Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit
4-6-2004
USA v. Wright Precedential or Non-Precedential: Precedential
Docket No. 03-1800
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Recommended Citation "USA v. Wright" (2004). 2004 Decisions. Paper 755. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/755
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. PRECEDENTIAL JENNIFER-KATE AARONSON Potter, Carmine & Hodas UNITED STATES COURT OF 840 North Union Street APPEALS P.O. Box 514 FOR THE THIRD CIRCUIT Wilmington, DE 19899
No. 03-1800 Counsel for Appellant ____________ RICHARD G. ANDREWS UNITED STATES OF AMERICA Office of the United States Attorney 1007 Orange Street v. Suite 700 Wilmington, DE 19801 LAWRENCE W. WRIGHT Counsel for Appellee Lawrence Wright, _________________ Appellant OPINION OF THE COURT ____________________ ____________________
ON APPEAL FROM THE UNITED ALITO, Circuit Judge: STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE This is an appeal from a final judgment in a criminal case. Lawrence W. District Court Judge: Honorable Wright was convicted and sentenced for Gregory M. Sleet conspiring to transport stolen property in (D.C. No. 01-cr-63) interstate commerce, transporting stolen property in interstate commerce, money Submitted Under Third Circuit LAR laundering, and making false statements 34.1(a) in a matter within the jurisdiction of the January 22, 2004 federal government. All of these offenses related to a scheme to steal money from Before: ALITO and CHERTOFF, the Church that the defendant served as Circuit Judges, and DEBEVOISE,* pastor. We affirm. District Judge (Opinion Filed: April 6, 2004) I.
Lawrence W. W right was the pastor * The Honorable Dickinson R. of the New Mt. Olive Baptist Church (“the Debevoise, District Judge of the United Church”) in Wilmington, Delaware. The States District Court for the District of Church maintained multiple bank New Jersey, sitting by designation. accounts. One of these, the “General Account,” was controlled and reviewed by Wilmington. The defendant immediately Church officials, but another, called the deposited the check into the Fire Account “Fire Account,” was under the defendant’s at the Sun National Bank. After the check sole control. The intended purpose of the was deposited, it was sent to a third-party “Fire Account” was to help the needy. processor, then to First Union Bank, and then across state lines to the Federal Al O. Plant, Sr., (“Plant”) was an Reserve Ban k in P hiladelphia , elected member of the Delaware House of Pennsylvania, from which it was returned Representatives. Under a Delaware to Wilmington Trust Co. Department of Transportation program that was popularly called the Suburban After these funds were deposited in Street Funds (“SSF”) program, each the Fire Account, the defendant began to elected state representative was allocated disburse them for purposes having nothing a share of money to spend on to do with transportation or assisting the transportation-related projects in the needy. He caused $8,500 to be transferred representative’s district. Plant had control into his personal account, and he caused over the funds for the City of Wilmington. $8,500 to be transferred into Plant’s Plant ceded control of his SSF funds to the personal account. In early August, the City, and in return, the City created an defendant wrote himself a check for account with an equivalent amount of $8,000 on the Fire Account and deposited money that would be spent on non-profit the check in his personal account. Later in human services projects as Plant the month, he arranged for transfers of requested. For purposes of simplicity, we $8,000 and $3,500 from the Fire Account will refer to the latter funds as Plant’s SSF into Plant’s personal account. funds. In May or June of 1999, Plant According to the government, Plant enticed Delaware State Representative made SSF moneys available to the Helen Keeley to make $50,000 of her SSF defendant, and the defendant used these money available to him. In October 1999, funds for his own personal use and for the defendant wrote to Plant and requested bribes for Plant. In May 1999, Wright $35,000 to “completely construct a new wrote to Plant requesting $50,000 for a sidewalk” in front of the Church. A short “bus being used for seniors’ transportation time later, Keely, at Plant’s request, signed to the doctor, clinic, hospital, and trips a letter authorizing the transfer of $50,000 during the day.” Plant then contacted the from her SSF to the Church. When the City of Wilmington and requested that it defendant received the check, he deposited write a check for $49,449 from his SSF to it in the Fire Account, and this check, like Wright. The City drew a check for the previous check drawn on the $49,449 payable to Wright on an account Wilmington Trust Co., was cleared at the Wilmington Trust Company in through the Federal Reserve Bank in
2 Philadelphia. to himself. In addition, during a period of approximately five weeks after the deposit Although the money from of the money in the Fire Account, the Representative Keeley’s SSF funds was defendant wrote other checks on that supposed to be used to construct a account for himself and family members sidewalk, no repair or reconstruction of the totaling $22,100. sidewalk was ever done. Instead, money from the Fire Account was again diverted In September 2000, the defendant to the defendant and Plant. In November was interviewed by two FBI agents. 1999, the defendant drew an $8,000 check During one interview, he said that the on the Fire Account payable to Plant, and Church had received only $99,449 of SSF, he arranged for the transfer of another as opposed to the $149,449 that had $8,000 from that account to Plant’s actually been received. He also told the account. During the month of November, FBI agents that the Church had used the the defendant wrote himself approximately part of the proceeds from the first $21,000 in checks on the Fire Account. In Wilmington Trust Co. check (for $49,449) December 1999, he wrote a check for to make a down payment on a new bus and $1,500 from the Fire Account to a body that the rest had been used for incidental shop to pay for repairs to his Mercedes. Church expenses or a reserve account. He claimed that the remaining $50,000 had In July 2000, Plant took action in been used to repair the Church, to response to a request from the defendant refurbish an old bus, and to initiate a for money to repair a house so that it could senior citizen’s program. The next day, be used as an outreach ministry. Plant the defendant was again interviewed by authorized $50,000 to be paid from his two agents and said that the Church had SSF to the Church. Once again a check used the $49,499 check for its reserve was drawn on the Wilmington Trust Co., account and for day-to-day Church the defendant deposited the check in the expenses and that the Church had used the Fire Account, and the check was cleared $50,000 check to buy computers, to through the Federal Reserve Bank in overhaul the bus, and to defray various Philadelphia. After this money was other Church costs. deposited in the Fire Account, the defendant transferred funds from that On March 25, 2001, a grand jury account to himself and to Plant. He wrote returned a 19-count indictment against the Plant a check for $5,600, and on several defendant, charging him with one count of occasions he wrote checks to himself, conspiring to transport stolen property in deposited the checks in his personal interstate commerce, in violation of 18 account, and then used that account to U.S.C. §371; three counts of causing the write checks for Plant in the same amount transportation of stolen property in as the checks that he had originally written interstate commerce (one count for each of
3 the three checks for SSF funds), in help him pay his gambling debts. The violation of 18 U.S.C. §§ 2314 and §2(b); defense argued that while this theft was four counts of money laundering, in wrong, it was not a federal crime. The violation of 18 U.S.C. §1956(a)(1)(B)(I); jury found the defendant guilty on all nine counts of bribery, in violation of 18 counts. U.S.C. §666; and two counts of making false statements to the FBI, in violation of The defendant filed a post-trial 18 U.S.C. §1001. motion for judgment of acquittal in which he renewed the arguments that he had The defendant moved to dismiss the made in his earlier motion to dismiss. The counts of the indictment that involved the District Court granted the motion with transportation of stolen goods in interstate respect to bribery counts1 but refused to commerce. He argued that those counts dismiss the other counts. were defective because they did not allege that he knew that the stolen property The District Court sentenced the would travel in interstate commerce. See defendant to 51 months of imprisonment. United States v. Wright, 194 F.Supp.2d In doing so, the District Court rejected the 287, 291 (D. Del. 2002). He also urged defendant’s request for a downward the District Court to dismiss the bribery departure based on his charitable work. counts on the ground that they did not The defendant then took this appeal. implicate any federal interest. Id. at 296. II. The District Court denied the motion to dismiss. The Court ruled that A. the interstate element of 18 U.S.C. §2314 is purely jurisdictional and that therefore it The defendant first argues that the was not necessary for the defendant to evidence at trial was insufficient to prove have known that the property was going to that he willfully caused another person to travel in interstate commerce. Id. at 290- violate 18 U.S.C. §2314 (transportation of 95. The Court also held that it could not stolen items in interstate or foreign conclude at that juncture that a sufficient commerce). The defendant contends that federal interest was not implicated, but it a person cannot willfully cause property to invited counsel to raise the issue again be transported in interstate commerce after trial. Id. at 295-301.
The defendant was then tried before 1 Neither the propriety of the District a jury. During the trial, the defendant Court’s partial inquiry into the facts claimed that he had stolen money from the relating to this issue prior to the trial nor Church to repay cash loans from Plant, its ultimate decision on this issue is who had loaned the defendant money to before us in this appeal.
4 without knowing that the property will be converted or taken by fraud.” Thus, the transported in interstate commerce, and he text of § 2314 is alone sufficient to show maintains that the evidence does not show that knowledge of the interstate commerce that he had such knowledge. We reject element is not necessary. this argument because the defendant’s interpretation of 18 U.S.C. §2314 and 18 Moreover, even if the statutory text U.S.C. § 2(b) is incorrect. were less clear, there would be strong reasons to doubt that Congress intended to 1. require such proof. For one thing, very few lay people understand the breadth of It is clear that a defendant who the terms “in interstate or foreign personally transports stolen property in commerce,” and therefore except in the interstate commerce may be convicted of most obvious cases – i.e., where the violating 18 U.S.C. § 2314 without proof property actually crosses state lines or an that the defendant knew that the international border – proof of such transportation was in interstate commerce. knowledge would be very hard. It is Section 2314 provides in relevant part: unlikely that Congress intended to create such an obstacle. Whoever transports, transmits, or transfers in More important, there is no i n te r s t a t e o r f o r e i g n apparent reason why Congress would have commerce any goods, wares, wanted to demand proof of such a state of merchandise, securities or mind. Such proof is certainly not money, of the value of constitutionally required. Proof of $5,000 or more knowing the interstate or foreign transport is required to same to have been stolen, ensure that prosecutions under 18 U.S.C. § converted or taken by fraud 2314 reach only conduct that Congress ... may prope rly r egula te und er the Shall be fined under this Commerce Clause, the constitutional title or imprisoned not more provision under which § 2314 was than ten years, or both. enacted, but the Commerce Clause empowers Congress to regulate interstate 18 U.S.C. § 2314 (emphasis added). and foreign commerce regardless of whether the persons engaging in that This language does not require conduct realize that it falls within the proof that the accused knew that the scope of the Clause. transportation of the stolen property was “in interstate or foreign commerce.” There is also no apparent policy Rather, the only requisite knowledge is reason for requiring proof that a person knowledge that the property was “stolen, charged under § 2314 knew that the
5 property was transported in interstate or 2. foreign commerce. The presence or absence of such knowledge seems to have The defendant argues, however, little relation to either the blameworthiness that knowledge of transportation in of the conduct or the harm that it produces. interstate commerce is nevertheless demanded when a defendant is charged Finally, case law strongly supports under 18 U.S.C §2(b) with causing another the conclusion that § 2314 does not person to violate 18 U.S.C. §2314. The necessitate proof that the defendant knew defendant first notes that a person is guilty that the interstate element was present. as a principal if the person “willfully Numerous courts of appeals have held that causes an act to be done which if directly the portion of § 2314 at issue here does not performed by him or another would be an require proof that a defendant knew that offense against the United States.” 18 the transportation was in interstate U.S.C. § 2(b)(emphasis added). In the commerce or even that transportation in present case, the defendant contends, the interstate commerce was reasonably “act” in question is the transportation of foreseeable. See United States v. Lack, stolen goods in interstate commerce, and 129 F.3d 403, 410 (7 th Cir. 1997); United he argues that a person cannot “willfully” States v. Scarborough, 813 F.2d 1244, cause a person to transport goods in 1245-46 (D.C.Cir.1987); United States v. interstate commerce without knowing that Lennon, 751 F.2d 737, 741 (5th Cir.1985); the goods will travel in interstate United States v. Newson, 531 F.2d 979, commerce. This argument is also wrong. 981 (10th Cir. 1976); United States v. Ludwig, 523 F.2d 705, 706-08 (8th First, the language of 18 U.S.C. Cir.1975); United States v. Powers, 437 §2(b) does not require the conclusion that F.2d 1160, 1161 (9th Cir.1971); United the defendant reaches. Suppose, for States v. White, 451 F.2d 559, 559-60 (6th example, that a defendant willfully causes Cir.1971); United States v. Mingoia, 424 another person to take stolen goods from F.2d 710,713(2d Cir. 1970). Cf. United point A to point B without realizing that States v. McElroy , 644 F.2d 274, 277 (3d these points are in different states. In that Cir. 1981)(stating that “[m]ost opinions situation, the defendant may be viewed as hold that the interstate commerce having willfully caused another person to requirement is satisfied if, after the perform an act (transporting the goods defendant negotiates a forged check, it between points A and B) “which if directly travels interstate in the bank collection performed by [the defendant] would be an process”). For all of these reasons, we offense against the United States.” See hold that 18 U.S.C. §2314 itself does not United States v. Feola, 420 U.S. 671, 687 require that the accused know or intend for (1975). The defendant’s lack of the stolen property to be transported across knowledge that points A and B are in states lines. different states would not alter this
6 conclusion. not concern 18 U.S.C. § 2314, its reasoning seems fully applicable in the Second, since a defendant who is present situation. charged with personally transporting stolen property in interstate commerce need not Looking beyond the decisions of know that the transportation is in interstate our own Court, we see that no fewer than commerce, it is difficult to see why six other courts of appeals have rejected Congress would have wanted to require the precise argument that the defendant such knowledge in a case in which a now advances. See Lack, 129 F.3d at 409- defendant is accused of causing another 10; Scarborough, 813 F.2d at 1245-46; person to commit the same offense. Lennon, 751 F.2d at 741; Newson, 531 Third, precedent strongly supports F.2d at 980-81; Ludwig, 523 F.2d at 706- this reading. Although our Court has not 08; Powers, 437 F.2d at 1161. decided the precise issue presented here, in United States v. Gumbs, 283 F.3d 128, 131 We are aware that the First Circuit (3d Cir. 2002), we addressed a very similar has suggested in dicta that the requirement question. In Gumbs, the defendant was of willfulness in 18 U.S.C. § 2(b) might convicted of causing a false claim to be made or presented to a federal department in violation of 18 U.S.C. § 2(b) and § 287. 18 U.S.C. § 111 without knowing that T h e d e f e n d a n t a rg u e d that th e the victim of the assault is a federal “willfulness” element in 18 U.S.C. § 2(b) officer, 420 U.S. at 676-86, the Court meant that he could not be convicted went on to reject the proposition that, in without proof that he knew that the claim order to be guilty of conspiring to violate would be presented to a federal 18 U.S.C. § 111, a conspirator must department, but we disagreed. We noted know that the intended victim was a that “the Supreme Court has held that a federal officer. Id. at 686-96. defendant generally need not be aware of In Yermian, the defendant was the existence of a jurisdictional element to convicted under 18 U.S.C. § 1001, which be guilty of a federal offense.” Id. at 131 makes it a crime to “knowingly and (citing United States v. Feola, 420 U.S. at willfully” make false, fictitious, or 672-73, and United States v. Yermian, 468 fraudulent statements in a matter within U.S. 63, 75 (1984)).2 Although Gumbs did the jurisdiction of a federal department or agency. The Court rejected the argument that conviction under this 2 In Feola, the defendant was statute necessitates proof that the convicted of violating 18 U.S.C. §371, defendant knew that the statements were by conspiring to assault a federal officer, made in a matter within the jurisdiction in violation of 18 U.S.C. §111. After of a federal department or agency. first holding that a defendant may violate
7 demand proof that a defendant charged of the elements of the offense. under 18 U.S.C. § 2314 either knew or should have reasonably foreseen that the Turning to the question whether property would be transported in interstate the evidence was sufficient to establish commerce. United States v. Leppo, 177 that Pereira caused the check to pass in F.3d 93, 96-97 (1 st Cir. 1999). However, interstate commerce, the Court wrote: the Leppo court did not actually decide whether such proof was needed because it When Pereira delivered the found that the record was sufficient to check, drawn on an out-of- show that the defendant intended for the state bank, to the El Paso property to pass in interstate commerce. bank, for collection, he Id. at 97. Furthermore, we believe that “caused” it to be transported the Leppo court read too much into the in interstate commerce. It is passage from Pereira v. United States, 347 common knowledge that U.S. 1 (1954), on which its dicta was such checks must be sent to based. the drawee bank fo r collection, and it follows In Pereira, a defendant, Pereira, was that Pereira intended the El convicted of causing a check procured by Paso bank to send this check fraud to be transported in interstate across state lines. commerce, in violation of 18 U.S.C. §§ 2341 and 2(b). See 347 U.S. at 4, 8. The Id. evidence showed that Pereira fraudulently obtained a check drawn on a California Although this passage notes that bank and then presented the check to a Pereira intended for the fraudulently bank in Texas. Holding that the evidence obtained check to cross state lines, we do was sufficient to support conviction under not interpret the Court’s opinion to mean 18 U.S.C. §§ 2314 and 2(b), the Supreme that such knowledge was needed for Court stated that the following elements conviction. The Court certainly did not had to be proven: state that such knowledge was required; on the contrary, as previously noted, the (1) knowledge that certain Court’s enumeration of the elements of the property has been stolen or offense made no mention of such obtained by fraud, and (2) knowledge. Moreover, Pereira did not transporting it, or causing it argue that such knowledge was required, to be tr ansported in and the question that the Court was interstate commerce. addressing in the passage quoted above It is noteworthy that the Court did not list was simply whether there was sufficient knowledge that the property would be evidence that the defendant caused the transported in interstate commerce as one check to travel in interstate commerce.
8 Therefore, we must respectfully disagree District Court erred in refusing to admit with Leppo to the extent that it suggests testimony concerning Plant’s statements to that Pereira supports the conclusion that his lawyer and testimony concerning such proof is required. Plant’s good moral character.
For all these reasons, we hold that A. the prosecution in this case was not required to prove that the defendant knew The defendant claims that, under that the stolen property would be Federal Rule of Evidence 807, the District transported in interstate commerce. Court should have admitted testimony by Plant’s attorney, Kathleen Jennings, B. regarding statements that Plant made to her before his death. According to the defense In a related argument, the defendant proffer, Jennings would have testified that contends that the District Court erred when Plant had told her that he carried large it denied his motion to dismiss the counts sums of cash to make loans to friends. of the indictment charging violations of 18 The defendant claims that the context in U.S.C. §§ 2314 and 2(b). The defendant which Plant made these statements -- maintains that those counts were deficient confidential communications with his because they did not allege that he knew attorney -- provided strong indicia of that the stolen goods would be transported trustworthiness. in interstate commerce. As discussed above, however, such knowledge is not a Under the Federal Rules of necessary element of the crime. Evidence, hearsay is not admissible unless it falls under one of the enumerated Furthermore, even if th e exceptions. See Fed. R. Evid. 802. In “willful[ness]” required by 18 U.S.C. § addition to providing numerous specific 2(b) did demand proof that the defendant exceptions, see Fed. R. Evid. 803, 804, the knew that the stolen property would be Federal Rules of Evidence contain a transported in interstate commerce, we “residual exception” for certain other have already held that “‘[w]illfulness’ trustworthy hearsay statements. Fed. R. need not be expressly stated in [an] Evid. 807. This provision states in indictment charging a violation of 18 relevant part: U.S.C. §2.” United States v. Krogstad, 576 F.2d 22, 29 (3d Cir. 1978). A statement not specifically covered by Rule 803 or 804 but having equivalent III. circumstantial guarantees of trustworthiness, is not The defendant next argues that the excluded by the hearsay
9 rule, if the court determines statem ents wo uld be that (A) the statement is truthful, other circumstances offered as evidence of a of Plant’s conversation with material fact; (B) the Jennings provide statement is more probative insufficient circumstantial on the point for which it is g u a r a n t e e s o f offered than any other trustworthiness. Plant’s evidence wh ich the statements to his attorney proponent can procure were not under oath, and through reasonable efforts; there was no penalty for him and (C) the general purposes lying to his attorney. of these rules and the Additionally, the interests of justice will best circumstances surrounding be served by admission of Plant’s meetings with his the statement into evidence. attorney contained incentives for him to lie. Fed. R. Evid. 807. Plant’s statements were self-serving sta te me nts Rule 807 is “to be used only rarely, made at a time when he and in exceptional circumstances” and knew he was under “appl[ies] only when certain exceptional investigation and had a guarantees of trustworthiness exist and motive to not tell the truth. when high degrees of probativeness and Human nature is to deny necessity are present.” United States v. c o m mi t ti n g crimes, Bailey, 581 F.2d 341, 347 (3d Cir. 1978). especially for a public figure See also Bohler-Uddeholm America, Inc. who is held in high esteem v. Ellwood Group, Inc., 247 F.3d 79, 112 by the community and (3d Cir. 2001)(“Rule 807 should only be kn o ws he is under used in rare situations.”) investigation. In light of these considerations, the Here, the District Court found that court concludes that the Plant’s statements to his criminal defense hearsay statements at issue attorney lacked the guarantees of are not sufficiently reliable trustworthiness that Rule 807 demands. to merit admission under the The District Court reasoned as follows: residual hearsay exception.
While it is true that Plant’s Wright, 206 F.Supp.2d at 617. conf idential relationship with his attorney is one A trial judge’s finding on the indication that Plant’s question whether hearsay possesses the
10 guarantees of trustworthiness required by Holmquist’s statements under the residual Rule 807 is reviewed for clear error, exception, and our Court affirmed. Copperweld Steel Co. v. Demag Mannersmann Bohler, 578 F.2d 953, 964 Copperweld does not persuade us (3d Cir. 1978), and we see no clear error that the District Court erred in the present here. Although it is not in the best case. The circumstances in the two cases interests of persons implicated in criminal were substantially different, and an investigations to lie to their attorneys, the assessment of the guarantees of trial judge noted that it is not unusual for trustworthiness relating to any statement is them to do so. Moreover, as the trial necessarily highly fact-specific. That the judge observed, a public official whose Copperweld trial judge did not commit career is dependent on maintaining a clear error in finding that the statements at reputation for integrity may find it issue there possessed sufficient indicia of particularly difficult to admit criminal reliability hardly shows that the trial judge wrongdoing, even in a confidential in this case erred in finding that Plant’s communication to an attorney. Thus, we statements did not. Accordingly, we hold hold that the trial judge did not commit that the District Court did not err in clear error in finding that Plant’s refusing to admit Plant’s statements. statements to his lawyer lacked sufficient guarantees of trustworthiness. B.
The defendan t argues that The defendant also claims that the Copper we ld Steel Co v. Demag District Court erred when it refused to Mannersmann Bohler, supra, shows that admit evidence that tended to show Plant’s the trial judge erred. In Copperweld Steel, good character. The defendant contends Copperweld contended that another that such evidence was relevant to show company, Demag, had supplied it with that Plant was not involved in the illegal unsatisfactory machinery. See 578 F.2d at scheme with which the defendant was 956. Demag argued that a Copperweld charged and that this would have officer, Holmquist, was fully aware of and supported his defense that “there was no accepted the risks presented by the conspiracy or agreement.” Appellant’s Br. machine in question. Id. Holmquist died at 40. The defendant argues that evidence before the trial, and Demag was permitted of Plant’s good character was admissible to introduce a memorandum in which a under Federal Rule of Evidence 404(a)(1) Copperweld attorney recounted statements because Plant was an unindicted made by Holmquist concerning the coconspirator and therefore an “accused.” machine. Id. at 963-64 & n. 14. The trial This argument is without merit. judge found that the memorandum possessed sufficient guarantees of Federal Rule of Evidence 404(a)(1) trustworthiness to permit the admission of provides (emphasis added):
11 Evidence of a person's added)(“The common law and the Federal character or a trait of and Revised Uniform Rules of Evidence character is not admissible permit the defendant, but not the for the purpose of proving government, to open the door to character a c t i o n i n c o n fo r m i t y evidence.”); 22 C HARLES A LAN W RIGHT & therewith on a particular K ENNETH W. G RAHAM, J R., F EDERAL occasion, except: P RACTICE AND P ROCEDURE § 5236 at 380 (1) Character of (1978)(emphasis added)(Rule 404(a)(1) Accused.--Evidence of a “codifies the common law rule giving the pertinent trait of character criminal defendant a choice of either offered by an accused, or by remaining under the protection of the the prosecution to rebut the general rule [barring the use of character same. evidence to prove conduct] or opening up the issue of character by introducing The term “accused” is usually used evidence that his character is good to to denote a defendant in a criminal case, support an inference that he did not see, e.g., B LACK’S L AW D ICTIONARY 23 c o m m i t t h e c r im e c h a r g e d ” ) ; (6 th ed. 1990)(defining “accused” as “[t]he C HRISTOPHER B. M UELLER & L AIRD C. generic name for the defendant in a K IRKPATRICK, F EDERAL E VIDENCE § 101 criminal case”), and the Federal Rules of a t 544 (2d ed. 1994)(emphasi s Evidence generally conform to this usage. added)(Rule 404(a)(1) is based on a deeply See Fed. R. Evid. 104(d), 608(b), 609(a), rooted tradition that “allows the defendant 803(22), 804(b)(3). In Rule 412, where in a criminal case to introduce evidence of the term is used in a broader sense, the a pertinent trait of his character as Advisory Committee Note so states. See circumstantial proof that he did not Fed. R. Evid. 412, Advisory Committee commit the charged crime”). We have Notes, 1994 Amendments. found no support for the proposition that Fed. R. Evid. 404(a)(1) was meant to In Rule 404(a)(1), the term sweep more broadly. Nor have we found “accused” appears clearly to have been cases interpreting the term “accused” as used in the conventional sense to denote a used in that provision as referring to criminal defendant. Rule 404(a)(1) anyone other than a criminal defendant. codified a deeply rooted common law rule. Consequently, we reject the defendant’s See Fed. R. Evid. 404(a)(1), Advisory argument that this provision applies to an Notes, 1972 Proposed Rules, Notes to unindicted coconspirator.3 Subdivision (a). This common law rule permitted a criminal defendant to introduce pertinent evidence of good 3 Furthermore, even if Plant could be character. See, e.g., M CC ORMICK ON regarded as an “accused,” Rule 404(a)(1) E VIDENCE § 191 (5 th ed. 1999)(emphasis would not permit the defendant to offer
12 IV. Under these circumstances, we need not reach the merits of the argument that The defendant claims that he is prejudicial spillover requires a new trial. entitled to a new trial due to “prejudicial Rule 33 of the Federal Rules of Criminal spillover” from the evidence that was Procedure authorizes a trial judge to grant admitted to prove the bribery counts on a new trial “[o]n a defendant’s motion.” which the District Court granted judgment Under this rule, “a judge has no power to of acquittal. Contrary to LAR 28.0(a)(1), order a new trial on his own motion.” Fed. the defendant’s opening brief did not R. Crim. Proc. 33, Advisory Committee identify any place in the record of the Notes, 1966 Amendments. A judge “can proceedings before the District Court act only in response to a motion timely where this argument was made. In its made by a defendant.” 4 Id. Accord United brief, the government asserted that the States v. Newman, 456 F.2d 668, 669-70 issue of prejudicial spillover was not (3d Cir. 1972). Indeed, even if a raised “in any relevant pleading,” defendant moves for a new trial, a trial including the defendant’s motion for a new judge may not grant a new trial on a trial. Appellee’s Br. at 44. The ground not raised in the motion. Id. at government argued that because the defendant had not raised the issue of prejudicial spillover in the District Court, 4 Courts have recognized a few narrow the proper standard of review is plain exceptions to this requirement. For error. Id. The defendant filed a reply brief example, under some circumstances a and addressed the issue of prejudicial trial judge may sua sponte grant a spillover but said nothing in response to mistrial and order a new trial, and a the government’s contention that the issue judge may treat a motion for judgment of had not been raised in the District Court in acquittal as a motion for a new trial if any relevant pleading. See Reply Br. at “the arguments underlying the motion 14-15. [for judgment of acquittal] justify a new trial.” See 3 C HARLES A LAN W RIGHT, N ANCY J. K ING, AND S USAN R. K LEIN , F EDERAL P RACTICE AND P ROCEDURE evidence of Plant’s good character. Rule (C RIMINAL) § 552 at 459-60, 463 (2004). 404(a)(1), which is entitled, “Character However, no recognized exception of Accused,” refers to “[e]vidence of a applies here. The trial judge did not pertinent trait of character offered by an grant a mistrial, and the defendant’s accused.” Thus, Rule 404(a)(1) permits motion for judgment of acquittal did not an accused to offer evidence of the raise (and logically could not have accused’s own character. It does not raised) the issue of prejudicial spillover. permit one accused to offer evidence of another’s character.
13 670-72. sentence should be outside the applicable guideline In the present case, the defendant range. did not move for a new trial based on prejudicial spillover, and therefore the A District Court, however, may grant a District Court could not have granted a downward departure if a defendant has new trial on that ground. In any event, made civic or charitable contributions “to even if the defendant had moved for a new an exceptional degree or, in some way, trial based on prejudicial spillover and the that makes the case different from the trial court had denied the motion, we ordinary case in which the factor is would not reverse. The only evidence that present.” United States v. Serafini, 233 would not have been admissible if the F.3d 758, 772 (3d Cir. 2000); see also bribery counts had not gone to trial was United States v. Jordan, 130 F.Supp.2d minor, dry, and technical. We see no 665 (E.D.Pa. 2001). This is a hard realistic likelihood that the strategy of the standard to meet. parties on the other counts would have been altered in any way or that the jury’s In Serafini, a panel of our Court verdicts on those counts would have been considered the application of this standard affected. See United States v. Murphy, to good works performed by a state 323 F.3d 102, (3d Cir. 2003). legislator. In that case, more than 150 letters were submitted to the District Court V. in an effort to persuade the Court to impose a lenient sentence, and the Court The defendant’s final argument is granted a downward departure grounded that the District Court erred in holding that on the defendant’s community and it lacked the power to grant a downward charitable activities. See 233 F.3d at 772. sentencing departure based on the The panel affirmed the downward charitable acts that the defendant departure based solely on those letters that performed as a minister. We disagree. referred to the defendant’s “assistance, in time and money, to individuals and local U.S.S.G. § 5H1.11 provides as organizations.” By contrast, the panel follows: stated that the contents of other letters that referred to the defendant’s “activities as a Military, civic, charitable, or state legislator” could not form the basis pub lic service; for a departure. The panel wrote: e m p l o y m e n t -r e l a te d contributions; and similar Conceptually, if a public prior good works are not servant performs civic and o rdinarily releva nt in charitable work as part of determining whe ther a his daily functions, these
14 should not be considered in rich defendant can simply write checks to his sentencing because we a charity and later ask for a downward expect such work from our departure.) public servants. Here, the District Court recognized Id. at 773. The panel thus drew a that the defendant’s contributions to the distinction between “the political duties comm unity were “profound,” ordinarily performed by public servants” “substantial,” and “sustained,” App. 60, (which “cannot form the basis of a but the Court nevertheless denied the departure”) and “extraordinary community motion for a downward departure. In service” (which can). doing so, the Court stated:
We do not understand the The Third Circuit [in discussion in Serafini to mean that a Serafini] has guided us with person whose occupation involves regard to charitable works charitable or civic work can never qualify a n d c o n t r ib u t i o n s o f for a downward departure based on c o m m unity re l i g io u s extraordinary good works that relate to that leaders, and said that if a occupation. Such a rule would lead to public servant performs anomalous results. For example, a civic and charitable work as physician who earns a high income in part of his daily functions, private practice while also making t h e s e shou ld no t b e extraordinary contributions in providing considered in a sentencing health care to the poor might qualify for a because we expect such downward departure, while a physician work from our public who gives up the possibility of a career in servants. private practice to work full time in a low paying job devoted to helping the poor Id. at 61. would not. Rather than endorsing such a regime, the discussion in Serafini stands The District Court, however, did for the proposition that “the political duties not end with this observation but went on ordinarily performed by public servants” – to acknowledge testimony that no other the sort of duties that are generally needed member of the clergy in the district to stay in office – cannot qualify. It is, engaged in some of the types of good work rather, only when an individual goes well that the defendant performed. Id. The beyond the call of duty and sacrifices for Court stated that this work was “certainly the community that a downward departure commendable” but that it was “not may be appropriate. See, e.g., United persuasive in this situation.” Id. The States v. McHan, 920 F.2d 244, 248 (4 th Court explained: Cir. 1990) (disapproving of the idea that a
15 It may seem harsh to say, ground for reversal. The defendant’s and I guess it is, but the conviction and sentence are therefore Court also believes it cannot affirmed. permit the defendant to hide behind the very community from whom he stole. He solicited money which he purported to use to help parishioners of his Church and the community at large. Instead he used the money, as we have heard uncontested testimony, to do things, personal things fix up his car, his son’s house, and to gamble. Thus, the Court will not downwardly depart based upon the defendant’s civic w o r k a n d c h a r it a b le contributions.
Id. at 61-62.
As we understand the basis for the District Court’s decision, the Court held that, the defendant’s net charitable and civic contributions – taking into account both the good and bad that he did in his capacity as a member of the clergy – cannot be considered as so extraordinarily positive as to warrant a downward departure. We agree with this analysis and with the District Court’s conclusion that the requested downward departure was not permitted. V.
We have considered all of the defendant’s arguments and have found no