Bryant’s legitimate
services to SOM, and thus did not prove that the salary and
bonus in excess of the fair value of those services was a bribe.
A jury could conclude from the evidence discussed above that
Bryant did not work 22.5 hours per week, as required to
qualify as a .6 employee with a $35,000 salary. In any event,
“[t]hat [Bryant] performed some . . . services did not prevent
the jury from regarding the [salary and bonus] payments as
primarily intended by [Gallagher] to secure [Bryant’s]
legislative help.” United States v. Urciuoli, 613 F.3d 11, 14
(1st Cir. 2010) cert. denied, 131 S. Ct. 612 (2010) (addressing
17
argument that state senator provided some legitimate services
in exchange for job at medical center in the context of honest
services fraud conviction under a bribery theory). 10 In sum,
the evidence allowed a jury to conclude that Bryant’s salary
and benefits—nominally for his public relations work—were
in fact provided in exchange for his abuse of office.
Because we believe that the Government presented
substantial evidence of a quid pro quo bribery scheme to
defraud the citizens of New Jersey of Bryant’s honest
services, including circumstantial evidence of the requisite
mens rea, we affirm the convictions on the honest services
fraud and bribery counts. 11
C. Jury Instructions on the Honest Services Fraud and
Bribery Counts
1. Honest Services Fraud Jury Instructions
10
Appellants cite evidence they submitted at trial, purporting
to show that Bryant provided legitimate services to SOM.
They “[were] free to make such arguments to the jury, but the
jury could fairly reject them.” Urciuoli, 613 F.3d at 15. We
presume the jury did so, as we review the evidence in the
light most favorable to the Government. Miller, 527 F.3d at
60.
11
Inasmuch as we believe the evidence was sufficient with
respect to the quid pro quo alleged in the honest services
fraud counts, we also conclude it was sufficient to support the
bribery counts, as the bribery counts were based on the
bribery alleged in the honest services fraud counts.
18
Appellants argue that the jury instructions for the
honest services fraud counts were incorrect in light of the
Supreme Court’s decision in Skilling v. United States, 130 S.
Ct. 2896 (2010), which limited the scope of honest services
fraud to its historic “core.” Specifically, the Skilling Court
defined the “core” of honest services fraud to include only the
types of bribery and kickback schemes that were criminalized
in cases prior to the Supreme Court’s decision in McNally v.
United States, 483 U.S. 350 (1987). 12 Appellants allege that
the honest services fraud instructions were deficient because
they did not require the jury to find an intent to “alter” an
official action. They contend further that the instructions’ use
of the stream-of-benefits theory and dual purpose test (both
discussed below) were legally incorrect after Skilling, as they
claim both are outside the honest services fraud “core.” We
are not persuaded that Skilling had that effect on the law of
honest services fraud, nor do we believe that the instructions
failed to state the proper intent requirement.
We review de novo whether a jury instruction stated
the proper legal standard. United States v. Flores, 454 F.3d
149, 156 (3d Cir. 2010). The Court instructed the jury on the
honest services fraud counts as follows:
Counts 1 through 6 charge the defendants with
committing honest services fraud by means of a
quid pro quo bribery scheme. Bribery requires
a quid pro quo, that is, a specific intent to give
12
McNally had struck down the notion of honest services
fraud by limiting mail fraud to schemes involving tangible
property rights, which, in turn, prompted Congress to enact
18 U.S.C. § 1346, overruling McNally.
19
or receive something of value in exchange for
one or more official acts.
In order to find that a defendant engaged in quid
pro quo bribery, you must find that the
government proved each of the following
beyond a reasonable doubt with respect to that
defendant:
First: that R. Michael Gallagher gave, offered
or promised something of value, particularly a
stream of payments in the form of a salary and
other financial benefits to Wayne Bryant;
Second: that Wayne Bryant was, at that time, a
public official;
Third: that with respect to R. Michael
Gallagher, he intended to give the stream of
payments in the form of salary and other
financial benefits in exchange for one or more
official acts.
That with respect to Wayne Bryant, he intended
to perform one or more official acts in exchange
for his salary and other financial benefits from
[SOM.]
A quid pro quo agreement may be implicit as
well as explicit. The improper benefit may
consist of money and other financial benefits
whether given on a one time basis or as a stream
of payments to the public official. In other
words, when payments are accepted by a public
20
official from a payor with the intent to obtain
that official’s actions on an “as needed” basis,
so that when the opportunity presents itself that
public official takes specific official action on
the payor’s behalf in return for those payments,
that constitutes a breach of the public official’s
duty of honest service.
You may find that the payor and/or the recipient
has engaged in bribery even though the
recipient could have lawfully engaged in the
official conduct in question.
Appellants’ first challenge to these instructions is that
it did not require the jury to find that the payor (Gallagher)
intended to “alter” the conduct of the public official (Bryant).
They argue that the instruction suggested to the jury that
honest services fraud included accepting payments for
something a public official was already planning to do or had
already done, which is a gratuity (or “reward”) and not a
bribe, and thus not within the “core” of honest services. 13 In
short, they contend that the instructions did not make clear the
specific exchange—that is, that Gallagher had to intend to
influence Bryant’s actions and that Bryant had to intend to be
influenced by the SOM salary and benefits.
Appellants are correct that “bribery requires a quid
pro quo, which includes an intent to influence an official act
13
In Kemp we stated that a gratuity “may constitute merely a
reward for some future act that the public official will take
(and may already have determined to take), or for a past act
that he has already taken.” 500 F.3d at 281 (quoting Sun-
Diamond, 526 U.S. at 405).
21
or to be influenced by an official act.” Kemp, 500 F.3d at 281(construing federal bribery and gratuity statute, 18 U.S.C.
§ 201, which is “equally applicable to bribery in the honest
services fraud context”) (citations and internal quotation
marks omitted). It is also true that “bribery requires a specific
intent to give or receive something of value in exchange for
an official act.” Id. (emphasis omitted). But they are
incorrect that the instruction failed to state clearly those legal
requirements.
Yet Appellants ignore a key passage of the Court’s
instructions, which stated:
[N]ot every payment made to a public official
constitutes a bribe. A payment made in a
general attempt to build goodwill or curry favor
with a public official, without more, does not
constitute a bribe. . . . What distinguishes a
bribe from other payments that would not
constitute violations is that a bribe is offered or
accepted with the intent to influence, or to be
influenced, in an official act.
(emphasis added). This instruction made clear that an intent
to influence was required for a finding of guilt. 14 Despite
Appellants’ suggestion otherwise, the Supreme Court has
never required proof that the recipient actually perform the
official act for which the bribe was taken (the quo). See
United States v. Brewster, 408 U.S. 501, 527 (1972); United
14
Appellants concede in their Reply Brief, and we agree, that
there is no meaningful difference between an intent to “alter,”
and an intent to “influence,” official acts.
22
States v. Hood, 343 U.S. 148, 151 (1952). Nothing in Skilling
overrules this existing law.
Next, Appellants challenge the stream-of-benefits
theory: that a bribe may be given in the form of a series of
benefits in exchange for official action on an “as needed”
basis. Appellants suggest that this theory is indistinguishable
from the conflict-of-interest theory of honest services fraud,
which was rejected in Skilling as outside the core of honest
services fraud. 15
Nothing in Skilling, however, undermines the viability
of the stream-of-benefits theory, which this Court first
endorsed in Kemp, 500 F.3d 257. See United States v.
Whitfield, 590 F.3d 325, 352-53 (5th Cir. 2009); United States
v. Ganim, 510 F.3d 134, 144-47 (2d Cir. 2007); Urciuoli, 613
F.3d at 13-14 (confirming stream-of-benefits theory survived
Skilling). Indeed, Skilling did not eliminate from the
definition of honest services fraud any particular type of
bribery, but simply eliminated honest services fraud theories
that go beyond bribery and kickbacks. Appellants’ reliance
on Skilling to undercut the stream-of-benefits theory is thus
misplaced.
Finally, Appellants take issue with the dual purpose
aspect of the jury instructions, that is, that the instructions
15
The conflict-of-interest theory of honest services fraud
criminalized undisclosed self-dealing by public officials
whose actions furthered their own financial interests while
purporting to act on behalf of the public. Skilling, 130 S. Ct.
at 2932 (citation omitted). As noted, see supra note 8, the
District Court in our case struck the charges that relied on a
conflict-of-interest theory before trial began.
23
allowed for conviction on the honest services fraud counts
even if the jury believed Gallagher was partially motivated to
pay Bryant for some legitimate work as well as his official
action. Specifically, they object to the following portion of
the instructions:
You may find that any salary and other financial
benefits accepted by Wayne Bryant was a bribe
even if you also find it was paid, in part, for
legitimate work if it was also paid, in part, in
return for Wayne Bryant’s official action.
The Appellants insinuate that this dual purpose test is
similarly outside the core of honest services fraud. Skilling
did not so hold and we do not adopt that interpretation, as the
consequences would be untenable. On Appellants’
interpretation, a payor could bribe an official with impunity,
intending to influence official action and vice versa, provided
that the payor had some additional hope, however small, of
receiving legitimate work in return. We shall not stretch
Skilling in this way.
2. Section 666 Bribery Jury Instructions
Appellants’ challenge to the bribery instruction is
similarly strained. They claim that these instructions were
defective because they did not require an “exchange,” but
merely a convergence in time of the quid and the quo. To
convict, the instructions required the jury to find as follows:
[W]ith respect to Wayne Bryant, that Wayne
Bryant corruptly accepted, agreed to accept,
solicited, or demanded salary payments and
other financial benefits from UMDNJ/SOM, the
24
quid; while intending to be influenced in taking
favorable actions toward SOM in his capacity
as a state legislator, the quo.
With respect to R. Michael Gallagher, that R.
Michael Gallagher corruptly gave, agreed to
give, or offered salary payments and other
financial benefits from UMDNJ/SOM, the quid;
while intending to influence Wayne Bryant in
taking favorable actions toward SOM in his
capacity as a state legislator, the quo.
(Emphases added.) Appellants parse the language of these
instructions to claim that the word “while” might have led the
jury to believe that the Appellants were guilty so long as
Gallagher intended to influence Bryant’s official actions “at
the same time” as he was receiving his SOM salary and
benefits, without having to conclude that the salary and
benefits were provided “in exchange for” his official action.
Once more we fail to see the lack of an exchange
requirement in these instructions. 16 We do not think the word
“while” materially changes the “intending to influence”
language in the instructions. Tracking closely to the language
of the bribery statute, 17 the “intending to influence” and
16
The Government argues that § 666 does not require proof
of a quid pro quo in any event. Because we believe that the
instruction did require the jury to find an exchange, we need
not decide that question today.
17
Bribery occurs when a public official “corruptly solicits or
demands . . ., or accepts or agrees to accept, anything of value
from any person, intending to be influenced or rewarded in
25
“intending to be influenced” phrases effectively link the quid
and the quo. This construction is not ambiguous (an
identified quid must be given, with the intent of influence, in
return for a quo) simply because the word “while” is used.
Moreover, the Court’s prior instruction on the honest services
fraud counts made clear that the jury had to find an exchange
in order to find that there was a quid pro quo. 18 The jury was
told to refer back to those earlier instructions for consistency
and to consider all of the “instructions as a whole.” In the
final charge, the Court explained to the jury that “each part or
phase of these instructions is to be considered and applied
together with all the other parts and phases of the
instructions.” We assume that the jury followed their
connection with any business, transaction, or series of
transactions of such organization, government, or agency . . .
.” 18 U.S.C. § 666(a)(1)(B) (emphasis added).
18
The instruction provided:
In order to find that a defendant engaged in quid
pro quo bribery, you must find that the
government proved [that Gallagher] intended to
give the stream of payments in the form of
salary and other financial benefits in exchange
for one or more official acts [and that ] Bryant
. . . intended to perform one or more official
acts in exchange for his salary and other
financial benefits from [SOM].
(Emphases added.)
26
instructions. 19 United States v. Lee, 573 F.3d 155, 162 (3d
Cir. 2009).
* * * * *
Because we believe there was no defect in either the
jury instruction for honest services fraud or bribery, we do not
reverse Appellants’ convictions on that ground.
D. Bryant’s Pension Fraud Counts
Bryant was charged and convicted of mail fraud in
connection with a scheme to defraud the New Jersey Division
of Pensions and Benefits (“the Pension Division”) by
fraudulently seeking pension payments for his low-show job
at SOM and his no-show job at the Social Services Board. He
argues that he should be acquitted of his conviction on those
counts or, in the alternative, afforded a new trial because the
evidence was insufficient and because the District Court
abused its discretion in allowing a lay witness, Frederick
Beaver, to testify about a legal issue.
1. The Sufficiency of the Evidence on Pension
Fraud
As discussed above, we believe that substantial
evidence supported the honest services fraud bribery
19
For that reason, we also reject Appellants’ speculation that
the jurors turned to the indictment, which lacked language of
“exchange” in the § 666 charges, for clarification, as the
Court instructed that they were only permitted to apply the
law provided to them by the Court and that the indictment
was an accusation and nothing more.
27
conviction in connection with Bryant’s SOM job; thus, we do
not repeat that analysis here. Accordingly, the only question
remaining is whether the evidence taken in the light most
favorable to the Government shows that Bryant fraudulently
sought pension benefits for the services, if any, he rendered to
the Social Services Board. 20 We believe that it does.
As noted, the Government’s theory on the pension
fraud counts was that Bryant submitted a fraudulent
application for pension benefits—that is, he claimed himself
eligible for benefits to which he knew he was not entitled
from two public sector jobs (at SOM and the Social Services
Board). In New Jersey, the amount of a person’s pension is
20
In its ruling on Appellants’ Rule 29 motion, the District
Court noted “whether Bryant’s employment at SOM was
unlawful does not necessarily satisfy the present inquiry [of
whether the evidence is sufficient to support the pension fraud
counts]. Whether or not the Division would have ultimately
denied Bryant his pension if it knew the facts alleged in the
Indictment is beside the point if Bryant took actions to make
sure the Division would not know those facts.” Bryant, 2009
WL 1559796, *14 (quoting Bryant, 556 F. Supp. 2d at 434)
(citation and internal quotation marks omitted) (emphasis in
original). “Rather, the jury could find that Bryant willfully
engaged in mail fraud if the evidence demonstrated that
Bryant concealed the nature of his actual employment at
SOM and [the Social Services Board], i.e. his duties and the
time he spent working on matters for SOM and [the Social
Services Board].” Id. For the reasons stated above, we
believe that a reasonable jury could find that Bryant
concealed the nature of his employment at SOM as part of its
overarching conclusion that the job was a bribe.
28
determined by a three-year average of his highest salaries
across all of his qualifying, meaning public sector, jobs. This
is known as the “high three.” At the time of Bryant’s
application, he had accumulated pension-eligible salaries
from four positions: as a State Senator, as a Program Support
Coordinator at SOM, as a staff attorney for the Social
Services Board, and as a lecturer at Rutgers University.
Assuming pension credit from those jobs, Bryant selected a
pension plan option that put his annual benefits at $81,268.
However, without the SOM and the Social Services Board
jobs qualifying, his benefits range would have been between
$31,000 and $37,000. Thus, the Government claimed at trial
that because Bryant did little or no work at either SOM
(because the job was a bribe) or the Social Services Board
(because he never showed up to do the work himself), his
pension application fraudulently inflated his eligibility for
benefits.
The elements of traditional mail fraud, in which money
or property is the object of the fraud, are: (1) a scheme or
artifice to defraud by means of a materially false or fraudulent
pretense; (2) participation by the defendant with specific
intent to defraud; and (3) use of the mail in furtherance of the
scheme. United States v. Hedaithy, 392 F.3d 580, 590 (3d
Cir. 2004) (internal quotation marks omitted). Bryant argues
that the Government failed to prove the first two elements.
Bryant first claims that the Government did not prove
that he made any false statements in his pension application.
The evidence is otherwise. In May 1996, Bryant was hired by
the Social Services Board, a public and social services and
welfare agency, as a part-time associate counsel and enrolled
for pension benefits with the New Jersey Public Employee
Retirement System (“PERS”). He was hired as an individual,
29
salaried employee, which status made him eligible for those
benefits. His responsibilities included “attendance in court
[and] representation of [children] in board, support matters,
paternity establishments and related duties.” However,
shortly after Bryant began his employment at the Social
Services Board, his supervisors began receiving complaints
that he was not personally appearing in court on behalf of the
agency, as he was sending other lawyers from his private law
firm, Zeller and Bryant, to perform his work. On initial
discovery of Bryant’s delegation, his supervisor reminded
him that he was required personally to perform the attorney
work that he was hired to do. Nevertheless, Bryant continued
this practice for several years (from 2002-2006) and
ultimately did little, if any, work for the Social Services
Board. Because neither Social Services Board members nor
other agency supervisors attended the various court
appearances, Bryant’s continued delegation of duties was not
discovered. Bryant did not train or supervise those to whom
he delegated his work, but assigned even that oversight role to
one of his law firm partners.
During this time, Bryant misrepresented to the Social
Services Board that he was personally performing his work.
The agency required all employees to submit written time
sheets, on which the employee had to “[f]ill in the hours
actually worked in each unit.” Bryant claimed credit for the
work he delegated: on some he claimed as many as 22 hours
every two weeks, and on many others he claimed over ten
hours. By signing those timesheets, he “submit[ed] that the
above entries represent[ed] the hours [he] worked in the listed
work units and the other compensable hours [he] used during
th[ose] pay period[s].” Bryant’s time records at his law firm
belied those representations: they showed that he worked no
30
hours for the Social Services Board in 2002, 10.3 hours in
2003, 4.5 hours in 2004, and not at all in 2005 and 2006.
In order to reap the benefit of this scheme, Bryant
communicated with the Director of the Pension Division,
Frederick Beaver, in January 2006 to determine the range of
pension benefits for which he (Bryant) would be eligible on
retirement. In December 2006, he submitted his application
for retirement benefits with plans to retire the next month.
On those facts, we believe that Bryant’s application for
pension benefits was a materially false or fraudulent pretense
under § 1341. We reject the legalistic argument that his
application was not a false statement per se, but simply a
request for benefits. As we have said, “fraudulent
representations, as the term is used in [section] 1341, may be
effected by deceitful statements of half-truths or the
concealment of material facts and the devising of a scheme
for obtaining money or property by such statements or
concealments.” United States v. Olatunji, 872 F.2d 1161,
1667 (3d Cir. 1989) (citations omitted). For that reason, we
believe that the presentation of a benefits application that
misrepresents an applicant’s eligibility is a false pretense that
can serve as the basis of mail fraud liability. Here, Bryant’s
“request” for benefits concealed that he had delegated most of
his work at the Social Service Board. As such, we believe the
application was a false pretense that was key to his scheme to
defraud the Pension Division.
Bryant next asserts that the Government did not prove
his intent to defraud because he did not know that claiming
benefits to which he was not entitled was illegal. He claims a
lack of notice because (1) there were no statutes or
regulations that prohibited attorneys from claiming credit for
31
work that they had delegated, and (2) because the Pension
Division was “well aware” of other lawyers who had done
this and never attempted to revoke a pension for that reason
prior to 2007 (when this case began).
Neither claim is tenable. There was no evidence at
trial that it was commonplace for the Social Services Board
attorneys who were enrolled in PERS to delegate work duties,
or that the agency had de facto accepted such practices. The
Division Director (Beaver) testified that he was aware of only
a few attorneys who had done so and that he had tried to put
an end to it by reporting them to the Pension Board. In
addition, Beaver testified that prior to 2007 there was no
specific statutory or regulatory prohibition against delegating
work because “there was a presumption” by pension
administrators “that the [employee] is doing the work.” In
sum, the unrebutted evidence showed that Bryant lied by
claiming he was personally performing hours of work that he
had delegated to others. This behavior created an inference
that he intended to defraud the Social Services Board in part
so that he would be eligible for higher pension benefits. See
United States v. Bailey, 327 F.3d 1131, 1140 (10th Cir. 2003)
(citing United States v. Prows, 118 F.3d 686, 692 (10th Cir.
1997)) (intent to defraud may be inferred from evidence that
defendant attempted to conceal activity).
Finally, Bryant argues that there is a “convergence”
problem with the evidence: that is, that the party to whom the
fraudulent pretenses were made (the Social Services Board)
was not the same as the party from whom money or property
would have been taken (the New Jersey pension system). We
have yet to decide this issue in the context of mail fraud.
Compare United States v. Christopher, 142 F.3d 46, 54 (1st
Cir. 1998) (“Turning to whether we should now adopt a
32
convergence theory, we see little reason to do so. Nothing in
the mail and wire fraud statutes requires that the party
deprived of money or property be the same party who is
actually deceived . . . . We see no reason to read into the
statute an invariable requirement that the person deceived be
the same person deprived of the money or property by the
fraud.”), with United States v. Keane, 678 F. Supp. 708, 711
(N.D. Ill. 1987), aff’d, 852 F.2d 199 (7th Cir. 1998) (“to
constitute fraud, the entity to be deceived must also be the
entity that is to part with property”) (emphasis in original).
However, we need not make that decision now, for
Bryant’s fraud was not entirely “derivative” of the fraud on
his employer, the Social Services Board, as he argues. As we
said above, his pension application was itself a materially
false pretense, made to the Pension Division, that was part of
his scheme to defraud the pension system. Cf. Olatunji, 872
F.2d at 1168 (concluding that an indictment may properly
allege mail fraud where false statements are made to two
different Government agencies even though the scheme is
alleged to deprive property from only one, the “ultimate
victim”). Accordingly, we conclude that Bryant has not
carried his heavy burden of prevailing on his insufficient
evidence claim and affirm his convictions on the pension
fraud counts.
2. The Beaver Testimony
As discussed, the main issue at trial on the pension
fraud counts was whether Bryant defrauded the Pension
Division by claiming benefits to which he was not entitled.
That issue turned in part on whether the work Bryant did for
the Social Services Board qualified as a “creditable service”
under New Jersey statute and regulation. Only if Bryant’s
33
work was creditable service would he be eligible for pension
benefits from the job. This was related to the Government’s
burden of showing that Bryant’s misstatements on his pension
application were “material.” To prove this, the Government
wanted to show that Bryant’s representations that he had done
the work himself were material to the Pension Division’s
benefits-eligibility determination because in doing so he had
effectively represented that his services were creditable. To
that end, the Government proposed testimony from the
Director of the Pension Division, Beaver. 21 He was to testify
from his personal knowledge and experience at the Pension
Division about, among other things, what is considered
creditable service.
The defense objected to the proposed testimony on the
ground that testimony about creditable services was expert
testimony on the law and Beaver was not such an expert.
After a hearing on the admissibility of the proposed
testimony, the Court allowed it limited to the issue of
21
Prior to trial, the District Court asked the Government to
offer information about the “areas that would be explored
with Mr. Beaver” so that it could decide whether his
testimony would be lay or expert. Prior to that, the
Government had provided a letter disclosure to the defense
stating that Beaver would testify “based on his personal
experience and his knowledge of the state pension rules and
practices derived from that experience.” The Government
anticipated that Beaver would testify, among other things,
about “what constitutes honorable service and creditable
service, circumstances under which an enrollee may not be
entitled to benefits, [and] what information is important in
granting and administering benefits.”
34
materiality: whether it is material to the Pension Division’s
benefits-eligibility determination that a person does not
personally perform his work but rather delegates that work to
others in his law firm.
Pursuant to that limitation, Beaver testified at trial that,
based on his experience, repeatedly delegating work to others
would not qualify as creditable service. He stated that, for a
service to be creditable, the person had to personally perform
the work. At certain points, however, Beaver spoke to the
criteria for creditable service in reference to “statutory
cite[s]” or “the statutory requirements of the administrative
code.” In one instance, he stated that, given certain statutory
requirements, “we [the Pension Division] would look to
creditable service [as] being any service that was delivered on
behalf of the employer.” At other times in the testimony, the
Government asked Beaver whether he was familiar with
various statutes and legal decisions.
The defense objected that Beaver had offered improper
legal testimony that exceeded the scope of what the Court had
approved before trial, and moved for a mistrial. The District
Court denied the motion. Later, two days before the jury was
charged, the defense requested a limiting instruction
regarding Beaver’s testimony. The Court agreed and
instructed the jury as follows:
[Y]ou may only consider Frederick Beaver’s
testimony as expressing his view and based on
his experience as Director of the New Jersey
Division of Pensions and Benefits . . . .
Mr. Beaver is not an expert witness and may not
opine on legal issues. You must disregard any
35
of his testimony that touched on his
interpretation of any legal issue[,] including the
legal definition of creditable service.
Mr. Beaver’s testimony regarding the
importance of PERS members personally
performing work was admitted for the limited
purpose of showing materiality. . . .
Bryant now argues that the District Court abused its
discretion in allowing Beaver’s testimony in the first place
and that the limiting instruction was insufficient to cure the
prejudice of that improper testimony. He asks us to order a
judgment of acquittal or, in the alterative, a new trial.
A district court’s ruling admitting witness testimony is
reviewed for abuse of discretion. United States v.
Stadtmauer, 620 F.3d 238, 260 (3d Cir. 2010). The
Government’s stated objective in offering Beaver’s testimony
was to unravel for the jury whether Bryant’s false statements
that he had personally performed his work were material to
his benefits eligibility. As a principal decisionmaker at the
Pension Division, Beaver’s testimony on this point was
important. Indeed, at trial Bryant claimed that his
misrepresentations were not material because the Social
Services Board knew that some employees delegated their
work and, by not stopping the practice sooner, had effectively
condoned it. Given the important and contested nature of this
issue, we do not think that the District Court abused its
discretion in allowing Beaver to testify about it as a fact
witness. To the extent that Beaver then testified on the law of
creditable services (and not just on materiality), we believe
that the Court’s limiting instruction was sufficient to cure any
prejudice.
36
Moreover, Bryant did not object to the limiting
instruction at trial, and so we review it for plain error. United
States v. Ozcelik, 527 F.3d 88, 96 (3d Cir. 2008); see also
United States v. Marcus, 130 S. Ct. 2159, 2162 (2010)
(establishing plain error requires showing of “error”; that is
“clear or obvious”; that “affect[s] the appellant’s substantial
rights” insofar as it “affect[s] the outcome of the district court
proceedings; and “the error seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings”).
Bryant first contends that the instruction was given too
late—26 days after Beaver’s testimony and two days before
the final charge of instructions to the jury. However, Bryant
is in no position to complain about the timing of this
instruction, as he did not request one until that time and the
Court promptly complied. In any event, we think that two
days before the final charge is a reasonable time for a trial
court to issue a limiting instruction to the jury. In this
context, Bryant has not shown that the District Court
committed an error, let alone a plain one.
The remainder of Bryant’s complaints boil down to an
argument that the jurors did not understand the instruction.
He argues that they could not have understood the difference
between materiality and “a legal issue” and that the
distinction between the two is illusory in any event.
Again, as noted, we generally presume that juries
follow their instructions. Lee, 573 F.3d at 162; see also
United States v. Mende, 43 F.3d 1298, 1302 (9th Cir. 1995)
(same). This includes an instruction to disregard certain
evidence, “unless there is an overwhelming probability that
the jury will be unable to follow the court’s instructions, and
a strong likelihood that the effect of the evidence would be
37
devastating to the defendant.” Greer v. Miller, 483 U.S. 756,
766 n.8 (1987) (citation and internal quotation marks omitted)
(motion to strike).
In our case, the Court instructed the jury not to
consider Beaver’s testimony to resolve any legal questions,
but only for the purpose of deciding whether Bryant’s
misrepresentations were material. It then instructed on the
definitions of materiality (the objective question on which the
jury could consider Beaver’s testimony) and creditable
service (the legal question on which the jury could consider
only the Court’s charge). At no time did the jury express
confusion or ask for clarification on the difference between
materiality and creditable service. It is of no consequence
that the Court gave the limiting instruction before it defined
materiality and creditable service, as it had directed the jury at
the outset of trial not to begin deliberations until it received
all instructions on the law. See United States v. Diaz, 597
F.3d 56, 62-63 (1st Cir. 2010).
With this backdrop, we do not believe that the jury
failed to understand the limited purposes for which it could
consider Beaver’s testimony. 22 Because we believe the
22
We note that Bryant overstates the importance of the legal
question of whether he provided bona fide creditable service
to the Social Services Board. Lying about personally
performing the work is what got him into trouble, not the fact
that he had not actually rendered creditable service. As the
District Court instructed, “the question before [the jury] is not
whether the [Pension Division] would have approved Wayne
Bryant’s application for pension benefits. [The jury is] to
decide only whether the government has proven beyond a
reasonable doubt that Wayne Bryant intended to defraud the
38
testimony was properly admitted in the first instance and that
there was no error (and, in any event, no clear error) in the
limiting instruction, we deny Bryant’s request for a judgment
of acquittal or a new trial. 23
E. The Restitution Order
At sentencing, the Court ordered Appellants to repay
the full amount of Bryant’s SOM salary and bonus
($113,167) as restitution to UMDNJ pursuant to the
Mandatory Victims Restitution Act (“MVRA”), 18 U.S.C.
§ 3663A. Appellants argue that this order should be reversed
because the UMDNJ was not a victim within the meaning of
the statute and, therefore, an award of restitution is not proper
under the MVRA. They contend further that, even if it were,
[Pension Division] of money and property by the use of the
mails.” Put another way, whether delegating work to others
nonetheless could have qualified as creditable service is not
what mattered at trial; what mattered for purposes of a mail
fraud conviction was whether Bryant lied on his application
by claiming he had done the work himself because that false
pretense evidenced his intent to defraud the Pension Division.
23
Bryant also argues that Beaver’s testimony was the only
evidence that he submitted a false or fraudulent benefits
application. However, Beaver’s testimony about what factors
are material to the Pension Division’s decisions regarding
benefits eligibility is unrelated to whether Bryant submitted a
fraudulent application. Moreover, for the reasons stated
above, there was ample other evidence that he did so. As we
conclude that the District Court did not abuse its discretion in
admitting the testimony and that the curative instruction was
not plainly erroneous, this argument fails.
39
the Court failed to offset the order by the fair value of the
services Bryant provided to SOM. Because we believe that
UMDNJ is a proper victim under the statute, we conclude that
restitution to that entity was appropriate. Moreover, because
Appellants did not carry their burden of proving the value of
any offsets that might have been warranted, we also affirm
the amount of restitution ordered.
We review de novo whether restitution is permitted by
law and the amount of the award for abuse of discretion.
United States v. Quillen, 335 F.3d 219, 221-22 (3d Cir. 2003)
(quoting United States v. Simmonds, 235 F.3d 826, 829 (3d
Cir. 2000)). The MVRA defines a victim as “a person”
harmed
as a result of the commission of an offense for
which restitution may be ordered . . .[,]
including, in the case of an offense that involves
as an element a scheme, conspiracy, or pattern
of criminal activity, any person directly harmed
by the defendant’s criminal conduct in the
course of the scheme, conspiracy, or pattern.
18 U.S.C. § 3663A(a)(2). Noting the MVRA’s “expansive
purpose,” other courts have interpreted “person” to include
governmental entities, United States v. Ekanem, 383 F.3d 40,
44 (2d Cir. 2004) (U.S. Government); see also United States
v. Lincoln, 277 F.3d 1112, 114 (9th Cir. 2002) (same).
Consistent with that purpose, we believe that the MVRA
definition of victim includes public institutions that receive
government funding, such as UMDNJ.
Appellants argue, however, that the “medical school”
cannot be a victim within the meaning of the MVRA because
40
it knowingly participated in the scheme to hire Bryant in
exchange for his official action and, in fact, benefitted
financially from this scheme. They claim that, because the
school gained money from the scheme, the order of restitution
does not compensate a victim for “actual losses” as required
by the statute, but rather imposes a disgorgement penalty on
Appellants consistent with a theory of unjust enrichment but
not the MVRA.
Appellants blur the difference between UMDNJ and
SOM by referring to “the medical school” generally.
Contrary to their characterization, the indictment did not
allege a scheme designed to benefit “the medical school,” but
rather one to benefit SOM and its programs. Specifically, the
Government proved that the scheme carved out $2.325
million from the UMDNJ budget for direct allocation to
SOM. In his position as Chairman of the Senate Budget
Committee, Bryant insisted that this carve-out of UMDNJ’s
annual allocation be added to SOM’s base funding and be
similarly allocated in each subsequent year. Never before had
SOM received such a carve-out, and no evidence indicated
that Bryant had ever advocated for SOM within the Budget
Committee before going on SOM’s payroll. Thus, UMDNJ
suffered financially at the expense of the quid pro quo
exchange.
We are not persuaded by Appellants’ claims that
UMDNJ was not a victim because high-level employees at
UMDNJ were knowing participants in the scheme. Those
assertions are contrary to evidence presented at trial and
credited by the District Court at sentencing: in particular, that
Gallagher kept his superiors at UMDNJ ignorant about his
agreement with Bryant and never told anyone at UMDNJ that
Bryant was not performing the work he was supposed to be
41
doing or that he was exercising his official power in favor of
the institution. We see no reason to disturb these conclusions,
and thus reject that UMDNJ was in league with Bryant and
Gallagher such that it was not a proper victim; it was a victim
who suffered actual losses.
We also reject Appellants’ assertions that charging
honest services fraud, which is fraud that results in a loss to
the public of its right to the honest services of its public
servants, is inconsistent with a theory of financial loss to a
victim. We fail to see how the intangible losses associated
with honest services fraud preclude the possibility of actual
financial losses to an identifiable victim as well. Here, as
noted above, the New Jersey public was deprived of Bryant’s
honest services and UMDNJ was deprived of $2.325 million
in funding. The MVRA provides a remedy for the latter loss.
Moreover, restoring the financial loss to UMDNJ also
indirectly compensates the public for its loss of Bryant’s
honest services. UMDNJ, as a recipient of taxpayer funds, is
a proxy for the State’s interests, including its citizens’ interest
in the honest services of its public servants. See United States
v. Gee, 432 F.3d 713, 715 (7th Cir. 2005) (ordering restitution
to nonprofit organization by state senator who traded
kickbacks for state contracts where the organization was a
proper “proxy” for the victim, the United States and the
federal interest in general). Thus, we conclude that the order
of restitution was lawful, and now consider Appellants’
challenge to the amount of the award.
The MVRA requires restitution be ordered for the “full
amount” of each victim’s loss. 18 U.S.C. § 3663(f)(1)(A).
“The proper amount of restitution is the amount wrongfully
taken by the defendant.” United States v. Sapoznik, 161 F.3d
1117, 1121 (7th Cir. 1998) (citing 18 U.S.C.
42
§ 3663A(b)(1)(B)). As noted, Appellants argue that the
District Court should have offset the restitution amount (the
sum total of Bryant’s salary and bonuses from SOM) by the
value of the legitimate services Bryant provided, as he was
charged as having a low-show, not a no-show, job at SOM.
Under the MVRA, the Government has the burden of
proving the amount of the victim’s loss, but the defendant has
“[t]he burden of demonstrating such other matters as the court
deems appropriate,” 18 U.S.C. § 3664(e). In other cases
where offsets are claimed, such as for compensation that the
victim gets from other sources, other Courts of Appeals have
concluded that it is the defendant’s burden to prove those
offsets. See United States v. Elson, 577 F.3d 713, 734 (6th
Cir. 2009); United States v. Calbat, 266 F.3d 358, 365 (5th
Cir. 2001) Likewise, with respect to an offset for services
rendered, we believe that, because “[t]he restitution statute
allocates the various burdens of proof among the parties who
are best able to satisfy those burdens[,] . . . the defendant
should know the value of any [legitimate services] he has
already provided to the victim[, and so] . . . the burden should
fall on him to argue for a reduction in his restitution order.”
Elson, 577 F.3d at 734 (citation and internal quotation marks
omitted). Because it was Appellants’ burden to prove offsets
for any legitimate services Bryant might have rendered, and
they failed to do so at sentencing, we conclude that the
District Court did not abuse its discretion in ordering
$113,167 in restitution. 24
24
We note that in other circumstances the proper loss
calculation may not equal the full amount of a corrupt
employee’s salary and bonus, particularly in cases where the
employer would have hired an “honest” public servant and
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III. Conclusion
We believe sufficient evidence supported each of the counts
of conviction. Moreover, we discern no defect in the jury
instructions for honest services fraud or bribery. We
conclude also that the District Court did not abuse its
discretion in regard to the Beaver testimony involving
Bryant’s pension fraud counts. Finally, we hold that the
Court’s restitution order was proper. We thus affirm in all
respects.
paid him or her the same amount. In those cases, the loss
may be “the difference in the value of the services that [the
corrupt employee rendered] and the value of the services that
an honest [employee] would have rendered.” United States v.
Sapoznik, 161 F.3d 1510 (10th Cir. 1995). Here, however,
the job at SOM was created to accommodate Bryant—a false
job description was drafted and the subsequent hiring process
was a sham predestined to result in hiring Bryant for the
position. Presumably, absent the quid pro quo, the position
would not have been made and filled, and thus in this case the
full amount of the salary and bonus is appropriately “pegged
to the actual losses suffered by the victims of the defendant’s
criminal conduct,” and “based upon losses directly resulting
from such conduct.” Quillen, 335 F.3d at 222 (emphases in
original).
44