United States v. Scott Allinson

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 19-3806

UNITED STATES OF AMERICA

v.

SCOTT ALLINSON,

Appellant

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Criminal Action No. 5-17-cr-00390-002)

District Judge: Honorable Juan R. Sanchez

Submitted Under Third Circuit L.A.R. 34.1(a)

September 28, 2021

Before: AMBRO, KRAUSE, and BIBAS, Circuit Judges

(Opinion filed: March 4, 2022)

Megan S. Scheib

715 Pine Street

Apartment 5

Philadelphia, PA 19106

Counsel for Appellant

Richard P. Barrett

Michelle Morgan

Anthony J. Wzorek

Office of United States Attorney

615 Chestnut Street

Suite 1250

Philadelphia, PA 19106

Counsel for Appellee

OPINION OF THE COURT

AMBRO, Circuit Judge

Scott Allinson appeals his convictions of federal

programs bribery, 18 U.S.C. § 666(a)(2), and conspiracy, 18

U.S.C. § 371, in connection with a pay-to-play scheme

involving Edwin Pawlowski, the former Mayor of Allentown,

Pennsylvania. Allinson’s challenges are based on several

theories: (1) there was insufficient evidence to support the

bribery charge; (2) the Government failed to prove the single

conspiracy alleged in the indictment, resulting in a prejudicial

2

variance from the indictment; (3) it impermissibly amended the

bribery charge; (4) it made improper statements during its

closing argument; and (5) his trial should have been severed

from that of his co-defendant Pawlowski, as Allinson was

prejudiced by the numerous charges lodged against the former

Mayor. 1

In thorough and well-reasoned opinions and orders, the

District Court rejected Allinson’s contentions. We do the

same. 2

I.

We start with Allinson’s sufficiency-of-the-evidence

challenge, which we review anew. United States v. John-

Baptiste, 747 F.3d 186, 201 (3d Cir. 2014). But out of

deference to the jury’s verdict, we “consider the evidence in

the light most favorable to the [G]overnment and affirm the

judgment if there is substantial evidence from which any

rational trier of fact could find guilt beyond a reasonable

doubt.” Id. (quoting United States v. Benjamin, 711 F.3d 371,

376 (3d Cir. 2013)). We will uphold its decision “as long as it

does not ‘fall below the threshold of bare rationality.’” United

States v. Caraballo-Rodriguez, 726 F.3d 418, 431 (3d Cir.

2013) (en banc) (quoting Coleman v. Johnson, 566 U.S. 650,

656 (2012)).

1

Pawlowski’s appeal is pending before our Court, C.A. No.

18-3390, and is consolidated with this matter for disposition

purposes by Clerk’s Order entered January 29, 2020. A

separate opinion addresses that appeal.

2

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

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

3

The federal programs bribery statute—the basis of

Allinson’s bribery conviction—makes it a crime to “corruptly

give[], offer[], or agree[] to give anything of value to any

person, with intent to influence or reward [a government agent]

in connection with any business, transaction, or series of

transactions of such organization, government, or agency

involving anything of value of $5,000 or more.” 18 U.S.C.

§ 666(a)(2). The Government’s evidence against Allinson

consisted of several recorded conversations among himself,

Pawlowski, and two of Pawlowski’s political consultants,

Michael Fleck and Sam Ruchlewicz (both of whom were,

unbeknownst to Allinson and Pawlowski, cooperating with the

Federal Bureau of Investigation). From these conversations

the jury learned the following.

In December 2014, Allinson—then an attorney at the

law firm Norris McLaughlin—complained to Ruchlewicz

about a legal services contract then-Mayor Pawlowski had

diverted from Norris McLaughlin to another firm. Allinson

complained that he was now unable to “rally [his] troops with

their checks.” P-Supp. App. 1234. 3 He told Ruchlewicz he

was “just talking our dialect of English” and explained,

“[W]e’ve been unbelievably supportive in the past and now,

you know, the work’s going everywhere . . . but to our shop.”

Id. at 1235. He then confirmed with Ruchlewicz that this was

“a short[-]term fixable issue.” Id.

3

Citations to “P-Supp. App.” refer to the Supplemental

Appendix docketed by the Government in Pawlowski’s appeal,

whereas citations to “A-Supp. App.” refer to the Supplemental

Appendix docketed by the Government in this appeal.

4

Shortly thereafter, Ruchlewicz told Allinson that the

City’s current Parking Authority Solicitor would be fired and

a Norris McLaughlin partner, Richard Somach, would be

appointed in his place. He explained that Allinson would be

the originating attorney for the appointment, allowing him to

receive internal firm credit. But he also informed Allinson that

the firm would need “to do something for the mayor’s holiday

party.” Id. at 1239. Allinson responded by offering to write a

check for $2,500 in the new year.

The men confirmed this arrangement a few days later.

Ruchlewicz assured Allinson that Pawlowski would be

“putting [the firm] on the [P]arking [A]uthority” and that

Allinson would “get[] credit for it.” Id. at 1241. Allinson

warned Ruchlewicz, “[I]f I don’t get the first call, and the first

email, this will get fucked up and I’m not gonna be responsible

for the fuck up.” Id. at 1242. The latter reiterated that Allinson

would “get the first call,” to which Allinson responded, “Then,

then everything is gonna be smooth, smooth as a baby’s

bottom.” Id.

The two met again the following month. Ruchlewicz

noted that he was solving Allinson’s “[P]arking [A]uthority

problems.” Id. at 1153. Allinson stated, “That’s the only

problem, Sam, I’m telling you right now . . . [i]f you solve that

problem, you get the golden goose. . . . You get everything.”

Id. at 1153–54. He cautioned Ruchlewicz, however, “The

money flow comes from me. The golden goose comes to me.”

Id. at 1154. Ruchlewicz confirmed that Allinson would receive

credit for the contract but reiterated that Pawlowski wanted

him to raise money for the Mayor’s campaign. Allinson

replied, “Well of course I am going to raise money.” Id. at

1155.

5

The next week, Allinson complained to Fleck and

Ruchlewicz about “sore feelings” at the firm and told them that

the Parking Authority job would “get the checkbooks back

out.” Id. at 1168. Referring to a specific fundraising request

from Pawlowski, Allinson noted that “for us to come up with

[$12,500], I think that’s going to be a really heavy stretch

unless I can say hey, good news, this is . . . the mayor’s way of

finding a good spot for us.” Id. at 1169.

When Ruchlewicz relayed to Pawlowski Allinson’s

apparent reluctance to donate, the Mayor was incensed. He

noted that he had “given [Allinson] millions of dollars” and

declared, “[He] will get nothing now.” Id. at 1296–97. “You

know, fuck them,” he continued. Id. at 1297. “And . . . I’m

not gonna make Somach solicitor or anything. Screw it all.”

Id. Ruchlewicz asked Pawlowski not to do anything yet, as he

and Fleck would be seeing Allinson again shortly.

At their next meeting, Allinson reiterated to Fleck and

Ruchlewicz that if the firm was to receive the Parking

Authority contract, he would “get a hundred percent of . . . the

kind of credit that turns into money that goes out of my

checkbook where you want it to go.” Id. at 1178. He told them

that he and the firm’s chairman, Matthew Sorrentino, would

ensure the firm contributed to Pawlowski’s campaign, noting

that “Matt understands everything,” and “Matt and I have

always spoken . . . the same language.” Id. at 1179.

On the day of Pawlowski’s Mardi Gras fundraiser,

Allinson and Ruchlewicz again discussed the Parking

Authority contract. Allinson reiterated the importance of

receiving firm credit for the work. Ruchlewicz responded,

“[Y]ou know what the mayor cares about. And the mayor’s

6

got plans. He’s got to raise money.” Id. at 1202. Allinson then

brought a $250 check—which, when talking to Pawlowski,

Ruchlewicz referred to as “[i]nstallment number one”—to the

fundraiser. Id. at 1204. Afterward, Ruchlewicz relayed to

Pawlowski that Allinson wanted “it . . . known” that he had

dropped off a check. Id. Ruchlewicz informed the Mayor that

he had told Allinson they could now move forward with the

“Somach to solicitor plan.” Id. Pawlowski responded, “That’s

good.” Id.

A few weeks later, Allinson told Fleck and Ruchlewicz

that he would tell his law partners, “If you guys are going to

handle the [City] work and deal with all that stuff, you’re gonna

have to work with [Fleck] and [Ruchlewicz] on . . . cobbling

some money together. This isn’t like we’re being hired

because we are good guys, it’s not the way this shit works. . . .

It just isn’t. I don’t care how good you are.” Id. at 1251. When

Ruchlewicz later checked in with Pawlowski about the Parking

Authority contract, Pawlowski told him, “I’m working on it.”

Id. at 1214. Ruchlewicz told Pawlowski that Allinson would

need to get the credit for bringing in the contract, as Allinson

controlled the firm’s political contributions. Pawlowski

replied, “I got you.” Id. at 1215.

Pawlowski then met with Allinson, Fleck, and

Sorrentino (the firm chairman who “spoke[] the same

language” as Allinson) to pitch them on a nascent senatorial

campaign, and asked the firm to raise $25,000 before his June

30th fundraising deadline. Allinson later complained to

Ruchlewicz that this was “a lot of fucking money when you’re

getting absolutely zero back from the [C]ity. I mean, I mean

when I tell you bone dry, bone fucking dry.” Id. at 1247.

7

Ruchlewicz responded, “Well, we’ll have to change that. The

mayor will.” Id.

Norris McLaughlin contributed $17,300 to Pawlowski’s

campaign prior to the fundraising deadline. Fleck informed

Pawlowski of the contribution and asked if they could now

appoint Somach as Parking Authority Solicitor. Pawlowski

told Fleck that he did not control the board’s decisions but

could talk to them. The men then discussed plans for getting

rid of the current Solicitor.

Viewed in the light most favorable to the Government,

this evidence showed the parties’ plan to steer the Parking

Authority contract to Allinson’s firm in exchange for campaign

contributions and was thus sufficient to support Allinson’s

bribery conviction. See 18 U.S.C. § 666(a)(2). His arguments

to the contrary fall short.

Allinson first contends the evidence did not show an

explicit quid pro quo, that is, that he gave or agreed to give

campaign funds with the specific intent to influence Pawlowski

to take a specific official action. See McCormick v. United

States, 500 U.S. 257, 273 (1991). 4 He suggests that, while

Fleck and Ruchlewicz repeatedly solicited funds from him, he

4

In McCormick, the Supreme Court held that an explicit quid

pro quo is required to convict a public official of Hobbs Act

extortion premised on the exchange of campaign funds. See

500 U.S. at 273. We have yet to decide if the same holds true

for federal programs bribery, see United v. Willis, 844 F.3d

155, 164 (3d Cir. 2016), and we need not do so here because

we hold that there was enough evidence of an explicit quid pro

quo anyway.

8

never clearly acquiesced to their requests. But a jury could find

from the conversations and conduct detailed above that

Allinson agreed to contribute, did contribute, and caused other

firm attorneys to contribute to Pawlowski’s campaign, with the

specific intent of obtaining the Parking Authority contract.

Although he presented at trial several Norris McLaughlin

attorneys who testified that Allinson played no role in their

contribution decisions, the jury had no duty to credit this

testimony. He himself stated that he and Sorrentino

“control[led] the flow of [the firm’s] political donations,” P-

Supp. App. 1179, and they were the only firm lawyers to

entertain Pawlowski’s request for $25,000 in senatorial

campaign contributions. Allinson complained to Ruchlewicz

and Fleck shortly thereafter about the amount of the ask given

the lack of legal work coming in from the City, was assured the

Mayor would “change that,” id. at 1247, and, the day before

the fundraising deadline, the firm contributed thousands to

Pawlowski’s campaign. This evidence—which included the

many conversations in which Allinson expressly contemplates

exchanging donations for the Parking Authority job—was

sufficient to show that he engaged in an explicit quid pro quo.

Allinson further submits that there was insufficient

evidence of an “official act” as that term is defined in

McDonnell v. United States, 136 S. Ct. 2355, 2367–69 (2016).

The McDonnell Court interpreted the general federal bribery

statute, which “makes it a crime for ‘a public official or person

selected to be a public official, directly or indirectly, corruptly’

to demand, seek, receive, accept, or agree ‘to receive or accept

anything of value’ in return for being ‘influenced in the

performance of any official act.’” Id. at 2365 (quoting 18

U.S.C. § 201(b)(2)). It narrowed the conduct that would

constitute an “official act” under this provision: merely

9

“setting up a meeting, calling another public official, or hosting

an event” is not enough. Id. at 2368. Rather, to prove an

“official act,” the prosecution must show “a ‘question, matter,

cause, suit, proceeding or controversy’” involving a “specific,”

“focused,” and “formal exercise of governmental power.” Id.

at 2371–72.

The parties agreed prior to trial that the Government

needed to prove that Allinson intended to influence an “official

act” per McDonnell. We thus assume, but do not decide, that

the Government had to show Allinson bought official acts. It

met this burden. The Parking Authority solicitorship surely

qualifies as a specific matter that would “be pending . . . before

[a] public official, in such official’s official capacity.” Id. at

2365; see also United States v. Repak, 852 F.3d 230, 253 (3d

Cir. 2017) (the awarding of a contract by a redevelopment

agency’s board of directors constitutes a “matter”). And a

reasonable jury could find from Allinson’s statements that he

intended Pawlowski do more to help obtain the contract than

merely “arrange a meeting” or perform some other informal

action on the firm’s behalf. The above conversations indicate

Allinson’s intent that Pawlowski use his public office to

facilitate installing a Norris McLaughlin attorney as Parking

Authority Solicitor. See, e.g., P-Supp. App. 1241–42

(Ruchlewicz states that Pawlowski would “put[ the firm] on

the [P]arking [A]uthority” and that Allinson would get the

credit, and Allinson responds, “[I]f I don’t get the first call, and

the first email, this will get fucked up”). The evidence shows

that this was Pawlowski’s understanding, as well. See, e.g., id.

at 1296–97 (after learning of Allinson’s reluctance to

contribute, Pawlowski notes, “I’m not gonna make Somach

solicitor or anything. Screw it all.”); id. at 1288–89

(Pawlowski explains that he has “gotta get rid” of the then-

10

current Parking Authority Solicitor before a Norris attorney

can be installed and strategizes ways of getting the Solicitor to

resign); see also McDonnell, 136 S. Ct. at 2370 (it is an

“official act” to agree to use one’s office “to exert pressure on

another official to perform an ‘official act’”); Repak, 852 F.3d

at 253 (it is an “official act” for a public official to use his or

her power to influence the awarding of government contracts,

even if the official lacks final decisionmaking power).

Finally, Allinson submits the Government’s evidence

was insufficient to prove that the sought-after contract was

worth $5,000 or more, as required for a federal programs

bribery conviction. See 18 U.S.C. § 666(a)(2). Yet the record

suggests that Allinson himself understood the contract to be

worth more than $5,000. 5 See P-Supp. App. 1251 (Allinson

responds “[o]h yeah” to Fleck’s assertion that “the Parking

Authority bills a few hundred thousand a year”); see also id. at

1179 (Allinson states that if the contract “comes to me and I

get the billing credit, then I get the full stack of cash on my side

5

Allinson takes issue with the Government’s reliance on two

conversations between him and Fleck, wherein the latter stated

that the Parking Authority contract was worth well over

$5,000. He suggests that Fleck’s valuation was unreliable, not

only because Fleck lacked knowledge concerning the value of

the contract but also because he was cooperating with the

Government to develop its case against Allinson. But it is not

Fleck’s statement that supports the value of the transaction.

Rather, it is Allinson’s acceptance of Fleck’s valuation that is

relevant (along with his many other comments indicating that

the Parking Authority contract was worth a great deal to him),

as Allinson’s valuation goes to the objective value of the

contract.

11

to do what I need to do with it, annually”); id. at 1153 (Allinson

tells Ruchlewicz that “[i]f you solve [the Parking Authority]

problem, you get the golden goose”); id. at 1169 (“[F]or us to

come up with [12,500] dollars [in campaign funds], I think

that’s going to be a really heavy stretch unless I can say, hey,

good news, this is, this is the mayor’s way of finding a good

spot for us.”).

Moreover, the amount of money Allinson agreed to

contribute to Pawlowski’s campaign indicates that the value of

the proposed transaction exceeded $5,000. See United States

v. Zwick, 199 F.3d 672, 690 (3d Cir. 1999) (finding a

transaction to be worth more than $5,000 where the public

official helped obtain permits in exchange for a $15,000

donation), abrogated on other grounds, Sabri v. United States,

541 U.S. 600 (2004). Allinson counters that the amount of the

bribe cannot substantiate the transaction value where the

subject of a transaction is a tangible interest. However, even

assuming a legal services contract—and the internal firm credit

Allinson hoped to receive from that contract—is “tangible,” we

have never said that the amount of a bribe cannot prove the

value of the transaction where parties seek to exchange

tangible assets. As Allinson notes, courts look to the bribe

amount as one method for valuing an intangible asset, such as

freedom for a prisoner, see United States v. Townsend, 630

F.3d 1003, 1011 (11th Cir. 2011), or a conjugal visit, see

United States v. Marmolejo, 89 F.3d 1185, 1193–94 (5th Cir.

1996). But we have found no holding that the bribe amount is

irrelevant in other contexts, and we decline to hold so here. 6

6

Which is not to say that the amount of a bribe will always

support the value of the transaction. Rather, “the utility of

looking to the bribe amount will vary depending on the

12

See, e.g., United States v. Richard, 775 F.3d 287, 294 (5th Cir.

2014) (finding a school board superintendent position to be

worth $5,000 or more based on the $5,000 bribe amount).

In sum, the Government’s evidence easily suffices to

support Allinson’s bribery conviction.

II.

We next consider Allinson’s argument that the

indictment, which alleged a single conspiracy among Allinson

and others, impermissibly varied from the evidence at trial that,

he submits, proved only multiple, unrelated conspiracies. 7

For a conspiracy, the Government had to establish an

agreement to achieve an unlawful end, knowing and voluntary

participation by the co-conspirators, and the commission of an

overt act to further the agreement. United States v. Gonzalez,

905 F.3d 165, 179 (3d Cir. 2018). The evidence recounted

above was sufficient for a jury to find that Allinson,

Pawlowski, Fleck, and Ruchlewicz agreed to exchange

circumstances of the transaction.” United States v. Delgado,

984 F.3d 435, 447 (5th Cir. 2021). If, for instance, an

undercover government agent bribes a public official with

$5,000, the price the agent is willing to pay for an asset may

not be an accurate proxy for its market value.

7

To the extent the Government suggests Allinson failed to

preserve this argument, we disagree. While he may not have

used the word “variance” in the trial court, we are satisfied that

he sufficiently raised a variance theory, arguing that the

Government failed to prove the single conspiracy alleged in the

indictment.

13

campaign donations for a specific official act, that Allinson’s

involvement was knowing and voluntary, and that the men

engaged in overt acts to further the scheme. Allinson does not

seriously dispute this conclusion.

But he does raise a separate challenge. In its indictment,

the Government charged Allinson with a single, “hub-and-

spokes” style conspiracy involving not just Pawlowski and his

political consultants, but also several other private vendors

vying for government contracts. The evidence, Allinson

contends, failed to show a single endeavor among all these

alleged participants and instead showed several distinct

schemes. See United States v. Kemp, 500 F.3d 257, 287–88

(3d Cir. 2007). In other words, while the Government may

have proven separate agreements between the hub (Pawlowski)

and the various spokes (the vendors) to exchange campaign

funds for contracts, it failed to prove a “rim” connecting the

spokes to one another. See id.

Where an indictment charges a single conspiracy but the

evidence at trial proves only multiple, separate conspiracies, a

variance occurs. Id. at 287. When faced with a variance

argument, we must first decide “whether there was sufficient

evidence from which the jury could have concluded that the

government proved the single conspiracy alleged in the

indictment.” United States v. Kelly, 892 F.2d 255, 258 (3d Cir.

1989). But unlike a “pure” sufficiency-of-the-evidence

challenge, a successful variance challenge requires us to vacate

a conviction only where the discrepancy between the

indictment and the proof at trial prejudiced the defendant’s

substantial rights. Kemp, 500 F.3d at 287 n.4, 291.

14

To assess whether a single conspiracy, rather than

multiple conspiracies, existed, we look for sufficient evidence

of: (1) a common goal among the conspirators; (2) a common

scheme wherein “the activities of one group . . . were

‘necessary or advantageous to the success of another aspect of

the scheme or to the overall success of the venture’”; and

(3) overlap in the dealings of the conspiracy’s participants.

Kelly, 892 F.2d at 259 (quoting United States v. DeVarona, 872

F.2d 114, 118–19 (5th Cir. 1989)).

The Government argues its evidence proved a single

conspiracy between Allinson and the other vendors. It asserts

they all sought the same end—public contracts—the

achievement of which depended on Pawlowski’s satisfaction

and success. It submits Allinson was aware that others

contributed to Pawlowski’s campaigns with the goal of

influencing his official conduct. And it suggests that their

enterprise was cooperative and mutually interdependent, as

each had a shared motive in ensuring Pawlowski’s electoral

success so all could continue calling on his influence to obtain

government work.

This single-conspiracy theory is appealing in the

abstract; however, it finds little support in the record. There is

no evidence that any of the alleged conspirators were

motivated to contribute for any purpose other than to obtain

their own individual contracts. See Kemp, 500 F.3d at 288

(“[A]lthough each of these alleged spoke conspiracies had the

same goal, there was no evidence that this was a common

goal.” (emphasis in original) (quoting United States v.

Chandler, 388 F.3d 796, 811 (11th Cir. 2004))). The record

instead indicates that they gave campaign funds in exchange

for their contracts because that is what Pawlowski and his

15

political consultants asked for—not to ensure that Pawlowski

remained in a position to keep doling out official favors

generally. See Blumenthal v. United States, 332 U.S. 539, 558

(1947). And while Allinson may have suspected that others

donated to Pawlowski to secure government contracts, there is

no evidence that he “derived [any] benefit” from his alleged

co-conspirators’ conduct, see United States v. Smith, 82 F.3d

1261, 1271 (3d Cir. 1996), or “aided in any way, by agreement

or otherwise, in procuring” work for other would-be city

contractors, Blumenthal, 332 U.S. at 558. Indeed, in its

summation, the Government itself described this case as

consisting of several “different schemes,” rather than a single,

overarching enterprise. App. 2830.

But even if the Government’s proofs were insufficient

to show a single conspiracy, our inquiry does not stop there.

We must also determine whether Allinson was prejudiced by

the variance between the indictment and the evidence. See

Kemp, 500 F.3d at 291. As he was not, his conviction must

stand.

In arguing otherwise, Allinson contends the variance

affected his right “not to be tried en masse for the

conglomeration of distinct and separate offenses committed by

others.” Id. (quoting United States v. Schurr, 775 F.2d 549,

553 (3d Cir. 1985)). Put simply, he alleges the separate

conspiracy of Group A spilled over to Group B such “that the

jury might have been unable to separate offenders and offenses

and easily could have transferred the guilt from one alleged co-

schemer to another.” Schurr, 775 F.2d at 557 (quoting United

States v. Camiel, 689 F.2d 31, 38 (3d Cir. 1982)).

16

Where, however, “the government compartmentalize[s]

its presentation . . . as to each defendant separately” and the

court “charge[s] the jury to consider the evidence against each

defendant separately,” there is little risk of spillover. United

States v. Greenidge, 495 F.3d 85, 95 (3d Cir. 2007). That

standard was met here. The evidence against Allinson was

segregated, coming in through the testimony of Ruchlewicz

and consisting of a series of recorded conversations, all of

which involved or concerned Allinson. There was, moreover,

no suggestion that evidence relevant to Pawlowski’s

agreements with other campaign contributors was relevant to

proving Allinson’s role in the conspiracy. See Kemp, 500 F.3d

at 292 (no prejudice where the government “rigorously

segmented its proofs and ‘never suggested in any way that any

piece of evidence related to [the separate defendants] was

relevant to establish [the appellants’] participation in the

conspiracy’”). And the District Court instructed the jury that

“[y]our decision on any one defendant or any one offense,

whether guilty or not guilty, should not influence your decision

on any one of the other defendants or offenses,” A-Supp. App.

16–17, and that “Allinson [was] not charged with conspiring to

commit any offense other than federal programs bribery,” id.

at 27.

We recognize that the risk of prejudice “increases along

with the number of conspiracies and individuals that make up

the wrongly charged single conspiracy.” Kemp, 500 F.3d at

292 (citing Kotteakos v. United States, 328 U.S. 750, 766–67

(1946)). The conspiracy charged in this case included over ten

alleged co-conspirators and seven distinct sub-schemes, only

one of which involved Allinson. Even so, the Government’s

efforts at trial were reasonably calculated to prevent guilt

transference, and we see no reason to think they were

17

unsuccessful given the nature of the evidence in this case. We

thus reject his variance challenge. 8

III.

Allinson also asserts that the Government

constructively amended its indictment with respect to the

bribery charge. A constructive amendment occurs “when

evidence, arguments, or the district court’s jury instructions

effectively ‘amend[] the indictment by broadening the possible

bases for conviction from that which appeared in the

indictment.’” United States v. McKee, 506 F.3d 225, 229 (3d

Cir. 2007) (quoting United States v. Lee, 359 F.3d 194, 208 (3d

Cir. 2004)). We exercise a fresh review over such claims.

United States v. Vosburgh, 602 F.3d 512, 531 (3d Cir. 2010).

If we determine that a constructive amendment occurred, it is

“a per se violation of the [F]ifth [A]mendment’s grand jury

clause.” United States v. Syme, 276 F.3d 131, 148 (3d Cir.

2002) (quoting United States v. Castro, 776 F.2d 1118, 1121–

22 (3d Cir. 1985)).

The bribery charge here alleges that Allinson

corruptly gave, offered to give,

agreed to give, caused, and

attempted to cause others to give,

8

Allinson argues that his bribery conviction was tainted by

prejudicial spillover from the conspiracy conviction, such that

if we vacate his conspiracy conviction, we must also vacate his

bribery conviction. See United States v. Wright, 665 F.3d 560,

575 (3d Cir. 2012). Because the conspiracy conviction stands,

we do not address this contention.

18

something of value, that is,

campaign contributions, to

defendant EDWIN PAWLOWSKI

and his political action committees

. . . with intent to influence and

reward defendant PAWLOWSKI

in connection with the business,

transaction, and series of

transactions of the City of

Allentown involving something of

value of $5,000 or more, namely,

legal services contracts awarded to

[Norris McLaughlin].

App. 141. Allinson argues that the indictment’s use of

“awarded” refers to an alleged quid pro quo based only on

legal-services contracts already given or awarded in the past,

whereas at trial the Government asserted that the jury could

convict Allinson even if no such work had been awarded to his

firm.

Again we disagree. Allinson’s reading of the charge is

much too cramped, that is, it encompasses both past and

prospective legal work to his firm. It indicates that Allinson

“inten[ded] to influence” Pawlowski so legal services contracts

would be awarded to the firm and intended to “reward” him for

contracts already awarded to the firm. Id. Indeed, the bribery

charge expressly incorporates Allinson’s conduct as alleged in

the conspiracy charge, such as its allegation that Allinson made

and caused others to make campaign contributions in exchange

for future contracts. See id. at 105 ¶ 33 (alleging he “made

campaign contributions and caused others to make campaign

contributions . . . in return for which [he] received, and

19

anticipated receiving, favorable treatment from [Pawlowski] in

obtaining [C]ity contracts with the City of Allentown”

(emphasis added)). The indictment contemplated a bribery

conviction premised on anticipated legal work, and the District

Court therefore did not err in finding that no constructive

amendment occurred. 9

IV.

Next, Allinson submits that the District Court erred in

denying him a new trial based on an alleged misstatement of

law in the Government’s closing argument. We review this

decision for abuse of discretion. See United States v. Wood,

486 F.3d 781, 786 (3d Cir. 2007). “To find that the court

abused its discretion . . . we must first be convinced that the

prosecution did in fact misconduct itself.” Id. (quoting United

States v. Rivas, 479 F.3d 259, 266 (3d Cir. 2007)). If so, we

assess whether the prosecution’s improper statement can be

excused as harmless error. United States v. Gambone, 314

F.3d 163, 177 (3d Cir. 2003).

The Government’s closing argument contained the

following statement:

9

Alternatively, Allinson alleges a variance between the

indictment and the evidence of bribery presented at trial. But

the Government’s evidence showed that Allinson agreed to

contribute to Pawlowski’s campaign to obtain the Parking

Authority contract for his firm, and these facts do not

“materially differ[]” from those alleged in the indictment. See

Vosburgh, 602 F.3d at 532.

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Bribery happens with a wink and a

nod and sometimes a few words,

an understanding between two

people, we all know what’s

happening here. You’re giving me

this, I’m giving you that.

App. 2473. According to Allinson, this line suggested to the

jury that the quid pro quo agreement between the parties could

be implicit—a lower burden than proving an explicit quid pro

quo. See United States v. Antico, 275 F.3d 245, 257–58 (3d

Cir. 2001).

But the Government’s statement is consistent with the

law, which recognizes that bribery can occur through

“knowing winks and nods.” See Evans v. United States, 504

U.S. 255, 274 (1992) (Kennedy, J., concurring). Nowhere in

its summation did the Government use the term “implicit” or

suggest that “a wink and a nod” would, standing alone, be

sufficient to convict. Rather, it repeatedly stated that it was

required to show “a clear, unambiguous understanding

between the parties that the campaign contribution was being

offered in exchange for the official action by the mayor”—that

is, an explicit quid pro quo. App. 2472; see also id. (informing

the jury that the quid pro quo must be “clear and unambiguous,

leaving no uncertainty about the terms of the bargain”). This

same statement of the law was echoed in the jury instructions,

which were approved by all parties. A-Supp. App. 45 (“The

explicitness requirement does not require an official’s specific

statement that he will exchange official action for a

contribution, but rather requires that the quid pro quo be clear

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and unambiguous, leaving no uncertainty about the terms of

the bargain.”).

The Government’s closing remark was not improper

when considered in context, and the District Court did not

abuse its discretion in denying Allinson a new trial because of

it. In any event, the Government’s case against Allinson

consisted of far more than mere “winks” and “nods.” As

explained above, its evidence proved an explicit quid pro quo.

Thus, even were its closing statement improper, any

conceivable error was harmless.

V.

We last consider Allinson’s argument that the District

Court erred in denying the motion to sever his trial from

Pawlowski’s. Again we review the Court’s decision for abuse

of discretion. United States v. Walker, 657 F.3d 160, 170 (3d

Cir. 2011).

“Ordinarily, defendants jointly indicted should be tried

together to conserve judicial resources.” United States v.

Eufrasio, 935 F.2d 553, 568 (3d Cir. 1991). Yet Allinson

(continuing with his defense theme of prejudicial spillover)

contends that a joint trial was improper because the “sweeping

charges against Pawlowski and others” led the jury to convict

him. Allinson Br. 41. But “[n]either a disparity in evidence,

nor introducing evidence more damaging to one defendant than

others[,] entitles seemingly less culpable defendants to

severance.” Eufrasio, 935 F.2d at 568. Allinson must instead

show real prejudice arising from the joint trial either

compromising his trial rights or preventing the jury “from

making a reliable judgment about guilt or innocence.” United

22

States v. Lore, 430 F.3d 190, 205 (3d Cir. 2005) (quoting

United States v. Urban, 404 F.3d 754, 775 (3d Cir. 2005)). He

fails to do so.

The District Court instructed the jurors that “[e]ach

offense and each defendant should be considered separately.”

A-Supp. App. 17. It told them that evidence “admitted solely

against Edwin Pawlowski cannot be considered by you in

determining the guilt or the innocence of Scott Allinson,” and

that “[y]our decision on any one defendant or any one offense,

whether guilty or not guilty, should not influence your decision

on any one of the other defendants or offenses.” Id. at 16–17.

“[J]uries are presumed to follow” such limiting instructions.

Zafiro v. United States, 506 U.S. 534, 540–41 (1993) (quoting

Richardson v. Marsh, 481 U.S. 200, 211 (1987)).

This case was not, moreover, so complex that the jury

could not “reasonably be expected to compartmentalize the

evidence” against Allinson. United States v. Ward, 793 F.2d

551, 556 (3d Cir. 1986) (quoting United States v. Wright-

Barker, 784 F.2d 161, 175 (3d Cir. 1986)). As previously

discussed, the evidence against him was segregated and largely

consisted of his own recorded statements. Allinson fails to

show “clear and substantial prejudice” resulting from the joint

trial, and thus he fails to meet the high bar required to gain a

severance. Urban, 404 F.3d at 775.

* * * * *

The jury here was privy to private conversations in

which Allinson and Pawlowski repeatedly expressed their

intent for Norris McLaughlin to receive the Parking Authority

contract and Allinson the credit, all in exchange for political

23

donations. Allinson’s words and actions were sufficient to

support his bribery and conspiracy convictions.

Moreover, while we see little evidence in the record to

support the Government’s single-conspiracy theory, any

variation between the indictment and the evidence was not

prejudicial. The Government’s efforts at trial were sufficient

to avert the risk that jurors might transfer guilt from the alleged

co-schemers to Allinson. And as to his other claims of error,

there was no impermissible amending of the bribery charge,

the Government’s closing statement was not improper, and

Allinson was not prejudiced by having his trial remain joined

with that of Pawlowski. We thus affirm.

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