United States v. Ronald Repak

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 15-4011
_____________
UNITED STATES OF AMERICA
v.
RONALD W. REPAK,
Appellant
_____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
District Court No. 3-14-cr-00001-001
District Judge: The Honorable Kim R. Gibson
Argued: December 19, 2016
Before: SMITH, Chief Judge, MCKEE, and SHWARTZ,
Circuit Judges
(Filed: March 28, 2017)
Rebecca R. Haywood, Esq.
Laura S. Irwin, Esq. [ARGUED]
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
Counsel for Appellee
Timothy J. Lyon, Esq. [ARGUED]
Suite 1801
310 Grant Street
Pittsburgh, PA 15219
Counsel for Appellant
________________
OPINION
________________
SMITH, Chief Judge
Ronald Repak was convicted of two counts of
Hobbs Act extortion, in violation of 18 U.S.C. § 1951,
and two counts of federal program bribery, in violation of
18 U.S.C. § 666. Repak appeals his conviction and
sentence on those counts. For the reasons stated below,
we will affirm.
2
I
This is a public corruption case coming out of
Johnstown, Pennsylvania. The defendant, Ronald Repak,
was the Executive Director of the Johnstown
Redevelopment Authority (“JRA”), which receives
federal and state funding to assist in economic
development for the City of Johnstown. A voluntary
Board of Directors governs the JRA. To promote
economic development in Johnstown, the JRA’s Board of
Directors awards contracts to remediate industrial
proprieties and issues grants to attract companies to
Johnstown.
While the JRA’s Board of Directors ultimately
confers contracts and grants, the JRA’s Executive
Director, who runs the day-to-day operations of the
organization, makes recommendations to the Board as to
which contractors should receive those contracts and
grants. The JRA’s Board of Directors “relied on the
director to keep [them] informed as to what was going
on.” JA263. As one JRA Board member testified, “95
percent of what any board member [knew] in most . . .
situations . . . w[as] told [to them] by the director.”
JA262–63. In short, the Executive Director plays a vital
role in the process of selecting who receives JRA
contracts and grants.
Repak was the Executive Director from November
1977 to February 2013. His assistant was Debbie Walter.
3
With Walter’s help, Repak solicited a number of items
from contractors who had been awarded contract work by
the JRA during his time as Executive Director.1 Repak’s
solicitations included requests for concert tickets,
sporting event tickets, and golf outings. JRA contractors
acquiesced in Repak’s solicitations because “if [they]
didn’t, [they] felt that [they] would lose work.” JA284.
As one contractor testified, Repak “would sometimes . . .
provide some innuendos like, ‘Hey, I’m reviewing some
invoice here of yours,’ which [was] usually followed up
with some type of request. Or sometimes, [he would
say,] ‘Well, I can get someone else to do the work.’” Id.;
see also JA301 (“Mr. Repak provided a lot of, I said
innuendos, subtle things through conversations. And
then it would always be followed in a short period of
time by either an instruction or request. . . . [W]ith him[,]
[instructions and requests] were the same thing.”).
Of particular importance in this appeal are two
items that Repak received from JRA contractors but that
were unassociated with any JRA project: a new roof on
his house and excavating services for his son’s gym. The
Government also charged Repak with receipt of
Pittsburgh Steelers tickets from another contractor,
1
Most of Repak’s solicitations were uncharged conduct
admitted at trial through the District Court’s contested
ruling under Rule 404(b) of the Federal Rules of
Evidence, which is addressed below.
4
Kimball & Co. The jury, however, acquitted Repak on
the counts related to receipt of the Steelers tickets. For
that reason, we discuss only the receipt of the roof and
excavating services in detail.
In 2009, JRA contractor EADS Group (“EADS”)
replaced the roof on Repak’s home at no cost to Repak.
While Repak and several EADS employees were
together, Repak overheard an EADS employee, Stephen
Sewalk, discussing his past roofing business. Repak then
asked Sewalk to take a look at the roof on his home. At
that time, EADS did significant business with the JRA.
Based on Repak’s past solicitations for tickets and other
items, Sewalk stated that he “inward[ly] sigh[ed]”
following Repak’s roof request and thought “here we go
[again].” JA286. Although Sewalk initially tried to
ignore Repak’s request, Sewalk “knew it wasn’t going to
go away” after Repak made the request again several
months later. Id. Sewalk then went to look at Repak’s
roof but testified at trial that he did not give Repak a
quote for work on the roof. Rather, after Sewalk spoke
with EADS’s CEO, EADS “figured [the roof] was going
to be another . . . favor” and informed Repak that it
would cover the cost of replacing his roof. JA287.
Sewalk testified that, although Repak offered to pay for
the roof at one point, Repak also told him to “bury [the
roofing expenses] in an invoice” to the JRA. JA288.
EADS ultimately replaced the roof at a cost of $3,000 to
$4,000. Instead of concealing those expenses in JRA
5
invoices as Repak instructed, EADS simply bore the cost
of replacing the roof. When asked at trial why EADS did
this for Repak, Sewalk responded that EADS replaced
the roof simply so that EADS could “maintain the
workload” with the JRA. Id.; see also JA289 (“[W]e
wanted to keep people employed and do our work. So I
figured if we told [Repak] no that we weren’t going to be
working there much longer.”).
Also in 2009, a JRA contractor performed
excavating services at a gym owned by Repak’s son.
Neither Repak nor his family paid for it. Repak initially
asked another JRA contractor to do the excavating work,
but, after Repak told the contractor to bury $5,000 out of
the $6,000 excavating price quoted in a JRA invoice, the
contractor turned him down and refused to work for the
JRA again. As that contractor put it, “I just discussed it
with my wife and kids, . . . and we just decided it would
be better just to walk away [than continue to work for the
JRA and Repak].” JA359.
Repak then enlisted another JRA contractor, L&M
Excavating Company (“L&M”), to do the work. Repak
instructed L&M to demolish two abandoned homes and
level lots adjoining his son’s gym and then to spread
gravel on the leveled area for parking. This work cost
L&M $17,500. After completing the requested work, an
L&M employee, Rick McNulty, asked Repak whom
L&M should invoice for the work. Repak told McNulty
to “just bury [the $17,500] in invoices” to the JRA and
6
did not offer to pay for L&M’s services. JA325–26. At
that time, sixty percent of L&M’s business came from
the JRA. Yet, rather than follow Repak’s instruction to
submit fraudulent invoices, L&M assumed the $17,500
cost to level and gravel the property near the gym. When
asked why L&M did this, McNulty explained that
providing these gratuitous services to Repak was just
“part of doing business with the [JRA] and Mr. Repak.”
JA311.
As members became suspicious of Repak’s
dealings with JRA contractors, the JRA’s Board of
Directors implemented policies to control gratuities and
expenditures. The gratuities policy prohibited JRA
contractors from offering any gratuity to any JRA
employee and prohibited JRA employees from accepting
the same. The expenditures policy required the approval
of the JRA’s Board of Directors for all JRA expenditures
over $500. At trial, JRA contractors expressed the relief
they felt following enactment of the gratuities policy.
One JRA contractor testified, “I was relieved [because]
. . . it gave me my ammunition to say no, I guess. I
didn’t have to continue doing this.” JA290. Echoing the
sentiment behind the JRA policies, another contractor
opined, “It had to stop. It was getting to the point that
[Repak] was like one power running everything in the
city of Johnstown and if . . . this wasn’t the way you
would choose to do business, you wouldn’t do business
here.” JA330.
7
II
A grand jury returned a six-count indictment
against Repak arising out of his actions as the Executive
Director of the JRA. The six counts related to three
underlying factual circumstances: Counts 1 and 2
pertained to Repak’s receipt of Pittsburgh Steelers tickets
from Kimball & Co.; Counts 3 and 4 dealt with the
installation of a new roof on Repak’s house by EADS;
and Counts 5 and 6 related to the excavation services
performed by L&M at Repak’s son’s gym. Counts 1, 3,
and 5 charged Repak with violations of the Hobbs Act,
18 U.S.C. § 1951(a), for knowing obstruction, delay, or
effect on commerce “by extortion” through the
solicitation and receipt of goods and services, “which
were not due him or his office, and to which he was not
entitled, . . . in exchange for [his] official action and
influence as the Executive Director of the [JRA] to
facilitate the award of [JRA] contracting work.” JA55,
JA57, JA59. Counts 2, 4, and 6 charged Repak with
violations of the federal program bribery statute, 18
U.S.C. § 666(a)(1)(B), alleging that he “did corruptly
solicit, demand, accept, and agree to accept something of
value, intending to be influenced and rewarded in
connection with [JRA business],” specifically that Repak
respectively “solicited and obtained” goods and services
“in exchange for his official actions and influence as the
Executive Director of the [JRA].” JA56, JA58, JA60.
8
Before trial, the District Court decided two
motions in limine filed by the Government that were
relevant to Repak’s appeal. First, Repak challenged the
admission of evidence of solicitations and items he
received beyond those items charged in the indictment
(“other-acts evidence”). The District Court allowed the
Government to introduce the other-acts evidence,
determining that the evidence was admissible to prove
Repak’s mental state for the charged offenses. See
United States v. Repak, No. 3-14-cr-00001, 2015 WL
4108309, at *4–6 (W.D. Pa. July 7, 2015). Second,
Repak challenged the admission of evidence of an affair
he had with Walter under Rule 403 of the Federal Rules
of Evidence. Following briefing on the issue, the District
Court permitted admission of the affair evidence,
concluding the affair was relevant to Repak’s mental
state and would further assist the jury in assessing
Walter’s credibility when she testified. See JA11–17.
At trial, the parties jointly proposed and, with
limited exceptions not relevant here, agreed to jury
instructions. The District Court later read those
instructions to the jury. The instructions informed the
jury of the elements of the two charged offenses—
violations of the Hobbs Act and the federal program
bribery statute. The elements of a Hobbs Act violation
were defined as follows:
First, that the defendant took from [the three
JRA contractors] the property described in
9
Counts 1, 3, and 5. Second, that the
defendant did so knowingly and willfully by
extortion under color of official right.
Third, that as a result of defendant’s actions
interstate commerce was obstructed,
delayed, or affected.
JA656. The elements of federal program bribery were
defined as:
First, that at the time alleged in the
indictment defendant was an agent of the
[JRA]. Second, that the [JRA] received
federal benefits in excess of $10,000 in a
one-year period. Third, that defendant
solicited and accepted something of value
from [the three JRA contractors]. Fourth,
that defendant acted corruptly with the intent
to be influenced or rewarded in connection
with the business and transactions of the
[JRA].
JA660–61. Repak’s main defense to the charges at trial
was that he lacked the requisite mental state in accepting
any items to influence the awarding of JRA contracts.
The jury convicted Repak on Counts 3 through 6,
the Hobbs Act and federal program bribery charges
involving the roof on Repak’s house and the excavating
services for his son’s gym. The District Court sentenced
10
Repak to 42 months of incarceration on each count of
conviction, with the sentences to run concurrently. The
District Court also ordered Repak to pay restitution to
EADS in the amount of $3,500 and to L&M in the
amount of $15,000. Repak timely appealed his judgment
of conviction and sentence.2
III
The District Court had jurisdiction over this matter
pursuant to 18 U.S.C. § 3231 because this case involves
an offense against the laws of the United States. We
have jurisdiction over the appeal under 28 U.S.C. § 1291.
On appeal, Repak raises six arguments related to
the District Court’s evidentiary rulings, the jury
instructions, the sufficiency of trial evidence, and the
prosecutor’s conduct during closing arguments. We
conclude that none are meritorious.
A
Repak’s first contention is that, under Rule 404(b)
of the Federal Rules of Evidence, the District Court
improperly admitted evidence of his solicitations of items
from JRA contractors beyond those charged in the
2
While Repak’s notice of appeal identifies his sentence
as being appealed, he raises no argument related to the
sentence independent of his challenges to the judgment
of conviction.
11
indictment. We review the District Court’s evidentiary
ruling for abuse of discretion, e.g. United States v.
Friedman, 658 F.3d 342, 352 (3d Cir. 2011) (citing
United States v. Starnes, 583 F.3d 196, 213–14 (3d Cir.
2009)), but also “exercise plenary review . . . to the
extent [the rulings] are based on a legal interpretation of
the Federal Rules of Evidence,” Complaint of
Consolidation Coal Co., 123 F.3d 126, 131 (3d Cir.
1997).
Rule 404(b)(1) states: “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.” Fed.
R. Evid. 404(b)(1). While generally excluding evidence
of an individual’s “other acts” to show that individual’s
propensity to behave in a certain manner, Rule 404(b)(2)
permits admission of other-acts evidence “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)(2).
“Rule 404(b) is a rule of general exclusion . . . .”
United States v. Caldwell, 760 F.3d 267, 276 (3d Cir.
2014); see also United States v. Brown, 765 F.3d 278,
291 (3d Cir. 2014) (“Rule 404(b) is generally a rule of
exclusion.”). That is, “Rule 404(b) directs that evidence
of prior bad acts be excluded—unless the proponent can
demonstrate that the evidence is admissible for a non-
propensity purpose.” Caldwell, 760 F.3d at 276. We
12
clarified in Caldwell that this Court’s past description of
Rule 404(b) as “inclusionary,” see, e.g., United States v.
Cruz, 326 F.3d 392, 395 (3d Cir. 2003), referred to Rule
404(b)(2)’s language allowing other-acts evidence to be
used for any purpose other than to show propensity, Fed.
R. Evid. 404(b)(2). See Caldwell, 760 F.3d at 276. That
is, our prior reference to Rule 404(b) as inclusionary
“merely reiterate[d] the drafters’ decision to not restrict
the non-propensity uses of evidence.” Id. We used that
language because, prior to Rule 404(b), the
corresponding common law rule for other-acts evidence
limited the uses of such evidence. See United States v.
Green, 617 F.3d 233, 244 (3d Cir. 2010). Rule 404(b)
altered the common law rule with “inclusionary”
language, allowing the proponent of other-acts evidence
to identify any non-propensity purpose and no longer
requiring the proponent “to pigeonhole his evidence into
one of the established common-law exceptions, on pain
of exclusion.” Id. In sum, Rule 404(b) is a rule of
exclusion, meaning that it excludes evidence unless the
proponent can demonstrate its admissibility, but it is also
“inclusive” in that it does not limit the non-propensity
purposes for which evidence can be admitted.
Because Rule 404(b) is a rule of general exclusion,
the party seeking to admit other-acts evidence has “the
burden of demonstrating [the evidence’s] applicability.”
Caldwell, 760 F.3d at 276. Admissibility under Rule
404(b) requires the satisfaction of four distinct steps: (1)
13
the other-acts evidence must be proffered for a non-
propensity purpose; (2) that evidence must be relevant to
the identified non-propensity purpose; (3) its probative
value must not be substantially outweighed by its
potential for causing unfair prejudice to the defendant;
and (4) if requested, the other-acts evidence must be
accompanied by a limiting instruction. See Huddleston v.
United States, 485 U.S. 681, 691 (1988); Caldwell, 760
F.3d at 277–78.
The Government here sought to introduce evidence
of Repak’s “business relationships with vendors of the
JRA, which specifically include[d] instances of other
uncharged acts of solicitations by Mr. Repak to JRA
vendors, including but not limited to” Kimball & Co.,
EADS, and L&M. JA123. Without further explanation,
the Government contended in its motion in limine that
Repak’s “prior course of conduct and business
dealings/relationship with the named entities, including
previous solicitations, [was] extremely relevant and
[would] go directly to prove” Repak’s “knowledge” and
“corrupt intent.” JA125–26. The prosecution also
argued that the uncharged acts of solicitation were
admissible under Rule 404(b) as “background” evidence
to “complete[] the story” and provide “context.” JA127–
29.
The District Court permitted introduction of the
proffered evidence. In relevant part, the District Court
reasoned:
14
[T]he Court finds that the Rule 404(b)
evidence that the Government intends to
introduce is admissible. . . . Defendant’s
business dealings with the various vendors,
including other instances of solicitations that
were not charged in the indictment in this
case, are relevant to showing a necessary
element of the crimes charged in this case.
Specifically, these business dealings and
other solicitations will be used by the
Government to establish Defendant’s
knowledge as to the charges of extortion
under color of official right and his willful
intent as to the charges of solicitation by a
bribe. Thus, the “other acts” evidence is
being introduced for a proper evidentiary
purpose and not as propensity evidence. . . .
The Government intends to introduce other
act evidence to develop examples of
solicitations during the course of
Defendant’s business transactions with
various entities, and for which Defendant
acted with the requisite corrupt intent and
knowledge. Likewise, the Government’s
evidence of other solicitations is relevant
under Rule 401 to establish necessary
elements of the crimes charged in this case.
The Government has presented a sufficient
chain of inferences connecting these other
15
acts to material facts in this case without
implicating the evidentiary rules’ prohibition
of using propensity evidence. Furthermore,
this evidence satisfies the balancing
requirements of Rule 403. The other act
evidence to be introduced by the
Government is probative of facts in this case
and that probative value is not substantially
outweighed by any unfair prejudice.
Finally, in accordance with the law on this
issue, the Court will provide a limiting
instruction as necessary.
JA25–27.
Repak challenges the sufficiency of the District
Court’s Rule 404(b) analysis, arguing that (1) the District
Court failed to properly explain how the uncharged acts
of solicitation relate to a non-propensity purpose and (2)
the District Court erred by not properly scrutinizing the
evidence’s prejudicial effect vis-à-vis its probative value.
We agree with Repak that the District Court’s analysis
was lacking but conclude that, under a proper Rule
404(b) analysis, the Government’s other-acts evidence
was admissible.
We proceed by critically analyzing each of the four
steps in the methodological process for determining
admissibility under Rule 404(b).
16
1
The Government and District Court satisfied step
one of the applicable Rule 404(b) analysis, properly
identifying a non-propensity purpose for introducing
Repak’s other past solicitations—knowledge and intent.3
See Brown, 765 F.3d at 291; Caldwell, 760 F.3d at 276.
The plain text of Rule 404(b) allows for the admission of
other-acts evidence to show knowledge and intent as the
Government proffered here. See Fed. R. Evid. 404(b)
(noting that other-acts evidence may be admissible for
proving “intent” and “knowledge”); see also United
States v. Vega, 285 F.3d 256, 261 (3d Cir. 2002)
(“Evidence of prior bad acts may be admitted for the
purpose of demonstrating the defendant’s knowledge in
3
The District Court did not address the Government’s
suggestion that the other-acts evidence provides
“background” for the case. We have held that the use of
other-acts evidence as “background” can be permissible,
see, e.g., Green, 617 F.3d at 247, but have recently
cautioned against overreliance on this purpose as a means
for admitting other-acts evidence, see United States v.
Steiner, 847 F.3d 103, No. 14-4628, 2017 WL 437657, at
*4–6 (3d Cir. Feb. 1, 2017). Because the District Court
did not rely on the use of other-acts evidence as
“background” and the evidence here properly showed
Repak’s mental state, we need not address the propriety
of the Government’s proposed “background” use.
17
the later offense with which he is charged.”). Repak put
his mental state at issue in this case. His knowledge and
intent are elements of the two charged offenses. See 18
U.S.C. § 1951(a); 18 U.S.C. § 666(a)(1)(B); see also
Evans v. United States, 504 U.S. 255, 268 (1992)
(concluding that, to show extortion under the Hobbs Act,
the Government must prove that a defendant obtained a
payment “knowing that the payment was made in return
for official acts”). Repak contested those elements at
trial, contending that he did not accept items from JRA
contractors with the intention of influencing the awarding
of JRA contracts. Use of the uncharged solicitations to
show Repak’s mental state was a proper non-propensity
use of that evidence under Rule 404(b).
2
The Government and District Court, however,
faltered at step two of the Rule 404(b) analysis. Both
failed to explain how the Government’s proffered
evidence was relevant to Repak’s mental state. See
Caldwell, 760 F.3d at 276 (other-acts evidence must be
“relevant to [a non-propensity] purpose”). Nonetheless,
the admission of this evidence was proper because it was
relevant to that non-propensity purpose.
To be relevant, proffered evidence must fit into “a
chain of inferences—a chain that connects the evidence
to a proper purpose, no link of which is a forbidden
propensity inference.” United States v. Davis, 726 F.3d
18
434, 442 (3d Cir. 2013). “[T]his chain [must] be
articulated with careful precision because, even when a
non-propensity purpose is ‘at issue’ in a case, the
evidence offered may be completely irrelevant to that
purpose, or relevant only in an impermissible way.”
Caldwell, 760 F.3d at 281.
We have recently reiterated the importance of
concretely connecting the proffered evidence to a non-
propensity purpose. In United States v. Caldwell, we
rejected the use of prior gun possession convictions to
show a defendant’s knowledge that he actually possessed
a gun. Id. at 283. Testimony at trial demonstrated that
the defendant was seen carrying the gun, and yet the
Government proceeded to introduce the defendant’s prior
gun possession convictions to show his actual possession
of the charged gun. Id. at 279. “Because the
Government proceeded solely on a theory of actual
possession,” we held that the defendant’s “knowledge
was not at issue in the case.” Id. (“[A]bsent unusual
circumstances (such as when a defendant claims he did
not realize the object in his hand was a gun), the
knowledge element in a felon-in-possession case will
necessarily be satisfied if the jury finds the defendant
physically possessed the firearm.”). We reached that
conclusion because we could observe “no articulation by
the Government of a logical chain of inferences showing
how [the defendant’s] prior convictions [were] relevant to
show [the non-propensity purpose of] knowledge.” Id. at
19
281. Rather, the Government there simply relied on ipse
dixit, stating the “baseline position” that the evidence of
the defendant’s prior gun convictions was “generally
relevant” to show the defendant’s knowledge that he
possessed the gun related to the charged offense. Id.
That baseline position told us “nothing about how the
evidence” helped established the defendant’s knowledge.
Id. We further observed that the District Court in
Caldwell “likewise failed to articulate how the disputed
evidence tend[ed] to show that [the defendant] knowingly
possessed the gun [related to the charged gun
possession].” Id. In doing so, we “emphasize[d] that it is
not enough to merely recite a Rule 404(b) purpose that is
at issue; the Court must articulate how the evidence is
probative of that purpose.” Id. at 282. In summary,
Caldwell makes clear that a logical chain of inferences
must be articulated so that we are “assure[d] that the
evidence is not susceptible to being used improperly by
the jury.” Id.
Similarly, in United States v. Brown, 765 F.3d 278
(3d Cir. 2014), we rebuffed the Government’s efforts to
introduce evidence of a defendant’s previous use of straw
purchasers to buy guns to show that the defendant had
knowledge that he was in a car with a gun. Id. at 294.
As in Caldwell, we began by noting the complete lack of
an explanation by the Government for how its evidence
was relevant to its proffered non-propensity purpose. See
id. at 293 (“The Government has completely failed to
20
explain how the fact that [the defendant] used a straw
man in 2005 to purchase firearms tends to prove that he
knowingly possessed the gun under the driver’s seat of
the Impala six years later. These are two entirely distinct
acts, and participation in one has no relationship to the
other.”). The Government’s explanation was that the
defendant’s prior use of a straw purchaser made it “more
likely that he used . . . a straw purchaser to obtain the
gun” he was charged with possessing. Id. That, we
noted, was “too great a leap in logic” and “indubitably
forged” the Government’s chain of inferences “with an
impermissible propensity link.” Id. Critically, the
District Court there also failed to explain sufficiently its
basis for admitting the evidence. The District Court
stated simply that the Government could use the evidence
“to show motive or knowledge and that type of thing
along those lines.” Id. at 294 (citations omitted). We
instructed that the District Court “should not merely
inquire of the prosecution what it wishes the evidence to
prove” but rather put the Government to the task of
explaining how the evidence “should work in the mind of
a juror to establish the fact the government claims to be
trying to prove.” Id. (quotation marks and citations
omitted).
The Government’s proffer and District Court’s
explanation here fell short, failing to explain how
evidence of uncharged solicitations would have a
tendency to make Repak’s knowledge and intent more
21
probable in the mind of a juror. The question is whether
the evidence of other uncharged solicitations by Repak
was relevant to show Repak’s mental state as to the
charged conduct—solicitation of the roof and excavation
services. In its motion in limine, the Government merely
stated, in cursory fashion, that Repak’s “prior course of
conduct and business dealings/relationship with the
named entities, including previous solicitations, [was]
extremely relevant and [would] go directly to prove”
Repak’s “knowledge” and “corrupt intent.” JA125–26.
As in Caldwell and Brown, the Government failed to
articulate a chain of inferences supporting the admission
of Repak’s uncharged solicitations. Instead, the
Government stated only that a logical chain connecting
the evidence to a non-propensity purpose exists. That
statement is not enough to demonstrate the admissibility
of Rule 404(b) evidence. The District Court should have
asked the Government to explain “how the proffered
evidence should work in the mind of a juror to establish”
Repak’s knowledge and intent related to the roof and
excavation services. Caldwell, 760 F.3d at 282 (quoting
United States v. Miller, 673 F.3d 688, 699 (7th Cir.
2012)).
The District Court’s analysis of the Rule 404(b)
admission is also wanting. As quoted above, the District
Court observed, “Defendant’s business dealings with the
various vendors, including other instances of solicitations
that were not charged in the indictment in this case, are
22
relevant to showing a necessary element of the crimes
charged in this case.” JA26. It added that “[t]he
Government ha[d] presented a sufficient chain of
inferences connecting these other acts to material facts in
this case.” JA27. Like the Government’s explanation,
this analysis is inexact and fails to adequately link the
other-acts evidence to a non-propensity purpose with
“careful precision.” Caldwell, 760 F.3d at 281; see also
Brown, 765 F.3d at 294 (“When confronted with a
proffer under Rule 404(b), a district court should not
merely inquire of the prosecution what it wishes the
evidence to prove.”). In essence, this was the “mere
recitation of the purposes in Rule 404(b)(2)” that we have
previously deemed inadequate. Caldwell, 760 F.3d at
277.
Despite the inexact nature of the Government’s
proffer and the District Court’s Rule 404(b) analysis, our
review of the record leads us to conclude that the
evidence of Repak’s uncharged solicitations was properly
admitted to prove Repak’s mental state. Although we
strongly prefer that the Government and District Court
provide the chain of inferences supporting the admission
of other-acts evidence (as this Court has repeatedly
required), we are able to discern that the chain exists
here. Repak repeatedly solicited and received items from
JRA contractors at great cost to the contractors; the
growing costs of these items to the JRA contractors tends
to show that Repak knew that these items were not
23
unilateral token gifts; therefore, it is more likely that
Repak knowingly and intentionally accepted the roof and
excavating services with an understanding that those
items were to influence the award of JRA contracts to
those contractors.4 This chain of inferences did not
require the jury to make “too great a leap in logic.”
Brown, 765 F.3d at 293.
That chain of inferences is not unfamiliar. In
United States v. Console, 13 F.3d 641 (3d Cir. 1993), we
4
The uncharged solicitations may also have been used to
explicate Repak’s guilt by providing insight into the
minds of the contractors Repak extorted: through
Repak’s repeated demands for items, the JRA contractors
came to believe that they would lose JRA work if they
failed to acquiesce in his demands. Testimony revealing
the state of mind of an extortion victim is relevant in
Hobbs Act cases. See United States v. Stirone, 311 F.2d
277, 280 (3d Cir. 1962) (“It is well settled that testimony
showing the state of mind of the victim is permitted in
Hobbs Act cases.”); see also United States v. Dozier, 672
F.2d 531, 542 (5th Cir. 1982) (“[T]he victim’s fearful
state of mind is a crucial element in proving extortion.”
(quoting United States v. Hyde, 448 F.2d 815, 845 (5th
Cir. 1971))); United States v. Craig, 573 F.2d 513, 520
(7th Cir. 1978) (“We believe that the state of mind
testimony of the victims was admissible to show that the
victims’ consent was induced by defendant’s office.”).
24
upheld the admission of other-acts evidence against two
lawyers who conspired with a doctor to submit fraudulent
medical bills to insurances companies. Id. at 658–59.
The other-acts evidence there showed that the lawyers
also engaged in a similar scheme with doctors other than
the doctor charged in the indictment. Id. We reasoned
that the other-acts evidence “tended to support the
finding that [the lawyers] knew [the] bills [related to the
charged conduct] were fraudulent and that they
intentionally submitted them to insurance companies as
part of a broader plan to defraud insurance companies
through fraudulent personal injury claims.” Id. at 659.
For that reason, we permitted admission of the evidence
under Rule 404(b).
In a recent similar case, we concluded that Rule
404(b) allowed for the admission of evidence that a
defendant—the Executive Director of the Legislature for
the Virgin Islands—received a kickback bribe from a
third party. See United States v. Willis, 844 F.3d 155,
169–70 (3d Cir. 2016). Much like the present case, the
Government alleged that the defendant received money
from contractors in exchange for the defendant’s
facilitating the award of certain renovation contracts to
those same contractors. Id. at 158. The Government
proffered other-acts evidence showing that, while he held
a different government position, the defendant received
money from an individual in exchange for lifting a lien
on that individual’s bank account. Id. at 169. The
25
individual was one of the contractors connected to the
charged conduct. Id. The purpose for introducing that
proffered evidence was “to demonstrate that [the
defendant] was not mistaken about the nature of the
transactions involved in the . . . renovation and fully
intended to accept bribes and commit extortion.” Id. at
169–70. We determined that a “strong nexus” existed
between the past bribe the defendant received and the
charged conduct. Id. More specifically, the earlier bribe
demonstrated that the charged payments from contractors
“were not loans, that they were not gifts, and that [the
defendant] intended to accept cash in exchange for
handing out more government contract work.” Id.
Much like in Willis, the past solicitations here were
closely related to the charged acts, and participation in
one had a relationship to the other. Cf. Brown, 765 F.3d
at 293. The Government’s evidence of uncharged
solicitations demonstrated Repak’s course of conduct
over a relatively circumscribed time period with the same
actors involved in the charged conduct. That evidence
thus tends to show that Repak “intended to accept [the
roof and excavating services] in exchange for handing
out more government contract work.” Willis, 844 F.3d at
170. The other-acts evidence makes it more likely that
Repak did not “unwittingly” solicit and receive the roof
and excavation services without knowing or intending
that the services were meant to influence him in his role
as the JRA’s Executive Director. Vega, 285 F.3d at 262
26
(permitting use of Rule 404(b) evidence related to prior
conspiracy to show that the defendant “did not
unwittingly participate” in the charged crime).
Therefore, while the Government and District Court
failed to adequately connect the other-acts evidence to a
non-propensity purpose, a more fulsome examination
demonstrates that the evidence was relevant to prove
Repak’s mental state.
3
The District Court’s analysis also fell short at step
three of the Rule 404(b) analysis. That third step requires
that other-acts evidence must not give rise to a danger of
unfair prejudice that substantially outweighs the
probative value of the evidence under Rule 403 of the
Federal Rules of Evidence. See Brown, 765 F.3d at 291.
Rule 403 states: “The court may exclude relevant
evidence if its probative value is substantially
outweighed by a danger of . . . unfair prejudice.” Fed. R.
Evid. 403. Rule 403 “creates a presumption of
admissibility.” United States v. Claxton, 766 F.3d 280,
302 (3d Cir. 2014). “Evidence cannot be excluded under
Rule 403 merely because its unfairly prejudicial effect is
greater than its probative value. Rather, evidence can be
kept out only if its unfairly prejudicial effect
‘substantially outweigh[s]’ its probative value.” United
States v. Cross, 308 F.3d 308, 323 (3d Cir. 2002)
(alteration in original) (quoting Fed. R. Evid. 403).
Nevertheless, district courts must undertake some
27
analysis, i.e., provide “meaningful balancing,” when
applying Rule 403 to determine the admissibility of Rule
404(b) evidence. Caldwell, 760 F.3d at 283. “We will
reverse where the Court’s reasoning ‘is not apparent from
the record.’” Id. (quoting United States v. Smith, 725
F.3d 340, 348 (3d Cir. 2013)).
The balancing (or lack thereof) performed in
Caldwell is instructive. In Caldwell, the District Court
stated: “What I want to say is that not only are [the past
convictions] admissible under 404(b), but because
knowledge and intent are at issue here, they are more
probative than prejudicial. I find that the probative value
outweighs any prejudicial effect as well as to their
admissibility.” Id. at 284. That analysis, we concluded,
offered “nothing more than a bare recitation of Rule
403.” Id. The omission of any “meaningful evaluation”
of the prejudicial effect of the Rule 404(b) evidence
failed to ensure that the probative value of the evidence
was not outweighed by the danger of unfair prejudice.
Id.
The District Court’s analysis here is strikingly
similar to the recitation of Rule 403 we determined to be
inadequate in Caldwell. The District Court stated simply
that the other-acts evidence “satisfies the balancing
requirements of Rule 403.” JA27. In the following
sentence, the District Court simply reiterated its
conclusion: “The other act evidence to be introduced by
the Government is probative of facts in this case and that
28
probative value is not substantially outweighed by any
unfair prejudice.” Id. Although the Government
tendered its Rule 403 balancing when offering its
evidence, the District Court needed to provide its own
Rule 403 balancing before admitting the evidence. An
evaluation under Rule 403 is not meaningful if it merely
states a bare conclusion. More is required. As the
District Court failed to offer its own reasoning, the
District Court’s balancing failed to provide “meaningful
evaluation” of the Government’s evidence of Repak’s
uncharged solicitations. Caldwell, 760 F.3d at 284.
That said, it is “apparent from the record” that the
prejudicial effect of the Government’s evidence does not
substantially outweigh the probative value of that
evidence. Id. The probative value of Repak’s past
solicitations was significant. See Willis, 844 F.3d at 170
(upholding the admission of a past bribe as evidence
tended to show that a government official did not
perceive the bribe to be a loan or a gift); Vega, 285 F.3d
at 262 (permitting use of Rule 404(b) evidence because
that evidence tended to show that the defendant “did not
unwittingly participate” in the charged crime); Console,
13 F.3d at 659 (concluding that Rule 404(b) evidence
was relevant to show defendants’ knowledge and intent
regarding the charged conduct). Moreover, Repak
challenged the proof as to his knowledge and intent,
making those elements of the charged offenses the
centerpiece of the trial. Cf. Caldwell, 760 F.3d at 283
29
(“[T]he probative value of prior act evidence is
diminished where the defendant does not contest the fact
for which supporting evidence has been offered.”).
Repak himself concedes that this evidence played a key
role at trial and likely contributed to the Government’s
carrying its burden as to his mens rea. See Reply Br. 16
(“[A]t trial the Government repeatedly emphasized the
404(b) evidence . . . .”).
That compelling probative value is not
substantially outweighed by any prejudice arising from
the admission of the uncharged solicitations. For one, as
explained below, the District Court provided a limiting
instruction, mitigating any concern that the jury would
have used this evidence to draw a propensity inference.
See infra. We have no reason to believe the jury did not
follow the limiting instruction. See United States v.
Newby, 11 F.3d 1143, 1147 (3d Cir. 1993) (“[W]e
presume that the jury will follow a curative instruction
unless there is an ‘overwhelming probability’ that the
jury will be unable to follow it and a strong likelihood
that the effect of the evidence would be ‘devastating’ to
the defendant.” (internal quotation marks and citations
omitted) (quoting Greer v. Miller, 483 U.S. 756, 766 n.8
(1987))). Second, any prejudice here does not compare
to the “heightened” prejudicial impact identified in
Caldwell. 760 F.3d at 284. There, we observed the
“heightened” prejudice caused by the introduction of
other-acts evidence when that evidence was “admitted in
30
the form of a prior criminal conviction, especially a prior
conviction for the same crime as that being tried.” Id. In
comparison, the Government here introduced other-acts
evidence of Repak’s uncharged conduct. Given that
difference, the evidence of Repak’s uncharged conduct
was simply not of the same prejudicial ilk as the identical
past convictions introduced in Caldwell.
The District Court’s application of Rule 403 to the
Government’s other-acts evidence lacked the rigor this
Court requires. Yet in our application of proper Rule 403
scrutiny, we conclude than any danger of unfair prejudice
resulting from admission of Repak’s uncharged
solicitations fails to substantially outweigh the probative
value of those solicitations.
31
4
Finally, the District Court dutifully performed the
fourth step of the Rule 404(b) analysis, appropriately
providing limiting instructions for the other-acts evidence
as requested by Repak. As we have held, the District
Court must provide the jury with a limiting instruction, if
requested, “advis[ing] the jury that the evidence is
admissible for a limited purpose and may not be
considered in another manner.” Caldwell, 760 F.3d at
277; see also Brown, 765 F.3d at 291. Here, the District
Court provided two limiting instructions. During the
trial, the District Court advised the jury that:
[t]his evidence of other acts, in other words,
acts that are not charged in the indictment,
was admitted only for limited purposes.
You may only consider this evidence for the
purpose of deciding whether the defendant
had the state of mind, knowledge, or intent
necessary to commit the crimes charged in
the indictment.
JA341–42. At the close of the evidence, the District
Court instructed, “[The] evidence of other acts was
admitted for limited purposes. You may consider this
evidence only for the purpose of deciding whether the
defendant had the knowledge or intent necessary to
commit the crimes charged in the indictment.” JA649–
50. The District Court thus satisfied step four in
32
providing a limiting instruction on the jury’s use of the
Rule 404(b) evidence.
***
We agree with Repak that the Government and
District Court failed to adequately explain the basis for
admitting the other-acts evidence under Rule 404(b).
Nevertheless, under a proper Rule 404(b) inquiry, the
evidence of Repak’s uncharged solicitations was
admissible.
B
Repak contends that the admission of evidence
regarding his affair with his assistant, Debbie Walter,
was an error under Rule 403 of the Federal Rules of
Evidence. This Court reviews the District Court’s
admission for abuse of discretion. See United States v.
Bailey, 840 F.3d 99, 117 (3d Cir. 2016).
As noted above, Rule 403 states: “The court may
exclude relevant evidence if its probative value is
substantially outweighed by a danger of . . . unfair
prejudice.” Fed. R. Evid. 403. We have observed:
Rule 403 does not provide a shield for
defendants who engage in outrageous acts,
permitting only the crimes of Caspar
Milquetoasts to be described fully to a jury.
It does not generally require the government
33
to sanitize its case, to deflate its witnesses’
testimony, or to tell its story in a monotone.
Cross, 308 F.3d at 325 (quoting United States v.
Gartmon, 146 F.3d 1015, 1021 (D.C. Cir. 1998)). Thus,
a district court need only keep out evidence “if its
unfairly prejudicial effect ‘substantially outweigh[s]’ its
probative value.” Id. at 323.
In briefing before the District Court, Repak
contended that his affair with Walter was “irrelevant to
the charges in the Indictment or simply prejudicial.”
JA77. In response, the Government explained that the
affair “put[] [Walter’s] actions and testimony into
context,” “squarely addresse[d] facts at issue, i.e.,
whether or not solicitations and receipt of items occurred
as charged,” and impacted Walter’s credibility. JA152.
The District Court ruled that, while prejudicial, evidence
of the affair was also highly probative. JA15. According
to the District Court, the affair was “relevant to the
Government’s burden of showing Defendant’s mental
state regarding the crimes charged.” JA15. As an
example, the District Court observed that “witnesses will
testify that solicitations by Defendant were made to
benefit Walter because she was his paramour,” thus
demonstrating a motive for certain solicitations. Id. It
also accepted the Government’s argument that the affair
would assist the jury in assessing Walter’s credibility.
JA15–16.
34
Repak’s argument on appeal is two-fold but
straightforward. He contends that evidence of his affair
was not relevant and that the prejudice created by its
admission substantially outweighed whatever probative
value that evidence has. Repak’s arguments are
ultimately unpersuasive. The District Court reasonably
exercised its discretion to admit the affair evidence. See
United States v. Universal Rehab. Servs. (PA), Inc., 205
F.3d 657, 665 (3d Cir. 2000) (“If judicial self-restraint is
ever desirable, it is when a Rule 403 analysis of a trial
court is reviewed by an appellate tribunal.” (quoting
United States v. Long, 574 F.2d 761, 767 (3d Cir.
1978))).
The Government elicited testimony from multiple
JRA contractors regarding requests for items coming
directly from Walter. See, e.g., JA327; JA374; JA384.
Those contractors also testified that they would buy items
for Walter at Repak’s request. See, e.g., JA327. One
contractor affirmed that he had knowledge of the affair
while the solicitations were occurring, and another knew
that giving Walter items would make Repak happy.
JA289–90; JA327. For her part, Walter admitted that she
had a romantic relationship with Repak. JA406. She
also testified that she would occasionally email Repak’s
requests for items to JRA contractors. JA408. She stated
that she would make these requests because of “both” her
business and personal relationship with Repak. JA409.
Finally, Repak himself admitted to the affair. JA514–15.
35
Given this legal and factual background, the
evidence of Repak’s affair was relevant. See Fed. R.
Evid. 401. For one, testimony of the affair tended to
show that Repak possessed the requisite mens rea when
obtaining items from the JRA contractors. More
specifically, the evidence may have explained Repak’s
motivation in making certain requests. See, e.g., JA409–
10 (Walter testifying that she asked Repak to get tickets
to a Tony Bennett performance). Evidence of the affair
may also have shown that Repak knew the items were
given to Walter to please him and thereby garner
contracts for the JRA contractors. See JA327 (stating
that items were provided for Walter because she “was
Mr. Repak’s assistant and with him constantly and was
involved with all their projects the same”); cf. United
States v. Scarfo, 850 F.2d 1015, 1020 (3d Cir. 1988)
(permitting admission of evidence “describing
[witnesses’] relationship to the defendants . . . to
illustrate the witnesses’ role in the [criminal acts]”).
Second, the affair evidence assisted the jury in assessing
Walter’s credibility. Her credibility was at issue when it
came to her testimony about the requests she made for
Repak, Repak’s views about the gratuities policy enacted
by the JRA, and the reasons she was willing to help
Repak make those requests. As we have unequivocally
held, “evidence concerning a witness’s credibility is
always relevant, because credibility is always at issue.”
Green, 617 F.3d at 251. The affair evidence was
unquestionably relevant.
36
While relevant, the affair evidence likely caused
some prejudice to Repak. The record, however, fails to
demonstrate that that prejudice was unfair or that it
substantially outweighed the evidence’s probative value.
The affair evidence was hardly a main feature of the
trial.5 The testimony outlined above constitutes the
entirety of the testimony regarding the affair. In short,
trial testimony regarding the affair was not belabored; it
simply advised the jury of the personal relationship
between Repak and Walter for the permissible purposes
mentioned above.
Thus, given the probative value of the affair
evidence and the limited nature of its prejudicial effect,
the District Court did not abuse its discretion in admitting
that evidence. See United States v. Lee, 612 F.3d 170,
190 (3d Cir. 2010) (observing that district courts are
owed “substantial deference . . . in weighing evidence
under Rule 403”).
C
Repak next challenges the sufficiency of the trial
evidence underlying his convictions. “We exercise
5
Repak argues that comments about his affair made by
the Government attorney during closing arguments also
prejudiced him. That argument is better framed as a
claim of prosecutorial misconduct, and we address it
below in that context.
37
plenary review over a district court’s grant or denial of a
motion for judgment of acquittal based on the sufficiency
of the evidence, applying the same standard as the district
court.” Starnes, 583 F.3d at 206. “In reviewing a jury
verdict for sufficiency of the evidence . . . [,] we must
consider the evidence in the light most favorable to the
government and affirm the judgment if there is
substantial evidence from which any rational trier of fact
could find guilt beyond a reasonable doubt.” United
States v. Iglesias, 535 F.3d 150, 155 (3d Cir. 2008)
(internal quotation marks and citations omitted) (quoting
United States v. Lore, 430 F.3d 190, 204 (3d Cir. 2005)).
This standard is “highly deferential.” United States v.
Caraballo-Rodriguez, 726 F.3d 418, 430 (3d Cir. 2013)
(en banc). We “must be ever vigilant . . . not to usurp the
role of the jury by weighing credibility and assigning
weight to the evidence, or by substituting [our] judgment
for that of the jury.” Id. (alteration in original) (quoting
United States v. Brodie, 403 F.3d 123, 133 (3d Cir.
2005)).
1
Repak makes two arguments against his
convictions on Counts 3 and 5, charging violations of the
Hobbs Act, 18 U.S.C. § 1951. First, Repak contends that
there is no evidence he received the roof and excavation
services for his agreement to influence official acts.
Second, Repak maintains that the award of JRA contracts
is not an “official act” under § 1951 as interpreted by the
38
Supreme Court in McDonnell v. United States, 136 S. Ct.
2355 (2016). We conclude that the trial evidence was
sufficient to permit a rational trier of fact to find Repak
guilty of both counts beyond a reasonable doubt.
i
Repak’s contention that there is no evidence of an
“agreement” to influence official JRA actions is wrong
on the law and contrary to the record. When proving a
violation of § 1951, the Government does “not have to
show the defendant[] had an express agreement.” United
States v. Bradley, 173 F.3d 225, 231 (3d Cir. 1999).
“[T]he Government need only show that a public official
has obtained a payment to which he was not entitled,
knowing that the payment was made in return for official
acts.” Evans, 504 U.S. at 268. Put differently, “it is
sufficient if the public official understands that he is
expected, as a result of the payment, to exercise
particular kinds of influence or to do certain things
connected with his office as specific opportunities arise.”
Bradley, 173 F.3d at 231 (quoting jury instructions). The
instructions the District Court provided to the jury here
mirrored the language from that case law:
The government is not required to prove an
explicit promise to perform the official acts
in return for the payment. Passive
acceptance of a benefit by a public official is
a sufficient basis for this type of extortion if
39
the official knows that he is being offered
payment in exchange for his ability to do
official acts.
JA657–58. Therefore, Repak’s contention that the
Government failed to demonstrate an “agreement” is
unpersuasive.
While the Government need not show an
agreement, it does need to demonstrate Repak’s
acceptance of the roof and excavating services knowing
that they were given in exchange for his influencing the
award of JRA contracts. Rarely will the sort of
knowledge the Government charged Repak with be
reflected in a written agreement, nor does the
Government need to produce such a document. See
Bradley, 173 F.3d at 231. Rather, the Government need
only rely on circumstantial evidence. Id. at 232. The
Government did so here.
At trial, JRA contractors testified to the “unspoken
understanding” between themselves and Repak. JA333.
Explaining why EADS provided Repak with free
services, EADS employee Stephen Sewalk testified: “[I]f
we didn’t [follow Repak’s instructions], I felt that we
would lose work.” JA284. That view was based on more
than intuition. Repak would tell Sewalk, “‘Hey, I’m
reviewing some invoice here of yours,’ which [was]
usually followed up with some type of request.” Id.; see
also JA289 (recalling that Repak would threaten that he
40
would find “someone else” who would be willing to
fulfill his demands); JA301 (“Mr. Repak provided a lot
of, I said innuendos, subtle things throughout
conversations. And then it would always be followed in
a short period of time by either an instruction or request.
. . . [W]ith him[,] [instructions and requests] were the
same thing.”). L&M employee Rick McNulty similarly
explained that providing free services and items to Repak
was simply “part of doing business with the [JRA] and
Mr. Repak.” JA311. He reached this conclusion
following messages from Repak telling McNulty that
Repak “need[ed]” certain items from L&M and follow-
up calls from Repak to McNulty asking why items had
not yet been provided. JA311, JA317. Putting a finer
point on his testimony, McNulty stated that he knew that
if he didn’t provide those services, “it would be a
problem from a work aspect.” JA312.
As the old adage goes, “actions often speak louder
than words.” Here, the actions of the JRA contractors
spoke volumes about their understanding with Repak.
EADS provided Repak with a new roof, bearing $3,000
to $4,000 in costs. JA287–88; JA315–16. After
receiving the new roof, Repak told Sewalk to bury EADS
expenses in an invoice to the JRA. JA299–300. Sewalk
testified that he knew his company would not get more
work from the JRA if it required Repak to pay for his
roof. JA289. Similarly, L&M provided Repak with
excavating services for his son’s gym, at a cost of
41
$17,500 to L&M. JA325–26. Echoing Sewalk’s
testimony, McNulty stated that when he asked Repak
who he should invoice for the excavating services, Repak
told him to “just bury it in invoices” to the JRA. JA326.
This evidence was more than sufficient to show that
Repak obtained the roof and excavating services,
“knowing that the payment was made in return for
official acts.” Evans, 504 U.S. at 268.
Viewing that evidence in the light most favorable
to the Government, a rational jury could have convicted
Repak of the Hobbs Act charges. See Bradley, 173 F.3d
at 231 (observing that “knowing winks and nods”
demonstrating a mutual understanding with a public
official was sufficient for conviction under § 1951
(quoting Evans, 504 U.S. at 274 (Kennedy, J., concurring
in part and concurring in the judgment))).
ii
Repak’s second contention regarding Counts 3 and
5, relying on McDonnell v. United States, is equally
unpersuasive.
In McDonnell, the Supreme Court vacated
convictions under § 1951 because jury instructions in that
case improperly defined “official act.” 136 S. Ct. at
2373. Pursuant to § 1951, a criminal offense occurs
when an individual “obstructs, delays, or affects
commerce . . . by extortion,” with extortion defined as
42
“the obtaining of property of another, with his consent,
. . . under color of official right.” 18 U.S.C. § 1951(a),
(b). The parties in McDonnell agreed that “extortion
under color of official right” under § 1951 included the
element of obtaining property knowing the property “was
given in return for official action.” 136 S. Ct. at 2365.
The parties further agreed that “official action” should be
given the same meaning those words have in the federal
bribery statute, 18 U.S.C. § 201(a)(3). Id.
Section 201(a)(3) of the federal bribery 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 Supreme Court held
that proving an “official act” requires a two-part
showing. McDonnell, 136 S. Ct. at 2368.
“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.” Id. (quoting 18 U.S.C.
§ 201(a)(3)). The Supreme Court made two key
clarifications as to this required showing. First, the Court
defined a “question” or “matter” as “similar in nature to a
cause, suit, proceeding, or controversy.” Id. at 2369.
The Court further clarified that the “question” or
“matter” must “involve a formal exercise of
43
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. Second, the
Court observed that the “question” or “matter” must also
be “something specific and focused that is ‘pending’ or
‘may by law be brought.’” Id. It described a “question”
or “matter” that is “pending” as “something that is
relatively circumscribed—the kind of thing that can be
put on an agenda, tracked for progress, and then checked
off as complete.” Id. at 2369.
The second part of the showing to prove an
“official act” requires the Government to “demonstrate
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.” Id. at 2368. Providing
some contour to that requirement, the Court observed that
“if a public official uses his official position to provide
advice to another official, knowing or intending that such
advice will form the basis for an ‘official act’ by another
official, that too can qualify as a decision or action.” Id.
at 2370. By way of example, the Court noted that “a
decision or action to initiate a research study” would
sufficiently constitute a decision or action “on” a
question or matter. Id.; cf. United States v. Sun-Diamond
Growers of Cal., 526 U.S. 398, 407 (1999) (observing
that the hosting of a championship sports team by the
President of the United States would not constitute an
“official act”).
44
As in McDonnell, the parties here agreed to
instructions, read to the jury, which defined “extortion
under color of official right” to mean “that a public
official induced, obtained, accepted, or agreed to accept a
payment to which he or she was not entitled, knowing
that the payment was made in return for taking,
withholding, or influencing official acts.” JA657
(emphasis added). The instructions also required that the
official acts be “pending before a government agency.”
JA658. The parties do not dispute that the definition of
“official acts” comes from § 201(a)(3) of the federal
bribery statute.
Repak insists that the trial evidence of his
facilitating the award of JRA contracts failed to
demonstrate an “official act,” as defined in McDonnell,
because that evidence did not demonstrate (1) a
“question” or “matter” akin to “a lawsuit before a court, a
determination before an agency, or a hearing before a
committee” and (2) “something specific and focused that
is ‘pending’ or ‘may by law be brought’ before a public
official.” 136 S. Ct. at 2368, 2372.
Repak’s first McDonnell argument is off the mark.
The awarding of a JRA contract is not only akin to an
agency determination—it is an agency determination.
The Supreme Court in McDonnell concluded that a
“Revitalization Commission’s” allocation of grant money
was not only a sufficiently “focused and concrete” matter
but also “involve[d] a formal exercise of governmental
45
power that is similar in nature to a lawsuit, administrative
determination, or hearing.” Id. at 2370. As in
McDonnell, a decision by the JRA—a governmental
agency—to award money to contractors as part of its
public mission to develop Johnstown’s infrastructure is
undoubtedly the “formal exercise of governmental
power.” Id. at 2372. It is, plainly, an agency
determination.
Repak’s second McDonnell argument, that the
award of JRA contracts is not a “specific and focused
[question or matter] that is ‘pending,’” is likewise
unpersuasive. Id. In McDonnell, the Government argued
that the focus of an event hosted by the defendant was
“economic development” and that “economic
development” was sufficiently narrow under § 201(a)(3).
Id. 2368–69. The Supreme Court in McDonnell,
however, concluded that “economic development” is not
specific and focused. Id. at 2374. In doing so, the Court
reasoned that “economic development is not naturally
described as a matter ‘pending’ . . . any more than
‘justice’ is pending or may be brought by law before a
judge, or ‘national security’ is pending or may be brought
by law before an officer of the Armed Forces.” Id. at
2369. It noted, though, that a “Revitalization
Commission’s” decision to allocate grant money would
be a “focused and concrete” matter. Id. at 2370.
In the language of McDonnell, the award of JRA
contracts is “specific and focused.” It is a concrete
46
determination made by the JRA’s Board of Directors and
“the kind of thing that can be put on an agenda, tracked
for progress, and then checked off as complete.” Id. at
2369. It is “something within the specific duties of an
official’s position—the function conferred by the
authority of his office.” Id. The JRA and its Board of
Directors were undisputedly tasked with the
responsibility of awarding contracts. The JRA received
federal funds and, among other obligations, was
“responsible to distribute those funds, . . . to provide for
the engineering, [and] procurement of construction”
related to redevelopment projects. JA491. As part of
that process, and in his capacity as JRA Executive
Director, Repak made recommendations to the JRA
Board of Directors as to which contractors should be
used on specific projects. JA507. The assigning of
contractors to JRA projects can thus “naturally [be]
described” as a matter “pending” before the JRA, unlike
the nebulous issue of “economic development” in
McDonnell. 136 S. Ct. at 2369.
Implicit in both of Repak’s arguments under
McDonnell is the suggestion that the facilitation of the
award of those contracts is not a decision or action “on” a
question or matter. The Supreme Court held in
McDonnell that an action “on” a question or matter
includes a public official’s use of his position “to exert
pressure on another official or provide advice, knowing
or intending [that] such advice . . . form the basis for an
47
‘official act.’” Id. at 2371. As demonstrated by the
record here, Repak had the power to, and indeed did,
make recommendations to the JRA as to the contractors it
hired for projects. JA507. The evidence was sufficient
for the jury to conclude that he accepted the roof and
excavating services knowing that he was to use his
power, i.e., the ability to provide advice, to influence the
JRA’s awarding of contracts.
Therefore, the facilitation of the award of JRA
contracts is an “official act” as defined by McDonnell.
Evidence of Repak’s receipt of items knowing he was to
facilitate the award of those contracts provided a
sufficient basis for a rational trier of fact to convict him
of the Hobbs Act charges under Counts 3 and 5.
2
As to Counts 4 and 6 related to 18 U.S.C. § 666,
Repak argues that the trial evidence insufficiently
demonstrated that he possessed the “corrupt” intent to be
influenced by the roof and excavating services he
received. Again, Repak is incorrect. A rational trier of
fact could find the requisite intent beyond a reasonable
doubt.
As outlined above, the JRA contractors testified to
an unspoken but certain understanding between
themselves and Repak under which they would provide
Repak with items of value (usually items he specifically
48
requested) and Repak would influence the award of JRA
contracts. The statements attributed to Repak at trial
repeatedly suggested as much, and his continued receipt
of items from those contractors further demonstrated that
he intended for such items—the costs for which he
instructed be buried in JRA invoices—to influence the
award of JRA contracts to those contractors. In sum,
when viewed in the light most favorable to the
Government, the record demonstrates more than enough
evidence for a rational trier of fact to conclude, beyond a
reasonable doubt, that Repak possessed the requisite
intent to convict him on the § 666 charges. Cf. United
States v. Andrews, 681 F.3d 509, 529–30 (3d Cir. 2012)
(concluding that the trial evidence sufficiently
demonstrated the defendant’s intent to have a public
official influence government action under § 666).
D
Repak also argues that the District Court provided
the jury with erroneous instructions. More precisely, he
contends that the instructions related to the Hobbs Act
(Counts 3 and 5) and the federal program bribery statute
(Counts 4 and 6) failed to properly advise the jury of the
elements of the offenses charged. The parties agree that
plain error review applies. See United States v.
Zehrbach, 47 F.3d 1252, 1260 & n.6 (3d Cir. 1995)
(“Where a party has not made a clear, specific objection
to the charge that he alleges is erroneous at trial, he
waives the issue on appeal ‘unless the error was so
49
fundamental and highly prejudicial as to constitute plain
error.’” (quoting Bennis v. Gable, 823 F.2d 723, 727 (3d
Cir. 1987))). “[B]efore an appellate court can correct an
error not raised at trial, there must be (1) ‘error,’ (2) that
is ‘plain,’ and (3) that ‘affects substantial rights.’”
Johnson v. United States, 520 U.S. 461, 466–67 (1997)
(quoting United States v. Olano, 507 U.S. 725, 732
(1993)). “[A]n error affects substantial rights when ‘it
affected the outcome of the [lower] court proceedings.’”
Gov’t of the V.I. v. Mills, 821 F.3d 448, 456 (3d Cir.
2016) (second alteration in original) (quoting United
States v. Marcus, 560 U.S. 258, 262 (2010)). “It is a rare
case in which an improper instruction will justify reversal
of a criminal conviction when no objection has been
made in the trial court.” United States v. DiSalvo, 34
F.3d 1204, 1215 (3d Cir. 1994) (quoting Henderson v.
Kibbe, 431 U.S. 145, 154 (1977)).
Although Repak fails to state the underlying legal
basis for his jury instruction challenge, we have held:
Due process requires that the Government
prove every element of the charged offense
beyond a reasonable doubt. Accordingly,
jury instructions that relieve the Government
of this burden violate a defendant’s due
process rights. Carella v. California, 491
U.S. 263, 265 (1989). The inquiry is
whether the court’s instruction constituted a
mandatory presumption by “directly
50
foreclos[ing] independent jury consideration
of whether the facts proved established
certain elements of the offense with which
[the defendant] was charged.” Id. at 266.
United States v. Korey, 472 F.3d 89, 93 (3d Cir. 2007)
(citation omitted). In making this inquiry, the “[j]ury
instructions must be read as a whole.” United States v.
Flores, 454 F.3d 149, 157 (3d Cir. 2006) (quoting EEOC
v. Del. Dep’t of Health & Soc. Servs., 865 F.2d 1408,
1418 (3d Cir. 1989)). Jury instructions satisfy due
process if “the charge as a whole fairly and adequately
submits the issues in the case to the jury.” United States
v. Thayer, 201 F.3d 214, 221 (3d Cir. 1999) (quoting
Zehrbach, 47 F.3d at 1264).
1
Repak first challenges the instructions associated
with Counts 3 and 5, which charged violations of 18
U.S.C. § 1951. In relevant part, the jury instructions
read:
Count 3 of the indictment charges that . . .
Repak[] did knowingly obstruct, delay, and
affect commerce and the movement of
articles and commodities in commerce by
extortion, as those terms are defined in [18
U.S.C. § 1951]. That is, [Repak], while
executive director of the [JRA] engaged in a
51
course of conduct whereby [he] solicited and
obtained from [EADS], with [EADS’]
consent, a new roof on the personal
residence of [Repak], . . . which was not due
to him or his office and to which he was not
entitled, in exchange for [his] official action
and influence as the executive director of the
[JRA], to facilitate the award of [JRA]
contracting work to [EADS], all under color
of official right and all in violation of [18
U.S.C. § 1951].
...
Count 5 of the indictment charges that . . .
Repak did knowingly obstruct, delay, and
affect commerce and the movement of
articles and commodities in commerce by
extortion, as those terms are defined in [18
U.S.C. § 1951]. That is, [Repak], while
executive director of the [JRA] engaged in a
course of conduct whereby [he] solicited and
obtained from [L&M], with [L&M’s]
consent, building demolition and grading
services at Evolution Gym, . . . which was
not due to him or his office and to which he
was not entitled, in exchange for [his]
official action and influence as the executive
director of the [JRA], to facilitate the award
of [JRA] contracting work to [L&M], all
52
under color of official right and all in
violation of [18 U.S.C. § 1951].
JA652–55. The instructions then state that an element of
§ 1951 is that the defendant did “knowingly and willfully
by extortion under color of official right” obtain property
from the JRA contractors. JA656. The instructions go
on to define “extortion under color of official right,”
defining the phrase to mean “that a public official
induced, obtained, accepted, or agreed to accept a
payment to which he or she was not entitled, knowing
that the payment was made in return for taking,
withholding, or influencing official acts.” JA657.
Repak advances two arguments regarding those
instructions. First, he contends that the jury instructions
allowed the jury to convict him for any “official acts,”
without limiting the focus to only his facilitation of the
award of JRA contracts. Second, he argues that even if
the indictment did not broaden the allowable “official
acts” of which he could be convicted, the District Court
failed to inform the jury that it must determine whether
the facilitation of the award of JRA contracts is an
official act. Neither argument carries the day.
As to Repak’s first argument, he fails to identify
any other “official act” on which he could have been
convicted, and, in doing so, fails to explain how he could
have been convicted of “official acts” other than his
facilitation of the award of JRA contracts. And review of
53
the record reveals no other “official act” evidence
presented by the Government. Indeed, the Government’s
only theory at trial was that Repak accepted the roof and
excavating services knowing that he was expected to
facilitate the award of JRA contracts to EADS and L&M.
Repak’s second challenge to the § 1951
instructions fares no better. The District Court’s
instructions charged the jury with how it might find that
Repak committed “extortion under color of official right”
and defined that extortion to include the “influencing [of]
official acts.” JA657. The instructions go even further
by identifying the “official act” as “facilitat[ing] the
award of [JRA] contracting work.” JA652–55. Thus,
contrary to Repak’s contention, the instructions were
sufficient in requiring the jury to determine whether the
facilitation of the award of JRA contracts constituted an
“official act.”
Reading the jury instructions as a whole, we
believe those instructions “fairly and adequately
submit[ed]” to the jury the issue of whether facilitating
the award of JRA contracts constituted an “official act.”
Thayer, 201 F.3d at 221.
2
With regard to Counts 4 and 6, which charged
violations of 18 U.S.C. § 666, Repak again argues that
the jury instructions broadened the conduct that he could
54
be convicted of, beyond just the facilitation of the award
of JRA contracts. He specifically takes issue with the
following language from the instructions: “The fourth
element the government must prove beyond a reasonable
doubt is that [Repak] accepted or agreed to accept, or
solicited something of value corruptly, and with the
intent to be influenced or rewarded in connection with
some business or transaction of the [JRA].” JA662
(emphasis added). According to Repak, that instruction
permitted the jury to convict him of influencing any JRA
“business or transaction,” not merely the award of JRA
contracts.
Reading those instructions as a whole, we
conclude that the instructions did not violate Repak’s due
process rights. In summarizing the charges against
Repak, the District Court stated:
Count 4 of the indictment charges that . . .
[Repak] did corruptly solicit, demand,
accept, and agree to accept something of
value, intending to be influenced and
rewarded in connection with the business
transaction and series of transactions of the
[JRA] . . . . That is, [Repak] solicited and
obtained a new roof on his personal
residence in exchange for his official actions
and influence as the executive director of the
[JRA], to facilitate the award of contracting
work to [EADS].
55
...
Count 6 of the indictment charges that . . .
[Repak] did corruptly solicit, demand,
accept, and agree to accept something of
value, intending to be influenced and
rewarded in connection with the business
transaction and series of transactions of the
[JRA] . . . . That is, [Repak] solicited and
obtained building demolition and grading
services at [his son’s gym] in exchange for
his official actions and influence as the
executive director of the [JRA], to facilitate
the award of contracting work to [L&M].
JA653–56. Those instructions thus specifically identify
the “business or transaction” the Government charged
Repak with influencing: “the award of [JRA] contracting
work.” Id. Moreover, as with the charges under § 1951,
Repak fails to identify any other JRA “business or
transactions” in the trial evidence that could have
supported a conviction. Again, the Government’s only
theory at trial was that Repak received a roof and
excavating services from EADS and L&M, respectively,
to facilitate the grant of JRA contracts. The instructions
related to § 666, therefore, “as a whole fairly and
adequately submit[ed] the issues in the case to the jury.”
Thayer, 201 F.3d at 221 (quoting Zehrbach, 47 F.3d at
1264).
56
E
Repak also asserts that reversal is called for
because the indictment charging him was constructively
amended. “We exercise plenary review in determining
whether there was a constructive amendment of the
indictment,” but, “inasmuch as [Repak] did not raise the
constructive amendment . . . in the district court we . . .
consider [the issue] on a plain error basis.” United States
v. Daraio, 445 F.3d 253, 259 (3d Cir. 2006).
In United States v. Daraio, we described the
circumstances under which constructive amendment of
an indictment occurs:
An indictment is constructively amended
when, in the absence of a formal
amendment, the evidence and jury
instructions at trial modify essential terms of
the charged offense in such a way that there
is a substantial likelihood that the jury may
have convicted the defendant for an offense
differing from the offense the indictment
returned by the grand jury actually charged.
Id. at 259–60. “The key inquiry is whether the defendant
was convicted of the same conduct for which he was
indicted.” Id. at 260 (quoting United States v. Robles-
Vertiz, 155 F.3d 725, 729 (5th Cir. 1998)). “If a
defendant is convicted of the same offense that was
57
charged in the indictment, there is no constructive
amendment.” United States v. Vosburgh, 602 F.3d 512,
532 (3d Cir. 2010).
Repackaging his earlier challenge to his jury
instructions, Repak contends that his indictment was
constructively amended such that he could have been
convicted for facilitating any “official act” under the
Hobbs Act, Counts 3 and 5, and influencing any JRA
“business or transaction” under the federal program
bribery statute, Counts 4 and 6. Once again, Repak is
wrong. The jury convicted him for the same conduct for
which he was indicted.
In Daraio, we held that no constructive
amendment of the indictment had occurred where the
district court provided the jury with thorough instructions
that tracked the language in the indictment. 445 F.3d at
261. The indictment in Daraio charged the defendant
with a specific act of tax evasion, but the Government
also introduced evidence of prior tax non-compliance.
Id. at 260. We nevertheless concluded that “the district
court’s instructions ensured that the jury would convict
[the defendant], if at all, for a crime based on conduct
charged in the indictment.” Id. We based our decision
on the “basic tenet of our jurisprudence that a jury is
presumed to have followed the instructions the court
gave it.” Id. (quoting United States v. Givan, 320 F.3d
452, 462 (3d Cir. 2003)). We also highlighted the district
court’s limiting instructions, which instructed the jury
58
that those other actions of tax non-compliance were not
charged in the indictment and could not be the basis for a
conviction. Id. at 261. For those reasons, we concluded:
“[T]he district court obviated the possibility of the
indictment being constructively amended by issuing
accurate and thorough jury instructions precluding the
jury from convicting [the defendant] for any conduct
other than that which the indictment charged.” Id.
Like in Daraio, Repak was convicted of the same
conduct for which he was charged. First, as with his
challenge to the jury instructions, Repak points to no
other “official act” or “transaction” for which he could
have been convicted. Second, as part of its jury charge,
the District Court read each count in the indictment,
which—as we noted above—identified the specific
“official act” or “transaction” related to each count, i.e.,
the facilitation of “the award of [JRA] contracting work.”
JA651–56. Third, the District Court also instructed the
jury multiple times that it was not to consider evidence of
Repak’s uncharged solicitations for any reason other than
to prove his mental state as to the crimes charged. We
presume, as we must, that the jury followed the District
Court’s instructions. Daraio, 445 F.3d at 260. We
therefore conclude that the District Court “thoroughly
and accurately instructed the jury on the basic elements
of [Repak’s charged offenses] and focused the jury’s
attention on the conduct that the indictment charged.” Id.
at 260–61. No constructive amendment of the indictment
59
occurred.
F
Finally, Repak raises a due process claim based on
alleged prosecutorial misconduct during closing
arguments. Because Repak did not preserve this claim
through objections at trial, we review for plain error. See
Mills, 821 F.3d at 456.
The Fifth Amendment’s Due Process Clause
provides defendants with a right to a fair trial, which
includes protection from prosecutorial misconduct. See
id. “When confronted with a claim that a prosecutor’s
remarks violated this right, we first determine whether
those remarks constituted misconduct.” Id. “If so, we
proceed to determine whether that misconduct ‘so
infected the trial with unfairness as to make the resulting
conviction a denial of due process . . . .’” Id. (quoting
Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)).
“Not all prosecutorial misconduct violates this right.”
United States v. Liburd, 607 F.3d 339, 344 (3d Cir.
2010). Rather, we examine “the prosecutor’s offensive
actions in context and in light of the entire trial, assessing
the severity of the conduct, the effect of the curative
instructions, and the quantum of evidence against the
defendant.” Lee, 612 F.3d at 194 (quoting Moore v.
Morton, 255 F.3d 95, 107 (3d Cir. 2001)). “[A] criminal
conviction is not to be lightly overturned on the basis of a
prosecutor’s comments standing alone, for the statements
60
or conduct must be viewed in context; only by so doing
can it be determined whether the prosecutor’s conduct
affected the fairness of the trial.” Id. (alteration in
original) (quoting United States v. Young, 470 U.S. 1, 11
(1985)); see also Greer v. Miller, 483 U.S. 756, 765
(1987) (“To constitute a due process violation, the
prosecutorial misconduct must be of sufficient
significance to result in the denial of the defendant’s right
to a fair trial.” (internal quotations omitted)).
Repak complains that four statements made by the
Government attorney in her closing argument constituted
prosecutorial misconduct producing an unfair trial. We
are not persuaded that any reversible error occurred.
1
Repak first points to statements regarding his affair
with Walter. The Government attorney argued, “Not
only did Mr. Repak have Ms. Walter as his mistress, but
he also dictated e-mails to her where in those e-mails he
instructed what he wanted.” JA603. The prosecutor also
stated:
Speaking about how the rules don’t matter—
and by no means, am I or this Court the
morality police, but it goes to show that the
lines are blurred easily and rules are not
followed easily with Mr. Repak. He
engaged in an extramarital affair with his
61
assistant for years. His explanation was
well, yes, it happened, but it was on and off.
So I guess we can assume from that, I’m
faithful to my wife. I’m not faithful to my
wife. I’m faithful to my wife. I’m not
faithful to my wife. Yet another example of
the blurring of what is permissible, even in
his personal life that you heard about.
JA 609. This line of argument was inappropriate,
irrelevant to any issue at trial, and unnecessarily
prejudicial. No reasonable person could have heard these
words and not have considered them a direct reference to
Repak’s marital infidelity. As such, the prosecutor’s
suggestion was that Repak was dishonest.
Nonetheless, we do not believe that these
comments so tainted the trial as to violate Repak’s Fifth
Amendment rights. The District Court instructed the jury
that the “statements and arguments of the lawyers for the
parties” were not evidence the jury could consider.
JA638; see also United States v. Berrios, 676 F.3d 118,
136 (3d Cir. 2012) (“These instructions were likewise an
adequate response to the possibility that the improper
commentary would lead the jury astray in its
deliberations.”). We again presume the jury followed the
instructions they were given. See Daraio, 445 F.3d at
260. Also, on rebuttal, the Government attorney
retreated from her previous statements and instead
62
refocused the jury on the affair’s relevance in explaining
both why Repak may have been asking for certain items
and why Walter may have been involved in making
solicitations. JA629–30. Finally, as we observed
regarding Repak’s challenge to the sufficiency of the
evidence, “the jury was presented with ample evidence
on which it could convict” Repak of the charged
offenses. Berrios, 676 F.3d at 136. Considering the
entire record, and taking into account the context in
which the comments regarding Repak’s affair were
made, the prosecutor’s improper remarks do not rise to
the level of misconduct affecting the outcome of the trial.
2
Repak next states that the Government attorney
referred during her closing to facts not in evidence. The
Government planned to introduce testimony from one of
Repak’s employees, Debbie Kerr, regarding her
involvement with Repak’s solicitations. JA241–42. One
witness testified that Kerr had been the JRA’s secretary
but was unavailable to testify because of a sudden
hospitalization. JA431–32, JA447–48. Repak testified
that Kerr “would initiate the calls to . . . vendors,”
making requests for food items such as lunch trays.
JA507–08. During closing arguments, the Government
attorney remarked:
You will recall [Repak] testified and said,
Kerr, the receptionist over at the JRA, would
63
call up and get contractors to deliver food
trays. Kerr was going to be a government
witness, who unfortunately, as a result of a
sensitive medical issue . . . couldn’t testify.
And Mr. Repak comes in here and tells you
that Kerr would call and solicit things from
contractors to have food brought over to the
JRA.
JA609–10.
Repak’s argument that this statement constituted
prosecutorial misconduct is baseless. Both the fact that
Kerr would have been a government witness if not for
her medical issue and Repak’s testimony regarding her
actions were already a part of the record. JA447–48;
JA507–08. Responding to Repak’s testimony, the
prosecutor at most contextualized the fact that Repak had
attempted to shift the responsibility for certain
solicitations to someone who did not testify. See Fahy v.
Horn, 516 F.3d 169, 204 (3d Cir. 2008) (a prosecutor
may attack a defendant’s credibility by “point[ing] out
the inconsistencies” in his testimony). That was fair
comment, simply noting the self-serving nature of the
defendant’s testimony. It did not come close to
prosecutorial misconduct. See Berger v. United States,
295 U.S. 78, 88 (1935) (noting that a prosecutor “may
prosecute with earnestness and vigor-indeed, he should
do so”).
64
3
Repak argues that the Government attorney
improperly expressed her personal opinion regarding his
guilt. The expression of a prosecutor’s personal opinion
about the guilt of a defendant creates a risk that the jury
will “trust the Government’s judgment rather than its
own view of the evidence.” United States v. Young, 470
U.S. 1, 18–19 (1985). In relevant part, the prosecutor
stated: “We clearly, without a doubt, met what we
need[ed] to prove beyond a reasonable doubt to you.”
JA629. Repak’s argument about this comment is
unavailing.
As an initial matter, the attorney’s statement
cannot be fairly characterized as a “personal” opinion.
The attorney simply stated, using the first person plural,
that the Government considered its burden of proof to
have been met. See United States v. Sherrill, 388 F.3d
535, 538 (6th Cir. 2004) (holding that the statement, “that
man is guilty,” was not improper because phrase was
prefaced by “the government submits to you” (internal
quotation marks omitted)); see also United States v.
Werme, 939 F.2d 108, 117 (3d Cir. 1991) (“The
prosecutor is entitled to considerable latitude in
summation to argue the evidence and any reasonable
inferences that can be drawn from that evidence.”); cf.
United States v. Andujar-Basco, 488 F.3d 549, 560–61
(1st Cir. 2007) (observing that prosecutor’s statement
that “I have proven [the defendant’s guilt], absolutely,”
65
was improper but did not necessitate a new trial).
Moreover, focusing on the statement in context, we
conclude that the prosecutor was responding to defense
counsel’s argument that the Government had failed to
show certain elements of the charged offenses. See
JA628–29. The prosecutor merely replied that the
Government had put forth evidence to satisfy those
elements. JA629. Thus, at best, “[t]he statement was
merely an alternative—albeit less than desirable—form
of arguing to the jury that the evidence adduced [as to
those elements] proved [Repak’s] guilt beyond a
reasonable doubt.” United States v. Pupo, 841 F.2d
1235, 1240 (4th Cir. 1988) (en banc); see also United
States v. Fischbach & Moore, Inc., 750 F.2d 1183, 1194
(3d Cir. 1984) (“By tying his remarks to evidence on the
record, the prosecutor’s remarks were not prejudicial.”
(citation omitted)). The Government attorney’s
statement was not an impermissible personal expression
of Repak’s guilt.
4
Finally, Repak takes issue with the following
statement by the Government attorney:
In closing the defense talked about, Well,
thank you. Look what has happened to
Johnstown, because now with Mr. Repak not
here anymore, . . . Johnstown is now just
going to go away.
66
Well remember, three things even had to be
put in place before he even left [the JRA]
because of the [way] he was carrying on
business. . . . I ask you to convict him on
this, and that is the best thank you that
Johnstown can receive.
JA632. Repak contends the Government attorney
improperly asked the jury to send a message to the
community by convicting him. Although we consider the
prosecutor’s “thank you” comment to have been, at least,
an unnecessary rhetorical flourish, it was not
prosecutorial misconduct.
“There is no per se rule against invitations to a jury
to ‘send a message.’” United States v. Riley, 621 F.3d
312, 339 (3d Cir. 2010) (quoting Greenleaf v. Garlock,
Inc., 174 F.3d 352, 364 n. 9 (3d Cir. 1999)). In the
context of a “send the message” comment, we have
observed that “[t]he type of counsel misconduct that
warrants granting a new trial is not generally a single
isolated inappropriate comment, but rather repeated
conduct.” Id. The Government attorney here acted in
response to defense counsel’s suggestion that the jury
should thank Repak for what he had done for Johnstown,
see JA626 (“[Repak] was one of the best in the state at
getting funds. You heard where it is now.”), so “the
prosecution was only meeting the defense on a level of
the defense’s own choosing,” United States v. Lore, 430
F.3d 190, 214 (3d Cir. 2005) (quoting United States v.
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LaSorsa, 480 F.2d 522, 526 (2d Cir. 1973)). Given the
lack of a per se rule prohibiting this type of comment, the
isolated nature of the comment, and defense counsel’s
invitation to such comment, the prosecutor’s remark was
innocuous.
IV
For the reasons stated, we will affirm the District
Court’s judgment of conviction and sentence.
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