United States v. Chaka Fattah, Sr.

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
Nos. 16-4397, 16-4410, 16-4411,
16-4427, 17-1346
_____________
UNITED STATES OF AMERICA
Appellant in 17-1346
v.
CHAKA FATTAH, SR.,
Appellant in 16-4397
KAREN NICHOLAS,
Appellant in 16-4410
ROBERT BRAND,
Appellant in 16-4411
HERBERT VEDERMAN,
Appellant in 16-4427
_____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court Nos. 2-15-cr-00346-001,
2-15-cr-00346-002, 2-15-cr-00346-003,
1
2-15-cr-00346-004
District Judge: The Honorable Harvey Bartle III
Argued January 18, 2018
Before: SMITH, Chief Judge, GREENAWAY, JR., and
KRAUSE, Circuit Judges
(Filed: August 9, 2018 )
Andrea G. Foulkes
Eric L. Gibson
Paul L. Gray
Robert A. Zauzmer
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Jonathan Ian Kravis [ARGUED]
United States Department of Justice
Criminal Division, Public Integrity Section
1400 New York Avenue, N.W.
Washington, DC 20005
Counsel for the United States
Mark M. Lee
Bruce P. Merenstein [ARGUED]
Samuel W. Silver
Schnader Harrison Segal & Lewis
1600 Market Street
Suite 3600
2
Philadelphia, PA 19103
Counsel for Appellant Fattah
Ann C. Flannery [ARGUED]
Suite 2700
1835 Market Street
Philadelphia, PA 19103
Lisa A. Mathewson
Suite 810
123 South Broad Street
Philadelphia, PA 19109
Counsel for Appellant Nicholas
Alan Silber
Pashman Stein Walder Hayden
21 Main Street
Suite 200
Hackensack, NJ 07601
Counsel for National Association of Criminal
Defense Lawyers, Amicus Appellant Nicholas
Mira E. Baylson
Barry Gross [ARGUED]
Meredith C. Slawe
Drinker Biddle & Reath
One Logan Square
Suite 2000
Philadelphia, PA 19103
Counsel for Appellant Brand
3
Henry W. Asbill
Buckley Sandler
1250 24th Street, N.W.
Suite 700
Washington, DC 20037
Glen D. Nager [ARGUED]
Jacob M. Roth
Julia W. M. F. Sheketoff
Jones Day
51 Louisiana Avenue, N.W.
Washington, DC 20001
Counsel for Appellant Vederman
________________
OPINION
________________
SMITH, Chief Judge.
4
Table of Contents
I. Introduction .......................................................................... 7
II. Background ......................................................................... 7
A. The Fattah for Mayor Scheme ........................................ 8
1. The Lord Loan and Its Repayment .............................. 8
2. The College Tuition Component of the FFM
Scheme ...................................................................... 23
3. The NOAA Grant and the Phantom Conference ....... 24
B. The Blue Guardians Scheme ........................................ 26
C. The Fattah–Vederman Bribery Scheme ....................... 28
D. The Indictment and Trial .............................................. 34
III. Juror Misconduct and Dismissal of Juror 12 ................... 50
A. Investigation of Alleged Juror Misconduct .................. 50
B. Dismissal of Juror 12 .................................................... 55
IV. The District Court’s Instructions Under McDonnell ...... 60
A. The McDonnell Framework ......................................... 61
B. The Kirk Meeting ......................................................... 65
C. Fattah’s Efforts to Secure Vederman an
Ambassadorship ................................................................ 68
D. The Zionts Hiring ......................................................... 70
E. Vederman’s Sufficiency Challenge to Counts 16–18 and
22–23 ................................................................................. 76
F. Blue Guardians .............................................................. 79
5
V. Sufficiency of the Evidence for the RICO Conspiracy
Conviction ............................................................................. 82
VI. Variance from the Indictment and Sufficiency of the
Evidence for Count 2 ............................................................. 95
VII. The District Court’s Instruction to the Jury on the
Meaning of Intent ................................................................ 103
VIII. Sending the Indictment to the Jury ............................. 108
IX. The District Court’s Evidentiary Rulings ..................... 111
A. The District Court’s Application of Rule 404(b) ....... 111
B. Evidentiary Rulings Regarding Nicholas’s Defense .. 115
1. The EAA Board Minutes......................................... 115
2. Jones’ Memory Regarding Other Contracts ............ 118
3. Exclusion of NOAA Evidence ................................ 118
C. The Cooperating Witness’s Mental Health Records .. 119
1. The District Court’s Denial of Access to the Mental
Health Records ........................................................ 121
2. The District Court’s Grant of the Motion in
Limine ..................................................................... 123
X. The Government’s Cross-Appeal ................................... 127
A. CUMA is a Mortgage Lending Business ................... 128
B. Sufficiency of the Evidence ........................................ 134
XI. Prejudicial Spillover ...................................................... 136
A. Fattah’s Claim of Prejudicial Spillover ...................... 137
B. Vederman’s Assertion of Prejudicial Spillover .......... 139
XII. Conclusion ................................................................... 142
6
I. Introduction
Chaka Fattah, Sr., a powerful and prominent fixture in
Philadelphia politics, financially overextended himself in both
his personal life and his professional career during an
ultimately unsuccessful run for mayor. Fattah received a
substantial illicit loan to his mayoral campaign and used his
political influence and personal connections to engage friends,
employees, and others in an elaborate series of schemes aimed
at preserving his political status by hiding the source of the
illicit loan and its repayment. In so doing, Fattah and his allies
engaged in shady and, at times, illegal behavior, including the
misuse of federal grant money and federal appropriations, the
siphoning of money from nonprofit organizations to pay
campaign debts, and the misappropriation of campaign funds
to pay personal obligations.
Based upon their actions, Fattah and four of his
associates—Herbert Vederman, Robert Brand, Bonnie
Bowser, and Karen Nicholas—were charged with numerous
criminal acts in a twenty-nine count indictment. After a jury
trial, each was convicted on multiple counts. All but Bowser
appealed. As we explain below, the District Court’s judgment
will be affirmed in part and reversed in part.
II. Background 1
During the 1980s and ’90s, Fattah served in both houses
of the Pennsylvania General Assembly, first as a member of
the House of Representatives and later as a Senator. In 1995,
1
The facts are drawn from the trial record unless otherwise
noted.
7
Fattah was elected to the United States House of
Representatives for Pennsylvania’s Second Congressional
District. In 2006, Fattah launched an unsuccessful run for
Mayor of Philadelphia, setting in motion the events that would
lead to his criminal conviction and resignation from Congress
ten years later.
A. The Fattah for Mayor Scheme
Fattah declared his candidacy for mayor in November
of 2006. Thomas Lindenfeld, a political consultant on Fattah’s
exploratory committee, believed that “[a]t the beginning of the
campaign, [Fattah] was a considerable . . . candidate and
somebody who had a very likely chance of success.” JA1618.
But Fattah’s campaign soon began to experience difficulties,
particularly with fundraising. Philadelphia had adopted its
first-ever campaign contribution limits, which limited
contributions to $2,500 from individuals and $10,000 from
political action committees and certain types of business
organizations. Fattah’s fundraising difficulties led him to seek
a substantial loan, far in excess of the new contribution limits.
1. The Lord Loan and Its Repayment
While serving in Congress, Fattah became acquainted
with Albert Lord, II. The two first met around 1998, when Lord
was a member of the Board of Directors of Sallie Mae.
As the May 15, 2007 primary date for the Philadelphia
mayoral race approached, Fattah met Lord to ask for
assistance, telling Lord that the Fattah for Mayor (FFM)
campaign was running low on funds. Fattah asked Lord to meet
with Thomas Lindenfeld, a political consultant in Washington,
8
D.C., and part-owner of LSG Strategies, Inc. (Strategies), a
company that was working with the FFM campaign and that
specialized in direct voter contact initiatives. Lindenfeld had
been part of the exploratory group that initially considered
Fattah’s viability as a candidate for mayor. Lindenfeld had
known Fattah since 1999, when Fattah endorsed Philadelphia
Mayor John Street. Through Fattah, Lindenfeld had also gotten
to know several of Fattah’s associates, including Herbert
Vederman, Robert Brand, and Bonnie Bowser. Herbert
Vederman, a businessman and former state official, was the
finance director for the FFM campaign. Robert Brand owned
Solutions for Progress (Solutions), a “Philadelphia-based
public policy technology company, whose mission [was] to
deliver technology that directly assists low and middle income
families [in obtaining] public benefits.” JA6551. Bowser was
Fattah’s Chief of Staff and campaign treasurer, and served in
his district office in Philadelphia.
Lord’s assistant contacted Lindenfeld to arrange a
meeting, and Lindenfeld informed Fattah that he would be
meeting with Lord. Lindenfeld, along with his partner, Michael
Matthews, met with Lord and discussed Fattah’s need for funds
to mount an intensive media campaign. After that meeting,
Lindenfeld reported to Fattah that Lord wanted to help, but that
they had not discussed a specific dollar amount.
Approximately a week later, Fattah instructed Lindenfeld to
meet with Lord a second time. Lord “wanted to know if he
could give a substantial amount of money, a million dollars” to
Fattah’s campaign. JA1630. That prompted Lindenfeld to reply
that the amount “would be beyond the campaign finance
limits.” Id.
9
Lord proposed a solution: he offered to instead give a
million dollars to Strategies in the form of a loan. To that end,
Lindenfeld had a promissory note drafted which specified that
Lord was lending Strategies $1 million, and that Strategies
promised to repay the $1 million at 9.25% interest, with
repayment to commence January 31, 2008. Lindenfeld later
acknowledged that the promissory note would make it appear
as though Lord’s $1 million was not a contribution directly to
the Congressman, although he knew that it was actually a loan
to the FFM campaign. Indeed, Lindenfeld confirmed with
Fattah that neither Lindenfeld nor Strategies would be
responsible for repayment. With that understanding,
Lindenfeld executed both the note and a security agreement
purporting to encumber Strategies’ accounts receivable and all
its assets.
On May 1, shortly before the primary election, Lord
wired $1 million to Lindenfeld. Lindenfeld held the money in
Strategies’ operating account until Fattah told him how it was
to be spent. Some of the money was eventually used for print
materials mailed directly to voters. And, at Fattah’s direction,
Lindenfeld wired a substantial sum to Sydney Lei and
Associates (SLA), a company owned by Gregory Naylor which
specialized in “get out the vote” efforts.
Naylor had known Fattah for more than 30 years. 2
During the campaign, Naylor worked as the field director and
2
Naylor first worked with Fattah when he was in the state
legislature. When Fattah was elected to Congress, Naylor
worked in his Philadelphia office. Naylor met Nicholas when
she joined Fattah’s staff at some point in the 1990s. After
concluding her employment with Fattah’s office, Nicholas
10
was in charge of getting out the vote on election day. On the
final day of the campaign, Naylor worked with Vederman, who
allowed Naylor to use his credit card to rent vans that would
transport Fattah voters to the polls.
As the primary date neared, Fattah and Naylor knew the
campaign was running out of money. The campaign was
unable to finance “media buys,” and Naylor needed money for
field operations to cover Philadelphia’s more than one
thousand polling places. In early May, Lindenfeld called
Naylor to say that Lindenfeld “would be sending some money
[Naylor’s] way.” JA3057. Within days, SLA received a six-
figure sum for Naylor to use in the campaign and on election
day. Naylor used the money to pay some outstanding bills,
including salaries for FFM employees, and allocated $200,000
to field operations for election day.
Fattah lost the mayoral primary on May 15, 2007.
Afterward, Lindenfeld spoke with Fattah, Naylor and Bowser
about accounting for the FFM campaign money from Lord that
had been spent. They decided that the amounts should not
appear in the FFM campaign finance reports, and Fattah
instructed Naylor to have his firm, SLA, create an invoice.
Naylor did so, creating an invoice dated June 1, 2007 from
SLA to FFM, seeking payment of $193,580.19. Naylor later
acknowledged that the FFM campaign did not actually owe
money to SLA, and that the false invoice was created to “hide
worked with the Educational Advancement Alliance (EAA),
an education nonprofit entity founded by Fattah. This entity
helped to recruit underrepresented students for scholarship and
college opportunities. Around 2009, Naylor left Fattah’s office
to work exclusively with SLA. Naylor also knew Brand.
11
the transaction that took place earlier” and “make it look like
[SLA] was owed money.” JA3075–76. Although FFM did not
owe SLA anything for the election day expenses, the FFM
campaign finance reports from 2009 through 2013 listed a
$20,000 in-kind contribution from SLA for each year, thereby
lowering FFM’s alleged outstanding debt to SLA.
Of the total $1 million Lord loan, $400,000 had not been
spent. Lindenfeld returned that sum to Lord on June 3, 2007.
He included a cover letter which stated: “As it turns out the
business opportunities we had contemplated do not seem to be
as fruitful as previously expected.” JA1254. Lindenfeld later
admitted that there were no such “business opportunities” and
that the letter was simply an effort to conceal the loan.
In late 2007, faced with financial pressures, Lord asked
his son, Albert Lord, III, to collect the outstanding $600,000
balance on the loan to Strategies. Lord III contacted Lindenfeld
about repayment and expressed a willingness to forgive the
interest owed if the principal was paid. Lindenfeld immediately
called Fattah and informed him that repayment could not be
put off any longer. Fattah told Lindenfeld more than once that
“[h]e would take care of it,” JA1652, but Fattah did not act.
Needing someone who might have Fattah’s ear, Lindenfeld
reached out to Naylor and Bowser. Naylor talked to Fattah on
several occasions and told him that Lindenfeld was under
considerable pressure to repay the loan. Fattah told Naylor
more than once that he was “working on it.” JA3082–83.
During his political career, Fattah had focused on
education, especially for the underprivileged. Indeed, Fattah
founded two nonprofit organizations: College Opportunity
12
Resources for Education (CORE), and the Educational
Advancement Alliance (EAA).
EAA held the annual Fattah Conference on Higher
Education (the “annual conference”) to acquaint high school
students with higher education options. JA3079. Sallie Mae
regularly sponsored the conference. According to Raymond
Jones, EAA’s chairman of the board from 2004 through 2007,
EAA offered a variety of programs to provide “marginalized
students with educational opportunities so they could continue
and go to college.” JA1360. EAA was funded with federal
grant money which could only be spent for the purposes
described in the particular grant. Karen Nicholas served as
EAA’s executive director, handling the organization’s day-to-
day administrative responsibilities. Nicholas had previously
been a staffer for Fattah when he was a member of
Pennsylvania’s House of Representatives.
CORE was an organization that awarded scholarships to
graduating high school students in Philadelphia who had
gained admission to a state university or the Community
College of Philadelphia. CORE received funding from a
variety of sources, including Sallie Mae. Because CORE also
received federal funds, and because EAA had experience
working with federal grants, EAA received and handled the
federal funds awarded to CORE. In short, EAA functioned as
a fiduciary for CORE. When money became a problem for the
FFM campaign, Fattah’s involvement with EAA and CORE
soon became less about helping underprivileged students, and
more about providing an avenue for disguising efforts to repay
the illicit campaign funds from Lord.
13
On January 7, 2008, Robert Brand contacted Fattah by
telephone. Shortly thereafter, Lindenfeld received an
unexpected call from Brand proposing an arrangement for
Brand’s company, Solutions, to work with Strategies.
Solutions had developed a software tool called “The Benefit
Bank,” which was designed to “assist low and moderate
income families to have enhanced access to benefits and
taxes.” JA1993. During the telephone call, Brand referred to
The Benefit Bank and suggested a contract under which
Strategies would be paid $600,000 upfront. JA1666. Shortly
thereafter, on January 9, 2008, Brand followed up on his call
to Lindenfeld with an email about “develop[ing] a working
relationship where you could help us to grow The Benefit Bank
and our process of civic engagement. While I know this is not
your core business I would like to try to convince you to take
us on as a client.” JA6427. Lindenfeld responded that he was
interested. To Lindenfeld, “this was the way that Congressman
Fattah was going to repay the debt to Al Lord.” JA1654. When
Lindenfeld called Fattah and told him of the contact from
Brand, Fattah simply replied that Lindenfeld “should just
proceed.” JA1666–67.
A few days later, Brand emailed Nicholas at EAA a
proposal from Solutions concerning The Benefit Bank, which
sought EAA’s support in developing an education edition of
The Benefit Bank and a $900,000 upfront payment.
As the January 31 date for repayment of the balance of
the $1 million Lord loan approached, a flurry of activity took
place. On January 24, both Raymond Jones, chair of the EAA
Board, and Nicholas signed a check from EAA made out to
Solutions in the amount of $500,000. Although no contract
existed between EAA and Solutions, the memo line of the
14
check indicated that it was for a contract, and Nicholas entered
it into EAA’s ledger. 3
That same day, Ivy Butts, an employee of Strategies,
emailed Lindenfeld the instructions Brand would need to wire
the $600,000 balance on the Lord loan. Within minutes,
Lindenfeld forwarded that email to Brand at Solutions. Brand
then made two telephone calls to Fattah. By late afternoon,
Brand emailed Nicholas, informing her that he had “met with
all the people I need to meet with and have a pretty clear
schedule of what works best for us. I am also seeing what line
of credit we have to stretch out the payments until you get your
line of credit in place.” JA6558. Brand asked if they could talk
and “finalize this effort.” JA6558. On January 25 and 26, there
were a number of calls between Fattah, Brand, and Nicholas.
On Sunday January 27, at 5:46 pm, Brand telephoned
Fattah. At 10:59 pm, Brand emailed Nicholas a revised
contract between EAA and Solutions for the engagement of
services. Brand indicated he would send someone to pick up
the check at about 1:00 pm the following day. The revised
contract called for the same $900,000 payment from EAA to
3
Raymond Jones, who was EAA’s Chairman of the Board
from 2004 through 2007, recalled at trial that the Board had a
limit on the amount that Nicholas could spend without board
approval. JA1358, 1369. Nicholas was authorized to sign
contracts on behalf of EAA for no more than $100,000.
JA1369–71. Jones did not recall the contract between EAA and
Solutions, nor did the EAA board minutes for December 2007,
February 2008, or May 2008 refer to the EAA–Solutions
contract or to the substantial upfront payment of half a million
dollars upon execution of the agreement. JA6358–63; 6567.
15
Solutions, yet specified that $500,000 was to be paid on
signing, with $100,000 due three weeks later, and another
$100,000 to be paid six weeks out. No due date for the
$200,000 balance was specified. The terms of the contract
called for EAA to assist Solutions with further developing The
Benefit Bank. In addition, under the contract, EAA would
receive certain funds from the Commonwealth of Pennsylvania
for a program relating to FAFSA applications. 4
The same evening, Brand sent Lindenfeld a contract
entitled “Cooperative Development Agreement to Provide
Services to Solutions for Progress, Inc. for Growth of The
Benefit Bank.” JA6569. The agreement proposed a working
partnership in which Strategies would work with Solutions to
identify and secure a Benefit Bank affiliate in the District of
Columbia and two other states, and to facilitate introductions
to key officials in other states where The Benefit Bank might
expand. The terms of the agreement provided that Solutions
would pay $600,000 to Strategies by January 31, 2008, which
would “enable [Strategies’] team to assess opportunities and
develop detailed work plans for each area.” JA6572. Brand
copied Solutions’ Chief Financial Officer, Michael Golden.
Lindenfeld responded to Brand’s email within a minute, asking
if Brand had received the wiring instructions. Brand
immediately confirmed that he had.
Concerned that Solutions did not have $600,000 to pay
Strategies, Golden talked to Brand, who informed him that
Solutions would be receiving a check for $500,000 from EAA.
Early the next morning, Nicholas responded to Brand’s email
4
FAFSA is an acronym for Free Application for Federal
Student Aid.
16
from the night before. She advised Brand that he could pick up
the check, “but as I stated I am not in a position to sign a
contract committing funds that I am not sure that I will have.”
Gov’t Supp. App. (GSA) 1. That same day, a $540,000 transfer
was made from the conference account, which EAA handled,
into EAA’s checking account. The conference account was
maintained to handle expenses for Fattah’s annual higher
education conference. Prior to this transfer, EAA had only
$23,170.95 in its account. EAA then tendered a $500,000
check to Solutions, which promptly deposited the check before
the close of that day’s business. EAA never replenished the
$540,000 withdrawal from the conference account.
Brand received the executed contract between Solutions
and Strategies on January 28. Even though the contract called
for Strategies to perform services in exchange for the $600,000
payment, Lindenfeld neither expected to do any work for the
$600,000, nor did he in fact do any work.
In sum, by January 28, Solutions had received $500,000
from EAA, but it still had to come up with $100,000 to provide
Strategies with the entire amount needed to repay the Lord
loan. Golden obtained the needed funds the following day by
drawing $150,000 on a line of credit held by Brand’s wife.
Brand and Fattah spoke four more times on the telephone on
January 29. Trial evidence later showed that, during the month
of January 2008, neither the FFM campaign bank account nor
Fattah’s personal account had a sufficient balance to fund a
$600,000 payment.
On the morning of January 30, frustrated by the delay,
Lindenfeld sent Brand an email with a subject line “You are
killing me.” JA6430. Lindenfeld stated that he had “made a
17
commitment based on yours to me. Please don’t drag this out.
I have a lot on the line.” Id. Brand responded late in the
afternoon, stating: “just met with Michael. He does the transfer
at 8 AM tomorrow. It should be in your account ($600K) early
tomorrow morning.” Id. Lindenfeld replied: “The earlier the
better.” Id. The following morning, Golden wired $600,000
from Solutions’ Pennsylvania bank account into Strategies’
Washington D.C. bank account. JA2745, 2874. Strategies in
turn, wired the same amount from its Washington D.C. bank
account to Lord’s bank account in Virginia. JA2874, 6549.
Around noon, Brand telephoned Lindenfeld.
In the days following the exhaustive efforts to meet the
January 31 loan repayment deadline, four more telephone calls
took place between Brand and Fattah. 5 Naylor learned at some
point that the loan had been paid off. When Naylor asked
Fattah about details of the repayment, Fattah simply replied
“[t]hat it went through EAA to Solutions and it was done.”
JA3088.
Meanwhile, at some point in January, EAA received
notice that the Department of Justice Office of the Inspector
General (DOJ) intended to audit its books. 6 DOJ auditors told
EAA to provide, at the “entrance conference,” documentation
containing budgetary and accounting information. EAA failed
to produce any accounting information.
5
By contrast, between October to December 2007, Brand and
Fattah spoke by telephone only “once or twice [a] month.”
JA2734.
6
One of the terms and conditions of a federal grant is that the
recipient “be readily prepared for an audit.” JA2314.
18
Although Lindenfeld was no longer making demands of
Brand, Brand was still owed the remaining $100,000 that
Solutions had paid to satisfy the Lord loan. On March 23, 2008,
Brand sent Nicholas an email outlining his efforts to contact
her over the previous two weeks about documentation on the
CORE work, how to proceed with the paperwork for the
Commonwealth of Pennsylvania, and “how we can get our
proposed contract signed and the outstanding payments made.”
JA2749. Nicholas responded that evening, writing:
I can appreciate your urgency however I do have
EAA work that I continue to do, including the
[usual] facilitation of programs, our financial
audit, the start-up of two new programs[,] and of
course the DOJ audit. I am still trying to obtain a
line of credit without a completed 2007 audit and
things are getting a little uncomfortable now as I
try to keep us afloat.
JA6576. Nicholas told Brand that the DOJ auditors were
making demands and would soon be on site. She noted that
“[t]hey are still very uncomfortable with your contract amongst
other things and depending on their findings some of the
funding received may have to be returned.” Id. Nicholas said
that she had submitted the paperwork to the state, and she told
Brand that “in the future . . . as a result of the DOJ audit I will
not be in a position to do another contract such as this.” Id.
Shortly after Nicholas’s reply to Brand, Nicholas
forwarded the Brand–Nicholas email chain to Fattah. The body
of the email stated, in its entirety: “I really don’t appreciate the
tone of Bob’s email. I can appreciate that he has some things
going on however I am doing my best to assist him. Some other
19
things are a priority. He needs to back off.” GSA2. Later that
night, Bowser sent Fattah an email with a subject line that read
“Karen N” and a telephone number. JA2752.
As the audit continued, the auditors found other
deficiencies. During April of 2008, DOJ issued a notice of
irregularity to EAA, which resulted in the audit being referred
to DOJ’s Investigations Division for a more comprehensive
review.
On April 24, 2008, Brand emailed Nicholas asking for
a time to update her on The Benefit Bank. In early May, Brand
sent another email to Nicholas attaching a revised EAA–
Solutions contract proposal, which decreased the initial upfront
cost from $900,000 to $700,000.
Although Solutions and EAA had still not signed a
contract, EAA paid Solutions another $100,000 in May. That
money was obtained via a loan to EAA from CORE. Thomas
Butler, who had worked for Fattah both when Fattah was in
Congress and when he was in the General Assembly, was
CORE’s executive director. Butler had been contacted in mid-
May by Jackie Barnett, a member of CORE’s Board who had
also worked with Congressman Fattah. Barnett informed
Butler that Nicholas had requested a loan from CORE to EAA,
and that Fattah, as Chairman of CORE’s Board, had approved
it. Butler and Barnett withdrew funds from two CORE bank
accounts and obtained a cashier’s check, dated May 19, in the
amount of $225,000 and made payable to EAA. The
withdrawals were from accounts used for Sallie Mae funds and
other scholarship money.
20
After EAA received the $225,000 check, EAA tendered
a $100,000 check to Solutions. The check bore the notation
“Commonwealth of Pennsylvania.” EAA repaid CORE the
following month. Because EAA lacked sufficient funds of its
own to cover this payment, EAA drew on grant money that it
had received from NASA.
Brand and Lindenfeld continued to communicate
concerning The Benefit Bank. In July of 2008, a meeting was
held at Solutions with Brand, Lindenfeld, Golden, and other
Solutions employees to discuss “an enormous amount of work”
that Brand wanted Strategies to do. JA1670. Lindenfeld said in
response “we’d be glad to do that, but . . . we would have to be
paid.” Id. At that point, someone in the meeting stated that
Strategies “had already been paid” $600,000. Id. Lindenfeld
replied: “well, that was for Congressman Fattah, . . . that’s not
for us. So if you want us to do work, we have to get paid for it
separately.” Id. Brand became upset with Lindenfeld over his
comment about being paid because his colleagues at Solutions
were not aware of the reason for the $600,000 payment.
Meanwhile, EAA was attempting to meet the demands
of the DOJ auditors, who were focused on the relationship
between EAA and CORE. DOJ served a subpoena upon
Solutions to produce “[a]ny and all documents including, but
not limited to, contract documents, invoices, correspondence,
timesheets, deliverables and proof of payment related to any
services provided to or payments received” from CORE or
EAA. JA2350.
Special Agent Dieffenbach, from the DOJ, interviewed
Nicholas on July 14, 2008. During that interview, Nicholas
discussed the relationship between EAA and CORE, how
21
invoices were paid, and how consultants were handled.
Nicholas also answered questions about EAA’s relationship
with Solutions, including the payment of invoices. She did not
inform Agent Dieffenbach of the $500,000 payment in January
or the subsequent $100,000 payment in May. Nor did the
interview address the EAA–Solutions contract that purportedly
required those payments, because the contract had yet to be
produced.
Solutions failed to comply with the subpoena,
prompting an email from Agent Dieffenbach on August 26
asking for an update concerning Solutions’ reply to the DOJ
subpoena. Solutions then produced an undated version of the
EAA–Solutions contract that required the $600,000 upfront
payment. Neither Brand nor Nicholas provided the auditors
with the January and May checks from EAA to Solutions.
Efforts to conceal the repayment of the Lord loan and to
promote the political and financial interests of Fattah
continued. The FFM campaign reports indicated in-kind
contributions of debt forgiveness by SLA even though there
had been no actual debt. In September of 2009, with EAA’s
ledgers still under scrutiny, Nicholas altered the description of
the entry for the $100,000 check to Solutions from
“professional fees consulting” to “CORE Philly.” JA2546.
Other FFM campaign debt was reduced further after Vederman
negotiated with creditors.
EAA never fully recovered from its payment of the
$600,000 balance on the Lord loan and the audits that took
place in 2008. It began laying off employees in 2011, and by
June of 2012, only four employees remained. JA3659. EAA
ceased operations at some point in 2012. JA1530.
22
2. The College Tuition Component of the FFM Scheme
Although the FFM campaign was close to insolvent, it
nevertheless made tuition payments for Fattah’s son, Chaka
Fattah Jr., also known as Chip. Chip attended Drexel
University, but had yet to complete his coursework because he
had failed to pay an outstanding tuition balance. As the FFM
campaign got underway in 2007, Fattah wanted Chip to re-
enroll in classes at Drexel and get a degree. Fattah asked
Naylor to help financially, and he did so by writing checks
from SLA to Drexel toward Chip’s outstanding tuition. By
October of 2007, Chip was permitted to re-enroll in classes.
Although Naylor never directly addressed the issue with
Fattah, he agreed to assist with Chip’s outstanding tuition with
the expectation that SLA would be repaid. The first check to
Drexel in the amount of $5,000 was sent in August of 2007,
with $400 payments in the months that followed until August
of 2008. At some point, Chip informed Naylor that the payee
was no longer Drexel, but Sallie Mae. Naylor then began
sending monthly checks from SLA to Sallie Mae. Those
payments, in the amount of $525.52, began in March of 2009
and continued until April of 2011, after which Fattah told
Naylor he no longer needed to make them. SLA’s payments to
Drexel and Sallie Mae totaled $23,063.52.
Naylor’s expectation of repayment was eventually
realized. Beginning in January of 2008 and continuing until
November 2010, Bowser sporadically sent SLA
reimbursement checks from the FFM campaign with a notation
that payment was for “election day operation expenses.”
JA3136. The FFM funds had been transferred from the Fattah
for Congress campaign. These reimbursement checks totaled
23
$25,400. In an effort to conceal the source of the payments to
Drexel and Sallie Mae, and to make it appear that the younger
Fattah had performed services for SLA, Naylor created false
tax forms for Chip. Chip, however, had never performed
services for SLA.
3. The NOAA Grant and the Phantom Conference
In mid-December 2011, when EAA was experiencing
serious financial difficulties, Nicholas submitted an email
request to the educational partnership program of the National
Oceanic & Atmospheric Administration (NOAA) for a grant
“designed to provide training opportunities and funding to
students at minority serving institutions” interested in science,
technology, engineering, and math fields related to NOAA’s
mission. JA3354–55. The request sought $409,000 to fund
EAA’s annual conference scheduled for February 17–19, 2012.
Jacqueline Rousseau, a supervisory program manager at
NOAA, participated in a conference call with Nicholas shortly
thereafter and advised Nicholas that the agency could not
afford the $409,000 request but would consider a smaller grant.
Rousseau advised Nicholas that EAA would need to submit an
application if it wished to be considered for a grant.
Before submitting a grant application, Nicholas emailed
Rousseau about sponsoring the conference. On January 11,
2012, Rousseau informed Nicholas that the “NOAA Office of
Education, Scholarship Programs has agreed to participate and
provide sponsorship funds of $50K to support the referenced
conference.” JA6453. Rousseau also informed Nicholas that
Chantell Haskins, who also worked with the student
scholarship program, would be the point of contact for NOAA.
24
In February 2012, EAA held its annual conference at the
Sheraton Hotel in downtown Philadelphia. The conference had
been held at the same location each year since 2008.
Nicholas contacted Haskins at some point in early 2012,
inquiring about the $50,000 grant. On May 8, 2012, Haskins
sent Nicholas an e-mail which included information about
submitting proposals to fund a conference for students. EAA
then submitted a grant application, which Haskins reviewed.
She advised Nicholas on June 28, 2012 that the grant could not
be used to provide meals, and that the date of the conference
would have to be pushed back, with the new date included in a
modified application. When Nicholas asked if expenses from a
previous conference could be paid from the new grant, Haskins
informed her that this was not allowed.
In early July 2012, Nicholas sent a modified grant
proposal to Haskins. It eliminated the budget item for food and
changed the date of the 2012 conference to October 19–21,
2012 at the same Sheraton Hotel in Philadelphia where EAA’s
annual conference had taken place earlier in the year. NOAA
approved a $50,000 grant for the October 2012 conference—a
conference that would never be held.
Unaware that no October 2012 conference had taken
place, NOAA allowed Nicholas access to the $50,000 grant in
March of 2013. She then transferred the entire amount from
NOAA to EAA’s bank account a few days later. Naylor had
performed services for EAA for which he was still owed
$116,590. JA3119. In discussions with Naylor, Nicholas had
informed him that the likelihood of EAA’s being able to pay
him was “[n]ot very good.” JA3120. Yet several days after
25
EAA had received the $50,000 from NOAA, Nicholas sent
Naylor a check for $20,000. JA3120, 4283.
On April 3, 2013, Nicholas submitted a final report to
NOAA concerning EAA’s use of the grant. Notably, page 4 of
the report stated the conference had been held in February
2012, while page 17 stated that the conference had been held
from October 19 to 21, 2012. NOAA issued a notice asking for
clarification and for a list of students who had been supported
at the conference. Nicholas failed to file either a clarifying
report regarding the date of the conference or a timely report
regarding the disbursement of the grant. Finally, in November
of 2013, Nicholas submitted the final Federal Financial Report
in which she certified, falsely, that the $50,000 had been used
for a project during the period from August 1, 2012 to
December 30, 2012.
B. The Blue Guardians Scheme
In addition to functioning as the conduit for Lord’s $1
million loan to Fattah’s campaign, Lindenfeld’s company,
Strategies, also performed services for the campaign. The work
resulted in indebtedness from FFM to Strategies of
approximately $95,000. Fattah made several small payments,
but failed to pay the full amount due. Although Lindenfeld
spoke to Fattah, Naylor and Bowser about the debt, no
payments were forthcoming. During a meeting in Fattah’s D.C.
office, Fattah told Lindenfeld “that [repayment] really wasn’t
going to be possible because the campaign had been over for a
long time” and the funds were not available. JA1693. Fattah
then asked Lindenfeld if he could write off the debt on his FFM
campaign finance reports. Id. Lindenfeld told Fattah that as
26
long as he was paid, it was not his business how Fattah
disclosed it on the campaign finance reports. JA1694.
In lieu of repayment, Fattah suggested that Strategies
could claim to be interested in setting up an entity to address
environmental issues and ocean pollution along the coastline
and in the Caribbean. Fattah explained that creating such an
entity would make it possible to obtain an appropriation from
the government. Hearing this, Lindenfeld knew he was not
going to be paid by the FFM campaign, and was amenable to
receiving money from an appropriation instead. At a later
meeting, Lindenfeld told Fattah that the name of the entity
would be “Blue Guardians.” Lindenfeld consulted with an
attorney about creating Blue Guardians as an entity to receive
the federal grant. He emailed Fattah, asking questions about
how to complete an application to the House Appropriations
Committee. Fattah provided suggestions, and an application
was eventually completed. It indicated that Blue Guardians
would be “in operation for a minimum of ten years,” and, in
accordance with Fattah’s guidance, requested $15 million in
federal funds. JA1711–13.
Lindenfeld submitted the application to Fattah’s office
in April of 2009. Afterward, a Fattah staffer contacted
Lindenfeld to suggest that he change his Washington, D.C.,
address to Philadelphia because that was the location of
Fattah’s district. Fattah later suggested to Lindenfeld that
Brand might allow the use of his Philadelphia office address, a
plan to which Brand agreed.
In February 2010, Lindenfeld submitted a second
application to the Appropriations Committee. In March, Fattah
submitted a project request using his congressional letterhead
27
and seeking $3,000,000 for the “Blue Guardians, Coastal
Environmental Education Outreach Program.” JA6432. Within
a month, Blue Guardians had both articles of incorporation and
a bank account. Around that time, a news reporter contacted
Lindenfeld to discuss the new Blue Guardians entity. The
inquiry made Lindenfeld uncomfortable, and he ultimately
decided to abandon the Blue Guardians project. He continued
to seek payment from Fattah, to no avail.
Nonetheless, having obtained Lindenfeld’s
acquiescence to writing off the campaign’s debt to Strategies,
Fattah started falsifying FFM’s campaign reports. Beginning
in 2009 and extending through 2013, the FFM campaign
reports executed by Fattah and Bowser stated that Strategies
made in-kind contributions of $20,000, until the debt appeared
to have been paid in full.
C. The Fattah–Vederman Bribery Scheme
Vederman and Fattah were personal friends. Vederman
was a successful businessman who had also served in
prominent roles in the administrations of Ed Rendell when he
was Mayor of Philadelphia and Governor of Pennsylvania. In
November of 2008, Vederman was a senior consultant in the
government and public affairs practice group of a Philadelphia
law firm. His assistance to the FFM campaign included paying
for rented vans used in the get-out-the-vote effort.
After Fattah’s electoral defeat, the campaign still owed
more than $84,000 to a different law firm for services
performed for the campaign. Vederman approached that firm
in the summer of 2008 asking if it would forgive FFM’s debt.
Negotiations resulted in a commitment from FFM to pay the
28
firm $30,000 by the end of 2008 in exchange for forgiveness
of $20,000, all of which would appear on the FFM campaign
finance report. Vederman’s efforts also led to payment by
Fattah of an additional $10,000 in 2009 to the law firm, in
exchange for additional forgiveness of $20,000 of debt. It was
not long after Vederman’s successful efforts to lower Fattah’s
campaign debt, that Fattah wrote a letter to U.S. Senator Robert
P. Casey recommending Vederman for an ambassadorship.
At some point in 2010, Vederman again intervened on
behalf of the FFM campaign. FFM remained in debt to an
advertising and public relations firm owned by Robert Dilella.
By late 2011, Vederman and Dilella had worked out a
settlement to resolve the outstanding debt. Pursuant to that
settlement, Dilella received partial payment from the FFM
campaign: $25,000 in satisfaction of a $55,000 debt. Dilella
testified at trial that he would not have agreed to retire a portion
of the debt had he known the FFM campaign was paying
college tuition for Fattah’s son.
Vederman helped Fattah financially in other ways.
Before the 2006 FFM campaign, Fattah and his wife, Renee
Chenault-Fattah, sponsored a young woman named Simone
Muller to live with them as an au pair exchange visitor. Muller
was from South Africa, and her J-1 visa allowed her to serve
as a nanny and to study in the United States. Muller later
applied for and received a second visa, an F-1 student visa that
indicated she had been accepted as an international student at
the Community College of Philadelphia. The application
indicated that Muller would again be residing with the Fattahs.
Notwithstanding this living arrangement, Fattah identified
Vederman as the person who would be paying for Muller’s trip
to the United States.
29
By the beginning of 2010, Muller wished to transfer to
Philadelphia University. This required her to submit
verification that funds were available to pay for her study.
Although the Fattahs were Muller’s sponsors, Fattah explained
to the University’s Dean of Enrollment Services that he was
submitting a letter of secondary support from Vederman.
JA3754, 3763–65, 6504. Without Vederman’s January 2010
letter of support, the University would not have admitted
Muller. In addition to this pledge of support, Vederman paid
$3,000 of Muller’s tuition. Shortly thereafter, Fattah resumed
his efforts to secure an ambassadorship for Vederman.
In February of 2010, Fattah staffer Maisha Leek
contacted Katherine Kochman, a scheduler for White House
Chief of Staff Rahm Emanuel. Leek requested a telephone
conference with Emanuel, Rendell, and Fattah to discuss
Vederman’s “serving his country in an international capacity.”
JA2893. In a follow-up email on March 26, Leek sent
documents to Kristin Sheehy, a secretary to White House
Deputy Chief of Staff James Messina. The documents included
Fattah’s 2008 letter to Senator Casey and Vederman’s
biography. After participating in a telephone conference about
Vederman with Fattah and Rendell, Messina sent Vederman’s
biography to the White House personnel office for
consideration.
As the April 2010 tax deadline approached, Fattah still
owed the City of Philadelphia earned income tax in the amount
of $2,381. Just days before the filing deadline, Vederman gave
a check to Chip Fattah for $3,500. The younger Fattah quickly
deposited $2,310 into his father’s bank account. Fattah paid his
tax bill on April 15. Without Chip’s deposit into his father’s
30
bank account, the older Fattah would not have had sufficient
funds to pay his tax bill.
On October 30, 2010, Vederman gave Chip another
check, this one for $2,800. That same day, Fattah hand-
delivered a letter to President Obama recommending
Vederman for an ambassadorship. A few weeks later, Fattah’s
staffer, Leek, sent the letter that Fattah had given to President
Obama to Messina’s office. That letter pointed out that both
Rendell and Fattah had sent letters on behalf of Vederman, and
that he was an “unquestionably exceptional candidate for an
ambassadorship.” JA6291–92.
Fattah’s efforts to secure Vederman an ambassadorship
were unsuccessful. Fattah then shifted gears and sought to
secure Vederman a position on a federal trade committee.
Fattah approached Ron Kirk, who served as U.S. Trade
Representative, and asked him to speak with a constituent. In
May of 2011, Leek followed up on that discussion by emailing
Kirk and asking him to meet with Vederman. Kirk met with
Vederman on June 5, 2011 and explained to him the role of the
trade advisory committees. Although the two men “had a very
nice conversation,” JA 3566, it soon became “pretty apparent
to [Kirk and his staff] that [serving on a trade advisory
committee was] not what Mr. Vederman was interested in.”
JA3567. As Kirk put it, “it was obvious that [Vederman] was
looking for something perhaps more robust in his mind or . . .
higher profile than one of our advisory committees.” Id. Given
Vederman’s lukewarm interest, no appointment to an advisory
committee was forthcoming.
In late December 2011, the Fattahs applied for a
mortgage so they could purchase a second home in the
31
Poconos. Shortly after applying for the mortgage, Fattah
emailed Vederman, offering to sell him his wife’s 1989
Porsche for $18,000. Vederman accepted the offer. The next
day, Vederman wired $18,000 to Fattah’s Wright Patman
Federal Credit Union account.
The Credit Union Mortgage Association (CUMA) acted
as the loan processing organization for the home mortgage.
Because CUMA is required to verify the source of any large
deposits, CUMA’s mortgage loan processor, Victoria Souza,
contacted Fattah on January 17, 2012, to confirm the source of
the $18,000. Fattah informed Souza that the $18,000
represented the proceeds of the Porsche sale. Souza requested
documentation, including a signed bill of sale and title.
That same day, Bowser emailed Vederman a blank bill
of sale for the Porsche. After Vederman signed the bill of sale,
Fattah forwarded it to Souza. The bill of sale was dated January
16, 2012, which was the day before Souza had requested the
documentation. It bore the signatures of Renee Chenault-
Fattah and Herbert Vederman, with Bonnie Bowser as a
witness.
Fattah also provided Souza with a copy of the Porsche’s
title. It was dated the same day it was sent to Souza, and bore
signatures of Chenault-Fattah as the seller and Vederman as
buyer, along with a notary’s stamp. Neither Vederman nor
Chenault-Fattah actually appeared before the notary.
Vederman never took possession of the Porsche. Renee
Chenault-Fattah continued to have the Porsche serviced and
insured long after the purported sale had taken place.
Moreover, the Porsche remained registered in Chenault-
32
Fattah’s name, and was never registered to Herbert Vederman.
When FBI agents searched the Fattahs’ home in 2014, the
Porsche was discovered in the Fattahs’ garage.
On January 24, 2012, the Fattahs wired $25,000 to the
attorney handling the escrow account for the purchase of the
vacation home. Without the $18,000 transfer from Vederman,
the Fattahs would not have had sufficient funds in their bank
accounts to close on the home.
Around the same time that the Fattahs were purchasing
the house in the Poconos, Fattah’s Philadelphia office hired
Vederman’s longtime girlfriend, Alexandra Zionts. Zionts had
long worked for a federal magistrate judge in Florida. Near the
end of 2011, the magistrate judge retired, leaving Zionts ten
months shy of obtaining the necessary service required to
receive retirement benefits. If Zionts could find another job in
the federal government, her benefits and pension would not be
adversely affected. Vederman assisted Zionts in her job search,
which included calling Fattah. Fattah hired her, a move that put
his congressional office overbudget. Zionts worked in Fattah’s
office for only about two months, leaving to work for a
congressman from Florida.
Tia Watson, who performed constituent services for
Fattah and worked on the same floor as Zionts in Fattah’s
district office, testified she had no idea what work Zionts
performed. Although Zionts contacted Temple University
about archiving Fattah’s papers from his career in both the state
and federal government, an employee from Temple University
observed that Zionts’ work contributed nothing of value to the
papers project.
33
D. The Indictment and Trial
Fattah’s schemes eventually unraveled. On July 29,
2015, a federal grand jury in the Eastern District of
Pennsylvania returned a twenty-nine count indictment alleging
that Fattah and his associates had engaged in a variety of
criminal acts. Fattah, Vederman, Nicholas, Brand, and Bowser
were charged with unlawfully conspiring to violate the
Racketeer Influenced and Corrupt Organizations Act (RICO),
18 U.S.C. § 1962(d). In addition to the RICO charge, the
indictment alleged that Fattah and certain co-defendants had
unlawfully conspired to commit wire fraud, 18 U.S.C. §§ 1343,
1349; honest services fraud, 18 U.S.C. §§ 1343, 1346, 1349;
mail fraud, 18 U.S.C. §§ 1341, 1349; money laundering, 18
U.S.C. § 1956; and to defraud the United States, 18 U.S.C.
§ 371. Several defendants were also charged with making false
statements to banks, 18 U.S.C. § 1014; falsifying records, 18
U.S.C. § 1519; laundering money, 18 U.S.C. § 1957; and
engaging in mail, wire, and bank fraud, 18 U.S.C. §§ 1341,
1343, and 1344.
The RICO charge alleged that the defendants and other
co-conspirators constituted an enterprise aimed at supporting
and promoting Fattah’s political and financial interests. The
efforts to conceal the $1 million Lord loan and its repayment
are at the heart of the RICO conspiracy and the Fattah for
Mayor scheme. The indictment further alleged that the RICO
enterprise involved: (1) the scheme to satisfy an outstanding
campaign debt by creating the fake “Blue Guardians”
nonprofit; and (2) the bribery scheme to obtain payments and
things of value from Vederman in exchange for Fattah’s efforts
to secure Vederman an appointment as a United States
Ambassador.
34
A jury trial, before the Honorable Harvey Bartle III of
the Eastern District of Pennsylvania, began on May 16, 2016,
and lasted about a month. 7 Judge Bartle charged the jury on
Wednesday, June 15, 2016, and deliberations began late that
afternoon. The following day, after deliberating for only four
hours, the jury sent a note to the judge. Written by the
foreperson, the note read:
Juror Number 12 refuses to vote by the letter of
the law. He will not, after proof, still change his
vote. His answer will not change. He has the 11
of us a total wreck knowing that we are not
getting anywhere in the hour of deliberation
yesterday and the three hours today. We have
zero verdicts at this time all due to Juror Number
12. He will not listen or reason with anybody. He
is killing every other juror’s experience. We
showed him all the proof. He doesn’t care. Juror
Number 12 has an agenda or ax to grind w/govt.
JA5916.
Shortly after receiving the foreperson’s note, the Court
received a second communication—a note signed by nine
jurors, including the foreperson. The second note read:
We feel that [Juror 12] is argumentative,
incapable of making decision. He constantly
scream [sic] at all of us.
7
The District Court dismissed one charge prior to trial: an
individual money laundering count against Nicholas.
35
Id.
Judge Bartle met with counsel in his chambers and
advised them of his intention to voir dire both the foreperson
and Juror 12 in an effort to determine whether the juror was
deliberating as required by his oath. The Judge also indicated
that he would “stay away from the merits of the case,” and that
whether he would voir dire more jurors “remain[ed] to be
seen.” JA5917.
Counsel for the defendants objected to the Court’s
proposed inquiry. As a group, they indicated that while the note
could be read as suggesting “a flat refusal to deliberate,” they
were of the opinion that it sounded “more in the manner of a
disagreement over the evidence.” JA5918. Nicholas’s counsel
specifically argued that questioning the jurors so quickly after
the start of deliberations would send a message that differences
of opinion among a block of jurors could be resolved by
complaining to the Court. Defense counsel acknowledged that
the case law gave Judge Bartle wide discretion on how to
proceed, but suggested that a “less intrusive” course of action
was preferred. JA5918–19. They collectively urged the Court
to do nothing more than remind the jurors of their duty to
deliberate.
The Government agreed with Judge Bartle’s proposed
voir dire. In the prosecution’s view, the Court had already
given proper instructions to the jury on their duty to deliberate.
The Government further argued that if Juror 12 had exhibited
bias, as suggested in the notes, he would have lied during the
voir dire process and his refusal to deliberate would be “further
evidence of that and his unsuitability as a juror.” JA5921.
36
With all counsel present, and over defense counsel’s
objections, Judge Bartle ultimately questioned five jurors in
chambers. He questioned Juror 2 (the foreperson), Juror 12 (the
subject of the complaints), Juror 3, Juror 6, and Juror 1.
Judge Bartle began each voir dire by informing the juror
that he would ask a series of questions, but would not inquire
into the merits of the case or how any juror was voting. Each
juror was placed under oath, and Judge Bartle asked, among
other questions, whether screaming was occurring; whether the
jurors were discussing the evidence; whether Juror 12 was
placing his hands on other jurors; and whether Juror 12 was
unwilling to follow his instructions.
The foreperson acknowledged that he had written the
initial note during lunch earlier that day. He stated that Juror
12 was not willing to follow the law, but instead “want[ed] to
add his own piece of the law . . . which has nothing to do with
it.” JA5927–28. The foreperson further testified that Juror 12
“was standing up screaming” and that “[i]t was everybody
pretty much against [Juror 12].” JA5929. He testified that Juror
12 “has his own agenda,” and that Juror 12 put his hand on
another juror. JA5930. The foreperson also stated that the jury
had discussed only a single count since the day before, and that
they were still discussing it. When the District Court responded
that the jurors should understand that they could take as much
time as they needed, the foreperson responded: “I understand
that. . . . [W]e all understand it. But we feel that he’s just—he’s
got another agenda.” JA5934.
Judge Bartle advised counsel that he considered this “a
very serious situation” and that he would proceed to voir dire
Juror 12. JA5937. Fattah’s counsel renewed his objection to
37
questioning Juror 12, which the Court overruled. Brand’s
counsel argued that because the Court had decided to voir dire
Juror 12, it should also voir dire an additional juror. The Court
agreed to do so.
When the Court questioned Juror 12, he admitted to
having “yelled back” at others, but only when they raised their
voices to him. JA5939. Juror 12 contended that he, in fact, was
“the only one” deliberating. Id. When an initial vote was taken
the previous afternoon, his vote “was different than everybody
else’s.” Id. Juror 12 explained to the other jurors why his vote
was different, bringing up specific evidence. In response, the
other jurors said “that doesn’t mean anything” and “pointed to
the indictment.” JA5940. Juror 12 told the other jurors that the
indictment is not evidence. Id. In response, the others
“threatened to have [him] thrown off.” Id.
Juror 12 testified that a similar sequence of events had
taken place that morning. After a brief period of deliberations,
another vote was taken, and with the same result as the
previous afternoon. A discussion ensued, and the other jurors
again “point[ed] to the indictment.” Id. Juror 12 told them to
“read the charge,” “[t]he indictment is not evidence.” Id. They
read the charge, and Juror 12 again attempted to explain his
view, but the other jurors paid little attention. Accordingly,
Juror 12 told the others that if they did not want him there, he
“[didn’t] want to be [there]”—he would be “[o]kay with it” if
they wanted him taken off the jury. JA5941.
Upon hearing this testimony, Judge Bartle again asked
about the tone of deliberations. Juror 12 repeated that he raised
his voice only in response to others who did so—he did “not
want to yell at anybody.” JA5942. Judge Bartle then asked
38
whether he had touched other jurors. Juror 12 replied that he
had not hurt anyone. When asked if he had put his hand on
anybody’s shoulder, Juror 12 answered: “I couldn’t remember
to be honest with you.” JA5946.
Following Juror 12’s voir dire, the Court summoned
Juror 3 to chambers. Juror 3 testified that, after discussion of a
particular count, there was one juror at odds with the others.
According to Juror 3, “the rest of the jurors pounced on the
gentleman with the . . . dissenting opinion.” JA5948. Juror 3
testified that Juror 12 “got very defensive and just a little bit []
impatient” and that “the other jurors were very impatient with
him.” Id. Juror 3 did not recall witnessing Juror 12 putting his
hand on any other jurors.
The Government requested that the Court voir dire
another juror. Defense counsel objected, claiming that the
questioning “threaten[ed] . . . the entire deliberative process.”
JA5949–50. Judge Bartle reminded counsel that he had the
authority to question each juror, and called for voir dire of
Juror 6.
Juror 6 testified that the jury had been discussing the
case and reviewing the evidence, but that Juror 12 “wants to be
seen” and was “being obstinate.” JA5951–52. According to
Juror 6, Juror 12 “may not agree” with the conclusion of other
jurors but “doesn’t give valid reasons as to why he may
disagree with the charge.” JA5952. Juror 6 also revealed that
Juror 12 was the first to raise his voice, and that he may have
touched her and another juror. When asked to clarify what she
meant by Juror 12 disagreeing with “the charge,” Juror 6
testified that Juror 12 was “reading maybe too deeply into it
and putting his own emotions into it instead of just looking at
39
what it says [and] what the facts are.” JA5952, 5955.
According to Juror 6, Juror 12 “just continues to read past that
into his own mind of what he feels it should be.” JA5955. Juror
6 testified that Juror 12’s “justification for some of his
responses [did not] seem to relate to what the matter [was]
before [them].” JA5957.
Judge Bartle chose to hear from yet another juror. Juror
1 was called and informed the Court and counsel that the jury
“really [hadn’t] been able to even start the deliberation
process” in light of the disruptive behavior of “one particular
individual.” JA5958–59. The particular individual, according
to Juror 1, was “very opinionated” and “[came] into the process
with his view already established, refusing to even listen to any
of the evidence . . . [being] very forceful . . . standing up,
yelling, pointing his finger.” JA5959. When asked if this
individual was willing to follow the Court’s instructions, Juror
1 testified that he “pours [sic] over the documents very well”
but that he was adding other factors to answer the question on
the verdict form, such as “what did this person feel.” JA5961.
When Judge Bartle advised that intent was an appropriate
consideration, Juror 1 agreed but said that Juror 12 was “trying
to investigate . . . going way beyond the scope” of the evidence
before them. JA5961–62. Juror 12, he said, “has an opinion and
that opinion is established.” JA5962. He stated that Juror 12
was “not willing to listen to any sort of reason or any sort of
what everyone else is saying” but instead, was “trying to force
everyone else to get to his point of view.” Id. “[I]f he feels like
he’s not getting there, he gets louder and louder and points and
puts his hand on your shoulder . . . .” Id.
After questioning the five jurors (Jurors 1, 2, 3, 6, and
12), Judge Bartle heard argument from counsel. The attorney
40
for the Government pointed out that the Court would have to
make a credibility determination because Juror 12 stated that
he did not recall touching anyone. In the Government’s view,
Juror 12 was disrupting the process and should be removed.
Defense counsel disagreed. They argued that Juror 12 was
conscientious and was engaging with the evidence. They
pointed out that despite the testimony that Juror 12 was reading
too deeply into the instructions or introducing new factors for
the jury to consider, Juror 6 had testified that the jurors “talked
it through” and resolved the concern. JA5965. Defense counsel
argued that the jury was discussing intent, an issue that was at
the heart of the case. Defense counsel perceived no breakdown
in deliberations and argued that dismissal would be premature.
They suggested, instead, that the Court provide a supplemental
instruction.
Judge Bartle decided to adjourn for the afternoon. But
before he left the courtroom, defense counsel brought two
matters to his attention. First, in light of testimony during the
voir dire, they asked that the jury be reinstructed that the
verdict form and indictment were not evidence. Second, they
apprised the Judge of the standard for juror dismissal set forth
in United States v. Kemp, 500 F.3d 257 (3d Cir. 2007). Defense
counsel stated that under Kemp, a request to discharge a juror
must be denied if there is a possibility that the request stems
from the juror’s view of the evidence. Judge Bartle expressed
hesitation on reinstructing the jury, but agreed that Kemp
would control his determination as to whether dismissal was
appropriate.
With the following morning came a new revelation.
With counsel in chambers, the Judge informed them that
“additional significant evidence” had come to light since the
41
previous day’s recess. JA5980. He placed his courtroom
deputy under oath, and she proceeded to testify to an exchange
that had occurred the previous day as she was escorting Juror
12 back to the jury room after he had been voir dired.
According to the deputy, Juror 12 stopped her in the hallway,
placed his hand on her shoulder, and looked her “straight in the
eye.” JA5981. He then said: “I’m going to hang this jury.” Id.
The deputy then related that before any further conversation
could take place between Juror 12 and the deputy, Judge Bartle
summoned Juror 12 back to his chambers. Later that day,
however, Juror 12 and the courtroom deputy had another
exchange. She testified that after all five jurors had been
questioned, Juror 12 emerged from the jury room and told her
“I really need to talk to you.” JA5982. She informed Judge
Bartle and counsel that Juror 12 “said more about how they’re
treating him and what he’s saying to them.” Id. He flatly stated
that “it’s going to be 11 to 1 no matter what.” Id.
There were no follow-up questions for the deputy.
Instead, defense counsel suggested that what Juror 12 may
have meant was that he was willing to hang the jury because of
a lack of evidence. They requested that Juror 12 be asked about
his comments to the deputy.
After once again summoning Juror 12 to his chambers,
the Judge advised him that “[s]ome questions have arisen”
about what he may have done after being voir dired the
previous day. JA5985. Juror 12 acknowledged having
conversations with the courtroom deputy. When asked “what
happened” and “[w]hat occurred,” Juror 12 responded:
“Basically, I said that there was a lot of name calling going on.”
JA5985. He said comments had been made by other jurors
about his service in the military. He specifically referred to
42
other jurors’ suggesting that he had possibly “hit [his] head . . .
hard a few times” while serving in a parachute regiment.
JA5986. He testified he had conveyed these comments to the
deputy and that he found them offensive. When asked if he said
anything else to the deputy, Juror 12 responded: “I may have.
I really can’t recall.” JA5987. And when Judge Bartle followed
up by asking if he could recall anything else that he said to the
deputy, Juror 12 simply replied: “No. To me, that was the most
important thing.” Id. Juror 12 was then excused from
chambers.
Defense counsel next requested that the juror be asked
directly whether he told the courtroom deputy that he was
going to “hang this jury.” JA5988. Juror 12 was recalled to
chambers, and the following back and forth took place:
The Court: You may be seated. And, of course,
[Juror 12], you know you’re under oath here
from yesterday?
Juror 12: Yes, sir.
The Court: . . . Did you say to [the courtroom
deputy] that you’re going to hang this jury?
Juror 12: I said I would.
The Court: You did?
Juror 12: I did. I said—I told her—I said, we
don’t agree; I’m not just going to say guilty
because everybody wants me to, and if that hangs
this jury, so be it.
....
Juror 12: I did say that, sir.
The Court: You didn’t remember that before?
Juror 12: I’m more concerned about people
spitting on my military record.
43
The Court: Did you say that you’d hang the jury
no matter what?
Juror 12: If they do—if we cannot come to—
The Court: No. The question is what you said to
her. Did you say to her you would hang the jury
no matter what?
Juror 12: I can’t really remember that. I did say
that if we didn’t—a person—no matter what, I
can’t recall that exactly.
The Court: All right. Thank you very much. You
can wait just out there in the anteroom.
JA5989–90.
Defense counsel continued to oppose Juror 12’s
dismissal. They argued that the juror’s concern was about the
evidence, and that his comments to the courtroom deputy
reflected a conviction that “he’s not going to agree just because
others want him to agree.” JA5991. They also argued that
nothing should be made of Juror 12’s failure to mention the
comments when initially questioned by the Court, and that a
supplemental instruction was all that was warranted given the
early stage of the deliberations.
The Government strongly disagreed. The Assistant
United States Attorney argued that Juror 12 “should absolutely
be removed” because “his demeanor ha[d] demonstrated a
hostility . . . both to the other jurors and to the court.” JA5993.
The Government also suggested that Juror 12’s comments that
he would hang the jury meant that he was not participating in
the deliberations and was ignoring the evidence and the law.
Ruling from the bench, Judge Bartle announced:
44
I find [the deputy clerk] to be credible. I find
[Juror 12], not to be credible. I find that [Juror
12] did tell [the deputy clerk] that he was going
to hang this jury no matter what.
There have been only approximately four
hours of deliberation. There’s no way in the
world he could have reviewed and considered all
of the evidence in the case and my instructions
on the law.
I instructed the jury to deliberate,
meaning to discuss the evidence; obviously, to
hold onto your honestly held beliefs, but at least
you have to be willing to discuss the evidence
and participate in the discussion with other
jurors.
Juror number 12 has delayed, disrupted,
impeded, and obstructed the deliberative process
and had the intent to do so. I base that having
observed him, based on his words and his
demeanor before me.
He wants only to have his own voice
heard. He has preconceived notions about the
case. He has violated his oath as a juror.
And I do not believe that any further
instructions or admonitions would do any good.
I think he’s intent on, as he said, hanging this jury
no matter what the law is, no matter what the
evidence is.
Therefore, he will be excused, and I will
replace him with the next alternate . . . .
JA5994–95.
45
In response, defense counsel moved for a mistrial,
which the judge promptly denied. He then informed the
reconstituted jury that deliberations would need to start over,
and reinstructed them on certain points of law, including that
the verdict slip does not constitute evidence.
Judge Bartle elaborated upon his decision to remove
Juror 12 in two post-trial memorandum opinions. In the first,
ruling on a media request for the sealed transcripts, he
explained:
Here, there is no doubt that Juror 12 intentionally
refused to deliberate when he declared so early
in the process that he would hang the jury no
matter what. This finding was predicated on the
admission of Juror 12 as reported by the court’s
deputy clerk. The facts became clear to the court
after hearing the credible testimony of the deputy
clerk and the less credible testimony of Juror 12.
The demeanor of Juror 12 before the court
confirmed the court’s findings.
GSA23–24. The second opinion addressed motions for bail
pending appeal from Nicholas and Brand. GSA25. There,
Judge Bartle explained:
The law is well-settled that the court has
discretion to act as it did under these
circumstances. See United States v. Kemp, 500
F.3d 257, 304 (3d Cir. 2007). The court, after
taking testimony, specifically found that the
juror, following only a few hours of deliberation,
stated to the court’s courtroom deputy clerk that
46
he would hang this jury no matter what. He could
not possibly have reviewed all of the law and
evidence of this five-week trial at the time he
made his remark. The court examined the deputy
clerk and the juror under oath in the presence of
counsel for all parties. The undersigned found
the deputy clerk to be credible and the juror not
to be credible. Based on the juror’s demeanor, it
was clear he would not change his attitude and
that his intent had been and would continue to be
to refuse to deliberate in good faith concerning
the law and the evidence.
GSA32.
After deliberating for approximately 15 hours, the jury
returned with its verdicts on June 21, 2016, finding the
defendants guilty on most counts. Fattah, Vederman, and
Brand were convicted on all counts. The jury acquitted Bowser
on sixteen counts, but found her guilty of the bribery
conspiracy and the associated charges of bank fraud, making
false statements to a financial institution, falsifying records,
and money laundering (Counts 16, 19, 20, 21 and 22). The jury
also acquitted Nicholas of wire fraud (Count 24). See Nicholas
Supp. App. (NSA) 36.
The following week, on June 27, the Supreme Court
issued its opinion in McDonnell v. United States, 136 S. Ct.
2355 (2016). McDonnell provided new limitations on the
definition of “official acts” as used in the honest services fraud
and bribery statutes under which Fattah and Vederman had
been convicted. Id. at 2369–72. Fattah and Vederman both
moved to set aside their convictions. The District Court
47
“acknowledge[d] that under McDonnell our instructions to the
jury on the meaning of official act turned out to be incomplete
and thus erroneous.” JA103. But the Court held that “the
incomplete and thus erroneous jury instruction on the meaning
of official acts did not influence the verdict on the bribery
counts” and upheld the verdict on Counts 16–18 and 22–23.
JA107, 121.
Fattah, Vederman, and Bowser had more success with
their other post-verdict motions. The District Court, in a
thoughtful opinion, granted relief under Federal Rule of
Criminal Procedure 29, acquitting Vederman of the RICO
conspiracy (Count 1) and Fattah, Vederman, and Bowser of
bank fraud, making false statements to a financial institution,
and falsifying records (Counts 19, 20, and 21). JA37–139.
This appeal followed. 8 The defendants raise a variety of
challenges to their convictions. All defendants but Bowser
challenge the District Court’s decision to dismiss Juror 12.
Fattah and Vederman argue that the District Court erred in
upholding the jury’s verdict on the bribery and honest services
fraud counts in light of the Supreme Court’s decision in
McDonnell. Fattah, Brand and Nicholas challenge the
sufficiency of the evidence underlying the RICO conviction.
Several of the defendants contend the District Court erred in its
instruction on intent and by sending the indictment out to the
jury. There are also several evidentiary challenges. 9 The
8
Fattah, Brand, Vederman, and Nicholas each filed a timely
notice of appeal, but Bowser did not challenge her convictions.
9
Pursuant to Rule 28(i), “Fattah joins in the arguments of
Herbert Vederman, Robert Brand, and Karen Nicholas to the
extent their arguments on appeal apply to Mr. Fattah.” Fattah
48
Government cross-appeals from the District Court’s judgment
acquitting Fattah and Vederman on Counts 19 and 20, arguing
that the District Court erred in interpreting the definition of a
“mortgage lending business” under 18 U.S.C. § 27. We address
these arguments in turn.
We hold that the District Court erred in upholding the
jury verdict in light of McDonnell, and we will therefore
reverse and remand for retrial on Counts 16, 17, 18, 22, and 23.
We also hold that the District Court erred in acquitting Fattah
and Vederman on Counts 19 and 20. Because the jury’s verdict
was supported by the evidence, we will reinstate the
convictions as to those counts. In all other respects, we will
affirm the judgment of the District Court.
Br. 19 n.69. Federal Rule of Appellate Procedure 28(i)
provides that a defendant, “[i]n a case involving more than one
appellant . . . may adopt by reference a part of another’s brief.”
Here, Fattah’s decision to join fails to specify which of the
many issues of his codefendants he believes worthy of our
consideration. Rather, it appears that he presumes we will
scour the record and make that determination for him. This
type of blanket request fails to satisfy Rule 28(a)(5)’s directive
requiring that the “appellant’s brief must contain . . . a
statement of the issues presented for review.” Fed. R. App. P.
28(a)(5). We conclude that expecting the appellate court to
identify the issues to be adopted simply results in the
abandonment and waiver of the unspecified issues. See Kost v.
Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993).
49
III. Juror Misconduct and Dismissal of Juror 12 10
Defendant Fattah challenges the District Court’s
decision to conduct an in camera inquiry into alleged juror
misconduct and the ultimate dismissal of Juror 12. 11 We reject
both challenges. The record reveals credible allegations of
juror misconduct and a sufficient basis to support the finding
that Juror 12 violated his oath.
A. Investigation of Alleged Juror Misconduct
We first consider whether the District Court erred in its
handling of the two notes from jurors. A trial court’s response
to allegations of juror misconduct is reviewed under an abuse
of discretion standard. United States v. Boone, 458 F.3d 321,
326 (3d Cir. 2006) (citing United States v. Resko, 3 F.3d 684,
690 (3d Cir. 1993)). We conclude that the District Court did
not abuse its discretion in addressing the issues raised in the
jurors’ notes to the Court.
Trial courts are afforded discretion in responding to
allegations of juror misconduct. This is so because “the trial
court is in a superior position to observe the ‘mood at trial and
the predilections of the jury.’ ” Resko, 3 F.3d at 690 (quoting
United States v. Chiantese, 582 F.2d 974, 980 (5th Cir. 1978)).
But this discretion is not unlimited. Once the jury retires to
deliberate, the confidentiality of its deliberations must be
10
The District Court had jurisdiction under 18 U.S.C. § 3231.
We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a).
11
Vederman, Nicholas, and Brand adopt Fattah’s claim of
reversible error concerning the dismissal of Juror 12.
50
closely guarded. An accused is constitutionally entitled to be
tried before a jury of his peers. As ordinary citizens, jurors are
“expected to speak, debate, argue, and make decisions the way
ordinary people do in their daily lives.” Pena-Rodriguez v.
Colorado, 137 S. Ct. 855, 874 (2017) (Alito, J., dissenting). To
protect against intrusion into a defendant’s right to be judged
only by fellow citizens, “the door to the jury room [is] locked.”
Id. at 875.
In Boone, this Court considered the threshold for
intervention by a trial judge who is presented with allegations
of juror misconduct during the course of deliberations. 458
F.3d at 327. We recognized that “[i]t is beyond question that
the secrecy of deliberations is critical to the success of the jury
system.” Id. at 329. But that secrecy abuts a competing
interest—the jury’s proper execution of its duties. That is, “a
juror who refuses to deliberate or who commits jury
nullification violates the sworn jury oath and prevents the jury
from fulfilling its constitutional role.” Id. Recognizing these
competing interests, we declined in Boone to adopt a sweeping
limitation on a trial court’s ability to investigate allegations of
misconduct during jury deliberations. See id. Consistent with
the standard applied at other stages of criminal proceedings,
Boone teaches that “where substantial evidence of jury
misconduct—including credible allegations of jury
nullification or of a refusal to deliberate—arises during
deliberations, a district court may, within its sound discretion,
investigate the allegations through juror questioning or other
appropriate means.” Id.
Fattah argues that the District Court had no basis to
question any of the jurors. Fattah Br. 20. We disagree. In
Boone, notes from the jury presented substantial credible
51
evidence of misconduct. 458 F.3d at 330. Here, the initial note
from the foreperson alleged that Juror 12 “refuse[d] to vote by
the letter of the law,” would “not listen or reason with
anybody,” and that he had “an agenda or ax to grind” with the
Government. JA5916. The note contained allegations of both a
refusal to deliberate and a suggestion of nullification. A refusal
to deliberate is a violation of a juror’s oath. Boone, 458 F.3d at
329 (citing United States v. Baker, 262 F.3d 124, 130 (2d Cir.
2001) (“It is well-settled that jurors have a duty to
deliberate.”)). Moreover, nullification—a juror’s refusal to
follow the law—is a violation of the juror’s sworn oath to
render a verdict according to the law and evidence. See United
States v. Thomas, 116 F.3d 606, 614–18 (2d Cir. 1997)
(discussing both “benevolent” and “shameful” examples of
juror nullification, but “categorically reject[ing] the idea that,
in a society committed to the rule of law, jury nullification is
desirable or that courts may permit it to occur when it is within
their authority to prevent”). The second jury note, signed by
nine jurors, supported the claim of misconduct by asserting that
Juror 12 was “incapable of making decision[s]” and was
“constantly scream[ing]” at the other jurors. JA5916–17. We
conclude that the District Court did not abuse its discretion in
deciding to initially question Juror 2, and subsequently, Jurors
12, 3, 6 and 1.
Fattah also challenges the scope of the District Court’s
questioning. He argues that the rights to an impartial jury and
to a unanimous verdict “would be rendered toothless if trial
courts had free rein to question jurors during deliberations.”
Fattah Br. 36. Indeed, we acknowledged the legitimacy of such
a concern in Boone. Despite adopting a modest “credible
allegations” standard for investigating misconduct, we “ke[pt]
52
in mind the importance of maintaining deliberative secrecy.”
Boone, 458 F.3d at 329. Fattah asserts that the trial court’s
questions to the five jurors were “intrusive and pointed” and
“nothing like the questioning . . . approved in Boone.” Fattah
Br. 38. But Fattah does not elaborate on how, in his view, the
questions posed by Judge Bartle specifically intruded into
deliberative secrecy.
To be sure, Judge Bartle’s questioning of each juror was
more extemporaneous than the juror questioning in Boone.
There, the district court asked a single juror four “concise and
carefully-worded” questions. 458 F.3d at 330. Judge Bartle’s
voir dire of each of the five jurors took on a more
conversational tone. We take no issue with that approach. The
substance of the judge’s questions was limited and mirrored
that of questions we deemed appropriate in Kemp. There, the
court conducted three rounds of questioning. In the first round,
each juror was asked:
(1) “Are you personally experiencing any
problems with how the deliberations are
proceeding without telling us anything about the
votes as to guilt or innocence? If yes, describe
the problem.” (2) “Are all the jurors discussing
the evidence or lack of evidence?” (3) “Are all
the jurors following the court’s instructions on
the law?”
Kemp, 500 F.3d at 273. In the second and third rounds, each
juror was asked:
(1) “Is there any juror or jurors who are refusing
to deliberate?” (2) “Is there any juror who is
53
refusing to discuss the evidence or lack of
evidence?” (3) “Is there any juror who is
refusing to follow the Court’s instructions?”
Id. at 274. Here, Judge Bartle began his voir dire of each juror
by stating that he did not wish for the juror to discuss the merits
of the case or to reveal the content of the deliberations that had
taken place. He asked the jurors whether screaming was
occurring, whether the jurors were discussing the evidence,
whether Juror 12 was placing his hands on other jurors, and
whether Juror 12 was unwilling to follow his instructions.
Fattah points to no specific question posed or topic
discussed that was inappropriate, and we see little to no
substantive difference between the questions here and those
asked by the trial judge in Kemp. As in Kemp, “the District
Court took care to limit its questions to appropriate matters that
did not touch on the merits of the jury’s deliberation, and
expressly informed each juror on multiple occasions that he or
she should not reveal the substance of the deliberations.” Id. at
302 (citing United States v. Edwards, 303 F.3d 606, 634 n.16
(5th Cir. 2002)).
Fattah also argues that once the remarks of Juror 2 and
Juror 12 revealed no further evidence of misconduct, the court
had no basis to question other jurors. Fattah Reply 19. Yet, our
cases make clear that a trial court may, in its discretion,
examine each juror. Kemp, 500 F.3d at 302 (“We have
recognized that there are times in which individual questioning
is the optimal way in which to root out misconduct.”). Indeed,
“the District Court must utilize procedures that will ‘provide a
reasonable assurance for the discovery of prejudice.’ ” Id.
54
(quoting Martin v. Warden, Huntingdon State Corr. Inst., 653
F.2d 799, 807 (3d Cir. 1981)). 12
Judge Bartle, a very able and experienced district judge,
was in the best position to determine what type of inquiry was
warranted under the circumstances. We conclude that his
questioning of the five jurors was not an abuse of discretion.
See id. at 302.
B. Dismissal of Juror 12
Fattah, joined by Vederman, Brand, and Nicholas,
strongly contends that the District Court committed reversible
error by dismissing Juror 12. “We review the dismissal of a
juror for cause for abuse of discretion.” Kemp, 500 F.3d at 303.
That deferential standard compels us to affirm.
12
Our cases do not suggest that a trial judge confronted with
allegations that a jury’s deliberations are being obstructed by
one of its members should always resort to interviewing jurors.
Reinstructing the jury on its duty to deliberate will often be the
better course at the first sign of trouble. Mere disagreement
among jurors—even spirited disagreement—is no ground for
intervention. Furthermore, intrusive or leading questions about
the deliberative process may work against the twin goals of
protecting that process and ensuring that jurors remain faithful
to their oaths. We share the Eleventh Circuit’s preference of
“err[ing] on the side of too little inquiry as opposed to too
much.” United States v. Oscar, 877 F.3d 1270, 1287 (11th Cir.
2017) (quoting United States v. Augustin, 661 F.3d 1105, 1133
(11th Cir. 2011)).
55
Rule 23(b) of the Federal Rules of Criminal Procedure
permits a trial court to excuse a deliberating juror for good
cause. See id. (citing Fed. R. Crim. P. 23(b)). Good cause exists
where a juror refuses to apply the law, refuses to follow the
court’s instructions, refuses to deliberate with his or her fellow
jurors, or demonstrates bias. See Kemp, 500 F.3d at 305–06;
United States v. Oscar, 877 F.3d 1270, 1287 (11th Cir. 2017);
Thomas, 116 F.3d at 617. Good cause does not exist when there
is reasonable but sustained disagreement about how a juror
views the evidence. The courts of appeals are emphatic that
trial courts “may not dismiss a juror during deliberations if the
request for discharge stems from doubts the juror harbors about
the sufficiency of the government’s evidence.” Kemp, 500 F.3d
at 303 (quoting United States v. Brown, 823 F.2d 591, 596
(D.C. Cir. 1987)); see also Oscar, 877 F.3d at 1287 (same);
United States v. Symington, 195 F.3d 1080, 1087 (9th Cir.
1999); Thomas, 116 F.3d at 622.
To reinforce a defendant’s right to a unanimous jury, we
have adopted a high standard for juror dismissal. Kemp, 500
F.3d at 304 & n.26. “[D]istrict courts may discharge a juror for
bias, failure to deliberate, failure to follow the district court’s
instructions, or jury nullification when there is no reasonable
possibility that the allegations of misconduct stem from the
juror’s view of the evidence.” Id. at 304 (emphasis added). This
“no reasonable possibility” standard is “by no means lax.” Id.
Rather, “[i]t corresponds with the burden for establishing guilt
in a criminal trial.” Id.
We first applied this standard in Kemp, but have not had
occasion to do so since. There, the evidence supporting the
district court’s removal decision was “overwhelming.” 500
F.3d at 304. Ten jurors separately and consistently reported
56
that a juror was improperly biased, and did so only after three
rounds of questioning and careful and correct instructions from
the district court as to the distinction between appropriate
skepticism and impermissible bias. Id. at 304–05; see id. at
275–76 (district court’s instruction). The testimony also
showed that the juror in question refused to deliberate or to
discuss the evidence with her fellow jurors. Id. at 305.
Whether the evidence of misconduct in this case is as
strong as that in Kemp is beside the point. After only four hours
of deliberations, Juror 12 stated unequivocally to the
courtroom deputy that he was “going to hang” the jury, and
that it would be “11 to 1 no matter what.” JA5981–82
(emphasis added). These statements, coupled with the District
Court’s finding that Juror 12 lacked credibility, provided a
sufficient basis for Juror 12’s dismissal.
As grounds for excusing Juror 12, the District Court
found that he refused to deliberate in good faith, “delayed,
disrupted, impeded, and obstructed the deliberative process
and had the intent to do so,” JA5995, and that he was “intent
on . . . hanging this jury no matter what the law is, no matter
what the evidence is.” Id. The District Court determined from
this that Juror 12 had violated his oath as a juror and that no
further instructions or admonitions could rehabilitate the juror.
Id. The District Court based these findings on personal
observation, including Juror 12’s words and demeanor, and
making the specific finding that Juror 12 was not credible. That
finding is amply supported by the record.
In United States v. Abbell, 271 F.3d 1286, 1303 (9th Cir.
2001), the Ninth Circuit recognized that “the demeanor of the
pertinent juror is important to juror misconduct
57
determinations” because the “juror’s motivations and
intentions are at issue.” That court emphasized, as we do, that
a district judge is best situated to assess the demeanor of a
juror. Id. Here, Juror 12 stated he could not recall putting his
hand on another juror’s shoulder, while his fellow jurors’
testimony was consistent on this point. Juror 12 also failed, at
first, to recall his troubling statements to the courtroom deputy
despite having made those statements only the previous
afternoon. When questioned a second time and asked directly
about the statements, he admitted to saying that he would hang
the jury but claimed he could not “really remember” saying “no
matter what” the day before. JA5989–90. Juror 12’s spotty
recollection of the previous day’s events further supports the
District Court’s finding that he was not credible.
Fattah argues that the credibility determination was not,
by itself, a sufficient reason to dismiss the juror because the
record demonstrates more than a reasonable possibility that the
complaints about his conduct stemmed from Juror 12’s own
view of the Government’s case. Fattah Reply Br. 11; Fattah Br.
25, 28. Fattah claims that the District Court abused its
discretion by dismissing Juror 12 “on the basis of, in effect, six
words the juror purportedly said to the court’s deputy after he
was verbally attacked by other jurors.” Fattah Br. 24.
According to Fattah, the questioning of the other jurors
“confirmed that there were no legitimate grounds for removing
juror 12.” Id. at 26. We conclude otherwise.
“A district court’s finding on the question whether a
juror has impermissibly refused to participate in the
deliberation process is a finding of fact to which appropriate
deference is due.” Baker, 262 F.3d at 130. While district courts
must apply a high standard for juror dismissal, their underlying
58
findings are afforded considerable deference on appeal. Kemp,
500 F.3d at 304 (citing Abbell, 271 F.3d at 1302–03). We will
reverse only if the decision to dismiss a juror was “without
factual support, or for a legally irrelevant reason.” Abbell, 271
F.3d at 1302 (citation omitted).
Here, the District Court had a legitimate reason for
removing Juror 12. Refusal to deliberate constitutes good cause
for dismissal. Although the judge did not expressly articulate
the Kemp standard when he announced that he would dismiss
Juror 12, he did acknowledge the “no reasonable possibility”
standard in his discussion with counsel. The unmistakable
import of the District Court’s statement from the bench is that
there was no reasonable possibility that Juror 12’s
intransigence was based on his view of the evidence. See
Oscar, 877 F.3d at 1288 n.16.
Fattah contends that there is no record support for the
finding that Juror 12 said “he was going to hang this jury no
matter what.” Fattah Br. 29. To be sure, the courtroom deputy’s
testimony is not that Juror 12 used the words “hang this jury”
and “no matter what” in the same sentence. She testified that
Juror 12 first stated “I am going to hang this jury,” then later
stated “it is going to be 11 to 1 no matter what.” JA5981–82.
This is a distinction without a difference. Likewise, Fattah
challenges the District Court’s finding that Juror 12 was
determined to hang the jury “no matter what the law is” and
“no matter what the evidence is.” Fattah Br. 29. Although there
is no evidence that Juror 12 uttered the phrases “no matter what
the law is” or “no matter what the evidence is,” the District
Court was describing the import of Juror 12’s statements. This
was not error.
59
Fattah expresses the concern that “[i]f jurors are asked
the right questions or interrogated long enough, it would not be
difficult for a trial court to elicit testimony from [a] majority
[of] jurors that can be held up as evidence of a dissenting
juror’s bias or refusal to deliberate.” Fattah Br. 22. He also
worries that a group of jurors might have an incentive to rid
themselves of a juror who holds a different view. Id. These are
valid concerns—but no basis existed for such concerns in this
case. Juror 12’s own words provided most of the support for
his eventual dismissal. Furthermore, his statements were made
early in the deliberations, in a complex case, before any juror
could reasonably be expected to have reached final verdicts on
the twenty-nine counts before the jury.
The able District Judge did not err in finding that Juror
12 refused to deliberate and therefore violated his oath.
IV. The District Court’s Instructions Under McDonnell
On appeal, Fattah and Vederman renew their challenge
to the jury instructions given on Counts 3, 16, 17, 18, 22, and
23, concerning the meaning of the term “official act” as used
in the bribery statute (pursuant to which both were convicted)
and the honest services fraud statute (pursuant to which Fattah
alone was convicted).
In light of the Supreme Court’s opinion in McDonnell
v. United States, 136 S. Ct. 2355 (2016), released the week
after the jury verdict, the District Court conceded that its
instructions were incomplete and erroneous, at least as to
Counts 16–18. Nevertheless, the District Court held that the
erroneous jury instructions had not influenced the verdict on
the bribery counts, and declined to set aside Fattah and
60
Vederman’s convictions. As to Counts 16–18 and 22–23, we
disagree, and will reverse the District Court’s judgment. The
District Court’s judgment with respect to Count 3, which did
not involve Vederman, will be affirmed. JA78–79.
A. The McDonnell Framework
In McDonnell, the Supreme Court interpreted the term
“official act” as defined in 18 U.S.C. § 201(a)(3). 136 S. Ct. at
2368. The statute defines an “official act” as “any decision or
action on any question, matter, cause, suit, proceeding or
controversy, which may at any time be pending, or which may
by law be brought before any public official, in such official’s
official capacity, or in such official’s place of trust or profit.”
18 U.S.C. § 201(a)(3). The McDonnell Court distilled this
definition into two requirements:
First, the Government must identify a “question,
matter, cause, suit, proceeding or controversy”
that “may at any time be pending” or “may by
law be brought” before a public official. Second,
the Government must prove that the public
official made a decision or took an action “on”
that question, matter, cause, suit, proceeding, or
controversy, or agreed to do so.
136 S. Ct. at 2368. Applying this two-step test to Governor
Robert McDonnell’s convictions, the Supreme Court
concluded that “the jury was not correctly instructed on the
meaning of ‘official act,’ ” and as a result, “may have convicted
Governor McDonnell for conduct that is not unlawful.” Id. at
2375. Given that uncertainty, the Court “[could not] conclude
that the errors in the jury instructions were ‘harmless beyond a
61
reasonable doubt.’ ” Id. (quoting Neder v. United States, 527
U.S. 1, 16 (1999)). The Supreme Court, therefore, vacated
Governor McDonnell’s convictions. Id.
McDonnell lays out a clear path for the Government to
follow in proving that an accused has performed an “official
act.” First, the Government must “identify a ‘question, matter,
cause, suit, proceeding or controversy’ that ‘may at any time
be pending’ or ‘may by law be brought’ before a public
official.” 136 S. Ct. at 2368 (quoting 18 U.S.C. § 201(a)(3)).
This first step is divided into two sub-components. In Step
1(A), the Government must “identify a ‘question, matter,
cause, suit, proceeding or controversy.’ ” Id. Step 1(B) then
clarifies that the identified “question, matter, cause, suit,
proceeding or controversy” be one that “ ‘may at any time be
pending’ or ‘may by law be brought’ before a public official.”
Id.
Under Step 1(A), a “question, matter, cause, suit,
proceeding or controversy” must be “a formal exercise of
governmental power that is similar in nature to a lawsuit before
a court, a determination before an agency, or a hearing before
a committee.” Id. at 2372. Importantly, “a typical meeting,
telephone call, or event arranged by a public official” does not
qualify as such a formal exercise of governmental power. Id. at
2368.
Step 1(B) then requires us to ask whether the qualifying
“question, matter, cause, suit, proceeding or controversy” was
one that “ ‘may at any time be pending’ or ‘may by law be
brought’ before a public official.” Id. As the McDonnell Court
clarified, “ ‘[p]ending’ and ‘may by law be brought’ suggest
something that is relatively circumscribed—the kind of thing
62
that can be put on an agenda, tracked for progress, and then
checked off as complete.” Id. at 2369; accord United States v.
Repak, 852 F.3d 230, 252 (3d Cir. 2017) (quoting McDonnell,
136 S. Ct. at 2369). By contrast, matters described at a high
level of generality—for example, “[e]conomic development,”
“justice,” and “national security”—are not sufficiently
“focused and concrete.” McDonnell, 136 S. Ct. at 2369.
In McDonnell, the Court concluded that at least three
questions or matters identified by the Fourth Circuit were
sufficiently focused:
(1) whether researchers at any of Virginia’s state
universities would initiate a study of [a drug];
(2) whether the state-created Tobacco
Indemnification and Community Revitalization
Commission would allocate grant money for the
study of [a chemical compound]; and
(3) whether the health insurance plan for state
employees in Virginia would include [a specific
drug] as a covered drug.
Id. at 2370 (internal quotations omitted) (quoting United States
v. McDonnell, 792 F.3d 478, 515–16 (4th Cir. 2015)). We
provided guidance in the form of a fourth example in Repak,
when we held that a redevelopment authority’s awarding of
contracts was “a concrete determination made by the
[redevelopment authority’s] Board of Directors.” 852 F.3d at
253.
Step 2 requires the Government to prove that the public
official made a “decision” or took “an action” on the identified
“question, matter, cause, suit, proceeding or controversy.”
63
McDonnell, 136 S. Ct. at 2368. The McDonnell Court
explained:
Setting up a meeting, hosting an event, or calling
an official (or agreeing to do so) merely to talk
about a research study or to gather additional
information . . . does not qualify as a decision or
action on the pending question of whether to
initiate the study. Simply expressing support for
the research study at a meeting, event, or call—
or sending a subordinate to such a meeting,
event, or call—similarly does not qualify as a
decision or action on the study, as long as the
public official does not intend to exert pressure
on another official or provide advice, knowing or
intending such advice to form the basis for an
“official act.”
Id. at 2371. The Court further clarified:
If an official sets up a meeting, hosts an event, or
makes a phone call on a question or matter that
is or could be pending before another official,
that could serve as evidence of an agreement to
take an official act. A jury could conclude, for
example, that the official was attempting to
pressure or advise another official on a pending
matter. And if the official agreed to exert that
pressure or give that advice in exchange for a
thing of value, that would be illegal.
Id.
64
Here, Fattah was charged with engaging in three
categories of official acts, which we analyze in accordance
with the McDonnell framework. In Counts 16–18 and 22–23,
Fattah is alleged to have set up a meeting between Vederman
and the U.S. Trade Representative, attempted to secure
Vederman an ambassadorship, and hired Vederman’s
girlfriend, all in return for a course of conduct wherein
Vederman provided things of value to Fattah.
In this case, as in McDonnell, the jury instructions were
erroneous. We conclude that the first category of the charged
acts—setting up a meeting between Vederman and the U.S.
Trade Representative—is not unlawful, and that the second
category—attempting to secure Vederman an
ambassadorship—requires reconsideration by a properly
instructed jury. The third charged act—hiring Vederman’s
girlfriend—is clearly an official act. But because we cannot
isolate the jury’s consideration of the hiring from the first two
categories of charged acts, we must reverse and remand the
judgment of the District Court.
B. The Kirk Meeting
We turn first to Fattah’s scheduling of a meeting
between Vederman and the U.S. Trade Representative, Ron
Kirk. Under McDonnell, “setting up a meeting . . . does not,
standing alone, qualify as an ‘official act.’ ” 136 S. Ct. at 2368.
Fattah’s setting up the meeting between Vederman and Kirk
was therefore not an official act, a concession implicit in the
Government’s opening brief. See Gov’t Br. 32 (failing to
mention the Kirk meeting as one of the “two categories” of
allegedly “official acts”). But the jury was not properly
instructed on this point. Without the benefit of the principles
65
laid down in McDonnell, the jury was free to conclude that
arranging the Kirk meeting was an official act—and it may
have done so. The District Court’s erroneous jury instructions,
therefore, cannot survive harmless error review.
In a footnote in its brief to this Court, the Government
argues that evidence about the Kirk meeting was offered only
“because it established the strength of Vederman’s desire to be
an ambassador” and not because the Government was
attempting to establish the meeting as an independent official
act. Id. at79–80 n.6. But the record undercuts the
Government’s post hoc justification.
The indictment, provided to the jury in redacted form
for use in its deliberations, lists Fattah’s setting up the Kirk
meeting as an official act under the heading “FATTAH’s
Official Acts for VEDERMAN.” JA494. Under this heading
are three distinct subheadings: (1) “The Pursuit of an
Ambassadorship,” (2) “The Pursuit of Another Executive
Branch Position,” and (3) “Hiring the Lobbyist’s Girlfriend to
the Congressional Staff.” JA494–95. The second subheading,
“The Pursuit of Another Executive Branch Position,” describes
the arrangement of the Kirk meeting. Quite clearly, then, this
three-part structure demonstrates that setting up the Kirk
meeting was one of three distinct categories of official acts
alleged by the Government.
Although there is some support for the Government’s
argument that evidence of the Kirk meeting was presented at
trial only to establish the extent of Vederman’s interest in
becoming an ambassador, JA827, 852–53 (mentioning the
Kirk meeting in close proximity to references to Fattah’s
attempts to secure Vederman an ambassadorship), it is
66
undermined by language in the redacted indictment itself, and
by the way in which the Government presented its case at trial
as a “pattern” of connected acts.
The redacted indictment, for example, refers to the Kirk
meeting as “The Pursuit of Another Executive Branch
Position.” JA495 (emphasis added). The use of the word
“Another” strongly suggests that evidence about the Kirk
meeting was not merely evidence of Fattah’s attempt to secure
Vederman an ambassadorship, but was also evidence of a
separate and distinct attempt to secure Vederman a position on
a federal trade-related commission. The redacted indictment
also notes that “[i]n or around May 2011, with little progress
made on securing an ambassadorship for VEDERMAN,
FATTAH turned towards obtaining for VEDERMAN an
appointment in the Executive Branch to a federal trade
commission.” Id. (emphasis added). The words “turned
towards,” taken literally, clearly convey that arranging the Kirk
meeting was presented as distinct from Fattah’s efforts to
secure Vederman an ambassadorship.
The District Court denied Fattah and Vederman a new
trial on Counts 17 and 18, referring to evidence of the Kirk
meeting as “de minimis” and noting that “Kirk’s testimony
during this lengthy trial lasted a mere sixteen minutes.” JA97
n.14. In the District Court’s view, evidence of the Kirk meeting
“played no role in the outcome” of the case. Id. Considering
the record in light of McDonnell, we are not so sure.
Although it is possible that evidence of the Kirk meeting
played a minor role at trial when compared to the other acts on
which the Government presented evidence, the redacted
indictment suggests that the Kirk meeting was a significant part
67
of the Government’s case. The indictment dedicates five
paragraphs to describing the Kirk meeting, but just three
paragraphs to describing the hiring of Vederman’s girlfriend—
a hiring that, as we explain below, is clearly an official act.
JA495–96. While neither the number of minutes used at trial
nor the number of paragraphs contained in an indictment is a
dispositive unit of measurement for determining the
significance of evidence, we conclude that the District Court’s
erroneous jury instructions pertaining to the Kirk meeting were
not harmless.
We conclude, in accordance with McDonnell, that
Fattah’s arranging a meeting between Vederman and the U.S.
Trade Representative was not itself an official act. Because the
jury may have convicted Fattah for conduct that is not
unlawful, we cannot conclude that the error in the jury
instruction was harmless beyond a reasonable doubt, and we
must vacate and remand the convictions of Fattah and
Vederman as to Counts 16, 17, 18, 22 and 23.
C. Fattah’s Efforts to Secure Vederman an
Ambassadorship
The nature of Fattah’s efforts to secure Vederman an
ambassadorship is less clear, and presents a closer question
than the Kirk meeting. We ultimately conclude that the
question warrants remand so that it may be answered by a
properly instructed jury. On remand, the jury must decide
whether Fattah’s conduct constituted a “decision” or “action”
under Step 2 of the McDonnell analysis.
At the outset, it is clear to us that, under Steps 1(A) and
1(B), a formal appointment of Vederman as an ambassador
68
would qualify as a “matter” that “may at any time be pending”
before a public official. The formal appointment of a particular
person (Vederman), to a specific position (an ambassadorship),
constitutes a matter that is sufficiently focused and concrete.
The formal appointment of an ambassador is a matter that is
“pending” before the President—the constitutional actor
charged with nominating ambassadors—as well Senators, who
are charged with confirming the President’s ambassadorial
nominations. U.S. Const. art. II § 2 (“[H]e shall nominate, and
by and with the Advice and Consent of the Senate, shall
appoint Ambassadors . . . .”). It is beyond cavil that the formal
appointment of an ambassador satisfies both sub-components
of McDonnell’s Step 1.
Turning to Step 2, we consider whether Fattah’s efforts
to secure Vederman an ambassadorship qualify as making a
“decision” or taking “an action” on the identified “matter” of
appointment. McDonnell, 136 S. Ct. at 2368. Although those
efforts—three emails, two letters, and one phone call—do not
themselves qualify as a “question, matter, cause, suit,
proceeding, or controversy” under McDonnell’s Step 1, they
may nonetheless qualify as the making of a “decision” or
taking “an action” on the identified matter of appointment. Id.
McDonnell’s Step 2 requires us to determine whether
Fattah’s efforts qualify as permissible attempts to “express[]
support,” or impermissible attempts “to pressure or advise
another official on a pending matter.” Id. at 2371. At trial, the
jury was not instructed that they had to place Fattah’s efforts
on one side or the other of this divide. The jury might even
have thought they were permitted to find Fattah’s efforts—
three emails, two letters, and one phone call—to themselves be
official acts, rather than a “decision” or “action” on the
69
properly identified matter of appointment. Such a
determination would have been contrary to the dictates of
McDonnell.
Faced with such uncertainty, we cannot assume the jury
verdict was proper. Although the jury might not have
concluded that Fattah’s efforts were themselves official acts,
and although the jury might not have concluded that those
efforts crossed the line into impermissible attempts “to
pressure or advise,” we are unable to conclude that the jury
necessarily did so. Nor can we, on the cold record before us,
determine whether Fattah’s efforts to secure Vederman an
ambassadorship crossed the line. Determining, for example,
just how forceful a strongly worded letter of recommendation
must be before it becomes impermissible “pressure or advice”
is a fact-intensive inquiry that falls within the domain of a
properly instructed jury. Should the Government elect to retry
these counts after remand, the finder of fact will need to decide
whether Fattah’s efforts constituted permissible attempts to
“express[] support,” or impermissible attempts “to pressure or
advise another official on a pending matter.” Id.
D. The Zionts Hiring
The third group of acts charged in the Fattah–Vederman
scheme involves Fattah’s decision to hire Vederman’s
girlfriend, Alexandra Zionts, as a congressional staffer. We
conclude that the hiring was an official act. A brief analysis of
McDonnell’s two steps suffices to show why this is so.
Here, under McDonnell’s Step 1(A), the relevant
“matter” is the decision to hire Zionts. Step 1(B) of the analysis
is satisfied because the hiring decision was “pending” before
70
Fattah himself. And that hiring was “focused and concrete,”
“within the specific duties of an official’s position—the
function conferred by the authority of his office.” Id. at 2369.
Finally, McDonnell’s Step 2 requires that the “Government . . .
prove that the public official made a decision or took an action
‘on’ [the identified] question, matter, cause, suit, proceeding,
or controversy, or agreed to do so.” Id. at 2368. Fattah’s
decision to hire Zionts clearly satisfies that requirement. We
therefore conclude that the hiring of Zionts was an official act
under McDonnell.
Vederman concedes that the Zionts hiring was an
official act. Oral Argument Transcript at 5–6. Fattah, for his
part, maintains that “hiring someone for a routine, part-time,
short-term position falls well outside [the] definition [of
‘official act’] and is nothing like a lawsuit, agency
determination, or committee hearing, even if each shares the
happenstance that federal funds will be used.” Fattah Reply Br.
25.
Fattah’s argument lacks traction. Official acts need not
be momentous decisions—or even notable ones. Judges, for
example, make “routine” evidentiary rulings every day, and yet
it is beyond question that those rulings are official acts. In the
realm of official acts, it is of no moment that Zionts provided
only “part-time, short term” labor. When a public official hires
an employee to work in his government office, he has engaged
in an official act.
* * *
If we could conclude that the Zionts hiring was the only
category of actions that the jury relied on when it found that
71
Fattah performed an official act under Counts 16–18 and 22–
23, remand would not be necessary. But, as we have explained,
we cannot rule out that the jury erroneously convicted Fattah
and Vederman based on other actions that were not official acts
under McDonnell. 13
The Government argues that because the Zionts hiring
was an official act, the effect of the erroneous jury instructions
could be no more than harmless. The jury’s verdict, the
Government contends, permits us to deduce that the jury
necessarily concluded the Zionts hiring was an official act, and
that this conclusion alone supported Fattah’s and Vederman’s
convictions as to Counts 16–18 and 22–23—regardless of
whether the jury erroneously found any unofficial acts to be
official acts. We disagree.
Fattah and Vederman objected to the definition of
“official act” at trial. We thus apply the harmless error standard
13
More specifically, the incomplete, and therefore erroneous,
instructions could have led the jury to commit at least one of
three mistakes. First, the jury could have improperly convicted
Vederman and Fattah based on the Kirk meeting alone, or
misunderstood the Kirk meeting to be a necessary component
of an impermissible “pattern” of official acts. Second, the jury
might have concluded that Fattah’s efforts to secure Vederman
an ambassadorship were themselves official acts. Third, the
jury might have concluded that Fattah’s efforts to secure
Vederman an ambassadorship were merely attempts to
“express[] support,” rather than to “exert pressure . . . or
provide advice,” but nonetheless erroneously concluded that
those expressions of support were official acts. McDonnell,
136 S. Ct. at 2371.
72
of review. McDonnell, 136 S. Ct. at 2375. The Government
argues that because the jury convicted Fattah and Vederman of
illegally laundering the proceeds of a “scheme to commit
bribery” under Count 23, the jury found that the scheme must
have encompassed only the Zionts hiring. JA531.That would
mean that the jury did not conclude that the “scheme to commit
bribery” included any acts that McDonnell now makes clear
were unofficial. Yet the redacted indictment, jury instructions,
and the fact that the Government presented its case under a
“pattern” theory at trial compel us to reject the Government’s
argument.
The very first sentence under Count 23 of the redacted
indictment incorporates all three categories of “Overt Acts”
contained within paragraphs “58 through 95 of Count One.” 14
All three of these categories fall under a general heading within
the redacted indictment titled “The Bribery and Fraud Scheme
[redacted].” JA494. The jury had before it instructions for
Count 23 which referred to “the alleged bribery scheme
involving an $18,000 payment,” JA448 (emphasis added), and
the redacted indictment which referred to “a scheme to commit
bribery,” JA531 (emphasis added). The parallel language could
well lead a rational jury to conclude that the relevant “scheme”
included all three categories of acts listed under the general
heading: “The Bribery and Fraud Scheme [redacted].” JA494
(emphasis added).
14
JA531. Paragraphs 58 through 95 of Count 1 refer to the
three categories of allegedly official acts discussed above:
(1) “The Pursuit of an Ambassadorship,” (2) “The Pursuit of
Another Executive Branch Position,” and (3) the “Hiring of the
Lobbyist’s Girlfriend to the Congressional Staff.” JA494–95.
73
Like the redacted indictment and jury instructions, the
Government’s trial arguments referred to patterns and a course
of conduct, and stressed that the jury need not connect specific
payments to particular official acts. In its closing argument to
the jury, the Government stated that the alleged “scheme took
place over a period of several years. Over and over again
you’re going to see the same pattern.” JA5383 (emphasis
added). Then, in its rebuttal argument, the Government went
out of its way to explicitly distinguish its “pattern” theory from
an alternative theory that would have directly connected
individual payments to individual acts. As the prosecutor
argued to the jury:
Ms. Recker appears to argue that each thing of
value must coincide with some specific official
act, but that is not the law and that is not what
Judge Bartle is going to instruct you. Instead
what he will tell you is that the government is not
required to prove that Vederman intended to
influence Fattah to perform a set number of
official acts in return for things of value so long
as the evidence shows a course of conduct of
giving things of value, things of value to Fattah
in exchange for a pattern of official acts
favorable to Vederman. In other words a stream
of benefits. These for those, not this for that.
JA5715–16 (emphases added). In closing to the jury, the
Government made several other references to this “pattern”
74
theory, 15 and the District Court referred to this “pattern” theory
in its instructions to the jury. As Judge Bartle instructed:
[I]t is not necessary for the government to prove
that a defendant intended to induce a public
official to perform a number of official acts in
return for things of value.
So as long as the evidence shows a course
of conduct of giving things of value to a public
official in exchange for a pattern of official acts
favorable to the giver.
JA5833–34 (emphasis added). On appeal, the Government
changes course, asking us to assume that the jury ignored these
repeated references to a “pattern of official acts” and instead
considered the Zionts hiring and Vederman’s $18,000 payment
to Fattah as an isolated quid pro quo. This is an invitation to
speculate, and we decline to do so. 16 The jury began its
15
See, e.g., JA5389 (“And the exchange of an official act for a
thing of value is called a bribe. There’s the pattern. Fattah
needs money, Vederman gets an official act.”); JA 5393
(“That’s why you see the pattern over and over again. Fattah
needs money, Vederman gets an official act.”); JA5400 (“The
same pattern we saw over and over again. Fattah needs money,
Vederman gets an official act.”); JA5409 (“[Y]ou know that
these were bribes because of the pattern you saw over and over
and over again. Fattah needs money, Vederman gets an official
act, that makes these things a bribe.”).
16
Providing some support to the Government’s ultimately
unconvincing argument that the jury considered the Zionts
hiring and $18,000 payment in isolation, we note that the
redacted indictment does mention those two events side-by-
75
deliberations accompanied by a copy of the redacted
indictment which alleged a pattern of official acts, consisting
of any combination of three categories of acts: pursuing an
ambassadorship, arranging the Kirk meeting, and hiring
Zionts. In light of the erroneous instructions, and because only
one category clearly qualifies as an “official act,” the jury’s
deliberations were fraught with the potential for McDonnell
error. We will vacate the convictions of Fattah and Vederman
as to Counts 16, 17, 18, 22, and 23, and remand to the District
Court.
E. Vederman’s Sufficiency Challenge to Counts 16–18 and
22–23
Vederman argues that there is insufficient evidence to
support a conviction, even if a jury were properly instructed
under McDonnell. Specifically, Vederman argues that there is
insufficient evidence to convict him and Fattah, after remand,
side in paragraph 78 of the indictment’s Part V. JA497 (“On
January 13, 2012, VEDERMAN wired $18,000 to FATTAH,
and six days later, on January 19, 2012, BOWSER emailed
VEDERMAN’s girlfriend, A.Z., welcoming her as a new
employee to FATTAH’s Congressional Staff.”). But although
paragraph 78 mentions the $18,000 wire transfer and the Zionts
hiring in the same breath, paragraph 78 does not instruct the
jury to connect these two events apart from the rest of the
evidence presented at trial. In light of the other instructions and
arguments indicating that the jury should not consider the
Zionts hiring in isolation, but instead should consider the hiring
as one part of a three-part scheme, paragraph 78 is not
sufficient to avoid a reversal and remand on the convictions of
Fattah and Vederman as to Counts 16–18 and 22–23.
76
on Counts 16–18 and 22–23 because “[a]t least seven of the
eight alleged ‘official acts’ were, as a matter of law, not official
at all.” Vederman Br. 35. As to the single act that Vederman
implicitly concedes to be an official act—the Zionts hiring—
Vederman argues that “[t]he only thing that even arguably
associates” the Zionts hiring with Vederman was its timing in
relation to Vederman’s sham purchase of the Fattahs’ Porsche.
Id. According to Vederman, “the undisputed chronology
precludes any inference that Vederman conferred this benefit
on his friend as an illegal bribe.” Id. (emphasis omitted).
Vederman is wrong. Sufficient evidence was produced at trial
to have allowed a properly-instructed jury to convict Fattah and
Vederman of Counts 16–18 and 22–23.
To begin with, even if the Zionts hiring had been the
sole official act to survive this Court’s interpretation of
McDonnell, there would still be sufficient evidence to convict
Fattah and Vederman. Zionts did not receive written notice of
her official hiring until six days after the sham Porsche
purchase. Moreover, the jury would not be restricted to
considering the chronology of the sham purchase alone. It
would be free to consider Vederman’s entire course of conduct.
Under the general heading “VEDERMAN’S Payments and
Things of Value to FATTAH,” the redacted indictment not
only refers to the $18,000 wire transaction from Vederman to
Fattah as part of the sham Porsche purchase, but also to
Vederman’s $3,000 payment for the college tuition of Simone
Muller, Fattah’s live-in au pair, as well as thousands of dollars
in payments made by Vederman for Chip Fattah’s college
tuition. JA496–97.
And the Zionts hiring is not the only act to survive our
application of McDonnell. As we explained, a jury could find
77
that Fattah’s efforts to secure Vederman an ambassadorship—
three emails, two letters, and a phone call—were an
impermissible attempt to “pressure or advise” President
Obama, Senator Casey, or both men. 17 This means that a
properly instructed jury on remand, presented with evidence of
Fattah’s efforts to secure an ambassadorship for Vederman and
17
Although Fattah’s efforts to secure Vederman an
ambassadorship present a jury question that is not for us to
answer on appeal, we note that not one of these efforts alone
could qualify as an official act itself. See McDonnell, 136 S.
Ct. at 2372 (“Setting up a meeting, talking to another official,
or organizing an event (or agreeing to do so)—without more—
does not fit that definition of ‘official act.’ ”). The relevant
question for a jury to consider on remand, then, is whether
these actions constituted “a ‘decision or action’ on a different
question or matter”—to wit, the formal appointment of an
ambassador. Id. at 2369 (emphasis omitted).
Even though the emails, letters, and phone call are not,
individually, official acts, it will be for a jury to decide if
Fattah’s efforts to secure an ambassadorship for Vederman
crossed the line from permissible “support” to impermissible
“pressure or advice.” While we express doubt that some of
Fattah’s efforts concerning the ambassadorship are, when
considered in isolation, enough to cross that line, a properly
instructed jury considering all of the facts in context might
nonetheless conclude that other efforts—such as a hand-
delivered letter to the President of the United States—indeed
crossed that line. Further, a jury might find that in the
aggregate, three emails, two letters, and a phone call crossed
the line and therefore constituted a “decision or action” on the
identified matter of appointment.
78
evidence of the Zionts hiring, could find more than a single
official act.
F. Blue Guardians
In addition to the charges arising from his dealings with
Vederman, Fattah was charged in Count 3 with participating in
a scheme with Lindenfeld to funnel money to a fraudulent
nonprofit organization. In connection with this scheme, Fattah
was convicted of conspiring to commit honest services fraud.
Fattah owed Lindenfeld nearly $100,000 for work
performed on Fattah’s 2007 mayoral campaign. In lieu of
repayment, Fattah suggested that Lindenfeld create an entity,
later named Blue Guardians, to which Fattah would direct
$15,000,000 in public funds by using his position as a member
of the House Committee on Appropriations. Nothing in
McDonnell requires us to upset Fattah’s conviction on Count
3.
Step 1(A) of our McDonnell analysis requires the
Government to “identify a ‘question, matter, cause, suit,
proceeding or controversy.’ ” 136 S. Ct. at 2368. Here, the
“matter” is the appropriation of millions of dollars in public
funds. See Repak, 852 F.3d at 253–54 (holding the awarding of
redevelopment funds to be an official act). In particular, it was
Fattah’s promise to perform this official act that was unlawful.
As McDonnell makes clear:
[A] public official is not required to actually
make a decision or take an action on a “question,
matter, cause, suit, proceeding or controversy”;
it is enough that the official agree to do so. The
79
agreement need not be explicit, and the public
official need not specify the means that he will
use to perform his end of the bargain.
136 S. Ct. at 2370–71 (internal citations omitted). That Fattah
took steps to actually carry out his promise (e.g., by drafting
and sending a formal appropriations request on official
congressional letterhead) is evidence of his illegal promise. See
id. at 2371.
Step 1(B) requires the Government to establish that the
“ ‘question, matter, cause, suit, proceeding or controversy’ . . .
‘may at any time be pending’ or ‘may by law be brought’
before a public official.” McDonnell, 136 S. Ct. at 2368.
Appropriating public funds was not only a matter that was
pending before Fattah as a member of the Appropriations
Committee, it was also a matter that was pending before the
Chairman and Ranking Member of an Appropriations
Subcommittee to whom Fattah ultimately sent a formal written
request. See id. at 2369 (“[T]he matter may be pending either
before the public official who is performing the official act, or
before another public official.”). Appropriating millions of
dollars in response to the Blue Guardians request is “focused
and concrete,” and “the kind of thing that can be put on an
agenda, tracked for progress, and then checked off as
complete.” Id.
Given Fattah’s membership on the Appropriations
Committee, this was “something within the specific duties of
an official’s position—the function conferred by the authority
of his office.” Id. Even if we were to assume, against all reason,
that an appropriation is not “something within the specific
duties” of either Fattah or the Chairman or Ranking Member
80
of an Appropriations Subcommittee, Fattah’s formal request
for an appropriation was something that Fattah had the
authority to do. Like the Executive Director in Repak, who
lacked authority himself to award redevelopment funds but
could request such funds from the Board, Fattah used his
position as a Congressman to formally request appropriations
for the Blue Guardians. 852 F.3d at 254 (“Repak had the power
to, and indeed did, make recommendations to the
[redevelopment authority.
Step 2 of McDonnell requires the Government to “prove
that the public official made a decision or took an action ‘on’
that question, matter, cause, suit, proceeding, or controversy,
or agreed to do so.” 136 S. Ct. at 2368 (emphasis added). Here,
Fattah agreed to request an appropriation for a bogus purpose.
Unlike Fattah’s letters, emails, and phone call seeking an
ambassadorship for Vederman, there is no potential for the jury
to have made a mistake when it found Fattah’s Blue Guardians
promise unlawful.
Fattah argues that the Government presented “[n]o
evidence . . . that would have allowed [the jury] to conclude
that [he] made a decision or took an action, or could have done
so, on the question whether Blue Guardians would receive a
$15 million federal grant.” Fattah Br. 46. This argument misses
the point. It was Fattah’s agreement to engage in the official
act of formally requesting the appropriation that was illegal.
See McDonnell, 136 S. Ct. at 2371.
Lindenfeld’s trial testimony provided sufficient
evidence of Fattah’s illegal agreement. JA1694–96, 1954.
Fattah’s letter provided additional evidence from which the
jury could have concluded that Fattah illegally agreed to
81
perform an official act. 18 In short, the agreement itself was
illegal, and the Government provided sufficient evidence for
the jury to conclude that the illegal agreement took place.
The Government’s evidence in support of the Blue
Guardians scheme meets the requirements of McDonnell, and
the Count 3 verdict will stand.
V. Sufficiency of the Evidence for the RICO Conspiracy
Conviction
The jury found Fattah, Vederman, Brand, and Nicholas
guilty of the RICO conspiracy charged in Count 1 of the
indictment, but acquitted Bowser. Vederman filed a post-
verdict motion, and the District Court overturned his RICO
conspiracy conviction.
On appeal, Fattah, Brand, and Nicholas challenge the
sufficiency of the evidence supporting their RICO conspiracy
convictions. We “review[] the sufficiency of the evidence in
the light most favorable to the government and must credit all
available inferences in favor of the government.” United States
v. Riddick, 156 F.3d 505, 509 (3d Cir. 1998). If a rational juror
could have found the elements of the crime beyond a
reasonable doubt, we must sustain the verdict. United States v.
Cartwright, 359 F.3d 281, 286 (3d Cir. 2004), abrogated on
18
Despite Fattah’s protestation to the contrary, there is
evidence that Fattah took steps to carry out his official act.
JA6432–33 (Letter from Congressman Fattah to House
Appropriations Subcommittee members “request[ing] funding
and support for the following projects and programs of critical
importance,” including $3,000,000 for “Blue Guardians”).
82
other grounds by United States v. Caraballo-Rodriguez, 726
F.3d 418 (3d Cir. 2013) (en banc).
The indictment charged a RICO conspiracy in violation
of 18 U.S.C. § 1962(d), which makes it “unlawful for any
person to conspire to violate” § 1962(c). Section 1962(c)
provides:
It shall be unlawful for any person . . . associated
with any enterprise engaged in, or the activities
of which affect, interstate . . . commerce, to
conduct or participate, directly or indirectly, in
the conduct of such enterprise’s affairs through a
pattern of racketeering activity . . . .
18 U.S.C. § 1962(c).
In Salinas v. United States, 522 U.S. 52 (1997), the
defendant was convicted of a § 1962(d) RICO conspiracy, but
a jury acquitted him of the substantive RICO offense under
§ 1962(c). Id. at 55. The Supreme Court rejected Salinas’s
contention that his conviction had to be set aside because he
had neither committed nor agreed to commit the two predicate
acts required for the § 1962(c) offense. Id. at 66. The Court
declared that liability for a RICO conspiracy under § 1962(d),
“unlike the general conspiracy provision applicable to federal
crimes,” does not require proof of an overt act. Id. at 63. A
conspiracy may be found, the Court explained, “even if a
conspirator does not agree to commit or facilitate each and
every part of the substantive offense. The partners in the
criminal plan must agree to pursue the same criminal objective
and may divide up the work, yet each is responsible for the acts
of each other.” Id. at 63–64 (citations omitted). This means
83
that, if a plan “calls for some conspirators to perpetrate the
crime and others to provide support, the supporters are as guilty
as the perpetrators.” Id. at 64. Thus, opting into and
participating in a conspiracy may result in criminal liability for
the acts of one’s co-conspirators. Smith v. Berg, 247 F.3d 532,
537 (3d Cir. 2001).
Accordingly, liability for a RICO conspiracy may be
found where the conspirator intended to “further an endeavor
which, if completed, would satisfy all of the elements of a
substantive criminal offense, but it suffices that he adopt the
goal of furthering or facilitating the criminal endeavor.”
Salinas, 522 U.S. at 65. Because the substantive criminal
offense here was conducting a § 1962(c) enterprise, the
government had to prove:
(1) that two or more persons agreed to conduct
or to participate, directly or indirectly, in the
conduct of an enterprise’s affairs through a
pattern of racketeering activity; (2) that the
defendant was a party to or member of that
agreement; and (3) that the defendant joined the
agreement or conspiracy knowing of its
objective to conduct or participate, directly or
indirectly, in the conduct of an enterprise’s
affairs through a pattern of racketeering activity.
United States v. John-Baptiste, 747 F.3d 186, 207 (3d Cir.
2014).
In United States v. Turkette, 452 U.S. 576 (1981), the
Supreme Court instructed that an enterprise is a “group of
persons associated together for a common purpose of engaging
84
in a course of conduct.” Id. at 583. The government can prove
an enterprise “by evidence of an ongoing organization, formal
or informal, and by evidence that the various associates
function as a continuing unit.” Id. In Boyle v. United States,
556 U.S. 938 (2009), the Supreme Court established that an
“association-in-fact enterprise must have at least three
structural features: a purpose, relationships among those
associated with the enterprise, and longevity sufficient to
permit these associates to pursue the enterprise’s purpose.” Id.
at 946. The structure necessary for a § 1962(c) enterprise is not
complex. Boyle explained that an enterprise
need not have a hierarchical structure or a “chain
of command”; decisions may be made on an ad
hoc basis and by any number of methods—by
majority vote, consensus, a show of strength, etc.
Members of the group need not have fixed roles;
different members may perform different roles at
different times. The group need not have a name,
regular meetings, dues, [or] established rules and
regulations . . . .While the group must function
as a continuing unit and remain in existence long
enough to pursue a course of conduct, nothing in
RICO exempts an enterprise whose associates
engage in spurts of activity punctuated by
periods of quiescence.
Id. at 948.
Another element of a substantive § 1962(c) RICO
enterprise is that the enterprise must conduct its affairs through
a pattern of racketeering activity. Section 1961 defines
racketeering activity to include various criminal offenses,
85
including wire fraud, 18 U.S.C. § 1344, and obstruction of
justice, 18 U.S.C. § 1511. See 18 U.S.C. § 1961(1). A pattern
of such activity “requires at least two acts of racketeering
activity.” Id. § 1961(5). The racketeering predicates may
establish a pattern if they “related and . . . amounted to, or
threatened the likelihood of, continued criminal activity.” H.J.
Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 237 (1989).
Here, the District Court denied the post-trial sufficiency
arguments raised by Fattah, Brand, and Nicholas. It reasoned:
For a RICO conspiracy to exist, the
conspirators must agree to participate in an
enterprise with a unity of purpose as well as
relationships among those involved. The
evidence demonstrates that an agreement among
Fattah, Brand, Nicholas, Lindenfeld, and Naylor
existed for the overall purpose of maintaining
and enhancing Fattah as a political figure and of
preventing his standing from being weakened by
the failure to be able to pay or write down his
campaign debts. These five persons agreed to
work together as a continuing unit, albeit with
different roles.
The Government established that Fattah,
Brand, and Nicholas conspired along with
Naylor and Lindenfeld to conceal and repay the
2007 illegal $1,000,000 loan to the Fattah for
Mayor campaign.
JA128–29. The District Court further determined that
86
[w]hile each member may not have been
involved in every aspect of the enterprise, its
activities were sufficiently structured and
coordinated to achieve the purpose of
maintaining and enhancing Fattah’s political
standing and of preventing him from being
weakened politically because of his campaign
debts.
A RICO conspiracy also requires an
agreement to participate in an enterprise with
longevity sufficient to pursue its purpose. This
was established. In May 2007 the illegal loan
was obtained and continued through its
repayment in January 2008 and into at least 2014
when the last campaign report reducing a fake
campaign debt to Naylor’s consulting firm was
filed by Fattah.
JA131.
The defendants argue that the evidence is insufficient to
show either an enterprise for purposes of § 1962(c) or an
agreement as required for a § 1962(d) conspiracy. We disagree,
and conclude that the District Court’s analysis is on the mark.
We begin by considering whether there was an
agreement. The evidence showed that Fattah knew each
member involved in the scheme to conceal the unlawful
campaign loan. When Lindenfeld learned of the $1 million
loan, he informed Fattah that it exceeded campaign finance
limits. In short, the transaction was unlawful, and the two knew
it. The transaction nonetheless went forward, disguised as a
loan, with Lindenfeld executing the promissory note as
87
Strategies’ officer and obligating Strategies to repay Lord $1
million. The concealment efforts continued as Lindenfeld
funneled a substantial portion of the loan proceeds to Naylor
for get-out-the-vote efforts. After the losing campaign,
Lindenfeld spoke with Fattah and Naylor about accounting for
the funds that had been spent. They decided not to include the
amounts in the FFM campaign reports. Fattah instructed
Naylor to prepare a fictitious invoice, and Naylor complied.
The FFM campaign reports filed from 2008 to 2014 disclosed
nothing about the unlawful $1 million loan. Instead, they
falsely showed that Naylor’s consulting firm made yearly in-
kind contributions of $20,000 in debt forgiveness, when in
reality there was no debt to forgive.
As Lindenfeld fretted over repaying the $600,000
balance of the Lord loan, Naylor assured him that Fattah had
promised to take care of the repayment. And the evidence
supports an inference that Fattah recruited both Nicholas and
Brand in doing so. As EAA’s director, Nicholas could fund the
repayment. Brand, through his company, Solutions, acted as
the middleman: he received the payment from EAA pursuant
to a fictitious contract, and then forwarded the balance due to
Strategies pursuant to yet another fictitious contract. Nicholas
and Brand continued in the spring and summer of 2008 to hide
the fictitious agreement and the $600,000 payment to
Lindenfeld to satisfy the Lord loan.
In short, this evidence shows that Fattah, Lindenfeld,
Naylor, Brand, and Nicholas all agreed to participate in
Fattah’s plan to conceal the unlawful campaign loan to
maintain his political stature. Nicholas and Brand claim that
they had no knowledge of the false campaign reporting aspect
of the plan. But as Salinas instructs, conspirators need not
88
“agree to commit or facilitate each and every part of the”
conspiracy. 522 U.S. at 63. Rather, they “must agree to pursue
the same criminal objective and may divide up the work, yet
each [be] responsible for the acts of each other.” Id. at 63–64.
Thus, a conspirator may agree to “facilitate only some of the
acts leading to the substantive offense” yet still be criminally
liable. Id. at 65.
The evidence showed that a substantial amount of
money was needed to repay Lord, and that the source of the
repayment was EAA, a non-profit organization whose funds
could be spent only for purposes consistent with the terms of
the grants it received. It also showed that Nicholas was
presented with a sham contract to legitimize the EAA–
Solutions transaction. We conclude that the evidence is
sufficient to support an inference that Nicholas knew at the
start that the plan was unlawful. Yet she still agreed to provide
the requisite funds and to play a role in concealing the illegal
campaign loan so that Fattah could maintain his political
stature.
As to Brand, even if he did not know that false campaign
reports were being filed, the evidence is sufficient to show he
played a key role in the enterprise. From the outset, Brand
worked to disguise the repayment of the Lord loan as the
consideration in a sham contract between EAA and Solutions.
He then arranged for the transfer of funds to Strategies in
satisfaction of a contractual term in another purported business
agreement between Solutions and Strategies. The evidence
reveals that Brand was the point man in the effort to meet the
January 31, 2008 deadline to repay the Lord loan, and it amply
shows that Brand also agreed to participate in the plan to hide
89
the illegal campaign loan and its repayment to benefit Fattah
politically.
Fattah, Brand, and Nicholas attack their RICO
conspiracy convictions on another front. They argue that those
verdicts should be set aside because the evidence fails to show
that the various schemes alleged in the indictment as part of the
RICO conspiracy are connected. The RICO count, they assert,
charges a hub-and-spoke conspiracy that is unconnected by a
rim. In their view, Fattah is the hub, and the spokes consist of
a series of independent schemes: the Vederman bribery
scheme, the payment of the outstanding tuition debt of Fattah’s
son Chip, the Blue Guardians plan, and the repayment of the
illegal Lord loan to maintain Fattah’s political stature. They
argue that, without a unifying rim, their actions cannot
constitute an enterprise. Again, we disagree.
In In re Insurance Brokerage Antitrust Litigation, 618
F.3d 300 (3d Cir. 2010), we concluded, in analyzing one of
plaintiffs’ RICO claims, that the alleged hub-and-spoke
enterprise—comprised of broker hubs and insurer spokes—
could not withstand a motion to dismiss because it did not have
a unifying rim. Id. at 374. We explained that the allegations did
“not plausibly imply concerted action—as opposed to merely
parallel conduct—by the insurers, and therefore cannot provide
a ‘rim’ enclosing the ‘spokes’ of these alleged ‘hub-and-spoke’
enterprises.” Id. Thus, the allegations did not “adequately plead
an association-in-fact enterprise” because the hub-and-spoke
conspiracy failed to “function as a unit.” Id.
That is not the case here. The evidence showed that
Fattah, Brand, and Nicholas agreed to conceal the illegal Lord
loan. Each acted for the common purpose of furthering Fattah’s
90
political interests. In short, they engaged in concerted activity
and functioned as a unit. The jury convicted Fattah, Brand, and
Nicholas of the RICO conspiracy based on the racketeering
activity of wire fraud and obstruction of justice to conceal the
unlawful transaction. Because the evidence shows that Fattah,
Lindenfeld, Naylor, Brand, and Nicholas agreed to protect
Fattah’s political status by acting to maintain the secrecy of the
unlawful Lord loan, the alleged lack of a unifying “rim” is not
fatal to this RICO enterprise. What matters in analyzing the
structure of this enterprise is that it functioned as a unit. Boyle,
556 U.S. at 945; In re Ins. Brokerage Antitrust Litig., 618 F.3d
at 374. That “basic requirement” was met. Id.
We turn next to the contention that the evidence fails to
establish other components of an enterprise. We conclude that
much of the evidence supporting the existence of an agreement
also shows that there was an association-in-fact enterprise.
Boyle made clear that an association-in-fact enterprise
must have “a purpose, relationships among those associated
with the enterprise, and longevity sufficient to permit these
associates to pursue the enterprise’s purpose.” 556 U.S. at 946.
The purpose, as we have repeatedly observed, was to maintain
and preserve Fattah’s political stature by concealing the illegal
loan and its repayment. Though informal, there were
relationships among those associated with the enterprise.
Fattah was at the center of this association and he directed its
activity. He knew each of the association’s members, and the
91
members knew each other (except, perhaps, for Nicholas, who
may not have known Lindenfeld). 19
The Government also adduced sufficient proof of the
longevity component required for an enterprise. The scheme
began in mid-2007, when Lord made the campaign loan,
directing the proceeds of the loan to Strategies. From the
outset, Fattah, Lindenfeld, and Naylor all knew they needed to
conceal this illegal transaction. They began by fabricating an
explanation for the source of the funds they spent on election
day. SLA created a fake invoice for the campaign, showing a
fictitious debt that Naylor could later forgive by fictitious in-
kind contributions existing only on Fattah’s campaign finance
reports.
The effort to disguise the Lord loan was not limited to
filing false campaign reports. Nicholas and Brand, who joined
the conspiracy a few months later than the other members,
understood that they too had to make the fraudulent $600,000
payment by EAA to Solutions appear legitimate. Nicholas and
Brand tried to disguise the sham contract as an ordinary
transaction (even though it called for a six-figure upfront
payment simply to support Solutions’ various projects), and
19
Nicholas’s lack of familiarity with Lindenfeld does not
undermine her membership in this association-in-fact
enterprise. We have previously explained that “[i]t is well-
established that one conspirator need not know the identities of
all his co-conspirators, nor be aware of all the details of the
conspiracy in order to be found to have agreed to participate in
it.” United States v. Riccobene, 709 F.2d 214, 225 (3d Cir.
1983), abrogated on other grounds by Griffin v. United States,
502 U.S. 46 (1991).
92
they succeeded in keeping it out of the DOJ auditors’ view until
August 2008. The ruse continued as Solutions funneled the
$600,000 payment to Strategies under the guise of another
sham contract (which also required an upfront six-figure
payment). The scheme then continued as Fattah submitted false
FFM campaign reports from 2008 through 2014.
Finally, we consider whether the enterprise conducted
its affairs through a pattern of racketeering activity, as required
for a § 1962(c) enterprise. Wire fraud and obstruction of justice
may constitute “racketeering activity” under § 1961(1). As the
Supreme Court instructed in H.J. Inc., the “multiple predicates
within a single scheme” must be related and “amount[] to, or
threaten[] the likelihood of, continued criminal activity.” 492
U.S. at 237. Here, the amount of the illegal loan to be concealed
was substantial. The enterprise needed to write off the fictitious
debt to Naylor’s consulting firm, and it was urgent that both
the EAA–Solutions contract and the Solutions–Strategies
contract be legitimized. We conclude the evidence was
sufficient to establish that this enterprise conducted its affairs
through a pattern of racketeering activity and that the predicate
acts of wire fraud and obstruction of justice were related. The
racketeering activity furthered the goals of maintaining the
secrecy of this $1 million illicit campaign loan and of
preserving Fattah’s political stature.
Nicholas contends that the evidence fails to establish a
pattern of racketeering activity because the actions to which
she agreed did not “extend[] over a substantial period of time”
as H.J. Inc. requires. 492 U.S. at 242. That case indeed instructs
that the continuity requirement of a pattern is a “temporal
concept,” and that “[p]redicate acts extending over a few
weeks or months” do not satisfy the continuity concept. Id. But
93
the Supreme Court explained that continuity may also be
established by showing that there is a “threat of continued
racketeering activity.” Id. Here, the course of fraudulent
conduct undertaken to secure and to conceal the $1 million
Lord loan consisted of the creation of sham debts, fictitious
contracts, and false accounting entries over the course of about
a year. But because Fattah needed to appear able to retire his
campaign debt, the enterprise needed to continue filing false
campaign reports for several years, allowing the annual
$20,000 in-kind debt forgiveness contributions to appear to
satisfy Naylor’s fake $193,000 invoice. That evidence was
sufficient to establish the requisite threat of continued criminal
activity. See H.J. Inc., 492 U.S. at 242–43.
We conclude that the Government met its burden in
proving that Fattah, Brand, and Nicholas 20 engaged in a RICO
conspiracy in violation of § 1962(d).
20
Nicholas also asserts, in passing, that that her conviction
under § 1962(d) should be set aside because that statutory
provision is unconstitutionally vague as applied to her.
According to Nicholas, a person of ordinary intelligence would
not know that her actions constituted an agreement to
participate in a RICO enterprise. See United States v.
Pungitore, 910 F.2d 1084, 1104–05 (3d Cir. 1990). To the
contrary, a person of ordinary intelligence, who had been
employed by a prominent politician and then became the CEO
of a nonprofit organization which that politician had founded
(and, to some extent, continued to direct), would realize that
agreeing to participate with others in hiding an unlawful
campaign loan of $1 million could constitute an unlawful
RICO conspiracy.
94
VI. Variance from the Indictment and Sufficiency of the
Evidence for Count 2
Brand and Nicholas challenge their convictions for
conspiracy to commit wire fraud by arguing that the
Government’s evidence at trial impermissibly varied from the
indictment. Nicholas also challenges the sufficiency of the
evidence to support her conviction for conspiracy to commit
wire fraud. We address these contentions together. 21
Count 2 of the indictment alleged a single conspiracy.
JA277–79. Brand and Nicholas assert that the Government’s
evidence at trial did not support the existence of a single
conspiracy but instead showed two independent conspiracies,
only one of which involved the two of them. According to
Brand and Nicholas, the only conspiracy with which they were
involved ended more than five years before the Government
charged them. That would mean that all their conduct falls
outside the five-year limitations period for wire fraud
conspiracy under 18 U.S.C. § 3282.
“A conviction must be vacated when (1) there is a
variance between the indictment and the proof presented at trial
and (2) the variance prejudices a substantial right of the
defendant.” Kemp, 500 F.3d at 287 (quoting United States v.
Kelly, 892 F.2d 255, 258 (3d Cir. 1989)). We see no variance,
and will affirm the District Court.
21
In her briefing, Nicholas discusses variance in far less detail
than Brand, so we refer primarily to Brand’s arguments. See
Nicholas Br. 54–56. Her variance arguments fail for the same
reasons that Brand’s fail.
95
A variance exists “if the indictment charges a single
conspiracy while the evidence presented at trial proves only the
existence of multiple conspiracies.” Id. “We must determine
‘whether there was sufficient evidence from which the jury
could have concluded that the government proved the single
conspiracy alleged in the indictment.’ ” Id. (quoting Kelly, 892
F.2d at 258). Viewing the record in the light most favorable to
the Government, we consider three factors: (1) “whether there
was a common goal among the conspirators”; (2) “whether the
agreement contemplated bringing to pass a continuous result
that will not continue without the continuous cooperation of
the conspirators”; and (3) “the extent to which the participants
overlap in the various dealings.” Id. (quoting Kelly, 892 F.2d
at 259).
Brand argues that the Government failed to establish a
common goal among the conspirators. To determine whether
the conspirators shared a common goal, “we look to the
underlying purpose of the alleged criminal activity” in a fairly
broad sense. United States v. Rigas, 605 F.3d 194, 214 (3d Cir.
2010) (en banc). In Rigas, we described the common goal of
the defendants as “enriching [themselves] through the plunder
of [their corporate employer],” id., and we have similarly
articulated the common goal in fairly general terms elsewhere.
See United States v. Greenidge, 495 F.3d 85, 93 (3d Cir. 2007)
(“There was certainly evidence of a common goal among these
co-conspirators: to make money by depositing stolen and
altered corporate checks into business accounts.”); Kelly, 892
F.2d at 259 (“[T]he common goal of all the participants was
simply to make money selling ‘speed.’ ”). Importantly, a
common goal may exist even when “conspirators individually
or in groups perform different tasks in pursuing the common
96
goal,” and a single conspiracy may “attract[] different
members at different times” or “involve[] different sub-groups
committing acts in furtherance of the overall plan.” United
States v. Boyd, 595 F.2d 120, 123 (3d Cir. 1978).
Here, the indictment described the purpose of the
unified conspiracy in Count 2 at length:
It was a purpose of the conspiracy to obtain an
illegal campaign loan and to fraudulently repay
that loan with hundreds of thousands of dollars
of misappropriated charitable funds from Sallie
Mae and federal grant funds from NASA which
were intended for educational purposes.
. . . . It was further a purpose of the
conspiracy to present FATTAH to the public as
a perennially viable candidate for public office
who honored his obligations to his creditors and
was able to retire his publicly reported campaign
debts.
. . . . It was further a purpose of the
conspiracy to promote FATTAH’s political and
financial goals through deception by concealing
and protecting the conspirators’ activities from
detection and prosecution by law enforcement
officials and the federal judiciary, as well as from
exposure by the news media, through means that
included obstruction of justice and the
falsification of documents, including Campaign
Finance Reports, false invoices, contracts, and
other documents and records.
97
JA277–78, ¶¶ 3–5.
Brand characterizes the evidence at trial as establishing
two distinct conspiracies. The first he labels the “diversion of
funds scheme,” covering the misappropriation of funds by
Nicholas, Brand, Lindenfeld, and Fattah to repay the Lord loan.
Brand Br. 34. Brand calls the second conspiracy the “CFR
scheme,” in which Fattah and Naylor filed the false campaign
finance reports showing Naylor gradually forgiving a non-
existent debt. Id.
Brand argues that the only goal of the CFR scheme was
to cover up how the funds from the illegal campaign loan were
spent, a goal he distinguishes from that of the diversion of
funds scheme, which he characterizes as a plan to cover up the
repayment of the loan with stolen funds. He also argues that
the evidence does not establish he was involved in, or even
aware of, the false campaign finance reports filed by Fattah. In
Brand’s view, that necessarily means the evidence showed two
separate conspiracies.
In considering these arguments, we begin by noting that
one conspiracy can involve multiple subsidiary schemes.
Rigas, 605 F.3d at 214. It is true that the false campaign finance
reports, in the narrowest sense, had the specific purpose of
covering up how the illegal loan funds were used during the
election. But the false campaign finance reports were also filed
in furtherance of a broader goal shared by the conspirators
involved in repayment of the Lord loan. They sought to
promote Fattah’s political and financial goals by preserving his
image as a viable candidate and making him appear able to
repay or otherwise service his campaign debts without
resorting to illegal means in doing so. The two subsidiary
98
schemes worked in concert in furtherance of this overarching
goal, and both were directed at covering up how the loan was
truly repaid. The “diversion of funds scheme” hid the illegal
(but real) loan repayment through the use of fake contracts; the
“CFR scheme” showed the seemingly legal (but fake) loan
forgiveness installments through the creation of fake invoices
and campaign finance reports. The existence of two
concealment schemes acting in concert does not undermine the
unity of the conspiracy of which they were both a part. We
have no difficulty concluding that the false campaign finance
reports and the concealed use of stolen funds to repay the Lord
loan operated together in furtherance of a common goal.
As for Brand’s argument that he was unaware of the
false campaign finance reports and therefore could not be a part
of any conspiracy involving them, it is well-settled that “each
member of the charged conspiracy is liable for the substantive
crimes his coconspirators commit in furtherance of the
conspiracy even if he neither participates in his co-
conspirators’ crimes nor has any knowledge of them.” United
States v. Bailey, 840 F.3d 99, 112 (3d Cir. 2016) (citing
Pinkerton v. United States, 328 U.S. 640 (1946)). The
exceptions to that rule allow a defendant to escape liability for
a co-conspirator’s crime if: (1) “the substantive offense
committed by one of the conspirators was not in fact done in
furtherance of the conspiracy,” (2) “the substantive offense
committed by one of the conspirators ‘did not fall within the
scope of the unlawful project,’ ” or (3) “the substantive offense
committed by one of the conspirators ‘could not be reasonably
foreseen as a necessary or natural consequence of the unlawful
agreement.’ ” Id. (quoting Pinkerton, 328 U.S. at 647–48).
There was, as we have concluded, a unity of purpose between
99
the co-conspirators to further Fattah’s political and financial
goals by secretly obtaining and repaying an illegal campaign
loan with stolen funds. The filing of false campaign reports
does not fit within any of the recognized exceptions to co-
conspirator liability, as it was in furtherance of the
conspiracy’s shared goal, within the scope of the agreement to
conceal the loan, and foreseeable to Brand and Nicholas.
Neither Brand nor Nicholas briefed the other two
factors we consider when determining whether the evidence
impermissibly varied from the evidence, “whether the
agreement contemplated bringing to pass a continuous result
that will not continue without the continuous cooperation of
the conspirators,” and “the extent to which the participants
overlap in the various dealings.” Kemp, 500 F.3d at 287
(quoting Kelly, 892 F.2d at 258). The unified goal of promoting
Fattah’s political career and maintaining secrecy surrounding
the illegal loan and the misappropriated funds used to repay it
required the continuous cooperation of the conspirators.
Indeed, the efforts of several of them overlapped in every
aspect of the scheme. And Lindenfeld and Fattah were, at a
minimum, involved in some way in nearly every aspect of the
origination of the loan, the false campaign finance reports, and
the use of misappropriated funds to repay the loan. For his part,
Naylor was involved in the use of the funds, the false campaign
finance reports, and to a lesser extent, the repayment of the
loan.
Brand (as part of his variance argument) and Nicholas
(as part of her sufficiency argument) argue that the
Government did not prove they agreed to conceal their actions,
and thus the false campaign reports would not be sufficient to
extend the duration of the conspiracy so that it fell within the
100
statute of limitations. Acts of concealment, such as the false
campaign reports, are not automatically “in furtherance” of a
conspiracy. We must determine whether there was “an express
original agreement among the conspirators to continue to act
in concert in order to cover up, for their own self-protection,
traces of the crime after its commission,” as opposed to “a
conspiracy to conceal . . . being implied from elements which
will be present in virtually every conspiracy case, that is,
secrecy plus overt acts of concealment.” Grunewald v. United
States, 353 U.S. 391, 404 (1957). If the indictment
“specifically alleges a continuing conspiracy” to conceal the
crime after the completion of the wire fraud, and such a
conspiracy can be proven, the statute of limitations does not
begin to run until the last overt act of concealment. United
States v. Moses, 148 F.3d 277, 282 (3d Cir. 1998).
Here, the evidence shows that the conspirators
expressly agreed to conceal the loan and its repayment. As an
initial matter, Brand’s only role in the conspiracy was to cover
up the use of stolen funds by (1) serving as an intermediary
between Nicholas and Lindenfeld; and (2) agreeing to create
false documentation (the contracts) with both EAA and
Strategies for the sole purpose of disguising the payments and
covering up the wire fraud conspiracy. Nicholas could simply
have paid Lindenfeld herself (or paid Lord) if she and Brand
had not agreed to conceal the crime from the start.
Additionally, and as Brand acknowledges, the false campaign
finance reports began before the loan was repaid, proving that
concealment of the crime was contemplated and begun as a
direct purpose of the conspiracy before Brand and Nicholas
became involved in the repayment. Nicholas too agreed to
conceal the repayment, as she implicitly acknowledged in her
101
emails with Brand and Fattah. GSA2. Finally, when Lindenfeld
briefly strayed from the conspiracy’s commitment to secrecy
by mentioning the repayment in front of others who did not
know of the scheme, Brand became “angry,” “took
[Lindenfeld] out in the hallway,” and chastised him, saying that
“[Lindenfeld] couldn’t say that sort of []thing” in front of other
people. JA1670–71. We conclude that the evidence is
consistent with the allegations in the indictment, which charge
a single conspiracy consisting of an original agreement to
conceal the illegal loan and its subsequent illegal repayment to
further Fattah’s political career.
Nicholas makes several arguments in passing. She
suggests that the District Court upheld the conviction after trial
“on a theory not submitted to the jury.” Nicholas Br. 51. This
argument is, essentially, that the indictment and the District
Court’s post-trial ruling described the conspiracy one way, but
that the jury charge described the conspiracy differently.
Nicholas argues that the jury was presented with the theory that
the sole purpose of the false campaign reports under Count 2
was to “conceal[] the alleged scheme to defraud,” JA5849,
rather than to support Fattah’s political career, as the District
Court described the purpose after trial, see JA74.
Nicholas ignores that part of the jury charge which
instructed that Count 2 required a finding “[t]hat two or more
persons agreed to commit wire fraud as charged in the
indictment.” JA5845 (emphasis added). The jury had access to
the indictment, and as Nicholas points out, Nicholas Br. 45–
46, the indictment outlines the offense in the same way the
District Court later described it in its post-trial ruling. The
District Court consistently described the count, and we see no
reversible error.
102
Nicholas also argues that the conspiracy charged in
Count 2 has an objective—“to ‘present Fattah’ as ‘perennially
viable’ ”—and that such an objective is not illegal. Nicholas Br.
53. But, of course, the jury was not instructed that it was illegal
to be a Fattah supporter, or even to work on his campaign. The
jury was charged specifically on the crime of wire fraud.
We conclude that there was no impermissible variance
between the indictment and the Government’s evidence at trial,
and that there was sufficient evidence to support the
convictions. We will affirm the convictions of Brand and
Nicholas for conspiracy to commit wire fraud under Count 2.
VII. The District Court’s Instruction to the Jury on the
Meaning of Intent
Nicholas contends that the District Court improperly
instructed the jury by using the disjunctive rather than the
conjunctive at one point in its definition of intent. When
providing its final charge to the jury, the District Court
explained:
Certain of the offenses charged in the
indictment require that the government prove
that the charged defendant acted intentionally or
with intent. This means that the government
must prove either that (1), it was the defendant’s
conscious desire or purpose to act in a certain
way or to cause a certain result; or (2), the
defendant knew that he or she was acting in that
way or it would be practically certain to cause
that result.
103
JA5787 (emphasis added). According to Nicholas, an accurate
definition of intent required that the final “or” be an “and.”
Nicholas argues that this was an error so grievous as to
“effectively eliminate[] the intent element from each offense
of conviction.” 22 Nicholas Br. 26.
Our review of whether a jury instruction stated the
proper legal standard is plenary. United States v. Petersen, 622
F.3d 196, 207 n.7 (3d Cir. 2010). At trial, Nicholas failed to
object to this portion of the jury charge. Accordingly, our
review must be for plain error. See United States v. Flores-
Mejia, 759 F.3d 253, 258 (3d Cir. 2014) (en banc).
To prevail on plain error review, Nicholas must
establish that there was an error, that it was plain (i.e., clear
22
The Comment to Third Circuit Model Criminal Jury
Instruction 5.03 makes clear that the definition of intent
encapsulates both “specific intent” (acting “purposely” or with
“conscious object”) and “general intent” (acting “knowingly”
or “with awareness”). Although Nicholas describes the alleged
error as “essentially eliminating” the element of intent, we
think Nicholas’s argument is better understood as a claim that
the instruction given could have permitted a jury to conclude
that she acted with only general intent (that she was aware of
what she was doing), when her crimes require specific intent
(that she had an illegal purpose). As her brief states, “[p]lainly
she ‘knowingly’ wrote checks from EAA to [Solutions] and
made record entries about them; the question was whether she
intended to defraud EAA and NASA, or to obstruct justice, by
doing so.” Nicholas Br. 24. We cannot agree with her
characterization that the instruction resulted in the “effective
omission” of the intent element from the jury instructions.
104
under current law), and that it affected her substantial rights
(i.e., whether there is a reasonable likelihood that the jury
applied the challenged instruction in an impermissible
manner). United States v. Olano, 507 U.S. 725, 733–34 (1993);
United States v. Dobson, 419 F.3d 231, 239–40 (3d Cir. 2005).
If these requirements are met, we may then exercise our
discretion to address the error, but only if we conclude that the
error seriously affected the fairness, integrity, or public
reputation of the judicial proceeding. United States v. Andrews,
681 F.3d 509, 517 (3d Cir. 2012) (quoting Johnson v. United
States, 520 U.S. 461, 467 (1997)). A failure to instruct the jury
on a necessary element of an offense ordinarily constitutes
plain error, unless the instructions as a whole otherwise make
clear to the jury all the necessary elements of the offense.
United States v. Stimler, 864 F.3d 253, 270 (3d Cir. 2017).
Nicholas acknowledges, as she must, that the instruction
given was a verbatim recitation of Instruction 5.03 of the Third
Circuit’s Model Criminal Jury Instructions. She nonetheless
contends that our Model Instruction is erroneous. Even if we
were to accept Nicholas’s contention that the instruction is
incorrect, a proposition we consider as highly doubtful, see
Petersen, 622 F.3d at 208 (“We have a hard time concluding
that the use of our own model jury instruction can constitute
error . . . .”), we conclude that, considering the instructions as
a whole, the District Court clearly and specifically instructed
the jury on the intent element as it applied to each of Nicholas’s
charged crimes.
The disputed intent instruction was given at the
beginning of the final charge, explaining the general meaning
105
of the intent applicable to “[c]ertain of the offenses charged.” 23
JA5787. The District Court went on to instruct the jury in
specific detail on the elements of each of the crimes of which
Nicholas was accused, explaining also the intent element of
each. 24 See JA5791 (describing the third element of the RICO
conspiracy charge as: “the particular defendant and at least one
23
The introductory definition did not end with the language
Nicholas cites. The District Court elaborated that acting in
good faith is a complete defense to the charges:
The offenses charged in the indictment
require proof that the charged defendants acted
with criminal intent. If you find that a defendant
acted in good faith that would be a complete
defense to such a charge, because good faith on
the part of the defendant would be inconsistent
with his or her acting knowingly, willfully,
corruptly, or with intent to defraud or intent to
impede, obstruct, or wrongfully influence.
JA5788–89 (emphasis added). This instruction undermines
Nicholas’s claim that the jury could have reasonably concluded
that she “ ‘knowingly’ wrote checks” but did not “intend[] to
defraud . . . or to obstruct justice[] by doing so,” Nicholas Br.
24, as this instruction leaves little room for doubt that good
faith is at odds with “criminal intent.”
24
Nicholas did not object to the knowledge and intent
instructions when the District Court discussed each of the
individual charges, and does not identify a disagreement with
any specific instruction on any particular charge.
106
other alleged conspirator shared a unity of purpose and the
intent to achieve the objective of conducting or participating in
the conduct of an enterprise’s affairs through a pattern of
racketeering activity”); JA5823 (regarding wire fraud,
instructing that the government must prove “[t]hat the
defendant under consideration acted with the intent to
defraud”); JA5838–39 (regarding obstruction of justice,
instructing that the defendant must have acted “with the intent
to impair the record, document, or object’s integrity or
availability for use in an official proceeding,” and must have
acted corruptly “with the purpose of wrongfully impeding the
due administration of justice”); JA5860 (explaining that
falsification of records requires that “the defendant under
consideration acted with the intent to impede, obstruct or
influence the investigation or proper administration of a
matter”). These instructions are consistent with both our Model
Jury Instructions and our case law concerning the elements of
these crimes. See Third Circuit Model Criminal Jury
Instruction 6.18.1962D (RICO), 6.18.1343 (wire fraud),
6.18.1512A2 (obstruction of justice); United States v.
Sussman, 709 F.3d 155, 168 (3d Cir. 2013) (obstruction of
justice); United States v. Moyer, 674 F.3d 192, 208–09 (3d Cir.
2012) (falsification of records); United States v. Pelullo
(Pelullo I), 964 F.2d 193, 216 (3d Cir. 1992) (wire fraud).
The District Court also provided a separate definition of
the knowledge element of each charge, illustrating the
difference between knowledge and intent. See JA5793
(explaining that the evidence must show that a RICO defendant
“knowingly agreed to facilitate or further a course of conduct,
which if completed would include a pattern of racketeering
activity”); JA5823 (wire fraud means that the defendant
107
“knowingly devised a scheme to defraud a victim . . . by
materially false or fraudulent pretenses”); JA5860
(falsification of records has as an element “[t]hat the defendant
under consideration knowingly concealed, covered up,
falsified or made false entries in a document or record”). These
instructions made clear that knowledge and intent are separate
considerations, undermining Nicholas’s contention that the
jury was led to believe that “knowledge is sufficient to prove
intent.” Nicholas Br. 24.
The District Court provided each member of the jury
with more than 100 pages of instructions before deliberations
began. Viewing those instructions as a whole, we are satisfied
that the jury was apprised of the correct meaning of intent as
an element of the crimes with which Nicholas was charged, as
well as the distinction between knowledge and intent. We
perceive no error, much less error that is plain, in the District
Court’s instructions to the jury. 25
VIII. Sending the Indictment to the Jury
At trial, Vederman, Nicholas, and Brand objected to the
District Court’s decision to give the jury a redacted copy of the
indictment to use during its deliberations. Only Nicholas and
Brand raise this issue on appeal. In Nicholas’s view, sending
the indictment to the jury unfairly prejudiced her because it
contained unsupported allegations that she had obstructed
federal agencies and referred to a nonexistent certification
requirement for Sallie Mae funds. Brand argues that he was
25
Accordingly, we need not consider the merits of Nicholas’s
argument that Model Criminal Jury Instruction 5.03 is
erroneous.
108
prejudiced by the indictment’s references to “schemes” and
“fake” contracts, and because it mentioned Brand’s spouse and
that she was a former member of Fattah’s congressional staff.
Nicholas and Brand together assert that the indictment
included legal theories on which the jury was not instructed.
They contend that the indictment’s narrative of the
Government’s case set out a roadmap that omitted any
averments relating to the defense theory and allowed the
Government to yet again present its case. To buttress that
argument, Nicholas and Brand cite the testimony of Juror 12,
who described the jury’s initial deliberations and alleged that
the jurors viewed the indictment as evidence.
In United States v. Todaro, 448 F.2d 64, 66 (3d Cir.
1971), we held that the decision to allow “jurors to have a copy
of the indictment with them during their deliberations . . . is a
matter within the discretion of the District Judge, subject to a
limiting instruction that the indictment does not constitute
evidence, but is an accusation only.” Subsequently, in United
States v. Pungitore, 910 F.2d 1084, 1142 n.83 (3d Cir. 1990),
we acknowledged that the District Court has the power to
redact the indictment if doing so would be appropriate to avoid
prejudice to the defendant. See also United States v. Roy, 473
F.3d 1232, 1237 n.2 (D.C. Cir. 2007) (noting that court may
redact an indictment before submitting it to the jury).
While both Nicholas and Brand objected in general
terms to the District Court’s decision to provide the indictment
to the jury, they have not directed us to any specific request to
redact the information they now claim is prejudicial. And the
District Court provided a limiting instruction on four occasions
during its charge, repeatedly emphasizing that the indictment
was not evidence. JA5765, 5767, 5782, 5880. The Court
109
instructed the jury on its duty to base its verdict “solely upon
the evidence in the case.” JA5764. Just before the jury retired
to deliberate, the Court reiterated that the purpose of the
indictment is to set forth the charges, and that it is “merely an
accusation.” JA5909.
“[J]uries are presumed to follow their instructions . . . .”
Richardson v. Marsh, 481 U.S. 200, 211 (1987). In our view,
Juror 12’s assertion that the indictment was being considered
evidence does not, standing alone, establish that his fellow
jurors actually did so. We reject the notion that the jury, after
hearing weeks of testimony and having viewed substantial
documentary evidence, went on to ignore the Court’s limiting
instruction concerning the indictment. 26 Accordingly, we
26
We acknowledge that our case law provides minimal
guidance to district courts concerning the practice of sending
an indictment to the jury for their use during deliberations. We
are also aware that some courts have disapproved the practice
of sending the indictment out with the jury. See United States
v. Esso, 684 F.3d 347, 352 n.5 (2d Cir. 2012); Roy, 473 F.3d at
1237 n.2. We emphasize that this practice is committed to the
sound discretion of the district judge. Todaro, 448 F.2d at 66.
In our view, such an exercise of a judge’s discretion should be
informed by considering the nature of the case, the number of
defendants, the length of the indictment, the extent of the
factual recitation supporting the criminal charges, and most
importantly, whether the indictment (especially if lengthy and
fact-laden) will be useful to the jury, in light of the judge’s own
carefully tailored jury instruction, as supplemented by a verdict
slip. See Esso, 684 F.3d at 352 n.5.
110
conclude that the District Court did not abuse its discretion in
sending the indictment out to the jury.
IX. The District Court’s Evidentiary Rulings
Vederman, Nicholas, and Brand each challenge
evidentiary rulings by the District Court. We conclude that
none of these contentions warrants setting aside their
convictions.
A. The District Court’s Application of Rule 404(b)
Vederman argues that the District Court misapplied
Federal Rule of Evidence 404(b) when it excluded evidence of
Vederman’s prior gift-giving. 27 This Court reviews a district
court’s application of Rule 404(b) for abuse of discretion.
United States v. Daraio, 445 F.3d 253, 259 (3d Cir. 2006);
Ansell v. Green Acres Contracting Co., 347 F.3d 515, 519 (3d
Cir. 2003). A trial court commits “[a]n abuse of discretion . . .
when [the] district court’s decision rests upon a clearly
erroneous finding of fact, an errant conclusion of law or an
27
Although Rule 404(b) determinations are usually in response
to attempts to introduce “bad” acts evidence, Vederman’s
attempt to introduce “good” acts of gift-giving is properly
analyzed under the same rule. Ansell v. Green Acres
Contracting Co., 347 F.3d 515, 520 (3d Cir. 2003) (“The
evidence admitted in this case differs from garden variety Rule
404(b) matter because it is evidence, not of a prior bad act in a
criminal case, but of a subsequent good act in a civil case.
Nonetheless, this evidence is encompassed by the plain text of
Rule 404(b) which addresses ‘other . . . acts,’ not just prior bad
acts.”).
111
improper application of law to fact.” Pardini v. Allegheny
Intermediate Unit, 524 F.3d 419, 422 (3d Cir. 2008) (quoting
P.N. v. Clementon Bd. of Educ., 442 F.3d 848, 852 (3d Cir.
2006)).
Federal Rule of Evidence 404(b) provides in part:
(b) Crimes, Wrongs, or Other Acts.
(1) Prohibited Uses. Evidence of a crime,
wrong, or other act is not admissible
to prove a person’s character in order
to show that on a particular occasion
the person acted in accordance with
the character.
(2) Permitted Uses; Notice in a Criminal
Case. This evidence may be
admissible for another purpose, such
as proving motive, opportunity,
intent, preparation, plan, knowledge,
identity, absence of mistake, or lack
of accident.
Fed. R. Evid. 404(b)(1)–(2).
At trial, Vederman sought to present a witness from
American University who would have testified that “Vederman
agreed, on more than fifty instances, to financially assist
students [at American] who needed help with tuition, book
money, or travel funds to visit their families.” Vederman Br.
42 (emphasis omitted). According to Vederman, the testimony
was relevant to refuting the Government’s argument that he
112
agreed to guarantee the tuition expenses of Fattah’s au pair as
a way of bribing the congressman. In excluding this evidence
under Rule 404(b), the District Court stated at sidebar:
I sustain the government’s objection to calling a
representative of American University to testify
on behalf of Herbert Vederman.
In my view the testimony runs afoul of
Rule 404(b)(1) of the Federal Rules of Evidence.
I find it to be propensity evidence. He or she
would be testifying about Mr. Vederman’s
financial generosity with respect to students of
American University.
The issue here is payment of partial
tuition of a student at the Philadelphia
University. I see no connection between the
generosity at American University and the
situation with Philadelphia University.
JA4459–60. Vederman argues that because the proposed
evidence related to Vederman’s intent, and not solely his
propensity to perform good acts, we should conclude that the
District Court abused its discretion. We see no error in the
District Court’s ruling.
Vederman challenges as arbitrary the District Court’s
“assertion that support for American University students is too
remote from support for Philadelphia University students”
such that it constitutes inadmissible evidence. Vederman Reply
Br. 23. This distinction was far from arbitrary. Vederman may
well have financially supported American University students
113
because of connections he had to that school or to the D.C.
community at large—connections Vederman did not have to
Philadelphia University. And the excluded testimony appears
to have described support for students Vederman did not
previously know. By supporting Fattah’s au pair, Vederman
was helping an employee of a man whom he knew quite well.
JA889 (“[Fattah and Vederman] spent a lot of time together
traveling back and forth to Washington, in the case of a death
in the family attending certain ceremonies that were important,
and above all spending time with each other and their families
together.”). Vederman’s decision to help Fattah’s au pair, who
wished to attend Philadelphia University, seems more like a
departure from, rather than a continuation of, his pattern of
support for American University students.
As the party seeking admission of evidence under Rule
404(b), Vederman bore “the burden of demonstrating its
applicability” and “identifying a proper purpose.” United
States v. Caldwell, 760 F.3d 267, 276 (3d Cir. 2014). By failing
to explain sufficiently why the factual distinctions discussed
above were not material, Vederman failed to meet his burden.
In particular, although Vederman argues that he offered
evidence of his prior gift-giving to prove intent—“a proper
non-propensity purpose”—he failed to show why the proposed
testimony was “relevant to that identified purpose.” Id. at
277. 28 As we noted in Ansell v. Green Acres Contracting, an
28
Under Rule 404(b), “prior act evidence is inadmissible
unless the evidence is (1) offered for a proper non-propensity
purpose that is at issue in the case; (2) relevant to that identified
purpose; (3) sufficiently probative under Rule 403 such that its
probative value is not outweighed by any inherent danger of
114
employment discrimination case on which Vederman heavily
relies, “[t]here is. . . no bright line rule for determining when
evidence is too remote to be relevant.” 347 F.3d at 525. As
such, a district court’s determination under Rule 404(b) “will
not be disturbed on appeal unless it amounts to an abuse of
discretion.” Id. The District Court did not abuse its discretion
in excluding evidence of Vederman’s support for students at
American University.
B. Evidentiary Rulings Regarding Nicholas’s Defense
Nicholas argues that the District Court rendered three
erroneous evidentiary rulings that prejudiced her defense. We
do not find any of her arguments convincing.
1. The EAA Board Minutes
In support of its theory that Nicholas defrauded EAA,
the Government introduced minutes from EAA’s Board.
Minutes from 2005 revealed that the Board limited Nicholas’s
signing authority to $100,000. Minutes from December 2007,
February 2008, and May 2008 failed to reference either the
EAA–Solutions contract or the checks, drawn from EAA’s
account for $500,000 and $100,000, that were purportedly paid
pursuant to the contract. Nicholas contends that the Board
minutes were erroneously admitted because they constituted
improper hearsay which failed to satisfy either the exception
for business records under Federal Rule of Evidence 803(6) or
the absence of records exception under Federal Rule of
unfair prejudice; and (4) accompanied by a limiting
instruction, if requested.” United States v. Caldwell, 760 F.3d
267, 277–78 (3d Cir. 2014).
115
Evidence 803(7). “We review the District Court’s evidentiary
ruling[s] for abuse of discretion, but also ‘exercise plenary
review . . . to the extent [the rulings] are based on a legal
interpretation of the Federal Rules of Evidence.’ ” Repak, 852
F.3d at 240 (citations omitted) (second alteration in original).
At trial, no defendant objected to the testimony of
EAA’s Board Chairman Raymond Jones about the 2005 EAA
Board minutes, which indicated that the Board limited
Nicholas’s authority to spend funds without Board approval to
$100,000. Nor was there objection to the admission of EAA’s
Board minutes from December 2007, February 2008, and May
2008 during Special Agent Rene Michael’s testimony. Because
Nicholas failed to preserve these evidentiary issues, we review
for plain error. Fed. R. Crim. P. 52(b).
As to the 2005 minutes, the prosecution’s direct
examination of Jones failed to expressly track each of the
prerequisites for admission of a business record under Rule
803(6). Still, Jones’ testimony was sufficient for purposes of
Rule 803(6) because he stated that he was Board Chairman at
the relevant time, the Board’s practice was to keep accurate
minutes of its meetings, the Board passed the motion to limit
Nicholas’s signing authority, and Jones recognized the
document as the minutes of a Board meeting. We conclude that
the District Court did not commit plain error by permitting this
unobjected-to testimony to remain in the record.
Jones, who chaired the Board from 2004 to 2007,
testified that Nicholas’s authority to bind EAA to contracts was
limited to $100,000, and that any contracts in excess of that
amount were to be brought to the Board’s attention. EAA’s
accountant, Janice Salter, testified that EAA maintained a
116
procedure for disbursements which required the completion of
a check request form to document the purpose of the check for
approval of the payment by Nicholas. Yet Jones testified that
he never saw a request form for either the $500,000 check or
the $100,000 check to Solutions. We conclude that the
Government laid an adequate foundation under Rule 803(7) for
admitting the Board minutes from 2005, December 2007,
February 2008, and May 2008, and for highlighting that none
of them mentioned the EAA–Solutions contract requiring an
upfront payment of well over $100,000.
Nicholas correctly points out that the minutes of some
monthly meetings were not among the documents that were
admitted. But this point simply makes plain that she could have
objected on that basis and did not. Given the lack of an
objection and the existence of a proper foundation, admission
of EAA’s Board minutes was not an abuse of discretion.
Nicholas also asserts that, even if Rules 803(6) and (7)
permitted admission of the Board minutes, they were of
minimal relevance and unfairly prejudicial. We disagree. Not
only is the evidence relevant, any possible prejudice was
minimized by the fact that the Board minutes make no
reference to either the EAA–Solutions contract or to any
financial matters whatsoever. Indeed, given these lacunae in
the Government’s proof, a reasonable factfinder might well
have concluded that the Board’s intention to limit Nicholas’s
signing authority had not been implemented and that Nicholas
had not concealed the contract from the Board.
117
2. Jones’ Memory Regarding Other Contracts
Nicholas next asserts that the District Court erred during
her cross-examination of Board Chairman Jones by sustaining
the prosecution’s objection to her inquiry into whether he
remembered other contracts in excess of $100,000 being
brought to the Board. See JA1386–87. The basis of the
prosecution’s objection seemed to be that Nicholas’s line of
inquiry was beyond the scope of the direct testimony. JA1387
(“I showed checks concerning what’s going on, not other
programs.”); see Fed. R. Evid. 611(b). The District Court
sustained the objection, declaring that “it has absolutely
nothing to do with this case.” JA1387. Nicholas contends that
if Jones did not recall whether other large contracts had been
presented to the Board, his inability to recall the EAA–
Solutions contract would have been “unremarkable rather than
evidence of fraud or concealment.” Nicholas Br. 61.
We acknowledge that whether Jones remembered other
large contracts requiring Board approval had some relevance
under Rule 401. Yet any error by the District Court in
prohibiting Nicholas’s counsel from pursuing this line of
inquiry is harmless. Jones admitted that he did not know if the
Board ever implemented the policy requiring its approval of
contracts exceeding $100,000. He also conceded that the EAA
Board focused less on the financial side of EAA than on its
programs. JA1383–85. Nicholas could not have been
prejudiced by the District Court’s ruling.
3. Exclusion of NOAA Evidence
Nicholas defended against the criminal charges arising
out of the non-existent October 2012 conference by asserting
118
that she acted in “good faith in spending the NOAA funds on
EAA expenses,” Nicholas Br. 64, that the difference in the
dates in the paperwork was not material, and that NOAA had
received the benefits of the sponsorship because its logo was
displayed on the signage used at the February conference.
Nicholas succeeded in presenting testimony and introducing
photographs that showed NOAA’s logo on the February 2012
annual conference bags, padfolios, and name tags. The Court
excluded a photograph of a NOAA intern at the February 2012
conference, other photographs of the February conference
signage, and some checks that pertained to the February
conference. Nicholas claims that her inability to introduce
those exhibits frustrated her ability to present her good faith
defense. We are not persuaded.
The photographs were excluded as cumulative, the sort
of ruling to which we afford trial judges very broad discretion.
See Fed. R. Evid. 403; United States v. Dalfonso, 707 F.2d 757,
762 (3d Cir. 1983). It was not error to exclude the student
intern’s photograph. The conference brochure included
photographs from previous conferences, and the witness from
NOAA was unable to testify to the year the student served as
an intern. Finally, the checks tendered for the travel expenses
incurred for the February conference were excluded as
irrelevant to whether Nicholas had a good faith belief that
NOAA sponsored the October conference.
C. The Cooperating Witness’s Mental Health Records
During discovery, Brand learned that a cooperating
witness was diagnosed with bipolar II disorder and was taking
medication to treat that condition. Brand subpoenaed mental
health records kept by the witness’s current and former
119
psychiatrists in hopes of using those records to attack the
witness’s memory, truthfulness, and credibility. The witness
and the Government both filed motions to quash the subpoena,
arguing that the witness’s mental health records were protected
by the psychotherapist–patient privilege recognized by the
Supreme Court in Jaffee v. Redmond, 518 U.S. 1 (1996). The
Government also filed a motion in limine seeking to restrict the
scope of cross-examination to prevent Brand from questioning
the witness about his mental health.
Alongside his motion to quash, the witness voluntarily
produced for the Court his mental health records. The Court
concluded that the psychotherapist–patient privilege would
ordinarily apply to the mental health records, but that the
privilege was not absolute, especially when invoked in
response to a criminal defendant’s efforts to obtain through
discovery evidence that is favorable to his case. Following the
procedure set forth in Pennsylvania v. Ritchie, 480 U.S. 39
(1987), the District Court conducted an in camera review of the
mental health records to determine if they contained material
evidence—that is, evidence that would “give[] rise to a
reasonable probability that it [would] affect the outcome of the
case.” JA149. The District Court found “nothing in the mental
health records of the [witness] . . . material for this criminal
action,” noting that “[t]he records reveal nothing that calls into
question [the witness’s] memory, perception, competence, or
veracity.” JA150. Accordingly, the Court entered an order
granting the motions to quash the subpoena.
The District Court also granted the Government’s
motion in limine and restricted the scope of cross-examination,
ruling that “no reference may be made to [the witness’s]
bipolar disorder or the medications he takes to manage it.”
120
JA142, 156. The Court reasoned that bipolar disorder varied in
its effects from person to person, and concluded that Brand had
not shown that the effects of the disorder had any bearing on
the witness’s credibility. The District Court ruled that cross-
examination would not serve any valid impeachment purpose.
Brand claims that the District Court’s order ran afoul of
the Due Process Clause of the Fifth Amendment and the
Confrontation Clause of the Sixth Amendment. We review a
district court’s rulings to quash a subpoena and to limit the
scope of cross-examination for abuse of discretion. United
States v. Tykarsky, 446 F.3d 458, 475 (3d Cir. 2006); NLRB v.
Frazier, 966 F.2d 812, 815 (3d Cir. 1992). Here, the District
Court did not abuse that discretion.
1. The District Court’s Denial of Access to the Mental
Health Records
In claiming that the District Court’s decision to review
the mental health records in camera before ruling on their
admissibility violated his rights under both the Fifth and Sixth
Amendments, Brand specifically argues that his right to
confront the witness was impeded because he was denied
access to records he could have used to impeach the witness.
This very argument was considered and rejected by a plurality
of the Supreme Court in Ritchie, which noted that “the effect
[of the argument] would be to transform the Confrontation
Clause into a constitutionally compelled rule of pretrial
discovery. . . . [T]he right to confrontation is a trial right,
designed to prevent improper restrictions on the types of
questions that defense counsel may ask during cross-
examination.” 480 U.S. at 52. We follow the Ritchie plurality,
and conclude that the Confrontation Clause did not require the
121
District Court to grant Brand access to the witness’s mental
health records.
Brand next challenges the District Court’s decision to
quash the subpoena as a violation of the Fifth Amendment’s
Due Process Clause. He concedes that Ritchie’s Due Process
holding allowed the District Court to review the mental health
records in camera without disclosing them to him. See id. at
59–60 (“A defendant’s right to discover exculpatory evidence
does not include the unsupervised authority to search through
[the Government’s] files. . . . We find that [the defendant’s]
interest . . . in ensuring a fair trial can be protected fully by
requiring that the [privileged] files be submitted only to the
trial court for in camera review.”). Brand instead argues that
the District Court abused its discretion by focusing on
“irrelevant facts and spurious symptoms. . . . such as
‘hallucinations,’ ” and by “refus[ing] to consider evidence of
cognitive impairment and memory issues.” Brand Br. 30. The
record reveals, however, that the District Court reviewed the
mental health records and determined that they “reveal[ed]
nothing that calls into question [the witness’s] memory,
perception, competence, or veracity.” JA150. This hardly
amounts to a refusal to consider evidence of cognitive
impairment or memory issues.
Brand also challenges the legal standard applied by the
District Court, arguing that the court “focused solely on
whether disclosure would ‘change the outcome’ of Brand’s
trial,” Brand Br. 29 (quoting JA148), rather than considering
“whether the ultimate verdict is one ‘worthy of confidence.’ ”
Id. (quoting United States v. Robinson, 583 F.3d 1265, 1270
(10th Cir. 2009)). Brand misleadingly quotes from the District
Court’s opinion. The District Court considered, in accordance
122
with Ritchie, “whether there is a reasonable probability that
disclosure would change the outcome” of Brand’s trial, JA148
(emphasis added), not whether disclosure would necessarily
change the outcome. As articulated in Ritchie, a “ ‘reasonable
probability’ is a probability sufficient to undermine confidence
in the outcome.” 480 U.S. at 57 (quoting United States v.
Bagley, 473 U.S. 667, 682 (1985) (Blackmun, J.)). The District
Court applied the correct standard.
2. The District Court’s Grant of the Motion in Limine
In granting the Government’s motion in limine, the
District Court ruled that Brand could not “reference . . . [the
witness’s] bipolar disorder or the medications he takes to
manage it.” JA156. Yet that ruling placed no restriction on
Brand’s ability to cross-examine the witness with respect to
“his memory, competence, or truthfulness.” Id. Brand argues,
nevertheless, that his Sixth Amendment right “to be confronted
with the witnesses against him” was violated. U.S. Const.
amend. VI.
The Confrontation Clause protects a defendant’s right
to cross-examine a witness with respect to any testimonial
statements made by that witness. United States v. Berrios, 676
F.3d 118, 125–26 (3d Cir. 2012) (citing Crawford v.
Washington, 541 U.S. 36, 51 (2004), and Davis v. Washington,
547 U.S. 813, 823–24 (2006)). But the scope of cross-
examination is not unlimited, and “[a] district court retains
‘wide latitude insofar as the Confrontation Clause is concerned
to impose reasonable limits on such cross-examination based
on concerns about . . . harassment, prejudice, confusion of the
issues, the witness’ safety, or interrogation that is repetitive or
only marginally relevant.’ ” John-Baptiste, 747 F.3d at 211
123
(quoting United States v. Mussare, 405 F.3d 161, 169 (3d Cir.
2005)). We review limitations on cross-examination for abuse
of discretion, and reverse “only when the restriction ‘is so
severe as to constitute a denial of the defendant’s right to
confront witnesses against him and . . . is prejudicial to [his]
substantial rights.’ ” Id. (alternation in original) (quoting
United States v. Conley, 92 F.3d 157, 169 (3d Cir. 1996)).
In United States v. Chandler, 326 F.3d 210, 219 (3d Cir.
2003), we analyzed whether a district court’s decision to limit
cross-examination with respect to a witness’s motivation for
testifying violated the Confrontation Clause. See also Mussare,
405 F.3d at 169; John-Baptiste, 747 F.3d at 211–12. Consistent
with Delaware v. Van Arsdall, 475 U.S. 673 (1986), we first
concluded that “the exposure of a witness’ motivation in
testifying is a proper and important function of the
constitutionally protected right of cross-examination.”
Chandler, 326 F.3d at 219–20 (quoting Van Arsdall, 475 U.S.
at 678–79). We also noted that the Confrontation Clause does
not prevent a trial judge from imposing reasonable limits on
cross-examination. Id. In reviewing a district judge’s
imposition of such limitations, we apply a two-part analysis.
As we have since described, “we inquire into: ‘(1) whether the
limitation significantly limited the defendant’s right to inquire
into a witness’s motivation for testifying; and (2) whether the
constraints imposed fell within the reasonable limits that a
district court has the authority to impose.’ ” John-Baptiste, 747
F.3d at 211–12 (quoting Mussare, 405 F.3d at 169).
The same analytical framework is appropriate when
determining whether a restriction on the cross-examination of
a witness with respect to his memory and perception violates
the Confrontation Clause. See Davis v. Alaska, 415 U.S. 308,
124
316 (1974); Greene v. McElroy, 360 U.S. 474, 496 (1959);
United States v. Segal, 534 F.2d 578, 582 (3d Cir. 1976).
Memory and perception, like motivation for testifying, are
central issues affecting the credibility of any witness, and
unreasonable limitations on the right to cross-examine on those
subjects cannot be countenanced. We therefore ask,
paraphrasing Chandler: (1) whether the District Court’s
decision to put the witness’s diagnosis and medications off
limits significantly impaired Brand’s right to inquire into the
witness’s memory and perception; and (2) whether the ruling
fell within the reasonable limits that the District Court has the
authority to impose.
We conclude that the District Court did not err. As an
initial matter, the District Court permitted Brand to cross-
examine the witness about his memory and perception, and
limited cross-examination only with respect to the witness’s
bipolar disorder and the medications he was taking to treat that
condition. Brand was free to question the witness about his
memory and perception, and indeed did so. The restriction on
asking the witness about his bipolar disorder was not a
significant limitation of Brand’s right to inquire into the
witness’s memory or perception. Moreover, as the District
Court pointed out, Brand failed to show how inquiry into the
witness’s bipolar disorder would be useful for impeachment
purposes. See JA154.
Given that failure, the District Court’s limits on cross-
examination were reasonable. The Court concluded, after
reviewing the evidence submitted by Brand and the witness’s
mental health records, that any mention of the witness’s bipolar
disorder would “only be designed to confuse the jury or to
stigmatize him unfairly because of a ‘mental problem’ without
125
any countervailing probative value.” JA155. The District Court
did not abuse its discretion in limiting Brand’s cross-
examination on a topic that would be far more prejudicial than
probative. See Tykarsky, 446 F.3d at 476–77 (“[T]he District
Court acted well within its discretion to restrict irrelevant and
confusing testimony.”).
All of this is not to suggest that a witness’s mental
health is always off limits. The appropriate course in any given
case must be determined from the facts and circumstances
surrounding that case and the witness’s particular condition.
See United States v. George, 532 F.3d 933, 937 (D.C. Cir.
2008) (“The days are long past when any mental illness was
presumed to undermine a witness’s competence to testify. . . .
[M]ental illness [is] potentially relevant in a broad[] range of
circumstances . . . . [But] some indication is needed that a
particular witness’s medical history throws some doubt on the
witness’s competence or credibility.”). Here, Brand failed to
show, through mental health records or otherwise, any
particularized reason to doubt the credibility of the witness for
medical reasons.
Brand states that the witness provided “the only
evidence offered” on the intent element of his conspiracy
conviction and that he should therefore be entitled to
unrestricted cross-examination. Yet no matter the importance
of a witness to any party, a district court may always place
reasonable limits on cross-examination to avoid “harassment,
prejudice, confusion of the issues, the witness’ safety, or
interrogation that is repetitive or only marginally relevant.”
John-Baptiste, 747 F.3d at 211 (citation omitted).
126
We conclude that the District Court did not abuse its
discretion in restricting the scope of Brand’s cross-examination
of the cooperating witness.
X. The Government’s Cross-Appeal
The jury convicted Fattah, Vederman, and Bowser of
bank fraud, 18 U.S.C. § 1344 29 (Count 19) and making false
statements to a financial institution, 18 U.S.C. § 1014 30 (Count
20). In response to post-trial motions, the District Court
granted a judgment of acquittal on both counts under Fed. R.
Crim. P. 29, concluding that the evidence was insufficient to
establish that the Credit Union Mortgage Association
(CUMA), the entity to whom Fattah, Vederman, and Bowser
made the false statements, is a “financial institution,” or, more
29
“Whoever knowingly executes, or attempts to execute, a
scheme or artifice . . . to defraud a financial institution . . . shall
be fined not more than $1,000,000 or imprisoned not more than
30 years, or both.” The definition of “financial institution” for
purposes of § 1344 is set forth at 18 U.S.C. § 20, and includes
“a credit union with accounts insured by the National Credit
Union Share Insurance Fund” and “a mortgage lending
business (as defined in section 27 of this Title).” 18 U.S.C.
§§ 20(2), (10).
30
“Whoever knowingly makes any false statement or report, or
willfully overvalues any land, property or security, for the
purpose of influencing in any way the action of . . . a Federal
credit union . . . any institution the accounts of which are
insured by . . . the National Credit Union Administration Board
. . . or a mortgage lending business . . . shall be fined not more
than $1,000,000 or imprisoned not more than 30 years, or
both.”
127
specifically, a “mortgage lending business” as defined in 18
U.S.C. § 27. The Government claims that, viewing the
evidence in the light most favorable to it, the District Court
erred and that CUMA is, indeed, a “mortgage lending
business.” We agree. Because the evidence is sufficient to
support the jury’s verdict, we will remand so Fattah and
Vederman may be resentenced on these charges. 31
A. CUMA is a Mortgage Lending Business
In reviewing the District Court’s post-verdict judgment
of acquittal under Rule 29 of the Federal Rules of Civil
Procedure, we consider whether the evidence, when viewed in
a light most favorable to the government, supports the jury’s
verdict. United States v. Dixon, 658 F.2d 181, 188 (3d Cir.
1981). Our standard of review is the same as that applied by
the District Court, and we must uphold the jury’s verdict unless
no reasonable juror could accept the evidence as sufficient to
support the defendant’s guilt beyond a reasonable doubt.
United States v. Coleman, 811 F.2d 804, 807 (3d Cir. 1987).
Initially, the grand jury’s indictment alleged that
CUMA is a financial institution because it is federally insured.
JA302–03. At trial, however, the jury was instructed that
CUMA could qualify as a financial institution either because it
is federally insured or because it is a “mortgage lending
business.” See JA111, 401–02. A “mortgage lending business”
is “an organization which finances or refinances any debt
31
Because the Government did not file an appeal as to Bowser,
the cross-appeal is limited to Fattah and Vederman. The
judgment of acquittal as to Bowser is therefore unaffected by
our ruling today.
128
secured by an interest in real estate, including private mortgage
companies and any subsidiaries of such organizations, and
whose activities affect interstate or foreign commerce.” 18
U.S.C. § 27.
At trial, CUMA’s president and CEO, Eddie Scott
Toler, testified that CUMA is not federally insured. JA4235.
The Government therefore attempted to prove that CUMA is a
“mortgage lending business” by presenting evidence that
CUMA funds mortgages and then sells them in a secondary
market.
Toler also testified that CUMA is a “credit union service
organization”—a for-profit company owned by 48 credit
unions, which serves small credit unions that do not have the
infrastructure or in-house expertise to handle mortgage loans
themselves. JA4235. According to Toler, “[CUMA]
exclusively provide[s] First Trust Residential Mortgage
loaning [sic] services, all the way from the origination of the
mortgage loan through processing, underwriting, closing and
access to the secondary market where—and we’re selling the
mortgage loan on the secondary market.” JA4236–37. In
jurisdictions in which CUMA is licensed, 32 CUMA holds the
mortgage for a limited period, generally from two to thirty
days, and then sells the mortgage either to a partner credit
union or on the secondary market. JA4240.
The District Court concluded that CUMA is not a
“mortgage lending business” because “[t]he record is devoid
of any evidence that CUMA finances or refinances any debt.”
32
CUMA is licensed in Maryland, Washington, D.C., and
Virginia. JA4238.
129
JA113. Concluding that CUMA “simply is a loan processor for
various credit unions which do the financing or refinancing,”
id., the District Court ruled that CUMA’s “activity does not
constitute the financing or refinancing of any debt. CUMA is
not the mortgagee. It is merely selling the debt instrument to a
third party.” JA114.
We cannot agree with the District Court’s view of the
evidence. Toler testified that in “Maryland, D.C., and Virginia
. . . all of the loans are closed in the name of CUMA.” JA4238–
39. As Toler described it, CUMA borrows on a line of credit to
fund the loan, and when the loan is sold, CUMA pays off its
line of credit. JA4239–40. So contrary to the District Court’s
assessment, the evidence, viewed in a light most favorable to
the Government, shows that CUMA is indeed the mortgagee—
at least during the time from closing until the loan is sold to a
partner credit union or on the secondary market. The fact that
CUMA funds the closing and then holds the mortgage, even
for a brief time, is sufficient to support a conclusion that
CUMA is “an organization which finances or refinances any
debt secured by an interest in real estate.” 18 U.S.C. § 27.
Fattah and Vederman attempt to refute the argument
that CUMA engages in financing mortgages by focusing on
Toler’s testimony that CUMA “doesn’t actually have any
money to fund these mortgage loans.” JA4239; see Fattah
Reply Br. 38, Vederman Reply Br. 36. But Toler testified that
CUMA employs a credit line to borrow the funds necessary to
close on mortgages. See JA4239. That CUMA incurs debt to
finance mortgages hardly undermines a conclusion that CUMA
finances mortgages. Indeed, it is the very nature of modern
banking that financial institutions do not hold cash reserves
equal to the full amount of their liabilities. See, e.g., Timothy
130
C. Harker, Bailment Ailment: An Analysis of the Legal Status
of Ordinary Demand Deposits in the Shadow of the Financial
Crisis of 2008, 19 Fordham J. Corp. & Fin. L. 543, 561 (2014)
(“[F]ractional reserve banking . . . is the de facto standard for
all modern banks.”).
Vederman also argues that, even if CUMA acts as a
mortgage lending business in some transactions, it was not
acting as a mortgage lending business in this transaction.
Vederman points to Toler’s testimony that, in a state in which
CUMA is not licensed, the mortgage is closed in the name of a
credit union. In such cases, the credit union, and not CUMA,
owns the mortgage for the short period before the loan is sold
on the secondary market. JA4241. CUMA is not licensed in the
Commonwealth of Pennsylvania. See id. Thus, according to
Vederman, CUMA was acting in its capacity as a mortgage
servicing company for Fattah’s vacation home purchase and
did not—and could not—finance Fattah’s mortgage. That
would mean that CUMA could not have been a victim of a
crime against a financial institution in this instance: “When an
entity is not functioning as a mortgage lender, the ‘pertinent
federal interest’ behind the statutes is not implicated.”
Vederman Reply Br. 38 (citation omitted).
The Government responds that neither of the statutes of
conviction requires that the fraud or false statement occur in
connection with the same transaction that places the entity
within the definition of “financial institution.” Gov’t Fourth
Step Br. 4. We agree with the Government.
Both § 1344 and § 1014 protect entities that fall within
the definition of “financial institution” and are otherwise quite
broad in their application. See Loughrin v. United States, 134
131
S. Ct. 2384, 2389 (2014) (interpreting § 1344 as not requiring
specific intent to defraud a bank); United States v. Boren, 278
F.3d 911, 914 (9th Cir. 2002) (“[Section 1014’s] reach is not
limited to false statements made with regard to loans, but
extends to any application, commitment or other specified
transaction.”). Neither statute is expressly limited in the
manner that Vederman suggests. Williams v. United States, 458
U.S. 279, 284 (1982) (“To obtain a conviction under § 1014,
the Government must establish two propositions: it must
demonstrate (1) that the defendant made a ‘false statement or
report,’ . . . and (2) that he did so ‘for the purpose of
influencing in any way the action of [a described financial
institution] upon any application, advance, . . . commitment, or
loan.’ ”); United States v. Leahy, 445 F.3d 634, 646 (3d Cir.
2006) (“The purpose of the bank fraud statute is to protect the
‘financial integrity of [banking] institutions.’ ”) (citing S. Rep.
No. 98-225, at 377 (1983), as reprinted in 1984 U.S.C.C.A.N.
3517), abrogated on other grounds by Loughrin, 134 S. Ct. at
2389.
In support of his position, Vederman relies on United
States v. Devoll, 39 F.3d 575 (5th Cir. 1994), in which the Fifth
Circuit concluded that § 1014 (false statements to a financial
institution) is not intended to capture fraud unrelated to an
entity’s lending activities, and therefore held that it “applies
only to actions involving lending transactions.” Id. at 580. The
Fifth Circuit stated:
[W]e are not persuaded that the statute imposes
liability whenever a defendant’s false statement
was intended to interfere with any activity of a
financial institution; such a broad interpretation
of section 1014 presumably would encompass
132
fraud or false representations having nothing to
do with financial transactions, such as fraud in an
employment contract or, for example, in a
contract to provide goods or services for
custodial care, premises repair, or renovation.
Id.
Yet a majority of circuits, including our own, have
declined to follow Devoll’s suggestion that § 1014 is restricted
to lending transactions. As the Ninth Circuit has held, “we join
at least six of our sister circuits—the First, Third, Fourth, Sixth,
Seventh, and Tenth—in holding that 18 U.S.C. § 1014 is not
limited to lending transactions, and reject the minority rule to
the contrary.” Boren, 278 F.3d at 915. And even if we were to
adopt Devoll’s narrow construction of § 1014 to lending
transactions, that would not resolve the more specific question
of whether the defrauded entity must be defined as a “mortgage
lending business” by virtue of the specific transaction in which
the false statements arose.
Recently, the Eighth Circuit addressed precisely this
issue. In United States v. Springer, 866 F.3d 949 (8th Cir.
2017), that Court considered the defendant’s appeal from the
district court’s denial of a Rule 29 motion on grounds that
GMAC, the entity defrauded, was not a “financial institution.”
The Court upheld the district court’s determination that the
evidence was sufficient to establish that GMAC is in the
mortgage lending business because there was testimony that “it
had made hundreds or thousands of loans secured by
mortgages in 2010 and 2011 in states all across the country,”
which established that its activities affect interstate commerce.
Id. at 953. It was not determinative that GMAC did not own
133
the specific loan at issue in the case: “we discern no
requirement in the definition of ‘mortgage lending business’
that the business own the particular loan in question; it need
only finance or refinance any debt secured by an interest in real
estate, or, in other words, be in the interstate mortgage lending
business in general.” Id.
In our view, the Eighth Circuit’s analysis is correct. We
therefore adopt that Court’s reasoning in Springer and
conclude that it is of no moment that CUMA did not finance
the mortgage at issue in Fattah’s case. CUMA is a “mortgage
lending business,” and that alone suffices to support the
convictions under §§ 1014 and 1344.
B. Sufficiency of the Evidence
Finally, Vederman argues that, even if CUMA is a
financial institution, the judgment of acquittal should stand
because the Government did not put forth any evidence that he
made a false representation to CUMA. 33 Specifically,
Vederman argues that the title to the Porsche was actually
changed to his name, making it a “true sale” as a matter of law,
without regard to whether Fattah’s wife continued to retain
possession. See United States v. Castro, 704 F.3d 125, 139 (3d
Cir. 2013) (holding in another context that “the government
must be able to show that [the defendant] made a statement to
33
Although Vederman presented this argument in his Rule 29
motion, the District Court did not need to reach it in the context
of Counts 19 and 20 because the Court granted the motion on
the ground that CUMA is not a financial institution. The
District Court rejected the argument as to Counts 16, 17, and
18. See JA100–02.
134
government agents that was untrue, and the government cannot
satisfy that burden by showing that the defendant intended to
deceive, if in fact he told the literal truth”); see also 75 Pa.
Cons. Stat. § 102 (defining “owner” as “[a] person, other than
a lienholder, having the property right in or title to a vehicle”).
The Government responds that, regardless of whether it
is legally possible for one person to hold a title while a different
person possesses the vehicle, the jury was permitted to
consider all the circumstances in deciding whether the Porsche
sale was a sham. We agree.
First, as the District Court observed, it was unclear as to
whether the title had been properly executed under
Pennsylvania law. For instance, Fattah’s wife never appeared
before a notary. 34 JA101. In addition, title 75, section 1111(a)
of the Pennsylvania Consolidated Statutes requires that, “[i]n
the event of the sale or transfer of the ownership of a vehicle
within this Commonwealth, the owner shall . . . deliver the
certificate to the transferee at the time of the delivery of the
vehicle.” And, the transferee must, within twenty days of the
assignment of the vehicle, apply for a new title. See 75 Pa.
Cons. Stat. § 1111(b). Neither of these requirements was
fulfilled. Finally, Vederman never registered the Porsche in his
name with the Department of Motor Vehicles. See id.; JA4254.
Second, and more importantly, even if the title had been
properly transferred to Vederman, the title provisions of the
34
Vederman argues that it is of no significance that the parties
did not appear before a notary as the statute requires, but he
offers cases only from states other than Pennsylvania to
support this proposition.
135
Pennsylvania Motor Vehicle Code “were [not] designed to
establish conclusively the ownership of an automobile.”
Weigelt v. Factors Credit Corp., 101 A.2d 404, 404 (Pa. Super.
Ct. 1953). Indeed, “[t]he purpose of a certificate of title is not
to conclusively establish ownership in a motor vehicle, but
rather to establish the person entitled to possession.” Speck
Cadillac-Olds, Inc. v. Goodman, 95 A.2d 191, 193 (Pa. 1953).
Thus, a title provides evidence of ownership; it is not
dispositive of the issue. Wasilko v. Home Mut. Cas. Co., 232
A.2d 60, 61 (Pa. Super. Ct. 1967).
Vederman’s argument that the title in his name
constitutes conclusive evidence of ownership rests upon an
erroneous conclusion that the jury was prohibited from
considering all the circumstances of the transfer. As the
District Court observed, though, Pennsylvania’s
Commonwealth Court has held that “[w]hether a transferor has
transferred ownership of a motor vehicle to a transferee is a
factual determination to be made by the court below.” Dep’t.
of Transp. v. Walker, 584 A.2d 1080, 1082 (Pa. Commw. Ct.
1990). Thus, the signed certificate of title was appropriately
treated as one piece of evidence for the jury to consider in
assessing the validity of the vehicle transfer. Considered in the
light most favorable to the Government, the totality of the
evidence is sufficient to support the jury’s conclusion that the
Porsche sale was a sham.
XI. Prejudicial Spillover
Finally, Fattah, Vederman, Nicholas, and Brand each
contend that their convictions on various counts resulted from
prejudicial spillover. We are not persuaded.
136
We exercise plenary review over a district court’s denial
of a claim of prejudicial spillover, United States v. Lee, 612
F.3d 170, 178–79 (3d Cir. 2010), and we apply a two-step test
when reviewing such a claim. United States v. Wright, 665
F.3d 560, 575 (3d Cir. 2002). First, a court must consider
“whether the jury heard evidence that would have been
inadmissible at a trial limited to the remaining valid count[s].”
Id. (quoting United States v. Cross, 308 F.3d 308, 317 (3d Cir.
2002)). The second step requires that we “ask whether that
evidence (the ‘spillover evidence’) was prejudicial.” Id. We
consider four factors: “whether (1) the charges are intertwined
with each other; (2) the evidence for the remaining counts is
sufficiently distinct to support the verdict on these counts; (3)
the elimination of the invalid count [will] significantly
change[] the strategy of the trial; and (4) the prosecution used
language of the sort to arouse a jury.” Id. (quoting United
States v. Murphy, 323 F.3d 102, 118 (3d Cir. 2003)); see also
United States v. Pelullo (Pellulo II), 14 F.3d 881, 898–99 (3d.
Cir. 1994). These four factors are considered in a light
“somewhat favorable to the defendant.” Wright, 665 F.3d at
575 (quoting Murphy, 323 F.3d at 122); see also Gov’t Br. 198
(same).
A. Fattah’s Claim of Prejudicial Spillover
Fattah argues that he suffered prejudicial spillover on
the remaining counts of conviction in light of (1) evidence
pertinent to the alleged Vederman bribery schemes that is now
arguably inadmissible under McDonnell; and (2) “the
government’s flawed RICO conspiracy theory.” Fattah Br. 50,
64. Fattah’s argument is undercut substantially because of our
determination that McDonnell requires a new trial for Counts
16, 17, 22, and 23 and our decision to affirm the RICO
137
conspiracy conviction. The only possible spillover left to
consider is the evidence pertaining to Fattah’s arranging a
meeting between Vederman and the U.S. Trade
Representative, Ron Kirk, which in light of McDonnell is now
arguably inadmissible. 35
The evidence of the Kirk meeting admitted during this
five-week trial was limited. Although this evidence was part of
the Government’s proof as to both the RICO and the bribery
related charges, there is more than sufficient—and distinct —
evidence to support Fattah’s conviction on all the other counts.
In our view, eliminating any evidence of the Kirk meeting
would not have altered the strategy of the trial, nor should it
significantly change the strategy for any new trial that may be
held. Because Fattah has not pointed us to any argument by the
prosecution relating to this meeting that could have inflamed
the jury, we conclude that Fattah’s prejudicial spillover claim
fails. Like the District Court, we presume that the jury followed
the Court’s instructions to consider and weigh separately the
evidence on each count as to each defendant and not to be
swayed by evidence pertaining to other defendants. 36
35
Nothing in this opinion is intended to foreclose the
possibility that evidence of the Kirk meeting may be
admissible on retrial for some purpose other than as proof of
an official act.
36
We likewise reject Brand’s prejudicial spillover arguments.
See Brand Br. 6 (“Brand adopts the significant issue advanced
by his co-appellant pursuant to Fed. R. App. P. 28(i) that
improper jury instructions and the resulting spillover of related
improperly admitted evidence and argument unfairly
prejudiced Brand.”).
138
B. Vederman’s Assertion of Prejudicial Spillover
Because the District Court acquitted Vederman of the
RICO charge, Vederman argues that he was “severely
prejudiced by the presentation to the jury of a legally flawed
racketeering conspiracy charge,” and as a consequence his
bribery and money laundering convictions should be
overturned. Vederman Br. 46. In response to the Government’s
appeal of the District Court’s Rule 29 acquittal on Counts 19–
20 involving CUMA, Vederman asserts that these two counts
also were affected by spillover evidence because the
Government’s theory tied the bribery charges to the actions
taken to defraud CUMA. In that we are vacating Vederman’s
convictions of Counts 16–18 and 22–23 based on McDonnell
and remanding for further proceedings, we need address only
Vederman’s argument of prejudicial spillover as it relates to
the charges involving CUMA in Counts 19–20, charges that
we will reinstate.
The District Court’s acquittal of Vederman on the RICO
count establishes that step one of the Wright spillover test has
been met. “[T]he jury heard evidence that would have been
inadmissible at a trial limited” to the bribery and CUMA-
related counts. Wright, 665 F.3d at 575 (quoting Cross, 308
F.3d at 317).
Wright’s second step requires “ask[ing] whether that
evidence (the ‘spillover evidence’) was prejudicial.” Id.
Vederman submits that the RICO, bribery, and CUMA-related
charges were intertwined “in that the acts relating to the alleged
bribery scheme were also charged as ‘predicates’ under
RICO.” Vederman Br. 49. We disagree.
139
To be sure, the RICO, bribery, and CUMA Counts are
related to one another. But in this instance, mere relatedness is
not enough to demonstrate the foundation necessary for
spillover. This is so because the bribery charges were a
predicate to the RICO charge. In other words, the jury had to
determine if Vederman was guilty of bribery, and the jury then
used that “predicate” to consider whether he was also guilty of
the RICO conspiracy. Thus, the necessarily tiered structure of
the questions presented to the jury refute Vederman’s
argument that the counts were intertwined.
That the bribery charges were predicates for the RICO
conspiracy further demonstrates that the “evidence for the
different counts was sufficiently distinct to support the verdict
on other separate counts.” Pelullo II, 14 F.3d at 898.
Regardless of the evidence pertaining solely to the RICO
conviction, the evidence supporting both the bribery charges
and the charges involving CUMA in Counts 19–20 would have
remained the same.
The next factor we address is “whether the elimination
of the count on which the defendant was invalidly convicted
would have significantly changed the [defendant’s] strategy of
the trial.” Id. As Vederman argues, “the RICO charge
interfered with Vederman’s central defense to the bribery
charge—that his gestures toward Fattah ‘were motivated
purely by friendship.’ ” Vederman Reply Br. 28 (citing Gov’t
Br. 200). In other words, the “RICO count made it dangerous
to unduly emphasize [Vederman’s] close friendship” with
Fattah. Id. From Vederman’s perspective, “a bribery-only trial
would have reduced this danger and allowed a freer
presentation of the defense.” Id.
140
It is quite likely that Vederman’s claim of friendship
would have been less risky as a litigation strategy if he had not
been facing a RICO charge. But Vederman nevertheless chose
to take that risk and fully presented his friendship argument to
the jury. Moreover, while Vederman’s reliance on friendship
might have helped him defend against the bribery charges, that
friendship would not have altered the evidence pertaining to
Counts 19–20 involving CUMA. Whether done for friendship
or some other reason, submitting fraudulent information to a
financial institution is unlawful.
Finally, we “examine the charges, the language that the
government used, and the evidence introduced during the trial
to see whether they are ‘of the sort to arouse a jury.’ ” Pelullo
II, 14 F.3d at 899 (quoting United States v. Ivic, 700 F.2d 51,
65 (2d Cir. 1983)). Vederman points out that Fattah was
presented as “a backslapping, corrupt party boss,” with
“predictable spillover to his friend and associate, Vederman.”
Vederman Br. 50 (quoting United States v. Murphy, 323 F.3d
102, 118 (3d Cir. 2003)). But this description was of Fattah,
not Vederman. Vederman cites other examples of prejudicial,
pejorative language in the Government’s closing arguments.
At one point, the Government referred to “conspirators
engaged in what can only be described as a white collar crime
spree from Philadelphia all the way to Washington, D.C.” and
promised “to untangle the webs of lies and deception that these
conspirators spun.” Vederman Br. 51 (quoting JA5295, 5297).
Whatever rhetorical flair these words contained, they did not
obscure the evidence which independently supported the
convictions for bank fraud at Count 19 and for making false
statements to CUMA at Count 20. Accordingly, because we
presume that the jury followed the District Court’s instruction
141
to consider and to weigh separately the evidence on each count
and as to each defendant, and because the evidence supporting
the CUMA-related charges in Counts 19–20 is sufficiently
distinct from the RICO conspiracy, we conclude that
Vederman’s spillover argument is unavailing. 37
XII. Conclusion
We will vacate the convictions of Chaka Fattah, Sr. and
Herbert Vederman as to Counts 16, 17, 18, 22, and 23. Fattah
and Vederman may be retried on these counts before a properly
instructed jury. We will also reverse the District Court’s
judgment of acquittal on Counts 19 and 20. The convictions of
Chaka Fattah, Sr. and Herbert Vederman will be reinstated, and
the case will be remanded for sentencing on those counts. In
all other respects, the judgments of the District Court will be
affirmed.
37
Nicholas adopted “pertinent portions” of the prejudicial
spillover arguments advanced by Vederman and Fattah.
Nicholas Br. 65. Her spillover claim has no more merit than
theirs. Nicholas’s involvement in the RICO conspiracy was
distinct from the bribery charges, which did not unfairly
influence the other counts. As to Nicholas’s assertion that the
NOAA charges did not belong in the indictment and should
have been tried separately, we fail to see how this relates to a
claim of prejudicial spillover. To the extent it challenges the
District Court’s denial of Nicholas’s motion for a severance,
Nicholas has failed to provide legal support for such a
contention. See Fed. R. App. P. 28(a)(8)(A); United States v.
Irizarry, 341 F.3d 273, 305 (3d Cir. 2003).
142