United States v. Kemp

Opinions of the United

2007 Decisions States Court of Appeals

for the Third Circuit

8-27-2007

USA v. Kemp

Precedential or Non-Precedential: Precedential

Docket No. 05-3477

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 05-3477

UNITED STATES OF AMERICA

v.

COREY KEMP,

Appellant

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Criminal No. 04-cr-00370-2)

District Judge: Hon. Michael M. Baylson

No. 05-3561

UNITED STATES OF AMERICA

v.

JANICE RENEE KNIGHT,

Appellant

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Criminal No. 04-cr-00370-6)

District Judge: Hon. Michael M. Baylson

No. 05-4623

UNITED STATES OF AMERICA

v.

LAVAN HAWKINS,

Appellant

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Criminal No. 04-cr-00370-5)

District Judge: Hon. Michael M. Baylson

No. 05-4717

UNITED STATES OF AMERICA

v.

STEPHEN M. UMBRELL,

Appellant

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Criminal No. 04-cr-00370-4)

District Judge: Hon. Michael M. Baylson

2

No. 05-4846

UNITED STATES OF AMERICA

v.

GLENN K. HOLCK,

Appellant

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Criminal No. 04-cr-00370-3)

District Judge: Hon. Michael M. Baylson

Argued June 5, 2007

BEFORE: SMITH and COWEN,

and SILER*, Circuit Judges

(Filed August 27, 2007)

*Honorable Eugene E. Siler, Jr., Senior United States Circuit

Judge, U.S. Court of Appeals for the Sixth Circuit, sitting by

designation.

3

Lloyd G. Parry, Esq.

Davis, Parry & Tyler

1525 Locust Street, 14th Floor

Philadelphia, PA 19102

William R. Spade, Jr., Esq.

1525 Locust Street, Suite 1400

Philadelphia, PA 19102

Counsel for Appellant Corey Kemp

Nino V. Tinari, Esq.

123 South Broad Street, Suite 1970

Philadelphia, PA 19109

Counsel for Appellant Janice Renee Knight

Timothy K. Lewis, Esq. (Argued)

Schnader, Harrison, Segal & Lewis

2001 Pennsylvania Avenue, N.W., Suite 300

Washington, DC 20006

Elizabeth K. Ainslie, Esq.

Nancy Winkelman, Esq.

Bruce P. Merenstein, Esq.

Schnader Harrison, Segal & Lewis

1600 Market Street, Suite 3600

Philadelphia, PA 19103

Nathaniel E. Jones, Esq.

James H. Fields, Esq.

Jones & Associates

111 South Calvert Street

Legg Mason Tower, Suite 2700

Baltimore, MD 21202

Counsel for Appellant Lavan Hawkins

4

Lawrence S. Lustberg, Esq. (Argued)

Kevin McNulty, Esq.

Gibbons, P.C.

One Gateway Center

Newark, NJ 07102-5310

Counsel for Appellant Stephen M. Umbrell

Kevin H. Marino, Esq. (Argued)

John D. Tortorella, Esq.

Marino Tortorella

437 Southern Boulevard

Chatham, NJ 07928

Counsel for Appellant Glenn K. Holck

Robert A. Zauzmer, Esq. (Argued)

Office of the United States Attorney

615 Chestnut Street

Philadelphia, PA 19106

Counsel for Appellee United States of America

OPINION

COWEN, Circuit Judge.

After a wide-ranging investigation into corruption in

Philadelphia city government, the federal government obtained

convictions against Corey Kemp, the former treasurer of

Philadelphia; Glenn G. Holck and Stephen M. Umbrell, former

executives of Commerce Bank; La-Van Hawkins, a businessman

from Detroit; and Janice Renee Knight, the nominal owner of a

printing company named RPC Unlimited. The appellants

challenge their judgments of conviction on a variety of fronts.

For the reasons discussed below, we will affirm.

I.

5

A. The Charges

On November 2, 2004,1 a grand jury in the Eastern

District of Pennsylvania returned a 63-count indictment against

Kemp, Holck, Umbrell, Hawkins, Knight, Ronald White, a

Philadelphia-based lawyer with close ties to city government,2

and four others whose cases proceeded separately. The

centerpiece of the indictment charged Kemp, White, Holck,

Umbrell, Knight, and Hawkins with conspiracy to commit

honest services fraud in violation of 18 U.S.C. § 371. According

to the indictment, White acquired control over Kemp’s decision-

making by making corrupt payments and gifts to Kemp, and then

used that control to direct city contracts to companies that he

favored. The indictment alleged that Hawkins aided this

arrangement by funneling bribe money from White to Kemp,

and that Knight, White’s girlfriend, took advantage of White’s

control over Kemp by accepting a steady stream of city business

through RPC Unlimited. Moreover, the indictment charged

Holck and Umbrell with participating in the conspiracy by

extending, through Commerce Bank, otherwise-unavailable

loans to Kemp in exchange for preferential treatment from Kemp

on official matters.

In addition to the conspiracy charge, the indictment also

charged the defendants with numerous counts of honest services

mail fraud, honest services wire fraud, extortion, and perjury. Of

these charges, four groups are relevant to this appeal. First,

Kemp was charged with two counts of honest services mail fraud

for his role in an asset-locator business that he created and

operated with his friend, Rhonda Anderson. Second, Holck and

Umbrell were charged with eight counts of honest services wire

fraud concerning their role in corrupting Kemp. Third, Hawkins

was charged with two counts of aiding and abetting wire fraud,

concerning his transfer of money to Kemp. Fourth, Hawkins

1

The defendants were initially indicted on June 29, 2004.

For simplicity, all references to the indictment refer to the

superseding indictment.

2

White passed away before trial.

6

was charged with four counts of perjury stemming from false

statements that Hawkins allegedly made while testifying before a

grand jury investigating this case.3

B. The Government’s Evidence4

Kemp, Hawkins, Knight, Holck, and Umbrell proceeded

together to trial. Opening statements began on February 22,

2005, and the government presented its case over the next six

weeks. Central to the government’s case were tape recordings of

scores of conversations between the defendants.

3

These are but a selection of the charges included in the

indictment. Overall, Kemp was charged with one count of

conspiracy, 20 counts of wire fraud, 12 counts of mail fraud, three

counts of making false statements to a bank, four counts of money

laundering, four counts of filing false tax returns, one count of

extortion, and one count of attempted extortion; Hawkins was

charged with one count of conspiracy, four counts of wire fraud,

and four counts of perjury; Knight was charged with one count of

conspiracy, three counts of wire fraud, and three counts of making

false statements to the FBI; and Holck and Umbrell were charged

with one count of conspiracy, eight counts of wire fraud and one

count of mail fraud. White was the subject of 38 counts.

4

We construe the evidence in the light most favorable to the

government, as the verdict winner. See, e.g., United States v.

Dobson, 419 F.3d 231, 234 (3d Cir. 2005).

7

1. Evidence Concerning Kemp

The government overwhelmingly proved that White

showered Kemp with gifts5 and that Kemp permitted White to

wield an untoward influence in selecting which companies

would be selected for6 or excluded from7 bond teams.8 Kemp

5

White arranged for Kemp to receive tickets to the NBA

All-Star Game and concomitant festivities; two $5,000 checks from

Hawkins; a $10,350 deck; transportation and tickets to the Super

Bowl in San Diego as well as accommodation and meals; four

tickets to a USA basketball game; trips to New York and Detroit;

and numerous meals. Moreover, White promised to help Kemp

advance his post-treasurer career.

6

For instance, in an April 28, 2003 phone call, White and

Kemp discussed the composition of several bond teams. Kemp

noted that White had been selected as counsel for each deal, so the

two focused on underwriters. An excerpt of the telephone call

illustrates White’s massive authority:

Kemp: And you wanted Loop on there.

White: Ah . . .

Kemp: On the UBS, First American and Loop.

White: Yeah. . . . [A]lso I would like . . . Janney

Montgomery Scott.

Kemp: Okay.

White: All right?

Kemp: All right.

White: If I gotta take Siebert off, well, if I, we gotta

take somebody off I definitely want Janney

Montgomery Scott on there. So we addin’ Loop,

you say, and Janney Mont. . .

Kemp: You . . . wanted UBS, First American, Loop,

and you want Janney.

White: Yeah.

Kemp: Okay, all right.

(App. 11983-84.)

A February 25, 2003 phone call found Kemp and White

gloating about their successes: after White instructed Kemp to offer

a spot to a particular individual, Kemp stated, “Not a problem at

8

all. Yeah. So, . . . we got the whole rest of the team.” White

responded, “Right. We’re finally doing it the way they use to do

us, right? It’s terrible, ain’t it brother?” Kemp replied, “Oh no, it’s

life. Oh, it’s life man.” (App. at 11707.)

Kemp and White’s mode of operation is clearly illustrated

in their conversation about Andre Allen, a principal of a

Philadelphia financial advisory firm, who was seeking business

from the city. Right off the bat, White asked Allen for a $25,000

contribution to the mayor’s reelection campaign, and Allen

promised to consider the request. Soon thereafter, Kemp and

White discussed this situation:

White: [Allen] called me, today. . . He called me,

you know, because I, I asked him . . . if he could

raise twenty-five grand. . . . Called me you know,

crying, talkin’ about he couldn’t do it. . . . Then he

started askin’ me, well, man, if, you know, if you all

deliv-, and I said, listen, man, how many times I got

to tell you, don’t have that conversation with me.

Kemp: Right.

White: You know what I mean, don’t have no quid

pro quo conversations with me, I don’t have those

kinds of conversations. You know, I said listen, I

ain’t got time to convince you, man, you know.

Like, we sat down and we spent a lot of time with

you, and we told you, you know, you was going to

be part of the team. Now, you know, yous either,

you down or you ain’t with it.

Kemp: Right, right. . . . ‘Cause if they don’t, if they

ain’t with it they ain’t going to get nothin’.

White: That’s right.

Kemp: You know, you, you just hate to say it, but

that’s the way it is. . . . You know it’s not a hard

decision. You know, because that stuff comes,

comes back, over and over.

(App. 12973-74.)

7

For instance, in the February 25, 2003 phone call, Kemp

reported that he had been asked to include Pryor, McClendon, a

financial firm, and Schnader, Harrison, a law firm, on the Drexel

9

and White’s relationship was accurately encapsulated by Kemp’s

statement, after informing White that White would be paid

$35,000 to $40,000 for a city contract, “[Y]ou got your boy

sitting in the Treasurer’s seat, man!” (App. at 12473.)

The government also presented evidence concerning the

asset-locator business that Kemp operated with his friend

Anderson. Anderson testified that in November 2002, Kemp

told Anderson that the treasurer’s office had received a request

from a company for a list of bondholders whose bonds had

matured but who had not collected their money. Kemp told

Anderson that the two of them should create a business offering

the same service. Kemp and Anderson hoped to get paid by the

bondholders for facilitating their recovery; Kemp and Anderson

agreed that Kemp would receive 40% of the proceeds. Kemp

“said that he would have to be paid in cash and that no one could

really know about his interest in it because he was treasurer.”

(App. at 9006.) According to Anderson, Kemp would receive

his share for providing the list of bondholders and generating the

forms that had to be filed to permit the banks to pay on the

bonds. Anderson ultimately initiated this business, using a

company that she co-owned with another friend. She collected

fees of $3,700 and $1,000, and paid Kemp, in cash, a total of

$1,300 for his services.

University bond team. White strenuously objected to these firms,

and stated, “[Y]ou tell him Pryor McClendon is out, forever.”

White went on to demand that Schnader, Harrison also be

excluded, explaining that “they don’t do nothin’ for nobody.”

(App. at 11705.) While Schnader, Harrison earned more than other

law firms in fees from bond deals while Kemp’s predecessor was

treasurer, during Kemp’s tenure, they were not selected for a single

deal.

8

Philadelphia assembled a “bond team” to handle the

issuance of bonds. This team included, among other professionals,

a lead underwriter, other underwriting banks, separate counsel for

the issuer and bondholders, and a printer for the financial

documents.

10

2. Evidence Concerning Holck and Umbrell

The government showed that Holck and Umbrell, as

executives of Commerce Bank, worked mightily to earn

contracts and increase cash deposits from Philadelphia.9 At the

same time that they were soliciting this business, Holck and

Umbrell extended five different loans to Kemp. The government

contrasted Commerce’s amenability to Kemp once he became

treasurer to the fact that just before Kemp took that position, in

September 2001, Commerce rejected Kemp’s application for a

$2,000 line of credit with a form letter. It was the government’s

position that Holck and Umbrell extended these loans to Kemp

for the purpose of influencing his decision-making, while Holck

and Umbrell claimed that the loans were made in the ordinary

course of business. The government’s evidence concerning

these loans may be summarized as follows:

First, the government presented testimony demonstrating

that Kemp introduced Paul Schnapp, a member of his family, to

Umbrell, and requested a $10,000 loan for Schnapp. Schnapp

had filed for bankruptcy two years earlier, and his application for

a similar loan had recently been rejected by Wachovia.

Commerce required Schnapp’s wife, Teresita, a recent

immigrant to the United States with almost no credit history, to

co-sign the loan. Schnapp’s loan application indicated that his

income was $10,000 a month, but the only supporting

documentation demonstrated income in the past month of

$1,800. The branch manager wrote to a colleague that “this

comes from the top” and was an “easy one,” and Schnapp was

approved for an unsecured $10,000 loan days after applying.

(App. at 16548.)

Second, Commerce provided Kemp with mortgages that

allowed him to purchase a $225,000 house with no money down.

On November 4, 2002, Umbrell reported to the chairman of

Commerce that Kemp had requested a mortgage and that

Umbrell and a Commerce mortgage representative would meet

9

White, who was on Commerce’s payroll as a consultant,

aided in these efforts.

11

with Kemp the following day. Umbrell did meet with Kemp;

however, instead of a mortgage representative, the third member

of the group was White. The next day, Umbrell approved

Kemp’s request to be pre-qualified for a $227,000 mortgage.

However, Commerce Bank’s policy was only to provide letters

of pre-qualification to those individuals with credit scores of at

least 680, and Kemp’s scores ranged from 456 to 526. The

government presented evidence that this was not an official

Commerce pre-qualification form, but was a singular letter

created by Umbrell to benefit Kemp.

The initial mortgage was formally approved on November

18, 2002 – before Kemp had even completed an application.

Commerce submitted Kemp’s application to its underwriting

process, and the application was rejected by the program that

Commerce used to rate loans. The report indicated that Kemp’s

and his wife’s credit scores ranged from 440 to 528, that Kemp

had a past-due liability to Wachovia of over $13,000, and that

Kemp owed other creditors an additional $20,000. Thomas

Conte, who was the operations manager of Commerce’s

mortgage department at the time Kemp’s loan was processed,

reviewed the underwriting results and also rejected the

application. However, on December 3, 2002, Holck and

Umbrell reversed Conte’s decision and approved the loan.

While the loan was initially contingent upon Kemp’s repaying

the $33,000 that he owed to creditors, a week later, Holck and

Umbrell waived that condition. Conte testified that this process

deviated from Commerce Bank’s standard underwriting

procedures.

On December 18, 2002, Commerce’s consumer loan

department began processing Kemp’s second mortgage loan, for

the additional 20% of the purchase price. Commerce’s usual

policy was to advance 100% financing only to individuals with a

credit score of at least 650 and no charge-offs in the past seven

years. Kemp clearly did not meet those requirements – his credit

score, as calculated by this underwriting program, was 433, and

his charge-off with Wachovia originated within the previous

year – and the underwriting program rejected the application.

Nevertheless, Umbrell authorized the loan on the basis of

Kemp’s “strong bank relationship,” his position as treasurer, and

12

his income. (App. at 16347-48.) Contrary to Umbrell’s claim

that Kemp had a strong relationship with Commerce, the

government presented evidence that Kemp’s account with

Commerce usually contained less that $1,000.

Third, in March 2003, Commerce made a $21,300

automobile loan to Kemp. The applicable credit report showed

that Kemp’s credit score was 520, which was still below

Commerce’s standard requirement of 650, and that Kemp had a

prior bad debt to Wachovia (as described above) and an

additional prior bad debt to Summit Bank for a 1990 Pontiac

Grand Am. Again, the underwriting program did not approve

the loan, and again, Umbrell overrode the declination, based on

Kemp’s “strong bank relationship” and “positive previous

experience.” (App. at 16361.)

Fourth, in June 2003, Commerce approved Kemp’s

request for a $480,000 construction loan for his church, which

had been damaged by lightning. On June 23, 2003, Miriam

D’Elia, an attorney at White’s law office, who was handling the

closing for Commerce, informed Kemp that the church would

not receive any money until it provided all of its specifications

and plans. Kemp then called Umbrell, and Umbrell agreed to

disburse money to the church for previous expenses as long as

Kemp provided invoices – even without providing proof that the

church had paid those invoices. Kemp and the church’s pastor

then created false invoices so that the church could procure

money for invented expenses.

The day after Kemp spoke to Umbrell, D’Elia informed

Kemp that Commerce’s closing agent, Valerie Coates, was “very

concerned” that the church understood it would not receive any

money at the closing. (App. at 12449.) Kemp told D’Elia that

Umbrell had approved the church’s obtaining money for costs,

and D’Elia responded that Coates was “real upset about that.”

(App. at 12450.) Coates then joined the conversation, and stated

to Kemp, “[Y]ou’re not expecting any funding [at closing],

correct.” (App. at 12452.) Kemp responded that Umbrell had

approved the church’s being reimbursed for previous expenses,

and Coates said, “Okay, he’s gonna be a bad boy then.” (App. at

12453.) Coates testified that this statement did not mean that

13

Umbrell had acted inappropriately, only that this decision would

complicate her work.

Kemp and Umbrell spoke again later that day. Kemp

asked Umbrell if he would waive any of the closing fees, and

Umbrell agreed to waive the $3,500 appraisal fee. The two then

discussed the renewal of some of Philadelphia’s certificates of

deposit with Commerce. Kemp told Umbrell that Umbrell did

not have to work with any of Kemp’s subordinates on the deal,

but should talk to Kemp himself, because “I want them to know

that you are my f__king guy. . . . So you get special treatment.”

(App. at 12459.)

Coates then sent an email to Holck, asking him to

approve the advance of 80% of the church’s as-is value of

$150,000; immediately thereafter, Holck approved. In the file

notes for the loan, Coates wrote, “I did what I was told to do.”

(App. at 16409.) She testified that this did not denote that she

was unhappy with what had occurred, only that her actions had

been authorized.

Fifth and finally, on July 1, 2003, Umbrell called Kemp,

and the two briefly discussed Philadelphia’s deposits with

Commerce, and then Kemp stated, “[M]y brother-in-law’s

looking to do a small personal loan. . . . What’s the maximum

he can do unsecured?” (App. at 12549-50.) Umbrell responded,

“[H]ow much does he need, tell me what he needs, ‘cause then

I’ll know what pocket to put it in.” (App. at 12550.) Kemp

informed Umbrell that his brother-in-law had “shaky credit,”

Umbrell asked if it was “bankruptcy bad,” and Kemp responded

in the negative. (App. at 12550.) Umbrell responded, “What do

you want to go back and promise him? . . . Is [$6,000] enough

for you to go back with? . . . I’m trying to make you look good .

. . how much do you want to . . . if you want to tell him seventy

five hundred, tell him seventy five hundred.” (App. at 12551.)

The two ultimately agreed on $7,500, which, as the telephone

call made clear, Umbrell approved without so much as seeing an

application or speaking to the borrower. The government

presented evidence demonstrating that Holck, Umbrell, and

Kemp all understood that in return for these loans, Commerce

Bank would receive preferential treatment. Most significant

14

were the circumstances surrounding the city’s selection of

Commerce to offer a $30 million line of credit in support of the

Neighborhood Transformation Initiative (NTI). In order to

select the bank that would offer this line of credit, the city

instituted a bidding process, in which interested banks would

submit competing financial plans to the city. Soon after

Commerce’s submission, Kemp told White to tell Commerce, in

the future, not to submit its bid first, because then Kemp could

tell White about the other bids so that Commerce could then bid

accordingly. Later that day, White called Umbrell, and said,

“Listen, uh, somebody told me to tell you that when you guys do

these things, don’t ever send your stuff in first.” (App. at

12192.) Umbrell responded, “[Y]ou know I love you, right? . . .

I know who told you that, . . . and I understand why.” (App. at

12192.) White then called Holck and gave him the same advice.

Holck replied, “I know, I know. Corey said to him not to.”

(App. at 12198.)

Initially, the two best bids came from Commerce and

KBC Bank. KBC offered the lowest interest rate, but Commerce

offered to defer interest for an initial period. Kemp told White

that he planned to call Commerce and convince them to lower

their interest rate, which he did, in a subsequent conversation

with Holck. Thus, Commerce was given the opportunity to

submit a second bid. Around this time Kemp met with Donald

DiLoreto, a representative of Wachovia Bank, and they

discussed the bidding. After their conversation, DiLoreto

emailed Kemp asking if he could submit an improved bid.

Kemp never responded.

After Commerce submitted its improved offer, Kemp

asked his boss, Janice Davis, if they could award the line of

credit to Commerce. Davis told Kemp that if one bank was

permitted to rebid, every bank must receive the same

opportunity. Neither Davis nor the representatives of the five

banks who submitted bids expected that any bank would have a

chance to enter a second bid. Nevertheless, on Davis’s orders,

Kemp opened another round of bidding.

After the second round of bidding began, Holck and

Umbrell discussed the situation in a telephone call with White.

15

Holck appeared confused by the process, stating “you know we

made . . . the revised proposal to Corey? . . . And something’s

not smelling right.” (App. at 12256.) White assured Holck and

Umbrell that they did not have to worry. This was good advice:

Commerce’s new bid, which conformed to Kemp’s demand, was

the best one and Commerce won the line of credit. The

government presented evidence demonstrating that none of the

other banks received any inside information about what to bid.

The corruptness of the process was starkly described in a

telephone call between Kemp and Reverend Frank McCracken,

where Kemp stated:

Listen [Commerce Bank] better take care of me man,

I’m hooking ‘em up. Did my thing. ‘Cause, I got a

conference call at four, three thirty and that’s on ah

a line of credit. I got a thirty million dollar line of

credit from Commerce Bank for the city. . . . Ah, it

was a bid though, it was a bid. And they, um, they

bid, they were they were like in second place right,

so I called Steve and I said Steve, look, this is what

you all got to beat. See, you didn’t hear it from me,

but then they came back.

(App. at 12557-58.)

3. Evidence Concerning Hawkins

The government’s evidence against Hawkins primarily

concerned three events: Hawkins’s providing Kemp with a check

for $5,000 dated March 10, 2002; Hawkins’s providing Kemp

with a check for $5,000 dated September 25, 2002; and a

meeting that Hawkins attended with Kemp, White, and

businessman Aslam Khan. The government focused on these

events in an attempt to prove both that Hawkins had joined the

conspiracy and that he had committed perjury when he

subsequently testified about these events before a grand jury.

The first check was dated March 10, 2002, was written on

the account of one of Hawkins’s companies, was made out to

Kemp, and was signed by Hawkins. The government presented

evidence that White, but not Kemp, was present in Detroit on

16

March 10, that Kemp had been married 20 months prior to that

time, and that Kemp successfully cashed the check.

When Hawkins testified before a grand jury about

circumstances surrounding this $5,000 check, however, he

claimed that White and Kemp were in Detroit because White

was throwing a bachelor party for Kemp. According to

Hawkins, Kemp and White went to Hawkins’s office, and White

asked Hawkins to write a $5,000 check for Kemp as a wedding

present. Hawkins stated that the check was never cashed.

The second check was dated September 25, 2002, and

was written on Hawkins’s personal account. Hawkins filled out

the entire check except for the payee information. The

government showed that on September 25, Kemp, but not White,

was present in Detroit. This check bounced twice, and was

ultimately replaced by a wire transfer sent from Hawkins’s

account to Kemp’s account. The government showed that White

had written a check to Hawkins for $5,000 dated September 23,

2002.

During his grand jury testimony, Hawkins testified that

on September 25, 2002, he and White were together in Detroit.

He explained that he gave the check to White to give to an

association of African-American newspapers, who had been

helping him in ongoing litigation against Burger King. Hawkins

stated that the $5,000 was supposed to be part of a $15,000

donation that he had promised to the association. When asked

why White had so recently written Hawkins a check for $5,000,

Hawkins answered that the check could either have been to

reimburse him for the first check he wrote to Kemp or to repay

part of the $40,000 that Hawkins had loaned to White. Hawkins

testified that the loan had been made from cash that he kept in

his drawer.

The third salient event concerned a business meeting

between Hawkins, Khan, Kemp, and White. As background, the

government showed that in 2002, Hawkins joined a venture that

was seeking to purchase AFCE, which owned and operated

restaurants such as Popeye’s, Church’s, and Cinnabon. The cost

of this venture was estimated to be between $600 million and $1

billion. To raise this capital, Hawkins sought investments from

17

pension funds, including Philadelphia’s fund. To that end, on

January 22, 2003, Hawkins and other members of his group met

in White’s office with White, Kemp, and Tony Johnson,

Philadelphia’s chief investment officer, and attempted to

convince Philadelphia officials to invest. Two days after that

meeting, Hawkins rented a private jet to transport Kemp and

White to the Super Bowl, at a cost of approximately $58,000.

In the spring of 2003, the AFCE deal stalled, and

Hawkins redirected his focus to acquiring almost 100 Church’s

Fried Chicken franchises from Aslam Khan. On April 21, 2003,

Hawkins discussed this deal with White. Hawkins explained

that he needed to raise some money, and hoped to acquire an

investment from Philadelphia’s pension fund, which was

controlled by Anthony Johnson. In a May 2, 2003 phone call,

Hawkins told White that he was going to “need you to have

Tony [Johnson] to come to New York.” (App. at 12011.) White

responded that if he could not get Johnson, he would bring

Kemp; Hawkins was amenable to that alternative arrangement.

On May 6, 2003, Hawkins called White and reminded

him of the meeting “that I needed you to have Corey at.” (App.

at 12033.) Hawkins explained that he just needed Kemp “to

keep this guy in the hole,” so that he would think that Hawkins

was “gettin’ 20 million.” (App. at 12034.)

On May 8, 2003, Hawkins, Khan, White, and Kemp met

in New York. Kemp, who apparently believed that the purpose

of the meeting was to discuss the possibility of Church’s

expanding into Philadelphia, said that he was “speaking on

behalf of the administration,” and that “we will do whatever we

can that’s in our power in the City’s Administration to help this

along.” (App. at 12057-58.) Hawkins then prompted Kemp that

first, Hawkins needed to raise $40 million to purchase the

existing franchises. Kemp replied that he liked what he had

heard and promised to take the proposal back to the

administration. Kemp’s boss, Davis, testified that Kemp did not

have the authority to talk about the city’s pension funds and that

she would have fired him if she knew about this meeting.

Hawkins also testified before the grand jury about this

18

meeting. He explained that the meeting was held because Khan

was interested in bringing Church’s Chicken into Philadelphia,

and he believed that White would be useful in accomplishing

that goal. He testified that he did not know why Kemp was

present, did not know in advance that Kemp would be there, and

had only asked White to bring someone to the meeting who was

familiar with the lay of the city and could describe potential

franchise locations to Khan. Hawkins explained that Kemp had

been present at the previous meeting in Philadelphia concerning

Hawkins’s attempted purchase of AFCE, and had, after

completing a market survey, reported on the opportunities that

were available for fast-food restaurants in Philadelphia.

4. Evidence Concerning Knight

Janice Knight, White’s girlfriend, was the nominal owner

of RPC Enterprises, a printing company. The government

presented evidence that White worked tirelessly to ensure that

RPC was chosen as the printer for bond deals, and acted as the

de facto president of the company. Moreover, the government

adduced testimony that RPC lacked the equipment to perform

printing jobs itself, and instead, farmed the jobs out to a separate

company in New Jersey. Instead of negotiating fees with RPC,

Kemp simply informed RPC what the city’s budget was, and

paid RPC the maximum allotted. Thus, during the time that

Kemp was treasurer, RPC charged the city for $308,000 of work,

despite the fact that the New Jersey company had charged RPC

only $89,000.

C. Allegations of Juror Misconduct and the Discharge

of Juror 11

On April 13, 2005, the case was presented to the jury. On

April 27, 2005, the District Court discharged a juror, concluding

that she was biased against the government.

The District Court had received its first indication that

something was amiss with the jury on April 18, 2005. That

afternoon, the court received two notes from jurors. The first

note stated:

19

Your honor, the following note was handed to

me in confidence and asked that you see it. I have

read it and can confirm the statements were made.

The person mentioned is making the rest of

the group retry the case in the jury room. We are at

a stalemate in the deliberation process. Evidence is

being produced at the juror’s request and when it is

produced, it is being disregarded. I feel that several

jurors are removing themselves from the deliberation

process because they feel this effort is futile. We are

slowly losing jurors as the days go by, not for lack of

interest or commitment to their civic duty but for the

fact that nothing they can do or say will matter.

(App. at 10680.) The note also requested simple definitions of

the terms “intent,” “reasonable doubt,” and conspiracy.”

The second note stated:

Dear Foreperson: I have concerns regarding

our deliberations. I feel I must keep an open mind,

evaluate the evidence and make an effort to remain

neutral. When the following comments are made by

a fellow juror, I have concerns about that person’s

motivation and honesty.

1. “The government lies. They always lie.”

2. “English is his second language – he didn’t

understand what he was saying.”

3. “How would you be! She was having

chemotherapy!”

4. “I’ve interviewed many people and I know when

they are on drugs.”

I have tried to pass RPC book from RW’s

office to the person, they refuse to look at what I was

referring to, sat back in chair, closed eyes and

folding their arms across their chest.

I also resent the statement you are all

benefitting from Ron White – two months of my

civic duty should be ended with conversations with

fellow jurors that have open minds. Perhaps I am

trying to be too open minded. Any suggestions?

20

(App. at 10691-92.)

In response to these notes, the judge called the jury into

the courtroom. Then, before re-instructing the jurors on intent,

reasonable doubt, and conspiracy, he stated:

You have been terrific citizens. You have

given up your daily lives to come in here and

perform your civic duty. That is very, very

important. That is appreciated by everyone. When

you became jurors, you took an oath and your oath

was to follow the law and part of that oath is to

deliberate, and you must, as part of that oath,

deliberate with each other and discuss the evidence

and discuss the law and try to reach a verdict.

Now, in trying to reach a verdict, you should

not give up any beliefs which you have that you

believe are true and sincere and that you hold to be

warranted as a result of sitting as jurors and listening

to this case for the last eight weeks.

At the same time though, it is your duty and

obligation as jurors to listen to what the other jurors

say and to consider their arguments, to consider what

they recall about the evidence, to consider what they

recall about the law, to consider their evaluation of

the witnesses and you should listen to each other and

they should listen to you. So it’s important that, in

the deliberative process, that all of you engage in this

process of deliberating but if you have a sincere

belief that the others are wrong and you are right,

you are entitled to hold on to that and maintain that

but you still have the duty to deliberate and discuss

with each other what you believe the evidence is and

why you believe it. That is part of the duty of each

juror to deliberate and if you still, after doing that,

you still have your own sincere belief and you

believe you are right, you are entitled to maintain it

but please remember, the duty to deliberate is part of

your oath as being jurors.

(App. at 10699-700.)

21

The following day, the judge received two more notes.

The first note stated:

I am finding it very difficult to deliberate with a

juror who will not acknowledge any of the evidence.

The juror has made comments when presented with

the evidence, “show it to someone who cares.” The

juror has continually referred to notes and used them

as the evidence, also crosses arms over chest, leans

back into chair and closes eyes and will not look

over the evidence. Has made comments about

“government lying.” “FBI is biased.” And “one

defendant has been on chemotherapy” and 11 of us

are benefitting from Ron White, (i.e. the payment we

are receiving from jury duty), using analogies that

does not pertain to anything.

(App. at 10739.)

The second note stated:

I’m concerned with one of my fellow jurors’

comments during deliberations. I know every juror

has their right to state feelings and opinions. Some

of the remarks that I’ve hear from one individual

makes me feel as though there is more bias than

normal deliberations, comments such as,

1. Prosecutors and FBI agents are liars.

2. Using sympathy and feelings as factors in

deliberations.

3. Saying all the jurors are receiving benefits,

courtesy of Ron White.

I don’t know if I should be doing this but if I didn’t,

I don’t think justice was served.

(App. at 10739-40.)

After receiving this note, the court heard argument from

all counsel, and resolved to question each juror individually.

The court asked three questions of each juror, in camera: (1)

“Are you personally experiencing any problems with how the

22

deliberations are proceeding without telling us anything about

the votes as to guilt or innocence? If yes, describe the problem.”

(2) “Are all the jurors discussing the evidence or lack of

evidence?” (3) “Are all the jurors following the court’s

instructions on the law?” (App. at 10758.) The jurors’

responses may be summarized as follows:

Juror 1: There was a problem at one point, but at the

moment all jurors were acting appropriately.

Juror 2: Juror 11 was very prejudiced against

individuals based on their occupation.

Juror 3: While deliberations were stressful, all jurors

were acting appropriately.

Juror 4: All jurors were properly discussing the

evidence or lack of evidence, but sometimes certain

jurors refused to look at evidence that other jurors

found pertinent.

Juror 5: All jurors were acting appropriately.

Juror 6: All jurors were acting appropriately.

Juror 7: All jurors were acting appropriately.

Juror 8: Juror 11 was refusing to consider evidence.

Juror 9: Juror 11 sometimes refused to look at

evidence presented by other jurors, and was

reasoning illogically. However, the jurors had made

a break that day and it seemed that the deliberations

were progressing.

Juror 10: All jurors were acting appropriately.

Juror 11: The jurors were making progress.

Juror 12: All jurors were considering the evidence,

but one juror said that the prosecutors were lying and

that all jurors were receiving benefits from Ron

White.

The District Court decided, on the basis of these

responses, that no further instructions were necessary. The next

day the judge received a note stating “the hearing in your

chambers has helped facilitate the deliberations.” (App. at

10791.)

Despite these glad tidings, on April 25, the jurors passed a

note to the judge stating:

23

Your Honor, deliberations have stopped! One of the

jurors has changed their mind over the weekend on

several counts that were decided last Thursday. The

reasons stated by the juror are illogical. The

following jurors do not believe further deliberations

will be at all beneficial. It is unfair to the

defendants, the lawyers, and the people of

Philadelphia to continue deliberations in this manner.

(App. at 10862.7.) The note was signed by nine jurors.

Based on this note, the court decided to question the

jurors individually a second time. The judge asked each juror:

(1) “Is there any juror or jurors who are refusing to deliberate?”

(2) “Is there any juror who is refusing to discuss the evidence or

lack of evidence?” (3) “Is there any juror who is refusing to

follow the Court’s instructions?”

(App. at 10862.20.)

The jurors’ responses are as follows:

Juror 1: Juror 11 did not seem to be deliberating, but

was discussing the evidence and following the

instructions.

Juror 2: Juror 11 was not cooperating and was

refusing to discuss the evidence.

Juror 3: Three jurors were refusing to listen to the

others, with Juror 11 particularly culpable.

Juror 4: Juror 11 was refusing to deliberate and

discuss the evidence.

Juror 5: One juror was refusing to deliberate.

Juror 6: All jurors were acting appropriately.

Juror 7: Juror 11 was refusing to follow the court’s

instructions.

Juror 8: Juror 11 was refusing to deliberate and

discuss the evidence.

Juror 9: Juror 11 was refusing to discuss the

evidence.

Juror 10: All jurors were acting appropriately.

Juror 11: One or two jurors seemed to feel that they

were done talking about certain topics.

24

Juror 12: Juror 11 was refusing to deliberate and

discuss the evidence.

Immediately after completing this voir dire, the judge

received a note stating that “the jury did not feel the right

questions were asked.” (App. at 10862.43.) The jurors

suggested the following questions:

1. Why have the jurors stopped deliberating?

2. Are jurors looking at the evidence logically and

forming a reasonable opinion about each individual

count?

3. Have jurors entered into deliberations with

preconceived notions or prejudices?

4. Can you summarize the deliberations and how you

feel they are progressing?

5. Are jurors using emotions rather than evidence to

rule on certain counts? Most counts?

6. Your Honor, is it possible to allow the jurors to

expand on their answers?

(App. 10862.43-44.) Upon receiving this note, the judge

dismissed the jury for the day to allow himself time to consider

how to proceed.

The next day, the judge provided additional instructions

to the jurors. The judge first told the jurors that the questions he

had asked the day before were “the only questions which [he felt

he was] entitled to ask at that time,” so as to avoid intruding into

the jury deliberations. (App. at 10874.) He stated, however, that

he could “ask questions to [ensure] that all of you are following

your oaths as jurors, that you are reviewing the evidence, that

you are deliberating with each other and that you are following

my instructions.” (App. at 10876.) The judge then reminded the

jurors that they were under oath, and that they had promised to

decide the case fairly and impartially without being swayed by

either the race or the occupation of the defendants and witnesses.

The judge reiterated that the jurors were prohibited from using

prejudice or bias in making decisions, and explained that if any

juror did so, that juror was not following his instructions. The

court also re-instructed the jurors about their duty to deliberate,

25

but emphasized that “if you come to different views of the facts,

you are entitled to maintain those views as long as you consider

the views of others.” (App. at 10882.)

The next day (April 27), the judge received three notes.

The first asked legal questions. The second was from Juror 11,

and stated:

Is it permissible to discuss the fact that we

have heard only selected portions of selected phone

calls and to try to evaluate what this might mean in

determining what was going on and what people

intended to do?

Can you consider omitted evidence – for

example, the prosecution only showed us what they

wanted to show?

Is it permissible to try to illustrate how two

people might understand a conversation differently?

(App. at 10896.)

The third note asked two preliminary questions, and then

stated, “How do we inform the court a juror has violated his or

her oath (i.e., biased against the government. States prosecution

makes up stories).” (App. at 10896.) The court then instructed

the jury about the legal questions contained in the notes, and

concluded: “Ladies and gentlemen, as I said yesterday, bias is a

violation of a juror’s oath. If one of you or more of you believe

that a juror is biased against the government, I instruct you to

send me another note, saying that you believe that, and then the

remedy is that I will have the jury come into the conference

room again, one by one.” (App. 10922.) After hearing

argument from counsel, the court clarified a few points with the

jurors, including the bias instruction. The court stated:

I want to make it clear that when we talk about bias

. . . we are talking about bias against a specific type

of person or against a specific occupation or bias

against the prosecution and that the juror is unwilling

to put aside that bias. If the juror or jurors say, they

don’t believe someone or a particular piece of

26

evidence, that is not bias. That is just a discussion

on the evidence presented in the case. But as I said

before, if there are jurors who believe that a juror is

unwilling to put aside bias, is using bias, that is

something you should send me a note about . . . .

(App. at 10935-36.)

Soon afterward, the court received two more notes. The

first stated:

I believe the following statements reflect bias by a

juror: The government lies. The prosecution made

it up. They couldn’t get Ron White so they made

this up about Corey Kemp. They didn’t play all of

the calls. They omitted evidence. You didn’t hear

what they didn’t want you to hear. The FBI lies.

The government didn’t present the evidence to prove

anything.

(App. at 10949.) The second note, signed by the foreman, stated

simply, “[A]sk the three questions again in your chambers.”

(App. at 10949.) Based on these notes, the court conducted

another individual voir dire, which yielded the following

information:

Juror 1: Juror 11 refused to deliberate and discuss

the evidence, and would not put aside her bias.

Juror 2: Juror 11 refused to deliberate and discuss

the evidence, and was very prejudiced against the

government. Juror 2 also stated: “You just can’t talk

to [Juror No. 11]. She goes nuts. She starts banging

on the table. She won’t listen to us. Won’t let

anybody get a word in edge-wise. . . . If we present

her with evidence, she flips through her notes and

does not want to hear any evidence.” Juror 2 went

on to emphasize that “[Juror No. 11] is totally

against the government. We have heard her say, the

FBI are nothing but a bunch of liars.”

Juror 3: Three jurors had a difficult time listening to

each other, but Juror 11 just shut down and refused

27

to look at evidence that was shown to her. Juror 11

was also off task and biased against the FBI and the

government. Juror 3 also stated: “People disagree on

a lot of things. But when the arguments are with 11,

it’s just like slamming your head into a wall.”

Juror 4: Juror 11 refused to deliberate or discuss the

evidence, and was biased.

Juror 5: All jurors were deliberating and discussing

evidence, but Juror 11 was “a bit biased, not tending

enough to the evidence and instructions.”

Juror 6: All jurors were deliberating, and Juror 11

was not biased, but did refuse to look at the

evidence.

Juror 7: All jurors were deliberating, but Juror 11

was refusing to discuss the evidence. Further, Juror

11 was biased to a point concerning witnesses’s

occupations and was allowing that to cloud her

judgment. However, she was not letting it affect her

“that much.”

Juror 8: Juror 11 was refusing to deliberate and

would not look at any evidence. She also was biased

and unable to put that bias aside.

Juror 9: Juror 11 was refusing to deliberate and

would not look at evidence that was presented to her.

Juror 11 also held prejudices against the government

or the FBI, and was unwilling to put those prejudices

aside.

Juror 10: Juror 11 refused to deliberate, ignored

evidence, carried a personal agenda, and was biased.

Juror 11: No jurors were refusing to deliberate or

discuss the evidence. However, some people had

difficulty focusing on the specific elements of a

crime instead of just concluding that a defendant was

guilty because the juror disapproved of the

defendant’s behavior. The jurors had been

attempting to rule on guilt or innocence count by

count, which was difficult for her, because so many

of the issues were interrelated. Once the jury began

to evaluate evidence on a different issue, Juror 11

said, “[W]ait a minute here, this contradicts what we

agreed to back here. . . . I agreed with you about

28

here now I’m looking at this evidence and I don’t

think that is there anymore.” All the jurors were

working to put aside their biases. When asked

whether she was biased against the FBI, Juror 11

responded that she didn’t think so, and that her

comments concerning the FBI were made only to

refute another juror’s statement that they only had to

consider the FBI’s evidence. She had not claimed

that FBI agents always lie; instead, she had said that

they are “probably accomplished liars” from doing

undercover work, and that they are therefore

probably skilled at detecting when someone is lying

to them.

Juror 12: Juror 11 was refusing to deliberate or

discuss evidence, and was biased against law

enforcement. Speaking of Juror 11’s bias, Juror 12

stated that “it’s not the witnesses in the trial. It’s the

preconceived notion that law enforcement lies, they

are telling lies.”

Juror 11 then asked to return to clarify her previous

statements. She stated that she had actually said that she

“thought FBI agents were among the most credible witnesses

because they were careful to say what they believed to be the

truth and to distinguish fact from opinion.” (App. at. 11062.)

She also claimed to have said that one agent may have been

biased going into his interview with Janice Knight because he

had previously heard so much incriminatory information about

her.

To recap, eight jurors (1-4, 8-10, 12) stated in clear terms

that Juror No. 11 violated her duty to deliberate in good faith and

to be free of preconceived biases that informed her decision-

making. Juror No. 11 denied any allegations of bias or a refusal

to deliberate. Juror No. 5 stated that no juror was refusing to

deliberate or discuss the evidence/lack of evidence, and that all

the jurors were following the District Court’s instructions. This

juror also stated that Juror No. 11 was “a bit biased, not tending

enough to the evidence and instructions, but we are working on

that.” Juror No. 6 stated that Juror No. 11 was not refusing to

follow the instructions, and that she was not biased either.

29

However, Juror No. 6 did note that Juror No. 11's answers were

“pretty much set in stone,” making it “hard to show her the

evidence.” Juror No. 7 stated that no juror was refusing to

deliberate, although he believed that Juror No. 11 refused to

consider the evidence or lack of evidence. Juror No. 7 also

noted that Juror No. 11 expressed bias against certain

occupations.

Based on these responses, the court granted the

government’s motion to discharge Juror 11. The court stated:

We have 11 out of the 12 jurors have made

affirmative responses to at least one of the questions

that I posited to them concerning juror number 11. .

. . I find that the other 11 jurors are more credible

than juror number 11. And to put it bluntly, I find

that juror number 11 is in denial. She is articulate

but she is not credible. You cannot balance her

testimony that she made here against 11 of her

fellow jurors. I find that they are more credible than

she is, and I find that she is biased against the

government. . . . I find that she has come in here and

tried to articulate using an educated background.

She is articulate but she is in total denial of what I

find to be the facts as expressed by the other 11

jurors . . . .

(App. at 11079-80.)

The District Court then seated an alternate juror who had

been sequestered during the first round of deliberations.

D. The Verdict

On May 10, 2005, the reconstituted jury returned its

verdict. Kemp was convicted of conspiracy, seven counts of

wire fraud, 11 counts of mail fraud, one count of attempted

extortion, one count of extortion, two counts of making false

statements to a bank, and four counts of filing a false income tax

return; Hawkins was convicted of one count of wire fraud and

three counts of perjury; Holck and Umbrell were convicted of

30

conspiracy and two counts of wire fraud; and Knight was

convicted of two counts of making false statements to the FBI.

The jury also acquitted the defendants or was unable to reach a

verdict on a number of charges.10

Ultimately, the District Court sentenced Kemp to 120

months’ imprisonment, Holck to 28 months’ imprisonment,

Umbrell to 27 months’ imprisonment, Hawkins to 33 months’

imprisonment, and Knight to 5.5 months’ imprisonment. All

five defendants then filed timely appeals.

II.

We have jurisdiction of an appeal from a judgment of

conviction pursuant to 28 U.S.C. § 1291.

III.

The appellants challenge their convictions on many

grounds. Kemp argues that the government failed to present

sufficient evidence to support his convictions for mail fraud

relating to his asset-locator business. Holck and Umbrell

challenge their wire fraud convictions by arguing that the

indictment failed to state an offense, the District Court

erroneously instructed the jury, and the government presented

insufficient evidence to sustain the convictions. Holck and

Umbrell also argue that their conspiracy convictions must be

vacated because there was a prejudicial variance between the

10

The jury found Kemp not guilty of eight counts of wire

fraud, one count of making false statements to a bank, and four

counts of money laundering; Hawkins not guilty of conspiracy,

three counts of wire fraud, and one count of perjury; Holck and

Umbrell not guilty of three counts of wire fraud; and Knight not

guilty of one count of wire fraud. The jury was unable to reach a

verdict as to Kemp on four counts of wire fraud and one count of

mail fraud; as to Holck and Umbrell on two counts of wire fraud

and one count of mail fraud; and as to Knight on the conspiracy

charge, two counts of wire fraud, and one count of making false

statements to the FBI. The government withdrew one count of

wire fraud against Kemp, Holck, and Umbrell.

31

crime charged in the indictment and the evidence adduced at

trial. Hawkins claims that the government presented insufficient

evidence to support his convictions for wire fraud and perjury,

that the District Court’s jury instructions on wire fraud omitted

an essential element, and that the Court wrongly admitted

several forms of unfairly prejudicial evidence. Finally, all

appellants contend that the District Court erred by individually

questioning the jurors upon receiving complaints of juror

misconduct and then discharging Juror 11. We consider each of

these sundry claims in turn.

A. Kemp’s Mail Fraud Convictions

Kemp claims that the government presented insufficient

evidence to support his convictions for honest services mail

fraud concerning his role in the asset-locator business for which

he received $1,300. We review sufficiency-of-the-evidence

challenges with particular deference to the jury’s verdict. United

States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998). Because Kemp

did not raise this argument to the District Court in his motion for

acquittal, we review for plain error. United States v. Vampire

Nation, 451 F.3d 189, 203 (3d Cir. 2006). Plain error requires:

“(1) an error; (2) that is plain; and (3) that affected substantial

rights.” Id. As we will explain, the jury’s conclusion on this

count was supported by the evidence and not plain error.

To prove mail fraud, the government must establish “(1)

the defendant’s knowing and willful participation in a scheme or

artifice to defraud, (2) with the specific intent to defraud, and (3)

the use of the mails . . . in furtherance of the scheme.” United

States v. Antico, 275 F.3d 245, 261 (3d Cir. 2001). Congress has

clarified that “the term ‘scheme or artifice to defraud’ includes a

scheme or artifice to deprive another of the intangible right of

honest services.” 18 U.S.C. § 1346. Honest services fraud, in

turn, typically occurs in either of two situations: “(1) bribery,

where a [public official] was paid for a particular decision or

action; or (2) failure to disclose a conflict of interest resulting in

personal gain.” Antico, 275 F.3d at 262-63. The government

pursued both of these discrete theories in prosecuting the mail

fraud counts at issue.

32

Kemp maintains that his convictions must be vacated

because the government presented insufficient evidence to prove

honest services fraud under either the bribery theory or the

failure-to-disclose theory.11 Because Kemp challenges the

sufficiency of the evidence of these two theories, and has not

argued that either was legally invalid or unconstitutional, we will

affirm if the evidence is sufficient to support a judgment on

either theory. See United States v. Syme, 276 F.3d 131, 144 (3d

Cir. 2002) (explaining that “if the evidence is insufficient to

support a conviction on one alternative theory in a count but

sufficient to convict on another alternative theory that was

charged to the jury in the same count, then a reviewing court

should assume that the jury convicted on the factually sufficient

theory and should let the jury verdict stand”).

Here, a reasonable jury could conclude beyond a

reasonable doubt that Kemp “was paid for a particular decision

or action,” Antico, 275 F.3d at 263, and thus convict him of

honest services fraud under a bribery theory. The government

presented evidence that Kemp and Anderson had an arrangement

where Anderson would locate owners of unredeemed city bonds

and attempt to help them cash their bonds. This project required

Kemp to exercise his authority as treasurer: he provided

Anderson with a list of holders of outstanding bonds and a form

letter for her to use; also, the treasurer’s office was responsible

for contacting the banks to facilitate the ultimate repayment.

When Anderson was asked at trial what Kemp would contribute

to the business to earn his share of its proceeds, she identified

only these first two official actions. A reasonable jury certainly

could have concluded that Kemp was paid for the reasons that

Anderson pinpointed – taking official action that aided the

business.

Kemp argues that he was paid not for taking particular

actions but because he held a stake in the business. However,

11

Kemp does not dispute that as treasurer, he was a public

official who owed a duty to provide honest services to the public.

See 65 Pa. Cons. Stat. § 1102; see also Antico, 275 F.3d at 262

n.18.

33

Anderson testified that the company was formally owned by her

and a friend, and not Kemp. While Kemp did suggest the idea of

the asset-locator business to Anderson, a reasonable jury could

have found it more likely that Kemp was paid $1,300 for taking

actions in favor of the business than for providing an inchoate

idea.

We have repeatedly recognized that accepting money in

exchange for an official action is a form of honest services

fraud.12 See United States v. Panarella, 277 F.3d 678, 690 (3d

Cir. 2002); Antico, 275 F.3d at 262-63. As Pennsylvania law

provides, “public office is a public trust and . . . any effort to

realize personal financial gain through public office other than

compensation provided by law is a violation of that trust.” 65

Pa. Cons. Stat. § 1101.1. Here, the government presented

sufficient evidence for a reasonable jury to find beyond a

reasonable doubt that Kemp violated that trust by soliciting and

accepting payment in exchange for taking official action.

Accordingly, we find no plain error and reject Kemp’s challenge

to his mail fraud convictions.

B. Holck’s and Umbrell’s Wire Fraud Convictions

1. Challenge to the Indictment

Holck and Umbrell lead off their attack on their wire

fraud convictions by arguing that their convictions under the

bribery theory of honest services fraud must be vacated because

that theory was not charged in the indictment. We deem an

indictment sufficient so long as it “(1) contains the elements of

12

This case is distinguishable from United States v.

McNeive, 536 F.2d 1245 (8th Cir. 1976), where the Eighth Circuit

concluded that a chief plumbing inspector’s acceptance of

unsolicited gratuities that were attached to applications for permits

that required only ministerial action did not amount to honest

services fraud. Id. at 1251. Even if Kemp’s actions here were

largely ministerial, Kemp’s role in setting the scheme in motion

and then demanding payment was of a far more insidious order

than the passive behavior of the defendant in McNeive.

34

the offense intended to be charged, (2) sufficiently apprises the

defendant of what he must be prepared to meet, and (3) allows

the defendant to show with accuracy to what extent he may

plead a former acquittal or conviction in the event of a

subsequent prosecution.” United States v. Vitillo, --- F.3d ----,

2007 WL 1805332 (3d Cir. 2007) (internal quotation marks

omitted). Moreover, “no greater specificity than the statutory

language is required so long as there is sufficient factual

orientation to permit the defendant to prepare his defense and to

invoke double jeopardy in the event of a subsequent

prosecution.” United States v. Rankin, 870 F.2d 109, 112 (3d

Cir. 1989). We exercise plenary review over this challenge.

United States v. Hedaithy, 392 F.3d 580, 590 n.10 (3d Cir.

2004).

We conclude that the indictment here adequately charged

Holck and Umbrell with the bribery theory of honest services

wire fraud. The wire fraud counts of the indictment (counts 15-

22) plainly alleged honest services fraud, charging Holck and

Umbrell with engaging in “a scheme to defraud the City of

Philadelphia and its citizens of the right to defendant COREY

KEMP’S honest services in the affairs of the City of

Philadelphia.” (App. at 587.) Then, the specific factual

allegations – some of which were incorporated by reference to

the allegations of the conspiracy charge, see Fed. R. Crim. P.

7(c)(1) (“A count may incorporate by reference an allegation

made in another count.”); see also United States v. Markus, 721

F.2d 442, 444 (3d Cir. 1983) – were sufficient to alert Holck and

Umbrell that the government planned to pursue both theories.

The indictment refers to “the benefits that HOLCK and

UMBRELL extended to Kemp with the intent to influence

KEMP’s official actions” (App. at 491), and charges that

“defendants GLENN K. HOLCK and STEPHEN M.

UMBRELL, on behalf of their employer, Commerce Bank,

provided benefits to Kemp in the form of otherwise unavailable

loans in exchange for favorable decisions by KEMP as Treasurer

of Philadelphia” (App. at 554). These allegations were sufficient

to charge Holck and Umbrell with honest services fraud under a

bribery theory, and accordingly, we reject Holck and Umbrell’s

argument that the indictment should have been dismissed.

35

2. The “Stream of Benefits” Instruction

Holck and Umbrell next claim that the District Court

misstated the law when instructing the jury on the bribery theory

of honest services fraud, such that the jury was invited to convict

if it concluded that Holck and Umbrell had provided benefits to

Kemp in a “general attempt to curry favor.” We exercise

plenary review over whether the District Court correctly stated

the law, and consider “whether the charge, taken as a whole,

properly apprise[d] the jury of the issues and the applicable

law.” Armstrong v. Burdette Tomlin Mem’l Hosp., 438 F.3d

240, 245 (3d Cir. 2006) (alteration in original) (internal

quotation marks omitted).

While we agree with Holck and Umbrell that bribery may

not be founded on a mere intent to curry favor, we nevertheless

reject their challenge to the District Court’s instructions. As

Holck and Umbrell recognize, there is a critical difference

between bribery and generalized gifts provided in an attempt to

build goodwill. The Supreme Court has explained, in

interpreting the federal bribery and gratuity statute, 18 U.S.C. §

201, that bribery requires a quid pro quo, which includes an

“intent ‘to influence’ an official act or ‘to be influenced’ in an

official act.” United States v. Sun-Diamond Growers of Cal.,

526 U.S. 398, 404 (1999) (quoting 18 U.S.C. § 201(b)). This

may be contrasted to both a gratuity, which “may constitute

merely a reward for some future act that the public official will

take (and may already have determined to take), or for a past act

that he has already taken,” and to a noncriminal gift extended to

a public official merely “to build a reservoir of goodwill that

might ultimately affect one or more of a multitude of unspecified

acts, now and in the future.” Id. at 405. This discussion is

equally applicable to bribery in the honest services fraud context,

and we thus conclude that bribery requires “a specific intent to

give or receive something of value in exchange for an official

act.” Id. at 404-05.

Holck and Umbrell arrive at their conclusion that this

requirement was elided by the instructions only by reading

certain sections of the jury charge out of context, which “is not

the way we review jury instructions, because a single instruction

36

to a jury may not be judged in artificial isolation, but must be

viewed in the context of the overall charge.” United States v.

Park, 421 U.S. 658, 674 (1975). Read fairly, the instructions

proffered by the District Court repeatedly emphasized the critical

quid pro quo, explaining that “[t]o establish such bribery the

government must prove beyond a reasonable doubt that there

was a quid pro quo, . . . that the benefit was offered in exchange

for the official act.” (App. at 9642.) The Court continued,

“where there is a stream of benefits given by a person to favor a

public official, . . . it need not be shown that any specific benefit

was given in exchange for a specific official act. If you find

beyond a reasonable doubt that a person gave an official a

stream of benefits in implicit exchange for one or more official

acts, you may conclude that a bribery has occurred.” (App. at

9643.) Finally, the Court explained, “[t]o find the giver of a

benefit guilty, you must find that the giver had a specific intent

to give . . . something of value in exchange for an official act,

that is, that the accused had the specific intent to engage in such

a quid pro quo exchange.” (App. at 9643-44.) This instruction

correctly described the law of bribery, and left no danger that the

jury would convict upon merely finding that Holck and Umbrell

provided benefits to Kemp in a general attempt to curry favor or

build goodwill.

Moreover, we agree with the government that the District

Court’s instruction to the jury that it could convict upon finding

a “stream of benefits” was legally correct. The key to whether a

gift constitutes a bribe is whether the parties intended for the

benefit to be made in exchange for some official action; the

government need not prove that each gift was provided with the

intent to prompt a specific official act. See United States v.

Jennings, 160 F.3d 1006, 1014 (4th Cir. 1998). Rather, “[t]he

quid pro quo requirement is satisfied so long as the evidence

shows a ‘course of conduct of favors and gifts flowing to a

public official in exchange for a pattern of official actions

favorable to the donor.” Id. Thus, “payments may be made with

the intent to retain the official’s services on an ‘as needed’ basis,

so that whenever the opportunity presents itself the official will

take specific action on the payor’s behalf.” Id.; see also United

States v. Sawyer, 85 F.3d 713, 730 (1st Cir. 1996) (stating that “a

person with continuing and long-term interests before an official

37

might engage in a pattern of repeated, intentional gratuity

offenses in order to coax ongoing favorable official action in

derogation of the public’s right to impartial official services”).

While the form and number of gifts may vary, the gifts still

constitute a bribe as long as the essential intent – a specific intent

to give or receive something of value in exchange for an official

act – exists. This theory was accurately and entirely presented to

the jury in the jury instructions, and accordingly, we reject Holck

and Umbrell’s argument that the instructions as proffered were

inadequate.

3. Legal Validity of Failure to Disclose Theory

Holck and Umbrell next present three arguments that the

District Court’s jury instructions concerning the failure-to-

disclose theory of honest services fraud were legally erroneous.

If, as Holck and Umbrell argue, the alternative theory is legally

invalid, we must vacate their convictions. See Syme, 276 F.3d at

144. Our review over whether the District Court correctly stated

the law is plenary. Armstrong, 438 F.3d at 245. For the reasons

discussed below, we conclude that the District Court correctly

charged the jury.

Holck and Umbrell first argue that the jury instructions

were inconsistent with our decision in Panarella. According to

Holck and Umbrell, when we held in Panarella that a “public

official who conceals a financial interest in violation of state

criminal law while taking discretionary action that the official

knows will directly benefit that interest commits honest services

fraud,” 277 F.3d at 694, we ruled that the discretionary action

must benefit the public official himself, and not the person or

organization that provided the benefit. They thus argue that the

District Court’s instructions, which permitted the jury to convict

upon finding that Kemp took “a discretionary official action

benefitting the giver of the benefit” (App. at 9644), wrongly

stated the law.

A complete analysis of Panarella plainly demonstrates

the defectiveness of Holck and Umbrell’s position. In

Panarella, Loeper, while Majority Leader of the Pennsylvania

Senate, worked as a business consultant for a tax collection

38

business. Id. at 681. Loeper failed to disclose his income from

the business as required by state law, and spoke and voted

against bills that would have harmed that business. Id. We held

that this conduct constituted honest services fraud, and

emphasized the importance of disclosing conflicts of interest.

Id. at 696-97. We explained:

Were it easy to detect and prosecute public officials

for bribery, the need for public officials to disclose

conflicts of interest would be greatly reduced. . . .

One reason why federal and state law mandates

disclosure of conflicts of interest, however, is that it

is often difficult or impossible to know for sure

whether a public official has acted on a conflict of

interest. The only difference between a public

official who accepts a bribe and a public official who

receives payments while taking discretionary action

that benefits that payor, as Loeper did in this case, is

the existence of a quid pro quo whereby the public

official and the payor agree that the discretionary

action taken by the public official is in exchange for

payment. Recognizing the practical difficulties in

proving the existence of such a quid pro quo,

disclosure laws permit the public to judge for itself

whether an official has acted on a conflict of interest.

Id. at 697 (emphasis added) (citation omitted). This explanation

is consistent with our opinion in Antico, where we emphasized,

broadly, the duty of a public official “to disclose material

information affecting an official’s impartial decision-making.”

275 F.3d at 264. Accordingly, we reject Holck and Umbrell’s

argument that the discretionary action must directly benefit the

public official, and hold that honest services fraud encompasses

a situation where a public official conceals a financial interest in

violation of state criminal law while taking discretionary action

that the official knows will directly benefit the individual or

organization behind that financial interest. We thus reject Holck

and Umbrell’s challenge on this front.

Holck and Umbrell next argue that the jury instructions

misstated the law because they did not require the jury to find

39

that Holck and Umbrell failed to disclose a financial interest in

violation of a state criminal law. However, this argument

misapprehends Pennsylvania’s statutory structure. The District

Court read to the jury the provisions of 65 Pa. Cons. Stat. §

1103(a)-(c), all of which are felonies. See 65 Pa. Cons. Stat. §

1109(a). Thus, we also reject this claim.

Finally, Holck and Umbrell contend that the District

Court’s instructions about the species of loans that public

officials are required to report were incomplete. They argue that

in addition to the proffered instructions, which stated that “a

commercially reasonable loan made in the ordinary course of

business” is exempt from the reporting requirement,13 the

District Court should have informed the jury that “the financial

terms of the loan must be below-market or that the loan must be

outside the ordinary course of business.”

To the extent that the language proposed by Holck and

Umbrell adds anything to the District Court’s instruction, we

conclude that the District Court was not obligated to include it.

Holck and Umbrell’s authority for their position – 4 Pa. Code §

7.153(b)(3) and Executive Order No. 16-92 – concerns gifts that

public officials are prohibited from accepting, and are thus

inapposite here. The crucial issue is whether Kemp was required

to report the loans; whether he was entitled to accept the loans is

a different matter altogether. Accordingly, we conclude that the

District Court correctly and fully14 instructed the jury about the

13

These instructions were consistent with Pennsylvania

law, which requires public officials to report “[t]he name and

address of the source and the amount of any gift or gifts valued in

the aggregate at $250 or more and the circumstances of each gift,”

65 Pa. Cons. Stat. § 1105(b)(6); in defining “gift,” the statute

excludes from the general definition “a commercially reasonable

loan made in the ordinary course of business,” §§ 1102, 13A03.

14

The District Court instructed the jury that to determine

whether the loans provided by Kemp were gifts that were required

to be reported, it should consider “whether defendant Holck and/or

defendant Umbrell followed established Commerce Bank

40

governing law concerning loans.

4. Sufficiency of the Evidence for Bribery Theory

Holck and Umbrell’s final challenge to their honest

services wire fraud convictions is that the government presented

insufficient evidence to sustain those convictions under a bribery

theory. According to Holck and Umbrell, the government failed

to prove: (1) that they made a payment to Kemp; (2) that they

received a benefit from Kemp; and (3) that the two were directly

connected. As noted above, we will “view the evidence in the

light most favorable to the Government and sustain the verdict if

any rational juror could have found the elements of the crime

beyond a reasonable doubt.” United States v. Cartwright, 359

F.3d 281, 286 (3d Cir. 2004) (internal quotation marks omitted).

As we held above, bribery requires a specific intent to

give or receive something of value in exchange for an official

act. We note that evidence of a “quid pro quo can be implicit,

that is, a conviction can occur if the Government shows that [the

defendant] accepted payments or other consideration with the

implied understanding that he would perform or not perform an

act in his official capacity.” Antico, 275 F.3d at 257. As we

have recognized, “‘the official and the payor need not state the

quid pro quo in express terms, for otherwise the law’s effect

could be frustrated by knowing winks and nods.’”15 Id. at

258 (quoting United States v. Bradley, 173 F.3d 225, 231 (3d

procedures applicable for similar loans, whether they intended to

give a benefit or gift to defendant Kemp, whether the loans were

commercially reasonable, made in the ordinary course of business,

whether the loans were considered by defendant Kemp to be a

benefit or gift, the terms of the loan and other factors . . . that you

consider material.” (App. at 9651.) This appropriately conveyed

to the jury the many-faceted issue.

15

While we made that statement while discussing the Hobbs

Act, it is no less applicable in the present context. See, e.g., United

States v. Woodward, 149 F.3d 46, 57 (1st Cir. 1998) (permitting

similar form of proof in honest services fraud case).

41

Cir. 1999)).

We first reject Holck and Umbrell’s argument that the

benefits that they were accused of bestowing on Kemp – a

variety of loans – cannot constitute bribes (or the quid of a quid

pro quo) because they were made at the prevailing interest rates

in the regular course of business. As a factual matter, a

reasonable jury certainly could have found that these loans were

not advanced in the usual course of business and were instead

extended to Kemp and his friends solely because of Kemp’s

position. For instance, Umbrell agreed to loan $7,500 unsecured

to a person Kemp described as having “shaky credit” without

even seeing an application or speaking to the borrower.

Umbrell’s stated purpose for approving this loan was to make

Kemp “look good.” Moreover, Kemp’s mortgage loans were

approved by Holck and Umbrell before Kemp filed an

application, and despite the fact that Commerce’s computer

program and underwriter rejected the mortgages. Indeed, an

underwriter from Commerce testified that the procedures used to

approve this loan failed to comply with standard practice. This

evidence is sufficient to support a jury’s conclusion that these

loans were made available to Kemp only because he was the

treasurer.

Moreover, as a legal matter, we conclude that providing a

loan to a public official (or his friends or family) that would have

otherwise been unavailable to that official or available at a

higher interest rate may constitute a bribe. This is consistent

with our discussion in Antico where, concerning quid pro quo

under the Hobbs Act, we broadly described a bribe as involving

“payments or other consideration.” Id. at 257 (emphasis added).

Further, the conclusion comports with the federal bribery statute,

which refers to “anything of value,” and other general definitions

of bribery. See, e.g., Black’s Law Dictionary 186 (7th ed. 1999)

(defining “bribery” as “[t]he corrupt payment, receipt, or

solicitation of a private favor for official action”). It also takes

account of the commonsense notion that a loan may be of

immense value to the recipient: for instance, here, Kemp’s

mortgage loan allowed him to purchase a house.

Our conclusion that a loan may constitute the quid in a

42

bribery prosecution is also supported by the relevant caselaw.

Most notably, in United States v. Gorman, 807 F.2d 1299 (6th

Cir. 1986), the defendant argued that a loan was not a “thing of

value” under § 201 because he fully repaid the loan with interest.

Id. at 1304. The Sixth Circuit rejected that argument, because at

the time that the defendant received the loan he was having

“severe financial difficulties” and it was unclear whether such a

loan would have been available to him in the ordinary course of

business. Id. at 1305. The court focused on the value that the

recipient “subjectively attache[d] to the items received.” Id. A

loan was also recognized as a potential quid in United States v.

Williams, 705 F.2d 603 (2d Cir. 1983). There, a United States

Senator was convicted under the federal bribery statute for

“seeking funds for the financing and purchase of a mining

venture in which he had an interest in exchange for his

assistance in obtaining government contracts for the venture.”

Id. at 612. One of the two sorts of funds that the senator sought

was a $100 million loan that was to be repaid with interest.

Id. at 620. The court never questioned that the loan could serve

as a bribe, and termed the evidence against the senator

“overwhelming.” Id. at 612; see also United States v. Crozier,

987 F.2d 893, 901 (2d Cir. 1993) (“[A]s we have held in

connection with § 201, any payment that the defendant

subjectively believes has value, including a loan, constitutes a

thing ‘of value’ within the meaning of § 666(c)”). Thus, we

conclude that loans, so long as they are granted in exchange for

an official act, may drive a bribery prosecution.16

We also conclude that Holck and Umbrell’s assertion that

they did not receive any benefit from Kemp is contradicted by

the record evidence. Despite Holck and Umbrell’s protestations,

a reasonable jury could undoubtably have concluded that Kemp

provided a benefit to them when he rigged the bidding for the

NTI line of credit in Commerce’s favor. The government

showed that after Commerce submitted its bid, Kemp told White

to tell Holck and Umbrell not to submit their bids first, because

16

Indeed, given that the government must also prove the

loan was given in exchange for some official action, there is little

danger that honest loans will trigger criminal liability.

43

then Kemp could tell White about the other bids. This alone

permitted a reasonable jury to conclude that Kemp intended to

benefit Commerce to the detriment of other banks. Then Kemp

called Holck and gave him specific instructions about how

Commerce could tweak its initial bid to guarantee that its bid

would win – a courtesy that he did not extend to any other bank.

Indeed, when Wachovia attempted to rebid, Kemp ignored its

request. While a second round of bidding was instituted – on the

orders of Kemp’s boss and against Kemp’s wishes – only

Commerce was told exactly what to bid to ensure success. This

evidence was plainly sufficient for the jury to conclude that

Holck and Umbrell received a benefit from Kemp.

Finally, we reject Holck and Umbrell’s contention that

the government failed to present evidence of a

pro demonstrating that Holck and Umbrell extended loans to

Kemp in exchange for favorable treatment. Especially damaging

to Holck and Umbrell’s position is the June 24, 2003 phone call

between Umbrell and Kemp. There, Umbrell agreed to waive

the $3,500 appraisal fee for the church loan, and then, while the

two discussed the renewal of some of Philadelphia’s certificates

of deposit with Commerce, Kemp told Umbrell that Umbrell

could always speak to Kemp directly because “you are my

f__king guy. . . . So you get special treatment.” While Kemp

did not elaborate about why Umbrell was his “guy,” the jury

certainly could have inferred that it was because of the consistent

flow of loans and perks – including the waiver of the appraisal

fee discussed moments before – that Holck and Umbrell

extended. The evidence also showed that not only did Kemp say

that Holck and Umbrell would get special treatment – they did.

The NTI bidding process is a particularly egregious example.

Further, the government showed that Holck and Umbrell

believed that they would receive this special treatment, as

illustrated by the phone call between White, Holck, and Umbrell,

where Holck appeared surprised that any bank besides

Commerce would get a second opportunity to bid, stating that

“you know we made . . . the revised proposal to Corey? . . . And

something’s not smelling right.” Similarly, Kemp’s explanation

of the NTI transaction to his friend, in which Kemp stated that

Commerce Bank had better take care of him because he hooked

them up with the NTI deal, evinced his understanding that he

44

was giving Holck and Umbrell special treatment in exchange for

loans. This course of conduct permitted the jury to infer that

Kemp had agreed with Holck and Umbrell that he would take

official action in their favor in exchange for their providing him

loans and benefits.

Accordingly, we conclude that the government presented

sufficient evidence to support the jury’s verdict against Holck

and Umbrell on the honest services wire fraud charge.17

C. Holck’s and Umbrell’s Conspiracy Convictions

Holck and Umbrell argue that their convictions for

conspiracy to commit honest services fraud must be vacated

because there was a prejudicial variance between the charge in

the indictment and the proof presented at trial.18 They claim that

17

Because we have rejected Holck and Umbrell’s arguments

that the failure to disclose theory was legally invalid, see part

III.B.3., supra, we need not consider whether the District Court

correctly concluded that the government presented insufficient

evidence to convict on the failure-to-disclose theory. As we

discussed above, because the evidence was “sufficient to convict

on another alternative theory that was charged to the jury in the

same count, [we will] assume that the jury convicted on the

factually sufficient theory and [will] let the jury verdict stand.”

Syme, 276 F.3d at 144.

18

Our jurisprudence distinguishes between challenges to the

sufficiency of the evidence, in which the appellant claims that the

government failed to prove an essential element of conspiracy, and

variance claims, in which the appellant argues that the government

proved multiple conspiracies instead of the one charged in the

indictment. For instance, in United States v. Kenny, 462 F.2d 1205

(3d Cir. 1972), we explained, before commencing our variance

analysis, that it was “not a case where there was no evidence of the

existence of a conspiracy”; rather, the government allegedly

“proved several separate unrelated conspiracies under each

conspiracy count.” Id. at 1216. Similarly, in United States v.

Perez, 280 F.3d 318 (3d Cir. 2002), we considered both sufficiency

45

while the indictment alleged a single conspiracy involving

Holck, Umbrell, White, Kemp, Hawkins, and Knight, the

evidence adduced at trial proved, if anything, that Holck and

Umbrell, Knight, and Hawkins each joined a separate conspiracy

with White and Kemp. “A conviction must be vacated when (1)

there is a variance between the indictment and the proof

presented at trial and (2) the variance prejudices a substantial

right of the defendant.” United States v. Kelly, 892 F.2d 255,

258 (3d Cir. 1989). As we discuss below, we agree with Holck

and Umbrell that there was a variance; however, we will

nevertheless affirm their convictions because they have failed to

demonstrate prejudice.

1. Variance

There is a variance if the indictment charges a single

conspiracy while the evidence presented at trial proves only the

existence of multiple conspiracies. Id. We must determine

“whether there was sufficient evidence from which the jury

could have concluded that the government proved the single

of the evidence and variance challenges to the same conspiracy

conviction. Id. at 342. The sufficiency of the evidence analysis

concerned whether the defendants possessed the “requisite

knowledge of the illegal objective of the scheme to distribute

methamphetamine such that they could form an intent or agreement

to join the conspiracy.” Id. at 343. One defendant claimed that he

was caught with a drug distributor only by chance and was not

involved with drugs, while the other claimed that he had a common

buyer-seller relationship with the distributor and was not involved

in a conspiracy to distribute. Id. This can be contrasted to the

variance argument, where the defendants argued that while they

may have been involved in a conspiracy to distribute drugs in New

York, they were not part of the same conspiracy as men who dealt

drugs in New Jersey. Id. at 347. Because Holck and Umbrell

concede that the government presented sufficient evidence that

they were involved in a conspiracy with some, but not all, of their

co-defendants, we interpret their claim as alleging a prejudicial

variance, rather than as a pure sufficiency of the evidence

challenge.

46

conspiracy alleged in the indictment.” Id. Thus, we evaluate

whether the record, when viewed in the light most favorable to

the government, contains substantial evidence that Holck and

Umbrell were part of a single conspiracy that also included

Kemp, White, Hawkins, and Knight.

In order to determine whether a group of individuals

engaged in a single conspiracy or multiple conspiracies, we

evaluate three factors. We consider: (1) “whether there was a

common goal among the conspirators”; (2) “whether the

agreement contemplated bringing to pass a continuous result that

will not continue without the continuous cooperation of the

conspirators”; and (3) “the extent to which the participants

overlap in the various dealings.” Id. at 259 (internal quotation

marks omitted). Here, the government has failed to satisfy the

first Kelly factor.

The crux of Holck and Umbrell’s argument is that the

government charged a hub-and-spokes conspiracy but failed to

prove the existence of a rim connecting the spokes. That is, they

claim that Kemp and White were the hub, and entered into

separate agreements with three unconnected spokes – Holck and

Umbrell, Knight, and Hawkins. This argument is predicated on

the seminal case Kotteakos v. United States, 328 U.S. 750

(1946). Kotteakos involved an indictment that charged 32

individuals with conspiracy to obtain loans under a Fair Housing

Act program by making false applications; Simon Brown was at

the center of the alleged conspiracy, helping a disparate group of

individuals obtain these loans. Id. at 752-53. The Supreme

Court held that the facts presented failed to prove a single

conspiracy:

Except for Brown, the common figure, no

conspirator was interested in whether any loan

except his own went through. And none aided in

any way, by agreement or otherwise, in procuring

another’s loan. The conspiracies therefore were

distinct and disconnected, not parts of a larger

general scheme, both in the phase of agreement with

Brown and also in the absence of any aid given to

others as well as in specific object and result. There

47

was no drawing of all together in a single, over-all,

comprehensive plan.

Blumenthal v. United States, 332 U.S. 539, 558 (1947)

(discussing Kotteakos).

In Blumenthal, the Court found a single conspiracy where

the defendants were all involved in a scheme to acquire whiskey

and resell it above authorized prices. Distinguishing these facts

from Kotteakos, the Court noted that all the conspirators “knew

of and joined in the overriding scheme” and “sought a common

end” to sell the whiskey, so that “the several agreements were

essential and integral steps.” Id. at 559. The contrast between

Kotteakos and Blumenthal helps us to determine whether an

impermissible variance has occurred. As this Court has noted,

the Government may not charge “multiple unrelated

conspiracies,” but it can charge a “master conspiracy [with]

more than one subsidiary scheme.” United States v. Kenny, 462

F.2d 1205, 1216 (3d Cir. 1972); see also United States v.

Chandler, 388 F.3d 796, 811 (11th Cir. 2004) (stating that

“although each of these alleged spoke conspiracies had the same

goal, there was no evidence that this was a common goal”).

Here, Holck and Umbrell argue that they could not have

joined the same conspiracy as Knight and Hawkins, because they

neither knew about Knight’s and Hawkins’s activities nor were

dependent on those activities. The government, on the other

hand, argues that it proved both knowledge and interdependence.

First, we agree with Holck and Umbrell that the

government failed to present evidence that they either knew or

should have known about Knight’s and Hawkins’s activities.

While the government claims that Holck and Umbrell acted

“with knowledge that White was serving interests in addition to

theirs,” it presents no factual support for this assertion. Nor is

this the type of conspiracy that must have had other members; it

would have been perfectly reasonable for Holck and Umbrell to

have believed that they were doing business with only Kemp and

White. Cf. Chandler, 388 F.3d at 811 n.21 (“In a drug

conspiracy, in which the object of the conspiracy is clearly

illegal and there are various clandestine functions to perform, the

48

conspirators can be charged with knowledge that others are

performing these different functions. In this case, however, such

knowledge may not be imputed to defendants since each of their

redemptions was complete unto itself.” (citation omitted)). This

may be contrasted with Blumenthal, where three salesmen were

convicted of conspiring to sell whiskey at above-ceiling prices in

violation of the Emergency Price Control Act. 332 U.S. at 541.

The Court held that while “each salesman aided in selling only

his part,” id. at 559, they could nevertheless form part of a single

conspiracy, because they “knew or must have known that others

unknown to them were sharing in so large a project,” id. at 558.

Here, there was no such evidence that Holck and Umbrell should

have known that the conspiracy involved parts beyond White

and Kemp. Accordingly, given the absence of any evidence to

the contrary, we agree with Holck and Umbrell that the

government failed to prove that they were aware of the existence

of the other spokes.

Second, we agree with Holck and Umbrell that their

activities and those of the other spokes were neither

interdependent nor mutually supportive. In evaluating

interdependence, we consider how helpful one individual’s

contribution is to another’s goals. See United States v. Macchia,

35 F.3d 662, 671 (2d Cir. 1994) (describing inquiry as “the

extent to which the success or failure of one conspiracy is

independent of a corresponding success or failure by the other”).

We reiterate that interdependence serves as “evidence of an

agreement,” Perez, 280 F.3d at 346; that is, it helps establish

whether the alleged coconspirators are “all committed to the

same set of objectives in a single conspiracy,” Smith, 82 F.3d at

1271.

Chain-shaped conspiracies present the classic examples of

interdependence. For instance, in Perez, 280 F.3d at 347, we

concluded that two drug sellers and a drug smuggler were

interdependent, even though there was a middleman between

them, because “[the dealers] depended on a scheme involving

[the smuggler and the middleman] and the shipment from the

Philippines to possess and distribute the illegal drug.” See also

United States v. Portela, 167 F.3d 687, 697 (1st Cir. 1999)

(explaining that “a single conspiracy [exists] if the continued

49

health of the trafficking and distribution network necessarily

depends on the continued efforts of multiple suppliers”); United

States v. Evans, 970 F.2d 663, 670 (10th Cir. 1992)

(“Interdependence is present when each alleged coconspirator . .

. depend[s] on the operation of each link in the chain to achieve

the common goal.” (alterations in original) (internal quotation

marks omitted)).19

We also concluded that there was a single conspiracy in

United States v. Kenny, 462 F.2d 1205 (3d Cir. 1972), a non-

drug case. Kenny involved a large-scale scheme that required

contractors to pay kickbacks to government officials in order to

procure government contracts. Id. at 1217. While the scheme

19

In the typical chain conspiracy, the actions of each co-

conspirator benefit the overall conspiracy. It is for this reason that

the “chain conspiracy” cases relied on by the Government are of

limited relevance to our discussion. The paradigmatic example in

which the chain metaphor provides guidance is the drug

conspiracy, where the conspirators often “share a common goal,

such as the possession and distribution of narcotics for profit.” See

United States v. Tarantino, 846 F.2d 1384, 1393 (D.C. Cir. 1988);

United States v. Russell, 134 F.3d 171, 182 (3d Cir. 1998) (stating

that “the common goal of this conspiracy was to make money

selling cocaine”); Quintero, 38 F.3d at 1337 (“The prosecution

must . . . demonstrate that a defendant, charging variance, knew

that he was part of a larger drug operation.”); United States v. Barr,

963 F.2d 641, 650 (3d Cir. 1992); Salmon, 944 F.2d at 1117

(conspiracy to sell cocaine for profit or another benefit); Padilla,

982 F.2d at 115 (stating that “there was a common goal to obtain

and sell cocaine for profit and knowledge attributable to [the

defendant] of a larger network”); United States v. Kelly, 892 F.2d

255 (3d Cir. 1989) (conspiracy to possess and manufacture

methamphetamine); id. at 258 (describing the Government’s theory

as the “classic chain conspiracy”). We do not wish to imply that

every individual involved with a drug conspiracy is necessarily a

member of that one conspiracy. “[E]ven if we determine that a

chain conspiracy exists, we may still conclude that certain actions

were outside the chain and formed a separate conspiracy.”

Tarantino, 846 F.2d at 1393.

50

involved a diverse group of individuals, the evidence showed “a

determined group who repeatedly cooperated closely to achieve

the common purpose of self-enrichment by extracting

kickbacks.” Id. Moreover, “[t]he key to success of all their

depravities was their common control over the administration of

city and county government.” Id.; see also United States v.

Greenidge, --- F.3d ----, 2007 WL 205076 (3d Cir. 2007)

(finding single conspiracy where depositors of stolen and altered

checks “did not represent independent customers, but were an

integral part of this [pyramidal] ‘corporate’ structure”).

On the other hand, in Smith, we concluded that there was

no interdependence between two kickback schemes because

“[t]he co-conspirators in each state derived no benefit, financial

or otherwise, from Smith’s activities in the other state, nor was

the success of the conspiracy in one state contingent on the

success of the conspiracy in the other.” 82 F.3d at 1271.

Similarly, in United States v. Camiel, 689 F.2d 31 (3d Cir.

1982), we found that the government had failed to prove a

common, unified scheme between the officials of both houses of

the Pennsylvania General Assembly in offering “no-show”

patronage positions, because while each body did offer such

positions, “there was a dearth of evidence presented that could

link the relevant activities of the two legislative bodies.” Id. at

37; see also Chandler, 388 F.3d at 811-12 (“In this case, there

was no such interdependence of the spokes. The combined

efforts of the spokes were not required to insure the success of

the venture. No spoke depended upon, was aided by, or had any

interest in the success of the others. Each spoke acted

independently and was an end unto itself. The actions of one

spoke did not facilitate the endeavors of other coconspirators or

the venture as a whole.” (footnote omitted)).

Based on these principles, we conclude that there was an

insufficient degree of interdependence between Knight and

Holck and Umbrell. While White and Kemp steered business to

Knight’s company RPC, this did not benefit Holck and Umbrell;

it only benefitted Knight (and perhaps White). Nor did this

arrangement cement White’s hold on Kemp; if anything, it

indebted White to Kemp, which again was of no use to Holck

and Umbrell. Thus, it is difficult to conceive of how Knight’s

51

activities and those of Holck and Umbrell were interdependent

or mutually supportive.

Hawkins’s case is somewhat closer, because it is at least

arguable that Hawkins’s assistance to White in tendering bribes

to Kemp inadvertently benefitted Holck and Umbrell by

increasing White’s power over Kemp. Nevertheless, we

conclude that this degree of interdependency is too attenuated

and incidental to establish that Holck and Umbrell and Hawkins

joined the same conspiracy. The evidence here, as in Kotteakos

and Smith, demonstrates that Holck and Umbrell’s transactions

were able to proceed without any reliance on Hawkins, and vice

versa. Holck and Umbrell, through cultivating a relationship

with White and providing loans to Kemp, induced Kemp to grant

them favorable treatment. Hawkins also sought favors from

Kemp, and worked with White to coax those favors. Neither of

these sets of transactions was contingent upon the other.

Accordingly, we conclude that Holck and Umbrell and Hawkins

were not interdependent.

The government’s other arguments lack merit. For

instance, the government claims that the conspirators overlapped

because “White and Kemp, the core conspirators, dealt with

every one of the coconspirators, including Holck and Umbrell,

both individually and together.” However, this could be said for

any hub-and-spokes style conspiracy; Kotteakos and its progeny

make clear that there must be overlap among the spokes, not just

between the hub and the various spokes. Further, it is of no

moment that the hub of this conspiracy involved two individuals

instead of one. Smith recognized that the inquiry must focus not

on the number of individuals who make up the hub, but on the

character of the agreements between the spokes. See 82 F.3d at

1272. Thus, we conclude that appellants are correct that there

was a variance between the conduct charged and proved.

2. Substantial Prejudice

We will only vacate Holck’s and Umbrell’s convictions,

however, if they can show that the variance prejudiced their

substantial rights. See United States v. Padilla, 982 F.2d 110,

115 (3d Cir. 1992) (stating “assuming arguendo that Padilla has

52

demonstrated a variance, he must also show prejudice to a

substantial right”); Perez, 280 F.3d at 345 (same). The rule

against variances serves at least three purposes. These purposes

also illustrate why this rule contains a prejudice requirement.

First, “the rule protects the right of each defendant ‘not to be

tried en masse for the conglomeration of distinct and separate

offenses committed by others.’” United States v. Schurr, 775

F.2d 549, 553 (3d Cir. 1985) (quoting Kotteakos, 328 U.S. at

775). The idea here is that the jury should not be permitted to

transfer “‘guilt from one alleged co-schemer to another.’”

Perez, 280 F.3d at 346 (quoting United States v. Barr, 963 F.2d

641, 648 (3d Cir. 1992)). Closely related to guilt transference is

the possibility of evidence spillover. United States v. Trainor,

477 F.3d 24, 36 n.21 (1st Cir. 2007) (stating that “the spillover

concern is addressed to whether incriminating evidence against

co-defendants who were involved in separate conspiracies

affected the jury’s consideration of the evidence against the

defendant”). Second, the rule ensures that a defendant has

adequate notice of the charges being brought against him. Perez,

280 F.3d at 345. Third, the rule “rests on a principle akin to

double jeopardy, for the rule helps to minimize the danger that

the defendant may be prosecuted a second time for the same

offense.” Schurr, 775 F.2d at 554 (internal quotation marks

omitted). The third purpose is not at issue in this case, and the

“notice” purpose has not been violated because Holck and

Umbrell were aware from the indictment as to their role in the

conspiracy, even if this conspiracy had been solely between

them and the White/Kemp hub. There is no reasonable argument

that Holck and Umbrell were not aware of the nature of the

charges brought against them.

Here, Holck and Umbrell have failed to show that the

variance prejudiced their substantial rights. They argue that they

were prejudiced because a great deal of evidence concerning

“seamy explicit . . . quid pro quo trades” between White and

Kemp were introduced against them. According to Holck and

Umbrell, “these damning conversations had nothing to do with

[them].” However, as the government notes, this evidence was

admissible against Holck and Umbrell because, as they concede,

they joined a conspiracy with White and Kemp. See, e.g.,

United States v. Kushner, 305 F.3d 194, 198 (3d Cir. 2002)

53

(explaining that “[u]nder the law of conspiracy, a defendant is

liable for his own and his co-conspirators’ acts for as long as the

conspiracy continues”). This conspiracy involved White’s

bribing Kemp in order to control his decision-making and direct

city business to favored companies – including Commerce.

Thus, evidence concerning White and Kemp’s relationship was

relevant to Holck and Umbrell to explain White’s power over

Kemp, which worked in Holck and Umbrell’s favor.

Accordingly, Holck and Umbrell’s argument on this point lacks

merit.

Further, as the government explains, it rigorously

segmented its proofs and “never suggested in any way that any

piece of evidence related to Hawkins and Knight was relevant to

establish Holck and Umbrell’s participation in the conspiracy.”

This Court has specifically found, in a discussion of variance, no

prejudice because, inter alia, “the presentation against the

defendants here proceeded seriatim.” Padilla, 982 F.2d at 116.

We explained that the presentation of evidence in this manner

minimized the risk of evidence spillover from the separate

defendants. Id.; see also Perez, 280 F.3d at 347; Greenidge,

2007 WL 2050764. The same rationale applies here.

Also militating against a finding of prejudice is

Kotteakos’s explanation that the danger of prejudice increases

along with the number of conspiracies and individuals that make

up the wrongly charged single conspiracy. As the Court stated,

“[o]bviously the burden of defense to a defendant, connected

with one or a few of so many distinct transactions, is vastly

different not only in preparation for trial, but also in looking out

for and securing safeguard against evidence affecting other

defendants.” Id. at 766-67. The Court distinguished the

conspiracy in that case, which involved eight different

conspiracies encompassing between 13 and 32 individuals and

did prejudice the defendant, from the case of Berger v. United

States, 295 U.S. 78 (1935), where two conspiracies involving

four individuals were proved and did not prejudice the

defendant. Id. at 766. This case is more similar to Berger, as

there were five alleged conspirators that make up three distinct

conspiracies. Thus, there is little danger that prejudice

inevitably occurred based on the sheer number of defendants and

54

conspiracies.

Accordingly, while Holck and Umbrell have shown that

there was a variance between the charge in the indictment and

the evidence adduced at trial, they have failed to demonstrate

that they were prejudiced by the variance.

D. Hawkins’s Wire Fraud Conviction

La-Van Hawkins challenges the sufficiency of the

evidence supporting his conviction for aiding and abetting wire

fraud, which related to his transmitting the second $5,000 to

Kemp. Hawkins argues that there may have been sufficient

evidence to show that he intended to aid and abet some sort of

criminal activity, but that the government failed to present

evidence demonstrating that he intended to aid and abet the

specific crime of honest services fraud. Again, we will “view

the evidence in the light most favorable to the Government and

sustain the verdict if any rational juror could have found the

elements of the crime beyond a reasonable doubt.” Cartwright,

359 F.3d at 286 (internal quotation marks omitted).

Hawkins’s argument is based on the general precept that

in order to convict a defendant of aiding and abetting, the

government must prove that “the defendant charged with aiding

and abetting that crime knew of the commission of the

substantive offense and acted with the intent to facilitate it.”

United States v. Dixon, 658 F.2d 181, 189 n.17 (3d Cir. 1981).

We applied this principle in United States v. Wexler, 838 F.2d 88

(3d Cir. 1988), where we held that the government had presented

insufficient evidence to sustain the defendant’s conviction for

aiding and abetting possession by others with intent to distribute

hashish. Id. at 90. While the government had presented

evidence that would have allowed a jury to find that the

defendant was involved in an operation with two other men that

involved transporting cargo in a truck, that the defendant served

as a lookout as the other defendants moved the truck, and that

the truck was loaded with hashish, id. at 91, we concluded that

the government had failed to present enough evidence that the

defendant knew that the truck held drugs, id. at 92. We

explained that because the government had failed to show that

55

the defendant “had knowledge of the hashish,” it failed to prove

that the defendant purposely aided and abetted the specific crime

with which he was charged. Id. We concluded that the evidence

presented was just as consistent with the crime of transporting

stolen goods – an entirely different crime. Id.

In the instant case, however, the government presented

sufficient evidence for the jury to conclude that Hawkins

intended to aid and abet honest services fraud. The government

demonstrated that Hawkins knew that Kemp held public office

in Philadelphia and that Hawkins knew that White was a

politically connected Philadelphia lawyer. Moreover, the

government showed that Hawkins had no reason to provide

money to Kemp, and that he actually relayed the money to Kemp

at White’s behest after White provided him with a $5,000 check.

The government also presented evidence that Hawkins filled out

the entire check except for the payee line, although he did intend

for the money to go to Kemp, as demonstrated by the subsequent

wire transfer. This evidence all supports the jury’s conclusion

that Hawkins intended to aid and abet White’s corruption of

Kemp. Hawkins argues that this situation is just as consistent

with drug conspiracy, money laundering, or tax fraud; however,

the government’s theory specifically accounts for Kemp’s

position as a public official in a way that Hawkins’s other

proposed crimes do not, which differentiates this case from

Wexler. As we have explained, “[t]here is no requirement . . .

that the inference drawn by the jury be the only inference

possible or that the government’s evidence foreclose every

possible innocent explanation.” United States v. Iafelice, 978

F.2d 92, 97 n.3 (3d Cir. 1992). Thus, we reject Hawkins’s

argument and will affirm his conviction for aiding and abetting

honest services wire fraud.

E. Hawkins’s Perjury Convictions

Hawkins next challenges the sufficiency of the evidence

undergirding his three perjury convictions under 18 U.S.C. §

1623, which prohibits “knowingly mak[ing] any false material

declaration” under oath before a grand jury. For each perjury

conviction, Hawkins contends that the government failed to

prove that his relevant testimony before the grand jury was

56

untrue. We will uphold the verdict if a reasonable jury could

have found the elements of the crime beyond a reasonable doubt.

Dent, 149 F.3d at 187. The government may prove guilt “via

circumstantial evidence.” United States v. Serafini, 233 F.3d

758, 770 (3d Cir. 2000); see also 18 U.S.C. § 1623(e) (“Proof

beyond a reasonable doubt under this section is sufficient for

conviction. It shall not be necessary that such proof be made by

any particular number of witnesses or by documentary or other

type of evidence.”); United States v. Smith, 538 F.2d 159, 163

(7th Cir. 1976) (“Although no direct evidence of perjury was

produced, none was required.”).

We first reject Hawkins’s argument that the government

presented insufficient evidence to prove the falsity of his

testimony that he provided the first $5,000 check to Kemp as a

wedding present on White’s instructions. As the government

argued, the story that Hawkins presented is unlikely on its face:

it is difficult to understand why Hawkins would agree to give a

$5,000 wedding gift to someone he barely knew. Further, the

government presented evidence that Kemp had already been

married for 20 months by the time that Hawkins wrote this

check. While it is true, as Hawkins responds, that that could

mean only that White lied to Hawkins, it nevertheless places

Hawkins’s account in further doubt. Additionally, and vitally,

the government demonstrated that Hawkins testified falsely

about the details surrounding this payment. According to

Hawkins’s grand jury testimony, White and Kemp were in

Detroit for Kemp’s bachelor party, and during that trip, dropped

by Hawkins’s office. While there, Hawkins testified, White

asked Hawkins to give Kemp a check as a wedding present.

However, the government showed that Kemp was not actually in

Detroit at the time. This contradiction could have allowed the

jury to draw two inferences. First, the jury could have

concluded that Hawkins lied when he said that Kemp’s bachelor

party was occurring, which makes the wedding present

explanation less plausible. Second, if Kemp was not in Detroit

at all, it would be extremely unlikely that White would request a

wedding present for him. Moreover, while Hawkins testified

that the check was never cashed, it was. We conclude that this

series of contradictions and implausibilities are sufficient to

sustain the jury’s verdict on this count.

57

We are similarly unpersuaded by Hawkins’s argument

that the government failed to prove the falsity of his grand jury

testimony in which he stated that he supplied the second $5,000

check to White intending for White to convey it to a coalition of

African-American newspapers. Most damaging to Hawkins’s

testimony is the fact that after this check bounced twice,

Hawkins wired the $5,000 directly to Kemp’s bank account.

This is powerful evidence that Hawkins intended for the $5,000

to reach Kemp – not a newspaper association. While this fact

alone is sufficient to sustain the conviction, we also note that the

details that Hawkins provided further undermine the veracity of

the story. For instance, the government demonstrated that

Hawkins had met with the group two years before writing the

check, making his sudden beneficence unusual. Thus, we will

affirm the jury’s verdict on this count.

We also make short shrift of Hawkins’s claim that the

government proffered insufficient evidence to prove the falsity

of his testimony regarding his meeting with Khan, in which he

stated that he had not specifically asked White to bring Kemp to

the meeting, although he had asked, on behalf of Khan, for the

attendance of someone who could discuss property opportunities

in Philadelphia. Hawkins’s testimony is flatly contradicted by

the recorded telephone conversation in which Hawkins

specifically asked White to bring “Corey” to the meeting in

order to “keep [Khan] in the hole” by convincing Khan that

Hawkins was “gonna be gettin’ 20 million.” Moreover, Khan

testified that he never intended to enter the Philadelphia market

and did not ask Hawkins to introduce him to anyone. This

evidence was plainly sufficient to permit the jury to conclude

that Hawkins’s grand jury testimony was false on this matter.

F. Hawkins’s Evidentiary Challenges

Hawkins next challenges a string of the District Court’s

evidentiary rulings. First, he argues that the evidence the

government presented that mentioned Al Sharpton should have

been excluded. For instance, in the government’s opening

statement it stated:

Where is a source of money? La-Van Hawkins is

58

looking for big public pension funds, and to get

access to the money in big public pension funds Mr.

Hawkins knows you need to have access to public

officials. You will hear that is exactly what La-Van

Hawkins tries to do. He tries to do it through

Reverend Al Sharpton in the city of New York. In

Philadelphia, he tries to do it through Ron White. . .

.

(App. at 1527.) Hawkins argues that this and all subsequent

references to Sharpton were irrelevant and thus inadmissible

under Fed. R. Evid. 401. Alternatively, Hawkins argues that the

evidence should have been excluded under Fed. R. Evid. 403

because any probative value that the evidence did have was

“substantially outweighed by the danger of unfair prejudice.”

“We review a district court’s decision to admit or exclude

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).

Contrary to Hawkins’s assertion, the evidence involving

Sharpton did have a “tendency to make the existence of any fact

that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.”

Fed. R. Evid. 401. As we have recognized, this standard is “not

high.” United States v. Steele, 685 F.2d 793, 808 (3d Cir. 1982)

(internal quotation marks omitted). At bottom, the government

aimed to prove that Hawkins joined a conspiracy to corrupt

Kemp. The evidence concerning Hawkins’s efforts to cultivate a

relationship with Sharpton emphasized Hawkins’s interest in

fostering ties with politically active individuals, and was thus

probative as to Hawkins’s intent in working with White and

directing money to Kemp. The evidence could have allowed a

jury to conclude that it was less likely that the first payment to

Kemp was casually made at White’s direction, that the second

payment was not intended for Kemp at all, and that Hawkins was

generally indifferent toward Kemp’s position, because the

evidence concerning Sharpton helped show just how

determinedly Hawkins wooed those with political connections

and his willingness to convey money to them. Of course, this

evidence alone does not prove Hawkins’s guilt on any count, but

as the notes to Rule 401 explain, “a brick is not a wall.” Fed. R.

59

Evid. 401 advisory committee’s note (internal quotation marks

omitted).

Moreover, Hawkins has failed to present any authority for

his novel position that Sharpton’s name alone is so prejudicial

that the infrequent references to it substantially outstripped the

probative value of this evidence. Further, the District Court

minimized the possibility of prejudice by explicitly instructing

the jury that: “The government is not alleging anything wrong at

all regarding the efforts of La-Van Hawkins, Ronald White, and

Al Sharpton concerning New York pension funds. There is no

suggestion of illegality as to any recorded conversations you

heard played during the government’s case-in-chief pertaining to

Al Sharpton . . . .” (App. at 10593-94.) Accordingly, we

conclude that the District Court did not abuse its discretion in

admitting the evidence under either Rule 401 or 403.

Second, Hawkins argues that the testimony of

representatives of Blockbuster, BET, Pizza Hut, and Burger

King, all of whom contradicted claims that Hawkins made

before the grand jury about his great wealth,20 should have been

excluded under Rule 404(b). In order to be admissible under

Fed. R. Evid. 404(b), the evidence of other acts must: “(1) have a

proper evidentiary purpose, (2) be relevant under Rule 402, (3)

satisfy Rule 403 (i.e., not be substantially more prejudicial than

20

Specifically, Bradley Himmeger, the Blockbuster

representative, testified that despite Hawkins’s testimony that he

owned 55 Blockbuster Video stores, Hawkins actually owned zero.

H. Van Sinclair, a representative of BET, testified that contrary to

Hawkins’s claim that he was a partner of Bob Johnson in the sale

of BET for $3.5 billion, the two men were not partners and

Hawkins was not involved in the sale. Pizza Hut representative

John Murphy contradicted Hawkins’s claim that he had sold 127

restaurants back to Pizza Hut by testifying that Hawkins had

returned 72 restaurants to Pizza Hut and had actually paid Pizza

Hut $50,000 to take the debt-ridden restaurants off his hands.

Finally, W. Barry Blum, a representative of Burger King, testified

that Hawkins received only $95,000 when he sold restaurants to

Burger King, not, as Hawkins had claimed, $35 million.

60

probative), and (4) be accompanied by a limiting instruction,

when requested pursuant to Federal Rule of Evidence 105, that

instructs the jury not to use the evidence for an improper

purpose.” United States v. Cross, 308 F.3d 308, 320-21 (3d Cir.

2002) (footnote omitted). Hawkins argues that this evidence was

offered for an improper purpose and that its probative value was

substantially outweighed by the danger of unfair prejudice. We

review the District Court’s judgments for abuse of discretion.

United States v. Mastrangelo, 172 F.3d 288, 295 (3d Cir. 1999).

As explained below, we conclude that the District Court acted

within its discretion.

Hawkins first argues that this evidence was not presented

for a proper purpose, because it was offered to persuade the jury

that because Hawkins had lied to the grand jury on other

occasions, he must have been guilty of the perjury charges. To

show a proper purpose, “the government must ‘clearly articulate

how that evidence fits into a chain of logical inferences’ without

adverting to a mere propensity to commit crime now based on

the commission of crime then.” Id. (quoting United States v.

Sampson, 980 F.2d 883, 887 (3d Cir. 1992)).

We are unpersuaded by Hawkins’s argument on this

point. The government argues that it introduced this evidence to

demonstrate Hawkins’s consciousness of his guilt of the

underlying charges, which we have recognized is a proper

purpose under Rule 404(b). See United States v. Gatto, 995 F.2d

449, 455 (3d Cir. 1993) (explaining that testimony was

“admissible under Rule 404(b) . . . to show consciousness of

guilt”); see also United States v. Rajewski, 526 F.2d 149, 158

(7th Cir. 1975) (“It is well-settled that untrue exculpatory

statements may be considered as circumstantial evidence of the

defendant’s consciousness of guilt.”). Throughout Hawkins’s

grand jury testimony, Hawkins defended his conduct essentially

by arguing that he was too wealthy to deign to involve himself in

the paltry corruption alleged in the case. For instance, after

being asked whether Hawkins was concerned that providing

money to Kemp constituted money laundering, Hawkins

responded: “Well, no ma’am, for the simple reason money

laundering is – first of all, because I had businesses all my

money came from. I made all my money from legitimate

61

sources. As a matter of fact I sold Checkers for 50 million

dollars and returned Burger King for 35 million dollars. So I’ve

never had any reason to launder money.” (App. at 14815.) This

response is illustrative of the general tenor of Hawkins’s grand

jury testimony, in which he sought to equate wealth with

innocence.21 Thus, the government’s evidence disproving these

claims of vast wealth effectively impeached what Hawkins

presented as an (unusual form of) alibi.

We also agree with the government that the District Court

did not abuse its discretion in determining that the evidence was

admissible under Rule 403. See United States v. Jemal, 26 F.3d

1267, 1272 (3d Cir. 1994) (“If judicial self-restraint is ever

desirable, it is when a Rule 403 analysis of a trial court is

reviewed by an appellate tribunal.” (internal quotation marks

omitted)). Given that we have frequently approved district

courts’ decisions to admit previous drug convictions against

defendants in subsequent drug prosecutions, see Sampson, 980

F.2d at 887 (“There is no question that, given a proper purpose

21

Similarly, after a grand juror asked Hawkins whether,

during the meeting with Khan, White, and Kemp, he discussed

using the Philadelphia pension funds to finance one of his

endeavors, Hawkins immediately harkened to his wealth. He

answered:

No. As a matter of fact to be perfectly honest with

you my partner is Bob Johnson. We own BET for

3.5 billion dollars. So back in 2002 we sold it as a

matter of fact to Viacom. So you know Bob Johnson

is a partner of mines, Ted Turner has been a partner

of mines. So we’ve got Leonard Greenwood. We

got five different companies that because I’ve been

so success[ful] in the fast food business that I have

partners that raise eight, nine billion dollars in

private placement that’s what we’re going to do. We

were putting, 250 million dollars was going to be

used in equity and the rest of the money was going

to be raised by Merrill Lynch. They’re going to

handle the debt.

(App. at 14822-23.)

62

and reasoning, drug convictions are admissible in a trial where

the defendant is charged with a drug offense.”), it cannot be, as

Hawkins argues, that the similarity between his other conduct

and charged conduct necessarily causes unfair prejudice.

Because evidence of Hawkins’s consciousness of guilt was of

high probative value to the government’s case, Hawkins faces a

high hurdle in showing that the danger of unfair prejudice

substantially outweighed the probative value. See Cross, 308

F.3d at 325 (“‘Rule 403 . . . does not generally require the

government to sanitize its case, to deflate its witnesses’

testimony, or to tell its story in a monotone.’” (quoting United

States v. Gartmon, 146 F.3d 1015, 1021 (D.C. Cir. 1998)).

While Hawkins attempts to surmount this hurdle by arguing that

the government presented this evidence to convince the jury that

Hawkins had committed crimes because of financial distress, we

are not persuaded. See, e.g., United States ex rel. Mertz v. State

of N.J., 423 F.2d 537, 541-42 (3d Cir. 1970) (recognizing this

danger). There is a substantial difference between financial

distress and not reaping huge profits from transactions, and the

District Court took care to protect Hawkins from the evidence of

the former by rejecting the government’s attempt to impeach

Hawkins’s statement that he was a multi-millionaire.22 We thus

conclude that the District Court did not abuse its discretion in

determining that the evidence was admissible under Rules 403

and 404.23

22

The District Court also limited the extent that financial

information could be admitted by requiring that the evidence be

presented succinctly and without confusing the jury.

23

We recognize that several courts of appeals have

concluded that evidence of consciousness of guilt is intrinsic to the

charged offense, and thus outside Rule 404. For instance, in

United States v. Simmons, 470 F.3d 1115, 1124-25 (5th Cir. 2006),

the Fifth Circuit permitted the government to introduce a

defendant’s prior testimony that he had given in a state trial

concerning an alleged sexual assault for the purpose of proving,

through other evidence, that those statements were false. Id. at

1125. The court explained:

Similarly, Simmons’ state-court testimony was not

63

Next, Hawkins argues that the District Court erred by

admitting a letter found in Kemp’s home as a co-conspirator

statement under Fed. R. Evid. 801(d)(2)(E). The letter, which

was dated March 20, 2002, and was addressed from Kemp to

Hawkins, stated: “Let me take this opportunity to thank you for

selecting me to serve in the capacity of a financial consultant for

your company. I look forward to working and sharing my

expertise with you in the very near future. Please feel free to

contact me at your convenience.” (App. at 13944.) In order to

admit a statement under Rule 801(d)(2)(E), a district court must

find, by a preponderance of the evidence: “(1) that a conspiracy

existed; (2) the declarant and the party against whom the

statement is offered were members of the conspiracy; (3) the

inadmissible under Rule 404(b) because it did not

constitute a separate extrinsic bad act. The prior

testimony was relevant to issues other than

Simmons’ bad character. It was introduced not to

show Simmons lied in the past, was a bad person,

and, therefore, must have sexually assaulted

Robinson; rather, it was introduced to show his

consciousness of guilt and that he had lied in order to

fabricate an alibi.

Id.; see also United States v. Frost, 234 F.3d 1023, 1025 (8th Cir.

2000) (“Frost’s testimony is direct evidence of fraudulent intent

and consciousness of guilt. It does not relate to ‘other acts,’ but

rather constitutes evidence intrinsic to the overall scheme. Rule

404 is therefore inapplicable.”); United States v. Ramirez-Jiminez,

967 F.2d 1321, 1327 (9th Cir. 1992) (explaining evidence that

defendant had lied to government agents when stopped during

crime was “probative of his consciousness that his conduct was

illegal” and therefore Rule 404(b) was inapplicable).

However, we have previously approved the admission of

evidence of consciousness of guilt under Rule 404. See Gatto, 995

F.2d at 455 (explaining that testimony was “admissible under Rule

404(b) . . . to show consciousness of guilt”). We thus follow our

precedent and examine this issue under Rule 404. Given that we

have concluded that consciousness of guilt is a proper purpose

under Rule 404, however, our analysis converges with that used by

the cases that hold Rule 404 inapplicable.

64

statement was made in the course of the conspiracy; and (4) the

statement was made in furtherance of the conspiracy.” United

States v. McGlory, 968 F.2d 309, 333 (3d Cir. 1992). We

exercise plenary review over these findings. Id.

We agree with the District Court that this letter was

admissible against Hawkins as the statement of an alleged co-

conspirator. While Hawkins argues that the government failed

to present any evidence besides this letter demonstrating that

Hawkins and Kemp were members of a conspiracy, that is

simply not true: just ten days before Kemp wrote this letter, he

had accepted a $5,000 check from Hawkins. The transfer of

money from Hawkins to Kemp could certainly have formed part

of the alleged conspiracy. It does not matter whether or not

Kemp actually mailed the letter to Hawkins, because its mere

existence provided evidence that Kemp knew of the

inappropriate nature of the $5,000 check from Hawkins.

Accordingly, we will affirm the District Court’s admission of the

letter.

Finally, Hawkins argues that the District Court erred by

admitting evidence concerning Kemp’s actual wedding date,

arguing that this evidence is inadmissible under Rules 401 and

403. According to Hawkins, this evidence was irrelevant

because he testified before the grand jury only that White told

him that Kemp’s wedding had recently occurred, not that it

actually had. As noted, “[w]e review a district court’s decision

to admit or exclude evidence for abuse of discretion, and such

discretion is construed especially broadly in the context of Rule

403.” Mathis, 264 F.3d at 326-27.

Again, we conclude that the District Court acted within its

discretion in admitting this evidence. As we have noted, Rule

401 does not set a high standard. See Steele, 685 F.2d at 808;

see also Sampson, 980 F.2d at 888 (stating that “the burden [on

the proponent of the evidence] is not onerous”). Just as evidence

that Kemp had recently been married would have made it more

probable that White had actually made this statement to

Hawkins, the fact that Kemp had been married so long ago made

it less probable. Moreover, Hawkins has failed to explain why

this evidence was unfairly prejudicial to him. He was free to

65

present his explanation that notwithstanding the date of Kemp’s

actual marriage, White had said that the $5,000 was for a

wedding present, and he did so in his closing argument.

Accordingly, we perceive no reason to conclude that the District

Court abused its “very substantial discretion” in admitting this

evidence. United States v. Ali, --- F.3d ----, 2007 WL 2049008

(3d Cir. 2007) (internal quotation marks omitted).

G. Hawkins’s Jury Instructions Challenge

Hawkins also challenges the jury instructions regarding

his conviction for aiding and abetting wire fraud, arguing that

the District Court failed to explain to the jury that it was required

to find Hawkins’s culpable participation in the specific scheme

charged in the indictment. Because Hawkins did not raise this

challenge until after the close of trial, we review for plain error.

Fed. R. Crim. P. 30(d). Under the plain error standard, we will

reverse the District Court only upon finding “(1) an error; (2)

that is plain; and (3) that affected substantial rights.” United

States v. Dobson, 419 F.3d 231, 236 (3d Cir. 2005). Here, we

find no error.

Hawkins argues that the jury instructions failed to

conform to Dobson’s requirement that the defendant culpably

participate in the illicit enterprise charged in the indictment. Id.

at 237. In Dobson, the defendant, Dobson, was charged with

mail fraud (among other things). Id. at 234. Dobson had

worked as a salesperson for Universal Liquidators (UL), which

claimed to be in the business of locating and reselling surplus

merchandise. Id. Dobson’s role was to convince individuals to

pay approximately $5,000 to UL for access to this merchandise,

which the individuals could then sell to the public at a profit. Id.

However, UL was a hoax – it was not actually able to connect

individuals with deeply discounted merchandise. Id. Further,

Dobson, while marketing this “opportunity,” made

misrepresentations of her own, such as claiming that by selling

merchandise acquired through UL she had made enough money

to purchase a horse ranch. Id. at 235.

We found that the District Court had committed plain

error because its jury instructions failed to “require[] a

66

determination of whether Dobson knowingly participated in

UL’s broader scheme to defraud.” Id. at 238. The instructions

merely called upon the jury to determine “whether the defendant

knowingly devised or participated in a scheme to defraud.” Id.

(emphasis added). We explained that the “case present[ed] two

layers of potential fraud or misrepresentation that do not

necessarily interconnect: (1) Dobson’s dubious sales

presentations; and (2) the fraudulent UL scheme charged in the

Indictment.” Id. While only the second kind of fraud was

charged in the indictment, the jury instructions permitted the jury

to convict upon finding either kind. Id. Accordingly, we held

that the instructions had “omitted the prosecution’s obligation to

show that Dobson knowingly devised or participated in the

broader UL scheme as charged in the Indictment.” Id.

At bottom, Dobson simply ensures that the jury

instructions require the jury to find that the defendant culpably

participated in the particular “illicit enterprise” that was charged

in the indictment. Id. at 237. We have no doubt that the jury

instructions in this case did so. The indictment charged Hawkins

with aiding and abetting honest services wire fraud.

Accordingly, the relevant scheme was the “scheme to defraud

the City of Philadelphia and its citizens of the right to defendant

COREY KEMP’s honest services.” (App. at 581.) The District

Court defined honest services fraud extensively, and then

referred the jurors to the verdict sheet, which, as relevant here,

charged Hawkins with aiding and abetting honest services wire

fraud. The Court explained that:

[O]nly a public official owes a duty of honest

services to the people he serves. Thus, of the

defendants in this case, only Kemp is a public

official. Each of the other defendants, who are

private citizens, by himself or herself may not

commit a substantive offense of honest services

fraud as charged in the indictment.

However, you may nevertheless find one or

more of the other defendants guilty of honest

services fraud, if you find beyond a reasonable doubt

that such a defendant aided and abetted; that is,

assisted a public official who was committing this

67

crime to commit this crime.

(App. at 9652.)

The District Court went on to instruct the jury that:

Before a defendant may be held responsible for

aiding and abetting others in the commission of a

crime, it is necessary that the government prove

beyond a reasonable doubt that the defendant

knowingly and deliberately associated himself or

herself in some way with the crime charged and

participated in it with the intent to commit the crime.

In order to be found guilty of aiding and

abetting the commission of a crime, the government

must prove beyond a reasonable doubt that the

defendant:

First, knew that the crime charged was

to be committed or was being committed.

Second, knowingly did some act for

the purpose of aiding the commission of that crime.

And third, acted with the intention of

causing the crime charged to be committed.

(App. at 9653.)

These instructions contained the direct link between

Hawkins’s actions and the specific scheme that was charged in

the indictment – the scheme to deprive the public of Kemp’s

honest services – that was lacking in Dobson. The instructions

left no danger that Hawkins would be convicted for aiding and

abetting some other scheme. Accordingly, we conclude that the

instructions are consistent with Dobson’s teaching, and we reject

Hawkins’s argument.

H. District Court’s Questioning the Jury and

Discharging Juror 11

1. Individual Questioning

All appellants argue vigorously that the District Court

should not have questioned the jurors about Juror 11's alleged

68

misconduct. We review “a trial court’s response to allegations

of juror misconduct for abuse of discretion.” United States v.

Boone, 458 F.3d 321, 326 (3d Cir. 2006). Here, we conclude

that the District Court acted within its discretion when it

individually questioned the jurors.

We have recently had occasion to set forth the applicable

legal standard governing the district courts’ latitude to question

jurors during deliberations about allegations of misconduct. In

Boone, we recognized that “[i]t is beyond question that the

secrecy of deliberations is critical to the success of the jury

system.” Id. at 329. At the same time, we emphasized that “[i]t

is also manifest, however, that a juror who refuses to deliberate

or who commits jury nullification violates the sworn jury oath

and prevents the jury from fulfilling its constitutional role.” Id.

Attempting to reconcile these disparate values, we held that

“where substantial evidence of jury misconduct – including

credible allegations of jury nullification or of a refusal to

deliberate – arises during deliberations, a district court may,

within its sound discretion, investigate the allegations through

juror questioning or other appropriate means.” Id. We stressed

that a district court, “based on its unique perspective at the

scene, is in a far superior position than this Court to

appropriately consider allegations of juror misconduct, both

during trial and during deliberations.” Id.

Applying that legal principle in Boone, we affirmed the

District Court’s decision to question a juror after the Court

received a note stating:

We have some serious concern about one of our

fellow jurors. He has told . . . all of us several times

that his best friend is a cop, and he has several guns,

some unregistered and being stored at his friend’s

house. This leads us to believe that he lied on his

initial questionnaire for jury selection. Also, he

refuses to discuss certain [counts] because he had his

mind made up before we started deliberating. He has

said he does not believe anything the police said and

thinks everyone is lying. We feel this seriously

affects our deliberations. Our votes are 11 to [ ] 1 on

69

four [counts] and we have agreed on four. The juror

in question has stated they will not change their mind

[sic] and does not want to work at any evidence or

discuss any testimony. We seem to be at an impasse.

Please help us. Thank you, [jury foreperson].

Id. at 324 (alterations in original). The appellant argued that this

note presented insufficient justification for the District Court to

question the juror. We rejected that argument, explaining that

“[a]lthough this evidence was far from unambiguous, there was a

sufficient indication that Juror X was violating his oath to

provide discretion to the trial judge to investigate further.” Id. at

330.

Accordingly, the legal standard is clear: a district court

may investigate allegations of juror misconduct when presented

with “substantial evidence” of that misconduct. All appellants

protest that the District Court here was not presented with

substantial evidence of misconduct.

The first individualized investigation was precipitated by

two notes: one accused a juror of being biased, while another

accused a juror of refusing to consider evidence and deliberate.

This evidence is at least as strong as that presented in Boone,

and, recognizing that the District Court was in the best position

to understand and respond to the exigencies of the situation, we

conclude that those notes amounted to “substantial evidence of

jury misconduct.”

The District Court’s second voir dire was also an

acceptable use of its discretion. It is true that the note that

prompted this investigation was ambiguous: a court could have

read the note either to state that further deliberations would be

useless because the jurors simply could not agree or because one

juror was violating her oath by failing to participate. While the

note alone may have been insufficient to justify questioning the

jurors a second time, the District Court was not operating from a

blank slate. The District Court had previously fielded

complaints from jurors – both by note and during the first

questioning – that Juror 11 was failing to deliberate. Thus, the

District Court certainly could have interpreted this note to allege

70

further misconduct, which, taken in tandem with previous

allegations, was sufficient to permit the District Court to exercise

its discretion to investigate further. See Boone, 458 F.3d at 330

(stating that “[t]he fact that a different judge may have chosen

not to conduct a[n] investigation is irrelevant”). Accordingly,

we conclude that the District Court acted within its discretion in

choosing to conduct a second session of individual questioning.

Finally, the third investigation was also appropriate. This

series of questioning was prompted by the District Court’s

receiving two notes: the first claimed that a juror was biased, and

the second exhorted the judge to question the jurors. A specific

allegation of bias, made after the District Court had exhaustively

instructed the jurors on proper and improper bias, provided

substantial evidence of juror misconduct.

While it may be more intrusive to question each juror

individually, as occurred here, than only the subject of the

allegation of misconduct, as occurred in Boone, we nevertheless

conclude that the District Court acted well within its discretion

when it used the more-expansive mode of investigation. We

have recognized that there are times in which individual

questioning is the optimal way in which to root out misconduct,

see United States v. Resko, 3 F.3d 684, 686 (3d Cir. 1993)

(holding that district court’s use of questionnaire, instead of, for

instance, individualized voir dire, was “inadequate to enable the

court to fulfill its responsibility of providing an appropriate

cautionary instruction and of determining whether prejudice

resulted from the jury misconduct”); United States v. Console,

13 F.3d 641, 667 (3d Cir. 1993) (calling individual voir dire the

“method of inquiry [that] we have preferred”), and that the

District Court must utilize procedures that will “provide a

reasonable assurance for the discovery of prejudice,” Martin v.

Warden, Huntingdon State Corr. Inst., 653 F.2d 799, 807 (3d

Cir. 1981). Crucially, the District Court took care to limit its

questions to appropriate matters that did not touch on the merits

of the jury’s deliberation, and expressly informed each juror on

multiple occasions that he or she should not reveal the substance

of the deliberations. See United States v. Edwards, 303 F.3d

606, 634 n.16 (5th Cir. 2002) (explaining that “the district court

was very careful; it insisted that the jurors refrain from

71

describing the content and method of their deliberations”). As

we have recognized, the District Court was in the best position to

evaluate what kind of investigation the circumstances demanded,

see Boone, 458 F.3d at 329; here, its decision was reasonable.

Accordingly, we conclude that the District Court acted within its

discretion to question the jurors on all three occasions.

2. Discharging Juror 11

All appellants also assert that the District Court erred by

dismissing Juror 11. We review the dismissal of a juror for

cause for abuse of discretion. See United States v. Gambino, 788

F.2d 938, 949 (3d Cir. 1986). Here, the District Court acted

within its discretion in discharging Juror 11.

While it is undisputed that in certain circumstances,

district courts may discharge a juror for cause during

deliberations, see Fed. R. Crim. P. 23(b), we have yet to

enunciate the appropriate standard.24 Any standard must

accommodate two clashing interests. First, it is clear that “a

court may not dismiss a juror during deliberations if the request

for discharge stems from doubts the juror harbors about the

sufficiency of the government’s evidence.” United States v.

Brown, 823 F.2d 591, 596 (D.C. Cir. 1987). Any other rule

would eviscerate the right to a unanimous verdict of guilt. See

id. On the other hand, courts agree that a district court has the

authority to dismiss a juror – even during deliberations – if “that

juror refuses to apply the law or to follow the court’s

instructions.” United States v. Abbell, 271 F.3d 1286, 1302

(11th Cir. 2001) (per curiam). That is because “a juror who

refuses to deliberate or who commits jury nullification violates

the sworn jury oath and prevents the jury from fulfilling its

constitutional role.” Boone, 458 F.3d at 329. While the

jurisprudence discussing the discharge of jurors during

deliberations has largely focused on a refusal to deliberate or

jury nullification, its reasoning applies with equal force to claims

24

We expressly left this issue open in Boone. See 458 F.3d

at 329 n.4.

72

of juror bias.25 Cf. Gov’t of V.I. v. Dowling, 814 F.2d 134, 139

(3d Cir. 1987) (“The trial court’s finding [of whether a juror is

biased] is a finding of ‘historical fact: did a juror swear that he

could set aside any opinion he might hold and decide the case on

the evidence, and should the juror’s protestation of impartiality

have been believed.’” (quoting Patton v. Yount, 467 U.S. 1025,

1036 (1984)).

Because of the danger that a juror will be discharged

based on that juror’s view of the evidence, courts “apply a tough

legal standard.” Abbell, 271 F.3d at 1302. In Brown, for

instance, the D.C. Circuit held that “if the record evidence

discloses any possibility that the request to discharge stems from

the juror’s view of the sufficiency of the government’s evidence,

the court must deny the request.” 823 F.2d at 596. Similarly, in

United States v. Thomas, 116 F.3d 606 (2d Cir. 1997), the

Second Circuit adopted the “any possibility” standard set forth in

Brown. Id. at 622.

Subsequently, however, courts have slightly modified that

language. The Ninth Circuit has held that “if the record

evidence discloses any reasonable possibility that the impetus

for a juror’s dismissal stems from the juror’s views on the merits

of the case, the court must not dismiss the juror.” United States

v. Symington, 195 F.3d 1080, 1087 (9th Cir. 1999). The court

determined that it was necessary to include the word

“reasonable,” given that “[i]t may be that ‘[a]nything is possible

in a world of quantum mechanics.’” Id. at 1087 n.5 (second

alteration in original) (quoting United States v. Watkins, 983

25

We note that in many instances of bias, a district court

will be able to focus on the existence of a particular act that gives

rise to the bias. See, e.g., United States v. Egbuniwe, 969 F.2d 757,

763 (9th Cir. 1992) (source of anti-prosecution bias stemmed from

a particular incident of an alleged “false arrest and rough treatment

of [a juror’s] girlfriend by law enforcement officers”). The rule we

announce today does not apply to the type of bias that does not

require the District Court to investigate a topic that implicates the

secrecy of jury deliberations. See Symington, 195 F.3d at 1087 n.6;

Thomas, 116 F.3d at 621.

73

F.2d 1413, 1424 (7th Cir. 1993) (Easterbrook, J., dissenting)).

Similarly, in Abbell, the Eleventh Circuit held that “a juror

should be excused only when no ‘substantial possibility’ exists

that she is basing her decision on the sufficiency of the

evidence.” 271 F.3d at 1302. The court explained that it meant

for the standard to “be basically a ‘beyond reasonable doubt’

standard,” that it intended district courts to apply the “substantial

possibility” standard, and that it would then review the district

courts’ factual findings for clear error. Id. at 1302-03.

While there is a slight difference in the standards as

expressed by the D.C. and Second Circuits as compared to the

Ninth and Eleventh Circuits, we believe that the difference is

one of clarification and not disagreement. To the extent that

there is a difference, we believe that the articulation of the Ninth

and Eleventh Circuits is superior. That standard will allow us to

avoid abstract “anything is possible” arguments, provide district

courts with some leeway in handling difficult juror issues, and

protect each party’s right to receive a verdict rendered by a jury

that follows the law. At the same time, the standard is by no

means lax: it corresponds with the burden for establishing guilt

in a criminal trial, so we are confident that it will adequately

ensure that jurors are not discharged simply because they are

unimpressed by the evidence presented.26 We adopt such a high

26

The need for such a high standard prior to dismissal

comes from a federal criminal defendant’s Sixth Amendment right

to a unanimous jury verdict. If the Government is able to remove

a holdout juror because of ambiguous allegations of improper

behavior during deliberations, and replace this holdout with a more

amenable juror, then the defendant’s constitutional right to a

unanimous verdict has been violated. Put differently, each juror

must find the defendant guilty beyond a reasonable doubt. We are

convinced that the “beyond a reasonable doubt” standard best

protects a defendant’s constitutional right to a unanimous verdict.

A hypothetical illustrates our concerns. Assume that Juror X is a

holdout. Assume that Juror X wants to vote to acquit the

defendant. If a district court finds, by a mere preponderance of the

evidence, that Juror X’s act of holding out is causally due to bias,

then there is an up to 49% chance that Juror X’s belief in acquittal

74

standard in part because, as a result of our recent decision in

Boone, a district court in the Third Circuit has more leeway to

investigate juror misconduct than in other circuits. See, e.g.,

Symington, 195 F.3d at 1086; Thomas, 116 F.3d at 618-21;

Brown, 823 F.2d at 596. Accordingly, we hold that the district

courts may discharge a juror for bias, failure to deliberate, failure

to follow the district court’s instructions, or jury nullification

when there is no reasonable possibility that the allegations of

misconduct stem from the juror’s view of the evidence.

Here, the evidence supporting the District Court’s

conclusion is overwhelming. The District Court carefully and

correctly instructed the jurors on the distinction between

permissible and impermissible bias, and during the final voir

dire, ten jurors reported that Juror 11 was improperly biased.27

Significantly, the District Court ruled that Juror 11 was not

credible, and we see no reason to upset that conclusion. See Kirk

v. Raymark Indus., Inc., 61 F.3d 147, 153 (3d Cir. 1995)

(stressing that “the district court should not rely simply on the

is causally traced to Juror X’s belief in the defendant’s innocence.

But if Juror X is removed from the jury, then the defendant loses

out on having a holdout juror who legitimately (i.e., on the merits)

believes that the government has not satisfied its “guilty beyond a

reasonable doubt” standard. The only way to satisfy the

defendant’s constitutional right to a unanimous verdict in the juror

discharge context is to only permit removal when the District Court

finds, beyond a reasonable doubt, that the holdout’s reasons were

not related to the merits of the case.

27

We also note that, in this case at least, the final interview

with the jurors controls the inquiry. Even though – among other

complaints – the jurors claimed that Juror 11 was biased before the

first voir dire and immediately after the

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