United States v. Urban , 404 F.3d 754 ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
4-20-2005
USA v. Urban
Precedential or Non-Precedential: Precedential
Docket No. 03-1325
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 03-1325/1326/1356/1370/1371/2315/2737/2751
UNITED STATES OF AMERICA
v.
THOMAS URBAN,
Appellant No. 03-1325
UNITED STATES OF AMERICA
v.
JOSEPH J. O'MALLEY,
Appellant No. 03-1326
UNITED STATES OF AMERICA
v.
JOSEPH R. LEONE,
Appellant No. 03-1356
UNITED STATES OF AMERICA
v.
GERALD S. MULDERIG,
Appellant No. 03-1370
UNITED STATES OF AMERICA
v.
FRED TURSI,
Appellant No. 03-1371
UNITED STATES OF AMERICA
v.
JAMES F. SMITH,
Appellant No. 03-2315
2
UNITED STATES OF AMERICA
v.
WILLIAM C. JACKSON,
Appellant No. 03-2737
UNITED STATES OF AMERICA
v.
STEPHEN M. RACHUBA,
Appellant No. 03-2751
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Nos. 02-cr-00165-13, 02-cr-00165-08, 02-cr-00165-05,
02-cr-00165-06, 02-cr-00165-12, 02-cr-00165-11,
02-cr-00165-03, and 02-cr-00165-09)
District Judge: Honorable Petrese B. Tucker
Argued October 28, 2004
Before: SCIRICA, Chief Judge, FISHER,
and GREENBERG, Circuit Judges.
(Filed: April 20, 2005)
3
Peter A. Levin
1927 Hamilton Street
Philadelphia, PA 19130
Attorney for Appellant, Thomas Urban
F. Emmett Fitzpatrick, Jr. (Argued)
F. Emmett Fitzpatrick Law Offices
6th and Chestnut Streets
926 Public Ledger Building
Philadelphia, PA 19106
Attorney for Appellants, Joseph J. O’Malley
and William C. Jackson
Alan L. Yatvin
Popper & Yatvin
230 South Broad Street, Suite 503
Philadelphia, PA 19102
Attorney for Appellant, Joseph R. Leone
S. Daniel Hutchison
135 North Broad Street
Woodbury, NJ 08096
Attorney for Appellant, Gerald S. Mulderig
NiaLena Caravasos
F. Emmett Fitzpatrick Law Offices
6th and Chestnut Streets
926 Public Ledger Building
Philadelphia, PA 19106
Attorney for Appellant, Fred Tursi
4
David L. McColgin (Argued)
Defender Association of Philadelphia
Federal Court Division
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
Attorney for Appellant, James F. Smith
Ari S. Moldovsky (Argued)
Moldovsky & Moldovsky
834 Chestnut Street, Suite 206
Philadelphia, PA 19107
Attorney for Appellant, Stephen M. Rachuba
Amy L. Kurland (Argued)
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Attorney for Appellee
OPINION OF THE COURT
FISHER, Circuit Judge.
Appellants, plumbing inspectors employed by the City of
Philadelphia, were convicted of improperly accepting payments from
plumbers whose work they inspected in violation of the Hobbs Act
and the Racketeer Influenced and Corrupt Organizations Act
(“RICO”). They raise a host of contentions on appeal, including
5
primarily a challenge to the District Court’s jury instruction regarding
the Hobbs Act’s requirement that the covered misconduct have
affected commerce. We find none of Appellants’ contentions
sufficient to support overturning their convictions. We will, however,
vacate their sentences in light of the United States Supreme Court’s
recent decision in United States v. Booker, 125 S. Ct. 738 (2005), and
remand to the District Court for resentencing in accordance with that
decision.
I.
Appellants Thomas Urban, Joseph J. O’Malley, Joseph R.
Leone, Gerald S. Mulderig, Fred Tursi, James F. Smith, William C.
Jackson and Stephen M. Rachuba were plumbing inspectors
employed by the Construction Services Department (“CSD”), a
division of the Department of Licenses and Inspections (“L&I
Department”) of the City of Philadelphia. The L&I Department is a
regulatory agency charged with construction inspections and business
regulatory affairs. The CSD is responsible for issuing all construction
permits and performing construction inspections. Appellants were
tasked with performing the plumbing component of these inspections,
and were expected to enforce the city plumbing code in order, among
other things, to ensure the safety of the city drinking water.
Appellants were assigned to districts. Plumbers were required to call
the offices of the district in which their job was located to set up an
appointment with an inspector. Appellants had discretion to decide
when to perform the inspection. In performing inspections and
enforcing the plumbing code, Appellants had the power to cite
violations of the code, issue stop work orders on projects, and revoke
the license of any plumber who failed to comply with the code.
In the late 1990s, law enforcement became aware that
plumbing inspectors were accepting monetary payments from
6
plumbers whose work they inspected, or claimed to have inspected.
In the course of its investigation into this practice, the FBI
interviewed several confidential sources – designated as CS1, CS2
and CS3, respectively – who had worked as plumbing inspectors
alongside Appellants, or as plumbers whose work Appellants had
inspected. An affidavit executed by an FBI agent, filed by the
government in support of a request to install hidden cameras in city
vehicles which would be used by suspected plumbing inspectors,
detailed statements given by these confidential sources. CS1, a
former plumbing inspector from 1992 to 1997, stated that 70%-80%
of the plumbing contractors whose work he inspected during that time
period “provided him with a cash ‘tip’ of $5 to $20 in return for his
inspection and for allowing the contractor to work without
interference.” CS1 stated that he made an additional $3,000 to
$6,000 per year from these “tips,” and that acceptance of “tips” was
commonplace among the L&I Department’s plumbing inspectors.
CS1 believed that plumbing inspectors, including specifically many
of the Appellants, “regularly accept[ed] ‘tips’ while working in their
official capacity as City inspectors[.]”
CS2, a small plumbing contractor who had allegedly
interacted with plumbing inspectors through a third party, stated that
he provided money used to pay a plumbing inspector named “Tursi”
in 1999 and on at least ten prior occasions. CS3, a large general
plumbing contractor who worked with several plumbing
subcontractors, stated that he was told by his subcontractors that
payments were made to an inspector named “O’Donnell” and his
replacement named “Smith.” The affidavit also stated that the affiant
had interviewed a “cooperating witness” who had “made consensual
recordings of L&I plumbing inspector Fred Tursi allegedly extorting
money from him.” This cooperating witness advised that he had
given $50 to his plumbers to give to Tursi to “keep him off their
backs.”
7
On the strength of this information, the government sought
and obtained from the United States District Court for the Eastern
District of Pennsylvania an order authorizing the installation of
hidden video cameras in two city vehicles which would be used by
certain of the Appellants while on official city business. Video
captured by these cameras apparently showed Appellants Jackson,
Leone, O’Malley, Rachuba and Smith accepting cash on numerous
occasions from plumbers during the course of conducting inspections;
in many instances, Appellants apparently accepted cash payments
without performing any inspection at all.
On March 19, 2002, a grand jury in the Eastern District of
Pennsylvania returned an indictment of 13 plumbing inspectors,
including Appellants, charging them with a violation of RICO, 18
U.S.C. § 1962, and multiple counts of Hobbs Act extortion, in
violation of 18 U.S.C. § 1951. A five-week trial ensued in early
September 2002. At trial, the government presented evidence
showing that multiple plumbers made numerous monetary payments
of varying sizes to each of the Appellants. Plumbers testified that
they paid inspectors anywhere from $5 to $200 per inspection. There
was ample evidence at trial that plumbers paid inspectors in order to
ensure timely and favorable inspections,1 and to prevent unfavorable
treatment or harassment by inspectors. One plumber testified that
“We felt like if you didn’t do what was, what had been going on for
years, you certainly would not see, you may not see an inspector
1
Numerous plumbers testified that because of labor and
equipment costs, any idle time between the completion of a project
and the performance of an inspection harmed their business. It was
therefore essential that plumbing inspectors arrive as soon as a project
was completed, and that they perform the inspection of that project as
rapidly as possible so that the plumbers could move on to their next
project.
8
showing up when you want him[,]” while another testified that he
paid inspectors because “[y]ou didn’t want to get on the bad side of
the inspector.” Other plumbers testified that they paid inspectors
because they could not afford to find out if they would be treated
differently by the inspectors if they did not pay. Plumber Richard
Clements testified that failing to tip could result in an inspector who
would “give me a hard time, or I wouldn’t get the prompt service.”
Yet another plumber testified that when Appellant Tursi asked him
for a larger tip than offered, he complied because “I felt as though
there would be some kind of problem if I didn’t do it.”
The government presented substantial evidence demonstrating
that Appellants knew that it was improper to accept monetary
payments from plumbers whose work they were inspecting, thus
undermining Appellants’ view that they were voluntarily (and
therefore properly) accepting “tips.” Each Appellant was required, at
the time of hiring, to sign an ethics statement acknowledging that he
was not permitted to accept “any offer, any gift, favor or service that
might tend to influence” him in the discharge of his duties. Every
inspector hired between 1980 and 2000 – including all of the
Appellants – was told that it was against city policy for employees to
take any cash in any amount at any time. An ethics directive from the
Mayor of Philadelphia permitted City employees to accept up to $100
in gifts per year from any one source, but expressly disallowed their
acceptance of cash in any amount.
Evidence of how Appellants accepted the plumbers’ payments
reinforced the government’s contention that Appellants knew the
payments were improper. Plumbers concealed the payments to
Appellants in the pages of their work permit or by folding it up and
transferring the money in what was commonly referred to as a “green
handshake.” In a conversation taped by a cooperating witness and
played for the jury, Appellant Mulderig explained that “every time
9
they hand me a permit I, I used to fold it over like that and then put
it in my pocket, you know what I mean. ... when I would go to like
Boston Market or something for lunch I would go in the men’s room
and take it out and put it in my, you know, take the money out of
there and put it in my pocket.” Moreover, video taken by the hidden
cameras in the city vehicles apparently revealed numerous instances
of Appellants surreptitiously receiving the payments and endeavoring
to keep the payments hidden.
In support of the Hobbs Act’s requirement that any
extortionate conduct have an effect on commerce, the government
presented evidence that each Appellant accepted tips from plumbers
who purchased supplies made out-of-state, i.e., outside of
Pennsylvania. Many of these same plumbers, however, testified that
the payments they made to Appellants did not affect their ability to
make out-of-state purchases.
On October 18, 2002, the jury convicted all Appellants except
William Jackson of the RICO charges, and all Appellants of the
Hobbs Act extortion charges. The District Court imposed varying
sentences on Appellants, ranging from twelve months of home
confinement to thirty-four months’ imprisonment, as well as fines,
assessments and probation. These eight, timely, consolidated appeals
followed.
II.
The District Court properly exercised subject matter
jurisdiction under 18 U.S.C. § 3231. We have appellate jurisdiction
over the judgments of conviction pursuant to 28 U.S.C. § 1291, and
over the sentences pursuant to 18 U.S.C. § 3742. Appellants raise a
number of challenges to their convictions which we will address
seriatim.
10
A. Appellants’ challenges to the jury instructions’ formulation of
the Hobbs Act’s effect on commerce requirement and the
sufficiency of the government’s evidence of such effect.
Appellants’ primary arguments on appeal challenge the
formulation of the Hobbs Act’s effect on commerce element in the
District Court’s jury instructions, as well as the sufficiency of the
evidence adduced by the government to prove such effect. The
Hobbs Act, 18 U.S.C. § 1951(a), provides:
Whoever in any way or degree obstructs, delays, or
affects commerce or the movement of any article or
commodity in commerce, by robbery or extortion or
attempts or conspires so to do, or commits or
threatens physical violence to any person or property
in furtherance of a plan or purpose to do anything in
violation of this section shall be fined under this title
or imprisoned not more than twenty years, or both.
18 U.S.C. § 1951(a).
In pertinent part, the District Court instructed the jury as
follows on the Hobbs Act charges:
You do not even have to find that there was an actual
effect on commerce. All that is necessary to prove
this element is that the natural consequences of the
extortion – of the money payment, potentially caused
an effect on interstate commerce to any degree,
however minimal or slight. Payment from a business
engaged in interstate commerce satisfies the
requirement of an effect on interstate commerce. If
the resources of a business are expended or
11
diminished as a result of the payment of money, then
interstate commerce is affected by such payment and
may reduce the assets available for purchase of goods,
services or other things originating in other states.
Under this instruction, the jury could convict even if it did not
find that Appellants’ extortionate acts actually affected commerce, so
long as it concluded that the “natural consequences” of the
extortionate acts “potentially caused” just a “minimal” effect on
interstate commerce. The jury was instructed to find this standard
satisfied upon proof of a “[p]ayment” made by plumbers “engaged in
interstate commerce,” which payment “diminished” the plumbers’
“resources,” i.e., by proof of a “depletion of assets.”
Appellants explicitly challenge the jury instruction’s statement
that proof of a “potential” effect on commerce is sufficient to prove
the effect on commerce element under the Hobbs Act, and implicitly
challenge the jury instruction’s statement of the depletion of assets
theory. In Appellants’ view, the reference to “potential” effect is
flawed because the Hobbs Act speaks in action verbs – “obstructs,
delays or affects commerce” – and conduct which merely has the
“potential” to affect commerce does not actually obstruct, delay or
affect commerce. Appellants also argue that after a series of Supreme
Court decisions between 1995 and 2000 construing the Commerce
Clause, it would be constitutionally doubtful to interpret the Hobbs
Act as applying to conduct which merely potentially affects
commerce. Appellants further contend that the so-called “depletion
of assets” theory – whereby proof that a Hobbs Act violation depletes
the assets of a business engaged in interstate commerce conclusively
establishes the effect on commerce requirement – was incorrectly
applied here in light of the plumbers’ testimony that the payments
they made to Appellants did not in fact affect their ability to engage
in interstate commerce. We read this latter contention as a challenge
12
to both the jury instruction’s formulation of the depletion of assets
theory, and to the sufficiency of the government’s evidence of effect
on commerce by way of the depletion of assets theory.
To the extent that Appellants challenge the District Court’s
interpretation of the Hobbs Act in formulating its jury instructions, or
the fidelity of its interpretation and instructions to the United States
Constitution, we exercise plenary review. United States v. Singletary,
268 F.3d 196, 198-99 (3d Cir. 2001) (citations omitted); Gibbs v.
Cross, 160 F.3d 962, 964 (3d Cir. 1998) (citations omitted). In
reviewing a challenge to the sufficiency of the evidence, we “must
determine whether, viewing the evidence most favorably to the
government, there is substantial evidence to support the jury’s guilty
verdict.” United States v. Idowu, 157 F.3d 265, 268 (3d Cir. 1998)
(citation and internal quotation marks omitted). We “will sustain the
verdict if ‘any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’ Thus, ‘a claim of
insufficiency of the evidence places a very heavy burden on an
appellant.’” United States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998)
(citations and internal quotation marks omitted).
A comprehensive review of our Hobbs Act precedent over the
past thirty years compels us to reject Appellants’ challenges regarding
the Hobbs Act’s effect on commerce requirement and the depletion
of assets theory of proving such an effect. We begin with United
States v. Mazzei, 521 F.2d 639 (3d Cir. 1975) (en banc). Mazzei, a
Pennsylvania state senator, engineered lease transactions between
state agencies and a private entity, B.M.I., Inc., and extorted payments
from B.M.I. in connection with the transactions. He was convicted
of two counts of Hobbs Act extortion. Mazzei argued on appeal that
the government had failed to satisfy the Hobbs Act’s effect on
commerce requirement because although B.M.I. was deemed to be
engaged in interstate commerce, the lease transactions which
13
constituted the unlawful extortionate acts were local and did not
themselves affect interstate commerce. We rejected this argument,
accepting instead the government’s contention that depletion of assets
of an entity engaged in interstate commerce was enough, as “[t]his
position accord[ed] with our previous holdings that where the
resources of an interstate business are depleted or diminished ‘in any
manner’ by extortionate payments, the consequent impairment of
ability to conduct an interstate business is sufficient to bring the
extortion within the play of the Hobbs Act.” Mazzei, 521 F.2d at 642
(citing United States v. Addonizio, 451 F.2d 49 (3d Cir. 1972); United
States v. Provenzano, 334 F.2d 678 (3d Cir. 1964)). We found that
the facts easily satisfied this standard. B.M.I.’s subsidiaries
“purchase[d] materials in a number of states for use in manufacturing
products sold in almost every state[,]” id., and the payments the
subsidiaries made diminished “funds available to B.M.I. for use in [ ]
interstate activities ... and its interstate business must to this extent be
curtailed.” Id. We “conclude[d] that the Hobbs Act may
constitutionally be construed to reach the indirect burdens placed on
interstate commerce by the extortionate activities alleged in this case
and that such a construction of the statute accords with Congressional
intent to proscribe extortion which ‘in any way or degree obstructs,
delays, or affects commerce.’” Id. (citations omitted).
In United States v. Cerilli, 603 F.2d 415 (3d Cir. 1979), we
considered appeals of substantive and conspiracy convictions under
the Hobbs Act. The Pennsylvania Department of Transportation (the
“Department”) leased equipment from private owners in order to
perform snow removal, general road maintenance and repair
responsibilities. Defendants were Department employees who had
accepted bribes from such private owners in exchange for leasing
their equipment. The government established at trial “that all the
lessors had bought fuel for their equipment that had travelled in
interstate commerce[,]” and that most of the lessors “had purchased
14
equipment and/or supplies that had travelled in interstate commerce.”
Cerilli, 603 F.2d at 423.
On appeal, defendants argued that the evidence of interstate
commerce was insufficient to support their Hobbs Act convictions.
We disagreed, reiterating that “where the resources of an interstate
business are depleted or diminished in any manner by extortionate
payments, the consequent impairment of ability to conduct an
interstate business is sufficient to bring the extortion within the play
of the Hobbs Act.” Id. at 424 (quoting Mazzei, 521 F.2d at 642)
(other citations and internal quotation marks omitted). We continued
that “[a]ll that is required to bring an extortion within the statute is
proof of a reasonably probable effect on commerce, however
minimal, as result of the extortion.” Id. (citations omitted). As in
Mazzei, we found that the government’s proof of depletion of assets
of entities who purchased goods in interstate commerce satisfied this
standard. Id.We then considered and rejected defendants’ argument in
Cerilli that the depletion of assets theory “should only be applied
where the victim of the extortion is itself an interstate business.” Id.We concluded that such a limited view of the Hobbs Act’s scope
would be “inconsistent with Congress’ purpose ‘to use all the
constitutional power Congress has to punish interference with
interstate commerce... .’” Id. (quoting Stirone v. United States, 361
U.S. 212, 215 (1960)). We acknowledged that “the effect on
interstate commerce proven here is certainly not very large,” but made
clear that “the Hobbs Act does not proscribe only those extortions
that have a large effect on commerce.” Id. We therefore affirmed the
following jury instruction given by the district court:
I instruct you instead that you may find interstate
commerce with the meaning of these instructions if
15
you find beyond a reasonable doubt that the victim
purchased goods in interstate commerce and that the
money was extorted from him; then, as a matter of
law, commerce was affected.
Id. at 424 n.11. Thus, Cerilli clearly endorsed the depletion of assets
theory under the Hobbs Act as formulated by the District Court here.2
Just last year, in United States v. Haywood, 363 F.3d 200 (3d
Cir. 2004), we reaffirmed our adherence to the depletion of assets
theory of proving a Hobbs Act effect on commerce, and announced
that proof of a “potential” effect is all that is required under the
Hobbs Act. Haywood had been convicted of a substantive Hobbs Act
violation for robbing a Virgin Islands tavern. A witness testified that
the defendant and his accomplice stole “approximately $40 to $60 in
bills and approximately $10 in coins.” Haywood, 363 F.3d at 202.
A Virgin Islands detective testified at trial that the tavern sold
Heineken and Miller beer, both of which were shipped in “from the
mainland United States.” Id. at 210. On appeal, Haywood contended
“that the government did not produce sufficient evidence to show that
the bar purchased goods or services from outside the Virgin Islands.”
2
We reaffirmed Cerilli’s endorsement of the depletion of
assets theory in United States v. Jannotti, 673 F.2d 578 (3d Cir. 1982)
(en banc). There, we reinstated defendants’ Hobbs Act conspiracy
convictions following the district court’s grant of their motion for
judgment of acquittal. In pertinent part, we observed that “[i]n
substantive Hobbs Act convictions, the requisite nexus to interstate
commerce has been found in the depletion of assets theory, because
the payment of an extortion demand may reduce the assets available
for the purchase of goods originating in other states.” Jannotti, 673
F.2d at 592-93 (citing Cerilli, 603 F.2d at 424) (other citation
omitted).
16
Id. Haywood primarily contested the foundation of the detective’s
testimony concerning effect on commerce, arguing that the
government was required to adduce independent evidence such as an
invoice in order to prove that the tavern purchased supplies
originating in mainland United States. We rejected this argument.
More germanely, we also rejected Haywood’s contention “that there
is no evidence to support the exercise of federal jurisdiction over
what is really a territorial crime.” Id. at 211 n.7. Earlier in the
opinion, in laying out the controlling Hobbs Act principles, we stated
that “[i]f the defendants’ conduct produces any interference with or
effect upon interstate commerce, whether slight, subtle or even
potential, it is sufficient to uphold a prosecution under [§ 1951].” Id.
at 209-10 (citation omitted). We further noted that “[a] jury may infer
that interstate commerce was affected to some minimal degree from
a showing that the business assets were depleted.” Id. at 210 (citation
omitted). Applying these principles, we found it “clear that interstate
commerce was affected, however minimally, because the bar sold
Heineken and Miller beer that came from outside the Virgin
Islands[,]” id. at 211 n.7, and because “the bar’s assets were depleted”
by the robbery. Id.
There thus appears to be little doubt that our precedent
supports the District Court’s use of “potential” effect and its
formulation of the depletion of assets theory in the jury instructions.3
3
Our view on these related issues in the context of substantive
Hobbs Act cases is in accord with the weight of authority in our sister
circuits. The majority of our sister circuits have endorsed the
“potential” effect reading of the Hobbs Act’s effect on commerce
requirement. See United States v. Rivera Rangel, 396 F.3d 476, 482-
83 (1st Cir. 2005) (“The Hobbs Act ... has ... been held to reach even
those effects which are merely potential or subtle.”) (quoting United
States v. Hathaway, 534 F.2d 386, 396 (1st Cir. 1976)); United States
17
v. Lynch, 367 F.3d 1148, 1155 (9th Cir. 2004) (“interstate nexus
requirement is satisfied ‘by proof of a probable or potential impact’
on interstate commerce”) (citation omitted); United States v. Curtis,
344 F.3d 1057, 1070 (10th Cir. 2003) (“We have repeatedly
interpreted the ‘broad language’ of the Hobbs Act to mean that for the
Government to obtain a conviction under the Act, the evidence need
show only a potential or de minimis effect on interstate commerce.”)
(citations omitted); United States v. Silverio, 335 F.3d 183, 186 (2d
Cir. 2003) (“effect upon interstate commerce, whether slight, subtle
or even potential, [ ] is sufficient to uphold a prosecution under the
Hobbs Act.”) (citations omitted); United States v. Peterson, 236 F.3d
848, 852 (7th Cir. 2001) (a “minimal potential effect on commerce is
all that need be proven to support a conviction [under the Hobbs
Act].”) (quoting United States v. Stillo, 57 F.3d 553, 558 n.2 (7th Cir.
1995)); United States v. Brantley, 777 F.2d 159, 162 (4th Cir. 1985)
(“jurisdictional predicate [of Hobbs Act] ... may be shown by proof
of probabilities without evidence that any particular commercial
movements were affected.”); but see United States v. Williams, 308
F.3d 833, 838 (8th Cir. 2002) (“the [Hobbs Act’s] plain language
requires an actual effect on interstate commerce, not just a probable
or potential impact.”); United States v. Carcione, 272 F.3d 1297,
1301 n.5 (11th Cir. 2001) (“A substantive violation of the Hobbs Act
requires an actual, de minimis affect on commerce.”) (citation
omitted). It is unclear where the Sixth Circuit stands. Compare
United States v. Wang, 222 F.3d 234, 237 (6th Cir. 2000) (“There is
no requirement that there be an actual effect on interstate
commerce--only a realistic probability that [an offense] will have an
effect on interstate commerce.”) (citation and internal quotation
marks omitted) with United States v. DiCarlantonio, 870 F.2d 1058,
1061 (6th Cir. 1989) (“a substantive Hobbs Act violation requires an
actual effect on interstate commerce”).
18
Appellants counter with several arguments, none of which alter our
view. First, Appellants invoke a trilogy of Supreme Court Commerce
There appears to be no disagreement among our sister circuits
as to the propriety of the depletion of assets theory as a means of
establishing the Hobbs Act’s effect on commerce requirement. See,
e.g., Curtis, 344 F.3d at 1070 (“Simply proving that a robbery
depleted the assets of a business engaged in interstate commerce will
suffice.”) (citation omitted); United States v. Williams, 342 F.3d 350,
354-55 (4th Cir. 2003) (“Commerce is sufficiently affected under the
Hobbs Act where a robbery depletes the assets of a business that is
engaged in interstate commerce.”) (citation omitted); United States
v. Jamison, 299 F.3d 114, 120 (2d Cir. 2002) (“a robbery or extortion
that depletes the assets of a business operating in interstate commerce
will satisfy the jurisdictional requirement of the Hobbs Act by a
minimal showing of effect on commerce.”) (citations omitted);
United States v. Turner, 272 F.3d 380, 386-87 & n.2 (6th Cir. 2001);
United States v. Diaz, 248 F.3d 1065, 1084-85 (11th Cir. 2001)
(“Robberies or extortions perpetrated upon individuals are
prosecutable under the Hobbs Act when ... the crime depletes the
assets of an individual who is directly engaged in interstate
commerce”) (citations omitted); United States v. Bailey, 227 F.3d
792, 798 (7th Cir. 2000) (under depletion of assets theory, “the
government shows that commerce is affected when an enterprise,
which either is actively engaged in interstate commerce or
customarily purchases items in interstate commerce, has its assets
depleted through extortion, thereby curtailing the victim’s potential
as a purchaser of such goods.”) (citations and internal quotation
marks omitted); United States v. Hebert, 131 F.3d 514, 521 (5th Cir.
1997) (defining required “effect on interstate commerce [for Hobbs
Act purposes] as a depletion of the assets of a business that purchases
out-of-state goods and supplies.”) (citations omitted); United States
v. Bucci, 839 F.2d 825, 830 (1st Cir. 1988).
19
Clause cases beginning with United States v. Lopez, 514 U.S. 549(1995), and proceeding to United States v. Morrison, 529 U.S. 598(2000) and Jones v. United States, 529 U.S. 848 (2000). Appellants
argue that construing the Hobbs Act to require only proof of a
potential effect would be constitutionally doubtful in light of this
trilogy of cases, thus compelling a strict construction of the Act as
requiring proof of an “actual effect” in order to avoid constitutional
doubt. But Appellants do not clearly articulate what would be
constitutionally doubtful about interpreting the Hobbs Act to require
only proof of a potential effect on commerce. We surmise that after
the Lopez-Morrison-Jones trilogy, the purported constitutional
doubtfulness of such a construction stems from those decisions’
holdings that Congress may only regulate activities “having a
substantial relation to interstate commerce .... i.e. those activities that
substantially affect interstate commerce.... .” Lopez, 514 U.S. at 558-
59. But we have already rejected the argument that Lopez and its
progeny require proof of a “substantial effect” on commerce in an
individual case in order to show a Hobbs Act violation. See United
States v. Clausen, 328 F.3d 708, 711 (3d Cir. 2003). In Clausen, we
followed the lead of other circuits, including the Fifth Circuit, which
had held that after Lopez, “legislation concerning an intrastate activity
will be upheld if Congress could rationally have concluded that the
activity, in isolation or in the aggregate, substantially affects interstate
commerce.” See United States v. Robinson, 119 F.3d 1205, 1211 (5th
Cir. 1997); see also United States v. Bolton, 68 F.3d 396, 399 (10th
Cir. 1995) (“Lopez did not ... require the government to show that
individual instances of the regulated activity substantially affect
commerce to pass constitutional muster under the Commerce Clause.
Rather, the Court recognized that if a statute regulates an activity
which, through repetition, in aggregate has a substantial affect on
interstate commerce, ... ‘the de minimis character of individual
instances arising under that statute is of no consequence.’”) (citing
Lopez, 514 U.S. at 558-59) (internal citations omitted) (ellipses
20
added) (emphasis omitted). With respect to the Hobbs Act
specifically, we stated in Clausen “‘that the cumulative result of many
Hobbs Act violations is a substantial effect upon interstate
commerce,’ and that substantial effect empowers Congress to regulate
pursuant to the Commerce Clause.” Clausen, 328 F.3d at 711(quoting Robinson, 119 F.3d at 1215)). Importantly, we held that
“[i]n any individual case, proof of a de minimis effect on interstate
commerce is all that is required.” Id. (citations omitted). And, as we
announced recently in Haywood, such a “de minimis effect” in an
individual Hobbs Act case need only be “potential.” See Haywood,
363 F.3d at 209-10 (citation omitted).
Appellants also suggest that contrary to our reading of
Jannotti, we held there that proof of an actual effect on commerce
was required under the Hobbs Act. We disagree. Appellants rely on
our statement in Jannotti that “[a] substantive violation of the Hobbs
Act generally is supported by proof of an actual effect on commerce.”
673 F.2d at 591 (citations omitted) (emphasis added). But saying that
certain evidence “generally” supports a violation is not the same as
saying that only that evidence supports a violation.
Finally, Appellants contend that the jury instruction’s
formulation of the depletion of assets theory created a mandatory
presumption which improperly precluded the jury from considering
evidence that commerce was not in fact affected by the plumbers’
payments. As the precedent above makes clear, however, proof of
extortion payments by a person or entity engaged in interstate
commerce is all the government needs to prove in order to satisfy the
Hobbs Act’s effect on commerce requirement, and the jury instruction
faithfully expressed this principle. It is conceivable that, as many of
the plumbers testified, the payments the plumbers made did not
actually result in a reduction in their engagement in interstate
commerce – for example, the plumbers may have absorbed the cost
21
of those payments by cutting their profits or by reducing their labor
force. But as we have repeatedly noted, the government need only
prove that Hobbs Act extortion potentially affected commerce. Our
“potential” effect reading of the Hobbs Act explains our continued
adherence to the depletion of assets theory, because it is beyond cavil
that the depletion of assets of a person engaged in interstate
commerce has at least a “potential” effect on that person’s
engagement in interstate commerce. Indeed, had the District Court
instructed the jury that, notwithstanding proof of depletion of assets
of plumbers engaged in interstate commerce, it could nonetheless
acquit if it credited those plumbers’ conclusory testimony that their
payments to Appellants did not affect their ability to purchase
supplies made out-of-state, it would have misstated the law of this
Circuit – extortion which depletes the assets of persons or businesses
engaged in interstate commerce is, as a matter of law, a Hobbs Act
violation.
The above discussion leaves little work left to do in
addressing Appellants’ argument that the government’s evidence of
depletion of assets of plumbers engaged in interstate commerce was
insufficient. The jury instruction’s formulation of the depletion of
assets theory accords with our precedent. Appellants do not dispute
that there was ample evidence that Appellants took payments from
various plumbers, and that each Appellant took payments from
plumbers who were engaged in interstate commerce, i.e., who
purchased supplies made out-of-state. This evidence is more than
sufficient to establish the Hobbs Act’s effect on commerce
requirement. Therefore, we conclude that the District Court’s
instruction that proof of a “potential” effect on commerce via the
depletion of assets theory was correct, and that the government’s
evidence was sufficient to support Appellants’ Hobbs Act convictions
pursuant to that instruction.
22
B. Appellants’ challenges to the sufficiency of the evidence that
they committed extortion “under color of official right”
within the meaning of the Hobbs Act.
Appellants (except for Leone) also challenge their Hobbs Act
convictions on grounds that the government’s evidence that they
committed their extortion “under color of official right” was
insufficient. As noted, in reviewing the sufficiency of the evidence,
we “must determine whether, viewing the evidence most favorably to
the government, there is substantial evidence to support the jury’s
guilty verdict.” Idowu, 157 F.3d at 268. We “will sustain the verdict
if ‘any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.’ Thus, ‘a claim of
insufficiency of the evidence places a very heavy burden on an
appellant.’” Dent, 149 F.3d at 187.
The Hobbs Act defines “extortion” as “the obtaining of
property from another, with his consent, induced by wrongful use of
actual or threatened force, violence, or fear, or under color of official
right.” 18 U.S.C. § 1951(b)(2). “Thus, the statute supports two
classes of extortion: extortion induced by ‘wrongful use of force’ and
extortion ‘under color of official right.’” United States v. Antico, 275
F.3d 245, 255 (3d Cir. 2001). Here, the government pursued the
“under color of official right” theory of Hobbs Act extortion. In order
to prove Hobbs Act extortion “under color of official right,” “the
Government need only show that a public official has obtained a
payment to which he was not entitled, knowing that the payment was
made in return for official acts.” Evans v. United States, 504 U.S.
255, 268 (1992). In other words, the government need not prove that
the public official induced the making of the payment, or that the
public official acted or refrained from acting as a result of payments
made.
23
The government’s evidence here was more than sufficient to
support a finding of extortion “under color of official right.” It was
established at trial that the plumbing code conferred discretion on
plumbing inspectors to require plumbers to redo a project even where
the project was technically code-compliant. Numerous plumbers
testified that it was important to minimize the extent to which they
and expensive personnel and equipment were forced to wait around
at a job site for an inspector to come and approve the work. These
plumbers testified that they therefore made payments to Appellants
because Appellants were plumbing inspectors and possessed authority
which could be exercised to the plumbers’ detriment. One plumber
who made payments to Appellants testified that he made the
payments because it made “the job run that much better,” made
“things work easier,” and made “everything go much better.”
Another plumber, Andrew Kromchad, testified that after an incident
in which Appellant Urban initially refused to allow him to finish a job
by backfilling, he, Kromchad, began making payments to avoid
“hassle.” When Mr. Kromchad asked Appellant Urban why he
initially refused to permit completion of the job, Urban responded
that Kromchad was like his old boss; Kromchad testified that what he
believed Urban meant by this was that his old boss refused to “tip”
inspectors. Yet another plumber, Michael Brescia, testified that he
“felt as though there would be some kind of problem” if he did not
“tip” the inspectors.
The government also adduced evidence demonstrating that
Appellants had knowledge that they were receiving the plumbers’
payments in return for favorable exercise of government authority.
At the time of hiring, plumbing inspectors were required to sign an
ethics statement whereby they agreed not to “accept, nor offer any
gift, favor or service that might tend to influence me in the discharge
of my duties.” There was testimony from a city personnel manager
that every plumbing inspector hired between 1980 and 2000 – a time
24
period encompassing the dates of hire of each of the Appellants – was
instructed that they were not permitted to take money. The personnel
manager testified that the prohibition on taking money was reiterated
at subsequent integrity training sessions. Coupled with the evidence
concerning the prohibition on taking money was ample evidence that
Appellants did not receive the plumbers’ payments publicly, or at
least openly in public. Rather, plumbers would conceal the payments
inside the pages of a permit or would fold up cash and transfer it by
way of a “green handshake.”
Thus, the government adduced substantial evidence that:
(1) plumbers made payments to Appellants knowing that Appellants
were public officials exercising governmental authority; (2) plumbers,
knowing of the discretion in the plumbing code and desirous of
punctual inspections, made payments in order to assure advantageous
exercise of that government authority by Appellants; and
(3) Appellants knew that the plumbers’ payments were made for an
improper purpose, i.e., the influencing of their governmental
authority. This evidence squarely supports the showing required to
prove extortion “under color of official right” as explained by the
Supreme Court in Evans. Contentions like Appellant Urban’s that
there was no evidence that he “failed to perform his job as a result of
his being tipped and no one claimed to have tipped [him] in exchange
for anything,” or like Appellant Mulderig’s that Appellants were not
influenced by the plumbers’ payments, even if accurate, are
unavailing. We therefore find that Appellants have failed to meet the
stringent standard for overturning their Hobbs Act convictions on
grounds of insufficient evidence of extortion “under color of official
right.”
25
C. Appellants’ challenges to their RICO convictions.
Appellants O’Malley, Rachuba, Tursi and Urban contend that
the government failed to prove that they directed the affairs of an
“enterprise” as required to support a RICO conviction. Appellants
also argue that the government failed to prove the existence of an
“enterprise” for purposes of their RICO convictions because the CSD
cannot be such an “enterprise.” We reject these contentions.
Appellants were charged with violating § 1962(c) of RICO,
which provides that “[i]t shall be unlawful for any person employed
by or associated with any enterprise engaged in, or the activities of
which affect, interstate or foreign commerce, to conduct or
participate, directly or indirectly, in the conduct of such enterprise’s
affairs through a pattern of racketeering activity or collection of
unlawful debt.” 18 U.S.C. § 1962(c). “To establish a § 1962(c)
RICO violation, the government must prove the following four
elements: ‘(1) the existence of an enterprise affecting interstate
commerce; (2) that the defendant was employed by or associated with
the enterprise; (3) that the defendant participated, either directly or
indirectly, in the conduct or the affairs of the enterprise; and (4) that
he or she participated through a pattern of racketeering activity.’”
United States v. Irizarry, 341 F.3d 273, 285 (3d Cir. 2003) (quoting
United States v. Console, 13 F.3d 641, 652-653 (3d Cir. 1993)).
Appellants contend that the government failed to prove that
they directed the affairs of the CSD or participated in its operation or
management. In order to participate, directly or indirectly, in the
conduct of an enterprise’s affairs for purposes of § 1962(c), “one
must have some part in directing those affairs.” Reves v. Ernst &
Young, 507 U.S. 170, 179 (1993). But “one need not hold a formal
position within an enterprise in order to ‘participate’ in its affairs.”
United States v. Parise, 159 F.3d 790, 796 (3d Cir. 1998) (citing
26
Reves, 507 U.S. at 179). Moreover, “the ‘operation or management’
test does not limit RICO liability to upper management because ‘an
enterprise is operated not just by upper management but also by
lower-rung participants in the enterprise who are under the direction
of upper management.’” Parise, 159 F.3d at 796 (quoting Reves, 507
U.S. at 184) (internal quotation marks omitted). Reves thus “made
clear that RICO liability may extend to those who do not hold a
managerial position within an enterprise, but who do nonetheless
knowingly further the illegal aims of the enterprise by carrying out the
directives of those in control.” Id.We have applied Reves to limit RICO liability under § 1962(c)
to those instances where there is “‘a nexus between the person and the
conduct in the affairs of an enterprise.’” Parise, 159 F.3d at 796(quoting University of Maryland at Baltimore v. Peat, Marwick, Main
& Co., 996 F.2d 1534, 1539 (3d Cir. 1993)). The government’s
evidence sufficiently established the existence of such a nexus here
simply by demonstrating that the City employed Appellants to
perform plumbing inspections and related work, and that Appellants
in fact performed that work.
Appellants also argue that the government failed to prove the
existence of an “enterprise.” RICO defines “enterprise” as
“includ[ing] any individual, partnership, corporation, association, or
other legal entity, and any union or group of individuals associated in
fact although not a legal entity[.]” 18 U.S.C. § 1961(4). In order to
prove the requisite “enterprise,” we require proof “(1) that the
enterprise is an ongoing organization with some sort of framework for
making or carrying out decisions; (2) that the various associates
function as a continuing unit; and (3) that the enterprise be separate
and apart from the pattern of activity in which it engages.” Irizarry,
341 F.3d at 286 (citations omitted).
27
Here, the government adduced evidence establishing each of
the three elements of “enterprise” set forth in Irizarry. There is no
dispute that the CSD is “an ongoing organization with some sort of
framework for making or carrying out decisions.” In order to prove
the second element – “associates function[ing] as a continuing unit”
– we have said that the government must show “that each person
perform[ed] a role in the group consistent with the organizational
structure established by the first element and which furthers the
activities of the organization.” United States v. Riccobene, 709 F.2d
214, 223 (3d Cir. 1982), overruled on other grounds by Griffin v.
United States, 502 U.S. 46 (1991)). Again, the government offered
sufficient evidence to support this element. There is no question that
Appellants worked for the “enterprise,” i.e., the CSD, and they did so
on a continuous basis, daily issuing permits and performing
inspections of plumbing projects in Philadelphia. Finally, there is no
dispute that the CSD was distinct from Appellants’ extortionate acts.
The CSD is an arm of the government of the City of Philadelphia
created for the purpose of issuing permits for construction projects in
Philadelphia and overseeing those projects to ensure their compliance
with code regulations. There is no contention that the CSD was
created and existed for the purpose of enabling Appellants’
extortionate acts.
Appellants suggest that an “enterprise” can only be an “illegal
organization,” and that therefore “an employment group [like the
CSD] created by the City is definitely not an enterprise.” This
misstates the law under RICO. The plain text of RICO defines
enterprise as, inter alia, a “legal entity[.]” See 18 U.S.C. § 1961(4).
And we have frequently found government entities to be “enterprises”
for RICO purposes. See, e.g., Genty v. Resolution Trust Corp., 937
F.2d 899, 906-07 (3d Cir. 1991) (holding that township can be an
“enterprise” for RICO purposes) (citation omitted); Averbach v. Rival
Mfg. Co., 809 F.2d 1016, 1018 (3d Cir. 1987) (noting that court can
28
be an “enterprise”); United States v. Bacheler, 611 F.2d 443, 450 (3d
Cir. 1979) (holding that Philadelphia Traffic Court can be an
“enterprise”); United States v. Frumento, 563 F.2d 1083, 1092 (3d
Cir. 1977) (holding that the Pennsylvania Department of Revenue’s
Bureau of Cigarette and Beverage Taxes was an “enterprise”).
Finally, Appellants assert that the government failed to prove
an agreement among Appellants to participate in an enterprise
through a pattern of racketeering activities. But Appellants were
charged with committing substantive RICO violations under 18
U.S.C. § 1962(c), which does not require proof of any such
agreement. See Parise, 159 F.3d at 794 (citation omitted).
Accordingly, we find that the government adduced sufficient
evidence to support Appellants’ RICO convictions, and will therefore
affirm those convictions.
D. Appellants’ challenges to the sufficiency of the indictment
and the District Court’s denial of their motions for a bill of
particulars.
Appellants Jackson, O’Malley, Rachuba and Tursi argue that
the indictment failed to allege sufficient information enabling them
to prepare a defense. They also contend that given the insufficiency
of the indictment, the District Court erred in denying their motion for
a bill of particulars. We reject these challenges.
We deal first with the sufficiency of the indictment. We
exercise plenary review over a challenge to the sufficiency of an
indictment. United States v. Whited, 311 F.3d 259, 262 (3d Cir.
2002) (citation omitted). An indictment must contain “a plain,
concise and definite written statement of the essential facts
constituting the offense charged.” Fed. R. Crim. P. 7(c)(1). “We
consider an indictment sufficient if, when considered in its entirety,
29
it adequately informs the defendant of the charges against her such
that she may prepare a defense and invoke the double jeopardy clause
when appropriate.” Whited, 311 F.3d at 262 (citations omitted).
The indictment here tracked the language of the Hobbs Act,
stating that Appellants “knowingly and unlawfully obstructed,
delayed and affected commerce, and the movement of articles and
commodities in commerce, and attempted to do so, by extortion” by
“unlawfully obtain[ing] and attempt[ing] to obtain property and
things of value.” The indictment further identified in chart form the
approximate dollar amounts of the “things of value” (the payments
taken by Appellants) as well as the persons and businesses who made
the payments. In other words, the indictment informed Appellants of
the statute they were charged with violating, the elements of a
violation of that statute, the persons or businesses victimized, and the
time period during which the payments were made. As such, the
indictment more than adequately informed Appellants of the charges
leveled against them, and enabled them to prepare their defense and,
if applicable, invoke the double jeopardy clause.
We also disagree with Appellants’ contention that the District
Court erred in denying their motions for a bill of particulars. We
review an order denying a motion for a bill of particulars for abuse of
discretion. See United States v. Eufrasio, 935 F.2d 553, 575 (3d Cir.
1991) (citation omitted). A bill of particulars is a “formal, detailed
statement of the claims or charges brought by a plaintiff or a
prosecutor[.]” Black’s Law Dictionary 177 (8th ed. 2004). The
purpose of a bill of particulars is “to inform the defendant of the
nature of the charges brought against him, to adequately prepare his
defense, to avoid surprise during the trial and to protect him against
a second prosecution for an inadequately described offense.”
Addonizio, 451 F.2d at 63-64. Only where an indictment fails to
perform these functions, and thereby “significantly impairs the
30
defendant’s ability to prepare his defense or is likely to lead to
prejudicial surprise at trial[,]” United States v. Rosa, 891 F.2d 1063,
1066 (3d Cir. 1989) (citing Addonizio, 451 F.2d at 62-63), will we
find that a bill of particulars should have been issued.
As discussed above, the indictment provided more than
enough information to allow Appellants to prepare an effective trial
strategy. Moreover, Appellants had access through discovery to the
documents and witness statements relied upon by the government in
constructing its case, including trial evidence reflecting the dates of
payments to Appellants and the approximate amounts of those
payments.4 This access to discovery further weakens the case for a
bill of particulars here. See United States v. Giese, 597 F.2d 1170,
1180 (9th Cir. 1979) (“Full discovery ... obviates the need for a bill
of particulars.”). The District Court therefore did not abuse its
discretion in denying Appellants’ motions for a bill of particulars.
E. Appellant Leone’s challenge to the District Court’s admission
of videotapes produced by hidden cameras installed in city
vehicles.
At trial, the government entered into evidence several
videotapes produced by cameras hidden inside city vehicles used by
Appellants, including Appellant Leone. Appellant Leone
unsuccessfully moved to suppress the videotapes, and argues on
4
This evidence apparently included a computer program
prepared by the government and provided to Appellants which
enabled Appellants to determine how many inspections each
inspector performed for each plumber during a specific time period,
and to identify which of the inspectors had inspected the work of
which plumbers who had stated that they made payments to
inspectors.
31
appeal that the District Court erred in refusing to grant his
suppression motion. For the reasons that follow, we will affirm the
District Court’s denial of Appellant Leone’s suppression motion.
In February 2000, the government sought an order from the
District Court “to utilize CTV (no audio) to videotape the activities
of the targeted plumbing inspectors in two City of Philadelphia
vehicles while performing their daily work routine.” The affidavit
submitted by the government in support of its request contained
statements given by several confidential sources during interviews
with the FBI. These statements detailed a relatively widespread
practice by plumbing inspectors, including Appellants, of accepting
cash payments from plumbers whose work they inspected. On
February 18, 2000, on the basis of the government’s affidavit, the
Honorable William H. Yohn of the United States District Court for
the Eastern District of Pennsylvania issued an order authorizing the
interception of visual, non-verbal conduct and activities pursuant to
Rule 41(b) of the Federal Rules of Criminal Procedure and the All
Writs Act, 28 U.S.C. § 1651. Judge Yohn found that there was
probable cause to believe that Appellants, among others, were
committing Hobbs Act violations, and found that there was probable
cause to believe that particular visual, non-verbal conduct and
activities concerning these offenses would be obtained through video
surveillance installed in the vehicles. Judge Yohn ordered that the
interception end on the earlier of (a) thirty days from the date of the
order or (b) when intercepted conduct or activity “reveals the manner
in which these individuals and others as yet unknown participate in
the specified offenses and reveals the identities of their
coconspirators, their methods of operation, and the nature of the
conspiracy[.]” Judge Yohn granted several subsequent applications
by the government to extend the order beyond the original thirty days.
32
While on official inspection duty, Appellant Leone drove one
of the cars in which a video camera had been installed. The video
camera captured numerous instances of Appellant Leone taking
money from plumbers that had been placed between the pages of
permits and putting it into his pocket despite not conducting any
inspection of the project site. Appellant Leone argues that there was
not probable cause supporting the order authorizing the installation
of the video cameras because the only information supporting the
order was not particularized as to him as required by the Fourth
Amendment.5 He also argues that the information contained in the
government’s affidavit did not create constitutionally sufficient
probable cause because it was stale, i.e., too much time had elapsed
between the dates referenced by the confidential sources and the
District Court’s order authorizing the installation of the video
cameras.
Appellant Leone’s contentions fail. Neither the Fourth
Amendment nor the federal wiretap statute, Title III of the federal
Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.
§§ 2510-2520,6 proscribes the interception and use of audio or visual
data of persons not specifically named in an application seeking
judicial authorization of such interception. See United States v.
Donovan, 429 U.S. 413, 435 (1977) (“It is not a constitutional
5
Leone contends that the government “agrees” that he “had a
reasonable expectation of privacy in his work vehicle.” Nothing in
the government’s brief undermines this statement. Thus, we will
assume that the operation of the video cameras installed in the
vehicles amounted to a Fourth Amendment search and seizure
requiring the existence of probable cause.
6
We have assumed that Title III applies to video surveillance.
See United States v. Williams, 124 F.3d 411, 416 (3d Cir. 1997).
33
requirement that all those likely to be overheard engaging in
incriminating conversations be named.”); United States v. Kahn, 415
U.S. 143, 152-53 (1974) (rejecting interpretation of Title III requiring
application for judicial authorization to “identify all persons, known
or discoverable, who are committing the offense and whose
communications are to be intercepted.”) (internal quotation marks
omitted); United States v. Tehfe, 722 F.2d 1114, 1117-18 (3d Cir.
1983).7 As the Supreme Court explained in Donovan, so long as
electronic interception is justified by probable cause that the facility
or property through or at which the intercepted communication takes
place is the means or situs of criminal activity, “the failure to identify
additional persons who are likely to be overheard engaging in
incriminating conversations could hardly invalidate an otherwise
lawful judicial authorization.” Donovan, 429 U.S. at 435.
Our decision in Tehfe illustrates these principles. It involved
a wiretap on a phone at an address denoted “22nd Street.” The
7
Our sister circuits agree. See, e.g., United States v.
Killingsworth, 117 F.3d 1159, 1165 (10th Cir. 1997) (rejecting
contention that recording conversations of persons unidentified in
application for wiretap authorization violated Title III); United States
v. Martin, 599 F.2d 880, 884 (9th Cir. 1979), overruled on other
grounds by United States v. DeBright, 730 F.2d 1255 (9th Cir. 1984)
(“There is no constitutional requirement that the persons whose
conversations may be intercepted be named in the application.”)
(citing Donovan, 429 U.S. at 427 n.15); United States v. Hyde, 574
F.2d 856, 862 (5th Cir. 1978) (“[W]e have never required that a
defendant be named in a wiretap application or accused of using the
suspected telephone before evidence obtained by the wiretap can be
used against him. One of the objects of wiretapping is to ascertain the
full extent of participation in criminal activity, and we need not limit
retrospectively the pool of potential defendants.”).
34
affidavit supporting the wiretap detailed a drug distribution ring that
included defendant Tehfe as one of its principals and sought
authorization to tap the phone of defendant Sanchez at 22nd Street.
The affidavit arguably did not specifically identify Sanchez as
belonging to or participating in the drug ring at issue. The wiretap
produced information supporting Sanchez’s arrest. The district court
granted Sanchez’s motion to suppress that information, noting that
the application seeking the wiretap did not contain evidence
specifically linking him to the illegal drug activity. We reversed,
explaining in pertinent part:
When reviewing an application, courts must also bear
in mind that search warrants are directed, not at
persons, but at property where there is probable cause
to believe that instrumentalities or evidence of crime
will be found. Zurcher v. Stanford Daily, 436 U.S.
547, 553-560, 98 S. Ct. 1970, 1975-1978, 56 L.Ed.2d
525 (1978). The affidavit in support of a warrant need
not present information that would justify the arrest of
the individual in possession of or in control of the
property. Nor is it required that the owner be
suspected of having committed a crime. Property
owned by a person absolutely innocent of any
wrongdoing may nevertheless be searched under a
valid warrant.
722 F.2d at 1117-18 (citation omitted). We then applied these Fourth
Amendment principles in Tehfe to wiretap authorizations, focusing
not on the persons specifically identified as participants in the illegal
activity, but rather on the facility (the 22nd Street phone) employed
to further that illegal activity. Id. at 1118.
35
The principles expounded in Tehfe apply squarely here. Just
as there was no question that probable cause existed that the 22nd
Street phone line was being used for criminal purposes, there is no
question here that probable cause existed that plumbing inspectors
were accepting cash payments from plumbers on inspection sites.
The Fourth Amendment and Title III require nothing more.
Appellant Leone’s staleness argument fails as well. He argues
that the only information supporting probable cause as to him were
CS1’s statements concerning what he witnessed as a plumbing
inspector from 1992-1997. In his view, this information could not
support probable cause on February 18, 2000, more than two years
after the conclusion of the time period providing the basis for CS1’s
testimony. It is true that the “[a]ge of the information supporting a
warrant application is a factor in determining probable cause[,]”
United States v. Zimmerman, 277 F.3d 426, 434 (3d Cir. 2002)
(citations omitted), and that “[i]f too old, the information is stale, and
probable cause may no longer exist.” Id. (citation omitted). But
“[a]ge alone ... does not determine staleness. ‘The determination of
probable cause is not merely an exercise in counting the days or even
months between the facts relied on and the issuance of the warrant.’”
United States v. Harvey, 2 F.3d 1318, 1322 (3d Cir. 1993) (quoting
United States v. Williams, 897 F.2d 1034, 1039 (10th Cir. 1990)).
“Rather, we must also examine the nature of the crime and the type
of evidence.” Id. (citations omitted). Thus, where the facts adduced
to support probable cause describe a course or pattern of ongoing and
continuous criminality, the passage of time between the occurrence
of the facts set forth in the affidavit and the submission of the
affidavit itself loses significance. See Tehfe, 722 F.2d at 1120;
United States v. Harris, 482 F.2d 1115, 1119 (3d Cir. 1973) (“where
the affidavit properly recites facts indicating activity of a protracted
and continuous nature, a course of conduct, the passage of time
becomes less significant.”) (citation and internal quotation marks
36
omitted). “[T]he liberal examination given staleness in a protracted
criminal conduct case ‘is even more defensible in wiretap cases than
in ordinary warrant cases, since no tangible objects which can be
quickly carried off are sought.’” Tehfe, 722 F.2d at 1119-20 (citation
omitted).
When analyzed under these standards, the evidence advanced
by the government in support of its request for authorization of the
hidden cameras was not stale. The confidential sources cited in the
government’s affidavit depicted the acceptance of payments not only
as a routine and continuous practice from 1992-1997, but, as
evidenced by CS1’s statements concerning Appellant Tursi’s
extortion in April of 1999, and payments made to inspector
O’Donnell from April to October 1999, also as a practice that
continued beyond 1997 into late 1999. In other words, there was
evidence that the plumbing inspectors’ misconduct was an
established, routine practice that had spanned numerous years and had
continued at least up until just months prior to the District Court’s
initial authorization of the video surveillance in February of 2000.
We therefore conclude that the evidence of the plumbing inspectors’
continuous misconduct leading up to the time of the first affidavit’s
issuance was not stale, and therefore provided probable cause for the
video surveillance.
F. Appellant Rachuba’s challenge to the District Court’s denial
of his motion to sever his trial from the trial of the other
Appellants.
Appellant Rachuba contends that the District Court abused its
discretion in refusing to sever his trial from that of the other
Appellants because the evidence against certain of the other
Appellants “was voluminous and more aggressive in nature” than that
marshaled against him, and “created an unavoidable spillover effect
37
continually prejudicing Rachuba and denying him a fair trial.” We
disagree.
We begin 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.”
Zafiro v. United States, 506 U.S. 534, 537 (1993). For this reason,
the choice of whether to sever is reserved “to the sound discretion of
the district courts.” Zafiro, 506 U.S. at 541. We therefore review a
District Court’s denial of a motion for severance for abuse of
discretion. United States v. Hart, 273 F.3d 363, 369 (3d Cir. 2001).
“[A] district court should grant a severance under Rule 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.” Zafiro, 506 U.S. at
539.
Defendants seeking to sever bear a “heavy burden,” Console,
13 F.3d at 655, and must demonstrate not only abuse of discretion in
denying severance, id., but also that the denial of severance would
lead to “clear and substantial prejudice resulting in a manifestly unfair
trial.” United States v. Palma-Ruedas, 121 F.3d 841, 854 (3d Cir.
1997), rev’d on other grounds by United States v. Rodriguez-Moreno,
526 U.S. 275 (1999). “[D]efendants are not entitled to severance
merely because they may have a better chance of acquittal in separate
trials.” Zafiro, 506 U.S. at 540. “Mere allegations of prejudice are
not enough.” United States v. Reicherter, 647 F.2d 397, 400 (3d Cir.
1981).
Appellant Rachuba has failed to meet his burden. His
argument boils down to the contention that the evidence of payments
accepted by other Appellants enhanced his own guilt in the view of
38
the jury. We have long held, however, that “‘[a] defendant is not
entitled to severance merely because the evidence against a
co-defendant is more damaging than that against him.’” United
States v. Adams, 759 F.2d 1099, 1112 (3d Cir. 1985) (quoting United
States v. Dansker, 537 F.2d 40, 62 (3d Cir. 1976)). See also Console,
13 F.3d at 655 (“Prejudice should not be found in a joint trial just
because all evidence adduced is not germane to all counts against
each defendant or some evidence adduced is more damaging to one
defendant than others.”) (citation and internal quotation marks
omitted). Rather, “[s]ome exacerbating circumstances, such as the
jury’s inability to ‘compartmentalize’ the evidence, are required.”
Adams, 759 F.2d at 1112-13 (quoting Dansker, 537 F.2d at 62). The
jury here was fully capable of compartmentalizing the evidence
against the various Appellants. The jury had at its disposal a chart
which specified which of the Appellants accepted bribes from which
plumbers, thus enabling it to effectively segregate the evidence
adduced against Rachuba from that adduced against the other
Appellants. Moreover, the District Court expressly instructed the jury
to compartmentalize the evidence, stating in its instructions that “the
fact that you may find a defendant guilty or not guilty of one of the
offenses should not control your verdict as to any of the other
offenses charged,” and that “you must give separate and individual
consideration to each charge against each defendant.” We presume
that the jury follows such instructions, see Zafiro, 506 U.S. at 540,
and regard such instructions as persuasive evidence that refusals to
sever did not prejudice the defendant. See, e.g., United States v.
Voigt, 89 F.3d 1050, 1096 (3d Cir. 1996) (finding that similar
limiting instructions “reinforce[d]” its affirmance of the district
court’s denial of motion to sever) (citations omitted).8 For these
8
The case before us closely resembles United States v. Garner,
837 F.2d 1404 (7th Cir. 1987). There, City of Chicago sewage
inspectors had been charged with accepting bribes from private
39
reasons, we conclude that the District Court did not abuse its
discretion in denying Appellant Rachuba’s motion for severance.
G. Appellant Rachuba’s contention that the District Court erred
in refusing to grant a mistrial due to jurors’ inadvertent
exposure to media.
Appellant Rachuba contends that the District Court abused its
discretion when it refused to grant a mistrial because jurors were
inadvertently exposed to a New York Times article discussing a
federal bribery case involving New York City plumbing inspectors,
as well as a Philadelphia Inquirer article reporting about guilty
verdicts handed down in a contemporaneous, though unrelated,
corruption trial in the same federal courthouse. The New York Times
article had been attached to a memorandum entered into evidence
during the testimony of the L&I Department’s Administrative
Services Director, Richard Feldgus. The memorandum, issued by
L&I Department Commissioner Bennet Levin in 1993, addressed
contractors in violation of RICO and the Hobbs Act. The inspectors
were convicted following a joint trial and appealed, among others, the
District Court’s refusal to sever their trials. The Seventh Circuit
affirmed the District Court’s refusal to sever. The court noted that,
as here, the evidence adduced against the sewage inspectors consisted
almost entirely of testimony by contractors concerning the identity of
those inspectors they bribed. 837 F.2d at 1414. As such, though the
amount of evidence was large, it was not complex, and thus “the jury
was able to ‘segregate the evidence into separate intellectual boxes’
and to ‘compartmentalize the evidence against the defendants.’” Id.(quoting United States v. Cavale, 688 F.2d 1098, 1106, 1108 (7th Cir.
1982)). Furthermore, as here, “the jury was instructed carefully to
give the defendants separate consideration, and to ignore the evidence
against the other defendants.” Id.40
corruption in city government and warned city employees not to take
any additional money beyond their city remuneration. The
government asked Feldgus during his testimony to read from the
memorandum. Defense counsel objected to the government’s
anticipated introduction of the article, and the District Court sustained
the objection, precluding the article’s admission. The District Court
further instructed the jury not to read the article and ordered the
government to remove the article from the jury evidence books. The
District Court refused to dismiss any of the jurors following a voir
dire during which it questioned them about the extent to which they
had read the New York Times article.
On the day the Philadelphia Inquirer article was printed,
Appellant Leone’s counsel, joined by, among others, Appellant
Rachuba’s counsel, moved for a mistrial because he believed at least
some of the jurors had read the article. As with the New York Times
article, the District Court conducted a voir dire of the jurors during
which it asked them whether they had read about or discussed any
other federal case reported in the news and, at least as to one juror
who had specifically read the Inquirer article, whether having read or
heard any such report would affect his impartiality. Following the
voir dire, the District Court denied the motion for a mistrial based on
exposure to the Inquirer article.
“We review a district court’s order which denies a new trial
based on alleged prejudicial information for abuse of discretion.”
Waldorf v. Shuta, 3 F.3d 705, 710 (3d Cir. 1993) (citing Gov’t of
Virgin Islands v. Lima, 774 F.2d 1245, 1250 (3d Cir. 1985)). “A new
trial is warranted if the defendant likely suffered ‘substantial
prejudice’ as a result of the jury’s exposure to the extraneous
information.” United States v. Lloyd, 269 F.3d 228, 238 (3d Cir.
2001) (quoting United States v. Gilsenan, 949 F.2d 90, 95 (3d Cir.
1991)). “In examining for prejudice, we must conduct ‘an objective
41
analysis by considering the probable effect of the allegedly prejudicial
information on a hypothetical average juror.’” Lloyd, 269 F.3d at 238(quoting Gilsenan, 949 F.2d at 95 (internal citations omitted)). We
look to see whether the allegedly prejudicial information influenced
the jury “when it deliberated and delivered its verdict, as we are
concerned with the information’s effect on the verdict rather than the
information in the abstract.” Gilsenan, 949 F.2d at 96. The party
seeking the new trial bears the burden of demonstrating a likelihood
of prejudice. Waldorf, 3 F.3d at 710. “We independently review the
record to determine if that party has met that burden.” Lloyd, 269
F.3d at 238 (citing Gilsenan, 949 F.2d at 95).9
In determining prejudice, we have often looked at numerous
factors, including the “extent of the jury’s exposure to the extraneous
information[,]” Lloyd, 269 F.3d at 240 (citations omitted), the “time
at which the jury receives the extraneous information[,]” id., “the
length of the jury’s deliberations and the structure of its verdict[,]” id.9
As we explained in Lloyd, unlike many other circuits, we do
not mechanically apply a presumption of prejudice every time a jury
is exposed to extraneous information. See Lloyd, 269 F.3d at 238.
Rather, while we tend to apply the presumption of prejudice where a
juror is directly contacted by third-parties, Lloyd, 269 F.3d at 238
(citing cases), “we tend not to apply the presumption to circumstances
in which the extraneous information at issue is a media report, such
as a television story or newspaper article.” Id. at 239 (citing cases).
It is true that even in the case of media exposure, we will apply the
presumption of prejudice where “the publicity that occurs is [ ]
fundamentally prejudicial... .” Waldorf, 3 F.3d at 710 n.6. But no
such presumption applies “[w]here the improper publicity is of a less
serious nature... .” Id. (citation omitted). We find that the articles at
issue here are not “fundamentally prejudicial,” and therefore do not
apply any presumption of prejudice.
42
at 241, and the existence of instructions from the court that the jury
should consider only evidence developed in the case. Id. The District
Court’s voir dire of the jurors revealed that their exposure to the two
articles was limited to nonexistent. Eleven of the sixteen jurors
responded that they had not read the New York Times article, one
juror responded that he had the read the entire article, and the
remaining jurors responded that they had either just looked at the
picture on the first page of the article or glanced at the article’s
contents. Only two of the jurors said that they had read the Inquirer
article. The District Court’s voir dire of the jurors reveals that the
exposure of the jurors to the article was limited to non-existent, thus
supporting the absence of prejudice.
Second, the jury was exposed to the New York Times article
on the third day of a seventeen-day trial, approximately four weeks
before it would deliberate. This length of time between exposure and
deliberation dilutes any prejudice resulting from that article. See
Gilsenan, 949 F.2d at 96 (finding relevant to its conclusion that no
prejudice ensued the fact that the allegedly prejudicial information
“was received at the outset of the trial and was followed by a mass of
evidence delivered over a 24-day, six-week period.”).
Third, as in Gilsenan, the jury here delivered a “fractured
verdict showing that it carefully delineated among the offenses and
between the appellants[,]” id., thus further supporting the absence of
prejudice resulting from the two articles. The jury convicted
Appellant Jackson of Hobbs Act extortion but acquitted him on the
RICO charge. Moreover, while the jury convicted Appellants of
several Hobbs Act extortion counts, it acquitted them on several
others, particularly significant in this context given the multiple
defendants and high number of individual counts.
43
Finally, the District Court specifically instructed the jury that
it should consider only evidence presented at trial, that it must
disregard any evidence as to which an evidentiary objection was
sustained, and, specifically, that it must ignore the New York Times
article. This, also, militates against a finding of prejudice. See
Gilsenan, 949 F.2d at 96 (deeming relevant to finding of no prejudice
the fact that the “jury was instructed to decide the case on the basis
only of the evidence and not extrinsic information”) (citation
omitted).
In light of the limited exposure of the jurors to the articles, the
early juncture of the trial at which any exposure to the New York
Times article took place, the length of time intervening between
exposure to the New York Times article and deliberation, the
fractured verdict, and the District Court’s instructions admonishing
the jury not to consider stricken evidence generally, and the New
York Times article specifically, we find that Appellant Rachuba has
failed to carry his burden of establishing prejudice, and that the
District Court therefore did not abuse its discretion in refusing to
grant his motion for a new trial on this basis.
H. Appellants’ challenges regarding certain jury instructions
given and not given.
Appellants Jackson, O’Malley, Rachuba and Tursi challenge
the propriety of the District Court’s refusal to incorporate numerous
jury instructions proposed by those Appellants. Appellant Leone
challenges the District Court’s instruction relating to the Hobbs Act
charge against him, arguing that the instruction precluded his defense
that the payments he accepted were gratuities, not bribes. We reject
all of these asserted points of error.
44
Where the challenge to a jury instruction is a challenge to the
instruction’s “statement of the legal standard, we exercise plenary
review.” United States v. Zehrbach, 47 F.3d 1252, 1260 (3d Cir.
1995) (citations omitted). Otherwise, we review challenges to jury
instructions for abuse of discretion. Id. at 1264 (citations omitted).
In so doing, we consider “whether, viewed in light of the evidence,
the charge as a whole fairly and adequately submits the issues in the
case to the jury.” Id. (quoting Bennis v. Gable, 823 F.2d 723, 727 (3d
Cir. 1987)). Refusal to give a proposed instruction is reversible error
“only if the omitted instruction is correct, is not substantially covered
by other instructions, and is so important that its omission prejudiced
the defendant.” United States v. Davis, 183 F.3d 231, 250 (3d Cir.
1999) (citing United States v. Smith, 789 F.2d 196 (3d Cir. 1986)).
Appellants Jackson, O’Malley, Rachuba and Tursi argue that
the District Court erred in refusing to give sixteen instructions which
Appellants proposed. We address each of these proposed instructions
in turn. Appellants requested that the following be charged with
respect to the RICO charge:
In order to find a defendant guilty, your focus is on the
agreement to participate in the enterprise through a
pattern of racketeering activity, not on the agreement
to conduct individual predicate acts.
Appellants also requested a charge that they must have “knowingly
agree[d] to participate in the enterprise.” None of this language was
appropriate because it speaks to RICO conspiracy, but the
government had not charged Appellants with RICO conspiracy under
18 U.S.C. § 1962(d); as discussed above, it charged Appellants with
substantive RICO violations under 18 U.S.C. § 1962(c), and the
government need not prove any agreement in order to prove a
§ 1962(c) violation. See Irizarry, 341 F.3d at 285 (listing four
45
elements of § 1962(c) violation). The language used to express the
§ 1962(c) charge was fully accurate.
Next, Appellants contend that the District Court should have
issued the following charge:
The Hobbs Act requires that the defendant induce
victims to part with their property; that they do so
through the use of fear, and that they adversely affect
interstate commerce.
This language is taken almost verbatim from our decision in
Addonizio, 451 F.2d 49, 59 (3d Cir. 1972). But as the government
points out, the theory of Hobbs Act extortion in Addonizio was
extortion based on fear of economic injury. See United States v.
Kenny, 462 F.2d 1205, 1229 (3d Cir. 1972) (noting that in Addonizio,
“the case was submitted to the jury only on a use of fear theory.”). As
we explained above, the Hobbs Act criminalizes two separate classes
of extortionate conduct: “extortion induced by ‘wrongful use of force’
and extortion ‘under color of official right.’” Antico, 275 F.3d at 255.
Here, the government advanced a theory of Hobbs Act extortion
under the latter class, i.e., extortion “under color of official right.”
We have made clear that the “under color of official right” class of
Hobbs Act extortion does not “require proof of threat, fear, or
duress.” Kenny, 462 F.2d at 1229 (citations omitted); see also
Mazzei, 521 F.2d at 645 (“A violation of the [Hobbs Act] may be
made out by showing that a public official through the wrongful use
of office obtains property not due him or his office, even though his
acts are not accompanied by the use of ‘force, violence or fear.’”)
(citation omitted). Thus, the District Court’s refusal to accept
Appellants’ “fear” instruction was entirely appropriate.
46
Appellants requested a number of instructions pertaining to
the effect on commerce element under the Hobbs Act. They first
requested a charge that there must be a “substantial” connection to
interstate commerce. But we expressly rejected this language in
Clausen, where we held that “proof of a de minimis effect on
interstate commerce is all that is required” to establish the Hobbs
Act’s effect on commerce requirement. See Clausen, 328 F.3d at 711(citation omitted). Appellants also requested several instructions
purporting to describe the depletion of assets theory of proving the
effect on commerce element. While much of the suggested language
in these requested instructions was accurate, the charge actually given
by the District Court10 accurately expressed the depletion of assets
theory, thus precluding any finding of reversible error in the failure
to give Appellants’ alternative formulations.
Appellants requested two instructions purporting to define
“extortion” under the Hobbs Act. The first stated that “[w]hen
contributions are made to public officials, the government must prove
that the payments are made only in return for an explicit promise or
undertaking by the official to perform or not perform an official act.”
The second stated that in order to prove Hobbs Act extortion, the
government had to “prove that the public official knew that he was
10
Specifically, the District Court charged:
Payment from a business engaged in interstate
commerce satisfies the requirement of an
effect on interstate commerce. If the resources
of a business are expended or diminished as a
result of the payment of money, then interstate
commerce is affected by such payment and
may reduce the assets available for purchase
of goods, services, or other things originating
in other states.
47
being offered payment in exchange for a specific requested exercise
of his official power.” The District Court correctly refused both, as
they misstate the law. See Evans, 504 U.S. at 268 (“the [g]overnment
need only show that a public official has obtained a payment to which
he was not entitled, knowing that the payment was made in return for
official acts”); United States v. Bradley, 173 F.3d 225, 231 (3d Cir.
1999) (stating that “a conclusion that in a Hobbs Act case the
government has to demonstrate that the public official made an
express promise to perform a particular act and that ‘knowing winks
and nods’ are not sufficient would frustrate the [Hobbs A]ct’s
effect.”) (quoting Evans, 504 U.S. at 274 (Kennedy, J., concurring)).
At the same time, the language actually employed by the District
Court was, once again, completely aligned with the law of this
Circuit. The District Court charged the jury that “an explicit promise
to perform the official acts in return for payment is not required,”
language virtually identical to the instruction we approved in Bradley.
See Bradley, 173 F.3d at 231 (“the government does not have to
prove that there was an express promise on the part of the public
official to perform a particular act at the time of the payment”)
(quoting instruction). The District Court further charged that
“[e]xtortion occurs if the official knows that the payment or benefit
is motivated by a hope that it will influence him in the exercise of his
office, or influence any action that he takes because of his official
position, and if, knowing this, he accepts or agrees to accept the
payment or benefit.” This, also, comports with our jurisprudence.
See Antico, 275 F.3d at 256-58.
Appellants requested three final instructions relating to the
Hobbs Act charge. First, they asked the District Court to charge that
“mere voluntary payment of money does not constitute extortion.” It
is true that purely voluntary payments do not rise to the level of
Hobbs Act extortion. But this proposed instruction added nothing to
the fully accurate and complete instruction given by the District Court
48
defining Hobbs Act extortion, some of which was discussed in the
immediately preceding paragraph. See also App. 3177a (District
Court’s instruction further charging jury that “the use of one’s office
to obtain money or services not due is extortion.”). The District
Court’s instructions sufficiently described Hobbs Act extortion under
color of official right, and their failure to include the “voluntary
payments” language proposed by Appellants was therefore not error.
Appellants then asked the District Court to charge that “[t]he
prosecution is required to prove that a defendant who accepts money
wrongfully used his office to induce the payments he received[,]” and
prove “that a public official did something, under color of his public
office, to cause the giving of benefits.” However, inducement is not
an element of Hobbs Act extortion where the defendant is a public
official. See Antico, 275 F.3d at 256 (“the word ‘induced’ is a part of
the definition of the offense by the private individual, but not the
offense by the public official.... The statute merely requires of the
public official that he obtain ‘property from another, with his consent,
... under color of official right.’”) (quoting Evans, 504 U.S. at 265)
(some internal quotation marks omitted) (emphasis added). Nor is the
government required to prove that the public official defendant
actually “did something” to cause the payment, not only because, as
just explained, proof of inducement by the public is not required, but
also because proof of an explicit quid pro quo is not required. Id. at
259 (so long as public official knows “that payments or other
consideration were extended to him to secure unwarranted favorable
treatment in his official capacity, he is guilty of Hobbs Act extortion
under color of official right without the need to prove that the official
action (or inaction) occurred.”).
The final Hobbs Act instruction proposed by Appellants was
that “in order to find the defendants guilty of extortion, you must find
that gifts given and received were of significant value.” There is no
49
support in our precedent for the requirement that payments made be
“significant” in value. In fact, under Clausen, the government need
only prove a de minimis effect on commerce; by necessary
implication, insignificant payments having only a de minimis effect
on commerce are therefore sufficient.
Appellants contend that the District Court erred in refusing to
give two proposed instructions pertaining to the RICO charge. The
first charged the jury that the prosecution must prove “[s]ome type of
organizational structure” in order to establish the existence of a RICO
“enterprise.” RICO and our precedent merely require proof of an
“enterprise,” and the District Court set forth how RICO and our
precedent defines such an “enterprise.” There is no independent
requirement that the government prove any particular type of
“organizational structure” within the “enterprise.” The second
proposed instruction charged that “[a]n enterprise must be comprised
of defendants only[],” citing as support United States v. Nabors, 45
F.3d 238 (8th Cir. 1995). But Nabors does not support the proposed
charge. Nabors held that a RICO “enterprise” may be comprised only
of defendants, not that it must be comprised of defendants only. See
Nabors, 45 F.3d at 240-41 (citation omitted). The operative inquiry
is whether the alleged “enterprise” is distinct from the alleged
“pattern of activity in which it engages” – so long as it is distinct, and
otherwise meets the broad statutory definition of “enterprise,” it may
be comprised only of defendants, or of defendants and non-
defendants.
Appellants O’Malley and Leone make two final arguments
with respect to jury instructions. Following Appellant O’Malley’s
testimony at trial, his counsel asked that the District Court charge the
jury that “[a]s a jury, you may not infer defendant’s [i.e., O’Malley’s]
guilt from any disbelief of his testimony.” The government contends
that this requested charge misstates the law. Indeed, there is no
50
question “that the factfinder is entitled to consider a party’s
dishonesty about a material fact as ‘affirmative evidence of guilt.’”
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147
(2000) (quoting Wright v. West, 505 U.S. 277, 296 (1992)) (other
citations omitted); see also Wilson v. United States, 162 U.S. 613,
620-21 (1896) (stating that there could be no “question that, if the
jury were satisfied, from the evidence, that false statements in the
case were made by defendant, or on his behalf, at his instigation, they
had the right, not only to take such statements into consideration, in
connection with all the other circumstances of the case, in
determining whether or not defendant’s conduct had been
satisfactorily explained by him upon the theory of his innocence, but
also to regard false statements in explanation or defense, made or
procured to be made, as in themselves tending to show guilt.”);
United States v. Jocic, 207 F.3d 889, 893 (7th Cir. 2000) (“When a
defendant decides to testify and deny the charges against him and the
finder of fact thinks he is lying, his untruthful testimony becomes
evidence of guilt to add to the other evidence.”) (citing United States
v. Zafiro, 945 F.2d 881, 888 (7th Cir. 1991)). If the suggested charge
had said that the jury “may not infer defendant’s guilt solely from any
disbelief of his testimony[,]” this would at least have been a correct
statement of the law, for “discredited testimony is not considered a
sufficient basis for drawing a contrary conclusion.” Bose Corp. v.
Consumers Union of United States, Inc., 466 U.S. 485, 512 (1984)
(citing Moore v. Chesapeake & Ohio R. Co., 340 U.S. 573, 575
(1951)) (emphasis added); see also United States v. Reed, 297 F.3d
787, 789 (8th Cir. 2002) (“the government may not rely solely on the
jury’s disbelief of a defendant’s denials to meet its burden of proof.”)
(citations omitted); United States v. Aulicino, 44 F.3d 1102, 1114-15
(2d Cir. 1995) (“a verdict of guilt cannot properly be based solely on
the defendant’s denial of the charges and the jury’s disbelief of his
testimony.”). But this was not the language employed in the proposed
51
charge. The proposed charge was incorrect as a matter of law, and
the District Court was right not to include it.
Appellant Leone contends that the Hobbs Act charge, by
stating that “[p]assive acceptance of a benefit by a public official is
sufficient basis for this type of extortion[,]” had the effect of
“improperly eliminat[ing] the possibility that a public official may
receive an unsolicited gratuity that does not constitute a Hobbs Act
violation.” Read in isolation, the “passive acceptance” language does
give us some pause. In reviewing the legal accuracy of jury
instructions, however, we read the instructions as a whole and in
context. See United States v. Coyle, 63 F.3d 1239, 1245 (3d Cir.
1995). Doing so here reveals that the Hobbs Act instructions as a
whole did not allow for the possibility that Appellant Leone was
convicted on proof that he accepted an unsolicited, voluntary
payment. The Hobbs Act charge required the government to prove
that Appellants accepted payment “knowing that the payment was
made in return for taking, withholding, or influencing official acts.”
The Hobbs Act charge also provided that “[e]xtortion occurs if the
official knows that the payment or benefit is motivated by a hope that
it will influence him in the exercise of his office, or influence any
action that he takes because of his official position, and if knowing
this, he accepts or agrees to accept the payment or benefit.” These
aspects of the Hobbs Act charge accurately describe Hobbs Act
extortion, and adequately informed the jury notwithstanding Leone’s
contention.
52
I. United States v. Booker, 125 S. Ct. 738 (2005).
Most of the Appellants have challenged their sentences under
United States v. Booker, 125 S. Ct. 738 (2005).11 Having determined
that these sentencing challenges are best addressed by the District
Court in the first instance, we vacate Appellants’ sentences and
remand for resentencing in accordance with Booker.
III.
For the foregoing reasons, we will affirm the judgments of
conviction as to each of the Appellants, but vacate the judgments of
sentence of each of the Appellants12 and remand to the District Court
for resentencing.
11
Appellants O’Malley and Tursi also argue that the District
Court committed a sentencing error in fixing their base offense level
under the sentencing guidelines for the RICO convictions. Because
we are vacating O’Malley’s and Tursi’s sentences and remanding to
the District Court for resentencing under Booker, we will not address
this particular challenge to their sentences here.
12
We will vacate the sentences of Appellants Jackson,
Rachuba and Tursi even though they have not expressly indicated that
they wish to challenge their sentences under Booker.
53