United States v. Serafini

Opinions of the United

2000 Decisions States Court of Appeals

for the Third Circuit

11-28-2000

United States v. Serafini

Precedential or Non-Precedential:

Docket 99-3994

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Filed November 28, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NOS. 99-3994, 00-3005

UNITED STATES OF AMERICA

v.

FRANK SERAFINI,

(Appellant in 99-3994)

UNITED STATES OF AMERICA

(Appellant in 00-3005)

v.

FRANK SERAFINI

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Criminal No. 97-cr-00225-6)

District Judge: Honorable Thomas I. Vanaskie

Argued July 20, 2000

Before: RENDELL and ROSENN, Circuit Judges,

and O'NEILL, Senior District Judge*

(Filed November 28, 2000)

_________________________________________________________________

* The Honorable Thomas N. O'Neill, Jr., Senior United States District

Judge for the Eastern District of Pennsylvania, sitting by designation.

Bruce Brandler, Esq. [ARGUED]

Office of U.S. Attorney

Federal Building

228 Walnut Street

P. O. Box 11754

Harrisburg, PA 17108

Counsel for Appellee/Cross-Appellant

United States of America

Sal Cognetti, Jr., Esq. [ARGUED]

Foley, Cognetti, Comerford & Cimini

700 Scranton Electric Building

507 Linden Street

Scranton, PA 18503

-and-

Daniel T. Brier, Esq.

Donna A. Walsh, Esq.

Myers, Brier & Kelly

425 Spruce Street, Suite 200

Scranton, PA 18503

Counsel for Appellant/Cross-Appellee

Frank Serafini

OPINION OF THE COURT

RENDELL, Circuit Judge.

In this appeal, Frank Serafini challenges his conviction

and sentence for one count of perjury in violation of 18

U.S.C. S 1623 (1994).1 Serafini, a popular state legislator in

northeastern Pennsylvania, was convicted based on his

false testimony before a federal grand jury; the grand jury

was investigating a scheme wherein corporate political

_________________________________________________________________

1. The District Court had jurisdiction over this federal criminal case

pursuant to 28 U.S.C. S 1331. We have jurisdiction over the appeal from

the final judgment of conviction and sentence pursuant to 28 U.S.C.

S 1291 and 18 U.S.C. S 3742(a)(2), with the exception of the government's

challenge to the District Court's recommendation as to the location of

Serafini's imprisonment; as explained below, see infra pp. 30-31, we

conclude that we have no jurisdiction over the challenge to the

recommendation of a place of confinement.

2

contributions were funneled through thir d-party conduits

in violation of federal election laws. In his grand jury

testimony, Serafini had denied that he was r eimbursed for

a contribution he had made to Senator Bob Dole's

presidential campaign. In seeking to overtur n his

conviction, Serafini maintains on appeal that (1) the

prosecutor's questioning before the grand jury was

insufficiently precise to support a perjury conviction; (2) the

District Court was wrong to strike only one aspect of

Serafini's indictment, but should instead have dismissed

the indictment in full; (3) the government's purported

failure to disclose during discovery that its key witness had

been re-immunized violated Serafini's due pr ocess rights;

(4) the District Court erred in several evidentiary rulings,

most notably in admitting a digital recor ding of Serafini's

grand jury testimony and in admitting documentary

evidence and live testimony concerning other people's

participation in the scheme; and (5) the gover nment's

evidence was legally insufficient to support a conviction.

Serafini also challenges his ten-month split sentence,2

arguing that the District Court had no basis for a three-

level enhancement for "substantial interfer ence with the

administration of justice." See U.S.S.G.S 2J1.3(b)(2).3 The

government cross-appeals Serafini's sentence, contesting

both the fact and the extent of the District Court's three-

level downward departure for exceptional civic or charitable

contributions pursuant to U.S.S.G. S 5H1.11. The

government also challenges the District Court's

recommendation as to where Serafini's sentence should be

served, arguing that the facility recommended is not a

proper location for "imprisonment" under the Sentencing

Guidelines.

We conclude that Serafini received a fair trial in all

respects and will affirm his conviction. We further conclude

_________________________________________________________________

2. The District Court sentenced Serafini tofive months' imprisonment

and five months' house arrest as a condition of supervised release. The

District Court recommended that the Bur eau of Prisons designate the

Catholic Social Services of Lackawanna County Residential Program as

the location for the imprisonment portion of the sentence.

3. All references in this opinion ar e to the version of the Sentencing

Guidelines that became effective November 1, 1998.

3

that the District Court's enhancement and downwar d

departure were not an abuse of its discr etion, but that its

confinement recommendation was subject to question. We

will nonetheless affirm Serafini's sentence.

I. Facts and Procedural History4

Serafini was subpoenaed to testify before a grand jury

that was investigating possible violations of the Federal

Election Campaign Act (FECA), 2 U.S.C. SS 431-456.5 The

principal targets of the probe wer e Renato Mariani,

president of Empire Sanitary Landfill, Inc. (Empire), and

Serafini's nephew, Michael Serafini. The appar ent violations

were that Michael Serafini6 and his secretary had solicited

numerous employees, business associates, and family

members to make $1,000 contributions to Senator Bob

Dole's presidential campaign, and that Michael reimbursed

them for these contributions;7 the resulting transactions

between Michael and these "conduits" ther efore allegedly

violated FECA. See 2 U.S.C. S 441f ("No person shall make

a contribution in the name of another person or knowingly

permit his name to be used to effect such a contribution

. . . .").

Serafini allegedly had a close and longstanding

connection with Michael and with Empire, a landfill located

_________________________________________________________________

4. Because Serafini was convicted after a jury trial, we must defer to the

jury's verdict and view the evidence in the light most favorable to the

government. See United States v. Davis, 183 F.3d 231, 238 (3d Cir.

1999). Therefore, we recount the government's version of the facts.

5. FECA prohibits corporations from making contributions in connection

with any federal election. See 2 U.S.C.S 441b(a). FECA also makes it

unlawful for any person to make a contribution in the name of another

person (referred to in this opinion as a"conduit"), or for any person to

permit his or her name to be used as a conduit. See id. S 441f. FECA

limits individual contributions to federal candidates to $1,000 per

election per candidate. See id. S 441a(a)(1)(A).

6. Throughout this opinion, we will use the name "Serafini" to refer to

Frank Serafini, and "Michael" to refer to Michael Serafini.

7. Michael was in turn reimbursed by an Empire corporate check signed

by Renato Mariani. See Gov't Suppl. A. at 48 (chart detailing the flow of

the contributions and reimbursement checks).

4

in Pennsylvania. At the time of the events in question,

approximately 80 to 90 percent of the waste dumped at

Empire originated from out of state, see A. at 1737-38, but

legislation was pending in the United States Senate that

would have prohibited or restricted the importation of out-

of-state waste, see A. at 1784. Empir e lobbied Senator

Dole, the Senate majority leader, to alter or block this

legislation. See A. at 1798-1804. Serafini had both personal

and financial connections to Empire: his nephew Michael

was Empire's second-in-command, and Serafini was himself

a 50 percent owner of a family partnership that had sold

Empire the land on which it operated and that r eceived a

$1.50 royalty for each ton of waste disposed at Empire. See

A. at 1711, 1897, 2484, 2798, 3442-46, 3606. Serafini's

landfill royalty income formed the vast majority of his total

income; his annual royalties in 1995-97 ranged from

slightly over $800,000 to nearly $1.1 million. See A. at

1322, 1324, 1326. Serafini allegedly played a r ole in

Empire's lobbying activities; he wrote a letter in 1986 to the

former U.S. Attorney requesting investigation of a

Congressman whom Serafini claimed was "holding up a

permit" for Empire, see A. at 3439, and he also joined

Michael and other Empire officials on a lobbying trip to

Washington, D.C. in 1995, see A. at 1644-46.

Serafini was called before the grand jury to answer

questions about Michael's having solicited Serafini for a

$1,000 contribution and allegedly having reimbursed him

for that contribution. When he first appear ed before the

grand jury, Serafini invoked his Fifth Amendment rights

and was excused. See A. at 226-27. The gover nment then

sought and received an order immunizing Serafini so that

the government could compel his testimony before the

grand jury; the resulting subpoena order ed him to produce

"[a]ll documents relative to political contributions you were

reimbursed for." A. at 234. During Serafini's appearance

before the grand jury, the Assistant U.S. Attor ney informed

him that he could be prosecuted if he pr ovided false

testimony. See A. at 326. Although Serafini did

acknowledge that Michael had solicited and obtained from

him a $1,000 contribution to Dole, see A. at 339, he denied

that a $2,000 check given to him by Michael that same

week was in part a reimbursement for that contribution.

5

Instead, Serafini maintained that the $2,000 pr obably

represented Michael's reimbursing Serafini for payments

that Serafini made to a mechanic who had fixed Michael's

Porsche.8 The following excerpts from Serafini's grand jury

testimony formed the predicate for his subsequent

indictment for perjury:9

Statement 1:

Q: And did you bring any documents pursuant to the

subpoena that required your appearance her e

today?

A: I don't have the documents, I don't have

documents with me but the subpoena, because the

subpoena didn't require any. The way I r ead the

subpoena, I have a copy of it, all documents

relative to political contributions you wer e

reimbursed for, and I was not r eimbursed for any

contributions.

A. at 327-28 (emphasis added).

Statement 2:

Q: Well, then why wouldn't he reimburse you for your

Dole contribution under the same rationale?

_________________________________________________________________

8. At the time of Serafini's testimony befor e the grand jury, the

government did not know why Michael's r eimbursement check to

Serafini had been for $2,000 rather than $1,000. The government later

had grounds to believe that the second $1,000 r epresented

reimbursement for a $1,000 contribution that Serafini's legislative aide,

Thomas Harrison, had made to the Dole campaign. Serafini had

reimbursed Harrison, and so Michael's check to Serafini apparently

served to reimburse Serafini both for Serafini's own contribution and for

that made by Harrison.

9. These questions and responses are r eproduced here verbatim, except

that they have been numbered so that they need not be repeated

throughout this opinion. We will r efer to these statements as "Statement

1," etc. Statements 1, 2, 4, and 5 appear as they did in the redacted

transcript of Serafini's grand jury testimony; because Statement 3 was

eventually stricken in part from the redacted version, it appears here as

it did in the original transcript. See infra pp. 10, 11-12 (describing why

Statement 3 was not included in the final perjury indictment).

6

A: Because I wanted to contribute to Bob Dole.

Q: And you didn't want to fix his car?

A: Not necessarily --

Q: Oh, I see.

A: -- would you?

Q: I don't know.

A: And $2,000 for a thousand dollar contribution.

Q: $2,000 for what?

A: $2,000 --

Q: What was that last statement?

A: $2,000 this check is for, if I see it correctly?

Q: Right.

A: And my check here is for a thousand dollar

contribution?

Q: Right. So you are saying you don't know what the

other thousand dollars is for?

A: I would not relate it to that --

Q: What would you relate?

A: -- in my mind.

Q: What would you relate it for?

A: To something else, whether it wasfixing his car,

whether it is something else. It could be something

else and that's just what I am saying to you now,

because when he asked me for a thousand dollar

contribution I wrote a check for a thousand

dollars, I found no problem with that, I was

delighted, I was happy to be able to do it.

A. at 349-350 (emphasis added).

Statement 3:

Q: Is there any check that you received that

reimbursed you other than that $2,000 check for

your contribution?

7

A: No.

Q: Is there another check that you ar e aware of that

is connected to this investigation, to this Dole

contribution, other than the $2,000?

A: Not other than what you have shown me today, no.

A. at 296 (emphasis added).

Statement 4:

Q: And you have no knowledge, as you sit her e today,

or is it accurate that as you sit here today you

have no knowledge why Michael issued that check

to you for $2,000?

A: I still think the $2,000 would have been just around

the time that I was fixing his car, the transmission

was gone, I was fixing it, it is just about that

amount of money that would have paid for the

repair. It could have been for a number of things,

but it certainly does not relate to me contributing to

Bob Dole. I contribute quite frequently to

candidates and those kind of amounts.

A. at 359-360 (emphasis added).

Statement 5:

Q: I am going to wrap this up. I want to make sur e we

are absolutely on the same page here, ther e is no

misunderstanding. It is your testimony under

oath, as you sit here today, that as far as you're

concerned, as far as you know, there is no

connection between the check that you wrote to

Dole for President dated April 27th of '95 for

$1,000, check 3781, and the check that you

received from the Michael Serafini-Melinda

Marcotte account dated April 25th of '95 for

$2,000, it is your testimony that there is no

connection between these two items?

A: In my mind I can honestly say that ther e is no

connection between those two checks, the thousand

and the two thousand. In my, I mean in my mind

I know I contributed to Bob Dole because I wanted

8

to contribute to him without reimbursement. The

$2,000, I truly believe I cashed that check and

spent it to, for another reason, I am assuming it

was when I was fixing his vehicle.

A. at 371-72 (emphasis added). About a week after

Serafini's appearance before the grand jury, Serafini's

legislative aide, Thomas Harrison, testified in fr ont of the

grand jury. See Gov't Suppl. A. at 82-122. When the

prosecutor confronted Harrison with a r ecently discovered

reimbursement check drawn on Serafini's account and

deposited to Harrison's, Harrison admitted that Serafini

had solicited and reimbursed Harrison for his Dole

contribution, see id. at 87-88, and that he[Harrison] had

previously lied to FBI agents and to the grand jury about

this contribution in order to "protect Frank and kind of

insulate him from this," A. at 2631. See also A. at 2670-71;

Gov't Suppl. A. at 97.

Based on Harrison's statements and other evidence

resulting from the investigation, the grand jury indicted

Serafini for perjury. Serafini moved to dismiss the

indictment on the basis that the grand jury questioning

was insufficiently precise to support a perjury allegation.

The United States District Court for the Middle District of

Pennsylvania, Chief Judge Thomas I. Vanaskie, dismissed

the portion of the indictment that was based on Statement

3, finding that the grand jury questioning with r egard to

Serafini's awareness of other checks in the contribution

scheme "was so ambiguous and unclear as to pr eclude a

perjury conviction." A. at 5 (Dist. Ct. Mem. Op., Apr. 7,

1998). However, the District Court denied the motion to

dismiss the indictment in all other respects. 10

The case proceeded to trial. At trial, Michael did not

testify. The government presented as its principal evidence

Harrison's testimony regarding his transactions with

Serafini; the testimony of other "conduits" describing their

own transactions with Michael and with other Empir e

officials; and a series of 34 checks, all fr om the same

_________________________________________________________________

10. The government filed an interlocutory appeal of the District Court's

dismissal of the indictment insofar as it related to Statement 3, and we

affirmed. See United States v. Serafini

, 167 F.3d 812, 824 (3d Cir. 1999).

9

sequence of checks, showing reimbursements paid by

Michael to Serafini and to the other conduits. The

government also introduced evidence r elating generally to

Serafini's financial and personal relationship with Michael

and with Empire. The jury convicted Serafini of perjury.

Chief Judge Vanaskie then sentenced Serafini to the ten-

month split sentence described above. See supra note 2.

Serafini now appeals his conviction and sentence.

II. Discussion

A. The Validity of the Indictment

Serafini asserts two challenges to the validity of his

indictment: first, that the prosecutor's questioning of him

before the grand jury was impermissibly vague, and second,

that the District Court's dismissal of the portion of the

indictment concerning Statement 3 should have led to its

dismissal of the entire indictment. We exercise plenary

review over the District Court's denial of the motion to

dismiss the indictment. See United States v. Serafini, 167

F.3d 812, 819 (3d Cir. 1999).

For the first proposition, Serafini r elies on Bronston v.

United States, 409 U.S. 352, 362 (1973), in which the

Supreme Court held that a defendant could not be

convicted of perjury for giving misleading, nonr esponsive,

but literally true answers to the prosecutor's questions. The

Supreme Court emphasized that it is incumbent upon the

questioner to frame sufficiently precise questions:

[T]he perjury statute is not to be loosely construed, nor

the statute invoked simply because a wily witness

succeeds in derailing the questioner -- so long as the

witness speaks the literal truth. The burden is on the

questioner to pin the witness down to the specific

object to the questioner's inquiry.

Id. at 361. Serafini claims that he did not understand the

central concept of "reimbursement" in the same way that

the prosecutor did; Serafini says that he did not believe the

check from Michael to constitute "reimbursement,"

because, he, Serafini, would have given money to Dole in

any event, regardless of whether Michael paid him back for

10

the contribution. Therefore, Serafini ar gues, the questions

put to him were vague and his answers cannot form the

basis for a perjury conviction. This assertion is without

merit. Serafini's attempts to transform the common term

"reimbursement" into a technical ter m whose meaning

would escape a sophisticated state legislator ar e unavailing.11

Furthermore, Serafini's statements before the grand jury go

far beyond a denial of "reimbursement." In Statement 2,

Serafini said that he would "not relate" the $2,000 check to

his $1,000 check for Dole, but would relate it"[t]o

something else, whether it was fixing his car , whether it is

something else." Statement 4 fleshes out Serafini's

assertion that the $2,000 check was related to the car

expenditures, "but . . . certainly does not relate to me

contributing to Bob Dole." Statement 5 is per haps the most

specific: "In my mind I can honestly say that there is no

connection between those two checks, the thousand and

the two thousand." These answers, unlike those at issue in

Bronston, were directly r esponsive to the prosecutor's

questions and clearly stated that there was absolutely no

connection between the check for the Dole campaign and

the check received from Michael. These unambiguous

questions and responses are sufficient to form the basis for

a perjury indictment.

We also reject the argument that the rest of the

indictment should have been dismissed merely because the

portion relating to Statement 3 was dismissed. The

questioning for Statement 3 was vague as to exactly which

checks were being discussed; the questions and answers in

Statements 1, 2, 4, and 5 simply do not relate to the issue

_________________________________________________________________

11. Webster's Third New Inter national Dictionary defines

"reimbursement" as "the action of reimbursing" and "reimburse" as"to

pay back (an equivalent for something taken, lost, or expended) to

someone." Webster's Third New Int'l Dictionary 1914 (1961). The District

Court noted the straightforward nature of the dictionary definition, and

continued: "As it is used in its common parlance, reimbursement means

the delivery of money to a person to pay back that person for money that

the person expended for some matter." A. at 23 (Dist. Ct. Mem. Op. Apr.

7, 1998).

11

of other checks, and, as we have already noted, do not

suffer from ambiguity.12

We will therefore affirm the District Court's denial of

Serafini's motion to dismiss the indictment.

B. Disclosure of Harrison's Immunity

Serafini claims that the government committed a due

process violation during discovery by not disclosing the fact

that Harrison had been "re-immunized" fr om prosecution

before his second grand jury appearance. Serafini cites the

Supreme Court's decisions in Brady v. Maryland and Giglio

v. United States as support for the contention that evidence

of this type must be disclosed. See Brady v. Maryland, 373

U.S. 83, 87 (1963) (stating that due process r equires the

government to disclose material exculpatory evidence upon

the defendant's request); Giglio v. United States, 405 U.S.

150, 154-55 (1972) (stating that the government's failure to

disclose a promise of immunity made to a critical witness

constituted a due process violation, because evidence of an

agreement as to immunity was relevant to the witness's

credibility). Serafini claims that the gover nment failed to

disclose that Harrison was immunized from pr osecution for

perjury, see Serafini Br. at 41, and asserts that defense

counsel's cross examination of Harrison at trial would have

been different in content and appr oach had the defense

been aware of this renewed immunity.

The problem with Serafini's claim is that the purported

"re-immunization" consists of nothing mor e than the

following exchange in the transcript of Harrison's second

appearance before the grand jury:

Q: Now, as it was the last time, you are testifying here

today under an order of immunity signed by Judge

Vanaskie, which requires you to testify despite the

existence of any constitutional privilege against self

incrimination. That order compels you to testify on

_________________________________________________________________

12. Serafini's citation to United States v. D'Alessio, 822 F. Supp. 1134

(D.N.J. 1993), a case in which the counts of the indictment were very

difficult to disentangle, and in which ther e was considerable confusion

as to whether the underlying behavior was criminal under New Jersey

law, is therefore inapposite.

12

the condition that your testimony may not be used

against you in a criminal case. You do not have

immunity from perjury or making false statements

in your testimony today, do you understand?

A: Yes.

Q: If you commit perjury, or make a false statement,

you can be prosecuted for that perjury or false

statement despite the grant of immunity and your

testimony here today could be used against you in

the prosecution, do you understand?

A: Yes.

Gov't Suppl. A. at 85. This exchange makes it clear that

Harrison's immunity extended only to the underlying

conduct about which he testified; Harrison was not

immune from a subsequent perjury prosecution in the

event that his statements in his second appearance before

the grand jury proved to be false. Serafini does not contest

the government's assertion that the gover nment turned

over the grand jury transcript to defense counsel two weeks

before trial -- well before the time that Brady or Giglio

would require. See Gov't Br . at 38; Serafini Reply Br. at 36.

Because Serafini has not offered evidence of any promises

of immunity to Harrison made outside the grand jury

proceedings,13 we can find no discovery violation on this

record.

C. Evidentiary Rulings

1. Digital Recording

Serafini contends that the District Court abused its

discretion by permitting the gover nment to play for the jury

a digital recording of a redacted version of Serafini's grand

jury testimony.14 The story of the history and chain of

_________________________________________________________________

13. Serafini quotes an excerpt from the government's sentencing

memorandum, see A. at 3701-02, as support for the assertion that

Harrison was given blanket immunity -- even fr om perjury at his second

grand jury appearance or at his trial appearance. W e conclude that

Serafini reads more into the prosecutor's offhand use of the word "re-

immunization" than is reasonable given the clear record evidence in the

case.

14. We review the District Court's decisions as to the admissibility of

evidence for abuse of discretion. See United States v. Pelullo, 964 F.2d

13

custody of this recording -- from"original tapes" of the

grand jury testimony, to the "redacted tapes," to the "digital

version" of these tapes -- is quite complex. However, the

relevant facts for our purposes can be succinctly stated.

Serafini argues on appeal that the District Court should

not have admitted the digital version of the tapes, because

(1) the digital version was not individually authenticated

and offered in evidence; and (2) the digital version differs

materially from the original version. Serafini cites the report

of defense expert James B. Reames; Reames concluded that

the redacted copy of the tape contained "severe distortion of

the spoken words" as compared to the original tape. A. at

3413. The problem with Serafini's argument is that

Reames's objections are directed at the r edacted version,

not the digital version, and it is the digital version's content

that is the issue presented to us. The r ecording -- which

turned out to be the digital recor ding -- was offered in

evidence without objection from Serafini, see A. at 1300.

Even if we accept defense counsel's contention that he

thought the recording being played at trial was the redacted

and not the digital version, the lack of objection at trial

waived any subsequent objection to the r edacted version,

thus obviating the relevance of Reames' r eport.15

As for the digital version, we have no basis for concluding

that there were material differ ences between it and the

redacted tape. The trial judge compared all three versions

of the audio recordings, and could not discern any material

differences among the versions. See A. at 3082-84.16

_________________________________________________________________

193, 199 (3d Cir. 1992). To the extent that these rulings were based on

an interpretation of the Federal Rules of Evidence, however, our review

is plenary. See id.

15. Serafini apparently does not appeal the evidentiary ruling insofar as

it held that the redacted version was authentic and admissible. Even if

we were to construe Serafini's appellate briefs as raising a challenge to

the authenticity of the redacted tape, his lack of objection at trial

means

that we could review the District Court's ruling only for plain error, see

Fed. R. Crim. P. 52(b), and we find no plain error.

16. It is worth noting that both parties agr eed to Chief Judge Vanaskie's

suggestion that he would listen to the tapes to assess whether he could

notice a difference among the thr ee versions, and would determine

whether a hearing was necessary based on his assessment. See A. at

2794-95, 3068-69, 3070-73.

14

Serafini levels a broad challenge but fails to point to any

specific differences between the r edacted and the digital

versions. In fact, he maintains that he was unable to tell

from the playing of the recording at trial that it was not the

redacted version. See Serafini Br . at 22.

We find, therefore, that even if the District Court erred in

its decision to play the digital rather than the r edacted

version of the recording, it did not af fect Serafini's

substantial rights, and was thus harmless. See Government

of the Virgin Islands v. Toto, 529 F.2d 278, 283-84 (3d Cir.

1976); see also Chapman v. California, 386 U.S. 18, 23-24

(1967).

2. Conduit Evidence

Serafini argues that the District Court abused its

discretion in admitting evidence of the conversations and

the transfer of funds in transactions that involved other

"conduits" like Serafini -- i.e., other people through whom

Michael and Empire funneled contributions -- but did not

involve Serafini himself. The evidence admitted by the

District Court consisted of reimbursement checks and

conduit witnesses' testimony as to the conversations. These

conduit conversations fall into two categories: those to

which Michael was a party, and those to which he was not.

The District Court admitted testimony in both categories.

We conclude that the District Court did not abuse its

discretion in admitting the checks that wer e in the same

series of checks as the check issued to Serafini, nor in

admitting the testimony as to the conversations that

involved Michael. In order to prove that Serafini had

committed perjury, the government was r equired to

demonstrate the falsity of Serafini's claim that the check he

received from Michael was not a reimbursement. See A. at

695-96. The fact that the Serafini check was one in a series

of apparent reimbursement checks was r elevant to this

requirement. Michael's previous actions were relevant to

show that Michael, one of the parties to the transaction

involving Serafini, understood it as a reimbursement.

Serafini argues that even if the checks wer e admissible, the

conversations were inadmissible hearsay. W e conclude that

the conversations in which Michael was involved wer e

15

admissible under the hearsay exception provided by Federal

Rule of Evidence 803(3),17 as evidence of Michael's state of

mind at the time of the conversations. Michael's state of

mind during these conduit transactions was r elevant to

show that he intended his check to Serafini to be a

reimbursement (as he did with the other conduits); this

evidence tends to support an inference that it was Michael's

general practice to reimburse contributors for their

contributions, and thus that the check to Serafini was in

fact a reimbursement.

The admission of the conduit conversations that did not

involve Michael had a far more attenuated connection to

Serafini's guilt. We find some merit to Serafini's contentions

that these were of marginal relevance and were

inadmissible as hearsay. However, the evidence contained

in these conduit conversations was almost wholly

cumulative of the evidence contained in those conversations

that did involve Michael, which, as described above, were

properly admitted into evidence. We ther efore find that the

error, if any, in admitting the r emaining conduit

conversations did not affect Serafini's substantial rights,

and was therefore harmless.18

_________________________________________________________________

17. We also conclude that the District Court did not abuse its discretion

in determining, pursuant to Federal Rule of Evidence 403, that the

probative value of these conversations, and of the checks, was not

substantially outweighed by their prejudicial effect -- a determination to

which we must give "substantial deference." Hurley v. Atlantic City Police

Dep't, 174 F.3d 95, 110 (3d Cir. 1999). We note also that the District

Court properly gave a cautionary instruction to limit the danger of unfair

prejudice. See A. at 3337-38 (District Court's statement that the jury

could not consider the conduit evidence to establish Serafini's

knowledge).

18. Serafini also raises challenges to other evidentiary decisions made by

the District Court, including the exclusion of hearsay concerning the

purported car repairs, and the admission of (1) evidence concerning

Serafini's financial stake in Empire; (2) evidence that Empire paid

Serafini's counsel fees; (3) portions of the agr eement to sell Empire;

(4)

a letter Serafini wrote to his Congressman concerning Empire; and (5)

evidence as to Serafini's involvement in Empir e lobbying. We find no

error in the District Court's rulings or its r easoning on these matters,

and will affirm these evidentiary rulings.

16

D. Sufficiency of the Evidence

Serafini's final objection to his conviction is that the

government's evidence was legally insufficient to support a

conviction for perjury. The burden on a defendant who

raises a challenge to the sufficiency of the evidence is

extremely high. "We determine whether there is substantial

evidence that, when viewed in the light most favorable to

the government, would allow a rational trier of fact to

convict." United States v. Helbling, 209 F.3d 226, 238 (3d

Cir. 2000) (quoting Government of the Virgin Islands v.

Charles, 72 F.3d 401, 410 (3d Cir . 1995)). 18 U.S.C.

S 1623(a) provides:

Whoever under oath (or in any declaration, certificate,

verification, or statement under penalty of perjury as

permitted under section 1746 of title 28, United States

Code) in any proceeding before or ancillary to any court

or grand jury of the United States knowingly makes

any false material declaration or makes or uses any

other information, including any book, paper ,

document, record, recording, or other material,

knowing the same to contain any false material

declaration, shall be fined under this title or

imprisoned not more than five years, or both.

Serafini's argument that the evidence is insufficient rests

primarily on the fact that the evidence presented

concerning Serafini's state of mind was cir cumstantial in

nature. However, we have recognized that intent and

knowledge may be proven via circumstantial evidence. See

United States v. Iafelice, 978 F.2d 92, 97 (3d Cir. 1992); see

also United States v. Chapin, 515 F.2d 1274, 1280 (D.C.

Cir. 1975) ("[P]erjury cases . . . ar e susceptible to proof by

circumstantial evidence, and in fact ar e peculiarly likely to

be proven in this manner because one of the elements of

the crime is that the defendant knew his statement was

false when he made it."). Viewing the evidence in this case

in the light most favorable to the government, we find that

the evidence -- including but not limited to Harrison's

testimony, Serafini's grand jury testimony, and the

admissible conduit evidence -- was easily sufficient for a

rational factfinder to find that Serafini perjured himself in

denying that the $2,000 check was a reimbursement for his

17

and Harrison's contributions to the Dole campaign, and in

stating that the $2,000 had nothing to do with these

contributions. The evidence was therefor e sufficient to

support Serafini's conviction.

E. Sentencing Issues

1. Increase in Offense Level for Substantial Interference

After ascertaining that the base offense level for perjury

before a grand jury was 12, see U.S.S.G. S 2J1.3(a), the

District Court applied a three-level enhancement for

"substantial interference with the administration of justice,"

id. S 2J1.3(b)(2). An application note to this section of the

Guidelines explains:

"Substantial interference with the administration of

justice" includes a premature or impr oper termination

of a felony investigation; an indictment, ver dict, or any

judicial determination based upon perjury, false

testimony, or other false evidence; or the unnecessary

expenditure of substantial governmental or court

resources.

Id. S 2J1.3 (Application Note 1) (emphasis added). The

District Court found that Serafini's perjury had caused the

unnecessary expenditure of substantial gover nmental

resources.

The District Court identified the following expenditures of

the government's time: re-interviewing Thomas Harrison

after Serafini's appearance before the grand jury, calling

Harrison to testify before the grand jury a second time,

subpoenaing auto repair shops and PNC Bank for records,

interviewing the owner of one auto repair company and the

general manager of another, and interviewing Serafini's

employee Lucille Yager and requesting Y ager's grand jury

testimony. See A. at 3823-24. The defense ar gued that

some of these expenditures would have been undertaken

even in the absence of Serafini's perjury, claiming in

particular that the government had in its possession the

bank records showing Serafini's check to Harrison even

before Serafini's grand jury appearance. See Serafini Br. at

63. Serafini cites United States v. Jones, 900 F.2d 512, 522

(2d Cir. 1990), for the proposition that a substantial

18

expenditure enhancement cannot be applied wher e the

government already had the infor mation that the defendant

concealed via her false statements. However, Jones is easily

distinguished from our case. Jones r elied heavily on the

fact that "the district court did not make any specific

finding that Jones' perjury had resulted in any substantial

expenditure of governmental resour ces." Id. at 521-22.

Here, in contrast, the District Court explicitly made such

factual findings. See A. at 3823-27 (transcript of sentencing

hearing).19 We review the District Court's factual findings

that the expenditures were "substantial" and that Serafini's

perjury was a but-for cause of these expenditur es for clear

error only, see, e.g., United States v. Sinclair, 109 F.3d

1527, 1539 (10th Cir. 1997), and we find no such error. We

therefore conclude that the enhancement for "substantial

interference" was permissible.

2. Downward Departure for Community and Charitable

Activities

The offense level for perjury, adjusted by the three-level

substantial interference enhancement, was 15. When

combined with Serafini's criminal history category of I, this

adjusted offense level resulted in a guideline range of 18 to

24 months' imprisonment. However, the District Court

granted a three-level downward departur e for Serafini's

community and charitable activities. See A. at 3851-52. The

government argues that the District Court's departure is an

abuse of discretion.

_________________________________________________________________

19. In particular, the District Court explained its conclusion that the

government would not have had to re-interview Harrison if Serafini had

testified truthfully before the grand jury:

If Mr. Serafini had testified, truthfully, that he was, indeed,

reimbursed and that the other thousand dollars of the $2,000 check

was for Mr. Harrison, there would be no need to go see Mr.

Harrison, again, who was, to say the least, not the most reliable

witness the Government could find, under the circumstances,

having already lied to the Grand Jury. So Ifind that but for the

Defendant's perjury, it would not have been necessary to interview

Mr. Harrison, so that there is the r equisite causal relationship

between the interview and calling him to testify before the Grand

Jury.

A. at 3824.

19

In Koon v. United States, 518 U.S. 81 (1996), the

Supreme Court outlined the methodology for a district

court to use when considering a departure fr om the

applicable guideline range. We have described the Koon

analysis as follows:

First, identify the factor or factors that potentially take

the case outside the Guidelines' "heartland" and make

it special or unusual. Second, determine whether the

Guidelines forbid departures based on the factor,

encourage departures based on the factor , or do not

mention the factor at all. Third, apply the appropriate

rule: (1) if the factor is forbidden, the court cannot use

it as a basis for departure; (2) if the factor is

encouraged, the court is authorized to depart if the

applicable guideline does not already take it into

account; (3) if the factor is discouraged, or encouraged

but already taken into account by the applicable

guideline, the court should depart only if the factor is

present to an exceptional degree, or in some other way

makes the case different from the ordinary case in

which the factor is present; or (4) if the factor is

unmentioned, "the court must, after considering the

structure and theory of both relevant individual

guidelines and the Guidelines taken as a whole, decide

whether [the factor] is sufficient to take the case out of

the Guideline's heartland."

United States v. Iannone, 184 F.3d 214, 226 (3d Cir. 1999)

(emphasis added) (internal citations to Koon omitted). We

also noted Koon's statement that a r eviewing court must

give substantial deference to the district court's

discretionary decision to depart from the guideline range.

See id. at 227 (citing Koon, 518 U.S. at 98).

The District Court described the appropriate analytical

steps and correctly determined that departing on the basis

of civic and charitable good works was discouraged, but not

forbidden, by the Guidelines. See A. at 3839 (transcript of

sentencing hearing); U.S.S.G. S 5H1.11 ("Military, civic,

charitable, or public service; employment-related

contributions; and similar prior good works ar e not

ordinarily relevant in determining whether a sentence

should be outside the applicable guideline range."). The

20

District Court recognized that, in order to depart downward

on this basis, it must find that this factor existed "to an

exceptional degree or, in some way, that makes the case

different from the ordinary case in which the factor is

present." A. at 3839. The District Court made a finding that

Serafini's civic and charitable contributions did exist to

such an exceptional degree, or in an extraor dinary manner.

See id.

Our review of the District Court's finding in this regard is

quite deferential. See Koon, 518 U.S. at 98 ("[W]hether a

discouraged factor nonetheless justifies departur e because

it is present in some unusual or exceptional way, [is a]

matter[ ] determined in large part by comparison with the

facts of other Guidelines cases. District courts have an

institutional advantage over appellate courts in making

these sorts of determinations . . . "); see also United States

v. Jones, 158 F.3d 492, 497 (10th Cir . 1998) (stating that

appellate review "is at its most defer ential" when the court

of appeals is evaluating "the district court's conclusion that

the facts of this case made it atypical"). Our r eview is

limited to ensuring that the circumstances r elied upon by

the District Court are not "so far r emoved from those found

exceptional in existing case law that the sentencing court

may be said to be acting outside permissible limits." United

States v. Sweeting, 213 F.3d 95, 100 (3d Cir. 2000).

At the sentencing hearing, the District Court was

presented with several character witnesses, and more than

150 letters. The letters submitted to the Court fall into

three categories: (i) the first category presents Serafini as a

good person; (ii) the second category refers to his activities

as a state legislator; and (iii) the thir d category refers to his

assistance, in time and money, to individuals and local

organizations.

(i) As to the first category, these can be quickly

dismissed with the observation that being a "good person,"

a quality indeed to be admired, does not qualify as

extraordinary or exceptional civic or charitable conduct.

(ii) As to Serafini's activities as a state legislator, they

are work-related and political in character. For example, a

letter from the Fire Chief of Greenfield Township Volunteer

21

Fire Company stated that he "had worked tir elessly to

obtain grant monies to help the community af ford the

lifesaving equipment they need." Sealed Suppl. A. at 20.

The same letter also referred to Serafini's guidance "on

several projects, including writing bid specifications for a

new engine . . . and in pushing through legislation which

allows smaller fire companies to purchase equipment

through state funding." Id.

Other letters of this nature attest to Serafini's character

and quality of legislative service. Others ar e from grateful

constituents who were helped by Serafini or his staff.

Conceptually, if a public servant perfor ms civic and

charitable work as part of his daily functions, these should

not be considered in his sentencing because we expect such

work from our public servants. While we might question

whether our sentencing courts should consider such things

as one's situation or opportunity, the methodology that

requires us to determine "or dinary" versus "exceptional"

and "laudable" versus "extraordinary" is a subjective one

that involves comparing a defendant's conduct to the norm.

Thus, to the extent this second group of letters does not

evidence extraordinary community service under Guideline

5H1.11, but instead, reflects merely the political duties

ordinarily performed by public servants, we are of the view

that they cannot form the basis of a departur e.

(iii) However, unlike the first and second categories of

letters the Court received, the third category of letters

provided an adequate basis for the District Court's

conclusion that Serafini's community service warranted a

downward departure. Many of the letters that fall within

this last group contain substantive descriptions of Serafini's

generosity with his time as well as his money. Several

constituents and friends described situations in which

Serafini extended himself to them in unique and

meaningful ways during times of serious need. In

particular, three letters are especially noteworthy.

William Drazdowski, an accountant and "a close personal

friend" of the defendant, explains Serafini's r ole in providing

a $300,000 guarantee to Dr. Edward Zaloga so that he

could secure new cutting edge data from certain Tokyo

physicians for the treatment of his brother's brain tumor.

22

Sealed Suppl. A. at 57. Dr. Zaloga testified at the

sentencing hearing that he telephoned Serafini at 1:00 a.m.

seeking his assistance in raising the money. Just thirty

minutes later, Serafini called back and informed Dr. Zaloga

"that everything was in place." The letter does not state who

actually made the guarantee, or how it was accomplished.

However, the clear import of Zaloga's testimony is that it

was Serafini's money: ". . . [N]ot once did he ask me, How

are you going to pay me back? Or any other such question.

The simple statement, Just get the account numbers, we'll

wire the money in the morning." A. at 3786. In reading the

Zaloga letter, both Serafini's readiness to help and his

reluctance to seek gratitude make a str ong impression.

Such behavior is hardly part of the nor mal duties of a local

politician.

Another letter came from George E. Seig, who also

testified at the sentencing hearing. Sealed Supp. A. at 186-

89. He sustained a serious injury as a result of an accident

while he was a college student. The physicians' pr ognosis

was that he would never be able to carry on any for m of

normal social functioning. After a year of frustrating

physical therapy, Seig lost all ambition to r eturn to school.

Then, he was contacted by Serafini's office who told him

that Serafini had heard of the tragic incident and wanted

Seig to come work for him. The record r eflects that

Serafini's offer of employment went far beyond just hiring a

young person on his staff. Serafini took Seig under his

wing, mentored him, and strongly encouraged him to

attend college. He even loaned him money until Seig could

repay it. The letter from Seig -- now an attorney -- reflects

his immense gratitude and his feeling that Serafini is

responsible for turning his life ar ound.

A third letter came from a widow who appr oached

Serafini in tears because she was about to lose her house.

He wrote her a personal check for $750 to for estall

foreclosure. She expressed doubt about her future ability to

repay him, but Serafini insisted that she need not do so

unless she could afford it.

The remaining letters, taken as a whole, depict Serafini

as an exceptionally giving person. See Sealed Suppl. A. at

137 (describing Serafini's having forgiven a substantial debt

23

out of concern for a divorced mother'sfinancial situation).

For example, the letters describe Serafini's volunteer work

as an usher at St. Mary's Church, see id. at 35, 40, 107;

at the Abington Heights School District, see id. at 166; and

at Lackawanna Trail High School, see id. at 200. In

addition, he helped to establish a fund to defray the cost of

a bone marrow transplant for a man suffering from

leukemia. See id. at 209. Several letters note that Serafini

was generous with his time even with people who lived

outside his district. See id. at 33, 35, 125. The letters also

describe Serafini's financial contributions to organizations

such as The Arc (a nonprofit agency serving people with

mental retardation and their families), see id. at 14; the

Rotary Run Against Drugs, see id. at 26; the Scranton-

Lackawanna Human Development Agency, see id. at 41,

108; the Little League, see id. at 47; the Boy Scouts, see id.

at 109, 118; St. Francis of Assisi Kitchen, see id. at 157;

the Abington Heights School District, see id. at 166; and

the leukemia sufferer's fund mentioned above, see id. at

209.20 A letter from an official at the University of Scranton

refers to Serafini's financial assistance to college students,

see id. at 177, and a letter from a high school social studies

teacher describes Serafini's contributions to a scholarship

for graduating seniors, see id. at 200.

A former employee noted in one letter that when her

friend was sick with leukemia, Serafini did mor e than just

permit her to take time off to visit her . He arranged a ride

for her friend to Johns Hopkins Hospital in Maryland so

that she could obtain a second opinion regar ding her

condition. See id. at 215. Other letters indicating that

Serafini went above and beyond the call of duty as a public

servant described how he had personally financed a second

office to enable him to reach more constituents. See id. at

_________________________________________________________________

20. Several letters describe contributions to other organizations, beyond

those listed above, in terms that indicate that the contributions may be

either financial or nonfinancial in natur e. See Sealed Suppl. A. at 67

(Moosic Youth Center and Moosic Lions); id. at 80 (St. Joseph's Hospital,

the Red Cross, and the SPCA); id. at 146 (The Mental Health

Association); id. at 190 (the Northeast Regional Cancer Institute, the

Deutsch Institute, Easter Seals, Friends of the Poor , and the American

Heart Association).

24

35. Additionally, there was significant testimony at the

sentencing hearing regarding Serafini's charitable activities,

including: giving a man several hundred dollars so his

electricity would not be turned off, id. at 3789; paying

mortgages, car payments, and the cost of dentur es for

those could not afford them, id. at 3791, 3800; and helping

a young man start his construction business, id. at 3803.

The District Court concluded that the letters and

testimony demonstrated that Serafini had distinguished

himself, "not by the amount of money [he has] given, but by

the amount of time that [he has] devoted." A. at 3839. The

District Court found that these efforts made Serafini's

community and charitable activities "exceptional" when

compared to what an average person in Serafini's

circumstances would have done:

Those weren't acts of just giving money, they were acts

of giving time, of giving one's self. That distinguishes

Mr. Serafini, I think, from the or dinary public servant,

from the ordinary elected official, and I had ample

testimony, today, that says that Mr. Serafini

distinguishes himself, that these are acts not just

undertaken to assure his re-election, but are taken

because of the type of person he is . . . .

A. at 3840.

We realize, as did the District Court, that Serafini's

largesse was in part financial, and in part, devotion of

himself and his time. Since he is a wealthy individual, we

must ensure that a district court does not run afoul of the

prohibition against considering socioeconomic differences

in relying on financial contributions as a basis for a

departure. See U.S.S.G. S 5H1.11; see also United States v.

Tocco, 200 F.3d 401, 434 (6th Cir . 2000). However, the

District Court here recognized this particular aspect of

Serafini's situation, but nonetheless found all his

contributions, not merely monetary ones, exceptional.

It is not our role to decide in the first instance whether

Serafini's civic and charitable contributions wer e

exceptional given Serafini's role as a public servant and his

apparent wealth. Our review is far mor e deferential. We

conclude that the District Court had an adequate basis for

25

its factual finding, and that the District Court's decision

was not clearly out of line with other reported cases. See,

e.g., United States v. Woods, 159 F.3d 1132, 1136 (8th Cir.

1998) (upholding defendant's downward departur e for

charitable activities, which included bringing two troubled

young women into her home and paying for them to attend

a private high school, as well as helping to car e for an

elderly friend, where the court found no basis to overturn

the district court's finding that these ef forts were

exceptional).

In reaching this conclusion, we have not overlooked the

decision of the Court of Appeals for the Eighth Cir cuit in

United States v. Morken, 133 F.3d 628 (8th Cir. 1998).

There, the court concluded that the defendant's activities,

which consisted of advising local business owners, hiring

young people, serving on a church council, and raising

money for charity, were "laudable, . . .[but] neither

exceptional nor out of the ordinary for someone of his

income and preeminence in a small Minnesota town with a

population barely over a thousand." Id. at 630. Accordingly,

the court of appeals reversed the district court's downward

departure.

However, in Morken, the court essentially found that,

given Morken's station in life, his contributions were not

extraordinary. Here, the District Court was careful to view

Mr. Serafini's activities in light of his career and resources,

and taking that into account, found that his charitable

activities were in fact sufficiently beyond the norm for a

wealthy politician, and were sufficiently exceptional so as to

warrant a departure under the Guidelines. While the

District Court did not allude to this, we can detect here

good works of a different nature and degree than the

somewhat impersonal giving that was demonstrated in

Morken. Also, we are aware that other appellate courts have

second guessed the trial court's view of the "nor m" for good

works performed by certain individuals, concluding that a

certain defendant did no more than other similarly situated

individuals. See United States v. Haversat, 22 F.3d 790,

796 (8th Cir. 1993) (holding that defendant's charitable and

volunteer activities did not make him an atypical defendant

in antitrust price-fixing cases); see also United States v.

26

Crouse, 145 F.3d 786, 792 (6th Cir . 1998) (finding nine-

level downward departure unsupported by defendant's civic

contributions, which were not unusual for a pr ominent

businessman). These do not provide a basis forfinding an

abuse of discretion here because, based on the evidence,

the District Court could have found, and did find, that

Serafini's acts of personal kindness and good works were

above and beyond customary political or charitable giving.

We also note that while many of Serafini's acts involved the

giving of money, the monetary aid was only one aspect of

otherwise charitable conduct on his part, distinguishing his

acts from the impersonal writing of checks that is the norm

for many wealthy individuals. By taking such giving into

account, the District Court did not grant the departure

based on socioeconomic conditions. We conclude that the

District Court did not abuse its discretion byfinding that

Serafini's civic and charitable contributions wer e

exceptional and thus warranted a downward departure.

The government also challenges the extent of the District

Court's three-level departure, claiming that this departure

was reached by a result-oriented and incorrect

methodology. We do not agree. In United States v.

Kikumura, 918 F.2d 1084 (3d Cir. 1990), we noted that our

scope of review over the extent of the District Court's

discretionary departure is deferential. See id. at 1110 ("This

[final] step involves what is quintessentially a judgment

call. District courts are in the front lines, sentencing flesh-

and-blood defendants. . . . Therefore, appellate review must

occur with full awareness of, and respect for, the trier's

superior `feel' for the case.") (quoting United States v. Diaz-

Villafane, 874 F.2d 43, 49-50 (1st Cir. 1989)); see also 18

U.S.C. SS 3742(f)(2), (f)(3) (stating that the courts of appeals

should affirm all departures that ar e not unreasonable).

However, in Kikumura, we outlined"objective standards to

guide the determination of reasonableness," Kikumura, 918

F.2d at 1110, stating that the sentence imposed must be

"minimally sufficient to satisfy concer ns of retribution,

general deterrence, specific deterrence, and rehabilitation,"

id. at 1111. We also observed that the appropriate way to

meet these goals may often be determined by analogy to

specific guidelines or to the structure of the Guidelines in

general. See id. at 1112 ("[A]nalogy to the guidelines is also

27

a useful and appropriate tool for deter mining what offense

level a defendant's conduct most closely appr oximates."); id.

at 1113 ("[B]y attempting to link the extent of departure to

the structure of the guidelines, the courts can avoid the

kind of standardless determinations of r easonableness that

inevitably produce unwanted disparity.") (quoting United

States v. Ferra, 900 F.2d 1057, 1062 (7th Cir. 1990))

(internal quotation marks and citation omitted).

The District Court heeded Kikumura's instruction to look

to the structure of the Guidelines, but noted that it could

not find "any particularly apt analogy" in any specific

guideline. A. at 3851. Therefore, the District Court

compared the mitigating effect of Serafini's charitable and

community contributions with the sentence-enhancing

effect of his substantial interfer ence with the

administration of justice. The District Court concluded that

these two effects were similar in magnitude:

And there are no other specifically-mentioned

adjustments, in this particular case, that pr ovides [sic]

a sound foundation for analogic reasoning. I do think,

however, that it's appropriate to look at this case as if

it were perjury without the enhancement, without the

three-level enhancement. I think that an appr opriate

downward departure, in this case, is thr ee levels.

A. at 3851-52. In the absence of any clearly r elevant

analogy to a specific guideline, we conclude that the

District Court did not abuse its discretion in determining

that the effects of the enhancement and the downward

departure should be similar in magnitude, nor in

concluding that the net effect was to r eturn Serafini to the

base level of culpability for perjury -- a level 12.

The government's argument that the departure was

result-oriented is based on a single statement by the

sentencing judge: "And I will say that I am most influenced,

in the final decision that I make, that I have departed three

levels, that takes me to Zone C." A. at 3852. W e find this

statement too ambiguous to support the gover nment's

contention that the District Court abused its discr etion. It

is not apparent to us, from this one statement, that the

sentencing judge meant that the reason for his departure

28

was to arrive at Zone C of the Sentencing Table. Read in

the entire context of the District Court's departure

discussion, the statement is equally susceptible to a

simpler reading: that the District Court simply found that

the result of the three-level departure was to put Serafini in

Zone C, not that the goal of the departur e was to put him

in Zone C.21

3. Recommendation as to Location of Confinement

The government argues that the District Court erred in

recommending to the Bureau of Prisons that the

imprisonment portion of Serafini's service be served in the

Catholic Social Services of Lackawanna County Residential

Program. See A. at 3879 (District Court's judgment of

sentence). The government asserts that such a facility

cannot serve as the location for "imprisonment" within the

meaning of U.S.S.G. S 5C1.1, which reads in pertinent part:

If the applicable guideline range is in Zone C of the

Sentencing Table, the minimum term may be satisfied

by --

(1) a sentence of imprisonment; or

(2) a sentence of imprisonment that includes a ter m

of supervised release with a condition that

substitutes community confinement or home

detention . . . provided that at least one-half of the

minimum term is satisfied by imprisonment.

U.S.S.G. S 5C1.1(d). We agree with the government's

reading of this portion of the Guidelines, and its view that

the imposition of a community confinement sentence would

violate the Guidelines. However, because the District

Court's statement as to the place of confinement was

merely a recommendation, i.e., was not a final order

_________________________________________________________________

21. Because we conclude that the departur e was permissible, the District

Court was correct to calculate a guideline range of 10 to 16 months for

Serafini, which placed Serafini in Zone C. The split sentence -- five

months' imprisonment followed by five months' home detention -- was

appropriate for this guideline range. See U.S.S.G. S 5C1.1(d)(2).

29

imposed by the District Court, we conclude that we have no

jurisdiction to review this statement.22

It is true that under section S 5C1.1 of the Guidelines,

"community confinement" cannot constitute

"imprisonment" for purposes of fulfilling the requirement

that one-half of a split sentence be satisfied by

imprisonment. See United States v. Horek , 137 F.3d 1226,

1228-29 (10th Cir. 1998); United States v. Adler, 52 F.3d

20, 21 (2d Cir. 1995); United States v. Swigert, 18 F.3d 443,

446 (7th Cir. 1994); United States v. Jalili, 925 F.2d 889,

892-93 (6th Cir. 1991); see also United States v. Jordan,

734 F. Supp. 687, 688 (E.D. Pa. 1990). Ther efore, if the

District Court had so ordered this confinement as satisfying

the requirement for imprisonment, it would clearly be

reversible error.23 However, we reject the government's

contention that we can or must reverse the District Court's

sentencing order that included a recommendation to that

effect. The District Court recognized that the final decision

as to the location of imprisonment was the Bur eau of

Prisons'. See A. at 3879 (District Court's judgment of

sentence) ("The defendant is hereby committed to the

custody of the United States Bureau of Prisons to be

imprisoned for a term of five (5) months. . . . The court

makes the following recommendations to the Bur eau of

Prisons: The Court recommends that the Bur eau of Prisons

designate the Catholic Social Services of Lackawanna

County Residential Program, Scranton, Pennsylvania, as

the place for service of this sentence.") (emphasis added).

Its recommendation, while erroneous, was not an order and

is technically not reviewable. See e.g., United States v.

Pineyro, 112 F.3d 43 (2d Cir . 1997) (per curiam). In our

_________________________________________________________________

22. Because we conclude that we have no jurisdiction over this portion

of the government's cross-appeal, we need not reach Serafini's argument

that the government forfeited this issue by failing to raise it in the

District Court.

23. In fact, a district court has no power to dictate or impose any place

of confinement for the imprisonment portion of the sentence. Rather, the

power to determine the location of imprisonment rests with the Bureau

of Prisons. See 18 U.S.C. S 3621(b) ("The Bureau of Prisons shall

designate the place of the prisoner's imprisonment."); see also Jalili,

925

F.2d at 892.

30

view, the recommendation did not amount to the imposition

of a community confinement sentence. The sentence the

District Court imposed -- namely five months'

imprisonment -- was appropriate and we will affirm it. That

part of the order that contains the recommended place of

imprisonment -- which would violate the guidelines if

followed by the Bureau of Prisons -- is either beyond our

jurisdiction, or, if reviewable as part of the order, a nullity.

We think the former is the better analytic route. We need

not disturb a suggestion or recommendation, and have no

power to do so because our review is limited to a sentence

imposed in violation of the law or imposed as a result of an

incorrect application of the Sentencing Guidelines. See 18

U.S.C. SS 3742(a)(1), (a)(2). While the gover nment correctly

notes that the community confinement sentence, if

imposed, would violate the law, we do not see the place of

Serafini's commitment as having been imposed by the

District Court, and we will not reverse the sentencing order

on that basis because we lack jurisdiction over the District

Court's recommendation.

III. Conclusion

For the foregoing reasons, we will AFFIRM the District

Court's orders of conviction and sentence.

31

ROSENN, Circuit Judge, Concurring in part and Dissenting

in part:

I concur and join with the majority except with r espect to

Part E(2) pertaining to the Downward Departur e for

Community and Charitable Activities. For reasons set forth

below, I respectfully dissent from this aspect of the opinion.

The trial judge tried this hard fought case skillfully,

patiently and without error. However , I believe that when it

came to sentencing, the voluminous letters fr om the

defendant's political constituents, colleagues, and other

friends misled the Court to depart downward fr om the

Guidelines. The majority appropriately r ejects the first two

categories of these letters but concludes that the third

category of letters provide "an adequate basis" for the

District Court's conclusion to depart downwar d. Maj. op. at

22. In reaching its conclusion, the majority gives "quite

deferential" review to the District Court's finding that

Serafini's civic and charitable contributions did exist to an

exceptional degree, or in an extraordinary manner. Maj. op.

at 21.

The general rule of "deference" is not without limitation:

it has many restraints. It must be consistent with

Congressional purpose and, in this case, the Sentencing

Guidelines. Even in cases where administrative agencies

enjoy much deference in interpreting their own regulations,

Justice Jackson has stated that the weight of defer ence

"will depend upon the thoroughness evident in its

consideration, the validity of its reasoning, .. . , and all

those factors which give it power to persuade, if lacking

power to control." Skidmore v. Swift & Co., 323 U.S. 134,

140 (1944), quoted affirmatively in General Electric Co. v.

Gilbert, 429 U.S. 125, 141-142 (1976). Accor d, Daughters of

Miriam Ctr. for the Aged v. Mathews, 590 F.2d 1250, 1258

(3d Cir. 1978).

Although I agree wholeheartedly that the District Court's

sentencing finding is entitled to deference,"this deference is

constrained by our obligation to honor the clear meaning of

a statute, as revealed by its language, purpose, and

history." Teamsters v. Daniel, 439 U.S. 551, 566 n.20

(1979) (quoted in Southeastern Community College v. Davis,

32

442 U.S. 397, 411 (1979)). When invoked as a guide to the

exercise of judicial action, discretion must be sound, and

not exercised arbitrarily or without regar d to what is right

and equitable under the circumstances and the law. See

Koon v. United States, 518 U.S. 81 (1996).

Discretion, like the hole in a doughnut, does not exist

except as an area left open by a surrounding belt of

restriction. See Ronald Dworkin, T aking Rights Seriously 31

(1977). Discretion, even the discretion r esting with a

sentencing trial judge, must be restricted by the applicable

statutory meaning, purpose and history. The United Sates

Sentencing Guidelines, which apply here, whether we

empathize with them or find them frustrating, ar e binding

upon the sentencing judge and the appellate courts. See

Mistratta v. United States, 488 U.S. 361 (1989)(holding that

the Guidelines are constitutional). Unless courts uphold the

surrounding belt of restriction, discr etion, even the little

discretion that remains with a judge under the Sentencing

Guidelines, will override the parameters of statutory

limitation.

Prior to the Sentencing Reform Act (SRA) of 1984, 18

U.S.C. S 3551 et seq., 28 U.S.C. SS 997-998 (the "Act"), the

federal sentencing system had been "predominantly

standardless and indeterminate." Federal Sentencing

Manual, G.T. McFadden, J.C. Clarke, J. L. Staniels,

S 1.01[2]. The Act created the United States Sentencing

Commission and empowered it to promulgate guidelines

and policy statements pertaining to sentencing decisions.

"Those statutory changes and the guidelines have

significantly altered the scope and natur e of judicial

discretion." Id. at 1.01[3]. In enacting the SRA, Congress

was concerned not only with equal punishment to offenders

who commit crime, but also with the need to pr omote

respect for the law and to limit judicial discr etion in

sentencing. Id. at 1.64.

The Sentencing Guidelines are clear that a defendant's

record of charitable work and community service are a

discouraged justification for a sentencing departure. See

United States v. DeMasi, 40 F.3d 1306, 1324 (1st Cir.

1994). The historical note to the Civic and Charitable

Amendment to the Guidelines (S 5H1.11) "expresses the

33

Commission's intent that the factors set forth in this part

are not ordinarily relevant in deter mining whether a

sentence should be outside the applicable guideline range;

but that, unless expressly stated, these policy statements

do not mean that the Commission views such factors as

necessarily inappropriate to the determination of the

sentence within the applicable guideline range."

Discouraged-feature factors are not usually relevant to a

departure decision. See Koon v. United States, 518 U.S. at

95. A court may depart only if a discouraged factor is

present to an exceptional degree or in some other way that

makes the case different from the or dinary case where the

factor is present. See id., at 96. Ther efore, a downward

departure from the Sentencing Guidelines on the ground of

community and charitable activities is only appr opriate if

the defendant performed charitable acts to an exceptional

degree. This appears to be a recognition that in our culture

and society, every person is expected reasonably to

contribute charity to the poor and to non-pr ofit

organizations dedicated to educational, health, and

religious purposes.1

Thus, the critical question is whether the discouraged

factor is present in this case to "an exceptional degree or in

some other way that makes this case differ ent from the

ordinary case where the factor is pr esent." The majority,

relying on United States v. Jones, 158 F.3d 492 (10th Cir.

1998) and United States v. Woods, 159 F.3d 1132 (8th Cir.

1998), concludes that the District Court had "an adequate

basis," maj. op at p. 27, for its departur e. In Woods, the

District Court allowed a one level departure to a woman

who pleaded guilty to one count of bankruptcy fraud. The

District Court found that the defendant's money laundering

offense fell outside the "heartland" of such cases and that

taking two troubled young women into her own home and

paying for them to attend a private high school warranted

the departure. In affirming, in one paragraph of a five page

_________________________________________________________________

1. According to a national survey by Independent Sector on "Giving and

Volunteering in the United States," appr oximately 69% of all households

in the United States made voluntary contributions to charity in 1995.

See Statistical Abstract of the United States 404 (1999).

34

opinion, the court did not even cite or discuss the Guideline

under which it affirmed the departur e, but merely stated

"we have no basis for holding that [the ef forts by the

defendant] were not [exceptional]." Unlike the Woods case,

we have a substantial record here fr om which to assess. It

shows that Serafini's charitable works wer e not exceptional

or extraordinary by any reasonable standar d.

United States v. Jones, cited by the majority, is

inapposite. Jones was charged with unlawfully possessing

a firearm. The District Court r elied on eleven factors for

departure, not merely the defendant's long history of

community service. Among these factors were the aberrant

nature of defendant's conduct in unlawfully possessing a

firearm, the collateral consequences of his incarceration in

the economically depressed community in which he lived,

his "highly unusual" voluntary disclosur e of circumstances

of his making a false statement to obtain the fir earm, his

post-offense conduct, and the negative ef fect incarceration

would have on both the quality and quantity of Jones's

rehabilitation. See Jones, 158 F .3d at 504. The Government

criticized the District Court's inclusion of community

service as a factor, but as the appellate court noted, "the

Government provides nothing in the r ecord to the

contrary." Id. at 500-01. But, ther e is substantial evidence

in our record to the contrary generated by Serafini himself.

Also, Serafini suffers from an absence of the other factors

that played a dominant role in the Jones court's decision to

depart.

In the ordinary course of events, a taxpayer , especially

one with substantial annual income, will specifically list

every available charitable contribution as a tax deduction in

his federal income tax return. Serafinifiled such returns

and specifically claimed charitable deductions. These

returns are the best evidence of his charitable

contributions; they are not vague, indefinite opinions of

friends and political constituents tendered to a sentencing

judge in an effort to obtain a reduced sentence. The tax

returns are concrete evidence of Serafini's charitable giving,

and are the most logical place to begin an analysis of

whether his charitable acts were exceptional.

35

The defendant is not only "a wealthy individual," maj. op

at 25, but his federal income tax retur ns show substantial

income from sources other than his salary as a state

official. Included are substantial royalties from the Empire

Landfill. A financial analysis of his pertinent income

returns for the period 1991 through 1996 reveals the

following undisputed evidence.

YEAR $ TOTAL INCOME $ CHARITABLE CHARITY AS %

ROUNDED DEDUCTIONS OF INCOME

1991 724,019 13,407 1.8

1993 857,000 22,604 2.6

1994 855,000 16,620 1.9

1995 908,172 17,385 1.9

1996 1,101,276 20,310 1.8

Except for 1993, in which his contributions exceeded 2%,

all of his contributions are less than 2% per annum.

Donating less than 2% of one's income to charity-- even

2.6% -- is lackluster and pedestrian by any measur e; it is

not exceptional. It is far below the average measur e of

giving in the United States by people in the defendant's

socioeconomic status.2

Serafini's charitable contributions of his annual income

is ordinary at best when compared to national figures. It

_________________________________________________________________

2. According to the Statistical Abstract of the United States, the average

American household contributed 2.2% of its income to charity in 1991.

See Statistical Abstract of the United States 404 (1999). In 1993, the

average was 2.1%. See id. In 1995, the average was 2.2%. See id. In

1995, households with greater than $100,000 income contributed 3.4%

of their household income to charity. See id. According to a 1999 report

by the Independent Sector, of the American households that gave to

charity, in 1998, they contributed 2.1% of their income; in 1995, 2.2%

was contributed; in 1993, 2.1% was contributed; in 1991, 2.2% was

contributed; in 1989, 2.5% was contributed, and in 1987, 1.9% was

contributed. See Statistical Abstract of the United States 391 (1997);

http://www.independentsector.or g/GandV/s_keyf.htm>>.

36

pales in comparison to tithing, the practice in many

religious organizations of giving ten per cent of one's income

to one's religious institution. Serafini's charitable

contributions are extraordinarily low when considering that

many religious institutions throughout history have

encouraged charitable giving in addition to the tithe. See

Carl Bakal, Charity USA 21 (1979).

Serafini appears to have made many appearances at

public events, but he did not contribute money or r esources

according to his means. He has helped some people with

small debts, cost of indentures, and other acts of kindness,

but he never paid out any exceptional amount of money.

The District Court was sensitive to this; it observed that the

defendant had distinguished himself "not by the amount of

money [he has] given, but by the amount of time that [he

has] devoted." Maj. Op. at 25.

As noted, the majority and the District Court wer e

persuaded by Serafini's non-financial charitable acts. But

much of Serafini's civic participation was either honorary or

obligatory because of his job as a Representative.

Numerous letters submitted on his behalf wer e written by

constituents or other beneficiaries of his public position.

The majority finds three letters noteworthy. Maj. Op. at 22.

One comes from William Drazdowski, "a close personal

friend," which explains defendant's role in providing a

$300,000 guarantee to Dr. Edward Zaloga to enable him to

obtain new medical data from Tokyo physicians for the

treatment of his brother's brain tumor . The doctor testified

that thirty minutes after a telephone call to him at 1:30

a.m. for assistance, Serafini called back to tell him "that

everything was in place." Neither Drazdowski, an

accountant, nor Dr. Zaloga claim that Serafini personally

made the guarantee; nor does the defendant. Ther e is no

information how the guarantee was accomplished, to whom

it was made, who made it, and the substance of the

guarantee, or the relationship between Dr . Zaloga and the

defendant. The majority believes this assistance"is hardly

part of the normal duties of a local politician." On the other

hand, the entirely obscure and mysterious incident may

very well have its genesis in defendant's political agenda. In

any event, it hardly rises to the level of significant

community service.

37

The Seig letter attests to Serafini's offer to employ Seig, a

young friend of the family, on the defendant's legislative

staff, a loan to him of an unstated sum of money, and

encouragement to Seig to attend college. The thir d letter

reports a personal check of $750 from the defendant to a

widow who was about to lose her home through foreclosure.

The widow expressed doubt about her ability to repay and

defendant insisted she need not do so unless able.

These three "noteworthy" letters do r eflect commendable

action by the defendant, but neither they, nor the other

letters, show community service to an exceptional or

extraordinary degree. A few acts of personal kindness to

individual friends do not add up to community service; they

do not fulfill the purpose of the Guidelines. The District

Court relied considerably on the defendant's gift "of time."

I can find no evidence of the amount of time given to

community service, as distinguished from some personal

favors to friends and political constituents.

The Guidelines do not suggest a sentence departur e for

time spent aiding friends or family, or time in per forming

acts of kindness -- even unusual acts of kindness to

individuals. Construing such personal acts to individuals

as exceptional community service under the Guidelines

opens up an area as vast and deep as the Seven Seas. The

Guidelines speak in terms of community service and there

is nothing in the record of this case that definitively shows

Serafini gave community service, independent of his

political activities. The 1999 Statistical Abstract of the

United States reveals that in the year 1995, persons in the

United States with income of $100,000 or mor e contributed

an average of 4.4 hours per week to volunteer work without

monetary pay. In this case, although Serafini ear ned many

times more than $100,000 in 1994 and 1995, we have no

record that he gave any amount of time to volunteer work,

whether it was for one or more weeks during the year, or for

fifty-two weeks.

The cases support the foregoing analysis. Courts may not

leniently interpret the requirement of extraordinary

circumstances to grant a downward departur e. See, e.g.,

United States v. Rybicki, 96 F.3d 754, 758 (4th Cir. 1996)

(Defendant was a highly-decorated Vietnam veteran, had

38

saved an innocent civilian during the My Lai massacr e, and

had served with the Secret Service; these deeds did not

warrant a departure); United States v. McHan, 920 F.2d

244, 247 (4th Cir. 1990)(Defendant's work history, family

ties and responsibilities, and extensive contribution to the

town's economic well-being could not justify downwar d

departure.)

United States v. Morken, 133 F.3d 628 (8th Cir. 1998),

contains factual similarities to this case, particularly with

respect to the defendant's socioeconomic status. In

commenting upon the defendant's commendable r ecord as

a neighbor and good friend who advised local business

owners, hired young people, served on his chur ch council

and raised money for charity, the court ther e also noted

that the defendant's annual income exceeded $500,000.

The court found that it was "neither exceptional nor out of

the ordinary for someone of the defendant's income and

preeminence" in his small community to engage in

charitable works and community services of this nature."

Id. at 630. The majority here notes, maj. op. at 26, that the

Morken court found that given Morken's station in life, his

contributions were not extraordinary. Her e, Serafini's

annual income over the years was substantially higher than

Morken's, and for several years prior to his indictment, was

almost double. Serafini's contributions, like Morken's, were

not exceptional or out of the ordinary. Serafini's

contributions were even less exceptional, considering his

much larger income and preeminence.

We have no information of recor d of time spent by

Serafini in behalf of fund raising efforts or other services of

the United Way or the colleges and other community service

organizations in his county. In United States v. Crouse, 145

F.3d 786 (6th Cir. 1998) the defendant, Crouse, served on

the boards of various community organizations over many

years. In commenting on his service in connection with his

request for sentencing departure, the court of appeals

observed:

Crouse's community works, while found to be

significant by the District Court, are not unusual for a

prominent businessman. Examples of Crouse's

community involvement include church activities;

39

service on the boards of various community

organizations, including a local hospital, the United

Way, and regional airport authority; and his

membership and active involvement with the Rotary

Club. These examples of community involvement

spanned over at least a 25-year period.

Crouse, 145 F.3d at 792.

Measured by any reasonable standar d, whether it be

tithing to his church and community, or other charitable

contributions of money or community time, Serafini's

charitable and community service was far from exceptional

or extraordinary. It was quite ordinary for a man in his

preeminent position and financial cir cumstances. Nor were

his charitable contributions or community services of the

level or character exacting personal sacrifice, a deprivation

of something of substance because of his contributions.3

I therefore conclude that it was imper missible under the

Guidelines for the District Court to depart fr om the

Sentencing Guidelines.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

_________________________________________________________________

3. According to Laurie Nieb, Coordinator for the Archdiocese Office of

Stewardship in Denver, Colorado, sacrificial giving means "a gift that

impacts your life; give from your sustenance, not your abundance." The

Denver Post, October 21, 1999, Section A , pg. A-01.

40