United States v. Chaka Fattah, Sr.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

Nos. 16-4397, 16-4410, 16-4411,

16-4427, 17-1346

_____________

UNITED STATES OF AMERICA

Appellant in 17-1346

v.

CHAKA FATTAH, SR.,

Appellant in 16-4397

KAREN NICHOLAS,

Appellant in 16-4410

ROBERT BRAND,

Appellant in 16-4411

HERBERT VEDERMAN,

Appellant in 16-4427

_____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

District Court Nos. 2-15-cr-00346-001,

2-15-cr-00346-002, 2-15-cr-00346-003,

1

2-15-cr-00346-004

District Judge: The Honorable Harvey Bartle III

Argued January 18, 2018

Before: SMITH, Chief Judge, GREENAWAY, JR., and

KRAUSE, Circuit Judges

(Filed: August 9, 2018 )

Andrea G. Foulkes

Eric L. Gibson

Paul L. Gray

Robert A. Zauzmer

Office of United States Attorney

615 Chestnut Street

Suite 1250

Philadelphia, PA 19106

Jonathan Ian Kravis [ARGUED]

United States Department of Justice

Criminal Division, Public Integrity Section

1400 New York Avenue, N.W.

Washington, DC 20005

Counsel for the United States

Mark M. Lee

Bruce P. Merenstein [ARGUED]

Samuel W. Silver

Schnader Harrison Segal & Lewis

1600 Market Street

Suite 3600

2

Philadelphia, PA 19103

Counsel for Appellant Fattah

Ann C. Flannery [ARGUED]

Suite 2700

1835 Market Street

Philadelphia, PA 19103

Lisa A. Mathewson

Suite 810

123 South Broad Street

Philadelphia, PA 19109

Counsel for Appellant Nicholas

Alan Silber

Pashman Stein Walder Hayden

21 Main Street

Suite 200

Hackensack, NJ 07601

Counsel for National Association of Criminal

Defense Lawyers, Amicus Appellant Nicholas

Mira E. Baylson

Barry Gross [ARGUED]

Meredith C. Slawe

Drinker Biddle & Reath

One Logan Square

Suite 2000

Philadelphia, PA 19103

Counsel for Appellant Brand

3

Henry W. Asbill

Buckley Sandler

1250 24th Street, N.W.

Suite 700

Washington, DC 20037

Glen D. Nager [ARGUED]

Jacob M. Roth

Julia W. M. F. Sheketoff

Jones Day

51 Louisiana Avenue, N.W.

Washington, DC 20001

Counsel for Appellant Vederman

________________

OPINION

________________

SMITH, Chief Judge.

4

Table of Contents

I. Introduction .......................................................................... 7

II. Background ......................................................................... 7

A. The Fattah for Mayor Scheme ........................................ 8

1. The Lord Loan and Its Repayment .............................. 8

2. The College Tuition Component of the FFM

Scheme ...................................................................... 23

3. The NOAA Grant and the Phantom Conference ....... 24

B. The Blue Guardians Scheme ........................................ 26

C. The Fattah–Vederman Bribery Scheme ....................... 28

D. The Indictment and Trial .............................................. 34

III. Juror Misconduct and Dismissal of Juror 12 ................... 50

A. Investigation of Alleged Juror Misconduct .................. 50

B. Dismissal of Juror 12 .................................................... 55

IV. The District Court’s Instructions Under McDonnell ...... 60

A. The McDonnell Framework ......................................... 61

B. The Kirk Meeting ......................................................... 65

C. Fattah’s Efforts to Secure Vederman an

Ambassadorship ................................................................ 68

D. The Zionts Hiring ......................................................... 70

E. Vederman’s Sufficiency Challenge to Counts 16–18 and

22–23 ................................................................................. 76

F. Blue Guardians .............................................................. 79

5

V. Sufficiency of the Evidence for the RICO Conspiracy

Conviction ............................................................................. 82

VI. Variance from the Indictment and Sufficiency of the

Evidence for Count 2 ............................................................. 95

VII. The District Court’s Instruction to the Jury on the

Meaning of Intent ................................................................ 103

VIII. Sending the Indictment to the Jury ............................. 108

IX. The District Court’s Evidentiary Rulings ..................... 111

A. The District Court’s Application of Rule 404(b) ....... 111

B. Evidentiary Rulings Regarding Nicholas’s Defense .. 115

1. The EAA Board Minutes......................................... 115

2. Jones’ Memory Regarding Other Contracts ............ 118

3. Exclusion of NOAA Evidence ................................ 118

C. The Cooperating Witness’s Mental Health Records .. 119

1. The District Court’s Denial of Access to the Mental

Health Records ........................................................ 121

2. The District Court’s Grant of the Motion in

Limine ..................................................................... 123

X. The Government’s Cross-Appeal ................................... 127

A. CUMA is a Mortgage Lending Business ................... 128

B. Sufficiency of the Evidence ........................................ 134

XI. Prejudicial Spillover ...................................................... 136

A. Fattah’s Claim of Prejudicial Spillover ...................... 137

B. Vederman’s Assertion of Prejudicial Spillover .......... 139

XII. Conclusion ................................................................... 142

6

I. Introduction

Chaka Fattah, Sr., a powerful and prominent fixture in

Philadelphia politics, financially overextended himself in both

his personal life and his professional career during an

ultimately unsuccessful run for mayor. Fattah received a

substantial illicit loan to his mayoral campaign and used his

political influence and personal connections to engage friends,

employees, and others in an elaborate series of schemes aimed

at preserving his political status by hiding the source of the

illicit loan and its repayment. In so doing, Fattah and his allies

engaged in shady and, at times, illegal behavior, including the

misuse of federal grant money and federal appropriations, the

siphoning of money from nonprofit organizations to pay

campaign debts, and the misappropriation of campaign funds

to pay personal obligations.

Based upon their actions, Fattah and four of his

associates—Herbert Vederman, Robert Brand, Bonnie

Bowser, and Karen Nicholas—were charged with numerous

criminal acts in a twenty-nine count indictment. After a jury

trial, each was convicted on multiple counts. All but Bowser

appealed. As we explain below, the District Court’s judgment

will be affirmed in part and reversed in part.

II. Background 1

During the 1980s and ’90s, Fattah served in both houses

of the Pennsylvania General Assembly, first as a member of

the House of Representatives and later as a Senator. In 1995,

1

The facts are drawn from the trial record unless otherwise

noted.

7

Fattah was elected to the United States House of

Representatives for Pennsylvania’s Second Congressional

District. In 2006, Fattah launched an unsuccessful run for

Mayor of Philadelphia, setting in motion the events that would

lead to his criminal conviction and resignation from Congress

ten years later.

A. The Fattah for Mayor Scheme

Fattah declared his candidacy for mayor in November

of 2006. Thomas Lindenfeld, a political consultant on Fattah’s

exploratory committee, believed that “[a]t the beginning of the

campaign, [Fattah] was a considerable . . . candidate and

somebody who had a very likely chance of success.” JA1618.

But Fattah’s campaign soon began to experience difficulties,

particularly with fundraising. Philadelphia had adopted its

first-ever campaign contribution limits, which limited

contributions to $2,500 from individuals and $10,000 from

political action committees and certain types of business

organizations. Fattah’s fundraising difficulties led him to seek

a substantial loan, far in excess of the new contribution limits.

1. The Lord Loan and Its Repayment

While serving in Congress, Fattah became acquainted

with Albert Lord, II. The two first met around 1998, when Lord

was a member of the Board of Directors of Sallie Mae.

As the May 15, 2007 primary date for the Philadelphia

mayoral race approached, Fattah met Lord to ask for

assistance, telling Lord that the Fattah for Mayor (FFM)

campaign was running low on funds. Fattah asked Lord to meet

with Thomas Lindenfeld, a political consultant in Washington,

8

D.C., and part-owner of LSG Strategies, Inc. (Strategies), a

company that was working with the FFM campaign and that

specialized in direct voter contact initiatives. Lindenfeld had

been part of the exploratory group that initially considered

Fattah’s viability as a candidate for mayor. Lindenfeld had

known Fattah since 1999, when Fattah endorsed Philadelphia

Mayor John Street. Through Fattah, Lindenfeld had also gotten

to know several of Fattah’s associates, including Herbert

Vederman, Robert Brand, and Bonnie Bowser. Herbert

Vederman, a businessman and former state official, was the

finance director for the FFM campaign. Robert Brand owned

Solutions for Progress (Solutions), a “Philadelphia-based

public policy technology company, whose mission [was] to

deliver technology that directly assists low and middle income

families [in obtaining] public benefits.” JA6551. Bowser was

Fattah’s Chief of Staff and campaign treasurer, and served in

his district office in Philadelphia.

Lord’s assistant contacted Lindenfeld to arrange a

meeting, and Lindenfeld informed Fattah that he would be

meeting with Lord. Lindenfeld, along with his partner, Michael

Matthews, met with Lord and discussed Fattah’s need for funds

to mount an intensive media campaign. After that meeting,

Lindenfeld reported to Fattah that Lord wanted to help, but that

they had not discussed a specific dollar amount.

Approximately a week later, Fattah instructed Lindenfeld to

meet with Lord a second time. Lord “wanted to know if he

could give a substantial amount of money, a million dollars” to

Fattah’s campaign. JA1630. That prompted Lindenfeld to reply

that the amount “would be beyond the campaign finance

limits.” Id.

9

Lord proposed a solution: he offered to instead give a

million dollars to Strategies in the form of a loan. To that end,

Lindenfeld had a promissory note drafted which specified that

Lord was lending Strategies $1 million, and that Strategies

promised to repay the $1 million at 9.25% interest, with

repayment to commence January 31, 2008. Lindenfeld later

acknowledged that the promissory note would make it appear

as though Lord’s $1 million was not a contribution directly to

the Congressman, although he knew that it was actually a loan

to the FFM campaign. Indeed, Lindenfeld confirmed with

Fattah that neither Lindenfeld nor Strategies would be

responsible for repayment. With that understanding,

Lindenfeld executed both the note and a security agreement

purporting to encumber Strategies’ accounts receivable and all

its assets.

On May 1, shortly before the primary election, Lord

wired $1 million to Lindenfeld. Lindenfeld held the money in

Strategies’ operating account until Fattah told him how it was

to be spent. Some of the money was eventually used for print

materials mailed directly to voters. And, at Fattah’s direction,

Lindenfeld wired a substantial sum to Sydney Lei and

Associates (SLA), a company owned by Gregory Naylor which

specialized in “get out the vote” efforts.

Naylor had known Fattah for more than 30 years. 2

During the campaign, Naylor worked as the field director and

2

Naylor first worked with Fattah when he was in the state

legislature. When Fattah was elected to Congress, Naylor

worked in his Philadelphia office. Naylor met Nicholas when

she joined Fattah’s staff at some point in the 1990s. After

concluding her employment with Fattah’s office, Nicholas

10

was in charge of getting out the vote on election day. On the

final day of the campaign, Naylor worked with Vederman, who

allowed Naylor to use his credit card to rent vans that would

transport Fattah voters to the polls.

As the primary date neared, Fattah and Naylor knew the

campaign was running out of money. The campaign was

unable to finance “media buys,” and Naylor needed money for

field operations to cover Philadelphia’s more than one

thousand polling places. In early May, Lindenfeld called

Naylor to say that Lindenfeld “would be sending some money

[Naylor’s] way.” JA3057. Within days, SLA received a six-

figure sum for Naylor to use in the campaign and on election

day. Naylor used the money to pay some outstanding bills,

including salaries for FFM employees, and allocated $200,000

to field operations for election day.

Fattah lost the mayoral primary on May 15, 2007.

Afterward, Lindenfeld spoke with Fattah, Naylor and Bowser

about accounting for the FFM campaign money from Lord that

had been spent. They decided that the amounts should not

appear in the FFM campaign finance reports, and Fattah

instructed Naylor to have his firm, SLA, create an invoice.

Naylor did so, creating an invoice dated June 1, 2007 from

SLA to FFM, seeking payment of $193,580.19. Naylor later

acknowledged that the FFM campaign did not actually owe

money to SLA, and that the false invoice was created to “hide

worked with the Educational Advancement Alliance (EAA),

an education nonprofit entity founded by Fattah. This entity

helped to recruit underrepresented students for scholarship and

college opportunities. Around 2009, Naylor left Fattah’s office

to work exclusively with SLA. Naylor also knew Brand.

11

the transaction that took place earlier” and “make it look like

[SLA] was owed money.” JA3075–76. Although FFM did not

owe SLA anything for the election day expenses, the FFM

campaign finance reports from 2009 through 2013 listed a

$20,000 in-kind contribution from SLA for each year, thereby

lowering FFM’s alleged outstanding debt to SLA.

Of the total $1 million Lord loan, $400,000 had not been

spent. Lindenfeld returned that sum to Lord on June 3, 2007.

He included a cover letter which stated: “As it turns out the

business opportunities we had contemplated do not seem to be

as fruitful as previously expected.” JA1254. Lindenfeld later

admitted that there were no such “business opportunities” and

that the letter was simply an effort to conceal the loan.

In late 2007, faced with financial pressures, Lord asked

his son, Albert Lord, III, to collect the outstanding $600,000

balance on the loan to Strategies. Lord III contacted Lindenfeld

about repayment and expressed a willingness to forgive the

interest owed if the principal was paid. Lindenfeld immediately

called Fattah and informed him that repayment could not be

put off any longer. Fattah told Lindenfeld more than once that

“[h]e would take care of it,” JA1652, but Fattah did not act.

Needing someone who might have Fattah’s ear, Lindenfeld

reached out to Naylor and Bowser. Naylor talked to Fattah on

several occasions and told him that Lindenfeld was under

considerable pressure to repay the loan. Fattah told Naylor

more than once that he was “working on it.” JA3082–83.

During his political career, Fattah had focused on

education, especially for the underprivileged. Indeed, Fattah

founded two nonprofit organizations: College Opportunity

12

Resources for Education (CORE), and the Educational

Advancement Alliance (EAA).

EAA held the annual Fattah Conference on Higher

Education (the “annual conference”) to acquaint high school

students with higher education options. JA3079. Sallie Mae

regularly sponsored the conference. According to Raymond

Jones, EAA’s chairman of the board from 2004 through 2007,

EAA offered a variety of programs to provide “marginalized

students with educational opportunities so they could continue

and go to college.” JA1360. EAA was funded with federal

grant money which could only be spent for the purposes

described in the particular grant. Karen Nicholas served as

EAA’s executive director, handling the organization’s day-to-

day administrative responsibilities. Nicholas had previously

been a staffer for Fattah when he was a member of

Pennsylvania’s House of Representatives.

CORE was an organization that awarded scholarships to

graduating high school students in Philadelphia who had

gained admission to a state university or the Community

College of Philadelphia. CORE received funding from a

variety of sources, including Sallie Mae. Because CORE also

received federal funds, and because EAA had experience

working with federal grants, EAA received and handled the

federal funds awarded to CORE. In short, EAA functioned as

a fiduciary for CORE. When money became a problem for the

FFM campaign, Fattah’s involvement with EAA and CORE

soon became less about helping underprivileged students, and

more about providing an avenue for disguising efforts to repay

the illicit campaign funds from Lord.

13

On January 7, 2008, Robert Brand contacted Fattah by

telephone. Shortly thereafter, Lindenfeld received an

unexpected call from Brand proposing an arrangement for

Brand’s company, Solutions, to work with Strategies.

Solutions had developed a software tool called “The Benefit

Bank,” which was designed to “assist low and moderate

income families to have enhanced access to benefits and

taxes.” JA1993. During the telephone call, Brand referred to

The Benefit Bank and suggested a contract under which

Strategies would be paid $600,000 upfront. JA1666. Shortly

thereafter, on January 9, 2008, Brand followed up on his call

to Lindenfeld with an email about “develop[ing] a working

relationship where you could help us to grow The Benefit Bank

and our process of civic engagement. While I know this is not

your core business I would like to try to convince you to take

us on as a client.” JA6427. Lindenfeld responded that he was

interested. To Lindenfeld, “this was the way that Congressman

Fattah was going to repay the debt to Al Lord.” JA1654. When

Lindenfeld called Fattah and told him of the contact from

Brand, Fattah simply replied that Lindenfeld “should just

proceed.” JA1666–67.

A few days later, Brand emailed Nicholas at EAA a

proposal from Solutions concerning The Benefit Bank, which

sought EAA’s support in developing an education edition of

The Benefit Bank and a $900,000 upfront payment.

As the January 31 date for repayment of the balance of

the $1 million Lord loan approached, a flurry of activity took

place. On January 24, both Raymond Jones, chair of the EAA

Board, and Nicholas signed a check from EAA made out to

Solutions in the amount of $500,000. Although no contract

existed between EAA and Solutions, the memo line of the

14

check indicated that it was for a contract, and Nicholas entered

it into EAA’s ledger. 3

That same day, Ivy Butts, an employee of Strategies,

emailed Lindenfeld the instructions Brand would need to wire

the $600,000 balance on the Lord loan. Within minutes,

Lindenfeld forwarded that email to Brand at Solutions. Brand

then made two telephone calls to Fattah. By late afternoon,

Brand emailed Nicholas, informing her that he had “met with

all the people I need to meet with and have a pretty clear

schedule of what works best for us. I am also seeing what line

of credit we have to stretch out the payments until you get your

line of credit in place.” JA6558. Brand asked if they could talk

and “finalize this effort.” JA6558. On January 25 and 26, there

were a number of calls between Fattah, Brand, and Nicholas.

On Sunday January 27, at 5:46 pm, Brand telephoned

Fattah. At 10:59 pm, Brand emailed Nicholas a revised

contract between EAA and Solutions for the engagement of

services. Brand indicated he would send someone to pick up

the check at about 1:00 pm the following day. The revised

contract called for the same $900,000 payment from EAA to

3

Raymond Jones, who was EAA’s Chairman of the Board

from 2004 through 2007, recalled at trial that the Board had a

limit on the amount that Nicholas could spend without board

approval. JA1358, 1369. Nicholas was authorized to sign

contracts on behalf of EAA for no more than $100,000.

JA1369–71. Jones did not recall the contract between EAA and

Solutions, nor did the EAA board minutes for December 2007,

February 2008, or May 2008 refer to the EAA–Solutions

contract or to the substantial upfront payment of half a million

dollars upon execution of the agreement. JA6358–63; 6567.

15

Solutions, yet specified that $500,000 was to be paid on

signing, with $100,000 due three weeks later, and another

$100,000 to be paid six weeks out. No due date for the

$200,000 balance was specified. The terms of the contract

called for EAA to assist Solutions with further developing The

Benefit Bank. In addition, under the contract, EAA would

receive certain funds from the Commonwealth of Pennsylvania

for a program relating to FAFSA applications. 4

The same evening, Brand sent Lindenfeld a contract

entitled “Cooperative Development Agreement to Provide

Services to Solutions for Progress, Inc. for Growth of The

Benefit Bank.” JA6569. The agreement proposed a working

partnership in which Strategies would work with Solutions to

identify and secure a Benefit Bank affiliate in the District of

Columbia and two other states, and to facilitate introductions

to key officials in other states where The Benefit Bank might

expand. The terms of the agreement provided that Solutions

would pay $600,000 to Strategies by January 31, 2008, which

would “enable [Strategies’] team to assess opportunities and

develop detailed work plans for each area.” JA6572. Brand

copied Solutions’ Chief Financial Officer, Michael Golden.

Lindenfeld responded to Brand’s email within a minute, asking

if Brand had received the wiring instructions. Brand

immediately confirmed that he had.

Concerned that Solutions did not have $600,000 to pay

Strategies, Golden talked to Brand, who informed him that

Solutions would be receiving a check for $500,000 from EAA.

Early the next morning, Nicholas responded to Brand’s email

4

FAFSA is an acronym for Free Application for Federal

Student Aid.

16

from the night before. She advised Brand that he could pick up

the check, “but as I stated I am not in a position to sign a

contract committing funds that I am not sure that I will have.”

Gov’t Supp. App. (GSA) 1. That same day, a $540,000 transfer

was made from the conference account, which EAA handled,

into EAA’s checking account. The conference account was

maintained to handle expenses for Fattah’s annual higher

education conference. Prior to this transfer, EAA had only

$23,170.95 in its account. EAA then tendered a $500,000

check to Solutions, which promptly deposited the check before

the close of that day’s business. EAA never replenished the

$540,000 withdrawal from the conference account.

Brand received the executed contract between Solutions

and Strategies on January 28. Even though the contract called

for Strategies to perform services in exchange for the $600,000

payment, Lindenfeld neither expected to do any work for the

$600,000, nor did he in fact do any work.

In sum, by January 28, Solutions had received $500,000

from EAA, but it still had to come up with $100,000 to provide

Strategies with the entire amount needed to repay the Lord

loan. Golden obtained the needed funds the following day by

drawing $150,000 on a line of credit held by Brand’s wife.

Brand and Fattah spoke four more times on the telephone on

January 29. Trial evidence later showed that, during the month

of January 2008, neither the FFM campaign bank account nor

Fattah’s personal account had a sufficient balance to fund a

$600,000 payment.

On the morning of January 30, frustrated by the delay,

Lindenfeld sent Brand an email with a subject line “You are

killing me.” JA6430. Lindenfeld stated that he had “made a

17

commitment based on yours to me. Please don’t drag this out.

I have a lot on the line.” Id. Brand responded late in the

afternoon, stating: “just met with Michael. He does the transfer

at 8 AM tomorrow. It should be in your account ($600K) early

tomorrow morning.” Id. Lindenfeld replied: “The earlier the

better.” Id. The following morning, Golden wired $600,000

from Solutions’ Pennsylvania bank account into Strategies’

Washington D.C. bank account. JA2745, 2874. Strategies in

turn, wired the same amount from its Washington D.C. bank

account to Lord’s bank account in Virginia. JA2874, 6549.

Around noon, Brand telephoned Lindenfeld.

In the days following the exhaustive efforts to meet the

January 31 loan repayment deadline, four more telephone calls

took place between Brand and Fattah. 5 Naylor learned at some

point that the loan had been paid off. When Naylor asked

Fattah about details of the repayment, Fattah simply replied

“[t]hat it went through EAA to Solutions and it was done.”

JA3088.

Meanwhile, at some point in January, EAA received

notice that the Department of Justice Office of the Inspector

General (DOJ) intended to audit its books. 6 DOJ auditors told

EAA to provide, at the “entrance conference,” documentation

containing budgetary and accounting information. EAA failed

to produce any accounting information.

5

By contrast, between October to December 2007, Brand and

Fattah spoke by telephone only “once or twice [a] month.”

JA2734.

6

One of the terms and conditions of a federal grant is that the

recipient “be readily prepared for an audit.” JA2314.

18

Although Lindenfeld was no longer making demands of

Brand, Brand was still owed the remaining $100,000 that

Solutions had paid to satisfy the Lord loan. On March 23, 2008,

Brand sent Nicholas an email outlining his efforts to contact

her over the previous two weeks about documentation on the

CORE work, how to proceed with the paperwork for the

Commonwealth of Pennsylvania, and “how we can get our

proposed contract signed and the outstanding payments made.”

JA2749. Nicholas responded that evening, writing:

I can appreciate your urgency however I do have

EAA work that I continue to do, including the

[usual] facilitation of programs, our financial

audit, the start-up of two new programs[,] and of

course the DOJ audit. I am still trying to obtain a

line of credit without a completed 2007 audit and

things are getting a little uncomfortable now as I

try to keep us afloat.

JA6576. Nicholas told Brand that the DOJ auditors were

making demands and would soon be on site. She noted that

“[t]hey are still very uncomfortable with your contract amongst

other things and depending on their findings some of the

funding received may have to be returned.” Id. Nicholas said

that she had submitted the paperwork to the state, and she told

Brand that “in the future . . . as a result of the DOJ audit I will

not be in a position to do another contract such as this.” Id.

Shortly after Nicholas’s reply to Brand, Nicholas

forwarded the Brand–Nicholas email chain to Fattah. The body

of the email stated, in its entirety: “I really don’t appreciate the

tone of Bob’s email. I can appreciate that he has some things

going on however I am doing my best to assist him. Some other

19

things are a priority. He needs to back off.” GSA2. Later that

night, Bowser sent Fattah an email with a subject line that read

“Karen N” and a telephone number. JA2752.

As the audit continued, the auditors found other

deficiencies. During April of 2008, DOJ issued a notice of

irregularity to EAA, which resulted in the audit being referred

to DOJ’s Investigations Division for a more comprehensive

review.

On April 24, 2008, Brand emailed Nicholas asking for

a time to update her on The Benefit Bank. In early May, Brand

sent another email to Nicholas attaching a revised EAA–

Solutions contract proposal, which decreased the initial upfront

cost from $900,000 to $700,000.

Although Solutions and EAA had still not signed a

contract, EAA paid Solutions another $100,000 in May. That

money was obtained via a loan to EAA from CORE. Thomas

Butler, who had worked for Fattah both when Fattah was in

Congress and when he was in the General Assembly, was

CORE’s executive director. Butler had been contacted in mid-

May by Jackie Barnett, a member of CORE’s Board who had

also worked with Congressman Fattah. Barnett informed

Butler that Nicholas had requested a loan from CORE to EAA,

and that Fattah, as Chairman of CORE’s Board, had approved

it. Butler and Barnett withdrew funds from two CORE bank

accounts and obtained a cashier’s check, dated May 19, in the

amount of $225,000 and made payable to EAA. The

withdrawals were from accounts used for Sallie Mae funds and

other scholarship money.

20

After EAA received the $225,000 check, EAA tendered

a $100,000 check to Solutions. The check bore the notation

“Commonwealth of Pennsylvania.” EAA repaid CORE the

following month. Because EAA lacked sufficient funds of its

own to cover this payment, EAA drew on grant money that it

had received from NASA.

Brand and Lindenfeld continued to communicate

concerning The Benefit Bank. In July of 2008, a meeting was

held at Solutions with Brand, Lindenfeld, Golden, and other

Solutions employees to discuss “an enormous amount of work”

that Brand wanted Strategies to do. JA1670. Lindenfeld said in

response “we’d be glad to do that, but . . . we would have to be

paid.” Id. At that point, someone in the meeting stated that

Strategies “had already been paid” $600,000. Id. Lindenfeld

replied: “well, that was for Congressman Fattah, . . . that’s not

for us. So if you want us to do work, we have to get paid for it

separately.” Id. Brand became upset with Lindenfeld over his

comment about being paid because his colleagues at Solutions

were not aware of the reason for the $600,000 payment.

Meanwhile, EAA was attempting to meet the demands

of the DOJ auditors, who were focused on the relationship

between EAA and CORE. DOJ served a subpoena upon

Solutions to produce “[a]ny and all documents including, but

not limited to, contract documents, invoices, correspondence,

timesheets, deliverables and proof of payment related to any

services provided to or payments received” from CORE or

EAA. JA2350.

Special Agent Dieffenbach, from the DOJ, interviewed

Nicholas on July 14, 2008. During that interview, Nicholas

discussed the relationship between EAA and CORE, how

21

invoices were paid, and how consultants were handled.

Nicholas also answered questions about EAA’s relationship

with Solutions, including the payment of invoices. She did not

inform Agent Dieffenbach of the $500,000 payment in January

or the subsequent $100,000 payment in May. Nor did the

interview address the EAA–Solutions contract that purportedly

required those payments, because the contract had yet to be

produced.

Solutions failed to comply with the subpoena,

prompting an email from Agent Dieffenbach on August 26

asking for an update concerning Solutions’ reply to the DOJ

subpoena. Solutions then produced an undated version of the

EAA–Solutions contract that required the $600,000 upfront

payment. Neither Brand nor Nicholas provided the auditors

with the January and May checks from EAA to Solutions.

Efforts to conceal the repayment of the Lord loan and to

promote the political and financial interests of Fattah

continued. The FFM campaign reports indicated in-kind

contributions of debt forgiveness by SLA even though there

had been no actual debt. In September of 2009, with EAA’s

ledgers still under scrutiny, Nicholas altered the description of

the entry for the $100,000 check to Solutions from

“professional fees consulting” to “CORE Philly.” JA2546.

Other FFM campaign debt was reduced further after Vederman

negotiated with creditors.

EAA never fully recovered from its payment of the

$600,000 balance on the Lord loan and the audits that took

place in 2008. It began laying off employees in 2011, and by

June of 2012, only four employees remained. JA3659. EAA

ceased operations at some point in 2012. JA1530.

22

2. The College Tuition Component of the FFM Scheme

Although the FFM campaign was close to insolvent, it

nevertheless made tuition payments for Fattah’s son, Chaka

Fattah Jr., also known as Chip. Chip attended Drexel

University, but had yet to complete his coursework because he

had failed to pay an outstanding tuition balance. As the FFM

campaign got underway in 2007, Fattah wanted Chip to re-

enroll in classes at Drexel and get a degree. Fattah asked

Naylor to help financially, and he did so by writing checks

from SLA to Drexel toward Chip’s outstanding tuition. By

October of 2007, Chip was permitted to re-enroll in classes.

Although Naylor never directly addressed the issue with

Fattah, he agreed to assist with Chip’s outstanding tuition with

the expectation that SLA would be repaid. The first check to

Drexel in the amount of $5,000 was sent in August of 2007,

with $400 payments in the months that followed until August

of 2008. At some point, Chip informed Naylor that the payee

was no longer Drexel, but Sallie Mae. Naylor then began

sending monthly checks from SLA to Sallie Mae. Those

payments, in the amount of $525.52, began in March of 2009

and continued until April of 2011, after which Fattah told

Naylor he no longer needed to make them. SLA’s payments to

Drexel and Sallie Mae totaled $23,063.52.

Naylor’s expectation of repayment was eventually

realized. Beginning in January of 2008 and continuing until

November 2010, Bowser sporadically sent SLA

reimbursement checks from the FFM campaign with a notation

that payment was for “election day operation expenses.”

JA3136. The FFM funds had been transferred from the Fattah

for Congress campaign. These reimbursement checks totaled

23

$25,400. In an effort to conceal the source of the payments to

Drexel and Sallie Mae, and to make it appear that the younger

Fattah had performed services for SLA, Naylor created false

tax forms for Chip. Chip, however, had never performed

services for SLA.

3. The NOAA Grant and the Phantom Conference

In mid-December 2011, when EAA was experiencing

serious financial difficulties, Nicholas submitted an email

request to the educational partnership program of the National

Oceanic & Atmospheric Administration (NOAA) for a grant

“designed to provide training opportunities and funding to

students at minority serving institutions” interested in science,

technology, engineering, and math fields related to NOAA’s

mission. JA3354–55. The request sought $409,000 to fund

EAA’s annual conference scheduled for February 17–19, 2012.

Jacqueline Rousseau, a supervisory program manager at

NOAA, participated in a conference call with Nicholas shortly

thereafter and advised Nicholas that the agency could not

afford the $409,000 request but would consider a smaller grant.

Rousseau advised Nicholas that EAA would need to submit an

application if it wished to be considered for a grant.

Before submitting a grant application, Nicholas emailed

Rousseau about sponsoring the conference. On January 11,

2012, Rousseau informed Nicholas that the “NOAA Office of

Education, Scholarship Programs has agreed to participate and

provide sponsorship funds of $50K to support the referenced

conference.” JA6453. Rousseau also informed Nicholas that

Chantell Haskins, who also worked with the student

scholarship program, would be the point of contact for NOAA.

24

In February 2012, EAA held its annual conference at the

Sheraton Hotel in downtown Philadelphia. The conference had

been held at the same location each year since 2008.

Nicholas contacted Haskins at some point in early 2012,

inquiring about the $50,000 grant. On May 8, 2012, Haskins

sent Nicholas an e-mail which included information about

submitting proposals to fund a conference for students. EAA

then submitted a grant application, which Haskins reviewed.

She advised Nicholas on June 28, 2012 that the grant could not

be used to provide meals, and that the date of the conference

would have to be pushed back, with the new date included in a

modified application. When Nicholas asked if expenses from a

previous conference could be paid from the new grant, Haskins

informed her that this was not allowed.

In early July 2012, Nicholas sent a modified grant

proposal to Haskins. It eliminated the budget item for food and

changed the date of the 2012 conference to October 19–21,

2012 at the same Sheraton Hotel in Philadelphia where EAA’s

annual conference had taken place earlier in the year. NOAA

approved a $50,000 grant for the October 2012 conference—a

conference that would never be held.

Unaware that no October 2012 conference had taken

place, NOAA allowed Nicholas access to the $50,000 grant in

March of 2013. She then transferred the entire amount from

NOAA to EAA’s bank account a few days later. Naylor had

performed services for EAA for which he was still owed

$116,590. JA3119. In discussions with Naylor, Nicholas had

informed him that the likelihood of EAA’s being able to pay

him was “[n]ot very good.” JA3120. Yet several days after

25

EAA had received the $50,000 from NOAA, Nicholas sent

Naylor a check for $20,000. JA3120, 4283.

On April 3, 2013, Nicholas submitted a final report to

NOAA concerning EAA’s use of the grant. Notably, page 4 of

the report stated the conference had been held in February

2012, while page 17 stated that the conference had been held

from October 19 to 21, 2012. NOAA issued a notice asking for

clarification and for a list of students who had been supported

at the conference. Nicholas failed to file either a clarifying

report regarding the date of the conference or a timely report

regarding the disbursement of the grant. Finally, in November

of 2013, Nicholas submitted the final Federal Financial Report

in which she certified, falsely, that the $50,000 had been used

for a project during the period from August 1, 2012 to

December 30, 2012.

B. The Blue Guardians Scheme

In addition to functioning as the conduit for Lord’s $1

million loan to Fattah’s campaign, Lindenfeld’s company,

Strategies, also performed services for the campaign. The work

resulted in indebtedness from FFM to Strategies of

approximately $95,000. Fattah made several small payments,

but failed to pay the full amount due. Although Lindenfeld

spoke to Fattah, Naylor and Bowser about the debt, no

payments were forthcoming. During a meeting in Fattah’s D.C.

office, Fattah told Lindenfeld “that [repayment] really wasn’t

going to be possible because the campaign had been over for a

long time” and the funds were not available. JA1693. Fattah

then asked Lindenfeld if he could write off the debt on his FFM

campaign finance reports. Id. Lindenfeld told Fattah that as

26

long as he was paid, it was not his business how Fattah

disclosed it on the campaign finance reports. JA1694.

In lieu of repayment, Fattah suggested that Strategies

could claim to be interested in setting up an entity to address

environmental issues and ocean pollution along the coastline

and in the Caribbean. Fattah explained that creating such an

entity would make it possible to obtain an appropriation from

the government. Hearing this, Lindenfeld knew he was not

going to be paid by the FFM campaign, and was amenable to

receiving money from an appropriation instead. At a later

meeting, Lindenfeld told Fattah that the name of the entity

would be “Blue Guardians.” Lindenfeld consulted with an

attorney about creating Blue Guardians as an entity to receive

the federal grant. He emailed Fattah, asking questions about

how to complete an application to the House Appropriations

Committee. Fattah provided suggestions, and an application

was eventually completed. It indicated that Blue Guardians

would be “in operation for a minimum of ten years,” and, in

accordance with Fattah’s guidance, requested $15 million in

federal funds. JA1711–13.

Lindenfeld submitted the application to Fattah’s office

in April of 2009. Afterward, a Fattah staffer contacted

Lindenfeld to suggest that he change his Washington, D.C.,

address to Philadelphia because that was the location of

Fattah’s district. Fattah later suggested to Lindenfeld that

Brand might allow the use of his Philadelphia office address, a

plan to which Brand agreed.

In February 2010, Lindenfeld submitted a second

application to the Appropriations Committee. In March, Fattah

submitted a project request using his congressional letterhead

27

and seeking $3,000,000 for the “Blue Guardians, Coastal

Environmental Education Outreach Program.” JA6432. Within

a month, Blue Guardians had both articles of incorporation and

a bank account. Around that time, a news reporter contacted

Lindenfeld to discuss the new Blue Guardians entity. The

inquiry made Lindenfeld uncomfortable, and he ultimately

decided to abandon the Blue Guardians project. He continued

to seek payment from Fattah, to no avail.

Nonetheless, having obtained Lindenfeld’s

acquiescence to writing off the campaign’s debt to Strategies,

Fattah started falsifying FFM’s campaign reports. Beginning

in 2009 and extending through 2013, the FFM campaign

reports executed by Fattah and Bowser stated that Strategies

made in-kind contributions of $20,000, until the debt appeared

to have been paid in full.

C. The Fattah–Vederman Bribery Scheme

Vederman and Fattah were personal friends. Vederman

was a successful businessman who had also served in

prominent roles in the administrations of Ed Rendell when he

was Mayor of Philadelphia and Governor of Pennsylvania. In

November of 2008, Vederman was a senior consultant in the

government and public affairs practice group of a Philadelphia

law firm. His assistance to the FFM campaign included paying

for rented vans used in the get-out-the-vote effort.

After Fattah’s electoral defeat, the campaign still owed

more than $84,000 to a different law firm for services

performed for the campaign. Vederman approached that firm

in the summer of 2008 asking if it would forgive FFM’s debt.

Negotiations resulted in a commitment from FFM to pay the

28

firm $30,000 by the end of 2008 in exchange for forgiveness

of $20,000, all of which would appear on the FFM campaign

finance report. Vederman’s efforts also led to payment by

Fattah of an additional $10,000 in 2009 to the law firm, in

exchange for additional forgiveness of $20,000 of debt. It was

not long after Vederman’s successful efforts to lower Fattah’s

campaign debt, that Fattah wrote a letter to U.S. Senator Robert

P. Casey recommending Vederman for an ambassadorship.

At some point in 2010, Vederman again intervened on

behalf of the FFM campaign. FFM remained in debt to an

advertising and public relations firm owned by Robert Dilella.

By late 2011, Vederman and Dilella had worked out a

settlement to resolve the outstanding debt. Pursuant to that

settlement, Dilella received partial payment from the FFM

campaign: $25,000 in satisfaction of a $55,000 debt. Dilella

testified at trial that he would not have agreed to retire a portion

of the debt had he known the FFM campaign was paying

college tuition for Fattah’s son.

Vederman helped Fattah financially in other ways.

Before the 2006 FFM campaign, Fattah and his wife, Renee

Chenault-Fattah, sponsored a young woman named Simone

Muller to live with them as an au pair exchange visitor. Muller

was from South Africa, and her J-1 visa allowed her to serve

as a nanny and to study in the United States. Muller later

applied for and received a second visa, an F-1 student visa that

indicated she had been accepted as an international student at

the Community College of Philadelphia. The application

indicated that Muller would again be residing with the Fattahs.

Notwithstanding this living arrangement, Fattah identified

Vederman as the person who would be paying for Muller’s trip

to the United States.

29

By the beginning of 2010, Muller wished to transfer to

Philadelphia University. This required her to submit

verification that funds were available to pay for her study.

Although the Fattahs were Muller’s sponsors, Fattah explained

to the University’s Dean of Enrollment Services that he was

submitting a letter of secondary support from Vederman.

JA3754, 3763–65, 6504. Without Vederman’s January 2010

letter of support, the University would not have admitted

Muller. In addition to this pledge of support, Vederman paid

$3,000 of Muller’s tuition. Shortly thereafter, Fattah resumed

his efforts to secure an ambassadorship for Vederman.

In February of 2010, Fattah staffer Maisha Leek

contacted Katherine Kochman, a scheduler for White House

Chief of Staff Rahm Emanuel. Leek requested a telephone

conference with Emanuel, Rendell, and Fattah to discuss

Vederman’s “serving his country in an international capacity.”

JA2893. In a follow-up email on March 26, Leek sent

documents to Kristin Sheehy, a secretary to White House

Deputy Chief of Staff James Messina. The documents included

Fattah’s 2008 letter to Senator Casey and Vederman’s

biography. After participating in a telephone conference about

Vederman with Fattah and Rendell, Messina sent Vederman’s

biography to the White House personnel office for

consideration.

As the April 2010 tax deadline approached, Fattah still

owed the City of Philadelphia earned income tax in the amount

of $2,381. Just days before the filing deadline, Vederman gave

a check to Chip Fattah for $3,500. The younger Fattah quickly

deposited $2,310 into his father’s bank account. Fattah paid his

tax bill on April 15. Without Chip’s deposit into his father’s

30

bank account, the older Fattah would not have had sufficient

funds to pay his tax bill.

On October 30, 2010, Vederman gave Chip another

check, this one for $2,800. That same day, Fattah hand-

delivered a letter to President Obama recommending

Vederman for an ambassadorship. A few weeks later, Fattah’s

staffer, Leek, sent the letter that Fattah had given to President

Obama to Messina’s office. That letter pointed out that both

Rendell and Fattah had sent letters on behalf of Vederman, and

that he was an “unquestionably exceptional candidate for an

ambassadorship.” JA6291–92.

Fattah’s efforts to secure Vederman an ambassadorship

were unsuccessful. Fattah then shifted gears and sought to

secure Vederman a position on a federal trade committee.

Fattah approached Ron Kirk, who served as U.S. Trade

Representative, and asked him to speak with a constituent. In

May of 2011, Leek followed up on that discussion by emailing

Kirk and asking him to meet with Vederman. Kirk met with

Vederman on June 5, 2011 and explained to him the role of the

trade advisory committees. Although the two men “had a very

nice conversation,” JA 3566, it soon became “pretty apparent

to [Kirk and his staff] that [serving on a trade advisory

committee was] not what Mr. Vederman was interested in.”

JA3567. As Kirk put it, “it was obvious that [Vederman] was

looking for something perhaps more robust in his mind or . . .

higher profile than one of our advisory committees.” Id. Given

Vederman’s lukewarm interest, no appointment to an advisory

committee was forthcoming.

In late December 2011, the Fattahs applied for a

mortgage so they could purchase a second home in the

31

Poconos. Shortly after applying for the mortgage, Fattah

emailed Vederman, offering to sell him his wife’s 1989

Porsche for $18,000. Vederman accepted the offer. The next

day, Vederman wired $18,000 to Fattah’s Wright Patman

Federal Credit Union account.

The Credit Union Mortgage Association (CUMA) acted

as the loan processing organization for the home mortgage.

Because CUMA is required to verify the source of any large

deposits, CUMA’s mortgage loan processor, Victoria Souza,

contacted Fattah on January 17, 2012, to confirm the source of

the $18,000. Fattah informed Souza that the $18,000

represented the proceeds of the Porsche sale. Souza requested

documentation, including a signed bill of sale and title.

That same day, Bowser emailed Vederman a blank bill

of sale for the Porsche. After Vederman signed the bill of sale,

Fattah forwarded it to Souza. The bill of sale was dated January

16, 2012, which was the day before Souza had requested the

documentation. It bore the signatures of Renee Chenault-

Fattah and Herbert Vederman, with Bonnie Bowser as a

witness.

Fattah also provided Souza with a copy of the Porsche’s

title. It was dated the same day it was sent to Souza, and bore

signatures of Chenault-Fattah as the seller and Vederman as

buyer, along with a notary’s stamp. Neither Vederman nor

Chenault-Fattah actually appeared before the notary.

Vederman never took possession of the Porsche. Renee

Chenault-Fattah continued to have the Porsche serviced and

insured long after the purported sale had taken place.

Moreover, the Porsche remained registered in Chenault-

32

Fattah’s name, and was never registered to Herbert Vederman.

When FBI agents searched the Fattahs’ home in 2014, the

Porsche was discovered in the Fattahs’ garage.

On January 24, 2012, the Fattahs wired $25,000 to the

attorney handling the escrow account for the purchase of the

vacation home. Without the $18,000 transfer from Vederman,

the Fattahs would not have had sufficient funds in their bank

accounts to close on the home.

Around the same time that the Fattahs were purchasing

the house in the Poconos, Fattah’s Philadelphia office hired

Vederman’s longtime girlfriend, Alexandra Zionts. Zionts had

long worked for a federal magistrate judge in Florida. Near the

end of 2011, the magistrate judge retired, leaving Zionts ten

months shy of obtaining the necessary service required to

receive retirement benefits. If Zionts could find another job in

the federal government, her benefits and pension would not be

adversely affected. Vederman assisted Zionts in her job search,

which included calling Fattah. Fattah hired her, a move that put

his congressional office overbudget. Zionts worked in Fattah’s

office for only about two months, leaving to work for a

congressman from Florida.

Tia Watson, who performed constituent services for

Fattah and worked on the same floor as Zionts in Fattah’s

district office, testified she had no idea what work Zionts

performed. Although Zionts contacted Temple University

about archiving Fattah’s papers from his career in both the state

and federal government, an employee from Temple University

observed that Zionts’ work contributed nothing of value to the

papers project.

33

D. The Indictment and Trial

Fattah’s schemes eventually unraveled. On July 29,

2015, a federal grand jury in the Eastern District of

Pennsylvania returned a twenty-nine count indictment alleging

that Fattah and his associates had engaged in a variety of

criminal acts. Fattah, Vederman, Nicholas, Brand, and Bowser

were charged with unlawfully conspiring to violate the

Racketeer Influenced and Corrupt Organizations Act (RICO),

18 U.S.C. § 1962(d). In addition to the RICO charge, the

indictment alleged that Fattah and certain co-defendants had

unlawfully conspired to commit wire fraud, 18 U.S.C. §§ 1343,

1349; honest services fraud, 18 U.S.C. §§ 1343, 1346, 1349;

mail fraud, 18 U.S.C. §§ 1341, 1349; money laundering, 18

U.S.C. § 1956; and to defraud the United States, 18 U.S.C.

§ 371. Several defendants were also charged with making false

statements to banks, 18 U.S.C. § 1014; falsifying records, 18

U.S.C. § 1519; laundering money, 18 U.S.C. § 1957; and

engaging in mail, wire, and bank fraud, 18 U.S.C. §§ 1341,

1343, and 1344.

The RICO charge alleged that the defendants and other

co-conspirators constituted an enterprise aimed at supporting

and promoting Fattah’s political and financial interests. The

efforts to conceal the $1 million Lord loan and its repayment

are at the heart of the RICO conspiracy and the Fattah for

Mayor scheme. The indictment further alleged that the RICO

enterprise involved: (1) the scheme to satisfy an outstanding

campaign debt by creating the fake “Blue Guardians”

nonprofit; and (2) the bribery scheme to obtain payments and

things of value from Vederman in exchange for Fattah’s efforts

to secure Vederman an appointment as a United States

Ambassador.

34

A jury trial, before the Honorable Harvey Bartle III of

the Eastern District of Pennsylvania, began on May 16, 2016,

and lasted about a month. 7 Judge Bartle charged the jury on

Wednesday, June 15, 2016, and deliberations began late that

afternoon. The following day, after deliberating for only four

hours, the jury sent a note to the judge. Written by the

foreperson, the note read:

Juror Number 12 refuses to vote by the letter of

the law. He will not, after proof, still change his

vote. His answer will not change. He has the 11

of us a total wreck knowing that we are not

getting anywhere in the hour of deliberation

yesterday and the three hours today. We have

zero verdicts at this time all due to Juror Number

12. He will not listen or reason with anybody. He

is killing every other juror’s experience. We

showed him all the proof. He doesn’t care. Juror

Number 12 has an agenda or ax to grind w/govt.

JA5916.

Shortly after receiving the foreperson’s note, the Court

received a second communication—a note signed by nine

jurors, including the foreperson. The second note read:

We feel that [Juror 12] is argumentative,

incapable of making decision. He constantly

scream [sic] at all of us.

7

The District Court dismissed one charge prior to trial: an

individual money laundering count against Nicholas.

35

Id.

Judge Bartle met with counsel in his chambers and

advised them of his intention to voir dire both the foreperson

and Juror 12 in an effort to determine whether the juror was

deliberating as required by his oath. The Judge also indicated

that he would “stay away from the merits of the case,” and that

whether he would voir dire more jurors “remain[ed] to be

seen.” JA5917.

Counsel for the defendants objected to the Court’s

proposed inquiry. As a group, they indicated that while the note

could be read as suggesting “a flat refusal to deliberate,” they

were of the opinion that it sounded “more in the manner of a

disagreement over the evidence.” JA5918. Nicholas’s counsel

specifically argued that questioning the jurors so quickly after

the start of deliberations would send a message that differences

of opinion among a block of jurors could be resolved by

complaining to the Court. Defense counsel acknowledged that

the case law gave Judge Bartle wide discretion on how to

proceed, but suggested that a “less intrusive” course of action

was preferred. JA5918–19. They collectively urged the Court

to do nothing more than remind the jurors of their duty to

deliberate.

The Government agreed with Judge Bartle’s proposed

voir dire. In the prosecution’s view, the Court had already

given proper instructions to the jury on their duty to deliberate.

The Government further argued that if Juror 12 had exhibited

bias, as suggested in the notes, he would have lied during the

voir dire process and his refusal to deliberate would be “further

evidence of that and his unsuitability as a juror.” JA5921.

36

With all counsel present, and over defense counsel’s

objections, Judge Bartle ultimately questioned five jurors in

chambers. He questioned Juror 2 (the foreperson), Juror 12 (the

subject of the complaints), Juror 3, Juror 6, and Juror 1.

Judge Bartle began each voir dire by informing the juror

that he would ask a series of questions, but would not inquire

into the merits of the case or how any juror was voting. Each

juror was placed under oath, and Judge Bartle asked, among

other questions, whether screaming was occurring; whether the

jurors were discussing the evidence; whether Juror 12 was

placing his hands on other jurors; and whether Juror 12 was

unwilling to follow his instructions.

The foreperson acknowledged that he had written the

initial note during lunch earlier that day. He stated that Juror

12 was not willing to follow the law, but instead “want[ed] to

add his own piece of the law . . . which has nothing to do with

it.” JA5927–28. The foreperson further testified that Juror 12

“was standing up screaming” and that “[i]t was everybody

pretty much against [Juror 12].” JA5929. He testified that Juror

12 “has his own agenda,” and that Juror 12 put his hand on

another juror. JA5930. The foreperson also stated that the jury

had discussed only a single count since the day before, and that

they were still discussing it. When the District Court responded

that the jurors should understand that they could take as much

time as they needed, the foreperson responded: “I understand

that. . . . [W]e all understand it. But we feel that he’s just—he’s

got another agenda.” JA5934.

Judge Bartle advised counsel that he considered this “a

very serious situation” and that he would proceed to voir dire

Juror 12. JA5937. Fattah’s counsel renewed his objection to

37

questioning Juror 12, which the Court overruled. Brand’s

counsel argued that because the Court had decided to voir dire

Juror 12, it should also voir dire an additional juror. The Court

agreed to do so.

When the Court questioned Juror 12, he admitted to

having “yelled back” at others, but only when they raised their

voices to him. JA5939. Juror 12 contended that he, in fact, was

“the only one” deliberating. Id. When an initial vote was taken

the previous afternoon, his vote “was different than everybody

else’s.” Id. Juror 12 explained to the other jurors why his vote

was different, bringing up specific evidence. In response, the

other jurors said “that doesn’t mean anything” and “pointed to

the indictment.” JA5940. Juror 12 told the other jurors that the

indictment is not evidence. Id. In response, the others

“threatened to have [him] thrown off.” Id.

Juror 12 testified that a similar sequence of events had

taken place that morning. After a brief period of deliberations,

another vote was taken, and with the same result as the

previous afternoon. A discussion ensued, and the other jurors

again “point[ed] to the indictment.” Id. Juror 12 told them to

“read the charge,” “[t]he indictment is not evidence.” Id. They

read the charge, and Juror 12 again attempted to explain his

view, but the other jurors paid little attention. Accordingly,

Juror 12 told the others that if they did not want him there, he

“[didn’t] want to be [there]”—he would be “[o]kay with it” if

they wanted him taken off the jury. JA5941.

Upon hearing this testimony, Judge Bartle again asked

about the tone of deliberations. Juror 12 repeated that he raised

his voice only in response to others who did so—he did “not

want to yell at anybody.” JA5942. Judge Bartle then asked

38

whether he had touched other jurors. Juror 12 replied that he

had not hurt anyone. When asked if he had put his hand on

anybody’s shoulder, Juror 12 answered: “I couldn’t remember

to be honest with you.” JA5946.

Following Juror 12’s voir dire, the Court summoned

Juror 3 to chambers. Juror 3 testified that, after discussion of a

particular count, there was one juror at odds with the others.

According to Juror 3, “the rest of the jurors pounced on the

gentleman with the . . . dissenting opinion.” JA5948. Juror 3

testified that Juror 12 “got very defensive and just a little bit []

impatient” and that “the other jurors were very impatient with

him.” Id. Juror 3 did not recall witnessing Juror 12 putting his

hand on any other jurors.

The Government requested that the Court voir dire

another juror. Defense counsel objected, claiming that the

questioning “threaten[ed] . . . the entire deliberative process.”

JA5949–50. Judge Bartle reminded counsel that he had the

authority to question each juror, and called for voir dire of

Juror 6.

Juror 6 testified that the jury had been discussing the

case and reviewing the evidence, but that Juror 12 “wants to be

seen” and was “being obstinate.” JA5951–52. According to

Juror 6, Juror 12 “may not agree” with the conclusion of other

jurors but “doesn’t give valid reasons as to why he may

disagree with the charge.” JA5952. Juror 6 also revealed that

Juror 12 was the first to raise his voice, and that he may have

touched her and another juror. When asked to clarify what she

meant by Juror 12 disagreeing with “the charge,” Juror 6

testified that Juror 12 was “reading maybe too deeply into it

and putting his own emotions into it instead of just looking at

39

what it says [and] what the facts are.” JA5952, 5955.

According to Juror 6, Juror 12 “just continues to read past that

into his own mind of what he feels it should be.” JA5955. Juror

6 testified that Juror 12’s “justification for some of his

responses [did not] seem to relate to what the matter [was]

before [them].” JA5957.

Judge Bartle chose to hear from yet another juror. Juror

1 was called and informed the Court and counsel that the jury

“really [hadn’t] been able to even start the deliberation

process” in light of the disruptive behavior of “one particular

individual.” JA5958–59. The particular individual, according

to Juror 1, was “very opinionated” and “[came] into the process

with his view already established, refusing to even listen to any

of the evidence . . . [being] very forceful . . . standing up,

yelling, pointing his finger.” JA5959. When asked if this

individual was willing to follow the Court’s instructions, Juror

1 testified that he “pours [sic] over the documents very well”

but that he was adding other factors to answer the question on

the verdict form, such as “what did this person feel.” JA5961.

When Judge Bartle advised that intent was an appropriate

consideration, Juror 1 agreed but said that Juror 12 was “trying

to investigate . . . going way beyond the scope” of the evidence

before them. JA5961–62. Juror 12, he said, “has an opinion and

that opinion is established.” JA5962. He stated that Juror 12

was “not willing to listen to any sort of reason or any sort of

what everyone else is saying” but instead, was “trying to force

everyone else to get to his point of view.” Id. “[I]f he feels like

he’s not getting there, he gets louder and louder and points and

puts his hand on your shoulder . . . .” Id.

After questioning the five jurors (Jurors 1, 2, 3, 6, and

12), Judge Bartle heard argument from counsel. The attorney

40

for the Government pointed out that the Court would have to

make a credibility determination because Juror 12 stated that

he did not recall touching anyone. In the Government’s view,

Juror 12 was disrupting the process and should be removed.

Defense counsel disagreed. They argued that Juror 12 was

conscientious and was engaging with the evidence. They

pointed out that despite the testimony that Juror 12 was reading

too deeply into the instructions or introducing new factors for

the jury to consider, Juror 6 had testified that the jurors “talked

it through” and resolved the concern. JA5965. Defense counsel

argued that the jury was discussing intent, an issue that was at

the heart of the case. Defense counsel perceived no breakdown

in deliberations and argued that dismissal would be premature.

They suggested, instead, that the Court provide a supplemental

instruction.

Judge Bartle decided to adjourn for the afternoon. But

before he left the courtroom, defense counsel brought two

matters to his attention. First, in light of testimony during the

voir dire, they asked that the jury be reinstructed that the

verdict form and indictment were not evidence. Second, they

apprised the Judge of the standard for juror dismissal set forth

in United States v. Kemp, 500 F.3d 257 (3d Cir. 2007). Defense

counsel stated that under Kemp, a request to discharge a juror

must be denied if there is a possibility that the request stems

from the juror’s view of the evidence. Judge Bartle expressed

hesitation on reinstructing the jury, but agreed that Kemp

would control his determination as to whether dismissal was

appropriate.

With the following morning came a new revelation.

With counsel in chambers, the Judge informed them that

“additional significant evidence” had come to light since the

41

previous day’s recess. JA5980. He placed his courtroom

deputy under oath, and she proceeded to testify to an exchange

that had occurred the previous day as she was escorting Juror

12 back to the jury room after he had been voir dired.

According to the deputy, Juror 12 stopped her in the hallway,

placed his hand on her shoulder, and looked her “straight in the

eye.” JA5981. He then said: “I’m going to hang this jury.” Id.

The deputy then related that before any further conversation

could take place between Juror 12 and the deputy, Judge Bartle

summoned Juror 12 back to his chambers. Later that day,

however, Juror 12 and the courtroom deputy had another

exchange. She testified that after all five jurors had been

questioned, Juror 12 emerged from the jury room and told her

“I really need to talk to you.” JA5982. She informed Judge

Bartle and counsel that Juror 12 “said more about how they’re

treating him and what he’s saying to them.” Id. He flatly stated

that “it’s going to be 11 to 1 no matter what.” Id.

There were no follow-up questions for the deputy.

Instead, defense counsel suggested that what Juror 12 may

have meant was that he was willing to hang the jury because of

a lack of evidence. They requested that Juror 12 be asked about

his comments to the deputy.

After once again summoning Juror 12 to his chambers,

the Judge advised him that “[s]ome questions have arisen”

about what he may have done after being voir dired the

previous day. JA5985. Juror 12 acknowledged having

conversations with the courtroom deputy. When asked “what

happened” and “[w]hat occurred,” Juror 12 responded:

“Basically, I said that there was a lot of name calling going on.”

JA5985. He said comments had been made by other jurors

about his service in the military. He specifically referred to

42

other jurors’ suggesting that he had possibly “hit [his] head . . .

hard a few times” while serving in a parachute regiment.

JA5986. He testified he had conveyed these comments to the

deputy and that he found them offensive. When asked if he said

anything else to the deputy, Juror 12 responded: “I may have.

I really can’t recall.” JA5987. And when Judge Bartle followed

up by asking if he could recall anything else that he said to the

deputy, Juror 12 simply replied: “No. To me, that was the most

important thing.” Id. Juror 12 was then excused from

chambers.

Defense counsel next requested that the juror be asked

directly whether he told the courtroom deputy that he was

going to “hang this jury.” JA5988. Juror 12 was recalled to

chambers, and the following back and forth took place:

The Court: You may be seated. And, of course,

[Juror 12], you know you’re under oath here

from yesterday?

Juror 12: Yes, sir.

The Court: . . . Did you say to [the courtroom

deputy] that you’re going to hang this jury?

Juror 12: I said I would.

The Court: You did?

Juror 12: I did. I said—I told her—I said, we

don’t agree; I’m not just going to say guilty

because everybody wants me to, and if that hangs

this jury, so be it.

....

Juror 12: I did say that, sir.

The Court: You didn’t remember that before?

Juror 12: I’m more concerned about people

spitting on my military record.

43

The Court: Did you say that you’d hang the jury

no matter what?

Juror 12: If they do—if we cannot come to—

The Court: No. The question is what you said to

her. Did you say to her you would hang the jury

no matter what?

Juror 12: I can’t really remember that. I did say

that if we didn’t—a person—no matter what, I

can’t recall that exactly.

The Court: All right. Thank you very much. You

can wait just out there in the anteroom.

JA5989–90.

Defense counsel continued to oppose Juror 12’s

dismissal. They argued that the juror’s concern was about the

evidence, and that his comments to the courtroom deputy

reflected a conviction that “he’s not going to agree just because

others want him to agree.” JA5991. They also argued that

nothing should be made of Juror 12’s failure to mention the

comments when initially questioned by the Court, and that a

supplemental instruction was all that was warranted given the

early stage of the deliberations.

The Government strongly disagreed. The Assistant

United States Attorney argued that Juror 12 “should absolutely

be removed” because “his demeanor ha[d] demonstrated a

hostility . . . both to the other jurors and to the court.” JA5993.

The Government also suggested that Juror 12’s comments that

he would hang the jury meant that he was not participating in

the deliberations and was ignoring the evidence and the law.

Ruling from the bench, Judge Bartle announced:

44

I find [the deputy clerk] to be credible. I find

[Juror 12], not to be credible. I find that [Juror

12] did tell [the deputy clerk] that he was going

to hang this jury no matter what.

There have been only approximately four

hours of deliberation. There’s no way in the

world he could have reviewed and considered all

of the evidence in the case and my instructions

on the law.

I instructed the jury to deliberate,

meaning to discuss the evidence; obviously, to

hold onto your honestly held beliefs, but at least

you have to be willing to discuss the evidence

and participate in the discussion with other

jurors.

Juror number 12 has delayed, disrupted,

impeded, and obstructed the deliberative process

and had the intent to do so. I base that having

observed him, based on his words and his

demeanor before me.

He wants only to have his own voice

heard. He has preconceived notions about the

case. He has violated his oath as a juror.

And I do not believe that any further

instructions or admonitions would do any good.

I think he’s intent on, as he said, hanging this jury

no matter what the law is, no matter what the

evidence is.

Therefore, he will be excused, and I will

replace him with the next alternate . . . .

JA5994–95.

45

In response, defense counsel moved for a mistrial,

which the judge promptly denied. He then informed the

reconstituted jury that deliberations would need to start over,

and reinstructed them on certain points of law, including that

the verdict slip does not constitute evidence.

Judge Bartle elaborated upon his decision to remove

Juror 12 in two post-trial memorandum opinions. In the first,

ruling on a media request for the sealed transcripts, he

explained:

Here, there is no doubt that Juror 12 intentionally

refused to deliberate when he declared so early

in the process that he would hang the jury no

matter what. This finding was predicated on the

admission of Juror 12 as reported by the court’s

deputy clerk. The facts became clear to the court

after hearing the credible testimony of the deputy

clerk and the less credible testimony of Juror 12.

The demeanor of Juror 12 before the court

confirmed the court’s findings.

GSA23–24. The second opinion addressed motions for bail

pending appeal from Nicholas and Brand. GSA25. There,

Judge Bartle explained:

The law is well-settled that the court has

discretion to act as it did under these

circumstances. See United States v. Kemp, 500

F.3d 257, 304 (3d Cir. 2007). The court, after

taking testimony, specifically found that the

juror, following only a few hours of deliberation,

stated to the court’s courtroom deputy clerk that

46

he would hang this jury no matter what. He could

not possibly have reviewed all of the law and

evidence of this five-week trial at the time he

made his remark. The court examined the deputy

clerk and the juror under oath in the presence of

counsel for all parties. The undersigned found

the deputy clerk to be credible and the juror not

to be credible. Based on the juror’s demeanor, it

was clear he would not change his attitude and

that his intent had been and would continue to be

to refuse to deliberate in good faith concerning

the law and the evidence.

GSA32.

After deliberating for approximately 15 hours, the jury

returned with its verdicts on June 21, 2016, finding the

defendants guilty on most counts. Fattah, Vederman, and

Brand were convicted on all counts. The jury acquitted Bowser

on sixteen counts, but found her guilty of the bribery

conspiracy and the associated charges of bank fraud, making

false statements to a financial institution, falsifying records,

and money laundering (Counts 16, 19, 20, 21 and 22). The jury

also acquitted Nicholas of wire fraud (Count 24). See Nicholas

Supp. App. (NSA) 36.

The following week, on June 27, the Supreme Court

issued its opinion in McDonnell v. United States, 136 S. Ct.

2355 (2016). McDonnell provided new limitations on the

definition of “official acts” as used in the honest services fraud

and bribery statutes under which Fattah and Vederman had

been convicted. Id. at 2369–72. Fattah and Vederman both

moved to set aside their convictions. The District Court

47

“acknowledge[d] that under McDonnell our instructions to the

jury on the meaning of official act turned out to be incomplete

and thus erroneous.” JA103. But the Court held that “the

incomplete and thus erroneous jury instruction on the meaning

of official acts did not influence the verdict on the bribery

counts” and upheld the verdict on Counts 16–18 and 22–23.

JA107, 121.

Fattah, Vederman, and Bowser had more success with

their other post-verdict motions. The District Court, in a

thoughtful opinion, granted relief under Federal Rule of

Criminal Procedure 29, acquitting Vederman of the RICO

conspiracy (Count 1) and Fattah, Vederman, and Bowser of

bank fraud, making false statements to a financial institution,

and falsifying records (Counts 19, 20, and 21). JA37–139.

This appeal followed. 8 The defendants raise a variety of

challenges to their convictions. All defendants but Bowser

challenge the District Court’s decision to dismiss Juror 12.

Fattah and Vederman argue that the District Court erred in

upholding the jury’s verdict on the bribery and honest services

fraud counts in light of the Supreme Court’s decision in

McDonnell. Fattah, Brand and Nicholas challenge the

sufficiency of the evidence underlying the RICO conviction.

Several of the defendants contend the District Court erred in its

instruction on intent and by sending the indictment out to the

jury. There are also several evidentiary challenges. 9 The

8

Fattah, Brand, Vederman, and Nicholas each filed a timely

notice of appeal, but Bowser did not challenge her convictions.

9

Pursuant to Rule 28(i), “Fattah joins in the arguments of

Herbert Vederman, Robert Brand, and Karen Nicholas to the

extent their arguments on appeal apply to Mr. Fattah.” Fattah

48

Government cross-appeals from the District Court’s judgment

acquitting Fattah and Vederman on Counts 19 and 20, arguing

that the District Court erred in interpreting the definition of a

“mortgage lending business” under 18 U.S.C. § 27. We address

these arguments in turn.

We hold that the District Court erred in upholding the

jury verdict in light of McDonnell, and we will therefore

reverse and remand for retrial on Counts 16, 17, 18, 22, and 23.

We also hold that the District Court erred in acquitting Fattah

and Vederman on Counts 19 and 20. Because the jury’s verdict

was supported by the evidence, we will reinstate the

convictions as to those counts. In all other respects, we will

affirm the judgment of the District Court.

Br. 19 n.69. Federal Rule of Appellate Procedure 28(i)

provides that a defendant, “[i]n a case involving more than one

appellant . . . may adopt by reference a part of another’s brief.”

Here, Fattah’s decision to join fails to specify which of the

many issues of his codefendants he believes worthy of our

consideration. Rather, it appears that he presumes we will

scour the record and make that determination for him. This

type of blanket request fails to satisfy Rule 28(a)(5)’s directive

requiring that the “appellant’s brief must contain . . . a

statement of the issues presented for review.” Fed. R. App. P.

28(a)(5). We conclude that expecting the appellate court to

identify the issues to be adopted simply results in the

abandonment and waiver of the unspecified issues. See Kost v.

Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993).

49

III. Juror Misconduct and Dismissal of Juror 12 10

Defendant Fattah challenges the District Court’s

decision to conduct an in camera inquiry into alleged juror

misconduct and the ultimate dismissal of Juror 12. 11 We reject

both challenges. The record reveals credible allegations of

juror misconduct and a sufficient basis to support the finding

that Juror 12 violated his oath.

A. Investigation of Alleged Juror Misconduct

We first consider whether the District Court erred in its

handling of the two notes from jurors. A trial court’s response

to allegations of juror misconduct is reviewed under an abuse

of discretion standard. United States v. Boone, 458 F.3d 321,

326 (3d Cir. 2006) (citing United States v. Resko, 3 F.3d 684,

690 (3d Cir. 1993)). We conclude that the District Court did

not abuse its discretion in addressing the issues raised in the

jurors’ notes to the Court.

Trial courts are afforded discretion in responding to

allegations of juror misconduct. This is so because “the trial

court is in a superior position to observe the ‘mood at trial and

the predilections of the jury.’ ” Resko, 3 F.3d at 690 (quoting

United States v. Chiantese, 582 F.2d 974, 980 (5th Cir. 1978)).

But this discretion is not unlimited. Once the jury retires to

deliberate, the confidentiality of its deliberations must be

10

The District Court had jurisdiction under 18 U.S.C. § 3231.

We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a).

11

Vederman, Nicholas, and Brand adopt Fattah’s claim of

reversible error concerning the dismissal of Juror 12.

50

closely guarded. An accused is constitutionally entitled to be

tried before a jury of his peers. As ordinary citizens, jurors are

“expected to speak, debate, argue, and make decisions the way

ordinary people do in their daily lives.” Pena-Rodriguez v.

Colorado, 137 S. Ct. 855, 874 (2017) (Alito, J., dissenting). To

protect against intrusion into a defendant’s right to be judged

only by fellow citizens, “the door to the jury room [is] locked.”

Id. at 875.

In Boone, this Court considered the threshold for

intervention by a trial judge who is presented with allegations

of juror misconduct during the course of deliberations. 458

F.3d at 327. We recognized that “[i]t is beyond question that

the secrecy of deliberations is critical to the success of the jury

system.” Id. at 329. But that secrecy abuts a competing

interest—the jury’s proper execution of its duties. That is, “a

juror who refuses to deliberate or who commits jury

nullification violates the sworn jury oath and prevents the jury

from fulfilling its constitutional role.” Id. Recognizing these

competing interests, we declined in Boone to adopt a sweeping

limitation on a trial court’s ability to investigate allegations of

misconduct during jury deliberations. See id. Consistent with

the standard applied at other stages of criminal proceedings,

Boone teaches that “where substantial evidence of jury

misconduct—including credible allegations of jury

nullification or of a refusal to deliberate—arises during

deliberations, a district court may, within its sound discretion,

investigate the allegations through juror questioning or other

appropriate means.” Id.

Fattah argues that the District Court had no basis to

question any of the jurors. Fattah Br. 20. We disagree. In

Boone, notes from the jury presented substantial credible

51

evidence of misconduct. 458 F.3d at 330. Here, the initial note

from the foreperson alleged that Juror 12 “refuse[d] to vote by

the letter of the law,” would “not listen or reason with

anybody,” and that he had “an agenda or ax to grind” with the

Government. JA5916. The note contained allegations of both a

refusal to deliberate and a suggestion of nullification. A refusal

to deliberate is a violation of a juror’s oath. Boone, 458 F.3d at

329 (citing United States v. Baker, 262 F.3d 124, 130 (2d Cir.

2001) (“It is well-settled that jurors have a duty to

deliberate.”)). Moreover, nullification—a juror’s refusal to

follow the law—is a violation of the juror’s sworn oath to

render a verdict according to the law and evidence. See United

States v. Thomas, 116 F.3d 606, 614–18 (2d Cir. 1997)

(discussing both “benevolent” and “shameful” examples of

juror nullification, but “categorically reject[ing] the idea that,

in a society committed to the rule of law, jury nullification is

desirable or that courts may permit it to occur when it is within

their authority to prevent”). The second jury note, signed by

nine jurors, supported the claim of misconduct by asserting that

Juror 12 was “incapable of making decision[s]” and was

“constantly scream[ing]” at the other jurors. JA5916–17. We

conclude that the District Court did not abuse its discretion in

deciding to initially question Juror 2, and subsequently, Jurors

12, 3, 6 and 1.

Fattah also challenges the scope of the District Court’s

questioning. He argues that the rights to an impartial jury and

to a unanimous verdict “would be rendered toothless if trial

courts had free rein to question jurors during deliberations.”

Fattah Br. 36. Indeed, we acknowledged the legitimacy of such

a concern in Boone. Despite adopting a modest “credible

allegations” standard for investigating misconduct, we “ke[pt]

52

in mind the importance of maintaining deliberative secrecy.”

Boone, 458 F.3d at 329. Fattah asserts that the trial court’s

questions to the five jurors were “intrusive and pointed” and

“nothing like the questioning . . . approved in Boone.” Fattah

Br. 38. But Fattah does not elaborate on how, in his view, the

questions posed by Judge Bartle specifically intruded into

deliberative secrecy.

To be sure, Judge Bartle’s questioning of each juror was

more extemporaneous than the juror questioning in Boone.

There, the district court asked a single juror four “concise and

carefully-worded” questions. 458 F.3d at 330. Judge Bartle’s

voir dire of each of the five jurors took on a more

conversational tone. We take no issue with that approach. The

substance of the judge’s questions was limited and mirrored

that of questions we deemed appropriate in Kemp. There, the

court conducted three rounds of questioning. In the first round,

each juror was asked:

(1) “Are you personally experiencing any

problems with how the deliberations are

proceeding without telling us anything about the

votes as to guilt or innocence? If yes, describe

the problem.” (2) “Are all the jurors discussing

the evidence or lack of evidence?” (3) “Are all

the jurors following the court’s instructions on

the law?”

Kemp, 500 F.3d at 273. In the second and third rounds, each

juror was asked:

(1) “Is there any juror or jurors who are refusing

to deliberate?” (2) “Is there any juror who is

53

refusing to discuss the evidence or lack of

evidence?” (3) “Is there any juror who is

refusing to follow the Court’s instructions?”

Id. at 274. Here, Judge Bartle began his voir dire of each juror

by stating that he did not wish for the juror to discuss the merits

of the case or to reveal the content of the deliberations that had

taken place. He asked the jurors whether screaming was

occurring, whether the jurors were discussing the evidence,

whether Juror 12 was placing his hands on other jurors, and

whether Juror 12 was unwilling to follow his instructions.

Fattah points to no specific question posed or topic

discussed that was inappropriate, and we see little to no

substantive difference between the questions here and those

asked by the trial judge in Kemp. As in Kemp, “the District

Court took care to limit its questions to appropriate matters that

did not touch on the merits of the jury’s deliberation, and

expressly informed each juror on multiple occasions that he or

she should not reveal the substance of the deliberations.” Id. at

302 (citing United States v. Edwards, 303 F.3d 606, 634 n.16

(5th Cir. 2002)).

Fattah also argues that once the remarks of Juror 2 and

Juror 12 revealed no further evidence of misconduct, the court

had no basis to question other jurors. Fattah Reply 19. Yet, our

cases make clear that a trial court may, in its discretion,

examine each juror. Kemp, 500 F.3d at 302 (“We have

recognized that there are times in which individual questioning

is the optimal way in which to root out misconduct.”). Indeed,

“the District Court must utilize procedures that will ‘provide a

reasonable assurance for the discovery of prejudice.’ ” Id.

54

(quoting Martin v. Warden, Huntingdon State Corr. Inst., 653

F.2d 799, 807 (3d Cir. 1981)). 12

Judge Bartle, a very able and experienced district judge,

was in the best position to determine what type of inquiry was

warranted under the circumstances. We conclude that his

questioning of the five jurors was not an abuse of discretion.

See id. at 302.

B. Dismissal of Juror 12

Fattah, joined by Vederman, Brand, and Nicholas,

strongly contends that the District Court committed reversible

error by dismissing Juror 12. “We review the dismissal of a

juror for cause for abuse of discretion.” Kemp, 500 F.3d at 303.

That deferential standard compels us to affirm.

12

Our cases do not suggest that a trial judge confronted with

allegations that a jury’s deliberations are being obstructed by

one of its members should always resort to interviewing jurors.

Reinstructing the jury on its duty to deliberate will often be the

better course at the first sign of trouble. Mere disagreement

among jurors—even spirited disagreement—is no ground for

intervention. Furthermore, intrusive or leading questions about

the deliberative process may work against the twin goals of

protecting that process and ensuring that jurors remain faithful

to their oaths. We share the Eleventh Circuit’s preference of

“err[ing] on the side of too little inquiry as opposed to too

much.” United States v. Oscar, 877 F.3d 1270, 1287 (11th Cir.

2017) (quoting United States v. Augustin, 661 F.3d 1105, 1133

(11th Cir. 2011)).

55

Rule 23(b) of the Federal Rules of Criminal Procedure

permits a trial court to excuse a deliberating juror for good

cause. See id. (citing Fed. R. Crim. P. 23(b)). Good cause exists

where a juror refuses to apply the law, refuses to follow the

court’s instructions, refuses to deliberate with his or her fellow

jurors, or demonstrates bias. See Kemp, 500 F.3d at 305–06;

United States v. Oscar, 877 F.3d 1270, 1287 (11th Cir. 2017);

Thomas, 116 F.3d at 617. Good cause does not exist when there

is reasonable but sustained disagreement about how a juror

views the evidence. The courts of appeals are emphatic that

trial courts “may not dismiss a juror during deliberations if the

request for discharge stems from doubts the juror harbors about

the sufficiency of the government’s evidence.” Kemp, 500 F.3d

at 303 (quoting United States v. Brown, 823 F.2d 591, 596

(D.C. Cir. 1987)); see also Oscar, 877 F.3d at 1287 (same);

United States v. Symington, 195 F.3d 1080, 1087 (9th Cir.

1999); Thomas, 116 F.3d at 622.

To reinforce a defendant’s right to a unanimous jury, we

have adopted a high standard for juror dismissal. Kemp, 500

F.3d at 304 & n.26. “[D]istrict courts may discharge a juror for

bias, failure to deliberate, failure to follow the district court’s

instructions, or jury nullification when there is no reasonable

possibility that the allegations of misconduct stem from the

juror’s view of the evidence.” Id. at 304 (emphasis added). This

“no reasonable possibility” standard is “by no means lax.” Id.

Rather, “[i]t corresponds with the burden for establishing guilt

in a criminal trial.” Id.

We first applied this standard in Kemp, but have not had

occasion to do so since. There, the evidence supporting the

district court’s removal decision was “overwhelming.” 500

F.3d at 304. Ten jurors separately and consistently reported

56

that a juror was improperly biased, and did so only after three

rounds of questioning and careful and correct instructions from

the district court as to the distinction between appropriate

skepticism and impermissible bias. Id. at 304–05; see id. at

275–76 (district court’s instruction). The testimony also

showed that the juror in question refused to deliberate or to

discuss the evidence with her fellow jurors. Id. at 305.

Whether the evidence of misconduct in this case is as

strong as that in Kemp is beside the point. After only four hours

of deliberations, Juror 12 stated unequivocally to the

courtroom deputy that he was “going to hang” the jury, and

that it would be “11 to 1 no matter what.” JA5981–82

(emphasis added). These statements, coupled with the District

Court’s finding that Juror 12 lacked credibility, provided a

sufficient basis for Juror 12’s dismissal.

As grounds for excusing Juror 12, the District Court

found that he refused to deliberate in good faith, “delayed,

disrupted, impeded, and obstructed the deliberative process

and had the intent to do so,” JA5995, and that he was “intent

on . . . hanging this jury no matter what the law is, no matter

what the evidence is.” Id. The District Court determined from

this that Juror 12 had violated his oath as a juror and that no

further instructions or admonitions could rehabilitate the juror.

Id. The District Court based these findings on personal

observation, including Juror 12’s words and demeanor, and

making the specific finding that Juror 12 was not credible. That

finding is amply supported by the record.

In United States v. Abbell, 271 F.3d 1286, 1303 (9th Cir.

2001), the Ninth Circuit recognized that “the demeanor of the

pertinent juror is important to juror misconduct

57

determinations” because the “juror’s motivations and

intentions are at issue.” That court emphasized, as we do, that

a district judge is best situated to assess the demeanor of a

juror. Id. Here, Juror 12 stated he could not recall putting his

hand on another juror’s shoulder, while his fellow jurors’

testimony was consistent on this point. Juror 12 also failed, at

first, to recall his troubling statements to the courtroom deputy

despite having made those statements only the previous

afternoon. When questioned a second time and asked directly

about the statements, he admitted to saying that he would hang

the jury but claimed he could not “really remember” saying “no

matter what” the day before. JA5989–90. Juror 12’s spotty

recollection of the previous day’s events further supports the

District Court’s finding that he was not credible.

Fattah argues that the credibility determination was not,

by itself, a sufficient reason to dismiss the juror because the

record demonstrates more than a reasonable possibility that the

complaints about his conduct stemmed from Juror 12’s own

view of the Government’s case. Fattah Reply Br. 11; Fattah Br.

25, 28. Fattah claims that the District Court abused its

discretion by dismissing Juror 12 “on the basis of, in effect, six

words the juror purportedly said to the court’s deputy after he

was verbally attacked by other jurors.” Fattah Br. 24.

According to Fattah, the questioning of the other jurors

“confirmed that there were no legitimate grounds for removing

juror 12.” Id. at 26. We conclude otherwise.

“A district court’s finding on the question whether a

juror has impermissibly refused to participate in the

deliberation process is a finding of fact to which appropriate

deference is due.” Baker, 262 F.3d at 130. While district courts

must apply a high standard for juror dismissal, their underlying

58

findings are afforded considerable deference on appeal. Kemp,

500 F.3d at 304 (citing Abbell, 271 F.3d at 1302–03). We will

reverse only if the decision to dismiss a juror was “without

factual support, or for a legally irrelevant reason.” Abbell, 271

F.3d at 1302 (citation omitted).

Here, the District Court had a legitimate reason for

removing Juror 12. Refusal to deliberate constitutes good cause

for dismissal. Although the judge did not expressly articulate

the Kemp standard when he announced that he would dismiss

Juror 12, he did acknowledge the “no reasonable possibility”

standard in his discussion with counsel. The unmistakable

import of the District Court’s statement from the bench is that

there was no reasonable possibility that Juror 12’s

intransigence was based on his view of the evidence. See

Oscar, 877 F.3d at 1288 n.16.

Fattah contends that there is no record support for the

finding that Juror 12 said “he was going to hang this jury no

matter what.” Fattah Br. 29. To be sure, the courtroom deputy’s

testimony is not that Juror 12 used the words “hang this jury”

and “no matter what” in the same sentence. She testified that

Juror 12 first stated “I am going to hang this jury,” then later

stated “it is going to be 11 to 1 no matter what.” JA5981–82.

This is a distinction without a difference. Likewise, Fattah

challenges the District Court’s finding that Juror 12 was

determined to hang the jury “no matter what the law is” and

“no matter what the evidence is.” Fattah Br. 29. Although there

is no evidence that Juror 12 uttered the phrases “no matter what

the law is” or “no matter what the evidence is,” the District

Court was describing the import of Juror 12’s statements. This

was not error.

59

Fattah expresses the concern that “[i]f jurors are asked

the right questions or interrogated long enough, it would not be

difficult for a trial court to elicit testimony from [a] majority

[of] jurors that can be held up as evidence of a dissenting

juror’s bias or refusal to deliberate.” Fattah Br. 22. He also

worries that a group of jurors might have an incentive to rid

themselves of a juror who holds a different view. Id. These are

valid concerns—but no basis existed for such concerns in this

case. Juror 12’s own words provided most of the support for

his eventual dismissal. Furthermore, his statements were made

early in the deliberations, in a complex case, before any juror

could reasonably be expected to have reached final verdicts on

the twenty-nine counts before the jury.

The able District Judge did not err in finding that Juror

12 refused to deliberate and therefore violated his oath.

IV. The District Court’s Instructions Under McDonnell

On appeal, Fattah and Vederman renew their challenge

to the jury instructions given on Counts 3, 16, 17, 18, 22, and

23, concerning the meaning of the term “official act” as used

in the bribery statute (pursuant to which both were convicted)

and the honest services fraud statute (pursuant to which Fattah

alone was convicted).

In light of the Supreme Court’s opinion in McDonnell

v. United States, 136 S. Ct. 2355 (2016), released the week

after the jury verdict, the District Court conceded that its

instructions were incomplete and erroneous, at least as to

Counts 16–18. Nevertheless, the District Court held that the

erroneous jury instructions had not influenced the verdict on

the bribery counts, and declined to set aside Fattah and

60

Vederman’s convictions. As to Counts 16–18 and 22–23, we

disagree, and will reverse the District Court’s judgment. The

District Court’s judgment with respect to Count 3, which did

not involve Vederman, will be affirmed. JA78–79.

A. The McDonnell Framework

In McDonnell, the Supreme Court interpreted the term

“official act” as defined in 18 U.S.C. § 201(a)(3). 136 S. Ct. at

2368. The statute defines an “official act” as “any decision or

action on any question, matter, cause, suit, proceeding or

controversy, which may at any time be pending, or which may

by law be brought before any public official, in such official’s

official capacity, or in such official’s place of trust or profit.”

18 U.S.C. § 201(a)(3). The McDonnell Court distilled this

definition into two requirements:

First, the Government must identify a “question,

matter, cause, suit, proceeding or controversy”

that “may at any time be pending” or “may by

law be brought” before a public official. Second,

the Government must prove that the public

official made a decision or took an action “on”

that question, matter, cause, suit, proceeding, or

controversy, or agreed to do so.

136 S. Ct. at 2368. Applying this two-step test to Governor

Robert McDonnell’s convictions, the Supreme Court

concluded that “the jury was not correctly instructed on the

meaning of ‘official act,’ ” and as a result, “may have convicted

Governor McDonnell for conduct that is not unlawful.” Id. at

2375. Given that uncertainty, the Court “[could not] conclude

that the errors in the jury instructions were ‘harmless beyond a

61

reasonable doubt.’ ” Id. (quoting Neder v. United States, 527

U.S. 1, 16 (1999)). The Supreme Court, therefore, vacated

Governor McDonnell’s convictions. Id.

McDonnell lays out a clear path for the Government to

follow in proving that an accused has performed an “official

act.” First, the Government must “identify a ‘question, matter,

cause, suit, proceeding or controversy’ that ‘may at any time

be pending’ or ‘may by law be brought’ before a public

official.” 136 S. Ct. at 2368 (quoting 18 U.S.C. § 201(a)(3)).

This first step is divided into two sub-components. In Step

1(A), the Government must “identify a ‘question, matter,

cause, suit, proceeding or controversy.’ ” Id. Step 1(B) then

clarifies that the identified “question, matter, cause, suit,

proceeding or controversy” be one that “ ‘may at any time be

pending’ or ‘may by law be brought’ before a public official.”

Id.

Under Step 1(A), a “question, matter, cause, suit,

proceeding or controversy” must be “a formal exercise of

governmental power that is similar in nature to a lawsuit before

a court, a determination before an agency, or a hearing before

a committee.” Id. at 2372. Importantly, “a typical meeting,

telephone call, or event arranged by a public official” does not

qualify as such a formal exercise of governmental power. Id. at

2368.

Step 1(B) then requires us to ask whether the qualifying

“question, matter, cause, suit, proceeding or controversy” was

one that “ ‘may at any time be pending’ or ‘may by law be

brought’ before a public official.” Id. As the McDonnell Court

clarified, “ ‘[p]ending’ and ‘may by law be brought’ suggest

something that is relatively circumscribed—the kind of thing

62

that can be put on an agenda, tracked for progress, and then

checked off as complete.” Id. at 2369; accord United States v.

Repak, 852 F.3d 230, 252 (3d Cir. 2017) (quoting McDonnell,

136 S. Ct. at 2369). By contrast, matters described at a high

level of generality—for example, “[e]conomic development,”

“justice,” and “national security”—are not sufficiently

“focused and concrete.” McDonnell, 136 S. Ct. at 2369.

In McDonnell, the Court concluded that at least three

questions or matters identified by the Fourth Circuit were

sufficiently focused:

(1) whether researchers at any of Virginia’s state

universities would initiate a study of [a drug];

(2) whether the state-created Tobacco

Indemnification and Community Revitalization

Commission would allocate grant money for the

study of [a chemical compound]; and

(3) whether the health insurance plan for state

employees in Virginia would include [a specific

drug] as a covered drug.

Id. at 2370 (internal quotations omitted) (quoting United States

v. McDonnell, 792 F.3d 478, 515–16 (4th Cir. 2015)). We

provided guidance in the form of a fourth example in Repak,

when we held that a redevelopment authority’s awarding of

contracts was “a concrete determination made by the

[redevelopment authority’s] Board of Directors.” 852 F.3d at

253.

Step 2 requires the Government to prove that the public

official made a “decision” or took “an action” on the identified

“question, matter, cause, suit, proceeding or controversy.”

63

McDonnell, 136 S. Ct. at 2368. The McDonnell Court

explained:

Setting up a meeting, hosting an event, or calling

an official (or agreeing to do so) merely to talk

about a research study or to gather additional

information . . . does not qualify as a decision or

action on the pending question of whether to

initiate the study. Simply expressing support for

the research study at a meeting, event, or call—

or sending a subordinate to such a meeting,

event, or call—similarly does not qualify as a

decision or action on the study, as long as the

public official does not intend to exert pressure

on another official or provide advice, knowing or

intending such advice to form the basis for an

“official act.”

Id. at 2371. The Court further clarified:

If an official sets up a meeting, hosts an event, or

makes a phone call on a question or matter that

is or could be pending before another official,

that could serve as evidence of an agreement to

take an official act. A jury could conclude, for

example, that the official was attempting to

pressure or advise another official on a pending

matter. And if the official agreed to exert that

pressure or give that advice in exchange for a

thing of value, that would be illegal.

Id.

64

Here, Fattah was charged with engaging in three

categories of official acts, which we analyze in accordance

with the McDonnell framework. In Counts 16–18 and 22–23,

Fattah is alleged to have set up a meeting between Vederman

and the U.S. Trade Representative, attempted to secure

Vederman an ambassadorship, and hired Vederman’s

girlfriend, all in return for a course of conduct wherein

Vederman provided things of value to Fattah.

In this case, as in McDonnell, the jury instructions were

erroneous. We conclude that the first category of the charged

acts—setting up a meeting between Vederman and the U.S.

Trade Representative—is not unlawful, and that the second

category—attempting to secure Vederman an

ambassadorship—requires reconsideration by a properly

instructed jury. The third charged act—hiring Vederman’s

girlfriend—is clearly an official act. But because we cannot

isolate the jury’s consideration of the hiring from the first two

categories of charged acts, we must reverse and remand the

judgment of the District Court.

B. The Kirk Meeting

We turn first to Fattah’s scheduling of a meeting

between Vederman and the U.S. Trade Representative, Ron

Kirk. Under McDonnell, “setting up a meeting . . . does not,

standing alone, qualify as an ‘official act.’ ” 136 S. Ct. at 2368.

Fattah’s setting up the meeting between Vederman and Kirk

was therefore not an official act, a concession implicit in the

Government’s opening brief. See Gov’t Br. 32 (failing to

mention the Kirk meeting as one of the “two categories” of

allegedly “official acts”). But the jury was not properly

instructed on this point. Without the benefit of the principles

65

laid down in McDonnell, the jury was free to conclude that

arranging the Kirk meeting was an official act—and it may

have done so. The District Court’s erroneous jury instructions,

therefore, cannot survive harmless error review.

In a footnote in its brief to this Court, the Government

argues that evidence about the Kirk meeting was offered only

“because it established the strength of Vederman’s desire to be

an ambassador” and not because the Government was

attempting to establish the meeting as an independent official

act. Id. at79–80 n.6. But the record undercuts the

Government’s post hoc justification.

The indictment, provided to the jury in redacted form

for use in its deliberations, lists Fattah’s setting up the Kirk

meeting as an official act under the heading “FATTAH’s

Official Acts for VEDERMAN.” JA494. Under this heading

are three distinct subheadings: (1) “The Pursuit of an

Ambassadorship,” (2) “The Pursuit of Another Executive

Branch Position,” and (3) “Hiring the Lobbyist’s Girlfriend to

the Congressional Staff.” JA494–95. The second subheading,

“The Pursuit of Another Executive Branch Position,” describes

the arrangement of the Kirk meeting. Quite clearly, then, this

three-part structure demonstrates that setting up the Kirk

meeting was one of three distinct categories of official acts

alleged by the Government.

Although there is some support for the Government’s

argument that evidence of the Kirk meeting was presented at

trial only to establish the extent of Vederman’s interest in

becoming an ambassador, JA827, 852–53 (mentioning the

Kirk meeting in close proximity to references to Fattah’s

attempts to secure Vederman an ambassadorship), it is

66

undermined by language in the redacted indictment itself, and

by the way in which the Government presented its case at trial

as a “pattern” of connected acts.

The redacted indictment, for example, refers to the Kirk

meeting as “The Pursuit of Another Executive Branch

Position.” JA495 (emphasis added). The use of the word

“Another” strongly suggests that evidence about the Kirk

meeting was not merely evidence of Fattah’s attempt to secure

Vederman an ambassadorship, but was also evidence of a

separate and distinct attempt to secure Vederman a position on

a federal trade-related commission. The redacted indictment

also notes that “[i]n or around May 2011, with little progress

made on securing an ambassadorship for VEDERMAN,

FATTAH turned towards obtaining for VEDERMAN an

appointment in the Executive Branch to a federal trade

commission.” Id. (emphasis added). The words “turned

towards,” taken literally, clearly convey that arranging the Kirk

meeting was presented as distinct from Fattah’s efforts to

secure Vederman an ambassadorship.

The District Court denied Fattah and Vederman a new

trial on Counts 17 and 18, referring to evidence of the Kirk

meeting as “de minimis” and noting that “Kirk’s testimony

during this lengthy trial lasted a mere sixteen minutes.” JA97

n.14. In the District Court’s view, evidence of the Kirk meeting

“played no role in the outcome” of the case. Id. Considering

the record in light of McDonnell, we are not so sure.

Although it is possible that evidence of the Kirk meeting

played a minor role at trial when compared to the other acts on

which the Government presented evidence, the redacted

indictment suggests that the Kirk meeting was a significant part

67

of the Government’s case. The indictment dedicates five

paragraphs to describing the Kirk meeting, but just three

paragraphs to describing the hiring of Vederman’s girlfriend—

a hiring that, as we explain below, is clearly an official act.

JA495–96. While neither the number of minutes used at trial

nor the number of paragraphs contained in an indictment is a

dispositive unit of measurement for determining the

significance of evidence, we conclude that the District Court’s

erroneous jury instructions pertaining to the Kirk meeting were

not harmless.

We conclude, in accordance with McDonnell, that

Fattah’s arranging a meeting between Vederman and the U.S.

Trade Representative was not itself an official act. Because the

jury may have convicted Fattah for conduct that is not

unlawful, we cannot conclude that the error in the jury

instruction was harmless beyond a reasonable doubt, and we

must vacate and remand the convictions of Fattah and

Vederman as to Counts 16, 17, 18, 22 and 23.

C. Fattah’s Efforts to Secure Vederman an

Ambassadorship

The nature of Fattah’s efforts to secure Vederman an

ambassadorship is less clear, and presents a closer question

than the Kirk meeting. We ultimately conclude that the

question warrants remand so that it may be answered by a

properly instructed jury. On remand, the jury must decide

whether Fattah’s conduct constituted a “decision” or “action”

under Step 2 of the McDonnell analysis.

At the outset, it is clear to us that, under Steps 1(A) and

1(B), a formal appointment of Vederman as an ambassador

68

would qualify as a “matter” that “may at any time be pending”

before a public official. The formal appointment of a particular

person (Vederman), to a specific position (an ambassadorship),

constitutes a matter that is sufficiently focused and concrete.

The formal appointment of an ambassador is a matter that is

“pending” before the President—the constitutional actor

charged with nominating ambassadors—as well Senators, who

are charged with confirming the President’s ambassadorial

nominations. U.S. Const. art. II § 2 (“[H]e shall nominate, and

by and with the Advice and Consent of the Senate, shall

appoint Ambassadors . . . .”). It is beyond cavil that the formal

appointment of an ambassador satisfies both sub-components

of McDonnell’s Step 1.

Turning to Step 2, we consider whether Fattah’s efforts

to secure Vederman an ambassadorship qualify as making a

“decision” or taking “an action” on the identified “matter” of

appointment. McDonnell, 136 S. Ct. at 2368. Although those

efforts—three emails, two letters, and one phone call—do not

themselves qualify as a “question, matter, cause, suit,

proceeding, or controversy” under McDonnell’s Step 1, they

may nonetheless qualify as the making of a “decision” or

taking “an action” on the identified matter of appointment. Id.

McDonnell’s Step 2 requires us to determine whether

Fattah’s efforts qualify as permissible attempts to “express[]

support,” or impermissible attempts “to pressure or advise

another official on a pending matter.” Id. at 2371. At trial, the

jury was not instructed that they had to place Fattah’s efforts

on one side or the other of this divide. The jury might even

have thought they were permitted to find Fattah’s efforts—

three emails, two letters, and one phone call—to themselves be

official acts, rather than a “decision” or “action” on the

69

properly identified matter of appointment. Such a

determination would have been contrary to the dictates of

McDonnell.

Faced with such uncertainty, we cannot assume the jury

verdict was proper. Although the jury might not have

concluded that Fattah’s efforts were themselves official acts,

and although the jury might not have concluded that those

efforts crossed the line into impermissible attempts “to

pressure or advise,” we are unable to conclude that the jury

necessarily did so. Nor can we, on the cold record before us,

determine whether Fattah’s efforts to secure Vederman an

ambassadorship crossed the line. Determining, for example,

just how forceful a strongly worded letter of recommendation

must be before it becomes impermissible “pressure or advice”

is a fact-intensive inquiry that falls within the domain of a

properly instructed jury. Should the Government elect to retry

these counts after remand, the finder of fact will need to decide

whether Fattah’s efforts constituted permissible attempts to

“express[] support,” or impermissible attempts “to pressure or

advise another official on a pending matter.” Id.

D. The Zionts Hiring

The third group of acts charged in the Fattah–Vederman

scheme involves Fattah’s decision to hire Vederman’s

girlfriend, Alexandra Zionts, as a congressional staffer. We

conclude that the hiring was an official act. A brief analysis of

McDonnell’s two steps suffices to show why this is so.

Here, under McDonnell’s Step 1(A), the relevant

“matter” is the decision to hire Zionts. Step 1(B) of the analysis

is satisfied because the hiring decision was “pending” before

70

Fattah himself. And that hiring was “focused and concrete,”

“within the specific duties of an official’s position—the

function conferred by the authority of his office.” Id. at 2369.

Finally, McDonnell’s Step 2 requires that the “Government . . .

prove that the public official made a decision or took an action

‘on’ [the identified] question, matter, cause, suit, proceeding,

or controversy, or agreed to do so.” Id. at 2368. Fattah’s

decision to hire Zionts clearly satisfies that requirement. We

therefore conclude that the hiring of Zionts was an official act

under McDonnell.

Vederman concedes that the Zionts hiring was an

official act. Oral Argument Transcript at 5–6. Fattah, for his

part, maintains that “hiring someone for a routine, part-time,

short-term position falls well outside [the] definition [of

‘official act’] and is nothing like a lawsuit, agency

determination, or committee hearing, even if each shares the

happenstance that federal funds will be used.” Fattah Reply Br.

25.

Fattah’s argument lacks traction. Official acts need not

be momentous decisions—or even notable ones. Judges, for

example, make “routine” evidentiary rulings every day, and yet

it is beyond question that those rulings are official acts. In the

realm of official acts, it is of no moment that Zionts provided

only “part-time, short term” labor. When a public official hires

an employee to work in his government office, he has engaged

in an official act.

* * *

If we could conclude that the Zionts hiring was the only

category of actions that the jury relied on when it found that

71

Fattah performed an official act under Counts 16–18 and 22–

23, remand would not be necessary. But, as we have explained,

we cannot rule out that the jury erroneously convicted Fattah

and Vederman based on other actions that were not official acts

under McDonnell. 13

The Government argues that because the Zionts hiring

was an official act, the effect of the erroneous jury instructions

could be no more than harmless. The jury’s verdict, the

Government contends, permits us to deduce that the jury

necessarily concluded the Zionts hiring was an official act, and

that this conclusion alone supported Fattah’s and Vederman’s

convictions as to Counts 16–18 and 22–23—regardless of

whether the jury erroneously found any unofficial acts to be

official acts. We disagree.

Fattah and Vederman objected to the definition of

“official act” at trial. We thus apply the harmless error standard

13

More specifically, the incomplete, and therefore erroneous,

instructions could have led the jury to commit at least one of

three mistakes. First, the jury could have improperly convicted

Vederman and Fattah based on the Kirk meeting alone, or

misunderstood the Kirk meeting to be a necessary component

of an impermissible “pattern” of official acts. Second, the jury

might have concluded that Fattah’s efforts to secure Vederman

an ambassadorship were themselves official acts. Third, the

jury might have concluded that Fattah’s efforts to secure

Vederman an ambassadorship were merely attempts to

“express[] support,” rather than to “exert pressure . . . or

provide advice,” but nonetheless erroneously concluded that

those expressions of support were official acts. McDonnell,

136 S. Ct. at 2371.

72

of review. McDonnell, 136 S. Ct. at 2375. The Government

argues that because the jury convicted Fattah and Vederman of

illegally laundering the proceeds of a “scheme to commit

bribery” under Count 23, the jury found that the scheme must

have encompassed only the Zionts hiring. JA531.That would

mean that the jury did not conclude that the “scheme to commit

bribery” included any acts that McDonnell now makes clear

were unofficial. Yet the redacted indictment, jury instructions,

and the fact that the Government presented its case under a

“pattern” theory at trial compel us to reject the Government’s

argument.

The very first sentence under Count 23 of the redacted

indictment incorporates all three categories of “Overt Acts”

contained within paragraphs “58 through 95 of Count One.” 14

All three of these categories fall under a general heading within

the redacted indictment titled “The Bribery and Fraud Scheme

[redacted].” JA494. The jury had before it instructions for

Count 23 which referred to “the alleged bribery scheme

involving an $18,000 payment,” JA448 (emphasis added), and

the redacted indictment which referred to “a scheme to commit

bribery,” JA531 (emphasis added). The parallel language could

well lead a rational jury to conclude that the relevant “scheme”

included all three categories of acts listed under the general

heading: “The Bribery and Fraud Scheme [redacted].” JA494

(emphasis added).

14

JA531. Paragraphs 58 through 95 of Count 1 refer to the

three categories of allegedly official acts discussed above:

(1) “The Pursuit of an Ambassadorship,” (2) “The Pursuit of

Another Executive Branch Position,” and (3) the “Hiring of the

Lobbyist’s Girlfriend to the Congressional Staff.” JA494–95.

73

Like the redacted indictment and jury instructions, the

Government’s trial arguments referred to patterns and a course

of conduct, and stressed that the jury need not connect specific

payments to particular official acts. In its closing argument to

the jury, the Government stated that the alleged “scheme took

place over a period of several years. Over and over again

you’re going to see the same pattern.” JA5383 (emphasis

added). Then, in its rebuttal argument, the Government went

out of its way to explicitly distinguish its “pattern” theory from

an alternative theory that would have directly connected

individual payments to individual acts. As the prosecutor

argued to the jury:

Ms. Recker appears to argue that each thing of

value must coincide with some specific official

act, but that is not the law and that is not what

Judge Bartle is going to instruct you. Instead

what he will tell you is that the government is not

required to prove that Vederman intended to

influence Fattah to perform a set number of

official acts in return for things of value so long

as the evidence shows a course of conduct of

giving things of value, things of value to Fattah

in exchange for a pattern of official acts

favorable to Vederman. In other words a stream

of benefits. These for those, not this for that.

JA5715–16 (emphases added). In closing to the jury, the

Government made several other references to this “pattern”

74

theory, 15 and the District Court referred to this “pattern” theory

in its instructions to the jury. As Judge Bartle instructed:

[I]t is not necessary for the government to prove

that a defendant intended to induce a public

official to perform a number of official acts in

return for things of value.

So as long as the evidence shows a course

of conduct of giving things of value to a public

official in exchange for a pattern of official acts

favorable to the giver.

JA5833–34 (emphasis added). On appeal, the Government

changes course, asking us to assume that the jury ignored these

repeated references to a “pattern of official acts” and instead

considered the Zionts hiring and Vederman’s $18,000 payment

to Fattah as an isolated quid pro quo. This is an invitation to

speculate, and we decline to do so. 16 The jury began its

15

See, e.g., JA5389 (“And the exchange of an official act for a

thing of value is called a bribe. There’s the pattern. Fattah

needs money, Vederman gets an official act.”); JA 5393

(“That’s why you see the pattern over and over again. Fattah

needs money, Vederman gets an official act.”); JA5400 (“The

same pattern we saw over and over again. Fattah needs money,

Vederman gets an official act.”); JA5409 (“[Y]ou know that

these were bribes because of the pattern you saw over and over

and over again. Fattah needs money, Vederman gets an official

act, that makes these things a bribe.”).

16

Providing some support to the Government’s ultimately

unconvincing argument that the jury considered the Zionts

hiring and $18,000 payment in isolation, we note that the

redacted indictment does mention those two events side-by-

75

deliberations accompanied by a copy of the redacted

indictment which alleged a pattern of official acts, consisting

of any combination of three categories of acts: pursuing an

ambassadorship, arranging the Kirk meeting, and hiring

Zionts. In light of the erroneous instructions, and because only

one category clearly qualifies as an “official act,” the jury’s

deliberations were fraught with the potential for McDonnell

error. We will vacate the convictions of Fattah and Vederman

as to Counts 16, 17, 18, 22, and 23, and remand to the District

Court.

E. Vederman’s Sufficiency Challenge to Counts 16–18 and

22–23

Vederman argues that there is insufficient evidence to

support a conviction, even if a jury were properly instructed

under McDonnell. Specifically, Vederman argues that there is

insufficient evidence to convict him and Fattah, after remand,

side in paragraph 78 of the indictment’s Part V. JA497 (“On

January 13, 2012, VEDERMAN wired $18,000 to FATTAH,

and six days later, on January 19, 2012, BOWSER emailed

VEDERMAN’s girlfriend, A.Z., welcoming her as a new

employee to FATTAH’s Congressional Staff.”). But although

paragraph 78 mentions the $18,000 wire transfer and the Zionts

hiring in the same breath, paragraph 78 does not instruct the

jury to connect these two events apart from the rest of the

evidence presented at trial. In light of the other instructions and

arguments indicating that the jury should not consider the

Zionts hiring in isolation, but instead should consider the hiring

as one part of a three-part scheme, paragraph 78 is not

sufficient to avoid a reversal and remand on the convictions of

Fattah and Vederman as to Counts 16–18 and 22–23.

76

on Counts 16–18 and 22–23 because “[a]t least seven of the

eight alleged ‘official acts’ were, as a matter of law, not official

at all.” Vederman Br. 35. As to the single act that Vederman

implicitly concedes to be an official act—the Zionts hiring—

Vederman argues that “[t]he only thing that even arguably

associates” the Zionts hiring with Vederman was its timing in

relation to Vederman’s sham purchase of the Fattahs’ Porsche.

Id. According to Vederman, “the undisputed chronology

precludes any inference that Vederman conferred this benefit

on his friend as an illegal bribe.” Id. (emphasis omitted).

Vederman is wrong. Sufficient evidence was produced at trial

to have allowed a properly-instructed jury to convict Fattah and

Vederman of Counts 16–18 and 22–23.

To begin with, even if the Zionts hiring had been the

sole official act to survive this Court’s interpretation of

McDonnell, there would still be sufficient evidence to convict

Fattah and Vederman. Zionts did not receive written notice of

her official hiring until six days after the sham Porsche

purchase. Moreover, the jury would not be restricted to

considering the chronology of the sham purchase alone. It

would be free to consider Vederman’s entire course of conduct.

Under the general heading “VEDERMAN’S Payments and

Things of Value to FATTAH,” the redacted indictment not

only refers to the $18,000 wire transaction from Vederman to

Fattah as part of the sham Porsche purchase, but also to

Vederman’s $3,000 payment for the college tuition of Simone

Muller, Fattah’s live-in au pair, as well as thousands of dollars

in payments made by Vederman for Chip Fattah’s college

tuition. JA496–97.

And the Zionts hiring is not the only act to survive our

application of McDonnell. As we explained, a jury could find

77

that Fattah’s efforts to secure Vederman an ambassadorship—

three emails, two letters, and a phone call—were an

impermissible attempt to “pressure or advise” President

Obama, Senator Casey, or both men. 17 This means that a

properly instructed jury on remand, presented with evidence of

Fattah’s efforts to secure an ambassadorship for Vederman and

17

Although Fattah’s efforts to secure Vederman an

ambassadorship present a jury question that is not for us to

answer on appeal, we note that not one of these efforts alone

could qualify as an official act itself. See McDonnell, 136 S.

Ct. at 2372 (“Setting up a meeting, talking to another official,

or organizing an event (or agreeing to do so)—without more—

does not fit that definition of ‘official act.’ ”). The relevant

question for a jury to consider on remand, then, is whether

these actions constituted “a ‘decision or action’ on a different

question or matter”—to wit, the formal appointment of an

ambassador. Id. at 2369 (emphasis omitted).

Even though the emails, letters, and phone call are not,

individually, official acts, it will be for a jury to decide if

Fattah’s efforts to secure an ambassadorship for Vederman

crossed the line from permissible “support” to impermissible

“pressure or advice.” While we express doubt that some of

Fattah’s efforts concerning the ambassadorship are, when

considered in isolation, enough to cross that line, a properly

instructed jury considering all of the facts in context might

nonetheless conclude that other efforts—such as a hand-

delivered letter to the President of the United States—indeed

crossed that line. Further, a jury might find that in the

aggregate, three emails, two letters, and a phone call crossed

the line and therefore constituted a “decision or action” on the

identified matter of appointment.

78

evidence of the Zionts hiring, could find more than a single

official act.

F. Blue Guardians

In addition to the charges arising from his dealings with

Vederman, Fattah was charged in Count 3 with participating in

a scheme with Lindenfeld to funnel money to a fraudulent

nonprofit organization. In connection with this scheme, Fattah

was convicted of conspiring to commit honest services fraud.

Fattah owed Lindenfeld nearly $100,000 for work

performed on Fattah’s 2007 mayoral campaign. In lieu of

repayment, Fattah suggested that Lindenfeld create an entity,

later named Blue Guardians, to which Fattah would direct

$15,000,000 in public funds by using his position as a member

of the House Committee on Appropriations. Nothing in

McDonnell requires us to upset Fattah’s conviction on Count

3.

Step 1(A) of our McDonnell analysis requires the

Government to “identify a ‘question, matter, cause, suit,

proceeding or controversy.’ ” 136 S. Ct. at 2368. Here, the

“matter” is the appropriation of millions of dollars in public

funds. See Repak, 852 F.3d at 253–54 (holding the awarding of

redevelopment funds to be an official act). In particular, it was

Fattah’s promise to perform this official act that was unlawful.

As McDonnell makes clear:

[A] public official is not required to actually

make a decision or take an action on a “question,

matter, cause, suit, proceeding or controversy”;

it is enough that the official agree to do so. The

79

agreement need not be explicit, and the public

official need not specify the means that he will

use to perform his end of the bargain.

136 S. Ct. at 2370–71 (internal citations omitted). That Fattah

took steps to actually carry out his promise (e.g., by drafting

and sending a formal appropriations request on official

congressional letterhead) is evidence of his illegal promise. See

id. at 2371.

Step 1(B) requires the Government to establish that the

“ ‘question, matter, cause, suit, proceeding or controversy’ . . .

‘may at any time be pending’ or ‘may by law be brought’

before a public official.” McDonnell, 136 S. Ct. at 2368.

Appropriating public funds was not only a matter that was

pending before Fattah as a member of the Appropriations

Committee, it was also a matter that was pending before the

Chairman and Ranking Member of an Appropriations

Subcommittee to whom Fattah ultimately sent a formal written

request. See id. at 2369 (“[T]he matter may be pending either

before the public official who is performing the official act, or

before another public official.”). Appropriating millions of

dollars in response to the Blue Guardians request is “focused

and concrete,” and “the kind of thing that can be put on an

agenda, tracked for progress, and then checked off as

complete.” Id.

Given Fattah’s membership on the Appropriations

Committee, this was “something within the specific duties of

an official’s position—the function conferred by the authority

of his office.” Id. Even if we were to assume, against all reason,

that an appropriation is not “something within the specific

duties” of either Fattah or the Chairman or Ranking Member

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of an Appropriations Subcommittee, Fattah’s formal request

for an appropriation was something that Fattah had the

authority to do. Like the Executive Director in Repak, who

lacked authority himself to award redevelopment funds but

could request such funds from the Board, Fattah used his

position as a Congressman to formally request appropriations

for the Blue Guardians. 852 F.3d at 254 (“Repak had the power

to, and indeed did, make recommendations to the

[redevelopment authority.

Step 2 of McDonnell requires the Government to “prove

that the public official made a decision or took an action ‘on’

that question, matter, cause, suit, proceeding, or controversy,

or agreed to do so.” 136 S. Ct. at 2368 (emphasis added). Here,

Fattah agreed to request an appropriation for a bogus purpose.

Unlike Fattah’s letters, emails, and phone call seeking an

ambassadorship for Vederman, there is no potential for the jury

to have made a mistake when it found Fattah’s Blue Guardians

promise unlawful.

Fattah argues that the Government presented “[n]o

evidence . . . that would have allowed [the jury] to conclude

that [he] made a decision or took an action, or could have done

so, on the question whether Blue Guardians would receive a

$15 million federal grant.” Fattah Br. 46. This argument misses

the point. It was Fattah’s agreement to engage in the official

act of formally requesting the appropriation that was illegal.

See McDonnell, 136 S. Ct. at 2371.

Lindenfeld’s trial testimony provided sufficient

evidence of Fattah’s illegal agreement. JA1694–96, 1954.

Fattah’s letter provided additional evidence from which the

jury could have concluded that Fattah illegally agreed to

81

perform an official act. 18 In short, the agreement itself was

illegal, and the Government provided sufficient evidence for

the jury to conclude that the illegal agreement took place.

The Government’s evidence in support of the Blue

Guardians scheme meets the requirements of McDonnell, and

the Count 3 verdict will stand.

V. Sufficiency of the Evidence for the RICO Conspiracy

Conviction

The jury found Fattah, Vederman, Brand, and Nicholas

guilty of the RICO conspiracy charged in Count 1 of the

indictment, but acquitted Bowser. Vederman filed a post-

verdict motion, and the District Court overturned his RICO

conspiracy conviction.

On appeal, Fattah, Brand, and Nicholas challenge the

sufficiency of the evidence supporting their RICO conspiracy

convictions. We “review[] the sufficiency of the evidence in

the light most favorable to the government and must credit all

available inferences in favor of the government.” United States

v. Riddick, 156 F.3d 505, 509 (3d Cir. 1998). If a rational juror

could have found the elements of the crime beyond a

reasonable doubt, we must sustain the verdict. United States v.

Cartwright, 359 F.3d 281, 286 (3d Cir. 2004), abrogated on

18

Despite Fattah’s protestation to the contrary, there is

evidence that Fattah took steps to carry out his official act.

JA6432–33 (Letter from Congressman Fattah to House

Appropriations Subcommittee members “request[ing] funding

and support for the following projects and programs of critical

importance,” including $3,000,000 for “Blue Guardians”).

82

other grounds by United States v. Caraballo-Rodriguez, 726

F.3d 418 (3d Cir. 2013) (en banc).

The indictment charged a RICO conspiracy in violation

of 18 U.S.C. § 1962(d), which makes it “unlawful for any

person to conspire to violate” § 1962(c). Section 1962(c)

provides:

It shall be unlawful for any person . . . associated

with any enterprise engaged in, or the activities

of which affect, interstate . . . commerce, to

conduct or participate, directly or indirectly, in

the conduct of such enterprise’s affairs through a

pattern of racketeering activity . . . .

18 U.S.C. § 1962(c).

In Salinas v. United States, 522 U.S. 52 (1997), the

defendant was convicted of a § 1962(d) RICO conspiracy, but

a jury acquitted him of the substantive RICO offense under

§ 1962(c). Id. at 55. The Supreme Court rejected Salinas’s

contention that his conviction had to be set aside because he

had neither committed nor agreed to commit the two predicate

acts required for the § 1962(c) offense. Id. at 66. The Court

declared that liability for a RICO conspiracy under § 1962(d),

“unlike the general conspiracy provision applicable to federal

crimes,” does not require proof of an overt act. Id. at 63. A

conspiracy may be found, the Court explained, “even if a

conspirator does not agree to commit or facilitate each and

every part of the substantive offense. The partners in the

criminal plan must agree to pursue the same criminal objective

and may divide up the work, yet each is responsible for the acts

of each other.” Id. at 63–64 (citations omitted). This means

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that, if a plan “calls for some conspirators to perpetrate the

crime and others to provide support, the supporters are as guilty

as the perpetrators.” Id. at 64. Thus, opting into and

participating in a conspiracy may result in criminal liability for

the acts of one’s co-conspirators. Smith v. Berg, 247 F.3d 532,

537 (3d Cir. 2001).

Accordingly, liability for a RICO conspiracy may be

found where the conspirator intended to “further an endeavor

which, if completed, would satisfy all of the elements of a

substantive criminal offense, but it suffices that he adopt the

goal of furthering or facilitating the criminal endeavor.”

Salinas, 522 U.S. at 65. Because the substantive criminal

offense here was conducting a § 1962(c) enterprise, the

government had to prove:

(1) that two or more persons agreed to conduct

or to participate, directly or indirectly, in the

conduct of an enterprise’s affairs through a

pattern of racketeering activity; (2) that the

defendant was a party to or member of that

agreement; and (3) that the defendant joined the

agreement or conspiracy knowing of its

objective to conduct or participate, directly or

indirectly, in the conduct of an enterprise’s

affairs through a pattern of racketeering activity.

United States v. John-Baptiste, 747 F.3d 186, 207 (3d Cir.

2014).

In United States v. Turkette, 452 U.S. 576 (1981), the

Supreme Court instructed that an enterprise is a “group of

persons associated together for a common purpose of engaging

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in a course of conduct.” Id. at 583. The government can prove

an enterprise “by evidence of an ongoing organization, formal

or informal, and by evidence that the various associates

function as a continuing unit.” Id. In Boyle v. United States,

556 U.S. 938 (2009), the Supreme Court established that an

“association-in-fact enterprise must have at least three

structural features: a purpose, relationships among those

associated with the enterprise, and longevity sufficient to

permit these associates to pursue the enterprise’s purpose.” Id.

at 946. The structure necessary for a § 1962(c) enterprise is not

complex. Boyle explained that an enterprise

need not have a hierarchical structure or a “chain

of command”; decisions may be made on an ad

hoc basis and by any number of methods—by

majority vote, consensus, a show of strength, etc.

Members of the group need not have fixed roles;

different members may perform different roles at

different times. The group need not have a name,

regular meetings, dues, [or] established rules and

regulations . . . .While the group must function

as a continuing unit and remain in existence long

enough to pursue a course of conduct, nothing in

RICO exempts an enterprise whose associates

engage in spurts of activity punctuated by

periods of quiescence.

Id. at 948.

Another element of a substantive § 1962(c) RICO

enterprise is that the enterprise must conduct its affairs through

a pattern of racketeering activity. Section 1961 defines

racketeering activity to include various criminal offenses,

85

including wire fraud, 18 U.S.C. § 1344, and obstruction of

justice, 18 U.S.C. § 1511. See 18 U.S.C. § 1961(1). A pattern

of such activity “requires at least two acts of racketeering

activity.” Id. § 1961(5). The racketeering predicates may

establish a pattern if they “related and . . . amounted to, or

threatened the likelihood of, continued criminal activity.” H.J.

Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 237 (1989).

Here, the District Court denied the post-trial sufficiency

arguments raised by Fattah, Brand, and Nicholas. It reasoned:

For a RICO conspiracy to exist, the

conspirators must agree to participate in an

enterprise with a unity of purpose as well as

relationships among those involved. The

evidence demonstrates that an agreement among

Fattah, Brand, Nicholas, Lindenfeld, and Naylor

existed for the overall purpose of maintaining

and enhancing Fattah as a political figure and of

preventing his standing from being weakened by

the failure to be able to pay or write down his

campaign debts. These five persons agreed to

work together as a continuing unit, albeit with

different roles.

The Government established that Fattah,

Brand, and Nicholas conspired along with

Naylor and Lindenfeld to conceal and repay the

2007 illegal $1,000,000 loan to the Fattah for

Mayor campaign.

JA128–29. The District Court further determined that

86

[w]hile each member may not have been

involved in every aspect of the enterprise, its

activities were sufficiently structured and

coordinated to achieve the purpose of

maintaining and enhancing Fattah’s political

standing and of preventing him from being

weakened politically because of his campaign

debts.

A RICO conspiracy also requires an

agreement to participate in an enterprise with

longevity sufficient to pursue its purpose. This

was established. In May 2007 the illegal loan

was obtained and continued through its

repayment in January 2008 and into at least 2014

when the last campaign report reducing a fake

campaign debt to Naylor’s consulting firm was

filed by Fattah.

JA131.

The defendants argue that the evidence is insufficient to

show either an enterprise for purposes of § 1962(c) or an

agreement as required for a § 1962(d) conspiracy. We disagree,

and conclude that the District Court’s analysis is on the mark.

We begin by considering whether there was an

agreement. The evidence showed that Fattah knew each

member involved in the scheme to conceal the unlawful

campaign loan. When Lindenfeld learned of the $1 million

loan, he informed Fattah that it exceeded campaign finance

limits. In short, the transaction was unlawful, and the two knew

it. The transaction nonetheless went forward, disguised as a

loan, with Lindenfeld executing the promissory note as

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Strategies’ officer and obligating Strategies to repay Lord $1

million. The concealment efforts continued as Lindenfeld

funneled a substantial portion of the loan proceeds to Naylor

for get-out-the-vote efforts. After the losing campaign,

Lindenfeld spoke with Fattah and Naylor about accounting for

the funds that had been spent. They decided not to include the

amounts in the FFM campaign reports. Fattah instructed

Naylor to prepare a fictitious invoice, and Naylor complied.

The FFM campaign reports filed from 2008 to 2014 disclosed

nothing about the unlawful $1 million loan. Instead, they

falsely showed that Naylor’s consulting firm made yearly in-

kind contributions of $20,000 in debt forgiveness, when in

reality there was no debt to forgive.

As Lindenfeld fretted over repaying the $600,000

balance of the Lord loan, Naylor assured him that Fattah had

promised to take care of the repayment. And the evidence

supports an inference that Fattah recruited both Nicholas and

Brand in doing so. As EAA’s director, Nicholas could fund the

repayment. Brand, through his company, Solutions, acted as

the middleman: he received the payment from EAA pursuant

to a fictitious contract, and then forwarded the balance due to

Strategies pursuant to yet another fictitious contract. Nicholas

and Brand continued in the spring and summer of 2008 to hide

the fictitious agreement and the $600,000 payment to

Lindenfeld to satisfy the Lord loan.

In short, this evidence shows that Fattah, Lindenfeld,

Naylor, Brand, and Nicholas all agreed to participate in

Fattah’s plan to conceal the unlawful campaign loan to

maintain his political stature. Nicholas and Brand claim that

they had no knowledge of the false campaign reporting aspect

of the plan. But as Salinas instructs, conspirators need not

88

“agree to commit or facilitate each and every part of the”

conspiracy. 522 U.S. at 63. Rather, they “must agree to pursue

the same criminal objective and may divide up the work, yet

each [be] responsible for the acts of each other.” Id. at 63–64.

Thus, a conspirator may agree to “facilitate only some of the

acts leading to the substantive offense” yet still be criminally

liable. Id. at 65.

The evidence showed that a substantial amount of

money was needed to repay Lord, and that the source of the

repayment was EAA, a non-profit organization whose funds

could be spent only for purposes consistent with the terms of

the grants it received. It also showed that Nicholas was

presented with a sham contract to legitimize the EAA–

Solutions transaction. We conclude that the evidence is

sufficient to support an inference that Nicholas knew at the

start that the plan was unlawful. Yet she still agreed to provide

the requisite funds and to play a role in concealing the illegal

campaign loan so that Fattah could maintain his political

stature.

As to Brand, even if he did not know that false campaign

reports were being filed, the evidence is sufficient to show he

played a key role in the enterprise. From the outset, Brand

worked to disguise the repayment of the Lord loan as the

consideration in a sham contract between EAA and Solutions.

He then arranged for the transfer of funds to Strategies in

satisfaction of a contractual term in another purported business

agreement between Solutions and Strategies. The evidence

reveals that Brand was the point man in the effort to meet the

January 31, 2008 deadline to repay the Lord loan, and it amply

shows that Brand also agreed to participate in the plan to hide

89

the illegal campaign loan and its repayment to benefit Fattah

politically.

Fattah, Brand, and Nicholas attack their RICO

conspiracy convictions on another front. They argue that those

verdicts should be set aside because the evidence fails to show

that the various schemes alleged in the indictment as part of the

RICO conspiracy are connected. The RICO count, they assert,

charges a hub-and-spoke conspiracy that is unconnected by a

rim. In their view, Fattah is the hub, and the spokes consist of

a series of independent schemes: the Vederman bribery

scheme, the payment of the outstanding tuition debt of Fattah’s

son Chip, the Blue Guardians plan, and the repayment of the

illegal Lord loan to maintain Fattah’s political stature. They

argue that, without a unifying rim, their actions cannot

constitute an enterprise. Again, we disagree.

In In re Insurance Brokerage Antitrust Litigation, 618

F.3d 300 (3d Cir. 2010), we concluded, in analyzing one of

plaintiffs’ RICO claims, that the alleged hub-and-spoke

enterprise—comprised of broker hubs and insurer spokes—

could not withstand a motion to dismiss because it did not have

a unifying rim. Id. at 374. We explained that the allegations did

“not plausibly imply concerted action—as opposed to merely

parallel conduct—by the insurers, and therefore cannot provide

a ‘rim’ enclosing the ‘spokes’ of these alleged ‘hub-and-spoke’

enterprises.” Id. Thus, the allegations did not “adequately plead

an association-in-fact enterprise” because the hub-and-spoke

conspiracy failed to “function as a unit.” Id.

That is not the case here. The evidence showed that

Fattah, Brand, and Nicholas agreed to conceal the illegal Lord

loan. Each acted for the common purpose of furthering Fattah’s

90

political interests. In short, they engaged in concerted activity

and functioned as a unit. The jury convicted Fattah, Brand, and

Nicholas of the RICO conspiracy based on the racketeering

activity of wire fraud and obstruction of justice to conceal the

unlawful transaction. Because the evidence shows that Fattah,

Lindenfeld, Naylor, Brand, and Nicholas agreed to protect

Fattah’s political status by acting to maintain the secrecy of the

unlawful Lord loan, the alleged lack of a unifying “rim” is not

fatal to this RICO enterprise. What matters in analyzing the

structure of this enterprise is that it functioned as a unit. Boyle,

556 U.S. at 945; In re Ins. Brokerage Antitrust Litig., 618 F.3d

at 374. That “basic requirement” was met. Id.

We turn next to the contention that the evidence fails to

establish other components of an enterprise. We conclude that

much of the evidence supporting the existence of an agreement

also shows that there was an association-in-fact enterprise.

Boyle made clear that an association-in-fact enterprise

must have “a purpose, relationships among those associated

with the enterprise, and longevity sufficient to permit these

associates to pursue the enterprise’s purpose.” 556 U.S. at 946.

The purpose, as we have repeatedly observed, was to maintain

and preserve Fattah’s political stature by concealing the illegal

loan and its repayment. Though informal, there were

relationships among those associated with the enterprise.

Fattah was at the center of this association and he directed its

activity. He knew each of the association’s members, and the

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members knew each other (except, perhaps, for Nicholas, who

may not have known Lindenfeld). 19

The Government also adduced sufficient proof of the

longevity component required for an enterprise. The scheme

began in mid-2007, when Lord made the campaign loan,

directing the proceeds of the loan to Strategies. From the

outset, Fattah, Lindenfeld, and Naylor all knew they needed to

conceal this illegal transaction. They began by fabricating an

explanation for the source of the funds they spent on election

day. SLA created a fake invoice for the campaign, showing a

fictitious debt that Naylor could later forgive by fictitious in-

kind contributions existing only on Fattah’s campaign finance

reports.

The effort to disguise the Lord loan was not limited to

filing false campaign reports. Nicholas and Brand, who joined

the conspiracy a few months later than the other members,

understood that they too had to make the fraudulent $600,000

payment by EAA to Solutions appear legitimate. Nicholas and

Brand tried to disguise the sham contract as an ordinary

transaction (even though it called for a six-figure upfront

payment simply to support Solutions’ various projects), and

19

Nicholas’s lack of familiarity with Lindenfeld does not

undermine her membership in this association-in-fact

enterprise. We have previously explained that “[i]t is well-

established that one conspirator need not know the identities of

all his co-conspirators, nor be aware of all the details of the

conspiracy in order to be found to have agreed to participate in

it.” United States v. Riccobene, 709 F.2d 214, 225 (3d Cir.

1983), abrogated on other grounds by Griffin v. United States,

502 U.S. 46 (1991).

92

they succeeded in keeping it out of the DOJ auditors’ view until

August 2008. The ruse continued as Solutions funneled the

$600,000 payment to Strategies under the guise of another

sham contract (which also required an upfront six-figure

payment). The scheme then continued as Fattah submitted false

FFM campaign reports from 2008 through 2014.

Finally, we consider whether the enterprise conducted

its affairs through a pattern of racketeering activity, as required

for a § 1962(c) enterprise. Wire fraud and obstruction of justice

may constitute “racketeering activity” under § 1961(1). As the

Supreme Court instructed in H.J. Inc., the “multiple predicates

within a single scheme” must be related and “amount[] to, or

threaten[] the likelihood of, continued criminal activity.” 492

U.S. at 237. Here, the amount of the illegal loan to be concealed

was substantial. The enterprise needed to write off the fictitious

debt to Naylor’s consulting firm, and it was urgent that both

the EAA–Solutions contract and the Solutions–Strategies

contract be legitimized. We conclude the evidence was

sufficient to establish that this enterprise conducted its affairs

through a pattern of racketeering activity and that the predicate

acts of wire fraud and obstruction of justice were related. The

racketeering activity furthered the goals of maintaining the

secrecy of this $1 million illicit campaign loan and of

preserving Fattah’s political stature.

Nicholas contends that the evidence fails to establish a

pattern of racketeering activity because the actions to which

she agreed did not “extend[] over a substantial period of time”

as H.J. Inc. requires. 492 U.S. at 242. That case indeed instructs

that the continuity requirement of a pattern is a “temporal

concept,” and that “[p]redicate acts extending over a few

weeks or months” do not satisfy the continuity concept. Id. But

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the Supreme Court explained that continuity may also be

established by showing that there is a “threat of continued

racketeering activity.” Id. Here, the course of fraudulent

conduct undertaken to secure and to conceal the $1 million

Lord loan consisted of the creation of sham debts, fictitious

contracts, and false accounting entries over the course of about

a year. But because Fattah needed to appear able to retire his

campaign debt, the enterprise needed to continue filing false

campaign reports for several years, allowing the annual

$20,000 in-kind debt forgiveness contributions to appear to

satisfy Naylor’s fake $193,000 invoice. That evidence was

sufficient to establish the requisite threat of continued criminal

activity. See H.J. Inc., 492 U.S. at 242–43.

We conclude that the Government met its burden in

proving that Fattah, Brand, and Nicholas 20 engaged in a RICO

conspiracy in violation of § 1962(d).

20

Nicholas also asserts, in passing, that that her conviction

under § 1962(d) should be set aside because that statutory

provision is unconstitutionally vague as applied to her.

According to Nicholas, a person of ordinary intelligence would

not know that her actions constituted an agreement to

participate in a RICO enterprise. See United States v.

Pungitore, 910 F.2d 1084, 1104–05 (3d Cir. 1990). To the

contrary, a person of ordinary intelligence, who had been

employed by a prominent politician and then became the CEO

of a nonprofit organization which that politician had founded

(and, to some extent, continued to direct), would realize that

agreeing to participate with others in hiding an unlawful

campaign loan of $1 million could constitute an unlawful

RICO conspiracy.

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VI. Variance from the Indictment and Sufficiency of the

Evidence for Count 2

Brand and Nicholas challenge their convictions for

conspiracy to commit wire fraud by arguing that the

Government’s evidence at trial impermissibly varied from the

indictment. Nicholas also challenges the sufficiency of the

evidence to support her conviction for conspiracy to commit

wire fraud. We address these contentions together. 21

Count 2 of the indictment alleged a single conspiracy.

JA277–79. Brand and Nicholas assert that the Government’s

evidence at trial did not support the existence of a single

conspiracy but instead showed two independent conspiracies,

only one of which involved the two of them. According to

Brand and Nicholas, the only conspiracy with which they were

involved ended more than five years before the Government

charged them. That would mean that all their conduct falls

outside the five-year limitations period for wire fraud

conspiracy under 18 U.S.C. § 3282.

“A conviction must be vacated when (1) there is a

variance between the indictment and the proof presented at trial

and (2) the variance prejudices a substantial right of the

defendant.” Kemp, 500 F.3d at 287 (quoting United States v.

Kelly, 892 F.2d 255, 258 (3d Cir. 1989)). We see no variance,

and will affirm the District Court.

21

In her briefing, Nicholas discusses variance in far less detail

than Brand, so we refer primarily to Brand’s arguments. See

Nicholas Br. 54–56. Her variance arguments fail for the same

reasons that Brand’s fail.

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A variance exists “if the indictment charges a single

conspiracy while the evidence presented at trial proves only the

existence of multiple conspiracies.” Id. “We must determine

‘whether there was sufficient evidence from which the jury

could have concluded that the government proved the single

conspiracy alleged in the indictment.’ ” Id. (quoting Kelly, 892

F.2d at 258). Viewing the record in the light most favorable to

the Government, we consider three factors: (1) “whether there

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

agreement contemplated bringing to pass a continuous result

that will not continue without the continuous cooperation of

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

overlap in the various dealings.” Id. (quoting Kelly, 892 F.2d

at 259).

Brand argues that the Government failed to establish a

common goal among the conspirators. To determine whether

the conspirators shared a common goal, “we look to th

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