United States v. Wayne Bryant

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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Nos. 09-3243 & 09-3275

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UNITED STATES OF AMERICA

v.

WAYNE R. BRYANT,

Appellant (09-3243)

R. MICHAEL GALLAGHER,

Appellant (09-3275)

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On Appeal from the United States District Court

For the District of New Jersey

(D.C. Criminal Action Nos. 3-07-cr-00267-001/2)

District Judge: Honorable Freda L. Wolfson

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Argued March 8, 2011

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Before: SCIRICA, AMBRO,

and VANASKIE, Circuit Judges

(Opinion filed: August 25, 2011)

Lisa A. Mathewson, Esquire (Argued)

123 South Broad Street, Suite 810

Philadelphia, PA 19109-0000

Carl D. Poplar, Esquire

1010 Kings Highway South, Building Two

Cherry Hill, NJ 08034-0000

Counsel for Appellant

Wayne R. Bryant

Jeremy D. Frey, Esquire (Argued)

Pepper Hamilton

18th & Arch Streets

3000 Two Logan Square

Philadelphia, PA 19103-0000

Ralph A. Jacobs, Esquire (Argued)

Jacobs & Singer

1515 Market Street, Suite 705

Philadelphia, PA 19102

Counsel for Appellant,

R. Michael Gallagher

Paul J. Fishman

United States Attorney

Mark E. Coyne, Esquire

Office of United States Attorney

970 Broad Street, Room 700

Newark, NJ 07102-0000

2

Norm Gross, Esquire (Argued)

Office of United States Attorney

Camden Federal Building & Courthouse

401 Market Street

P.O. Box 2098, 4th Floor

Camden, NJ 08101-0000

Counsel for Appellee

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OPINION OF THE COURT

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AMBRO, Circuit Judge

This case involves the federal crimes of honest

services fraud, mail fraud, and bribery. Appellants Wayne

Bryant and R. Michael Gallagher were charged with six

counts of honest services fraud, in violation of 18 U.S.C.

§§ 1341, 1343 and 1346 (the “honest services fraud counts”),

and one count each of bribery in connection with a state

agency that receives federal funds, in violation of 18 U.S.C.

§ 666(a) (the “bribery counts”), all in connection with a

scheme to defraud the citizens of the State of New Jersey of

Bryant’s honest services as a State Senator. Counts 9-13

charged Bryant with mail fraud, in violation of 18 U.S.C.

§ 1341, in connection with a second scheme involving his

state pension application. A jury convicted Bryant on all

counts and Gallagher on all counts but one, which dealt with

the mailing of Bryant’s 2003 Financial Disclosure statement.

Their sentences included imprisonment—48 months for

Bryant and 18 months for Gallagher—and joint restitution in

3

the amount of $113,167. For the reasons that follow, we

affirm their convictions and the restitution order.

I. Background

Gallagher was formerly Dean of the School of

Osteopathic Medicine (“SOM”) of the University of Medicine

and Dentistry of New Jersey (“UMDNJ”). Bryant, as noted,

was a New Jersey State Senator. They were indicted in 2007.

The charges stemmed from an alleged quid pro quo

arrangement in which Gallagher gave Bryant a “low-show”

job at SOM (meaning he provided only minimal or nominal

services) as a “Program Support Coordinator,” in which

position he received an annual salary of $35,000 (and a

$5,000 bonus), in exchange for Bryant’s efforts as Chairman

of the Senate Appropriations Committee to funnel State

funding to SOM. The quo was a “success”: during Bryant’s

tenure at SOM, the institution gained an additional $10

million in funding over three years. Based on that same

scheme, Bryant and Gallagher were also charged under the

federal bribery statute—Bryant for corruptly soliciting and

demanding the SOM salary and Gallagher for corruptly

giving the salary.

In a second scheme, involving only Bryant, the

Government alleged that he also attempted to use a “no-

show” job (meaning he personally provided no services at all)

as an attorney for the Gloucester County Board of Social

Services (the “Social Services Board”) to increase his pension

benefits. Specifically, the Government introduced evidence

at trial showing that Bryant falsely reported that he had

worked numerous hours providing legal services to the Social

Services Board when he had not provided those services at all

but had delegated his work to associates at his private law

4

firm. In other words, Bryant claimed pensionable time credit

for work he did not do. In New Jersey, the amount of pension

benefits for which a public servant is eligible depends on the

number of public sector jobs held. Thus, by accumulating

public sector jobs, but not actually performing the duties

commensurate with the positions, the Government argued that

Bryant fraudulently inflated his pension eligibility.

After Appellants’ convictions in November 2008, the

District Court denied their motions for a judgment of acquittal

or a new trial and this appeal followed. The District Court

had jurisdiction under 28 U.S.C. § 3231. We have

jurisdiction under 28 U.S.C. § 1291.

Appellants challenge their convictions on the

following grounds: they argue that the Government violated

their due process rights by interfering with their access to

potential witnesses in the pretrial phase of the case; that the

evidence of honest services fraud and bribery was

insufficient; and that the jury instructions on both honest

services fraud and bribery were defective. Bryant challenges

the sufficiency of the evidence that he committed mail fraud

in connection with the pension scheme. He also claims that

he is entitled to a judgment of acquittal or a new trial on the

pension fraud counts because the District Court improperly

allowed a lay witness to testify about the law. Lastly, both

Bryant and Gallagher challenge the order of restitution. We

consider each argument in turn.

5

II. Discussion

A. The Prosecutorial Misconduct Claim

During its investigation of Appellants, the Government

issued grand jury subpoenas to potential witnesses with the

following language placed on the front of each subpoena:

Disclosure of the nature and existence of this

subpoena could obstruct and impede a criminal

investigation into alleged violations of federal

law. Therefore, the United States Attorney

requests that you do not disclose the existence

of this subpoena.

Appellants argued to the District Court that this language, and

the Government’s requests during the grand jury proceedings

that witnesses voluntarily not disclose “any matters” that

occur during those proceedings, 1 interfered with the defense’s

access to witnesses. They claim that this violated due process

and Federal Rule of Criminal Procedure 6(e)(2)(A), 2 which

1

Appellants allege two additional examples of improper

Government conduct: that an FBI agent told a witness not to

disclose the subpoena, or “words to [that] effect;” and that

another agent asked a witness after her testimony whether she

had heeded the nondisclosure request.

2

Federal Rule of Criminal Procedure 6(e)(2)(A) states, in

part, that “[n]o obligation of secrecy may be imposed on any

person except in accordance with [the exceptions enumerated

in B].” Those exceptions are laid out in Federal Rule of

Criminal Procedure 6(e)(2)(B), which lists certain actors in

the grand jury process who “must not disclose a matter

6

prohibits the Government from imposing an obligation of

secrecy on witnesses. The District Court denied their pretrial

motion to dismiss the indictment on those grounds. Instead, it

ordered the Government to write to the witnesses and inform

them that they were under no legal obligation to keep the

subpoena secret.

On appeal, Appellants again argue that the

Government’s conduct—including both the subpoena

language and its requests to witnesses to preserve the secrecy

of the proceeding—violated Rule 6(e)(2)(A) and due process.

They claim that the Government’s actions restricted the “free

choice” of potential witnesses to speak to defense counsel and

effectively imposed an obligation of secrecy on those

witnesses. We disagree.

We review a district court’s decision regarding a

motion to dismiss an indictment because of prosecutorial

misconduct for abuse of discretion. See United States v. Lee,

612 F.3d 170, 193 (3d Cir. 2010). Generally, because

witnesses “belong” neither to the defense nor to the

prosecution, both must have equal access to witnesses before

trial. Kines v. Butterworth, 669 F.2d 6, 9 (1st Cir. 1981);

Callahan v. United States, 371 F.2d 658, 660 (9th Cir. 1967).

If the prosecution impermissibly interferes with the defense’s

access to a witness during a criminal trial, that conduct

violates due process insofar as it undermines the fundamental

fairness of the proceeding. Kines, 669 F.2d at 9 (collecting

cases). In connection with a grand jury proceeding, Rule

6(e)(2) also provides that the Government may not impose an

occurring before the grand jury.” Witnesses are not included

in that listing.

7

obligation of secrecy on a witness absent limited exceptions,

none of which applies here.

However, there is an important difference between

requesting nondisclosure and discretion on the part of

witnesses and artificially restricting defense counsel’s access

to witnesses by, for example, instructing the latter not to

communicate with the former. Merely requesting that

witnesses practice discretion does not violate a defendant’s

due process rights. See United States v. Agostino, 132 F.3d

1183, 1191-92 (7th Cir. 1997). Here, the record demonstrates

that the Government requested, but never required, witnesses

not to disclose the subpoena or the grand jury proceedings.

Aside from those requests, it took no affirmative steps to

restrict or stop witnesses from conferring with the defense.

Appellants argue that the language, emblazoned on the

subpoena, gave an appearance of a judicial imprimatur that

suggested to witnesses they were legally obligated to comply

with the Government’s secrecy request. Certainly, many

forthright citizens would comply with such a request, given

the context in which it was made. However, we will not say

what occurred here imposed an obligation of secrecy.

Compare id. at 1192 (holding that prosecutor’s mere request

that witness not discuss his testimony with defense counsel,

while acknowledging his right to do so, did not constitute a

due process violation), with In re Grand Jury Proceedings

(Appeal of Diamante), 814 F.2d 61, 68-70 (1st Cir. 1987)

(concluding that a subpoena instructing witnesses “not to

disclose the existence of this subpoena or the fact of your

compliance for a period of 90 days from the date of the

subpoena” impermissibly conveyed that witnesses were

legally obligated to remain silent).

8

Nor do we think that the Government’s actions

infected the fairness of the proceeding. Notably, Appellants

did not identify to the District Court (nor do they now) any

witnesses who claim that they would have spoken to the

defense but were deterred from doing so because of the

Government’s nondisclosure requests. Rather, those

witnesses who declined to speak with the defense did so on

the advice of counsel. 3 But “[n]o right of a defendant is

violated when a potential witness freely chooses not to talk; a

witness may of his own free will refuse to be interviewed by

either the prosecution or the defense.” Kines, 669 F.2d at 9;

see also United States ex rel. Trantino v. Hatrack, 408 F.

Supp. 476, 481 (D.N.J. 1976) (“[W]hile it is true that a

witness is not to be prevented from speaking to the defense by

the prosecution, it is equally true that a witness cannot be

required to speak to an investigator or attorney. That matter

rests . . . entirely with the witness.”).

Even if there were witnesses (about whom we do not

know) with the mistaken impression that they could not speak

to the defense, the District Court took measures to clarify

such a misunderstanding well before trial. In response to

Appellants’ motion to dismiss, the Court instructed the

Government to send a letter to all subpoena recipients five

3

These witnesses were employees of UMDNJ, whose general

counsel advised them not to speak with the defense. Counsel

stated that she instructed the employees not to speak with the

defense for fear it would jeopardize the University’s deferred

prosecution agreement. In this context, we do not attribute to

Government misconduct UMDNJ counsel’s advice to

University employees.

9

months before the start of trial, stating that the witnesses had

“an absolute right to speak to anyone . . . about anything

[they] know about any of the matters under investigation,

including the fact that [they] were subpoenaed and . . .

testified before the grand jury.” 4 In particular, that letter

confirmed that the Government “[would] not take any adverse

action against [the witness] or [his or her] employer because

[he or she chose] to speak to the defense or anyone else about

these matters.”

In these circumstances, we believe that Appellants

have not shown that, because of the Government’s conduct,

there was an “absence of . . . fairness [that] fatally infected

the trial.” Kines, 669 F.2d at 9 (quoting Lisenba v.

California, 314 U.S. 219, 236 (1941)); see also United States

v. Terzado-Madrugo, 897 F.2d 1099, 1108-09 (11th Cir.

1990) (concluding that letter advising witness that she was

free to talk to defense cured or mitigated any harm from

Government’s prior insinuation that witness would face legal

consequences from speaking with defense); Diamante, 814

F.2d at 70 (advising the Government to correct its error of

instructing subpoenaed witnesses to keep their involvement in

the grand jury secret by sending out letters notifying the

witnesses that they have no legal obligation to do so). 5

4

We agree with the District Court that the Government’s

practice of placing its non-disclosure request on all grand jury

subpoenas is “not a good policy” and discourage that practice

in the future.

5

Appellants claim that, in the time before the curative letter

was sent, some witnesses’ memories faded before the defense

could speak with them and others were too intimidated by the

10

Accordingly, we conclude that Appellants were not denied

due process of law or the protections of Rule 6(e)(2)(A) and

we decline to vacate their convictions for those reasons. 6 We

now turn to the merits of Appellants’ remaining claims.

B. Sufficiency of the Evidence on the Honest Services

Fraud and Bribery Counts

After trial, Bryant and Gallagher challenged the

sufficiency of the evidence to support their honest services

fraud and bribery convictions in a motion for a judgment of

acquittal. Fed. R. Crim. P. 29. 7 The District Court denied

their motion, finding that the record supported the jury’s

verdict. On appeal, they again challenge the sufficiency of

the evidence to support their convictions.

We review a sufficiency of the evidence challenge de

novo, viewing the evidence in the light most favorable to the

prosecution. United States v. Miller, 527 F.3d 54, 60 (3d Cir.

2008). Appellants have a heavy burden to carry: “[w]e will

overturn a verdict only ‘if no reasonable juror could accept

evidence as sufficient to support the conclusion of the

grand jury process to come forward. They offer nothing to

support these assertions and we shall not address their

speculations.

6

Nor do we believe that the District Court erred in declining

to afford Appellants a hearing to demonstrate prejudice, and

thus we do not remand the case for such a hearing now.

7

Bryant also challenged the sufficiency of the evidence to

support the pension fraud counts in the Rule 29 motion,

which we consider below.

11

defendant’s guilt beyond a reasonable doubt.’” United States

v. Anderskow, 88 F.3d 245, 251 (3d Cir. 1996) (quoting

United States v. Coleman, 811 F.2d 804, 807 (3d Cir. 1987));

see also Wright v. West, 505 U.S. 277, 296-97 (1992) (same).

We do not believe Appellants have met that burden.

Our Court has defined the elements of traditional mail

fraud as follows: “To prove mail fraud, the government must

establish (1) the defendant’s knowing and willful

participation in a scheme or artifice to defraud, (2) with the

specific intent to defraud, and (3) the use of the mails . . . in

furtherance of the scheme.” United States v. Kemp, 500 F.3d

257, 279 (3d Cir. 2007) (citation and internal quotation marks

omitted). “[T]he term ‘scheme or artifice to defraud’ includes

[one] to deprive another of the intangible right of honest

services.” Id. (citing 18 U.S.C. § 1346). Bribery, “where a

[public official] was paid for a particular decision or action,”

is one type of honest services fraud. Id. (quoting United

States v. Antico, 275 F.3d 245, 263 (3d Cir. 2001))

(alterations in original). The indictment in our case charged

Appellants under a bribery theory of honest services fraud. 8

The Supreme Court has explained that, as “[b]ribery

requires intent ‘to influence’ an official act or ‘to be

influenced’ in an official act . . . , there must be a quid pro

quo—a specific intent to give or receive something of value in

exchange for an official act.” United States v. Sun-Diamond

Growers, 526 U.S. 398, 404-05 (1999) (emphasis in original).

As the District Court instructed the jury, a quid pro quo may

8

They were also charged under an additional theory

involving failure to disclose a conflict of interest, but the

District Court struck those allegations before trial.

12

come in the form of a “stream of benefits.” Accordingly, to

prove a quid pro quo

the Government is not required to present

evidence that attributes each official action to a

corrupt payment. It is enough for the

[G]overnment to present evidence that shows a

course of conduct of favors and gifts flowing to

a public official in exchange for a pattern of

official actions favorable to the donor. Thus,

payments may be made with the intent to retain

the official’s services on an “as needed” basis,

so that whenever the opportunity presents itself

the official will take specific action on the

payor’s behalf. The evidence of a quid pro quo

can be implicit, that is, a conviction can occur if

the Government shows that [the defendant]

accepted payments or other consideration with

the implied understanding that he would

perform or not perform an act in his official

capacity.

United States v. Bryant, No. 3:07-cr-267, 2009 WL 1559796,

*4 (D.N.J. 2009) (emphases added) (citation and internal

quotation marks omitted); see United States v. Kemp, 500

F.3d 257, 281-82 (3d Cir. 2007) (endorsing “stream of

benefits” theory of honest services fraud bribery); United

States v. Kincaid-Chauncey, 556 F.3d 923, 943 n.15 (9th Cir.

2009) (same).

Appellants argue that the Government did not prove

that they entered into an unlawful quid pro quo arrangement.

They claim that, although Bryant took official action while

working at SOM, the Government failed to prove that he took

13

those actions because of his employment at SOM or that the

Appellants had the requisite intent to enter into an illicit quid

pro quo agreement. However, based on the trial evidence,

reasonable jurors could conclude beyond a reasonable doubt

that Bryant and Gallagher had an agreement, even if implicit,

that Bryant’s salary, bonus, and pension eligibility would be

given in exchange for his official actions to increase state

funding for SOM.

The record evidence shows that in 2002 Gallagher was

interested in improving SOM’s political clout and that Bryant

wanted a pensionable job at UMDNJ. At that time, Gallagher

knew that SOM was in trouble, financially and otherwise. It

was historically underfunded relative to UMDNJ’s other

schools, and in 2002 SOM’s academic budget was reduced by

10%. Because of the budget cut and decreasing revenues in

general, SOM had difficulty paying staff salaries. Also

around that time the Governor appointed a commission to

recommend medical education reforms. That Commission

suggested the consolidation of UMDNJ with Rutgers

University and the New Jersey Institute of Technology. The

Government introduced evidence that Gallagher was

disconcerted with this Commission report because, if such a

merger occurred, he could lose his position as Dean of SOM.

He expressed a desire to become more active in the “political

arena” to ward off these proposed changes. For his part,

Bryant was keen to get a job at UMDNJ at that time. As

evidence of his interest, the Government elicited testimony

from Stuart Cook, President of UMDNJ, that in 2002 Bryant

approached Cook during a meeting and sought a part-time job

at UMDNJ. Cook later characterized this “request” as a

“shakedown” given Bryant’s influence over budget decisions

that affected the University.

14

Gallagher then created a new position at SOM with the

title Program Support Coordinator. According to the official

job description, the Program Support Coordinator would

report directly to Gallagher and would work three full days a

week, making him a “.6” employee. The official job

description, which was approved by the Human Resources

Department and posted for the public, listed the Program

Support Coordinator’s responsibilities as improving SOM’s

relations with local governments and community

organizations; there was no reference to securing additional

funding for SOM from the State government. The salary was

approved at $35,000, which was commensurate with the work

of a .6 employee.

There was evidence introduced at trial, however, that

the interview process was a sham. Only two candidates were

actually interviewed (including Bryant), and Bryant’s

interview was orchestrated only “to provide a paper trail.”

Robert Prodoehl, Director of Operations at SOM and later

Gallagher’s Chief of Staff, testified that, long before

candidates were interviewed for the position, Gallagher had

determined that Bryant would be hired for it. Prodoehl also

testified that, notwithstanding the official job description,

Gallagher told him (Prodoehl) that Bryant would only work

7.5 hours (one day) a week. This should have qualified him

as only a .2 employee.

Six days after Bryant was hired, a meeting with

Gallagher, Bryant, and John W. Crosbie, Director of Strategic

Planning Program Development at SOM, was held to discuss

how Bryant might advance SOM’s “supplemental funding

strategy.” Henceforth, procuring additional funding appears

to have been Bryant’s principal activity. The Government

presented evidence that, during his employment at SOM

15

(about three years), Bryant orchestrated a $2.325 million

carve-out of UMDNJ’s annual budget to be allocated to

SOM’s base funding, an $800,000 appropriation for SOM’s

Center for Child Support (a carve-out from the New Jersey

Division of Youth and Family Services), and a $200,000

grant to SOM’s Institute for Successful Aging (“ISA”). 9

Notably, Bryant received a $5,000 bonus from SOM after the

2003-2004 budget passed with the $2.325 million carve-out

for SOM. From this and other evidence, a reasonable jury

could conclude that Gallagher offered Bryant his position at

SOM in exchange for his official actions to procure additional

State funding for the School and that Bryant then misused his

power to that end.

Appellants’ arguments to the contrary are not

persuasive. They claim that Bryant would have taken many

of these official actions to “serve his constituents” even

without the benefits from SOM. However, the jury was not

required to “find that the SOM salary was the sole impetus for

Bryant’s actions.” Bryant, 2009 WL 1559796, *7 (citing

Kemp, 500 F.3d at 281-82). Rather, “a conviction for honest

services fraud may be sustained so long as there is sufficient

evidence in the record for the jury to conclude that the public

official intended to be influenced in exchange for a stream of

corrupt payments.” Id. Here, based on the timing of Bryant’s

official acts, a jury could infer that Bryant intended to accept

a “stream of benefits” in the form of a salary and benefits

from SOM in exchange for his official acts over the course of

9

In a 2004-2005 budget program, individual New Jersey

legislators could allocate discretionary grants to organizations

of their choice. Bryant controlled 10% of the grants, or $4

million. This was the source of the ISA grant.

16

his nearly three-year employment there. That his actions may

also have benefited his constituents is irrelevant.

Appellants also argue that the Government failed to

prove Gallagher’s mens rea—his intent that Bryant’s salary

and benefits serve as a quid pro quo bribe. They cite the

Government’s lack of a smoking gun (i.e., that there was “no

evidence of cash in a bag”), and assert that there is nothing

wrong with Gallagher, as Dean, wanting his institution to

flourish financially. The Government may prove mens rea

with circumstantial evidence, United States v. McKee, 506

F.3d 225, 235 n.9 (3d Cir. 2007), and here the indirect proof

of Gallagher’s intent was extensive: for example, after the

fraudulent job description surfaced, Gallagher made Crosbie

create a false calendar to create the appearance that Bryant

had done legitimate work at SOM. Gallagher also lied to his

supervisors about the nature of Bryant’s work, telling them

that Bryant’s role involved “community relations” with no

mention of his funding initiatives. Based on that and other

evidence discussed above, a reasonable jury could find that

Gallagher had the requisite intent.

Finally, we reject Appellants’ argument that the

Government failed to prove the value of Bryant’s legitimate

services to SOM, and thus did not prove that the salary and

bonus in excess of the fair value of those services was a bribe.

A jury could conclude from the evidence discussed above that

Bryant did not work 22.5 hours per week, as required to

qualify as a .6 employee with a $35,000 salary. In any event,

“[t]hat [Bryant] performed some . . . services did not prevent

the jury from regarding the [salary and bonus] payments as

primarily intended by [Gallagher] to secure [Bryant’s]

legislative help.” United States v. Urciuoli, 613 F.3d 11, 14

(1st Cir. 2010) cert. denied, 131 S. Ct. 612 (2010) (addressing

17

argument that state senator provided some legitimate services

in exchange for job at medical center in the context of honest

services fraud conviction under a bribery theory). 10 In sum,

the evidence allowed a jury to conclude that Bryant’s salary

and benefits—nominally for his public relations work—were

in fact provided in exchange for his abuse of office.

Because we believe that the Government presented

substantial evidence of a quid pro quo bribery scheme to

defraud the citizens of New Jersey of Bryant’s honest

services, including circumstantial evidence of the requisite

mens rea, we affirm the convictions on the honest services

fraud and bribery counts. 11

C. Jury Instructions on the Honest Services Fraud and

Bribery Counts

1. Honest Services Fraud Jury Instructions

10

Appellants cite evidence they submitted at trial, purporting

to show that Bryant provided legitimate services to SOM.

They “[were] free to make such arguments to the jury, but the

jury could fairly reject them.” Urciuoli, 613 F.3d at 15. We

presume the jury did so, as we review the evidence in the

light most favorable to the Government. Miller, 527 F.3d at

60.

11

Inasmuch as we believe the evidence was sufficient with

respect to the quid pro quo alleged in the honest services

fraud counts, we also conclude it was sufficient to support the

bribery counts, as the bribery counts were based on the

bribery alleged in the honest services fraud counts.

18

Appellants argue that the jury instructions for the

honest services fraud counts were incorrect in light of the

Supreme Court’s decision in Skilling v. United States, 130 S.

Ct. 2896 (2010), which limited the scope of honest services

fraud to its historic “core.” Specifically, the Skilling Court

defined the “core” of honest services fraud to include only the

types of bribery and kickback schemes that were criminalized

in cases prior to the Supreme Court’s decision in McNally v.

United States, 483 U.S. 350 (1987). 12 Appellants allege that

the honest services fraud instructions were deficient because

they did not require the jury to find an intent to “alter” an

official action. They contend further that the instructions’ use

of the stream-of-benefits theory and dual purpose test (both

discussed below) were legally incorrect after Skilling, as they

claim both are outside the honest services fraud “core.” We

are not persuaded that Skilling had that effect on the law of

honest services fraud, nor do we believe that the instructions

failed to state the proper intent requirement.

We review de novo whether a jury instruction stated

the proper legal standard. United States v. Flores, 454 F.3d

149, 156 (3d Cir. 2010). The Court instructed the jury on the

honest services fraud counts as follows:

Counts 1 through 6 charge the defendants with

committing honest services fraud by means of a

quid pro quo bribery scheme. Bribery requires

a quid pro quo, that is, a specific intent to give

12

McNally had struck down the notion of honest services

fraud by limiting mail fraud to schemes involving tangible

property rights, which, in turn, prompted Congress to enact

18 U.S.C. § 1346, overruling McNally.

19

or receive something of value in exchange for

one or more official acts.

In order to find that a defendant engaged in quid

pro quo bribery, you must find that the

government proved each of the following

beyond a reasonable doubt with respect to that

defendant:

First: that R. Michael Gallagher gave, offered

or promised something of value, particularly a

stream of payments in the form of a salary and

other financial benefits to Wayne Bryant;

Second: that Wayne Bryant was, at that time, a

public official;

Third: that with respect to R. Michael

Gallagher, he intended to give the stream of

payments in the form of salary and other

financial benefits in exchange for one or more

official acts.

That with respect to Wayne Bryant, he intended

to perform one or more official acts in exchange

for his salary and other financial benefits from

[SOM.]

A quid pro quo agreement may be implicit as

well as explicit. The improper benefit may

consist of money and other financial benefits

whether given on a one time basis or as a stream

of payments to the public official. In other

words, when payments are accepted by a public

20

official from a payor with the intent to obtain

that official’s actions on an “as needed” basis,

so that when the opportunity presents itself that

public official takes specific official action on

the payor’s behalf in return for those payments,

that constitutes a breach of the public official’s

duty of honest service.

You may find that the payor and/or the recipient

has engaged in bribery even though the

recipient could have lawfully engaged in the

official conduct in question.

Appellants’ first challenge to these instructions is that

it did not require the jury to find that the payor (Gallagher)

intended to “alter” the conduct of the public official (Bryant).

They argue that the instruction suggested to the jury that

honest services fraud included accepting payments for

something a public official was already planning to do or had

already done, which is a gratuity (or “reward”) and not a

bribe, and thus not within the “core” of honest services. 13 In

short, they contend that the instructions did not make clear the

specific exchange—that is, that Gallagher had to intend to

influence Bryant’s actions and that Bryant had to intend to be

influenced by the SOM salary and benefits.

Appellants are correct that “bribery requires a quid

pro quo, which includes an intent to influence an official act

13

In Kemp we stated that a gratuity “may constitute merely a

reward for some future act that the public official will take

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

that he has already taken.” 500 F.3d at 281 (quoting Sun-

Diamond, 526 U.S. at 405).

21

or to be influenced by an official act.” Kemp, 500 F.3d at 281

(construing federal bribery and gratuity statute, 18 U.S.C.

§ 201, which is “equally applicable to bribery in the honest

services fraud context”) (citations and internal quotation

marks omitted). It is also true that “bribery requires a specific

intent to give or receive something of value in exchange for

an official act.” Id. (emphasis omitted). But they are

incorrect that the instruction failed to state clearly those legal

requirements.

Yet Appellants ignore a key passage of the Court’s

instructions, which stated:

[N]ot every payment made to a public official

constitutes a bribe. A payment made in a

general attempt to build goodwill or curry favor

with a public official, without more, does not

constitute a bribe. . . . What distinguishes a

bribe from other payments that would not

constitute violations is that a bribe is offered or

accepted with the intent to influence, or to be

influenced, in an official act.

(emphasis added). This instruction made clear that an intent

to influence was required for a finding of guilt. 14 Despite

Appellants’ suggestion otherwise, the Supreme Court has

never required proof that the recipient actually perform the

official act for which the bribe was taken (the quo). See

United States v. Brewster, 408 U.S. 501, 527 (1972); United

14

Appellants concede in their Reply Brief, and we agree, that

there is no meaningful difference between an intent to “alter,”

and an intent to “influence,” official acts.

22

States v. Hood, 343 U.S. 148, 151 (1952). Nothing in Skilling

overrules this existing law.

Next, Appellants challenge the stream-of-benefits

theory: that a bribe may be given in the form of a series of

benefits in exchange for official action on an “as needed”

basis. Appellants suggest that this theory is indistinguishable

from the conflict-of-interest theory of honest services fraud,

which was rejected in Skilling as outside the core of honest

services fraud. 15

Nothing in Skilling, however, undermines the viability

of the stream-of-benefits theory, which this Court first

endorsed in Kemp, 500 F.3d 257. See United States v.

Whitfield, 590 F.3d 325, 352-53 (5th Cir. 2009); United States

v. Ganim, 510 F.3d 134, 144-47 (2d Cir. 2007); Urciuoli, 613

F.3d at 13-14 (confirming stream-of-benefits theory survived

Skilling). Indeed, Skilling did not eliminate from the

definition of honest services fraud any particular type of

bribery, but simply eliminated honest services fraud theories

that go beyond bribery and kickbacks. Appellants’ reliance

on Skilling to undercut the stream-of-benefits theory is thus

misplaced.

Finally, Appellants take issue with the dual purpose

aspect of the jury instructions, that is, that the instructions

15

The conflict-of-interest theory of honest services fraud

criminalized undisclosed self-dealing by public officials

whose actions furthered their own financial interests while

purporting to act on behalf of the public. Skilling, 130 S. Ct.

at 2932 (citation omitted). As noted, see supra note 8, the

District Court in our case struck the charges that relied on a

conflict-of-interest theory before trial began.

23

allowed for conviction on the honest services fraud counts

even if the jury believed Gallagher was partially motivated to

pay Bryant for some legitimate work as well as his official

action. Specifically, they object to the following portion of

the instructions:

You may find that any salary and other financial

benefits accepted by Wayne Bryant was a bribe

even if you also find it was paid, in part, for

legitimate work if it was also paid, in part, in

return for Wayne Bryant’s official action.

The Appellants insinuate that this dual purpose test is

similarly outside the core of honest services fraud. Skilling

did not so hold and we do not adopt that interpretation, as the

consequences would be untenable. On Appellants’

interpretation, a payor could bribe an official with impunity,

intending to influence official action and vice versa, provided

that the payor had some additional hope, however small, of

receiving legitimate work in return. We shall not stretch

Skilling in this way.

2. Section 666 Bribery Jury Instructions

Appellants’ challenge to the bribery instruction is

similarly strained. They claim that these instructions were

defective because they did not require an “exchange,” but

merely a convergence in time of the quid and the quo. To

convict, the instructions required the jury to find as follows:

[W]ith respect to Wayne Bryant, that Wayne

Bryant corruptly accepted, agreed to accept,

solicited, or demanded salary payments and

other financial benefits from UMDNJ/SOM, the

24

quid; while intending to be influenced in taking

favorable actions toward SOM in his capacity

as a state legislator, the quo.

With respect to R. Michael Gallagher, that R.

Michael Gallagher corruptly gave, agreed to

give, or offered salary payments and other

financial benefits from UMDNJ/SOM, the quid;

while intending to influence Wayne Bryant in

taking favorable actions toward SOM in his

capacity as a state legislator, the quo.

(Emphases added.) Appellants parse the language of these

instructions to claim that the word “while” might have led the

jury to believe that the Appellants were guilty so long as

Gallagher intended to influence Bryant’s official actions “at

the same time” as he was receiving his SOM salary and

benefits, without having to conclude that the salary and

benefits were provided “in exchange for” his official action.

Once more we fail to see the lack of an exchange

requirement in these instructions. 16 We do not think the word

“while” materially changes the “intending to influence”

language in the instructions. Tracking closely to the language

of the bribery statute, 17 the “intending to influence” and

16

The Government argues that § 666 does not require proof

of a quid pro quo in any event. Because we believe that the

instruction did require the jury to find an exchange, we need

not decide that question today.

17

Bribery occurs when a public official “corruptly solicits or

demands . . ., or accepts or agrees to accept, anything of value

from any person, intending to be influenced or rewarded in

25

“intending to be influenced” phrases effectively link the quid

and the quo. This construction is not ambiguous (an

identified quid must be given, with the intent of influence, in

return for a quo) simply because the word “while” is used.

Moreover, the Court’s prior instruction on the honest services

fraud counts made clear that the jury had to find an exchange

in order to find that there was a quid pro quo. 18 The jury was

told to refer back to those earlier instructions for consistency

and to consider all of the “instructions as a whole.” In the

final charge, the Court explained to the jury that “each part or

phase of these instructions is to be considered and applied

together with all the other parts and phases of the

instructions.” We assume that the jury followed their

connection with any business, transaction, or series of

transactions of such organization, government, or agency . . .

.” 18 U.S.C. § 666(a)(1)(B) (emphasis added).

18

The instruction provided:

In order to find that a defendant engaged in quid

pro quo bribery, you must find that the

government proved [that Gallagher] intended to

give the stream of payments in the form of

salary and other financial benefits in exchange

for one or more official acts [and that ] Bryant

. . . intended to perform one or more official

acts in exchange for his salary and other

financial benefits from [SOM].

(Emphases added.)

26

instructions. 19 United States v. Lee, 573 F.3d 155, 162 (3d

Cir. 2009).

* * * * *

Because we believe there was no defect in either the

jury instruction for honest services fraud or bribery, we do not

reverse Appellants’ convictions on that ground.

D. Bryant’s Pension Fraud Counts

Bryant was charged and convicted of mail fraud in

connection with a scheme to defraud the New Jersey Division

of Pensions and Benefits (“the Pension Division”) by

fraudulently seeking pension payments for his low-show job

at SOM and his no-show job at the Social Services Board. He

argues that he should be acquitted of his conviction on those

counts or, in the alternative, afforded a new trial because the

evidence was insufficient and because the District Court

abused its discretion in allowing a lay witness, Frederick

Beaver, to testify about a legal issue.

1. The Sufficiency of the Evidence on Pension

Fraud

As discussed above, we believe that substantial

evidence supported the honest services fraud bribery

19

For that reason, we also reject Appellants’ speculation that

the jurors turned to the indictment, which lacked language of

“exchange” in the § 666 charges, for clarification, as the

Court instructed that they were only permitted to apply the

law provided to them by the Court and that the indictment

was an accusation and nothing more.

27

conviction in connection with Bryant’s SOM job; thus, we do

not repeat that analysis here. Accordingly, the only question

remaining is whether the evidence taken in the light most

favorable to the Government shows that Bryant fraudulently

sought pension benefits for the services, if any, he rendered to

the Social Services Board. 20 We believe that it does.

As noted, the Government’s theory on the pension

fraud counts was that Bryant submitted a fraudulent

application for pension benefits—that is, he claimed himself

eligible for benefits to which he knew he was not entitled

from two public sector jobs (at SOM and the Social Services

Board). In New Jersey, the amount of a person’s pension is

20

In its ruling on Appellants’ Rule 29 motion, the District

Court noted “whether Bryant’s employment at SOM was

unlawful does not necessarily satisfy the present inquiry [of

whether the evidence is sufficient to support the pension fraud

counts]. Whether or not the Division would have ultimately

denied Bryant his pension if it knew the facts alleged in the

Indictment is beside the point if Bryant took actions to make

sure the Division would not know those facts.” Bryant, 2009

WL 1559796, *14 (quoting Bryant, 556 F. Supp. 2d at 434)

(citation and internal quotation marks omitted) (emphasis in

original). “Rather, the jury could find that Bryant willfully

engaged in mail fraud if the evidence demonstrated that

Bryant concealed the nature of his actual employment at

SOM and [the Social Services Board], i.e. his duties and the

time he spent working on matters for SOM and [the Social

Services Board].” Id. For the reasons stated above, we

believe that a reasonable jury could find that Bryant

concealed the nature of his employment at SOM as part of its

overarching conclusion that the job was a bribe.

28

determined by a three-year average of his highest salaries

across all of his qualifying, meaning public sector, jobs. This

is known as the “high three.” At the time of Bryant’s

application, he had accumulated pension-eligible salaries

from four positions: as a State Senator, as a Program Support

Coordinator at SOM, as a staff attorney for the Social

Services Board, and as a lecturer at Rutgers University.

Assuming pension credit from those jobs, Bryant selected a

pension plan option that put his annual benefits at $81,268.

However, without the SOM and the Social Services Board

jobs qualifying, his benefits range would have been between

$31,000 and $37,000. Thus, the Government claimed at trial

that because Bryant did little or no work at either SOM

(because the job was a bribe) or the Social Services Board

(because he never showed up to do the work himself), his

pension application fraudulently inflated his eligibility for

benefits.

The elements of traditional mail fraud, in which money

or property is the object of the fraud, are: (1) a scheme or

artifice to defraud by means of a materially false or fraudulent

pretense; (2) participation by the defendant with specific

intent to defraud; and (3) use of the mail in furtherance of the

scheme. United States v. Hedaithy, 392 F.3d 580, 590 (3d

Cir. 2004) (internal quotation marks omitted). Bryant argues

that the Government failed to prove the first two elements.

Bryant first claims that the Government did not prove

that he made any false statements in his pension application.

The evidence is otherwise. In May 1996, Bryant was hired by

the Social Services Board, a public and social services and

welfare agency, as a part-time associate counsel and enrolled

for pension benefits with the New Jersey Public Employee

Retirement System (“PERS”). He was hired as an individual,

29

salaried employee, which status made him eligible for those

benefits. His responsibilities included “attendance in court

[and] representation of [children] in board, support matters,

paternity establishments and related duties.” However,

shortly after Bryant began his employment at the Social

Services Board, his supervisors began receiving complaints

that he was not personally appearing in court on behalf of the

agency, as he was sending other lawyers from his private law

firm, Zeller and Bryant, to perform his work. On initial

discovery of Bryant’s delegation, his supervisor reminded

him that he was required personally to perform the attorney

work that he was hired to do. Nevertheless, Bryant continued

this practice for several years (from 2002-2006) and

ultimately did little, if any, work for the Social Services

Board. Because neither Social Services Board members nor

other agency supervisors attended the various court

appearances, Bryant’s continued delegation of duties was not

discovered. Bryant did not train or supervise those to whom

he delegated his work, but assigned even that oversight role to

one of his law firm partners.

During this time, Bryant misrepresented to the Social

Services Board that he was personally performing his work.

The agency required all employees to submit written time

sheets, on which the employee had to “[f]ill in the hours

actually worked in each unit.” Bryant claimed credit for the

work he delegated: on some he claimed as many as 22 hours

every two weeks, and on many others he claimed over ten

hours. By signing those timesheets, he “submit[ed] that the

above entries represent[ed] the hours [he] worked in the listed

work units and the other compensable hours [he] used during

th[ose] pay period[s].” Bryant’s time records at his law firm

belied those representations: they showed that he worked no

30

hours for the Social Services Board in 2002, 10.3 hours in

2003, 4.5 hours in 2004, and not at all in 2005 and 2006.

In order to reap the benefit of this scheme, Bryant

communicated with the Director of the Pension Division,

Frederick Beaver, in January 2006 to determine the range of

pension benefits for which he (Bryant) would be eligible on

retirement. In December 2006, he submitted his application

for retirement benefits with plans to retire the next month.

On those facts, we believe that Bryant’s application for

pension benefits was a materially false or fraudulent pretense

under § 1341. We reject the legalistic argument that his

application was not a false statement per se, but simply a

request for benefits. As we have said, “fraudulent

representations, as the term is used in [section] 1341, may be

effected by deceitful statements of half-truths or the

concealment of material facts and the devising of a scheme

for obtaining money or property by such statements or

concealments.” United States v. Olatunji, 872 F.2d 1161,

1667 (3d Cir. 1989) (citations omitted). For that reason, we

believe that the presentation of a benefits application that

misrepresents an applicant’s eligibility is a false pretense that

can serve as the basis of mail fraud liability. Here, Bryant’s

“request” for benefits concealed that he had delegated most of

his work at the Social Service Board. As such, we believe the

application was a false pretense that was key to his scheme to

defraud the Pension Division.

Bryant next asserts that the Government did not prove

his intent to defraud because he did not know that claiming

benefits to which he was not entitled was illegal. He claims a

lack of notice because (1) there were no statutes or

regulations that prohibited attorneys from claiming credit for

31

work that they had delegated, and (2) because the Pension

Division was “well aware” of other lawyers who had done

this and never attempted to revoke a pension for that reason

prior to 2007 (when this case began).

Neither claim is tenable. There was no evidence at

trial that it was commonplace for the Social Services Board

attorneys who were enrolled in PERS to delegate work duties,

or that the agency had de facto accepted such practices. The

Division Director (Beaver) testified that he was aware of only

a few attorneys who had done so and that he had tried to put

an end to it by reporting them to the Pension Board. In

addition, Beaver testified that prior to 2007 there was no

specific statutory or regulatory prohibition against delegating

work because “there was a presumption” by pension

administrators “that the [employee] is doing the work.” In

sum, the unrebutted evidence showed that Bryant lied by

claiming he was personally performing hours of work that he

had delegated to others. This behavior created an inference

that he intended to defraud the Social Services Board in part

so that he would be eligible for higher pension benefits. See

United States v. Bailey, 327 F.3d 1131, 1140 (10th Cir. 2003)

(citing United States v. Prows, 118 F.3d 686, 692 (10th Cir.

1997)) (intent to defraud may be inferred from evidence that

defendant attempted to conceal activity).

Finally, Bryant argues that there is a “convergence”

problem with the evidence: that is, that the party to whom the

fraudulent pretenses were made (the Social Services Board)

was not the same as the party from whom money or property

would have been taken (the New Jersey pension system). We

have yet to decide this issue in the context of mail fraud.

Compare United States v. Christopher, 142 F.3d 46, 54 (1st

Cir. 1998) (“Turning to whether we should now adopt a

32

convergence theory, we see little reason to do so. Nothing in

the mail and wire fraud statutes requires that the party

deprived of money or property be the same party who is

actually deceived . . . . We see no reason to read into the

statute an invariable requirement that the person deceived be

the same person deprived of the money or property by the

fraud.”), with United States v. Keane, 678 F. Supp. 708, 711

(N.D. Ill. 1987), aff’d, 852 F.2d 199 (7th Cir. 1998) (“to

constitute fraud, the entity to be deceived must also be the

entity that is to part with property”) (emphasis in original).

However, we need not make that decision now, for

Bryant’s fraud was not entirely “derivative” of the fraud on

his employer, the Social Services Board, as he argues. As we

said above, his pension application was itself a materially

false pretense, made to the Pension Division, that was part of

his scheme to defraud the pension system. Cf. Olatunji, 872

F.2d at 1168 (concluding that an indictment may properly

allege mail fraud where false statements are made to two

different Government agencies even though the scheme is

alleged to deprive property from only one, the “ultimate

victim”). Accordingly, we conclude that Bryant has not

carried his heavy burden of prevailing on his insufficient

evidence claim and affirm his convictions on the pension

fraud counts.

2. The Beaver Testimony

As discussed, the main issue at trial on the pension

fraud counts was whether Bryant defrauded the Pension

Division by claiming benefits to which he was not entitled.

That issue turned in part on whether the work Bryant did for

the Social Services Board qualified as a “creditable service”

under New Jersey statute and regulation. Only if Bryant’s

33

work was creditable service would he be eligible for pension

benefits from the job. This was related to the Government’s

burden of showing that Bryant’s misstatements on his pension

application were “material.” To prove this, the Government

wanted to show that Bryant’s representations that he had done

the work himself were material to the Pension Division’s

benefits-eligibility determination because in doing so he had

effectively represented that his services were creditable. To

that end, the Government proposed testimony from the

Director of the Pension Division, Beaver. 21 He was to testify

from his personal knowledge and experience at the Pension

Division about, among other things, what is considered

creditable service.

The defense objected to the proposed testimony on the

ground that testimony about creditable services was expert

testimony on the law and Beaver was not such an expert.

After a hearing on the admissibility of the proposed

testimony, the Court allowed it limited to the issue of

21

Prior to trial, the District Court asked the Government to

offer information about the “areas that would be explored

with Mr. Beaver” so that it could decide whether his

testimony would be lay or expert. Prior to that, the

Government had provided a letter disclosure to the defense

stating that Beaver would testify “based on his personal

experience and his knowledge of the state pension rules and

practices derived from that experience.” The Government

anticipated that Beaver would testify, among other things,

about “what constitutes honorable service and creditable

service, circumstances under which an enrollee may not be

entitled to benefits, [and] what information is important in

granting and administering benefits.”

34

materiality: whether it is material to the Pension Division’s

benefits-eligibility determination that a person does not

personally perform his work but rather delegates that work to

others in his law firm.

Pursuant to that limitation, Beaver testified at trial that,

based on his experience, repeatedly delegating work to others

would not qualify as creditable service. He stated that, for a

service to be creditable, the person had to personally perform

the work. At certain points, however, Beaver spoke to the

criteria for creditable service in reference to “statutory

cite[s]” or “the statutory requirements of the administrative

code.” In one instance, he stated that, given certain statutory

requirements, “we [the Pension Division] would look to

creditable service [as] being any service that was delivered on

behalf of the employer.” At other times in the testimony, the

Government asked Beaver whether he was familiar with

various statutes and legal decisions.

The defense objected that Beaver had offered improper

legal testimony that exceeded the scope of what the Court had

approved before trial, and moved for a mistrial. The District

Court denied the motion. Later, two days before the jury was

charged, the defense requested a limiting instruction

regarding Beaver’s testimony. The Court agreed and

instructed the jury as follows:

[Y]ou may only consider Frederick Beaver’s

testimony as expressing his view and based on

his experience as Director of the New Jersey

Division of Pensions and Benefits . . . .

Mr. Beaver is not an expert witness and may not

opine on legal issues. You must disregard any

35

of his testimony that touched on his

interpretation of any legal issue[,] including the

legal definition of creditable service.

Mr. Beaver’s testimony regarding the

importance of PERS members personally

performing work was admitted for the limited

purpose of showing materiality. . . .

Bryant now argues that the District Court abused its

discretion in allowing Beaver’s testimony in the first place

and that the limiting instruction was insufficient to cure the

prejudice of that improper testimony. He asks us to order a

judgment of acquittal or, in the alterative, a new trial.

A district court’s ruling admitting witness testimony is

reviewed for abuse of discretion. United States v.

Stadtmauer, 620 F.3d 238, 260 (3d Cir. 2010). The

Government’s stated objective in offering Beaver’s testimony

was to unravel for the jury whether Bryant’s false statements

that he had personally performed his work were material to

his benefits eligibility. As a principal decisionmaker at the

Pension Division, Beaver’s testimony on this point was

important. Indeed, at trial Bryant claimed that his

misrepresentations were not material because the Social

Services Board knew that some employees delegated their

work and, by not stopping the practice sooner, had effectively

condoned it. Given the important and contested nature of this

issue, we do not think that the District Court abused its

discretion in allowing Beaver to testify about it as a fact

witness. To the extent that Beaver then testified on the law of

creditable services (and not just on materiality), we believe

that the Court’s limiting instruction was sufficient to cure any

prejudice.

36

Moreover, Bryant did not object to the limiting

instruction at trial, and so we review it for plain error. United

States v. Ozcelik, 527 F.3d 88, 96 (3d Cir. 2008); see also

United States v. Marcus, 130 S. Ct. 2159, 2162 (2010)

(establishing plain error requires showing of “error”; that is

“clear or obvious”; that “affect[s] the appellant’s substantial

rights” insofar as it “affect[s] the outcome of the district court

proceedings; and “the error seriously affect[s] the fairness,

integrity or public reputation of judicial proceedings”).

Bryant first contends that the instruction was given too

late—26 days after Beaver’s testimony and two days before

the final charge of instructions to the jury. However, Bryant

is in no position to complain about the timing of this

instruction, as he did not request one until that time and the

Court promptly complied. In any event, we think that two

days before the final charge is a reasonable time for a trial

court to issue a limiting instruction to the jury. In this

context, Bryant has not shown that the District Court

committed an error, let alone a plain one.

The remainder of Bryant’s complaints boil down to an

argument that the jurors did not understand the instruction.

He argues that they could not have understood the difference

between materiality and “a legal issue” and that the

distinction between the two is illusory in any event.

Again, as noted, we generally presume that juries

follow their instructions. Lee, 573 F.3d at 162; see also

United States v. Mende, 43 F.3d 1298, 1302 (9th Cir. 1995)

(same). This includes an instruction to disregard certain

evidence, “unless there is an overwhelming probability that

the jury will be unable to follow the court’s instructions, and

a strong likelihood that the effect of the evidence would be

37

devastating to the defendant.” Greer v. Miller, 483 U.S. 756,

766 n.8 (1987) (citation and internal quotation marks omitted)

(motion to strike).

In our case, the Court instructed the jury not to

consider Beaver’s testimony to resolve any legal questions,

but only for the purpose of deciding whether Bryant’s

misrepresentations were material. It then instructed on the

definitions of materiality (the objective question on which the

jury could consider Beaver’s testimony) and creditable

service (the legal question on which the jury could consider

only the Court’s charge). At no time did the jury express

confusion or ask for clarification on the difference between

materiality and creditable service. It is of no consequence

that the Court gave the limiting instruction before it defined

materiality and creditable service, as it had directed the jury at

the outset of trial not to begin deliberations until it received

all instructions on the law. See United States v. Diaz, 597

F.3d 56, 62-63 (1st Cir. 2010).

With this backdrop, we do not believe that the jury

failed to understand the limited purposes for which it could

consider Beaver’s testimony. 22 Because we believe the

22

We note that Bryant overstates the importance of the legal

question of whether he provided bona fide creditable service

to the Social Services Board. Lying about personally

performing the work is what got him into trouble, not the fact

that he had not actually rendered creditable service. As the

District Court instructed, “the question before [the jury] is not

whether the [Pension Division] would have approved Wayne

Bryant’s application for pension benefits. [The jury is] to

decide only whether the government has proven beyond a

reasonable doubt that Wayne Bryant intended to defraud the

38

testimony was properly admitted in the first instance and that

there was no error (and, in any event, no clear error) in the

limiting instruction, we deny Bryant’s request for a judgment

of acquittal or a new trial. 23

E. The Restitution Order

At sentencing, the Court ordered Appellants to repay

the full amount of Bryant’s SOM salary and bonus

($113,167) as restitution to UMDNJ pursuant to the

Mandatory Victims Restitution Act (“MVRA”), 18 U.S.C.

§ 3663A. Appellants argue that this order should be reversed

because the UMDNJ was not a victim within the meaning of

the statute and, therefore, an award of restitution is not proper

under the MVRA. They contend further that, even if it were,

[Pension Division] of money and property by the use of the

mails.” Put another way, whether delegating work to others

nonetheless could have qualified as creditable service is not

what mattered at trial; what mattered for purposes of a mail

fraud conviction was whether Bryant lied on his application

by claiming he had done the work himself because that false

pretense evidenced his intent to defraud the Pension Division.

23

Bryant also argues that Beaver’s testimony was the only

evidence that he submitted a false or fraudulent benefits

application. However, Beaver’s testimony about what factors

are material to the Pension Division’s decisions regarding

benefits eligibility is unrelated to whether Bryant submitted a

fraudulent application. Moreover, for the reasons stated

above, there was ample other evidence that he did so. As we

conclude that the District Court did not abuse its discretion in

admitting the testimony and that the curative instruction was

not plainly erroneous, this argument fails.

39

the Court failed to offset the order by the fair value of the

services Bryant provided to SOM. Because we believe that

UMDNJ is a proper victim under the statute, we conclude that

restitution to that entity was appropriate. Moreover, because

Appellants did not carry their burden of proving the value of

any offsets that might have been warranted, we also affirm

the amount of restitution ordered.

We review de novo whether restitution is permitted by

law and the amount of the award for abuse of discretion.

United States v. Quillen, 335 F.3d 219, 221-22 (3d Cir. 2003)

(quoting United States v. Simmonds, 235 F.3d 826, 829 (3d

Cir. 2000)). The MVRA defines a victim as “a person”

harmed

as a result of the commission of an offense for

which restitution may be ordered . . .[,]

including, in the case of an offense that involves

as an element a scheme, conspiracy, or pattern

of criminal activity, any person directly harmed

by the defendant’s criminal conduct in the

course of the scheme, conspiracy, or pattern.

18 U.S.C. § 3663A(a)(2). Noting the MVRA’s “expansive

purpose,” other courts have interpreted “person” to include

governmental entities, United States v. Ekanem, 383 F.3d 40,

44 (2d Cir. 2004) (U.S. Government); see also United States

v. Lincoln, 277 F.3d 1112, 114 (9th Cir. 2002) (same).

Consistent with that purpose, we believe that the MVRA

definition of victim includes public institutions that receive

government funding, such as UMDNJ.

Appellants argue, however, that the “medical school”

cannot be a victim within the meaning of the MVRA because

40

it knowingly participated in the scheme to hire Bryant in

exchange for his official action and, in fact, benefitted

financially from this scheme. They claim that, because the

school gained money from the scheme, the order of restitution

does not compensate a victim for “actual losses” as required

by the statute, but rather imposes a disgorgement penalty on

Appellants consistent with a theory of unjust enrichment but

not the MVRA.

Appellants blur the difference between UMDNJ and

SOM by referring to “the medical school” generally.

Contrary to their characterization, the indictment did not

allege a scheme designed to benefit “the medical school,” but

rather one to benefit SOM and its programs. Specifically, the

Government proved that the scheme carved out $2.325

million from the UMDNJ budget for direct allocation to

SOM. In his position as Chairman of the Senate Budget

Committee, Bryant insisted that this carve-out of UMDNJ’s

annual allocation be added to SOM’s base funding and be

similarly allocated in each subsequent year. Never before had

SOM received such a carve-out, and no evidence indicated

that Bryant had ever advocated for SOM within the Budget

Committee before going on SOM’s payroll. Thus, UMDNJ

suffered financially at the expense of the quid pro quo

exchange.

We are not persuaded by Appellants’ claims that

UMDNJ was not a victim because high-level employees at

UMDNJ were knowing participants in the scheme. Those

assertions are contrary to evidence presented at trial and

credited by the District Court at sentencing: in particular, that

Gallagher kept his superiors at UMDNJ ignorant about his

agreement with Bryant and never told anyone at UMDNJ that

Bryant was not performing the work he was supposed to be

41

doing or that he was exercising his official power in favor of

the institution. We see no reason to disturb these conclusions,

and thus reject that UMDNJ was in league with Bryant and

Gallagher such that it was not a proper victim; it was a victim

who suffered actual losses.

We also reject Appellants’ assertions that charging

honest services fraud, which is fraud that results in a loss to

the public of its right to the honest services of its public

servants, is inconsistent with a theory of financial loss to a

victim. We fail to see how the intangible losses associated

with honest services fraud preclude the possibility of actual

financial losses to an identifiable victim as well. Here, as

noted above, the New Jersey public was deprived of Bryant’s

honest services and UMDNJ was deprived of $2.325 million

in funding. The MVRA provides a remedy for the latter loss.

Moreover, restoring the financial loss to UMDNJ also

indirectly compensates the public for its loss of Bryant’s

honest services. UMDNJ, as a recipient of taxpayer funds, is

a proxy for the State’s interests, including its citizens’ interest

in the honest services of its public servants. See United States

v. Gee, 432 F.3d 713, 715 (7th Cir. 2005) (ordering restitution

to nonprofit organization by state senator who traded

kickbacks for state contracts where the organization was a

proper “proxy” for the victim, the United States and the

federal interest in general). Thus, we conclude that the order

of restitution was lawful, and now consider Appellants’

challenge to the amount of the award.

The MVRA requires restitution be ordered for the “full

amount” of each victim’s loss. 18 U.S.C. § 3663(f)(1)(A).

“The proper amount of restitution is the amount wrongfully

taken by the defendant.” United States v. Sapoznik, 161 F.3d

1117, 1121 (7th Cir. 1998) (citing 18 U.S.C.

42

§ 3663A(b)(1)(B)). As noted, Appellants argue that the

District Court should have offset the restitution amount (the

sum total of Bryant’s salary and bonuses from SOM) by the

value of the legitimate services Bryant provided, as he was

charged as having a low-show, not a no-show, job at SOM.

Under the MVRA, the Government has the burden of

proving the amount of the victim’s loss, but the defendant has

“[t]he burden of demonstrating such other matters as the court

deems appropriate,” 18 U.S.C. § 3664(e). In other cases

where offsets are claimed, such as for compensation that the

victim gets from other sources, other Courts of Appeals have

concluded that it is the defendant’s burden to prove those

offsets. See United States v. Elson, 577 F.3d 713, 734 (6th

Cir. 2009); United States v. Calbat, 266 F.3d 358, 365 (5th

Cir. 2001) Likewise, with respect to an offset for services

rendered, we believe that, because “[t]he restitution statute

allocates the various burdens of proof among the parties who

are best able to satisfy those burdens[,] . . . the defendant

should know the value of any [legitimate services] he has

already provided to the victim[, and so] . . . the burden should

fall on him to argue for a reduction in his restitution order.”

Elson, 577 F.3d at 734 (citation and internal quotation marks

omitted). Because it was Appellants’ burden to prove offsets

for any legitimate services Bryant might have rendered, and

they failed to do so at sentencing, we conclude that the

District Court did not abuse its discretion in ordering

$113,167 in restitution. 24

24

We note that in other circumstances the proper loss

calculation may not equal the full amount of a corrupt

employee’s salary and bonus, particularly in cases where the

employer would have hired an “honest” public servant and

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III. Conclusion

We believe sufficient evidence supported each of the counts

of conviction. Moreover, we discern no defect in the jury

instructions for honest services fraud or bribery. We

conclude also that the District Court did not abuse its

discretion in regard to the Beaver testimony involving

Bryant’s pension fraud counts. Finally, we hold that the

Court’s restitution order was proper. We thus affirm in all

respects.

paid him or her the same amount. In those cases, the loss

may be “the difference in the value of the services that [the

corrupt employee rendered] and the value of the services that

an honest [employee] would have rendered.” United States v.

Sapoznik, 161 F.3d 1510 (10th Cir. 1995). Here, however,

the job at SOM was created to accommodate Bryant—a false

job description was drafted and the subsequent hiring process

was a sham predestined to result in hiring Bryant for the

position. Presumably, absent the quid pro quo, the position

would not have been made and filled, and thus in this case the

full amount of the salary and bonus is appropriately “pegged

to the actual losses suffered by the victims of the defendant’s

criminal conduct,” and “based upon losses directly resulting

from such conduct.” Quillen, 335 F.3d at 222 (emphases in

original).

44