# United States v. Chaka Fattah, Sr.

> Court of Appeals for the Third Circuit · August 9, 2018 · 902 F.3d 197

URL: https://www.frixlaw.com/law-library/cases/4302370

## Case

- **Full name:** 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
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** August 9, 2018
- **Citations:** 902 F.3d 197
- **Precedential status:** Published
- **Opinion:** Opinion by Smith
- **Judges:** Smith
- **Cited by:** 5 later opinions in the Frix Law Library

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## Opinion text

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 FATT

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4302370. Public record. Not legal advice.