United States v. Barry Sussman

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 09-4023
______________
UNITED STATES OF AMERICA
v.
BARRY SUSSMAN,
Appellant
______________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Crim. No. 2-08-cr-00891-001)
Honorable Dickinson R. Debevoise, District Judge
______________
Argued December 13, 2012
BEFORE: GREENAWAY, JR., GREENBERG, and COWEN,
Circuit Judges
(Filed: March 06, 2013)
______________
1
Mark E. Coyne
John F. Romano (argued)
Office of the United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102-0000
Attorneys for Appellee
Peter Goldberger (argued)
50 Rittenhouse Place
Ardmore, PA 19003
David A. Ruhnke
Ruhnke & Barrett
47 Park Street
12th Floor
Montclair, NJ 07042-0000
Attorneys for Appellant
______________
OPINION OF THE COURT
______________
GREENBERG, Circuit Judge.
I. INTRODUCTION
This matter comes on before this Court on an appeal from
a final judgment of conviction and sentence entered against
appellant Barry Sussman (―Sussman‖) on October 8, 2009. The
government initiated this criminal case on May 12, 2008, when
2
it filed a complaint against Sussman in the District Court. The
charges stemmed from an underlying civil action in which the
Federal Trade Commission (―FTC‖) secured a judgment against
Sussman and his co-defendants in the amount of $10,204,445, as
well as equitable relief by reason of their abusive debt collection
activities. On December 9, 2008, a grand jury in the District of
New Jersey returned a two-count indictment against Sussman in
these criminal proceedings. After a five-day trial in May 2009
the jury found him guilty on one count of theft of government
property, in violation of 18 U.S.C. § 641, and one count of
obstruction of justice, in violation of 18 U.S.C. § 1503(a). On
October 5, 2009, the District Court sentenced Sussman to an
imprisonment term of 41 months on each count, to be served
concurrently, followed by three years of supervised release. The
Court also imposed a $15,000 fine and a $200 special
assessment. The Court entered a judgment of conviction and
sentence reflecting the sentence it imposed on October 8, 2009.
On October 15, 2009, Sussman filed a timely notice of
appeal. He now challenges the jury‘s verdict on insufficiency of
the evidence grounds. In an alternative argument Sussman
contends that he should be afforded a new trial because a
portion of the trial transcript is unavailable, apparently because a
court reporter lost the transcript. He also contends that the
District Court erred in admitting redacted documents from the
FTC‘s prior civil case against him into evidence. Finally, he
argues that the District Court improperly instructed the jury on
the elements of Count Two, obstruction of justice, and failed to
include his proposed ―theory of defense‖ instruction in its jury
charge. For the reasons discussed below, we will affirm.
3
II. BACKGROUND
On May 12, 2003, the FTC brought the civil action to
which we have referred against certain defendants, including
Sussman, Check Investors, Inc., a company he controlled, and
another one of Sussman‘s companies, pursuant to section 13(b)
of the Federal Trade Commission Act, 15 U.S.C. § 53(b), and
section 814(a) of the Fair Debt Collection Practices Act, 15
U.S.C. § 1692l(a). In the civil action the FTC sought a
temporary restraining order (―TRO‖) to safeguard certain assets
the defendants held so that they would be available for
satisfaction of any judgment that it might obtain. The district
court1 granted the TRO and included an asset freeze provision
prohibiting the ―[o]pening or causing to be opened [of] any safe
deposit boxes titled in the name of any Defendant, or subject to
access by any Defendant.‖ App. at 619. On August 14, 2003,
the district court granted a preliminary injunction that continued
the freeze on the defendants‘ safe deposit boxes in the civil
action. App. at 184. On July 18, 2005, the district court issued
a final order granting a permanent injunction prohibiting the
defendants from participating in debt collection activities and
entitling the FTC to judgment against the defendants in the
amount of $10,204,445. App. at 679-81. The final order
required the FTC to use the proceeds recovered on the judgment
for equitable relief to the victims of the defendants‘ wrongdoing
and then to transfer any remaining funds to the United States
1
The civil and criminal cases against Sussman took place in the
United States District Court for the District of New Jersey. For
clarity, we only will capitalize District Court when referring to
the criminal case.
4
Treasury as equitable disgorgement. App. at 689. The order
provided that ―Defendants shall have no right to challenge the
FTC‘s choice of remedies or the manner of distribution.‖ App.
at 689. Under the section of the order entitled ―Turnover of
Frozen Assets,‖ in recognition that Sussman owned certain gold
coins in a safe deposit box in the Bank of New York (―BNY‖)
branch in Secaucus, New Jersey, the order stated:
Bank of New York shall, within five (5) business
days of receiving notice of this Order by any
means . . . transfer to the FTC or its designated
agent . . . 314 $20 gold coins, 55 1 oz. Austrian
Philharmonic gold coins, and 65 1 oz. Krugerrand
gold coins contained in safe deposit box number
025-0003383 located at Bank of New York,
Branch #250, 1 Harmon Plaza, Secaucus, New
Jersey.
App. at 691.
Four days later, on July 22, 2005, in a letter to the bank‘s
legal process department, the FTC ―request[ed] that the Bank of
New York maintain the [Secaucus] safe deposit box as a frozen
account until such time as [the FTC] provide[d] [the bank] with
further instructions for the transfer of its contents to the FTC.‖2
2
Due to the fluctuating price of gold, the FTC wanted to wait
until the completion of the civil appellate process before
liquidating the coins. Evidently it was concerned that if it
liquidated them it might later need to return them after
5
App. at 722 (emphasis in original). Significantly, although
Sussman appealed from the final order, he did not seek a stay of
the order, and none ever was entered.
On September 6, 2007, we affirmed the district court‘s
final order in the civil case. FTC v. Check Investors, Inc., 502
F.3d 159 (3d Cir. 2007). Sussman petitioned for rehearing but
on February 6, 2008, we denied this petition. On the day that we
denied Sussman‘s petition for rehearing, he emailed two of his
attorneys and informed them that the Bergen County Sheriff‘s
Office had seized the contents of a Bank of America safe
deposit box (―BOA box‖) that he rented in Fort Lee, New
Jersey, to enforce a default judgment against him obtained by a
Texas creditor. Appellant‘s br. at 9-10. Like his Secaucus safe
deposit box (―BNY box‖), the Fort Lee BOA box was subject to
the district court‘s freeze order in the underlying FTC civil
action requiring that the bank turn over its contents to the FTC.
According to one of his attorneys, Sussman ―was agitated
because he felt that the FTC had not protected his interest in the
coins. . . . [H]e felt that he was in a race with the Texas creditor
to get to the [BNY] box‖ inasmuch as the creditor in his view
already had some control over the BOA box. App. at 361.
Sussman‘s attorneys told him not to try to gain access to the
BNY box.3
reacquiring them at another price if Sussman was successful on
an appeal from the judgment in the civil case. App. at 202.
3
As of October 1, 2006, J.P. Morgan Chase Bank purchased the
assets, deposits, and bank branches of the Bank of New York.
6
On February 7, 2008, a day after he advised Sussman not
to enter the bank one of his attorneys, David Shapiro, spoke with
Sussman and found his client still to be ―agitated.‖ Sussman
continued to view the situation as ―a race to the bank, a race to
the box.‖ According to Shapiro, Sussman ―want[ed] to protect
the coins because of his interest and the government‘s interest.‖
App. at 365. Later that day, Sussman entered BNY‘s branch in
Secaucus to gain access to his safe deposit box. But the BNY
box had a sticker on it that said ―refer to manager,‖ and the bank
file indicated that the box must ―remain[] held and frozen
indefinitely.‖ Appellee‘s br. at 3. BNY personal banker Dora
Texeira spoke with lead teller Emma Dos Santos, who informed
her ―that in the past it had been a problem with the box, and that
Mr. Sussman could not have access.‖ App. at 264. Texeira
asked Sussman whether he had had any problems in the past
with the box, and he responded: ―Yes, I did, but my lawyers are
taking care of it.‖ App. at 265. Texeira understood his response
to mean ―that everything was okay now, that now he could have
access to the box.‖ App. at 265.
Texeira investigated the matter further but was unable to
get a firm answer to the question of whether Sussman could
have access to the BNY box. The bank‘s legal department left
the final decision with respect to access to personnel at the
branch, and Assistant Branch Manager Luna Williams decided
to grant Sussman access. Appellant‘s br. at 9. Sussman took the
box into a private room and emptied all of the gold coins into his
briefcase. He then returned the empty box and left the bank
App. at 228. Nevertheless, for the sake of consistency, we will
refer to the Secaucus bank as ―BNY.‖
7
with the coins. Sussman later told his attorneys not to inform
the government that he had removed the coins. App. at 374. In
an email, Sussman wrote: ―Quite a hall‖ [sic: haul], and ―I think
we should do absolutely nothing. Let the [creditor] in Texas
enjoy his windfall as we will ours.‖ App. at 378.
The bank subsequently realized that it had made a
mistake when it allowed Sussman to have access to the box and,
accordingly, contacted the FTC and advised it of what had
happened. The FTC then initiated an investigation into the
matter and notified the Postal Inspection Service about the
missing coins. Postal Inspector Jeffrey DeFuria then obtained a
search warrant for the box. He executed the warrant on April
14, 2008, at which time he discovered that Sussman had
removed the coins. This discovery led the government to charge
Sussman in a criminal complaint on May 12, 2008, with the
theft of the coins and obstruction of justice. Notwithstanding
the initiation of the criminal proceedings Sussman retained the
coins for almost seven more months before returning them.
On October 2, 2008, at the request of Steven Lacheen,
another one of Sussman‘s attorneys, the United States
Attorney‘s Office convened a meeting with DeFuria and other
representatives from the government. Lacheen informed the
government‘s representatives that his client had control of the
gold coins. Nearly six weeks later, on November 10, 2008, the
United States Supreme Court denied Sussman‘s petition for a
writ of certiorari in the underlying civil case. See Check
Investors, Inc. v. FTC, 555 U.S. 1011, 129 S.Ct. 569 (2008). By
denying Sussman‘s petition, the Court left standing the district
8
court‘s permanent injunction and final order entitling the FTC to
judgment against Sussman and his co-defendants. Three days
later, on November 13, 2008, the United States Attorney‘s
Office sent a letter to Lacheen requesting that ―the gold coins be
returned to the government immediately.‖ App. at 411. On
December 2, 2008, Sussman complied with that request and
returned the coins. App. at 412.
III. JURISDICTION
The District Court exercised jurisdiction pursuant to 18
U.S.C. § 3231. We have appellate jurisdiction pursuant to 28
U.S.C. § 1291.
IV. DISCUSSION
As we have indicated, the government initiated this
criminal case on May 12, 2008, when it charged Sussman with
theft of government property under 18 U.S.C. § 641 and
obstruction of justice under 18 U.S.C. § 1503(a).
Under 18 U.S.C. § 641:
Whoever embezzles, steals, purloins, or
knowingly converts to his use or the use of
9
another, or without authority, sells, conveys or
disposes of any record, voucher, money, or thing
of value of the United States or of any department
or agency thereof, or any property made or being
made under contract for the United States or any
department or agency thereof; or
Whoever receives, conceals, or retains the same
with intent to convert it to his use or gain,
knowing it to have been embezzled, stolen,
purloined or converted--
Shall be fined under this title or imprisoned not
more than ten years, or both . . . .
Under 18 U.S.C. § 1503(a):
Whoever . . . corruptly, or by threats or force, or
by any threatening letter or communication,
influences, obstructs, or impedes, or endeavors to
influence, obstruct, or impede, the due
administration of justice, shall be punished . . . .
a. Insufficiency of the Evidence and Missing Transcripts
Sussman contends that the evidence at the trial did not
support the jury‘s verdict against him. Specifically, he argues
that the coins were not ―money, or [a] thing of value of the
United States‖ when he removed them from the BNY box, and,
if anything, he only obstructed a non-judicial ―voluntary
10
agreement‖ between the FTC and BNY. According to Sussman,
the parties entered into that agreement when the FTC wrote to
BNY requesting that the bank keep the coins in the BNY box as
a frozen account until the FTC gave it further instructions.
The scope of our sufficiency of evidence review is
familiar. ―We review sufficiency-of-the-evidence challenges
with particular deference to the jury‘s verdict.‖ United States v.
Kemp, 500 F.3d 257, 278 (3d Cir. 2007) (citation omitted). In
conducting our ―highly deferential‖ review, we view the
evidence in the light most favorable to the government as the
verdict winner and then determine whether any rational trier of
fact could have found that the essential elements of the crime
were proven beyond a reasonable doubt. United States v.
Helbling, 209 F.3d 226, 238 (3d Cir. 2000). In challenging the
verdict on sufficiency of the evidence grounds, Sussman bears
―a very heavy burden.‖ United States v. Coyle, 63 F.3d 1239,
1243 (3d Cir. 1995).
In considering Sussman‘s sufficiency of the evidence
argument, we recognize that although Sussman moved in the
District Court under Federal Rule of Criminal Procedure 29 for
a judgment of acquittal, he did not contend in his motion that the
evidence was insufficient to support a guilty verdict on the
theory that the coins were not money or a thing of value of the
United States. Quite to the contrary, in his motion he conceded
that ―[t]he FTC had taken custody of the coins‖ and that ―[t]hey
undoubtedly belonged to the FTC at that point.‖ App. at 339.
Thus, it would be appropriate for us to hold that Sussman
waived a sufficiency of the evidence argument on the money or
11
thing of value issue and that the waiver binds him on this appeal.
See In re: Diet Drugs, No. 12-1180, ____ F.3d ____, ____,
2013 WL 310195, at *6 (3d Cir. Jan. 28, 2013); Tri-M Grp.,
LLC v. Sharp, 638 F.3d 406, 416 (3d Cir. 2011). But for the
sake of thoroughness we will review his argument that the coins
were not ―money, or [a] thing of value of the United States‖
when he removed them on a plain error basis. See United States
v. Vampire Nation, 451 F.3d 189, 203 (3d Cir. 2006).
We will find plain error if there is ―(1) an error; (2) that is
plain; and (3) that affected substantial rights.‖ Id. In the event
that Sussman meets all three conditions, we have the discretion
to ―grant relief, but only if the error seriously affects the
fairness, integrity, or public reputation of [the] judicial
proceedings.‖ United States v. Dobson, 419 F.3d 231, 236 (3d
Cir. 2005) (alteration in original) (internal quotation marks and
citation omitted).
With respect to the Count Two obstruction of justice
charge, Sussman argued in the District Court and has argued
here that there was no court order that precluded him from
removing the coins from the safe deposit box and that any
restraints on him with respect to removing the coins were
contained in a voluntary agreement between the FTC and the
bank evidenced in the FTC‘s July 22, 2005 letter to BNY so that
the obstruction of justice conviction must be reversed. We will
review that argument under a sufficiency of the evidence
standard.4
4
In United States v. Knox, we noted that the Court of Appeals
12
Finally, to be successful with an argument that because a
portion of the trial transcript is missing the case ―warrant[s]
reversal,‖ Sussman must make ―a specific showing of
prejudice.‖ United States v. Sierra, 981 F.2d 123, 125 (3d Cir.
1992) (citations omitted).
1. ―[M]oney, or thing of value of the United
States‖
We are satisfied that there was sufficient evidence for the
jury to find that the coins were ―money or a thing of value of the
United States‖ at the time that Sussman removed them from the
BNY box.5 On July 18, 2005, the district court granted the
FTC‘s motion for summary judgment in the civil action and
entered a ―Final Order for Judgment and Permanent Injunction‖
that included the heading ―Turnover of Frozen Assets,‖ which
for the Tenth Circuit held that ―the plain error test and the
sufficiency of the evidence standard are essentially equivalent
inquiries.‖ 977 F.2d 815, 824 (3d Cir. 1992) (citing United
States v. Bowie, 892 F.2d 1494, 1497 (10th Cir. 1990)), vacated
on other grounds, 510 U.S. 939, 114 S.Ct. 375 (1993). As in
Knox, ―[w]e need not determine the precise boundaries of the
plain error test since the government fulfilled the more stringent
[sufficient evidence] standard‖ on both counts. Knox, 977 F.2d
at 824.
5
Arguably this question is legal in nature and is thus subject to
plenary review. But even under that standard our result would
not be different from that which we reach.
13
stated:
10. In order partially to satisfy the monetary
judgment set forth in Section 5 of this Order, any
financial . . . institution . . . that holds, controls or
maintains accounts or assets of, on behalf of, or
for the benefit of, any Defendant shall turn over
such account or asset to the FTC within five (5)
business days of receiving notice of this Order . . .
. In particular:
(a) Bank of New York shall, within five (5)
business days of receiving notice of this Order by
any means . . . transfer to the FTC or its
designated agent (i) all assets held in account
numbers . . . and (ii) 314 $20 gold coins, 55 1 oz.
Austrian Philharmonic gold coins, and 65 1 oz.
Krugerrand gold coins contained in safe deposit
box number 025-0003383 located at Bank of New
York, Branch #250, 1 Harmon Plaza, Secaucus,
New Jersey . . . .
App. at 709-10. The final order also provided that any funds or
assets recovered by the FTC were to be deposited ―into a fund
administered by the FTC or its agent for equitable relief‖ to
consumers injured by the defendants and that ―[a]ny funds not
used for such equitable relief shall be deposited to the U.S.
Treasury as equitable disgorgment.‖ App. at 708. Plainly,
under this order the government‘s interest in the coins was a
thing of value within 18 U.S.C. § 641 inasmuch as under the
14
order the government had an ownership interest in the coins or
at least the right to possession or control over the coins. See
United States v. Perez, 707 F.2d 359, 361 (8th Cir. 1983);
United States v. Mitchell, 625 F.2d 158, 161-62 (7th Cir. 1980).
Thus, it might be thought that this appeal is easily resolvable
with respect to the money or thing of value question.
Yet notwithstanding the clear provisions in the final order
and the precedents that we cite, Sussman contends that the
―Final Order in the civil case gave the FTC at most a sort of lien
(a right to levy) on Mr. Sussman‘s property, not ‗ownership‘ of
that property.‖ Appellant‘s reply br. at 7. He then contends that
the FTC failed to exercise that right as to the coins when it sent
a letter to BNY asking the bank to make a direct wire transfer
from certain designated accounts in the bank but also requested
that it ―maintain the safe deposit box as a frozen account‖ until
the FTC instructed otherwise. App. at 722 (emphasis in
original). Therefore, Sussman contends that the FTC did not
take ownership of the box‘s contents and thus the gold coins
were not ―money, or thing of value of the United States‖ under
18 U.S.C. § 641 when he removed them. Furthermore, Sussman
maintains that by asking BNY to maintain but freeze the BNY
box, the FTC entered into a ―voluntary arrangement‖ that was
separate and distinct from the district court‘s final order and
permanent injunction.6 Thus, by Sussman‘s logic, even if we
6
In ―Defendant‘s Statement of the Evidence under FRAP
10(c),‖ in which Sussman attempted to reconstruct the trial
record due to the missing transcripts, the July 22, 2005 FTC
letter to BNY is described as ―reflect[ing] a voluntary
arrangement between the bank and FTC, under which the bank
15
conclude that the district court‘s order granted the FTC
ownership of the coins for the purpose of invoking section 641,
we should hold that the FTC abandoned that interest when it
sent the letter asking the bank to maintain but freeze the box.
Sussman‘s argument, however, runs into the obvious
problem that even under his theory the FTC could have retained
an interest in the coins sufficient to satisfy the section 641
requirement by renting a separate safe deposit box in the
Secaucus bank and moving the coins to that box. It is difficult
to understand why the FTC‘s determination to allow the coins to
remain in a frozen box with the intention that Sussman could not
have access to that box rather than directly holding them at
another location pending the outcome of the civil action should
make any difference with respect to resolution of the ownership
issue. But Sussman points to United States v. Scolnick, 392
F.2d 320, 322 (3d Cir. 1968), as support for his argument so we
discuss that case. Scolnick was concerned with the seizure by
the Internal Revenue Service (―IRS‖) of $100,000 in cash found
in a safe deposit box to which the defendant-appellant Sidney
Brooks in the criminal action apparently had access and the
IRS‘s subsequent demand for $100,000 from Brooks in unpaid
and due taxes. See id. The case was triggered when the
Philadelphia police while searching for stolen jewelry following
Brooks‘ arrest for the theft discovered the cash in the box when
executing a search warrant. The police could not seize the cash
pursuant to the search warrant issued in the stolen jewelry case,
so they did not disturb the money in the box, but, instead,
will ‗maintain the safe deposit box as a frozen account‘ . . . .‖
App. at 729.
16
reported their find to the IRS. The IRS served an administrative
Notice of Termination of Tax Year on Brooks as well as a
demand for $100,000 in unpaid and due taxes. The IRS then
served a Notice of Levy, Notice of Federal Tax Lien and Notice
of Seizure on the bank pursuant to 26 U.S.C. § 6331(a) which
expressly applies to ―any person liable to pay any tax [who]
neglects or refuses to pay.‖ 26 U.S.C. § 6331(a).
In what we characterized in our opinion as a ―bizarre‖
scheme, Brooks and his co-defendants were able subsequently to
enter the bank and ―rescue‖ the safe deposit box and its contents
even though as a result of the levy the box had been sealed.
This rescue led to Brooks‘s indictment and conviction, inter alia,
for rescuing the box and money contrary to 26 U.S.C. § 7212(b).
Brooks appealed from his conviction but on the appeal we
affirmed, pointing out that the levy effected a seizure of the
property. Thus, Brooks unlawfully rescued property owned by
the United States.
Sussman correctly factually distinguishes this case from
Scolnick by pointing out that in Sussman‘s case, unlike in
Scolnick, there had not been a levy on the safe deposit box. He
thus contends that the basis for our holding in Scolnick that
property of the United States had been rescued is missing here.
But Scolnick is inapposite here, for when Sussman removed the
coins there already was an outstanding court order freezing the
safe deposit box and its contents whereas in Scolnick the levy
was crucial for without it the IRS would not have had a claim on
the contents of the box. Thus, the fact that ―[w]hen validly
invoked, [a levy] effects a seizure of the delinquent‘s property
17
tantamount to a transferal of ownership,‖ United States v.
Sullivan, 333 F.2d 100, 116 (3d Cir. 1964) (citation omitted), is
immaterial in this case for the government was not required to
rely on a levy in order to reach the contents of Sussman‘s safe
deposit box.7
The government points to United States v. Milton, 8 F.3d
39 (D.C. Cir. 1993), as a case more germane than Scolnick as
support for the money or thing of value aspect of the verdict.
Unlike Scolnick, which involved a charge under a different
statute than those involved in this case, Milton dealt with a
prosecution under 18 U.S.C. § 641 for taking money or a thing
of value of the United States. In Milton, the Equal Employment
Opportunity Commission (―EEOC‖) settled an action with CW
Transport Inc. (―CW‖) regarding employment discrimination.
CW agreed to make an irrevocable $1 million payment to the
EEOC, which would make the money available as back-pay
awards to qualified claimants. John Milton, the EEOC attorney
who was administering the settlement, deposited the CW‘s $1
million check with E.F. Hutton & Company in an account in his
name and ―such other person designated by the EEOC as EEOC
Representative for Account Claimants in EEOC vs. CW
7
Sussman also relies on In re Ashe, an inapposite decision,
which was a consolidation of four bankruptcy appeals
―involv[ing] the effect of section 522(f)(1) of the Bankruptcy
Reform Act of 1978, 11 U.S.C. § 522(f)(1) (Supp. III 1979), on
liens claimed by the Commonwealth National Bank on property
of a debtor by virtue of confessions of judgment notes.‖ In re
Ashe, 712 F.2d 864, 865 (3d Cir. 1983).
18
Transport (Case 86C 680C).‖ Milton, 8 F.3d at 41. E.F. Hutton
agreed to make payments from the account in accordance with
Milton‘s written instructions. Milton took advantage of this
arrangement to take a percentage of payments that E.F. Hutton
made at his direction to persons scheming with him who made
false claims on the fund. When charged under section 641
Milton contended that the money he took did not qualify as
―money . . . of the United States‖ under that section.
Milton was convicted of a violation of section 641 and
appealed, again advancing the argument that he did not take
money of the United States. The court of appeals rejected his
argument reasoning that CW relinquished the money it paid in
settlement of the EEOC action and E.F. Hutton and Company
served only as a repository for the funds. Though the money
ultimately would belong to legitimate claimants, until they came
forward, it belonged to the United States. The court agreed with
the EEOC that supervision and control over the $1,000,000 was
the test and that the EEOC exercised both over the E.F. Hutton
deposit.8 See Milton, 8 F.3d at 42; see also United States v.
Benefield, 721 F.2d 128, 129 (4th Cir. 1983) (―In determining
whether an interest qualifies as ‗any . . . money, or thing of
8
The court of appeals acknowledged that the EEOC‘s ‗―intent to
maintain an ownership interest in these funds‘ [was] not
reflected in a statute or regulation. . . . [I]t [was] enough that the
settlement agreement and the arrangements with E.F. Hutton,
rather than any statute or regulation, reflected the EEOC‘s
complete supervision and control over the $1 million paid to the
agency.‖ Milton, 8 F.3d at 44 n.4 (internal citation omitted).
19
value of the United States‘ under 18 U.S.C. § 641, courts have
identified as critical factors the basic philosophy of ownership
reflected in relevant statutes and regulations and the supervision
and control contemplated and manifested by the government.‖
(citations omitted)).
The court of appeals rejected Milton‘s argument that two
Supreme Court opinions, United States v. Johnston, 268 U.S.
220, 45 S.Ct. 496 (1925), and United States v. Mason, 218 U.S.
517, 31 S.Ct. 28 (1910), on which he relied (and on which
Sussman now relies) were contrary to its result .9 These cases
dealt with the initial source and ultimate destination of stolen
money. See Milton, 8 F.3d at 42-43.
Rather than following those two cases, the court of
appeals in support of its holding cited and followed its decision
in Arbuckle v. United States, 146 F.2d 657 (D.C. Cir. 1944). In
Arbuckle, the manager of the United States Senate‘s restaurant
was tasked with deposit of the receipts at the restaurant in a non-
government bank. The manager then could use those funds to
cover the cost of food and expenses for the restaurant so far as
the funds were sufficient for that purpose. The manager,
however, diverted some of the receipts to himself and thus was
9
See Milton, 8 F.3d at 42 (discussing Johnston, 268 U.S. 220,
45 S.Ct. 496 (considering whether a person collecting admission
fees to a sporting event is guilty of embezzlement when he does
not remit to the government taxes due on the fees), and Mason,
218 U.S. 517, 31 S.Ct. 28 (dealing with a charge of
embezzlement of money paid to a clerk of court)).
20
indicted and convicted for embezzlement of money or property
of the United States. On appeal from the conviction the court of
appeals used a supervision and control test to uphold the
manager‘s conviction. See Arbuckle, 146 F.2d at 659.
Here, BNY was in a position like E.F. Hutton in Milton
in that it functioned as the repository of the coins just as E.F.
Hutton was the repository of the money in Milton. And, like the
EEOC in Milton, the FTC retained supervision and control of
the asset when it decided to hold the coins by leaving them in
the BNY box. We recognize that the EEOC deposited the
$1,000,000 in an account in its name, but here the FTC was in a
similar position because it had a court-ordered monetary
judgment in its name, enforceable against any and all of
Sussman‘s assets, including those held by financial institutions
and it exercised dominion over the coins when it asked BNY to
freeze the box and thereby hold its contents. App. at 689-90.
Arguing in the alternative, Sussman cites United States v.
Zwick, 199 F.3d 672 (3d Cir. 1999), abrogated by Sabri v.
United States, 541 U.S. 600, 124 S.Ct. 1941 (2004), for the
contention that even if the coins belonged to the United States at
the time of the final order, they lost their status as government
property when the FTC sent its July 22, 2005 letter to BNY. We
reject this argument for we cannot conceive that the government
intended to give up any interest that it might have had in the
coins when it asked the bank to act as custodian for the contents
of the box by freezing the box. Indeed, the government
obviously had the exact opposite intent as it sent the freeze letter
to safeguard the government‘s interest in the coins. Moreover,
21
even if we made an objective rather than subjective intent
analysis, after writing the letter the FTC retained such control
over the coins that it cannot be said that it abandoned any
interest that it had in them. We also point out that Zwick
involved an interpretation of 18 U.S.C. § 666, a statute that
deals with ―theft or bribery concerning programs receiving
[f]ederal funds,‖ a provision that Congress enacted in part to
make up for the shortcomings of 18 U.S.C. § 641, under which
―the federal government could prosecute only when it could
establish that the stolen property was property of the United
States.‖ Zwick, 199 F.3d at 684. Yet such a prosecution ―often
was impossible if title had passed before the property was stolen
or when federal funds were so commingled with non-federal
funds that the federal character of those funds could not be
shown.‖ Id. As a result, Congress passed 18 U.S.C. § 666 in
order to address theft, fraud, and bribery involving federal funds
disbursed to private organizations or state and local
governments under a federal program. See United States v.
Cicco, 938 F.2d 441, 445 (3d Cir. 1991) (finding that 18 U.S.C.
§ 666 was passed in part to address such actions after title had
passed to the recipient).10
10
Sussman also cites to United States v. Stuart, 22 F.3d 76, 80
(3d Cir. 1994), which involved the theft of United States savings
bonds. In Stuart, we addressed the issuance of substitute bonds
in the event of theft and agreed with other courts of appeals
which had held ―[i]n two cases dealing with the retention and
conversion of savings bonds that had been replaced by the
government . . . that the bonds become the property of the
United States.‖ Stuart, 22 F.3d at 80 (citations omitted). Here,
22
In any event, the Supreme Court abrogated Zwick by
extending section 666‘s reach through the elimination of a nexus
requirement between criminal activity and federal funds. Sabri,
541 U.S. 600, 124 S.Ct. 1941. Regardless of section 666‘s
reach, the common factual scenarios in prosecutions under that
section involve private employees and local and state officials
who steal money from organizations that have received federal
funding. Here, the FTC‘s letter to BNY did not transfer title,
nor were the coins commingled with other funds or property
within the bank‘s possession. It is not as if the FTC gave the
coins to BNY as a federal grant for its own operational benefit.11
2. ―[T]he due administration of justice‖
There was sufficient evidence for the jury to find that
we are not dealing with facts remotely resembling the issuance
and substitution of United States savings bonds.
11
In addition to rejecting for reasons that we explain below
Sussman‘s premise that the FTC‘s July 22, 2005 letter to BNY
constituted a voluntary agreement that superseded the district
court‘s final order, we note that when the FTC wrote the letter it
acted consistently with the final order by designating BNY as its
agent as the order stated: ―(a) Bank of New York shall, within
five (5) business days of receiving notice of this Order by any
means, including but not limited to via facsimile, transfer to the
FTC or its designated agent . . . .‖ App. at 710 (emphasis
added).
23
Sussman interfered with ―the due administration of justice‖
when he removed the gold coins from the BNY box and retained
them for nearly ten months before returning them to the
government. Under 18 U.S.C. § 1503(a), the elements of a
prima facie case of obstruction of justice are:
(1) the existence of a judicial proceeding; (2)
knowledge or notice of the pending proceeding;
(3) acting corruptly with the intent of influencing,
obstructing, or impeding the proceeding in the
due administration of justice; and (4) the action
had the ‗natural and probable effect‘ of interfering
with the due administration of justice.
In re Impounded, 241 F.3d 308, 317 n.8 (3d Cir. 2001) (citing
United States v. Collis, 128 F.3d 313, 318 (6th Cir. 1997)). On
appeal, Sussman specifically takes issue with whether the
evidence was sufficient to prove elements (1) and (4).12
According to Sussman if he interfered with anything it was only
with a ―voluntary agreement‖ between the FTC and BNY
established when the FTC sent its July 22, 2005 letter to BNY‘s
12
Sussman always has maintained with respect to the second
obstruction of justice element that he was holding the coins for
safekeeping until the completion of the appellate process in the
civil case. If ―[t]he government won, the coins were going to
the government. The coins, not any substitutes, but the actual
coins. And if he won, he would be entitled to keep [them].‖
App. at 374.
24
legal department asking the bank to maintain the box as a frozen
account. He then contends that the agreement does not qualify
as a ―judicial proceeding‖ under 18 U.S.C. § 1503(a) and thus
he could not have violated that section.13 App. at 721-22.
Ironically Sussman‘s attempt to recharacterize the letter as an
agreement rather than as a proceeding demonstrates that his
argument with respect to element (4) of an obstruction offense is
not meritorious. After all, either he interfered with a judicial
proceeding in the form of a binding final order from the district
court by removing the coins necessary for satisfying the
monetary judgment against him, or he interfered with the
―voluntary agreement‖ by removing the coins from the BNY
box. Under either scenario, the ―natural and probable effect‖ of
his interference cannot reasonably be disputed. Therefore, the
only substantial obstruction issue is whether Sussman interfered
with a ―judicial proceeding‖ within the meaning of 18 U.S.C. §
1503(a).
Sussman largely relies on a distinguishable opinion,
United States v. Davis, 183 F.3d 231 (3d Cir. 1999), in support
13
Sussman tries to make an issue by contending that the
―voluntary agreement‖ referred back to the terms and conditions
of the district court‘s preliminary injunction, which ordered all
financial institutions to retain the defendants‘ assets. In fact,
however, the so-called ―voluntary agreement‖ clearly was
carrying out the terms of the final judgment. In any event, there
would be no legal significance to Sussman‘s contention even if
true, because as Sussman notes, the preliminary injunction was
superseded by the final order, which was in effect when he
removed the coins from the BNY box.
25
of his obstruction of justice argument. In Davis the United
States Customs Service was seeking to infiltrate a mob crew
through the use of an informant in hopes of building a criminal
case and later bringing charges. In the course of our opinion on
an appeal from an obstruction of justice conviction arising from
the infiltration we held that a wiretap instituted as part of the
investigation did not qualify as a ―pending judicial proceeding‖
under 18 U.S.C. § 1503. We reasoned that a wiretap is generally
part of an investigation being carried out by members of the
executive—not judicial—branch, even if a district court actively
is monitoring the procedure. See Davis, 183 F.3d at 239 (―[A]n
investigation simpliciter is not enough to trigger § 1503.‖
(emphasis in original)). As support for that result, we pointed to
other cases dealing with defendants‘ acts of ―intentionally
interfering with the execution of a search warrant by warning its
target to conceal or dispose of evidence‖ or obstructing an
―[i]nvestigation by agents of the Treasury Department ‗or some
other like instrumentality‘ of the United States‖14 that did not
come within section 1503. Id. (citations omitted); see also
United States v. Simmons, 591 F.2d 206, 208 (3d Cir. 1979)
14
See also United States v. Brenson, 104 F.3d 1267, 1280 (11th
Cir. 1997) (―While it is clear that a grand jury proceeding is a
recognized part of the judicial proceedings that can be impeded
or obstructed, it is not the only part of the judicial proceeding
that is protected by § 1503 from impediments, improper
influence or obstruction. Section 1503 employs the term ‗due
administration of justice‘ to provide a protective cloak over all
judicial proceedings, irrespective of at what stage in the judicial
process the improper activity occurs.‖ (emphasis added)).
26
(―[T]he obstruction of an investigation that is being conducted
by the FBI, or by any similar governmental agency or
instrumentality, does not constitute a [section] 1503 violation
because such agencies or instrumentalities are not judicial arms
of the government ‗administering justice.‘‖ (footnote
omitted)).15
Davis and Simmons, however, differ from this case as
this case does not concern ―some ancillary proceeding,‖ distinct
from a judicial proceeding ―such as an investigation independent
of the court‘s . . . authority.‖‘ Davis, 183 F.3d at 241 (citing
United States v. Aguilar, 515 U.S. 593, 599, 115 S.Ct. 2357,
2362 (1995)). Rather, in this case BNY was maintaining the
BNY box as a frozen account and thus effectively was holding
the coins pursuant to a direct court order. The reality is that
Sussman is attempting to transform a final judicial order from
the district court into a non-judicial, voluntary agreement
between the FTC, an agency within the executive branch of the
government, and BNY, a private financial institution, so that
somehow the FTC rather than seeking to enforce the court‘s
15
Applying 18 U.S.C. § 1503 broadly in the grand jury context,
we explained in United States v. Simmons that ―Section 1503 is
a contempt statute. It was enacted as the counterpart to 18
U.S.C. § 401, whose reach is limited to conduct occurring in the
presence of the court. As such, § 1503 allows punishment of
actions taken with the specific intent to impede the
administration of justice. So long as a defendant has such
specific intent, he may not circumvent the court‘s contempt
power by pressing ‗empty technicalities.‘‖ Simmons, 591 F.2d
at 209-10 (footnotes omitted).
27
order substituted a voluntary agreement for that order. But we
reject that argument because without the court order BNY and
the FTC would not have had the authority to enter into an
agreement freezing Sussman‘s assets. Moreover, we are not
dealing with either an independent FTC investigation or an
ongoing investigation supervised by the judiciary for when the
FTC asked the bank to freeze the box by writing its July 22,
2005 letter, it was carrying out a direct order from the district
court.
In reaching our result we have considered United States
v. Cohen, 301 F.3d 152 (3d Cir. 2002), a case in which a Secret
Service agent stole money seized during the course of two
investigations. In both instances, the agent stole the money
following the seizure of property belonging to suspects. In the
first case, the target was arrested and the Service seized
numerous items from his residence. In the second case, the
target was suspected of counterfeiting, and the Service executed
search warrants at his residence and storage locker. The latter
case was at such a preliminary stage that the district court
granted the agent‘s motion for judgment of acquittal at the close
of the government‘s case, a disposition with which we were not
concerned on the appeal. In the former case we held that there
was insufficient evidence to convict the agent under 18 U.S.C. §
1503 for the government failed to ―point[] to a shred of evidence
showing that the money that was found in the envelope and that
the [agent] misappropriated had any connection whatsoever to
any charges that were investigated or considered in the [target‘s]
matter.‖ Cohen, 301 F.3d at 157. But Sussman‘s case is
different for the final court order and injunction explicitly
28
provided for the gold coins to be delivered to the FTC, whereas
the money in question in Cohen was nothing more than cash
seized from a suspect‘s residence that he had obtained from an
undetermined source.
Sussman makes the blanket assertion ―that the processes
authorized by law for the collection of a judgment by a winning
party are not ‗judicial proceedings‘ within the meaning of the
case law under 18 U.S.C. § 1503,‖ appellant‘s reply br. at 3, and
goes so far as to say that ―[t]he government does not deny‖ that
assertion, id., but he does not offer support for this contention.
The government, of course, does deny that assertion and points
to a decision by the United States Court of Appeals for the
Eighth Circuit in which the court affirmed the application of 18
U.S.C. § 1503 to defendants who tried to hide assets to prevent
the government from collecting a fine and restitution payments
stemming from one of the defendant‘s conviction. See United
States v. Frank, 354 F.3d 910, 918 (8th Cir. 2004) (affirming ―a
second count of obstructing justice in violation of § 1503 for
moving, concealing, and refusing to advise law enforcement
agents of the location of a Chrysler LeBaron . . . with the
knowledge that a court order had been issued to seize the
vehicle‖).
Moreover, in United States v. Walasek we cited
approvingly to United States v. Solow in which the court held
that the section 1503 omnibus provision ―is all-embracing and
designed to meet any corrupt conduct in an endeavor to obstruct
or interfere with the due administration of justice.‖ United
States v. Walasek, 527 F.2d 676, 681 (3d Cir. 1975) (quoting
29
United States v. Solow, 138 F. Supp. 812, 814 (S.D.N.Y. 1956).
Overall we reject Sussman‘s obstruction of justice contentions.
3. Missing Transcripts
Alternatively, Sussman argues that if we do not reverse
his convictions on the merits he is entitled to a new trial due to
missing trial transcripts. Under the Court Reporter Act, ―[e]ach
session of the court . . . shall be recorded verbatim,‖ including
―all proceedings in criminal cases had in open court.‖ 28 U.S.C.
§ 753(b). Yet here there are no transcripts of the testimony of
government witness Doreen Madonia, a BNY vice president, or
of the cross-examination and redirect testimony of government
witness Gregory Ashe, an FTC attorney involved in the civil
case. App. at 725. To qualify for a new trial, however,
Sussman must make ―a specific showing of prejudice‖ from the
absence of the transcripts to ―warrant reversal.‖ United States v.
Sierra, 981 F.2d 123, 125 (3d Cir. 1992) (citations omitted).16 In
this regard, we have ―recognized a defendant‘s request for a
complete transcript only when the defendant has shown a
16
In Sierra we also noted that ―the absence or presence of the
same counsel on appeal is but ‗one significant factor‘ to
consider in determining prejudice‖ when there is a missing
transcript. 981 F.2d at 126 (citing United States v. Antoine, 906
F.2d 1379, 1381 (9th Cir. 1990)). But the circumstance that
Sussman had different counsel at the trial and on the appeal is
not dispositive as we surely cannot hold that a convicted
defendant automatically is entitled to a reversal of his conviction
on appeal if a transcript of portions of his trial is missing.
30
‗colorable need‘ for the transcript.‖ Fahy v. Horn, 516 F.3d
169, 190 (3d Cir. 2008) (citing Karabin v. Petsock, 758 F.2d
966, 969 (3d Cir. 1985)) (denying criminal defendant‘s request
for reconstruction of 25-year-old record of voir dire proceeding
in a trial in which he was convicted and sentenced to death due
to defendant‘s failure to provide ―concrete claims of error‖).
Federal Rule of Appellate Procedure 10(c) sets forth the
procedure to follow when transcripts are missing:
If the transcript of a hearing or trial is unavailable,
the appellant may prepare a statement of the
evidence or proceedings from the best available
means, including the appellant‘s recollection.
The statement must be served on the appellee,
who may serve objections or proposed
amendments within 14 days after being served.
The statement and any objections or proposed
amendments must then be submitted to the district
court for settlement and approval. As settled and
approved, the statement must be included by the
district clerk in the record on appeal.
This procedure can be satisfactory for ―[o]ften, the reconstructed
record will enable the appellate court effectively to review the
relevant issues.‖ Sierra, 981 F.2d at 126 (citations omitted).
In this case to address the problem of the missing
transcripts, the parties followed the Rule 10(c) procedure with
the District Court involved in the process. App. at 725-26. The
31
Court noted that its ―recollection of Mr. Ashe‘s [the FTC
attorney] testimony [was] not detailed,‖ but it ―reviewed [the]
trial notes of [Ashe‘s] cross-examination and they contain no
inconsistencies with the summary of the cross-examination as
set forth in Mr. Goldberger‘s [Sussman‘s appellate counsel]
submission filed November 15, 2011.‖ App. at 725. The Court
added: ―The government‘s objections to Mr. Goldberger‘s
account do not appear to be a material correction.‖17 App. at
725. The Court only had trial notes of Madonia‘s direct
testimony, but the notes were consistent with Sussman‘s
submission, ―supporting a conclusion that his summary is
accurate.‖ App. at 725-26.
We note that Sussman contends that a transcript of
Ashe‘s re-redirect testimony is missing but there is some dispute
as to whether Ashe even was questioned on a final re-redirect
examination in the District Court. Sussman‘s own supplemental
submission to the District Court to complete the missing record
indicated:
As with re-cross-examination, neither the bench
notes nor defense notes refer to re-re-direct as
17
The government offered two corrections, but the only question
was whether the FTC designated the bank as an agent to keep
and maintain the FTC‘s assets. App. at 733. Sussman denies
that Ashe testified to that fact. Of course, the legal effect of the
letter is plain on its face when considered in the context in
which it was written and it is difficult to understand how Ashe‘s
testimony was needed on that point.
32
having occurred. The prosecutor‘s notes show
testimony on re-re-direct concerning Govt Exh.
G-109 (letter to Shelby Feder in [Bank of New
York‘s] legal department). It is not possible to
reconstruct most of the testimony on re-re-direct,
as the prosecutor‘s notes say only: ‗G-109 letter to
Shelby Feder Within 5 Days of Final Order - .‘
App. at 738. Sussman tries to exploit this seemingly contrived
ambiguity:
Again, this discussion, the substance of which
does not appear in any of the notes, would appear
to be directly pertinent and potentially important
in terms of Mr. Sussman‘s possible argument on
whether the contents of the safety deposit box
constituted a ‗thing of value‘ or property ‗of the
United States‘ at the pertinent time.
App. at 738 n.4. Yet the reconstructed transcript reveals that
Sussman had the opportunity to cross-examine Ashe on
Government Exhibit G-109. App. at 729. Moreover, based on
our intensive study of this case we cannot conceive of anything
that Ashe could have said during re-redirect testimony that
would have had an impact on the determination of ―the money
or thing of value‖ issue.
Sussman cannot successfully manufacture his own
disputes, attribute legal significance to them, and then claim that
they only can be resolved by an examination of testimony that is
33
unavailable because the transcript of the testimony is missing,
particularly because the missing transcripts already have been
summarized and submitted through court-supervised
reconstruction. The circumstances supporting Sussman‘s claim
that he has been prejudiced fall far short of those in cases to
which he cites, including Simmons v. Beyer, 44 F.3d 1160 (3d
Cir. 1995), a Batson habeas corpus jury selection case. In
Simmons v. Beyer, no one could remember how many potential
African American jurors had been peremptorily challenged and
the assistant prosecutor from the trial had no recollection or
notes of why he struck individual venirepersons. Id. at 1168.
Thus, in Simmons v. Beyer we were confronted with a case
involving a missing record dealing with a significant
constitutional issue in a situation in which there was no hope of
reconstructing the record. See id. We simply could not review
the Batson claim without knowing ―whether Simmons‘ jury
selection process was infected by racial discrimination.‖ Id.The Simmons v. Beyer situation is completely inapposite
here for in this case, unlike in Simmons v. Beyer, ―the
reconstructed record [has] enable[d us] effectively to review the
relevant issues.‖ Sierra, 981 F.2d at 126 (citations omitted).
Here, Sussman does not raise a colorable claim because he fails
to make a specific showing of prejudice attributable to the
absence of the transcripts. Therefore, the circumstance that
there are missing transcripts does not entitle him to a new trial.
b. Redaction
In the District Court in a pretrial motion Sussman sought
34
to prevent the introduction of evidence from the civil suit that he
claimed unfairly would prejudice his defense, in particular the
temporary restraining order, preliminary injunction and final
judgment. Sussman argued that under Federal Rules of
Evidence 403 and 404(b), a stipulation with respect to the civil
action would be sufficient for the government to prove the
existence of that proceeding so far as necessary in this criminal
action and that there was no need to introduce these three
documents from the civil case into evidence in this criminal
case. Although there was a stipulation in the criminal case with
respect to certain aspects of the civil case, these three documents
and certain other redacted documents from the civil case were
admitted into evidence in the criminal case. App. at 45.
Under Fed. R. Evid. 403 (emphasis added):
The court may exclude relevant evidence if its
probative value is substantially outweighed by a
danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.[18]
18
We held in United States v. Cross that Rule 403 ―creates a
presumption of admissibility.‖ 308 F.3d 308, 323 (3d Cir. 2002)
(citation omitted). The ―[e]vidence 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.‖ Id. (alteration in original) (citing Fed. R. Evid.
35
Under Fed. R. Evid. 404(b)(1):
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.
The District Court ruled that the documents were critical
evidence regarding the crucial factor in the case of Sussman‘s
intent when he removed the coins from the BNY box and that a
stipulation would be an insufficient substitute because the
documents potentially spoke to Sussman‘s motivation in
accessing the safe deposit box. App. at 180. With Rules 403
and 404(b) in mind, the parties worked together under the
Court‘s supervision to redact the documents before moving
them into evidence.19 Sussman, however, preserved his
403).
19
The government‘s first witness at the criminal trial was FTC
attorney Gregory Ashe. At the beginning of the direct
examination, the Court told the jury:
What we‘re trying to do is we‘re not trying the
civil case here. We want to stay totally away
from it and involve ourselves in the charges in
this case. We have to know what the procedure
was, and we have to know what the background
of the documents from which you will decide the
case is. But we just want to get into the—we
36
objection to their admission and the Court‘s denial of the use of
his proposed stipulation that he contended would have obviated
the need for admission of the documents even as redacted.
―We review a district court‘s decision to admit or exclude
don‘t want to get into the details of the civil case.
App. at 169.
The government then read the jury the following
stipulation regarding the FTC‘s civil action:
In May of 2003, the Federal Trade Commission,
or FTC, filed a civil lawsuit against Barry
Sussman, the defendant in this case, along with
two other individuals. We‘re going to call this the
FTC action for the remainder of this action. On
July 18th, 2005, the FTC won the FTC action, and
Mr. Sussman and the others were ordered the [sic]
[to] pay about 10.2 million dollars. The substance
is not before you, as the Judge just said. You may
see that several documents or exhibits that we will
look at over the course of the next few days have
been redacted or marked with blank [sic] [black]
ink in certain parts, and please do not pay any
attention to those parts. Please just focus on what
you can actually see and read.
App. at 170.
37
evidence for abuse of discretion, and such discretion is
construed especially broadly in the context of Rule 403.‖
United States v. Mathis, 264 F.3d 321, 326-27 (3d Cir. 2001)
(citation omitted).20 Sussman argues that the District Court
abused its discretion when it allowed admission of the
documents because, even as redacted, indeed particularly as
redacted, they were prejudicial. According to Sussman, ―the
extensive redaction itself was highly prejudicial in its own way.‖
Appellant‘s br. at 31. He contends that he was especially
prejudiced ―where the government also presented witness
testimony concerning the FTC civil action.‖ Appellant‘s br. at
31 (emphasis added).
Sussman supports his argument by citing to Old Chief v.
United States for the proposition that a court considering a
defendant‘s offer to stipulate should ―take account of the full
evidentiary context of the case as the court understands it when
the ruling must be made.‖ 519 U.S. 172, 182, 117 S.Ct. 644,
651 (1997) (footnote omitted). Under Old Chief, a trial court
should not view the disputed evidence in isolation but rather
should consider the range of evidentiary alternatives available to
it. See id. at 182-84, 117 S.Ct. at 651-52. Yet the Old Chief
Court explicitly restricted its holding ―to cases involving proof
of felon status.‖ Id. at 183 n.7, 117 S.Ct. at 651 n.7. The Court
added that the abuse of discretion standard ―is not satisfied by a
20
We recognize that sometimes we exercise plenary review on
admission of evidence questions involving construction of the
Federal Rules of Evidence, but we are not concerned with such a
question here. United States v. Johnson, 388 F.3d 96, 100 (3d
Cir. 2004).
38
mere showing of some alternative means of proof that the
prosecution in its broad discretion chose not to rely upon.‖ Id.Here, the prosecution simply chose not to rely exclusively on
Sussman‘s proposed stipulation, which significantly did not
include a stipulation as to his intent when he removed the coins
from the BNY box. Sussman‘s creative application of Old
Chief attempts to extend that case‘s holding to an unacceptable
extent.
Sussman also undercuts his argument with the assertion
that the disputed evidence concerned a ―consequential fact,‖
rather than ―an element of the crime charged‖ and therefore is
particularly suitable for a stipulation. See United States v.
Higdon, 638 F.3d 233, 243 (3d Cir. 2011). In Higdon we drew
an evidentiary distinction between ―elements‖ and ―facts‖ and
concluded that a prior conviction was ―an element of the crime
charged‖ in a case charging a convicted felon with possession of
a firearm. Consequently, we held that the district court erred
when it did not permit a stipulation with respect to the
defendant‘s prior conviction to be admitted into evidence
because to obtain a conviction the government had to prove all
of the elements of the charged offense. Id. (emphasis in
original).
In our case in its instructions to the jury, the District
Court appropriately informed the jury that the third element of
the Count One charge, theft of government property, was ―that
the Defendant did so knowingly with the intent to deprive the
United States . . . .‖ Supplemental app. at 18 (emphasis added).
The Court explained: ―To act knowingly means to act
39
intentionally and voluntarily with an awareness of what was
happening, and not because of ignorance, mistake, accident or
carelessness. Whether the Defendant acted knowingly may be
proven by the Defendant‘s conduct and by all of the
circumstances surrounding the case.‖ Id. at 22. The second
element of the Count Two charge, obstruction of justice, also
included a ―knowledge‖ requirement, and the third element
required the government to prove beyond a reasonable doubt
that Sussman intended to influence a pending judicial
proceeding. The temporary restraining order, preliminary
injunction and final order inevitably assisted the jury when it
considered Sussman‘s intent in removing the coins because they
set forth the situation that he faced with respect to control of the
coins and made clear the benefit he could hope to obtain by
gaining possession of them.21 Consequently, the District Court
did not abuse its discretion by allowing the redacted documents
to be admitted into evidence and used by the jury during
deliberations rather than confining the reference to them to a
stipulation of their existence.
In his reply brief, Sussman attempts to bolster his
redaction argument with a litany of criminal cases in which the
prejudicial evidence introduced was far more damaging than the
evidence to which he objects here. See, e.g., Gray v. Maryland,
523 U.S. 185, 197, 118 S.Ct. 1151, 1157 (1998) (applying the
joint trial Bruton prohibition on the introduction of a non-
testifying co-defendant‘s confession naming the other defendant
21
―Knowledge‖ and ―intent‖ are also both exceptions under
Federal Rule of Evidence 404(b) permitting the use of the
defendant‘s prior ―Crimes, Wrongs, or Other Acts.‖
40
to redacted confessions in which the defendant‘s name is
replaced by an obvious indicator of him); United States v.
Hardwick, 544 F.3d 565, 573 (3d Cir. 2008) (holding that the
district court erred in admitting a co-defendant‘s redacted
proffer statements that clearly identified the only two co-
defendants charged with murder as the ones who pulled the
trigger);22 United States v. Murray, 103 F.3d 310, 319 (3d Cir.
1997) (―[E]vidence in a murder trial that the defendant
committed another prior murder poses a high risk of unfair
prejudice.‖). But in all of these cases the prejudicial evidence
was far more damaging to the defendant than the disputed
evidence admitted here and thus all are of limited utility in our
analysis.
c. Jury Instructions
Sussman challenges two aspects of the instructions that
the District Court gave the jury in both written and oral form
that in some respects were inconsistent. First, he argues that the
District Court incorrectly instructed the jury on the Count Two
charge of obstruction of justice. Sussman, however, did not
preserve an objection to that instruction so we review the
22
In spite of the district court‘s error in Hardwick, we affirmed
the defendant‘s conviction due to ―[t]he overwhelming evidence
convince[ing] us that the District Court‘s error was harmless
beyond a reasonable doubt.‖ Hardwick, 544 F.3d at 574(citation omitted). In view of our conclusion that the District
Court did not err in resolving the redaction issue we do not
make a harmless error analysis on this appeal on this point.
41
challenge to it for plain error. See United States v. Lee, 612
F.3d 170, 191 (3d Cir. 2010). Second, he contends that the
Court erred in substituting its abbreviated version of his ―theory
of defense‖ instruction for his more comprehensive version of
that instruction. In most instances, ―[w]e review the refusal to
give a particular instruction or the wording of instructions for
abuse of discretion.‖ United States v. Jimenez, 513 F.3d 62, 74
(3d Cir. 2008) (quoting United States v. Leahy, 445 F.3d 634,
642 (3d Cir. 2006)(internal quotation marks omitted)). In
conducting such a review, ―we consider the totality of the
instructions and not a particular sentence or paragraph in
isolation.‖ Id. at 74-75 (internal quotation marks omitted).
However, we review de novo a district court‘s refusal to give a
jury instruction on a defendant‘s ―theory of defense‖ when the
defendant objected at the trial to the court‘s refusal to give the
instruction. See United States v. Stewart, 185 F.3d 112, 124 (3d
Cir. 1999) (citation omitted).
1. Obstruction of Justice
Sussman challenges the instruction that the District Court
gave on the Count Two charge of ―Obstruction of Justice‖ under
18 U.S.C. § 1503(a). The statute provides, in pertinent part:
―Whoever corruptly . . . endeavors to influence, obstruct, or
impede, the due administration of justice, shall be punished . . .
.‖ 18 U.S.C. § 1503(a). This is the statute‘s ―Omnibus Clause,‖
which functions as a catchall provision, and ―is far more general
in scope than the earlier clauses of the statute‖ covering grand
jurors and court officers. United States v. Aguilar, 515 U.S.
593, 598, 115 S.Ct. 2357, 2362 (1995). At trial, Sussman did
42
not object to the Court‘s obstruction of justice instructions, so
we review the charge for plain error. See Lee, 612 F.3d at 191.
―A ‗plain error‘ is one that affects substantial rights,‖ and ―[a]n
error affects ‗substantial rights‘ if it was prejudicial in that it
affected the outcome of the District Court proceedings.‖ United
States v. Ozcelik, 527 F.3d 88, 96 (3d Cir. 2008) (internal
quotation marks and citations omitted); see also United States v.
Dalfonso, 707 F.2d 757, 760 (3d Cir. 1983) (holding that ―the
error must be egregious or otherwise constitute a manifest
miscarriage of justice‖ (citation omitted)). The defendant bears
the burden of ―establish[ing] that the error prejudiced the jury‘s
verdict.‖ Ozcelik, 527 F.3d at 96 (citation omitted). Even ―[i]f
the defendant satisfies this showing, we may, but are not
required to, order correction.‖ United States v. Tyson, 653 F.3d
192, 211 (3d Cir. 2011) (citation omitted).
Sussman challenges the District Court‘s jury instructions
on the likely effect of his action in removing the coins on a
pending judicial proceeding and his knowledge of that effect.
More specifically, Sussman contends that the Court failed to
inform the jury that under Aguilar to convict him on Count Two
it would have to find that he ―knew that his actions were likely
to affect the judicial proceedings‖ and that ―it had to find that
the natural and probable effect of the endeavor would actually
be to interfere with the due administration of justice.‖
Appellant‘s br. at 40-41 (emphasis in original).
In support of his argument with respect to the jury
instructions Sussman provides the following excerpt from the
District Court‘s instructions on the second and third elements of
43
the obstruction of justice offense charged in Count Two:
The second element the government must prove
beyond a reasonable doubt is the defendant‘s
knowledge of an official pending proceeding.
This element requires that the defendant knew
that such proceeding was pending on February
7th, 2008.[23] In this regard, you may take into
account all the facts and circumstances
surrounding the conduct from which the
defendant is charged in determining whether he
knew or had a reasonable basis for believing that
the proceedings was pending. Third and final
element that the government must prove is that
the defendant obstructed justice. To satisfy this
element, the government must prove beyond a
reasonable doubt that the defendant corruptly
endeavored to influence, obstruct or impede the
due administration of justice with the intent to
influence the pending judicial proceeding.
...
The word ‗endeavor‘ means any effort or act,
however contrived, to obstruct or interfere with
the pending judicial proceeding. Success of the
endeavor is not required to find the defendant
guilty.
23
Sussman removed the coins from the BNY box on February 7,
2008.
44
App. at 543-44.
As the government points out, Sussman supplies the
above section of the jury instructions without acknowledging
that before giving the specific instructions that we have quoted
the District Court charged the jury that the government had to
prove beyond a reasonable doubt ―that the defendant‘s act was
done corruptly; that is, that the defendant acted knowingly and
dishonestly with the specific intent to impede the proceeding in
its due administration of justice.‖ App. at 541-42.
Sussman quotes from our In re Impounded decision, in
which we noted in a footnote:
The elements of a prima facie case of obstruction of
justice under 18 U.S.C. § 1503 are: (1) the existence of a
judicial proceeding; (2) knowledge or notice of the
pending proceeding; (3) acting corruptly with the intent
of influencing, obstructing, or impeding the proceeding
in the due administration of justice; and (4) the action
had the ‗natural and probable effect‘ of interfering with
the due administration of justice.
241 F.3d at 317 n.8. But Sussman overlooks the footnote‘s
citation to United States v. Collis, 128 F.3d 313, 318 (6th Cir.
1997), in which the Court of Appeals for the Sixth Circuit held:
In order to satisfy § 1503, the government must
prove that (1) there was a judicial proceeding; (2)
the defendant had knowledge or notice of the
45
pending proceeding; and (3) the defendant acted
corruptly with the intent of influencing,
obstructing, or impeding the proceeding in the
due administration of justice.
Id. (footnote omitted) (citations omitted). The Collis court was
referring to Aguilar, in which the Court explained the third
element was ―a ‗nexus‘ requirement—that the act must have a
relationship in time, causation or logic with the judicial
proceedings. In other words, the endeavor must have the
‗natural and probable effect‘ of interfering with the due
administration of justice.‖ Aguilar, 515 U.S. at 599, 115 S.Ct. at
2362 (internal quotation marks omitted). The District Court did
not have to list the ―nexus‖ requirement as a fourth element, and
it adequately covered the requirement when it gave the
following instructions that followed Sussman‘s selected excerpt:
Often that state of mind with which a person acts
at any given time cannot be proved directly
because the defendant‘s state of mind can be
proved indirectly from the surrounding
circumstances. One cannot read another person‘s
mind or tell what he or she is thinking. Thus, to
determine a defendant‘s state of mind or what the
defendant intended or knew at a particular time,
you may consider evidence about what the
defendant said, what the defendant did or failed to
do, and how the defendant acted, and all the other
facts and circumstances shown by the evidence
46
that may prove what was in the defendant‘s mind
at that time. It is entirely up to you to decide what
the evidence presented during this trial proves or
fails to prove about the defendant‘s state of mind.
You may also consider the natural and probable
results or consequences of any acts that the
defendant knowingly did, and whether it is
reasonable to conclude that the defendant
intended those results or consequences. You may
find that you are not required to find that the
defendant knew and intended the natural and
probable consequences as a result of acts he
knowingly did. This means that if you find that
an ordinary person in the defendant‘s situation
would have naturally realized that certain
consequences would result from his actions, then
you may find, but you are not required to find that
the defendant did know, and did intend those
consequences would result from his actions. This
is entirely up to you to decide as finders of the
facts in this case.
App. at 544-45.
The District Court specifically instructed the jury on how
to assess Sussman‘s state of mind, including the consideration of
the likely effect of his actions. The ―knowledge‖ requirement
with which Sussman takes issue actually refers to the knowledge
of a pending judicial proceeding, whereas ―corruptly‖ defines
47
the mens rea for the ―likely to affect‖ component of the
obstruction. In his reply brief, Sussman withdrew his challenge
to the jury instruction on the mens rea element of ―corruptly.‖
Appellant‘s reply br. at 15 n.12. Sussman, moreover, twists the
―natural and probable effect‖ requirement beyond recognition
when he argues that the jury had to find that ―the natural and
probable effect of the endeavor would actually be to interfere
with the due administration of justice.‖ Appellant‘s br. at 41
(emphasis in original). Under Aguilar the emphasis is on the
likely, not actual, impact of the defendant‘s disputed actions.
Therefore, we do not find that the District Court committed
error, let alone plain error, in its charge to the jury.24
2. The Theory of Defense Instruction
We have ―established that [a] defendant is entitled to a
theory of defense instruction if (1) he proposes a correct
statement of the law; (2) his theory is supported by the evidence;
(3) the theory of defense is not part of the charge; and (4) the
failure to include an instruction of the defendant‘s theory would
deny him a fair trial.‖ United States v. Friedman, 658 F.3d 342,
352-53 (3d Cir. 2011) (quoting United States v. Hoffecker, 530
F.3d 137, 176 (3d Cir. 2008)(internal quotation marks omitted)).
The District Court ―was bound to give the substance of a
requested instruction relating to any defense theory for which
24
Finally, the parties dispute whether the omission of an element
from the jury instructions constitutes per se plain error. In light
of our above finding that the District Court did not commit an
error at all, we need not address the issue.
48
there was any foundation in the evidence.‖ United States v.
Blair, 456 F.2d 514, 520 (3d Cir. 1972) (citation omitted).
Sussman proposed his own theory of defense instruction, but the
District Court delivered a revised version to the jury. Of course,
a court does not err merely because it does not give an
instruction in exactly the words a defendant submits for ―[n]o
litigant has a right to a jury instruction of its choice, or precisely
in the manner and words of its own preference.‖ Douglas v.
Owens, 50 F.3d 1226, 1233 (3d Cir. 1995) (citations omitted).
In fact, ―[i]t is well settled that there is no error to refuse to
instruct as counsel wishes if the charge to the jury is correct.‖
Blair, 456 F.2d at 520 (citations omitted).
On appeal, Sussman argues that the District Court‘s
alternative theory of defense instruction was prejudicial. He
requested the following instruction:
It is the theory of the defense in this case that Mr.
Sussman, when he took with him the contents of
[the BNY box] on February 7, 2008, was
intending to safeguard the coins that were in [the
box] from seizure by other creditors. It is asserted
that since he did not intend to steal the coins or
violate the terms of the final order, he is not guilty
of either of the two offenses with which he is
charged. Evidence has been presented that the
event which motivated his actions was the seizure
by the Bergen County Sheriff in late January 2008
of the contents of the safety deposit box at the
Bank of America branch in Ft. Lee. In Mr.
49
[S]ussman‘s view, if he won his appeal, the coins
would belong to him. If he lost the appeal, the
coins would be available to help satisfy the
judgment obtained by the FTC. It is further the
theory of the defense that Mr. Sussman retained
possession of the coins only until the appellate
proceedings had ended without success and then
made prompt arrangements through his counsel to
return the coins.
Unless the government has proved beyond a
reasonable doubt that Mr. Sussman acted with
criminal intent, or corruptly interfered with the
judicial process, he must be found not guilty.
App. at 122. The District Court‘s written charge, however,
included the following instruction:
It is the theory of the defense in this case that Mr.
Sussman, when he took with him the contents of
[the BNY box] on February 7, 2008, was
intending to safeguard coins that were in [the box]
from seizure by other creditors and was not
intending to steal, embezzle or knowingly convert
the coins, or to violate a court order.
Supplemental app. at 17. Yet the trial transcript included a
slightly modified version:
It is the theory of the defense in this case that Mr.
50
Sussman, when he took with him the contents of
[the box], was attempting to safeguard coins
seized by other creditors and not intended to steal,
embezzle or knowingly convert the coins or
violate a court order.
App. at 537. Both versions of the charge abbreviated Sussman‘s
requested theory of defense instruction. Sussman takes
particular issue with the distinction in the Court‘s two charges
(Sussman‘s proposed charge related to protection of the coins in
the Secaucus box that creditors other than the FTC had not
seized) between coins that were not yet seized by creditors and
those that already had been seized by creditors.
In regard to the written instruction, ―a defendant is not
entitled to a judicial narrative of his version of the facts, even
though such a narrative is, in one sense of the phrase, a theory of
the defense.‖ Hoffecker, 530 F.3d at 176 (internal quotation
marks and citations omitted). In Hoffecker we cited approvingly
to the Court of Appeals for the Eleventh Circuit‘s decision in
United States v. Paradies, in which it found ―that the district
court was correct in finding that the requested jury charge was
partisan and that it aspired ‗to place the . . . defendants‘ desired
factual findings into the mouth of the court.‖ Id. at 177 (citing
United States v. Paradies, 98 F.3d 1266, 1287 (11th Cir.
1996)(internal quotation marks omitted)). Here the final
sentence in Sussman‘s proposed theory of defense instruction
merely reiterated the intent requirement of the offense, which
the District Court already had covered in the ―elements‖ sections
of the jury instructions. Nevertheless, in the Court‘s theory of
51
defense instruction it did make reference to Sussman‘s intent.
Moreover, the Court accepted Sussman‘s suggestion to add ―or
to violate a court order‖ at the end to clarify that the ―theory of
defense‖ instruction applied to both counts. App. at 492. The
Court, therefore, not only agreed to offer a ―theory of defense‖
instruction but also provided one that encapsulated Sussman‘s
arguments without rehashing the facts established during trial.
The Court did not err in taking that approach.
Yet we cannot gloss over the discrepancy between the
trial transcript‘s version of the charge and the written version of
the charge. The government asserts that the transcript‘s version
of the instruction does not accurately reflect what the Court said,
and, in any event, the jurors had copies of the written
instructions during deliberations. Appellee‘s br. at 48. The
government also claims that Sussman‘s objection was only to
the ―theory of defense‖ instruction‘s length and not its content.
Therefore, the government contends that the District Court must
have read the written version of the charge to the jury and did
not give the transcript‘s version. Appellee‘s br. at 49. But
Sussman‘s objection to the ―truncat[ed]‖ charge did not indicate
an unqualified acceptance of the instruction‘s content. Although
Sussman‘s objection on the theory of defense instruction
focused on his proposal of ―a long one‖ and the Court‘s delivery
of ―a shorter one,‖ he still ―object[ed] to the charge as
delivered.‖ App at 565. Of course, it would be expected that
there would be a correlation between an objection to the length
and an objection to the content of an instruction, as the former
objection may encompass the latter objection if the reduced
length is substantial as it is likely to reflect altered content.
52
The government‘s argument, moreover, implicitly
concedes that there was a legal error in the transcript‘s version
of the instruction because the argument suggests that Sussman
clearly would have objected to the instruction‘s content if the
District Court had read the version that the transcript indicates
that it did. Furthermore, the government‘s contention that the
transcript is not accurate does not take into account that in the
absence of a motion to correct or modify the record under
Federal Rule of Appellate Procedure 10(e), we ―accept[] as
accurate the transcript of the district court proceedings.‖ Gov‘t
of the Virgin Islands v. Paniagua, 922 F.2d 178, 181 n.1 (3d Cir.
1990) (referencing Fed. R. App. P. 10(e), which states, ―[i]f any
difference arises about whether the record truly discloses what
occurred in the district court, the difference must be submitted to
and settled by that court and the record conformed
accordingly‖).
In the alternative, the government counters that the
transcript‘s version of Sussman‘s theory of defense, ―while
inartful, was hardly erroneous or confusing, and the jury could
have referred to its written copy of the instructions for
clarification.‖ Appellee‘s br. at 49. The government supports
its argument by citing to our decision in United States v. Ozcelik
in which we took into consideration the fact that ―the jurors had
copies of the instructions that contained the [proper] word[ing].‖
527 F.3d at 97. Yet in Ozcelik, we deferred to the district
court‘s explicit determination that it had read the proper
instruction to the jury. See id. Here, unlike in Ozcelik, the
government never filed a motion to correct the record, and the
District Court never addressed the matter. We also recognize
53
that the law ‗―presumes that jurors, conscious of the gravity of
their task, attend closely the particular language of the trial
court‘s instructions in a criminal case and strive to understand,
make sense of, and follow the instructions given them.‖‘ United
States v. Hernandez, 176 F.3d 719, 734 (3d Cir. 1999) (quoting
Francis v. Franklin, 471 U.S. 307, 324 n.9, 105 S.Ct. 1965, 1976
n.9 (1985)).
Nonetheless, the problem with the theory of defense
charge is not nearly as significant as Sussman claims. In
Hernandez, the district court gave the jury conflicting
explanations of reasonable doubt. See Hernandez, 176 F.3d at
734. We understandably were concerned that the jury returned
its guilty verdict even though the government might not have
proved its case beyond a reasonable doubt. See id. Here, if the
District Court erred in giving the oral theory of defense
instruction, the error was not of the same magnitude as the error
in Hernandez. We also stand by ―the axiom that jury
instructions must be viewed in their entirety.‖ Id. (citing United
States v. Isaac, 134 F.3d 199 (3d Cir. 1998); United States v.
Pine, 609 F.2d 106 (3d Cir. 1979); United States v. Smith, 468
F.2d 381 (3d Cir. 1972)).
Taken as a whole, the instructions accurately conveyed
the direction that the key issue before the jury was Sussman‘s
intent when he removed the coins as there was no doubt that he
had done so. Overall, it was perfectly obvious that Sussman‘s
theory of defense was that he was protecting the coins in
Secaucus from seizure of creditors other than the FTC.
Although the exact status of the coins at the time of removal was
54
in dispute, the key factual issue was whether they constituted
government property – not whether other creditors had already
seized them. Under any standard of review, we do not find this
slight wording error sufficient reason to overturn the jury‘s
verdict.
V. CONCLUSION
For the foregoing reasons, we will affirm the judgment of
conviction and sentence entered October 8, 2009.
55