United States v. William Hird

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
Nos. 14-4754, 14-4804, 14-4812, 15-1344, 15-1739, 15-3765
__________
UNITED STATES OF AMERICA
v.
WILLIAM HIRD,
Appellant at No. 14-4754
__________
UNITED STATES OF AMERICA
v.
THOMASINE TYNES,
Appellant at No. 14-4804
__________
UNITED STATES OF AMERICA
v.
ROBERT MULGREW,
Appellant at No. 14-4812
__________
UNITED STATES OF AMERICA
v.
MICHAEL LOWRY,
Appellant at No. 15-1344
__________
UNITED STATES OF AMERICA
v.
WILLIE SINGLETARY,
Appellant at No. 15-1739
___________
UNITED STATES OF AMERICA
v.
HENRY P. ALFANO,
aka Ed, aka Eddie,
Henry P. Alfano,
Appellant at No. 15-3765
2
__________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(E.D. Pa. Nos. 2-13-cr-00039-007;
2-13-cr-00039-005, 2-13-cr-00039-003,
2-13-cr-00039-002, 2-13-cr-00039-004 &
2-13-cr-00039-008)
District Judge: Honorable Robert F. Kelly
District Judge: Honorable Lawrence F. Stengel
__________
Argued October 23, 2017
BEFORE: GREENAWAY, JR., NYGAARD,
and FISHER, Circuit Judges
(Opinion Filed: August 21, 2018)
Angela Halim
Halim Drossner
1528 Walnut Street, Suite 1501
Philadelphia, PA 19102
Gregory J. Pagano
1315 Walnut Street, 12th Floor
Philadelphia, PA 19107
Counsel for Appellant in No. 14-4754
3
Lisa A. Mathewson [Argued]
123 South Broad Street, Suite 810
Philadelphia, PA 19109
Counsel for Appellant No. 14-4804
Peter Goldberger [Argued]
Pamela A. Wilk
50 Rittenhouse Place
Ardmore, PA 19003
Counsel for Appellant in No. 14-4812
Michael J. Engle [Argued]
Stradley Ronon Stevens & Young
2005 Market Street, Suite 2600
Philadelphia, PA 19103
Meredith A. Lowry
1528 Walnut Street, Suite 1501
Philadelphia, PA 19102
Counsel for Appellant in No. 15-1344
William J. Brennan
1600 Locust Street
Philadelphia, PA 19103
Counsel for Appellant in No. 15-1739
Mark E. Cedrone [Argued]
Cedrone & Mancano
123 South Broad Street, Suite 810
Philadelphia, PA 19109
Counsel for Appellant in No. 15-3765
4
Louis D. Lappen
Denise S. Wolf
Anthony J. Wzorek
Robert A. Zauzmer [Argued]
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
__________
OPINION OF THE COURT
__________
NYGAARD, Circuit Judge.
I.
In the run-up to a joint trial on a 77-count indictment
that charged Appellants with operating a ticket-fixing scheme
in the Philadelphia Traffic Court, the District Court denied a
motion, under Federal Rule of Criminal Procedure
12(b)(3)(B)(v), to dismiss charges of conspiracy (18 U.S.C. §
1349), mail fraud (18 U.S.C. § 1341), and wire fraud (18
U.S.C. § 1343). Appellants Henry Alfano (private citizen)
and William Hird (Traffic Court administrator) subsequently
pleaded guilty to all counts against them. But now they
appeal the District Court’s decision on this motion,
5
questioning whether the indictment properly alleged offenses
of mail fraud and wire fraud.1
Appellants Michael Lowry, Robert Mulgrew, and
Thomasine Tynes (Traffic Court judges) proceeded to a joint
trial and were acquitted on the fraud and conspiracy counts,
but they were convicted of perjury for statements they made
before the Grand Jury. Lowry, Mulgrew, and Tynes dispute
the sufficiency of the evidence on which they were convicted
by arguing that the prosecutor’s questions were vague, and
that their answers were literally true. Lowry and Mulgrew
contend alternatively that the jury was prejudiced by evidence
presented at trial on the fraud and conspiracy counts.
Mulgrew also complains that the District Court erred by
ruling that certain evidence was inadmissible.
At the same trial, the jury convicted Willie Singletary
(Traffic Court judge) of making false statements during the
investigation. He claims the District Court made errors when
it sentenced him.2 The Government concurs with Singletary’s
challenge to his sentence.
We have consolidated these appeals for efficiency and
have grouped the arguments—to the extent that it is
possible—by common issues. We agree with Singletary and
the Government that he should be resentenced. We will
1
Alfano and Hird preserved their right to appeal. See infra
subsection I.C.
2
Singletary also attempted to join additional arguments raised
by other appellants, but for reasons we explain later, see infra
note 33, we focus only on his challenge to his sentence.
6
reverse the judgment and remand his cause to the District
Court for this purpose. We are not persuaded by the rest of
Appellants’ arguments and will affirm their judgments of
conviction.3
II.
Appellants Alfano4 and Hird5
A.
We begin with a brief look at the indictment’s
description of the Traffic Court and its operations to
contextualize the arguments made by Alfano and Hird. The
Philadelphia Traffic Court was part of the First Judicial
District of Pennsylvania. App. 186 (Indictment ¶ 2).6 It
3
The District Court had jurisdiction pursuant to 18 U.S.C. §
3231. We have jurisdiction to review these claims under 28
U.S.C.§ 1291 and 18 U.S.C. § 3742(a).
4
Appellant Alfano pleaded guilty to Conspiracy (Count 1),
Wire Fraud (Counts 2, 3, 4, 5, 6, 7) and Mail Fraud (Counts
51, 52, 53, 54, 55, 56).
5
Appellant Hird pleaded guilty to Conspiracy (Count 1),
Wire Fraud (Counts 3, 4, 5, 6, 16, 17, 18, 19, 20, 22, 23) and
Mail Fraud (Counts 58, 59, 60).
6
Philadelphia Traffic Court was abolished and its jurisdiction
was transferred to the Municipal Court in 2013 by an Act of
the Pennsylvania General Assembly. 42 Pa.Con.Stat.
7
adjudicated violations of the Pennsylvania Motor Vehicle
Code occurring in the City of Philadelphia, no matter whether
the Philadelphia Police or the Pennsylvania State Police
issued the tickets. App. 187 (Indictment ¶5). When a person
was cited for a violation he or she was required—within ten
days—to enter a plea of guilty or not guilty. If the person
failed to plead, the Traffic Court issued a notice that his or her
license was being suspended. App. 189 (Indictment ¶ 12). A
person who pleaded not guilty proceeded to a hearing with a
Traffic Court judge presiding. App. 187 (Indictment ¶ 6).
A guilty plea, or a determination of guilt by a Traffic
Court judge after a hearing, resulted in a judgment ordering
payment of statutory fines and court costs. App. 188
(Indictment ¶ 8).7 The Traffic Court was responsible for
collecting these fines (sending them to the City and
Commonwealth) and costs (which it distributed to several
pre-designated funds). App. 188-89 (Indictment ¶ 9).
Finally, it reported the disposition of each adjudication to the
Pennsylvania Department of Transportation (PennDOT).
App. 189 (Indictment ¶ 11).
B.
The indictment charged that, at the behest of Alfano
(App. 193 (Indictment ¶ 25)) and others, the Traffic Court
§1121(a)(2) (2013). The court is now known as the Traffic
Division of the Municipal Court.
7
Although other penalties are prescribed by the Pennsylvania
Motor Vehicle Code (App. 188), this appeal is limited to the
monetary fines and costs. App. 355.
8
administrator and judges operated an “extra-judicial system,
not sanctioned by the Pennsylvania court system” that
ignored court procedure and gave preferential treatment
(“consideration”) to select individuals with connections to the
court who had been cited for motor vehicle violations. App.
196 (Indictment ¶ 31). The special treatment included:
(1) dismissing tickets outright; (2)
finding the ticketholder not guilty
after a “show” hearing; (3)
adjudicating the ticket in a
manner to reduce fines and avoid
assignment of points to a driver’s
record; and (4) obtaining
continuances of trial dates to
“judge-shop,” that is find a Traffic
Court judge who would accede to
a request for preferential
treatment.
App. 195-196 (Indictment ¶ 30). All of this was “not
available to the rest of the citizenry.” App. 196 (Indictment ¶
32). It also alleged that Appellants cooperated with each
other to fulfill requests they and their staffs received. App.
194-95 (Indictment ¶ 27). Finally, it charged that “[i]n
acceding to requests for ‘consideration,’ defendants were
depriving the City of Philadelphia and the Commonwealth of
Pennsylvania of money which would have been properly due
as fines and costs.” App. 197 (Indictment ¶ 38).8
8
An example of the many allegations involving Alfano and
Hird is: A.S. requested assistance from Appellant Alfano and
Appellant Hird on Citation Number P1J0PK568L4 on or
9
After extending consideration to favored individuals,
Traffic Court judges would report the final adjudication to
“various authorities, including PennDOT, as if there had been
a fair and open review of the circumstances.” App. 197
(Indictment ¶ 34). Appellant Hird provided a printout to
Appellant Alfano showing citations that had been “dismissed
or otherwise disposed of.” App. 198-99 (Indictment ¶ 42).
Such “receipts” were not routinely issued in cases.
C.
Hird and Alfano pleaded guilty to all the charges
against them in the indictment. But, in their plea agreement
they reserved the right to appeal “whether the Indictment
sufficiently alleged that the defendants engaged in a scheme
to defraud the Commonwealth of Pennsylvania and the City
of Philadelphia of money in costs and fees.” App. 355 (Plea
Agreement ¶ 9(b)(4)). So they now appeal the District
Court’s order denying the motion to dismiss, asserting that
the indictment failed to allege violations of mail fraud and
wire fraud.
around February 17, 2010. The citation charged A.S. with
driving a tractor-trailer from which snow and ice fell, striking
vehicles on Interstate 95. The violation carried a $300 fine
and costs of $142. Appellant Hird promised that he would
“stop all action” on the citation and instructed A.S. to ignore
the ticket. Although A.S. did not appear at the hearing, the
Traffic Court judge (who is not an appellant here) ruled A.S.
not guilty. App. 210-12 (Indictment ¶¶ 25-34).
10
“To be sufficient, an indictment must allege that the
defendant performed acts which, if proven, constitute a
violation of the law that he is charged with violating.” United
States v. Small, 793 F.3d 350, 352 (3d Cir. 2015). We
assume in our review that the allegations in the indictment are
true. United States v. Hedaithy, 392 F.3d 580, 583 (3d Cir.
2004). “The question of whether the . . . indictments alleged
facts that are within the ambit of the mail fraud statute is a
question of statutory interpretation subject to plenary review.”
Id. at 590 n.10.
To indict on mail or wire fraud, the Government must
allege that defendants “devised or intend[ed] to devise any
scheme or artifice to defraud, or for obtaining money or
property by means of false or fraudulent pretenses,
representations, or promises” and used mail or wire to effect
the scheme. 18 U.S.C. §§ 1341, 1343. Alfano and Hird claim
the Government failed to allege that the scheme to commit
wire and mail fraud had an objective of “obtaining money or
property.” 9
The District Court ruled that the indictment
sufficiently alleged that the scheme “involved defrauding the
Commonwealth and the City of money.” App. 20. It noted,
among others, allegations that:
The conspirators used the
Philadelphia Traffic Court
9
In the context of mail fraud (§ 1341) and wire fraud (§1343)
the term “money” has the same meaning. The same is true
for the term “property.” Carpenter v. United States, 484 U.S.
19, 25 n. 6 (1987).
11
(“Traffic Court”) to give
preferential treatment to certain
ticketholders, most commonly by
“fixing” tickets for those with
whom they were politically and
socially connected. By doing so,
the conspirators defrauded the
Commonwealth of Pennsylvania
and the City of Philadelphia of
funds to which the
Commonwealth and the City were
entitled.
Id. at 18; see also id. at 185 (Indictment ¶ 1). Similarly, it
referred to the following.
In acceding to requests for
“consideration,” defendants were
depriving the City of Philadelphia
and the Commonwealth of
Pennsylvania of money which
would have been properly due as
fines and costs.
Id. at 9; see also id. at 197 (quoting Indictment ¶ 38).
Highlighting the references to “funds” and “money,” and that
the monetary amounts of the fines are specifically pleaded,
the District Court cited to a case from the Court of Appeals
for the Eighth Circuit which concluded succinctly that
“[m]oney is money.” United States v. Sullivan, No. 2:13-cr-
00039, 2013 WL 3305217, at *7 (E.D. Pa. July 1, 2013)
(quoting United States v. Granberry, 908 F.2d 278, 280 (8th
12
Cir. 1990)). The District Court was satisfied that the
indictment alleged enough.
“Money, of course, is a form of property.” Reiter v.
Sonotone Corp., 442 U.S. 330, 338 (1979). But Alfano and
Hird argue that the mere mention of money in an indictment
is not enough. They point to a string of Supreme Court and
Court of Appeals decisions analyzing Section 1341 and
Section 1343 which reinforce the point that crimes of mail
fraud and wire fraud are “limited in scope to the protection of
property rights.” McNally v. United States, 483 U.S. 350, 360
(1987).10 The Supreme Court said that “[a]ny benefit which
the government derives from the [mail fraud] statute must be
limited to the Government’s interests as a property holder.”
Id. at 359 n.8 (emphasis added). Appellants are convinced
that money in the form of traffic fines and costs cannot be
regarded as the Government’s “property” for purposes of mail
or wire fraud, and they identify two decisions as particularly
supportive of their position: Cleveland v. United States, 531
U.S. 12 (2000); and United States v. Henry¸ 29 F.3d 112 (3d
Cir. 1994).
The Court in Cleveland examined the mail fraud
convictions of individuals who received a state video poker
license by submitting a license application that withheld
10
The District Court cited to a number of cases that came
after McNally: Carpenter v. United States, 484 U.S. 19(1987); Cleveland v. United States, 531 U.S. 12 (2000);
Pasquantino v. United States, 544 U.S. 349 (2005).
13
important information. Cleveland, 531 U.S. 12.11 The Court
noted that the video poker licenses were part of a state
program that was “purely regulatory.” Id. at 22 (citation
omitted).12 It ruled that licenses are a “paradigmatic
exercise[] of the States’ traditional police powers.” Id. at 23.
The Court went on to say that the state’s regulatory powers
involving “intangible rights of allocation, exclusion, and
control” (which are embodied in a license) are not interests
that traditionally have been recognized as property. Id.Therefore, even though appellants may have obtained the
license through deception, this was not mail fraud because the
license—at least while still in the hands of the state—was not
property. Id. at 26-27. It was a purely administrative tool
used to achieve regulatory objectives. Id. at 21.
The state responded to the Court’s concerns by
agreeing that the licenses served a regulatory purpose, but it
directed attention to the revenue it received from fees
collected for license applications and renewals, as well as
11
The licenses were part of a regulatory scheme that had as
its purpose to increase public confidence in the honesty of
gaming activities that are free of criminal involvement.
Cleveland, 531 U.S. at 20–21 (quoting La. Rev. Stat. Ann. §
27:306(A)(1) (2000) (repealed 2012)).
12
The Court rebuffed the Government’s attempts to analogize
licenses to other forms of property like patents and franchise
rights. As for likening licenses to franchise rights, the Court
observed that the Government did not enter the video poker
business, but rather decided to “permit, regulate, and tax
private operators of the games.” Id. at 24.
14
device fees. Id. at 21-22. It argued that this revenue is a
property interest. Id. The Court was not convinced:
Tellingly, as to the character of
Louisiana’s stake in its video
poker licenses, the Government
nowhere alleges that Cleveland
defrauded the State of any money
to which the State was entitled by
law. Indeed, there is no dispute
that TSG paid the State of
Louisiana its proper share of
revenue, which totaled more than
$1.2 million, between 1993 and
1995. If Cleveland defrauded the
State of “property,” the nature of
that property cannot be economic.
Id. at 22 (emphasis added). It concluded that “[e]ven when
tied to an expected stream of revenue, the State’s right of
control does not create a property interest any more than a
law licensing liquor sales in a State that levies a sales tax on
liquor.” Id. at 23.13 The money collected from application
and processing fees was an integral part of the state
regulatory program and it did not create any property interest.
See id.
13
Cleveland also held that Government-issued licenses have
no intrinsic economic worth before they are given to
applicants. Id. at 23.
15
The purpose of the Pennsylvania Motor Vehicle Code
is to “promote the safety of persons and property within the
state.” Mauer v. Boardman, 7 A.2d 466, 472 (Pa. 1939).
Moreover, issuing traffic tickets is a crucial element in the
enforcement of the Motor Vehicle Code: it is a quintessential
exercise of state police power. Alfano and Hird conclude,
much like Cleveland, that no property interest could arise
from revenue generated from the state’s exercise of its police
power in the form of a traffic-ticket fine. They see nothing
but a regulatory program here. But this ignores crucial
aspects of the case before us that make it different.
Simply stated, fees charged to obtain a license cannot
be equated with fines and costs that result from a traffic
ticket. The license fee was imposed, adjusted, and collected
solely by the state’s exercise of its regulatory authority. In
contrast, here the state’s police power is exercised when a
citation is issued, but this ticket merely establishes the
summary violation with which the person is charged. Once a
person has been charged, it is judicial power (not the state’s
police power) that is exercised to determine whether the
person is guilty and, if guilty, to impose the fine and costs.14
These fines and costs, although specified by the Motor
Vehicle Code, cannot be cabined as a product of the state’s
regulatory authority. They are part and parcel of the
judgment of the court. With this in mind, it is significant that
the indictment does not focus on how the citations were
14
The Traffic Court was not an administrative tribunal.
Rather, it was part of the First Judicial District of
Pennsylvania. App. 186 (Indictment ¶ 2). See also supra
note 6 and accompanying text.
16
issued (which would implicate police power), but rather
alleges that the judicial process was rigged to produce only
judgments that imposed lower fines—or most often—no fines
and costs at all.15
But this raises a further question: can a criminal
judgment held by the government ever be “property?” The
Court in Cleveland offered a critique in its analysis of a
different issue (whether licenses were analogous to patents)
that is apropos to answering this question.
[W]hile a patent holder may sell
her patent, see 35 U.S.C. § 261 . .
. “patents shall have the attributes
of personal property” . . . the State
may not sell its licensing
authority. Instead of a patent
holder’s interest in an unlicensed
patent, the better analogy is to the
15
On this point, it is noteworthy that the Supreme Court also
said the following: “We resist . . . [any invitation] to approve
a sweeping expansion of federal criminal jurisdiction in the
absence of a clear statement by Congress. . . . ‘[U]nless
Congress conveys its purpose clearly, it will not be deemed to
have significantly changed the federal-state balance’ in the
prosecution of crimes.” Cleveland, 531 U.S. at 24-25(quoting Jones v. United States, 529 U.S. 848, 858 (2000)).
As we discuss later, the legal tradition of understanding
judgments as property is long-established. Consequently, the
concern about expanding the reach of federal fraud statutes to
new classes of property that was present in the deliberation of
state licenses in Cleveland is not at issue here.
17
Federal Government’s interest in
an unissued patent. That interest,
like the State’s interest in
licensing video poker operations,
surely implicates the
Government’s role as sovereign,
not as property holder.
Cleveland, 531 U.S. at 23–24. Fines imposed by judges are
criminal penalties that “implicate[] the Government’s role as
sovereign.” Id. at 24. Judgments ordering traffic fines and
costs cannot be sold and, in the logic of Cleveland, would
seem then to have no intrinsic economic value. Indeed, the
penal (non-economic) nature of the fine is undeniable because
the failure to pay a fine can result in the imposition of
sentences of greater consequence, including imprisonment.
See Pa. R. Crim. P. 706 cmt. But Cleveland is not the last
word. As we will discuss below, a Supreme Court opinion
issued five years later, Pasquantino v. United States, 544 U.S.
349 (2005), forecloses the defendants’ argument.
Finally, we note a dissimilarity between this case and
Cleveland, highlighted by the District Court, on the
significance of the monetary interest that the Government
associates with the fraud. The Cleveland Court regarded the
licensing fees as integral to the regulatory effort and collateral
to the matter at hand. The indictment there centered on the
scheme to obtain liceneses, and did not even raise the
licensing fees. See Cleveland, 531 U.S. at 22. Indeed, those
charged with the fraud paid all the appropriate fees; there was
no evidence that the government suffered any economic
detriment. Id.18
In contrast, the indictment here explicitly states that
the scheme deprived the City and the Commonwealth of
money, and it describes the object of the scheme as obviating
judgments of guilt that imposed the fines and costs. Unlike
Cleveland, the fines and costs play a central role in the
scheme as alleged.
Alfano and Hird next focus on our decision in Henry
to argue that the Government cannot claim to have a property
right because the Government never had a legal claim to the
fines and costs at any point in the scheme. In Henry, we
examined convictions for wire fraud arising from a
competitive bidding process among banks to receive deposits
of a public agency’s bridge tolls. Henry v. United States, 29
F.3d 112 (3d Cir. 1994). Appellants—public employees—
were convicted of mail fraud for giving one bank confidential
information about bids from other banks. Id. at 113. We
identified several problems,16 but Alfano and Hird highlight
our observation in Henry that the object of the mail and wire
fraud must be something to which the victim could claim a
right of entitlement. Id. at 115 (“a grant of a right of
exclusion”) (citing Carpenter, 484 U.S. at 26-27)).17 Indeed,
16
The Supreme Court had already made clear that “a
government official’s breach of his or her obligations to the
public or an employee’s breach of his or her obligations to an
employer” did not fall within the scope of Section 1343.
Henry, 29 F.3d at 114 (citing Carpenter, 484 U.S. at 25).
17
To assess whether a particular claim is a legal entitlement,
“we look to whether the law traditionally has recognized and
enforced [the entitlement] as a property right.” Henry, 29
F.3d at 115.
19
we noted that a bank’s property right to the tolls would attach
only after the funds were deposited. Id. at 114. So the banks
that lost the bidding process never had a basis to claim any
legally recognized entitlement to the toll deposits.18 Id. at
115. A fraud claim cannot rest on the bidders being cheated
out of an opportunity to receive the deposits. For these
reasons, we concluded that the indictment did not allege a
scheme to obtain fraudulently someone’s “property.” Id. at
116.
Here, the Government alleged that the defendants
“were depriving . . . Philadelphia and . . . Pennsylvania of
money which would have been properly due as fines and
costs” by making it possible for certain well-connected
individuals to avoid a judgment of guilt that imposed an
obligation to pay appropriate statutory fines. App. 197
(Indictment ¶ 38). But Appellants stress that, like the
deposits in Henry, the indictment here alleged an entitlement
that does not yet exist because a person must be adjudicated
(or plead) guilty before they must pay any fines or costs.
None of the cases directly associated with Alfano and Hird
resulted in a guilty judgment. As a result, they argue, the
Government cannot claim here that it was cheated of an
entitlement, because they were only fines and costs that the
people might have owed if they had been found guilty.
The District Court said it well. Accepting this
argument “would permit the alleged conspirators” to take
18
They were, no doubt, robbed of a fair process, but we could
not identify any legal tradition that recognized this
deprivation as a property right. Id. at 115.
20
advantage of their “unique position” in this case “to enter into
a scheme to commit fraud and then hide behind the argument
that the success of their fraud precludes prosecution under the
‘money or property interest’ requirement of the mail and wire
fraud statutes.” Sullivan, 2013 WL 3305217, at *7.
Appellants cannot rest on the very object of their scheme (to
work on behalf of favored individuals to obviate judgments of
guilt and the imposition of fines and costs) as the basis to
claim that there is no fraud. Indeed, the not-guilty judgments
that Alfano and Hird worked to obtain through the
extrajudicial system were alleged in the indictment as
evidence of the scheme itself.
Even if some of the cases in the extra-judicial system
would have been judged not guilty in a real adjudication it is
(as the District Court correctly noted) the intent of the
scheme, not the successful execution of it, that is the basis for
criminal liability. See Neder v. United States, 527 U.S. 1, 25
(1999) (In the criminal context, the court focuses on the
objective of the scheme rather than its actual outcome; what
operatives intended to do, not whether they were successful in
doing it.); United States v. Rowe, 56 F.2d 747, 749 (2d Cir.)
(“Civilly of course the [mail fraud statute]would fail without
proof of damage, but that has no application to criminal
liability.”), cert. denied 286 U.S. 554 (1932). The indictment
generally alleges not just that Appellants operated a system
that operated outside the bounds of Traffic Court procedures,
but that it did so for the purpose of obviating judgments of
guilt imposing fines and costs in those selected cases. See,
e.g., supra note 8. Moreover, we note that in one case not
directly involving either Alfano or Hird, the indictment
alleged that fines and costs were not just obviated, but were
actually erased by an alleged co-conspirator traffic court
21
judge who ignored the conviction, backdated a continuance,
and “adjudicated” the person not-guilty. App. 228-29
(Indictment ¶¶ 108-113). This episode serves to highlight
that the entire scheme was centered on keeping (or taking)
judgments out of the hands of the Government to prevent the
imposition of fines and costs. As a result, Appellants’
reliance on our justice system’s presumption of innocence as
a basis to argue against the existence of a governmental
property interest is a red herring that is properly disregarded
here.
Accordingly, we conclude that the indictment’s
allegation that the scheme had an objective of depriving
“Philadelphia and . . . Pennsylvania of money which would
have been properly due as fines and costs” is not undermined
by the lack of guilty verdicts. App. 197 (Indictment ¶38
(emphasis added)).
Alfano and Hird next highlight that, in Henry, our
property interest analysis centered on “whether the law
traditionally has recognized and enforced [the entitlement in
question] as a property right.” 29 F.3d at 115. Appellants
assert that traffic fines and costs typically have not been
considered economic property and are unsupported by any
legal tradition sufficient to ground charges of wire and mail
fraud. As we have already noted we disagree with any
conclusion that the fines and costs at issue have no intrinsic
economic value. But we turn to another decision of the
Supreme Court that came after Cleveland to address squarely
whether jurisprudence supports our conclusion.
In 2005 the Supreme Court reviewed convictions
arising from a scheme to smuggle large quantities of liquor
22
from the United States into Canada, evading Canadian taxes.
See Pasquantino v. United States, 544 U.S. 349, 353 (2005).
The Court noted that the right to be paid has been routinely
recognized as property, id. at 355–56,19 observing that there is
an equivalence between “money in hand and money legally
due,” id. at 356. Affirming the conviction, the Court said:
“Had petitioners complied with this legal obligation, they
would have paid money to Canada. Petitioners’ tax evasion
deprived Canada of that money, inflicting an economic injury
no less than had they embezzled funds from the Canadian
treasury.” Id. It concluded that: “[t]he object of petitioners’
scheme was to deprive Canada of money legally due, and
their scheme thereby had as its object the deprivation of
Canada’s ‘property.’” Id. Under Pasquantino, then, traffic
tickets (or more precisely, judgments arising from them) are
considered an “entitlement to collect money from individuals,
the possession of which is ‘something of value.’” 544 U.S. at
355 (quoting McNally, 483 U.S. at 358).20 We conclude that
19
The Court cited 3 W. Blackstone, Commentaries on the
Laws of England 153–155 (1768), which classified the right
to sue on a debt as personal property.
20
We also note that Pennsylvania law permits the government
to remedy the nonpayment of fines and costs as an unpaid
debt through civil process, enabling the government to
become a judgment creditor. Pa. R. Crim. P. 706 cmt.
(“Nothing in this rule [concerning criminal fines] is intended
to abridge any rights the Commonwealth may have in a civil
proceeding to collect a fine or costs.”). Because of this, a
separate legal tradition is implicated that recognizes the
judgment itself as property. See, e.g., Armada (Singapore)
PTE Ltd. v. Amcol International Corp., 885 F.3d 1090, 1094
23
a scheme to obviate judgments imposing fines, effectively
preventing the government from holding and collecting on
such judgments imposes an economic injury that is the
equivalent of unlawfully taking money from fines paid out of
the Government’s accounts. See id. at 358.
Alfano and Hird focus, finally, on the role that a
judge’s discretion plays in the adjudication of a case,
asserting that the uncertainty this creates about outcomes in
any given case undermines any argument that a judgment in a
Traffic Court case can be claimed as an entitlement to
property. To the extent that this merely rephrases the issue of
guilt or innocence on particular charges, we have already
addressed it above. To the degree that it refers to a judge’s
discretion in sentencing, as the District Court noted, there is
no such discretion here.21 The Motor Vehicle Code imposes
(7th Cir. 2018). This long, stable legal tradition of
recognizing civil judgments for money as property supports
the conclusion that the fines arising from judgments in traffic
court cannot be regarded merely as implicating the act of a
sovereign imposing a criminal penalty. They can be collected
by civil process as a debt and are, thus, a property interest.
21
We question, in general, the relevance of an entity’s
authority to relinquish a just entitlement or to forbear an
obligation that an entitlement imposes upon another, as a
basis to call into doubt the legitimacy of, or the very existence
of the entitlement. But see United States v. Mariani, 90 F.
Supp. 2d 574, 583 (M.D. Pa. 2000) (Discretionary civil fines
and penalties “may be too speculative to constitute a valid
property interest.”) (internal citation omitted).
24
fines and costs for each violation, eliminating any judicial
discretion in this regard.
D.
All of this leads us to conclude that the District Court
did not err by denying the motion to dismiss. We conclude
that, as alleged, this scheme had the objective of preventing
the City of Philadelphia and the Commonwealth of
Pennsylvania from possessing a lawful entitlement to collect
money in the form of fines and costs—a property interest—
from individuals who Alfano and Hird assisted. We will thus
affirm the convictions of Appellants Alfano and Hird.
III.
Appellants Tynes, Lowry, and Mulgrew
A.
In 2011, the United States Attorney presented to the
Grand Jury evidence arising from the Federal Bureau of
Investigation’s inquiry into the Traffic Court. Appellants
Lowry, Mulgrew, and Tynes testified and the Government
brought perjury charges against them for statements they
made to the Grand Jury. After Hird and Alfano pleaded
guilty, the rest of the Appellants went to trial. The jury
acquitted Lowry, Mulgrew, and Tynes of all counts against
them on wire fraud, mail fraud, and conspiracy. But it found
them guilty of perjury. Tynes, Lowry, and Mulgrew
challenge their convictions by raising similar legal arguments
about the sufficiency of the evidence.
25
As with all challenges to the sufficiency of the
evidence, we use a highly deferential standard of review. See
United States v. Caraballo-Rodriguez, 726 F.3d 418, 430 (3d
Cir. 2013) (en banc). We examine the record in a light most
favorable to the prosecution, and will not disturb the verdict if
“any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” United
States v. McGee, 763 F.3d 304, 316 (3d Cir. 2014) (emphasis
in original) (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)). Tynes, Lowry, and Mulgrew argue that the
questions asked of them at trial were fatally vague and/or that
their answers were truthful. As a result, they contend that
these questions and answers are an inadequate basis for a
perjury conviction.
A conviction for perjury before a grand jury requires
the Government to prove that the defendant took an oath
before the grand jury and then knowingly made a “false
material declaration.” 18 U.S.C. § 1623. But we recognized
(in the context of a sentencing enhancement for perjury) that
sometimes “confusion, mistake, or faulty memory” results in
inaccuracies that cannot be categorized as a “willful attempt
to obstruct justice” under perjury statutes. United States v.
Miller, 527 F.3d 54, 75 (3d Cir. 2008) (quoting U.S.
Sentencing Guidelines Manual § 3C1.1 cmt. n.2 (U.S.
Sentencing Comm’n 2003). So we do understand that
“[p]recise questioning is imperative as a predicate for the
offense of perjury.” Bronston v. United States, 409 U.S. 352,
362 (1973).
Precision, however, is assessed in context. An
examiner’s line of questioning should, at a minimum,
establish the factual basis grounding an accusation that an
26
answer to a particular question is false. Miller, 527 F.3d at
78. So a perjury conviction is supported by the record “when
the defendant’s testimony ‘can reasonably be inferred to be
knowingly untruthful and intentionally misleading, even
though the specific question to which the response is given
may itself be imprecise.’” United States v. Serafini, 167 F.3d
812, 823 (3d Cir. 1999) (quoting United States v. DeZarn,
157 F.3d 1042, 1043 (6th Cir. 1998)).
Challenges to the clarity of a question are typically left
to the jury, which has the responsibility of determining
whether the defendant understood the question to be
confusing or subject to many interpretations. United States v.
Slawik, 548 F.2d 75, 86 (3d Cir. 1977). Moreover, consistent
with our standard of review, we will not disturb a jury’s
determination that a response under oath constitutes perjury
unless “it is ‘entirely unreasonable to expect that the
defendant understood the question posed to him.’” Serafini,
167 F.3d at 820 (quoting United States v. Ryan, 828 F.2d
1010, 1015 (3d Cir. 1987), abrogated on other grounds by
United States v. Wells, 519 U.S. 482 (1997)).22 On appeal,
22
The Court of Appeals for the Second Circuit underscored
the high bar this establishes for appellants by noting that a
fundamentally ambiguous question is “not a phrase with a
meaning about which men of ordinary intellect could agree,
nor one which could be used with mutual understanding by a
questioner and answerer unless it were defined at the time it
were sought and offered as testimony.” United States v.
Lighte, 782 F.2d 367, 375 (2d Cir. 1986) (quoting United
States v. Lattimore, 127 F. Supp. 405, 410 (D. D.C.), aff’d,
232 F.2d. 334 (D.C. Cir. 1955)).
27
we review every aspect of the record pertinent to both the
question and answer to reach a conclusion about whether, in
context, the witness understood the question well enough to
give an answer that he or she knew to be false. See Miller,
527 F.3d at 78. Our review, however, is focused on glaring
instances of vagueness or double-speak by the examiner at the
time of questioning (rather than artful post-hoc interpretations
of the questions) that—by the lights of any reasonable fact-
finder—would mislead or confuse a witness into making a
response that later becomes the basis of a perjury conviction.
Questions that breach this threshold are “fundamentally
ambiguous” and cannot legitimately ground a perjury
conviction. Id. at 77.23
That is the law applicable to the claims raised by
Tynes, Lowry and Mulgrew. But, because our review is fact-
dependent, and because each raises some unique issues, we
will address each of their claims individually.24
23
The rule of fundamental ambiguity is intended to
“preclude convictions that are grounded on little more than
surmise or conjecture, and . . . prevent witnesses . . . from
unfairly bearing the risks associated with the inadequacies of
their examiners.” Ryan, 828 F.2d at 1015.
24
Adopting the arguments made by Alfano and Hird,
Appellants Lowry, Mulgrew and Tynes assert that the
Government improperly charged them with conspiracy, wire
fraud, and mail fraud. Therefore, they assert, their joint trial
on these counts of the indictment prejudiced the jury’s
deliberation on the charges of perjury. They claim such
evidence would have been excluded under Federal Rule of
Evidence. 403. They also contend that, without a charge of
28
B.
Appellant Tynes25
conspiracy, the joinder of their cases would have been
impermissible under Federal Rule of Criminal Evidence 8(b)
or, at the very least, severance of their cases would have been
warranted under Federal Rule of Criminal Procedure 14(a).
Certainly, where there is evidence of prejudice resulting from
“spillover” evidence from counts that should have been
dismissed, reversal is warranted. See United States v. Wright,
665 F.3d 560, 575-577 (3d Cir. 2012). But we have
concluded that the District Court did not err by denying the
motion, under Federal Rule of Civil Procedure 12(b)(3), to
dismiss the conspiracy, wire fraud and mail fraud counts of
the indictment. Thus, Appellants’ spillover argument has
been nullified. Likewise, Appellants have no basis to claim
that the Court unfairly prejudiced them by not granting
separate trials.
25
Tynes filed a separate motion to dismiss. App. 291-99.
The record also contains Tynes’ proposed order to join
Sullivan’s motion to dismiss. App. 290. However, Tynes’
motion contains no such request. Moreover, the
Government’s response to the motions notes that Lowry and
Mulgrew moved to join (without argument), and makes no
mention of Tynes. The District Court’s ruling on Tynes’
motion to dismiss relates only to the arguments she made
separately in her brief. As a result, we cannot consider
Tynes’ arguments on appeal that relate to those raised in
Sullivan’s motion. Moreover, since she failed to raise any of
the arguments she made in her separate motion to dismiss,
29
Appellant Tynes claims her convictions for perjury at
Count 71 and Count 72 lack sufficient evidence because she
was responding to questions that were fundamentally
ambiguous. The perjury charged at Count 71 arises from the
following exchange.
Q. In all the years
you’ve been [at Traffic
Court] have you
ever been asked to give
favorable treatment on
a case to anybody?
A. No, not favorable
treatment. People basically
know me. The lawyers
know me. The court
officers know me. I have
been called a nononsense
person because I’m just not
that way. I take my
position seriously, and the
cards fall where they
may.
these arguments are waived. With that said, we will affirm
the District Court’s ruling on the Motion raised by Sullivan
and joined by the five Appellants. Therefore, we need not
address Tynes’ assertion that the District Court’s mishandled
her joinder motion because it does not prejudice the outcome
of her appeal.
30
App. 255, 5720.26 Tynes contends that the Government
pursued a novel theory here (applying federal fraud statutes to
allegations of ticket fixing) and used the vague term
“favorable treatment” to gloss over its uncertainty about what,
ultimately, would constitute an illegal act. She points out that
the term had not been used before in reference to this case
and that the Government offered no explanation or definition
of the term to alert Tynes to the intent of the question.
Also, from Tynes’ perspective, every litigant
appearing before a court seeks an outcome that is favorable,
thus making “favorable treatment” a term that essentially
referred to “how litigation works.” She claims that its use
amounted to a fishing expedition designed to capture unfairly
the entirety of her conduct in the courtroom. She warns that
this is precisely the type of “open-ended construction” in
questioning that we found unacceptable in Serafini. 167 F.3d
at 822.
Tynes makes a related argument against her perjury
conviction for Count 72. That conviction is based on this
exchange.
Q. You’ve never taken
action on a request?
A. No.
26
We cite to the testimony quoted in the indictment and the
Grand Jury that was used at trial. We note that there are some
typographical inconsistencies between these sources and in
those instances we have quoted the Grand Jury testimony.
31
App. 257, 5722. She maintains that the word “request” was
presented to the jury as a follow-on to the question grounding
Count 71, requiring a person to link the term “favorable
treatment” and the word “request” to make sense of it. She
argues that the Government took advantage of the ambiguity
of “favorable treatment,” forcing the jury to speculate that
Tynes interpreted “request” as “favorable treatment.” This
reliance on “sequential referents” is, from her perspective,
exactly what we criticized in Serafini. 167 F.3d at 821. But
she misconstrues our holding.
In Serafini, the surrounding questions focused on a
different topic. This bolstered appellant’s argument in that
case that the question on which the perjury conviction rested
was fundamentally ambiguous. Id. The appellant said the
multiplicity of topics in surrounding questions caused the jury
to speculate improperly on how he understood the question at
issue. We said: “The meaning of individual questions and
answers is not determined by ‘lifting a statement . . . out of its
immediate context,’ when it is that very context which fixes
the meaning of the question.” Serafini, 167 F.3d at 821(quoting United States v. Tonelli, 577 F.3d 194, 198 (3d Cir.
1978)). In the case of Serafini, the context made the
confusing nature of the question apparent. The various topics
in surrounding questions created sufficient ambiguity to
undermine the conviction. Id.Here, however, even though the terms used by the
examiner changed, we conclude that the line of questioning—
including both questions that ground Count 71 and 72—have
an obvious, consistent focus.
32
Q. In all the years
you’ve been [at Traffic
Court] have you
ever been asked to give
favorable treatment on
a case to anybody?
A. No, not favorable
treatment. People basically
know me. The lawyers
know me. The court
officers know me. I have
been called a nononsense
person because I’m just not
that way. I take my
position seriously and the
cards fall where they
may. Most of the time . . .
the people in my Court
plea bargain. They know
that most of the time,
ninety percent of the time,
say 90 percent, I go with
the police officer’s
recommendation. . . .
Q. So, in all those years
no one has ever asked you
to find somebody not
guilty--
A. No.
33
Q. --or to find a lesser
violation; find a lesser fine;
anything along those lines?
A. No. I will say to
people go to court, go to
trial and see what
happens. . . .
Q. Ward leaders,
politicians has anyone
called you and said I
have Johnny Jones coming
up next week and I
would appreciate it if -- if
you would look
favorably on him when he
comes through? Has
anything like that ever
happened?
A. Throughout the
years ward leaders and
people have called all the
time and asked me
questions. The only thing I
will say to them is they
need to go to court. If you
think it’s a problem, they
need to hire a lawyer, or
make sure you bring all
your evidence to court. If
it’s something like
34
inspection, make sure you
bring your -- papers and
things like that. That’s
what I would tell them to
do. I give advice that
way. I don’t know if that’s
wrong or not, but I do.
Q. You’ve never taken
action on a request?
A. No.
App. 528-29, 530; 5720-22. This broader context would give
any reasonable fact-finder more than enough basis to
conclude that the witness knew the point of reference for both
the term “favorable treatment” and “request” was ticket
fixing. In fact, Tynes is asking us to do precisely the thing we
criticized in Serafini, to lift a phrase or statement out of its
context. Serafini, 167 F.3d at 821. Tynes has not persuaded
us that the question harbors any fatal ambiguity.
Tynes next contends that her responses to questions
grounding Count 71 and Count 72 cannot support convictions
for perjury because they were literally true. Of course,
perjury arises only from making knowingly false material
declarations. 18 U.S.C. § 1623. Therefore, a witness who
answers an ambiguous question with a non-responsive answer
that the witness believes is true—even if the answer is
misleading—does not commit perjury. See Bronston, 409
U.S. at 361-62; see also United States v. Reilly, 33 F.3d 1396,
1416 (3d Cir. 1994).
35
Tynes argues that, because she regarded the question
about favorable treatment as vague, she interpreted it as
asking whether she accepted any bribes in exchange for a
judgment of not guilty or a reduced punishment. Her
response of “no” (grounding Count 71) is literally true—she
says—because there is no evidence that she accepted any
bribes in return for giving preferential outcomes in the
adjudication of some individuals who were cited for breaking
the law. Under this theory, the same argument can also
negate the charges at Count 72 since she says she did not
accept any “requests” (bribes) in exchange for preferential
treatment.
Although the jury is permitted reasonable inferences
drawn from the record about the witness’ understanding of
the truth or falsity of the answer, it is not (as we noted above)
permitted to reach conclusions based merely on speculation
or conjecture. See Bronston, 409 U.S. at 359. Tynes’
assertion of literal truth is undermined because the trial record
supports no reasonable inference that the Government was
asking her about matters outside of the alleged bribes, nor
does it provide any reason why Tynes would interpret the
question in this way. For all of these reasons, we will affirm
the judgment of conviction on perjury as to Appellant Tynes.
36
C.
Appellant Lowry27
Like Tynes, Appellant Lowry advances arguments of
fundamental ambiguity and literal truth. His perjury
conviction centered on one question and answer.
Q. So if I understand
your testimony, you’re
saying you don’t
give out special favors; is
that right?
A. No, I treat
everybody in that
courtroom the same.
App. 489. Lowry attacks the Government’s use of the term
“special favors” as one with many potential meanings.
However, as we noted above in our reference to Serafini, we
reject arguments that lift individual questions or answers—or
individual phrases embedded in either—from the context of
surrounding questions that help fix their meaning. Serafini,
167 F.3d at 821. The larger context for the question asked of
Lowry is as follows.
Q. So if I understand
your testimony, you’re
saying you don’t give out
special favors; is that right?
27
Lowry was charged with perjury in Count 69 of the
indictment.
37
A. Well, I know it
appears that way; and it’s
hard for me to prove to
you . . .
Q. I’m just asking,
your testimony is you don’t
give out special favors, is
that right?
A. No, I treat
everybody in that
courtroom the same.
Q. You treat everybody
fairly?
A. I’m a lenient judge.
I will admit to that.
Q. You treat everybody
fairly?
A. Yes, I do.
Q. And these notices
that you get from your
personal or from other
people, they don’t affect
you in any way; is
that right?
38
A. Virtually no effect
at all.
App. 489-90.
Lowry’s assertion that the phrase “special favors” is
subject to many interpretations is unconvincing. We note two
things. First, the line of questioning reasonably supports a
conclusion that this inquiry referenced conduct associated
with allegations of ticket fixing. Second, Lowry answered as
if his understanding of the question was consistent with this
interpretation. He said that he was aware it may “appear” that
he gave special favors. He also defended himself by saying
that such requests did not affect his conduct in the courtroom
at all. If—as he says—he understood “special favors” to
mean fair treatment, his answer makes no sense.
Lowry next claims that, since the question was
structured to elicit a negative response, his answer cannot be
used as the basis of a perjury charge. Relatedly, he contends
that the question was merely a summation of an answer that
he gave just before this question. In essence he argues that
this was a leading question. We have concluded, in the
context of a trial, that the propriety of leading questions in
direct examinations is a matter left to the sound discretion of
the trial judge. See United States v. Montgomery, 126 F.2d
151, 153 (3d Cir. 1942). We extend the same deference here
to the District Court’s decision to admit this portion of the
Grand Jury transcript. We do not regard the question as
fundamentally unfair or unclear, or something outside the
norm of questions typically employed on direct examination.
39
For these reasons, we conclude that the District Court did not
abuse its discretion here.
Alternatively, Lowry argues that—if the term is
understood to reference fixing tickets—there is no evidence
to contradict his response that requests for special favors did
not impact any of his adjudications. We do not agree. The
record contains the following testimony.
Kevin O’Donnell, who was Lowry’s personal
assistant, testified about Lowry’s involvement with requesting
and giving consideration. He said that Lowry made four to
five requests each month for consideration and that
O’Donnell transmitted them to the personal assistants of other
Traffic Court judges. App. 1854. Likewise, he said other
judges transmitted requests for consideration to Lowry
through their personal assistants. App. 1812-13. Appellant
Hird and various politicians also made requests of Lowry for
consideration. App. 1827-28, 1832-33. O’Donnell said he
would give the requests to Lowry on the day scheduled for
hearing on the citation. App. 1818-19. The requests were for
preferential treatment in the adjudication of particular
citations: typically the requests were for “removing points”
and obtaining a “not guilty” judgment. App. 1819.
O’Donnell said he sometimes had to signal Lowry in the
courtroom to remind him that a particular case was supposed
to receive consideration. App. 1822-23. He testified from
his own observation that Lowry typically honored requests
for consideration. App. 1829. He also declared if Lowry
claimed he never gave consideration or asked it of others, this
would not be truthful. App. 1813. The same assistant
testified that if Lowry testified that he ignored requests for
consideration, or that he never honored requests for
40
consideration, that testimony would not be true. App. 1855.
The Government also asked: “If [Lowry] claimed that . . .
consideration requests had no impact when he disposed of
cases, would that be true?” The assistant responded,
“probably not.” Id.Another witness, Walt Smaczylo, employed as a court
officer in the Traffic Court, provided an example of how
“consideration” worked in the courtroom.
When someone comes in, for
example, for a reckless driving
ticket and that judge normally
comes down pretty hard and finds
that defendant guilty and then the
same type cases come in and you
see a defendant walk out either
not guilty or a significantly
reduced charge.
App. 1912. The Government asked Smaczylo if he saw
Lowry preside over such instances, and he answered: “That’s
correct, yes.” Id. Smaczylo testified that requests for
consideration were written on small note cards or “sticky”
notes and that he saw Lowry in possession of these cards and
notes. App. 1914. He also provided a generalized example
of consideration, based on his observation and understanding,
in which a reckless driving citation would be reduced to
careless driving. In such instances, he indicated that a $300
to $400 fine would be cut in half. He said: “So, that money
was not collected, obviously, by the state. If that ticket was
fixed then I saw it as stealing.” App. 1919. Smaczylo was
asked: “[I]f Judge Lowry testified at the [G]rand [J]ury he
didn’t give consideration would that be a truth or would that
41
be a lie?” He responded: “That would not be the truth.”
App. 1921.
All of this testimony provides more than a sufficient
basis to support a reasonable jury’s conclusion that Lowry
was not truthful when he responded to the Government’s
question about special favors. 28
Finally, Lowry argues that the Government’s question
sought a dispositive response from him on the charges of
conspiracy and fraud. He says an affirmative answer to
whether he gave “special favors” to certain individuals would
have been enough to convict him of conspiracy and fraud.
Thus, he maintains that his acquittal on charges of mail fraud,
wire fraud, and conspiracy is res judicata as to the perjury
charges that are based on his answer. He said he did not
commit fraud and the jury agreed with him. Therefore, he
says, he did not perjure himself. However, even if we
accepted Lowry’s characterization of the question, we reject
this argument.
28
Lowry points to the cross-examination of both witnesses in
which they seem to equivocate on some of their observations
and responses to the Government. For instance O’Donnell
stated his view that giving consideration was no different
from the leniency that Lowry extended to every other person
who pleaded not guilty and appeared at the hearing.
However, we do not weigh the credibility of evidence in the
record. We only judge whether there is sufficient evidence in
the record to support a reasonable fact-finder’s determination
that the record supported conviction of Lowry on a charge of
perjury. See United States v. Richardson, 658 F.3d 333, 337
(3d Cir. 2011).
42
First, a jury’s determination that Lowry’s ticket-fixing
conduct did not constitute wire fraud, mail fraud, and
conspiracy does not preclude its determination that he lied
about this conduct before the Grand Jury. Moreover, as the
Supreme Court has articulated, a verdict on one count that
seems to be at odds with another “shows that either in the
acquittal or the conviction the jury did not speak their real
conclusions, but that does not show that they were not
convinced of the defendant’s guilt.” United States v. Powell,
469 U.S. 57, 63 (1984) (quoting Dunn v. United States, 284
U.S. 390, 393 (1932)). It is impossible to know in such cases
whether the verdicts were an exercise of lenity by the jury or
outright error.
Nonetheless, as the Powell Court noted, any
assessment of the jury’s rationale for its verdicts “would be
based either on pure speculation or would require inquiries
into the jury’s deliberations that courts generally will not
undertake.” Id. at 58. So, even if Lowry was correct that the
acquittal is relevant to his response to the question grounding
his perjury conviction, we are not convinced that his perjury
conviction is unfounded. Given the substantial body of
evidence presented to the jury, nothing here demands that we
abandon the deference we traditionally give to the collective
judgment of the jury. For all these reasons, we will affirm the
jury’s verdict as to Lowry.
43
D.
Appellant Mulgrew29
Mulgrew does not argue that the question asked at the Grand
Jury was ambiguous, he simply maintains that his statement
was truthful.30 The questions and answers grounding his
perjury conviction are as follows.
Q. How about your
personal, has your
personal received
any calls like that
from other judges,
other ward leaders
that she’s conveyed
to you, saying so-
and-so has called
about this case?
A. If she did, she didn’t
convey them to me.
29
Mulgrew was charged with perjury in Count 70 of the
indictment.
30
Mulgrew’s claims are reviewed for plain error because he
did not make the same argument before the District Court.
United States v. Syme, 276 F.3d 131, 148 (3d Cir. 2002).
44
App. 432-33 (emphasis added). Shortly after this, the
following exchange occurred:
Q. Have you ever seen
any index cards or
notations on the file
indicating that a
person has called or
taken some special
interest in this case?
A. Nope.
App. 433 (emphasis added). Mulgrew claims that the
Government’s use of the word “call” referred exclusively to
telephone calls. This mattered to him, he says, because others
had testified that personal assistants of other Traffic Court
judges would give index cards to his personal assistant in his
chambers or robing room containing names of some
individuals whose tickets were listed for hearing. Mulgrew
claims that there is no evidence that he ever received any
phone calls asking that he act extrajudicially to give well-
connected individuals preferential treatment. The implication
is that, had the Government asked him about receiving index
cards with such requests, his answer would have been
completely different.
As with Tynes and Lowry, our review of claims of
literal truth drives us to examine the context of the question.
Q. How about other
judges, have other
45
judges ever
approached you or
called to you or get
a message to you
either themselves or
through their
personals saying
that someone is
going to be on your
list next week or
next Monday and
can you could some
special way towards
the case?
A. No, they haven’t.
Q. Never?
A. No.
Q. How about your
personal, has your
personal received
any calls like that
from other judges,
other ward leaders
that she’s conveyed
to you saying so and
so has called about
this case?
46
A. If she did, she didn’t
convey them to me.
Q. And your personal
is who?
A. Gloria McNasby.
Q. Have you ever seen
on traffic court files
--You actually get a
file when someone’s
case is called?
A. Right.
Q. So the case is called
and you get a file
presented to you; is
that right?
A. uh-huh.
Q. Have you ever seen
any index cards or
notations on the file
indicating that a
person has called or
taken some special
interest in this case?
A. Nope.
47
....
Q. Let me make sure as
well that if I got
your testimony
correct [sic].
You’re saying that if
other people,
whether they be
political leaders,
friends and family,
anybody is
approaching your
personal and asking
her specifically to
look out for a case,
see what she can do
in a case, give
preferential
treatment, however
you want to phrase
it, that she is not
relaying any of that
information on to
you; is that correct?
A. No, she isn’t.
Q. Wouldn’t you want
to know it?
A. No, I don’t want to
know. Then I never
48
have to worry about
what I do in the
courtroom.
App. 432-33, 437-38 (emphasis added). The transcript makes
it obvious that Mulgrew’s singular reliance on the reference
to a “call” ignores the thrust of the Government’s line of
questions. The questions focus on the substance of the
communications between Mulgrew’s personal assistant and
himself, rather than the mode of those communications. The
evidence is sufficient for a reasonable jury to conclude that
Mulgrew understood the question asked of him and that he
answered in the negative.
Mulgrew alternatively asserts that the District Court
erred by refusing to admit additional testimony from the
Grand Jury that he claims is relevant to his perjury
conviction.31 After the Government introduced Mulgrew’s
Grand Jury testimony, Mulgrew sought the admission of other
portions of his testimony. But the District Court sustained the
Government’s hearsay objection. The portion of the
transcript supporting the perjury conviction is as follows:
Q. [W]hether you have
ever been asked to provide,
what I’ll call, favorable
treatment for people in
traffic court or however
you define that, whether it
31
We review the District Court’s ruling on the admissibility
of evidence for abuse of discretion. United States v. Green,
617 F.3d 233, 239 (3d Cir. 2010).
49
would be special handling,
keep an eye out for a
ticket, do me a favor.
Have you ever been asked
to provide any type of
treatment like that for
people in traffic court?
A. People have asked
me for consideration, but I
give consideration to
everybody that comes in
my courtroom[,] so it
doesn’t make a difference
to me.
App. 422-23. The basis for the Government’s hearsay
objection to this portion of the testimony was that it raised an
out-of-court statement not offered by a party opponent.
Mulgrew first contends that the District Court erred by
ruling that this was hearsay because it was not offered for the
truth of the matter asserted. He says that the testimony was
instead offered to show his state of mind later in his
testimony. See United States v. Hoffecker, 530 F.3d 137,
191-92 (3d Cir. 2008). However, we conclude that it was not
an abuse of discretion for the District Court to sustain the
Government’s hearsay objection. It was reasonable for the
District Court to conclude here that his response relied on
out-of-court statements offered to assert his innocence since
his response conveys a declaration that he treated no person
different from another.
50
Mulgrew also argues that this portion of the transcript
is admissible under Federal Rule of Evidence 106: “[i]f a
party introduces all or part of a writing or recorded statement,
an adverse party may require the introduction, at that time, of
any other part—or any other writing or recorded statement—
that in fairness ought to be considered at the same time.”
Mulgrew maintains that this question and answer provides
context showing that he did not commit perjury. He also
maintains that the “doctrine of completeness” applies here:
fairness demanded the admission of the statements. See
United States v. Soures, 736 F.2d 87, 91 (3d Cir. 1984).32 We
are not convinced.
The excerpt at issue occurs many pages before the
testimony regarded as perjurious. It is unrelated in the overall
sequence of questions and to the answers grounding his
conviction. Moreover, as the intervening pages suggest, it
was separated by the passage of time during questioning. We
also fail to see how Mulgrew’s equivocation over the term
“consideration” gives helpful context to his later denial of
receiving requests for consideration. For these reasons, we
conclude the District Court did not abuse its discretion by
sustaining the Government’s hearsay objection.
32
“Under this doctrine of completeness, a second writing may
be required to be read if it is necessary to (1) explain the
admitted portion, (2) place the admitted portion in context, (3)
avoid misleading the trier of fact, or (4) insure a fair and
impartial understanding.” Soures, 736 F.2d at 91.
51
IV.
Appellant Singletary33
During the investigation of the Traffic Court by the
Federal Bureau of Investigation, Appellant Singletary was
among those interviewed. The jury acquitted Singletary of all
counts of wire fraud, mail fraud, and conspiracy. It found
him guilty of false statements made to the Federal Bureau of
Investigation. At sentencing, over Singletary’s objection, the
District Court sentenced Singletary using the Guideline on
obstruction.
The Government agrees that the single count on which
he was convicted does not contain all of the elements of
obstruction. U.S.S.G. § 2J1.2. For this reason, the
Government agrees with Singletary that he is entitled to a
33
Appellant Singletary was charged with making false
statements in Counts 73 and 74 of the indictment. He states
in his brief that he ‘joins all arguments on behalf of co-
appellants pursuant to Federal Rules of Appellate Procedure
28(i).” Singletary Br. 19. To the extent that he joins the
argument of prejudice resulting from the trial on the fraud and
conspiracy charges, we already have determined that the
indictment was proper and no prejudice resulted from
bringing these charges to trial. As for the challenges to
perjury in Counts 72 and 74, we note that Singletary was
charged with a different crime: false statements in a federal
investigation pursuant to 18 U.S.C. § 1001. In addition, the
challenges to all of such charges are inherently fact-intensive.
As he did not provide a factual basis for such a challenge, we
regard the issue to be waived.
52
remand for resentencing. Accordingly, we will vacate the
judgment of sentence as to Singletary and remand to the
District Court for resentencing.
V.
For all of these reasons, we will vacate the judgment of
sentence of the District Court with regard to Appellant
Singletary and remand for resentencing. We will affirm the
judgments of the District Court as to Appellants Alfano, Hird,
Lowry, Mulgrew and Tynes.
53